Rights of Way, 96535-96554 [2024-28348]

Agencies

• DEPARTMENT OF THE INTERIOR
• National Park Service

[Federal Register Volume 89, Number 234 (Thursday, December 5, 2024)]
[Rules and Regulations]
[Pages 96535-96554]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-28348]


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DEPARTMENT OF THE INTERIOR

National Park Service

36 CFR Parts 1 and 14

[NPS-WASO-PPFL-38951; Docket No. NPS-2024-0004; PPWOPPFLL0; 
PPMPSPD1Y.YM0000]
RIN 1024-AE75


Rights of Way

AGENCY: National Park Service, Interior.

ACTION: Final rule.

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SUMMARY: The National Park Service (NPS) revises 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 revisions 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. This rule clarifies the process for 
permitting construction related to a ROW permit, makes updates that 
reflect current technology and standard practices, and integrates 
applicable laws that have been implemented since the regulations were 
first promulgated in 1980.

DATES: This rule is effective January 6, 2025.

ADDRESSES: The comments received on the proposed rule are available on 
https://www.regulations.gov in Docket No. NPS-2024-0004.

FOR FURTHER INFORMATION CONTACT: Kevin McKay, Branch Chief, Realty 
Management, National Park Service, Land Resources Division. Phone: 
(303) 978-6760; 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 this rule is available on 
https://www.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 431 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 the Alaska National Interest Lands 
Conservation Act (ANILCA) or 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 duration and size limits for ROWs and 
authorizes the NPS to revoke ROW permits. 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 55789 at 55791) 
and 2018 (83 FR 2069). The NPS regulations are organized into eight 
subparts, with an Appendix, as follows:

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              Subpart of 36 CFR part 14                     Sections
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Subpart A--Rights-of-Way: General....................          14.1-14.2
Subpart B--Nature of Interest........................         14.5-14.10

[[Page 96536]]

 
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
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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 (NHPA). 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, and 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 Public Comments

    The NPS published a proposed rule in the Federal Register on June 
10, 2024 (89 FR 48850). The NPS accepted public comments on the 
proposed rule for 60 days via the mail, hand delivery, and the Federal 
eRulemaking Portal at https://www.regulations.gov. Comments were 
accepted through August 9, 2024. The NPS received 16 comments on the 
proposed rule. The NPS received comments from operators, associations, 
utilities, non-governmental organizations, Indian Tribes, a State 
government, and private individuals. Commenters generally supported the 
proposed rule, with some offering clarifying language for the final 
rule. After considering public comments and after additional review, 
the NPS made five changes to the rule. The first change revises the 
first sentence of paragraph (a) in Sec.  14.1 to clarify that the 
regulations in part 14 will be applied consistent with applicable 
Federal law. The second change revises the definition of ``Special use 
permit for construction'' for consistency with the definition of 
``Right-of-way permit'' to include language that these permits do not 
convey any property interest in lands or waters. The third change 
includes a citation to clarify the authority under which the NPS will 
retain a portion of the use and occupancy fees to cover the costs of 
administering the ROW program. The fourth change clarifies that the NPS 
has discretion to decide whether it will include costs incurred for 
initial discussions (including pre-application meetings) in the 
application charge. The fifth change adds a new Sec.  14.19 about 
severability (discussed below). A summary of the pertinent issues 
raised in the comments and NPS responses is provided below. The NPS 
does not summarize or respond to comments regarding property interests, 
such as easements and retained rights, held by private parties on lands 
and waters within System units because ROW permits do not convey 
property interests.
    1. Comment: An Indian Tribe stated the rule should require 
consultation throughout the permitting process. An Alaska Native Claims 
Settlement Act Corporation (ANCSA Corporation) stated the rule should 
address the NPS's obligation to consult with ANCSA Corporations on the 
same basis as Indian Tribes.
    NPS Response: The NPS and the DOI recognize the importance of their 
responsibility to consult with Tribes and take seriously their duties 
to (1) fulfill their legal obligations to identify, protect, and 
conserve Tribal trust resources; (2) carry out their trust relationship 
with Tribes and Tribal members; and (3) invite Tribes to consult on a 
government-to-government basis whenever there is a Departmental Action 
with Tribal Implications. (512 DM 4). Further, it is DOI policy to 
recognize and fulfill its legal obligations to consult with ANCSA 
Corporations on the same basis as Indian Tribes under Executive Order 
13175 (512 DM 6). Paragraph (a)(1) of Sec.  14.5 of the rule states 
that the NPS will issue a ROW permit only if the proposed use of lands 
and waters, and 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. Pursuant to DOI policy, during this evaluation 
the NPS will consider whether issuing the ROW permit would require 
consultation with Tribes or ANCSA Corporations. If so, the NPS will 
consult with those Tribes and ANCSA Corporations before issuing the ROW 
permit.
    2. Comment: An Indian Tribe raised a concern that during the permit 
renewal process, the NPS could only consider impacts that occurred 
during the previous permit period, resulting in renewal decisions made 
with inadequate information.
    NPS Response: The NPS seeks to facilitate meaningful dialogue and 
collaboration with Tribes to ensure that it respects their rights and 
interests as the steward of cultural resources within

[[Page 96537]]

park areas. Section 14.12 of the rule addresses the ROW permit renewal 
process. This section clarifies that a ROW permit renewal means the 
issuance of a new, separate, consecutive ROW permit that the NPS 
approves before the expiration of an existing permit to authorize the 
continued use of lands and waters and the operation and maintenance of 
infrastructure. Timely requests for renewals allow the NPS to evaluate 
the continued appropriateness of the existing use and to complete 
required compliance actions. The NPS reviews the decision file for the 
existing ROW permit for any infractions, problems, or concerns. The NPS 
also may consider other, relevant information in its decision-making 
process that is not directly related to impacts that have occurred 
under the existing permit. If the NPS decides to renew a ROW permit, 
the new permit may have modified terms and conditions and special 
stipulations that are necessary to address impacts to resources.
    3. Comment: An Indian Tribe stated that the rule should 
specifically allow the NPS to suspend or terminate a ROW permit for a 
failure to appropriately mitigate archaeological, cultural, or 
environmental impacts identified through consultation between the NPS 
and affected Tribes.
    NPS Response: The NPS acknowledges the importance of mitigating 
impacts to resources caused by ROW permittees. Section 14.15 allows the 
NPS to suspend or terminate a ROW permit at any time, and states that 
the permittee may be provided an opportunity to cure the cause of the 
suspension or termination. Grounds for suspension or termination 
include resource protection concerns, failure to comply with ROW permit 
terms and conditions, and failure to comply with any provision in part 
14. Failure to complete required mitigations would constitute grounds 
for suspension or termination for one or more of those reasons. It 
would raise concerns about the impacted resources. It would constitute 
a failure to comply with standard permit terms and conditions that 
require mitigation. It also could constitute a failure to comply with 
section 14.9 and paragraph (c)(5) of Sec.  14.10, which allow the NPS 
to require mitigation for impacts to resources that are caused by 
permitted activities.
    A standard term and condition of every ROW permit requires the 
permittee to suspend activities and notify the Superintendent upon 
discovery of archeological, paleontological, or historical resources, 
or threated or endangered species within or near the permitted area. 
When this occurs, the NPS will begin consultation with relevant Tribes 
if the affected resources have tribal implications under DOI policy. 
This consultation will include the identification of required 
mitigations.
    4. Comment: Two commenters expressed concern that the rule would 
require the NPS to specify all operation and maintenance activities in 
the ROW permit and suggested instead that the NPS adopt the approach 
taken by the United States Forest Service (USFS) and the BLM that give 
permittees the option to submit an operation and maintenance plan with 
their permit application.
    NPS Response: Nothing in this rule prevents an applicant from 
submitting a separate operation and maintenance plan or any other 
relevant information or additional documentation in support of their 
application. The NPS will use everything submitted to develop the ROW 
permit. Paragraph (a) of Sec.  14.10 states that a ROW permit will 
authorize the permittee to conduct specific operation and maintenance, 
and that operation and maintenance not specifically authorized in the 
permit requires written authorization or an amended permit. This 
provision is important because the ROW is the authorizing legal 
instrument. A ROW permit can authorize activities, however, that are 
not stated in the permit itself. The NPS and the permittee can agree to 
incorporate an operation and maintenance plan by reference or as an 
attachment to the permit. These plans can be beneficial by identifying 
with more specificity the time, place, and manner for conducting 
authorized activities.
    5. Comment: Two commenters encouraged the NPS to give permittees 
more flexibility to manage vegetation within and adjacent to the 
permitted area, including during unplanned emergencies. Specifically, 
these commenters encouraged the NPS to revise the proposed definition 
of ``Operation and maintenance'' to be consistent with the BLM's 
definition at 43 CFR 2801.5 and suggested the NPS add definitions for 
the terms ``vegetation management'' and ``hazard trees''.
    NPS Response: Vegetation management activities, including time, 
place, manner, and coordination requirements in both emergency and non-
emergency situations, that are authorized in a ROW permit have been 
evaluated through required compliance actions that are necessary to 
understand potential impacts to park resources and visitors. 
Unauthorized vegetation management activities, within or outside of the 
permitted area, have not been properly evaluated and therefore require 
additional compliance actions and permitting. During the permitting 
process, the NPS may request and the applicant may provide information 
in support of vegetation management activities that will be authorized 
under the permit, including activities that will be allowed in 
emergency situations.
    The NPS declines to revise the definition of ``Operation and 
maintenance'' to be consistent with the definition used by BLM. The 
statutory framework, mission, and mandates of the NPS are different 
from those of the BLM, and therefore the regulatory framework for 
managing ROWs on NPS-administered lands is necessarily different. The 
NPS also declines to define the terms ``vegetation management'' and 
``hazard tree'' as they are defined in BLM regulations. These terms are 
not used in this rule. Each ROW permit will, as appropriate, identify 
authorized practices for vegetation management that may include tree 
trimming or removal. This approach will allow the NPS to tailor the 
authorized vegetation management activities to the specific 
circumstances of each permit.
    6. Comment: One commenter asked the NPS to clarify how it will 
determine if an amendment to authorized uses and locations will be 
deemed ``significant'' and therefore require the permittee to submit 
another complete ROW permit application. Two commenters asked the NPS 
to adopt the BLM definition of ``substantial deviation'' in 43 CFR 
2801.5 in order to clarify what activities are allowed without 
additional written authorization or permitting, including vegetation 
management actions.
    NPS Response: Section 14.14 establishes procedures for amending an 
existing ROW permit. Paragraph (b)(2) states that significant 
modifications, changes, or additions to the authorized uses may require 
the submission of another complete ROW permit application. Amendments 
to an existing ROW permit may address operation and maintenance, the 
use and occupancy fee, a new permittee as a result of an approved 
transfer, or other terms and conditions. The NPS will determine whether 
the amendments require a new application on a case-by-case basis 
considering the specific circumstances of the request. An example of a 
significant change is a request to add new infrastructure outside of 
the permitted area. In this case, the NPS would likely require the 
permittee to submit an application for a new ROW permit.
    The NPS declines to adopt the BLM definition of ``substantial 
deviation'' in

[[Page 96538]]

this rule. As stated above, the statutory framework, mission, and 
mandates of the NPS are different from those of the BLM, and therefore 
the regulatory framework for managing ROWs on NPS-administered lands is 
necessarily different. Broad and general exceptions to what is deemed 
significant would remove the NPS's ability to adequately evaluate 
potential impacts to park resources, values, and visitors from 
significant changes to authorized activities. These types of changes 
should be addressed through a thorough permit application process and 
related compliance actions.
    7. Comment: Two commenters questioned why the NPS would remove the 
permit term and condition in existing paragraph (d) of Sec.  14.9 that 
directs permittees to take reasonable action to prevent and suppress 
fires on or near the lands occupied by the ROW. One commenter stated 
the NPS should adopt BLM's framework addressing prevention and 
suppression of wildfires which requires ROW permittees to do everything 
reasonable to prevent and suppress wildfires on or adjacent to the ROW 
area.
    NPS Response: Allowing permittees to take unilateral action to 
prevent and suppress wildfire is no longer consistent with NPS practice 
and policy regarding fire prevention and suppression. The NPS has 
comprehensive policies regarding fire prevention and suppression, and 
it is important to allow those policies to operate without potential 
conflict with actions taken by permittees. (See Management Policies 
4.5, Director's Order #18: Wildland Fire Management, Reference Manual 
18, Director's Order #58: Structural Fire Management, Reference Manual 
58). The NPS requires fire management plans for all System units that 
have burnable vegetation. Regarding particular ROWs, emergency 
operations and activities procedures are often case specific and 
appropriately stated in the ROW permit. Rather than give permittees a 
broad and general authority to take actions they deem reasonable, the 
NPS prefers to work with the permittee to establish the ``reasonable'' 
measures a permit holder may take to prevent fires in the permitted 
area, based on professional fire management expertise, specific 
knowledge of park resources, visitor use patterns, local weather 
patterns, fire history, science, and ecology.
    8. Comment: One commenter recommended that the rule require the NPS 
to give permittees an opportunity to engage with the agency before NPS-
initiated amendments are made to a ROW permit.
    NPS Response: The NPS always endeavors to maintain professional 
relationships and open communication with permittees; however, many 
decisions regarding permit management are at the sole discretion of the 
NPS. If the NPS initiates an amendment, it will provide adequate notice 
to the permittee in accordance with paragraph (a) of Sec.  14.14.
    9. Comment: Two commenters asked the NPS to state in the rule that 
publicly regulated utilities are not required to show proof of 
acceptable financial assurance and liability insurance.
    NPS Response: This rule does not mandate that all ROW permittees 
provide proof of acceptable financial assurance and liability 
insurance. Paragraph (h) of Sec.  14.4 states that the NPS may require 
such proof as appropriate to the proposed project. The NPS makes 
decisions about the need to provide proof of acceptable financial 
assurance and liability insurance on a case-by-case basis to ensure 
protection of the public and NPS interests. There is no reason to 
exempt publicly regulated utilities from such requirements in all 
circumstances, even though some of them may be required to have 
reserves under applicable law.
    10. Comment: One commenter stated the NPS should not be able to 
reverse its position regarding the not incompatible with the public 
interest and no practicable alternative determinations once it issues a 
conditionally approved ROW permit to the applicant.
    NPS Response: A conditionally approved ROW permit is developed by 
NPS staff at the System unit and sent to the applicant for review and 
signature. This step in the permitting process benefits the applicant 
by providing them with a document that will be submitted for final 
approval by an NPS signing official. This provides the applicant with 
some indication of what might be approved and gives them an opportunity 
to sign the permit indicating to the NPS signing official that the 
permittee has agreed to specific authorizations, terms and conditions. 
Issuance of a conditional permit does not constitute final 
determinations of not incompatible with the public interest and no 
practicable alternative. Those determinations are final only when an 
appropriate NPS official signs and issues the ROW permit.
    11. Comment: One commenter questioned the NPS's authority to 
require an applicant to demonstrate that there is no practicable 
alternative to location of the infrastructure within the National Park 
System in order to obtain a ROW permit. Another commenter supported 
this requirement but requested that the NPS clarify that differential 
location costs to the permittee should not be factor in this 
determination.
    NPS Response: The NPS is responsible for the protection of 
resources within units of the National Park System, consistent with the 
purposes for which each System unit was established. 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, the NPS issues ROW permits only when there is no practicable 
alternative to the use of lands and waters within a System unit. 
Applicants should have a demonstrable need to use NPS-administered 
lands or waters because the result of such use will impact the System 
unit. The NPS considers the totality of the circumstances when making 
these determinations. The relative cost of where the infrastructure 
could be located could be one factor because at some point costs can 
make a project prohibitive.
    12. Comment: One commenter urged the NPS to allow electronic filing 
of ROW permit applications.
    NPS Response: This rule does not mandate a particular method of 
filing a ROW permit application. The NPS accepts paper submissions and 
electronic submissions with digital signatures. Other methods may 
become available in the future and this rule will accommodate 
appropriate options.
    13. Comment: One commenter asked the NPS to revise the definition 
of ``permitted area'' to require the identification of access routes to 
infrastructure and to guarantee the right of access.
    NPS Response: The NPS always considers access in ROW permitting and 
includes identified and agreed upon routes in the permitted area when 
necessary. Access routes may be subject to change for various reasons 
including resource management concerns, changing conditions, and 
visitor use and enjoyment concerns. This rule defines a ROW permit as a 
discretionary and revocable special use permit issued by the NPS to 
authorize the use of lands and waters, and operation and maintenance. 
The definition states that a ROW 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. Paragraph 
(f)(4) of Sec.  14.4 states that rights of access are not granted under 
a ROW permit and that

[[Page 96539]]

access routes and means of access in ROW permits are revocable at the 
discretion of the NPS. Permittees may access ROWs only as may be stated 
in the ROW permit.
    14. Comment: One commenter recommended the rule require the NPS to 
provide utilities with sufficient access for anticipated operation and 
maintenance and allow permittees to maintain access routes even in 
locations outside of the permitted area to ensure that the permittee 
can access its facilities.
    NPS Response: The NPS authorizes access on a case-by-case basis 
after a compliance process that evaluates potential impacts to System 
unit resources, values, and visitors. Access routes are resource, time, 
place, and manner specific, and are influenced by the purposes, values, 
and resources of the System unit. Requiring the NPS to provide 
``sufficient'' access could lead to disagreement about what routes and 
means of access are sufficient. The NPS may in its discretion issue 
separate permits for activities outside of a permitted area but only 
after it has completed required compliance actions.
    15. Comment: One commenter asked the NPS to clarify how it will 
regulate means of access to a permitted area and to state that 
permittees may use whatever means of access is appropriate for planned 
operation and maintenance.
    NPS Response: The NPS considers means of access in the permitting 
process and evaluates them through the same compliance processes that 
apply to other aspects of the ROW. Means of access can have very 
different impacts to resources and visitors. Access by an all-terrain 
vehicle will have different impacts than access by a conventional motor 
vehicle such as a truck. Some areas may only be accessible by certain 
means of access such as snow machines, cranes, and helicopters. The NPS 
must maintain control over the authorized means of access in order to 
adequately protect resources and visitors. Allowing permittees to use 
whatever means of access they deem appropriate would prevent the NPS 
from exercising management responsibly for the affected System unit.
    16. Comment: Two commenters suggested that the NPS include 
construction activities within the scope of a ROW permit.
    NPS Response: Initial construction of infrastructure generally 
requires a larger permitted area with equipment and activities that are 
not relevant to long-term operation and maintenance, and it is 
therefore permitted separately. In the past, permittees have relied 
upon outdated language in ROW permits that had authorized initial 
construction to take unauthorized actions outside of the permitted area 
related to ongoing operation and maintenance. As has been stated, 
unauthorized actions have not been evaluated for potential impacts to 
System unit resources, values and visitors and therefore need 
additional compliance and permitting before they may occur.
    17. Comment: One commenter suggested that the NPS remove the 
ability for the NPS to require applicants 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. Another commenter suggested that the 
affidavit should be required in all cases.
    NPS Response: The NPS declines to make any changes to paragraph (f) 
of Sec.  14.11. As stated above, the NPS seeks to minimize impacts to 
System unit resources to the greatest extent possible from the 
construction of infrastructure in park areas. The NPS would not meet 
this standard if it issued special use permits (SUPs) for construction, 
with resulting impacts, when the permittee does not have the 
authorizations required to operate a viable project in the ROW. This 
concern is most present when operation and maintenance activities 
within the ROW will be part of a larger project occurring outside of 
the National Park System. In other situations, such as when the NPS has 
verified that all other necessary approvals have been obtained, an 
affidavit may not be necessary and therefore requiring it in every case 
would result in unnecessary delays.
    18. Comment: Some commenters encouraged the NPS to establish 
timelines for notifying applicants whether an application is complete.
    NPS Response: The final rule encourages the applicant to request a 
pre-application meeting with the NPS to help the NPS understand the 
scope of the request and to advise potential applicants, early in the 
permitting process, about permitting considerations and procedures, and 
possible timelines. The NPS endeavors to provide prompt notice to 
applicants regarding the completeness of their application after 
receipt of an initial application. Notice may be delayed, however, by 
practical challenges related to the complexity of the proposal and the 
administrative capacity at the System unit to process the application. 
Completing the permit application accurately and providing supporting 
documentation is crucial to an efficient process. So are maintaining 
open lines of communication and responding promptly to requests for 
additional information or clarification. Given all of the variables 
including any externally required timelines that influence the 
permitting process, the NPS prefers to omit timelines from the rule.
    20. Comment: Two commenters suggested that rule should allow the 
NPS to extend the term of a ROW permit by more than one year. Another 
commenter asked the NPS to provide more flexibility in the ROW permit 
renewal process so that ROW holders seeking timely renewal do not find 
themselves in trespass due to the NPS's failure or inability to renew 
the ROW before the expiration of the current term.
    NPS Response: The purpose of allowing amendments to ROW permits is 
to allow the NPS and the permittee to agree upon minor changes to 
authorized uses or to the terms and conditions that apply to such uses. 
As a general matter, the term of ROW permit is fixed so that the NPS 
has the opportunity to reevaluate the uses that have been authorized 
under the existing permit to ensure that those uses should continue 
consistent with the standards for issuing ROWs in park areas. The NPS 
recognizes, however, that ROW permitting processes can experience 
delays. Allowing an amendment to extend the term by one year enables 
the NPS and the permittee enter into a new ROW permit before the 
existing term expires.
    The statement in paragraph (c) of Sec.  14.11 that infrastructure 
left behind after the expiration of a ROW permit will be considered in 
trespass is necessary to help ensure that infrastructure is not 
abandoned with resulting impacts to the System unit. The NPS endeavors 
to work with permittees to effectuate timely renewals of existing ROW 
permits to the maximum extent possible.
    21. Comment: One commenter asked the NPS to clarify that 50 years 
will be the standard ROW permit term unless the NPS determines that a 
50-year term would be inappropriate, on a case-by-case basis, for the 
specific project and System unit.
    NPS Response: The NPS evaluates each request for a ROW permit on a 
case-by-case basis. This rule states the NPS may issue a permit for a 
term of up to 50 years when determined appropriate and consistent with 
applicable law and policy. NPS declines to set a standard permit term 
in this rule in order to maintain discretion and flexibility to 
establish terms that are appropriate to the uses and circumstances 
presented by each request.

[[Page 96540]]

    22. Comment: One commenter stated the NPS should reduce the use and 
occupancy fee associated with access routes.
    NPS Response: This rulemaking does not establish the amount of use 
and occupancy fees in any case. A use and occupancy fee is owed to the 
United States in an amount equal to the fair market value for the use 
and occupancy of federally owned lands and waters within the National 
Park System under a ROW permit. Use and occupancy fees are charged as a 
single fee for all of the authorized uses within the permitted area, 
including any routes or means of access. They are not charged or 
evaluated separately.
    23. Comment: One commenter recommended that the rule state that the 
NPS will include administrative costs incurred to hold pre-application 
meetings in permit application fees.
    NPS Response: The NPS does not typically recover its costs for pre-
application meetings in permit application fees. This may occur, 
however, if the potential applicant requests more than one meeting or 
makes demands that result in the NPS expending more time and resources 
than normal. The NPS prefers to maintain discretion to include these 
costs in the permit application fee or not, depending upon the 
circumstances. The NPS has revised the rule to clarify that it has 
discretion to decide whether it will include costs incurred for initial 
discussions (including pre-application meetings) in the application 
charge.
    24. Comment: One commenter asked the NPS to provide typical or 
expected charges for processing permit applications, and to clarify how 
it will determine fair market value when it assess the use and 
occupancy fee.
    NPS Response: The NPS may recover its costs incurred to provide 
necessary services associated with SUPs, including ROW permits and SUPs 
for construction. 54 U.S.C. 103104. This includes costs incurred to 
process permit applications and manage permitted activities. More 
specifically, they may include costs associated with compliance actions 
that evaluate potential impacts; appraisals of fair market value; 
reviewing applications and related materials, drafting correspondence 
and permits; management discussions regarding the proposal and any 
changes; and resource surveys of the proposed permit area. The amount 
charged is based on actual costs incurred by the NPS and is therefore 
specific to each application and permit. The rule provides a formula 
for calculating the minimum charge based upon two hours of staff time 
at the permit coordinator and superintendent level (as applicable). NPS 
staff can discuss cost recovery in a pre-application meeting and 
explain the types of costs that are included in a bill for collection.
    Under the existing regulations, the amount charged as a use and 
occupancy fee must be determined by an appraisal of fair market value. 
This rule will allow the NPS to use any DOI-approved valuation method 
to determine fair market value, providing more flexibility and 
efficiency that should decrease administrative costs to the NPS.
    25. Comment: Several commenters requested revisions to the 
provisions about co-location. One commenter stated that the requirement 
that applicants must design new infrastructure to accommodate future 
co-location should not lead the NPS to require co-location in every 
situation. Other commenters asked the NPS to revise this paragraph to 
include some additional considerations, such as cost, feasibility, and 
likelihood of future requests for co-location.
    NPS Response: The purpose of the design requirement in paragraph 
(g)(1) of Sec.  14.4 is to preserve the opportunity to co-locate 
infrastructure in the future. The NPS recognizes co-location is not 
appropriate in all circumstances and this rule does not mandate it. 
This is consistent with paragraph (g)(2) which acknowledges that some 
infrastructure will be placed in new or undisturbed locations. The 
considerations identified in paragraph (g)(1) do not apply to the NPS's 
decision to require co-location or not, those considerations apply to 
the applicants design of infrastructure. The NPS considers many factors 
when determining if co-location is appropriate, including cost, 
feasibility, and the likelihood of future requests.
    26. Comment: One commenter suggested that the NPS not require a ROW 
permit for co-locating infrastructure on an existing permitted 
structure.
    NPS Response: The NPS states a preference for co-location in the 
rule because co-location reduces incremental impacts to System unit 
resources by adding infrastructure to locations that have already been 
disturbed. There are still impacts from installing co-located 
infrastructure, however, in addition to impacts from operation and 
maintenance including routes and means of access. For these reasons, 
the NPS must maintain management control of co-located infrastructure 
using a ROW permit.
    27. Comment: Several commenters asked about potential conflicts 
between the provisions of this rule and other applicable Federal laws. 
One commenter recommended the rule require the NPS to approve or deny a 
complete application for a ROW permit and a SUP for construction within 
270 days, consistent with the MOBILE NOW Act. Several commenters stated 
there were conflicts with ANILCA and its implementing regulations, 
requesting clarity and seeking edits to the rule.
    NPS Response: The NPS understands that other Federal laws may apply 
to its management of ROWs in System units, and will follow all such 
laws to the extent they apply in any particular situation. To be 
inclusive and to avoid inadvertently creating inconsistencies or gaps 
regarding other applicable laws, the NPS does not address the 
provisions of any other Federal law in this rule. The NPS has 
clarified, however, that the regulations in part 14 apply consistent 
with applicable Federal law by adding ``Consistent with applicable 
Federal law,'' to the beginning of paragraph (a) of Sec.  14.1. This 
includes, but is not limited to, possibly applicable Federal law such 
as Title XI of ANILCA (Transportation and Utility Systems In and 
Across, and Access Into, Conservation System Units) and its 
implementing regulations in 43 CFR part 36 for managing ROWs in Alaska. 
To the extent there is an irreconcilable conflict between applicable 
Federal law and part 14, the other applicable Federal law will control.
    28. Comment: One commenter encouraged the NPS to define the terms 
``mitigation'' and ``public interest.''
    NPS Response: These terms are undefined because the meaning of each 
term is dependent upon the particular context and circumstances of the 
situation in which they are used. The permit negotiation process is an 
opportunity to reach a mutual understanding of the meaning of these 
terms that is context-specific, This approach facilitates effective 
communication and collaboration among all parties involved and greater 
flexibility as needed in each situation. As necessary and appropriate, 
agreed-upon definitions can then be included in permits, providing a 
clear reference point for compliance and enforcement.

Final Rule

    The NPS further explains each of the changes to NPS regulations 
below. In addition to the changes described in more detail below, this 
rule simplifies 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,

[[Page 96541]]

14.27, 14.32, 14.35, 14.53, 14.75, and 14.77 of the existing 
regulations have no content. This rule replaces Sec.  14.5 and removes 
the rest. This rule removes Appendix A because the forms in this 
Appendix are outdated and no longer used by the NPS. This rule removes 
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 changes remove or update outdated provisions to reflect 
current policies and practices. The changes in this rule will 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 will 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 will be easier for 
prospective and current permittees to find and understand, which will 
improve the effectiveness of NPS ROW program.

Section-by-Section Analysis of the Changes

Sec.  14.1 Purpose and Scope

------------------------------------------------------------------------
                Final rule                      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 states 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 permit 
within a National Park System unit, consistent with applicable Federal 
law. New paragraph (b) states that the regulations in part 14 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.
    This rule revises 36 CFR 1.2(b) and (d) to add references to part 
14. This clarifies 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 reflect current NPS practice and will have no impact on the 
NPS's administration of ROWs in System units.

Sec.  14.2 Definitions for This Part

------------------------------------------------------------------------
                Final rule                      Existing regulations
------------------------------------------------------------------------
14.2 Definitions for this part............   14.2 Definitions.
                                             14.6 In form of
                                             easement, license, or
                                             permit.
------------------------------------------------------------------------

    This rule revises Sec.  14.2 of the existing regulations, which 
defines terms used in part 14. This rule removes the definition of 
``Superintendent'' because it is already defined in 36 CFR 1.4. This 
rule removes the definition of ``Park'' because it is superfluous with 
the definitions of ``park area'' and ``National Park System'' in 36 CFR 
1.4. This rule removes the definitions of ``Authorized Officer,'' 
``Construction work,'' ``Director,'' and ``Secretary'' because those 
terms are not used in the revised regulations. This rule removes the 
definition of ``Project'' because that term is no longer used the way 
it is defined. Removing unnecessary defined terms will make the 
regulations more concise. This rule replaces 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. This rule 
defines nine new terms in Sec.  14.2, which are explained below. 
Revised Sec.  14.2 lists defined terms in alphabetical order without 
paragraph designations.

New Definitions

    This rule adds the term ``Applicant'' to mean an entity that has 
applied for a special use permit for construction of infrastructure or 
a ROW permit for use of lands and waters and operation or maintenance 
of infrastructure. Adding this term will allow the NPS to distinguish 
applicants from permittees, who have been issued valid permits, in the 
regulations.
    This rule adds 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.
    This rule adds 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.
    This rule adds 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.
    This rule adds 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.
    This rule adds 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.
    This rule adds 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 helps 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.
    This rule adds 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 and waters within System units for the 
operation and maintenance of infrastructure. The definition states that 
a ROW permit does not convey property interests in lands or waters. 
These statements in the new definition make portions of Sec.  14.6 of 
the existing regulations, which make similar statements, unnecessary.

[[Page 96542]]

    This rule adds 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. Like that for ROW permits, this 
definition states that these permits do not convey property interests 
in lands or waters. 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 will distinguish activities authorized under ROW 
permits from those authorized under special use permits for 
construction.

Sec.  14.3 Pre-Application Meeting

------------------------------------------------------------------------
                Final rule                       Existing regulation
------------------------------------------------------------------------
14.3 Pre-application meeting..............  N/A.
------------------------------------------------------------------------

    This section of the final rule establishes 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 (FWS) uses pre-application meetings for the same purpose. 
Although it would benefit the applicant and the NPS in most cases, this 
rule does 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. This rule states 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 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 will 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 updates 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 consolidates all application requirements into a single 
section. This will 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 reorganizes all of the 
existing application process requirements into a new Sec.  14.4.

------------------------------------------------------------------------
               Final rule                      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 changes 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 states 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 reflects 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 processing incomplete applications that do not have 
enough information to allow for a proper evaluation. Paragraph (a) 
further states that making this determination does not guarantee the 
NPS will issue a ROW permit.

[[Page 96543]]

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 requires 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 requires 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 will reduce the regulatory burden 
on applicants by ensuring that the NPS requests only the documentation 
that it requires to process an application. Finally, paragraph (b) 
requires applicants or their authorized representatives to sign the SF-
299 and requires applicants to submit the application charge pursuant 
to Sec.  14.7.

14.4(c) Applicant Documentation

    In paragraph (c) of this section, this rule consolidates and 
updates 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) contains required information for corporations. These 
requirements are not substantively different than what is currently 
required in Sec.  14.23. New paragraph (c)(2) contains required 
information for partnerships, limited liability companies, and similar 
entities. These requirements are not substantively different than what 
is currently required in Sec.  14.24 for associations of individuals. 
For individuals, new paragraph (c)(3) states applications must be 
accompanied by evidence of U.S. citizenship. This final rule omits 
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 simply requires maps to meet current NPS 
mapping standards. This would allow applicants to submit digital maps, 
which reflect current mapping technology. The NPS retains 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 
requires 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 requires, 
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 ensures 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.
    This rule creates 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) requires the applicant include a 
description of proposed access routes and means of access. This rule 
states 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, this rule states that ROW 
permits will not authorize the construction of new roads, unless 
specifically authorized by statute. Lastly, new paragraph (f) states 
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

    This rule creates 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) requires 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

[[Page 96544]]

safety, and visitor experience. This paragraph also requires 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 states 
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, this rule 
creates a new paragraph (h) of Sec.  14.4 that states 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. 
This rule creates a new provision in paragraph (i) that specifically 
states that the NPS may require additional relevant information from an 
applicant before the superintendent will consider the application 
complete.

Sec.  14.5 Review of Complete Right-of-Way Permit Applications

 
------------------------------------------------------------------------
                Final rule                       Existing regulation
------------------------------------------------------------------------
14.5 Review of complete right-of-way        N/A.
 permit applications.
------------------------------------------------------------------------

    Section 14.5 of this rule explains how the NPS evaluates complete 
ROW permit applications. Paragraph (a) establishes standards that each 
ROW permit application must meet in order for the NPS to issue ROW 
permits. Paragraph (a)(1) states 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 will 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. Paragraph (a)(2) requires 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) states 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) requires the applicant to sign a conditionally 
approved ROW permit prior to its execution by the NPS. These 
requirements also apply to amended ROW permits, including transfers 
which are documented by an amendment. This is stated in paragraph (c) 
in Sec.  14.13 and paragraph (e) of Sec.  14.14 of the final rule. 
Paragraph (c)(2) clarifies 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) allows 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

------------------------------------------------------------------------
                Final rule                       Existing regulation
------------------------------------------------------------------------
14.6 Application withdrawal...............  N/A.
------------------------------------------------------------------------

    This rule adds a new provision in Sec.  14.6 that clarifies 
application withdrawal procedures. Paragraph (a) allows an applicant to 
withdraw an application at any time during the application process. 
Paragraph (b) creates 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 will help 
superintendents and other NPS staff prioritize active projects and 
devote limited resources toward serious and

[[Page 96545]]

timely proposals. Paragraph (c) clarifies 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

------------------------------------------------------------------------
                Final rule                      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 authority to recover costs under 54 
U.S.C. 103104.
    This rule replaces sections 14.22 and 14.37 with a new Sec.  14.7 
that addresses how the NPS recovers administrative costs from ROW 
permit applicants and permittees. Paragraph (a) states that the NPS 
will recover all costs from applicants and permittees under 54 U.S.C. 
1030104 according to NPS cost recovery policy. This rule states that 
cost recovery can include administrative costs for withdrawn or denied 
applications and suspended or terminated ROW permits. Paragraph (b) 
requires applicants to pay an initial application charge, unless waived 
by the NPS pursuant to NPS cost recovery policy, and describes 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 clarifies that the minimum application 
charge will include costs incurred by the NPS for reviewing an 
application for completeness; and that the NPS has discretion to 
include costs incurred for initial discussions (including pre-
application meetings). This does not represent the entirety of costs 
that may be recovered.

Sec.  14.8 Use and Occupancy Fee

------------------------------------------------------------------------
                Final rule                       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 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 replaces existing Sec.  14.26 with a new Sec.  14.8. 
Paragraph (a) establishes the requirement that, subject to the 
exemptions in paragraph (e), all permittees must pay a use and 
occupancy fee to the NPS. Paragraph (b) states 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) allows 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 will 
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) states 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. These funds will be retained as cost recovery under 
54 U.S.C. 103104 from the use and occupancy fees collected on ROW 
permits. Use and occupancy fees not retained for cost recovery will be 
returned to the Treasury. Paragraph (b)(3) gives 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 https://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) allows 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) states 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) updates the exemptions from paying a use and 
occupancy fee. Exemptions are discretionary, and infrastructure must be 
used exclusively for one or more of the qualifying criteria. This rule 
largely maintains the exemptions in existing paragraph (c) of Sec.  
14.26, but clarifies circumstances where exemptions may be available. 
This rule removes the exemption for irrigation projects because it is 
not a common use within System units. Similarly, this 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

------------------------------------------------------------------------
                Final rule                       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

[[Page 96546]]

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 replaces the special allowance in Sec.  
14.6 and the prescriptive requirements referenced above for a new Sec.  
14.9 that makes general statements about disposition, mitigation, and 
compensation resulting from resource damage. This section states 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 this 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

------------------------------------------------------------------------
                Final rule                       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 replaces existing Sec.  14.9 with new Sec.  14.10. 
Paragraph (a) of Sec.  14.10 states 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 replaces 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) of this section states 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) requires permittees to agree to a smaller set of minimum terms and 
conditions in every approved ROW permit. Some of these terms and 
conditions are similar to those in existing Sec.  14.9, but 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, 
this rule allows the NPS to require additional terms and conditions, or 
makes 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

------------------------------------------------------------------------
                Final rule                       Existing regulation
------------------------------------------------------------------------
14.11 Special use permit for construction.  14.29 Timely 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. This rule removes 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 use 
of Federal lands and waters 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 creates a new Sec.  14.11 that addresses the application 
process for obtaining a special use permit for construction. Paragraphs 
(a) (c) requires a separate special use permit before a ROW permittee 
initiates construction activities, requires the special use permit 
applicant to use the current special use permit application form, and 
requires the special use permit applicant to submit a complete 
application to the NPS before the NPS will process the application. 
Paragraph (d) states 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 will 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) identifies 
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) allows 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

------------------------------------------------------------------------
                Final rule                       Existing regulation
------------------------------------------------------------------------
14.12 Right-of-way permit renewal.........  N/A.
------------------------------------------------------------------------

    Section 14.12 of this rule establishes procedures that permittees 
must follow prior to the expiration of an existing ROW permit to obtain 
a new ROW permit in time for associated

[[Page 96547]]

infrastructure to remain where it is in the System unit. Paragraph (a) 
explains 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. 
Paragraphs (b)(1) and (b)(2) 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) states 
that the term of a ROW permit may only be re-established for a new and 
continuous term through timely renewal. Paragraph (b)(4) states that 
the decision to renew a ROW permit is at the discretion of the NPS. 
Paragraph (c) clarifies 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

------------------------------------------------------------------------
                Final rule                      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. This rule replaces 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) explains when ROW permit 
transfers are necessary. Paragraphs (b)(1) and (b)(2) 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) 
clarifies 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. This rule removes 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.

Sec.  14.14 Right-of-Way Permit Amendment

------------------------------------------------------------------------
                Final rule                       Existing regulation
------------------------------------------------------------------------
14.14 Right-of-way permit amendment.......  14.31 Deviation from
                                             approved right-of-way.
------------------------------------------------------------------------

    This rule establishes procedures for amending an existing ROW 
permit in a new Sec.  14.14. Paragraph (a) allows a permittee to 
request or the NPS to initiate an amendment to a ROW permit. This 
paragraph also states that if the NPS initiates an amendment, it will 
provide notice to the permittee. Paragraph (b) states 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. 
Paragraphs (b)(1) and (b)(2) 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, and would be replaced 
by these new paragraphs of Sec.  14.14 and by new paragraph (a) of new 
Sec.  14.9 (Terms and conditions) discussed above.
    As explained above, Sec.  14.12 of this 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 allows 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) requires the permittee to submit amendment 
requests in writing with information necessary for the NPS to evaluate 
the request. In paragraph (d)(7), this rule allows the NPS to require 
additional informational necessary to properly evaluate a requested 
amendment. Paragraph (e) states 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

------------------------------------------------------------------------
                Final rule                      Existing regulations
------------------------------------------------------------------------
14.15 Right-of-way permit suspension and     14.30
 termination.                                Nonconstruction,
                                             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 allowed 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. This rule replaces 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) 
states 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) allows 
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) lists the most common specific reasons for suspension and 
termination of a ROW permit, and also states that the NPS may suspend 
or terminate a ROW permit at its discretion. If a permittee seeks to 
terminate a ROW permit, paragraph (d) requires the permittee to provide 
written notice to the NPS and identify the desired date of termination. 
Paragraph (e) states 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) states that, upon termination, the permittee remains responsible 
for fulfilling all permit obligations, including required payments, 
restoration and reclamation

[[Page 96548]]

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

------------------------------------------------------------------------
                Final rule                       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 replaces this section with more 
comprehensive regulations about trespass in a new Sec.  14.16. 
Paragraph (a) expressly prohibits any uses, activities, or 
infrastructure not specifically authorized under a valid ROW permit or 
other legal authorization and states that such uses are considered a 
trespass against the United States. Paragraph (b) allows 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) allows 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) allows 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

------------------------------------------------------------------------
                Final rule                       Existing regulation
------------------------------------------------------------------------
14.17 Penalties...........................  N/A.
N/A.......................................  1.3 Penalties.
------------------------------------------------------------------------

    This rule adds a new provision in Sec.  14.17 and makes 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

------------------------------------------------------------------------
                Final rule                       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 is replaced by subparagraph (c)(7) 
of Sec.  14.10 of this 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.
    New Sec.  14.18 of this rule establishes procedures and 
requirements for site restoration and reclamation in addition to those 
included in the terms and conditions of a ROW permit. Paragraph (a) 
requires 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) makes 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 states that the permittee's 
liability for such costs survives the expiration or termination of the 
ROW permit.

Sec.  14.19 Severability

------------------------------------------------------------------------
                Final rule                       Existing regulation
------------------------------------------------------------------------
14.19 Severability........................  N/A.
------------------------------------------------------------------------

    The NPS intends the regulations in this rule to be severable. If 
any portion of this final rule were to be stayed or invalidated by a 
reviewing court, the remaining elements would continue to provide the 
NPS with important and independently effective tools relating to the 
administration of its ROW program. Hence, if a court prevents any 
provision of this rule from taking effect, that should not affect the 
other parts of the rule. The remaining provisions would remain in force 
because they could still operate sensibly.

Compliance With Other Laws, Executive Orders and Department Policy

Regulatory Planning and Review (Executive Orders 12866 and 13563 and 
14094)

    Executive Order (E.O.) 14094 amends E.O. 12866 and reaffirms the 
principles of E.O. 12866 and E.O 13563 and states that regulatory 
analysis should facilitate agency efforts to develop regulations that 
serve the public interest, advance statutory objectives, and are 
consistent with E.O. 12866 and E.O. 13563. Regulatory analysis, as 
practicable and appropriate, shall recognize distributive impacts and 
equity, to the extent permitted by law. E.O. 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. We developed this rule in a manner consistent with 
these requirements.
    E.O. 12866, as reaffirmed by E.O. 13563 and amended and reaffirmed 
by E.O. 14094, provides that the Office of Information and Regulatory 
Affairs (OIRA) in the Office of Management and Budget (OMB) will review 
all significant rules. OIRA determined that this final rule is not 
significant.

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    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.
    This rule will 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. This rule suggests 
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

[[Page 96549]]

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 this rule will impact a small 
number of small entities, and those effects would not be economically 
significant. In summary, the NPS has considered whether this rule will 
result in a significant economic impact on a substantial number of 
small entities. The NPS certifies that this rule will not have a 
significant economic impact on a substantial number of small business 
entities. Therefore, a regulatory flexibility analysis is not required.

Congressional Review Act

    This 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 (2 U.S.C. 1501 et seq.)

    This rule will not impose an unfunded mandate on Tribal, State, or 
local governments or the private sector of more than $100 million per 
year. This 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 rule will 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, this rule 
does not have sufficient federalism implications to warrant the 
preparation of a federalism summary impact statement. This rule only 
affects the use of federally-administered lands and waters. It has no 
outside effects on other areas. This rule affects the NPS's 
administration of the ROW Program and has 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.

Civil Justice Reform (Executive Order 12988)

    This 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 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 this rule will not have a substantial direct effect on 
federally recognized Indian Tribes. This 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 this rule states 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 of 1995 (44 U.S.C. 3501 et seq.)

    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 (expires 1/31/2027); and the currently approved NPS 
form 10-930, assigned OMB Control Number 1024-0026 (expires 7/31/27). 
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 of 1969 (NEPA; 42 U.S.C. 4321 et 
seq.)

    This 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 this rule is covered by a 
categorical exclusion. This rule is covered by the categorical 
exclusion in Section 3.2.H of the NPS NEPA Handbook (2015), 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 this rule does not involve any of the extraordinary 
circumstances listed in 43 CFR 46.215 that would require further 
analysis under NEPA.
    Alternatively, NPS NEPA Handbook 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.''

[[Page 96550]]

Effects on the Energy Supply (Executive Order 13211)

    Executive Order 13211 (Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use) requires 
agencies to prepare statements of energy effects when undertaking 
certain actions. This rule will not significantly affect energy 
supplies, distribution, or use. Moreover, this rule is not a 
significant regulatory action as determined by OIRA, and the OIRA 
administrator has not designated this rule as a significant energy 
action. Therefore, this action is not a significant energy action, and 
no statement of energy effects is required.

List of Subjects

36 CFR Part 1

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

36 CFR Part 14

    Electric power, Highways and roads, Public lands-rights-of-way.
    In consideration of the foregoing, the National Park Service amends 
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 phrase ``, and part 14'' after ``part 13''.


Sec.  1.3  [Amended]

0
3. In Sec.  1.3(a), remove the phrase ``parts 12 and 13 of this 
chapter'' and add in its place the phrase ``parts 12, 13, and 14 of 
this chapter''.

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.
14.19 Severability.

    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) Consistent with applicable Federal law, 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 permit 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. A special use 
permit for construction 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.


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

[[Page 96551]]

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 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

[[Page 96552]]

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 review of the application to 
determine if it is complete. At its discretion, the NPS also may 
include costs incurred for initial discussions (including pre-
application meetings) in the application charge.
    (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 retained as cost recovery under 
54 U.S.C. 103104 out of the 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) through (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

[[Page 96553]]

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.
    (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 transfer, 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.

[[Page 96554]]

    (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 right-of-way permits in 
paragraphs (a) through (c) in Sec.  14.5. 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.


Sec.  14.19   Severability.

    If a court holds any provisions of the regulations in this part or 
their applicability to any person or circumstances invalid, the 
remainder of these rules and their applicability to other people or 
circumstances will not be affected.

Shannon A. Estenoz,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2024-28348 Filed 12-4-24; 8:45 am]
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