Rights of Way, 48850-48865 [2024-12605]

Agencies

• DEPARTMENT OF THE INTERIOR
• National Park Service

[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: https://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 https://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