[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] ----------------------------------------------------------------------- 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. ----------------------------------------------------------------------- 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. [[Page 48173]] 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