63488 Federal Register / Vol. 62, No. 230 / Monday, December 1, 1997 / Proposed Rules

prejudice and under honorable conditions

may apply for reappointment as Reserve

commissioned officers. Reserve Airmen on

EAD as a result of an honor suspension from

the Air Force Academy Cadet Wing must

reapply for admission under this category.

A2.2.6.1. Reserve category applicants must

complete AF Form 1786 and submit it to

their organization commander. The

organization commander processes the

application.

A2.2.6.2. A Reserve applicant is not placed

on active duty for the purpose of processing

him or her for a nomination or appointment

to the Air Force Academy.

A2.3. Superintendent Competitive

Category. The Superintendent may nominate

up to fifty eligible applicants who have not

secured a nomination to USAFA from any

other nominating authority. USAFA will

select highly qualified applicants in order-ofmerit from the nationwide applicant pool of

qualified alternates to fill the class.

A2.4. Foreign Students Competitive

Category. 10 U.S.C. 9344 authorizes USAFA

to provide instruction for as many as 40

foreign students at any one time. Foreign

citizens must apply to their government.

USAFA coordinates with US Embassies to

ensure compliance with all admission and

appointment requirements. HQ USAFA/RRA

coordinates with HQ USAF, Department of

Defense and State Department before

forwarding nomination invitations to each

country. The application must describe the

applicant’s background and must be received

by USAFA by December 31 before their

desired summer admission. Applicants in

these categories must meet the eligibility and

admissions requirements established for all

Academy candidates except for US

citizenship. They must be able to read, write,

and speak English proficiently in a college

environment.

Attachment 3 to Part 901—Nomination

Methods

Note: This attachment provides

information on the different methods to

nominate candidates for appointment to the

Academy.

A3.1. Nomination methods to fill quota

vacancies in the Vice-Presidential,

congressional, and U.S. Possessions

Categories follow:

A3.1.1. The Principal Numbered-Alternate

Method. The nominating authority indicates

his or her personal preference by designating

a principal nominee and numbering up to

nine alternate nominees in order of

preference. HQ USAFA/RRS must offer the

appointment to the first fully qualified

nominee. The order of preference must be

honored; however, HQ USAFA/RRS may

offer appointments in any sequence.

A3.1.2. The Principal CompetitiveAlternate Method. The nominating authority

designates his or her principal nominee and

up to nine other nominees. HQ USAFA/RRS

evaluates and ranks nominees by order-ofmerit. If the principal nominee is fully

qualified, HQ USAFA/RRS will offer this

individual the appointment; otherwise, HQ

USAFA/RRS will offer the appointment to

the fully qualified alternate nominee ranked

the highest.

A3.1.3. The Competitive Method. At the

request of the nominating authority, the HQ

USAFA/RRS evaluates the records of all the

nominees, ranks them in order of merit, and

offers the appointment to the highest ranked

nominee.

Attachment 4 to Part 901—

Appointment Vacancy Selection

Note: This attachment provides

instructions for charging appointments to the

appropriate nominating source.

A4.1. HQ USAFA/RRS charges appointees

on behalf of the Secretary of the Air Force.

HQ USAFA/RRA will audit all charges.

Selection of the charged cadets from the

nominees for each vacancy is accomplished

as follows:

A4.1.1. Principal Nominee, NumberedAlternate Method. If the Principal Nominee

has accepted appointment, he or she is

charged against their nominating source

vacancy. Otherwise the highest ranked

alternate accepting an appointment is

charged. In instances where a candidate

received principal nominations from two

different congressional sources, the principal

is normally charged to the Member of

Congress who submitted the nomination first.

A4.1.2. Principal Nominee, CompetitiveAlternate Method. If the Principal nominee

has accepted appointment, he or she is

charged against the nominating source

vacancy. HQ USAFA/RRS evaluates

alternates and ranks according to merit. If the

Principal does not meet admission criteria,

the highest ranking alternate accepting an

appointment is charged.

A4.1.3. Competitive Nominee Method. HQ

USAFA/RRS evaluates the group of

competitive nominees, ranks according to

merit, and charges the highest-ranked

nominee accepting an appointment.

A4.1.4. Multiple Congressional

Nominations. For candidates receiving

numerous nominations, HQ USAFA/RRS

normally charges the candidate to the

congressional source. When a candidate is

nominated by several congressional sources,

HQ USAFA/RRS charges the candidate to the

slate of the congressional member where the

candidate ranks the highest, unless the

candidate is the principal nominee or a

numbered alternate.

A4.1.5. Other Sources of Nomination. HQ

USAFA/RRS charges all other candidates not

nominated by congressional, VicePresidential, or U.S. Possessions to that

nominating source (Presidential, AFJROTC,

AFROTC, CODDV, Medal of Honor, etc.).

A4.1.6. Qualified Alternates. To bring the

Cadet Wing up to strength, the qualified

alternates appointed according to § 901.2

(c)(2) are charged to the Secretary of the Air

Force. Those candidates having

congressional, Vice-Presidential, or U.S.

Possessions nominations appear as a

qualified alternate for that nominating

source.

A4.1.7. Multiple Congressional and Other

Sources of Nomination. For appointees who

have multiple nominations, HQ USAFA/RRS

determines the appointment category to

which they are charged. Normally a cadet

with both congressional and

noncongressional nominations is charged to

a congressional authority. HQ USAFA/RRS

notifies HQ USAFA/RRA, of these

assignments. HQ USAFA/RRA audits and

verifies the charges, then notifies the VicePresident, nominating authorities in the

Congress, and US Possessions of their

charged appointees and other nominees who

win appointments.

Attachment 5 to Part 901—Appointee

Obligations

Note: This attachment provides the Oath of

Allegiance which each Academy appointee

must take as an obligation of service.

‘‘I (name), having been appointed an Air

Force cadet in the United States Air Force,

do solemnly swear (or affirm) that I will

support and defend the Constitution of the

United States against all enemies, foreign and

domestic; that I will bear true faith and

allegiance to the same; that I take this

obligation freely, without any mental

reservation or purpose of evasion; and that I

will well and faithfully discharge the duties

of the office of which I am about to enter. So

Help Me God.’’

Barbara A. Carmichael,

Alternate Air Force Federal Register Liaison

Officer.

[FR Doc. 97–31347 Filed 11–28–97; 8:45 am]

BILLING CODE 3901–01–P

DEPARTMENT OF THE INTERIOR

National Park Service

36 CFR Parts 1 and 14

RIN 1024–AC01

General Provisions and Rights-of-Way

AGENCY: National Park Service, Interior.

ACTION: Proposed rule.

SUMMARY: This proposed rule revises

existing regulations relating to the

issuance of right-of-way permits across

National Park Service (NPS) lands. The

NPS has been using interim regulations

since 1980. Those interim regulations

have become dated and are in need of

revision. This rulemaking is a complete

revision of the interim regulations. It

will provide a process for the review,

consideration and approval, or denial,

of requests for rights-of-way across all

areas of the National Park System.

DATES: Written comments will be

accepted through January 30, 1998.

ADDRESSES: Mail comments to the

National Park Service, Ranger Activities

Division, MS 650 (ROW), P.O. Box

37127, Washington, D.C. 20013–7127.

FOR FURTHER INFORMATION CONTACT: Dick

S. Young, Colonial National Historical

Park, P.O. Box 210, Yorktown, VA

23690. Telephone (804) 898–7846.
Federal Register / Vol. 62, No. 230 / Monday, December 1, 1997 / Proposed Rules 63489

SUPPLEMENTARY INFORMATION:

Background

The NPS is proposing to revise the

existing regulations relating to the

issuance of right-of-way permits across

NPS lands found at 36 CFR 14. The NPS

is currently using interim rules that

were published in the Federal Register

on July 11, 1980 (45 FR 47092) to allow

telecommunication and other utility

rights-of-way across NPS lands. Prior to

that date, rights-of-ways across public

lands, including areas of the National

Park System, were administered under

regulations promulgated by the Bureau

of Land Management (BLM), found at 43

CFR part 2800. The passage, in 1976, of

the Federal Land Policy and

Management Act (43 U.S.C. 1761 et seq.,

90 Stat. 2743) required the revision of

those regulations by the BLM.

Regulations promulgated by the BLM in

1980 (45 FR 44518) deleted all

references to the NPS.

In response, the NPS adopted,

without substantive revision, those

provisions found at 43 CFR part 2800

that applied to areas under the

management and control of the NPS.

These were promulgated as interim

regulations on July 11, 1980 (45 FR

47092). This proposed regulation is the

first revision of those interim

regulations.

The period between 1980 and 1996

has seen many legislative and policy

changes regarding right-of-way

management. New language in the

annual budget legislation, now codified

at 16 U.S.C. 3a, has altered the way the

NPS looks at fees and the recovery of

costs. The intervening years have also

allowed the NPS to accumulate

experience with rights-of-way and other

permitting instruments. While the

interim regulations were satisfactory for

parts of the process, there are many gaps

and several deficiencies and inequities,

all demanding the promulgation of new

regulations. The regulations contained

in this proposed rulemaking will correct

the inefficiencies and provide necessary

changes.

Key Issues

The NPS is proposing to update and

revise right-of-way regulations that will

provide a uniform process for the

review, consideration and approval or

denial of requests for rights-of-way

across all areas of the National Park

System. These regulations will establish

procedures for the permitting of rightsof-way that are authorized at the

discretion of the Secretary of the Interior

and for rights-of-way authorized by

individual park legislation. The

regulations do not apply to those uses

that are subject to or arise from property

rights, such as easements.

These proposed regulations ensure

compliance with the right-of-way

authorities found in 16 U.S.C. 5, 79 and

23 U.S.C. 317. They reflect the

Congressional mandate that activities

inconsistent with national park values

and purposes will not be authorized in

areas of the National Park System,

‘‘except as may have been or shall be

directly and specifically provided by

Congress.’’ See section 101(b) of the Act

of March 27, 1978 (16 U.S.C. 1a–1, 92

Stat. 166). They also ensure compliance

with applicable provisions of the

National Historic Preservation Act of

1966 (16 U.S.C. 470 et seq.) and the

National Environmental Policy Act of

1969 (43 U.S.C. 4321–4370).

These proposed regulations do not

grant an interest greater than a permit

revocable at the discretion of the

Authorized Officer. The interim

regulations state that the regulations do

not give the holder any estate of any

kind in fee in the lands of the United

States. However, confusion over the

nature of the privilege permitted by the

regulations has arisen by the use of

regulatory language normally associated

with the transfer of property rights,

terms such as ‘‘grant’’, ‘‘easement’’ and

‘‘license.’’ These proposed regulations

clarify that the permit issued by the NPS

will not be construed as a grant of

permanent interest in the real property

of the United States.

In granting the discretionary uses the

NPS, as an agency of the Federal

government, must also follow the

directive of Congress to recover all costs

associated with providing benefits or

services not accruing to the public at

large (31 U.S.C. 9701). Accordingly, the

fees authorized by the regulations have

been adjusted to be comparable with

prevailing industry standards and to

better reflect the actual costs incurred

by the NPS in issuing permits.

Rights-of-way for highways are part of

the Federal Aid Highway System.

Section 107(d) of Title 23 provides for

transfer of lands or interest in lands to

appropriate jurisdictions. Requests for

such transfer of interest are subject to

the provisions of 23 U.S.C. 317. The

NPS and the Federal Highway

Administration (FHA) have determined

that such transfer should be

accomplished through a highway

easement deed. Highway easement

deeds provide for reversion to the NPS

of lands or interest in lands when such

use is no longer required for highway

purposes.

Section-by-Section Analysis

As currently codified in Title 36, part

14 consists of six subparts, labeled A–

F. These proposed regulations revise

and reorganize these subparts. A

detailed discussion of these proposed

revisions is presented below.

Subpart A—Right-of-Way Permits—

General

Section 14.1 Purpose

This is a new section to clarify the

purpose of the regulations of this part.

It emphasizes that an applicant for a

right-of-way permit must demonstrate

that there is no feasible and prudent

alternative to the proposed right-of-way.

Also, the NPS will only permit those

uses that will not be in derogation of the

values and purposes for which the

various areas have been established,

except as may have been or will be

directly and specifically provided by

Congress.

Section 14.2 Applicability and Scope

This section replaces existing § 14.1,

and addresses the following main topics

as follows:

1. Park lands and waters subject to

regulations. Proposed paragraph (a) will

require a permit for rights-of-way over

Federally owned lands and waters

within the exterior boundaries of park

areas. The authority to permit rights-ofway on lands and waters within the

boundaries of a unit is provided for in

the general legislation governing the

management and preservation of the

National Park System. (See 16 U.S.C. 1–

3)

2. Regulations do not apply to NPS

owned or operated rights-of-way.

Proposed paragraph (b) clarifies that the

regulations of this part do not apply to

rights-of-way owned, controlled or

operated by the NPS.

3. Requirements for no alternatives,

derogation and statutory standards.

Proposed paragraph (c) clarifies this part

as applying only to those permits where

there is no prudent or feasible alternate

route outside the park, that the use will

not be in derogation of park resources

and values, and all applicable statutory

standards are met.

4. Regulations of oil and gas

pipelines. Proposed paragraph (d)

clarifies that operations in connection

with the exploration, development,

production and transportation of nonFederal oil and gas within park units

must continue to comply with

regulations at 36 CFR part 9, Subpart B.

Such activities, including

transportation, do not invoke the 36

CFR part 14 regulations. This is due to

the fact that owners of the non-Federal
63490 Federal Register / Vol. 62, No. 230 / Monday, December 1, 1997 / Proposed Rules

oil and gas possess a vested property

right interest that can only be

extinguished through acquisition.

Paragraph (d) also clarifies that the

construction, operation and

maintenance of new and existing

petroleum product pipelines in park

units that originate and terminate

outside such units will comply with the

requirements of 36 CFR part 9, Subpart

B. If authorized by a park unit’s

enabling statute or other authority, a

right-of-way permit may be issued

following the procedures in the 36 CFR

part 14 regulations.

5. Proposed paragraph (e) clarifies

that applicants for access to Federal and

non-Federal minerals and leases outside

park boundaries must continue to

comply with regulations at 36 CFR part

9.

6. Prohibitions of rights-of-way in

wilderness areas. Proposed paragraph (f)

clarifies that no rights-of-way will be

permitted within NPS areas proposed

for or designated as wilderness under

the Wilderness Act of September 3,

1964 (78 Stat 890; 16 U.S.C. 1131–1136).

7. Regulations in NPS units in Alaska.

Proposed paragraph (g) clarifies that

applications for transportation and

utility system corridors in Alaska,

pursuant to Title 11 of the Alaska

National Interest Lands Conservation

Act of 1980 (ANILCA; 16 U.S.C. 3101 et

seq.) must meet the requirements of

regulations at 43 CFR part 36.

8. Approval of the Regional Director.

Proposed paragraph (h) clarifies that

new applications for rights-of-way over,

under or through the lands and waters

subject to NPS regulations must be

submitted to the Authorized Officer and

approved by the appropriate Regional

Director of the NPS or a designee.

Section 14.3 Definitions

This section replaces existing § 14.2.

The NPS proposes new definitions to

clarify existing or proposed procedures

within these regulations. Specific

changes to existing definitions or

definitions for newly proposed terms

are discussed in detail below.

The NPS proposes to add a definition

for applicant, to include any qualified

individual, partnership, corporation,

association or other business entity, and

any Federal, State or local governmental

entity including municipal

corporations, submitting an application

under this part.

A new definition of construction is

added to include all temporary or

permanent work done under the

authority of a right-of-way permit from

initiation until completion of the

necessary activities to establish the use

for which the permit is issued.

The NPS proposes to change the

context of the phrase right-of-way by

changing the definition to mean the

Federally owned land authorized to be

used or occupied under a right-of-way

permit.

The new term right-of-way permit is

defined as an authorizing document

that, without conveying any title

interest, provides permission to occupy

and use Federal lands and waters within

the NPS boundary under certain terms

and conditions and for specified

purposes that is revocable, terminable

and unassignable.

Proposed for deletion from this part is

the definition of Secretary, Director,

Regional Director, Superintendent and

Park, all of which are defined at § 1.4.

Also proposed for deletion is Project,

presently defined at § 14.2(f).

Section 14.4 Information Collection

This new section has been included to

comply with the Paperwork Reduction

Act of 1995.

The information collection

requirements contained in § 14.21 of

this section have been approved by the

Office of Management and Budget under

44 U.S.C. 3507, et seq., and assigned

approval number 1004–0060. The

information being collected is necessary

to enable the Superintendent to issue

right-of-way permits. The public is

being asked to provide this information

in order for the park to determine

whether a permit should be issued, to

track the number of permits issued and

to whom they are issued. These permits

are required by 16 U.S.C. 5 and 79, and

by 23 U.S.C. 317.

Subpart B—Terms and Conditions of

Right-of-Way Permit

This Subpart replaces existing

Subpart B, ‘‘Nature of Interest.’’

Section 14.10 Purpose

This Subpart describes the nature and

limitations of the nonexclusive right-ofway permit to be granted.

Section 14.11 Nature of Right-of-Way

Permit

This section replaces and expands

existing § 14.6. Paragraph (a)

emphasizes that the right-of-way permit

does not grant a permanent interest in

the premises nor should it be deemed as

an abandonment by the United States.

Further, the section clarifies the point

that the permittee does not gain any

estate in fee in the lands or any right

whatever to take from Service lands any

mineral, consolidated material, earth,

stone or wood for construction or other

purposes not specifically authorized. In

addition, the terms ‘‘easement’’ and

‘‘license’’ have been removed here and

throughout this part to avoid confusion.

Paragraph (b) has been added

clarifying that an approved right-of-way

permit will be limited to the specific use

described in the permit and will not be

construed to include the right of the

permittee to authorize any other use

within the right-of-way unless

authorized in writing by the Authorized

Officer. Furthermore, right-of-way

permits may not be transferred or

assigned to other parties without written

permission from the Authorized Officer.

Paragraph (c) has been added to allow

that additional right-of-way permits may

be issued by the NPS within previously

permitted rights-of-way. The holders of

such permits do not have the right to

impose charges for additional users of

such rights-of-way.

Paragraphs (d) and (e) describes the

maximum widths and expiration dates

for right-of-way permits.

Section 14.12 Unauthorized

Occupancy

This section replaces existing § 14.8.

The text has been modified for

clarification and simplification.

Occupying or using Federal lands

within a park area for constructing,

maintaining, operating or removing any

utility, highway or other facility, except

where specifically authorized by permit

according to this part, is prohibited and

subject to the penalties established in

§ 1.3. By making § 14.12 subject to the

penalties found at 36 CFR 1.3, § 1.3 will

be amended to add part 14.

Section 14.13 Terms and Conditions

This section replaces and significantly

reorganizes existing § 14.9. References

to waiving requirements are deleted.

The NPS proposes the addition and

deletion of terms and conditions for

clarity and resource protection

purposes. These revisions are broadly

summarized in the following chart:

Existing Old Section, 36 CFRProposed New Section,

36 CFR

§ 14.9(b),(c),(e) &

(i)

§ 14.15

(d) § 14.13(a)(9)

(f) § 14.13(c)(d)(e)

(g) Partly deleted, &

§ 14.13(c)

(h) § 14.13(a)(5)

(j) Deleted

(k) § 14.13(a)(10)

(l) § 14.11; § 14.27

(m) § 14.13(i)

Paragraph (a) provides that right-ofway permits are subject to such relevant

terms, conditions and additional special

stipulations as may be required by the

Authorized Officer. New subparagraphs

1 to 14 further specify the types of
Federal Register / Vol. 62, No. 230 / Monday, December 1, 1997 / Proposed Rules 63491

requirements to be addressed in the

terms and conditions of right-of-way

permits, allow the Authorized Officer or

a designee to enter and inspect the

property and require reimbursement of

costs and payment of all fees.

Paragraph (a) reinforces the

requirement to comply with State and

Federal requirements for public health

and safety, environmental protection

and siting, construction, operation and

maintenance. When State standards are

more stringent than the Federal

standards, the State standards must be

met. To protect archeological,

paleontological and historical resources,

a requirement is added that activities

must be stopped and the

Superintendent immediately notified

upon discovery of such resources. All

artifacts unearthed or discovered are the

property of the United States and will

be accessioned by the NPS according to

the standards of the automated National

Catalog System before relinquishing

them to the United States.

Paragraph (a) also requires

compliance with the specifications

pertaining to restoration and

rehabilitation of resources as listed in

proposed § 14.15. The requirement is

added to notify the Authorized Officer

in writing not less than 10 working days

prior to the start of construction,

maintenance or repair on park lands. All

work on park lands will be completed

in accordance with the terms of the

permit, as determined by the

Authorized Officer or his representative.

New paragraph (b) establishes that a

bond or other security may be required

by the Authorized Officer.

Proposed paragraph (c) replaces in

part existing paragraph (f) and requires

the permittee to notify and compensate

the United States for all damages caused

to Federal lands or resources by the

permittee. It also requires compensation

by the permittee for injury, loss or

damage arising from the occupancy or

use of lands under the permit, including

costs of fire suppression or clean up of

petroleum or other product spills.

Paragraph (d) expands on existing

paragraph (f) in a savings clause to hold

the United States free from all liabilities

and claims for damages.

New paragraph (e) requires the

Authorized Officer to include a strict

liability condition in new permits and

specify maximum limitation on liability

commensurate with the foreseeable risk

or hazard associated with the use.

New paragraph (f) makes State and

local governments liable to the extent of

their laws, or to require at a minimum

the repair of any damages or restitution

in full.

New paragraph (g) deals with

hazardous materials and toxic

substances by restricting the use,

generation or storage on the right-ofway; requires additional approval before

any such use, generation or storage;

requires immediate reporting of any

leak, spill or release of such substances;

requires the applicant to produce and

submit to the Authorized Officer a

completed emergency action plan.

New paragraph (h) replaces and

revises existing paragraph (m) to

indicate the authority of the United

States to modify or discontinue any

permit if it conflicts with authorized use

and occupancy of lands under the

management authority of the United

States.

New paragraph (i) excludes members

of or delegates to Congress or Resident

Commissioners to any share or part of

a right-of-way permit issued under this

part.

New paragraph (j) states that failure to

comply with the requirements of the

permit may lead to its cancellation.

Section 14.14 Additional Terms and

Conditions Specific to Electrical

Transmission and Communication Lines

This is a new section that revises,

simplifies and replaces existing Subpart

E—Power Transmission Lines, General;

Subpart F—Principles and Procedures,

Power Transmission Lines; Subpart G—

Radio and Television Sites; and Subpart

H—Telephone and Telegraph Lines.

Some of these terms and conditions

have been moved to the general terms

and conditions section at § 14.13. Other

sections have been deleted because they

are no longer applicable.

It is felt that § 14.13 adequately

addresses the criteria that should be

applied to any right-of-way permit,

regardless of type. The authority for

electrical and communication rights-ofway is the same as for other rights-ofway. Existing subparts E through H are

repetitive and, except for the few

specifics in this new § 14.14 applicable

to communication and power lines,

have been deleted.

Section 14.15 Rehabilitation and

Revegetation Requirements

This new section consolidates

existing requirements and establishes

new requirements for the rehabilitation

and revegetation of rights-of-way during

various stages of construction,

operation, maintenance and

termination. Existing § 14.9 (b),(c),(e)

and (i) are incorporated in this new

section.

The rehabilitation and revegetation

work must be conducted according to

adopted NPS policies, guidelines, park

standards and applicable vegetation

management plans. The permit will be

conditioned to require restoration,

revegetation and curtailment of erosion

of the surface of the land during

construction and completion of

construction. The permit will also be

conditioned to minimize damage and

aesthetic values and fish and wildlife

habitat and otherwise protect the

environment. Further, this section

places restrictions on the cutting of

vegetation and requires reimbursement

to the park of market value for trees cut.

At the termination and rehabilitation

stage of the proposed use, the permittee

is required to participate in a

pretermination conference with the

Authorized Officer. Rehabilitation

activities must restore natural resources

to their pre-disturbance condition to the

satisfaction of the Authorized Officer.

The Authorized Officer may require

rehabilitation and revegetation of the

right-of-way to other than the original

condition in previously disturbed areas

if consistent with the management

zones and park purposes prescribed in

the park’s enabling legislation and

General Management Plan. If agreement

cannot be reached between the

Authorized Office and the permittee, the

permittee may appeal the decision of

the Authorized Officer following

procedures found in § 14.31.

A bond, which is a permit

requirement, will not be returned to the

permittee until the Authorized Officer

conducts a final inspection to determine

that all work has been satisfactorily

completed and that the revegetation of

the site is properly established and selfgenerating. Failure to do so may result

in forfeiture of all or part of the bond.

The bond in this instance may be

utilized to rehabilitate the site. The

bond will never be deposited to the U.S.

Treasury as miscellaneous receipts.

Subpart C—Procedures

Section 14.20 Preapplication

This section is renamed

Preapplication. Information is given

regarding the steps to be followed when

seeking a right-of-way over, across or

through lands and waters within the

boundary of an area of the National Park

System. The purpose of this section is

to make the proponent aware of the

application procedures and probable

time requirements, clearances, other

permits and licenses required for the

use, environmental and management

concerns, cost reimbursement, fees and

bonding requirements, and special

conditions applicable to the area.
63492 Federal Register / Vol. 62, No. 230 / Monday, December 1, 1997 / Proposed Rules

Section 14.21 Application Filing

This section revises and expands

existing 36 CFR 14.21 and includes

existing 36 CFR 14.24, 14.25 and 14.28.

Paragraph (a) indicates that the

application is to be filed with the

Authorized Officer and lists the basic

information needed for evaluating the

application. The information requested

in subparagraphs 1 through 9 is needed

in order for the Authorized Officer to

determine the impacts of the proposed

activity on park resources and to insure

that the activity would not conflict with

any Federal or State law.

Paragraph (b) requires applicants for

rights-of-way to demonstrate their

legally recognized right to utilize,

transport, store or convey water.

Paragraph (c) replaces existing 36 CFR

14.25(a) regarding map and document

requirements to accompany a right-ofway application.

Section 14.22 Timely Construction,

Nonconstruction and Nonuse.

This section revises existing 36 CFR

14.29. The major revision places the

emphasis on initiating work within two

years instead of completing work within

two years. Proof of construction

completion is still required, with certain

extensions possible. Completion of

construction dates will be stipulated in

the permit.

Section 14.23 Deviation From

Approved Right-of-Way

This section replaces existing 36 CFR

14.31, and provides that no deviation

from the approved right-of-way can be

initiated by the permittee without

approval from the Authorized Officer.

Section 14.24 Immediate Suspension

of Activities.

This new section provides the

Authorized Officer with the authority to

issue immediately a temporary

suspension of activities order within a

permitted right-of-way to protect park

resources, public health or safety or the

environment. This may be done without

an administrative hearing and may be

conducted orally. The suspension order

may be issued to the permittee or a

contractor or subcontractor, or to any

representative, agent or employee of the

permittee. Activity must be suspended

at once upon the issuance of such an

order.

The order will remain in effect until

it is lifted by the Authorized Officer in

writing. By written request, the

permittee may request that the

suspension be lifted, providing reasons

for the request. The Authorized Officer

will act upon the permittee’s request

within five working days of the date the

request is filed.

Section 14.25 Cancellation of Permit

This section replaces and revises

existing 36 CFR 14.32 and 14.33. It

addresses the causes that may result in

the cancellation of a permit, rather than

the temporary suspension of § 14.24.

These include failing to comply with

applicable laws and regulations, terms,

conditions or stipulations of the permit;

or abandoning the right-of-way as

described in proposed § 14.22(b).

Before revoking a right-of-way permit

pursuant to this section, the Authorized

Officer will give the permittee written

notice that such action is being

contemplated and the reasons therefore

and will allow the permittee an

opportunity to comply with the terms of

the permit.

Section 14.26 Disposition of Personal

Property and Improvements Upon

Termination of Rights-of-Way.

This section revises and replaces

existing § 14.38. All references to

monies due the United States and

references to six-month limitations for

removing property and improvements

are deleted. The permittee is now

provided with a reasonable amount of

time for removal activities after

termination, revocation or cancellation

of a right-of-way permit. This section

also reaffirms the responsibility of the

permittee to restore the site to a

condition satisfactory to the Authorized

Officer. Further, if the permittee fails to

remove such improvements or personal

property within a reasonable time, as

determined by the Authorized Officer,

the improvements and personal

property will become the property of the

United States. However, the permittee

will remain liable for all costs of

removal of the improvements of

personal property and for rehabilitation

and revegetation of the right-of-way.

Section 14.27 Amendments

This section clarifies that a right-ofway permit may be amended any time

by making a written request. If the

amendment is approved, the Authorized

Officer may modify the terms,

conditions, land use fees and charges,

and special stipulations to reflect

subsequent conditions, requirements or

changes in market value.

Section 14.28 Renewal of Right-of-Way

Permits

This section clarifies that a right-ofway permit may be renewed if

authorized by law, if it is being used for

authorized purposes and if it is

consistent with the provisions of this

part. In making such a renewal, the

Authorized Officer may modify the

terms, conditions, land use fees and

charges, and special stipulations, to

reflect any subsequent conditions,

requirements or changes in the market

values imposed by Federal and State

laws, regulations, and other

management plans or land uses.

Section 14.29 Change in

Administrative Jurisdiction Over Lands

This section revises existing 36 CFR

14.34. It clarifies that the NPS will not

cancel an existing right-of-way permit

on Federal lands transferred from the

jurisdiction of another Federal agency to

the jurisdiction of the NPS; provided,

however, that the use does not change

from that permitted at the time of the

issuance of the original permit.

If a right-of-way permit transferred

from another Federal agency to the

jurisdiction of the NPS expires, and if

the NPS has decided to renew the rightof-way, it must be renewed in

accordance with these regulations. The

permittee may make a new application

for such authorized use as described in

this part.

Section 14.30 Transfer of Right-of-Way

Permit

This section replaces existing 36 CFR

14.35, 14.36 and 14.37. Any proposed

transfer to another party of any right-ofway permit must be filed in accordance

with § 14.21. Further, no transfer will be

recognized and no further construction

or uses permitted, unless and until the

transfer is first approved by the

Authorized Officer. The transferee must

agree to comply with and to be bound

by the terms and conditions of the rightof-way permit. All applications for

transfer approval must be accompanied

by an application fee in accordance with

§ 14.42(a) and an administrative

processing fee in accordance with

§ 14.42(b).

Section 14.31 Appeal

This is a new section explaining the

requirements and process associated

with appeals.

Subpart D—Fees and Charges

Section 14.40 Purpose

All references to fees and charges are

consolidated under this new Subpart. It

places all information regarding fees

together in a single, prominent location

rather than being scattered throughout

the text of the regulations. The

numbering sequence and section names

are changed from the existing

regulations. There are two basic

purposes for the four fees and payments

delineated in this section. The fees
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identified in paragraphs (a), (b) and (c)

provide for the reimbursement of costs

incurred by the United States in issuing

the permit and monitoring the operation

of the right-of-way. Paragraph (d)

requires a fee, equal to fair market value,

for use and occupancy of NPS lands.

The linear and nonlinear fee

schedules for reimbursement of costs

and monitoring of costs found in

existing 36 CFR 14.22 are deleted.

Section 14.41 Exemptions

All references to exemptions from fees

are consolidated in this subsection.

Exemptions apply:

(a) To Federal agencies or where the

use is for the sole and exclusive use and

benefit of the NPS;

(b) To use and occupancy fees only,

to State and local governments or

agencies or instrumentalities thereof

where the use is for governmental

purposes (consistent with OMB Circular

A–25) and for electric or telephone

facilities financed pursuant to the Rural

Electrification Act of 1936 (7 U.S.C. 31).

The proposed rule revises existing 36

CFR 14.22 by now requiring

reimbursement of costs from these

entities.

(c) To situations where the use of

Federal lands is needed for highway

purposes under 23 U.S.C. 317;

(d) When Federal law prohibits such

fees.

Section 14.42 Reimbursement of Costs

This section reorganizes and replaces

existing § 14.22 and retains its title. The

reorganization is summarized in the

following chart:

Existing Old Section, 36 CFRProposed New Section,

36 CFR

14.22(a)(1) 14.42(b)(1)

14.22(a)(2) 14.41

14.22(a)(3) 14.42(a)

14.22(a)(4) 14.42(b)(2)

14.22(a)(5) 14.42(b)(3)

14.22(a)(6) 14.42(b)(5)

14.22(a)(7) 14.42(b)(4)

14.22(a)(8) 14.42(b)(6)

14.22(a)(9) Deleted

14.22(a)(10) 14.42(b)(7)

14.22(a)(11) 14.42(b)(8)

14.22(a)(12) 14.13

14.22(a)(13) 14.42(b)(9)

14.22(a)(14) 14.42(b)(10)

14.22(a)(15) Deleted

14.22(b)(1)–(4) 14.42(c)(1),(2)

Paragraph (a) establishes a one-time

non-refundable application payment of

$100 rather than a variable payment

based on mileage as in existing 36 CFR

14.22.

Paragraph (b)(1) revises existing

§ 14.22(a)(1) to add additional

requirements that must be complied

with by the NPS and makes the

applicant responsible for costs

associated with such compliance.

Paragraph (b)(2) establishes

procedures for estimating costs and

payment procedures. A clarification is

made that the ‘‘processing payment’’ is

based on an estimate of cost. It may be

required in advance and later refunded

or adjusted, based on an accounting of

actual costs.

Paragraph (b)(3) requires applicants to

pay additional amounts if estimated

costs to the United States are exceeded.

Paragraphs (b)(4), (5) and (6) address

costs to be borne by the applicant upon

withdrawal of an application before

completion of the approval process or

upon permit denial. Any costs paid to

the United States that exceed actual

costs will be refunded by the

Authorized Officer or future billings

will be credited.

Paragraph (b)(7) requires all

applicants for a permit determined by

the Authorized Officer to be in

competition with each other to

reimburse the United States according

to this section, except that costs not

readily attributable to only one

applicant will be borne by all applicants

equally.

Paragraph (b)(8) allows the

Authorized Officer to require security

for costs in the section.

Paragraph (b)(9) requires that each

party in a joint application for a permit

be jointly and severally liable for costs

under this section.

When more than one noncompeting

application is received for a right-of-way

permit found by the Authorized Officer

to be for a common right-of-way system,

paragraph (b)(10) makes each applicant

jointly liable for costs according to this

section.

New paragraph (c) addresses fees for

inspection and monitoring, replacing

existing 36 CFR 14.22(b)(1)–(b)(4). As

mentioned above for proposed § 14.40,

the linear and nonlinear fee schedules

for reimbursement of costs and

monitoring of costs in existing 36 CFR

14.22 are proposed for deletion. It has

been found that often the tables caused

an automatic charging of the minimums

expressed in the tables without a

thorough analysis of true expenditures

of Government funds. Therefore, this

paragraph requires the reimbursement

of all costs incurred by the NPS or its

agents in the processing and monitoring

of a right-of-way permit. This change

simplifies the discussion of monitoring

and inspection fees.

Section 14.43 Fee for Use and

Occupancy

This section revises existing 36 CFR

14.26 by stating the method for

calculation of the charge for use and

occupancy will be the fair market value,

including but not limited to an

appraisal. This section also amends the

requirement for payment by stating that

in situations where a lump sum

payment is required by the Authorized

Officer, the full sum must be submitted

within 60 days of the issuance of the

permit.

Fees for use and occupancy will be

paid beyond termination or cancellation

of the permit until equipment removal

and site rehabilitation are completed in

accordance to Subpart B.

The minimum charge policy for use

and occupancy of lands and waters is

also amended to be not less than $100

per year for any right-of-way permit

issued.

Paragraph (e) revises existing 36 CFR

14.26(d) to clarify that if a charge

required by this section is not paid

when due, and such default will

continue for 60 days after notice, action

may be taken to cancel the permit. After

default has occurred, any structures or

personal property will be considered

abandoned.

Paragraph (f) provides for the review

of and adjustment of charges at intervals

not less than five years.

Subpart E—Highway Easement Deeds

This Subpart replaces existing part 14,

Subpart D—Under Title 23, U.S.C.

(Interstate and Defense Highway

System). The title has been simplified to

better describe the subject covered and

to reinforce that rights-of-way interest

for highways is conveyed through

highway easement deeds.

Section 14.50 Rights-of-Way for

Highway Purposes

This section revises and replaces

existing 36 CFR 14.50. Paragraph (a)

clarifies that right-of-way requests for

highways over lands or interests in

lands under the jurisdiction of the NPS

may only be considered if the Secretary

of Transportation, acting under the

provisions of 23 U.S.C. 138, determines

that there is no feasible and prudent

alternative to the use of such land, and

that any action will include all possible

planning to minimize adverse impacts

to NPS lands and resources.

Paragraph (b) sets up the procedures

to be followed between the Secretary of

Transportation and the Secretary of the

Interior if the Secretary of

Transportation determines that there is

no feasible and prudent alternative for

the use, and either no adverse impacts

will occur, or such adverse impacts that

might occur have been planned for. The

Secretary of the Interior has four months

to approve any deeded interest transfer.

Paragraph (c) outlines what the

Secretary of Transportation will then do
63494 Federal Register / Vol. 62, No. 230 / Monday, December 1, 1997 / Proposed Rules

when both Secretaries for

Transportation and Interior agree on the

request. When both Secretaries approve

the request, the Secretary of

Transportation will make the

arrangements necessary to convey to the

State or other person requesting such

use, adequate rights-of-way and control

of access thereto. The right-of-way

interest will be conveyed through a

highway easement deed.

The Secretary of the Interior does not

possess the authority to issue rights-ofway for roads in parks under 36 CFR

part 5 or 79. The only authority for

granting such rights-of-way for roads is

at 23 U.S.C. 317. Under 23 U.S.C. 317

authority, rights-of-way may be granted

for highway purposes only for Federal

aid primary or Federal aid secondary

road networks, and for the Interstate and

Defense Highway Systems.

Section (c) also deletes existing 36

CFR 14.50(b)(2) and 14.51 regarding no

intent to vest in a State a right of

appropriation of an interest in land,

contrary to the discretion of the

Secretary.

Section 14.51 Additional Rights-of-Way

within Highway Rights-of-Way

This section revises existing 36 CFR

14.59, requiring a separate permit for

any additional rights-of-way to be

authorized within the same right-ofway, but not for highway purposes. Any

relocation or change of any additional

right-of-way made necessary by the

highway will be accomplished at no

expense to the United States.

Section 14.52 Termination of Highway

Use

This section revises existing 36 CFR

14.52. When the lands are no longer

needed, the control of the lands will

revert to the NPS. Upon notification, the

Secretary of the Interior will

immediately notify the Secretary of

Transportation and take the necessary

action to revoke and abandon the

highway easement deed and revest the

NPS with clear and exclusive title of the

unencumbered land.

Subpart F—[Reserved]

This Subpart is reserved for future

terms and conditions governing the

operation of valid R.S. 2477 highways

across NPS areas.

Organizational Summary

The NPS has prepared the following

organizational summary and

distribution table to assist in the

location and analysis of the proposed

revisions to 36 CFR part 14:

Numbering

Existing Old Section, 36 CFRProposed New Section,

36 CFR

14.1 14.2

14.2 14.3

14.5 Deleted

14.6 14.11

14.7 Deleted

14.8 14.13

14.9 14.13, 14.15, 14.27

14.10 14.2

14.20 14.20

14.21 14.21

14.22 14.41, 14.42

14.23 Deleted

14.24 14.21

14.25 14.21

14.26 14.40, 14.43

14.27 Deleted

14.28 14.21

14.29 14.22

14.30 14.22

14.31 14.23

14.32 Deleted

14.33 14.25

14.34 14.30

14.35 14.31

14.36 14.31

14.37 14.31

14.38 14.27

14.50 14.50

14.51 Deleted

14.52 14.52

14.53 Deleted

14.54 Deleted

14.55 Deleted

14.56 Deleted

14.57 Deleted

14.58 14.14

14.59 14.51

14.60 Deleted

14.61 Deleted

14.70 Deleted

14.71 Deleted

14.75 Deleted

14.76 14.15

14.77 Deleted

14.78 Deleted

14.90 Deleted

14.91 Deleted

14.95 Deleted

14.96 Deleted

New Sections

14.1

14.4

14.10

14.15

14.24

14.28

14.29

14.40

14.42

Drafting Information: The primary

authors of this proposed rule are Pat

Bentley, Northeast Region, NPS,

Philadelphia, PA; Jenness Coffey,

Division of Wildlife and Vegetation,

Washington, D.C.; Tony Sisto,

Superintendent, Fort Vancouver, WA;

Rick Wagner, Columbia Cascades Land

Resources Program Office, Seattle, WA;

Dick Young, Special Park Use

Coordinator, Colonial National

Historical Park, VA; and Dennis Burnett,

Washington Office of Ranger Activities,

National Park Service.

Public Participation

It is the policy of the Department of

the Interior, whenever practicable, to

afford the public an opportunity to

participate in the rulemaking process.

Accordingly, interested persons may

submit written comments regarding this

proposed rule to the address noted at

the beginning of this rulemaking. The

NPS will review all comments and

consider making changes to the rule

based upon a thorough analysis of the

comments.

Paperwork Reduction Act

The collection of information as

described in § 14.21 of this proposed

rule has been approved by the Office of

Management and Budget (OMB) under

44 U.S.C. 3501 et seq., and assigned

approval number 1004–0060. The

information being collected is necessary

to enable the Superintendent to issue

right-of-way permits. The public is

being asked to provide this information

in order for the park to determine

whether a permit should be issued, to

track the number of permits issued and

to whom they are issued. These permits

are required by 16 U.S.C. 5 and 79, and

by 23 U.S.C. 317.

The public reporting burden for the

collection of information in § 14.21 is

estimated to average from 2–20 hours

per response depending on the size of

right-of-way applied for, including the

time for reviewing instructions,

searching existing data sources,

gathering and maintaining the data

needed, and completing and reviewing

the collection of information.

Specifically, the NPS needs the

following information to issue a permit:

1. Name, address and telephone

number of the company requesting a

right-of-way permit.

2. Contact person representing the

company.

3. Type of right-of-way permit

requested.

4. Rehabilitation and revegetation

requirements, if required.

5. Environmental assessment, if

required.

Send comments regarding this burden

estimate or any other aspect of this

collection of information, including

suggestions for reducing the burden, to

Information Collection Officer, Docket

No. 1024–AC01, National Park Service,

1849 C Street, NW, Washington, D.C.

20240; and the Office of Management

and Budget, Office of Information and

Regulatory Affairs, Attention: Desk

Officer for the Department of the

Interior (1004–0060), Washington, D.C.

20503.
Federal Register / Vol. 62, No. 230 / Monday, December 1, 1997 / Proposed Rules 63495

Compliance With Other Laws

This rule was reviewed by the Office

of Management and Budget review

under Executive Order 12866. The

Department of the Interior determined

that this document will not have a

significant economic effect on a

substantial number of small entities

under the Regulatory Flexibility Act (5

U.S.C. 601 et seq). The overall economic

effects of this rulemaking will be

negligible. The updated fee schedules

are consistent with fair business

practices, are minor and are present to

allow the recovery of costs by

individual parks. There are no expected

increases in costs of prices for

consumers, the Federal government or

geographic regions, and only minor

increases for individual industries, State

or local governments and agencies.

The NPS has determined and certifies

pursuant to the Unfunded Mandates

Reform Act, 2 U.S.C. 1502 et seq., that

this proposed rule will not impose a

cost of $100 million or more in any

given year on local, State, or tribal

governments or private entities.

The Department has determined that

this rule meets the applicable standards

provided in Section 3(a) and 3(b)(2) of

Executive Order 12988.

This rule is not a major rule under the

Congressional review provisions of the

Small Business Regulatory Enforcement

Fairness Act (5 U.S.C. 8–4(2)).

The NPS has determined that this

proposed rule will not have a significant

effect on the quality of the human

environment, health and safety because

it is not expected to:

(a) Increase public use to the extent of

compromising the nature and character

of the area or causing physical damage

to it;

(b) Introduce non-compatible uses

that might compromise the nature and

characteristics of the area, or cause

physical damage to it;

(c) Conflict with adjacent ownerships

or land uses; or

(d) Cause a nuisance to adjacent

owners or occupants.

Based on this determination, the

regulation is categorically excluded

from the procedural requirements of the

National Environmental Policy Act

(NEPA) by Departmental guidelines in

516 DM 6, (49 FR 21438). As such,

neither an Environmental Assessment

nor an Environmental Impact Statement

has been prepared.

List of Subjects

36 CFR Part 1

National parks, Penalties, Reporting

and recordkeeping requirements, Signs

and symbols.

36 CFR Part 14

Electric power, Highways and roads,

Public lands—rights-of-way.

In consideration of the foregoing, it is

proposed to amend 36 CFR Chapter I as

follows:

PART 1—GENERAL PROVISIONS

1. The authority citation continues to

read as follows:

Authority: 16 U.S.C. 1, 3, 460 1–6a(e),

469(k); D.C. Code 8–137, 40–721 (1981).

2. Section 1.3 is amended by revising

paragraph (a), to read as follows:

§ 1.3 Penalties.

(a) A person convicted of violating a

provision of the regulations contained

in parts 1 through 7 and 12 through 14

of this chapter, within a park area not

covered in paragraph (b) or (c) of this

section, shall be punished by a fine as

provided by law, or by imprisonment

not exceeding 6 months, or both, and

shall be adjudged to pay all costs of the

proceedings.

* * * * *

3. 36 CFR part 14 is revised to read

as follows:

PART 14—RIGHTS-OF-WAY

Subpart A—Right-of-Way Permits: General

Sec.

14.1 Purpose.

14.2 Applicability and scope.

14.3 Definitions.

14.4 Information collection.

Subpart B—Terms and Conditions of Rightof-Way Permit

14.10 Purpose.

14.11 Nature of right-of-way permit.

14.12 Unauthorized occupancy.

14.13 Terms and conditions.

14.14 Additional terms and conditions

specific to electrical transmission and

communication lines.

14.15 Rehabilitation and revegetation

requirements.

Subpart C—Procedures

14.20 Preapplication.

14.21 Application filing.

14.22 Timely construction, nonconstruction

and nonuse.

14.23 Deviation from approved right-ofway.

14.24 Immediate suspension of activities.

14.25 Cancellation of permit.

14.26 Disposition of personal property and

improvements upon termination of rightof-way permit.

14.27 Amendments.

14.28 Renewal of a right-of-way permit.

14.29 Change in administrative jurisdiction

over lands.

14.30 Transfer of right-of-way permit.

14.31 Appeal.

Subpart D—Fees and Charges

14.40 Purpose.

14.41 Exemptions.

14.42 Reimbursement of costs.

14.43 Fee for use and occupancy.

Subpart E—Highway Easement Deeds

14.50 Rights-of-way for highway purposes.

14.51 Additional uses within highway

rights-of-way.

14.52 Termination of highway use.

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

Subpart A—Right-of-Way Permits:

General

§ 14.1 Purpose.

The purpose of the regulations in this

part is to:

(a) Prescribe the procedures by which

an applicant may apply for a right-ofway permit and the terms and

conditions under which the National

Park Service may authorize and permit

a right-of-way within a park area.

(b) Regulate, control and direct all

authorized activities pursuant to a rightof-way permit or other legal instrument,

to ensure that there is no feasible and

prudent alternative to the proposed

right-of-way and such activities are not

exercised in derogation of the values

and purposes for which the various park

areas have been established, except as

may have been or will be directly and

specifically provided by Congress.

§ 14.2 Applicability and scope.

(a) The regulations contained in this

part apply to authorized rights-of-way

activities occurring upon, under, over,

across or through federally owned lands

or waters administered by the National

Park Service within the exterior

boundaries of park areas.

(b) The regulations contained in this

part do not apply to right-of-way

construction, operation and

maintenance when said rights-of-way

are owned, controlled or operated by the

National Park Service.

(c) Unless otherwise provided for in

law, permits issued pursuant to this part

will only be for those rights-of-way

permits where:

(1) There is no prudent or feasible

alternative for the right-of-way outside

the boundaries of a park area; and

(2) The use will not be in derogation

of park resources and values and other

applicable statutory standards

authorizing rights-of-way permits are

met.

(d) The regulations in this part do not

apply to operations in connection with

the exploration, development,

production and transportation of nonFederally owned oil and gas originating

in units of the National Park System.
63496 Federal Register / Vol. 62, No. 230 / Monday, December 1, 1997 / Proposed Rules

Such operations are subject to

regulations found at 36 CFR part 9,

subpart B. The construction, operation

and maintenance of rights-of-way for

new and existing transpark petroleum

product pipelines occupying park lands

that originate and terminate outside a

park unit, must comply with the

requirements of 36 CFR part 9, subpart

B. Where issuance of a right-of-way

permit is specifically authorized by a

park unit’s enabling statue or other

authority, such right-of-way must also

comply with the procedures set forth in

this part.

(e) The regulations in this part do not

apply to applicants seeking access to

Federal mineral leases or non-Federal

minerals outside park boundaries.

Those applicants must meet the

requirements of 36 CFR part 9.

(f) No new right-of-way permit will be

issued for activities within park areas on

lands or waters proposed for or

designated as wilderness under the

Wilderness Act of 1964 (16 U.S.C. 1131–

1136).

(g) Applications for transportation

and utility system corridors in Alaska

pursuant to Title XI of the Alaska

National Interest Lands Conservation

Act (16 U.S.C. 3161 et seq.) must be

made under regulations at 43 CFR part

36.

(h) Applications for a right-of-way

permit for a park area will be submitted

to the Authorized Officer for the park

area. Pursuant to any statute applicable

to lands and waters administered by the

National Park Service and pursuant to

the regulations in this part, right-of-way

permits are subject to the approval of

the Director. The Director may delegate

this approval authority in writing.

§ 14.3 Definitions.

The following definitions apply to

this part:

Applicant means any individual; any

partnership, corporation, association or

other business entity; and any Federal,

State or local governmental entity,

including a municipal corporation,

submitting an application under this

part.

Authorized Officer means a park area

superintendent or a delegate appointed

in writing by the superintendent.

Construction means any work,

whether permanent or temporary in

nature, under the authority of a right-ofway permit from initiation until

completion of the necessary activities to

establish the use for which the permit

is issued.

Right-of-way means the land or water

area in a park area authorized to be used

or occupied under a right-of-way

permit.

Right-of-way permit is an authorizing

document that, without conveying any

title interest, provides permission to

occupy and use lands or waters within

a park area under certain terms and

conditions and for specified purposes,

which is nonexclusive, revocable,

terminable and unassignable.

§ 14.4 Information collection.

(a) The information collection

requirements contained in § 14.21 have

been approved by the Office of

Management and Budget under 44

U.S.C. 3507 et seq., and assigned

approval number 1004–0060. The

information being collected is necessary

to enable the Superintendent to issue

right-of-way permits. The public is

being asked to provide this information

in order for the park to determine

whether a permit should be issued, to

track the number of permits issued and

to whom they are issued. These permits

are required by 16 U.S.C. 5 and 79, and

by 23 U.S.C. 317.

(b) The NPS needs the following

information to issue a permit:

(1) Name, address and telephone

number of the company requesting a

right-of-way permit.

(2) Contact person representing the

company.

(3) Type of right-of-way permit

requested.

(4) Rehabilitation and revegetation

requirements, if required.

(5) Environmental assessment, if

required.

(c) The public reporting burden for

the collection of information in § 14.21

is estimated to average from 2–20 hours

per response depending on the size of

right-of-way applied for, including the

time for reviewing instructions,

searching existing data sources,

gathering and maintaining the data

needed, and completing and reviewing

the collection of information. Send

comments regarding this burden

estimate or any other aspect of this

collection of information, including

suggestions for reducing the burden, to

Information Collection Officer, Docket

No. 1024-AC01, National Park Service,

1849 C Street, NW, Washington, D.C.

20240; and the Office of Management

and Budget, Office of Information and

Regulatory Affairs, Attention: Desk

Officer for the Department of the

Interior (1004–0060), Washington, D.C.

20503.

Subpart B—Terms and Conditions of

Right-of-Way Permit

§ 14.10 Purpose.

The purpose of this subpart is to

describe the nature, limitations and the

terms and conditions of a right-of-way

permit issued in accordance with this

part. This subpart does not apply to

highway easement deeds that are

addressed in subpart E of this part.

§ 14.11 Nature of right-of-way permit.

(a) A right-of-way permit is not a grant

of permanent interest, an abandonment

of use and occupancy of the premises by

the United States or a waiver of any

regulatory authority of the United

States. The use permitted will not be

greater than a right-of-way permit

revocable at the discretion of the

Authorized Officer, unless otherwise

specifically authorized by statute. The

permitted use does not give the

permittee an estate in fee, limited estate,

interest in the land or any right to take

from a park area any mineral,

consolidated material, earth, wood or

stone for construction or other purposes

not specifically permitted.

(b) A right-of-way permit will only be

for the specifically described use

approved in writing by the Regional

Director. A right-of-way permit may not

be transferred or assigned to another

party except as otherwise provided in

this part.

(c) A right-of-way permit does not

limit the authority of the Regional

Director to approve additional right-ofway permits within or adjacent to the

permitted right-of-way, nor does it

authorize a permittee to impose charges

for the additional use of the right-of-way

made subject to such right-of-way

permits.

(d) The width or area of a right-of-way

under this part is determined by the

Authorized Officer and will not be

greater than that required for the

permitted use, nor exceed that

authorized by law.

(e) A right-of-way permit will not be

issued for a period longer than ten

years, unless otherwise specified in the

permit criteria.

§ 14.12 Unauthorized occupancy.

Occupying or using Federal lands

within a park area for constructing,

maintaining, operating or removing any

utility, highway or other facility, except

where specifically authorized by permit

according to this part, is prohibited and

subject to the penalties established in 36

CFR 1.3.

§ 14.13 Terms and conditions.

(a) The Authorized Officer will

include in a right-of-way permit terms

and conditions pertaining to the extent,

duration, location, construction,

operation, maintenance and termination

of activities authorized by the permit

and additional stipulations to include,
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but not be limited to, requirements for

the permittee to:

(1) Comply with State and Federal

laws and regulations applicable to the

park area and the authorized use for

which the right-of-way permit is issued.

(2) Ensure that construction or other

activities concerning right-of-way

permits will not violate applicable air

and water quality standards or other

standards established by or pursuant to

applicable Federal or State law and

regulations or Executive Order.

(3) Ensure compliance with

applicable State standards for public

health and safety, environmental

protection and siting, construction,

operation and maintenance when those

standards are more stringent than

applicable Federal standards.

(4) Ensure that the facilities and

appurtenances constructed on the

prescribed right-of-way are maintained

and operated consistent with the

purposes of the permit.

(5) Comply with other applicable

statutes and regulations with respect to

the occupancy and use of a park area as

may be found by the Authorized Officer

to be necessary as a condition to the

approval of the right-of-way permit to

render its use compatible with the

public interest.

(6) Halt any activities and

immediately notify the Authorized

Officer upon discovery of archeological,

paleontological or historical resources.

The permittee must submit to the

Authorized Officer a written report of

any findings during the construction

phase, and otherwise comply with the

requirements of the National Historic

Preservation Act, the Archeological

Resources Protection Act and the Native

American Graves Protection and

Repatriation Act. All artifacts unearthed

or discovered are the property of the

United States and must be accessioned

by the permittee according to the

standards of the automated National

Catalog System before relinquishing

same to the United States.

(7) Comply with the specifications as

listed in § 14.15 concerning restoration

and rehabilitation of National Park

System resources.

(8) Notify the Authorized Officer, in

writing, no fewer than ten working days

before the start of construction and

initiate construction within two years of

the date of permit approval.

(9) Initiate construction within two

years of the date of permit approval, or

some other time acceptable to the

authorizing official, and establish a

reasonable time for the disposition of

personal property upon cancellation or

termination of a right-of-way permit

pursuant to § 14.26.

(10) Establish fire prevention systems

and ensure initial suppression

capability for wildland and structural

fires on or near the park area to be

occupied under the right-of-way permit.

This may include sprinkler systems for

structures and/or agreements with local

fire agencies.

(11) Ensure nondiscrimination in the

construction, operation and

maintenance of the authorized use. The

permittee will not discriminate against

any employee or applicant for

employment because of race, creed,

color, sex or national origin and will

require an identical provision to be

included in all authorized subcontracts.

(12) Operate and maintain safe

practices during the construction,

operation and maintenance of the

authorized use and ensure occupational

safety and the public health are not

jeopardized.

(13) Ensure that the Authorized

Officer has access to the area and

facilities at any time without restriction.

(14) Agree to reimburse all costs to the

government and to pay all fees

according to subpart D of this part.

(b) A bond or other security

satisfactory to the Authorized Officer

may be required to secure the

obligations imposed by the permit and

applicable laws and regulations.

(c) A permittee will promptly notify

the Authorized Officer of, and

compensate the United States for, the

full value of all injury, loss or damages

to the lands and resources, or other

property of the United States caused by

the permittee, its contractors, agents or

employees, as determined by the

Authorized Officer, and will be

responsible for costs incurred by the

National Park Service that result from

any fire suppression activities or

cleanup of petroleum product or

hazardous waste spills caused by the

permittee.

(d) Upon accepting a right-of-way

permit, a permittee agrees that such

permit is issued upon the express

condition that the United States, its

agents and employees, will be free from

all liabilities and claims for damages

and/or suits for, or because of any injury

or death to any person or property,

whether to the person or property of the

permittee, its agents or employees, or

third parties, from any cause during the

term of this permit occasioned by any

occupancy or use of the permitted rightof-way, or any activity carried on by the

permittee in connection therewith; and

that the permittee agrees to indemnify,

defend, save and hold harmless the

United States, its agents and employees,

from all liabilities, charges, expenses

and costs because of or by reason of any

such injuries, deaths, liabilities, claims,

suits or losses however occurring, or

damages growing out of the same.

(e) The Authorized Officer will

include a condition imposing strict

liability and specifying a maximum

limitation on liability that, in the

judgement of the Authorized Officer, is

commensurate with the foreseeable risk

or hazards associated with the

permittee’s use of park land.

(f) A permittee that is a State or local

government or agency or

instrumentality thereof, will be liable to

the fullest extent its laws allow at the

time the right-of-way permit is issued.

When the power to assume liability is

limited by law, the permittee will be

required to repair damages or make

restitution to the fullest extent of its

powers at the time any damage or injury

occurs.

(g) Hazardous materials and toxic

substances; emergency action plan

requirements. (1) The permittee will not

use, generate or store on the right-ofway any toxic substance as defined by

the Toxic Substances Control Act of

1976 (15 U.S.C. 2601–1692), or

hazardous substance or hazardous waste

as defined by the Comprehensive

Environmental Response, Compensation

and Liability Act of 1980 (42 U.S.C.

9601–9675), or the Resource

Conservation and Recovery Act of 1976

(42 U.S.C. 6901–6992k), except as

provided in the permit.

(2) The permittee must request

written approval from the Authorized

Officer before the use, generation or

storage of any toxic or hazardous

substance or hazardous waste.

(3) The permittee must immediately

notify the Authorized Officer of any

leak, spill or release of such substances,

in addition to any other reports as

required under Federal and State law.

(4) The applicant or permittee must

show to the satisfaction of the

Authorized Officer that an emergency

action plan, including plans for

containment and cleanup of any spills,

and any other conditions required by

law, has been completed before the use,

generation or storage of any toxic or

hazardous substance or hazardous

waste.

(h) A right-of-way permit may be

subject to modification, adaptation or

cancellation, without liability or

expense to the United States, if the

Authorized Officer determines such

action to be necessary to avoid conflict

with the uses for which the park area

was established.

(i) No member of or delegate to

Congress or Resident Commissioner will

be admitted to any share or part of a

right-of-way permit or to any benefit
63498 Federal Register / Vol. 62, No. 230 / Monday, December 1, 1997 / Proposed Rules

that may arise from it, but this provision

will not apply to this permit if made

with a corporation for its general

benefit.

(j) Failure to comply with any of the

requirements of the permit may lead to

cancellation of the permit by the

Authorized Officer.

§ 14.14 Additional terms and conditions

specific to electrical transmission and

communication lines.

For an electrical transmission or

communication line, a permittee will

comply with the following terms and

conditions in addition to those in

§ 14.13:

(a) The permittee will protect all

surrounding communication and

electrical transmission lines from

contact, and all highways and railroads

from obstruction, and maintain all

transmission lines in such manner as

not to menace life or property, in

accordance with the National Electric

Safety Code, which is available from:

National Fire Protection Association, 1

Batterymarch park, Quincy MA 02269–

9101. Telephone 617–770–3000.

(b) The permittee is responsible for

avoiding, and liable to the extent of law

for causing, any inductive or conductive

interference between any transmission

line or other works constructed,

operated or maintained on the right-ofway, and any radio installation,

telephone line or other communication

facilities.

§ 14.15 Rehabilitation and revegetation

requirements.

The permittee will rehabilitate and

restore those areas disturbed through

construction and/or maintenance

activities authorized by the right-of-way

permit to the satisfaction of the

Authorized Officer. If the right-of-way is

to be constructed in a disturbed area,

then the Authorized Officer may require

further rehabilitation and revegetation

of the right-of-way in compliance with

the parks enabling legislation and

General Master Plan.

(a) The permittee will clear and keep

cleared, as necessary, the lands within

the right-of-way to the extent and

manner directed by the Authorized

Officer, and to dispose of all vegetative

and other material cut, uprooted or

otherwise accumulated during the

construction and maintenance activities

in an agreed upon manner.

(b) The permittee will not cut,

destroy, or remove timber without first

obtaining written permission from the

Authorized Officer. The permittee will

reimburse the United States for the

market value of merchantable timber or

other resources removed.

(c) The permittee will repair, rebuild

or replace in kind any roads, fences and

trails destroyed or damaged by

construction activities, and to provide

and maintain suitable crossings for all

roads and trails that intersect the works

authorized by the right-of-way permit.

(d) The permittee will meet additional

standards as agreed upon by the

permittee and the authorized officer.

(e) Bonding. The Authorized Officer

may require the permittee to furnish an

acceptable security by bond, guaranty,

cash, certificate of deposit or other

means for the costs of rehabilitation and

revegetation. The Authorized Officer

will not release the bond or security

until a final inspection is conducted to

determine that all rehabilitation

requirements have been satisfactorily

completed and that the revegetation of

the right-of-way is properly established

and self-generating. Failure to

rehabilitate the site will result in the

forfeiture of all or part of the bond. The

bond in this instance will be utilized to

rehabilitate the site. The bond will

never be deposited to the U.S. Treasury

as miscellaneous receipts.

(f) Termination. (1) Prior to

termination of the right-of-way permit

and implementation of rehabilitation

and revegetation, the permittee will

consult with the Authorized Officer to

insure that the permittee fully

understands and will comply with the

agreed upon rehabilitation and

revegetation measures as described in

the permit.

(2) Failure of the permittee to initiate

or complete rehabilitation within the

time limits and to the standards

imposed by this section will be grounds

for forfeiture of all or so much of the

bond or security as the Authorized

Officer determines is necessary to

achieve successful rehabilitation.

(3) Should the permittee disagree with

the decision of the Authorized Officer,

the permittee may follow the appeal

process found in § 14.31.

Subpart C—Procedures

§ 14.20 Preapplication.

The applicant should contact the

National Park Service office responsible

for management of the park area before

applying for a right-of-way permit.

Information concerning application

procedures, time requirements,

clearances, other permits and licenses

that may be required for the use,

environmental and management

concerns, cost reimbursement, fees and

bonding requirements, and any other

conditions applicable to the area will be

provided.

§ 14.21 Application filing.

(a) Applications for a right-of-way

permit must be filed with the

Authorized Officer for that area. An

application will comply with § 14.42,

and will also include, but not be limited

to, the following information:

(1) Name and address of the applicant

and the applicant’s authorized agent, if

applicable.

(2) A description of the proposed use.

(3) A survey map or drawing

acceptable to the Authorized Officer

showing limits of the proposed use area

as specified in paragraph (c) of this

section.

(4) A statement of the possible

environmental, social and economic

impacts of the proposal and its

alternatives.

(5) A statement describing possible

impacts of the proposal and its

alternatives on any known cultural,

historic and archeological resources.

(6) A description of the alternatives,

routes and modes considered by the

applicant when developing the

proposal, including alternate routes not

using the park area and a written

statement of why the route through the

park area is otherwise necessary.

(7) Proof of the possession of or

application for any Federal, State or

other licenses, permits or other evidence

of compliance for the proposed use.

(8) Certification that the applicant is

a citizen of the United States, or in the

case of a partnership, association or

corporation, as being subject to the laws

of any State or the United States and

that the information submitted is correct

to the best of the applicant’s knowledge.

(9) Proposed beginning and

completion dates for the proposed use.

(b) Evidence of right to use water. If

the proposed use involves the storage,

diversion or conveyance of water, the

applicant will file a statement of the

proper State official, or other

appropriate evidence, showing a legally

recognized right to utilize, transport,

divert and/or store water. Where the

State requires an applicant to obtain a

right-of-way permit as a prerequisite to

the issuance of evidence of a water

right, a right-of-way permit may be

issued conditioned upon the subsequent

filing within a specified time of the

required evidence of rights to use,

transport, divert and/or store water from

the State official. The right-of-way

permit will terminate at the expiration

of such specified period if the evidence

is not produced.

(c) Maps. An applicant must submit

with the permit application three copies

of drawings and maps that are

sufficiently accurate, to the satisfaction

of the Authorized Officer, so that the
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right-of-way may be precisely located on

the ground by any competent engineer

or land surveyor, and, at a minimum:

(1) Show the park boundaries and

prominent features in the vicinity of the

requested use.

(2) Have an exactly located and

described point of beginning and ending

to locate accurately where the proposed

use enters and exits the park area and

to show also any prominent or

significant park features the proposed

use will pass, go through, under or over.

(3) Be of a scale appropriate to the

proposed use, but large enough to show

detail, with the scale(s) shown on the

face of the drawing.

(4) Present the proposed use in strips

using match lines rather than reduce the

map scale, if the length of the proposed

use is such that it cannot be shown as

one continuous line on a standard

engineering drawing.

§ 14.22 Timely construction,

nonconstruction and nonuse.

(a) Unless otherwise provided by law,

or otherwise specified in the permit,

construction must begin within two

years of the date the right-of-way permit

is issued.

(b) Failure of the permittee to use or

occupy the right-of-way for the purpose

for which the permit was issued for any

continuous two-year period will

constitute a presumption of

abandonment.

(c) The Authorized Officer will

consider applications for an extension

of the beginning date for construction or

right-of-way rehabilitation upon receipt

of the following:

(1) A request from the permittee 90

days before the termination of the twoyear period under paragraph (a) of this

section;

(2) A statement justifying the need for

the extension including, but not limited

to, the permittee’s demonstrated

intention to accomplish the permitted

work, meet construction schedules and

initiate rehabilitation efforts; and

(3) Documentation of evidence of

extenuating circumstances beyond the

control of the permittee that require the

extension.

(d) Failure of the permittee to comply

with the requirements of this section

will result in cancellation of the permit.

(e) Completion of construction. (1)

Construction must be completed within

the period set forth in the permit.

(2) Within 90 days after completion of

construction, or after all restoration,

rehabilitation and revegetation

requirements have been satisfied,

whichever is later, the permittee will

notify the Authorized Officer of

completion and show, to the satisfaction

of the Authorized Officer, that all

applicable permit criteria have been

met.

§ 14.23 Deviation from approved right-ofway.

No deviation from the location of an

approved right-of-way will be initiated

by the permittee without the prior

written approval of the Authorized

Officer. The Authorized Officer may

require the filing of a new application

in accordance with § 14.21 where, in the

Authorized Officer’s judgment, a

deviation significantly changes the

intent or purposes of the original rightof-way, or that has the potential to cause

greater or substantially different impacts

to park resources than the original

approved use.

§ 14.24 Immediate suspension of

activities.

(a) If the Authorized Officer

determines that an immediate

temporary suspension of activities

within a permitted right-of-way is

necessary to protect park resources,

public health or safety, or the

environment, the Authorized Officer

may promptly suspend such permitted

activities as deemed appropriate.

(b) The Authorized Officer may issue

an immediate temporary suspension

order orally, to be followed in writing,

at the site of the activity to the permittee

or a contractor or subcontractor of the

permittee, or to any representative,

agent or employee of the permittee. Any

oral order will be followed with a

written order.

(c) Upon the issuance of a suspension

order, the permittee or on-site agent-incharge must suspend all activity

associated with the suspension order.

An order of immediate suspension of

activities will remain in effect until the

Authorized Officer issues a written

order permitting resumption of

activities.

(d) Any time after an order of

immediate suspension has been issued,

the permittee may file a request with the

Authorized Officer for permission to

resume activities. The request will be in

writing and will contain a statement of

the facts supporting the request for

resumption.

(e) The Authorized Officer will grant

or deny the permittee’s request to

resume activities within five working

days of the date the permittee’s request

is filed.

(f) The United States will not be liable

for any claims arising from the

immediate temporary suspension of the

permittee’s use.

§ 14.25 Cancellation of permit.

(a) The Authorized Officer may cancel

a right-of-way permit upon a

determination that the permittee has

failed to comply with applicable laws,

regulations or Executive Orders, or any

special terms, conditions or stipulations

of the right-of-way permit, or has

abandoned the right-of-way as described

in § 14.22.

(b) Before canceling a right-of-way

permit pursuant to paragraph (a) of this

section, the Authorized Officer will give

the permittee written notice that such

action is being considered and the

reasons therefore, and will establish in

such notice a deadline for the permittee

to comply with the terms of the permit.

(c) No right-of-way permit will be

canceled except on the issuance of a

specific written order of cancellation by

the Authorized Officer.

(d) No administrative proceeding will

be required in those cases where the

permit terminates under the terms

specified within the permit.

§ 14.26 Disposition of personal property

and improvements upon termination of

right-of-way permit.

After termination of a right-of-way

permit, the permittee will, unless

otherwise directed in writing by the

Authorized Officer, remove

improvements or personal property and

restore the site to a condition

satisfactory to the Authorized Officer. If

the permittee fails to remove such

improvements or personal property, all

improvements and personal property

will become the property of the United

States, but the permittee will

nevertheless remain liable for all costs

of removal of the improvements of

personal property and for rehabilitation

and revegetation of the right-of-way.

§ 14.27 Amendments.

(a) A right-of-way permit may be

amended any time, either at the

discretion of the Authorized Officer, or

upon a written filing by the permittee

requesting amendment of the permit.

Such amendments shall be

accomplished with the written and

signed agreement of both parties.

(b) In making such amendments, the

Authorized Officer may modify the

terms, conditions or fees and charges of

the permit, and impose new stipulations

to reflect any changes in conditions,

requirements or market values.

(c) The filing of a new application

pursuant to § 14.21 may be required if

the Authorized Officer determines that

the requested amendments require

significant deviation from the approved

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

(a) Upon written request to the

Authorized Officer by the permittee,

and within the six months before the

stated date of expiration, the Authorized

Officer may approve the renewal of any

existing right-of-way permit in

accordance with the provisions of this

section and any other applicable laws

and regulations in effect at the time of

renewal, so long as the activity or

facility will continue to be used for the

purposes authorized.

(b) Before renewal, the Authorized

Officer may modify the terms,

conditions, land use fees and charges,

and special stipulations of the permit to

reflect any changed conditions,

requirements, land uses, market values

or Federal and State laws, Federal

Executive Orders, regulations or

management plans.

§ 14.29 Change in administrative

jurisdiction over lands.

(a) Except as otherwise provided for

by law, a change in the administrative

jurisdiction over the lands and waters

from another Federal agency to the

National Park Service will not cause an

existing right-of-way permit, grant or

other authorizing instrument to be

canceled, if there is no change in the

approved use.

(b) The holder of the permit, grant or

other authorizing instrument must

comply with all additional laws,

executive orders and regulations

applicable to the park area.

(c) When a right-of-way permit, grant

or other authorizing instrument

transferred from another Federal agency

to the jurisdiction of the NPS expires,

the holder of the permit, grant or

authorizing instrument may apply for a

right-of-way permit pursuant to this

part, to the Authorized Officer to

continue the use of the right-of-way.

The renewal procedures of § 14.28 are

not applicable to this section.

§ 14.30 Transfer of right-of-way permit.

(a) A proposal by the permittee to

transfer any right-of-way permit to

another party, in whole or in part, will

be made in accordance with applicable

provisions of § 14.21, as determined by

the Authorized Officer.

(b) No transfer of a permit will be

recognized, and no construction or uses

allowed, until the transfer is first

approved in writing by the Authorized

Officer. Such transfer must be filed in

accordance with applicable regulations

at the time of transfer and must be

supported by the stipulation that the

transfer applicant agrees to comply

with, and to be bound by, the terms and

conditions of the right-of-way permit.

(c) All filings for transfer approval

made pursuant to this section must be

accompanied by an application fee in

accordance with § 14.42(a) and an

administrative processing fee in

accordance with § 14.42(b).

§ 14.31 Appeal

Should the permittee disagree with a

decision of the Authorized Officer in

connection with the regulations in this

part, the permittee may file a written

statement to that effect with the

Authorized Officer. The written

statement will detail the reason(s) why

the decision is contrary to, or in conflict

with the facts, the law, these

regulations, or is otherwise in error. No

appeal will be considered unless it is

filed with the Authorized Officer within

thirty (30) days after the date of

notification to the permittee of the

action or decision. Upon receipt of such

written statement, the Authorized

Officer shall promptly review the action

or decision and either reverse the

original decision or prepare a separate

statement, explaining that decision and

the reasons, and forward the statement

and record of appeal to the Regional

Director of the geographic area in which

the Authorized Office is located, for

review and decision.

Subpart D—Fees and Charges

§ 14.40 Purpose.

The purpose of this subpart is to

delineate and establish procedures for

the payments of the unique fees and

charges associated with a right-of-way

permit. Payments are required pursuant

to this subpart for the following

categories:

(a) An application processing

payment;

(b) A reimbursement for

administrative and other appropriate

costs incurred by the National Park

Service;

(c) An annual payment for monitoring

and inspection; and

(d) A fee for the use and occupancy

of a park area at fair market value.

§ 14.41 Exemptions.

The regulations of this subpart do not

apply to the following:

(a) Federal agencies, or where the

right-of-way is for the sole and exclusive

use and benefit of the National Park

Service.

(b) For § 14.43 only, State and local

governments or agencies or

instrumentalities thereof, including

counties, parishes, boroughs and other

taxing districts, where the use is

exclusively for respective governmental

purposes and for electric or telephone

facilities financed pursuant to the Rural

Electrification Act of 1936 (7 U.S.C. 31).

Provided, however, that if an applicant

derives revenue from charges levied on

customers for services as would a profit

making corporation or business, the

applicant is not exempt from charges

under this subpart.

(c) When Federal law specifically

prohibits the charging of fees, or

specifically establishes a different fee

schedule, rate, structure or other

procedure.

§ 14.42 Reimbursement of costs.

(a) Application payment. An

applicant for a right-of-way permit must

submit with each application a one-time

payment of $100 to cover initial

processing costs.

(b) Administrative processing. (1) An

applicant for a right-of-way permit will

reimburse the United States for

administrative and other appropriate

costs incurred by the National Park

Service in processing the application.

(2) When an application is received,

the Authorized Officer will provide the

applicant an estimate, based upon the

best available information, of costs

expected to be incurred by the United

States in processing the application.

When the estimated costs exceed

$2,500, the Authorized Officer will

either require the applicant to remit the

full payment of the estimated costs

before processing the application, or

require a bond or other security

pursuant to paragraph (b)(8) of this

section. Such payments may be

subsequently refunded or adjusted as

provided by paragraph (b)(6) of this

section.

(3) Before the issuance of a right-ofway permit, the applicant will be

required to pay any additional amounts

to the extent the costs of the United

States have exceeded the payments

required by paragraphs (b)(1) and (2) of

this section.

(4) An applicant who withdraws an

application for a permit before a

decision is reached on the issuance of

the permit is responsible for costs

incurred by the United States in

processing such application up to the

date upon which the Authorized Officer

receives written notice of the

withdrawal, and for costs subsequently

incurred by the United States in

terminating the application review

process. Reimbursement by the

applicant of such incurred costs will be

due within 30 days of receipt of notice

of the amount due.

(5) An applicant whose application is

denied is nevertheless responsible for

paying the application and

administrative costs incurred by the
Federal Register / Vol. 62, No. 230 / Monday, December 1, 1997 / Proposed Rules 63501

National Park Service in processing the

application. Additional costs that have

not been paid in accordance with

paragraphs (b)(1), (2) and (3) of this

section, are also due within 90 days of

receipt of notice from the National Park

Service of the amount due.

(6) If payment exceeds the actual costs

incurred pursuant to paragraphs (b)(2)

and (3) of this section, the National Park

Service will refund the amount under

the authority of 43 U.S.C. 1374, or may

adjust future billings to credit the

applicant’s account for overpayment.

Neither an applicant nor a permittee

may adjust any billing by the National

Park Service without prior written

approval.

(7) When two or more applications for

a right-of-way permit are filed that the

Authorized Officer determines to be in

competition, each applicant will

reimburse the National Park Service

according to paragraphs (b)(1) through

(6) of this section, except that costs not

readily attributable to only one of the

applications, such as costs for an

environmental impact statement, will be

paid by each applicant in equal shares.

(8) The Authorized Officer may

require an applicant to furnish security

of an acceptable amount by bond,

guaranty, cash, book entry deposits or

other means, for costs under paragraphs

(b)(1) through (7) of this section. The

Authorized Officer may require such

additional security or substitution of

security as the Authorized Officer

deems appropriate.

(9) When more than one person,

partnership, corporation, association or

other entity apply together for a right-ofway permit, each such applicant will be

jointly and severally liable for costs

under paragraphs (b)(1) through (6) of

this section.

(10) When two or more noncompeting

applications for right-of-way permits are

received for what, in the judgment of

the Authorized Officer, is a common

right-of-way system, all applicants will

be jointly and severally liable for costs

under paragraphs (b)(1) through (6) of

this section for the entire system,

subject however, to the provisions of

paragraphs (b)(8) and (9) of this section.

(c) Monitoring and inspection. (1) The

permittee will make in advance an

annual payment as determined by the

Authorized Officer, to the National Park

Service for monitoring and inspection of

the right-of-way. Such payment will be

sufficient to cover all costs by the

National Park Service or its agents for

monitoring the construction, operation,

maintenance and termination of all

right-of-way activities and facilities, and

for the protection of surrounding lands.

(2) Within 30 days of receipt of a bill

from the National Park Service for the

estimated annual monitoring and

inspection costs for the upcoming year,

the permittee will remit such estimated

payment to the National Park Service.

(3) In any year, if annual costs to the

National Park Service exceed the

estimate because of unforeseen

circumstances, the permittee will be

responsible for paying all such

additional costs either as a one-time

payment or as an adjustment of the next

annual monitoring charge.

§ 14.43 Fee for use and occupancy.

(a) Once an application has been

approved, payment in advance is

required before the issuance of a rightof-way permit for the use and

occupancy of lands and waters under

the administration of the National Park

Service. The charge for use and

occupancy of lands and waters

authorized by a right-of-way permit

issued under this part will be the fair

market value of the right-of-way as

determined by the Authorized Officer

using sound business management

principles, including but not limited to

an appraisal.

(b) Periodic or lump-sum payments

may be required at the discretion of the

Authorized Officer and as indicated in

the terms and conditions of the permit.

(c) Upon the relinquishment or

termination of a permit before the

expiration of its term, annual fees must

continue to be made under this section

until completion of equipment removal

and rehabilitation of the right-of-way

pursuant to subpart B of this part.

(d) The charge for use and occupancy

of lands and waters under the

regulations of this part will not be less

than $100.00 per year for any right-ofway permit issued.

(e) If a charge required by this section

is not paid when due, and such default

will continue for 60 days after notice,

the Authorized Officer may cancel the

permit. Upon cancellation, any

structures or personal property

remaining on the right-of-way will be

considered abandoned and be disposed

of according to § 14.26, unless written

permission to remove has been granted

by the Authorized Officer.

(f) At any time not less than five years

after either the issuance of the permit or

the last revision of charges thereunder,

the Authorized Officer, after reasonable

notice to the permittee, may review

such existing charges and impose such

new charges determined pursuant to

paragraph (a) of this section,

commencing with the following charge

year.

Subpart E—Highway Easements Deeds

§ 14.50 Rights-of-way for highway

purposes.

(a) Whenever a State highway

department requests a right-of-way from

the Secretary of Transportation for

purposes of a highway that is part of the

Federal aid primary or Federal aid

secondary system, or is part of the

National System of Interstate or Defense

Highways, pursuant to Title 23, United

States Code, over lands or interests in

lands under the jurisdiction of the

National Park Service, the Secretary of

Transportation, acting under the

provisions of 23 U.S.C. 138, must first

determine that:

(1) There is no feasible and prudent

alternative to the use of such land; and

(2) Such a program includes all

possible planning to minimize adverse

impacts to National Park Service lands

and resources resulting from such use.

(b) Should the Secretary of

Transportation, in consultation with the

Secretary of the Interior, determine that

there is no feasible and prudent

alternative to the use, and that either no

adverse impacts will occur, or such

adverse impacts that might occur will be

mitigated to the satisfaction of the

National Park Service, then the

Secretary of Transportation, acting

pursuant to 23 U.S.C. 317(b), may file

notice with the Secretary of the Interior.

The Secretary of the Interior then has

four months to review and certify to the

Federal Highway Administration

approval of such transfer of land and, if

the request is approved, establish such

conditions as determined necessary to

protect the park area.

(c) If both the Secretary of

Transportation and the Secretary of the

Interior approve the request, the

Secretary of Transportation will then

arrange to convey to the State highway

department, adequate rights-of-way and

control of access thereto. Such right-ofway interest will be conveyed through

a highway easement deed containing

terms and conditions satisfactory to the

Secretary of the Interior for the

protection of park values and resources

and in accordance to the purposes for

which the park area was established.

§ 14.51 Additional uses within highway

rights-of-way.

(a) Separate application by the State

highway department or any other

applicant must be made to the

Authorized Officer to obtain

authorization to use the park area for

other purposes within such highway

right-of-way. An applicant for an

additional right-of-way permit must first

obtain a written statement from the
63502 Federal Register / Vol. 62, No. 230 / Monday, December 1, 1997 / Proposed Rules

1An unaffiliated copyright owner is one whose

interests are not represented by a performing rights

society, or by any other organization participating

in the proceeding.

State highway department indicating its

approval and any stipulations it

considers desirable for the additional

right-of-way.

(b) Future relocation or change of the

additional right-of-way made necessary

by the State highway use will be

accomplished at the expense of the

additional right-of-way permittee.

§ 14.52 Termination of highway use

(a) If at any time the need for any such

lands or materials for highway purposes

pursuant to a highway easement deed

will no longer exist, notice of the fact

will be given by the State highway

department to the Secretary of

Transportation and such lands or

materials will revert to the control of the

Secretary of the Interior.

(b) Upon receipt of such notice, the

Secretary of Transportation will

immediately notify the Secretary of the

Interior and take steps as necessary to

revoke and abandon the highway

easement deed and revest the Secretary

of the Interior with clear and exclusive

title of unencumbered land.

Dated: November 13, 1996.

George T. Frampton, Jr.,

Assistant Secretary for Fish and Wildlife and

Parks.

Note: This document was received at the

Office of the Federal Register on November

24, 1997.

[FR Doc. 97–31262 Filed 11–28–97; 8:45 am]

BILLING CODE 4310–70–P

LIBRARY OF CONGRESS

Copyright Office

37 CFR Part 253

[Docket No. 96–6 CARP NCBRA]

Noncommercial Educational

Broadcasting Compulsory License

AGENCY: Copyright Office, Library of

Congress.

ACTION: Notice of proposed rulemaking.

SUMMARY: The Copyright Office of the

Library of Congress is submitting for

public comment additional settlement

proposals for the adjustment of the

royalty rates for the noncommercial

educational broadcasting compulsory

license and proposed regulations for

implementing these rates.

DATES: Comments and Notices of Intent

to Participate are due by December 29,

1997. If comments and Notices of Intent

to Participate are not received by this

date, the proposed terms and rates shall

become effective on January 1, 1998.

ADDRESSES: If sent by mail, an original

and five copies of comments, and

Notices of Intent to Participate, should

be addressed to: Copyright Arbitration

Royalty Panel (CARP), P.O. Box 70977,

Southwest Station, Washington, DC

20024. If hand delivered, an original

and five copies of comments, and

Notices of Intent to Participate, should

be brought to: Office of the Copyright

General Counsel, James Madison

Memorial Building, Room LM–407, First

and Independence Avenue, SE.,

Washington, DC 20540.

FOR FURTHER INFORMATION CONTACT:

David O. Carson, General Counsel,

William J. Roberts, Senior Attorney, or

Tanya Sandros, Attorney Advisor,

Copyright Arbitration Royalty Panel

(CARP), P.O. Box 70977, Southwest

Station, Washington, D.C. 20024.

Telephone (202) 707–8380. Telefax:

(202) 707–8366.

SUPPLEMENTARY INFORMATION:

I. Background

Section 118 of the Copyright Act, 17

U.S.C., creates a compulsory license for

the use of published nondramatic

musical works and published pictorial,

graphic, and sculptural works in

connection with noncommercial

broadcasting. Terms and rates for this

compulsory license, applicable to

parties who are not subject to privately

negotiated licenses, are published in 37

CFR part 253 and are subject to

adjustment at five year intervals. 17

U.S.C. 118(c). The last adjustment of the

terms and rates for the section 118

license occurred in 1992, making 1997

a window year for the adjustment of

these terms and rates. 57 FR 60954

(December 22, 1992).

Section 118(b) provides that any

copyright owner and any public

broadcasting entity may negotiate the

rates and terms for the compulsory

license, or in the absence of a negotiated

license,

The Librarian of Congress shall, pursuant

to Chapter 8, convene a copyright arbitration

royalty panel to determine and publish in the

Federal Register a schedule of rates and

terms which, subject to paragraph (2), shall

be binding on all owners of copyright in

works specified by this subsection and public

broadcasting entities, regardless of whether

such copyright owners have submitted

proposals to the Librarian of Congress * * *

Interested parties who submit

proposals for adjusting the terms and

rates for the section 118 license directly

to the Librarian of Congress may

petition the Librarian to submit these

proposals to a public notice and

comment proceeding, whereby

copyright owners and users that would

be affected by the proposals are given

the opportunity to challenge them. 37

CFR 251.63. Any party who objects to

the proposed terms and rates must

submit, in turn, its challenges by a date

certain, and must be entitled to

participate in the CARP proceeding

adjusting the section 118 terms and

rates. If no challenges are received, or if

challenges are received by an interested

party who will not participate in a

CARP proceeding, the Librarian may

adopt the terms and rates of the

proposals.

Accordingly, interested copyright

owners and users of these works may

file either a voluntary agreement or a

joint proposal outlining the adjustments

to the terms and rates for the section 118

license; or in the case of unaffiliated

copyright owners,1 the users may

submit their proposals for the

adjustment of the terms and rates of the

section 118 license directly to the

Librarian of Congress. See 62 FR 51619

(October 2, 1997). A joint proposal

differs significantly from a voluntary

settlement. The parties to a voluntary

agreement represent all persons who

would be affected by the agreement and

the parties have the authority to bind

their members. In a joint proposal, the

parties to the agreement do not

represent all persons who would be

affected by the agreement, or if they do,

at least one of the parties does not have

the authority to bind its members.

II. This Proceeding

A. The Interested Parties

Seven parties filed notices of intent to

participate with the Copyright Office in

a proceeding to adjust the terms and

rates of the section 118 license. Two

additional parties, The American

Council on Education and The National

Federation of Community Broadcasters,

participated in the negotiations of the

joint proposals which certain parties

filed with the Office on October 1, 1997.

The following parties represent users of

copyrighted works in this proceeding:

Public Broadcasting Services (PBS)—

a non-profit membership corporation

which, among other things, represents

the interests of its member

noncommercial, educational

broadcasting stations in rate setting and

royalty distribution proceedings in the

United States, Canada, and in Europe.

National Public Radio (NPR)—a nonprofit membership organization

dedicated to the development of a