[Federal Register Volume 62, Number 207 (Monday, October 27, 1997)]
[Notices]
[Pages 55571-55573]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-28386]



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DEPARTMENT OF AGRICULTURE

Forest Service


Categorical Exclusion for Certain Ski Area Permit Actions

AGENCY: Forest Service, USDA.

ACTION: Notice of proposed interim directive; request for public 
comment.

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SUMMARY: The Forest Service proposes to issue 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 
intended effect is to implement a provision of the Omnibus Parks and 
Public Lands 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 is invited and will be considered in 
adopting an interim directive.

DATES: Comments must be received in writing by December 26, 1997.

ADDRESSES: Send written comments to Director, Recreation, Heritage, and 
Wilderness Resources Staff (Mail Stop 1125), Forest Service, USDA, P.O. 
Box 96090, Washington, D.C. 20090-6090. Those who submit comments 
should be aware that all comments, including names and addresses when 
provided, are placed in the record and are available for public 
inspection. To facilitate entrance into the building, visitors are 
encouraged to call ahead (202-205-1706).

FOR FURTHER INFORMATION CONTACT:
Alice Carlton, Recreation, Heritage, and Wilderness Resources Staff, 
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 
2721.56, and existing policy in Forest Service Manual (FSM) section 
2721.61e provide that under ordinary 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, to determine 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 Act, 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

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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. 
Pursuant to Council on Environmental Quality regulations at 40 CFR 
parts 1500-1508, the Forest Service must give notice and opportunity to 
comment before adopting NEPA implementation procedures.
    Accordingly, the agency is proposing to issue an interim directive 
to chapter 30 of the Environmental Policy and Procedures Handbook (FSH 
1909.15) which addresses categorical exclusions. The handbook contains 
direction for Forest Service employees in meeting agency NEPA 
compliance obligations. Section 31.1b contains categorical exclusions 
established by the Chief. This section 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.
    The agency is proposing to add the following category to section 
31.1b for categorical exclusion:

    9. Issuance of a new permit for up to the maximum tenure 
allowable under the National Forest Ski Area Permit Act of 1986 for 
an existing ski area in response to purely ministerial actions, 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.

    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 proposed categorical exclusion would 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 proposed categorical exclusion also would 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 to be conducted, reviewed, and revised frequently as resource 
conditions and proposed changes to ski area operations warrant. The Ski 
Area Permit Act allows the Forest Service greater discretion to ensure 
that updates to operations occur under terms that require periodic 
review and NEPA analysis. By the end of 1997, the Forest Service 
anticipates that 75 to 80 percent of the 137 ski areas located on 
National Forest System lands will 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.

Environmental Impact

    This proposed interim directive would establish 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 43180; 
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 
instructions.'' The agency's assessment is that this proposed interim 
directive would fall within this category of actions and that no 
extraordinary circumstances exist which would require preparation of an 
environmental assessment or environmental impact statement. Reviewers 
may submit comments on this determination along with comments on the 
proposed interim directive for consideration in the adoption of the 
proposed interim directive.

Controlling Paperwork Burdens on the Public

    This proposed interim directive does not contain any recordkeeping 
or reporting requirements or other information collection requirements 
as defined in 5 CFR 1320 and, therefore, would impose 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 part 1320 would not apply.

Regulatory Impact

    This proposed 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 action subject to 
Office of Management and Budget (OMB) review. This action would 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 action 
would not interfere with an action taken or planned by another agency 
nor raise new legal or policy issues. Finally, this action would 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 proposed interim directive is not subject to OMB 
review under Executive Order 12866.
    Moreover, this proposed 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 would not have a significant 
economic impact on a substantial number of small entities as defined by 
that act.

Unfunded Mandates Reform

    Pursuant to Title II of the Unfunded Mandates Reform Act of 1995, 
which the President signed into law on March 22, 1995, the Department 
has assessed

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the effects of this proposed interim directive on State, local, and 
tribal governments and the private sector. This proposed interim 
directive would 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.

No Takings Implications

    This proposed interim directive has been analyzed in accordance 
with the principles and criteria contained in Executive Order 12630, 
and it has been determined that the proposed interim directive would 
not pose the risk of a taking of Constitutionally protected private 
property. Executive Order 12630 would not apply to this proposed 
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.

Civil Justice Reform Act

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

    Dated: October 1, 1997.
Robert Lewis, Jr.,
Acting Associate Chief.
[FR Doc. 97-28386 Filed 10-24-97; 8:45 am]
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