Notice of Publication of Final Procedures and Guidance for the Siting of Telecommunication Antenna Sites in Units of the National Park Service

DEPARTMENT OF THE INTERIOR

National Park Service

Notice of Publication of Final Procedures and Guidance for the

Siting of Telecommunication Antenna Sites in Units of the National Park

Service

AGENCY: National Park Service, Interior.

ACTION: Public notice.

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SUMMARY: The National Park Service (NPS) announces finalization and

publication of the guidance and procedures document dealing

specifically with the siting of Telecommunication Antenna Sites in

units of the NPS. This information was

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developed to provide guidance and procedures to all units of the

National Park System who deal with requests for establishing

Telecommunication Antenna sites in compliance with section 704(c) of

the Telecommunications Act of 1996, Pub. L. 104-104. This document will

appear as and may be found in Exhibit 6 of Appendix 8 of NPS-53, the

NPS Guide-line on Special Park Uses which master document is already

approved finalized and published.

ADDRESSES: Copies of the guidance document will be made available upon

request by writing to National Park Service, Ranger Activities

Division, 184 C St. NW, Suite 7408, Washington, DC 20240, or by calling

202-208-4874. The guidance document is also avail-able electronically

as a downloadable file at the following web site: //www.nps.gov/

refdesk/Dorders/index.htm

FOR FURTHER INFORMATION CONTACT: Dick Young at 757-898-7846, or 757-

898-3400, ext. 51.

On Monday, March 2, 1998, the NPS published a notice in the Federal

Register (63 FR 10243) requesting public comments on the proposed

guidance and procedures document for the siting of Telecommunication

Antenna Sites in all units of the NPS. The NPS received 10 responses to

that notice. Those comments of significance, and the responses to those

comments are as follows.

Comment: The NPS should interpret its statutory authorities to

recognize that Wireless Telecommunication Facilities (WTF)

presumptively can be sited in parks without impermissibly derogating

park values and purposes.

Response: Siting of WTF on NPS land may be permissible under the

NPS Organic Act, provided that, as specified in the Telecommunications

Act, the use is not in direct conflict with the mission of the NPS. The

NPS recognizes that a WTF may be sited on NPS land without

impermissibly derogating park values and purposes, but declines to

establish a presumption to this effect. The NPS does not believe the

Telecommunications Act of 1996 establishes such a presumption, or

requires the NPS to interpret the term ``derogation'' in the NPS

organic act in a more careful and limiting manner. The

Telecommunications Act requires the establishment of procedures by

which the NPS and other federal agencies may make federal lands

available for WTF sites on a fair, reasonable, and nondiscriminatory

basis, and states that these procedures ``may establish a presumption

that requests for the use of property, rights-of-way, and easements by

duly authorized providers should be granted absent unavoidable direct

conflict with the department or agencies' mission, or the current or

planned use of the property, rights-of-way, and easements in

question.'' The procedures developed by GSA do not establish this

presumption, but rather establish several guiding principles for

federal agencies to follow.

Comment: The NPS guidelines should explain more clearly how siting

of WTF near existing commercial and maintenance facilities in parks can

be excluded categorically from NEPA.

Response: The NPS has provided additional guidance concerning

applications for right-of-way permits (including those for WTF sites)

and the NEPA process in NPS-53. The NPS disagrees that any of the

categorical exclusions in the current NPS NEPA Guidelines (revised June

1998) will apply to all or most proposed WTF sites near existing

commercial and maintenance facilities. Each proposal for a WTF site

must be analyzed individually to determine whether a categorical

exclusion applies. If a categorical exclusion potentially applies, the

action must be analyzed further to determine whether an exception to

the categorical exclusion applies. Placement of a WTF site near

commercial or maintenance facilities does not automatically mean that

there will be no visual intrusion or impacts on historic or cultural

resources generated from the height of the antenna structures.

Moreover, modifications, which may need to be made to accommodate the

proposed WTF site, such as additional access or construction, could

generate additional disturbance and additional impacts.

Comment: The Comprehensive Assessment should be prepared

immediately or be integrated in the Environmental Assessment (EA)

prepared on a WTF site permit application, and not be a decisional

document.

Response: The NPS agrees that the Comprehensive Assessment should

not be a decisional document. It is intended to be a purely optional,

information gathering process, for the information and possible use of

the park manager. Finally, there is not now nor was there ever a

requirement that such a review be completed before an application is

considered.

Comment: The guideline should further specify time frames for the

right-of-way application acceptance process.

Response: The NPS did not originally have a specified deadline for

determining when an application was complete, and feels that the 10

days (first submittal) and 10 days (resubmittal of information for

determination of a complete application) recommended by the commenter

is appropriate.

Comment: Where a WTF right-of-way permit application is eligible

for a categorical exclusion from NEPA the final rule should specify

that the entire permit process ought to take no longer than an

additional 60 days after the initial determination. The final rule also

should create a strong presumption that, for all other WTF right-of-way

applications, the entire permitting process should not exceed one year

from application submission.

Response: The NPS does not feel it is necessary to set forth time

frames for the entire permitting process. Neither the

Telecommunications Act nor the implementing GSA procedures speak to the

entire permitting process, only to the decision whether to allow a WTF

site on federal land. Preliminary decisions on the acceptability of

proposed sites should be rendered as soon as possible but no later than

60 days after receipt of an application.

Comment: The guidelines should require expedited review of a WTF

permit application where serious public safety concerns are present.

Response: The lack of cellular telecommunications equipment does

not constitute a serious public safety concern that would cause us to

expedite a review or otherwise give priority consideration to the

application. The NPS feels that all applications should receive equal

and expedited reviews and that each application presents it's own

public safety concerns. In addition the NPS feels that the 60-day

Initial Determination time period designated by GSA already constitutes

an expedited processing of such applications.

Comment: The guidelines should adopt a presumption in favor of

uniform fee schedules for determining fair market value for

communication rights-of-way''.

Response: The NPS has historically dealt with determining land and/

or facility use fees for utility rights-of-way on a park by park basis

and sees no overriding reason to change that practice. We are, however,

including reference to the USFS fee schedule for possible use by park

managers as a tool to base a comparison on if not actual use.

Comment: Pending WTF permit applications should be grandfathered,

regardless of whether they are deemed ``complete''.

Response: The NPS agrees that the final guidelines should not

constitute a basis for the NPS to review previous

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decisions regarding applications currently under review or received

prior to the finalization of these guidelines. Applications that have

been received will be judged under the rules and laws in effect at the

time they were accepted, and resultant permits issued under the

appropriate guidance. However, it is not the intent of these guidelines

to create new application information and review requirements, but to

provide guidance concerning existing requirements to NPS management for

their consideration.

Comment: WTF permit applicants must have reasonable access to parks

to prepare complete applications.

Response: The NPS agrees, but reserves the right to impose such

conditions as may be needed to protect the resource.

Comment: Right-Of-Way application information requirements must

limit requests for and protect proprietary information, especially

involving ``propagation maps''.

Response: The NPS agrees that the NPS is obligated to keep

confidential certain commercial information and other types of

information, which may be provided by an applicant. Our guidelines will

be modified to remind park Superintendents of the FOIA rules. In

addition, the 15-mile radius will be clarified as a discretionary

limit.

Comment: The proposed provisions for Right-Of-Way termination and

suspension are unreasonable to the wireless telecommunications

industry.

Response: The proposed provisions for termination and suspension of

these right-of-way permits continue to be under consideration by the

Department and will be addressed when final NPS right-of-way

regulations are adopted in 36 CFR Part 14.

Comment: The guidelines should provide an opportunity to discuss

and negotiate any problems with an applicant during the application

review process.

Response: The NPS agrees that the applicant should have the

opportunity to discuss those matters that apply to the application.

This would actually be the second of four such possible meetings to be

described in the procedures: one prior to application; one during the

initial determination period, if needed; one immediately after the

acceptance of an application; and the last prior to signing of the

permit, again if needed.

Comment: NPS should not require reviews regarding electromagnetic

radiation and related communications technology issues.

Response: The NPS is aware of the large volume of research and

investigation in place concerning electromagnetic radiation hazard and

wireless technology applications. We are also aware of the radiation

exposure hazard standards set out by ANSI, and the more recent FCC

proposed new standards for rf exposure. Considering all this, the NPS

must err on the side of caution in concern for public health and safety

by mandating technological review before a WTF site can be approved.

Comment: The transfer of a FCC license is not a basis for

termination of the ROW permit.

Response: The permittee agrees, in the ROW permit conditions, that

the permit is not transferable without the approval of the NPS. In

point of fact, this is not an isolated condition and has occurred with

some regularity in other utility rights-of-way as one-company merges or

buys out another. The routine procedure is to either convert the

existing or issue a new ROW permit to the new company depending on

circumstances. We see no reason to treat WTF ROW permits differently.

Comment: The procedures do not clearly require adequate or

consistent compliance with the National Environmental Policy Act and

other relevant statutes.

Response: The NPS accepts the comment and has revised the

procedures accordingly.

Comment: The procedures are silent on wilderness which could infer

that all designated or proposed national park system wilderness lands

are excluded from the scope of the procedures.

Response: The NPS accepts the comment and has revised the

procedures to include a statement in the Guidance section reading:

``Except as specifically provided by law or policy, there will be no

permanent road, structure or installation within any study, proposed,

or designated wilderness area (see Wilderness Act, 16 U.S.C. 1131). The

NPS will not issue any new right-of-way permits or widen or lengthen

any existing rights-of-way in designated or proposed wilderness areas.

This includes the installation of utilities.''

Comment: Can the NPS write their procedures to include language

requiring permittees to allow co-location.

Response: The decision whether or not to allow co-location must

pass the same tests as the decision to allow a first antenna. The

permit that we issue will have a condition that, if technologically

feasible, we will encourage co-location.

Dated: July 29, 1998.

Robert C. Marriott,

Acting Chief, Ranger Activities Division.

[FR Doc. 98-22121 Filed 8-17-98; 8:45 am]

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