[Federal Register Volume 63, Number 174 (Wednesday, September 9, 1998)]
[Notices]
[Pages 48170-48173]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-24181]


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DEPARTMENT OF AGRICULTURE

Forest Service
RIN 0596-AB65


Categorical Exclusion for Certain Ski Area Permit Actions

AGENCY: Forest Service, USDA.

ACTION: Notice; adoption of interim directive.

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SUMMARY: The Forest Service is issuing an interim directive to guide 
its employees in complying with the National Environmental Policy Act 
when issuance of a ski area permit is a purely ministerial action and 
no changes are proposed in permitted activities or facilities. The 
interim directive implements a provision of the Omnibus Parks and 
Public Lands Management Act of 1996, which states that reissuance of a 
ski area permit for activities similar in nature and amount to the 
activities authorized under the previous permit shall not constitute a 
major Federal action. Public comment on the proposed interim directive 
published in the Federal Register on October 27, 1997 (62 FR 55571) was 
considered in development of this interim directive.

EFFECTIVE DATE: The interim directive is effective September 24, 1998.

FOR FURTHER INFORMATION CONTACT: Questions about this action should be 
addressed to Alice Carlton, Recreation, Heritage, and Wilderness 
Resources Staff, (MAIL STOP 1125), Forest Service, USDA, PO Box 96090, 
Washington, DC 20090-6090, (202)-205-1399.

SUPPLEMENTARY INFORMATION: To reduce administrative costs, section 
701(i) of the Omnibus Parks and Public Lands Management Act of 1996 (16 
U.S.C. 497c) states that the reissuance of a ski area permit for 
activities similar in nature and amount to the activities provided 
under the previous permit shall not constitute a major Federal action 
for the purposes of the National Environmental Policy Act of 1969 
(NEPA) (42 U.S.C. 4331 et seq.). Agency direction regarding this 
provision is needed to guide Forest Service employees in complying with 
NEPA and the Omnibus Parks and Public Lands Management Act of 1996 when 
ski area permits are issued.
    Section 701(i) of the 1996 act applies to issuance of permits for 
up to the maximum tenure allowable under the National Forest Ski Area 
Permit Act of 1986 (the Ski Area Permit Act) (16 U.S.C. 497b) for 
existing ski areas when permit issuance involves only administrative 
changes, such as issuance of a permit when no changes to the Master 
Development Plan and no new facilities or activities are authorized, to 
the following: (1) To a new owner of the ski area improvements; (2) to 
the existing owner upon expiration of the current permit; or (3) to a 
holder of a permit issued under the Term Permit and Organic Acts 
converting to a permit under the Ski Area Permit Act. The effect of 
section 701(i) is that an environmental impact statement is not 
required for issuance of permits under these circumstances.
    The Forest Service currently authorizes ski areas on National 
Forest System lands through permit issuance under the Ski Area Permit 
Act. The permit provides the legal framework for the use and occupancy 
of National Forest System lands, including terms for renewal; 
conditions for issuance of a new permit in the event of sale of the ski 
area improvements to another owner; permit tenure; fee schedules and 
payment methods; accountability and reporting requirements; liability 
and bonding requirements; and any other customized terms and conditions 
needed to ensure consistency with applicable forest land and resource 
management plans or to meet the requirements of other applicable laws.
    The Ski Area Permit Act, its implementing regulations at 36 CFR 
251.56, and existing policy in Forest Service Manual (FSM) section 
2721.61e provide that under ordinary

[[Page 48171]]

circumstances ski area permits will be issued for a duration of 40 
years unless specific situations, such as financial aspects of the 
transaction or the adequacy of the Master Development Plan, suggest a 
shorter duration.
    The National Forest Management Act (NFMA) (16 U.S.C. 1600, 1604) 
requires that resource plans and permits, contracts, and other 
instruments for the use and occupancy of National Forest System lands 
shall be consistent with the land management plans. Ski area permits 
are subject to this requirement.
    The forest planning process provides for public involvement in land 
allocation decisions, including those affecting ski areas. Where 
appropriate, forest land and resource management plans and associated 
environmental impact statements (EIS's) consider long-term consequences 
of allocating public lands for a ski resort and may establish standards 
and guidelines for lands allocated for ski area development. NFMA also 
requires revision of forest plans at least every 15 years.
    To ensure that forest plans remain current, implementing 
regulations at 36 CFR 219.10(g) require (1) review of the conditions on 
the land covered by a forest plan every 5 years to determine whether 
conditions or public demands have changed significantly and (2) 
revision of the forest plans ordinarily every 10 years, and at least 
every 15 years.
    A ski area Master Development Plan is required for all ski areas 
authorized under the Ski Area Permit Act. The Master Development Plan 
determines the boundaries of the ski area and appropriate development 
of the area, including facilities and activities, over time. All Master 
Development Plans require NEPA analysis, usually documented in an EIS, 
which includes consideration of the relatively permanent nature of ski 
areas and estimates of the reasonably foreseeable cumulative effects. 
Due to the long-term nature of Master Development Plans, much of the 
initial NEPA analysis is programmatic. Subsequent site-specific NEPA 
analysis is required for Master Development Plans for most ski areas 
prior to authorizing activities or changes to facilities or ski area 
operations. Master Development Plans must be reviewed periodically, 
approximately every 5 years, as required by the permit issued under the 
authority of the Ski Area Permit Act. This review determines whether 
NEPA analysis is current or whether changing resource conditions or 
changes in management standards and guidelines may necessitate 
subsequent NEPA analysis and appropriate changes to ski area 
operations.
    Operating Plans also are required by the Ski Area Permit Act for 
ski area permits. These plans, which govern ski area operations and 
maintenance, are updated annually. Operating Plans may identify 
proposed activities, such as significant hazard removal and erosion 
control, which may require additional NEPA analysis.
    Requirements related to forest land and resource management plans, 
Master Development Plans, and activities proposed under Operating Plans 
that may have resource effects already provide for full NEPA analysis 
and periodic reviews for ski areas. Therefore, in reviewing the 
language and intent of the Omnibus Parks and Public Lands Management 
Act of 1996, which provides in section 701(i) that issuance of permits 
authorizing activities similar in nature and amount to activities 
authorized under the previous permit shall not constitute a major 
Federal action for NEPA purposes, the agency has concluded that such 
strictly ministerial actions should be categorically excluded from 
documentation in either an EIS or an environmental assessment (EA) and 
should be added to the existing categorical exclusions already set out 
in Forest Service policy. Accordingly, the agency proposed to issue an 
interim directive adding a categorical exclusion which would cover ski 
area permit reissuance with only administrative changes to the existing 
list of categorical exclusions established by the Chief in section 
31.1b of the Environmental Policy and Procedures Handbook (FSH 
1909.15). The handbook contains direction for Forest Service employees 
in meeting agency NEPA compliance obligations. Section 31.1b currently 
contains eight categories for routine administrative, maintenance, and 
other actions that normally do not individually or cumulatively have a 
significant effect on the quality of the human environment and, 
therefore, may be categorically excluded from documentation in an EIS 
or an EA unless scoping indicates extraordinary circumstances exist.
    Pursuant to Council on Environmental Quality regulations at 40 CFR 
parts 1500-1508, the Forest Service published the proposed interim 
directive in the Federal Register on October, 27, 1997 (62 FR 55571), 
to provide notice and opportunity to comment. The 60-day comment period 
closed on December 26, 1997. The comments received were considered in 
development of the interim directive, the text of which is set out at 
the end of this notice.
    Because the agency plans to propose additional revisions to this 
handbook within the next year, the agency has concluded that this new 
ski area permit categorical exclusion should be issued as an interim 
directive. Upon completion of other revisions to this handbook, this 
interim directive will be incorporated into an amendment at that time.
    The categorical exclusion will help expedite issuance of permits 
associated with sales of ski areas to new owners, which account for 
some 50 to 75 percent of all ski area permit issuances annually. 
Nationally, 15 to 30 permit issuances under the authority of the Ski 
Area Permit Act are completed each year. That number is expected to 
continue rising based on corporate restructuring and the continuing 
trend toward consolidation in the ski industry.
    The categorical exclusion also will facilitate conversion from 
permits that were issued under prior authorities to permits under the 
Ski Area Permit Act. It was the intent of the Ski Area Permit Act to 
convert permits issued under prior authority to the Ski Area Permit Act 
as rapidly as possible. The Ski Area Permit Act permit provides better 
environmental protection than previous authorities by requiring NEPA 
analyses to be conducted, reviewed, and revised frequently as resource 
conditions and proposed changes to ski area operations warrant. The 
Forest Service has greater discretion with permits authorized under the 
Ski Area Permit Act to ensure that updates to operations occur under 
terms that require periodic review and NEPA analysis. Approximately 75 
to 80 percent of the 135 ski areas located on National Forest System 
lands have permits issued under the Ski Area Permit Act. It is in the 
public interest to encourage the remaining 20 to 25 percent to convert 
as soon as possible to permits issued under the authority of the Ski 
Area Permit Act.

Analysis and Response to Public Comments

    One letter was received during the comment period from a trade 
association representing ski area owners and operators. Of the 135 ski 
resorts authorized to operate on National Forest System Lands, 122 are 
members of this association. The comments in the letter were given full 
consideration in adoption of the final interim directive.
    The association expressed general support of the proposed interim 
directive. They also expressed some concern about the applicability of

[[Page 48172]]

``extraordinary circumstances'' in relation to the proposed categorical 
exclusion and suggested the Forest Service add clarifying language. The 
association commented that they believe section 701(i) of the Omnibus 
Parks and Public Lands Management Act of 1996 excludes the reissuance 
of a ski area permit from the NEPA process. They said that creation of 
a categorical exclusion for such actions, however, accomplishes the 
intent of Congress in the act to allow no new development or 
environmental impacts beyond projects already approved in an existing 
Master Development Plan. They said the categorical exclusion would 
allow the expeditious transfer and term extension of current ski 
permits and would place the environmental decisions where they belong: 
At the time of the forest planning process and the master development 
planning analysis. Therefore they are in general support of the interim 
directive as proposed.
    The association voiced concern that application of ``extraordinary 
circumstances'' should not preclude the use of a categorical exclusion 
for permit reissuance which is purely ministerial in nature. They said 
the interim directive should make it clear that the ``extraordinary 
circumstances'' provisions do not apply to permit term reissuance with 
purely administrative changes and should not delay reissuance of the 
permit.
    The Forest Service agrees that this categorical exclusion for 
permit reissuances, when no changes have occurred in the Master 
Development Plan and no new facilities or activities are authorized, 
meets the requirements and the intent of the act. The Forest Service 
further agrees with the association that use of a categorical exclusion 
for permit reissuance when changes are purely ministerial meets the 
requirements of NEPA. Regulations of the Council on Environmental 
Quality (CEQ) at 40 CFR 1508.4 set the requirements regarding 
application of ``extraordinary circumstances'' provisions. Detailed 
direction on how to apply the ``extraordinary circumstances'' 
provisions to categorical exclusions is set out in section 30.3 of FSH 
1909.15 and is not within the scope of this interim directive. This 
interim directive is limited to adding the categorical exclusion to the 
list of categories established by the Chief of the Forest Service and 
set out in section 31.1b of Forest Service Handbook (FSH) 1909.15. The 
interim directive has been reviewed by the Council on Environmental 
Quality pursuant to regulations at 40 CFR 1507.3. The text of the 
interim directive is set out at the end of this notice.

Regulatory Impact

    This interim directive has been reviewed under USDA procedures and 
Executive Order 12866 on Regulatory Planning and Review. It has been 
determined that this is not a significant rulemaking. This interim 
directive will not have an annual effect of $100 million or more on the 
economy nor adversely affect productivity, competition, jobs, the 
environment, public health or safety, nor State or local governments. 
This interim directive will not interfere with an action taken or 
planned by another agency nor raise new legal or policy issues. 
Finally, this action will not alter the budgetary impact of 
entitlements, grants, user fees, or loan programs or the rights and 
obligations of recipients of such programs. Accordingly, this interim 
directive is not subject to OMB review under Executive Order 12866.
    Moreover, this interim directive has been considered in light of 
the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), and it has been 
determined that this action will not have a significant economic impact 
on a substantial number of small entities as defined by that act.

Environmental Impact

    This interim directive establishes a categorical exclusion for 
permit issuance under the authority of the Ski Area Permit Act that is 
a purely ministerial action. Programmatic and site-specific decisions 
and disclosure of environmental effects concerning ski area 
allocations, facilities, and activities are made in forest land and 
resource management plans, in ski area Master Development Plans, and in 
connection with activities proposed under Operating Plans that may have 
resource effects, with full public involvement and in compliance with 
NEPA procedures. Section 31.1b of Forest Service Handbook 1909.15 (57 
FR 431, September 18, 1992) excludes from documentation in an 
environmental assessment or impact statement rules, regulations, or 
policies to establish Service-wide administrative procedures, program 
processes, or instruction. The agency's assessment is that this interim 
directive falls within this category of actions and that no 
extraordinary circumstances exist which would require preparation of an 
environmental assessment or an environmental impact statement.

No Takings Implications

    This interim directive has been analyzed in accordance with the 
principles and criteria contained in Executive Order 12630, and it has 
been determined that the interim directive does not pose the risk of a 
taking of Constitutionally protected private property. Executive Order 
12630 does not apply to this interim directive because it consists 
primarily of technical and administrative changes governing 
authorization of occupancy and use of National Forest System lands. 
Forest Service special use authorizations for ski areas do not grant 
any right, title, or interest in or to lands or resources held by the 
United States.

Controlling Paperwork Burdens on the Public

    This interim directive does not contain any recordkeeping or 
reporting requirements or other information collection requirements as 
defined in 5 CFR part 1320 and, therefore, imposes no paperwork burden 
on the public. Accordingly, the review provisions of the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3501 et seq.) and implementing 
regulations at 5 CFR 1320 do not apply.

Unfunded Mandates Reform

    Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2 
U.S.C. 1531-1538), which the President signed into law on March 22, 
1995, the agency has assessed the effects of this interim directive on 
State, local, and tribal governments and the private sector. This 
interim directive does not compel the expenditure of $100 million or 
more by any State, local, or tribal governments or anyone in the 
private sector. Therefore, a statement under section 202 of the act is 
not required.

Civil Justice Reform Act

    This interim directive has been reviewed under Executive Order 
12988, Civil Justice Reform. When this interim directive is adopted, 
(1) all State and local laws and regulations that are in conflict with 
this interim directive or which would impede its full implementation 
would be preempted; (2) no retroactive effect would be given to this 
interim directive; and (3) it would not require administrative 
proceedings before parties may file suit in court challenging its 
provisions.


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    Dated: August 27, 1998.
Robert Lewis, Jr.,
Acting Associate Chief.

Interim Directive to Forest Service Handbook

    Note: The Forest Service organizes its directive system by 
alpha-numeric codes and subject headings. Only those sections of 
chapter 30 in Forest Service Handbook (FSH) 1909.15, Environmental 
Policy and Procedures Handbook, which include the interim directive 
that is the subject of this notice, are set out here. The audience 
for this interim directive is Forest Service employees charged with 
issuing and administering ski area permits. This interim directive 
adds the following category to the list of categorical exclusions in 
FSH 1909.15, section 31.1b:

    9. Issuance of a new permit for up to the maximum tenure allowable 
under the National Forest Ski Area Permit Act of 1986 (16 U.S.C. 497b) 
for an existing ski area when such issuance is a purely ministerial 
action to account for administrative changes, such as a change in 
ownership of ski area improvements, expiration of the current permit, 
or a change in the statutory authority applicable to the current 
permit. Examples of actions in this category include, but are not 
limited to:
    a. Issuing a permit to a new owner of ski area improvements within 
an existing ski area with no changes to the Master Development Plan, 
including no changes to the facilities or activities for that ski area.
    b. Upon expiration of a ski area permit, issuing a new permit to 
the holder of the previous permit where the holder is not requesting 
any changes to the Master Development Plan, including changes to the 
facilities or activities.
    c. Issuing a new permit under the National Forest Ski Area Permit 
Act of 1986 to the holder of a permit issued under the Term Permit and 
Organic Acts, where there are no changes in the type or scope of 
activities authorized and no other changes in the Master Development 
Plan.

[FR Doc. 98-24181 Filed 9-8-98; 8:45 am]
BILLING CODE 3410-11-P