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 0596–AC11 

Travel Management; Designated 

Routes and Areas for Motor Vehicle 

Use 

AGENCY: Forest Service, USDA. 

ACTION: Final rule. 

SUMMARY: The Department of 

Agriculture is revising regulations 

regarding travel management on 

National Forest System lands to clarify 

policy related to motor vehicle use, 

including the use of off-highway 

vehicles. This final rule requires 

designation of those roads, trails, and 

areas that are open to motor vehicle use. 

Designations will be made by class of 

vehicle and, if appropriate, by time of 

year. The final rule will prohibit the use 

of motor vehicles off the designated 

system, as well as use of motor vehicles 

on routes and in areas that is not 

consistent with the designations. The 

clear identification of roads, trails, and 

areas for motor vehicle use on each 

National Forest will enhance 

management of National Forest System 

lands; sustain natural resource values 

through more effective management of 

motor vehicle use; enhance 

opportunities for motorized recreation 

experiences on National Forest System 

lands; address needs for access to 

National Forest System lands; and 

preserve areas of opportunity on each 

National Forest for nonmotorized travel 

and experiences. The final rule is 

consistent with provisions of Executive 

Order 11644 and Executive Order 11989 

regarding off-road use of motor vehicles 

on Federal lands. 

EFFECTIVE DATE: This rule is effective 

December 9, 2005. 

ADDRESSES: The rulemaking record for 

this final rule contains all the 

documents pertinent to this rulemaking. 

These documents are available for 

inspection and copying at the office of 

the Director, Recreation and Heritage 

Resources Staff, USDA, Forest Service, 

4th Floor Central, Sidney R. Yates 

Federal Building, 1400 Independence 

Avenue, SW., Washington, DC, from 

8:30 a.m. to 4 p.m., Monday through 

Friday, except holidays. Those wishing 

to inspect or copy these documents are 

encouraged to call Jerry Ingersoll, 

Recreation and Heritage Resources staff, 

at (202) 205–0931 beforehand to 

facilitate access to the building. 

FOR FURTHER INFORMATION CONTACT: Jerry 

Ingersoll, Recreation and Heritage 

Resources Staff, (202) 205–0931. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

1. Background 

• Travel Management Program 

• Need for Revised Rule 

2. Public Comments on Proposed Rule and 

Department Responses 

• Overview 

• General Comments 

• Forest Service Directives 

• Implementation 

• Proposed Rule Preamble 

• Specific Sections by Part 

Part 212—Travel Management 

Part 251—Land Uses 

Part 261—Prohibitions 

Part 295—Use of Motor Vehicles Off 

National Forest System Roads 

• Regulatory Certifications in the Proposed 

Rule 

3. Regulatory Certifications for Final Rule 

• Environmental Impact 

• Regulatory Impact 

• Regulatory Flexibility Act Analysis 

• No Takings Implications 

• Civil Justice Reform 

• Federalism and Consultation and 

Coordination with Indian Tribal 

Governments 

• Energy Effects 

• Unfunded Mandates 

• Controlling Paperwork Burdens on the 

Public 

4. Text of the Final Rule 

• Part 212—Travel Management 

• Part 251—Land Uses 

• Part 261—Prohibitions 

• Part 295—Use of Motor Vehicles Off 

National Forest System Roads 

1. Background 

Travel Management Program 

Forest Service regulations at 36 CFR 

part 212 governing administration of the 

forest transportation system and 

regulations at 36 CFR part 295 

governing use of motor vehicles off 

National Forest System (NFS) roads are 

combined and clarified in this final rule 

as part 212, Travel Management, 

covering the use of motor vehicles on 

NFS lands. These regulations 

implement Executive Order (E.O.) 11644 

(February 8, 1972), ‘‘Use of Off-Road 

Vehicles on the Public Lands,’’ as 

amended by E.O. 11989 (May 24, 1977). 

These Executive orders direct Federal 

agencies to ensure that the use of offroad vehicles on public lands will be 

controlled and directed so as to protect 

the resources of those lands, to promote 

the safety of all users of those lands, and 

to minimize conflicts among the various 

uses of those lands. 

Nationally, the Forest Service 

manages approximately 300,000 miles 

of NFS roads open to motor vehicle use, 

and about 133,000 miles of NFS trails. 

Only a portion of the trails are open to 

motor vehicles. This transportation 

system ranges from paved roads 

designed for passenger cars to singletrack trails used by dirt bikes. Many 

roads designed for high-clearance 

vehicles (such as log trucks and sport 

utility vehicles) also allow use by allterrain vehicles (ATVs) and other offhighway vehicles (OHVs) not normally 

found on city streets. Almost all NFS 

trails serve nonmotorized users, 

including hikers, bicyclists, and 

equestrians, alone or in combination 

with motorized users. NFS roads often 

accept nonmotorized use as well. 

In addition to this managed system of 

roads and trails, many National Forests 

contain user-created roads and trails. 

These routes are concentrated in areas 

where cross-country travel by motor 

vehicles has been allowed, and 

sometimes include dense, braided 

networks of criss-crossing trail. There 

has been no comprehensive national 

inventory of user-created routes (and 

continuing proliferation of such routes 

has made a definitive inventory 

difficult), but they are estimated to 

number in the tens of thousands of 

miles. 

Wilderness areas are closed to motor 

vehicles by statute. On some National 

Forests, and portions of others, motor 

vehicles are restricted by order to the 

established system of roads and trails. 

On other Forests, cross-country travel is 

not currently restricted. 

Need for Revised Rule 

Most National Forest visitors use 

motor vehicles to access the National 

Forests, whether for recreational 

sightseeing; camping and hiking; 

hunting and fishing; commercial 

purposes such as logging, mining, and 

grazing; administration of utilities and 

other land uses; outfitting and guiding; 

or the many other multiple uses of NFS 

lands. For many visitors, motor vehicles 

also represent an integral part of their 

recreational experience. People come to 

National Forests to ride on roads and 

trails in pickup trucks, ATVs, 

motorcycles, and a variety of other 

conveyances. Motor vehicles are a 

legitimate and appropriate way for 

people to enjoy their National Forests— 

in the right places, and with proper 

management. 

Current regulations at 36 CFR part 

295, which provide for allowing, 

restricting, or prohibiting motor vehicle 

travel, were developed when OHVs 

were less widely available, less 

powerful, and less capable of crosscountry travel than today’s models. The 

growing popularity and capabilities of 

OHVs demand new regulations, so that 

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

the Forest Service can continue to 

provide these opportunities while 

sustaining the health of NFS lands and 

resources. 

From 1982 to 2000, the number of 

people driving motor vehicles off road 

in the United States increased over 109 

percent (‘‘Outdoor Recreation for 21st 

Century America: A Report to the 

Nation, The National Survey on 

Recreation and the Environment,’’ p. 37 

(H. Cordell, 2004)). Recent decades have 

seen like advances in the power, range, 

and capabilities of OHVs. Whole new 

classes of vehicles have been introduced 

by manufacturers and are growing in 

popularity. From 1997 to 2001, the 

number of ATVs in use increased by 

almost 40 percent (statement by Dr. 

Edward J. Heiden at Consumer Products 

Safety Commission Field Hearing, June 

5, 2003). These advances expand 

opportunities for Americans to enjoy 

Federal lands. However, the magnitude 

and intensity of motor vehicle use have 

increased to the point that the intent of 

E.O. 11644 and E.O. 11989 cannot be 

met while still allowing unrestricted 

cross-country travel. Soil erosion, water 

quality, and wildlife habitat are affected. 

Some National Forest visitors report that 

their ability to enjoy quiet recreational 

experiences is affected by visitors using 

motor vehicles. A designated and 

managed system of roads, trails, and 

areas for motor vehicle use is needed. 

Current regulations prohibit trail 

construction (§ 261.10(a)) and operation 

of vehicles in a manner damaging to the 

land, wildlife, or vegetation 

(§ 261.13(h)). However, these 

regulations have not proven sufficient to 

control proliferation of routes or 

environmental damage. This 

insufficiency is due in part to the nature 

of OHV travel. The first vehicle driving 

across a particular meadow may not 

harm the land. However, by the time 50 

vehicles have crossed the same path, 

there may be a user-created trail and 

lasting environmental impacts. 

Determining which particular vehicle 

caused the damage can sometimes 

represent a challenge to law 

enforcement officers. 

In addition, the line between highway 

vehicles and OHVs has blurred. 

Vehicles created for specialized off-road 

use, such as military vehicles, are now 

marketed and purchased as family cars. 

Some States have recently enacted 

statutes governing OHV use, including 

vehicle registration requirements, limits 

on operator age, training and licensing 

requirements, equipment requirements, 

sound restrictions, and safety 

requirements. 

Current agency policy varies from 

State to State and National Forest to 

National Forest. Sometimes one 

National Forest restricts motor vehicles 

to roads and trails, while an adjoining 

National Forest allows unrestricted 

cross-country travel. One State may 

prohibit ATVs on public roads, while an 

adjoining State generally allows such 

use. Revised regulations are needed to 

provide national consistency and clarity 

on motor vehicle use within the NFS. At 

the same time, the Department believes 

that designations of roads, trails, and 

areas for motor vehicle use should be 

made locally. The final rule provides a 

national framework under which 

designations are made at the local level. 

Americans cherish the National 

Forests and National Grasslands for the 

values they provide: opportunities for 

healthy recreation and exercise, natural 

scenic beauty, important natural 

resources, protection of rare species, 

wilderness, a connection with their 

history, and opportunities for 

unparalleled outdoor adventure. The 

agency must strike an appropriate 

balance in managing all types of 

recreational activities. To this end, a 

designated system of roads, trails, and 

areas for motor vehicle use, established 

with public involvement, will enhance 

public enjoyment of the National 

Forests while maintaining other 

important values and uses on NFS 

lands. 

2. Public Comments on Proposed Rule 

and Department Responses 

Overview 

On July 15, 2004, the Forest Service 

published a proposed rule in the 

Federal Register (69 FR 135) seeking 

public comment in amending 

regulations at 36 CFR parts 212, 251, 

261, and 295 to clarify policy related to 

motor vehicle use on NFS lands, 

including the use of OHVs. The 

proposed regulation would require 

designation of those roads, trails, and 

areas that are open to motor vehicle use. 

Designations would be made by class of 

vehicle and, if appropriate, by time of 

year. The proposed rule would prohibit 

the use of motor vehicles off the 

designated system, as well as use of 

motor vehicles that is not consistent 

with the designations. 

During the 60-day comment period 

that ended on September 13, 2004, the 

agency received six requests for an 

extension of the comment period. Five 

of these were mailed during the last two 

business days of the comment period, 

and were received after the comment 

period closed. Respondents indicated 

that, due to the complexity of the 

proposed regulations, additional time 

was needed. The Forest Service did not 

extend the comment period because the 

agency does not agree that the proposed 

regulation was complex and because of 

the strong interest expressed in many 

other comments to expedite the 

rulemaking. 

The proposed rule was posted 

electronically on the World Wide Web 

at the Federal Register site at http:// 

www.gpoaccess.gov and at the FirstGov 

e-rulemaking site at http:// 

www.regulations.gov. The agency also 

posted the proposed rule on its World 

Wide Web site for OHVs at http:// 

www.fs.fed.us/recreation/programs/ohv. 

The Forest Service received 81,563 

letters or electronic messages in 

response to the proposed rule, of which 

9,638 contained original text (the 

remainder were form submissions). 

More than 80 percent of the comments 

were submitted electronically. 

Responses submitting original text 

represent the following categories: 

Academic ........................................... 2 

Business Association ......................... 11 

Civic Group ........................................ 1 

Consultants/Legal Representatives ... 3 

County Agency/Elected Official ....... 16 

Domestic Livestock Industry/Permit 

Holders ........................................... 5 

Federal Agency/Elected Official ....... 2 

Individual (unaffiliated or unidentifiable) ........................................... 9,310 

Mechanized Recreation Group (bicycling) ............................................... 2 

Mining Industry Association ............ 2 

Motorized Recreation Group ............. 71 

Multiple Use/Land Rights Organization .................................................. 1 

Nonmechanized Recreation Group ... 24 

Oil, Natural Gas, Coal Industry 

(leasable) ......................................... 2 

Other or Unidentified Organization 1 

Place-Based Group (homeowners association) ........................................ 2 

Preservation/Conservation Organization .................................................. 98 

Private Landowner ............................ 2 

Recreational/Conservation Organization .................................................. 14 

Recreation Organization (non-specific) ................................................ 5 

Special Use Permit Holder ................ 2 

State Agency/Elected Official ........... 21 

Timber/Wood Products Industry ...... 3 

Town/City Agency/Elected Official 2 

Tribal Agency/Elected Official ......... 3 

Tribal Member/Nongovernmental 

Organization ................................... 3 

Single Responses Signed by Multiple Organizations ......................... 29 

The respondents represented all 50 

States, the District of Columbia, Puerto 

Rico, seven foreign countries, and two 

international U.S. Armed Forces bases. 

The largest number of responses 

containing original text came from 

California (1,308), Washington (565), 

and Oregon (392). 

A summary report and searchable 

database of comments are available by 

68266 Federal Register / Vol. 70, No. 216 / Wednesday, November 9, 2005 / Rules and Regulations 

contacting the Forest Service (see: 

ADDRESSES). The comments also are 

available for review in hard copy, but 

arrangements for viewing them should 

be made in advance as they are 

warehoused off site. 

Many comments came from 

organizations and individuals 

concerned about impacts of OHVs on 

the environment and on nonmotorized 

uses. These comments included form 

letters and standard letters with 

additional specific information added 

by the commenter. 

Many comments also came from 

organizations and individuals 

concerned about potential restrictions 

on OHV use. These comments included 

form letters and standard letters with 

additional information added. 

Federal, tribal, State, and local 

agencies and elected officials also 

submitted comments. The Forest 

Service received comments from 2 

Federal agencies, 21 State governments, 

3 Federally recognized tribal 

governments, and 18 county, municipal, 

and local governments, representing a 

variety of points of view. 

Many respondents offered general 

comments either supporting or not 

supporting the proposed rule, or 

supporting or opposing OHV use in 

general. Most also offered specific 

comments about sections of the 

proposed rule that they would like to 

see revised. Many respondents offered 

suggestions for implementation, 

funding, and enforcement of the rule at 

the local level. A few respondents 

submitted comments on other 

rulemaking efforts or existing Forest 

Service policy beyond the scope of this 

rulemaking. 

General Comments 

Comment. Many respondents 

supported multiple uses of NFS lands 

and recreational access for OHVs. These 

respondents believed that closures harm 

the public, private landowners, 

economic interests, and the 

environment by limiting and 

concentrating use. These respondents 

suggested that the agency support the 

public interest, rather than letting 

environmental and anti-access groups 

drive agency policy. These respondents 

were concerned that nonmotorized 

interests have an unfair advantage in 

public involvement due to better 

funding, organization, and access to 

decisionmaking. 

Many other respondents supported 

environmental protection and 

nonmotorized recreational uses of NFS 

lands and suggested confining OHVs to 

small, geographically isolated areas 

separated from nonmotorized users. 

These respondents believed that OHVs 

harm the environment, as well as people 

looking for quiet, peaceful recreation 

experiences. They suggested that the 

agency support the public interest, 

rather than letting manufacturers and 

user groups drive agency policy. These 

respondents were concerned that 

motorized interests have an unfair 

advantage in public involvement due to 

better funding, organization, and access 

to decisionmaking. 

Response. The Department believes 

that National Forests should provide 

access for both motorized and 

nonmotorized users in a manner that is 

environmentally sustainable over the 

long term. The NFS is not reserved for 

the exclusive use of any one group, nor 

must every use be accommodated on 

every acre. It is entirely appropriate for 

different areas of the National Forests to 

provide different opportunities for 

recreation. The Department believes 

such choices and evaluations are best 

made at the local level, with full 

involvement of Federal, tribal, State, 

and local governments, motorized and 

nonmotorized users, and other 

interested parties, as provided for in this 

final rule. 

Comment. Some respondents stated 

that OHVs should not be allowed on 

National Forests at all. These 

respondents suggested that National 

Forests should be managed primarily for 

preservation of natural values, water 

quality, wildlife habitat, endangered 

species, biological diversity, quiet, and 

spiritual renewal. 

Response. The Department disagrees. 

National Forests are managed by law for 

multiple use. They are managed not 

only for the purposes stated in these 

comments, but for timber, grazing, 

mining, and outdoor recreation. These 

uses must be balanced, rather than one 

given preference over another. 

Comment. Some respondents stated 

that Americans have an unrestricted 

right to unlimited access to National 

Forests with motor vehicles and insisted 

that the Forest Service restore this right. 

Response. The Department disagrees 

with this assertion. National Forests 

belong to all Americans, but Americans 

do not have a right to unrestricted use 

of National Forests. Congress 

established the Forest Service to provide 

reasonable regulation of the National 

Forests so that future generations can 

continue to enjoy them. 

Comment. Some respondents 

requested improved Forest Service 

accountability, communications, and 

consistency in implementing rules 

governing motor vehicle use. 

Response. The final rule is intended 

to provide a consistent framework and 

consistent terminology for travel 

management decisions made at the local 

level. For greater clarity in terminology, 

the final rule adds a definition for ‘‘offhighway vehicle’’ and changes the term 

‘‘use map’’ to ‘‘motor vehicle use map.’’

Comment. Many respondents asked 

that decisions on motor vehicle use be 

based on high-quality scientific 

information, including review by 

independent scientists, and not on 

biased data. Some respondents 

suggested that motor vehicle use should 

be allowed only when it can be clearly 

proven to be harmless to the 

environment. Others suggested that 

motor vehicle use should be restricted 

only when it can be clearly proven to be 

harmful to the environment. 

Response. Designations of roads, 

trails, and areas for motor vehicle use 

should be based on accurate, pertinent, 

unbiased information. The Department 

does not believe that it is necessary to 

have independent scientists review 

proposed designation decisions. The 

Department disagrees that motor vehicle 

use should be allowed only when it can 

be clearly proven to be harmless to the 

environment, and that motor vehicle use 

should be restricted only when it can be 

clearly proven to be harmful to the 

environment. Rather, designation 

decisions will be made in accordance 

with the criteria in § 212.55 of the final 

rule. 

Comment. Some respondents stated 

that access to private inholdings must 

not be restricted by this rule, and that 

reciprocal rights-of-way between the 

Forest Service and private landowners 

should be allowed. 

Response. The final rule requires 

responsible officials to recognize rights 

of access in designating roads, trails, 

and areas (§ 212.55(d)). Rights of access 

include valid existing rights and rights 

of use of NFS roads and NFS trails 

under § 212.6(b). This final rule does 

not affect reciprocal rights-of-way 

between the Forest Service and private 

landowners. 

Comment. Some respondents asked 

the Forest Service to encourage private 

landowners to open OHV trails and 

accommodate use on private lands. 

Response. Many private landowners 

allow recreational use of their lands, 

including use by OHVs. Some private 

landowners provide managed facilities 

for OHV enthusiasts. In some cases, 

trails on private land are part of a 

network including NFS lands. The 

Forest Service often works with private 

landowners to secure public rights-ofway for trails providing access to the 

National Forests. However, the 

Department believes that private 

Federal Register / Vol. 70, No. 216 / Wednesday, November 9, 2005 / Rules and Regulations 68267 

landowners are the best judges of the 

proper uses for their land. 

Comment. Some respondents asked 

the Forest Service to set aside 

nonmotorized ‘‘quiet use areas’’ across 

the NFS. 

Response. The final rule requires local 

agency officials, working with the 

public, to designate which roads, trails, 

and areas are available for motor vehicle 

use. The final rule prohibits use off the 

designated system. In designating roads, 

trails, and areas, local agency officials 

must consider minimization of conflicts 

among uses of NFS lands (§ 212.55(a)). 

In designating trails and areas, local 

agency officials must consider 

compatibility of motor vehicle use with 

existing conditions in populated areas, 

taking into account sound, emissions, 

and other factors (§ 212.55(b)(5)). A 

system of quiet use areas established 

outside the designation process is 

unnecessary. 

Comment. Some respondents 

suggested that all routes closed to motor 

vehicles should also be closed to horses, 

bicycles, and all nonpedestrian access. 

Response. The Department disagrees. 

Some poorly located, unauthorized 

routes causing considerable 

environmental damage may have to be 

closed to all uses. However, other routes 

are better suited to some uses than 

others. In some areas of high 

concentrations of use, maintaining 

separate trail networks for different uses 

may reduce conflict and enhance public 

safety and the recreational experience. 

In other areas, multiple-use trails work 

well. The Department believes these 

decisions are best made at the local 

level, with public participation. 

Comment. Some respondents asked 

the Forest Service to provide access to 

groups that maintain and improve roads 

and trails. 

Response. The Department is grateful 

to the many groups who provide 

volunteer assistance in constructing, 

improving, and maintaining roads and 

trails. Without the support of these 

groups, public access and recreational 

opportunities would be more limited. 

Most of these groups help maintain 

trails not to get special privileges, but to 

provide better access for everyone. The 

Department supports the general 

principle of equal public access to 

Federal lands. 

Comment. Some respondents 

suggested limits on timber harvesting 

and grazing, and on road construction 

related to timber harvesting. Other 

respondents requested increased fuel 

treatment to protect communities from 

wildfire and construction of additional 

roads for fuel reduction, fire 

suppression, and timber management 

needs. 

Response. These comments are 

beyond the scope of this rule. Road 

construction for timber harvesting, fuel 

treatment, or other purposes must be 

subjected to site-specific environmental 

analysis, which establishes road 

management objectives. Roads 

constructed as part of these projects 

could be added to the system of 

designated roads, trails, and areas open 

to motor vehicles, depending on the 

results of these local decisions. 

Comment. Some respondents 

suggested that the Forest Service retain 

a right-of-way for public access in all 

land exchanges, and deny access to 

private landowners who block public 

access to Federal lands. 

Response. This comment is beyond 

the scope of this final rule. The Forest 

Service seeks, wherever possible, to 

secure or retain public access to Federal 

lands by purchasing or exchanging 

rights-of-way and reserving rights-ofway in land exchanges. 

Comment. Some respondents 

requested additional scientific studies of 

the environmental impacts of motor 

vehicle use, the social and economic 

impacts of restrictions on motor vehicle 

use, the impacts of road closures on 

firefighting and fuel reduction, the 

numbers of visitors using motor 

vehicles, and other related topics. 

Response. In addition to the studies 

mentioned in the preamble to the 

proposed rule, ongoing studies by Forest 

Service researchers and monitoring by 

National Forest managers address 

several of these topics. The Department 

believes that these studies support the 

need for this final rule. As stated in the 

preamble to the proposed rule, the 

results of monitoring pursuant to 

§212.57 of the final rule could provide 

the basis for revision or rescission of 

designations made pursuant to §212.51, 

or for a determination of considerable 

adverse effects for purposes of 

implementing a temporary, emergency 

closure pursuant to §212.52(b)(2). 

Comment. One respondent asserted 

that the Forest Service must formally 

consult with the U.S. Fish and Wildlife 

Service on the effects of this rule on 

threatened and endangered species, as 

required by the Endangered Species Act 

(ESA). 

Response. The Department has 

determined that this final rule will have 

no effect on threatened or endangered 

species. The final rule establishes a 

procedural framework for local 

decisionmaking and will not have any 

effect until designation of roads, trails, 

and areas is complete for a particular 

administrative unit or Ranger District, 

with opportunity for public 

involvement and coordination with 

Federal, State, local, and tribal 

governments. Designation decisions at 

the local level will be accompanied by 

appropriate consideration of potential 

impacts to threatened and endangered 

species. If such decisions may affect 

threatened or endangered species, the 

Forest Service will consult with the U.S. 

Fish and Wildlife Service, as 

appropriate, under Section 7 of the ESA. 

Forest Service Directives 

Comment. Some respondents asked 

the Forest Service to issue proposed 

directives on implementation of the 

final travel management rule and 

requested that the agency seek public 

comment on these directives. One 

respondent stated that the final rule 

must be consistent with Forest Service 

Manual and Forest Service Handbook 

direction. 

Response. The Forest Service 

provides internal direction to field units 

through its directives system, consisting 

of the Forest Service Manual (FSM) and 

Forest Service Handbooks (FSH). The 

FSM and FSH assist field units in 

implementing programs established by 

statutes and regulations. The Forest 

Service plans to develop proposed 

directives implementing this final rule 

and to publish them in the Federal 

Register for public notice and comment. 

Comment. Some respondents 

requested that officials responsible for 

implementation of this rule be properly 

identified, qualified, and free of conflict 

of interest. Others asked the agency to 

ensure that Forest Service officials do 

not play an active role in State or local 

legislation affecting OHVs. 

Response. Section 212.51 of the final 

rule provides that designations shall be 

made by the responsible official on 

administrative units or Ranger Districts 

of the NFS. Delegations of authority for 

designation decisions will be included 

in directives issued for purposes of 

implementing this final rule. The 

Department expects that designation 

decisions will generally be made by 

Forest Supervisors and District Rangers. 

Forest Supervisors and District Rangers 

are selected for their positions based on 

Federal civil service rules. Federal 

ethics and conduct rules protect the 

public and agency personnel from 

conflicts of interest and limit the roles 

agency personnel may play in their 

official capacities in the State or local 

legislative process. 

Comment. Some respondents 

requested standardized, easily available 

use maps and interagency signage to 

ensure consistent communication and 

enforcement of route designations. 

68268 Federal Register / Vol. 70, No. 216 / Wednesday, November 9, 2005 / Rules and Regulations 

Response. The Forest Service plans to 

develop a standard national format for 

motor vehicle use maps issued under 

this final rule. In the final rule, the 

Department is changing the term ‘‘use 

map’’ to ‘‘motor vehicle use map.’’

Motor vehicle use maps will be 

available at local Forest Service offices 

and, as soon as practicable, on Forest 

Service web sites. The Forest Service 

plans to issue additional travel 

management guidance in its sign 

handbook to ensure consistent messages 

and use of standard interagency 

symbols. 

Comment. Many respondents 

submitted suggestions on compliance 

with the National Environmental Policy 

Act (NEPA) in connection with 

designation of routes and areas for 

motor vehicle use. Some suggested 

including provisions on this topic in the 

rule itself. Others suggested specific 

direction related to the range of 

alternatives subject to consideration, the 

scope of analysis, the starting point for 

analysis, and the various environmental 

effects to be considered. 

Response. Regulations implementing 

NEPA are issued by the Council on 

Environmental Quality and are found at 

40 CFR part 1500. Agency direction on 

NEPA compliance is found in FSH 

1909.15. The Department believes that 

the scope, content, and documentation 

of NEPA analysis associated with 

designating routes and areas for motor 

vehicle use will ultimately depend on 

site-specific factors, including the local 

history of travel planning, public input, 

and environmental impacts at the local 

level. Therefore, the Department is not 

addressing NEPA compliance in this 

final rule. 

Comment. Many respondents 

addressed the status of user-created 

routes in areas currently managed as 

open to cross-country motor vehicle use, 

especially with regard to NEPA 

compliance (FSH 1909.15). Some 

respondents asked the Forest Service to 

acknowledge all such routes as legal, 

legitimate travel ways, and to require 

specific documentation and analysis to 

close them. Other respondents asked the 

Forest Service to treat all such routes as 

illicit and subject to immediate closure. 

Response. The Department rejects 

both of these approaches. User-created 

routes were developed without agency 

authorization, environmental analysis, 

or public involvement and do not have 

the same status as NFS roads and trails 

included in the forest transportation 

system. 

Some user-created routes are wellsited, provide excellent opportunities 

for outdoor recreation by motorized and 

nonmotorized users alike, involve less 

environmental impact than unrestricted 

cross-country motor vehicle use, and 

would enhance the system of designated 

routes and areas. Other user-created 

routes are poorly located and cause 

unacceptable environmental impacts. 

The Department believes that 

evaluation of user-created routes is best 

handled at the local level by officials 

with first-hand knowledge of the 

particular circumstances, uses, and 

environmental impacts involved, 

working closely with local governments, 

users, and other members of the public. 

Comment. Some respondents 

suggested reviewing and inventorying 

all roads, trails, and areas, without 

regard to prior travel management 

decisions and travel plans. Other 

respondents observed that land 

management plans, travel plans, and 

other recent agency documents already 

include a variety of decisions related to 

motor vehicle use and route 

designation. These respondents asked 

the agency to recognize existing plans 

and decisions in designating roads, 

trails, and areas for motor vehicle use. 

Response. The Department believes 

that reviewing and inventorying all 

roads, trails, and areas without regard to 

prior travel management decisions and 

travel plans would be unproductive, 

inefficient, counter to the purposes of 

this final rule, and disrespectful of 

public involvement in past 

decisionmaking. Local responsible 

officials can and should take into 

account past travel management 

decisions. 

Some National Forests have long 

restricted motor vehicles to designated 

routes under E.O. 11644, 36 CFR part 

295, and FSM 2355. Other National 

Forests have recently issued 

comprehensive travel management 

decisions that restrict motor vehicle use 

to designated routes and issued orders 

that prohibit cross-country motor 

vehicle use. All National Forests have a 

system of NFS roads open to motor 

vehicle use, and many also have a 

system of NFS trails managed for motor 

vehicle use. 

Nothing in this final rule requires 

reconsideration of any previous 

administrative decisions that allow, 

restrict, or prohibit motor vehicle use on 

NFS roads and NFS trails or in areas on 

NFS lands and that were made under 

other authorities, including decisions 

made in land management plans and 

travel plans. The final rule adds a new 

paragraph (b) to §212.50 to clarify that 

these decisions may be incorporated 

into designations made pursuant to this 

final rule. 

Some National Forests or Ranger 

Districts have previous administrative 

decisions, made under other authorities 

with public involvement, which restrict 

motor vehicle use over an entire Forest 

or District to designated routes and 

areas. In these cases, the responsible 

official may, with public notice but no 

further analysis or decisionmaking, 

establish that decision or those 

decisions as the designation pursuant to 

this rule for the National Forest or 

Ranger District, effective upon 

publication of a motor vehicle use map. 

In that situation, the only substantive 

change effected by this final rule would 

be enforcement of the restrictions 

pursuant to the prohibition in §261.13, 

rather than pursuant to an order issued 

under part 261, subpart B. The final rule 

includes additional language in 

§212.52(a) to clarify that no further 

public involvement is required in this 

special case. 

Alternatively, responsible officials 

may choose to reconsider past 

decisions, with public involvement, as 

necessary to achieve the purposes of the 

final rule. 

The final rule recognizes that 

designations of roads, trails, and areas 

for motor vehicle use are not permanent. 

Unforeseen environmental impacts, 

changes in public demand, route 

construction, and monitoring conducted 

under §212.57 of the final rule may lead 

responsible officials to consider revising 

designations under §212.54 of the final 

rule. 

Designations must be consistent with 

the applicable land management plan. If 

a responsible official proposes a 

designation that would be inconsistent 

with the applicable land management 

plan, a proposed amendment to the plan 

must be included with the proposed 

designation so that the designation 

decision will conform with the land 

management plan. 

Comment. Some respondents 

observed that NFS roads that are open 

to motor vehicle use are already in effect 

designated and need not be reevaluated. Other respondents asked the 

agency to ensure that proposed changes 

to allowed uses, reconstruction, and 

changes in maintenance levels resulting 

in changes in type or level of use receive 

appropriate site-specific consideration. 

Response. As recognized in the 

preamble to the proposed rule, to a 

certain degree, NFS roads are in effect 

already designated for some classes of 

motor vehicle use. These roads are 

included in a forest transportation atlas, 

and road management objectives may 

establish the appropriate vehicle classes 

and uses for each road segment. In 

recent years, the roads analysis process 

established under 36 CFR 212.5 and 

FSM 7712 has been used to evaluate the 

Federal Register / Vol. 70, No. 216 / Wednesday, November 9, 2005 / Rules and Regulations 68269 

long-term management objectives for the 

passenger car road system in each 

National Forest. 

This final rule does not require 

responsible officials to reconsider 

decisions authorizing motor vehicle use 

on NFS roads and NFS trails. After 

consulting with the public, responsible 

officials may choose to reconsider past 

decisions as necessary to achieve the 

purposes of this final rule. In addition, 

responsible officials may revise 

designations under § 212.54 of the final 

rule. Revisions of designations, 

including revisions in the class of 

vehicle designated for use, must be 

made in accordance with the 

requirements for public involvement in 

§ 212.52 and the criteria in § 212.55. 

Road reconstruction is beyond the scope 

of the designation provisions in subpart 

B of this rule. 

Implementation 

Comment. Many respondents 

requested a specific, enforceable 

deadline (most suggested two years) for 

completing route and area designation 

and ending cross-country motor vehicle 

use. Many other respondents asked the 

Forest Service not to establish a specific 

time frame for completing designations, 

and to allow enough time to complete 

a full and fair evaluation of all potential 

routes. 

Response. The Department shares an 

interest in completing route and area 

designation as quickly as possible. The 

problems associated with unmanaged 

motor vehicle use are important and 

deserve immediate attention. The Forest 

Service will make every effort, within 

its available resources, to complete 

route and area designation as quickly as 

possible. However, the Department 

disagrees with establishing an 

enforceable deadline for completion of 

the process. Imposing an enforceable 

deadline for completing designations 

would subject the Forest Service to legal 

challenge if, despite its best efforts 

(perhaps due to the controversy 

involved in the process), the agency is 

unable to meet the deadline. The 

Department believes that cooperative 

work by responsible officials with State, 

tribal, county, and municipal 

governments, user groups, and other 

interested parties offers the best hope 

for long-term resolution of issues 

involving recreational use, including 

use of motor vehicles. An inflexible 

deadline can make collaborative 

solutions more difficult. 

Comment. Some respondents 

requested that the Forest Service 

complete a full inventory of all existing 

motor vehicle routes, regardless of 

origin, prior to making a designation 

decision. Many of these respondents 

asked the Forest Service to cooperate 

with user groups in conducting this 

inventory, but some also insisted that 

the agency take ultimate responsibility 

for including all user-created routes. 

Response. The Department disagrees 

that a complete inventory of usercreated routes is required in order to 

complete the designation process. As a 

practical matter, such an inventory may 

never be fully complete, as new routes 

will continue to be created during the 

inventory process. A complete 

inventory would be very timeconsuming and expensive, delaying 

completion of route designation. 

Advance planning based on public 

involvement, careful design, and sitespecific environmental analysis provide 

the best hope for a sustainable, managed 

system of motor vehicle routes and areas 

addressing user needs and safety with a 

minimum of environmental impacts. 

As stated above, some user-created 

routes would make excellent additions 

to the system of designated routes and 

areas. The Forest Service is committed 

to working with user groups and others 

to identify such routes and consider 

them on a site-specific basis. 

Comment. Some respondents asked 

the Forest Service to include potential 

future routes in the inventory and 

designation process, and to make 

provision for including additional usercreated routes discovered after 

designation is complete. 

Response. Long-term planning may 

identify potential corridors suitable for 

consideration for future construction. 

However, the agency does not intend to 

designate routes on a motor vehicle use 

map until such routes actually exist, 

have been analyzed and evaluated, and 

are available for public use. Section 

212.54 of the final rule provides for 

revision of designations as needed to 

meet changing conditions. New routes 

may be constructed and added to the 

system following public involvement 

and site-specific environmental 

analysis. Such revisions may also 

include closures or changes in 

designations. 

Comment. Many respondents 

supported public involvement in the 

route designation process. Some 

requested that local residents and 

private landowners receive a greater 

voice in decisions affecting their use. 

Other respondents requested that 

county governments, State tourism 

offices, or other agencies receive formal 

recognition as participants in agency 

decisionmaking. One respondent asked 

that OHV access be subject to a public 

vote. 

Response. The proposed and final 

rules require public involvement in the 

designation process (§ 212.52), and 

coordination with appropriate Federal, 

State, county, local, and tribal 

governments in designating roads, trails, 

and areas for motor vehicle use 

(§ 212.53). Designation of a system of 

motor vehicle routes and areas will be 

made with public involvement and 

coordination with Federal, State, local, 

and tribal governments. Most NFS roads 

are intertwined with networks of State 

and county roads (often crossing NFS 

lands), and cooperative planning among 

affected agencies is essential. Nothing in 

the final rule, however, can relieve the 

Forest Service of the ultimate 

responsibility for decisions regarding 

management of NFS lands. 

Comment. Many respondents 

requested that the Forest Service 

allocate sufficient funds for 

management of motor vehicle use on 

National Forests, particularly for the 

process of route and area designation 

envisioned in the proposed rule. Many 

asked the agency to pursue all available 

sources of funding, including the 

Recreational Trails Program and 

gasoline tax revenues. Some 

respondents insisted that inadequate 

funding not be used as an excuse to 

close routes and restrict motor vehicle 

access. Others stated that the rule was 

pointless without adequate funding. 

Response. The issue regarding 

funding is beyond the scope of this final 

rule. Forest Service appropriations are 

authorized by Congress. The Forest 

Service is committed to using whatever 

funds it has available to accomplish the 

purposes of this final rule in a targeted, 

efficient manner. The agency makes 

appropriate use of all other sources of 

available funding, and has a number of 

successful cooperative relationships 

with State governments. Volunteer 

agreements with user groups and others 

have proven successful in extending 

agency resources for trail construction, 

maintenance, monitoring, and 

mitigation. Regardless of the level of 

funding available, the Department 

believes that the final rule provides a 

better framework for management of 

motor vehicle use on National Forests 

and National Grasslands. While 

availability of resources for maintenance 

and administration must be considered 

in designating routes for motor vehicle 

use (§ 212.55), cooperative relationships 

and volunteer agreements may be 

included in this consideration. 

Comment. Some respondents offered 

specific suggestions for consideration 

during route and area designation, 

including conversion of low-standard 

roads to motorized trails, provision of 

68270 Federal Register / Vol. 70, No. 216 / Wednesday, November 9, 2005 / Rules and Regulations 

parking and trailhead facilities, 

reopening of closed roads, design of 

loop and long-distance trail systems to 

meet user needs, and integration of 

designated routes with roads and trails 

managed by local governments, States, 

and other Federal agencies. 

Some respondents suggested 

consideration of specific environmental 

impacts during route and area 

designation, including introduction of 

invasive species, impacts to cultural 

activities of American Indians, quality 

of the user experience, and Recreation 

Opportunity Spectrum (ROS) 

designations in land management plans. 

Other respondents suggested specific 

areas to avoid in route and area 

designation, including high alpine 

areas, wetlands, riparian areas, and 

roadless areas. 

Response. The Department agrees that 

many of these considerations may be 

important in designating routes and 

areas at the local level. Section 212.55 

of the final rule enumerates the criteria 

for designating roads, trails, and areas 

pursuant to the final rule. Specific 

considerations (such as geography, user 

demands, and environmental impacts) 

will vary from place to place, and even 

route to route, across the NFS. 

Responsible officials, working closely 

with the public, should consider local 

circumstances in applying the criteria 

for designating roads, trails, and areas 

pursuant to the final rule. 

Comment. Some respondents 

suggested a no-net-loss policy for motor 

vehicle routes (every route closed must 

be replaced by a new route of the same 

length and character), a specific goal for 

available routes (such as four miles of 

motor vehicle trail per square mile), or 

a general policy to develop all access 

opportunities close to urban areas. 

Response. The Department disagrees 

with establishing any of these principles 

as national policy. Designation 

decisions are best left to local managers, 

working closely with State, tribal, and 

local governments, users, and other 

members of the public and informed by 

site-specific evaluation of 

environmental impacts. 

Comment. Some respondents stated 

that regulations are effective only if they 

are enforced, and questioned whether 

the agency was capable of enforcing 

motor vehicle restrictions due to limited 

numbers of law enforcement officers. 

Response. Forest Service law 

enforcement personnel play a critical 

role in ensuring compliance with laws 

and regulations, protecting public 

safety, and protecting National Forest 

resources. The Forest Service also 

maintains cooperative relationships 

with many State and local law 

enforcement agencies that provide 

mutual support across jurisdictional 

boundaries. Education and cooperative 

relationships with users support 

enforcement efforts by promoting 

voluntary compliance. The final rule 

will not increase the agency’s budget or 

the number of law enforcement officers. 

However, the final rule will enhance 

enforcement by substituting a regulatory 

prohibition for closure orders and 

providing for a motor vehicle use map 

supplemented by signage. 

Comment. Some respondents 

questioned the use of contractors and 

volunteers to map and maintain trails, 

and to report violations of motor vehicle 

regulations. 

Response. The Forest Service utilizes 

a mix of agency personnel, contractors, 

volunteers, and cooperators to 

accomplish many elements of its 

mission. Without the support of 

cooperators and volunteers and the 

services of contractors, the agency 

would be unable to provide the same 

level of service to the public or care for 

the lands entrusted to it within its 

current budget. Like all law enforcement 

agencies, the Forest Service depends on 

citizen reports of violations as a critical 

component of its enforcement program. 

Comment. Some respondents asked 

the Forest Service to ensure 

representation of OHV enthusiasts and 

riders among agency staff responsible 

for OHV management. 

Response. The Forest Service uses 

competitive civil service procedures to 

select the best qualified applicant for 

each position, based on the knowledge, 

skills, and abilities necessary to perform 

the job. While ability to use government 

equipment may be a selective factor for 

some positions, the agency does not hire 

personnel based on their outside 

recreational interests. Nevertheless, 

there are Forest Service employees who 

are OHV riders. 

Comment. Some respondents asked 

the Forest Service to ensure adequate 

maintenance for motor vehicle trails, 

rather than closing them. 

Response. The Forest Service 

maintains NFS roads and NFS trails in 

accordance with their management 

objectives and the availability of funds. 

Volunteers and cooperators maintain 

many trails. The agency collects fees for 

use of some developed recreational 

facilities, most of which are retained 

and spent at the site where they are 

collected. Unfortunately, resources are 

still limited, and the Forest Service has 

a substantial backlog of maintenance 

needs, even before adding many usercreated routes to the system. In some 

cases, an extended lack of maintenance 

can lead to deterioration of a road or 

trail to the point that it must be closed 

to address user safety or to prevent 

severe environmental damage. The 

Forest Service actively tries to avoid 

closures by encouraging volunteer 

agreements and cooperative 

relationships with user groups. 

Comment. Some respondents 

requested clarification of the rules 

applicable to motor vehicle use while 

designation is pending. Some asked that 

current rules remain in effect. Others 

requested immediate closure of all usercreated routes. Some respondents 

sought to continue using and 

maintaining existing trails while 

designation is pending. 

Response. The final rule’s prohibition 

on motor vehicle use off the designated 

system (§ 261.13) goes into effect on an 

administrative unit or Ranger District 

once that unit or District has designated 

those NFS roads, NFS trails, and areas 

on NFS lands that are open to motor 

vehicle use and published a motor 

vehicle use map identifying those roads, 

trails, and areas (§ 212.56). Until 

designations for a unit or District are 

complete and a motor vehicle use map 

identifying those designations is 

published, existing travel management 

policies, restrictions, and orders remain 

in effect. Forest Supervisors may 

continue to issue travel management 

orders pursuant to part 261, subpart B, 

and impose temporary, emergency 

closures based on a determination of 

considerable adverse effects pursuant to 

§ 212.52(b)(2) of the final rule. The 

Department does not believe that 

immediate closure of all user-created 

routes, without local evaluation and 

public input, is necessary or 

appropriate. Use and maintenance of 

NFS roads and NFS trails consistent 

with current travel management policies 

and management objectives may 

continue. Construction and 

maintenance of roads or trails without a 

permit are prohibited by existing 

regulations (§ 261.10(a)). 

The Department expects that some 

administrative units or Ranger Districts 

will complete route and area 

designation before others and that the 

prohibition on cross-country motor 

vehicle use in § 261.13 will go into 

effect on different units and Ranger 

Districts at different times. This 

variation in travel management mirrors 

the existing situation, in which some 

units are open to cross-country motor 

vehicle use, while others restrict motor 

vehicles to designated routes and areas. 

Over the next few years, all 

administrative units and Ranger 

Districts will institute a system of 

designated routes and areas. 

Federal Register / Vol. 70, No. 216 / Wednesday, November 9, 2005 / Rules and Regulations 68271 

Comment. Some respondents 

suggested that the Forest Service require 

vehicle registration, license plates, noise 

abatement, and safety equipment for all 

motor vehicles using NFS lands. Others 

suggested requiring licensing and safety 

training for all riders. 

Response. State traffic laws apply on 

NFS roads as provided for in 36 CFR 

212.5(a)(1). State governments have long 

taken the lead in establishing 

registration, safety, and licensing 

requirements for motor vehicles and 

motor vehicle operators, providing a 

consistent framework for users within 

State boundaries. The Department 

wholeheartedly supports this 

framework. The Department believes a 

separate registration or licensing process 

for operators for the NFS would be 

confusing, inefficient, and intrusive. 

The Department notes that some 

States have no requirements regarding 

minimum age, safety equipment, and 

noise levels for OHVs. Some National 

Forests have experienced serious 

injuries and fatal accidents involving 

OHVs, some of which involve young 

children. The Forest Service will 

continue to regulate OHV riders to a 

certain degree in existing regulations at 

§ 261.13, recodified as § 261.15 in the 

final rule (for example, by requiring a 

headlight and taillight when riding after 

dark and by providing for incorporation 

of State law pertaining to use of motor 

vehicles off roads). At this time, 

however, the Department is not 

prepared to issue or enforce new 

national standards for operators or 

equipment on NFS lands. As 

designations are completed and 

management of designated roads, trails, 

and areas continues, the Department 

may consider developing some national 

safety standards for OHVs at a later date. 

Noise is a particularly important issue 

affecting OHV use nationally. The 

Forest Service anticipates developing a 

national standard for OHV noise levels 

in a future rulemaking. 

Comment. Some respondents 

suggested that the Forest Service charge 

a fee for OHV use on NFS lands and 

retain the funds for route maintenance 

and enforcement. Other respondents 

objected to any fees for public access to 

Federal land. One respondent suggested 

a surcharge on OHV manufacturers. 

Response. These comments are 

beyond the scope of this final rule, 

which governs designation of roads, 

trails, and areas for motor vehicle use. 

Forest Service authority to charge and 

retain fees for use of recreational 

facilities and services is contained in 

the Federal Lands Recreation 

Enhancement Act (16 U.S.C. 6801–

6814). The agency has no authority to 

tax manufacturers. 

Proposed Rule Preamble 

Comment. Some respondents 

disagreed with the Forest Service’s 

rationale for the proposed rule and 

urged the agency not to adopt a final 

rule. These respondents stated that a 

prohibition on cross-country motor 

vehicle use will harm small businesses, 

recreation users, the tourism industry, 

local governments, local economies, 

low-income residents, families with 

children, and people with disabilities, 

and reduce public access to Federal 

lands. Some respondents stated that any 

environmental impacts and other 

problems associated with cross-country 

motor vehicle use result from poor 

Forest Service management and should 

be addressed by better implementation 

and enforcement of existing rules, rather 

than additional regulation. Others 

contended that natural forces, such as 

fire and flood, have far greater 

environmental impact than OHVs and 

that the motor vehicle regulation is not 

needed. 

Response. The Department disagrees 

with these assertions. Unregulated 

cross-country motor vehicle use may 

have been appropriate on some National 

Forests when these vehicles were less 

numerous, less powerful, and less 

capable of cross-country travel. Today, 

however, the proliferation of usercreated routes is a major challenge on 

many National Forests and examples of 

significant environmental damage, 

safety issues, and user conflicts are well 

established. The Department believes 

that a well-planned, well-designed 

system of designated roads, trails, and 

areas, developed in coordination with 

Federal, State, local, and tribal 

governments and with public 

involvement, offers better opportunities 

for sustainable long-term recreational 

motor vehicle use and better economic 

opportunities for local residents and 

communities. 

Comment. Some respondents stated 

that the proposed rule will harm the 

nonmotorized recreation industry by 

encouraging OHV use. Other 

respondents stated that the proposed 

rule does not do enough to address the 

threat of OHVs, unauthorized routes, 

and continuing damage to the 

environment, and should be 

strengthened. Some asked the Forest 

Service to explain how its maintenance 

backlog can be reconciled with the 

stated goal of enhancing opportunities 

for motorized recreation. 

Response. This final rule does not 

encourage or discourage motor vehicle 

use, but rather requires designation of 

roads, trails, and areas for motor vehicle 

use. The Department believes that a 

well-designed system of routes and 

areas designated for motor vehicle use 

can reduce maintenance needs and 

environmental damage, while 

enhancing the recreational experience 

for all users, both motorized and 

nonmotorized. 

Comment. Some respondents called 

for clear and consistent national 

standards for motor vehicle use and 

route and area designation. They stated 

that the proposed rule allows too much 

discretion for local Forest Service 

managers to make designation 

decisions, which may result in 

inconsistent and ineffective 

decisionmaking. Other respondents 

stated that the final rule should retain 

flexibility in local decisionmaking, 

rather than establishing a one-size-fitsall national policy. 

Response. The final rule provides a 

national framework for local 

decisionmaking. The rule includes 

definitions, procedures, and criteria for 

designation of NFS roads, NFS trails, 

and areas on NFS lands for motor 

vehicle use, and a prohibition on motor 

vehicle use that occurs off the 

designated system or that is inconsistent 

with motor vehicle designations. The 

Department expects the roughly 300,000 

miles of NFS roads currently open to 

highway-legal motor vehicle use to be 

designated for that purpose. However, 

the rule retains flexibility at the local 

level to determine, with public 

involvement, appropriate motor vehicle 

use on local NFS roads, on NFS trails, 

and in areas on NFS lands. The 

Department believes that decisions 

about specific routes and areas are best 

made by local officials with knowledge 

of those routes and areas, the local 

environment, and site-specific tradeoffs, 

with public involvement and in 

coordination with appropriate Federal, 

State, local, and tribal governments. 

Comment. Some respondents asked 

the Forest Service to commit to 

designating enough OHV routes to 

accommodate current and future 

demand. 

Response. Provision of recreational 

opportunities and access needs are two 

of several criteria the responsible 

official must consider under § 212.55 of 

the final rule in designating routes for 

motor vehicle use. National Forests are 

popular with many Americans for many 

uses. It is not possible to accommodate 

all user demands on all National Forests 

while also protecting water quality, 

wildlife habitat, and other natural 

resources that people come to enjoy. 

Forest Service managers must balance 

user interests against the other criteria 

68272 Federal Register / Vol. 70, No. 216 / Wednesday, November 9, 2005 / Rules and Regulations 

for designating routes and areas under 

the final rule. 

Comment. Some respondents stated 

that local government, not the Forest 

Service, should decide where roads and 

vehicle access are needed to serve local 

communities and protect public health 

and safety. 

Response. The Department believes 

that coordination with local 

governments is essential in designating 

a system of motor vehicle routes and 

areas on NFS lands. The final rule 

requires coordination with appropriate 

local governmental entities when 

designating routes and areas for motor 

vehicle use and provides for designation 

decisions to be made by Forest Service 

officers at the local level to ensure that 

they take local needs into account. 

However, the Forest Service retains 

ultimate responsibility, as provided by 

Congress, for management of uses on the 

NFS. 

Forest Service policy (FSM 7703.3) is 

to seek to transfer jurisdiction of NFS 

roads to public road authorities when 

(1) more than half of the use is likely to 

be non-Forest Service-generated traffic; 

(2) the road is necessary and used for 

mail, school, or other local government 

purposes, or (3) the road serves yearlong residents within or adjacent to the 

National Forests. 

Comment. Some respondents stated 

that the language of the preamble to the 

proposed rule, particularly the shift of 

regulations governing OHV use from 

part 295 (Use of Motor Vehicles Off 

National Forest System Roads) to part 

212 (Administration of the Forest 

Transportation System), reflects a 

change in the agency’s perception of 

motor vehicle use on NFS lands. These 

respondents asked the Forest Service to 

recognize motor vehicle use as a 

legitimate recreational pursuit, not just 

as a transportation issue. 

Response. The Department recognizes 

this concern. Motor vehicles serve a 

variety of functions on National Forests. 

Motor vehicles are used in commercial 

and natural resource management 

activities, including maintaining utility 

corridors, mining, and timber sales. 

Motor vehicles on NFS lands provide 

access to private land, recreation 

destinations, and destinations off NFS 

lands. Motor vehicles are used in 

support of other recreational activities, 

such as hunting and camping. Motor 

vehicles are also used as a recreational 

experience in their own right, such as 

for trail riding and driving for pleasure. 

These uses overlap and are not always 

clearly distinguishable. To create a 

comprehensive system of travel 

management, the final rule consolidates 

regulations governing motor vehicle use 

in one part, 212, entitled ‘‘Travel 

Management.’’ Motor vehicles remain a 

legitimate recreational use of NFS lands. 

Comment. Some respondents objected 

to the preamble’s use of the term ‘‘offroad vehicle’’ in reference to E.O. 11644 

and E.O. 11989, and asked the agency to 

use ‘‘off-highway vehicle.’’ Other 

respondents objected to the latter term 

and preferred ‘‘off-road vehicle.’’ Some 

respondents requested that specific 

classes of vehicles, such as side-bysides, sport utility vehicles, and 

motorcycles, be included or excluded 

from the definition of OHV. 

Response. The final rule addresses all 

motor vehicle use on NFS roads, on NFS 

trails, and in areas on NFS lands, from 

passenger cars to ATVs to motorcycles. 

The final rule is not limited to OHVs, 

in part because OHVs are not always 

clearly distinguishable from passenger 

vehicles (today the family car may be 

quite capable of off-highway travel). 

Local units are responsible for 

designating routes and areas for motor 

vehicle use, including which routes and 

areas are designated for which vehicle 

classes. In response to comments, and 

because the agency has used the term 

extensively in communications, the 

final rule has added a definition of ‘‘offhighway vehicle.’’ This definition is 

consistent with the definition of ‘‘offroad vehicle’’ used in E.O. 11644. 

Comment. Some respondents asked 

the Forest Service to include bicycles 

and horses within the definition of ‘‘offhighway vehicle’’ and regulate these 

uses like motor vehicles. 

Response. OHVs are motor vehicles. 

Since bicycles and horses are not motor 

vehicles, they are not included in the 

definition of ‘‘off-highway vehicle.’’

Similarly, this rule governs designation 

of routes and areas for motor vehicle use 

and does not apply to nonmotorized 

uses, such as bicycles and horses. 

At this time, the Department does not 

see the need for regulations requiring 

establishment of a system of routes and 

areas designated for nonmotorized uses. 

Local Forest Service officials may 

choose to designate routes and areas for 

nonmotorized uses and enforce those 

designations with an order issued under 

36 CFR part 261, subpart B. On some 

National Forests, and portions of others, 

bicycles and/or equestrians are 

restricted to designated routes, or even 

prohibited altogether. On other National 

Forests, cross-country use of bicycles 

and horses is permitted. 

Comment. Some respondents 

suggested that E.O. 11644 and E.O. 

11989 conflict with the Federal Land 

Policy and Management Act (FLPMA) 

and the Multiple Use-Sustained Yield 

Act (MUSY), are outdated, and do not 

reflect changes in use and technology of 

motor vehicles. These respondents 

asked the Forest Service not to rely on 

the E.O.s in promulgating regulations 

governing designation of routes and 

areas for motor vehicle use. 

Response. The Department disagrees 

that the E.O.s conflict with FLPMA and 

MUSY. Both statutes give the Forest 

Service broad authority to manage NFS 

lands for multiple uses. MUSY defines 

‘‘multiple use’’ in part as ‘‘management 

of all the various * * * resources of the 

National Forests so that they are utilized 

in the combination that will best meet 

the needs of the American people 

* * *.’’ MUSY specifically provides 

‘‘that some land will be used for less 

than all of the resources’’ (16 U.S.C. 

531(a)). Neither Act directs that all NFS 

lands be open to all uses. 

E.O. 11644 and E.O. 11989 broadly 

direct Federal land management 

agencies to regulate OHVs in 

conformance with certain criteria. As 

discussed in the preamble, the 

environmental concerns that prompted 

the E.O.s are more, not less, pressing 

with changes in OHV use and 

technology. 

Executive orders issued by the 

President of the United States provide 

policy direction to all Federal agencies. 

The Department conforms its policy to 

executive orders and believes that it is 

appropriate to take applicable executive 

orders, such as E.O. 11644 and E.O. 

11989, into account in promulgating 

regulations and issuing directives. 

Comment. Some respondents stated 

that the proposed rule is not consistent 

with the letter and spirit of E.O. 11644 

and E.O. 11989, and must not convert 

their mandatory language to 

discretionary language. 

Response. The Department disagrees 

with this assertion. Section 3(a) of E.O. 

11644 directs the Forest Service to 

develop and issue regulations ‘‘to 

provide for administrative designation 

of the specific areas and trails on public 

lands on which the use of off-road 

vehicles may be permitted, and areas in 

which the use of off-road vehicles may 

not be permitted * * * ’’ Section 9(b) of 

E.O. 11644 specifically authorizes the 

Forest Service to adopt the policy to 

designate those areas or trails that are 

suitable for motor vehicle use and to 

close all other areas and trails to that 

use. Consistent with these provisions, 

the final rule requires establishment of 

a system of routes and areas designated 

for motor vehicle use and prohibits 

motor vehicle use off the designated 

system. The provisions in the final rule 

governing exemptions from 

designations, public involvement, 

criteria for designations, designations in 

Federal Register / Vol. 70, No. 216 / Wednesday, November 9, 2005 / Rules and Regulations 68273 

wilderness areas, identification of 

designated routes and areas, monitoring, 

and over-snow use track E.O. 11644 and 

E.O. 11989. See the response to 

comments on §§ 212.52 and 212.55 for 

the relationship between specific 

sections of the rule and the Executive 

orders. 

Comment. Some respondents 

interpreted the preamble to the 

proposed rule to imply that every 

National Forest must designate areas for 

motor vehicle use. Some respondents 

supported this idea. Others asked the 

agency to clarify that there is no such 

requirement. 

Response. The proposed rule was 

never intended to require each National 

Forest to have areas designated for 

motor vehicle use. To clarify this point, 

the summary for the final rule states that 

it requires designation of those roads, 

trails, and areas that are open to motor 

vehicle use. Some National Forests do 

not allow motor vehicle use off NFS 

roads. This final rule does not require 

them to change their policy. 

Comment. Several respondents 

addressed the preamble’s discussion of 

use of OHVs on NFS roads managed at 

various maintenance levels. Some 

respondents asked the Forest Service to 

allow and some asked the agency to 

prohibit non-highway-legal vehicles on 

NFS roads at maintenance levels 3, 4, 

and 5. 

Response. Road designation decisions 

will determine road management 

objectives and maintenance levels, 

rather than vice versa. However, in 

many cases, existing road management 

objectives and maintenance levels, 

established through travel planning and 

roads analysis in consultation with State 

and local governments, already establish 

appropriate motor vehicle use. The 

Department anticipates the need to mix 

highway-legal and non-highway-legal 

traffic on some NFS roads at 

maintenance levels 3, 4, and 5. Such 

designation decisions will be advised by 

professional engineering judgment, and 

will include design features deemed 

appropriate by engineering studies. 

Comment. Some respondents objected 

to the agency’s rationale for exempting 

snowmobiles from designations made 

under § 212.51 of the proposed rule, on 

the grounds that snowmobiles have 

documented impacts on wildlife, skiers, 

and other resource values. Some 

respondents asked the agency to include 

a noise level limit for snowmobiles and 

other provisions specific to 

snowmobiles. Other respondents asked 

the Forest Service to remove provisions 

governing snowmobiles from the rule 

and exclude snowmobiles from the 

definition of ‘‘off-highway vehicle.’’

Response. Snowmobiles are ‘‘off-road 

vehicles’’ under E.O. 11644 and subject 

to the direction ‘‘to provide for 

administrative designation of the 

specific areas and trails on public lands 

on which the use of off-road vehicles 

may be permitted, and areas in which 

the use of off-road vehicles may not be 

permitted’’ (E.O. 11644, Sec. 3(a)). 

Moreover, snowmobiles are ‘‘motor 

vehicles’’ under this final rule. Since 

this rule regulates motor vehicle use, the 

rule must address snowmobiles. 

However, the Department believes 

that cross-country use of snowmobiles 

presents a different set of management 

issues and environmental impacts than 

cross-country use of other types of 

motor vehicles. 

Therefore, the final rule exempts 

snowmobiles from the mandatory 

designation scheme provided for under 

§ 212.51, but retains a manager’s ability 

to allow, restrict, or prohibit 

snowmobile travel, as appropriate, on a 

case-by-case basis (§ 212.81). 

Restrictions and prohibitions on 

snowmobile use will be enforced under 

§ 261.14, rather than through issuance of 

an order under part 261, subpart B. 

The definition of ‘‘snowmobile’’ in 

the proposed rule encompassed large 

vehicles not commonly referred to as 

‘‘snowmobiles,’’ but excluded oversnow vehicles also capable of summer 

travel. In order to improve clarity and 

ensure equitable treatment of over-snow 

vehicle use, the final rule replaces the 

exemption for snowmobiles with an 

exemption for ‘‘over-snow vehicles,’’ a 

broader term that includes 

snowmobiles, as well as other vehicles 

designed for over-snow travel. The final 

rule adds language to § 212.81(c) to 

clarify that the designation process 

applies to over-snow vehicles only 

where the local responsible official 

proposes to establish restrictions or 

prohibitions on use of over-snow 

vehicles under this subpart. 

The Department expects that 

management of winter recreational use 

will continue to be an important issue 

on many National Forests. Nothing in 

this final rule limits the ability of Forest 

Service managers to take appropriate 

action to regulate snowmobile use, or 

other winter uses, or precludes the 

Department from promulgating 

regulations on snowmobile use at some 

point in the future. 

Specific Sections by Part 

Part 212—Travel Management 

Subpart A—Administration of the 

Forest Transportation System 

Section 212.1. This section of the rule 

includes the definitions for part 212, 

which governs administration of the 

forest transportation system, designation 

of roads, trails, and areas for motor 

vehicle use, and use by over-snow 

vehicles. 

Definition for ‘‘administrative unit.’’

Comment. Respondents suggested 

clarifying that this definition embraces 

all NFS lands, including National 

Recreation Areas and other 

Congressionally designated areas. 

Response. National Forests and 

National Grasslands include many 

classifications, including National 

Recreation Areas and Congressionally 

Designated Areas. The purpose of 

including a definition for administrative 

unit was not to delineate the types of 

areas within the NFS, but rather to refer 

to a discrete management unit within 

the NFS for purposes of triggering 

designation of motor vehicle use under 

the final rule. To ensure that the 

definition for ‘‘administrative unit’’

encompasses all NFS lands, the final 

rule adds purchase units, land 

utilization projects, and the Columbia 

River Gorge National Scenic Area to the 

list of administrative units. The final 

rule also adds ‘‘or other comparable 

units of the National Forest System’’ to 

the definition so that if Congress 

establishes new administrative units of 

the NFS, they will be included within 

this definition. 

Definition for ‘‘all-terrain vehicle,’’

‘‘considerable adverse effects,’’

‘‘motorcycle,’’ and ‘‘off-highway 

vehicle.’’

Comment. Although not included in 

the proposed rule, respondents 

suggested including these definitions in 

the final rule. 

Response. The Department agrees that 

it would be helpful to add a definition 

for ‘‘off-highway vehicle,’’ since crosscountry travel by OHVs is a major 

concern of this final rule. Therefore, the 

Department is adding a definition for 

‘‘off-highway vehicle’’ to the final rule. 

The Department is not adding a 

definition for ‘‘all-terrain vehicle’’ and 

‘‘motorcycle’’ because they are only two 

of many different types of OHVs and 

because the final rule does not 

distinguish among types of OHVs. The 

Department also is not adding a 

definition for ‘‘considerable adverse 

effects’’ because a determination of 

considerable adverse effects caused by 

motor vehicle use for purposes of 

effecting a temporary, emergency 

closure under § 212.52(b)(2) of the final 

rule depends on specific factual 

circumstances in certain contexts. 

Specific circumstances may include 

public safety or soil, vegetation, 

wildlife, wildlife habitat, or cultural 

68274 Federal Register / Vol. 70, No. 216 / Wednesday, November 9, 2005 / Rules and Regulations 

resources associated with a particular 

road, trail, or area. 

Definition for ‘‘area.’’

Comment. Some respondents stated 

that the final rule should allow large 

areas to be designated for motor vehicle 

use and should provide for 

consideration of all NFS lands as 

designated areas. 

Other respondents stated that the final 

rule should not allow designation of 

areas for motor vehicle use. If such 

designation is allowed, these 

respondents believed that only areas 

much smaller than a Ranger District 

should be designated, after site-specific 

analysis demonstrating no 

environmental impacts, and no Forest 

should be required to have a designated 

area. 

Response. Areas designated for motor 

vehicle use are not intended to be large 

or numerous. The Department agrees 

that the definition in the proposed rule, 

‘‘a discrete, specifically delineated 

space that is smaller than a Ranger 

District,’’ is too broad to effectuate this 

intent. Therefore, the Department has 

revised the definition of ‘‘area’’ in the 

final rule to read, ‘‘a discrete, 

specifically delineated space that is 

smaller, and in most cases much 

smaller, than a Ranger District.’’ Only a 

few areas currently designated for motor 

vehicle use, such as the Oregon Dunes 

National Recreation Area on the Siuslaw 

National Forest, encompass a significant 

portion of a Ranger District. Other 

designated areas are expected to be 

much smaller. 

While areas are not intended to be 

large or numerous, the Department 

believes that it is appropriate to 

designate some areas for motor vehicle 

use. These areas would have natural 

resource characteristics that are suitable 

for motor vehicle use, or would be so 

significantly altered by past actions that 

motor vehicle use might be appropriate. 

Routes and areas under the final rule 

will be designated at the local level, 

based upon appropriate environmental 

analysis. Federal law does not require 

the Forest Service to demonstrate that 

there are no environmental impacts 

from designation of areas. 

Under the final rule, no 

administrative unit or Ranger District 

will be required to designate an area. 

Comment. Some respondents stated 

that the final rule should not include a 

presumption for designation of 

previously disturbed sites. Instead, 

these respondents believed the rule 

should provide examples of sites that 

would not be appropriate. 

Response. Neither the proposed nor 

the final rule establishes a presumption 

for designation of previously disturbed 

sites. Rather, the preamble to the 

proposed rule generally discussed 

possible characteristics of an area. The 

characteristics of an area are not 

enumerated in the definition of an area 

to give the agency the flexibility to 

designate areas for motor vehicle use as 

appropriate, given the variety of natural 

features, resources, and uses on NFS 

lands. 

Comment. Some respondents stated 

that the final rule should expand the 

definition of area to encompass specific 

uses, such as grazing, hunting, firewood 

gathering, camping, and religious, 

customary, and cultural practices. 

Other respondents asked the agency 

to encourage designation of areas 

wherever there is a high density of 

existing routes, to save time in 

conducting an inventory of existing 

routes. 

Response. It is not necessary to 

expand the definition of area to 

encompass specific uses, such as 

grazing. The final rule provides for 

designation of NFS roads, NFS trails, 

and areas on NFS lands for motor 

vehicle use, and prohibits motor vehicle 

use other than in accordance with those 

designations. Motor vehicle use that is 

specifically authorized pursuant to a 

written authorization issued under 

Federal law (§ 261.13(h) of the final 

rule) is exempted from this prohibition. 

In addition, in making these 

designations, the responsible official 

must recognize valid existing rights 

(§ 212.55(d) of the final rule). 

To address specific local needs for 

limited cross-country motor vehicle use 

for big game retrieval or dispersed 

camping, the Department is adding a 

paragraph to § 212.51 of the final rule. 

This new paragraph provides that in 

designating routes, the responsible 

official may include in the designation 

the limited use of motor vehicles within 

a specified distance of certain 

designated routes, and if appropriate 

within specified time periods, solely for 

the purposes of big game retrieval or 

dispersed camping. 

Some areas of high route density may 

be appropriate for designation as areas. 

Others will not. The Department 

believes that designation decisions 

should be made at the local level, based 

on site-specific evaluation of local 

conditions and public involvement. 

Definition for ‘‘designated road, trail, 

or area.’’

Comment. Some respondents stated 

that the final rule should not make a use 

map a part of the travel management 

atlas due to confusion that may result if 

the atlas is not updated. Respondents 

further commented that this 

requirement is redundant, since the 

definition of ‘‘use map’’ already states 

that it is part of a travel management 

atlas. 

Response. The Department disagrees 

that including a use map in a travel 

management atlas will lead to confusion 

if the atlas is not updated because in the 

final rule revisions to designations will 

be reflected on a motor vehicle use map 

(§ 251.56). 

The Department agrees that it is 

unnecessary to state in the definition for 

designated road, trail, or area that a 

motor vehicle use map is contained in 

a travel management atlas because the 

definition for travel management atlas 

states that it includes the motor vehicle 

use map or maps. Therefore, the 

Department is removing the phrase, 

‘‘contained in a travel management 

atlas’’ from the definition for designated 

road, trail, or area. For the same reason, 

the Department is removing the phrase 

‘‘that is part of a travel management 

atlas’’ from the definition for ‘‘motor 

vehicle use map.’’ Similarly, the 

Department is removing the phrase 

‘‘that is [or ‘are’] included in a forest 

transportation atlas’’ from the 

definitions for ‘‘forest road or trail’’ and 

‘‘forest transportation system’’ because 

the definition for ‘‘forest transportation 

atlas’’ states that it displays the system 

of roads, trails, and airfields of an 

administrative unit. 

Comment. Some respondents 

requested that the final rule address 

designation of routes for nonmotorized 

as well as motorized uses and stated 

that the proposed rule text contradicts 

the preamble in this regard. 

Response. The purpose of this rule is 

to provide better and more consistent 

management of motor vehicle use on 

National Forests and National 

Grasslands. Regulation of nonmotorized 

use is beyond the scope of this 

rulemaking. The Department agrees that 

discussion of nonmotorized use in the 

preamble may have led to some 

confusion in this regard. For 

management and enforcement purposes, 

it would be better for the use map to be 

dedicated to motor vehicle uses. As 

stated above, in the final rule, the 

Department is changing the term ‘‘use 

map’’ to ‘‘motor vehicle use map.’’ Only 

motor vehicle uses will be reflected on 

this map. 

The Department wishes to clarify that 

designation of a road, trail, or area for 

motor vehicle use does not establish 

that use as dominant or exclusive of 

other uses of that road, trail, or area. 

Comment. Some respondents asked 

the final rule to clarify whether OHV 

use on designated roads is permissible. 

Response. In the final rule, 

designation decisions, including 

Federal Register / Vol. 70, No. 216 / Wednesday, November 9, 2005 / Rules and Regulations 68275 

designations by vehicle class, will be 

made at the local level. The Department 

anticipates the need to mix highwaylegal and non-highway-legal traffic on 

some NFS roads. These designation 

decisions will be advised by engineering 

judgment or an engineering study, as 

appropriate. 

Definition for ‘‘forest transportation 

atlas.’’

Comment. Some respondents stated 

that a forest transportation atlas should 

include all open roads and trails, closed 

roads and trails, user-created roads and 

trails, rights-of-way, and public and 

private roads. 

Response. The final rule is not 

substantively changing the definition of 

a forest transportation atlas. However, 

the final rule simplifies the definition 

by deleting the list of possible forms 

(such as geospatial and tabular) the data 

might take and the reference to the 

data’s purpose. In the final rule, a forest 

transportation atlas is defined as a 

display of the system of roads, trails, 

and airfields of an administrative unit. 

Forest roads and forest trails are 

included in a forest transportation atlas. 

Forest roads and forest trails are wholly 

or partly within or adjacent to and 

serving the NFS that the Forest Service 

determines are necessary for the 

protection, administration, and 

utilization of the NFS and the use and 

development of its resources. 

Roads, trails, and areas designated for 

motor vehicle use under the final rule 

will be reflected on a motor vehicle use 

map. Under the final rule, motor vehicle 

use off designated routes and outside 

designated areas will be prohibited by 

§ 261.13. 

A travel management atlas will 

contain a forest transportation atlas and 

a motor vehicle use map or maps. 

Definition for ‘‘motor vehicle.’’

Comment. Some respondents stated 

that the final rule should clarify that 

both tracked and wheeled vehicles are 

included in this definition. 

Response. The definition for motor 

vehicle is broad enough to include both 

tracked and wheeled vehicles. The 

definition excludes only vehicles 

operated on rails and wheelchairs and 

mobility devices that meet certain 

criteria. 

Definitions for ‘‘new road 

construction,’’ ‘‘road reconstruction,’’

and ‘‘forest transportation facility.’’

Definitions for ‘‘new road 

construction’’ and ‘‘road 

reconstruction’’ were not included in 

the proposed rule. However, the 

Department is making a technical 

change to conform these definitions in 

§ 212.1 to the definition for 

‘‘construction’’ in the Federal Highway 

Act, 23 U.S.C. 101(a)(3). Consistent with 

that statute, ‘‘road construction or 

reconstruction’’ will be defined in 

§ 212.1 as ‘‘supervising, inspecting, 

actual building, and incurrence of all 

costs incidental to the construction or 

reconstruction of a road.’’ This change 

is consistent with other technical 

changes made to definitions in part 212 

to make them conform to 23 U.S.C. 101. 

The Department is also making a 

technical change to conform the 

definition for ‘‘forest transportation 

facility’’ to the other definitions in this 

final rule by replacing the reference to 

‘‘classified roads’’ with ‘‘forest roads.’’

In addition, the Department is changing 

the term ‘‘log transfer facilities’’ to 

‘‘marine access facilities’’ in this 

definition because these facilities, 

which connect roads to the Pacific 

Ocean, are used for more than 

transferring logs. These facilities are 

used for marine access generally, 

including access for recreational 

purposes. 

Definition for ‘‘road.’’

Comment. Some respondents stated 

that the final rule should include in the 

definition for a road the phrase, 

‘‘constructed, receiving regular 

mechanical maintenance, and suitable 

for use by a standard passenger car.’’

Other respondents expressed support 

for the flexibility to identify and manage 

a road as a trail. 

Response. The definition for a road in 

part 212 applies to subpart A, 

Administration of the Forest 

Transportation System, subpart B, 

Designation of Roads, Trails, and Areas 

for Motor Vehicle Use, and subpart C, 

Use by Over-Snow Vehicles. Given the 

broad application of the definition, the 

Department believes it would be unduly 

restrictive and inaccurate to add the 

phrase, ‘‘constructed, receiving regular 

mechanical maintenance, and suitable 

for use by a standard passenger car,’’ to 

the definition for a road. Not all roads 

on NFS lands are constructed. Not all 

roads on NFS lands need regular 

mechanical maintenance, and not all 

roads on NFS lands are suitable for use 

by a passenger car. 

The definitions for roads and trails 

give the agency the flexibility to identify 

and manage as a trail routes that are 

wider than 50 inches. Some trails on 

NFS lands are wider than 50 inches and 

may have the physical characteristics of 

a road. Some trails are open to some 

full-sized vehicles. Four-wheel-drive 

travel ways and trails originally 

constructed as roads or railroad grades 

are all part of the Forest Service trail 

system. The current definitions for a 

road and trail, which embrace the 

diverse array of trail opportunities, are 

retained in the final rule. 

Definition for ‘‘road or trail under 

Forest Service jurisdiction.’’

Comment. Some respondents 

expressed concern that this definition 

would unnecessarily limit Forest 

Service authority to enforce traffic laws 

and regulate use on valid rights-of-way 

and State and county roads. Other 

respondents observed that the Forest 

Service has the authority and a duty to 

protect NFS lands underlying these 

routes. 

Response. The final rule provides for 

designation of NFS roads, NFS trails, 

and areas on NFS lands for motor 

vehicle use. The Department wishes to 

clarify that this final rule does not in 

any way affect the Forest Service’s 

jurisdiction to enforce traffic laws, to 

protect NFS lands underlying routes, or 

to regulate use, including use on valid 

rights-of-way. To simplify the 

definitions in the final rule, the 

Department has moved the phrase 

‘‘other than a road or trail that has been 

authorized by a legally documented 

right-of-way held by a State, county, or 

local public road authority’’ from the 

definition for ‘‘road or trail under Forest 

Service jurisdiction’’ to the definitions 

for ‘‘National Forest System road’’ and 

‘‘National Forest System trail,’’ and 

deleted the definition for ‘‘road or trail 

under Forest Service jurisdiction.’’

Motor vehicle use on State, county, or 

municipal roads and trails authorized 

by a legally documented right-of-way is 

subject to the control of that State, 

county, or local public road authority. 

These roads and trails are not subject to 

designations made under the final rule, 

or to the prohibition on motor vehicle 

use off designated routes and outside 

designated areas. 

Comment. Some respondents stated 

that private rights-of-way should be 

excluded from the definition of a road 

or trail under Forest Service 

jurisdiction. 

Response. Section 212.55(d) of the 

final rule requires responsible officials 

in making designations to recognize 

valid existing rights, including valid 

outstanding or reserved rights-of-way 

for a road or trail. The Forest Service 

may not regulate uses within the scope 

of these rights-of-way if the agency has 

not acquired the right to do so. 

However, the agency may regulate use 

on these rights-of-way if it has obtained 

the right to do so. Some private rightsof-way may be forest roads. Others may 

not be ‘‘necessary for the protection, 

administration, and utilization of the 

National Forest System,’’ and are not 

forest roads. Because there are many 

different local permutations involving 

68276 Federal Register / Vol. 70, No. 216 / Wednesday, November 9, 2005 / Rules and Regulations 

different rights, some of which include 

Forest Service regulation of some uses, 

the Department does not believe it 

would be appropriate to exclude these 

rights-of-way from the definition of a 

NFS road or NFS trail. 

In the definition of ‘‘road’’ in the final 

rule, the Department is removing the 

sentence, ‘‘A road may be a forest road, 

a temporary road, or an unauthorized or 

unclassified road,’’ and is making a 

corresponding change in the definition 

of ‘‘trail.’’ Some private roads are not 

forest roads, temporary roads, or 

unauthorized roads. These roads may be 

included in a forest transportation atlas, 

but are not NFS roads and will not be 

subject to designation under this final 

rule. 

Comment. Some respondents objected 

to proposed language regarding roads or 

trails ‘‘which an authorized officer has 

ascertained, for administrative purposes 

and based on available evidence, is 

within a public right-of-way for a 

highway, such as a right-of-way for a 

highway pursuant to R.S. 2477.’’ These 

respondents asserted that this language 

would violate the Congressional 

moratorium on rulemaking concerning 

recognition of these rights-of-way. Other 

respondents requested clear delegation 

of authority for applying this exclusion, 

and clarification of the process and 

criteria to be used in ascertaining 

whether such a right-of-way exists. 

Some respondents suggested that the 

final rule establish that all routes in 

existence before 1976 are R.S. 2477 

rights-of-way. 

Response. The exemption for a road 

or trail ‘‘which an authorized officer has 

ascertained, for administrative purposes 

and based on available evidence, is 

within a public right-of-way for a 

highway, such as a right-of-way for a 

highway pursuant to R.S. 2477’’ has 

been removed from the definition for a 

road or trail under Forest Service 

jurisdiction in the final rule. As stated 

above, the remaining text in that 

definition has been moved to the 

definitions for ‘‘National Forest System 

road’’ and ‘‘National Forest System 

trail’’ in the final rule. The exemption 

for legally documented rights-of-way 

held by State, county, or other local 

public road authorities covers rights-ofway under R.S. 2477 that have been 

adjudicated through the Federal court 

system or otherwise formally 

established. The Department does not 

want to give the appearance of 

establishing the validity of unresolved 

R.S. 2477 right-of-way claims in 

determining the applicability of this 

final rule. 

Comment. Some respondents stated 

that the final rule should address routes 

that cross private property or otherwise 

change jurisdiction. These respondents 

expressed concern that popular, usercreated routes on NFS lands could be 

closed under the final rule if they are 

accessible only from private land. 

Response. Many roads and trails on 

NFS lands originate on or cross private 

property. Where the United States holds 

a right-of-way across private property 

providing access to the National Forest, 

these routes are NFS roads and NFS 

trails, and subject to possible 

designation under the final rule. 

Some user-created roads and trails on 

NFS lands cross private property. The 

agency generally will not consider a 

road or trail on NFS lands for 

designation unless there is legal public 

access to that road or trail. Where access 

to NFS lands from private property is 

needed, the Forest Service will seek 

rights-of-way from willing sellers. If 

public access cannot be secured, these 

routes generally will be closed to motor 

vehicles under the final rule. 

The Department supports public 

access to Federal land and supports the 

rights of private landowners to control 

access to their land. A designated 

system of motor vehicle routes should 

be based on legal public access. 

Definition for ‘‘snowmobile.’’

Comment. Some respondents 

suggested that the definition for 

snowmobile in the proposed rule be 

broadened to include other over-snow 

vehicles, such as tracked ATVs and 

grooming machines. 

Response. The proposed rule defined 

snowmobile as ‘‘A motor vehicle that is 

designed exclusively for use over snow 

and that runs on a track or track and/ 

or a ski or skis.’’ This definition 

encompassed large vehicles, such as 

snow cats, not commonly referred to as 

snowmobiles. However, the proposed 

definition excluded vehicles capable of 

conversion to over-snow use, such as 

ATVs with tracks. Since the proposed 

definition refers only to the vehicle 

itself, and not to its use, the proposed 

rule could be read to allow use of 

snowmobiles in the absence of snow off 

routes and outside areas designated for 

motor vehicle use. The Department 

believes that over-snow use by tracked 

vehicles has similar environmental 

effects, regardless of whether the vehicle 

is designed exclusively for use over 

snow. 

Consequently, the final rule replaces 

the exemption and definition for 

snowmobiles with an exemption and 

definition for over-snow vehicles 

(which would include snowmobiles). 

The final rule also removes the word 

‘‘exclusively’’ from the definition, while 

adding ‘‘while in use over snow,’’ so 

that the final definition for over-snow 

vehicle includes motor vehicles that are 

designed for use over snow and that run 

on a track or track and/or a ski or skis, 

while in use over snow. Use by oversnow vehicles may be allowed, 

restricted, or prohibited under part 212, 

subpart C. 

Definition for ‘‘temporary road or 

trail.’’

Comment. Some respondents stated 

that roads and trails in this category 

must be managed as temporary and 

removed as soon as their purpose is 

served. Otherwise, these respondents 

believed that they should be included in 

the forest transportation atlas. Other 

respondents stated that the final rule 

should clarify use and designation of 

temporary routes and explicitly prohibit 

unauthorized motor vehicle use. 

Response. The Department agrees that 

temporary roads and trails must be 

managed as temporary. In the rule, a 

temporary road or trail is defined as a 

road or trail necessary for emergency 

operations or authorized by contract, 

permit, lease, or other written 

authorization. The Forest Service 

requires that temporary roads and trails 

be decommissioned once the emergency 

that justified them or their written 

authorization is no longer in effect. 

NFS roads and NFS trails are the only 

types of routes that will be designated 

for motor vehicle use under this final 

rule. Temporary roads and trails by 

definition are not forest roads or trails 

and therefore cannot be NFS roads or 

NFS trails. Therefore, temporary roads 

and trails will not be designated under 

the final rule. 

Some motor vehicle use on temporary 

roads may be exempted from 

designations and the corresponding 

prohibition under the rule, since 

§ 212.51(a)(5) and (a)(8) and § 261.13(e) 

and (h) of the final rule exempt 

emergency motor vehicle use and motor 

vehicle use allowed under a written 

authorization. 

After designations are complete on an 

administrative unit or a Ranger District, 

motor vehicle use on that unit or 

District that is inconsistent with the 

designations will be prohibited under 

§ 261.13 of the final rule. 

Definition for ‘‘trail.’’

Comment. Some respondents 

requested that the final rule define trails 

as nonmotorized, or at least clarify 

whether motor vehicle use is permitted 

on trails. Other respondents asked that 

the definition of trails not exclude use 

by full-sized vehicles. 

Some respondents stated that the final 

rule should clearly distinguish between 

roads and trails and suggested a variety 

of criteria for that purpose, including 

Federal Register / Vol. 70, No. 216 / Wednesday, November 9, 2005 / Rules and Regulations 68277 

setting a 60-inch width for roads to 

accommodate newer side-by-side 

vehicles on trails, or defining trails as 

having only a single track. Other 

respondents stated that the distinction 

between roads and trails should not be 

based on width. 

Respondents suggested several new 

terms to identify designated routes that 

are open to motor vehicles, but narrower 

than a road. These terms included 

‘‘routes,’’ ‘‘ways,’’ and ‘‘two-track trails’’

(as opposed to single-track trails). Some 

respondents suggested that the final rule 

adopt definitions for categories of trails 

from the FSM and FSH. 

Response. The Department has 

retained the proposed definitions of 

road and trail in the final rule. 

Section 212.51 of the rule explicitly 

authorizes responsible officials to 

designate NFS trails for motor vehicle 

use. No clarification on this point is 

needed. The agency has long managed 

some trails as nonmotorized and others 

as open to a variety of motor vehicles. 

The definitions for part 212 

distinguish roads from trails based on 

width and management. The 

Department believes that this 

distinction is clear and objective and 

makes sense in terms of the way the 

agency manages roads and trails. There 

is no need to change the definition of a 

trail because the rule already provides 

the responsible official discretion to 

designate roads and trails for 

appropriate classes of motor vehicles, 

depending on the circumstances. Some 

roads may be designated for use by nonhighway-legal vehicles. Some routes 

over 50 inches wide are identified and 

managed as trails and can accommodate 

wider vehicles. 

The definitions for trails in the rule 

are keyed to management of the forest 

transportation system, designation of 

routes and areas for motor vehicle use, 

and management of use by over-snow 

vehicles. The definitions for trails in the 

FSM and FSH are appropriate for trail 

management in the field and are not 

needed for the broader purposes of part 

212. Definitions based on the types of 

use on trails, such as single versus 

double track or motorized versus 

nonmotorized, are not necessary in the 

rule, since designations based on 

vehicle class will be made through 

implementation of the rule at the local 

level. 

Definition for ‘‘travel management 

atlas.’’

Comment. Some respondents 

suggested expanding the definition for 

travel management atlas to encompass 

nonmotorized routes in order to serve a 

wider number of public and 

administrative needs. 

Response. Under the final rule, the 

travel management atlas consists of the 

forest transportation atlas and the motor 

vehicle use map or maps. The forest 

transportation atlas includes the entire 

system of roads, trails, and airfields of 

an administrative unit. Therefore, the 

travel management atlas encompasses 

all NFS roads and NFS trails, regardless 

of whether they are designated for motor 

vehicle use. However, only NFS roads 

and NFS trails designated for motor 

vehicle use will appear on the motor 

vehicle use map. Since motor vehicle 

use maps may be developed at the 

Ranger District level, the final rule 

recognizes that the travel management 

atlas for a National Forest may include 

one or more motor vehicle use maps. 

Definition for ‘‘unauthorized or 

unclassified road or trail.’’

Comment. Some respondents 

suggested that these roads and trails be 

called ‘‘unauthorized motorized routes’’

to ensure they are not given official 

status as roads or trails without sitespecific analysis. Respondents also 

recommended that the reference in the 

definition to a forest transportation atlas 

be removed or explained to eliminate 

the implication that a route can be 

authorized simply by including it in the 

atlas. Other respondents stated that the 

definition should include penalties for 

creation and use of unauthorized or 

unclassified routes. 

Response. The Department believes 

that the term ‘‘unauthorized or 

unclassified road or trail’’ is 

cumbersome and that ‘‘unauthorized’’

more accurately captures the nature of 

these routes than ‘‘unclassified.’’

Accordingly, in the final rule, the 

Department is changing ‘‘unauthorized 

or unclassified road or trail’’ to 

‘‘unauthorized road or trail.’’

The definition for unauthorized road 

or trail (a road or trail that is not a forest 

road or trail or a temporary road or trail 

and that is not included in a forest 

transportation atlas) makes clear that 

unauthorized roads and trails are not 

part of the forest transportation system 

and are not officially recognized by the 

Forest Service. 

Stating that an unauthorized road or 

trail is not included in a forest 

transportation atlas does not imply that 

it can be authorized simply by including 

it in the atlas. As stated in the preamble 

to the proposed rule, user-created roads 

and trails may be identified through 

public involvement and considered in 

the designation process. After public 

consideration and appropriate sitespecific environmental analysis, some 

user-created routes may be designated 

for motor vehicle use pursuant to 

§ 212.51 of the final rule. These routes 

would become NFS roads or NFS trails 

and would be included in a forest 

transportation atlas and reflected on a 

motor vehicle use map. 

The final rule contains a prohibition 

at 36 CFR 261.13 pertaining to motor 

vehicle use. Under this provision, after 

NFS roads, NFS trails, and areas on NFS 

lands have been designated pursuant to 

36 CFR 212.51 on an administrative unit 

or a Ranger District, it is prohibited to 

possess or operate a motor vehicle on 

NFS lands in that unit or District other 

than in accordance with those 

designations. At that point, motor 

vehicle use off designated routes and 

outside designated areas will be 

prohibited under § 261.13. 

Section 212.2(a). This section of the 

rule governs the travel management 

atlas. 

Comment. Some respondents 

suggested that the travel management 

atlas be available at Ranger Districts and 

on the internet. 

Response. The current rule provides 

that the forest transportation atlas is to 

be available to the public at the 

headquarters of each administrative unit 

of the Forest Service. Likewise, the final 

rule provides that the travel 

management atlas, consisting of the 

forest transportation atlas and the motor 

vehicle use map or maps, is to be 

available to the public at the 

headquarters of each administrative unit 

of the Forest Service. The Department 

believes it is unnecessary to require 

each Ranger District to maintain a 

complete travel management atlas 

(which encompasses all forest roads and 

trails for the entire National Forest). The 

motor vehicle use map will be available 

at the corresponding Ranger District. 

The Forest Service also intends to post 

motor vehicle use maps on the internet 

and gradually to post travel 

management atlases (a more 

complicated job) on the internet. The 

Department is adding language in 

§ 212.56 to require that motor vehicle 

use maps be made available on 

appropriate Web sites as soon as 

practicable. 

Section 212.2(b). This section of the 

rule governs the forest transportation 

atlas. 

Comment. Some respondents 

commented that updating the forest 

transportation atlas to reflect new 

information should be mandatory, 

rather than discretionary. Respondents 

also stated that all long-standing roads 

should be shown on a forest 

transportation atlas. Other respondents 

stated that temporary roads should be 

shown on a forest transportation atlas 

while they exist. 

68278 Federal Register / Vol. 70, No. 216 / Wednesday, November 9, 2005 / Rules and Regulations 

Some respondents stated that the final 

rule should require National Forests to 

create a forest transportation atlas, so 

that they cannot close all routes by 

failing to create the atlas. 

Response. Section 212.2(b) of the final 

rule allows a forest transportation atlas 

to be updated, rather than requiring it to 

be updated. Under the final rule, forest 

roads and trails are included in a forest 

transportation atlas. Temporary roads 

and trails are not forest roads and trails 

and therefore are not included in a 

forest transportation atlas and are not 

designated for motor vehicle use. It 

would be cumbersome to add temporary 

roads and trails to the atlas and remove 

them once they are no longer 

authorized. 

The current rule at § 212.2(a) requires 

the responsible official for every 

administrative unit of the Forest Service 

to develop and maintain a forest 

transportation atlas. Likewise, § 212.2(a) 

of the final rule requires the responsible 

official for every administrative unit of 

the Forest Service to develop and 

maintain a travel management atlas, 

which consists of a forest transportation 

atlas and a motor vehicle use map or 

maps. 

The Department has removed the 

citation to § 200.1 after the reference to 

the Forest Service’s directive system in 

§ 212.2(b) of the final rule. 

Section 212.5(a)(1). This section of the 

rule governs traffic rules in general. 

Comment. Some respondents stated 

that the final rule should not allow 

preemption of State traffic laws and that 

the Forest Service should not allow uses 

that are illegal on public, State, or 

county roads. One respondent 

maintained that the proposed rule 

would revoke water rights for miners. 

Other respondents asked the Forest 

Service to retain the authority to 

preempt State law. 

Response. Under the current rule, 

traffic on roads is subject to State traffic 

laws where applicable, except when in 

conflict with the Forest Service’s 

prohibitions at 36 CFR part 261. If there 

is a conflict, the agency’s prohibitions 

preempt State traffic laws. To ensure 

that the agency’s intent with respect to 

designation of roads, trails, and areas is 

fully effectuated, the proposed and final 

rules also provide for preemption of 

State traffic laws when they conflict 

with those designations. No other 

preemption of State laws is authorized. 

The final rule does not revoke water 

rights for miners. 

Section 212.5(a)(2)(ii). This section of 

the rule contains specific traffic rules. 

Comment. Some respondents 

suggested that the final rule include and 

distinguish among varieties of OHVs, 

including ATVs, motorcycles, and 

buggies, and recognize different needs 

of users of different vehicles. 

Respondents also suggested providing 

national definitions of vehicle classes. 

Respondents recommended recognizing 

ATVs as a specific class of OHV. 

Response. This section of the rule in 

part 212, subpart A, which authorizes 

restricting use of roads by certain 

classes of vehicles or types of traffic as 

provided in 36 CFR part 261, is separate 

from the provisions for designation of 

roads, trails, and areas for motor vehicle 

use in part 212, subpart B. Part 212, 

subpart B, provides for designation of 

roads, trails, and areas for motor vehicle 

use by vehicle class. Since new classes 

of vehicles are introduced on a regular 

basis and designations will be made at 

the local level, the rule does not need 

to define different types of OHVs at a 

national level. 

The vehicle classes enumerated in 

§ 212.5(a)(2)(ii) are illustrative, rather 

than exhaustive. The Department agrees 

that ATVs are a common type of OHV 

and has added ‘‘all-terrain vehicles’’ to 

the list of vehicle classes in 

§ 212.5(a)(2)(ii). The Department has 

removed ‘‘automobiles’’ from the list, 

since ‘‘passenger cars’’ are already 

included. 

Section 212.7. This section of the rule 

governs access procurement by the 

United States. 

There were no comments received on 

this section of the proposed rule. 

However, the Department is changing 

the heading and text of § 212.7(a) to 

conform to terminology used elsewhere 

in part 212 and in the definitions for 

‘‘forest road,’’ ‘‘National Forest System 

road,’’ and ‘‘National Forest System 

trail’’ in the final rule. 

Section 212.10. This section of the 

rule governs maximum economy NFS 

roads. 

No comments were received on this 

section of the proposed rule. The 

Department has not made any changes 

to this section. 

Subpart B—Designation of Roads, 

Trails, and Areas for Motor Vehicle Use 

Section 212.50. This section governs 

the purpose and scope of part 212, 

subpart B. 

Comment. Some respondents stated 

that the final rule should specify 

whether current land management 

plans, closures, and open areas remain 

in effect while designation decisions are 

pending. 

Respondents suggested that the 

purpose and scope section summarize 

available information on monitoring and 

other aspects of management of motor 

vehicle use in National Forests. 

Some respondents requested 

clarification that State law governs 

motor vehicle use on legally 

documented rights-of-way held by 

States, counties, or local public road 

authorities. 

Response. The prohibition pertaining 

to motor vehicle use in the final rule at 

§ 261.13 explicitly states that it is not 

triggered until NFS roads, NFS trails, 

and areas on NFS lands have been 

designated pursuant to 36 CFR 212.51 

on an administrative unit or a Ranger 

District and those designations are 

identified on a motor vehicle use map. 

Until those designations are complete 

for the entire administrative unit or 

Ranger District and identified on a 

motor vehicle use map, existing 

authorities and orders regarding motor 

vehicle use remain in effect. 

The purpose and scope section of 

subpart B provides for a system of NFS 

roads, NFS trails, and areas on NFS 

lands that are designated for motor 

vehicle use and a prohibition to enforce 

those designations. Available 

information on monitoring and other 

aspects of management of motor vehicle 

use in National Forests is more 

appropriately addressed in the preamble 

to the proposed and final rules. 

Designations and prohibitions under 

this rule do not apply to legally 

documented rights-of-way held by 

States, counties, or other local public 

road authorities. Only NFS roads and 

NFS trails may be designated for motor 

vehicle use under the final rule. The 

definitions of ‘‘National Forest System 

road’’ and ‘‘National Forest System 

trail’’ exclude legally documented 

rights-of-way held by States, counties, 

or other local public road authorities. In 

addition, the prohibition pertaining to 

motor vehicle use specifically exempts 

use of a road or trail that is authorized 

by a legally documented right-of-way 

held by a State, county, or other local 

public road authority. 

As previously described, the final rule 

includes a new paragraph (b) in § 212.50 

to clarify that previous travel 

management decisions may be 

incorporated in designations. 

Section 212.51. This section of the 

rule governs designation of roads, trails, 

and areas for motor vehicle use. 

Comment. Some respondents 

commented that the final rule should 

require a designation decision to be 

consistent with the applicable land 

management plan. Other respondents 

stated that the final rule should provide 

for reconsideration of decisions made in 

land management plans. 

Response. Under the National Forest 

Management Act, project-level 

decisions, including designation of 

Federal Register / Vol. 70, No. 216 / Wednesday, November 9, 2005 / Rules and Regulations 68279 

routes for motor vehicle use, must be 

consistent with the applicable land 

management plan. If a proposed 

designation is not consistent with the 

land management plan, the responsible 

official must either change the proposed 

designation or propose an amendment 

to the plan. 

Since under some land management 

plans, large areas of NFS lands are open 

to cross-country motor vehicle travel, 

the Department expects that some land 

management plan amendments will be 

proposed and considered during 

implementation of the final rule. 

However, the Department does not 

believe that the final rule should 

provide for reconsideration of all travel 

management decisions made in land 

management plans. Reconsideration of 

all these decisions would waste public 

resources, disrespect public 

participation in development of the 

plans, and expand the scope of this 

travel management rule beyond its 

purposes. 

Comment. Some respondents stated 

that the final rule should encourage 

designation decisions to be made case 

by case at the Ranger District level. 

Other respondents stated that the final 

rule should not allow designation at the 

Ranger District level to avoid 

inconsistency, to promote 

enforceability, and to ensure that 

cumulative effects are evaluated. These 

respondents believed that designation 

decisions should be made only at the 

National Forest or Regional level. 

Response. The Department believes it 

is appropriate to give Forest Service 

field officers the flexibility to designate 

routes and areas for an entire 

administrative unit or for a single 

Ranger District. Designation at the 

Ranger District level may make sense, 

given the size of some Ranger Districts, 

which, at over three million acres, are 

more than ten times the size of the 

smallest administrative units. The 

Department believes that local 

evaluation and consideration of routes, 

with public involvement and 

coordination with Federal, State, local, 

and tribal governments, will lead to 

better decisions and better compliance 

with them. 

Enforcement at these two scales is 

feasible because the regulation 

specifically authorizes designation at 

these two levels and triggers the 

prohibition pertaining to motor vehicle 

use once a designation decision has 

been made at either of these levels. 

Administrative units and Ranger 

Districts are discrete management and 

geographic units within the NFS. The 

Department believes that Ranger 

Districts are large enough to permit 

adequate effects analysis for designation 

decisions and that field officers should 

be given the flexibility to determine the 

appropriate scope for that analysis. The 

Department believes that it would be 

unwieldy to make designation decisions 

and comply with the associated legal 

requirements at a Regional scale. 

Section 212.52. This section governs 

public involvement. 

The Department has changed the title 

of this section from ‘‘Public 

involvement in the designation process’’

to ‘‘Public involvement,’’ since this 

section addresses public involvement in 

the designation process (§ 212.52(a)) and 

the absence of public involvement in 

the case of temporary, emergency 

closures (§ 212.52(b)). 

Section 212.52(a). This section of the 

rule governs public involvement in the 

designation process. 

Comment. Some respondents 

suggested that the final rule require 

consultation with user groups. Other 

respondents requested that the final rule 

include detailed requirements for public 

involvement in route and area 

designation, including publication of a 

Federal Register notice, legal notices, 

60-to-90-day public comment periods, 

mailings, postings on bulletin boards, 

and postings on internet sites. Some 

respondents requested that the final rule 

provide for public notice and comment 

on inventories of routes and areas, as 

well as on designation decisions. 

Response. Consistent with E.O. 11644, 

E.O. 11989, and § 212.52 of the 

proposed rule, the final rule requires 

public participation generally rather 

than consultation with specific parties 

in the designation of roads, trails, and 

areas pursuant to the rule. Also 

consistent with the E.O.s and § 212.52 of 

the proposed rule, the final rule does 

not enumerate specific requirements for 

public involvement, so as to give field 

officers flexibility in meeting the 

requirement to give advance notice to 

allow for public comment on proposed 

designations and revisions to 

designations. 

The Department believes that public 

involvement associated with the NEPA 

process will often fulfill the 

requirements of § 212.52(a). Rather than 

duplicating existing requirements for 

public involvement, the Department is 

adding language to § 212.52(a) of the 

final rule to establish that advance 

notice and public comment will be 

consistent with agency procedures 

under NEPA. 

The Department does not believe it is 

necessary to provide for public notice 

and comment on inventories of routes 

and areas. NFS roads and NFS trails are 

reflected in the forest transportation 

atlases. User-created routes on NFS 

lands that have resulted from crosscountry motor vehicle use may be 

identified through public involvement 

and considered in the designation 

process under the final rule. These 

routes will not necessarily be 

inventoried. The decision about which 

routes and areas to designate, rather 

than the gathering of information prior 

to designation, is the decision point 

with substantive effects on users and the 

environment. Designation decisions will 

be subject to public notice and comment 

as provided in § 212.52(a). 

Section 212.52(b)(1). This section of 

the rule addresses temporary, 

emergency closures without advance 

public notice. 

Comment. Some respondents 

suggested that the final rule allow 

cooperative work, volunteer work, or 

mitigation to address environmental 

problems associated with motor vehicle 

use of routes as an alternative to 

temporary, emergency closures. 

Response. Section 212.52(b)(1) of the 

proposed and final rules restates 

existing authority in § 295.3 to 

implement temporary, emergency 

closures pursuant to 36 CFR part 261, 

subpart B. This authority augments 

other measures that might be taken to 

address resource protection or to protect 

public health and safety, including 

cooperative work, volunteer work, and 

mitigation. 

Section 212.52(b)(2). This section of 

the rule governs temporary, emergency 

closures based on a determination of 

considerable adverse effects. 

Comment. Some respondents stated 

that the final rule should restore 

‘‘including public input,’’ from 36 CFR 

295.5, after ‘‘If, based on monitoring 

pursuant to § 212.57,’’ and before ‘‘the 

responsible official determines that 

motor vehicle use on a National Forest 

System road or a National Forest System 

trail or in an area on National Forest 

System lands is causing or will cause 

considerable adverse effects.’’

Response. There is no legal obligation 

to obtain public input in connection 

with monitoring the effects of motor 

vehicle use, or in making a 

determination of considerable adverse 

effects for purposes of § 212.52(b)(2). 

The public is welcome to provide 

information to the responsible official 

regarding motor vehicle use on routes 

and in areas and to highlight potential 

problems associated with motor vehicle 

use on particular routes and in 

particular areas. The Forest Service 

values this input as an important 

adjunct to agency monitoring efforts. 

However, the Department believes it is 

not appropriate, and could be counterVerDate Aug<31>2005 17:00 Nov 08, 2005 Jkt 208001 PO 00000 Frm 00017 Fmt 4701 Sfmt 4700 E:\FR\FM\09NOR4.SGM 09NOR4
68280 Federal Register / Vol. 70, No. 216 / Wednesday, November 9, 2005 / Rules and Regulations 

productive, to imply that public input is 

required in connection with a 

determination of considerable adverse 

effects pursuant to §212.52(b)(2). 

To track the language of E.O. 11644 

more precisely and to clarify that 

monitoring pursuant to § 212.57 is not 

the only potential source of information 

about ‘‘considerable adverse effects,’’

the Department is removing ‘‘based on 

monitoring pursuant to § 212.57’’ from 

the final rule. This section now begins 

‘‘If the responsible official determines 

that motor vehicle use * * * ’’

Comment. Some respondents 

requested that the word ‘‘mitigated’’ be 

removed from § 212.52(b) in the final 

rule, or that the final rule include a 

standard for mitigation, such as ‘‘to a 

level of insignificance.’’ These 

respondents contended that the addition 

of ‘‘mitigated’’ in § 212.52(b) weakens 

the strong wording of E.O. 11644 and 

E.O. 11989 which, according to these 

respondents, require such effects to be 

eliminated. These respondents 

maintained that the explanation for the 

addition of ‘‘mitigated’’ in the preamble 

to the proposed rule is contradictory. 

Response. The Department believes 

that temporary, emergency closures 

based on a determination of 

considerable adverse effects should 

remain in place until the effects have 

been mitigated or eliminated. Use of 

only the term ‘‘eliminated’’ could be 

read to imply that the closure must stay 

in place until there is no effect 

whatsoever, a practical impossibility in 

some situations. By ‘‘mitigated,’’ the 

Department means the effects will be 

reduced to the point where they are not 

considerable adverse effects. The 

Department believes that the inclusion 

of both terms, ‘‘mitigated or 

eliminated,’’ better expresses the intent 

of the E.O.s. Where motor vehicle use 

directly causes or will directly cause 

considerable adverse effects, use must 

be stopped until the considerable 

adverse effects have been mitigated or 

eliminated. The final rule further 

requires that the closure remain in place 

until measures have been implemented 

to prevent future recurrence. 

Comment. Some respondents stated 

that the final rule should limit 

temporary, emergency closures to one 

year as in § 295.3 of the current rule and 

should require documentation of 

impacts and consideration of 

alternatives before closure. Respondents 

suggested changing ‘‘considerable 

adverse effects,’’ which they believed is 

vague and open to interpretation, to 

‘‘irreversible physical harm.’’

Response. The Department believes it 

is appropriate to retain the flexibility to 

implement a temporary, emergency 

closure for a period that is longer than 

a year, if warranted by the situation. 

E.O. 11644, as amended by E.O. 11989, 

requires that the closure remain in place 

until the considerable adverse effects 

have been eliminated (mitigated or 

eliminated in the final rule). Setting a 

mandatory expiration date could 

conflict with this requirement. 

Requiring formal documentation of 

impacts and consideration of 

alternatives also could frustrate the 

purpose of the E.O.s and this final rule, 

which require the responsible official to 

close a road, trail, or area immediately 

when motor vehicle use on that route or 

in that area is causing considerable 

adverse effects. However, the 

Department is adding ‘‘directly’’ before 

‘‘causing’’ and ‘‘cause’’ in § 212.52(b)(2) 

of the final rule to clarify that the motor 

vehicle use must directly cause a 

considerable adverse effect to be subject 

to this section. The Department is also 

including a requirement for public 

notice of the closure pursuant to 36 CFR 

261.51, including reasons for the closure 

and the estimated duration of the 

closure, as soon as practicable following 

the closure. 

The Department does not believe that 

it would be appropriate to substitute 

‘‘irreversible physical harm’’ for 

‘‘considerable adverse effects’’ as the 

trigger for a temporary, emergency 

closure under the final rule. The E.O.s 

provide that a determination of 

considerable adverse effects will trigger 

a temporary, emergency closure. In 

addition, the E.O.s and this final rule 

provide for the closure to be lifted when 

the considerable adverse effects have 

been redressed. If irreversible harm, 

which is permanent, is the trigger, the 

closure could never be lifted. 

For consistency with § 212.51, the 

Department is removing ‘‘Forest 

Supervisor or other’’ before ‘‘responsible 

official’’ in § 212.52(b)(2) of the final 

rule. The Department is making the 

same change in §§ 212.53 and 212.57 of 

the final rule. In addition, the 

Department is changing the phrase 

‘‘cultural or historic resources’’ in 

§ 212.52(b)(2) to ‘‘cultural resources’’

because the phrase ‘‘cultural resources’’

includes historic resources for purposes 

of the National Historic Preservation 

Act. 

Section 212.53. This section of the 

rule governs coordination with Federal, 

State, county, and other local 

governmental entities and tribal 

governments. 

Comment. Some respondents stated 

that the final rule should require 

consultation with gateway communities 

and State tourism offices. 

Response. Section 212.53 of the final 

rule requires coordination with 

appropriate Federal, State, county, and 

other local governmental entities and 

tribal governments in implementing the 

final rule. State governments are 

organized differently across the country. 

While the Department relies on States to 

identify the appropriate points of 

contact, State tourism offices generally 

would fall into this category. ‘‘Gateway 

communities’’ is a broad term 

encompassing county and local 

governments in the vicinity of a 

National Forest. The Department 

believes that coordination with State, 

local, and tribal governments is critical 

to the success of this final rule. Not only 

can their programs be affected by 

designation of NFS roads, NFS trails, 

and areas on NFS lands under the final 

rule, but they often maintain their own 

networks of roads intertwined with the 

Forest Service’s system of roads and 

trails. 

Section 212.54. This section of the 

rule governs revision of designations. 

Comment. Some respondents stated 

that the final rule should make 

designations permanent, rather than 

subject to future review and 

reconsideration. Other respondents 

suggested that the rule provide for 

development of new trails, and avoid 

the implication that the system 

designated pursuant to this final rule 

represents all the routes that will ever 

be approved for motor vehicle use. 

Some respondents stated that the final 

rule should allow users to continue to 

develop new trails independent of the 

Forest Service. 

Response. The Department believes 

that field officers need to be able to 

revise designations made pursuant to 

the final rule to meet changing 

conditions. This flexibility is consistent 

with E.O. 11644, which provides for 

closure of designated routes based on 

environmental impacts. Section 212.54 

of the final rule will allow for revisions 

to designations to reflect changes in 

environmental conditions, recreation 

demand, and other factors identified 

through monitoring pursuant to § 212.57 

of the final rule. These revisions may 

include additions to the system of 

designated routes, as well as route 

closures. New motor vehicle routes can 

be planned, constructed, and designated 

after appropriate public involvement 

and environmental analysis. The 

Department does not agree that users 

should construct new routes without 

agency approval. Trail construction 

without a written authorization from the 

Forest Service is prohibited by 

§ 261.10(a). 

Federal Register / Vol. 70, No. 216 / Wednesday, November 9, 2005 / Rules and Regulations 68281 

The Department has added language 

to § 212.54 of the final rule to clarify 

that revision of designations shall 

include coordination with Federal, 

State, county, and other local 

governmental entities and tribal 

governments as provided under 

§ 212.53. 

Section 212.55. This section of the 

rule governs the criteria for designation 

of roads, trails, and areas for motor 

vehicle use. 

Comment. Some respondents 

suggested consolidating § 212.55(a), (b), 

and (c) to reduce redundancy and to 

provide the same standards for motor 

vehicle use on roads and trails. 

Response. The general criteria of 

§ 212.55(a) and the specific criteria of 

§ 212.55(b) are taken directly from E.O. 

11644. The E.O. applies only to trails 

and areas designated for motor vehicle 

use. However, the Department believes 

that the general criteria cited in the E.O. 

are of such universal applicability that 

they should be considered in 

designating roads, as well as trails and 

areas. Therefore, §212.55(a) describes 

criteria to be considered in all 

designations. 

Section 212.55(b), on the other hand, 

reflects the specific criteria to be used 

in designating trails and areas under the 

E.O. Section 212.55(c) contains specific 

criteria for designation of roads drawn 

from existing Forest Service 

transportation policy. The Department 

believes that consolidating these 

sections into a single set of criteria for 

roads, trails, and areas would not 

provide the opportunity to address the 

different management challenges and 

opportunities in different contexts. 

Section 212.55(a). This section of the 

rule contains general criteria for 

designation of NFS roads, NFS trails, 

and areas on NFS lands. 

Comment. Some respondents 

suggested removing ‘‘minimization of 

conflicts among uses of NFS lands’’ and 

other criteria unrelated to physical and 

biological impacts. These respondents 

stated that the government should not 

eliminate one use to avoid conflict with 

another and asked that the final rule 

specify that motorized and 

nonmotorized use on the same route 

does not represent a conflict. 

Response. The references to use 

conflicts in this section are taken from 

E.O. 11644. In issuing this E.O., 

President Nixon directed agencies to 

take conflicts among uses into account 

in designating trails and areas for motor 

vehicle use. The Department believes 

that some trails can accommodate both 

motorized and nonmotorized uses. 

However, the Department also believes 

that some trails are better managed for 

one use or the other, and that providing 

separate trail systems can sometimes 

result in better recreational experiences 

for all users. 

The Department is changing the 

phrase ‘‘National Forest System 

resources’’ in § 212.55(a) to ‘‘National 

Forest System natural and cultural 

resources’’ to make it clear that this 

criterion includes cultural, as well as 

natural, resources on NFS lands. To 

emphasize consideration of effects 

through a public process, the 

Department is replacing ‘‘protection of’’

prior to ‘‘National Forest System 

resources’’ with ‘‘effects on’’ and 

removing ‘‘promotion of’’ before ‘‘public 

safety’’ and ‘‘minimization of’’ before 

‘‘conflicts among uses.’’

Comment. Some respondents stated 

that the final rule should ensure that no 

routes are designated unless there is 

funding for maintenance and 

enforcement. Other respondents asked 

field officials to consider the availability 

of volunteers and cooperators in 

evaluating resources available for 

maintenance. 

Response. The Department agrees that 

availability of resources should be a 

consideration in designating routes for 

motor vehicle use. Section 212.55(a) of 

the proposed and final rules include as 

a criterion for designation ‘‘the need for 

maintenance and administration of 

roads, trails, and areas that would arise 

if the uses under consideration are 

designated; and the availability of 

resources for that maintenance and 

administration.’’ The Department 

believes, however, that this 

determination involves the exercise of 

judgment and discretion on the part of 

the responsible official. At times, 

resources are scarce, and the 

Department does not believe that this 

scarcity should lead to blanket closures 

of NFS lands to recreational users. 

Volunteers and cooperators can 

supplement agency resources for 

maintenance and administration, and 

their contributions should be 

considered in this evaluation. 

Section 212.55(b). This section of the 

rule contains specific criteria for 

designation of trails and areas. 

Comment. Some respondents 

suggested rewriting the criteria in this 

section to make clear that some level of 

impacts is acceptable. Other 

respondents stated that the final rule 

should retain what they characterized as 

the mandatory language from E.O. 

11644 with respect to application of the 

specific criteria for trails and areas 

(‘‘Designation of these areas and trails 

shall be in accordance with the 

following: areas and trails shall be 

located to minimize. * * * ’’), rather than 

what they viewed as the discretionary 

language in the proposed rule (‘‘In 

designating National Forest System 

trails and areas on National Forest 

System lands, the responsible official 

shall consider effects on the following, 

with the objective of minimizing. * * *’’

Response. The Department has 

retained the proposed language, ‘‘the 

responsible official shall consider 

effects on the following, with the 

objective of minimizing,’’ in the final 

rule. The retained language is 

mandatory with respect to addressing 

environmental and other impacts 

associated with motor vehicle use of 

trails and areas. The Department 

believes this language is consistent with 

E.O. 11644 and better expresses its 

intent. It is the intent of E.O. 11644 that 

motor vehicle use of trails and areas on 

Federal lands be managed to address 

environmental and other impacts, but 

that motor vehicle use on Federal lands 

continue in appropriate locations. An 

extreme interpretation of ‘‘minimize’’

would preclude any use at all, since 

impacts always can be reduced further 

by preventing them altogether. Such an 

interpretation would not reflect the full 

context of E.O. 11644 or other laws and 

policies related to multiple use of NFS 

lands. Neither E.O. 11644, nor these 

other laws and policies, establish the 

primacy of any particular use of trails 

and areas over any other. The 

Department believes ‘‘shall consider 

* * * with the objective of minimizing 

***’’ will assure that environmental 

impacts are properly taken into account, 

without categorically precluding motor 

vehicle use. 

Section 212.55(c). This section of the 

rule contains specific criteria for 

designation of roads. 

Comment. Some respondents stated 

that the final rule should clarify the 

application of the criteria in § 212.55(c) 

to user-created and temporary roads. 

Other respondents suggested that the 

final rule make road management 

objectives dependent on designation 

rather than designation dependent on 

road management objectives. 

Response. Only NFS roads, NFS trails, 

and areas on NFS lands will be 

designated for motor vehicle use under 

the final rule. Temporary roads are not 

NFS roads and may not be designated. 

Temporary roads are used for 

emergency purposes or under a written 

authorization for a particular time frame 

and then decommissioned. Motor 

vehicle use on a temporary road is 

exempted from designations under 

§ 212.51(a)(5) and (a)(8). User-created 

roads may be considered for designation 

under the criteria in § 212.55 of the final 

rule. Those that are not designated will 

68282 Federal Register / Vol. 70, No. 216 / Wednesday, November 9, 2005 / Rules and Regulations 

be closed to motor vehicle use by 

operation of the final rule. 

The Department does not expect road 

and trail management objectives to 

remain static over time. Road and trail 

management objectives document prior 

decisions regarding the role of roads and 

trails in providing access to implement 

land management plans. This 

information about the intent and 

purpose of roads and trails should be 

considered when making designation 

decisions under the final rule. However, 

road and trail management objectives 

must be revised when designations 

under the final rule change motor 

vehicle use on roads and trails. 

Consequently, the Department has 

deleted ‘‘consistency with road 

management objectives’’ from 

§ 212.55(c) of the final rule. Likewise, 

the Department has deleted 

‘‘consistency with trail management 

objectives’’ from § 212.55(b) of the final 

rule. In addition, the Department has 

added compatibility of vehicle class 

with road geometry and road surfacing 

as a specific criterion for designation of 

roads because this criterion is an 

important factor in assessing public 

safety in designating roads for motor 

vehicle use. 

Section 212.55(d). This section of the 

rule addresses rights of access in the 

context of the designation process. 

Comment. Some respondents stated 

that the final rule should provide clear 

protection of tribal treaty rights. Other 

respondents stated that the final rule 

must not revoke valid existing rights-ofway held by miners. 

Some respondents stated that the final 

rule must not interfere with rights of 

access to private property and should 

recognize private use by right for 

inholders, rather than requiring private 

use by inholders to be authorized by a 

permit. 

One respondent requested that the 

proposed rule be revised to reflect other 

provisions of the Alaska National 

Interest Lands Conservation Act 

(ANILCA) besides sections 811 and 

1110(a). 

Response. Nothing in the final rule 

revokes any rights-of-way held by 

miners or others or alters or is 

inconsistent with any treaty rights held 

by tribal governments. In the final rule, 

the Department clarifies this intent by 

substituting ‘‘recognize’’ for ‘‘take into 

account’’ with regard to rights of access. 

Responsible officials will consult with 

affected tribal governments when 

designating NFS roads, NFS trails, and 

areas on NFS lands, pursuant to FSM 

1563.11. 

Section 212.55(d) of the final rule 

requires responsible officials in 

designating roads, trails, and areas to 

recognize valid existing rights, 

including valid outstanding or reserved 

rights-of-way for a road or trail. 

Examples include a valid outstanding or 

reserved right-of-way for a road or trail 

in existence at the time title to the 

underlying land was acquired by the 

United States, and a right-of-way for a 

road or trail acquired by the United 

States where the owner of the 

underlying land may have retained 

control of the right-of-way and may 

have reserved the right to allow others 

to use it. The Forest Service may not 

regulate uses within the scope of these 

rights-of-way if the agency has not 

acquired the right to do so. However, 

the agency may regulate use on these 

rights-of-way if the agency has obtained 

the right to do so. 

Section 1323(a) of ANILCA provides 

property owners within the boundaries 

of the NFS certain rights of access across 

NFS lands. According to the terms of 

ANILCA, such access shall be ‘‘subject 

to such terms and conditions as the 

Secretary of Agriculture may prescribe,’’

and ‘‘as the Secretary deems adequate to 

secure to the owner the reasonable use 

and enjoyment thereof: Provided, That 

such owner comply with rules and 

regulations applicable to ingress and 

egress to or from the National Forest 

System’’ (16 U.S.C. 3210(a)). While 

ANILCA provides certain rights to 

property owners, those rights are subject 

to such reasonable terms and conditions 

as the Forest Service may prescribe in 

a written authorization. 

Some property owners also may 

possess reserved or outstanding rightsof-way or other rights providing access 

across NFS lands, which may or may 

not require a written authorization from 

the Forest Service. Those rights must be 

recognized under § 212.55(d). The 

Department believes that questions of 

valid existing rights are best examined 

at the local level, where they can be 

individually evaluated. 

The Department is moving the 

requirement in § 212.55(d)(2) of the 

proposed rule to take into account the 

provisions concerning rights of access in 

sections 811 and 1110(a) of ANILCA to 

§ 212.81(c) of the final rule, governing 

establishment of restrictions and 

prohibitions on use by over-snow 

vehicles, because these sections of 

ANILCA specifically refer to 

snowmobile use. In addition, the 

Department is changing ‘‘take into 

account’’ to ‘‘recognize’’ in § 212.81(c) 

of the final rule. In the final rule, the 

Department is citing section 811(b), 

rather than section 811, because section 

811(b) contains the reference to 

snowmobile use. To the extent other 

provisions of ANILCA may address 

rights for motor vehicle access, they are 

covered by § 212.55(d)(1), which 

requires that the responsible official 

recognize valid existing rights in making 

designations under the final rule. It is 

not feasible for the Department to list 

every right that may be implicated in 

any given situation in designating roads, 

trails, and areas for motor vehicle use 

under the final rule. 

Section 212.55(e). This section of the 

rule addresses wilderness areas and 

primitive areas in the context of the 

designation process. 

Comment. Some respondents 

commented that the final rule should 

retain the more comprehensive ban on 

motor vehicle use in wilderness areas 

contained in the current rule, and drop 

the exception for motor vehicle use 

authorized in enabling legislation for 

wilderness areas. 

Response. Mechanical transport and 

motor vehicles are prohibited in 

wilderness areas unless they are 

necessary to meet minimum 

requirements for administration of the 

areas or they are expressly authorized 

under individual statutes designating 

wilderness areas. The language in 

§ 212.55(e) proscribing designation of 

roads, trails, and areas for motor vehicle 

use in wilderness areas, unless motor 

vehicle use is authorized by the 

applicable enabling legislation for those 

areas, is required for consistency with 

those statutes. 

To avoid confusion with designated 

roads, trails, and areas, the Department 

has removed ‘‘Congressionally 

designated’’ before the phrase 

‘‘wilderness areas’’ in § 212.55(e) of the 

final rule. 

Comment. Some respondents 

requested specific direction on 

protection of wilderness study areas and 

inventoried roadless areas to preserve 

their roadless, nonmotorized character. 

Respondents also suggested prohibiting 

motor vehicle use within a buffer zone 

surrounding wilderness areas. 

Response. Management of wilderness 

study areas established by Congress is 

generally governed by their authorizing 

legislation. Management of inventoried 

roadless areas is governed by the 

applicable land management plan and 

Forest Service policy. The Department 

does not believe that additional 

direction for management of these areas 

is necessary or required in this final 

rule. Nor does the Department believe 

that it would be appropriate to prohibit 

motor vehicle use within a buffer zone 

surrounding wilderness areas. 

Responsible officials will consider 

impacts to nearby wilderness areas, 

wilderness study areas, and inventoried 

Federal Register / Vol. 70, No. 216 / Wednesday, November 9, 2005 / Rules and Regulations 68283 

roadless areas during the designation 

process. 

Section 212.56. This section of the 

rule governs identification of designated 

roads, trails, and areas. 

The Department is making a technical 

change in the final rule to clarify that 

motor vehicle use maps will be 

available at Ranger District headquarters 

and as soon as practicable on 

appropriate Web sites, as well as at 

administrative unit headquarters. 

Section 212.57. This section of the 

rule governs monitoring of effects of 

motor vehicle use on designated roads 

and trails and in designated areas. 

Comment. Some respondents 

recommended reinstating the 

requirement for annual review of OHV 

management from § 295.6 of the current 

rule and including public participation 

in these reviews to allow for adaptive 

management. Other respondents 

suggested requiring regular updates of 

motor vehicle use maps and signs 

marking designated roads, trails, and 

areas. 

Response. The Department supports 

the concept of adaptive management 

and agrees that monitoring and, if 

needed, revision of motor vehicle 

designations will be an ongoing part of 

travel management. Since the system of 

designated routes and areas will change 

over time, the Department anticipates 

that local units will publish new motor 

vehicle use maps annually and update 

signs as necessary or appropriate. 

The Department does not believe that 

a regulatory requirement for annual 

review of OHV management, having no 

basis in law or the E.O., should be 

imposed. Local review of designations 

should be conducted as needed, and the 

Department favors providing local 

officials with discretion in determining 

how often they are conducted. 

The Department is adding ‘‘consistent 

with the applicable land management 

plan, as appropriate and feasible’’ to 

§ 212.57 of the final rule to clarify that 

monitoring should be incorporated into 

land management plans under 36 CFR 

219.11 to the extent possible to avoid 

redundant monitoring requirements. 

Subpart C—Snowmobile Use 

Comments on snowmobile use are 

addressed in the response to comments 

on § 261.13 of the proposed rule and the 

corresponding discussion in the 

preamble to the proposed rule. No 

specific comments were received on this 

subpart. 

Section 212.81. This section covers 

over-snow vehicle use. 

The Department has added ‘‘If the 

responsible official proposes restrictions 

or prohibitions on use by over-snow 

vehicles under this subpart’’ to the 

beginning of § 212.81(c) in the final rule 

to stress that the requirements governing 

the designation process apply to oversnow vehicles only if the responsible 

official proposes to establish restrictions 

or prohibitions on over-snow vehicle 

use. 

Part 251—Land Uses 

The Department is making a technical 

change to conform the definitions for 

‘‘National Forest System road’’ and 

‘‘National Forest System trail’’ in part 

251 with corresponding definitions in 

part 212 of this final rule. 

Part 261—Prohibitions 

Section 261.2. This section contains 

the definitions for part 261. 

In addition to the revised definition 

for ‘‘motor vehicle,’’ § 261.2 of the final 

rule contains new definitions for 

‘‘administrative unit’’ and ‘‘area’’ and 

revised definitions for ‘‘National Forest 

System road’’ and ‘‘National Forest 

System trail’’ to match the definitions 

added to § 212.1. Comments associated 

with these definitions are addressed 

under § 212.1. No specific comments 

were received on this section of the 

proposed rule. 

Section 261.13. This section of the 

rule prohibits use of motor vehicles not 

in accordance with designations and 

provides for exemptions. 

Comment. Some respondents 

suggested that bicycles should be 

included in the prohibition on use of 

motor vehicles off designated roads and 

trails and outside designated areas. 

Response. The Department disagrees 

that bicycles should be regulated under 

the same provisions as motor vehicle 

use. The Department believes that 

bicycles are distinct from motor vehicles 

and should be managed separately from 

them and that a nation-wide prohibition 

on cross-country bicycle use is 

unwarranted at this time. Noise (and its 

impacts on wildlife and other users) is 

a critical distinction between bicycles 

and motor vehicles. Other differences 

can (depending on the vehicle) include 

speed, power, weight, and tread width. 

Like all uses, including hiking, 

horseback riding, and motor vehicle use, 

bicycling has environmental impacts 

and can affect the experience of other 

users. Local Forest Service officials 

retain authority to regulate bicycle use 

according to their local situation and 

needs. Some National Forests, through 

travel plans and orders, restrict bicycles 

to particular roads and trails. Others 

allow cross-country bicycling. 

Comment. Some respondents 

suggested that the rule specify penalties 

for violations of §261.13 and that fines 

for violations be substantially increased. 

Response. Penalties for violations of 

§ 261.13 are beyond the scope of this 

rulemaking and are established by 

Federal statute. Violations of 

prohibitions in part 261 are Class B 

misdemeanors, which are punishable by 

a prison term of up to six months (18 

U.S.C. 3559(a)(7); 36 CFR 261.1b). 

Pursuant to 18 U.S.C. 3571(e), the $500 

maximum fine specified in § 261.1b is 

superseded by the $5000 maximum fine 

established for Class B misdemeanors in 

18 U.S.C. 3571(b)(6). However, the 

maximum penalties are rarely imposed 

for violations of the Forest Service’s 

criminal regulations. 

Each Federal judicial district 

implements a schedule of collateral 

forfeiture amounts for violation of each 

Federal agency’s criminal regulations. 

The applicable collateral forfeiture 

amount is normally entered on a 

citation issued to violators of Forest 

Service criminal regulations. The 

applicable collateral forfeiture amount 

may be paid by the violator to end the 

case without appearing in court. Except 

for serious offenses or those for which 

a court appearance is mandatory, these 

collateral forfeiture amounts generally 

are less than $1,000, and most are less 

than $100. 

Restitution also may be required for 

criminal violations involving 

environmental damage (18 U.S.C. 

3663A). 

Comment. Some respondents 

observed that the rule’s prohibition does 

not require signage to take effect and 

that users are responsible for using 

motor vehicles in accordance with 

designations reflected on a motor 

vehicle use map. These respondents 

asked the Forest Service to amend the 

rule to require signage of roads, trails, 

and areas closed to motor vehicle use. 

Response. The Department disagrees 

with this suggestion. The Forest Service 

will continue to use signs widely to 

provide information and inform users 

on a variety of topics, including 

regulations and prohibitions. However, 

the agency has found that posting routes 

as open or closed to particular uses has 

not always been effective in controlling 

use. One of the reasons is that new 

unauthorized routes continue to 

proliferate, even in areas closed to crosscountry motor vehicle use. Requiring 

each undesignated route and area to be 

posted as closed would be an 

unreasonable and unnecessary burden 

on agency resources and would tend to 

defeat the purpose of the final rule. 

Signs have also proven difficult to 

maintain and subject to vandalism. The 

final rule places more responsibility on 

68284 Federal Register / Vol. 70, No. 216 / Wednesday, November 9, 2005 / Rules and Regulations 

users to get motor vehicle use maps 

from Forest Service offices or websites 

and to remain on routes and in areas 

designated for motor vehicle use. 

The Department has added language 

to the final rule clarifying that the 

prohibition on motor vehicle use other 

than in accordance with designations 

does not go into effect until designations 

have been identified on a motor vehicle 

use map. 

Comment. Some respondents 

suggested replacing the prohibition in 

§ 261.13 with a provision restricting 

motor vehicle use in certain areas to 

people with specific training and 

endorsement from organizations 

promoting environmental ethics, such 

as Tread Lightly! or the National OffHighway Vehicle Conservation Council. 

Response. The Department 

appreciates the long-standing work of 

nongovernmental organizations, 

including user groups, to promote 

environmental ethics and responsible 

behavior on the part of motor vehicle 

users. These groups make vital 

contributions to sustainable motor 

vehicle recreation. Nevertheless, the 

Department declines to adopt this 

suggestion, which would make these 

nongovernmental organizations 

gatekeepers for Federal lands and 

resources. Moreover, the prohibition in 

§ 261.13 is needed because in many 

situations cross-country motor vehicle 

use, and in some situations motor 

vehicle use on routes, can cause 

unacceptable impacts, regardless of 

driver training and endorsement of the 

driver by organizations promoting 

environmental ethics. 

Comment. Some respondents asked 

that motorcycles be exempted from the 

prohibition regarding motor vehicle use 

in § 261.13. 

Response. The Department disagrees 

with this suggestion. Motorcycles are 

motor vehicles under E.O. 11644 and 

§ 212.1 of this final rule. Noise and 

other impacts of motorcycles can be 

similar to those of other motor vehicles. 

The final rule seeks to establish a 

common regulatory framework for 

management of all motor vehicles to 

increase consistency and reduce 

confusion and lack of compliance. At 

the same time, the Department 

recognizes that user demands and 

environmental impacts vary by class of 

vehicle. Many motorcyclists prefer to 

ride on single-track trails too narrow for 

ATVs and larger vehicles. Similarly, 

some ATV riders prefer to ride on trails 

not used by larger sport utility vehicles. 

Local Forest Service managers, with 

input from the public, will take these 

differences into account when 

designating roads, trails, and areas for 

motor vehicle use. The Department 

anticipates that many National Forests 

will designate some single-track trails 

for motorcycles, but not for other motor 

vehicles. 

Comment. Some respondents asked 

the Forest Service to remove the 

exemption for snowmobiles from the 

prohibition regarding motor vehicle use 

in § 261.13 and consolidate §§ 261.13 

and 261.14. Others suggested making 

the exemption seasonal or limiting it to 

specific dates or snow conditions. 

Response. Use by over-snow vehicles, 

including snowmobiles, presents a 

distinct suite of issues. A snowmobile 

traveling over snow results in different 

impacts to natural resource values than 

motor vehicles traveling over the 

ground. Unlike other motor vehicles 

traveling cross-country, over-snow 

vehicles traveling cross-country 

generally do not create a permanent trail 

or have a direct impact on soil and 

ground vegetation. Therefore, the 

Department believes that use by oversnow vehicles should be addressed in 

separate regulatory provisions and that 

mandatory designation of use by oversnow vehicles is not appropriate. 

Nevertheless, since there are impacts 

associated with use by over-snow 

vehicles, and since they are included in 

the definition of off-road vehicle in E.O. 

11644 and E.O. 11989, the Department 

is preserving the authority currently in 

part 295 to allow, restrict, or prohibit 

use by over-snow vehicles, including 

snowmobiles, on a discretionary basis in 

part 212, subpart C. Local Forest Service 

officials retain authority to manage use 

by over-snow vehicles to address local 

situations and concerns and may 

establish restrictions based on the 

season of use or local snow conditions 

that might not make sense nationally. In 

addition, the final rule establishes a 

prohibition regarding use by over-snow 

vehicles in § 261.14 that is very similar 

to the prohibition regarding motor 

vehicle use in § 261.13. 

The final rule clarifies that over-snow 

vehicles qualify as such only while in 

use over snow. 

Comment. Some respondents asked 

the Forest Service to continue to allow 

motor vehicle use, where appropriate, 

for activities authorized under a written 

authorization, such as livestock 

operations, mining, logging, firewood 

collection, and maintenance of 

pipelines and utility corridors. 

Response. The Department agrees that 

motor vehicle use that is specifically 

authorized under a written 

authorization issued under Federal law 

or regulations should be exempted from 

designations made under § 212.51 and 

restrictions and prohibitions established 

under § 212.81, as well as from the 

prohibitions in §§ 261.13 and 261.14 of 

the rule. To clarify this intent, the 

Department is changing the exemption 

from designations in § 212.51(a)(8) and 

the corresponding prohibition in 

§ 261.13(h) from ‘‘use and occupancy of 

National Forest System lands and 

resources pursuant to a written 

authorization issued under Federal law 

or regulations’’ to ‘‘motor vehicle use 

that is specifically authorized under a 

written authorization issued under 

Federal law or regulations.’’ Likewise, 

the Department is changing the 

exemption from restrictions and 

prohibitions in § 212.81(b)(5) and the 

corresponding prohibition in § 261.14(e) 

from ‘‘use and occupancy of National 

Forest System lands and resources 

pursuant to a written authorization 

issued under Federal law or 

regulations’’ to ‘‘use by over-snow 

vehicles that is specifically authorized 

under a written authorization issued 

under Federal law or regulations.’’

If a written authorization for such 

activities as livestock operations, 

mining, logging, firewood collection, 

and maintenance of pipelines and 

utility corridors specifically provides for 

motor vehicle use, that use is exempted 

from designations and the prohibition 

regarding motor vehicle use and may 

continue. Local Forest Service officials 

retain the authority to regulate uses 

under a written authorization and to 

determine whether and under what 

conditions to authorize motor vehicle 

use on routes and in areas not generally 

open to motor vehicle use. 

The Forest Service expects to provide 

additional guidance on application of 

these exemptions, including the 

exemption for ‘‘limited administrative 

use by the Forest Service,’’ in agency 

directives which will be published for 

public notice and comment. 

Comment. Some respondents asked 

the Forest Service to provide for limited 

cross-country travel by motor vehicles 

for dispersed camping and big game 

retrieval. 

Response. The Department believes 

that some discretion should be provided 

to local agency officials to consider 

limited use of motor vehicles within a 

specified distance of certain designated 

routes for these specific purposes. 

Consequently, the final rule includes a 

new provision in § 212.51(b), which 

allows the responsible official to 

include in the designation of a road or 

trail the limited use of motor vehicles 

within a specified distance of certain 

designated routes solely for the 

purposes of big game retrieval or 

dispersed camping. 

Federal Register / Vol. 70, No. 216 / Wednesday, November 9, 2005 / Rules and Regulations 68285 

The Department expects the Forest 

Service to apply this provision 

sparingly, on a local or State-wide basis, 

to avoid undermining the purposes of 

the final rule and to promote 

consistency in implementation. 

Provision for cross-country travel for big 

game retrieval and dispersed camping 

will be at the discretion of the 

responsible official. Nothing in this final 

rule requires inclusion of either activity 

in a designation, or reconsideration of 

any decision prohibiting motor vehicle 

use while engaging in these activities. 

On some units, it may be possible to 

administer motor vehicle use associated 

with dispersed camping or big game 

retrieval through a permit system, rather 

than as a component of a designation. 

Motor vehicle use specifically 

authorized under a permit is exempt 

under § 261.13(h) from the prohibition 

on motor vehicle use other than in 

accordance with designations. 

Comment. Some respondents asked 

the Forest Service to provide for permits 

or exemptions for cross-country motor 

vehicle use by people with disabilities. 

Some respondents stated that denying 

access to people with disabilities 

constitutes discrimination. 

Response. Under section 504 of the 

Rehabilitation Act of 1973, no person 

with a disability can be denied 

participation in a Federal program that 

is available to all other people solely 

because of his or her disability. In 

conformance with section 504, 

wheelchairs are welcome on all NFS 

lands that are open to foot travel and are 

specifically exempted from the 

definition of motor vehicle in § 212.1 of 

the final rule, even if they are batterypowered. However, there is no legal 

requirement to allow people with 

disabilities to use OHVs or other motor 

vehicles on roads, trails, and areas 

closed to motor vehicle use because 

such an exemption could fundamentally 

alter the nature of the Forest Service’s 

travel management program (7 CFR 

15e.103). Reasonable restrictions on 

motor vehicle use, applied consistently 

to everyone, are not discriminatory. 

Comment. Some respondents 

observed that under § 261.13(h), the 

responsible official could still issue 

permits for competitive cross-country 

motor vehicle events, including 

motorcycle observed trials (an event in 

which a rider, under observation, has to 

navigate natural obstacles without 

putting a foot down). These respondents 

requested a specific prohibition of such 

events on the grounds that they violate 

the purposes of the rule. 

Other respondents sought specific 

recognition for motorcycle observed 

trials and other organized events as a 

legitimate cross-country use that is not 

subject to the prohibitions of the rule. 

These respondents requested provisions 

in the rule authorizing creation of 

temporary trails for a single event. 

Response. The Department declines to 

establish either a blanket prohibition or 

a blanket allowance for motor vehicle 

events. The Department believes that 

such decisions are best made at the local 

level, based on public involvement and 

appropriate environmental analysis. The 

exemption in § 261.13(h) of the final 

rule provides local Forest Service 

officials the discretion to continue to 

consider requests for permits involving 

motor vehicle use on a site-specific 

basis. 

Section 261.14. This section of the 

rule prohibits use of snowmobiles in 

violation of restrictions or prohibitions 

established under part 212, subpart C. 

Comments related to the prohibition 

on snowmobile use are addressed in the 

response to comments on § 261.13 of the 

proposed rule and in response to 

comments on the corresponding 

discussion in the preamble to the 

proposed rule. No specific comments 

were received on this section. 

Section 261.55. This section of the 

rule governs NFS trails. 

This section was not included in the 

proposed rule. However, the 

Department is making technical changes 

to this section to conform the 

terminology in the title and introductory 

text to terminology used elsewhere in 

the Forest Service’s regulations. 

Specifically, the Department is changing 

‘‘forest development trails’’ to ‘‘National 

Forest System trails.’’

Part 295—Use of Motor Vehicles Off 

National Forest System Roads 

The proposed rule removed part 295 

and integrated its requirements, except 

for the annual review under § 295.6, 

into part 212. Comments and responses 

related to specific changes in the 

existing rule’s language are addressed in 

this preamble under the corresponding 

sections of part 212. 

Regulatory Certifications in the 

Proposed Rule 

Environmental Impact 

Comment. Some respondents asserted 

that this rulemaking is a major Federal 

action with significant effects on the 

human environment that requires 

preparation of an environmental impact 

statement. 

Response. The Department has 

determined that this final rule falls 

within the category of actions excluded 

from documentation in an 

environmental assessment or 

environmental impact statement under 

FSH 1909.15, section 31.1b. This 

provision excludes from documentation 

in an environmental assessment or 

environmental impact statement rules, 

regulations, or policies to establish 

Service-wide administrative procedures, 

program processes, or instructions. No 

extraordinary circumstances 

enumerated in the Forest Service NEPA 

procedures exist that would preclude 

reliance on this categorical exclusion. 

The final rule would have no effect on 

users or on the environment until 

designation of roads, trails, and areas is 

complete for a particular administrative 

unit or Ranger District, with opportunity 

for public involvement. Specific 

decisions associated with designation of 

routes and areas at the local level may 

trigger the need for documentation of 

environmental analysis on a case-bycase basis under NEPA. 

Regulatory Impact 

Comment. Some respondents asserted 

that the proposed rule would have an 

annual economic impact of over $100 

million on private landowners, local 

communities, the recreation industry, 

small businesses, and State and local 

governments and therefore should be 

considered a significant regulatory 

action under E.O. 12866. Respondents 

cited statistics on the overall size of the 

OHV industry in support of this 

statement. 

Response. In light of the substantial 

interest expressed in the proposed rule, 

the Office of Management and Budget 

(OMB) has determined that the final 

rule is significant under E.O. 12866. 

Accordingly, the Department has 

prepared a cost-benefit analysis for the 

final rule. This documentation is 

available in the rulemaking record. 

The Department disagrees that the 

final rule will have annual economic 

impacts of over $100 million. The final 

rule requires National Forests to 

designate which roads, trails, and areas 

are open to motor vehicle use. Once 

designation is complete, the rule will 

restrict motor vehicle use to designated 

roads, trails, and areas and prohibit 

motor vehicle use on those routes and 

in those areas that is inconsistent with 

the designations. Until designation is 

complete for a particular administrative 

unit or Ranger District, the rule will 

have no impact on motor vehicle use on 

NFS lands. Even after designations are 

complete, the rule will have no direct 

economic impact because designations 

merely will regulate where and, if 

appropriate, when motor vehicle use 

will occur on NFS roads, on NFS trails, 

and in areas on NFS lands. 

68286 Federal Register / Vol. 70, No. 216 / Wednesday, November 9, 2005 / Rules and Regulations 

The Department expects that some 

user-created routes will become 

designated roads and trails, after sitespecific evaluation. The overall network 

of routes designated for motor vehicle 

use would then expand. These 

designated routes will form a more 

stable base for long-term management 

and will receive increased maintenance, 

through agency resources and 

cooperative relationships, thereby 

expanding opportunities for motor 

vehicle users. 

At the same time, unregulated crosscountry motor vehicle use will no 

longer be permitted. Unauthorized 

routes that are not designated will be 

closed to motor vehicle use, which 

would limit opportunities for motor 

vehicle users but might expand 

opportunities for other recreational 

visitors seeking a nonmotorized 

experience. 

The Department does not question 

respondents’ assertion that the OHV 

industry as a whole has an annual 

impact of over $100 million on the 

national economy. However, only a 

fraction of this economic activity is 

associated with use on National Forests 

and National Grasslands. Moreover, 

only a fraction of that use represents 

cross-country motor vehicle travel. Over 

the long-term, the rule will result in a 

shift from unregulated, cross-country 

OHV use to OHV use on a system of 

designated routes and areas. This shift 

might have minor impacts on local users 

and economies, but the national 

economic impact will be far less than 

$100 million annually. 

Regulatory Flexibility Act 

Comment. Some respondents asserted 

that the proposed rule would have a 

significant economic impact on a 

substantial number of small entities, 

including OHV dealerships and 

livestock operations, pursuant to the 

Regulatory Flexibility Act. 

Response. The final rule establishes a 

procedural framework for local 

decisionmaking and will not have any 

effect until designation of roads, trails, 

and areas is complete for a particular 

administrative unit or Ranger District, 

with opportunity for public 

involvement. Even after designations are 

complete, the rule will have no direct 

impact on small entities because 

designations merely will regulate where 

and, if appropriate, when motor vehicle 

use will occur on NFS roads, on NFS 

trails, and in areas on NFS lands. The 

Department has determined that the 

final rule will not have a significant 

economic effect on a substantial number 

of small entities because the final rule 

will not impose recordkeeping 

requirements on them, nor will it affect 

their competitive position in relation to 

large entities or their cash flow, 

liquidity, or ability to remain in the 

market. 

No Takings Implications 

Comment. One respondent stated that 

the proposed rule could cause takings of 

private property when areas closed to 

motor vehicle use are then established 

as wilderness areas. Another respondent 

asserted that the rule revokes or 

modifies rights-of-way held by miners, 

inholders, and others, thereby effecting 

a taking of private property. 

Response. There is no taking of 

private property from implementation of 

this final rule. The final rule applies 

only to NFS roads, NFS trails, and areas 

on NFS lands. Any NFS lands that will 

be closed to motor vehicle use will be 

Federal lands. Nothing in this rule 

creates wilderness areas, which can be 

established only by Congress. 

Nothing in the final rule revokes or 

alters any rights-of-way held by miners, 

inholders, or others. The final rule 

merely requires responsible officials to 

designate which NFS roads, NFS trails, 

and areas on NFS lands are open to 

motor vehicle use. In making 

designations, responsible officials must 

recognize valid existing rights, 

including valid reserved and 

outstanding rights-of-way for a road or 

trail (§ 212.55(d)). 

Civil Justice Reform 

No comments were received on this 

section of the proposed rule. 

Federalism and Consultation and 

Coordination With Indian Tribal 

Governments 

Comment. One respondent asserted 

that the proposed rule has tribal 

implications and may pose a taking of 

treaty rights guaranteeing access to 

certain lands. 

Response. The proposed rule does not 

have tribal implications pursuant to 

E.O. 13175. Nothing in the final rule 

alters or is inconsistent with any treaty 

rights held by tribal governments. 

Energy Effects 

No comments were received on this 

section of the proposed rule. 

Unfunded Mandates 

No comments were received on this 

section of the proposed rule. 

Controlling Paperwork Burdens on the 

Public 

No comments were received on this 

section of the proposed rule. 

3. Regulatory Certifications for the 

Final Rule 

Environmental Impact 

The final rule requires designation at 

the field level, with public input, of 

those NFS roads, NFS trails, and areas 

on NFS lands that are open to motor 

vehicle use. The final rule would have 

no effect on users or on the environment 

until designation of roads, trails, and 

areas is complete for a particular 

administrative unit or Ranger District, 

with opportunity for public 

involvement. Section 31.1b of FSH 

1909.15 (57 FR 43180, September 18, 

1992) excludes from documentation in 

an environmental assessment or 

environmental impact statement ‘‘rules, 

regulations, or policies to establish 

Service-wide administrative procedures, 

program processes, or instructions.’’ The 

Department’s conclusion is that this 

final rule falls within this category of 

actions and that no extraordinary 

circumstances exist that would require 

preparation of an environmental 

assessment or environmental impact 

statement. 

This final rule is essentially 

procedural. It has no direct 

environmental effects, and 

consideration of extraordinary 

circumstances would be meaningless at 

this level. This rule will be 

implemented through travel 

management decisions at the 

administrative unit or Ranger District 

level, which may have environmental 

impacts. These site-specific decisions 

will involve appropriate environmental 

analysis and documentation. 

Regulatory Impact 

This final rule has been reviewed 

under USDA procedures and E.O. 12866 

on regulatory planning and review. It 

has been determined that this is not an 

economically significant rule. This final 

rule will not have an annual effect of 

$100 million or more on the economy, 

nor will it adversely affect productivity, 

competition, jobs, the environment, 

public health and safety, or State or 

local governments. This final rule will 

not interfere with an action taken or 

planned by another agency, nor will it 

alter the budgetary impact of 

entitlement, grant, user fee, or loan 

programs or the rights and obligations of 

beneficiaries of such programs. 

However, in light of the substantial 

interest expressed in the proposed rule 

and the important policy issues 

involved, OMB has determined that the 

final rule is significant under E.O. 

12866. Accordingly, the Department has 

prepared a cost-benefit analysis for the 

Federal Register / Vol. 70, No. 216 / Wednesday, November 9, 2005 / Rules and Regulations 68287 

final rule. This documentation is 

available in the rulemaking record. 

Regulatory Flexibility Act 

This final rule has been considered in 

light of the Regulatory Flexibility Act (5 

U.S.C. 602 et seq.). The final rule 

requires designation at the field level, 

with public input, of those NFS roads, 

NFS trails, and areas on NFS lands that 

are open to motor vehicle use. This final 

rule will not have a significant 

economic impact on a substantial 

number of small entities as defined by 

the act because the final rule will not 

impose recordkeeping requirements on 

them; it will not affect their competitive 

position in relation to large entities; and 

it will not affect their cash flow, 

liquidity, or ability to remain in the 

market. 

No Takings Implications 

This final rule has been analyzed in 

accordance with the principles and 

criteria contained in E.O. 12630. It has 

been determined that the final rule will 

not pose the risk of a taking of private 

property. 

Civil Justice Reform 

This final rule has been reviewed 

under E.O. 12988 on civil justice reform. 

After adoption of this final rule, (1) all 

State and local laws and regulations that 

conflict with this rule or that impede its 

full implementation will be preempted; 

(2) no retroactive effect will be given to 

this final rule; and (3) it will not require 

administrative proceedings before 

parties may file suit in court challenging 

its provisions. 

Federalism and Consultation and 

Coordination With Indian Tribal 

Governments 

The Department has considered this 

final rule under the requirements of E.O. 

13132 on federalism, and has 

determined that the final rule conforms 

with the federalism principles set out in 

this E.O.; will not impose any 

compliance costs on the States; and will 

not have substantial direct effects on the 

States, the relationship between the 

Federal government and the States, or 

the distribution of power and 

responsibilities among the various 

levels of government. Therefore, the 

Department has determined that no 

further assessment of federalism 

implications is necessary. 

Moreover, this final rule does not 

have tribal implications as defined by 

E.O. 13175, Consultation and 

Coordination With Indian Tribal 

Governments, and therefore advance 

consultation with tribes is not required. 

Energy Effects 

This final rule has been reviewed 

under E.O. 13211 of May 18, 2001, 

Actions Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use. It has been 

determined that this final rule does not 

constitute a significant energy action as 

defined in the E.O. 

Unfunded Mandates 

Pursuant to Title II of the Unfunded 

Mandates Reform Act of 1995 (2 U.S.C. 

1531–1538), which the President signed 

into law on March 22, 1995, the 

Department has assessed the effects of 

this final rule on State, local, and tribal 

governments and the private sector. 

This final rule will not compel the 

expenditure of $100 million or more by 

any State, local, or tribal government or 

anyone in the private sector. Therefore, 

a statement under section 202 of the act 

is not required. 

Controlling Paperwork Burdens on the 

Public 

This final rule does not contain any 

recordkeeping or reporting requirements 

or other information collection 

requirements as defined in 5 CFR part 

1320 that are not already required by 

law or not already approved for use. 

Accordingly, the review provisions of 

the Paperwork Reduction Act of 1995 

(44 U.S.C. 3501 et seq.) and its 

implementing regulations at 5 CFR part 

1320 do not apply. 

4. Text of the Final Rule 

List of Subjects 

36 CFR Part 212 

Highways and roads, National Forests, 

Public lands—rights-of-way, and 

Transportation. 

36 CFR Part 251 

Administrative practice and 

procedure, Electric power, National 

Forests, Public lands rights-of-way, 

Reporting and recordkeeping 

requirements, Water resources. 

36 CFR Part 261 

Law enforcement, National Forests. 

36 CFR Part 295 

National Forests, Traffic regulations. 

■ Therefore, for the reasons set out in 

the preamble, amend part 212, subpart 

B of part 251, and subpart A of part 261, 

and remove part 295 of title 36 of the 

Code of Federal Regulations as follows: 

PART 212—TRAVEL MANAGEMENT 

■ 1. Amend part 212 by revising the part 

heading to read as set forth above. 

■ 1a. Remove the authority citation for 

part 212. 

■ 2. Designate §§ 212.1 through 212.21 

as subpart A to read as set forth below: 

Subpart A—Administration of the 

Forest Transportation System 

■ 2a. Add an authority citation for new 

subpart A to read as set forth below: 

Authority: 16 U.S.C. 551, 23 U.S.C. 205. 

■ 3. Amend § 212.1 as follows: 

■ a. In alphabetical order, add the 

following definitions: administrative 

unit; area; designated road, trail, or area; 

forest road or trail; forest transportation 

system; motor vehicle; motor vehicle 

use map; National Forest System road; 

National Forest System trail; offhighway vehicle; over-snow vehicle; 

road construction or reconstruction; 

temporary road or trail; trail; travel 

management atlas; and unauthorized 

road or trail; and 

■ b. Revise the definitions for forest 

transportation atlas, forest 

transportation facility, and road; and 

■ c. Remove the definitions for 

classified road, new road construction, 

road reconstruction, temporary road, 

and unclassified road. 

§ 212.1 Definitions. 

Administrative unit. A National 

Forest, a National Grassland, a purchase 

unit, a land utilization project, 

Columbia River Gorge National Scenic 

Area, Land Between the Lakes, Lake 

Tahoe Basin Management Unit, 

Midewin National Tallgrass Prairie, or 

other comparable unit of the National 

Forest System. 

Area. A discrete, specifically 

delineated space that is smaller, and in 

most cases much smaller, than a Ranger 

District. 

* * * * * 

Designated road, trail, or area. A 

National Forest System road, a National 

Forest System trail, or an area on 

National Forest System lands that is 

designated for motor vehicle use 

pursuant to § 212.51 on a motor vehicle 

use map. 

* * * * * 

Forest road or trail. A road or trail 

wholly or partly within or adjacent to 

and serving the National Forest System 

that the Forest Service determines is 

necessary for the protection, 

administration, and utilization of the 

National Forest System and the use and 

development of its resources. 

Forest transportation atlas. A display 

of the system of roads, trails, and 

airfields of an administrative unit. 

Forest transportation facility. A forest 

road or trail or an airfield that is 

68288 Federal Register / Vol. 70, No. 216 / Wednesday, November 9, 2005 / Rules and Regulations 

displayed in a forest transportation 

atlas, including bridges, culverts, 

parking lots, marine access facilities, 

safety devices, and other improvements 

appurtenant to the forest transportation 

system. 

Forest transportation system. The 

system of National Forest System roads, 

National Forest System trails, and 

airfields on National Forest System 

lands. 

* * * * * 

Motor vehicle. Any vehicle which is 

self-propelled, other than: 

(1) A vehicle operated on rails; and 

(2) Any wheelchair or mobility 

device, including one that is batterypowered, that is designed solely for use 

by a mobility-impaired person for 

locomotion, and that is suitable for use 

in an indoor pedestrian area. 

Motor vehicle use map. A map 

reflecting designated roads, trails, and 

areas on an administrative unit or a 

Ranger District of the National Forest 

System. 

* * * * * 

National Forest System road. A forest 

road other than a road which has been 

authorized by a legally documented 

right-of-way held by a State, county, or 

other local public road authority. 

National Forest System trail. A forest 

trail other than a trail which has been 

authorized by a legally documented 

right-of-way held by a State, county, or 

other local public road authority. 

Off-highway vehicle. Any motor 

vehicle designed for or capable of crosscountry travel on or immediately over 

land, water, sand, snow, ice, marsh, 

swampland, or other natural terrain. 

Over-snow vehicle. A motor vehicle 

that is designed for use over snow and 

that runs on a track or tracks and/or a 

ski or skis, while in use over snow. 

* * * * * 

Road. A motor vehicle route over 50 

inches wide, unless identified and 

managed as a trail. 

* * * * * 

Road construction or reconstruction. 

Supervising, inspecting, actual building, 

and incurrence of all costs incidental to 

the construction or reconstruction of a 

road. 

* * * * * 

Temporary road or trail. A road or 

trail necessary for emergency operations 

or authorized by contract, permit, lease, 

or other written authorization that is not 

a forest road or trail and that is not 

included in a forest transportation atlas. 

Trail. A route 50 inches or less in 

width or a route over 50 inches wide 

that is identified and managed as a trail. 

Travel management atlas. An atlas 

that consists of a forest transportation 

atlas and a motor vehicle use map or 

maps. 

Unauthorized road or trail. A road or 

trail that is not a forest road or trail or 

a temporary road or trail and that is not 

included in a forest transportation atlas. 

■ 4. Amend § 212.2 by redesignating 

paragraphs (b) as (d), revising paragraph 

(a), and adding new paragraphs (b) and 

(c) to read as follows: 

§ 212.2 Forest transportation program. 

(a) Travel management atlas. For each 

administrative unit of the National 

Forest System, the responsible official 

must develop and maintain a travel 

management atlas, which is to be 

available to the public at the 

headquarters of that administrative unit. 

(b) Forest transportation atlas. A 

forest transportation atlas may be 

updated to reflect new information on 

the existence and condition of roads, 

trails, and airfields of the administrative 

unit. A forest transportation atlas does 

not contain inventories of temporary 

roads, which are tracked by the project 

or activity authorizing the temporary 

road. The content and maintenance 

requirements for a forest transportation 

atlas are identified in the Forest Service 

directives system. 

(c) Program of work for the forest 

transportation system. A program of 

work for the forest transportation system 

shall be developed each fiscal year in 

accordance with procedures prescribed 

by the Chief. 

* * * * * 

■ 5. Amend § 212.5 as follows: 

■ a. Revise paragraphs (a)(1) and 

(a)(2)(ii); 

■ b. Revise the heading for paragraph (c) 

introductory text to read as set forth 

below: 

■ c. Revise the heading for paragraph (d) 

introductory text to read as set forth 

below: 

§ 212.5 Road system management. 

(a) Traffic rules. * * * 

(1) General. Traffic on roads is subject 

to State traffic laws where applicable 

except when in conflict with 

designations established under subpart 

B of this part or with the rules at 36 CFR 

part 261. 

(2) Specific. * * * 

(ii) Roads, or segments thereof, may 

be restricted to use by certain classes of 

vehicles or types of traffic as provided 

in 36 CFR part 261. Classes of vehicles 

may include but are not limited to 

distinguishable groupings such as 

passenger cars, buses, trucks, 

motorcycles, all-terrain vehicles, 4- 

wheel drive vehicles, off-highway 

vehicles, and trailers. Types of traffic 

may include but are not limited to 

groupings such as commercial hauling, 

recreation, and administrative. 

* * * * * 

(c) Cost recovery on National Forest 

System roads. * * * 

(d) Maintenance and reconstruction of 

National Forest System roads by users. 

* * * * * 

■ 6. Amend § 212.7 by revising the 

paragraph heading and text of paragraph 

(a) to read as follows: 

§ 212.7 Access procurement by the United 

States. 

(a) Existing or proposed forest roads 

that are or will be part of a 

transportation system of a State, county, 

or other local public road authority. 

Forest roads that are or will be part of 

a transportation system of a State, 

county, or other local public road 

authority and are on rights-of-way held 

by a State, county, or other local public 

road authority may be constructed, 

reconstructed, improved, or maintained 

by the Forest Service when there is an 

appropriate agreement with the State, 

county, or other local public road 

authority under 23 U.S.C. 205 and the 

construction, reconstruction, 

improvement, or maintenance is 

essential to provide safe and economical 

access to National Forest System lands. 

* * * * * 

■ 7. Amend § 212.10 by revising 

paragraph (d) to read as follows: 

§ 212.10 Maximum economy National 

Forest System roads. 

* * * * * 

(d) By a combination of these 

methods, provided that where roads are 

to be constructed at a higher standard 

than the standard—consistent with 

applicable environmental laws and 

regulations—that is sufficient for 

harvesting and removal of National 

Forest timber and other products 

covered by a particular sale, the 

purchaser of the timber and other 

products shall not be required to bear 

the part of the cost necessary to meet the 

higher standard, and the Chief may 

make such arrangements to achieve this 

end as may be appropriate. 

* * * * * 

§ 212.20 [Removed and reserved] 

■ 8. Remove and reserve § 212.20. 

■ 9. Add a new subpart B to read as 

follows: 

Subpart B—Designation of Roads, Trails, 

and Areas for Motor Vehicle Use 

Sec. 

212.50 Purpose, scope, and definitions. 

212.51 Designation of roads, trails, and 

areas. 

Federal Register / Vol. 70, No. 216 / Wednesday, November 9, 2005 / Rules and Regulations 68289 

212.52 Public involvement. 

212.53 Coordination with Federal, State, 

county, and other local governmental 

entities and tribal governments. 

212.54 Revision of designations. 

212.55 Criteria for designation of roads, 

trails, and areas. 

212.56 Identification of designated roads, 

trails, and areas. 

212.57 Monitoring of effects of motor 

vehicle use on designated roads and 

trails and in designated areas. 

Authority: 7 U.S.C. 1011(f), 16 U.S.C. 551, 

E.O. 11644, 11989 (42 FR 26959). 

§ 212.50 Purpose, scope, and definitions. 

(a) Purpose. This subpart provides for 

a system of National Forest System 

roads, National Forest System trails, and 

areas on National Forest System lands 

that are designated for motor vehicle 

use. After these roads, trails, and areas 

are designated, motor vehicle use, 

including the class of vehicle and time 

of year, not in accordance with these 

designations is prohibited by 36 CFR 

261.13. Motor vehicle use off designated 

roads and trails and outside designated 

areas is prohibited by 36 CFR 261.13. 

(b) Scope. The responsible official 

may incorporate previous 

administrative decisions regarding 

travel management made under other 

authorities, including designations and 

prohibitions of motor vehicle use, in 

designating National Forest System 

roads, National Forest System trails, and 

areas on National Forest System lands 

for motor vehicle use under this 

subpart. 

(c) For definitions of terms used in 

this subpart, refer to § 212.1 in subpart 

A of this part. 

§ 212.51 Designation of roads, trails, and 

areas. 

(a) General. Motor vehicle use on 

National Forest System roads, on 

National Forest System trails, and in 

areas on National Forest System lands 

shall be designated by vehicle class and, 

if appropriate, by time of year by the 

responsible official on administrative 

units or Ranger Districts of the National 

Forest System, provided that the 

following vehicles and uses are 

exempted from these designations: 

(1) Aircraft; 

(2) Watercraft; 

(3) Over-snow vehicles (see § 212.81); 

(4) Limited administrative use by the 

Forest Service; 

(5) Use of any fire, military, 

emergency, or law enforcement vehicle 

for emergency purposes; 

(6) Authorized use of any combat or 

combat support vehicle for national 

defense purposes; 

(7) Law enforcement response to 

violations of law, including pursuit; and 

(8) Motor vehicle use that is 

specifically authorized under a written 

authorization issued under Federal law 

or regulations. 

(b) Motor vehicle use for dispersed 

camping or big game retrieval. In 

designating routes, the responsible 

official may include in the designation 

the limited use of motor vehicles within 

a specified distance of certain 

designated routes, and if appropriate 

within specified time periods, solely for 

the purposes of dispersed camping or 

retrieval of a downed big game animal 

by an individual who has legally taken 

that animal. 

§ 212.52 Public involvement. 

(a) General. The public shall be 

allowed to participate in the designation 

of National Forest System roads, 

National Forest System trails, and areas 

on National Forest System lands and 

revising those designations pursuant to 

this subpart. Advance notice shall be 

given to allow for public comment, 

consistent with agency procedures 

under the National Environmental 

Policy Act, on proposed designations 

and revisions. Public notice with no 

further public involvement is sufficient 

if a National Forest or Ranger District 

has made previous administrative 

decisions, under other authorities and 

including public involvement, which 

restrict motor vehicle use over the entire 

National Forest or Ranger District to 

designated routes and areas, and no 

change is proposed to these previous 

decisions and designations. 

(b) Absence of public involvement in 

temporary, emergency closures. (1) 

General. Nothing in this section shall 

alter or limit the authority to implement 

temporary, emergency closures pursuant 

to 36 CFR part 261, subpart B, without 

advance public notice to provide shortterm resource protection or to protect 

public health and safety. 

(2) Temporary, emergency closures 

based on a determination of 

considerable adverse effects. If the 

responsible official determines that 

motor vehicle use on a National Forest 

System road or National Forest System 

trail or in an area on National Forest 

System lands is directly causing or will 

directly cause considerable adverse 

effects on public safety or soil, 

vegetation, wildlife, wildlife habitat, or 

cultural resources associated with that 

road, trail, or area, the responsible 

official shall immediately close that 

road, trail, or area to motor vehicle use 

until the official determines that such 

adverse effects have been mitigated or 

eliminated and that measures have been 

implemented to prevent future 

recurrence. The responsible official 

shall provide public notice of the 

closure pursuant to 36 CFR 261.51, 

including reasons for the closure and 

the estimated duration of the closure, as 

soon as practicable following the 

closure. 

§ 212.53 Coordination with Federal, State, 

county, and other local governmental 

entities and tribal governments. 

The responsible official shall 

coordinate with appropriate Federal, 

State, county, and other local 

governmental entities and tribal 

governments when designating National 

Forest System roads, National Forest 

System trails, and areas on National 

Forest System lands pursuant to this 

subpart. 

§ 212.54 Revision of designations. 

Designations of National Forest 

System roads, National Forest System 

trails, and areas on National Forest 

System lands pursuant to § 212.51 may 

be revised as needed to meet changing 

conditions. Revisions of designations 

shall be made in accordance with the 

requirements for public involvement in 

§ 212.52, the requirements for 

coordination with governmental entities 

in § 212.53, and the criteria in § 212.55, 

and shall be reflected on a motor vehicle 

use map pursuant to § 212.56. 

§ 212.55 Criteria for designation of roads, 

trails, and areas. 

(a) General criteria for designation of 

National Forest System roads, National 

Forest System trails, and areas on 

National Forest System lands. In 

designating National Forest System 

roads, National Forest System trails, and 

areas on National Forest System lands 

for motor vehicle use, the responsible 

official shall consider effects on 

National Forest System natural and 

cultural resources, public safety, 

provision of recreational opportunities, 

access needs, conflicts among uses of 

National Forest System lands, the need 

for maintenance and administration of 

roads, trails, and areas that would arise 

if the uses under consideration are 

designated; and the availability of 

resources for that maintenance and 

administration. 

(b) Specific criteria for designation of 

trails and areas. In addition to the 

criteria in paragraph (a) of this section, 

in designating National Forest System 

trails and areas on National Forest 

System lands, the responsible official 

shall consider effects on the following, 

with the objective of minimizing: 

(1) Damage to soil, watershed, 

vegetation, and other forest resources; 

(2) Harassment of wildlife and 

significant disruption of wildlife 

habitats; 

68290 Federal Register / Vol. 70, No. 216 / Wednesday, November 9, 2005 / Rules and Regulations 

(3) Conflicts between motor vehicle 

use and existing or proposed 

recreational uses of National Forest 

System lands or neighboring Federal 

lands; and 

(4) Conflicts among different classes 

of motor vehicle uses of National Forest 

System lands or neighboring Federal 

lands. 

In addition, the responsible official 

shall consider: 

(5) Compatibility of motor vehicle use 

with existing conditions in populated 

areas, taking into account sound, 

emissions, and other factors. 

(c) Specific criteria for designation of 

roads. In addition to the criteria in 

paragraph (a) of this section, in 

designating National Forest System 

roads, the responsible official shall 

consider: 

(1) Speed, volume, composition, and 

distribution of traffic on roads; and 

(2) Compatibility of vehicle class with 

road geometry and road surfacing. 

(d) Rights of access. In making 

designations pursuant to this subpart, 

the responsible official shall recognize: 

(1) Valid existing rights; and 

(2) The rights of use of National Forest 

System roads and National Forest 

System trails under § 212.6(b). 

(e) Wilderness areas and primitive 

areas. National Forest System roads, 

National Forest System trails, and areas 

on National Forest System lands in 

wilderness areas or primitive areas shall 

not be designated for motor vehicle use 

pursuant to this section, unless, in the 

case of wilderness areas, motor vehicle 

use is authorized by the applicable 

enabling legislation for those areas. 

§ 212.56 Identification of designated 

roads, trails, and areas. 

Designated roads, trails, and areas 

shall be identified on a motor vehicle 

use map. Motor vehicle use maps shall 

be made available to the public at the 

headquarters of corresponding 

administrative units and Ranger 

Districts of the National Forest System 

and, as soon as practicable, on the 

website of corresponding administrative 

units and Ranger Districts. The motor 

vehicle use maps shall specify the 

classes of vehicles and, if appropriate, 

the times of year for which use is 

designated. 

§ 212.57 Monitoring of effects of motor 

vehicle use on designated roads and trails 

and in designated areas. 

For each administrative unit of the 

National Forest System, the responsible 

official shall monitor the effects of 

motor vehicle use on designated roads 

and trails and in designated areas under 

the jurisdiction of that responsible 

official, consistent with the applicable 

land management plan, as appropriate 

and feasible. 

■ 10. Add a new subpart C to read as 

follows: 

Subpart C—Use by Over-Snow Vehicles 

Sec. 

212.80 Purpose, scope, and definitions. 

212.81 Use by over-snow vehicles. 

Authority: 7 U.S.C. 1011(f), 16 U.S.C. 551, 

E.O. 11644, 11989 (42 FR 26959). 

§ 212.80 Purpose, scope, and definitions. 

The purpose of this subpart is to 

provide for regulation of use by oversnow vehicles on National Forest 

System roads and National Forest 

System trails and in areas on National 

Forest System lands. For definitions of 

terms used in this subpart, refer to 

§ 212.1 in subpart A of this part. 

§ 212.81 Use by over-snow vehicles. 

(a) General. Use by over-snow 

vehicles on National Forest System 

roads and National Forest System trails 

and in areas on National Forest System 

lands may be allowed, restricted, or 

prohibited. 

(b) Exemptions from restrictions and 

prohibitions. The following uses are 

exempted from restrictions and 

prohibitions on use by over-snow 

vehicles: 

(1) Limited administrative use by the 

Forest Service; 

(2) Use of any fire, military, 

emergency, or law enforcement vehicle 

for emergency purposes; 

(3) Authorized use of any combat or 

combat support vehicle for national 

defense purposes; 

(4) Law enforcement response to 

violations of law, including pursuit; and 

(5) Use by over-snow vehicles that is 

specifically authorized under a written 

authorization issued under Federal law 

or regulations. 

(c) Establishment of restrictions and 

prohibitions. If the responsible official 

proposes restrictions or prohibitions on 

use by over-snow vehicles under this 

subpart, the requirements governing 

designation of National Forest System 

roads, National Forest System trails, and 

areas on National Forest System lands 

in §§ 212.52, 212.53, 212.54, 212.55, 

212.56, and 212.57 shall apply to 

establishment of those restrictions or 

prohibitions. In establishing restrictions 

or prohibitions on use by over-snow 

vehicles, the responsible official shall 

recognize the provisions concerning 

rights of access in sections 811(b) and 

1110(a) of the Alaska National Interest 

Lands Conservation Act (16 U.S.C. 

3121(b) and 3170(a), respectively). 

PART 251—LAND USES 

Subpart B—Special Uses 

■ 11. Revise the authority citation for 

part 251, subpart B, to read as follows: 

Authority: 7 U.S.C. 1011(f); 16 U.S.C. 460l–

6a, 460l–6d, 472, 497b, 497c, 551, 580d, 

1134, 3210; 30 U.S.C. 185; 43 U.S.C. 1740, 

1761–1771. 

■ 12. Amend § 251.51 by revising the 

definitions for ‘‘forest road or trail’’ and 

‘‘National Forest System road’’ to read 

as follows: 

§ 251.51 Definitions. 

* * * * * 

Forest road or trail. A road or trail 

wholly or partly within or adjacent to 

and serving the National Forest System 

that the Forest Service determines is 

necessary for the protection, 

administration, and utilization of the 

National Forest System and the use and 

development of its resources. 

* * * * * 

National Forest System road. A forest 

road other than a road which has been 

authorized by a legally documented 

right-of-way held by a State, county, or 

other local public road authority. 

* * * * * 

PART 261—PROHIBITIONS 

■ 13. The authority citation for part 261 

continues to read as follows: 

Authority: 7 U.S.C. 1011(f); 16 U.S.C. 460l–

6d, 472, 551, 620(f), 1133(c)–(d)(1), 1246(i). 

■ 14. Amend § 261.2 to revise the 

definitions for ‘‘motor vehicle,’’ ‘‘forest 

road or trail,’’ ‘‘National Forest System 

road,’’ and ‘‘National Forest System 

trail,’’ and add definitions in 

alphabetical order for ‘‘administrative 

unit’’ and ‘‘area,’’ to read as follows: 

Subpart A—General Prohibitions 

* * * * * 

§ 261.2 Definitions. 

* * * * * 

Administrative unit. A National 

Forest, a National Grassland, a purchase 

unit, a land utilization project, 

Columbia River Gorge National Scenic 

Area, Land Between the Lakes, Lake 

Tahoe Basin Management Unit, 

Midewin National Tallgrass Prairie, or 

other comparable unit of the National 

Forest System. 

* * * * * 

Area. A discrete, specifically 

delineated space that is smaller, and in 

most cases much smaller, than a Ranger 

District. 

* * * * * 

Federal Register / Vol. 70, No. 216 / Wednesday, November 9, 2005 / Rules and Regulations 68291 

Forest road or trail. A road or trail 

wholly or partly within or adjacent to 

and serving the National Forest System 

that the Forest Service determines is 

necessary for the protection, 

administration, and utilization of the 

National Forest System and the use and 

development of its resources. 

* * * * * 

Motor vehicle means any vehicle 

which is self-propelled, other than: 

(1) A vehicle operated on rails; and 

(2) Any wheelchair or mobility 

device, including one that is batterypowered, that is designed solely for use 

by a mobility-impaired person for 

locomotion and that is suitable for use 

in an indoor pedestrian area. 

* * * * * 

National Forest System road. A forest 

road other than a road which has been 

authorized by a legally documented 

right-of-way held by a State, county, or 

other local public road authority. 

National Forest System trail. A forest 

trail other than a trail which has been 

authorized by a legally documented 

right-of-way held by a State, county, or 

other local public road authority. 

* * * * * 

§§ 261.13 through 261.21 [Redesignated as 

§§ 261.15 through 261.23] 

■ 15. Redesignate §§ 261.13 through 

261.21 as §§ 261.15 through 261.23. 

■ 15a. Add new § 261.13 and § 261.14 to 

read as follows: 

§ 261.13 Motor vehicle use. 

After National Forest System roads, 

National Forest System trails, and areas 

on National Forest System lands have 

been designated pursuant to 36 CFR 

212.51 on an administrative unit or a 

Ranger District of the National Forest 

System, and these designations have 

been identified on a motor vehicle use 

map, it is prohibited to possess or 

operate a motor vehicle on National 

Forest System lands in that 

administrative unit or Ranger District 

other than in accordance with those 

designations, provided that the 

following vehicles and uses are 

exempted from this prohibition: 

(a) Aircraft; 

(b) Watercraft; 

(c) Over-snow vehicles; 

(d) Limited administrative use by the 

Forest Service; 

(e) Use of any fire, military, 

emergency, or law enforcement vehicle 

for emergency purposes; 

(f) Authorized use of any combat or 

combat support vehicle for national 

defense purposes; 

(g) Law enforcement response to 

violations of law, including pursuit; 

(h) Motor vehicle use that is 

specifically authorized under a written 

authorization issued under Federal law 

or regulations; and 

(i) Use of a road or trail that is 

authorized by a legally documented 

right-of-way held by a State, county, or 

other local public road authority. 

§ 261.14 Use by over-snow vehicles. 

It is prohibited to possess or operate 

an over-snow vehicle on National Forest 

System lands in violation of a restriction 

or prohibition established pursuant to 

36 CFR part 212, subpart C, provided 

that the following uses are exempted 

from this section: 

(a) Limited administrative use by the 

Forest Service; 

(b) Use of any fire, military, 

emergency, or law enforcement vehicle 

for emergency purposes; 

(c) Authorized use of any combat or 

combat support vehicle for national 

defense purposes; 

(d) Law enforcement response to 

violations of law, including pursuit; 

(e) Use by over-snow vehicles that is 

specifically authorized under a written 

authorization issued under Federal law 

or regulations; and 

(f) Use of a road or trail that is 

authorized by a legally documented 

right-of-way held by a State, county, or 

other local public road authority. 

■ 16. Amend § 261.55 by revising the 

introductory text to read as follows: 

§ 261.55 National Forest System trails. 

When provided by an order issued in 

accordance with § 261.50 of this 

subpart, the following are prohibited on 

a National Forest System trail: 

* * * * * 

PART 295—USE OF MOTOR VEHICLES 

OFF NATIONAL FOREST SYSTEM 

ROADS [REMOVED] 

■ 17. Remove the entire part 295. 

Dated: October 19, 2005. 

Mark Rey, 

Undersecretary of Agriculture for Natural 

Resources and Environment. 

[FR Doc. 05–22024 Filed 11–8–05; 8:45 am] 

BILLING CODE 3410–11–P