Rights of Way

<RULE> DEPARTMENT OF THE INTERIOR <SUBAGY>National Park Service</SUBAGY> <CFR>36 CFR Parts 1 and 14</CFR> <DEPDOC>[NPS-WASO-PPFL-38951; Docket No. NPS-2024-0004; PPWOPPFLL0; PPMPSPD1Y.YM0000]</DEPDOC> <RIN>RIN 1024-AE75</RIN> <SUBJECT>Rights of Way</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> National Park Service, Interior. <HD SOURCE="HED">ACTION:</HD> Final rule. <SUM> <HD SOURCE="HED">SUMMARY:</HD> 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. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> This rule is effective January 6, 2025. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> The comments received on the proposed rule are available on <E T="03">https://www.regulations.gov</E> in Docket No. NPS-2024-0004. <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Kevin McKay, Branch Chief, Realty Management, National Park Service, Land Resources Division. Phone: (303) 978-6760; email: <E T="03">Kevin_McKay@nps.gov.</E> 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 <E T="03">https://www.regulations.gov</E> in the docket for this rulemaking. </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">Background</HD> <HD SOURCE="HD2">Legal Authority for ROWs</HD> 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: <GPOTABLE COLS="2" OPTS="L2,tp0,i1" CDEF="s150,15"> <TTITLE> </TTITLE> <CHED H="1">Subpart of 36 CFR part 14</CHED> <CHED H="1">Sections</CHED> <ROW> <ENT I="01">Subpart A—Rights-of-Way: General</ENT> <ENT>14.1-14.2</ENT> </ROW> <ROW> <ENT I="01">Subpart B—Nature of Interest</ENT> <ENT>14.5-14.10</ENT> </ROW> <ROW> <ENT I="01">Subpart C—Procedures</ENT> <ENT>14.20-14.38</ENT> </ROW> <ROW> <ENT I="01">Subpart D—Under Title 23, U.S.C. (Interstate and Defense Highway System)</ENT> <ENT>14.50-14.61</ENT> </ROW> <ROW> <ENT I="01">Subpart E—Power Transmission Lines, General</ENT> <ENT>14.70-14.71</ENT> </ROW> <ROW> <ENT I="01">Subpart F—Principles and Procedures, Power Transmission Lines</ENT> <ENT>14.75-14.78</ENT> </ROW> <ROW> <ENT I="01">Subpart G -Radio and Television Sites</ENT> <ENT>14.90-14.91</ENT> </ROW> <ROW> <ENT I="01">Subpart H—Telephone and Telegraph Lines</ENT> <ENT>14.95-14.96</ENT> </ROW> <ROW> <ENT I="01">Appendix A to Part 14</ENT> <HD SOURCE="HD2">NPS Administration of ROWs</HD> 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. <HD SOURCE="HD2">Summary of Public Comments</HD> The NPS published a proposed rule in the <E T="04">Federal Register</E> 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 <E T="03">https://www.regulations.gov.</E> 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 § 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 consistenc ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 147k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━