Categorical Exclusion for Certain Ski Area Permit Actions

DEPARTMENT OF AGRICULTURE

Forest Service

Categorical Exclusion for Certain Ski Area Permit Actions

AGENCY: Forest Service, USDA.

ACTION: Notice of proposed interim directive; request for public

comment.

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SUMMARY: The Forest Service proposes to issue an interim directive to

guide its employees in complying with the National Environmental Policy

Act when issuance of a ski area permit is a purely ministerial action

and no changes are proposed in permitted activities or facilities. The

intended effect is to implement a provision of the Omnibus Parks and

Public Lands Act of 1996, which states that reissuance of a ski area

permit for activities similar in nature and amount to the activities

authorized under the previous permit shall not constitute a major

Federal action. Public comment is invited and will be considered in

adopting an interim directive.

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

ADDRESSES: Send written comments to Director, Recreation, Heritage, and

Wilderness Resources Staff (Mail Stop 1125), Forest Service, USDA, P.O.

Box 96090, Washington, D.C. 20090-6090. Those who submit comments

should be aware that all comments, including names and addresses when

provided, are placed in the record and are available for public

inspection. To facilitate entrance into the building, visitors are

encouraged to call ahead (202-205-1706).

FOR FURTHER INFORMATION CONTACT:

Alice Carlton, Recreation, Heritage, and Wilderness Resources Staff,

202-205-1399.

SUPPLEMENTARY INFORMATION: To reduce administrative costs, section

701(i) of the Omnibus Parks and Public Lands Management Act of 1996 (16

U.S.C. 497c) states that the reissuance of a ski area permit for

activities similar in nature and amount to the activities provided

under the previous permit shall not constitute a major Federal action

for the purposes of the National Environmental Policy Act of 1969

(NEPA) (42 U.S.C. 4331 et seq.).

Agency direction regarding this provision is needed to guide Forest

Service employees in complying with NEPA and the Omnibus Parks and

Public Lands Management Act of 1996 when ski area permits are issued.

Section 701(i) of the 1996 act applies to issuance of permits for

up to the maximum tenure allowable under the National Forest Ski Area

Permit Act of 1986 (the Ski Area Permit Act) (16 U.S.C. 497b) for

existing ski areas when permit issuance involves only administrative

changes, such as issuance of a permit when no changes to the Master

Development Plan and no new facilities or activities are authorized, to

the following: (1) To a new owner of the ski area improvements; (2) to

the existing owner upon expiration of the current permit; or (3) to a

holder of a permit issued under the Term Permit and Organic Acts

converting to a permit under the Ski Area Permit Act. The effect of

section 701(i) is that an environmental impact statement is not

required for issuance of permits under these circumstances.

The Forest Service currently authorizes ski areas on National

Forest System lands through permit issuance under the Ski Area Permit

Act. The permit provides the legal framework for the use and occupancy

of National Forest System lands, including terms for renewal;

conditions for issuance of a new permit in the event of sale of the ski

area improvements to another owner; permit tenure; fee schedules and

payment methods; accountability and reporting requirements; liability

and bonding requirements; and any other customized terms and conditions

needed to ensure consistency with applicable forest land and resource

management plans or to meet the requirements of other applicable laws.

The Ski Area Permit Act, its implementing regulations at 36 CFR

251.56, and existing policy in Forest Service Manual (FSM) section

2721.56, and existing policy in Forest Service Manual (FSM) section

2721.61e provide that under ordinary circumstances ski area permits

will be issued for a duration of 40 years unless specific situations,

such as financial aspects of the transaction or the adequacy of the

Master Development Plan, suggest a shorter duration.

The National Forest Management Act (NFMA) (16 U.S.C. 1600, 1604)

requires that ``resource plans and permits, contracts, and other

instruments for the use and occupancy of National Forest System lands

shall be consistent with the land management plans.'' Ski area permits

are subject to this requirement.

The forest planning process provides for public involvement in land

allocation decisions, including those affecting ski areas. Where

appropriate, forest land and resource management plans and associated

environmental impact statements (EIS's) consider long-term consequences

of allocating public lands for a ski resort and may establish standards

and guidelines for lands allocated for ski area development. NFMA also

requires revision of forest plans at least every 15 years.

To ensure that forest plans remain current, implementing

regulations at 36 CFR 219.10(g) require (1) review of the conditions on

the land covered by a forest plan every 5 years to determine whether

conditions or public demands have changed significantly and (2)

revision of the forest plans ordinarily every 10 years, and at least

every 15 years.

A ski area Master Development Plan is required for all ski areas

authorized under the Ski Area Permit Act. The Master Development Plan

determines the boundaries of the ski area and appropriate development

of the area, including facilities and activities, over time. All Master

Development Plans require NEPA analysis, usually documented in an EIS,

which includes consideration of the relatively permanent nature of ski

areas and estimates of the reasonably foreseeable cumulative effects.

Due to the long-term nature of Master Development Plans, much of the

initial NEPA analysis is programmatic. Subsequent site-specific NEPA

analysis is required for Master Development Plans for most ski areas

prior to authorizing activities or changes to facilities or ski area

operations. Master Development Plans must be reviewed periodically,

approximately every 5 years, as required by the permit issued under the

authority of the Ski Area Permit Act, to determine whether NEPA

analysis is current or whether changing resource conditions or changes

in management standards and guidelines may necessitate subsequent NEPA

analysis and appropriate changes to ski area operations.

Operating Plans also are required by the Ski Area Permit Act for

ski area permits. These plans, which govern ski area operations and

maintenance, are updated annually. Operating Plans may identify

proposed activities, such as significant hazard removal and erosion

control, which may require additional NEPA analysis.

Requirements related to forest land and resource management plans,

Master Development Plans, and activities proposed under Operating Plans

that may have resource effects already provide for full NEPA analysis

and periodic reviews for ski areas. Therefore, in reviewing the

language and intent of the Omnibus Parks and Public Lands Act, which

provides in section 701(i) that issuance of permits authorizing

activities similar in nature and amount to activities authorized under

the previous permit shall not

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constitute a major Federal action for NEPA purposes, the agency has

concluded that such strictly ministerial actions should be

categorically excluded from documentation in either an EIS or an

environmental assessment (EA) and should be added to the existing

categorical exclusions already set out in Forest Service policy.

Pursuant to Council on Environmental Quality regulations at 40 CFR

parts 1500-1508, the Forest Service must give notice and opportunity to

comment before adopting NEPA implementation procedures.

Accordingly, the agency is proposing to issue an interim directive

to chapter 30 of the Environmental Policy and Procedures Handbook (FSH

1909.15) which addresses categorical exclusions. The handbook contains

direction for Forest Service employees in meeting agency NEPA

compliance obligations. Section 31.1b contains categorical exclusions

established by the Chief. This section currently contains eight

categories for routine administrative, maintenance, and other actions

that normally do not individually or cumulatively have a significant

effect on the quality of the human environment and, therefore, may be

categorically excluded from documentation in an EIS or an EA unless

scoping indicates extraordinary circumstances exist.

The agency is proposing to add the following category to section

31.1b for categorical exclusion:

9. Issuance of a new permit for up to the maximum tenure

allowable under the National Forest Ski Area Permit Act of 1986 for

an existing ski area in response to purely ministerial actions, such

as a change in ownership of ski area improvements, expiration of the

current permit, or a change in the statutory authority applicable to

the current permit. Examples of actions in this category include,

but are not limited to:

a. Issuing a permit to a new owner of ski area improvements

within an existing ski area with no changes to the Master

Development Plan, including no changes to the facilities or

activities for that ski area.

b. Upon expiration of a ski area permit, issuing a new permit to

the holder of the previous permit where the holder is not requesting

any changes to the Master Development Plan, including changes to the

facilities or activities.

c. Issuing a new permit under the National Forest Ski Area

Permit Act of 1986 to the holder of a permit issued under the Term

Permit and Organic Acts, where there are no changes in the type or

scope of activities authorized and no other changes in the Master

Development Plan.

Because the agency plans to propose additional revisions to this

handbook within the next year, the agency has concluded that this new

ski area permit categorical exclusion should be issued as an interim

directive. Upon completion of other revisions to this handbook, this

interim directive will be incorporated into an amendment at that time.

The proposed categorical exclusion would help expedite issuance of

permits associated with sales of ski areas to new owners, which account

for some 50 to 75 percent of all ski area permit issuances annually.

Nationally, 15 to 30 permit issuances under the authority of the Ski

Area Permit Act are completed each year. That number is expected to

continue rising based on corporate restructuring and the continuing

trend toward consolidation in the ski industry.

The proposed categorical exclusion also would facilitate conversion

from permits that were issued under prior authorities to permits under

the Ski Area Permit Act. It was the intent of the Ski Area Permit Act

to convert permits issued under prior authority to the Ski Area Permit

Act as rapidly as possible. The Ski Area Permit Act permit provides

better environmental protection than previous authorities by requiring

NEPA to be conducted, reviewed, and revised frequently as resource

conditions and proposed changes to ski area operations warrant. The Ski

Area Permit Act allows the Forest Service greater discretion to ensure

that updates to operations occur under terms that require periodic

review and NEPA analysis. By the end of 1997, the Forest Service

anticipates that 75 to 80 percent of the 137 ski areas located on

National Forest System lands will have permits issued under the Ski

Area Permit Act. It is in the public interest to encourage the

remaining 20 to 25 percent to convert as soon as possible to permits

issued under the authority of the Ski Area Permit Act.

Environmental Impact

This proposed interim directive would establish a categorical

exclusion for permit issuance under the authority of the Ski Area

Permit Act that is a purely ministerial action. Programmatic and site-

specific decisions and disclosure of environmental effects concerning

ski area allocations, facilities, and activities are made in forest

land and resource management plans, in ski area Master Development

Plans, and in connection with activities proposed under Operating Plans

that may have resource effects, with full public involvement and in

compliance with NEPA procedures.

Section 31.1b of Forest Service Handbook 1909.15 (57 FR 43180;

September 18, 1992) excludes from documentation in an environmental

assessment or impact statement ``rules, regulations, or policies to

establish Service-wide administrative procedures, program processes, or

instructions.'' The agency's assessment is that this proposed interim

directive would fall within this category of actions and that no

extraordinary circumstances exist which would require preparation of an

environmental assessment or environmental impact statement. Reviewers

may submit comments on this determination along with comments on the

proposed interim directive for consideration in the adoption of the

proposed interim directive.

Controlling Paperwork Burdens on the Public

This proposed interim directive does not contain any recordkeeping

or reporting requirements or other information collection requirements

as defined in 5 CFR 1320 and, therefore, would impose no paperwork

burden on the public. Accordingly, the review provisions of the

Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) and

implementing regulations at 5 CFR part 1320 would not apply.

Regulatory Impact

This proposed interim directive has been reviewed under USDA

procedures and Executive Order 12866 on Regulatory Planning and Review.

It has been determined that this is not a significant action subject to

Office of Management and Budget (OMB) review. This action would not

have an annual effect of $100 million or more on the economy nor

adversely affect productivity, competition, jobs, the environment,

public health or safety, nor State or local governments. This action

would not interfere with an action taken or planned by another agency

nor raise new legal or policy issues. Finally, this action would not

alter the budgetary impact of entitlements, grants, user fees, or loan

programs or the rights and obligations of recipients of such programs.

Accordingly, this proposed interim directive is not subject to OMB

review under Executive Order 12866.

Moreover, this proposed interim directive has been considered in

light of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), and it

has been determined that this action would not have a significant

economic impact on a substantial number of small entities as defined by

that act.

Unfunded Mandates Reform

Pursuant to Title II of the Unfunded Mandates Reform Act of 1995,

which the President signed into law on March 22, 1995, the Department

has assessed

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the effects of this proposed interim directive on State, local, and

tribal governments and the private sector. This proposed interim

directive would not compel the expenditure of $100 million or more by

any State, local, or tribal governments or anyone in the private

sector. Therefore, a statement under section 202 of the act is not

required.

No Takings Implications

This proposed interim directive has been analyzed in accordance

with the principles and criteria contained in Executive Order 12630,

and it has been determined that the proposed interim directive would

not pose the risk of a taking of Constitutionally protected private

property. Executive Order 12630 would not apply to this proposed

interim directive because it consists primarily of technical and

administrative changes governing authorization of occupancy and use of

National Forest System lands. Forest Service special use authorizations

for ski areas do not grant any right, title, or interest in or to lands

or resources held by the United States.

Civil Justice Reform Act

This proposed interim directive has been reviewed under Executive

Order 12988, Civil Justice Reform. If this proposed interim directive

were adopted, (1) all State and local laws and regulations that are in

conflict with this proposed interim directive or which would impede its

full implementation would be preempted; (2) no retroactive effect would

be given to this proposed interim directive; and (3) it would not

require administrative proceedings before parties may file suit in

court challenging its provisions.

Dated: October 1, 1997.

Robert Lewis, Jr.,

Acting Associate Chief.

[FR Doc. 97-28386 Filed 10-24-97; 8:45 am]

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