Bureau of Land Management (BLM) is now the third federal agency in three days to publish its plans for e bike use

I don't know if this was intentional or not but three federal agencies on three separate days (back to back) have all published their proposed rules for e bikes in/on their respective lands or parks. The rules are all very similar in that they all make explicit reference to the three classes of ebikes similar to what most states have proscribed however their are slight variations in all three agencies approaches due to where the agencies are at now with e bike regulation and how usage might differ in each of the three different types of federal lands or parks.Once again all the usual suspects are coming out against all these regulations. The latest announcement on class 1 ebikes being banned on NFS land was just spotted by one of our readers here.

The Bureau of Land Management (BLM) likely oversees the largest acreage of land (see fn 1 below) upon which ebikes can/may be used and often this land is managed differently than the National Parks for obvious reasons. So as a result the proposal from BLM is a bit longer than the other two agencies proposals (NPS and FWS). If you would like to read the entire 25 page BLM proposal (quite a detailed history) it is linked here. The proposed rules themselves are set forth below. Public commenting period will run from April 10, 2020 to June 10, 2020. The direct commenting link is here.

(footnote 1: The BLM administers more surface land (245 million acres or one-tenth of America's land base) and more subsurface mineral estate (700 million acres) than any other government agency in the United States.)

List of Subjects in 43 CFR Part 8340
Public lands, Recreation and recreation areas, Traffic regulations.
43 CFR Chapter II

For the reasons set out in the preamble, the Bureau of Land Management proposes to
amend 43 CFR part 8340 as follows:

PART 8340—OFF-ROAD VEHICLES
1. The authority citation for part 8340 continues to read as follows:

Authority: 43 U.S.C. 1201, 43 U.S.C. 315a, 16 U.S.C. 1531 et seq., 16 U.S.C. 1281c, 16
U.S.C. 670 et seq., 16 U.S.C. 460l-6a, 16 U.S.C. 1241 et seq., and 43 U.S.C. 1701 et seq.

Subpart 8340—General
2. Revise §8340.0-5 to read as follows:
§8340.0-5 Definitions.
As used in this part:

(a) Off-road vehicle means any motorized vehicle capable of, or designed for, travel on or
immediately over land, water, or other natural terrain, excluding:
(1) Any nonamphibious registered motorboat;
(2) Any military, fire, emergency, or law enforcement vehicle while being used for
emergency purposes;
(3) Any vehicle whose use is expressly authorized by the authorized officer, or otherwise
officially approved;
(4) Vehicles in official use;
(5) E-bikes, as defined in paragraph (j) of this section:
(i) While being used on roads and trails upon which mechanized, non-motorized use is
allowed;
(ii) That are not being used in a manner where the motor is being used exclusively to
propel the E-bike; and
(iii) Where the authorized officer has expressly determined, as part of a land-use
planning or implementation-level decision, that E-bikes should be treated the same as
non-motorized bicycles; and
(6) Any combat or combat support vehicle when used in times of national defense
emergencies.
(b) Public lands means any lands the surface of which is administered by the Bureau of
Land Management.
(c) Bureau means the Bureau of Land Management.
(d) Official use means use by an employee, agent, or designated representative of the
Federal Government or one of its contractors, in the course of his employment, agency,
or representation.
(e) Planning system means the approach provided in Bureau regulations, directives and
manuals to formulate multiple use plans for the public lands. This approach provides for
public participation within the system.
(f) Open area means an area where all types of vehicle use is permitted at all times,
anywhere in the area subject to the operating regulations and vehicle standards set forth
in subparts 8341 and 8342 of this title.
(g) Limited area means an area restricted at certain times, in certain areas, and/or to
certain vehicular use. These restrictions may be of any type, but can generally be
accommodated within the following type of categories: Numbers of vehicles; types of
vehicles; time or season of vehicle use; permitted or licensed use only; use on existing
roads and trails; use on designated roads and trails; and other restrictions.
(h) Closed area means an area where off-road vehicle use is prohibited. Use of off-road
vehicles in closed areas may be allowed for certain reasons; however, such use shall be
made only with the approval of the authorized officer.
(i) Spark arrester is any device which traps or destroys 80 percent or more of the exhaust
particles to which it is subjected.
(j) Electric bicycle (also known as an E-bike) means a two- or three-wheeled cycle with
fully operable pedals and an electric motor of not more than 750 watts (1 h.p.) that meets
the requirements of one of the following three classes:
(1) Class 1 electric bicycle shall mean an electric bicycle equipped with a motor that
provides assistance only when the rider is pedaling, and that ceases to provide assistance
when the bicycle reaches the speed of 20 miles per hour.
(2) Class 2 electric bicycle shall mean an electric bicycle equipped with a motor that may
be used exclusively to propel the bicycle, and that is not capable of providing assistance
when the bicycle reaches the speed of 20 miles per hour.
(3) Class 3 electric bicycle shall mean an electric bicycle equipped with a motor that
provides assistance only when the rider is pedaling, and that ceases to provide assistance
when the bicycle reaches the speed of 28 miles per hour.

Subpart 8342—Designation of Areas and Trails
3. Amend §8342.2 by adding paragraph (d) to read as follows:

§8342.2 Designation procedures.
*****
(d) E-bikes.
(1) Authorized officers should generally allow, as part of a land-use
planning or implementation-level decision, E-bikes whose motorized features are being
used to assist human propulsion on roads and trails upon which mechanized, nonmotorized
use is allowed, unless the authorized officer determines that E-bike use would
be inappropriate on such roads or trails; and
(2) If the authorized officer allows E-bikes in accordance with this paragraph (d), an Ebike
user shall be afforded all the rights and privileges, and be subject to all of the duties,
of user of a non-motorized bicycle.

[FR Doc. 2020-07099 Filed: 4/9/2020 8:45 am; Publication Date: 4/10/2020]

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National Park Service sets forth their proposed e bike rules

The National Park Service (on the day after the National Wildlife Refuge System proposed somewhat similar and less complex rules; see that story here) has now set forth their own proposed e bike rules below. The comment period on the proposed rules (set forth in full at the bottom of this article) will run from April 8 2020 to June 8 2020. Comments can be made directly here.  Clearly some groups are not going to be happy about ebikes in the NPS parks. Some industry insiders agree. More opinions here and here.

On August 29, 2019, Secretary of the Interior Bernhardt signed Secretary’s Order 3376, “Increasing Recreational Opportunities through the use of Electric Bikes.” The Order acknowledges there is regulatory uncertainty regarding whether e-bikes should be managed similar to other types of bicycles, or, alternatively, considered motor vehicles. The Order states that this regulatory uncertainty has led to inconsistent management of e-bikes across the Department and, in some cases, served to decrease access to Federally owned lands by users of e-bikes. In order to address these concerns, the Order directs the NPS and other Department of the Interior agencies to define e-bikes separately from motor vehicles and to allow them where other types of bicycles are allowed.

On August 30, 2019, the Deputy Director of the NPS, Exercising the Authority of the Director, issued Policy Memorandum 19-01, Electric Bicycles, which refers to a three-class system that limits the maximum assisted speed of an e-bike. The Memorandum requires superintendents to adopt state law in the same manner for e-bikes. The rule would amend 36 CFR 1.4 to add a new definition of “electric bicycle” that is the same as the definition used in the Policy Memorandum, with one minor difference, namely that the definition of e-bikes in the proposed rule would include devices of not more than 750 watts.

The rule would also state that superintendents will designate the areas open to e-bikes and notify the public pursuant to 36 CFR 1.7. E-bikes would not be allowed in other locations. The rule would also give superintendents the authority to limit or restrict e-bike use after taking into consideration public health and safety, natural and cultural resource protection, and other management activities and objectives. If warranted by these criteria, superintendents may use this authority to manage e-bikes, or particular classes of e-bikes, differently than traditional bicycles in particular locations. For example, a superintendent could determine that a trail open to traditional bicycles should not be open to e-bikes, or should be open to class 1 e-bikes only. Every restriction or closure that limits the use of e-bikes will be supported by a written record explaining the basis for such action.

Except on park roads and other locations where the use of motor vehicles by the public is allowed, the rule would prohibit an operator from using the electric motor to move an e-bike without pedaling. This restriction is consistent with the Policy Memorandum and intended to allow the public to use e-bikes for transportation and recreation in a similar manner to traditional bicycles. It would only affect the use of class 2 e-bikes, which have a motor that may be used exclusively to propel the e-bike. The NPS specifically requests comment on whether this restriction is appropriate or workable. Alternatively, the NPS could allow superintendents to implement this restriction at the park level if necessary in specific locations.

36 CFR Part 4
National Parks, Traffic Regulations.

In consideration of the foregoing, the National Park Service proposes to amend 36 CFR parts 1 and 4 as set forth below:

PART 1—GENERAL PROVISIONS

1. The authority citation for part 1 continues to read as follows:
Authority: 54 U.S.C. 100101, 100751, 320102

2. Amend § 1.4 by adding, in alphabetical order, a definition for “Electric bicycle” and
revising the definition for “Motor vehicle” to read as follows:

§ 1.4 What terms do I need to know?
(a) * * *
* * * * *
Electric bicycle means a two- or three-wheeled cycle with fully operable pedals and an
electric motor of not more than 750 watts that meets the requirements of one of the following
three classes:
(1) "Class 1 electric bicycle" shall mean an electric bicycle equipped with a motor that
provides assistance only when the rider is pedaling, and that ceases to provide assistance when
the bicycle reaches the speed of 20 miles per hour.
(2) "Class 2 electric bicycle" shall mean an electric bicycle equipped with a motor that
may be used exclusively to propel the bicycle, and that is not capable of providing assistance
when the bicycle reaches the speed of 20 miles per hour.
(3) "Class 3 electric bicycle" shall mean an electric bicycle equipped with a motor that
provides assistance only when the rider is pedaling, and that ceases to provide assistance when
the bicycle reaches the speed of 28 miles per hour.
* * * * *
Motor vehicle means every vehicle that is self-propelled and every vehicle that is propelled by electric power, but not operated on rails or water, except an electric bicycle, a
snowmobile, and a motorized wheelchair.

* * * * *
PART 4— VEHICLES AND TRAFFIC SAFETY

3. The authority citation for part 4 continues to read as follows:
Authority: 54 U.S.C. 100101, 100751, 320102.

4. Amend § 4.30 by adding paragraph (i) to read as follows:

§ 4.30 Bicycles
* * * * *
(i) Electric bicycles.
(1) The use of an electric bicycle may be allowed on park roads, parking areas, and
administrative roads and trails that are otherwise open to bicycles. The Superintendent will
designate the areas open to electric bicycles and notify the public pursuant to 36 CFR 1.7.
(2) The use of an electric bicycle is prohibited in locations not designated by the
Superintendent under paragraph (i)(1) of this section.
(3) Except where use of motor vehicles by the public is allowed, using the electric motor
to move an electric bicycle without pedaling is prohibited.
(4) Possessing an electric bicycle in a wilderness area established by Federal statute is
prohibited.
(5) A person operating or possessing an electric bicycle is subject to the following
sections of this part that apply to bicycles: sections 4.12, 4.13, 4.20, 4.21, 4.22, 4.23, and
4.30(h)(3)-(5).
(6) Except as specified in this section, the use of an electric bicycle is governed by State law, which is adopted and made a part of this section. Any act in violation of State law adopted
by this paragraph is prohibited.
(7) Superintendents may limit or restrict or impose conditions on electric bicycle use, or
may close any park road, parking area, administrative road, trail, or portion thereof to such
electric bicycle use, or terminate such condition, closure, limit or restriction after:
(i) Taking into consideration public health and safety, natural and cultural resource
protection, and other management activities and objectives; and
(ii) Notifying the public through one or more methods listed in 36 CFR 1.7, including in
the superintendent’s compendium (or written compilation) of discretionary actions referred to in
section 1.7(b).

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U.S. Fish and Wildlife Service seeks public comments on use of e-bikes on the National Wildlife Refuge System

The U.S. Fish and Wildlife Service is seeking public comments on the use of e-bikes on the National Wildlife Refuge System. The National Wildlife Refuge System Administration Act closes national wildlife refuges in all States except Alaska to all uses until opened. This proposed rule only pertains to the National Wildlife Refuge System (map) and NOT to National Parks (map) nor general National Forrest service land (map). The Refuge System is a network of 568 national wildlife refuges and 38 wetland management districts. More than 59 million Americans visit refuges every year so the ebike companies may still be interested in this and it may affect decisions made on other federal land.

Department of the Interior (DOI) Secretary’s Order 3376 directs DOI bureaus to begin the process of obtaining public input on proposed new regulations that will clarify that operators of low-speed electric bicycles (e-bikes) should enjoy the same access as conventional bicycles, consistent with other Federal and State laws. Refuge managers will have the ability in the short term to utilize the flexibility they have under current regulations to accommodate this new technology, that assists riders as they pedal, in a way that allows them to enjoy the bicycling experience. DOI’s guidance will enable visitors to use these bicycles with a small electric motor (not more than 750 watts or 1 horsepower) power assist in the same manner as traditional bicycles. The operator of an e-bike may use the small electric motor only to assist pedal propulsion. The motor may not be used to propel an e-bike without the rider also pedaling.

The comments on the proposed rule below can be made most effectively using the government's regulations.gov portal. The direct link to comment is here. The comment period begins on or about April 7 2020 and ends 60 days after on June 7, 2020. 

The proposed amendment is set forth below:

50 CFR Part 27

Subpart C—Disturbing Violations: With Vehicles

2. Amend § 27.31 by redesignating paragraph (m) as paragraph (n) and adding a new
paragraph (m) to read as follows:

§ 27.31 General provisions regarding vehicles.

(m) If the refuge manager determines that electric bicycle (also known as an e-bike) use
is a compatible use on roads or trails, any person using the motorized features of an e-bike as an
assist to human propulsion shall be afforded all the rights and privileges, and be subject to all of
the duties, of the operators of non-motorized bicycles on roads and trails. An e-bike is a two- or
three-wheeled electric bicycle with fully operable pedals and an electric motor of not more than
750 watts (1 h.p.) that meets the requirements of one of the following three classes:

(1) Class 1 e-bike shall mean an electric bicycle equipped with a motor that provides
assistance only when the rider is pedaling, and that ceases to provide assistance when the bicycle
reaches the speed of 20 miles per hour.

(2) Class 2 e-bike shall mean an electric bicycle equipped with a motor that may be
used exclusively to propel the bicycle, and that is not capable of providing assistance when the
bicycle reaches the speed of 20 miles per hour.

(3) Class 3 e-bike shall mean an electric bicycle equipped with a motor that provides
assistance only when the rider is pedaling, and that ceases to provide assistance when the bicycle
reaches the speed of 28 miles per hour.

Law Offices of Steven W. Hansen | www.swhlaw.com | 562 866 6228 © Copyright 1996-2020 Conditions of Use