[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 [www.gpo.gov]
[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:
     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the instructions for sending comments;
     Mail: Director, Lands, Minerals, and Geology Management 
Staff, 201 14th Street SW, Washington, DC 20250-1124; or
     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 https://www.regulations.gov. 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 [email protected]. 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