Proposed Rule2023-24341
Land Uses; Special Uses; Carbon Capture and Storage Exemption
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Published
November 3, 2023
Issuing agencies
Agriculture DepartmentForest Service
Abstract
The United States Department of Agriculture, Forest Service (Forest Service or Agency), is proposing to amend its special use regulations, which prohibit authorizing exclusive and perpetual use and occupancy of National Forest System lands, to provide an exemption for carbon capture and storage. The Forest Service is also proposing to add a definition for "Carbon capture and storage."
Full Text
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<title>Federal Register, Volume 88 Issue 212 (Friday, November 3, 2023)</title>
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[Federal Register Volume 88, Number 212 (Friday, November 3, 2023)]
[Proposed Rules]
[Pages 75530-75532]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-24341]
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DEPARTMENT OF AGRICULTURE
Forest Service
36 CFR Part 251
RIN 0596-AD55
Land Uses; Special Uses; Carbon Capture and Storage Exemption
AGENCY: Forest Service, USDA.
ACTION: Proposed rule; request for public comment.
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SUMMARY: The United States Department of Agriculture, Forest Service
(Forest Service or Agency), is proposing to amend its special use
regulations, which prohibit authorizing exclusive and perpetual use and
occupancy of National Forest System lands, to provide an exemption for
carbon capture and storage. The Forest Service is also proposing to add
a definition for ``Carbon capture and storage.''
DATES: Comments on this proposed rule must be received in writing by
January 2, 2024.
ADDRESSES: Comments, identified by RIN 0596-AD55, should be sent via
one of the following methods:
<bullet> Federal eRulemaking Portal: <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Follow the instructions for sending comments;
<bullet> Mail: Director, Lands, Minerals, and Geology Management
Staff, 201 14th Street SW, Washington, DC 20250-1124; or
<bullet> Hand Delivery/Courier: Director, Lands, Minerals, and
Geology Management Staff, 1st Floor Southeast, 201 14th Street SW,
Washington, DC 20250-1124.
Comments should be confined to issues pertinent to the proposed
rule, should explain the reasons for any recommended changes, and
should reference the specific section and wording being addressed,
where possible. All timely comments, including names and addresses when
provided, will be placed in the record and will be available for public
inspection and copying. The public may inspect comments received on
this proposed rule at the Office of the Director, Lands, Minerals, and
Geology Management Staff, 1st Floor Southeast, Sidney R. Yates Federal
Building, 201 14th Street SW, Washington, DC, on business days between
8:30 a.m. and 4 p.m. Visitors are encouraged to call ahead at 202-205-
1680 to facilitate entry into the building. Comments may also be viewed
on the Federal eRulemaking Portal at <a href="https://www.regulations.gov">https://www.regulations.gov</a>. In
the search box, enter ``RIN 0596-AD55,'' and click the ``Search''
button.
FOR FURTHER INFORMATION CONTACT: Mark Chandler, Realty Specialist,
Washington Office Lands, Minerals, and Geology Management Staff, 202-
205-1117 or <a href="/cdn-cgi/l/email-protection#660b07140d48050e0708020a0314261315020748010910"><span class="__cf_email__" data-cfemail="345955465f1a575c555a5058514674414750551a535b42">[email protected]</span></a>. Individuals who use
telecommunication devices for the hearing impaired may call the Federal
Relay Service at 800-877-8339 between 8 a.m. and 8 p.m., Eastern Time,
Monday through Friday.
SUPPLEMENTARY INFORMATION: The Forest Service administers approximately
74,000 special use authorizations for use and occupancy of National
Forest System (NFS) lands for a wide variety of purposes, including
powerline facilities, communications facilities, outfitting and
guiding, campground concessions, and resorts. The activities and
facilities authorized by special use authorizations contribute
significantly to the national economy and the social and economic
foundation of rural communities.
To obtain a special use authorization for a new use or activity, a
proponent must submit a special use proposal which meets two sets of
screening criteria in the Agency's existing special uses regulations at
36 CFR 251.54(e)(1) and (5). If the proposal meets all the screening
criteria, the proponent may submit a special use application for
evaluation by the Forest Service. Per the existing initial screening
criterion at 36 CFR 251.54(e)(1)(iv), the Forest Service may not
authorize exclusive and perpetual use and occupancy of NFS lands.
Carbon capture and storage entail injecting and storing carbon
dioxide in pore spaces below the surface of the earth. Pore spaces are
subsurface geological formations that can be used to store fluids from
mining, manufacturing, and other industrial processes. Typically, the
United States owns the pore spaces below the surface of NFS lands.
Storing carbon dioxide in pore spaces is intended to mitigate
greenhouse gas emissions and is performed via Class VI underground
injection control wells. Carbon dioxide injected in pore spaces may
remain for over 1,000 years after injection and would be tantamount to
an exclusive and perpetual use and occupancy if authorized on NFS
lands. Therefore, the Forest Service is proposing to amend the initial
screening criterion at 36 CFR 251.54(e)(1)(iv) that prohibits
authorizing exclusive and perpetual use and occupancy of NFS lands to
provide an exemption for carbon capture and storage. The Forest Service
is also proposing a definition for ``carbon capture and storage'' in 36
CFR 251.51.
The United States Environmental Protection Agency (EPA) has
excluded carbon capture and storage from classification as a hazardous
waste (40 CFR 261.4(h)) if carbon dioxide is captured, transported, and
stored in compliance with the requirements for Class VI Underground
Injection Control wells and the requirements in 40 CFR parts 144 and
146 of the Underground Injection Control Program of the Safe Drinking
Water Act, including the requirements for EPA authorization by rule or
by permit. A Class VI Underground Injection Control well is used to
inject carbon dioxide into deep rock formations. Before issuing a
permit for a Class VI Underground Injection Control well, the EPA
conducts a detailed technical review to ensure that the area around the
proposed location for the well does not have abandoned wells that could
leak carbon dioxide and to determine whether the well would be
constructed in a manner that would protect it from seismic activity and
from leaking carbon dioxide into the groundwater (40 CFR parts 144 and
146, Underground Injection Control (UIC) Program Class VI
Implementation Manual for UIC Program Directors).
The proposed rule would define ``carbon capture and storage'' as
``the capture, transportation, injection, and storage of carbon dioxide
in subsurface pore spaces in such a manner as to qualify the carbon
dioxide stream for the exclusion from classification as a `hazardous
waste' pursuant to United States Environmental Protection Agency
regulations at 40 CFR 261.4(h).'' Therefore, carbon capture and storage
authorized under the proposed rule would not constitute a hazardous
waste and would not be inconsistent with the initial screening
criterion at 36 CFR 251.54(e)(1)(ix) that prohibits authorizing storage
of hazardous substances on NFS lands.
To protect public health and underground sources of drinking water
for these wells, including for those that may be sited on NFS lands,
the EPA regulates all aspects of the wells, including siting,
construction, injection operations, testing and monitoring,
[[Page 75531]]
emergency response, financial responsibility, and plugging and closure
of the wells and injection sites through permitting, site inspections,
required reporting, and compliance reviews. The public may comment on
proposed permits for Class VI Underground Injection Control wells, as
well as request and attend public hearings and in some cases file
appeals with EPA's Environmental Appeals Board regarding permits for
Class VI Underground Injection Control wells.
Carbon capture and storage can be used to reduce carbon dioxide
emissions to the atmosphere. Possible sources of carbon dioxide include
point source emissions from industrial facilities, energy production,
and direct air capture from the atmosphere. Authorizing carbon capture
and storage on NFS lands would support the Administration's goal to
reduce greenhouse gas emissions by 50 percent below the 2005 levels by
2030.
The proposed rule would not authorize carbon capture and storage on
NFS lands. Rather, the proposed rule would exempt proposals for carbon
capture and storage from the initial screening criterion prohibiting
authorization of exclusive use and occupancy of NFS lands, thereby
allowing the Forest Service to review proposals and applications for
carbon capture and storage and to authorize proposed carbon capture and
storage on NFS lands if, where, and as deemed appropriate by the
Agency. An exemption for the exclusive and perpetual use and occupancy
for carbon capture and storage on NFS lands would be consistent with
the intent of EPA's Class VI Well permitting requirement for injecting
carbon dioxide for the primary purpose of long-term storage. No other
type of exclusive and perpetual use and occupancy would be authorized
on NFS lands under the proposed rule.
Proposals for underground storage of carbon dioxide would have to
meet all other screening criteria, including but not limited to
consistency with the applicable land management plan, potential risks
to public health or safety, conflicts or interference with authorized
uses of NFS lands or use of adjacent non-NFS lands. Accepted
applications for carbon capture and storage would be subject to the
requisite environmental analysis.
Regulatory Certifications
Regulatory Planning and Review (Executive Orders 12866 and 13563)
Consistent with Executive Order (E.O.) 12866, the Office of
Information and Regulatory Affairs (OIRA) in the Office of Management
and Budget will determine whether proposed, interim, and final rules
that impose, eliminate, or modify requirements on non-Forest Service
parties are significant and will review any proposed, interim, or final
rules that OIRA has designated as significant. This proposed rule has
been designated as nonsignificant by OIRA. 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 Forest Service has developed the
proposed 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 proposed rule as not a major
rule as defined by 5 U.S.C. 804(2).
National Environmental Policy Act
This proposed rule would amend the Forest Service's special use
regulations at 36 CFR 251.54(e)(1)(iv), which prohibits authorizing
exclusive and perpetual use and occupancy of NFS lands, to provide an
exemption for carbon capture and storage. 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 Forest Service's preliminary
assessment is that this proposed rule falls within this category of
actions and that no extraordinary circumstances exist which would
require preparation of an environmental assessment or environmental
impact statement. A final determination will be made upon adoption of
the final rule.
Regulatory Flexibility Act Analysis
The Forest Service has considered the proposed rule under the
requirements of the Regulatory Flexibility Act (5 U.S.C. 602 et seq.).
This proposed rule would not have any direct effect on small entities
as defined by the Regulatory Flexibility Act. The proposed rule would
not impose recordkeeping requirements on small entities; would not
affect their competitive position in relation to large entities; and
would not affect their cash flow, liquidity, or ability to remain in
the market. Therefore, the Forest Service has determined that this
proposed rule would not have a significant economic impact on a
substantial number of small entities pursuant to the Regulatory
Flexibility Act.
Federalism
The Forest Service has considered this proposed rule under the
requirements of E.O. 13132, Federalism. The Forest Service has
determined that the proposed rule conforms with the federalism
principles set out in this E.O.; would not impose any compliance costs
on the States; and would 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 Forest Service has
concluded that this proposed rule would not have federalism
implications.
Consultation and Coordination With Indian Tribal Governments
This proposed rule has been reviewed in accordance with the
requirements of E.O. 13175, Consultation and Coordination with Indian
Tribal Governments. E.O. 13175 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. The Forest Service has
determined that this proposed rule could have substantial direct
effects on one or more Tribes and is subject to Tribal consultation per
E.O. 13175 and Forest Service Handbook 1509.13. Accordingly, the Forest
Service is conducting Tribal consultation on the proposed rule.
Environmental Justice
The Forest Service has considered the proposed rule under the
requirements of E.O. 12898, Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Populations. The Forest
Service has determined that the proposed rule is not expected to result
in disproportionately high and adverse impacts on minority or low-
income populations or the exclusion of minority and low-income
[[Page 75532]]
populations from meaningful involvement in decision making.
No Takings Implications
The Forest Service has analyzed this proposed rule in accordance
with the principles and criteria in E.O. 12630, Governmental Actions
and Interference with Constitutionally Protect Property Rights. The
Forest Service has determined that the proposed rule would not pose the
risk of a taking of private property.
Energy Effects
The Forest Service has reviewed this proposed rule under E.O.
13211, Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use. The Forest Service has determined that
the proposed rule would not constitute a significant energy action as
defined in E.O. 13211.
Civil Justice Reform
The Forest Service has analyzed this proposed rule in accordance
with the principles and criteria in E.O. 12988, Civil Justice Reform.
After adoption of this proposed rule, (1) all State and local laws and
regulations that conflict with this proposed rule or that impede its
full implementation would be preempted; (2) no retroactive effect would
be given to this proposed rule; and (3) it would 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), signed into law on March 22, 1995, the Forest
Service has assessed the effects of the proposed rule on State, local,
and Tribal governments and the private sector. This proposed rule would
not compel the expenditure of $100 million or more by any State,
Tribal, or local 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
The proposed 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 and therefore imposes no additional paperwork burden
on the public. 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, and Water resources.
Therefore, for the reasons set forth in the preamble, the Forest
Service proposes to amend 36 CFR part 251 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 adding a definition in alphabetical order for
``Carbon capture and storage'' to read as follows:
* * * * *
Carbon capture and storage--the capture, transportation, injection,
and storage of carbon dioxide in subsurface pore spaces in such a
manner as to qualify the carbon dioxide stream for the exclusion from
classification as a ``hazardous waste'' pursuant to United States
Environmental Protection Agency regulations at 40 CFR 261.4(h).
* * * * *
0
3. Amend Sec. 251.54 by revising paragraph (e)(1)(iv) to read as
follows.
Sec. 251.54 Proposal and application requirements and procedures.
* * * * *
(e) * * *
(1) * * *
(iv) The proposed use will not create an exclusive or perpetual
right of use or occupancy, provided that the Forest Service may
authorize exclusive and perpetual use and occupancy for carbon capture
and storage in subsurface pore spaces.
* * * * *
Andrea Delgado Fink,
Chief of Staff, Natural Resources and Environment.
[FR Doc. 2023-24341 Filed 11-2-23; 8:45 am]
BILLING CODE 3411-15-P
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