[Federal Register Volume 62, Number 230 (Monday, December 1, 1997)]
[Proposed Rules]
[Pages 63488-63502]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-31262]


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DEPARTMENT OF THE INTERIOR

National Park Service

36 CFR Parts 1 and 14

RIN 1024-AC01


General Provisions and Rights-of-Way

AGENCY: National Park Service, Interior.

ACTION: Proposed rule.

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SUMMARY: This proposed rule revises existing regulations relating to 
the issuance of right-of-way permits across National Park Service (NPS) 
lands. The NPS has been using interim regulations since 1980. Those 
interim regulations have become dated and are in need of revision. This 
rulemaking is a complete revision of the interim regulations. It will 
provide a process for the review, consideration and approval, or 
denial, of requests for rights-of-way across all areas of the National 
Park System.

DATES: Written comments will be accepted through January 30, 1998.

ADDRESSES: Mail comments to the National Park Service, Ranger 
Activities Division, MS 650 (ROW), P.O. Box 37127, Washington, D.C. 
20013-7127.

FOR FURTHER INFORMATION CONTACT: Dick S. Young, Colonial National 
Historical Park, P.O. Box 210, Yorktown, VA 23690. Telephone (804) 898-
7846.

[[Page 63489]]

SUPPLEMENTARY INFORMATION:

Background

    The NPS is proposing to revise the existing regulations relating to 
the issuance of right-of-way permits across NPS lands found at 36 CFR 
14. The NPS is currently using interim rules that were published in the 
Federal Register on July 11, 1980 (45 FR 47092) to allow 
telecommunication and other utility rights-of-way across NPS lands. 
Prior to that date, rights-of-ways across public lands, including areas 
of the National Park System, were administered under regulations 
promulgated by the Bureau of Land Management (BLM), found at 43 CFR 
part 2800. The passage, in 1976, of the Federal Land Policy and 
Management Act (43 U.S.C. 1761 et seq., 90 Stat. 2743) required the 
revision of those regulations by the BLM. Regulations promulgated by 
the BLM in 1980 (45 FR 44518) deleted all references to the NPS.
    In response, the NPS adopted, without substantive revision, those 
provisions found at 43 CFR part 2800 that applied to areas under the 
management and control of the NPS. These were promulgated as interim 
regulations on July 11, 1980 (45 FR 47092). This proposed regulation is 
the first revision of those interim regulations.
    The period between 1980 and 1996 has seen many legislative and 
policy changes regarding right-of-way management. New language in the 
annual budget legislation, now codified at 16 U.S.C. 3a, has altered 
the way the NPS looks at fees and the recovery of costs. The 
intervening years have also allowed the NPS to accumulate experience 
with rights-of-way and other permitting instruments. While the interim 
regulations were satisfactory for parts of the process, there are many 
gaps and several deficiencies and inequities, all demanding the 
promulgation of new regulations. The regulations contained in this 
proposed rulemaking will correct the inefficiencies and provide 
necessary changes.

Key Issues

    The NPS is proposing to update and revise right-of-way regulations 
that will provide a uniform process for the review, consideration and 
approval or denial of requests for rights-of-way across all areas of 
the National Park System. These regulations will establish procedures 
for the permitting of rights-of-way that are authorized at the 
discretion of the Secretary of the Interior and for rights-of-way 
authorized by individual park legislation. The regulations do not apply 
to those uses that are subject to or arise from property rights, such 
as easements.
    These proposed regulations ensure compliance with the right-of-way 
authorities found in 16 U.S.C. 5, 79 and 23 U.S.C. 317. They reflect 
the Congressional mandate that activities inconsistent with national 
park values and purposes will not be authorized in areas of the 
National Park System, ``except as may have been or shall be directly 
and specifically provided by Congress.'' See section 101(b) of the Act 
of March 27, 1978 (16 U.S.C. 1a-1, 92 Stat. 166). They also ensure 
compliance with applicable provisions of the National Historic 
Preservation Act of 1966 (16 U.S.C. 470 et seq.) and the National 
Environmental Policy Act of 1969 (43 U.S.C. 4321-4370).
    These proposed regulations do not grant an interest greater than a 
permit revocable at the discretion of the Authorized Officer. The 
interim regulations state that the regulations do not give the holder 
any estate of any kind in fee in the lands of the United States. 
However, confusion over the nature of the privilege permitted by the 
regulations has arisen by the use of regulatory language normally 
associated with the transfer of property rights, terms such as 
``grant'', ``easement'' and ``license.'' These proposed regulations 
clarify that the permit issued by the NPS will not be construed as a 
grant of permanent interest in the real property of the United States.
    In granting the discretionary uses the NPS, as an agency of the 
Federal government, must also follow the directive of Congress to 
recover all costs associated with providing benefits or services not 
accruing to the public at large (31 U.S.C. 9701). Accordingly, the fees 
authorized by the regulations have been adjusted to be comparable with 
prevailing industry standards and to better reflect the actual costs 
incurred by the NPS in issuing permits.
    Rights-of-way for highways are part of the Federal Aid Highway 
System. Section 107(d) of Title 23 provides for transfer of lands or 
interest in lands to appropriate jurisdictions. Requests for such 
transfer of interest are subject to the provisions of 23 U.S.C. 317. 
The NPS and the Federal Highway Administration (FHA) have determined 
that such transfer should be accomplished through a highway easement 
deed. Highway easement deeds provide for reversion to the NPS of lands 
or interest in lands when such use is no longer required for highway 
purposes.

Section-by-Section Analysis

    As currently codified in Title 36, part 14 consists of six 
subparts, labeled A-F. These proposed regulations revise and reorganize 
these subparts. A detailed discussion of these proposed revisions is 
presented below.

Subpart A--Right-of-Way Permits--General

Section 14.1  Purpose
    This is a new section to clarify the purpose of the regulations of 
this part. It emphasizes that an applicant for a right-of-way permit 
must demonstrate that there is no feasible and prudent alternative to 
the proposed right-of-way. Also, the NPS will only permit those uses 
that will not be in derogation of the values and purposes for which the 
various areas have been established, except as may have been or will be 
directly and specifically provided by Congress.
Section 14.2  Applicability and Scope
    This section replaces existing Sec. 14.1, and addresses the 
following main topics as follows:
    1. Park lands and waters subject to regulations. Proposed paragraph 
(a) will require a permit for rights-of-way over Federally owned lands 
and waters within the exterior boundaries of park areas. The authority 
to permit rights-of-way on lands and waters within the boundaries of a 
unit is provided for in the general legislation governing the 
management and preservation of the National Park System. (See 16 U.S.C. 
1-3)
    2. Regulations do not apply to NPS owned or operated rights-of-way. 
Proposed paragraph (b) clarifies that the regulations of this part do 
not apply to rights-of-way owned, controlled or operated by the NPS.
    3. Requirements for no alternatives, derogation and statutory 
standards. Proposed paragraph (c) clarifies this part as applying only 
to those permits where there is no prudent or feasible alternate route 
outside the park, that the use will not be in derogation of park 
resources and values, and all applicable statutory standards are met.
    4. Regulations of oil and gas pipelines. Proposed paragraph (d) 
clarifies that operations in connection with the exploration, 
development, production and transportation of non-Federal oil and gas 
within park units must continue to comply with regulations at 36 CFR 
part 9, Subpart B. Such activities, including transportation, do not 
invoke the 36 CFR part 14 regulations. This is due to the fact that 
owners of the non-Federal

[[Page 63490]]

oil and gas possess a vested property right interest that can only be 
extinguished through acquisition. Paragraph (d) also clarifies that the 
construction, operation and maintenance of new and existing petroleum 
product pipelines in park units that originate and terminate outside 
such units will comply with the requirements of 36 CFR part 9, Subpart 
B. If authorized by a park unit's enabling statute or other authority, 
a right-of-way permit may be issued following the procedures in the 36 
CFR part 14 regulations.
    5. Proposed paragraph (e) clarifies that applicants for access to 
Federal and non-Federal minerals and leases outside park boundaries 
must continue to comply with regulations at 36 CFR part 9.
    6. Prohibitions of rights-of-way in wilderness areas. Proposed 
paragraph (f) clarifies that no rights-of-way will be permitted within 
NPS areas proposed for or designated as wilderness under the Wilderness 
Act of September 3, 1964 (78 Stat 890; 16 U.S.C. 1131-1136).
    7. Regulations in NPS units in Alaska. Proposed paragraph (g) 
clarifies that applications for transportation and utility system 
corridors in Alaska, pursuant to Title 11 of the Alaska National 
Interest Lands Conservation Act of 1980 (ANILCA; 16 U.S.C. 3101 et 
seq.) must meet the requirements of regulations at 43 CFR part 36.
    8. Approval of the Regional Director. Proposed paragraph (h) 
clarifies that new applications for rights-of-way over, under or 
through the lands and waters subject to NPS regulations must be 
submitted to the Authorized Officer and approved by the appropriate 
Regional Director of the NPS or a designee.
Section 14.3  Definitions
    This section replaces existing Sec. 14.2. The NPS proposes new 
definitions to clarify existing or proposed procedures within these 
regulations. Specific changes to existing definitions or definitions 
for newly proposed terms are discussed in detail below.
    The NPS proposes to add a definition for applicant, to include any 
qualified individual, partnership, corporation, association or other 
business entity, and any Federal, State or local governmental entity 
including municipal corporations, submitting an application under this 
part.
    A new definition of construction is added to include all temporary 
or permanent work done under the authority of a right-of-way permit 
from initiation until completion of the necessary activities to 
establish the use for which the permit is issued.
    The NPS proposes to change the context of the phrase right-of-way 
by changing the definition to mean the Federally owned land authorized 
to be used or occupied under a right-of-way permit.
    The new term right-of-way permit is defined as an authorizing 
document that, without conveying any title interest, provides 
permission to occupy and use Federal lands and waters within the NPS 
boundary under certain terms and conditions and for specified purposes 
that is revocable, terminable and unassignable.
    Proposed for deletion from this part is the definition of 
Secretary, Director, Regional Director, Superintendent and Park, all of 
which are defined at Sec. 1.4. Also proposed for deletion is Project, 
presently defined at Sec. 14.2(f).
Section 14.4  Information Collection
    This new section has been included to comply with the Paperwork 
Reduction Act of 1995.
    The information collection requirements contained in Sec. 14.21 of 
this section have been approved by the Office of Management and Budget 
under 44 U.S.C. 3507, et seq., and assigned approval number 1004-0060. 
The information being collected is necessary to enable the 
Superintendent to issue right-of-way permits. The public is being asked 
to provide this information in order for the park to determine whether 
a permit should be issued, to track the number of permits issued and to 
whom they are issued. These permits are required by 16 U.S.C. 5 and 79, 
and by 23 U.S.C. 317.

Subpart B--Terms and Conditions of Right-of-Way Permit

    This Subpart replaces existing Subpart B, ``Nature of Interest.''
Section 14.10  Purpose
    This Subpart describes the nature and limitations of the 
nonexclusive right-of-way permit to be granted.
Section 14.11  Nature of Right-of-Way Permit
    This section replaces and expands existing Sec. 14.6. Paragraph (a) 
emphasizes that the right-of-way permit does not grant a permanent 
interest in the premises nor should it be deemed as an abandonment by 
the United States. Further, the section clarifies the point that the 
permittee does not gain any estate in fee in the lands or any right 
whatever to take from Service lands any mineral, consolidated material, 
earth, stone or wood for construction or other purposes not 
specifically authorized. In addition, the terms ``easement'' and 
``license'' have been removed here and throughout this part to avoid 
confusion.
    Paragraph (b) has been added clarifying that an approved right-of-
way permit will be limited to the specific use described in the permit 
and will not be construed to include the right of the permittee to 
authorize any other use within the right-of-way unless authorized in 
writing by the Authorized Officer. Furthermore, right-of-way permits 
may not be transferred or assigned to other parties without written 
permission from the Authorized Officer.
    Paragraph (c) has been added to allow that additional right-of-way 
permits may be issued by the NPS within previously permitted rights-of-
way. The holders of such permits do not have the right to impose 
charges for additional users of such rights-of-way.
    Paragraphs (d) and (e) describes the maximum widths and expiration 
dates for right-of-way permits.
Section 14.12  Unauthorized Occupancy
    This section replaces existing Sec. 14.8. The text has been 
modified for clarification and simplification. Occupying or using 
Federal lands within a park area for constructing, maintaining, 
operating or removing any utility, highway or other facility, except 
where specifically authorized by permit according to this part, is 
prohibited and subject to the penalties established in Sec. 1.3. By 
making Sec. 14.12 subject to the penalties found at 36 CFR 1.3, 
Sec. 1.3 will be amended to add part 14.
Section 14.13  Terms and Conditions
    This section replaces and significantly reorganizes existing 
Sec. 14.9. References to waiving requirements are deleted. The NPS 
proposes the addition and deletion of terms and conditions for clarity 
and resource protection purposes. These revisions are broadly 
summarized in the following chart:

                                                                        
      Existing Old Section, 36 CFR         Proposed New Section, 36 CFR 
                                                                        
Sec.  14.9(b),(c),(e) & (i)               Sec.  14.15                   
(d)                                       Sec.  14.13(a)(9)             
(f)                                       Sec.  14.13(c)(d)(e)          
(g)                                       Partly deleted, & Sec.        
                                           14.13(c)                     
(h)                                       Sec.  14.13(a)(5)             
(j)                                       Deleted                       
(k)                                       Sec.  14.13(a)(10)            
(l)                                       Sec.  14.11; Sec.  14.27      
(m)                                       Sec.  14.13(i)                
                                                                        

    Paragraph (a) provides that right-of-way permits are subject to 
such relevant terms, conditions and additional special stipulations as 
may be required by the Authorized Officer. New subparagraphs 1 to 14 
further specify the types of

[[Page 63491]]

requirements to be addressed in the terms and conditions of right-of-
way permits, allow the Authorized Officer or a designee to enter and 
inspect the property and require reimbursement of costs and payment of 
all fees.
    Paragraph (a) reinforces the requirement to comply with State and 
Federal requirements for public health and safety, environmental 
protection and siting, construction, operation and maintenance. When 
State standards are more stringent than the Federal standards, the 
State standards must be met. To protect archeological, paleontological 
and historical resources, a requirement is added that activities must 
be stopped and the Superintendent immediately notified upon discovery 
of such resources. All artifacts unearthed or discovered are the 
property of the United States and will be accessioned by the NPS 
according to the standards of the automated National Catalog System 
before relinquishing them to the United States.
    Paragraph (a) also requires compliance with the specifications 
pertaining to restoration and rehabilitation of resources as listed in 
proposed Sec. 14.15. The requirement is added to notify the Authorized 
Officer in writing not less than 10 working days prior to the start of 
construction, maintenance or repair on park lands. All work on park 
lands will be completed in accordance with the terms of the permit, as 
determined by the Authorized Officer or his representative.
    New paragraph (b) establishes that a bond or other security may be 
required by the Authorized Officer.
    Proposed paragraph (c) replaces in part existing paragraph (f) and 
requires the permittee to notify and compensate the United States for 
all damages caused to Federal lands or resources by the permittee. It 
also requires compensation by the permittee for injury, loss or damage 
arising from the occupancy or use of lands under the permit, including 
costs of fire suppression or clean up of petroleum or other product 
spills.
    Paragraph (d) expands on existing paragraph (f) in a savings clause 
to hold the United States free from all liabilities and claims for 
damages.
    New paragraph (e) requires the Authorized Officer to include a 
strict liability condition in new permits and specify maximum 
limitation on liability commensurate with the foreseeable risk or 
hazard associated with the use.
    New paragraph (f) makes State and local governments liable to the 
extent of their laws, or to require at a minimum the repair of any 
damages or restitution in full.
    New paragraph (g) deals with hazardous materials and toxic 
substances by restricting the use, generation or storage on the right-
of-way; requires additional approval before any such use, generation or 
storage; requires immediate reporting of any leak, spill or release of 
such substances; requires the applicant to produce and submit to the 
Authorized Officer a completed emergency action plan.
    New paragraph (h) replaces and revises existing paragraph (m) to 
indicate the authority of the United States to modify or discontinue 
any permit if it conflicts with authorized use and occupancy of lands 
under the management authority of the United States.
    New paragraph (i) excludes members of or delegates to Congress or 
Resident Commissioners to any share or part of a right-of-way permit 
issued under this part.
    New paragraph (j) states that failure to comply with the 
requirements of the permit may lead to its cancellation.
Section 14.14  Additional Terms and Conditions Specific to Electrical 
Transmission and Communication Lines
    This is a new section that revises, simplifies and replaces 
existing Subpart E--Power Transmission Lines, General; Subpart F--
Principles and Procedures, Power Transmission Lines; Subpart G--Radio 
and Television Sites; and Subpart H--Telephone and Telegraph Lines. 
Some of these terms and conditions have been moved to the general terms 
and conditions section at Sec. 14.13. Other sections have been deleted 
because they are no longer applicable.
    It is felt that Sec. 14.13 adequately addresses the criteria that 
should be applied to any right-of-way permit, regardless of type. The 
authority for electrical and communication rights-of-way is the same as 
for other rights-of-way. Existing subparts E through H are repetitive 
and, except for the few specifics in this new Sec. 14.14 applicable to 
communication and power lines, have been deleted.
Section 14.15  Rehabilitation and Revegetation Requirements
    This new section consolidates existing requirements and establishes 
new requirements for the rehabilitation and revegetation of rights-of-
way during various stages of construction, operation, maintenance and 
termination. Existing Sec. 14.9 (b),(c),(e) and (i) are incorporated in 
this new section.
    The rehabilitation and revegetation work must be conducted 
according to adopted NPS policies, guidelines, park standards and 
applicable vegetation management plans. The permit will be conditioned 
to require restoration, revegetation and curtailment of erosion of the 
surface of the land during construction and completion of construction. 
The permit will also be conditioned to minimize damage and aesthetic 
values and fish and wildlife habitat and otherwise protect the 
environment. Further, this section places restrictions on the cutting 
of vegetation and requires reimbursement to the park of market value 
for trees cut.
    At the termination and rehabilitation stage of the proposed use, 
the permittee is required to participate in a pretermination conference 
with the Authorized Officer. Rehabilitation activities must restore 
natural resources to their pre-disturbance condition to the 
satisfaction of the Authorized Officer. The Authorized Officer may 
require rehabilitation and revegetation of the right-of-way to other 
than the original condition in previously disturbed areas if consistent 
with the management zones and park purposes prescribed in the park's 
enabling legislation and General Management Plan. If agreement cannot 
be reached between the Authorized Office and the permittee, the 
permittee may appeal the decision of the Authorized Officer following 
procedures found in Sec. 14.31.
    A bond, which is a permit requirement, will not be returned to the 
permittee until the Authorized Officer conducts a final inspection to 
determine that all work has been satisfactorily completed and that the 
revegetation of the site is properly established and self-generating. 
Failure to do so may result in forfeiture of all or part of the bond. 
The bond in this instance may be utilized to rehabilitate the site. The 
bond will never be deposited to the U.S. Treasury as miscellaneous 
receipts.

Subpart C--Procedures

Section 14.20  Preapplication
    This section is renamed Preapplication. Information is given 
regarding the steps to be followed when seeking a right-of-way over, 
across or through lands and waters within the boundary of an area of 
the National Park System. The purpose of this section is to make the 
proponent aware of the application procedures and probable time 
requirements, clearances, other permits and licenses required for the 
use, environmental and management concerns, cost reimbursement, fees 
and bonding requirements, and special conditions applicable to the 
area.

[[Page 63492]]

Section 14.21  Application Filing
    This section revises and expands existing 36 CFR 14.21 and includes 
existing 36 CFR 14.24, 14.25 and 14.28. Paragraph (a) indicates that 
the application is to be filed with the Authorized Officer and lists 
the basic information needed for evaluating the application. The 
information requested in subparagraphs 1 through 9 is needed in order 
for the Authorized Officer to determine the impacts of the proposed 
activity on park resources and to insure that the activity would not 
conflict with any Federal or State law.
    Paragraph (b) requires applicants for rights-of-way to demonstrate 
their legally recognized right to utilize, transport, store or convey 
water.
    Paragraph (c) replaces existing 36 CFR 14.25(a) regarding map and 
document requirements to accompany a right-of-way application.
Section 14.22  Timely Construction, Nonconstruction and Nonuse.
    This section revises existing 36 CFR 14.29. The major revision 
places the emphasis on initiating work within two years instead of 
completing work within two years. Proof of construction completion is 
still required, with certain extensions possible. Completion of 
construction dates will be stipulated in the permit.
Section 14.23  Deviation From Approved Right-of-Way
    This section replaces existing 36 CFR 14.31, and provides that no 
deviation from the approved right-of-way can be initiated by the 
permittee without approval from the Authorized Officer.
Section 14.24  Immediate Suspension of Activities.
    This new section provides the Authorized Officer with the authority 
to issue immediately a temporary suspension of activities order within 
a permitted right-of-way to protect park resources, public health or 
safety or the environment. This may be done without an administrative 
hearing and may be conducted orally. The suspension order may be issued 
to the permittee or a contractor or subcontractor, or to any 
representative, agent or employee of the permittee. Activity must be 
suspended at once upon the issuance of such an order.
    The order will remain in effect until it is lifted by the 
Authorized Officer in writing. By written request, the permittee may 
request that the suspension be lifted, providing reasons for the 
request. The Authorized Officer will act upon the permittee's request 
within five working days of the date the request is filed.
Section 14.25  Cancellation of Permit
    This section replaces and revises existing 36 CFR 14.32 and 14.33. 
It addresses the causes that may result in the cancellation of a 
permit, rather than the temporary suspension of Sec. 14.24. These 
include failing to comply with applicable laws and regulations, terms, 
conditions or stipulations of the permit; or abandoning the right-of-
way as described in proposed Sec. 14.22(b).
    Before revoking a right-of-way permit pursuant to this section, the 
Authorized Officer will give the permittee written notice that such 
action is being contemplated and the reasons therefore and will allow 
the permittee an opportunity to comply with the terms of the permit.
Section 14.26  Disposition of Personal Property and Improvements Upon 
Termination of Rights-of-Way.
    This section revises and replaces existing Sec. 14.38. All 
references to monies due the United States and references to six-month 
limitations for removing property and improvements are deleted. The 
permittee is now provided with a reasonable amount of time for removal 
activities after termination, revocation or cancellation of a right-of-
way permit. This section also reaffirms the responsibility of the 
permittee to restore the site to a condition satisfactory to the 
Authorized Officer. Further, if the permittee fails to remove such 
improvements or personal property within a reasonable time, as 
determined by the Authorized Officer, the improvements and personal 
property will become the property of the United States. However, the 
permittee will remain liable for all costs of removal of the 
improvements of personal property and for rehabilitation and 
revegetation of the right-of-way.
Section 14.27  Amendments
    This section clarifies that a right-of-way permit may be amended 
any time by making a written request. If the amendment is approved, the 
Authorized Officer may modify the terms, conditions, land use fees and 
charges, and special stipulations to reflect subsequent conditions, 
requirements or changes in market value.
Section 14.28  Renewal of Right-of-Way Permits
    This section clarifies that a right-of-way permit may be renewed if 
authorized by law, if it is being used for authorized purposes and if 
it is consistent with the provisions of this part. In making such a 
renewal, the Authorized Officer may modify the terms, conditions, land 
use fees and charges, and special stipulations, to reflect any 
subsequent conditions, requirements or changes in the market values 
imposed by Federal and State laws, regulations, and other management 
plans or land uses.
Section 14.29  Change in Administrative Jurisdiction Over Lands
    This section revises existing 36 CFR 14.34. It clarifies that the 
NPS will not cancel an existing right-of-way permit on Federal lands 
transferred from the jurisdiction of another Federal agency to the 
jurisdiction of the NPS; provided, however, that the use does not 
change from that permitted at the time of the issuance of the original 
permit.
    If a right-of-way permit transferred from another Federal agency to 
the jurisdiction of the NPS expires, and if the NPS has decided to 
renew the right-of-way, it must be renewed in accordance with these 
regulations. The permittee may make a new application for such 
authorized use as described in this part.
Section 14.30  Transfer of Right-of-Way Permit
    This section replaces existing 36 CFR 14.35, 14.36 and 14.37. Any 
proposed transfer to another party of any right-of-way permit must be 
filed in accordance with Sec. 14.21. Further, no transfer will be 
recognized and no further construction or uses permitted, unless and 
until the transfer is first approved by the Authorized Officer. The 
transferee must agree to comply with and to be bound by the terms and 
conditions of the right-of-way permit. All applications for transfer 
approval must be accompanied by an application fee in accordance with 
Sec. 14.42(a) and an administrative processing fee in accordance with 
Sec. 14.42(b).
Section 14.31  Appeal
    This is a new section explaining the requirements and process 
associated with appeals.

Subpart D--Fees and Charges

Section 14.40  Purpose
    All references to fees and charges are consolidated under this new 
Subpart. It places all information regarding fees together in a single, 
prominent location rather than being scattered throughout the text of 
the regulations. The numbering sequence and section names are changed 
from the existing regulations. There are two basic purposes for the 
four fees and payments delineated in this section. The fees

[[Page 63493]]

identified in paragraphs (a), (b) and (c) provide for the reimbursement 
of costs incurred by the United States in issuing the permit and 
monitoring the operation of the right-of-way. Paragraph (d) requires a 
fee, equal to fair market value, for use and occupancy of NPS lands.
    The linear and nonlinear fee schedules for reimbursement of costs 
and monitoring of costs found in existing 36 CFR 14.22 are deleted.
Section 14.41  Exemptions
    All references to exemptions from fees are consolidated in this 
subsection. Exemptions apply:
    (a) To Federal agencies or where the use is for the sole and 
exclusive use and benefit of the NPS;
    (b) To use and occupancy fees only, to State and local governments 
or agencies or instrumentalities thereof where the use is for 
governmental purposes (consistent with OMB Circular A-25) and for 
electric or telephone facilities financed pursuant to the Rural 
Electrification Act of 1936 (7 U.S.C. 31). The proposed rule revises 
existing 36 CFR 14.22 by now requiring reimbursement of costs from 
these entities.
    (c) To situations where the use of Federal lands is needed for 
highway purposes under 23 U.S.C. 317;
    (d) When Federal law prohibits such fees.
Section 14.42 Reimbursement of Costs
    This section reorganizes and replaces existing Sec. 14.22 and 
retains its title. The reorganization is summarized in the following 
chart:

                                                                        
      Existing Old Section, 36 CFR         Proposed New Section, 36 CFR 
                                                                        
14.22(a)(1)                               14.42(b)(1)                   
14.22(a)(2)                               14.41                         
14.22(a)(3)                               14.42(a)                      
14.22(a)(4)                               14.42(b)(2)                   
14.22(a)(5)                               14.42(b)(3)                   
14.22(a)(6)                               14.42(b)(5)                   
14.22(a)(7)                               14.42(b)(4)                   
14.22(a)(8)                               14.42(b)(6)                   
14.22(a)(9)                               Deleted                       
14.22(a)(10)                              14.42(b)(7)                   
14.22(a)(11)                              14.42(b)(8)                   
14.22(a)(12)                              14.13                         
14.22(a)(13)                              14.42(b)(9)                   
14.22(a)(14)                              14.42(b)(10)                  
14.22(a)(15)                              Deleted                       
14.22(b)(1)-(4)                           14.42(c)(1),(2)               
                                                                        

    Paragraph (a) establishes a one-time non-refundable application 
payment of $100 rather than a variable payment based on mileage as in 
existing 36 CFR 14.22.
    Paragraph (b)(1) revises existing Sec. 14.22(a)(1) to add 
additional requirements that must be complied with by the NPS and makes 
the applicant responsible for costs associated with such compliance.
    Paragraph (b)(2) establishes procedures for estimating costs and 
payment procedures. A clarification is made that the ``processing 
payment'' is based on an estimate of cost. It may be required in 
advance and later refunded or adjusted, based on an accounting of 
actual costs.
    Paragraph (b)(3) requires applicants to pay additional amounts if 
estimated costs to the United States are exceeded.
    Paragraphs (b)(4), (5) and (6) address costs to be borne by the 
applicant upon withdrawal of an application before completion of the 
approval process or upon permit denial. Any costs paid to the United 
States that exceed actual costs will be refunded by the Authorized 
Officer or future billings will be credited.
    Paragraph (b)(7) requires all applicants for a permit determined by 
the Authorized Officer to be in competition with each other to 
reimburse the United States according to this section, except that 
costs not readily attributable to only one applicant will be borne by 
all applicants equally.
    Paragraph (b)(8) allows the Authorized Officer to require security 
for costs in the section.
    Paragraph (b)(9) requires that each party in a joint application 
for a permit be jointly and severally liable for costs under this 
section.
    When more than one noncompeting application is received for a 
right-of-way permit found by the Authorized Officer to be for a common 
right-of-way system, paragraph (b)(10) makes each applicant jointly 
liable for costs according to this section.
    New paragraph (c) addresses fees for inspection and monitoring, 
replacing existing 36 CFR 14.22(b)(1)-(b)(4). As mentioned above for 
proposed Sec. 14.40, the linear and nonlinear fee schedules for 
reimbursement of costs and monitoring of costs in existing 36 CFR 14.22 
are proposed for deletion. It has been found that often the tables 
caused an automatic charging of the minimums expressed in the tables 
without a thorough analysis of true expenditures of Government funds. 
Therefore, this paragraph requires the reimbursement of all costs 
incurred by the NPS or its agents in the processing and monitoring of a 
right-of-way permit. This change simplifies the discussion of 
monitoring and inspection fees.
Section 14.43 Fee for Use and Occupancy
    This section revises existing 36 CFR 14.26 by stating the method 
for calculation of the charge for use and occupancy will be the fair 
market value, including but not limited to an appraisal. This section 
also amends the requirement for payment by stating that in situations 
where a lump sum payment is required by the Authorized Officer, the 
full sum must be submitted within 60 days of the issuance of the 
permit.
    Fees for use and occupancy will be paid beyond termination or 
cancellation of the permit until equipment removal and site 
rehabilitation are completed in accordance to Subpart B.
    The minimum charge policy for use and occupancy of lands and waters 
is also amended to be not less than $100 per year for any right-of-way 
permit issued.
    Paragraph (e) revises existing 36 CFR 14.26(d) to clarify that if a 
charge required by this section is not paid when due, and such default 
will continue for 60 days after notice, action may be taken to cancel 
the permit. After default has occurred, any structures or personal 
property will be considered abandoned.
    Paragraph (f) provides for the review of and adjustment of charges 
at intervals not less than five years.

Subpart E--Highway Easement Deeds

    This Subpart replaces existing part 14, Subpart D--Under Title 23, 
U.S.C. (Interstate and Defense Highway System). The title has been 
simplified to better describe the subject covered and to reinforce that 
rights-of-way interest for highways is conveyed through highway 
easement deeds.
Section 14.50 Rights-of-Way for Highway Purposes
    This section revises and replaces existing 36 CFR 14.50. Paragraph 
(a) clarifies that right-of-way requests for highways over lands or 
interests in lands under the jurisdiction of the NPS may only be 
considered if the Secretary of Transportation, acting under the 
provisions of 23 U.S.C. 138, determines that there is no feasible and 
prudent alternative to the use of such land, and that any action will 
include all possible planning to minimize adverse impacts to NPS lands 
and resources.
    Paragraph (b) sets up the procedures to be followed between the 
Secretary of Transportation and the Secretary of the Interior if the 
Secretary of Transportation determines that there is no feasible and 
prudent alternative for the use, and either no adverse impacts will 
occur, or such adverse impacts that might occur have been planned for. 
The Secretary of the Interior has four months to approve any deeded 
interest transfer.
    Paragraph (c) outlines what the Secretary of Transportation will 
then do

[[Page 63494]]

when both Secretaries for Transportation and Interior agree on the 
request. When both Secretaries approve the request, the Secretary of 
Transportation will make the arrangements necessary to convey to the 
State or other person requesting such use, adequate rights-of-way and 
control of access thereto. The right-of-way interest will be conveyed 
through a highway easement deed.
    The Secretary of the Interior does not possess the authority to 
issue rights-of-way for roads in parks under 36 CFR part 5 or 79. The 
only authority for granting such rights-of-way for roads is at 23 
U.S.C. 317. Under 23 U.S.C. 317 authority, rights-of-way may be granted 
for highway purposes only for Federal aid primary or Federal aid 
secondary road networks, and for the Interstate and Defense Highway 
Systems.
    Section (c) also deletes existing 36 CFR 14.50(b)(2) and 14.51 
regarding no intent to vest in a State a right of appropriation of an 
interest in land, contrary to the discretion of the Secretary.
Section 14.51 Additional Rights-of-Way within Highway Rights-of-Way
    This section revises existing 36 CFR 14.59, requiring a separate 
permit for any additional rights-of-way to be authorized within the 
same right-of-way, but not for highway purposes. Any relocation or 
change of any additional right-of-way made necessary by the highway 
will be accomplished at no expense to the United States.
Section 14.52 Termination of Highway Use
    This section revises existing 36 CFR 14.52. When the lands are no 
longer needed, the control of the lands will revert to the NPS. Upon 
notification, the Secretary of the Interior will immediately notify the 
Secretary of Transportation and take the necessary action to revoke and 
abandon the highway easement deed and revest the NPS with clear and 
exclusive title of the unencumbered land.

Subpart F--[Reserved]

    This Subpart is reserved for future terms and conditions governing 
the operation of valid R.S. 2477 highways across NPS areas.

Organizational Summary

    The NPS has prepared the following organizational summary and 
distribution table to assist in the location and analysis of the 
proposed revisions to 36 CFR part 14:

Numbering

                                                                        
      Existing Old Section, 36 CFR         Proposed New Section, 36 CFR 
                                                                        
14.1                                      14.2                          
14.2                                      14.3                          
14.5                                      Deleted                       
14.6                                      14.11                         
14.7                                      Deleted                       
14.8                                      14.13                         
14.9                                      14.13, 14.15, 14.27           
14.10                                     14.2                          
14.20                                     14.20                         
14.21                                     14.21                         
14.22                                     14.41, 14.42                  
14.23                                     Deleted                       
14.24                                     14.21                         
14.25                                     14.21                         
14.26                                     14.40, 14.43                  
14.27                                     Deleted                       
14.28                                     14.21                         
14.29                                     14.22                         
14.30                                     14.22                         
14.31                                     14.23                         
14.32                                     Deleted                       
14.33                                     14.25                         
14.34                                     14.30                         
14.35                                     14.31                         
14.36                                     14.31                         
14.37                                     14.31                         
14.38                                     14.27                         
14.50                                     14.50                         
14.51                                     Deleted                       
14.52                                     14.52                         
14.53                                     Deleted                       
14.54                                     Deleted                       
14.55                                     Deleted                       
14.56                                     Deleted                       
14.57                                     Deleted                       
14.58                                     14.14                         
14.59                                     14.51                         
14.60                                     Deleted                       
14.61                                     Deleted                       
14.70                                     Deleted                       
14.71                                     Deleted                       
14.75                                     Deleted                       
14.76                                     14.15                         
14.77                                     Deleted                       
14.78                                     Deleted                       
14.90                                     Deleted                       
14.91                                     Deleted                       
14.95                                     Deleted                       
14.96                                     Deleted                       
                                                                        
              New Sections                                              
                                                                        
14.1                                                                    
14.4                                                                    
14.10                                                                   
14.15                                                                   
14.24                                                                   
14.28                                                                   
14.29                                                                   
14.40                                                                   
14.42                                                                   
                                                                        

    Drafting Information: The primary authors of this proposed rule are 
Pat Bentley, Northeast Region, NPS, Philadelphia, PA; Jenness Coffey, 
Division of Wildlife and Vegetation, Washington, D.C.; Tony Sisto, 
Superintendent, Fort Vancouver, WA; Rick Wagner, Columbia Cascades Land 
Resources Program Office, Seattle, WA; Dick Young, Special Park Use 
Coordinator, Colonial National Historical Park, VA; and Dennis Burnett, 
Washington Office of Ranger Activities, National Park Service.

Public Participation

    It is the policy of the Department of the Interior, whenever 
practicable, to afford the public an opportunity to participate in the 
rulemaking process. Accordingly, interested persons may submit written 
comments regarding this proposed rule to the address noted at the 
beginning of this rulemaking. The NPS will review all comments and 
consider making changes to the rule based upon a thorough analysis of 
the comments.

Paperwork Reduction Act

    The collection of information as described in Sec. 14.21 of this 
proposed rule has been approved by the Office of Management and Budget 
(OMB) under 44 U.S.C. 3501 et seq., and assigned approval number 1004-
0060. The information being collected is necessary to enable the 
Superintendent to issue right-of-way permits. The public is being asked 
to provide this information in order for the park to determine whether 
a permit should be issued, to track the number of permits issued and to 
whom they are issued. These permits are required by 16 U.S.C. 5 and 79, 
and by 23 U.S.C. 317.
    The public reporting burden for the collection of information in 
Sec. 14.21 is estimated to average from 2-20 hours per response 
depending on the size of right-of-way applied for, including the time 
for reviewing instructions, searching existing data sources, gathering 
and maintaining the data needed, and completing and reviewing the 
collection of information.
    Specifically, the NPS needs the following information to issue a 
permit:
    1. Name, address and telephone number of the company requesting a 
right-of-way permit.
    2. Contact person representing the company.
    3. Type of right-of-way permit requested.
    4. Rehabilitation and revegetation requirements, if required.
    5. Environmental assessment, if required.
    Send comments regarding this burden estimate or any other aspect of 
this collection of information, including suggestions for reducing the 
burden, to Information Collection Officer, Docket No. 1024-AC01, 
National Park Service, 1849 C Street, NW, Washington, D.C. 20240; and 
the Office of Management and Budget, Office of Information and 
Regulatory Affairs, Attention: Desk Officer for the Department of the 
Interior (1004-0060), Washington, D.C. 20503.

[[Page 63495]]

Compliance With Other Laws

    This rule was reviewed by the Office of Management and Budget 
review under Executive Order 12866. The Department of the Interior 
determined that this document will not have a significant economic 
effect on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq). The overall economic effects of 
this rulemaking will be negligible. The updated fee schedules are 
consistent with fair business practices, are minor and are present to 
allow the recovery of costs by individual parks. There are no expected 
increases in costs of prices for consumers, the Federal government or 
geographic regions, and only minor increases for individual industries, 
State or local governments and agencies.
    The NPS has determined and certifies pursuant to the Unfunded 
Mandates Reform Act, 2 U.S.C. 1502 et seq., that this proposed rule 
will not impose a cost of $100 million or more in any given year on 
local, State, or tribal governments or private entities.
    The Department has determined that this rule meets the applicable 
standards provided in Section 3(a) and 3(b)(2) of Executive Order 
12988.
    This rule is not a major rule under the Congressional review 
provisions of the Small Business Regulatory Enforcement Fairness Act (5 
U.S.C. 8-4(2)).
    The NPS has determined that this proposed rule will not have a 
significant effect on the quality of the human environment, health and 
safety because it is not expected to:
    (a) Increase public use to the extent of compromising the nature 
and character of the area or causing physical damage to it;
    (b) Introduce non-compatible uses that might compromise the nature 
and characteristics of the area, or cause physical damage to it;
    (c) Conflict with adjacent ownerships or land uses; or
    (d) Cause a nuisance to adjacent owners or occupants.
    Based on this determination, the regulation is categorically 
excluded from the procedural requirements of the National Environmental 
Policy Act (NEPA) by Departmental guidelines in 516 DM 6, (49 FR 
21438). As such, neither an Environmental Assessment nor an 
Environmental Impact Statement has been prepared.

List of Subjects

36 CFR Part 1

    National parks, Penalties, Reporting and recordkeeping 
requirements, Signs and symbols.

36 CFR Part 14

    Electric power, Highways and roads, Public lands--rights-of-way.
    In consideration of the foregoing, it is proposed to amend 36 CFR 
Chapter I as follows:

PART 1--GENERAL PROVISIONS

    1. The authority citation continues to read as follows:

    Authority: 16 U.S.C. 1, 3, 460 1-6a(e), 469(k); D.C. Code 8-137, 
40-721 (1981).

    2. Section 1.3 is amended by revising paragraph (a), to read as 
follows:


Sec. 1.3  Penalties.

    (a) A person convicted of violating a provision of the regulations 
contained in parts 1 through 7 and 12 through 14 of this chapter, 
within a park area not covered in paragraph (b) or (c) of this section, 
shall be punished by a fine as provided by law, or by imprisonment not 
exceeding 6 months, or both, and shall be adjudged to pay all costs of 
the proceedings.
* * * * *
    3. 36 CFR part 14 is revised to read as follows:

PART 14--RIGHTS-OF-WAY

Subpart A--Right-of-Way Permits: General

Sec.
14.1  Purpose.
14.2  Applicability and scope.
14.3  Definitions.
14.4  Information collection.

Subpart B--Terms and Conditions of Right-of-Way Permit

14.10  Purpose.
14.11  Nature of right-of-way permit.
14.12  Unauthorized occupancy.
14.13  Terms and conditions.
14.14  Additional terms and conditions specific to electrical 
transmission and communication lines.
14.15  Rehabilitation and revegetation requirements.

Subpart C--Procedures

14.20  Preapplication.
14.21  Application filing.
14.22  Timely construction, nonconstruction and nonuse.
14.23  Deviation from approved right-of-way.
14.24  Immediate suspension of activities.
14.25  Cancellation of permit.
14.26  Disposition of personal property and improvements upon 
termination of right-of-way permit.
14.27  Amendments.
14.28  Renewal of a right-of-way permit.
14.29  Change in administrative jurisdiction over lands.
14.30  Transfer of right-of-way permit.
14.31  Appeal.

Subpart D--Fees and Charges

14.40  Purpose.
14.41  Exemptions.
14.42  Reimbursement of costs.
14.43  Fee for use and occupancy.

Subpart E--Highway Easement Deeds

14.50  Rights-of-way for highway purposes.
14.51  Additional uses within highway rights-of-way.
14.52  Termination of highway use.

    Authority: 16 U.S.C. 5, 79; 23 U.S.C. 317.

Subpart A--Right-of-Way Permits: General


Sec. 14.1  Purpose.

    The purpose of the regulations in this part is to:
    (a) Prescribe the procedures by which an applicant may apply for a 
right-of-way permit and the terms and conditions under which the 
National Park Service may authorize and permit a right-of-way within a 
park area.
    (b) Regulate, control and direct all authorized activities pursuant 
to a right-of-way permit or other legal instrument, to ensure that 
there is no feasible and prudent alternative to the proposed right-of-
way and such activities are not exercised in derogation of the values 
and purposes for which the various park areas have been established, 
except as may have been or will be directly and specifically provided 
by Congress.


Sec. 14.2  Applicability and scope.

    (a) The regulations contained in this part apply to authorized 
rights-of-way activities occurring upon, under, over, across or through 
federally owned lands or waters administered by the National Park 
Service within the exterior boundaries of park areas.
    (b) The regulations contained in this part do not apply to right-
of-way construction, operation and maintenance when said rights-of-way 
are owned, controlled or operated by the National Park Service.
    (c) Unless otherwise provided for in law, permits issued pursuant 
to this part will only be for those rights-of-way permits where:
    (1) There is no prudent or feasible alternative for the right-of-
way outside the boundaries of a park area; and
    (2) The use will not be in derogation of park resources and values 
and other applicable statutory standards authorizing rights-of-way 
permits are met.
    (d) The regulations in this part do not apply to operations in 
connection with the exploration, development, production and 
transportation of non-Federally owned oil and gas originating in units 
of the National Park System.

[[Page 63496]]

Such operations are subject to regulations found at 36 CFR part 9, 
subpart B. The construction, operation and maintenance of rights-of-way 
for new and existing transpark petroleum product pipelines occupying 
park lands that originate and terminate outside a park unit, must 
comply with the requirements of 36 CFR part 9, subpart B. Where 
issuance of a right-of-way permit is specifically authorized by a park 
unit's enabling statue or other authority, such right-of-way must also 
comply with the procedures set forth in this part.
    (e) The regulations in this part do not apply to applicants seeking 
access to Federal mineral leases or non-Federal minerals outside park 
boundaries. Those applicants must meet the requirements of 36 CFR part 
9.
    (f) No new right-of-way permit will be issued for activities within 
park areas on lands or waters proposed for or designated as wilderness 
under the Wilderness Act of 1964 (16 U.S.C. 1131-1136).
    (g) Applications for transportation and utility system corridors in 
Alaska pursuant to Title XI of the Alaska National Interest Lands 
Conservation Act (16 U.S.C. 3161 et seq.) must be made under 
regulations at 43 CFR part 36.
    (h) Applications for a right-of-way permit for a park area will be 
submitted to the Authorized Officer for the park area. Pursuant to any 
statute applicable to lands and waters administered by the National 
Park Service and pursuant to the regulations in this part, right-of-way 
permits are subject to the approval of the Director. The Director may 
delegate this approval authority in writing.


Sec. 14.3  Definitions.

    The following definitions apply to this part:
    Applicant means any individual; any partnership, corporation, 
association or other business entity; and any Federal, State or local 
governmental entity, including a municipal corporation, submitting an 
application under this part.
    Authorized Officer means a park area superintendent or a delegate 
appointed in writing by the superintendent.
    Construction means any work, whether permanent or temporary in 
nature, under the authority of a right-of-way permit from initiation 
until completion of the necessary activities to establish the use for 
which the permit is issued.
    Right-of-way means the land or water area in a park area authorized 
to be used or occupied under a right-of-way permit.
    Right-of-way permit is an authorizing document that, without 
conveying any title interest, provides permission to occupy and use 
lands or waters within a park area under certain terms and conditions 
and for specified purposes, which is nonexclusive, revocable, 
terminable and unassignable.


Sec. 14.4  Information collection.

    (a) The information collection requirements contained in Sec. 14.21 
have been approved by the Office of Management and Budget under 44 
U.S.C. 3507 et seq., and assigned approval number 1004-0060. The 
information being collected is necessary to enable the Superintendent 
to issue right-of-way permits. The public is being asked to provide 
this information in order for the park to determine whether a permit 
should be issued, to track the number of permits issued and to whom 
they are issued. These permits are required by 16 U.S.C. 5 and 79, and 
by 23 U.S.C. 317.
    (b) The NPS needs the following information to issue a permit:
    (1) Name, address and telephone number of the company requesting a 
right-of-way permit.
    (2) Contact person representing the company.
    (3) Type of right-of-way permit requested.
    (4) Rehabilitation and revegetation requirements, if required.
    (5) Environmental assessment, if required.
    (c) The public reporting burden for the collection of information 
in Sec. 14.21 is estimated to average from 2-20 hours per response 
depending on the size of right-of-way applied for, including the time 
for reviewing instructions, searching existing data sources, gathering 
and maintaining the data needed, and completing and reviewing the 
collection of information. Send comments regarding this burden estimate 
or any other aspect of this collection of information, including 
suggestions for reducing the burden, to Information Collection Officer, 
Docket No. 1024-AC01, National Park Service, 1849 C Street, NW, 
Washington, D.C. 20240; and the Office of Management and Budget, Office 
of Information and Regulatory Affairs, Attention: Desk Officer for the 
Department of the Interior (1004-0060), Washington, D.C. 20503.

Subpart B--Terms and Conditions of Right-of-Way Permit


Sec. 14.10  Purpose.

    The purpose of this subpart is to describe the nature, limitations 
and the terms and conditions of a right-of-way permit issued in 
accordance with this part. This subpart does not apply to highway 
easement deeds that are addressed in subpart E of this part.


Sec. 14.11  Nature of right-of-way permit.

    (a) A right-of-way permit is not a grant of permanent interest, an 
abandonment of use and occupancy of the premises by the United States 
or a waiver of any regulatory authority of the United States. The use 
permitted will not be greater than a right-of-way permit revocable at 
the discretion of the Authorized Officer, unless otherwise specifically 
authorized by statute. The permitted use does not give the permittee an 
estate in fee, limited estate, interest in the land or any right to 
take from a park area any mineral, consolidated material, earth, wood 
or stone for construction or other purposes not specifically permitted.
    (b) A right-of-way permit will only be for the specifically 
described use approved in writing by the Regional Director. A right-of-
way permit may not be transferred or assigned to another party except 
as otherwise provided in this part.
    (c) A right-of-way permit does not limit the authority of the 
Regional Director to approve additional right-of-way permits within or 
adjacent to the permitted right-of-way, nor does it authorize a 
permittee to impose charges for the additional use of the right-of-way 
made subject to such right-of-way permits.
    (d) The width or area of a right-of-way under this part is 
determined by the Authorized Officer and will not be greater than that 
required for the permitted use, nor exceed that authorized by law.
    (e) A right-of-way permit will not be issued for a period longer 
than ten years, unless otherwise specified in the permit criteria.


Sec. 14.12  Unauthorized occupancy.

    Occupying or using Federal lands within a park area for 
constructing, maintaining, operating or removing any utility, highway 
or other facility, except where specifically authorized by permit 
according to this part, is prohibited and subject to the penalties 
established in 36 CFR 1.3.


Sec. 14.13  Terms and conditions.

    (a) The Authorized Officer will include in a right-of-way permit 
terms and conditions pertaining to the extent, duration, location, 
construction, operation, maintenance and termination of activities 
authorized by the permit and additional stipulations to include,

[[Page 63497]]

but not be limited to, requirements for the permittee to:
    (1) Comply with State and Federal laws and regulations applicable 
to the park area and the authorized use for which the right-of-way 
permit is issued.
    (2) Ensure that construction or other activities concerning right-
of-way permits will not violate applicable air and water quality 
standards or other standards established by or pursuant to applicable 
Federal or State law and regulations or Executive Order.
    (3) Ensure compliance with applicable State standards for public 
health and safety, environmental protection and siting, construction, 
operation and maintenance when those standards are more stringent than 
applicable Federal standards.
    (4) Ensure that the facilities and appurtenances constructed on the 
prescribed right-of-way are maintained and operated consistent with the 
purposes of the permit.
    (5) Comply with other applicable statutes and regulations with 
respect to the occupancy and use of a park area as may be found by the 
Authorized Officer to be necessary as a condition to the approval of 
the right-of-way permit to render its use compatible with the public 
interest.
    (6) Halt any activities and immediately notify the Authorized 
Officer upon discovery of archeological, paleontological or historical 
resources. The permittee must submit to the Authorized Officer a 
written report of any findings during the construction phase, and 
otherwise comply with the requirements of the National Historic 
Preservation Act, the Archeological Resources Protection Act and the 
Native American Graves Protection and Repatriation Act. All artifacts 
unearthed or discovered are the property of the United States and must 
be accessioned by the permittee according to the standards of the 
automated National Catalog System before relinquishing same to the 
United States.
    (7) Comply with the specifications as listed in Sec. 14.15 
concerning restoration and rehabilitation of National Park System 
resources.
    (8) Notify the Authorized Officer, in writing, no fewer than ten 
working days before the start of construction and initiate construction 
within two years of the date of permit approval.
    (9) Initiate construction within two years of the date of permit 
approval, or some other time acceptable to the authorizing official, 
and establish a reasonable time for the disposition of personal 
property upon cancellation or termination of a right-of-way permit 
pursuant to Sec. 14.26.
    (10) Establish fire prevention systems and ensure initial 
suppression capability for wildland and structural fires on or near the 
park area to be occupied under the right-of-way permit. This may 
include sprinkler systems for structures and/or agreements with local 
fire agencies.
    (11) Ensure nondiscrimination in the construction, operation and 
maintenance of the authorized use. The permittee will not discriminate 
against any employee or applicant for employment because of race, 
creed, color, sex or national origin and will require an identical 
provision to be included in all authorized subcontracts.
    (12) Operate and maintain safe practices during the construction, 
operation and maintenance of the authorized use and ensure occupational 
safety and the public health are not jeopardized.
    (13) Ensure that the Authorized Officer has access to the area and 
facilities at any time without restriction.
    (14) Agree to reimburse all costs to the government and to pay all 
fees according to subpart D of this part.
    (b) A bond or other security satisfactory to the Authorized Officer 
may be required to secure the obligations imposed by the permit and 
applicable laws and regulations.
    (c) A permittee will promptly notify the Authorized Officer of, and 
compensate the United States for, the full value of all injury, loss or 
damages to the lands and resources, or other property of the United 
States caused by the permittee, its contractors, agents or employees, 
as determined by the Authorized Officer, and will be responsible for 
costs incurred by the National Park Service that result from any fire 
suppression activities or cleanup of petroleum product or hazardous 
waste spills caused by the permittee.
    (d) Upon accepting a right-of-way permit, a permittee agrees that 
such permit is issued upon the express condition that the United 
States, its agents and employees, will be free from all liabilities and 
claims for damages and/or suits for, or because of any injury or death 
to any person or property, whether to the person or property of the 
permittee, its agents or employees, or third parties, from any cause 
during the term of this permit occasioned by any occupancy or use of 
the permitted right-of-way, or any activity carried on by the permittee 
in connection therewith; and that the permittee agrees to indemnify, 
defend, save and hold harmless the United States, its agents and 
employees, from all liabilities, charges, expenses and costs because of 
or by reason of any such injuries, deaths, liabilities, claims, suits 
or losses however occurring, or damages growing out of the same.
    (e) The Authorized Officer will include a condition imposing strict 
liability and specifying a maximum limitation on liability that, in the 
judgement of the Authorized Officer, is commensurate with the 
foreseeable risk or hazards associated with the permittee's use of park 
land.
    (f) A permittee that is a State or local government or agency or 
instrumentality thereof, will be liable to the fullest extent its laws 
allow at the time the right-of-way permit is issued. When the power to 
assume liability is limited by law, the permittee will be required to 
repair damages or make restitution to the fullest extent of its powers 
at the time any damage or injury occurs.
    (g) Hazardous materials and toxic substances; emergency action plan 
requirements. (1) The permittee will not use, generate or store on the 
right-of-way any toxic substance as defined by the Toxic Substances 
Control Act of 1976 (15 U.S.C. 2601-1692), or hazardous substance or 
hazardous waste as defined by the Comprehensive Environmental Response, 
Compensation and Liability Act of 1980 (42 U.S.C. 9601-9675), or the 
Resource Conservation and Recovery Act of 1976 (42 U.S.C. 6901-6992k), 
except as provided in the permit.
    (2) The permittee must request written approval from the Authorized 
Officer before the use, generation or storage of any toxic or hazardous 
substance or hazardous waste.
    (3) The permittee must immediately notify the Authorized Officer of 
any leak, spill or release of such substances, in addition to any other 
reports as required under Federal and State law.
    (4) The applicant or permittee must show to the satisfaction of the 
Authorized Officer that an emergency action plan, including plans for 
containment and cleanup of any spills, and any other conditions 
required by law, has been completed before the use, generation or 
storage of any toxic or hazardous substance or hazardous waste.
    (h) A right-of-way permit may be subject to modification, 
adaptation or cancellation, without liability or expense to the United 
States, if the Authorized Officer determines such action to be 
necessary to avoid conflict with the uses for which the park area was 
established.
    (i) No member of or delegate to Congress or Resident Commissioner 
will be admitted to any share or part of a right-of-way permit or to 
any benefit

[[Page 63498]]

that may arise from it, but this provision will not apply to this 
permit if made with a corporation for its general benefit.
    (j) Failure to comply with any of the requirements of the permit 
may lead to cancellation of the permit by the Authorized Officer.


Sec. 14.14  Additional terms and conditions specific to electrical 
transmission and communication lines.

    For an electrical transmission or communication line, a permittee 
will comply with the following terms and conditions in addition to 
those in Sec. 14.13:
    (a) The permittee will protect all surrounding communication and 
electrical transmission lines from contact, and all highways and 
railroads from obstruction, and maintain all transmission lines in such 
manner as not to menace life or property, in accordance with the 
National Electric Safety Code, which is available from: National Fire 
Protection Association, 1 Batterymarch park, Quincy MA 02269-9101. 
Telephone 617-770-3000.
    (b) The permittee is responsible for avoiding, and liable to the 
extent of law for causing, any inductive or conductive interference 
between any transmission line or other works constructed, operated or 
maintained on the right-of-way, and any radio installation, telephone 
line or other communication facilities.


Sec. 14.15  Rehabilitation and revegetation requirements.

    The permittee will rehabilitate and restore those areas disturbed 
through construction and/or maintenance activities authorized by the 
right-of-way permit to the satisfaction of the Authorized Officer. If 
the right-of-way is to be constructed in a disturbed area, then the 
Authorized Officer may require further rehabilitation and revegetation 
of the right-of-way in compliance with the parks enabling legislation 
and General Master Plan.
    (a) The permittee will clear and keep cleared, as necessary, the 
lands within the right-of-way to the extent and manner directed by the 
Authorized Officer, and to dispose of all vegetative and other material 
cut, uprooted or otherwise accumulated during the construction and 
maintenance activities in an agreed upon manner.
    (b) The permittee will not cut, destroy, or remove timber without 
first obtaining written permission from the Authorized Officer. The 
permittee will reimburse the United States for the market value of 
merchantable timber or other resources removed.
    (c) The permittee will repair, rebuild or replace in kind any 
roads, fences and trails destroyed or damaged by construction 
activities, and to provide and maintain suitable crossings for all 
roads and trails that intersect the works authorized by the right-of-
way permit.
    (d) The permittee will meet additional standards as agreed upon by 
the permittee and the authorized officer.
    (e) Bonding. The Authorized Officer may require the permittee to 
furnish an acceptable security by bond, guaranty, cash, certificate of 
deposit or other means for the costs of rehabilitation and 
revegetation. The Authorized Officer will not release the bond or 
security until a final inspection is conducted to determine that all 
rehabilitation requirements have been satisfactorily completed and that 
the revegetation of the right-of-way is properly established and self-
generating. Failure to rehabilitate the site will result in the 
forfeiture of all or part of the bond. The bond in this instance will 
be utilized to rehabilitate the site. The bond will never be deposited 
to the U.S. Treasury as miscellaneous receipts.
    (f) Termination. (1) Prior to termination of the right-of-way 
permit and implementation of rehabilitation and revegetation, the 
permittee will consult with the Authorized Officer to insure that the 
permittee fully understands and will comply with the agreed upon 
rehabilitation and revegetation measures as described in the permit.
    (2) Failure of the permittee to initiate or complete rehabilitation 
within the time limits and to the standards imposed by this section 
will be grounds for forfeiture of all or so much of the bond or 
security as the Authorized Officer determines is necessary to achieve 
successful rehabilitation.
    (3) Should the permittee disagree with the decision of the 
Authorized Officer, the permittee may follow the appeal process found 
in Sec. 14.31.

Subpart C--Procedures


Sec. 14.20  Preapplication.

    The applicant should contact the National Park Service office 
responsible for management of the park area before applying for a 
right-of-way permit. Information concerning application procedures, 
time requirements, clearances, other permits and licenses that may be 
required for the use, environmental and management concerns, cost 
reimbursement, fees and bonding requirements, and any other conditions 
applicable to the area will be provided.


Sec. 14.21  Application filing.

    (a) Applications for a right-of-way permit must be filed with the 
Authorized Officer for that area. An application will comply with 
Sec. 14.42, and will also include, but not be limited to, the following 
information:
    (1) Name and address of the applicant and the applicant's 
authorized agent, if applicable.
    (2) A description of the proposed use.
    (3) A survey map or drawing acceptable to the Authorized Officer 
showing limits of the proposed use area as specified in paragraph (c) 
of this section.
    (4) A statement of the possible environmental, social and economic 
impacts of the proposal and its alternatives.
    (5) A statement describing possible impacts of the proposal and its 
alternatives on any known cultural, historic and archeological 
resources.
    (6) A description of the alternatives, routes and modes considered 
by the applicant when developing the proposal, including alternate 
routes not using the park area and a written statement of why the route 
through the park area is otherwise necessary.
    (7) Proof of the possession of or application for any Federal, 
State or other licenses, permits or other evidence of compliance for 
the proposed use.
    (8) Certification that the applicant is a citizen of the United 
States, or in the case of a partnership, association or corporation, as 
being subject to the laws of any State or the United States and that 
the information submitted is correct to the best of the applicant's 
knowledge.
    (9) Proposed beginning and completion dates for the proposed use.
    (b) Evidence of right to use water. If the proposed use involves 
the storage, diversion or conveyance of water, the applicant will file 
a statement of the proper State official, or other appropriate 
evidence, showing a legally recognized right to utilize, transport, 
divert and/or store water. Where the State requires an applicant to 
obtain a right-of-way permit as a prerequisite to the issuance of 
evidence of a water right, a right-of-way permit may be issued 
conditioned upon the subsequent filing within a specified time of the 
required evidence of rights to use, transport, divert and/or store 
water from the State official. The right-of-way permit will terminate 
at the expiration of such specified period if the evidence is not 
produced.
    (c) Maps. An applicant must submit with the permit application 
three copies of drawings and maps that are sufficiently accurate, to 
the satisfaction of the Authorized Officer, so that the

[[Page 63499]]

right-of-way may be precisely located on the ground by any competent 
engineer or land surveyor, and, at a minimum:
    (1) Show the park boundaries and prominent features in the vicinity 
of the requested use.
    (2) Have an exactly located and described point of beginning and 
ending to locate accurately where the proposed use enters and exits the 
park area and to show also any prominent or significant park features 
the proposed use will pass, go through, under or over.
    (3) Be of a scale appropriate to the proposed use, but large enough 
to show detail, with the scale(s) shown on the face of the drawing.
    (4) Present the proposed use in strips using match lines rather 
than reduce the map scale, if the length of the proposed use is such 
that it cannot be shown as one continuous line on a standard 
engineering drawing.


Sec. 14.22  Timely construction, nonconstruction and nonuse.

    (a) Unless otherwise provided by law, or otherwise specified in the 
permit, construction must begin within two years of the date the right-
of-way permit is issued.
    (b) Failure of the permittee to use or occupy the right-of-way for 
the purpose for which the permit was issued for any continuous two-year 
period will constitute a presumption of abandonment.
    (c) The Authorized Officer will consider applications for an 
extension of the beginning date for construction or right-of-way 
rehabilitation upon receipt of the following:
    (1) A request from the permittee 90 days before the termination of 
the two-year period under paragraph (a) of this section;
    (2) A statement justifying the need for the extension including, 
but not limited to, the permittee's demonstrated intention to 
accomplish the permitted work, meet construction schedules and initiate 
rehabilitation efforts; and
    (3) Documentation of evidence of extenuating circumstances beyond 
the control of the permittee that require the extension.
    (d) Failure of the permittee to comply with the requirements of 
this section will result in cancellation of the permit.
    (e) Completion of construction. (1) Construction must be completed 
within the period set forth in the permit.
    (2) Within 90 days after completion of construction, or after all 
restoration, rehabilitation and revegetation requirements have been 
satisfied, whichever is later, the permittee will notify the Authorized 
Officer of completion and show, to the satisfaction of the Authorized 
Officer, that all applicable permit criteria have been met.


Sec. 14.23  Deviation from approved right-of-way.

    No deviation from the location of an approved right-of-way will be 
initiated by the permittee without the prior written approval of the 
Authorized Officer. The Authorized Officer may require the filing of a 
new application in accordance with Sec. 14.21 where, in the Authorized 
Officer's judgment, a deviation significantly changes the intent or 
purposes of the original right-of-way, or that has the potential to 
cause greater or substantially different impacts to park resources than 
the original approved use.


Sec. 14.24  Immediate suspension of activities.

    (a) If the Authorized Officer determines that an immediate 
temporary suspension of activities within a permitted right-of-way is 
necessary to protect park resources, public health or safety, or the 
environment, the Authorized Officer may promptly suspend such permitted 
activities as deemed appropriate.
    (b) The Authorized Officer may issue an immediate temporary 
suspension order orally, to be followed in writing, at the site of the 
activity to the permittee or a contractor or subcontractor of the 
permittee, or to any representative, agent or employee of the 
permittee. Any oral order will be followed with a written order.
    (c) Upon the issuance of a suspension order, the permittee or on-
site agent-in-charge must suspend all activity associated with the 
suspension order. An order of immediate suspension of activities will 
remain in effect until the Authorized Officer issues a written order 
permitting resumption of activities.
    (d) Any time after an order of immediate suspension has been 
issued, the permittee may file a request with the Authorized Officer 
for permission to resume activities. The request will be in writing and 
will contain a statement of the facts supporting the request for 
resumption.
    (e) The Authorized Officer will grant or deny the permittee's 
request to resume activities within five working days of the date the 
permittee's request is filed.
    (f) The United States will not be liable for any claims arising 
from the immediate temporary suspension of the permittee's use.


Sec. 14.25  Cancellation of permit.

    (a) The Authorized Officer may cancel a right-of-way permit upon a 
determination that the permittee has failed to comply with applicable 
laws, regulations or Executive Orders, or any special terms, conditions 
or stipulations of the right-of-way permit, or has abandoned the right-
of-way as described in Sec. 14.22.
    (b) Before canceling a right-of-way permit pursuant to paragraph 
(a) of this section, the Authorized Officer will give the permittee 
written notice that such action is being considered and the reasons 
therefore, and will establish in such notice a deadline for the 
permittee to comply with the terms of the permit.
    (c) No right-of-way permit will be canceled except on the issuance 
of a specific written order of cancellation by the Authorized Officer.
    (d) No administrative proceeding will be required in those cases 
where the permit terminates under the terms specified within the 
permit.


Sec. 14.26  Disposition of personal property and improvements upon 
termination of right-of-way permit.

    After termination of a right-of-way permit, the permittee will, 
unless otherwise directed in writing by the Authorized Officer, remove 
improvements or personal property and restore the site to a condition 
satisfactory to the Authorized Officer. If the permittee fails to 
remove such improvements or personal property, all improvements and 
personal property will become the property of the United States, but 
the permittee will nevertheless remain liable for all costs of removal 
of the improvements of personal property and for rehabilitation and 
revegetation of the right-of-way.


Sec. 14.27  Amendments.

    (a) A right-of-way permit may be amended any time, either at the 
discretion of the Authorized Officer, or upon a written filing by the 
permittee requesting amendment of the permit. Such amendments shall be 
accomplished with the written and signed agreement of both parties.
    (b) In making such amendments, the Authorized Officer may modify 
the terms, conditions or fees and charges of the permit, and impose new 
stipulations to reflect any changes in conditions, requirements or 
market values.
    (c) The filing of a new application pursuant to Sec. 14.21 may be 
required if the Authorized Officer determines that the requested 
amendments require significant deviation from the approved right-of-way 
permit.

[[Page 63500]]

Sec. 14.28  Renewal of a right-of-way permit.

    (a) Upon written request to the Authorized Officer by the 
permittee, and within the six months before the stated date of 
expiration, the Authorized Officer may approve the renewal of any 
existing right-of-way permit in accordance with the provisions of this 
section and any other applicable laws and regulations in effect at the 
time of renewal, so long as the activity or facility will continue to 
be used for the purposes authorized.
    (b) Before renewal, the Authorized Officer may modify the terms, 
conditions, land use fees and charges, and special stipulations of the 
permit to reflect any changed conditions, requirements, land uses, 
market values or Federal and State laws, Federal Executive Orders, 
regulations or management plans.


Sec. 14.29  Change in administrative jurisdiction over lands.

    (a) Except as otherwise provided for by law, a change in the 
administrative jurisdiction over the lands and waters from another 
Federal agency to the National Park Service will not cause an existing 
right-of-way permit, grant or other authorizing instrument to be 
canceled, if there is no change in the approved use.
    (b) The holder of the permit, grant or other authorizing instrument 
must comply with all additional laws, executive orders and regulations 
applicable to the park area.
    (c) When a right-of-way permit, grant or other authorizing 
instrument transferred from another Federal agency to the jurisdiction 
of the NPS expires, the holder of the permit, grant or authorizing 
instrument may apply for a right-of-way permit pursuant to this part, 
to the Authorized Officer to continue the use of the right-of-way. The 
renewal procedures of Sec. 14.28 are not applicable to this section.


Sec. 14.30  Transfer of right-of-way permit.

    (a) A proposal by the permittee to transfer any right-of-way permit 
to another party, in whole or in part, will be made in accordance with 
applicable provisions of Sec. 14.21, as determined by the Authorized 
Officer.
    (b) No transfer of a permit will be recognized, and no construction 
or uses allowed, until the transfer is first approved in writing by the 
Authorized Officer. Such transfer must be filed in accordance with 
applicable regulations at the time of transfer and must be supported by 
the stipulation that the transfer applicant agrees to comply with, and 
to be bound by, the terms and conditions of the right-of-way permit.
    (c) All filings for transfer approval made pursuant to this section 
must be accompanied by an application fee in accordance with 
Sec. 14.42(a) and an administrative processing fee in accordance with 
Sec. 14.42(b).


Sec. 14.31  Appeal

    Should the permittee disagree with a decision of the Authorized 
Officer in connection with the regulations in this part, the permittee 
may file a written statement to that effect with the Authorized 
Officer. The written statement will detail the reason(s) why the 
decision is contrary to, or in conflict with the facts, the law, these 
regulations, or is otherwise in error. No appeal will be considered 
unless it is filed with the Authorized Officer within thirty (30) days 
after the date of notification to the permittee of the action or 
decision. Upon receipt of such written statement, the Authorized 
Officer shall promptly review the action or decision and either reverse 
the original decision or prepare a separate statement, explaining that 
decision and the reasons, and forward the statement and record of 
appeal to the Regional Director of the geographic area in which the 
Authorized Office is located, for review and decision.

Subpart D--Fees and Charges


Sec. 14.40  Purpose.

    The purpose of this subpart is to delineate and establish 
procedures for the payments of the unique fees and charges associated 
with a right-of-way permit. Payments are required pursuant to this 
subpart for the following categories:
    (a) An application processing payment;
    (b) A reimbursement for administrative and other appropriate costs 
incurred by the National Park Service;
    (c) An annual payment for monitoring and inspection; and
    (d) A fee for the use and occupancy of a park area at fair market 
value.


Sec. 14.41  Exemptions.

    The regulations of this subpart do not apply to the following:
    (a) Federal agencies, or where the right-of-way is for the sole and 
exclusive use and benefit of the National Park Service.
    (b) For Sec. 14.43 only, State and local governments or agencies or 
instrumentalities thereof, including counties, parishes, boroughs and 
other taxing districts, where the use is exclusively for respective 
governmental purposes and for electric or telephone facilities financed 
pursuant to the Rural Electrification Act of 1936 (7 U.S.C. 31). 
Provided, however, that if an applicant derives revenue from charges 
levied on customers for services as would a profit making corporation 
or business, the applicant is not exempt from charges under this 
subpart.
    (c) When Federal law specifically prohibits the charging of fees, 
or specifically establishes a different fee schedule, rate, structure 
or other procedure.


Sec. 14.42  Reimbursement of costs.

    (a) Application payment. An applicant for a right-of-way permit 
must submit with each application a one-time payment of $100 to cover 
initial processing costs.
    (b) Administrative processing. (1) An applicant for a right-of-way 
permit will reimburse the United States for administrative and other 
appropriate costs incurred by the National Park Service in processing 
the application.
    (2) When an application is received, the Authorized Officer will 
provide the applicant an estimate, based upon the best available 
information, of costs expected to be incurred by the United States in 
processing the application. When the estimated costs exceed $2,500, the 
Authorized Officer will either require the applicant to remit the full 
payment of the estimated costs before processing the application, or 
require a bond or other security pursuant to paragraph (b)(8) of this 
section. Such payments may be subsequently refunded or adjusted as 
provided by paragraph (b)(6) of this section.
    (3) Before the issuance of a right-of-way permit, the applicant 
will be required to pay any additional amounts to the extent the costs 
of the United States have exceeded the payments required by paragraphs 
(b)(1) and (2) of this section.
    (4) An applicant who withdraws an application for a permit before a 
decision is reached on the issuance of the permit is responsible for 
costs incurred by the United States in processing such application up 
to the date upon which the Authorized Officer receives written notice 
of the withdrawal, and for costs subsequently incurred by the United 
States in terminating the application review process. Reimbursement by 
the applicant of such incurred costs will be due within 30 days of 
receipt of notice of the amount due.
    (5) An applicant whose application is denied is nevertheless 
responsible for paying the application and administrative costs 
incurred by the

[[Page 63501]]

National Park Service in processing the application. Additional costs 
that have not been paid in accordance with paragraphs (b)(1), (2) and 
(3) of this section, are also due within 90 days of receipt of notice 
from the National Park Service of the amount due.
    (6) If payment exceeds the actual costs incurred pursuant to 
paragraphs (b)(2) and (3) of this section, the National Park Service 
will refund the amount under the authority of 43 U.S.C. 1374, or may 
adjust future billings to credit the applicant's account for 
overpayment. Neither an applicant nor a permittee may adjust any 
billing by the National Park Service without prior written approval.
    (7) When two or more applications for a right-of-way permit are 
filed that the Authorized Officer determines to be in competition, each 
applicant will reimburse the National Park Service according to 
paragraphs (b)(1) through (6) of this section, except that costs not 
readily attributable to only one of the applications, such as costs for 
an environmental impact statement, will be paid by each applicant in 
equal shares.
    (8) The Authorized Officer may require an applicant to furnish 
security of an acceptable amount by bond, guaranty, cash, book entry 
deposits or other means, for costs under paragraphs (b)(1) through (7) 
of this section. The Authorized Officer may require such additional 
security or substitution of security as the Authorized Officer deems 
appropriate.
    (9) When more than one person, partnership, corporation, 
association or other entity apply together for a right-of-way permit, 
each such applicant will be jointly and severally liable for costs 
under paragraphs (b)(1) through (6) of this section.
    (10) When two or more noncompeting applications for right-of-way 
permits are received for what, in the judgment of the Authorized 
Officer, is a common right-of-way system, all applicants will be 
jointly and severally liable for costs under paragraphs (b)(1) through 
(6) of this section for the entire system, subject however, to the 
provisions of paragraphs (b)(8) and (9) of this section.
    (c) Monitoring and inspection. (1) The permittee will make in 
advance an annual payment as determined by the Authorized Officer, to 
the National Park Service for monitoring and inspection of the right-
of-way. Such payment will be sufficient to cover all costs by the 
National Park Service or its agents for monitoring the construction, 
operation, maintenance and termination of all right-of-way activities 
and facilities, and for the protection of surrounding lands.
    (2) Within 30 days of receipt of a bill from the National Park 
Service for the estimated annual monitoring and inspection costs for 
the upcoming year, the permittee will remit such estimated payment to 
the National Park Service.
    (3) In any year, if annual costs to the National Park Service 
exceed the estimate because of unforeseen circumstances, the permittee 
will be responsible for paying all such additional costs either as a 
one-time payment or as an adjustment of the next annual monitoring 
charge.


Sec. 14.43  Fee for use and occupancy.

    (a) Once an application has been approved, payment in advance is 
required before the issuance of a right-of-way permit for the use and 
occupancy of lands and waters under the administration of the National 
Park Service. The charge for use and occupancy of lands and waters 
authorized by a right-of-way permit issued under this part will be the 
fair market value of the right-of-way as determined by the Authorized 
Officer using sound business management principles, including but not 
limited to an appraisal.
    (b) Periodic or lump-sum payments may be required at the discretion 
of the Authorized Officer and as indicated in the terms and conditions 
of the permit.
    (c) Upon the relinquishment or termination of a permit before the 
expiration of its term, annual fees must continue to be made under this 
section until completion of equipment removal and rehabilitation of the 
right-of-way pursuant to subpart B of this part.
    (d) The charge for use and occupancy of lands and waters under the 
regulations of this part will not be less than $100.00 per year for any 
right-of-way permit issued.
    (e) If a charge required by this section is not paid when due, and 
such default will continue for 60 days after notice, the Authorized 
Officer may cancel the permit. Upon cancellation, any structures or 
personal property remaining on the right-of-way will be considered 
abandoned and be disposed of according to Sec. 14.26, unless written 
permission to remove has been granted by the Authorized Officer.
    (f) At any time not less than five years after either the issuance 
of the permit or the last revision of charges thereunder, the 
Authorized Officer, after reasonable notice to the permittee, may 
review such existing charges and impose such new charges determined 
pursuant to paragraph (a) of this section, commencing with the 
following charge year.

Subpart E--Highway Easements Deeds


Sec. 14.50  Rights-of-way for highway purposes.

    (a) Whenever a State highway department requests a right-of-way 
from the Secretary of Transportation for purposes of a highway that is 
part of the Federal aid primary or Federal aid secondary system, or is 
part of the National System of Interstate or Defense Highways, pursuant 
to Title 23, United States Code, over lands or interests in lands under 
the jurisdiction of the National Park Service, the Secretary of 
Transportation, acting under the provisions of 23 U.S.C. 138, must 
first determine that:
    (1) There is no feasible and prudent alternative to the use of such 
land; and
    (2) Such a program includes all possible planning to minimize 
adverse impacts to National Park Service lands and resources resulting 
from such use.
    (b) Should the Secretary of Transportation, in consultation with 
the Secretary of the Interior, determine that there is no feasible and 
prudent alternative to the use, and that either no adverse impacts will 
occur, or such adverse impacts that might occur will be mitigated to 
the satisfaction of the National Park Service, then the Secretary of 
Transportation, acting pursuant to 23 U.S.C. 317(b), may file notice 
with the Secretary of the Interior. The Secretary of the Interior then 
has four months to review and certify to the Federal Highway 
Administration approval of such transfer of land and, if the request is 
approved, establish such conditions as determined necessary to protect 
the park area.
    (c) If both the Secretary of Transportation and the Secretary of 
the Interior approve the request, the Secretary of Transportation will 
then arrange to convey to the State highway department, adequate 
rights-of-way and control of access thereto. Such right-of-way interest 
will be conveyed through a highway easement deed containing terms and 
conditions satisfactory to the Secretary of the Interior for the 
protection of park values and resources and in accordance to the 
purposes for which the park area was established.


Sec. 14.51  Additional uses within highway rights-of-way.

    (a) Separate application by the State highway department or any 
other applicant must be made to the Authorized Officer to obtain 
authorization to use the park area for other purposes within such 
highway right-of-way. An applicant for an additional right-of-way 
permit must first obtain a written statement from the

[[Page 63502]]

State highway department indicating its approval and any stipulations 
it considers desirable for the additional right-of-way.
    (b) Future relocation or change of the additional right-of-way made 
necessary by the State highway use will be accomplished at the expense 
of the additional right-of-way permittee.


Sec. 14.52  Termination of highway use

    (a) If at any time the need for any such lands or materials for 
highway purposes pursuant to a highway easement deed will no longer 
exist, notice of the fact will be given by the State highway department 
to the Secretary of Transportation and such lands or materials will 
revert to the control of the Secretary of the Interior.
    (b) Upon receipt of such notice, the Secretary of Transportation 
will immediately notify the Secretary of the Interior and take steps as 
necessary to revoke and abandon the highway easement deed and revest 
the Secretary of the Interior with clear and exclusive title of 
unencumbered land.

    Dated: November 13, 1996.
George T. Frampton, Jr.,
Assistant Secretary for Fish and Wildlife and Parks.

    Note: This document was received at the Office of the Federal 
Register on November 24, 1997.

[FR Doc. 97-31262 Filed 11-28-97; 8:45 am]
BILLING CODE 4310-70-P