[Federal Register Volume 89, Number 112 (Monday, June 10, 2024)]
[Proposed Rules]
[Pages 48850-48865]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-12605]
========================================================================
Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
========================================================================
Federal Register / Vol. 89, No. 112 / Monday, June 10, 2024 /
Proposed Rules
[[Page 48850]]
DEPARTMENT OF THE INTERIOR
National Park Service
36 CFR Parts 1 and 14
[NPS-WASO-PPFL-36986; PPWOPPFLL0; PPMPSPD1Y.YM0000]
RIN 1024-AE75
Rights of Way
AGENCY: National Park Service, Interior.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The National Park Service (NPS) proposes to revise regulations
governing the application, processing, and issuance of right-of-way
(ROW) permits for lands and waters administered by the NPS. A ROW
permit authorizes the use of such lands and waters for the operation
and maintenance of infrastructure associated with utilities such as
fiber, water lines, power lines, and cellular antennas. The proposed
changes would align NPS processes more closely with those of other
Department of the Interior (DOI) bureaus by allowing for a pre-
application meeting, identifying a common standard application form,
and broadening methods the NPS can use to determine fair market value.
The proposed rule would clarify the process for permitting construction
related to a ROW permit, make updates that reflect current technology
and standard practices, and integrate applicable laws that have been
implemented since the regulations were first promulgated in 1980.
DATES: Comments on the proposed rule must be received by 11:59 p.m. ET
August 9, 2024.
Information collection requirements: If you wish to comment on the
information collection requirements in this proposed rule, please note
that the Office of Management and Budget (OMB) is required to make a
decision concerning the collection of information contained in this
proposed rule between 30 and 60 days after publication of this proposed
rule in the Federal Register. Therefore, comments should be submitted
to OMB (see ``Information Collection'' section below under ADDRESSES)
by August 9, 2024.
ADDRESSES: You may submit comments, identified by Regulation Identifier
Number (RIN) 1024-AE75, by either of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Mail to: Kevin McKay, Branch Chief, Realty Management,
National Park Service, WASO Land Resources Division, Park Planning,
Facilities and Lands, 1849 C Street NW, 2nd Floor (MIB 2340),
Washington, DC 20240.
Instructions: Comments will not be accepted by fax, email,
or in any way other than those specified above. Comments delivered on
external electronic storage devices (flash drives, compact discs, etc.)
will not be accepted. All submissions received must include the words
``National Park Service'' or ``NPS'' and must include the docket number
or RIN (1024-AE75) for this rulemaking. Comments received will be
posted without change to https://www.regulations.gov, including any
personal information provided.
Docket: For access to the docket to read comments
received, go to https://www.regulations.gov and search for ``1024-
AE75.''
FOR FURTHER INFORMATION CONTACT: Kevin McKay, Branch Chief, Realty
Management, National Park Service, Land Resources Division. Phone:
(720) 576-0656; email: [email protected]. Individuals in the United
States who are deaf, deafblind, hard of hearing, or have a speech
disability may dial 711 (TTY, TDD, or TeleBraille) to access
telecommunications relay services. Individuals outside the United
States should use the relay services offered within their country to
make international calls to the point-of-contact in the United States.
In compliance with the Providing Accountability Through Transparency
Act of 2023, the plain language summary of the proposal is available on
Regulations.gov in the docket for this rulemaking.
SUPPLEMENTARY INFORMATION:
Background
Legal Authority for ROWs
The National Park System includes any area of land or water
administered by the NPS. 54 U.S.C. 100501. The mission of the NPS is to
preserve unimpaired the natural and cultural resources and values of
the National Park System for the enjoyment of this and future
generations. 54 U.S.C. 100101. Since it was created in 1916, the
National Park System has expanded to 428 units covering more than 85
million acres in all 50 states, the District of Columbia, and U.S.
territories. A general statutory authority, codified at 54 U.S.C.
100902, allows the Secretary of the Interior, acting through the NPS,
to issue ROW permits for public utilities and communication facilities
within System units. Specifically, this authority authorizes the NPS to
issue ROW permits for:
electrical plants, poles, and lines for the generation,
transmission, and distribution of electrical power;
telephone and telegraph purposes;
canals, ditches, pipes and pipe lines, flumes, tunnels, or
other water conduits and water plants, dams, and reservoirs used to
promote irrigation or mining or quarrying, or the manufacturing or
cutting of timber or lumber, or the supplying of water for domestic,
public, or any other beneficial uses;
poles and lines for communication purposes; and
radio, television, and other forms of communication
transmitting, relay, and receiving structures and facilities.
The NPS may not issue a ROW permit for any purpose that is not
identified in 54 U.S.C. 100902, unless the NPS is separately authorized
to do so by law, such as through legislation specific to a System unit.
In limited circumstances such as where authorized by legislation
specific to a System unit, or where exclusively serving NPS facilities
or authorized concessioner facilities, the NPS may issue ROW permits to
utilities for the operation and maintenance of petroleum product
pipelines.
Under the general authority in 54 U.S.C. 100902, a ROW shall be
allowed within a National Park System unit only on the approval of the
Secretary, acting through the NPS. The NPS may issue a ROW permit only
on a finding that the ROW is not incompatible with the public interest.
The statute establishes
[[Page 48851]]
duration and size limits for ROWs and authorizes the NPS to revoke
ROWs. The Secretary, acting through the NPS, is authorized to implement
the statute through regulations.
Before 1980, the NPS managed ROW permits under Bureau of Land
Management (BLM) regulations at 43 CFR 2800. Those regulations no
longer applied to System units after BLM revised them in 1980. That
same year, the NPS promulgated its own regulations (45 FR 47092) that
matched the provisions of 43 CFR 2800, with some editorial changes. The
NPS regulations are codified at 36 CFR part 14 and have not been
revised since, except for minor changes in 1995 (60 FR 55791) and 2018
(83 FR 2069). The NPS regulations are organized into eight subparts,
with an Appendix, as follows:
------------------------------------------------------------------------
Subpart of 36 CFR part 14 Sections
------------------------------------------------------------------------
Subpart A--Rights-of-Way: General.................... 14.1-14.2
Subpart B--Nature of Interest........................ 14.5-14.10
Subpart C--Procedures................................ 14.20-14.38
Subpart D--Under Title 23, U.S.C. (Interstate and 14.50-14.61
Defense Highway System).............................
Subpart E--Power Transmission Lines, General......... 14.70-14.71
Subpart F--Principles and Procedures, Power 14.75-14.78
Transmission Lines..................................
Subpart G--Radio and Television Sites................ 14.90-14.91
Subpart H--Telephone and Telegraph Lines............. 14.95-14.96
Appendix A to Part 14................................ N/A
------------------------------------------------------------------------
NPS Administration of ROWs
The NPS's authority to grant ROWs within System units is
discretionary provided the allowed use is not incompatible with the
public interest. When the NPS evaluates a request for a ROW permit, it
considers whether the use will be consistent with applicable laws and
policies that govern the administration of the System. Applicable laws
include, but are not limited to, the NPS Organic Act and the National
Historic Preservation Act (NPHA). Applicable policies include, but are
not limited to, 2006 NPS Management Policies, Reference Manual 53B:
Rights of Way, and guidance and planning documents for particular
System units. ROW infrastructure proposed by permit applicants is not
always compatible with the purposes for which the National Park System
or the particular System unit was established, or with the protection
of the resources and values of the System unit where it would be
located. The NPS, to the greatest extent possible, seeks to minimize
impacts to resources, visitors, and employees from the construction,
installation, maintenance and operation of infrastructure in System
units. For this reason, it only issues ROW permits when there is no
practicable alternative to the use of lands and waters within a System
unit.
After this evaluation process, the NPS may determine that the
proposed use is not appropriate in the System unit and location
requested and deny the request. When they are approved, ROW permits
most commonly allow for the operation and maintenance of common
utilities such as fiber, water, and power lines, as well as cellular
antennas and associated equipment such as cell towers. The NPS issues
ROW permits to Federal, State, and local governments, Tribes, citizens,
and organizations of the United States, including corporations,
associations, partnerships, and non-profit organizations. Power
companies and broadband providers (including cellular companies)
regularly request ROW permits from the NPS. Unlike a deeded easement or
fee simple ownership, a ROW permit does not convey or imply any
property interest in the lands and waters subject to the ROW.
Permittees may use a ROW permit only for the allowed uses and subject
to permit terms and conditions that protect System unit resources,
values, and visitors.
Summary of the Proposed Rule
The NPS explains each of the proposed changes to NPS regulations
below. In addition to the changes described in more detail below, the
rule would simplify how the regulations are organized by replacing the
eight existing subparts with sections that have clear and concise
titles addressing ROW permitting for all types of use and
infrastructure. Sections 14.5, 14.20, 14.27, 14.32, 14.35, 14.53,
14.75, and 14.77 of the existing regulations have no content. The rule
would replace Sec. 14.5 and remove the rest. The rule would remove
Appendix A because the forms in this Appendix are outdated and no
longer used by the NPS. The rule would remove an authority citation to
23 U.S.C. 317 from part 14. This authority addresses highway easement
deeds, which are not authorized through ROW permits.
Many of the proposed changes would remove or update outdated
provisions to reflect current policies and practices. The changes in
this rule would improve ROW permitting processes and align them more
closely with those of other DOI bureaus, to the extent practicable and
consistent with applicable law. This rule would improve the NPS's
ability to protect resources and values, public health and safety, and
visitor experience from potential impacts from the use of lands and
waters within System units under a ROW permit, including from the
operation and maintenance of infrastructure. The revised regulations
would be easier for prospective and current permittees to find and
understand, which would improve the effectiveness of NPS ROW program.
The NPS welcomes public comment and looks forward to receiving
meaningful input on the changes proposed by this rule.
Section-by-Section Analysis of the Proposed Changes
Sec. 14.1 Purpose and Scope
------------------------------------------------------------------------
Proposed regulation Existing regulations
------------------------------------------------------------------------
14.1 Purpose and scope.............. 14.1 Applicability.
N/A................................. 1.2 Applicability and scope.
------------------------------------------------------------------------
Existing regulations in Sec. 14.1 state that the regulations in
part 14 apply to all Federally owned or controlled lands administered
by the NPS. This provision is unnecessary because the applicability and
scope of NPS regulations in Title 36, Chapter I of the Code of Federal
Regulations (36 CFR), which includes part 14, are defined in 36 CFR
1.2. This section states in paragraph (a)(1) that the regulations apply
to all persons entering, using, visiting, or otherwise within the
boundaries of federally owned lands and waters administered by the NPS.
New paragraph (a) in Sec. 14.1 would state that regulations in
part 14 establish procedures an entity must follow when applying for a
ROW permit and provisions under which the NPS may authorize a ROW
within a National Park System unit. New paragraph (b) would state that
the regulations in part 14
[[Page 48852]]
ensure that the use of lands and waters, and operation and maintenance
of infrastructure under a ROW permit will be (1) consistent with
applicable statutory authorities, including the NPS Organic Act; (2)
protect lands, waters, and resources of the System; and (3) protect
visitor uses and experiences, as well as promote the health and safety
of the public and NPS employees and volunteers.
The NPS proposes to revise 36 CFR 1.2(b) and (d) to add references
to part 14. This would clarify that, under paragraph (b), the
regulations in part 14 generally do not apply on non-federally owned
lands and waters or on Indian tribal trust lands located within System
boundaries; and that, under paragraph (d), the regulations in Part 14
do not prohibit administrative activities conducted by the NPS or its
agents. These changes would reflect current NPS practice and would have
no impact on the NPS's administration of ROWs in System units.
Sec. 14.2 Definitions for This Part
------------------------------------------------------------------------
Proposed regulation Existing regulations
------------------------------------------------------------------------
14.2 Definitions for this part...... 36 CFR 14.2 Definitions.
36 CFR 14.6 In form of
easement, license, or permit.
------------------------------------------------------------------------
This rule would revise Sec. 14.2 of the existing regulations,
which defines terms used in part 14. The rule would remove the
definition of ``Superintendent'' because it is already defined in 36
CFR 1.4. The rule would remove the definition of ``Park'' because it is
superfluous with the definitions of ``park area'' and ``National Park
System'' in 36 CFR 1.4. The rule would remove the definitions of
``Authorized Officer,'' ``Construction work,'' ``Director,'' and
``Secretary'' because those terms would not be used in the revised
regulations. The rule would remove the definition of ``Project''
because that term would no longer be used the way it is currently
defined. Removing unnecessary defined terms would make the regulations
more concise. The rule would replace the term ``right-of-way'' with a
new term ``right-of-way permit'' that is more specific and clearer
about what may be authorized, as explained below. The NPS proposes to
define nine new terms in Sec. 14.2, which are explained below. Revised
Sec. 14.2 would list defined terms in alphabetical order without
paragraph designations.
New Definitions
The NPS proposes to add the term ``Applicant'' to mean an entity
that has applied for a special use permit for construction of
infrastructure or a ROW permit for operation or maintenance of
infrastructure. Adding this term would allow the NPS to distinguish
applicants from permittees, who have been issued valid permits, in the
regulations.
The NPS proposes to add the term ``Co-location'' to mean the
placement of infrastructure on or in existing authorized infrastructure
owned or controlled by another or within an area authorized for use by
another. This common industry practice is important for applicants to
consider when designing infrastructure proposals and for the NPS to
consider when assessing potential impacts to resources, values, and
visitors.
The NPS proposes to add the term ``Entity'' to mean a party
including, but not limited to, Federal, State, and local governments,
Tribes, citizens, and organizations of the United States, including
corporations, associations, partnerships, and non-profit organizations.
The NPS proposes to add the term ``Infrastructure'' to mean
equipment, facilities, installations, or uses that the NPS may
authorize under a ROW permit pursuant to statutory authority, with
specific reference to 54 U.S.C. 100902.
The NPS proposes to add the term ``Operation and maintenance'' to
mean the use of infrastructure, the means of access, and associated
service on a routine and on-going basis to ensure good order, safe
conditions, and timely repair, all as specifically authorized in a ROW
permit.
The NPS proposes to add the term ``Permitted area'' to mean the
area authorized for construction under a special use permit, and use of
lands and waters, and operation and maintenance of infrastructure under
a ROW permit, including routes and means of access through a System
unit.
The NPS proposes to add the term ``Permittee'' to mean an entity
that holds a valid special use permit for construction or ROW permit
for use of lands and waters, and operation and maintenance of
infrastructure. Adding this term would help distinguish entities that
have valid permits from those that have expired or invalid
authorizations, and from applicants who have requested a permit but do
not yet have one.
The NPS proposes to add a definition for ``Right-of-way permit'' to
mean a discretionary and revocable special use permit, issued by the
NPS to authorize the use of lands or waters within System units for the
operation and maintenance of infrastructure. The definition would state
that a ROW permit does not convey property interests in lands or
waters. These statements in the new definition would make portions of
Sec. 14.6 of the existing regulations, which make similar statements,
unnecessary.
The NPS proposes to add the term ``Special use permit for
construction'' to mean a discretionary and revocable special use permit
issued by the NPS to authorize construction of infrastructure and
associated construction activities within System units. These permits
can authorize initial construction of infrastructure, addition of
infrastructure, removal of infrastructure, and maintenance and repair
activities not included in the ROW permit. Adding this term would
distinguish activities authorized under ROW permits form those
authorized under special use permits for construction.
Sec. 14.3 Pre-Application Meeting
------------------------------------------------------------------------
Proposed regulation Existing regulation
------------------------------------------------------------------------
14.3 Pre-application meeting........ N/A.
------------------------------------------------------------------------
This section of the proposed rule would establish a new provision
encouraging potential permit applicants to contact the superintendent
of the System unit to schedule a pre-application meeting to discuss the
proposed project and the permitting process. The U.S. Fish and Wildlife
Service uses pre-application meetings for the same purpose. Although it
would benefit the applicant and the NPS in most cases, the rule would
not require a pre-application meeting because it may be unnecessary
when the potential applicant and NPS staff are sufficiently familiar
with the project and permitting process, such as with certain ROW
permit renewals. The rule would state that through a pre-application
meeting, the NPS may provide early notice to potential applicants about
applicable law and policy, documentation requirements, an expected
timeline, and potential costs.
The goal of a pre-application meeting is to improve the permitting
process through increased regulatory certainty. Pre-application
meetings make the permitting process more efficient and transparent.
Permit processing is delayed when applicants provide incomplete
information to the NPS. The amount and type of documentation the NPS
requires to process an application varies depending on whether the
request is for new infrastructure where environmental disturbance will
occur, or existing infrastructure where limited additional use of the
infrastructure may have minimal or no new environmental impacts. A pre-
application meeting enables the NPS to understand the
[[Page 48853]]
scope of the request and advise potential applicants, early in the
permitting process, about permitting considerations and procedures,
such as: elements of a complete permit application, permit approval
standards, natural and cultural resource concerns, visitor resource
concerns, public health and safety concerns, park planning documents,
land use restrictions (e.g., wilderness), proposed location, proposed
infrastructure, method and means of access, and potential fees. In
addition, a pre-application meeting provides the applicant an
opportunity to ask questions and receive comments from the NPS about
the proposed ROW before submitting an application.
The NPS may charge fees to recover administrative costs incurred
from pre-application meetings in certain circumstances. This may occur
if there are multiple meetings requested by a potential applicant or
where there are unusual demands made on NPS staff or leadership in
terms of time or NPS resources on behalf of the potential applicant.
Cost recovery would be collected in accordance with Sec. 14.7 of the
revised regulations (discussed below).
Sec. 14.4 Right-Of-Way Permit Application
This section of the rule would update procedures for submitting a
ROW permit application. Under the existing regulations, application
requirements are addressed in multiple subparts and sections in part
14. This rule would consolidate all of these requirements into a single
section. This would make it easier for applicants to identify what is
required to submit a complete ROW application. Complete and timely
applications allow the NPS to evaluate a proposal's potential effects
and to conduct its compliance responsibilities under applicable Federal
statutes such as the National Environmental Policy Act (NEPA) and the
NHPA. The table below identifies how this rule would reorganize all of
the existing application process requirements into a new Sec. 14.4.
------------------------------------------------------------------------
Proposed regulations Existing regulations
------------------------------------------------------------------------
14.4(a) Complete application 14.28 Incomplete application
requirement. and reports.
14.4(b) Application form............... 14.21 Form.
14.4(c) Applicant documentation........ 14.23 Showing as to
organizations required of
corporations.
14.24 Showing as to citizenship
required.
14.4(d) Maps........................... 14.25(a) Maps.
14.4(e) Water rights................... 14.25(b) Evidence of water
right.
14.4(f) Access......................... 14.7 Right of ingress and
egress to a primary right-of-
way.
14.4(g) Co-location.................... N/A.
14.4(h) Financial assurance and 14.22(a)(11) Reimbursement of
liability insurance. costs.
14.4(i) Additional information......... N/A.
------------------------------------------------------------------------
The following paragraphs explain how each paragraph of the new
Sec. 14.4 would change existing regulations about the permit
application process.
14.4(a) Complete Application Requirement
Existing regulations in Sec. 14.28 state that when an application
is incomplete or does not conform with law, the NPS may either provide
an applicant with an opportunity to correct deficiencies in a ROW
permit application or reject the application outright. New paragraph
(a) of Sec. 14.4 would state the NPS will not begin processing a ROW
permit application until it has determined the applicant has complied
with the requirements in part 14, including the submission of all
required information. This change would reflect existing practice
because the NPS does not reject incomplete applications. Instead, the
NPS informs applicants that they must provide additional information to
complete the application before the NPS will begin formal review and
processing. This practice is consistent with how other DOI bureaus
handle incomplete applications and prevents the NPS from expending
limited staff resources on incomplete applications that do not have
enough information to allow for a proper evaluation. Paragraph (a)
would further state that making this determination does not guarantee
the NPS will issue a ROW permit.
14.4(b) Application Form
Existing regulations in Sec. 14.21 require the applicant to
include some general information with an application (e.g., a statement
that the application is made pursuant to existing regulations, a
citation to the statutory authority for the ROW, and a description of
the purposes of the ROW), but do not require applications to be
submitted on a specific form.
New paragraph (b) of Sec. 14.4 would require applicants to use
Standard Form 299 Application for Transportation and Utility Systems
and Facilities on Federal Lands (SF-299) for all requests for ROW
permits. Requiring the use of this form is consistent with Executive
Order 13821, ``Streamlining and Expediting Requests to Locate Broadband
Facilities in Rural America,'' dated January 8, 2018, which requires
all Federal property managing agencies to use the SF-299, or the
applicable common form approved by the General Services Administration
at the time of the application. The NPS and most Federal property
managing agencies (e.g., BLM, USFS, FWS) already use this form for
applicants seeking to operate and maintain infrastructure on lands
administered by those agencies.
Paragraph (b) also would require that applicants provide all
materials required in the SF-299 and elsewhere in part 14. If materials
have been provided in connection with a ROW permit previously issued by
the NPS for the same System unit, then the NPS may decide that the
applicant is not required to resubmit those materials, provided the
previous date of filing, place of filing, and existing ROW permit
number are included in the new application. This provision would reduce
the regulatory burden on applicants by ensuring that NPS requests only
the documentation that it requires to process an application. Finally,
paragraph (b) would require applicants or their authorized
representatives to sign the SF-299 and require applicants to submit the
application charge pursuant to Sec. 14.7.
14.4(c) Applicant Documentation
In proposed paragraph (c) of this section, the NPS would
consolidate and update information requirements currently codified in
Sec. 14.23 for applicants that are corporations, and in Sec. 14.24
for applicants that are individuals or associations of individuals. New
paragraph (c)(1) would contain required information for corporations.
These requirements would not be substantively different than what is
currently required in Sec. 14.23. New
[[Page 48854]]
paragraph (c)(2) would contain required information for partnerships,
limited liability companies, and similar entities. These requirements
would not be substantively different than what is currently required in
Sec. 14.24 for associations of individuals. For individuals, new
paragraph (c)(3) would state applications must be accompanied by
evidence of U.S. citizenship. The rule would omit outdated and
extraneous language in existing Sec. 14.24 about naturalization and
marital status.
14.4(d) Maps
Existing regulations in Sec. 14.25(a) contain detailed mapping
requirements that are overly prescriptive and outdated. For example,
the existing regulations require applicants to prepare maps on tracing
linen, or on tracing paper having a 100 percent rag content. New
paragraph (d) of Sec. 14.4 would simply require maps to meet current
NPS mapping standards. This would allow applicants to submit digital
maps, which reflect current mapping technology. The NPS would retain
discretion to require an official land survey, legal description, and
digital information when helpful or necessary to adequately assess an
application. Consistent with current practice, new paragraph (d) also
would require that maps, at a minimum, include the area proposed to be
included in the ROW, including the placement of infrastructure,
proposed access point and routes (including use of existing roads), and
other areas associated with the ROW.
14.4(e) Water Rights
Existing paragraph (b) of Sec. 14.25 allows the NPS to
conditionally grant a ROW permit if doing so is a prerequisite for
obtaining evidence of a water right from a State official. This
provision has not been used by the NPS ROW Program and puts the NPS in
the position of expending resources on speculative projects. Similar to
the existing regulations, new paragraph (e) of Sec. 14.4 would
require, unless otherwise required by Federal law, that applicants
requesting authorization to operate and maintain infrastructure to
support the storage, diversion, conveyance, or use of water, include
proof of a valid water right from the appropriate state official or
state law as part of a complete application. This would ensure that,
for such projects, the NPS only issues ROW permits to applicants that
hold valid water rights.
14.4(f) Access
Existing regulations in Sec. 14.7 allow the NPS to grant to a ROW
holder an additional ROW for ingress and egress to the primary ROW. The
additional ROW must be reasonably necessary to facilitate the use of
the primary ROW, and may include the right to construct, operate, and
maintain facilities necessary for ingress and egress. The regulations
require the ROW holder to apply for the additional ROW in a similar
manner that it applied for the primary ROW.
The proposed rule would create an efficiency by removing the need
to apply for an additional ROW for routes of access. As part of a
complete ROW permit application, new paragraph (f) would require the
applicant include a description of proposed access routes and means of
access. The rule would state that access routes and means of access
will be limited to existing roads, or existing or NPS-approved routes,
trails, or access points. The NPS has no general legal authority to
authorize other entities to establish new roads in a System unit,
including for purposes of accessing ROWs. For this reason, the rule
would state that ROW permits will not authorize the construction of new
roads, unless specifically authorized by statute. Lastly, new paragraph
(f) would state that ROW permits do not grant a right of access and
that agreed-upon access routes and means of access are discretionary
and revocable. This statement will preclude requests that rights of
access be expressly established in ROW permits, or that that they are
implied by ROW permits that have been issued.
14.4(g) Co-Location
The NPS is proposing a new regulatory provision to encourage the
co-location of infrastructure in System units. The co-location of
equipment can consolidate infrastructure in a geographic location and,
at the same time, influence the footprint and dimensions of
infrastructure at a particular site. For example, the location and
design of a cell tower that would accommodate multiple cell antennae
will be larger than a single user tower but may prevent towers in
multiple locations. While there are cases where the installation of new
or additional uses on existing infrastructure is not technologically
possible or needs to be accomplished in a certain manner to avoid
technical interference or conflict between the uses, whenever possible
and visually acceptable, all utilities should share a common corridor.
Consistent with this goal, new paragraph (g) would require applicants
to design new infrastructure to accommodate future co-location to the
greatest extent possible considering the potential impacts to System
unit resources, values, public health and safety, and visitor
experience. This paragraph also would require the applicant to
demonstrate that they have evaluated all options for co-location with
existing infrastructure prior to proposing a new or undisturbed
location for infrastructure. Finally, the paragraph would state that
entities proposing to co-locate infrastructure must obtain a separate
ROW permit.
14.4(h) Financial Assurance and Liability Insurance
Financial assurance ensures that in the event an operator becomes
insolvent or defaults on its financial obligations under a ROW permit,
in particular obligations to reclaim and restore the permitted area,
adequate funds will be available for reclamation. The requirement for
liability insurance ensures that the Federal government does not assume
any liability associated with the permittee's activities and that the
permittee is covered for injuries to persons or property caused by
permittee's activities.
Existing paragraphs (a)(11)-(14) of Sec. 14.22 authorize the NPS
to require an applicant to furnish security in an amount acceptable to
the NPS for costs incurred to administer the ROW permit, including
application costs, compliance costs, monitoring costs, and costs for
protection and rehabilitation, and make certain permittees liable for
such costs. These provisions are unnecessarily complicated and
inconsistent with current practice because the NPS does not require
financial assurance for administrative costs. Instead, the NPS proposes
a new paragraph (h) of Sec. 14.4 that would state that the NPS may
require applicants to provide proof of acceptable financial assurance
and liability insurance, as appropriate to the proposed project. This
statement is more consistent with how the NPS and other agencies
address financial assurance and liability insurance.
14.4(i) Additional Information
The NPS evaluates each application on a case-by-case basis
depending on the scope, location, and nature of the proposed activity.
The NPS proposes a new provision in paragraph (i) that would
specifically state that the NPS may require additional relevant
information from an applicant before the superintendent will consider
the application complete.
[[Page 48855]]
Sec. 14.5 Review of Complete Right-of-Way Permit Applications
------------------------------------------------------------------------
Proposed regulation Existing regulation
------------------------------------------------------------------------
14.5 Review of complete right-of-way N/A.
permit applications.
------------------------------------------------------------------------
Section 14.5 of the proposed rule would explain how the NPS
evaluates complete ROW permit applications. Paragraph (a) would
establish standards that each ROW permit application must meet in order
for the NPS to issue ROW permits. Subparagraph (a)(1) would state that
the NPS will only issue a ROW permit if the applicant's proposal is not
incompatible with the public interest and is consistent with applicable
laws, including the laws governing administration of the National Park
System, regulations, policy, and NPS planning documents. In part, this
provision would ensure that the NPS meets its responsibility under the
NPS Organic Act to conserve resources in the National Park System in
such manner that will leave them unimpaired for the enjoyment of this
and future generations. 54 U.S.C. 100101. Subparagraph (a)(2) would
require the applicant to demonstrate that there is no practicable
alternative to location of the infrastructure within the National Park
System. This provision is consistent with question 13 of the SF-299
which requires applicants to explain whether alternative locations
exist and, if so, why they were not chosen, and why it is necessary to
occupy Federal lands.
Paragraph (b) would state that the NPS, after completing review of
an application at the System unit, will notify the applicant in writing
that the ROW application is conditionally approved, or denied with an
explanation. If a ROW permit is conditionally approved, the NPS will
send the applicant a final version of the ROW permit for signature.
Paragraph (c) would require the applicant to sign a conditionally
approved ROW permit prior to its execution by the NPS. These
requirements would also apply to amended ROW permit, including
transfers which are documented by an amendment. This would be stated in
paragraph (c) in Sec. 14.13 and paragraph (e) of Sec. 14.14 of the
rule. Paragraph (c)(2) would clarify that no ROW permit is valid until
it has been executed by the NPS, which may not occur, in some cases, if
further review by the NPS results in a determination that the ROW would
not meet the standards identified in paragraph (a). Execution by the
NPS represents final approval of a ROW permit.
Paragraph (d) would allow the NPS, in its discretion, to suspend or
terminate the application process at any time prior to execution of a
ROW permit by the NPS if the applicant (1) is delinquent in paying any
cost recovery, use and occupancy fees, or other debts to the Federal
government; (2) has an unresolved criminal or civil violation with the
Federal government; (3) has been notified that it is liable for damages
under the System Unit Resource Protection Act (SURPA), 54 U.S.C.
100721-100725, for injuries to System resources, or has not resolved or
fully paid response costs and damages under SURPA; or (4) has caused
unpermitted resource damage, impacts to visitors, management problems,
or the applicant has violated the terms and conditions of any permit
issued by a Federal agency, including the NPS. This behavior and
conduct provision is consistent with regulations for other Federal
agencies. See, for example, 43 CFR 2804.25(b) and 2808.12 (BLM); and 36
CFR 251.54(e) (USFS). It gives fair notice to applicants that they must
resolve the issues of behavior and conduct identified in paragraph (d)
prior to applying for a ROW permit from the NPS.
Sec. 14.6 Application Withdrawal
------------------------------------------------------------------------
Proposed regulation Existing regulation
------------------------------------------------------------------------
14.6 Application withdrawal......... N/A.
------------------------------------------------------------------------
The rule would add a new provision in Sec. 14.6 that would clarify
application withdrawal procedures. Paragraph (a) would allow an
applicant to withdraw an application at any time during the application
process. Paragraph (b) would create a presumption, without further
notice to the applicant, that the applicant has withdrawn its
application if at any time during the permitting process an applicant
fails to respond to a written communication from the NPS for a period
of 90 days or longer. The NPS has experienced situations where an
applicant demonstrates interest in seeking a ROW permit, engages NPS
staff, begins an application process, and then abandons the proposal
without notifying the NPS. Superintendents and other System unit staff
have competing responsibilities and new applications for ROW permits
are added to already developed workplans and workloads. This provision
would help superintendents and other NPS staff prioritize active
projects and devote limited resources toward serious and timely
proposals. Paragraph (c) would clarify that once a permit application
is withdrawn or presumed withdrawn, the permitting process is
terminated. If the applicant wishes to restart the application process,
it must submit a new SF-299 (or other approved common form).
Sec. 14.7 Cost Recovery
------------------------------------------------------------------------
Proposed regulation Existing regulations
------------------------------------------------------------------------
14.7 Cost recovery.................. 14.22 Reimbursement of
costs.
14.37 Reimbursement of
costs.
------------------------------------------------------------------------
The NPS has authority to recover actual costs it incurs to
administer special use permits, including ROW permits and special use
permits for construction, under 54 U.S.C. 103104. Existing sections
14.22 and 14.37 address the reimbursement of administrative costs to
the NPS incurred both before and after the ROW permit is issued. These
provisions are outdated because they were written before the NPS
received its current statutory authorization to recover costs under 54
U.S.C. 103104.
The NPS proposes to replace sections 14.22 and 14.37 with a new
Sec. 14.7 that would address how the NPS recovers administrative costs
from ROW permit applicants and permittees. Paragraph (a) would state
that the NPS will recover all costs from applicants and permittees
under 54 U.S.C. 1030104 according to NPS cost recovery policy. The rule
would state that this can include administrative costs for withdrawn or
denied applications and suspended or terminated ROW permits. Paragraph
(b) would require applicants to pay an initial application charge,
unless waived by the NPS pursuant to NPS cost recovery policy, and
would describe how the NPS calculates a minimum application charge
based upon a reasonable estimate of the least amount of employee time
needed to process applications. Paragraph (b) also would clarify that
the minimum application charge addresses the costs incurred by the NPS
in initially discussing and reviewing an application for completeness
and does not represent the entirety of costs that may be recovered.
Sec. 14.8 Use and Occupancy Fee
------------------------------------------------------------------------
Proposed regulation Existing regulation
------------------------------------------------------------------------
14.8 Use and occupancy fee.......... 14.26 Payment required;
exceptions; default; revision of
charges.
------------------------------------------------------------------------
A use and occupancy fee is owed to the United States in an amount
equal to the fair market value for the use and
[[Page 48856]]
occupancy of federally owned lands and waters within the National Park
System under a ROW permit. Existing Sec. 14.26 is outdated and overly
prescriptive, particularly in setting a valuation method. The existing
regulations require an appraisal in every case to make a fair market
value determination. Appraisals can be costly and time consuming and in
some circumstances are not necessary to determine fair market value.
This rule would replace existing Sec. 14.26 with a new Sec. 14.8.
Paragraph (a) would establish the requirement that, subject to the
exemptions in paragraph (e), all permittees must pay a use and
occupancy fee to the NPS. Paragraph (b) would state that the use and
occupancy fee will be the fair market value of the use and occupancy of
federally owned lands and waters under the ROW permit, as determined by
the NPS. Subparagraph (b)(1) would allow the NPS to adopt any DOI-
approved method to determine the use and occupancy fee. This approach
is consistent with a current rulemaking action by the FWS.\1\ It would
reduce the time and cost necessary to determine the fair market value
of many ROWs in System units and therefore make the application process
faster and less expensive for applicants. Paragraph (b)(2), would state
that costs for administration of the ROW program will be collected by
the NPS in accordance with OMB Circular A-25, Memorandum for Heads of
Executive Departments and Establishments: User Charges at the current
indirect cost rate, and will be retained from the use and occupancy
fees collected on ROW permits. Paragraph (b)(3) would give the NPS
discretion to consider exempt and non-exempt uses and users in
determining the use and occupancy fee. When there is a mix of
potentially exempt and non-exempt uses or users served by
infrastructure, the potentially exempt uses or users may be eligible
for a use and occupancy fee exemption on sufficiently discrete
identifiable portions of the infrastructure that exclusively serve the
exempt uses or users.
---------------------------------------------------------------------------
\1\ To view the FWS rulemaking action, search for ``FWS-HQ-NWRS-
2019-0017'' on www.regulations.gov.
---------------------------------------------------------------------------
Market conditions that affect the value of the use and occupancy of
Federal lands and waters in System units can, and often do, change
during the term of a ROW permit. Paragraph (c) would allow the NPS to
re-evaluate the use and occupancy fee at any time during the term of
the ROW permit, but at a minimum every 10 years, so that the American
taxpayer receives fair market value for the use and occupancy of the
Federal lands and waters subject to the ROW. Paragraph (d) would state
that the use and occupancy fee will be re-evaluated during permit
renewal and when a subsequent ROW permit is issued for infrastructure
that was authorized under an expired ROW permit that was not renewed in
a timely manner.
Paragraph (e) would update the exemptions from paying a use and
occupancy fee. Exemptions would be discretionary and infrastructure
must be used exclusively for one or more of the qualifying criteria.
The rule would largely maintain the exemptions in existing paragraph
(c) of Sec. 14.26, but clarify circumstances where exemptions may be
available. The rule would remove the exemption for irrigation projects
because it is not a common use within System units. Similarly, the rule
replaces exemptions for non-profit and Rural Electrification
Administration projects with a discretionary exemption for projects
that clearly support the public interest and the mission and values of
the System unit.
Sec. 14.9 Resource Impact Considerations
------------------------------------------------------------------------
Proposed regulation Existing regulation
------------------------------------------------------------------------
14.9 Resource impact considerations. 14.6 In form of easement, license,
or permit.
14.9(b), (c), (e), and (g) Terms
and conditions.
------------------------------------------------------------------------
Existing regulations at Sec. 14.6 allow permittees to use
materials removed during construction elsewhere along the same ROW in
the construction of the same project. Existing regulations in Sec.
14.9 require ROW permittees to agree to specific terms and conditions
that prescriptively address mitigation for various types of impacts to
System unit resources during construction and maintenance operations.
Paragraph (b) addresses the disposition of vegetative and other
material cut, uprooted, or otherwise accumulated during construction
and maintenance. Paragraph (c) addresses soil and resource conservation
and protection measures, such as weed control. Paragraph (e) addresses
roads, fences, and trails that are destroyed or injured from
construction work. Paragraph (g) addresses reimbursement for
merchantable timber that is cut, removed, or destroyed in the
construction and maintenance of the project.
Because potential mitigation actions will vary among System units,
and even within a System unit, based on the nature and scope of each
permitted activity, this rule would replace the special allowance in
Sec. 14.6 and the prescriptive requirements referenced above for a new
Sec. 14.9 that would make general statements about disposition,
mitigation, and compensation resulting from resource damage. This
section would state that the NPS may direct the use and disposition of
all disturbed resources and may require a permittee to mitigate or
compensate for impacts to resources and lost uses from permitted
activities. Although not stated in the rule, compensation collected by
the NPS may be retained under 54 U.S.C. 100724(a) and used for
mitigation actions taken by the NPS on behalf of the permittee.
Sec. 14.10 Terms and Conditions
------------------------------------------------------------------------
Proposed regulation Existing regulation
------------------------------------------------------------------------
14.10 Terms and conditions.......... 14.9 Terms and conditions.
14.31 Deviation from approved
right-of-way.
------------------------------------------------------------------------
Existing Sec. 14.9 contains a list of terms and conditions that
every permittee must agree to comply with in a ROW permit, except for
those that are waived by the Secretary in a particular case. Some of
the terms and conditions in this list are outdated or unnecessarily
specific and are therefore no longer necessary. For example, an
existing term and condition in paragraph (d) directs permittees to
prevent and suppress fires. This is no longer consistent with NPS
practice and policy regarding fire prevention and suppression.
This rule would replace existing Sec. 14.9 with new Sec. 14.10.
Paragraph (a) would state that the ROW permit will authorize specific
operation and maintenance activities and that any such activities not
specifically authorized in the ROW permit will require an additional
written authorization or amended ROW permit. This is necessary to allow
the NPS to evaluate potential new impacts to System unit resources,
values, and visitors, including impacts to public health and safety and
the visitor experience. This statement is consistent with Sec. 14.31
of the existing regulations, which requires written approval for
deviations. This rule would replace existing Sec. 14.31 with paragraph
(a) of new Sec. 14.10 and with new Sec. 14.14 (Right-of-way permit
amendment) discussed below.
Paragraph (b) would state that the NPS will issue a ROW permit for
a term that is consistent with applicable law and policy and may be up
to 50 years when determined appropriate by the NPS. Paragraph (c) would
require permittees to agree to a smaller set of minimum terms and
conditions in every approved ROW permit. Some of these
[[Page 48857]]
terms and conditions would be similar to those in existing Sec. 14.9,
but would more clearly reflect current NPS general practices and
policies. Because the NPS evaluates each request for a ROW permit on a
case-by-case basis, the rule would allow the NPS to require additional
terms and conditions, or make modifications to the terms and conditions
in the regulation, that could be used to address resource, management,
or public health and safety concerns that are specific to the
particular project and System unit.
Sec. 14.11 Special Use Permit for Construction
------------------------------------------------------------------------
Proposed regulation Existing regulation
------------------------------------------------------------------------
14.11 Special use permit for 14.29 Timely construction.
construction.
------------------------------------------------------------------------
Existing Sec. 14.29 requires permittees to complete construction
of infrastructure under a ROW permit in no more than five years or ten
years for good cause. The rule would remove these requirements because
they are no longer meaningful to current NPS practice regarding the
construction of infrastructure operated and maintained under a ROW
permit. As noted in previous sections, a ROW permit authorizes the and
the operation and maintenance of specific infrastructure within a
System unit. Construction activities have a shorter duration and have
potential impacts to System unit resources, values, public health and
safety, and visitor experience that are different than those posed by
operation and maintenance. Construction activities can include
activities associated with the addition, adjustment, exchange, or
removal of infrastructure. Construction of infrastructure is an
integral step in and can occur at different stages after a ROW permit
is issued. For these reasons, the NPS authorizes the construction of
infrastructure under a separate special use permit.
This rule would create a new Sec. 14.11 that addresses the
application process for obtaining a special use permit for
construction. Paragraphs (a)-(c) would require a separate special use
permit before a ROW permittee initiates construction activities,
require the special use permit applicant to use the current special use
permit application form, and require the special use permit applicant
to submit a complete application to the NPS before the NPS will process
the application. Paragraph (d) would state that the NPS will only issue
a special use permit for construction either simultaneously with the
execution of a ROW permit, or after a ROW permit has been executed.
This would ensure that the NPS permits construction activities only
when the use of the lands or waters is authorized and for
infrastructure that has been separately approved for operation and
maintenance. Paragraph (e) would identify information that must be
submitted on an application for a special use permit for construction,
including construction drawings, an equipment list, a construction
schedule, maps, and a restoration plan (as applicable). During the pre-
application meeting and the initial processing of the permit, the NPS
may request additional information from the applicant related to
construction activities. The NPS cost recovery authority 54 U.S.C.
103104 applies to special use permits for construction and the NPS will
recover costs consistent with NPS policy.
The NPS has issued special use permits for construction of
infrastructure that is part of a larger project occurring outside of
the System unit, and then the permittee has been unable to secure the
remaining permits and rights to complete the larger project. This has
resulted in unnecessary impacts to System unit resources. To help avoid
these outcomes, paragraph (f) would allow the NPS to require an
applicant for a special use permit for construction to provide an
affidavit stating that all other required land rights, water rights,
permits, certifications, approvals, and authorizations necessary for a
viable project have been secured.
Sec. 14.12 Right-Of-Way Permit Renewal
------------------------------------------------------------------------
Proposed regulation Existing regulation
------------------------------------------------------------------------
14.12 Right-of-way permit renewal... N/A.
------------------------------------------------------------------------
Section 14.12 of the proposed rule would establish procedures that
permittees must follow prior to the expiration of an existing ROW
permit to obtain a new ROW permit in time for associated infrastructure
to remain where it is in the System unit. Paragraph (a) would explain
that, in practice, a ROW permit renewal is actually the issuance of a
new, separate ROW permit that is approved before the expiration of an
existing ROW permit for the use of lands and waters, and the operation
and maintenance of the same infrastructure, and that the new ROW permit
may contain new terms and conditions, as applicable. These new terms
and conditions could change the use and occupancy fee and requirements
for financial assurance and liability insurance. Subparagraphs (b)(1)
and (b)(2) would encourage permittees to submit complete applications
for new ROW permits, following the procedures in Sec. 14.4, at least
six months prior to the expiration of an existing ROW permit in order
to complete a timely renewal. Paragraph (b)(3) would state that the
term a ROW permit may only be re-established for a new and continuous
term through timely renewal. Paragraph (b)(4) would state that the
decision to renew a ROW permit is at the discretion of the NPS.
Paragraph (c) would clarify that if a ROW permit expires prior to the
issuance of a renewal, the infrastructure that had been authorized
under the ROW permit will, upon expiration, be considered in trespass
under Sec. 14.15.
Sec. 14.13 Right-Of-Way Permit Transfer
------------------------------------------------------------------------
Proposed regulation Existing regulations
------------------------------------------------------------------------
14.13 Right-of-way permit transfer.. 14.36 Method of filing.
14.37 Reimbursement of
costs.
------------------------------------------------------------------------
ROW permit transfers are necessary if a current permittee intends
to convey ownership or control of and responsibility for associated
infrastructure to a new entity. The NPS proposes to replace existing
Sec. 14.36 with a new Sec. 14.13 that reflects current procedures
used by the NPS for the transfer of a ROW permit. The new section is
substantively similar to existing Sec. 14.36. Paragraph (a) would
explain when ROW permit transfers are necessary. Subparagraphs (b)(1)
and (b)(2) would require the existing permittee to submit a written
transfer request and the new permittee to submit a notice of acceptance
and agreement to comply with the terms and conditions of the ROW
permit, plus information that must be submitted by the existing and new
permittees. Paragraph (c) would clarify that the existing permittee
will remain responsible for compliance with the terms and conditions of
the ROW permit, including all financial obligations, unless and until a
transfer is approved in writing by the NPS. The NPS proposes to remove
existing Sec. 14.37, which requires a nonrefundable payment of $25 for
all filings for permit transfers as a form of cost recovery. The NPS no
longer charges this fee, which would not come close to offsetting the
administrative costs of transferring a permit, and instead charges a
cost recovery fee commensurate with actual administrative costs under
54 U.S.C. 103104.
[[Page 48858]]
Sec. 14.14 Right-Of-Way Permit Amendment
------------------------------------------------------------------------
Proposed regulation Existing regulation
------------------------------------------------------------------------
14.14 Right-of-way permit amendment. 14.31 Deviation from approved
right-of-way.
------------------------------------------------------------------------
The NPS proposes to establish procedures for amending an existing
ROW permit in a new Sec. 14.14. Paragraph (a) would allow a permittee
to request or the NPS to initiate an amendment to a ROW permit. This
paragraph also would state that if the NPS initiates an amendment, it
will provide notice to the permittee. Paragraph (b) would state that an
amendment could address infrastructure, location, access, operation and
maintenance activities, the use and occupancy fee, a new permittee as a
result of an approved transfer, or other terms and conditions.
Subparagraphs (b)(1) and (b)(2) would state that amendments to
authorized uses, including infrastructure, or to authorized locations
will require the permittee to submit some or all of the materials that
are required for new applications under Sec. 14.4, and if the
amendments are significant, the submission of a completely new
application under Sec. 14.4. An example of a significant amendment
would be a request to add new infrastructure outside of the approved
permitted area. These provisions are consistent with existing Sec.
14.31, which requires an amended application for substantial
deviations, that would be replaced by these new subparagraphs of Sec.
14.14 and by new paragraph (a) of new Sec. 14.9 (Terms and conditions)
discussed above.
As explained above, section 14.12 of the proposed rule states that
the full term of a ROW permit can only be reset if the permit is
renewed in a timely manner. The NPS recognizes, however, that there may
be barriers that arise that prevent timely renewal. For this reason,
paragraph (c) of Sec. 14.14 would allow the NPS to extend the term of
an existing ROW permit by amendment, for up to one year, if there is a
reasonable delay or ongoing good faith negotiations regarding the
renewal of an expiring ROW permit. Paragraph (d) would require the
permittee to submit amendment requests in writing with information
necessary for the NPS to evaluate the request. In paragraph (d)(7), the
rule would allow the NPS to require additional informational necessary
to properly evaluate a requested amendment. Paragraph (e) would state
that decisions to approve amendments are at the discretion of the NPS,
and that any approved amendment is deemed part of the original ROW
permit.
Sec. 14.15 Right-Of-Way Permit Suspension and Termination
------------------------------------------------------------------------
Proposed regulation Existing regulations
------------------------------------------------------------------------
14.15 Right-of-way permit suspension 14.30 Nonconstruction,
and termination. abandonment or nonuse.
14.33 Order of
cancellation.
------------------------------------------------------------------------
Section 14.30 of the existing regulations allows the NPS to cancel
ROW permits for failure to construct within the period allow and for
abandonment or nonuse. Section 14.33 of the existing regulations allows
the NPS to cancel ROW permits for any violation of the regulations or
permit terms and conditions. The NPS proposes to replace these
provisions with a new Sec. 14.15 that addresses termination of a ROW
permit by either the NPS or the permittee, suspension of a ROW permit
by the NPS, and for the first time in regulations creates an
opportunity for permittees to cure the cause of the suspension or
termination. Paragraph (a) would state that at any time upon written
notice provided to the permittee, the NPS may suspend or terminate all
or any part of the permit without liability or expense to the United
States. If the NPS intends to suspend or terminate all or part of a ROW
permit, paragraph (b) would allow the NPS to provide the permittee with
an opportunity to cure the cause of the suspension or termination prior
to it taking effect. Paragraph (c) would list the most common, specific
reasons for suspension and termination of a ROW permit, and also state
that the NPS may suspend or terminate a ROW permit at its discretion.
If a permittee seeks to terminate a ROW permit, paragraph (d) would
require the permittee to provide written notice to the NPS and identify
the desired date of termination. Paragraph (e) would state that, upon
suspension, the permittee remains responsible for fulfilling all
obligations under the permit, including payment of any use and
occupancy fees and cost recovery due. Paragraph (f) would state that,
upon termination, the permittee remains responsible for fulfilling all
permit obligations, including required payments, restoration and
reclamation activities. The ongoing duties and responsibilities are
meant to protect the American taxpayer from incurring the permittee's
liabilities and financial responsibilities.
Sec. 14.16 Trespass
------------------------------------------------------------------------
Proposed regulation Existing regulation
------------------------------------------------------------------------
14.16 Trespass...................... 14.8 Unauthorized occupancy.
------------------------------------------------------------------------
Section 14.8 of the existing regulations states that occupancy and
use of Federal lands without authority will result in prosecution and
liability for trespass. This rule would replace this section with more
comprehensive regulations about trespass in a new Sec. 14.16.
Paragraph (a) would expressly prohibit any uses, activities, or
infrastructure not specifically authorized under a valid ROW permit or
other legal authorization and state that such uses are considered a
trespass against the United States. Paragraph (b) would allow the NPS
to require an entity in trespass to immediately remove the
infrastructure and cease the uses or associated activities, and to
pursue additional legal remedies, penalties, and fees. Paragraph (c)
would allow the NPS to continue to enforce the terms and conditions of
an expired ROW permit, including the collection of cost recovery and
use and occupancy fees. Paragraph (d) would allow the NPS to require an
entity to apply for a permit that authorizes maintenance activities on
infrastructure in trespass. This permit would not cure the trespass and
be considered only to maintain the safety of the infrastructure, and to
protect public health and safety, visitor experience, or the resources
and values of the System unit.
Sec. 14.17 Penalties
------------------------------------------------------------------------
Proposed regulation Existing regulation
------------------------------------------------------------------------
14.17 Penalties..................... N/A.
N/A................................. 1.3 Penalties.
------------------------------------------------------------------------
The NPS proposes to add a new provision in Sec. 14.17 and make a
corresponding revision to Sec. 1.3 so that a violation of any
regulation in part 14 or any term and conditions of a ROW permit may
result in criminal penalties provided under 18 U.S.C. 1865, including
fine, imprisonment, or both.
Sec. 14.18 Restoration and Reclamation
------------------------------------------------------------------------
Proposed regulation Existing regulation
------------------------------------------------------------------------
14.18 Restoration and reclamation... 14.38 Disposal of property on
termination of right-of-way.
------------------------------------------------------------------------
Existing Sec. 14.38 gives permittees at least six months to remove
property and improvements from the ROW before they become the property
of the United States. This provision would be replaced by subparagraph
(c)(7) of Sec. 14.10 of the rule, which requires as a standard term
and condition of each ROW permit that the permittee remove all
infrastructure from the permitted area within at least six months of
the expiration or termination of the ROW permit.
[[Page 48859]]
New Sec. 14.18 of the rule would establish procedures and
requirements for site restoration and reclamation in addition to those
included in the terms and conditions of a ROW permit. Paragraph (a)
would require the permittee, after the expiration or termination of the
ROW permit, to restore or reclaim the permitted area to NPS standards
directed and approved by the NPS. If the required reclamation and
restoration activities are not addressed in the approved ROW permit,
the NPS may require the permittee to apply for and obtain a separate
special use permit authorizing those activities, with appropriate terms
and conditions. The special use permit will establish a reasonable
schedule for completion of all reclamation and restoration activities
under the permit. If those activities are not completed within a
reasonable period of time, or according to the schedule established in
the special use permit, paragraph (b) would make the permittee liable
to the NPS for all costs associated with reclamation or restoration of
the permitted area undertaken by the NPS, or its contractor, to the
satisfaction of the NPS. Paragraph (b) also would state that the
permittee's liability for such costs survives the expiration or
termination of the ROW permit.
Compliance With Other Laws, Executive Orders and Department Policy
Regulatory Planning and Review (Executive Orders 12866 and 13563 and
14094)
Executive Order 12866, as amended by Executive Order 14094,
provides that the Office of Information and Regulatory Affairs (OIRA)
in the Office of Management and Budget will review all significant
rules. OIRA has determined that the proposed rule is not significant.
Executive Order 14094 amends Executive Order 12866 and reaffirms
the principles of Executive Order 12866 and Executive Order 13563 and
states that regulatory analysis should facilitate agency efforts to
develop regulations that serve the public interest, advance statutory
objectives, and be consistent with Executive Order 12866, Executive
Order 13563, and the Presidential Memorandum of January 20, 2021
(Modernizing Regulatory Review). Regulatory analysis, as practicable
and appropriate, shall recognize distributive impacts and equity, to
the extent permitted by law.
Executive Order 13563 reaffirms the principles of Executive Order
12866 while calling for improvements in the nation's regulatory system
to promote predictability, to reduce uncertainty, and to use the best,
most innovative, and least burdensome tools for achieving regulatory
ends. Executive Order 13563 directs agencies to consider regulatory
approaches that reduce burdens and maintain flexibility and freedom of
choice for the public where these approaches are relevant, feasible,
and consistent with regulatory objectives. Executive Order 13563
emphasizes further that regulations must be based on the best available
science and that the rulemaking process must allow for public
participation and an open exchange of ideas. The NPS has developed this
proposed rule in a manner consistent with these requirements.
Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.)
generally requires that Federal agencies prepare a regulatory
flexibility analysis for rules subject to the notice-and-comment
rulemaking requirements under the Administrative Procedure Act (5
U.S.C. 500 et seq.), if the rule would have a significant economic
impact, whether detrimental or beneficial, on a substantial number of
small entities. See 5 U.S.C. 601-612. Congress enacted the RFA to
ensure that government regulations do not unnecessarily or
disproportionately burden small entities. Small entities include small
businesses, small governmental jurisdictions, and small not-for-profit
enterprises.
The proposed rule would benefit small businesses by streamlining
NPS regulations for permitting ROWs and thereby reducing the amount of
time that NPS requires to issue many ROW permits. The proposed rule
would suggest optional pre-application meetings to provide small
businesses with information early in the process about the NPS's
estimated time and cost to evaluate and process a ROW permit
application, increasing regulatory certainty. The NPS reviewed the
Small Business Size standards for the affected industries and
determined that a large share of the entities in the affected
industries are small businesses as defined by the Small Business Act.
The NPS believes, however, that the impact on the small entities is not
significant because the proposed rule would impact a small number of
small entities, and those effects would not be economically
significant. In summary, the NPS has considered whether this proposed
rule would result in a significant economic impact on a substantial
number of small entities. The NPS certifies that, if made final, this
proposed rule will not have a significant economic impact on a
substantial number of small business entities. Therefore, an initial
regulatory flexibility analysis is not required.
Congressional Review Act
This proposed rule is not a major rule under 5 U.S.C. 804(2). This
rule:
(a) Does not have an annual effect on the economy of $100 million
or more.
(b) Will not cause a major increase in costs or prices for
consumers, individual industries, federal, state, or local government
agencies, or geographic regions.
(c) Does not have significant adverse effects on competition,
employment, investment, productivity, innovation, or the ability of
U.S.-based enterprises to compete with foreign-based enterprises.
Unfunded Mandates Reform Act
This proposed rule would not impose an unfunded mandate on Tribal,
State, or local governments or the private sector of more than $100
million per year. The rule does not have a significant or unique effect
on Tribal, State, or local governments or the private sector. It
addresses public use of national park lands and imposes no requirements
on other agencies or governments. A statement containing the
information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531
et seq.) is not required.
Takings (Executive Order 12630)
This proposed rule would not effect a taking of private property or
otherwise have takings implications under Executive Order 12630. A
takings implication assessment is not required.
Federalism (Executive Order 13132)
Under the criteria in section 1 of Executive Order 13132, the
proposed rule would not have sufficient federalism implications to
warrant the preparation of a Federalism summary impact statement. This
proposed rule would only affect use of federally-administered lands and
waters. It would have no outside effects on other areas. The rule would
affect the NPS's administration of the ROW Program and have no
substantial, direct effects on the States, on the relationships between
the Federal Government and the States, or on the distribution of power
and responsibilities among the various levels of government. A
Federalism summary impact statement is not required.
[[Page 48860]]
Civil Justice Reform (Executive Order 12988)
This proposed rule complies with the requirements of Executive
Order 12988. This rule:
(a) Meets the criteria of section 3(a) requiring that all
regulations be reviewed to eliminate errors and ambiguity and be
written to minimize litigation; and
(b) Meets the criteria of section 3(b)(2) requiring that all
regulations be written in clear language and contain clear legal
standards.
Consultation With Indian Tribes and ANCSA Corporations (Executive Order
13175 and Department Policy)
The DOI strives to strengthen its government-to-government
relationship with Indian Tribes through a commitment to consultation
with Indian Tribes and recognition of their right to self-governance
and Tribal sovereignty. The NPS has evaluated this proposed rule under
the criteria in Executive Order 13175 and under the DOI's Tribal
consultation policy and has determined that tribal consultation is not
required because the proposed rule would not have a substantial direct
effect on federally recognized Indian Tribes. This proposed rule has no
impact on Tribal lands, as it applies only to ROW permits issued by the
NPS for the use and occupancy of lands and waters, and interests in
lands and waters, administered by the NPS within System units. Indian
tribes have jurisdiction over their own lands, subject to the
Secretary's trust responsibility. There will be opportunities for
consultation with Tribes on individual ROW permitting decisions.
Paragraph (a)(1) of Sec. 14.5 of the proposed rule would state that
the NPS will issue a ROW permit only if the proposed operation and
maintenance of infrastructure are consistent with applicable laws and
policies, including statutes governing administration of the National
Park System, regulations, and NPS planning documents. This evaluation
will include consideration of whether issuing the ROW permit would
cause a significant impact to one or more Tribes and, if so, the NPS
will consult with potentially affected Tribes prior to issuing the
permit under Executive Order 13175.
Paperwork Reduction Act
This rule does not contain any new collections of information that
require approval by the Office of Management and Budget (OMB) under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). OMB has
previously approved the information collection requirements associated
with the NPS's use of Common Form SF-299 and assigned OMB Control
Number 0596-0249 (currently under OMB review); and the currently
approved NPS form 10-930, assigned OMB Control Number 1024-0026
(currently under OMB review). You may view the information collection
request(s) at http://www.reginfo.gov/public/do/PRAMain. An agency may
not conduct or sponsor, and a person is not required to respond to, a
collection of information unless it displays a currently valid OMB
control number.
National Environmental Policy Act
This proposed rule does not constitute a major federal action
significantly affecting the quality of the human environment. A
detailed statement under NEPA is not required because the rule is
covered by a categorical exclusion. NPS NEPA Handbook (2015) Section
3.3.A.8 allows for the following to be categorically excluded:
``Modifications or revisions to existing regulations or the
promulgation of new regulations for NPS-administered areas, provided
the modifications, revisions, or new regulations do not:
a. Increase public use to the extent of compromising the nature and
character of the area or causing physical damage to it,
b. Introduce noncompatible 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.''
Alternatively, this rule is covered by the categorical exclusion in
Section 3.2.H, which allows for the following to be categorically
excluded: ``policies, directives, regulations, and guidelines that are
of an administrative, financial, legal, technical, or procedural
nature, or whose environmental effects are too broad, speculative, or
conjectural to lend themselves to meaningful analysis and will later be
subject to the NEPA process, either collectively or case-by-case.'' The
NPS has determined that the rule does not involve any of the
extraordinary circumstances listed in 43 CFR 46.215 that would require
further analysis under NEPA.
Effects on the Energy Supply (Executive Order 13211)
This proposed rule is not a significant energy action under the
definition in Executive Order 13211. The proposed rule is not likely to
have a significant adverse effect on the supply, distribution, or use
of energy, and the rule has not otherwise been designated by the
Administrator of Office of Information and Regulatory Affairs as a
significant energy action. A Statement of Energy Effects is not
required.
Clarity of This Rule
The NPS is required by Executive Orders 12866 (section 1(b)(12))
and 12988 (section 3(b)(1)(B)), and 13563 (section 1(a)), and by the
Presidential Memorandum of June 1, 1998, to write all rules in plain
language. This means that each rule the NPS publishes must:
(a) Be logically organized;
(b) Use the active voice to address readers directly;
(c) Use common, everyday words and clear language rather than
jargon;
(d) Be divided into short sections and sentences; and
(e) Use lists and tables wherever possible.
If you feel that the NPS has not met these requirements, send the
NPS comments by one of the methods listed in the ADDRESSES section. To
better help the NPS revise the rule, your comments should be as
specific as possible. For example, you should identify the numbers of
the sections or paragraphs that you find unclear, which sections or
sentences are too long, the sections where you feel lists or tables
would be useful, etc.
Public Participation
It is the policy of the DOI, 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 by one of the methods listed in the ADDRESSES
section of this document.
Public Availability of Comments
Before including your address, phone number, email address, or
other personal identifying information in your comment, you should be
aware that your entire comment--including your personal identifying
information--may be made publicly available at any time. While you can
ask the NPS in your comment to withhold your personal identifying
information from public review, the NPS cannot guarantee that it will
be able to do so.
List of Subjects
36 CFR Part 1
National parks, Penalties, Reporting and recordkeeping
requirements, and Signs and symbols.
[[Page 48861]]
36 CFR Part 14
Electric power, Highways and roads, Public lands-rights-of-way.
In consideration of the foregoing, the National Park Service
proposes to amend 36 CFR parts 1 and 14, as set forth below:
PART 1--GENERAL PROVISIONS
The authority citation for part 1 continues to read as follows:
0
1. Authority: 54 U.S.C. 100101, 100751, 320102.
Sec. 1.2 [Amended]
0
2. In Sec. 1.2(b) and (d), remove the word ``and'' after ``part 7,''
and add the words ``, and part 14'' after ``part 13''.
Sec. 1.3 [Amended]
0
3. In Sec. 1.3(a), remove the word ``and'' after ``12,'' and add in
its place a comma; and add the words ``, and 14'' after ``13''.
0
4. Revise part 14 to read as follows:
PART 14--RIGHTS-OF-WAY
Sec.
14.1 Purpose and scope.
14.2 Definitions for this part.
14.3 Pre-application meeting.
14.4 Right-of-way permit application.
14.5 Review of a complete right-of-way permit application.
14.6 Application withdrawal.
14.7 Cost recovery.
14.8 Use and occupancy fee.
14.9 Resource impact considerations.
14.10 Terms and conditions.
14.11 Special use permit for construction.
14.12 Right-of-way permit renewal.
14.13 Right-of-way permit transfer.
14.14 Right-of-way permit amendment.
14.15 Right-of-way permit suspension and termination.
14.16 Trespass.
14.17 Penalties.
14.18 Restoration and reclamation.
Authority: 54 U.S.C. 100902; 54 U.S.C. 100751; 54 U.S.C. 103104; 31
U.S.C. 9701
Sec. 14.1 Purpose and scope.
(a) The regulations in this part establish procedures an entity
must follow when applying for a right-of-way permit and provisions
under which the NPS may authorize a right-of-way within a National Park
System unit under applicable current or future statutory authority,
whether the statutory authority is System-wide or specific to a System
unit.
(b) The regulations in this part ensure that use of lands and
waters, and the operation and maintenance of infrastructure under a
right-of-way permit will:
(1) Comply with all applicable statutory authorities, including the
NPS Organic Act (54 U.S.C. 100101 et seq.);
(2) Protect lands, waters, and resources of the National Park
System; and
(3) Protect visitor uses and experiences within the National Park
System, as well as promote the health and safety of the public and NPS
employees and volunteers.
Sec. 14.2 Definitions for this part.
Applicant means an entity that has submitted an application for a
right-of-way permit or an application for a special use permit for
construction.
Co-location means the placement of infrastructure on or in
authorized infrastructure owned or controlled by another or within an
area authorized for use by another.
Entity means a party including, but not limited to, Federal, state,
and local governments, Tribes, citizens, and organizations of the
United States, including corporations, associations, partnerships, and
non-profit organizations.
Infrastructure means public utilities and power and communications
facilities, as described in 54 U.S.C. 100902, and any other equipment,
facility, installation or use that the NPS may authorize under a right-
of-way permit.
Operation and maintenance means the use of infrastructure for
purposes specifically authorized in a right-of-way permit, including
means of access and actions associated with its service on a routine
and on-going basis to ensure good order, safe conditions, and timely
repair.
Permitted area means the land or water mapped, described, and
authorized for use of lands and waters, and operation and maintenance
in a right-of-way permit or for construction in a special use permit
for construction, and may include routes and means of access.
Permittee means an entity that holds a current, fully executed
right-of-way permit or a special use permit for construction.
Right-of-way permit means a discretionary and revocable special use
permit issued by the NPS to authorize the use of lands and waters, and
operation and maintenance. A right-of-way permit does not grant,
convey, or imply transfer of title to any interest in, including a
leasehold or easement interest in, the lands or waters authorized for
use.
Special use permit for construction means a discretionary and
revocable special use permit issued by the NPS to authorize the
construction of infrastructure, or construction activities associated
with infrastructure, within the National Park System.
Sec. 14.3 Pre-application meeting.
Prior to submitting an application for a right-of-way permit, the
potential applicant should contact the superintendent of the System
unit that would be affected by the project to schedule a pre-
application meeting to discuss the project and the permitting process
along with applicable law and policy. Through a pre-application
meeting, the NPS may inform the potential applicant about documentation
needed to make an application complete, and provide the potential
applicant with an expected timeline and potential costs the NPS will
incur to review and process the application.
Sec. 14.4 Right-of-way permit application.
(a) Complete application requirement. The NPS will not begin
processing a right-of-way permit application until it has determined
the applicant has complied with the requirements in this part,
including the submission of all required information. Making this
determination does not guarantee the NPS will issue a right-of-way
permit.
(b) Application form.
(1) To request a right-of-way permit, applicants must submit a
complete Standard Form 299, Application for Transportation, Utility
Systems, Telecommunications and Facilities on Federal Lands and
Property (SF-299), or the applicable common form approved by the
General Services Administration at the time of the application,
including all materials required in the SF-299 and this part, to the
superintendent of the System unit. If materials required in this part
were previously filed with the superintendent for the issuance of
another right-of-way permit for the same System unit, the NPS may
decide the applicant is not required to resubmit these materials,
provided the previous date of filing, place of filing, and existing
right-of-way permit number are included in the new application.
(2) The SF-299 must be signed by the applicant or applicant's
authorized representative.
(3) The applicant must submit the application charge pursuant to
Sec. 14.7 of this part.
(c) Applicant documentation. Only citizens, corporations,
partnerships, and associations of the United States are eligible to
apply for a right-of-way permit.
(1) Corporations. An application by a corporation must include:
(i) A copy of its charter or articles of incorporation, duly
certified by the
[[Page 48862]]
proper official of the state where the corporation was organized.
(ii) A copy of the law under which the corporation was formed and
proof of organization and good standing under the same.
(iii) If a corporation is operating in a state other than its state
of incorporation, a certificate of good standing from the proper
official of the state where it is operating that it has complied with
the laws of that state governing foreign corporations operating in such
state.
(iv) An affidavit from the appropriate individual at the
corporation certifying:
(A) The corporation's ability to do business in the state or states
where the affected park area is located;
(B) The corporation's ability to file an application for the stated
purpose; and
(C) The ability of the individual filing the application to bind
and sign for the corporation for purposes of the application.
(2) Partnerships, limited liability companies, and similar
entities. An application by an association of individuals with legal
standing must be accompanied by:
(i) A certified copy of articles of association or other current
governing documents, if any, indicating appropriate signature authority
and authority to file the application. If these articles or documents
do not exist, all members must sign the application.
(ii) Evidence of U.S. citizenship for each individual member of the
association.
(3) Individuals. An application by an individual must be
accompanied by evidence of U.S. citizenship.
(d) Maps. (1) Applicants must provide a map that meets current NPS
mapping standards, showing at a minimum:
(i) The area proposed to be included in the right-of-way permit,
including the placement of proposed infrastructure; and
(ii) Proposed access points and routes (including uses of existing
roads), and other areas associated with the right-of-way permit.
(2) The NPS may require an official land survey, legal description,
and digital information.
(e) Water Rights. Unless otherwise required by Federal law,
applications requesting authorization to operate and maintain
infrastructure to support the storage, diversion, conveyance, or use of
water, must include proof of the applicant's valid water right from the
appropriate state official or state law.
(f) Access. (1) The applicant must include a description of
proposed access routes and means of access.
(2) Access routes and means of access will be limited to existing
roads, or existing or NPS-approved routes, trails, or access points.
(3) Unless otherwise provided by law, the NPS will not authorize
new roads by a right-of-way permit.
(4) No right of access is granted under a right-of-way permit.
Access routes and means of access identified in a right-of-way permit
are revocable at the discretion of the NPS.
(g) Co-location. (1) The applicant must design infrastructure to
accommodate co-location to the greatest extent possible after
consideration of potential impacts to park area resources, values,
public health and safety, and visitor experience.
(2) Before proposing a new or undisturbed location for
infrastructure, the applicant must demonstrate that they have evaluated
all options for co-location with existing infrastructure.
(3) Each entity seeking to co-locate will be required to have a
separate right-of-way permit.
(h) Financial assurance and liability insurance. As appropriate to
the proposed project, the NPS may require proof of acceptable financial
assurance and liability insurance.
(i) Additional Information. The NPS may require in writing that
applicants submit additional information before an application is
considered complete.
Sec. 14.5 Review of a complete right-of-way permit application.
(a) Standards of review. (1) The NPS will issue a right-of-way
permit only if the proposed use of lands and waters, and operation and
maintenance are not incompatible with the public interest and
consistent with applicable laws and policies, including statutes
governing administration of the National Park System, regulations, and
NPS planning documents.
(2) Except where Federal law provides otherwise, the NPS will issue
a right-of-way permit only if the applicant has demonstrated that there
is no practicable alternative to locating the infrastructure within the
National Park System.
(b) Managerial findings. After completing review of an application,
the NPS will notify the applicant in writing that the right-of-way
permit is:
(1) Conditionally approved; or
(2) Denied, with an explanation.
(c) Execution of right-of-way permits. The applicant must sign a
conditionally approved right-of-way permit prior to execution by the
NPS. No right-of-way permit is valid until it has been executed by the
NPS.
(d) Behavior and conduct. At any time during the application
process for a right-of-way permit, the NPS may, in its discretion,
suspend or end the application process if the applicant:
(1) Is delinquent in paying any cost recovery, use and occupancy
fees, or other debts to the Federal Government;
(2) Has an unresolved criminal or civil violation with the Federal
Government;
(3) Has been notified that they are liable for damages under the
System Unit Resource Protection Act (SURPA), 54 U.S.C. 100721-100725,
for injuries to park area resources, or have not resolved or fully paid
response costs and damages under SURPA; or
(4) Has caused unpermitted resource damage, impacts to visitors,
management problems, or the applicant has violated the terms and
conditions of any permit issued by a Federal agency, including the NPS.
Sec. 14.6 Application withdrawal.
(a) An applicant may withdraw an application at any time during the
permitting process.
(b) If at any time during the permitting process an applicant does
not respond to a written communication from the NPS within 90 days, the
NPS may presume that the application has been withdrawn without further
notice to the applicant.
(c) When an application is withdrawn or presumed withdrawn, the
permitting process is terminated and the applicant must resubmit a new
application pursuant to Sec. 14.4 of this part.
Sec. 14.7 Cost recovery.
(a) The NPS will recover all costs from applicants and permittees
pursuant to 54 U.S.C. 103104, according to NPS cost recovery policy,
even in the case of withdrawn or denied applications, and suspended or
terminated right-of-way permits. In addition to the application charge
referred to in paragraph (b) of this section, the NPS may recover other
actual costs incurred in processing an application for a right-of-way
permit or special use permit for construction, including, but not
limited to, costs incurred from completion of required compliance and
reviews, appraisal or valuation related costs, and costs incurred from
monitoring or managing permittee activities during the term of a
permit.
(b) An applicant must pay an application charge with each
application for a right-of-way permit unless this charge is waived by
the NPS pursuant to NPS cost recovery policy. The application charge
will include costs incurred by the NPS for initial discussions and
review of the
[[Page 48863]]
application to determine if it is complete.
(1) The minimum application charge for a right-of-way permit is the
cost of two hours of the System unit permit coordinator's time, plus
one hour of their supervisor's time, including overhead costs.
(2) If the System unit permit coordinator is the superintendent,
then the minimum application charge is the cost of two hours of the
superintendent's time, including overhead costs.
(3) The application charge addresses the costs incurred by the NPS
in initially discussing and reviewing an application for completeness
and does not constitute all of the costs that the NPS may recover.
Sec. 14.8 Use and occupancy fee.
(a) Every permittee must pay a use and occupancy fee to the NPS for
the use and occupancy of federally owned lands and waters within the
National Park System, except as provided in paragraph (e) of this
section.
(b) The use and occupancy fee will be the fair market value of the
use and occupancy of federally owned lands and waters under the right-
of-way permit.
(1) The NPS may adopt any method approved by the Department of the
Interior to determine the use and occupancy fee.
(2) Costs for administration of the right-of-way program will be
collected by the NPS in accordance with OMB Circular A-25 at the
current indirect cost rate and will be a retained percentage of use and
occupancy fees collected on right-of-way permits issued.
(3) If a permittee's infrastructure is for both exempt and non-
exempt uses or users, as provided in paragraphs (e)(1)-(4) of this
section, only those discrete portions that serve exempt uses or users
may be eligible for exemption from the use and occupancy fee.
(c) The use and occupancy fee may be re-evaluated at any time
during the term of a right-of-way permit at the discretion of the NPS,
but at a minimum will be re-evaluated every 10 years.
(d) The use and occupancy fee will be re-evaluated when a right-of-
way permit is renewed under Sec. 14.12 of this part and when a
subsequent right-of-way permit is issued for infrastructure that was
authorized under an expired right-of-way permit that was not renewed in
a timely manner.
(e) A permittee may be exempt from paying a use and occupancy fee
if their infrastructure is exclusively:
(1) Used by a Federal Government agency, including the NPS;
(2) Serving the purposes of an authorized use and occupancy for
which the NPS is already receiving compensation that was determined in
consideration of services provided by the permittee;
(3) Operated or used by a Tribal, state, or local government for a
direct non-commercial use; or
(4) For a project that is clearly in the public interest and
consistent with the purposes and values of the park area.
Sec. 14.9 Resource impact considerations.
The NPS may direct the use and disposition of resources disturbed
under a right-of-way permit. The permittee may be required to mitigate
or compensate for permitted impacts to NPS resources and lost uses.
Sec. 14.10 Terms and conditions.
(a) A right-of-way permit will authorize the permittee to conduct
specific operation and maintenance. Operation and maintenance not
specifically authorized in the right-of-way permit requires written
authorization or an amended right-of-way permit.
(b) The NPS will issue a right-of-way permit for a term that is
consistent with applicable law and policy and may be up to 50 years
when determined appropriate by the NPS.
(c) A permittee, by accepting a right-of-way permit, agrees and
consents to comply with and be bound by the following terms and
conditions, and any additional terms and conditions or modifications
that may be required by the NPS in a right-of-way permit:
(1) To comply with all applicable laws and policies, including NPS
regulations and planning documents.
(2) To ensure that all of its employees, agents, officers,
contractors, and subcontractors comply with all of the terms and
conditions of the right-of-way permit and requirements of this part.
(3) To pay the United States the full value of all damage to the
lands, waters, or other property of the United States caused by
permittee or permittee's employees, agents, officers, contractors, and
subcontractors, and to indemnify the United States against any
liability for damages to life, person, or property arising from
operation and maintenance; except that where a right-of-way permit is
issued to a state or other government agency whose power to assume
liability by agreement is limited by law, such state or agency shall
indemnify the United States as provided above to the extent allowed by
law.
(4) That the exercise of authorized activities under a right-of-way
permit will not unduly interfere with the management, administration,
or disposal by the United States of any land, waters, structures, or
interests in land or waters affected thereby. The permittee must agree
and consent to the use and occupancy by the United States, its
grantees, permittees, licensees, invitees, and lessees of any part of
the permitted area not actually occupied for the purpose of the right-
of-way permit to the extent that such use does not materially interfere
with the full and safe utilization thereof by the permittee.
(5) That except as expressly authorized by the right-of-way permit
or subsequently approved in writing by the NPS, the permittee may not
move, remove, alter, damage, or destroy any park area resources,
including vegetation, within the permitted area or other areas of the
System unit. As directed by the NPS, the permittee must take all
reasonable measures to avoid or minimize damage to park area resources.
The NPS may require mitigation or compensation for permitted impacts to
System unit resources authorized under this permit. The NPS may also
direct the use and disposition of the disturbed resources.
(6) That the NPS will have a right of access at any time to the
permitted area.
(7) That, unless an extension is granted in writing by the NPS,
within 6 months after the expiration or termination of the right-of-way
permit, the permittee will have completed removal of all infrastructure
from the permitted area, as well as restoration and reclamation of the
permitted area, to NPS standards directed and approved by the NPS. Any
infrastructure not removed within that time will be deemed abandoned
and will be disposed of in accordance with applicable Federal law, and
the permittee will be liable for all costs incurred by the NPS that are
associated with removing and disposing of such infrastructure, as well
as with restoration and reclamation of the permitted area, to the
satisfaction of the NPS. This obligation will survive the termination
or expiration of a right-of-way permit.
(8) That the right-of-way permit terms and conditions, use and
occupancy fee, and other stipulations and provisions may be modified
during a right-of-way permit transfer, amendment, or renewal process.
Sec. 14.11 Special use permit for construction.
(a) Permit requirement. Applicants must apply for and obtain a
separate special use permit for construction prior to beginning
construction associated with a right-of-way permit.
[[Page 48864]]
(b) Application form. The applicant must use the currently approved
application form for a special use permit.
(c) Complete application. The NPS will not begin processing an
application for a special use permit for construction until the NPS has
reviewed the application and determined that it is complete.
(d) Associated right-of-way permit. The NPS will only issue a
special use permit for construction simultaneously or after it issues
an associated right-of-way permit.
(e) Application information.
(1) The applicant must include all of the information required by
the currently approved special use permit application form. This
information must include, at a minimum, the following information:
(i) Description of proposed activity.
(ii) Requested location.
(iii) Proposed schedule, including proposed start and end dates,
and interim activities.
(iv) List of equipment.
(2) The applicant is encouraged to attach additional pages with
information useful in evaluating the permit request, including:
(i) Construction drawings.
(ii) A map showing areas for construction activities, including
staging areas and access routes.
(iii) A construction area restoration plan, as applicable.
(3) The NPS may require additional information by written request.
(f) Affidavit. Prior to issuing a special use permit for
construction, the NPS may require the applicant to provide an affidavit
stating that all other required land rights, water rights, permits,
certifications, approvals, and authorizations necessary for a viable
project have been secured.
Sec. 14.12 Right-of-way permit renewal.
(a) Right-of-way permit renewal means the issuance of a new,
separate, consecutive right-of-way permit, in response to a timely
right-of-way permit application, for a new term and with new terms and
conditions, as applicable.
(b) A permittee must submit a new, complete right-of-way permit
application to continue use of lands and waters, and operation and
maintenance of infrastructure beyond the term of a current right-of-way
permit, unless the current right-of-way permit is extended under Sec.
14.14(c) of this part.
(1) Permittees are encouraged to submit a timely, complete
application at least six months prior to expiration of their current
right-of-way permit.
(2) Renewal applications must meet the criteria in Sec. 14.4 of
this part.
(3) The term of a right-of-way permit may only be reset for a new
and continuous term by renewal.
(4) The decision to renew a right-of-way permit is at the
discretion of the NPS.
(c) If a right-of-way permit expires prior to issuance of a
renewal, the infrastructure that had been authorized under the right-
of-way permit will, upon expiration, be considered in trespass under
Sec. 14.16 of this part.
Sec. 14.13 Right-of-way permit transfer.
(a) Right-of-way permit transfers are necessary when a current
permittee intends to convey ownership or control of and responsibility
for the use and lands and waters, and operation and maintenance to a
new entity.
(b) The NPS will not consider a transfer request until both of the
following have occurred:
(1) The current permittee has provided a written request to the NPS
that is signed by a representative legally authorized to bind the
permittee, that contains the permit number and a statement clearly
describing the reason for the requested transfer.
(2) The new entity has provided the NPS with written notice of its
acceptance of and agreement to comply with the terms and conditions of
the existing right-of-way permit. The written notice must be signed by
a representative legally authorized to bind the new entity, and must
contain the following information:
(i) Name of the entity;
(ii) Address and phone number of the entity;
(iii) Name, title, and contact information of the representative of
the entity assuming responsibility for the right-of-way permit;
(iv) Statement affirming that the existing permitted uses,
permitted areas, and purposes specified in the right-of-way permit
remain the same;
(v) Proof of acceptable financial assurance and liability
insurance, if required as a condition of the right-of-way permit, or
requested as a modification by the NPS;
(vi) Proof of eligibility and suitability to hold a right-of-way
permit as required by Sec. 14.4 and Sec. 14.5 of this part; and
(vii) Any additional information that the NPS may require by
written request.
(c) The decision to approve a transfer is at the discretion of the
NPS. A right-of-way permit transfer will be documented as an amendment
to the existing right-of-way permit and will be reviewed and executed
using the procedures that apply to the review and execution of right-
of-way permits in paragraphs (a)-(d) in Sec. 14.5 of this part.
(d) Unless and until a transfer is approved in writing by the NPS,
the current permittee named on the right-of-way permit will remain
responsible for compliance with the terms and conditions of the right-
of-way permit, including all financial obligations.
Sec. 14.14 Right-of-way permit amendment.
(a) A permittee may request or the NPS may initiate an amendment to
a right-of-way permit. If the NPS initiates an amendment, it will
provide notice to the permittee.
(b) An amendment to an existing right-of-way permit may address
operation and maintenance, the use and occupancy fee, a new permittee
as a result of an approved transfers, or other terms and conditions.
(1) If a permittee requests an amendment to a right-of-way permit
that would modify, change, or add to the authorized uses or locations,
then the NPS may require the permittee to include some or all of the
materials required under Sec. 14.4.
(2) If modifications, changes, or additions to the authorized uses
or locations proposed by the permittee are deemed significant by the
NPS, then the NPS may require the permittee to submit a complete right-
of-way permit application requesting a new right-of-way permit.
(c) An amendment may not alter the term of a right-of-way permit,
except for a single extension of up to one year to prevent expiration
of the right-of-way permit when there is a reasonable delay or ongoing
good faith negotiations regarding renewal of an expiring right-of-way
permit.
(d) Requests by the permittee for an amendment to a right-of-way
permit must be in writing, signed by a representative legally
authorized to bind the permittee, and must contain the following
information:
(1) Right-of-way permit number;
(2) Permittee name;
(3) System unit name;
(4) Description of the activities and infrastructure authorized by
the right-of-way permit;
(5) Description of the proposed amendment;
(6) Description of the purpose or justification for the requested
amendment; and
(7) Other information required by the NPS.
(e) The decision to approve an amendment is at the discretion of
the NPS. Amendments will be reviewed and executed using the procedures
that apply to the review and execution of
[[Page 48865]]
right-of-way permits in paragraphs (a)-(c) in Sec. 14.5 of this part.
An approved amendment is deemed to be a part of the original right-of-
way permit.
Sec. 14.15 Right-of-way permit suspension and termination.
(a) At any time during the term of a right-of-way permit and upon
written notice provided to the permittee, the NPS may suspend or
terminate all or any part of the right-of-way permit without liability
or expense to the United States.
(b) If the NPS intends to suspend or terminate all or part of a
right-of-way permit, the permittee may be provided an opportunity to
cure the cause prior to commencement of the suspension or termination.
(c) Reasons for suspension or termination include, but are not
limited to:
(1) Visitor and resource protection concerns;
(2) Failure to comply with right-of-way permit terms and
conditions;
(3) Failure to comply with any provision of this part; or
(4) Abandonment or nonuse.
(d) A permittee may terminate a right-of-way permit by providing a
written notice of termination to the NPS that is signed by the
permittee's authorized representative and identifies the desired date
of termination.
(e) Upon suspension, the permittee remains responsible for
fulfilling all obligations under the permit, including payment of any
use and occupancy fees and cost recovery due.
(f) Upon termination, the permittee will remain responsible for
fulfilling all obligations under the permit, including:
(1) Payment of any use and occupancy fees and any cost recovery
due;
(2) Restoration and reclamation of the permitted area; and
(3) Any other terms and conditions that survive the termination of
the right-of-way permit.
Sec. 14.16 Trespass.
(a) Any uses, activities, or infrastructure not specifically
authorized under a valid right-of-way permit or other legal
authorization are prohibited and considered a trespass against the
United States.
(b) The NPS may require an entity in trespass to immediately remove
any of its infrastructure in trespass or cease the uses or associated
activities and may pursue any additional legal remedy, penalty, or fees
available.
(c) The NPS may continue to enforce the terms and conditions of an
expired right-of-way permit, including collection of cost recovery and
use and occupancy fees. An entity with an expired right-of-way permit
has no authorization for continued use of lands and waters, and
operation and maintenance, and those uses and associated infrastructure
are considered a trespass.
(d) The NPS may require an entity to apply for a permit to
authorize maintenance activities on infrastructure considered in
trespass. Any permit issued for maintenance will not authorize the
presence of the infrastructure. A maintenance permit will be considered
only for activities that are required to maintain the safety of the
infrastructure, and to protect public health and safety, visitor
experience, or the resources and values of the park area.
Sec. 14.17 Penalties.
Violation of any section of this part, including any term and
condition of a right-of-way permit, may result in fine or imprisonment,
or both, in accordance with 36 CFR 1.3.
Sec. 14.18 Restoration and reclamation.
(a) After expiration or termination of the right-of-way permit, the
permittee must restore or reclaim the permitted area to standards
directed and approved by the NPS.
(b) If restoration or reclamation is not completed within a
reasonable time or in accordance with a schedule established in a
special use permit for the restoration and reclamation activities, the
permittee will be liable to the NPS for all costs of restoring and
reclaiming the permitted area undertaken by the NPS, or its contractor,
to the satisfaction of the NPS. This obligation will survive the
termination or expiration of a right-of-way permit.
Shannon A. Estenoz,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2024-12605 Filed 6-7-24; 8:45 am]
BILLING CODE 4312-52-P