Additional Seasonal and Year-Round Recreation Activities at Ski Areas, 21718-21730 [2014-08893]

Agencies

• DEPARTMENT OF AGRICULTURE
• Forest Service

[Federal Register Volume 79, Number 74 (Thursday, April 17, 2014)]
[Notices]
[Pages 21718-21730]
From the Federal Register Online via the Government Printing 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 
chartman01@fs.fed.us. 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 https://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