Categorical Exclusion for Certain Ski Area Permit Actions

DEPARTMENT OF AGRICULTURE

Forest Service

RIN 0596-AB65

Categorical Exclusion for Certain Ski Area Permit Actions

AGENCY: Forest Service, USDA.

ACTION: Notice; adoption of interim directive.

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SUMMARY: The Forest Service is issuing an interim directive to guide

its employees in complying with the National Environmental Policy Act

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

no changes are proposed in permitted activities or facilities. The

interim directive implements a provision of the Omnibus Parks and

Public Lands Management Act of 1996, which states that reissuance of a

ski area permit for activities similar in nature and amount to the

activities authorized under the previous permit shall not constitute a

major Federal action. Public comment on the proposed interim directive

published in the Federal Register on October 27, 1997 (62 FR 55571) was

considered in development of this interim directive.

EFFECTIVE DATE: The interim directive is effective September 24, 1998.

FOR FURTHER INFORMATION CONTACT: Questions about this action should be

addressed to Alice Carlton, Recreation, Heritage, and Wilderness

Resources Staff, (MAIL STOP 1125), Forest Service, USDA, PO Box 96090,

Washington, DC 20090-6090, (202)-205-1399.

SUPPLEMENTARY INFORMATION: To reduce administrative costs, section

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

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

activities similar in nature and amount to the activities provided

under the previous permit shall not constitute a major Federal action

for the purposes of the National Environmental Policy Act of 1969

(NEPA) (42 U.S.C. 4331 et seq.). Agency direction regarding this

provision is needed to guide Forest Service employees in complying with

NEPA and the Omnibus Parks and Public Lands Management Act of 1996 when

ski area permits are issued.

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

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

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

existing ski areas when permit issuance involves only administrative

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

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

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

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

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

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

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

required for issuance of permits under these circumstances.

The Forest Service currently authorizes ski areas on National

Forest System lands through permit issuance under the Ski Area Permit

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

of National Forest System lands, including terms for renewal;

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

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

payment methods; accountability and reporting requirements; liability

and bonding requirements; and any other customized terms and conditions

needed to ensure consistency with applicable forest land and resource

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

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

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

2721.61e provide that under ordinary

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circumstances ski area permits will be issued for a duration of 40

years unless specific situations, such as financial aspects of the

transaction or the adequacy of the Master Development Plan, suggest a

shorter duration.

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

requires that resource plans and permits, contracts, and other

instruments for the use and occupancy of National Forest System lands

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

are subject to this requirement.

The forest planning process provides for public involvement in land

allocation decisions, including those affecting ski areas. Where

appropriate, forest land and resource management plans and associated

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

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

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

requires revision of forest plans at least every 15 years.

To ensure that forest plans remain current, implementing

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

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

conditions or public demands have changed significantly and (2)

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

every 15 years.

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

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

determines the boundaries of the ski area and appropriate development

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

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

which includes consideration of the relatively permanent nature of ski

areas and estimates of the reasonably foreseeable cumulative effects.

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

initial NEPA analysis is programmatic. Subsequent site-specific NEPA

analysis is required for Master Development Plans for most ski areas

prior to authorizing activities or changes to facilities or ski area

operations. Master Development Plans must be reviewed periodically,

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

authority of the Ski Area Permit Act. This review determines whether

NEPA analysis is current or whether changing resource conditions or

changes in management standards and guidelines may necessitate

subsequent NEPA analysis and appropriate changes to ski area

operations.

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

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

maintenance, are updated annually. Operating Plans may identify

proposed activities, such as significant hazard removal and erosion

control, which may require additional NEPA analysis.

Requirements related to forest land and resource management plans,

Master Development Plans, and activities proposed under Operating Plans

that may have resource effects already provide for full NEPA analysis

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

language and intent of the Omnibus Parks and Public Lands Management

Act of 1996, which provides in section 701(i) that issuance of permits

authorizing activities similar in nature and amount to activities

authorized under the previous permit shall not constitute a major

Federal action for NEPA purposes, the agency has concluded that such

strictly ministerial actions should be categorically excluded from

documentation in either an EIS or an environmental assessment (EA) and

should be added to the existing categorical exclusions already set out

in Forest Service policy. Accordingly, the agency proposed to issue an

interim directive adding a categorical exclusion which would cover ski

area permit reissuance with only administrative changes to the existing

list of categorical exclusions established by the Chief in section

31.1b of the Environmental Policy and Procedures Handbook (FSH

1909.15). The handbook contains direction for Forest Service employees

in meeting agency NEPA compliance obligations. Section 31.1b currently

contains eight categories for routine administrative, maintenance, and

other actions that normally do not individually or cumulatively have a

significant effect on the quality of the human environment and,

therefore, may be categorically excluded from documentation in an EIS

or an EA unless scoping indicates extraordinary circumstances exist.

Pursuant to Council on Environmental Quality regulations at 40 CFR

parts 1500-1508, the Forest Service published the proposed interim

directive in the Federal Register on October, 27, 1997 (62 FR 55571),

to provide notice and opportunity to comment. The 60-day comment period

closed on December 26, 1997. The comments received were considered in

development of the interim directive, the text of which is set out at

the end of this notice.

Because the agency plans to propose additional revisions to this

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

ski area permit categorical exclusion should be issued as an interim

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

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

The categorical exclusion will help expedite issuance of permits

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

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

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

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

continue rising based on corporate restructuring and the continuing

trend toward consolidation in the ski industry.

The categorical exclusion also will facilitate conversion from

permits that were issued under prior authorities to permits under the

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

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

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

environmental protection than previous authorities by requiring NEPA

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

conditions and proposed changes to ski area operations warrant. The

Forest Service has greater discretion with permits authorized under the

Ski Area Permit Act to ensure that updates to operations occur under

terms that require periodic review and NEPA analysis. Approximately 75

to 80 percent of the 135 ski areas located on National Forest System

lands have permits issued under the Ski Area Permit Act. It is in the

public interest to encourage the remaining 20 to 25 percent to convert

as soon as possible to permits issued under the authority of the Ski

Area Permit Act.

Analysis and Response to Public Comments

One letter was received during the comment period from a trade

association representing ski area owners and operators. Of the 135 ski

resorts authorized to operate on National Forest System Lands, 122 are

members of this association. The comments in the letter were given full

consideration in adoption of the final interim directive.

The association expressed general support of the proposed interim

directive. They also expressed some concern about the applicability of

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``extraordinary circumstances'' in relation to the proposed categorical

exclusion and suggested the Forest Service add clarifying language. The

association commented that they believe section 701(i) of the Omnibus

Parks and Public Lands Management Act of 1996 excludes the reissuance

of a ski area permit from the NEPA process. They said that creation of

a categorical exclusion for such actions, however, accomplishes the

intent of Congress in the act to allow no new development or

environmental impacts beyond projects already approved in an existing

Master Development Plan. They said the categorical exclusion would

allow the expeditious transfer and term extension of current ski

permits and would place the environmental decisions where they belong:

At the time of the forest planning process and the master development

planning analysis. Therefore they are in general support of the interim

directive as proposed.

The association voiced concern that application of ``extraordinary

circumstances'' should not preclude the use of a categorical exclusion

for permit reissuance which is purely ministerial in nature. They said

the interim directive should make it clear that the ``extraordinary

circumstances'' provisions do not apply to permit term reissuance with

purely administrative changes and should not delay reissuance of the

permit.

The Forest Service agrees that this categorical exclusion for

permit reissuances, when no changes have occurred in the Master

Development Plan and no new facilities or activities are authorized,

meets the requirements and the intent of the act. The Forest Service

further agrees with the association that use of a categorical exclusion

for permit reissuance when changes are purely ministerial meets the

requirements of NEPA. Regulations of the Council on Environmental

Quality (CEQ) at 40 CFR 1508.4 set the requirements regarding

application of ``extraordinary circumstances'' provisions. Detailed

direction on how to apply the ``extraordinary circumstances''

provisions to categorical exclusions is set out in section 30.3 of FSH

1909.15 and is not within the scope of this interim directive. This

interim directive is limited to adding the categorical exclusion to the

list of categories established by the Chief of the Forest Service and

set out in section 31.1b of Forest Service Handbook (FSH) 1909.15. The

interim directive has been reviewed by the Council on Environmental

Quality pursuant to regulations at 40 CFR 1507.3. The text of the

interim directive is set out at the end of this notice.

Regulatory Impact

This interim directive has been reviewed under USDA procedures and

Executive Order 12866 on Regulatory Planning and Review. It has been

determined that this is not a significant rulemaking. This interim

directive will not have an annual effect of $100 million or more on the

economy nor adversely affect productivity, competition, jobs, the

environment, public health or safety, nor State or local governments.

This interim directive will not interfere with an action taken or

planned by another agency nor raise new legal or policy issues.

Finally, this action will not alter the budgetary impact of

entitlements, grants, user fees, or loan programs or the rights and

obligations of recipients of such programs. Accordingly, this interim

directive is not subject to OMB review under Executive Order 12866.

Moreover, this interim directive has been considered in light of

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

determined that this action will not have a significant economic impact

on a substantial number of small entities as defined by that act.

Environmental Impact

This interim directive establishes a categorical exclusion for

permit issuance under the authority of the Ski Area Permit Act that is

a purely ministerial action. Programmatic and site-specific decisions

and disclosure of environmental effects concerning ski area

allocations, facilities, and activities are made in forest land and

resource management plans, in ski area Master Development Plans, and in

connection with activities proposed under Operating Plans that may have

resource effects, with full public involvement and in compliance with

NEPA procedures. Section 31.1b of Forest Service Handbook 1909.15 (57

FR 431, September 18, 1992) excludes from documentation in an

environmental assessment or impact statement rules, regulations, or

policies to establish Service-wide administrative procedures, program

processes, or instruction. The agency's assessment is that this interim

directive falls within this category of actions and that no

extraordinary circumstances exist which would require preparation of an

environmental assessment or an environmental impact statement.

No Takings Implications

This interim directive has been analyzed in accordance with the

principles and criteria contained in Executive Order 12630, and it has

been determined that the interim directive does not pose the risk of a

taking of Constitutionally protected private property. Executive Order

12630 does not apply to this interim directive because it consists

primarily of technical and administrative changes governing

authorization of occupancy and use of National Forest System lands.

Forest Service special use authorizations for ski areas do not grant

any right, title, or interest in or to lands or resources held by the

United States.

Controlling Paperwork Burdens on the Public

This interim directive does not contain any recordkeeping or

reporting requirements or other information collection requirements as

defined in 5 CFR part 1320 and, therefore, imposes no paperwork burden

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

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

regulations at 5 CFR 1320 do not apply.

Unfunded Mandates Reform

Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2

U.S.C. 1531-1538), which the President signed into law on March 22,

1995, the agency has assessed the effects of this interim directive on

State, local, and tribal governments and the private sector. This

interim directive does not compel the expenditure of $100 million or

more by any State, local, or tribal governments or anyone in the

private sector. Therefore, a statement under section 202 of the act is

not required.

Civil Justice Reform Act

This interim directive has been reviewed under Executive Order

12988, Civil Justice Reform. When this interim directive is adopted,

(1) all State and local laws and regulations that are in conflict with

this interim directive or which would impede its full implementation

would be preempted; (2) no retroactive effect would be given to this

interim directive; and (3) it would not require administrative

proceedings before parties may file suit in court challenging its

provisions.

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Dated: August 27, 1998.

Robert Lewis, Jr.,

Acting Associate Chief.

Interim Directive to Forest Service Handbook

Note: The Forest Service organizes its directive system by

alpha-numeric codes and subject headings. Only those sections of

chapter 30 in Forest Service Handbook (FSH) 1909.15, Environmental

Policy and Procedures Handbook, which include the interim directive

that is the subject of this notice, are set out here. The audience

for this interim directive is Forest Service employees charged with

issuing and administering ski area permits. This interim directive

adds the following category to the list of categorical exclusions in

FSH 1909.15, section 31.1b:

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

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

for an existing ski area when such issuance is a purely ministerial

action to account for administrative changes, such as a change in

ownership of ski area improvements, expiration of the current permit,

or a change in the statutory authority applicable to the current

permit. Examples of actions in this category include, but are not

limited to:

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

an existing ski area with no changes to the Master Development Plan,

including no changes to the facilities or activities for that ski area.

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

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

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

facilities or activities.

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

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

Organic Acts, where there are no changes in the type or scope of

activities authorized and no other changes in the Master Development

Plan.

[FR Doc. 98-24181 Filed 9-8-98; 8:45 am]

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