Formal rulemaking must occur if the Park Service intends to open any trails now open to muscle-powered bikes to eBikes/Rebecca Latson file

A review of regulations that govern bicycle use in the National Park System shows park superintendents can't unilaterally come out and grant eBike access to trails where muscle-powered bicycles are now allowed to go.

Frank Buono, a former Park Service assistant superintendent who has kept atop issues involving the national parks, took a look at the regulatory history of bicycle access in the parks and came away with the conclusion that a number of hurdles must be cleared if the Park Service is to meet Interior Secretary David Bernhardt's directive to give eBike owners the same access in the parks now enjoyed by traditional cyclists.

"Until the Department of the Interior adopts a revised final rule at 36 CFR 1.4 and 4.30, no park manager may allow e-bikes on backcountry trails or areas outside of developed zones," maintains Buono.

36 CFR 1.4 defines both "bicycles" and "motorized" vehicles when it comes to the parks, while 36 CFR 4.30 lays out where bicycles can travel in the parks.

In his review of the statutes, Buono notes that it was back in June 1983 when the Park Service adopted a definition for "bicycles." Those regulations "define a 'bicycle' as '...every device propelled solely by human power upon which a person or persons may ride on land, having one, two, or more wheels.”

Four years later, the Park Service adopted regulations governing the use of bikes in parks.

"The 1987 regulation provides that '[T]he use of bicycles is prohibited except on park roads, in parking areas and on routes designated for bicycle use...," wrote Buono. He added that while park superintendents were given the authority to designate additional routes for bicycles, they would have to go through a rulemaking process to adopt a special regulation for that expansion.

While the Park Service in 2012 "significantly weakened the 1987 regulatory requirements for allowing bicycles on backcountry trails" by giving park managers the power to "designate any existing trail in park backcountry as open to bicycle use by a process of designation in 36 CFR 1.5, and public notification in 36 CFR 1.7," Buono notes that the regulations nevertheless pertain only to muscle-powered bikes, not motorized bikes.

"Thus, 'e-bicycles' are not 'bicycles' under existing regulations. The regulatory definition of 'bicycle' has not been and, indeed, cannot be, repealed or revised by a Secretarial Order or NPS policy," he said. "Such a revision, under the Administrative Procedures Act, requires that the Secretary propose and adopt in final a regulatory revision to 36 CFR 1.4.   Despite the Secretarial Order, trails in the backcountry, whether designated as open to bicycle use under a  Part 7 special regulation or under the process of 36 CFR 1.5 and 1.7 remain closed to e-bikes throughout the National Park System.

"The Secretary's Order recognizes this and directs the NPS to revise 36 CFR 1.4. Until such a revised rule is adopted in final, no park may allow e-bikes on backcountry trails or areas outside of developed zones," Buono concluded.

If that process is followed, there are a number of parks where existing trails could be opened to eBike users, said Buono.

* Saguaro National Park – Cactus Forest Trail, inside of the Cactus Forest Loop Drive;

* Mammoth Cave National Park – 17 miles of trail (2012). The NPS allowed bicycles on trails in Mammoth Cave beginning in 1999 contrary to NPS regulations at 36 CFR 4.30, based on a euphemism of  “an experimental basis,” said Buono. Thirteen years later the park adopted a special rule to allow use of, and construct new, trails for bicycles outside of developed areas;

* Chattahoochee River National Recreation Area – 9 miles of trail (2013);

* Golden Gate National Recreation Area – Routes not specified in special regulation but as “designated by the Superintendent” (1992). The designated routes open to bicycles extend for hundreds of miles in the Recreation Area and one small section in Muir Woods National Monument.

Buono also broke out "a partial list of the parks that have designated trails in undeveloped areas as open to bicycle use under the current (2012) method of designation and notice via 36 CFR 1.5 and 1.7. The list is partial because there is no central location for all of the parks in this category." These trails would be opened to e-bikes if Secretary Bernhardt succeeds in revising 36 CFR 1.4, he said. "Alternatively, these parks could preclude e-bikes by removing the backcountry trails from designation under 36 CFR 1.5 and 1.7 (which is done annually) as being open to traditional bicycles."

* Big South Fork National River and Recreation Area (KY/TN)

* Cuyahoga River National Park (OH)

* Delaware Water Gap National Recreation Area (NJ/PA)

* Point Reyes National Seashore (CA)

* Redwood National Park (CA)

* Santa Monica Mountains National Recreation Area (CA)

* Whiskeytown National Recreation Area (CA)

While Congress in 2009 authorized the construction of a trail on the east side of Grand Lake in Rocky Mountain National Park that is open to bicycles, it would not be open to eBikes because the legislation specifically stated the trail would be open to "non-motorized bicycles."

"This may be the only example of an explicit statutory authorization for bicycle use in an area of the National Park System," said Buono. "The Secretarial Order cannot permit e-bikes on this trail."