Rule2026-05767
Definition of a Ski Area
Primary source
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Published
March 25, 2026
Effective
April 24, 2026
Issuing agencies
Agriculture DepartmentForest Service
Abstract
The United States Department of Agriculture, Forest Service (Forest Service or Agency) is issuing a final rule revising the definition of a ski area in its special use regulations. The revised definition aligns more closely with the Forest Service's statutory authority for ski area administration and reduces burden on the agency and special use permit holders.
Full Text
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<title>Federal Register, Volume 91 Issue 57 (Wednesday, March 25, 2026)</title>
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[Federal Register Volume 91, Number 57 (Wednesday, March 25, 2026)]
[Rules and Regulations]
[Pages 14458-14461]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-05767]
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DEPARTMENT OF AGRICULTURE
Forest Service
36 CFR Part 251
RIN 0596-AD12
Definition of a Ski Area
AGENCY: Forest Service, Agriculture (USDA).
ACTION: Final rule.
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SUMMARY: The United States Department of Agriculture, Forest Service
(Forest Service or Agency) is issuing a final rule revising the
definition of a ski area in its special use regulations. The revised
definition aligns more closely with the Forest Service's statutory
authority for ski area administration and reduces burden on the agency
and special use permit holders.
DATES: The final rule is effective April 24, 2026.
FOR FURTHER INFORMATION CONTACT: Sean Wetterberg, National Winter
Sports
[[Page 14459]]
Program Manager at 385-235-0318. Individuals who are deaf, hard of
hearing, or have a speech disability may call 711 to reach the
Telecommunications Relay Service and then provide the phone number of
the person named as a point of contact for further information.
SUPPLEMENTARY INFORMATION: The Department defines ``ski area'' in
regulation because it allows the agency to determine what uses qualify
for a ski area permit under the National Forest Ski Area Permit Act of
1986 (16 U.S.C. 497b) and importantly, what uses do not. The National
Forest Ski Area Permit Act of 1986 is the sole authority for
authorizing Nordic and alpine ski areas on National Forest System lands
and the Ski Fee Act of 1996 (16 U.S.C. 497c) requires that qualifying
ski areas be charged following the Ski Area Permit Rental Charge
formula provided in the Act. The Ski Area Recreation Opportunity
Enhancement Act of 2011 further amended 16 U.S.C. 497b, adding more
details about other recreational activities that may be authorized
under a Ski Area Permit beyond skiing and other snow sports. The 2011
Act provides for authorizing only those other recreational uses as the
Secretary deems appropriate, describes the requirements of those
recreational activities, and lists specific inclusions and exclusions.
At 497b(5), a limitation is put on the authorization of those other
recreational uses if they would ``result in the primary purpose of the
ski area permit to be a purpose other than skiing and other snow-
sports.'' The ski area definition at 36 CFR 251.51 incorporates the
primary purpose concept from the statute to clarify the requirement to
limit recreational activities other than skiing and other snow sports
in ski areas, and to facilitate agency decision making and compliance
with law.
The Department issued an interim final rule on June 28, 2013,
revising the definition of a ski area to make it consistent with the
authority in section 3 of the Ski Area Recreational Opportunity
Enhancement Act of 2011, which allows ski areas to provide other types
of natural resource-based recreation as long as the primary purpose of
the site remains snow sports (78 FR 38842). The definition of a ski
area, as promulgated in the 2013 interim final rule, also includes a
revenue test to determine if a ski area's primary purpose is for skiing
and snow sports based solely on whether the preponderance of revenue
generated by the ski area comes from those activities. This revenue
test was carried forward from the previous version of the definition of
a ski area. The interim final rule implementing the new definition went
into effect on July 29, 2013.
The Department received one comment letter during the public
comment period that accompanied the interim final rule. The comment
submitted by the National Ski Areas Association argued that the revenue
test included in the definition is inappropriate for determining
whether the primary purpose of a ski area is snow sports because of its
lack of basis in statute. The comment suggested that the Department
remove the revenue test to preserve the flexibility for four-season
operations that the Ski Area Recreational Opportunity Enhancement Act
authorized.
Since the current definition became effective in 2013, the Forest
Service has observed that the preponderance of revenue test has not
singularly correlated to whether a ski area's primary purpose is skiing
and other snow sports. Rather, experience demonstrates that the agency
should be considering multiple factors, assessed on a case-by-case
basis, to more accurately determine the primary purpose of a ski area.
In addition to revenue, these other factors may include skiing vs. non-
skiing comparisons of visitation, acreage, facility square footage,
length of season, financial investment, or even a general comparison of
whether the permitted area looks and feels primarily like a ski area.
The revenue test has also become less useful in the last decade due
to significant fluctuations in seasonal snow conditions. Many ski
areas, especially those in southern regions, now rely more on revenue
from non-skiing activities to stay solvent between years of greater
snowfall. This trend further suggests that the Forest Service should
consider multiple factors on a site-specific basis to determine the
primary purpose of a ski area, rather than relying solely on the
preponderance of revenue.
After consideration of the comment received on the interim final
rule, the agency's experience in implementing the current definition,
and changing conditions on the ground, the Department has determined
that the preponderance of revenue test currently found at 36 CFR 251.51
is inappropriate. The revenue test is not found in the authorizing
statutes, including the Ski Area Recreational Opportunity Enhancement
Act of 2011, the Ski Fee Act of 1996, and the National Forest Ski Area
Permit Act of 1986. Removing the revenue test from the definition will
align the regulation more closely with statute and provide for
additional discretion of authorized officers to determine whether a
site and associated facilities qualify as a ski area. Such discretion
remains bounded by the statutory requirement in 16 U.S.C. 497b that the
primary purpose of a ski area permit be skiing and other snow sports.
Therefore, in this final rule, the revenue test is removed.
The Department has determined that additional notice and comment is
not required for this final rule. The interim final rule expressly
solicited public comment on the revised definition of a ski area,
including the preponderance of revenue test. The final rule is a
logical outgrowth of the interim final rule and the comment received
because it adopts the precise change requested by the commenter and
does not introduce new regulatory concepts or requirements beyond the
scope of the interim final rule.
The Department also notes that the interim final rule has been in
effect since 2013, and this final rule removes an existing regulatory
constraint rather than imposing new obligations. Accordingly, the
Department has determined that the final rule does not raise additional
notice concerns despite the period between issuance of the interim
final rule and adoption of this final rule.
The final rule maximizes the discretion of authorized officers to
determine whether a site and associated facilities qualify as a ski
area based on any number of relevant factors consistent with statutory
limitations. It also reduces the regulatory burden on ski area permit
holders should an area not meet the revenue test but is otherwise
designed and managed primarily for skiing and other snow sports. The
final rule allows additional flexibility in how permit holders set up
their operations while allowing them to retain the unique benefits
afforded by a ski area term permit. The revised definition in the final
rule does not eliminate the possibility that a ski area may be found to
no longer qualify as a ski area under the ``primary purpose''
requirement found in 16 U.S.C. 497b. Ski areas that no longer meet this
requirement may seek re-authorization under an authority other than 16
U.S.C. 497b for continued use and occupancy of NFS lands.
Regulatory Certifications
Regulatory Planning and Review
Executive Order (E.O.) 12866 provides that the Office of
Information and Regulatory Affairs (OIRA) in the Office
[[Page 14460]]
of Management and Budget will determine whether a regulatory action is
significant as defined by E.O. 12866 and will review significant
regulatory actions. OIRA has determined that this final rule is not
significant as defined by E.O. 12866. E.O. 13563 reaffirms the
principles of E.O. 12866 while calling for improvements in the Nation's
regulatory system to promote predictability, to reduce uncertainty, and
to use the best, most innovative, and least burdensome tools for
achieving regulatory ends. The Department has developed the final rule
consistent with E.O. 13563.
Congressional Review Act
Pursuant to Subtitle E of the Small Business Regulatory Enforcement
Fairness Act of 1996 (known as the Congressional Review Act) (5 U.S.C.
801 et seq.), OIRA has designated this final rule as not a major rule
as defined by 5 U.S.C. 804(2).
National Environmental Policy Act
The final rule will revise the definition of a ski area by
rescinding the revenue test currently found in the definition.
Departmental regulations at 7 CFR 1b.4(c)(20) exclude from
documentation in an environmental assessment or environmental impact
statement ``rules, regulations, or policies to establish servicewide
administrative procedures, program processes, or instructions.'' The
Department's assessment is that this final rule falls within this
category of actions and that no extraordinary circumstances exist which
will require preparation of an environmental assessment or
environmental impact statement.
Regulatory Flexibility Act
The Department has considered this final rule under the Regulatory
Flexibility Act (5 U.S.C. 602 et seq.). Removing the preponderance of
revenue test from the definition of a ski area may benefit large and
small ski areas by providing increased flexibility to maintain
authorization for skiing and snow sports alongside other authorized
year-round uses under a ski area term permit. This final rule will not
impose recordkeeping requirements on small entities; will not affect
their competitive position in relation to large entities; and will not
affect their cash flow, liquidity, or ability to remain in the market.
Therefore, the Department has determined that this final rule will not
have a significant economic impact on a substantial number of small
entities pursuant to the Regulatory Flexibility Act.
Federalism
The Department has considered this final rule under the
requirements of E.O. 13132, Federalism. The Department has determined
that the final rule conforms 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, on the relationship
between the Federal government and the States, or on the distribution
of power and responsibilities among the various levels of government.
Therefore, the Department has concluded that this final rule will not
have federalism implications.
Consultation and Coordination With Indian Tribal Governments
E.O. 13175, Consultation and Coordination With Indian Tribal
Governments, requires Federal agencies to consult and coordinate with
Tribes on a government-to-government basis on policies that have Tribal
implications, including regulations, legislative comments or proposed
legislation, and other policy statements or actions that have
substantial direct effects on one or more Indian Tribes, on the
relationship between the Federal Government and Indian Tribes, or on
the distribution of power and responsibilities between the Federal
Government and Indian Tribes. This final rule revises the definition of
a ski area by rescinding the revenue test currently found in the
definition. The Department has reviewed this final rule in accordance
with the requirements of E.O. 13175 and has determined that this final
rule could have substantial direct effects on Indian Tribes, on the
relationship between the Federal Government and Indian Tribes, or on
the distribution of power and responsibilities between the Federal
Government and Indian Tribes. Therefore, the Department determined that
consultation and coordination with Indian Tribal governments is
required for this final rule.
Tribal Summary Impact Statement: The Forest Service sent out
information about the draft final rule, along with an invitation to
consult on July 31, 2025. On September 2, 2025, the Forest Service
received a request from the Quapaw Nation for maps associated with the
final rule. The final rule applies to all ski areas and future ski
areas throughout the National Forest System and does not contain a
specific spatial component that could be suitably depicted on a map.
Therefore, the Forest Service responded that maps are not available for
this final rule. On November 18, 2025, the Forest Service received a
letter from the Snoqualmie Tribe expressing frustration with the lack
of information provided on the draft final rule and highlighting that
Tribal interests could be impacted by the final rule. The Forest
Service followed up with the Snoqualmie Tribe to provide any additional
information that would be helpful to their understanding and analysis
of the final rule. No requests for consultation have been received for
this final rule.
Family Policymaking Assessment
Section 654 of the Treasury and General Government Appropriations
Act, 1999 (Pub. L. 105-277), requires Federal agencies to issue a
Family Policymaking Assessment for a rule that may affect family well-
being. The final rule will have no impact on the autonomy or integrity
of the family as an institution. Accordingly, the Department has
concluded that it is not necessary to prepare a Family Policymaking
Assessment for the final rule.
Takings Implications
The Department has analyzed the final rule in accordance with the
principles and criteria in E.O. 12630, Governmental Actions and
Interference with Constitutionally Protect Property Rights.
The Department has determined that the final rule will not pose the
risk of a taking of private property.
Energy Effects
The Department has reviewed the final rule under E.O. 13211,
Actions Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use. The Department has determined that the final rule
will not constitute a significant energy action as defined in E.O.
13211.
Civil Justice Reform
The Department has analyzed the final rule in accordance with the
principles and criteria in E.O. 12988, Civil Justice Reform. Upon
publication of the final rule, (1) all State and local laws and
regulations that conflict with the final rule or that impede its full
implementation will be preempted; (2) no retroactive effect will be
given to this final rule; and (3) it will not require administrative
proceedings before parties may file suit in court challenging its
provisions.
Unfunded Mandates
Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2
U.S.C. 1531-1538), the Department has assessed the effects of the final
rule on
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State, local, and Tribal governments and the private sector. The final
rule will not compel the expenditure of $100 million or more, adjusted
annually for inflation, in any 1 year by State, local, and Tribal
governments in the aggregate or by the private sector. Therefore, a
statement under section 202 of the Act is not required.
Paperwork Reduction Act
The final rule does not contain any recordkeeping 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. 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.
List of Subjects in 36 CFR Part 251
Administrative practice and procedure, Alaska, Electric power,
Mineral resources, National forests, Public lands-rights-of-way,
Reporting and recordkeeping requirements, Water resources.
Therefore, for the reasons set forth in the preamble, the
Department amends chapter II of title 36 of the Code of Federal
Regulations as follows:
PART 251--LAND USES
Subpart B--Special Uses
0
1. The authority citation for part 251, subpart B continues to read:
Authority: 16 U.S.C. 460l-6a, 460l-6d, 472, 497b, 497c, 551,
580d, 1134, 3210; 30 U.S.C. 185; 43 U.S.C. 1740, 1761-1772.
0
2. Amend Sec. 251.51 by revising the definition of ``Ski area'' to
read as follows:
Sec. 251.51 Definitions.
* * * * *
Ski area--a site designed and managed primarily for skiing, which
may also include other snow sports. Associated facilities may also
support seasonal or year-round natural resource-based recreation
activities consistent with applicable law.
* * * * *
Michael K. Boren,
Under Secretary, Natural Resources and Environment.
[FR Doc. 2026-05767 Filed 3-24-26; 8:45 am]
BILLING CODE 3411-15-P
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</html>Indexed from Federal Register on March 25, 2026.
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