[Federal Register Volume 62, Number 207 (Monday, October 27, 1997)]
[Notices]
[Pages 55571-55573]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-28386]
[[Page 55571]]
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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
[[Page 55572]]
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
[[Page 55573]]
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]
BILLING CODE 3410-11-M
