[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