[Federal Register Volume 79, Number 74 (Thursday, April 17, 2014)]
[Notices]
[Pages 21718-21730]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-08893]
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DEPARTMENT OF AGRICULTURE
Forest Service
RIN 0596-AD13
Additional Seasonal and Year-Round Recreation Activities at Ski
Areas
AGENCY: Forest Service, USDA.
ACTION: Notice of final directives.
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SUMMARY: The Forest Service is revising its directives for ski areas
authorized under the National Forest Ski Area Permit Act of 1986 (Ski
Area Permit Act) (16 U.S.C. 497b) to provide additional guidance for
implementing the 2011 amendment to this Act, known as the Ski Area
Recreational Opportunity Enhancement Act (SAROEA) (Pub. L. 112-46, 125
Stat. 538). Current directives limit the criteria for determining
whether additional seasonal and year-round recreation activities may be
approved at ski areas to those listed in SAROEA. The final directives
add criteria to help authorized officers determine whether proposals
for these activities are consistent with SAROEA. The final directives
also provide guidance on non-exclusive use at ski areas, that is,
recreational use at ski areas, such as snowshoeing or cross-country
skiing, by the non-paying public.
DATES: Effective Dates: These directives are effective April 17, 2014.
ADDRESSES: These final directives will be available for inspection at
the office of the Director, Recreation, Heritage, and Volunteer
Resources Staff, USDA, Forest Service, 4th Floor Central, Sidney R.
Yates Federal Building, 1400 Independence Avenue SW., Washington, DC,
during regular business hours (8:30 a.m. to 4:00 p.m.), Monday through
Friday, except holidays. Those wishing to inspect these documents are
encouraged to call ahead at 202-205-1227 to facilitate access to the
building. Copies of documents in the record may be requested under the
Freedom of Information Act.
FOR FURTHER INFORMATION CONTACT: Chris Hartman, Acting National Winter
Sports Program Manager, 202-697-1051or via email at
[email protected]. Individuals who use telecommunication devices for
the deaf may call the Federal Information Relay Service at 800-877-8339
between 8:00 a.m. and 8:00 p.m., Eastern Daylight Time, Monday through
Friday.
SUPPLEMENTARY INFORMATION:
1. Background and Need for the Final Directives
Most of the 122 ski areas operating on National Forest System (NFS)
lands in the United States are authorized under a special use permit
issued per the Ski Area Permit Act. As originally enacted, the Ski Area
Permit Act authorized Nordic and alpine skiing at ski areas on NFS
lands. On November 7, 2011, Congress enacted SAROEA, which amended the
Ski Area Permit Act to authorize additional seasonal and year-round
recreation activities and associated facilities that may be approved at
ski areas. SAROEA contains a non-exhaustive list of additional seasonal
and year-round recreation activities and associated facilities that
may, if certain criteria are met, be approved and a non-exhaustive list
of additional seasonal and year-round recreation activities and
associated facilities that may not be approved at ski areas. On August
5, 2013, the Forest Service amended FSM 2340 to incorporate the self-
executing portions of SAROEA, that is, the list of additional seasonal
and year-round activities and associated facilities that may be
authorized at ski areas.
Summer uses at ski areas, both on private and NFS lands, have been
increasing in recent years. This increase has been driven in part by
new technologies and by the growing number of people seeking recreation
activities in more managed settings.
[[Page 21719]]
Some of these summer uses, such as zip lines, canopy tours (often a
combination of zip lines, suspension bridges, and belay points), and
mountain bike parks, can be natural resource-based, encourage outdoor
recreation and enjoyment of nature, and harmonize with the natural
environment, consistent with SAROEA. Other summer uses involving
facilities that are common at amusement parks, such as merry-go-rounds,
Ferris wheels, miniature train rides, and roller coasters, do not meet
the criteria in SAROEA and thus would not be approved at ski areas.
Given recent trends in use at ski areas, the Agency believes that
it will be helpful to ski area permit holders and permit administrators
to add criteria to the directives for determining whether proposals for
additional seasonal and year-round recreation activities and associated
facilities are consistent with SAROEA. The Agency also believes that it
will be helpful to include the list of additional seasonal and year-
round recreation activities and associated facilities that are
prohibited at ski areas under SAROEA.
The Agency recognizes that additional seasonal and year-round
recreation activities and associated facilities are important to the
long-term viability of ski areas, and that the more managed outdoor
recreation settings at ski areas could introduce urban-based population
segments, especially youth, to outdoor recreation. This exposure could
build a deeper appreciation for nature that could lead to exploration
of NFS lands beyond ski areas. Further guidance on authorization of
additional seasonal and year-round recreation activities and associated
facilities at ski areas will help permit administrators review
proposals for these activities consistent with these objectives and
SAROEA.
Forest Service regulations and ski area permits provide that
authorized uses of NFS lands are not exclusive, and that the Forest
Service may require common use of the lands or use by others in any way
that is not inconsistent with the permit holder's rights and
privileges, after consultation with all affected parties. Several ski
areas on NFS lands have experienced a significant increase in the
number of recreationists using snowshoes or cross-country skis or
simply traveling on foot on slopes within ski areas. The Agency has
identified a need to address how this type of public use may be
conducted efficiently and safely. Consequently, the final directives
provide guidance on recreational use at ski areas by the non-paying
public.
2. Response to Comments on the Proposed Directives
Overview of Comments
The proposed directives were published in the Federal Register for
public notice and comment on October 2, 2013 (78 FR 60820). The comment
period closed on December 2, 2013. The Forest Service received 305
letters on the proposed directives providing approximately 1200
comments: 66 percent of comments were from nonaffiliated individuals; 5
percent were from government entities; 27 percent were from the
recreation industry; and 2 percent were from nongovernmental
organizations such as environmental, conservation, or preservation
groups.
General Comments
Comment: One respondent suggested that it is not clear whether
there is a rulemaking requirement as part of SAROEA.
Response: SAROEA specifically requires the Secretary to promulgate
implementing regulations no later than 2 years after November 7, 2011.
An initial revision to FSM 2340 was published in August 2013
implementing the nondiscretionary components of the statute. This is
the final amendment to those directives. Additionally, the Forest
Service published an interim final rule on June 28, 2013, revising 36
CFR 251.51, the definition of a ski area, to conform to SAROEA.
Specific Comments
FSM 2343.05--Definitions
Amusement Park
Comment: Many respondents commented on the proposed definition of
``amusement park,'' which prohibits more than two rides together. These
respondents stated that there is a need to create a critical mass for
efficient operations, which may involve more than two rides in one
location; that the proposed definition is inconsistent; that the
definition should not conflict with SAROEA and congressional intent to
locate additional seasonal and year-round recreation activities in
developed portions of the ski area; that the definition should not
limit the use of ski equipment like chairlifts and gondolas; that a
widely accepted dictionary definition is preferable to the American
Society for Testing and Materials definition; and that it is
unnecessary to define this term, which is the only one of the listed
activities in SAROEA that are prohibited at ski areas.
Response: This definition generated many of the comments received.
SAROEA expressly prohibits amusement parks at ski areas. The Agency
chose to define amusement park because the Agency anticipates different
interpretations of what is and what is not allowed under SAROEA. One
recommendation was to use a dictionary definition of amusement park.
Existing published definitions for amusement parks vary widely and do
not all lend themselves to the context of SAROEA. The Random House
Dictionary defines ``amusement park'' as ``a park equipped with such
recreational devices as a Ferris wheel, roller coaster, and so forth
and usually having vendors of toys, food, and beverages.'' This
dictionary definition is problematic because zip lines, which are
included in the list of recreation activities in SAROEA that may be
allowed at ski areas, subject to certain conditions, are ``recreational
devices,'' and food and beverage services are often provided at ski
areas.
Instead, we have revised the definition of ``amusement park'' to
characterize what is not appropriate on NFS lands, i.e., developed
recreation areas consisting primarily of facilities or activities that
are not natural resource-based; do not encourage outdoor recreation and
enjoyment of nature; do not harmonize with the natural environment; and
contain rides and other amusements that are not typically found in a
natural resource-based environment, such as water slides and water
parks, Ferris wheels, bumper cars, and miniature golf courses.
Amusement Park Ride
Comment: Some respondents suggested that the definition not be so
broad as to include ski lifts and gondolas, which should be exempted,
along with zip lines and ropes courses. Some respondents believed that
the definition should not include mountain bikes, which are considered
mechanized equipment. One respondent suggested the following
definition: ``A mechanized device or combination of devices that carry
persons along, around, or on a course defined by rails, tracks, or
other fixed guidance system for the purpose of giving passengers
thrills or other types of amusement, other than a zip line, ropes
course, or terrain park.'' One respondent stated that the definition
for ``amusement park ride'' could be eliminated if a dictionary
definition for ``amusement park'' were adopted. Another respondent
noted that a more appropriate term would be ``mountain recreation
feature,'' which could be defined as ``a zip line, ropes course,
Frisbee golf, mountain bike trail or park, climbing wall, alpine slide,
or other similar recreation feature that is
[[Page 21720]]
participatory in nature or relies on gravity or the mountain contour
for propulsion.'' This respondent stated that additional attributes
like terrain, gravity, and mountain contour should be added to the
definition, as they provide a natural thrill.
Response: The definition for ``amusement park ride'' has been
removed from the final directives, and the definition for ``amusement
park'' has been revised in a way that does not encompass chair lifts or
other facilities associated with snow sports at ski areas.
Natural Resource-Based Recreation (NRBR)
Comment: Several respondents said that NRBR is a filter for
activities other than skiing and snow sports, and that any recreational
activity requiring unique facilities not associated with skiing and
other snow sports must pass through that filter.
Response: NRBR is one of the screens required by SAROEA for
evaluating proposals for additional seasonal or year-round recreation
activities and associated facilities at ski areas.
Comment: NRBR is the Forest Service brand of recreation.
Response: The Agency agrees that NRBR describes the type of
recreation that is appropriate on NFS lands.
Comment: A respondent suggested that NRBR activities are not
dependent on facilities and that NRBR activities may utilize facilities
developed for resource management purposes, such as roads or trails.
Response: The Forest Service disagrees that NRBR is never dependent
on facilities. SAROEA expressly provides that NRBR is one of the
screens for evaluating proposals for non-snow sport activities and
associated facilities at ski areas.
Comment: Some respondents stated that NRBR activities may be
characterized by active physical effort; some level of acquired
knowledge or skill; ability to control the activity; some level of
physical risk; and lack of specialized facilities. These respondents
noted that while some passive activities such as viewing scenery and
wildlife are NRBR, they either do not require facilities or may be
accommodated utilizing facilities developed for other purposes, such as
roads and ski lifts.
Response: The Agency disagrees that these attributes are always
necessary to qualify an activity as NRBR. NRBR should be viewed in
terms of what participants may learn, rather than what knowledge or
skill they already have, and should not preclude opportunities for
novices. Ski areas are an opportunity to introduce people to different
types of NRBR by providing transportation into relatively undeveloped
areas. The Agency agrees that viewing scenery and watching wildlife are
good examples of NRBR that may appeal to participants who are not
seeking physical exertion or risk and associated thrill. SAROEA
expressly provides for facilities associated with NRBR activities.
Comment: Some respondents suggested that terrain, gravity, and
contour, which provide a natural thrill, be considered attributes of
NRBR. These respondents noted that speed is an inherent characteristic
of many snow sports and should not disqualify them from being
considered NRBR.
Response: SAROEA establishes NRBR as a criterion for evaluating
proposals for non-snow sports and associated facilities. Therefore,
speed as a characteristic of snow sports is not relevant to the
application of the NRBR requirement in SAROEA. The proposed Federal
Register notice (FRN) used speed to illustrate lack of engagement with
the natural setting. We are clarifying in the final FRN that utilizing
mountain terrain and gravity which result in speed would not rule out
an activity from qualifying as NRBR. The Agency agrees that terrain,
gravity, and contour are characteristics of mountain terrain that
present opportunities for natural thrills and that the mountain terrain
at most ski areas presents an opportunity for activities that involve
speed, such as zip lines, which were specifically authorized by SAROEA.
However, it is unnecessary to modify the definition of NRBR with
respect to speed because speed is not used as a criterion in the
definition or elsewhere in the directives.
Comment: One respondent stated that the emphasis on speed and the
need for permanent metal structures disqualifies some facilities as
NRBR, as they do not harmonize with the natural environment.
Response: NRBR and harmonizing with the natural environment are
separate requirements in SAROEA. Recreation activities that involve
speed and permanent metal structures may or may not harmonize with the
natural environment, depending on the type of activity and the location
and design of the structures. Because mountain slopes have high
visibility, construction of structures that deviate in form, line,
color, and texture and materials that contrast with the natural setting
would be a concern. Whether proposed additional seasonal or year-round
recreation facilities at ski areas harmonize with the natural
environment and are-natural resource-based will be determined site
specifically at the project level.
Comment: Several respondents commented that the proposed definition
for NRBR is unnecessarily limiting and encourages argument over how
attributes of the national forest setting are essential to the
visitor's experience. These respondents suggested stating that the
visitor's experience must be significantly enhanced by the national
forest setting.
Response: The Agency agrees that it could be difficult to determine
whether attributes of the national forest setting are essential to the
visitor's experience. However, stating that the visitor's experience
must be significantly enhanced by the national forest setting is
inadequate. To qualify as NRBR, the visitor's experience should be
interdependent with attributes of national forest settings. The Agency
has revised the definiton for NRBR in the final directives accordingly.
Comment: Some respondents stated that the definition of NRBR should
not prohibit activities such as mountain biking that would attract
people to ski areas in the off season. Other respondents stated that
the definition of NRBR should not preclude mechanized facilities.
Response: SAROEA specifically lists mountain bike terrain parks and
trails and zip lines, a type of mechanized facility, as additional or
year-round recreation activities and associated facilities that may, in
appropriate circumstances, be authorized at ski areas. SAROEA requires
all additional or year-round recreation activities at ski areas to be
natural resource-based. Therefore, the Agency has included a definition
for NRBR in the directives. The definition for NRBR in the final
directives is ``a proposed or existing recreation activity that occurs
in a natural setting where the visitor's experience is interdependent
with attributes such as mountains, forests, geology, grasslands, water
bodies, flora, fauna, and natural scenery.'' The Agency does not
believe that this definition will preclude mechanized facilities or
activities such as mountain biking that will attract visitors to ski
areas in the off season.
Comment: Some respondents stated that the proposed definition for
NRBR would allow activities that are not natural resource-based, such
as concerts and weddings.
Response: SAROEA does not allow construction of new facilities for
non-NRBR activities such as concerts and weddings. However, SAROEA does
not prohibit efficient utilization of existing improvements. The Forest
Service has
[[Page 21721]]
authority to allow these activities when they utilize existing
facilities. This authority is captured in FSM 2343.14, paragraph 6,
which precludes construction of new, permanent facilities solely for
temporary activities such as concerts or weddings, but provides that
these temporary activities may be allowed if they rely on existing
facilities, even if they are not necessarily interdependent with a
national forest setting, provided they could be enhanced by it. The
word ``infrastructure'' in the proposed directives was replaced with
``facilities'' in the final directives to be more consistent with the
language in SAROEA.
Terrain Park
Comment: Some respondents stated that the definition of ``terrain
park'' should reference mountain bikes and cyclists and reflect the
design and location of mountain bike terrain parks. These respondents
suggested that the definition be edited to read as follows: ``An area
or trail with natural and/or manmade features designed to add challenge
to the riding experience. This may include jumps, rails, boxes,
quarter- and half-pipes, and other obstacles used by skiers and
snowboarders during the snow season. It may also include berms, drops,
jumps and rock, wooden, or earthen structures used by bicycles.''
Response: The Agency agrees that the definition for ``terrain
park'' should reference bicycles and has revised the definition in the
final directives accordingly.
FSM 2343.03--Policy
Paragraph 11d--Advertising That Includes the Holder Name and Logo
Comment: Several respondents expressed support for allowing holders
and their business partners, as well as their contractors and service
partners, to display their name and logo as provided in the directive.
These respondents noted that without business partners and sponsors,
ski areas would not be able to provide as many services as they do and
that unduly limiting the display of names and logos would hurt small
ski areas. Some respondents also noted that it was appropriate for
holders and holders' business partners to display their name and logos
on vehicles in common parking areas. Others commented that the proposed
policy acknowledges the incidental nature of advertising in the form of
names and logos on parked vehicles.
Response: The Forest Service agrees and has clarified in the final
directives that holders and their contractors, other service providers,
and business partners may display their name and logo on personal and
company vehicles operated on roads and in parking areas within the
permit boundary.
Comment: Some respondents stated that there should be no
advertising on maps, lifts, or trail signage and that advertising
should be limited to temporary events and temporary structures, like
course fencing.
Response: The proposed directives did not include any revisions to
the policy on advertising on maps, lifts, or trails. With respect to
advertising, the proposed directives included revisions only to the
policy on display of names and logos on vehicles in FSM 2343.03,
paragraph 11d, and to the policy on locations where support for snow
sport race courses and terrain parks may be recognized in FSM 2343.03,
paragragh 11g. The comments regarding other aspects of the Agency's
advertising policy are beyond the scope of the proposed directives.
Therefore, the Agency is not making changes in response to these
comments.
Paragraph f--Short-Term Competitive or Recreation Events
Comment: Some respondents stated that the term ``recreation event''
is not defined and that allowing outdoor advertising at short-term
recreation events, as well as competitive events, could expand
advertising at ski areas beyond what anyone would deem appropriate.
These respondents also noted that the 21-day limit for posting outdoor
advertising at competitive or recreation events is not short term and
should be decreased. Other respondents commented that expanding the
policy to include recreation events is an improvement and would allow
for equipment manufacturer demonstration days and similar events.
Response: The term ``recreation event'' is defined in the Code of
Federal Regulations at 36 CFR 251.51 as ``a recreational activity
conducted on National Forest System lands for which an entry or
participation fee is charged, such as animal, vehicle, or boat races;
dog trials; fishing contests; rodeos; adventure games; and fairs.'' The
Agency believes this definition is narrow enough to address the
respondents' concern regarding expansion of outdoor advertising at ski
areas. The directives limit advertising during temporary events
commensurate with the length of the event. The 21-day limit is
appropriate, given that some temporary winter events common at ski
areas, such as major national and international skiing and snowboarding
competitions, last that long.
Paragraph g--Designated Ski and Snowboard Race Courses and Terrain
Parks
Comment: One respondent expressed concern that allowing advertising
on race gates, as well as at start and finish lines, would be excessive
and would turn national forest ski slopes and terrain parks into
billboards.
Response: The amount of space available for advertising on typical
race gates limits the size and scope of the advertising. Advertising on
race gates must be approved case by case by the authorized officer.
Paragraph 12--Sponsorships
Comment: Several respondents suggested that the policy on
sponsorship in FSM 2343.03, paragraph 12, should be broadened to
reflect more accurately accepted standards in the ski industry. Other
respondents asserted that sponsorship is a right of the landowner,
namely the United States, and that the landowner alone should benefit
from sponsorship.
Response: The proposed directives did not include any revisions to
the policy on sponsorship. The comments regarding this policy are
beyond the scope of the proposed directives. Therefore, the Agency is
not making changes in response to these comments.
FSM 2343.11, Paragraph 3--Visitor Connection to the Natural Environment
Comment: A few respondents affirmed that ski areas are a good way
to introduce people who might be intimidated by the backcountry to the
natural environment.
Response: The Forest Service agrees that ski areas offer some
unique forms of visitor access to the natural environment.
Comment: Several respondents wanted to connect visitors to the
natural environment outside a commercial context. They were concerned
that increasing the size, scope, and intensity of commercial uses at
ski areas would decrease the choices for experiencing natural settings
and recommended that the proposed directive prohibit facilities that
detract from the natural environment.
Response: SAROEA expressly provides for authorization of additional
seasonal and year-round recreation activities and associated facilities
at ski areas that meet certain criteria. Among other things, these
activities and associated facilities must be natural resource-based;
encourage outdoor recreation and enjoyment of nature; be
[[Page 21722]]
situated in the developed portions of the ski area; and, to the extent
practicable, harmonize with the natural environment of the NFS lands on
which they are located. The final directives incorporate these
criteria. SAROEA does not prohibit additional seasonal and year-round
recreation activities and associated facilities that detract from the
natural environment.
Comment: Some respondents believed that only human-powered winter
recreation achieves the goal of connecting visitors to the natural
environment.
Response: While it is true that human-powered winter recreation
meets the goal of connecting people with the natural environment,
SAROEA allows the Forest Service to authorize non-snow sport recreation
activities at ski areas, subject to certain conditions, and does not
limit these non-snow sport activities to human-powered recreation. To
clarify that additional seasonal and year-round recreation activities
at ski areas may be non-mechanized, the Agency has revised FSM 2343.11,
paragraph 3, to state that these activities may range from passive to
active.
Paragraphs 4 and 5--Fees Charged by Ski Area Permit Holders
Proposed paragraph 4 would allow fees for the use of improvements
and services in which ski area permit holders have invested. Proposed
paragraph 5 would allow fees for facilities and services offered at ski
areas, such as lifts, plowed parking lots, groomed slopes and trails,
and manmade snow. In commenting on these proposed paragraphs, many
respondents stated that charging fees for services at ski areas is
reasonable. One respondent noted that ski areas incur expenses in
grooming trails and snowmaking and that a moderate fee is appropriate
for users who benefit from those services.
Some respondents commented that paragraph 5 would allow ski areas
to impose an entry fee. One respondent stated that income taxes pay for
the management of federal lands and that no further fees should be
allowed. One respondent stated that ski areas should not be allowed to
charge for parking, and that charging for parking would be tantamount
to charging an entrance fee. One respondent observed that public money
pays for access roads to ski areas and snow removal on those roads and
that ski areas should allow use of their parking lots by the non-paying
public for recreational purposes.
Response: Paragraph 4 recognizes that ski areas may charge a fee if
they provide services, such as grooming and snowmaking, or improvements
in areas where access is provided. Proposed paragraph 5 would not allow
ski areas to impose an entry fee. Rather, like proposed paragraph 5,
paragraph 5 in the final directives precludes entrance fees at ski
areas. This paragraph clarifies that holders of ski area permits are
authorized to charge for services and facilities they provide, rather
than for general access. This direction is not intended to encourage or
discourage fees. Rather, the direction simply clarifies when fees may
be charged at ski areas.
Paragraphs 4, 5, and 6--Access by the Non-Paying Public
Comment: Several respondents observed that traditional snow-based
recreation on NFS lands predates the establishment of ski areas and has
been displaced by ski runs. These respondents stated that it is
increasingly difficult to find opportunities to climb up and ski down
at ski areas because they often control the only reasonable access to
desirable terrain, which requires those who want to ski without using
lifts to travel to increasingly remote areas. These respondents
advocated allowing access to ski areas by the non-paying public to
continue.
Several respondents agreed with providing guidance on recreational
use at ski areas by the non-paying public to address management of the
increasing number of skiers or snowshoers who climb uphill before lifts
start running or while they are running. Many respondents believed that
ski areas should not be able to limit the non-paying public from
accessing NFS lands at ski areas and should be discouraged or
prohibited from charging fees to those not using their facilities.
These respondents believed that the directive should more strongly
discourage ski areas from charging for uphill access by those who do
not use lifts and that ski areas should not be able to preclude non-
paying users from accessing NFS lands for appropriate recreation
activities.
Other respondents requested free public access when ski areas are
open as well as closed. These respondents observed that ski areas
should not be allowed to charge when they are not incurring additional
operating costs and that ski areas should be required, rather than
encouraged, to provide for uphill access at ski areas, even during
hours of operation. These respondents noted that there is no additional
danger to uphill skiers outside of regular operating hours; that
grooming machines are slow and noisy and easy to avoid; and that
snowmobiles are sometimes used at ski areas while they are in
operation, even though they are more dangerous than grooming machines.
Some respondents stated that ski areas should not have control over the
timing and location of use by the non-paying public in summer or
winter. These respondents believed that the authorized officer should
have discretion to make determinations regarding the safety of access
by the non-paying public. One respondent suggested that restrictions on
access by the non-paying public be subject to public notice and
comment.
One respondent observed that parties on both sides of the access
issue are sometimes unreasonable and that in some instances ski areas
have tried to prohibit uphill access when there is no safety issue,
while uphill skiers have unreasonably asserted that they can do as they
like. This respondent noted that there should be compromise and mutual
recognition of the need to balance free uphill access provided by ski
areas with holder responsibility to follow safety procedures. The
respondent added that access for human-powered recreation should not be
denied when there is no real safety issue and improvements are not
being used. One respondent observed that the authority of law
enforcement officers to prevent people from hurting themselves is
sufficient to address public safety concerns associated with use of ski
areas by the non-paying public. Several respondents believed that
uphill routes could be designated and modest uphill trail fees could be
charged, just as cross-country trails are designated and cross-country
trail fees are charged.
Several respondents observed that uphill access is not a right and
is limited by safety, operational, and resource needs unique to each
ski area. These respondents noted that a ski area's ability to manage
the compatibility of uphill traffic with downhill use is important
factor in meeting customer expectations and in the cost of liability
insurance, and that ski areas need the ability to control use within
ski area boundaries to maximize safety for the public and resort
employees and to protect resources and investments. These respondents
stated that there is a need to protect the health and safety of all
users and ski area employees; that the goal of providing access should
be subordinate to safety; and that restrictions on access by the non-
paying public may need to be imposed for safety reasons. These
respondents believed that access by the non-paying public cannot always
be provided because of safety concerns and that access should be
allowed only when it does not conflict with public
[[Page 21723]]
safety and does not seriously disrupt ski area operations.
These respondents stated that that downhill skiing and uphill
access are not compatible and that ski areas should be able to
establish some limitations on when and where uphill skiing and
snowshoeing can occur at ski areas to promote safety. Specifically,
these respondents stated that ski areas need to be able to limit uphill
access to hours when a resort is not operational and to preclude uphill
access when it impedes snow management activities such as avalanche
control and grooming; when the ski area is preparing for a special
event; when uphill access cannot otherwise be safely accommodated, such
as during construction or adverse weather conditions; and when uphill
access would cause resource damage or would pose an unacceptable risk
to downhill skiers. Some respondents commented that the proposed
directives should generally require that all ski area users obtain a
lift ticket, even if it is complimentary, during hours of operation so
that all users are made aware of the skier responsibility code and sign
an acknowledgment of risk and waiver of liability.
Two respondents recommended that signs be posted at ski areas
regarding access by the non-paying public. One respondent stated that
these signs should be easily accessible and updated regularly to
increase awareness of the availability of access by the non-paying
public. Other respondents recommended requiring that ski areas' policy
on access by the non-paying public be posted on their Web site, rather
than on site.
Response: The Agency recognizes that access opportunities for
traditional use in and around ski areas, including use of public trails
and mountain passes, skiing, and mountaineering, may have been
displaced by ski areas. Paragraph 4 of the final directives provides
that holders may not charge for the use of NFS lands in which they have
made limited or no investments or for use of nonmotorized or motorized
trails that are constructed and maintained by the Forest Service.
Paragraph 5 of the final directives precludes entrance fees at ski
areas and states that authorized officers should strive to ensure that,
to the extent possible based on public safety considerations, some
portions of the permit area remain open to the public without charge,
so that the holder's charges do not constitute de facto entrance fees.
Consistent with Forest Service regulations and the terms and conditions
of the standard ski area permit, paragraph 6 of the final directives
provides that ski areas must remain open to the non-paying public for
all lawful uses that are not inconsistent with the holder's rights and
privileges and public safety, and that in most cases it would not be
appropriate for restrictions to preclude all public use during the ski
season other than by those purchasing a lift ticket or paying for other
services. These paragraphs encourage authorized officers to maintain
access opportunities for the non-paying public.
The Agency agrees that access by the non-paying public must be
balanced with safety. Therefore, paragraphs 5 and 6 have been revised
in the final directives to add public safety as a consideration in
direction on access by the non-paying public at ski areas.
The Agency does not believe that the final directives should
require uphill users to obtain a lift ticket. Paragraph 6 of the final
directives provides that authorized restrictions on use by the non-
paying public must be documented in the operating plan. The mechanics
of how uphill access is managed, including whether or not a pass is
required so that users are aware of the skier responsibility code and
sign an acknowledgment of risk and waiver, should be addressed in the
operating plan. The Agency believes that it is appropriate to state
that uphill access information must be posted at locations where it
would be accessible to the public, but that it is not appropriate to
prescribe how that information is posted. Each ski area and its
visitors are unique. The authorized officer and ski area permit holders
are best suited to determine how and where to make this information
available. Ski area permit holders are encouraged to work with their
visitors to determine the most effective way to communicate this
information.
FSM 2343.14
Comment: Many respondents stated that this section includes
excerpts from existing management frameworks, e.g., the Scenery
Management System (SMS), Recreation Opportunity Spectrum (ROS), and
Built Environment Image Guide (BEIG) that do not need to be repeated.
Response: The inclusion of components of these management
frameworks as initial screening criteria for proposals for additional
seasonal and year-round recreation activities and associated facilities
at ski areas does not replace or diminish application of these
frameworks during project planning. As stated in FSM 2343.14, paragraph
9, inclusion of these components in initial screening of these
proposals assists with the determination of whether they would
harmonize with the surrounding natural environment, as required by
SAROEA.
Comment: One respondent stated that this section establishes a
different standard for evaluating proposals for summer uses at ski
areas.
Response: SAROEA establishes requirements for additional seasonal
and year-around use, not snow sports.
Comment: Some respondents suggested that the Forest Service better
articulate the reasons for the new policy providing for authorization
of additional development at ski areas. These respondents stated that
ski resorts should not be allowed to develop facilities for summer
activities simply for the financial benefit; that amusement parks and
other amenities have no place in mountainous areas and will ruin the
mountain experience; that zip lines, roller coasters, and downhill bike
parks are incompatible with these natural areas, which should be kept
wild and pristine and should not be developed; and that the Agency
should encourage quiet, nature-based activities at ski areas.
Response: SAROEA expressly provides for the Forest Service to
authorize development at ski areas, subject to certain conditions, to
accommodate additional seasonal and year-round recreation activities
and requires the Forest Service to promulgate regulations to implement
that authority. These conditions do not include financial benefit.
Rather, these additional activities and associated facilities must, for
example, be natural resource-based, encourage outdoor recreation and
enjoyment of nature, and, to the extent practicable, harmonize with the
natural environment of the NFS lands on which they are located. Zip
lines and mountain bike terrain park and trails are listed in SAROEA as
activities and associated facilities that may be authorized at ski
areas, subject to certain conditions. Amusement parks are prohibited at
ski areas under SAROEA. The Agency has revised FSM 2343.11, paragraph
3, to state that additional seasonal and year-round recreation
activities at ski areas may include a range of passive to active
recreation activities. Site-specific review of proposals for additional
seasonal and year-round recreation at ski areas will be conducted in
compliance with the National Environmental Policy Act and other laws
and regulations to determine whether the proposed uses are appropriate
at the proposed location. During that public process, the Agency will
consider public and other agency input and trade-offs related to the
proposed development.
[[Page 21724]]
FSM 2343.14, Paragraph 1--Additional Screening Criteria
Comment: Some respondents believed that the level of development
for facilities associated with additional seasonal and year-round
recreation activities at ski areas should not have to be consistent
with the level of development for snow sports.
Response: SAROEA requires that additional seasonal and year-round
recreation activities at ski areas be located in the developed portions
of the ski area and not change the primary recreational purpose of the
ski area to other than snow sports. Evaluation of specific proposals
may result in a determination that a substantially lower level of
development is required.
Comment: Several respondents believed that requiring summer
facilities to be visually subordinate to the ski area's existing
facilities, vegetation, and landscape holds summer facilities to a
higher standard than winter facilities.
Response: Consistent with SAROEA, the final directives require that
facilities for additional seasonal and year-round recreation at ski
areas harmonize, to the extent practicable, with the natural
environment of the site where they would be located. To assist
authorized officers in applying this requirement, the final directives
include two relevant factors to consider: (1) Being visually consistent
with or subordinate to the ski area's existing facilities, vegetation,
and landscape; and (2) not requiring significant modifications to
topography to facilitate construction or operations. The first factor
does not require the proposed facilities to be visually subordinate to
the ski area's existing facilities. Rather, the proposed facilities
meet the harmonizing criterion if they are visually consistent with or
subordinate to the ski area's existing facilities. Moreover, Agency
directives and guidelines such as SMS, BEIG, and ROS are also applied
to proposals involving snow sports facilities.
Comment: Several respondents were concerned that the proposed
definition of ``amusement park ride'' and ``amusement park,'' which was
defined as ``two or more amusement park rides in close proximity,''
would be construed to prevent any additional development adjacent to a
chairlift, which would conflict with the requirement in SAROEA that
additional seasonal and year-round recreation activities at ski areas
be located, to the extent practicable, in the developed portions of the
ski area.
Response: The Forest Service does not consider chairlifts to be
amusement park rides. Furthermore, chairlifts support snow sports and
would therefore not be subject to any of the prohibitions in SAROEA on
authorizing specific types of additional seasonal and year-round
recreation activities at ski areas. In addition, the Agency has removed
the definition of ``amusement park ride'' from the final directive and
revised the definition for ``amusement park'' to characterize what is
not appropriate on NFS lands, i.e., developed recreation areas
consisting primarily of facilities or activities that are not natural
resource-based; do not encourage outdoor recreation and enjoyment of
nature; do not harmonize with the natural environment; and contain
rides and other amusements that are not typically found in a natural
resource-based environment, such as water slides and water parks,
Ferris wheels, bumper cars, and miniature golf courses.
Comment: Numerous respondents commented that the criteria in
paragraphs 1a through 1e seem to supplement those in SAROEA and that
the Forest Service should use the criteria in SAROEA.
Response: Paragraphs 1a through 1e require that (a) additional
seasonal and year-round recreation activities at ski areas not change
the primary purpose of the ski area to other than snow sports; (b)
encourage outdoor recreation and enjoyment of nature and provide
natural resource-based recreation opportunities; (c) to the extent
practicable, be located within the portions of the ski area that are
developed or that will be developed pursuant to the master development
plan (MDP); (d) not exceed the level of development for snow sports and
be consistent with the zoning established in the MDP; and (e) to the
extent practicable, harmonize with the natural environment of the site
where they would be located by (1) being visually consistent with or
subordinate to the ski area's existing facilities, vegetation, and
landscape; and (2) not requiring significant modifications to
topography to facilitate construction or operations. Most of these
criteria are stated in SAROEA. The remaining criteria, locating the
facilities within portions of the ski area will be developed pursuant
to the MDP; being consistent with the zoning established in the
applicable MDP; and the factors for applying the harmonizing
requirement, are consistent with the criteria in SAROEA and assist with
their application.
Comment: Several respondents suggested requiring that facilities
for additional seasonal and year-round recreation activities at ski
areas have a limited impact on viewsheds and watersheds. These
respondents stated that these facilities must be visually subordinate
to the natural setting and that new mountain bike trails are creating
scars that take a very long time to diminish.
Response: The Agency believes that the existing criterion in
paragraph 1(e) provides for consideration of potential impacts on
viewsheds and watersheds. In particular, paragraph 1e provides that, to
the extent practicable, facilities for additional seasonal and year-
round recreation activities at ski areas must harmonize with the
natural environment of the site where they would be located by (1)
being visually consistent with or subordinate to the ski area's
existing facilities, vegetation, and landscape; and (2) not requiring
significant modifications to topography to facilitate construction or
operations. SAROEA requires that these facilities harmonize, to the
extent practicable, with the natural environment of the NFS lands where
they would be located. Therefore, the Agency believes it is appropriate
to require that these facilities be either visually consistent with or
subordinate to the ski area's existing facilities, vegetation, and
landscape. Potential resource concerns associated with proposed
facilities can be addressed during environmental analysis.
Comment: Several respondents suggested that rather than base zone
designations on existing natural settings, the Agency should rely on
concepts in existing systems such as BEIG, ROS, and SMS and provisions
of the MDP.
Response: The Agency believes that the MDP, existing natural
setting, and level of development to support snow sports are all
relevant to zoning designations for development of facilities to
support additional seasonal and year-round recreation activities at ski
areas. Paragraph 1c provides that these facilities be located, to the
extent practicable, within the portions of the ski area that are
developed or that will be developed pursuant to the MDP. Paragraph 1d
provides that these activities and associated facilities must be
consistent with the zoning in the MDP. Paragraph 8 requires use of MDPs
to guide the placement and design of these facilities and requires as a
first step in this process the establishment of zones to guide
placement and design of the facilities based on the existing natural
setting and level of development to support snow sports.
Comment: One respondent requested that the Forest Service clarify
that non-snow sport infrastructure is appropriate if it is consistent
with the MDP.
[[Page 21725]]
Response: Consistency with the MDP in terms of location and level
of development per paragraphs 1c and 1d is only one screening criterion
for proposals for non-snow sport facilities. Forest Service regulations
and directives, consistent with SAROEA, apply several other screening
criteria to these proposals. In addition to meeting all the
requirements in FSM 2343.14, including consistency with the MDP,
proposals for additional seasonal and year-round recreation activities
and associated facilities at ski areas are subject to review under the
National Environmental Policy Act and other applicable authorities.
Comment: Some respondents commented that ski areas should not be
required to revise or develop an MDP simply to add a zip line. Small
ski areas may not have and may not need an MDP.
Response: An MDP is required by the ski area permit. The Forest
Service recognizes that there is a significant range in the complexity
of ski areas and that not all ski areas have an MDP. For ski areas that
do not have an MDP, the Agency expects the holder to prepare a site
plan for proposed additional seasonal or year-round recreation
activities and associated facilities that illustrates how the proposed
project would fit within the context of existing resources and
facilities. The process need not be burdensome and can be concurrent
with screening of the proposal. Upon implementation, the holder should
provide an as-built site plan.
FSM 2343.14, Paragraph 2--List of Activities and Associated Facilities
That May Be Authorized
Comment: Some respondents stated that mountain biking and disc golf
should be included because they are beneficial to public health and
well-being. Some respondents suggested renaming Frisbee golf as disc
golf. Several respondents suggested adding activities and associated
facilities to the list, including Segway rentals and tours; geocaching,
and climbing walls. Others suggested removing the activities listed,
since mountain settings are not essential to conduct them and since
some, like Frisbee golf and zip lines, are more suited to playgrounds
and city parks than ski areas and do not contribute to the enjoyment of
nature. One respondent noted that wet trails should be closed to
mountain bikers to prevent resource damage.
Response: The activities and associated facilities listed in
paragraph 2 are specifically listed in SAROEA as activities that may be
authorized at ski areas, subject to certain conditions. The Agency does
not believe it is appropriate to expand the list in SAROEA of
additional seasonal and year-round recreation activities and associated
facilities that may be authorized at ski areas, subject to certain
conditions. Instead, the Agency has included the criteria in SAROEA for
evaluating proposals for these activities and facilities, along with
criteria that are consistent with the criteria in the statute and that
assist with their application. The activities and associated facilities
listed in paragraph 2 and other additional seasonal and year-round
recreation activities and associated facilities that are not listed in
paragraph 3 will be evaluated case by case based on applicable
regulations and directives, including FSM 2343.14. This approach
provides more flexibility to address changes in activities, associated
facilities, and public preferences. If a proposal is accepted, the
potential for resource damage can be addressed by appropriate
mitigation during environmental analysis.
FSM 2343.14, Paragraph 3--List of Activities and Associated Facilities
That May Not Be Authorized
Comment: Some respondents suggested that all the activities in this
paragraph seem appropriate at ski areas.
Response: The activities and associated facilities listed in
paragraph 3 are expressly prohibited at ski areas by SAROEA.
Comment: One respondent requested that off-road vehicle use be
added to the list of activities and associated facilities that may not
be authorized at ski areas.
Response: The Agency does not believe it is appropriate to expand
the list in SAROEA of additional seasonal and year-round recreation
activities and associated facilities that may not be authorized at ski
areas. Instead, the Agency has included the criteria in SAROEA for
evaluating proposals for additional seasonal and year-round recreation
activities and facilities, along with criteria that are consistent with
the criteria in the statute and that assist with their application.
Activities and associated facilities that are not listed in paragraph 3
will be evaluated case by case based on applicable regulations and
directives, including FSM 2343.14. This approach provides more
flexibility to address changes in activities, associated facilities,
and public preferences.
Comment: Several respondents requested that a definition of
``amusement park'' be added to paragraph 3.
Response: The definition for ``amusement park'' is appropriately
contained in FSM 2340.5.
FSM 2343.14, Paragraph 4--Factors
Comment: Several respondents stated that the proposed directive
should specifically address whether mountain coasters are allowed in
paragraph 4 and noted that mountain coasters emulate natural terrain,
thereby allowing gravity to provide the thrill.
Response: The Agency does not believe it is appropriate to expand
the list in SAROEA of additional seasonal and year-round recreation
activities and associated facilities that may be authorized at ski
areas, subject to certain conditions. Instead, the Agency has included
the criteria in SAROEA for evaluating proposals for these activities
and facilities, along with criteria that are consistent with the
criteria in the statute and that assist with their application.
Additional seasonal and year-round recreation activities and associated
facilities that are not listed in paragraph 3, including mountain
coasters, will be evaluated case by case based on applicable
regulations and directives, including FSM 2343.14. This approach
provides more flexibility to address changes in activities, associated
facilities, and public preferences.
Comment: Some respondents objected to including excessive use of
synthetic materials as a factor in determining whether to grant
proposals for additional seasonal and year-round recreation activities
at ski areas.
Response: The Agency agrees that the use of synthetic materials may
be consistent with the requirements of the desired visual character and
that synthetic materials can be used in such a way as to harmonize with
the natural environment. Many synthetic materials are more sustainable
and safer than natural materials. The Agency has therefore removed the
reference to excessive use of synthetic materials in paragraph 4 of the
final directives.
Comment: Some respondents suggested that proposals for activities
and associated facilities that are not listed in paragraph 2 or 3
should be evaluated based on their similarity to the activities and
associated facilities in those paragraphs.
Response: The Agency agrees and has retained that factor in
paragraph 4.
Comment: Some respondents suggested including noise and light as
screening criteria for additional seasonal and year-round recreation
activities and associated facilities at ski areas; that the effects of
noise and light should be limited to daylight hours; that lights should
always be faced down to reduce
[[Page 21726]]
impact; and that wildlife and non-ski area users should have the
opportunity to experience dark and quiet in the national forests.
Response: The Forest Service does not believe that noise and light
should be added in paragraph 4 as factors for evaluating proposals
because they are primarily related to environmental consequences.
Whether a proposed activity and associated facility will have these
effects, their relative level of impact, and whether mitigation is
necessary or appropriate are best determined during site-specific
environmental analysis after a proposal is accepted.
FSM 2343.14, Paragraph 5--Nonessential Activities
Comment: Some respondents believed that the requirement in
paragraph 5 that the natural forest setting be essential to the visitor
experience should be changed to the requirement that the natural forest
setting significantly enhance the visitor experience.
Response: The requirement in paragraph 5 tracks the requirement in
SAROEA that additional seasonal and year-round recreation activities
and associated facilities at ski areas be natural resource-based.
Therefore, the requirement in paragraph 5 must track the definition for
NRBR in the directives. Many activities that are enhanced by the
natural environment do not constitute NRBR. However, the Agency agrees
that it could be difficult to determine whether attributes of the
national forest setting are essential to the visitor's experience. To
qualify as NRBR, the visitor's experience should be interdependent with
attributes of national forest settings. The Agency has revised
paragraph 5 in the final directives accordingly.
FSM 2343.14, Paragraph 6--Temporary Activities
Comment: Several respondents suggested that the Agency consider
allowing temporary activities that rely on temporary facilities. Other
respondents stated that concerts and weddings are inappropriate at ski
areas.
Response: The Agency believes that it is appropriate to authorize
some temporary activities at ski areas, such as weddings and concerts,
that may not be natural resource-based if they utilize existing
facilities. However, paragraph 6 provides that new facilities will not
be authorized solely to support these types of activities. The Agency
agrees that these activities may reasonably involve temporary
facilities, such as stages, event tents, shelters, and fencing, if they
conform to other requirements in FSM 2343.14. The intent of paragraph 6
is not to preclude these temporary facilities, but to preclude
permanent facilities solely for these types of activities. Temporary
facilities supporting these types of activities should not be set up
for a season and should be removed promptly following the event to
avoid resulting in de facto permanent facilities.
FSM 2343.14, Paragraph 7--Existing Facilities
Comment: Some respondents believed that the language in this
paragraph, which encourages holders to utilize existing facilities for
seasonal and year-round recreation activities at ski areas, is no
longer appropriate and should be removed from the directives because of
SAROEA. Other respondents noted that new lifts and roads should not be
authorized solely for the benefit of summer use.
Response: The Agency does not believe that paragraph 7, which
encourages efficient use of existing facilities for additional seasonal
and year-round recreation activities at ski areas, should be removed.
The use of existing facilities minimizes costs and resource impacts and
should be encouraged. SAROEA does not establish any limitations on the
use of existing facilities for additional seasonal and year-round
recreation activities at ski areas.
FSM 2343.14, Paragraph 8--MDPs
Comment: Some respondents commented that MDPs are conceptual in
nature and provide a basis for project proposals for additional
seasonal and year-round recreation activities and associated facilities
at ski areas. These respondents noted that the location of these
facilities and the timelines for construction should be general in
nature.
Response: The Agency agrees that MDPs are conceptual. As proposals
progress through evaluation, more specificity is typically required.
Paragraph 8a requires establishment of zones to guide placement and
design of additional seasonal or year-round recreation facilities based
on the existing natural setting and level of development to support
snow sports. Paragraph 8b requires depiction of the general location of
proposed facilities as part of the MDP process. Paragraph 8c requires
establishment of an estimated timeframe for construction as part of the
MDP process.
Comment: Several respondents requested that state wildlife managers
be involved in implementation of SAROEA and that wildlife values be a
factor in MDPs.
Response: The Forest Service has authority under SAROEA to
authorize additional seasonal and year-round recreation activities at
ski areas. Consistent with SAROEA and other applicable law, the Forest
Service has provided an opportunity for public input, including input
from state wildlife managers, in development of directives implementing
SAROEA.
MDPs are conceptual documents that illustrate potential development
based on known information and assumptions about future demand and
visitor preferences and needs. MDPs are not decision documents that
approve development. Potential impacts on wildlife and other resources
and any appropriate mitigation are identified and evaluated during
project-level environmental analysis.
FSM 2343.14, Paragraph 9--SMS, ROS, and BEIG
Comment: The proposed policy should rely on all appropriate
direction and not just excerpts from SMS, ROS, and BEIG.
Response: All three management frameworks remain valid guidance for
planning, design, and analysis of project proposals and will be
followed as appropriate. The citations in paragraph 9 reference each
framework in its entirety.
FSM 2343.14, Paragraph 10--Additional Terms and Conditions
Comment: Respondents requested that this paragraph be modified to
provide that the authorized officer may include terms and conditions in
permits authorizing additional seasonal and year-round recreation
activities at ski areas subject only to the extent they are consistent
with SAROEA.
Response: SAROEA expressly provides that the Forest Service may
authorize additional seasonal and year-round recreation activities and
associated facilities at ski areas subject to any terms and conditions
deemed appropriate by the Forest Service. Therefore, it is not
appropriate to qualify the authority in paragraph 10 to impose terms
and conditions in permits authorizing these activities and associated
facilities. Decisions to authorize activities and associated facilities
under SAROEA must be consistent with other applicable laws,
regulations, and policies, as well as site-specific constraints unique
to each project.
[[Page 21727]]
FSM 2343.14, Paragraph 11--Permit Area Expansions
Comment: One respondent believed that a ski area could obtain
approval for an expansion based on snow sports and develop the expanded
area for summer use, such as off-road vehicle use. This respondent
stated that this practice could lead to mass land expansions for summer
uses that undercut the requirement that snow sports remain the primary
purpose of ski areas.
Response: While it is possible that a snow sports expansion might
lead to additional development for summer use, SAROEA requires that
summer activities and associated facilities be located, to the extent
practicable, in the developed portion of the ski area. SAROEA requires
that authorization of summer uses not change the primary purpose of the
ski area to other than snow sports. SAROEA also precludes consideration
of the acreage needed for summer activities and associated activities
in determining the ski area permit boundary. Paragraph 11 of the final
directives provides that permit expansions have to be based on needs
related to snow sports rather than additional seasonal or year-round
recreation. Approved uses must be implemented in accordance with their
authorizing decision and supporting environmental analysis.
FSM 2343.14, Paragraph 12--Existing Non-Conforming Facilities
No comments were received on paragraph 12.
FSM 2343.14, Paragraph 13--Approval Notwithstanding Other Provisions
To conform with SAROEA, the Agency is adding a citation to FSM
2703.2, paragraph 2b, to the notwithstanding language in this
paragraph. Like the other provisions cited in the notwithstanding
language, FSM 2703.2, paragraph 2b, provides, in pertinent part, that a
proposed use may be authorized only if it cannot reasonably be
accommodated on non-NFS lands. Adding the citation to FSM 2703.2,
paragraph 2b, to the notwithstanding language in paragraph 13 will
exempt proposals for additional seasonal and year-round recreation
activities and associated facilities at ski areas from FSM 2703.2,
paragraph 2b. Applying this paragraph to those activities and
associated facilities could conflict with SAROEA.
FSM 2711.32--Ski Area Term Permit
No comments were received on this section.
FSH 2709.14, Section 13.2--Organizational Camp
No comments were received on this section.
FSH 2709.14, Section 61.1--Ski Areas
Comment: Respondents commented that authorizing additional seasonal
and year-round recreation activities within existing ski area
boundaries is a good idea and that development supporting these
activities should be confined to existing boundaries.
Response: Paragraph 1c of the final directives requires additional
seasonal and year-round recreation activities and associated facilities
at ski areas to be located, to the extent practicable, within the
portions of the ski area that are developed or that will be developed
pursuant to the MDP. Proposals for development supporting additional
seasonal and year-round recreation activities at ski areas will be
evaluated case by case.
3. Section-by-Section Description of Changes to FSM 2340, Publicly
Provided Recreation Opportunities
2340.5--Definitions
The Agency added definitions for ``amusement park'' and ``natural
resource-based recreation'' because they are used throughout the
directives to determine what types of additional seasonal or year-round
recreation activities and associated facilities are appropriate at ski
areas. The Agency revised the definition of ``terrain park.''
2343.11--Policy
Paragraph 3
The Agency relocated the list of additional seasonal and year-round
recreation activities and associated facilities that may be authorized,
subject to certain conditions, to FSM 2343.14. The relocated paragraph
3 provides direction to encourage additional seasonal or year-round
recreation opportunities at ski areas that connect visitors to the
natural environment and that support the Forest Service's mission. This
paragraph establishes a broad framework to guide evaluation of
proposals for additional seasonal or year-round recreation activities
and associated facilities at ski areas.
Paragraph 4
The Agency has relocated the list of factors governing additional
seasonal or year-round recreation activities and associated facilities
that was included in this paragraph to FSM 2343.14. Relocated paragraph
4 clarifies that ski area permit holders may be allowed to charge fees
for use of improvements and services in which they have made capital
investments, such as ski trails or other facilities they constructed,
groom, or otherwise maintain, and that ski area permit holders may not
be allowed to charge for use of nonmotorized or motorized trails that
are constructed and maintained by the Forest Service.
Paragraph 5
The Agency has relocated text included in this paragraph regarding
utilization of existing facilities to FSM 2343.14. Relocated paragraph
5 would preclude authorization of an entrance fee at ski areas and
would allow authorization of fees for facilities and services holders
provide, such as lifts, parking lots, and slopes and trails that have
been cleared, graded, groomed, or covered with manmade snow.
Additionally, this paragraph would encourage authorized officers to
ensure that some portions of the permit area remain open to the public
without charge, so that the holder's charges do not constitute de facto
entrance fees.
Paragraph 6
The Agency has relocated text that was included in this paragraph
regarding the basis for modifying acreage under a ski area permit to
FSM 2343.14. Relocated paragraph 6 directs authorized officers to
ensure that ski area operations comply with Forest Service regulations
and permit requirements for non-exclusive use and that ski areas remain
open to the non-paying public for all lawful uses that are not
inconsistent with the holder's rights and privileges. Additionally,
this paragraph requires documentation in the operating plan of
authorized restrictions on use by the non-paying public and posting of
those restrictions in locations where they would be effective in
informing the public. This paragraph also provides that in most cases
it would not be appropriate for restrictions to preclude all public use
during the ski season other than by those purchasing a lift ticket or
paying for other services.
2343.14--Additional Seasonal or Year-Round Recreation Activities and
Associated Facilities at Ski Areas
Paragraph 1
Paragraph 1 includes criteria in addition to those enumerated at 36
CFR 251.54(e)(1) to be applied during initial screening of proposals
involving additional seasonal or year-round recreation activities and
associated facilities at ski areas. These additional initial screening
criteria include all the requirements in SAROEA that must be met for
authorization of additional
[[Page 21728]]
seasonal and year-round recreation activities and associated facilities
at ski areas, except for consistency with applicable law and the
applicable land management plan. These additional criteria include not
changing the primary purpose of the ski area to other than snow sports;
encouraging outdoor recreation and enjoyment of nature and providing
natural resource-based recreation opportunities; to the extent
practicable, being located within the developed portions of the ski
area or areas that will be developed pursuant to an MDP; and, to the
extent practicable, harmonizing with the natural environment of the
site where they would be located. Including consistency with applicable
law and the applicable land management plan in paragraph 1 would be
redundant, as this criterion is already included in initial screening
of special use proposals under 36 CFR 251.54(e)(1)(i) and (e)(1)(ii).
The requirement ``to the extent practicable, to be located within the
developed portions of the ski area'' was modified to require, to the
extent practicable, location within the portions of the ski area that
are developed or that will be developed pursuant to the MDP. Locations
in a ski area that are zoned for development pursuant to an MDP may
become developed portions of the ski area.
This paragraph clarifies what is meant by harmonizing with the
natural environment of the site where the proposed activities would be
located by providing that they must:
(1) Be visually consistent with or subordinate to the ski area's
existing facilitties, vegetation, and landscape; and
(2) Not require significant modifications to topography to
facilitate construction or operations.
The Agency is also adding that seasonal or year-round recreation
activities and associated facilities must:
(1) Not exceed the level of development for snow sports and must be
consistent with the zoning established in the ski area's MDP;
(2) Not compromise snow sports operations or functions; and
(3) Increase utilization of snow sports infrastructure and not
require extensive new support facilities, such as parking lots,
restaurants, and lifts.
These additional criteria are consistent with the criteria in
SAROEA. Consistency with the MDP is akin to consistency with the
applicable land management plan. Since SAROEA provides that snow sports
must remain paramount at ski areas on NFS lands, additional seasonal
and year-round recreation activities and associated facilities must not
compromise snow sports operations or functions. Requiring that
proposals for these activities increase utilization of snow sports
infrastructure and not require extensive new support facilities is
consistent with the requirements not to change the primary purpose of
the ski area to other than snow sports and to be located in the
developed portions of the ski area. Thus, these additional criteria
will assist ski area permit holders in developing proposals for these
activities that meet the requirements of SAROEA and will assist
authorized officers in evaluating these proposals consistent with
SAROEA.
Paragraph 2
This paragraph lists the four additional seasonal or year-round
recreation activities and associated facilities enumerated in SAROEA
(zip lines, mountain bike terrain parks and trails, disc golf courses,
and ropes courses) that may be approved if they meet the criteria in
proposed paragraph 1. This list is not exhaustive. Other additional
seasonal or year-round recreation activities and associated facilities
may meet the criteria in proposed paragraph 1.
Paragraph 3
This paragraph lists the five additional seasonal or year-round
recreation activities and associated facilities enumerated in SAROEA
(tennis courts, water slides and water parks, swimming pools, golf
courses, and amusement parks) that may not be approved at ski areas on
NFS lands. This list is not exhaustive. Other additional seasonal or
year-round recreation activities and associated facilities may not meet
the criteria in proposed paragraph 1.
Paragraph 4
This paragraph enumerates a non-exhaustive list of factors that may
affect whether other additional seasonal or year-round recreation
activities and associated facilities besides those listed in paragraph
2 may be approved, including the degree to which visitors are able to
engage with the natural setting, the extent to which the activities and
associated facilities could be expected to lead to exploration and
enjoyment of other NFS lands, and the similarity of the activities and
associated facilities to those enumerated in paragraph 2 or paragraph
3. These factors will assist in application of the criteria in
paragraph 1 and will help establish similarity to activities and
associated facilities listed in paragraph 2 or paragraph 3. For
example, the extent to which an activity and associated facilities
could be expected to lead to exploration and enjoyment of other NFS
lands may affect whether a proposed activity and associated facilities
would encourage outdoor recreation and enjoyment of nature, provide
natural resource-based recreation opportunities, and harmonize with the
natural environment.
Paragraph 5
Consistent with the requirement in SAROEA that additional seasonal
and year-round recreation activities and associated facilities provide
natural resource-based recreation opportunities, paragraph 5 provides
that the visitor's experience must be interdependent with attributes
common in national forest settings.
Paragraph 6
This paragraph allows temporary activities at ski areas that rely
on existing facilities, such as concerts and weddings, even if they are
not necessarily dependent on a national forest setting, but could be
enhanced by it. This paragraph also precludes authorizing new
facilities solely for these temporary activities.
Paragraph 7
Paragraph 7 encourages holders to utilize existing facilities to
provide additional seasonal or year-round recreation activities at ski
areas. This paragraph was previously codified at FSM 2343.11, paragraph
5.
Paragraph 8
This paragraph provides for utilization of MDPs to guide the
placement and design of additional seasonal or year-round recreation
facilities at ski areas. Additionally, this paragraph requires the
following three steps to be followed as part of the MPD process, in
this sequence: (1) Establishment of zones to guide placement and design
of additional seasonal or year-round recreation facilities based on the
existing natural setting, desired visitor experience, and the level of
development to support snow sports; (2) depiction of the general
location of the facilities; and (3) establishment of an estimated
timeframe for their construction. These requirements will provide a
consistent planning framework for the development of additional
seasonal or year-round recreation facilities, thereby avoiding
piecemeal development, and will ensure that the level of development
supporting snow sports is not exceeded by the level of development
supporting facilities for
[[Page 21729]]
additional seasonal or year-round recreation activities.
Paragraph 9
Paragraph 9 provides for use of the Forest Service's SMS (FSM
2380), BEIG (Publication FS-710), and ROS (FSM 2310) to ensure that
additional seasonal or year-round recreation activities and associated
facilities are located and constructed to harmonize with the
surrounding natural environment.
Paragraph 10
Consistent with SAROEA, this paragraph provides that authorization
of additional seasonal or year-round recreation activities and
associated facilities is subject to terms and conditions deemed
appropriate by the authorized officer. This provision was previously
codified at FSM 2343.11, paragraph 4c.
Paragraph 11
Consistent with SAROEA, paragraph 11 provides that the acreage
necessary for additional seasonal or year-round recreation activities
and associated facilities may not be considered in determining the
acreage encompassed by a ski area permit and that permit area
expansions must be based on needs related to snow sports rather than
additional seasonal or year-round recreation. This provision was
previously codified at FSM 2343.11, paragraph 6.
Paragraph 12
Consistent with SAROEA, this paragraph provides that additional
seasonal or year-round recreation activities and associated facilities
that were authorized before enactment of SAROEA and that do not meet
the criteria in the preceding paragraphs of FSM 2343.14 may continue to
be authorized during the term of the current permit. Also consistent
with SAROEA, this paragraph provides that when the current permit
terminates or is revoked, these non-conforming activities and
associated facilities will not be reauthorized.
Paragraph 13
Consistent with SAROEA, this paragraph provides that proposals for
additional seasonal and year-round recreation activities and associated
facilities at ski areas that comply with paragraphs 1 through 12 may be
approved notwithstanding FSM 2340.3, paragraph 3, and 2343.03,
paragraph 1, which preclude authorization of development on NFS lands
if it could be provided on non-NFS lands in the vicinity. The Agency
has added a citation to FSM 2703.2, paragraph 2b to the notwithstanding
language, as FSM 2703.2, paragraph 2b, also precludes authorization of
development on NFS lands if it could be provided on non-NFS lands in
the vicinity.
4. Section-by-Section Analysis of Changes to FSM 2710, Special Uses
2711.3--Term Permits
The Agency added a new subsection 2711.32, entitled ``Ski Area Term
Permit.'' This subsection cross-references FSM 2721.61e for more
information on these types of permits.
5. Section-by-Section Analysis of Changes to FSH 2709.14, Recreation
Special Uses Handbook
Chapter 10--Organizational Camps and Other Privately Owned Improvements
Section 13.2--Policy
The Agency added paragraph 9 to provide for the proposal,
authorization, construction, operation, and maintenance of zip lines
and ropes courses at organizational camps. This paragraph requires a
site plan showing the placement of facilities and addressing how access
will be restricted; requires that design and construction conform to
standards in FSM 7330; and requires an operating plan that conforms to
FSM 7330 and restricts access to these facilities to times of
supervised operation. Additionally, this paragraph cross-references FSM
2340 and 7330 for further guidance.
Chapter 60--Winter Recreation Resorts and Other Concessions Involving
Winter Sports
Section 61.1--Ski Area Term Permit
The Agency changed the heading for section 61.1 to ``Ski Area Term
Permit'' to clarify that ski area permits are term permits and to be
consistent with the wording in FSM 2711.3. Consistent with SAROEA, the
Agency added paragraph 12 to provide that the acreage necessary for
additional seasonal or year-round recreation activities and associated
facilities may not be considered in determining the acreage encompassed
by a ski area term permit. This paragraph also provides that permit
expansions have to be based on needs related to snow sports rather than
additional seasonal or year-round recreation.
6. Regulatory Certifications
Environmental Impact
These final directives revise national Forest Service policy
governing ski area permits issued under the Ski Area Permit Act. Forest
Service regulations at 36 CFR 220.6(d)(2) exclude from documentation in
an environmental assessment or environmental impact statement ``rules,
regulations, or policies to establish Service-wide administrative
procedures, program processes, or instructions.'' The Agency has
concluded that these final directives fall within this category of
actions and that no extraordinary circumstances exist which would
require preparation of an environmental assessment or environmental
impact statement.
Regulatory Impact
These final directives have been reviewed under USDA procedures and
Executive Order (E.O.) 12866 on regulatory planning and review. The
Office of Management and Budget has determined that these final
directives are not significant. These final directives will increase
opportunities for recreation activities at ski areas consistent with
SAROEA. These final directives will not have an annual effect of $100
million or more on the economy, nor will they adversely affect
productivity, competition, jobs, the environment, public health and
safety, or State or local governments. These final directives will not
interfere with an action taken or planned by another agency, nor will
they raise new legal or policy issues. Finally, these final directives
will not alter the budgetary impact of entitlement, grant, or loan
programs or the rights and obligations of beneficiaries of those
programs. Accordingly, these final directives are not subject to the
Office of Management and Budget review under E.O. 12866.
Moreover, the Agency has considered these final directives in light
of the Regulatory Flexibility Act (5 U.S.C. 602 et seq.). Pursuant to a
threshold Regulatory Flexibility Act analysis, the Agency has
determined that these final directives will not have a significant
economic impact on a substantial number of small entities as defined by
the Act because these final directives will not impose new record-
keeping requirements on them; affect their competitive position in
relation to large entities; or significantly affect their cash flow,
liquidity, or ability to remain in the market.
To the contrary, these final directives likely will have a positive
economic effect on ski areas and local communities because these
directives will enhance opportunities for recreation activities at ski
areas. These benefits are not likely to alter costs to small
businesses.
[[Page 21730]]
No Takings Implications
The Agency has analyzed these final directives in accordance with
the principles and criteria contained in E.O.12630 and has determined
that these final directives will not pose the risk of a taking of
private property.
Civil Justice Reform
The Agency has reviewed these final directives under E.O. 12988 on
civil justice reform. Upon adoption of these final directives, (1) all
State and local laws and regulations that conflict with these final
directives or that will impede their full implementation will be
preempted; (2) no retroactive effect will be given to these final
directives; and (3) they will not require administrative proceedings
before parties may file suit in court challenging their provisions.
Federalism and Consultation and Coordination With Indian Tribal
Governments
The Agency has considered these final directives under the
requirements of E.O. 13132 on federalism and has concluded that these
final directives conform with the federalism principles set out in this
E.O.; will not impose any compliance costs on the States; and will not
have substantial direct effects on the States, the relationship between
the Federal Government and the States, or the distribution of power and
responsibilities among the various levels of government. Therefore, the
Agency has determined that no further assessment of federalism
implications is necessary at this time.
Moreover, these final directives do not have tribal implications as
defined by E.O. 13175, entitled ``Consultation and Coordination With
Indian Tribal Governments,'' and therefore advance consultation with
Tribes is not required.
Energy Effects
The Agency has reviewed these final directives under E.O. 13211,
entitled ``Actions Concerning Regulations That Significantly Affect
Energy Supply, Distribution, or Use.'' The Agency has determined that
these final directives do not constitute a significant energy action as
defined in the E.O.
Unfunded Mandates
Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2
U.S.C. 1531-1538), the Agency has assessed the effects of these final
directives on State, local, and Tribal governments and the private
sector. These final directives will not compel the expenditure of $100
million or more by any State, local, or Tribal government or anyone in
the private sector. Therefore, a statement under section 202 of the act
is not required.
Controlling Paperwork Burdens on the Public
These final directives do not contain any new record-keeping or
reporting requirements or other information collection requirements as
defined in 5 CFR part 1320 that are not already required by law or not
already approved for use. Any information collected from the public
that will be required by these final directives has been approved by
the Office of Management and Budget and assigned control number 0596-
0082. Accordingly, the review provisions of the Paperwork Reduction Act
of 1995 (44 U.S.C. 3501 et seq.) and its implementing regulations at 5
CFR part 1320 do not apply.
7. Access to the Final Directives
The Forest Service organizes its Directive System by alphanumeric
codes and subject headings. The intended audience for this direction is
Forest Service employees charged with issuing and administering ski
area permits. To view these final directives, visit the Forest
Service's Web site at http://www.fs.fed.us/specialuses. Only the
sections of the FSM that are the subject of this notice have been
posted, that is, FSM 2340.5, Definitions; FSM 2343.11, Policy; 2343.14,
Additional Seasonal or Year-Round Recreation Activities and Associated
Facilities at Ski Areas; FSM 2711.32, Ski Area Term Permit; FSH
2709.14, chapter 10, section 13.2; and FSH 2709.14, chapter 60, section
61.1.
Dated: April 15, 2014.
Robert Bonnie,
Under Secretary, Natural Resources and Environment.
[FR Doc. 2014-08893 Filed 4-15-14; 4:15 pm]
BILLING CODE 3411-15-P