[Federal Register Volume 80, Number 224 (Friday, November 20, 2015)]
[Proposed Rules]
[Pages 72665-72669]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-29592]


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DEPARTMENT OF AGRICULTURE

Forest Service

36 CFR Part 294

RIN 0596-AD26


Roadless Area Conservation; National Forest System Lands in 
Colorado

AGENCY: Forest Service, USDA.

ACTION: Notice of proposed rulemaking; request for comment.

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SUMMARY: The U.S. Department of Agriculture (USDA) is proposing to 
reinstate the North Fork Coal Mining Area exception of the Colorado 
Roadless Rule. The Colorado Roadless Rule is a State-specific rule that 
provides direction for conserving and managing approximately 4.2 
million acres of Colorado Roadless Areas (CRAs) on National Forest 
System (NFS) lands within the state of Colorado. The North Fork Coal 
Mining Area exception allowed for temporary road construction for coal 
exploration and/or coal-related surface activities in an area defined 
as the North Fork Coal Mining Area, which was inadvertently reported as 
19,100 acres in 2012, and was actually 19,500 acres. The Forest 
Service, on behalf of the Department, has prepared a supplemental 
environmental impact statement (SEIS) addressing specific environmental 
disclosure deficiencies

[[Page 72666]]

identified by the District Court of Colorado. In addition, the 
Department is proposing to correct certain CRA boundaries associated 
with the North Fork Coal Mining Area based on updated information. The 
Forest Service invites written comments on both the proposed rule and 
supplemental draft environmental impact statement.

DATES: Comments on this proposed rule must be received in writing by 
January 4, 2016. Comments concerning the supplemental draft 
environmental impact statement contained in this proposed rule must be 
received in writing by January 4, 2016.

ADDRESSES: Comments may be submitted electronically via the internet to 
go.usa.gov/3JQwJ or to www.regulations.gov. Send written comments to: 
Colorado Roadless Rule, 740 Simms Street, Golden, CO 80401.
    All comments, including names and addresses, will be placed in the 
project record and available for public inspections and copying.
    The public may inspect comments received on this proposed rule at 
USDA, Forest Service, Ecosystem Management Coordination Staff, 1400 
Independence Ave. SW., Washington, DC, between 8 a.m. and 4:30 p.m. on 
business days. Those wishing to inspect comments should call 202-205-
0895 ahead to facilitate an appointment and entrance to the building. 
Comments may also be inspected at USDA, Forest Service Rocky Mountain 
Regional Office, Strategic Planning Staff, 740 Simms, Golden, Colorado, 
between 8 a.m. and 4:30 p.m. on business days. Those wishing to inspect 
comments at the Regional Office should call 303-275-5156 ahead to 
facilitate an appointment and entrance to the building.

FOR FURTHER INFORMATION CONTACT: Ken Tu, Interdisciplinary Team Leader, 
Rocky Mountain Regional Office at 303-275-5156.
    Individuals using telecommunication devices for the deaf may call 
the Federal Information Relay Services at 1-800-877-8339 between 8 a.m. 
and 8 p.m. Eastern Time, Monday through Friday.

SUPPLEMENTARY INFORMATION: 

Background

    In July 2012, the USDA promulgated the Colorado Roadless Rule, a 
State-specific regulation for conserving and managing approximately 4.2 
million acres of CRAs on NFS lands. The Rule addressed State-specific 
concerns while conserving roadless area characteristics. One State-
specific concern involved continued exploration and development of coal 
resources in the North Fork Valley area of the Grand Mesa, Uncompahgre, 
and Gunnison (GMUG) National Forests. The Colorado Roadless Rule 
addressed this State-specific concern by defining an area called the 
North Fork Coal Mining Area and developing an exception that allowed 
temporary road construction for coal-related activities within that 
defined area.
    In July 2013, High Country Conservation Advocates, WildEarth 
Guardians, and Sierra Club challenged the Forest Service consent 
decision to the Bureau of Land Management (BLM) modifying two existing 
coal leases, the BLM's companion decision to modify the leases, the 
BLM's authorization of exploration in the lease modification areas, and 
the North Fork Coal Mining Area exception of the Colorado Roadless 
Rule. In June 2014, the District Court of Colorado found the 
environmental documents supporting the four decisions to be in 
violation of NEPA. The deficiencies identified by the Court associated 
with the Colorado Roadless Rule included: Failure to disclose 
greenhouse gas emissions associated with potential mine operations; 
failure to disclose greenhouse gas emissions associated with combustion 
of coal potentially mined from the area; and failure to address a 
report about coal substitution submitted during a public comment 
period. In September 2014, the District Court of Colorado vacated the 
exploration plan, the lease modifications, and the North Fork Coal 
Mining Area exception of the Colorado Roadless Rule (36 CFR 
294.43(c)(1)(ix)) but otherwise left the Rule intact and operational.
    The final 2012 Colorado Roadless Rule was developed collaboratively 
between the USDA, Forest Service, State of Colorado, and interested 
publics. The North Fork Coal Mining Area exception was developed by a 
13-member, bipartisan task force established under Colorado Revised 
Statute Sec.  36-7-302 to make recommendations to the Governor 
regarding management of roadless areas in Colorado national forests. 
Between June 8, 2005, with the signing of Colorado Senate bill 05-243 
which created the Roadless Task Force and November 13, 2006, with then 
Governor Owen signing the Colorado State Petition, the task force held 
nine public meetings throughout the State and six deliberative meetings 
of the task force members that were open to the public, and reviewed 
and considered over 40,000 public comments. Comments were both 
supportive and opposed to coal extraction. The task force recommended a 
Colorado Roadless Rule not apply to about 55,000 acres of roadless 
areas in the GMUG National Forests for activities related to and in 
support of underground coal mining.
    On November 13, 2006 then-Governor Bill Owens submitted a petition 
to the USDA to develop a State-specific roadless rule. The petition 
reflected the task force recommendations and included the North Fork 
Coal Mining Area exception. Governor Owens stated that the petition 
weighed Colorado's interests and reflected the concerns of the entire 
State. The 2006 petition attempted to strike a balance between those 
that supported coal extraction and those that opposed it by proposing 
that a roadless rule not apply to the North Fork Valley. Potential coal 
resources within roadless areas on the Pike-San Isabel, Routt, White 
River, and San Juan National Forests were not included in the petition.
    After Governor Owens submitted the State's petition, Bill Ritter, 
Jr. was elected Governor of Colorado. In April 2007, then-Governor 
Ritter resubmitted the petition with minor modifications. Governor 
Ritter supported the concept of having the Colorado Roadless Rule not 
apply to the North Fork Coal Mining Area but explicitly asked the area 
remain in the Colorado roadless inventory. In 2010, John Hickenlooper 
was elected Governor of Colorado. Governor Hickenlooper also supported 
having a North Fork Coal Mining Area exception.
    Throughout the development of the Colorado Roadless Rule, the USDA, 
Forest Service, and State of Colorado attempted to strike a balance 
between those that support and oppose coal mining in CRAs. The North 
Fork Coal Mining Area reflects this effort to find common ground. In 
November 2006, Governor Owens petitioned approximately 55,000 acres be 
considered as the North Fork Coal Mining Area, which included all or 
portions of Currant Creek, Electric Mountain, Flatirons, Flattops-Elk 
Park, Pilot Knob, and Sunset CRAs. In July 2008, the North Fork Coal 
Mining Area was reduced to approximately 29,000 acres in the proposed 
rule and included all or portions of Currant Creek, Electric Mountain, 
Flatirons, Pilot Knob, and Sunset CRAs. In April 2011, the North Fork 
Coal Mining Area was further reduced to approximately 20,000 acres in 
the revised proposed rule and included all or portions of Currant 
Creek, Electric Mountain, Flatirons, Pilot Knob, and Sunset CRAs. In 
July 2012, the North Fork Coal Mining Area was reported in error as 
19,100 acres in the final rule. The actual acreage was 19,500, and 
included all or portions of Flatirons, Pilot Knob, and Sunset CRAs. The 
changes made to the North Fork

[[Page 72667]]

Coal Mining Area were a direct result of public comments and the desire 
to balance economic concerns with roadless values.
    Throughout the rulemaking process, a total of five formal comment 
periods were held by the State and Forest Service resulting in 24 
public meetings and over 312,000 comments. In addition, five meetings 
open to the public were held by the Roadless Area Conservation National 
Advisory Committee, which provided recommendations to the Secretary of 
Agriculture. The USDA believes there is an appropriate balance between 
conserving roadless area characteristics and the state-specific 
concerns in the continued exploration and development of coal resources 
in the July 2012 final rule where less than 0.5 percent of the CRAs 
were designated as the North Fork Coal Mining Area.

Need for Rulemaking

    The State of Colorado maintains that coal mining in the North Fork 
Coal Mining Area provides an important economic contribution and 
stability for the communities of the North Fork Valley. USDA and the 
Forest Service are committed to contributing to energy security, and 
carrying out the government's overall policy to foster and encourage 
orderly and economic development of domestic mineral resources.
    All existing Federal coal leases within CRAs occur in the North 
Fork Valley near Paonia, Colorado on the GMUG National Forests. Coal 
from this area meets the Clean Air Act definition for compliant and 
super-compliant coal, which means it has high energy value and low 
sulphur, ash and mercury content. There are two mines currently holding 
leases within CRAs. One is operating, producing approximately 5.2 
million tons of coal annually. The second is currently idle due to a 
fire and flood within their mine operation. The final rule accommodates 
continued coal mining opportunities within the North Fork Coal Mining 
Area. At approximately 19,500 acres, this area is less than 0.5% of the 
total 4.2 million acres of CRAs. The North Fork Coal Mining Area 
exception allows for the construction of temporary roads for 
exploration and surface activities related to coal mining for existing 
and future coal leases. The reinstatement of this exception does not 
approve any future coal leases, nor does it make a decision about the 
leasing availability of any coal within the State. Those decisions 
would need to undergo separate environmental analyses, public input, 
and decision-making.

Supplemental Environmental Impact Statement

    A Supplemental Environmental Impact Statement (SEIS) has been 
prepared to complement the 2012 Final EIS for the Colorado Roadless 
Rule. The SEIS is limited in scope to address the deficiencies 
identified by the District Court of Colorado in High Country 
Conservation Advocates v. United States Forest Service (13-01723, D. 
Col), correction of boundary information, and to address scoping 
comments. In conjunction with the 2012 Final EIS, the SEIS discloses 
the environmental consequences of reinstating the North Fork Coal 
Mining Area exception into the Colorado Roadless Rule.
    Three alternatives are addressed in detail in the SEIS. Alternative 
A is the No Action Alternative, and would continue the current 
management under the Colorado Roadless Rule without a North Fork Coal 
Mining Area exception. Alternative A would manage the 19,500 acres of 
CRA within the vacated North Fork Coal Mining Area as non-upper tier 
roadless. Alternative B (proposed action), would reinstate the North 
Fork Coal Mining Area exception, allowing temporary road construction 
for coal mining related activities on 19,700 acres of NFS lands within 
CRAs. Alternative C (exclusion of ``wilderness capable'' lands) would 
establish the North Fork Coal Mining Area exception, but exclude lands 
identified as ``wilderness capable'' during the 2007 GMUG Forest Plan 
revision process. Alternative C would allow temporary road construction 
for coal mining activities on 12,600 acres of NFS lands within CRAs.
    In addition, all alternatives include boundary correction of CRAs 
based on more accurate inventory of forest road locations obtained 
since the promulgation of the 2012 Colorado Roadless Rule. These 
corrections will add 65 acres into the CRAs, and subtract 35 acres from 
CRAs along the existing road system. The court identified deficiencies 
were addressed in the SEIS in the following manner:
    1. Failure to disclose greenhouse gas emissions associated with 
potential mine operations--The SEIS estimates greenhouse gas emissions 
associated with mining of the coal based on three potential production 
levels (low, average and air quality permitted). Table 1 displays 
results for Alternative B (proposed action).

 Table 1--Estimated Annual Gross Lifecycle Greenhouse Gas Emissions From Potential Coal Mining for Alternative B
                 Under Three Production Scenarios, in Annual Tons of Carbon Dioxide Equivalents
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                                                                                                     Permitted
                                                                                                   scenario (max
                          Alternative B                            Low scenario       Average      air  quality
                                                                                     scenario         permit
                                                                                                      values)
----------------------------------------------------------------------------------------------------------------
Coal Production (annual tons)...................................       5,300,000      10,000,000      15,500,000
                                                                 -----------------------------------------------
                                                                            carbon dioxide equivalents
                                                                 -----------------------------------------------
Carbon dioxide--extraction......................................         100,000         200,000         300,000
Methane--extraction.............................................       1,200,000       4,200,000       6,300,000
Nitrous oxide--extraction.......................................               0               0               0
                                                                 -----------------------------------------------
    Total.......................................................       1,300,000       4,400,000       6,600,000
----------------------------------------------------------------------------------------------------------------

    2. Failure to disclose greenhouse gas emissions associated with 
combustion of coal potentially mined from the area--The SEIS includes a 
lifecycle analysis of greenhouse gas emissions that includes downstream 
effects of combustion of coal based on three potential production 
levels. Table 2 displays results for Alternative B (proposed action).

[[Page 72668]]



 Table 2--Estimated Annual Gross Lifecycle Greenhouse Gas Emissions From Potential Transportation and Combustion
    of Coal for Alternative B Under Three Production Scenarios, in Metric Tons of Carbon Dioxide Equivalents
----------------------------------------------------------------------------------------------------------------
                                                                                                     Permitted
                                                                                                   scenario (max
                          Alternative B                            Low scenario       Average      air  quality
                                                                                     scenario         permit
                                                                                                      values)
----------------------------------------------------------------------------------------------------------------
Coal Production (annual tons)...................................       5,300,000      10,000,000      15,500,000
                                                                 -----------------------------------------------
                                                                            carbon dioxide equivalents
                                                                 -----------------------------------------------
Carbon dioxide--combustion......................................      11,600,000      22,000,000      34,500,000
All--rail transport.............................................         600,000       1,200,000       1,800,000
Carbon dioxide--overseas shipping...............................         100,000         200,000         300,000
                                                                 -----------------------------------------------
    Total.......................................................      12,300,000      23,400,000      36,600,000
----------------------------------------------------------------------------------------------------------------

    3. Failure to address a report about coal substitution submitted 
during a public comment period--The SEIS includes a lifecycle analysis 
of greenhouse gas emissions that includes the downstream effects of 
substituted energy sources if the North Fork Coal Mining Area exception 
is not reinstated (Alternative A).
    Changes in gross production and consumption of coal from the North 
Fork Coal Mining Area are expected to have an effect on production and 
consumption of other fuel sources, including alternative supplies of 
coal, natural gas, and other energy supplies such as renewables, 
especially in later years of the analysis. The SEIS characterizes 
market responses and substitution effects in order to estimate net 
changes in energy production and consumption. The ICF International's 
Integrated Planning Model (IPM[supreg]) was used to predict how 
production and consumption of other sources of coal and natural gas, as 
well as alternative sources of energy (e.g., renewables, bio/waste 
fuel) respond to, substitute, or offset for changes in the supply of 
low sulfur bituminous coal from the North Fork Coal Mining Area.
    Assuming that total gross production of underground coal from the 
North Fork Coal Mining Area increases by 172 million tons over the 
period 2016 to 2054 for Alternative B, compared to Alternative A, 
production from other substitute sources of underground coal around the 
nation are likely to decrease, in many cases, in response to an 
increase in North Fork Coal Mining Area underground coal production. 
These decreases in other underground coal mining would offset, in part, 
some of the 172 million tons of underground coal production from the 
North Fork Coal Mining Area, resulting in net domestic underground coal 
production of 91 million tons. These results are estimated using 
response coefficients derived from IPM[supreg] modeling results.
    Production of substitute sources of surface coal and natural gas 
across the country are estimated to decrease by 23 million tons and 271 
BCF, in response to increases in North Fork Coal Mining Area coal 
production. Total electricity generation is assumed to remain constant 
across the three alternatives, so change in total electricity 
generation is equal to zero for Alternative B, compared to A. However, 
the mix of energy sources used to generate the electricity will change, 
in response to increases in North Fork Coal Mining Area coal 
production.
    These shifts in the mixtures of energy used to generate 
electricity, as well as the production of different types of energy 
will change carbon dioxide emissions. Total carbon dioxide emissions is 
estimated to increase by 131 million tons under Alternative B, compared 
to Alternative A.
    4. The SEIS addresses the social cost of carbon as related to the 
Colorado Roadless Rule. A social cost of carbon calculation was 
completed as part of the present net value analysis considering the 
2010, 2013, and 2015 Technical Update of the social cost of carbon for 
Regulatory Impact Analysis Under Executive Order 12866--Interagency 
Working Group on social cost of carbon.
    Social cost of carbon estimates represent global measures because 
emissions of greenhouse gasses from within the U.S. contribute to 
damages around the world. The total social cost of carbon values 
therefore account for global damages caused by greenhouse gas 
emissions. The SEIS discusses greenhouse gas estimates in the context 
of (i) total or global social cost of carbon estimates and (ii) 
domestic (U.S.) estimate represented by applying 7 percent to 23 
percent of social cost of carbon estimates, and (iii) a forest estimate 
for the GMUG national forest boundary.
    Discussion of these accounting stances is intended to help the 
decision maker and the public understand the relative importance of 
considering greenhouse gas damages as a global problem, in comparison 
to the more traditional domestic benefit cost stance adopted for 
regulatory impact analysis and NEPA effects analysis for public land 
management decision-making.
    Present net value results, which include the social cost of carbon 
calculation, estimated under the global view are primarily negative, 
with values as low as negative $12 billion in net damages to positive 
$1.9 billion in net benefits for Alternative B, compared to Alternative 
A. Present net value ranges from negative $6.8 billion to positive $1.3 
billion for Alternative C, relative to Alternative A. Midpoint present 
net value estimates range from negative $0.8 to negative $3.4 billion 
in net damages for Alternatives B and C, compared to Alternative A.

Regulatory Considerations

Regulatory Planning and Review

    USDA consulted with the Office of Management and Budget and 
determined this proposed rule does not meet the criteria for a 
significant regulatory action under Executive Order 12866.

Regulatory Flexibility Act and Consideration of Small Entities

    USDA certifies the proposed regulation, if promulgated, will not 
have a significant economic impact on a substantial number of small 
entities as determined in the 2012 Regulatory Flexibility Analysis. 
Therefore notification to the Small Business Administration's Chief 
Council for Advocacy is not required pursuant to Executive Order 13272.

[[Page 72669]]

Energy Effects

    The Colorado Roadless Rule and the North Fork Coal Mining Area 
exception do not constitute a ``significant energy action'' as defined 
by Executive Order 13211. No novel legal or policy issues regarding 
adverse effects to supply, distribution, or use of energy are 
anticipated beyond what has been addressed in the 2012 FEIS or the 
Regulatory Impact Analysis prepared in association with the final 2012 
Colorado Roadless Rule. The proposed reinstatement of the North Fork 
Coal Mining Area exception does not restrict access to privately held 
mineral rights, or mineral rights held through existing claims or 
leases, and allows for disposal of mineral materials. The proposed rule 
does not prohibit future mineral claims or mineral leasing in areas 
otherwise open for such. The rulemaking provides a regulatory mechanism 
for consideration of requests for modification of restriction if 
adjustments are determined to be necessary in the future.

Federalism

    USDA has determined the proposed rule conforms with the Federalism 
principles set out in Executive Order 13132 and does not have 
Federalism implications. The rulemaking would not impose any new 
compliance costs on any State; and the rulemaking would not have 
substantial direct effects on States, on the relationship between the 
national government and the states, nor on the distribution of power 
and responsibilities among the various levels of government.
    The proposed rule is based on a petition submitted by the State of 
Colorado under the Administrative Procedure Act at 5 U.S.C. 553(e) and 
pursuant to USDA regulations at 7 CFR 1.28. The State's petition was 
developed through a task force with local government involvement. The 
State of Colorado is a cooperating agency pursuant to 40 CFR 1501.6 of 
the Council on Environmental Quality regulations for implementation of 
NEPA.

Takings of Private Property

    USDA analyzed the proposed rule in accordance with the principles 
and criteria contained in Executive Order 12630. The Agency determined 
the proposed rule does not pose the risk of a taking of private 
property.

Civil Justice Reform

    USDA reviewed the proposed rule in context of Executive Order 
12988. The Agency has not identified any State or local laws or 
regulations that are in conflict with this proposed rule or would 
impede full implementation of this proposed rule. However, if this 
proposed rule were adopted, (1) all State and local laws and 
regulations that conflict with this rulemaking or would impede full 
implementation of this rulemaking would be preempted; (2) no 
retroactive effect would be given to this proposed rule; and (3) this 
rulemaking would not require the use of administrative proceedings 
before parties could file suit in court.

Tribal Consultation

    USDA provided an introductory letter and the Notice of Intent for 
the Colorado Roadless Rule and the supplemental draft EIS to the Ute, 
Ute Mountain Ute, and Southern Ute Indian Tribes in context of 
Executive Order 13175. No specific requests from any tribes were made 
for additional information or meetings. No letters from any tribes have 
been received concerning the proposed action.

Unfunded Mandates

    USDA has assessed the effects of the Colorado Roadless Rule on 
State, local, and Tribal governments and the private sector. This 
proposed rule does not compel the expenditure of $100 million or more 
by State, local, or Tribal governments, or anyone in the private 
sector. Therefore, a statement under section 202 of title II of the 
Unfunded Mandates Reform Act of 1995 is not required.

Paperwork Reduction Act

    This rulemaking does not call for any additional recordkeeping, 
reporting requirements, or other information collection requirements as 
defined in 5 CFR 1320 that are not already required by law or not 
already approved for use. The proposed rule imposes no additional 
paperwork burden on the public. Therefore the Paperwork Reduction Act 
of 1995 does not apply to this proposal.

List of Subjects in 36 CFR Part 294

    National Forests, Recreation areas, Navigation (air), and State 
petitions for inventoried roadless area management.

    For the reasons set forth in the preamble, the Forest Service 
proposes to amend part 294 of Title 36 of the Code of Federal 
Regulations by reinstating 36 CFR 294.43(c)(1)(ix) to read as follows:

PART 294--SPECIAL AREAS

Subpart D--Colorado Roadless Area Management

0
1. The authority citation for part 294, subpart D continues to read as 
follows:

    Authority:  16 U.S.C. 472, 529, 551, 1608, 1613; 23 U.S.C. 201, 
205.

0
2. Amend Sec.  294.43 by revising paragraph (c)(1)(ix) to read as 
follows:


Sec.  294.43  Prohibition on road construction and reconstruction.

    (c) * * *
    (1) * * *
    (ix) A temporary road is needed for coal exploration and/or coal-
related surface activities for certain lands with Colorado Roadless 
Areas in the North Fork Coal Mining Area of the Grand Mesa, 
Uncompahgre, and Gunnison National Forests as defined by the North Fork 
Coal Mining Area displayed on the final Colorado Roadless Areas map. 
Such roads may also be used for collecting and transporting coal mine 
methane. Any buried infrastructure, including pipelines, needed for the 
capture, collection, and use of coal mine methane, will be located 
within the rights-of-way of temporary roads that are otherwise 
necessary for coal-related surface activities including the 
installation and operation of methane venting wells.
* * * * *

    Dated: November 6, 2015.
Robert Bonnie,
Under Secretary, Natural Resources and Environment.
[FR Doc. 2015-29592 Filed 11-19-15; 8:45 am]
BILLING CODE 3411-15-P