[Federal Register Volume 83, Number 171 (Tuesday, September 4, 2018)]
[Proposed Rules]
[Pages 44846-44856]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-19032]


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FEDERAL PERMITTING IMPROVEMENT STEERING COUNCIL

40 CFR Chapter IX

[FPISC Case 2018-001; Docket No. 2018-0008; Sequence No. 1]
RIN 3090-AJ88


Fees for Governance, Oversight, and Processing of Environmental 
Reviews and Authorizations by the Federal Permitting Improvement 
Steering Council

AGENCY: Federal Permitting Improvement Steering Council.

ACTION: Notice of proposed rulemaking.

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SUMMARY: This notice of proposed rulemaking proposes to establish an 
initiation fee for project sponsors to reimburse the Federal Permitting 
Improvement Steering Council--Office of the Executive Director (FPISC-
OED) for reasonable costs to implement certain requirements and 
authorities required under Title 41 of the Fixing America's Surface 
Transportation Act (FAST-41) and costs of operating FPISC-OED. FAST-41 
creates a new authority to establish a fee structure to reimburse 
reasonable costs incurred in implementing certain requirements and 
authorities including the costs to agencies and the costs of operating 
the Permitting Council. In this rulemaking, we propose an initiation 
fee that would cover only reasonable costs for FPISC-OED's operations 
and costs to provide oversight and support to implement FAST-41. We 
seek comments on all aspects of the proposed rulemaking.

DATES: We will accept comments, data, and information regarding this 
proposed rule no later than November 5, 2018.

ADDRESSES: Submit comments in response to FPISC Case 2018-001 by any of 
the following methods:
     Regulations.gov: http://www.regulations.gov. Submit 
comments via the Federal eRulemaking portal by entering ``FPISC Case 
2018-001'', under the heading ``Enter Keyword or ID'' and select 
``Search''. Select the link ``Submit a Comment'' that corresponds with 
``FPISC Case 2018-001'' and follow the instructions provided at the 
``Comment Now'' screen. Please include your name, company name (if 
any), and ``FPISC Case 2018-001'' on your attached document.
     Mail: FPISC-OED, c/o General Services Administration, 
Regulatory Secretariat (MVCB), ATTN: Ms. Lois Mandell, 1800 F Street 
NW, Washington, DC 20405.
    Instructions: Please submit comments only and cite FPISC Case 2018-
001 in all correspondence related to this case. All comments received 
will be posted without change to http://www.regulations.gov, including 
any personal and/or business confidential information provided. To 
confirm receipt of your comment(s), please check www.regulations.gov 
approximately two to three days after submission to verify posting 
(except allow 30 days for posting of comments submitted by mail).

FOR FURTHER INFORMATION CONTACT: Amber Levofsky, Federal Permitting 
Improvement Steering Council--Office of the Executive Director, 1800 F 
Street NW, Washington, DC 20504; telephone number: 202-412-2064; email 
address: [email protected].

SUPPLEMENTARY INFORMATION:

I. Background
II. Authority
III. Discussion
    A. Proposed Regulations
    i. Sec.  1900.1 Purpose and Scope
    ii. Sec.  1900.2 Definitions
    iii. Sec.  1900.3 FAST-41 Initiation Fee
    B. Economic Impacts
    i. Benefits of the Initiation Fee to Project Sponsors of Covered 
Projects
    ii. Costs of the Initiation Fee to Project Sponsors of Covered 
Projects
    iii. Determination of Amount of Initiation Fee
    C. Issues on Which We Seek Comment
    i. Initiation Fee Non-Refundable and Due in Two Parts
    ii. Calculation of Initiation Fee
    iii. Exclusions
    D. Public Participation
    E. Docket
IV. Regulatory Review
    A. Executive Order 12866
    i. Scope and Key Inputs to the Analysis
    ii. Costs
    iii. Benefits
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    G. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use
    H. National Environmental Policy Act
    I. Executive Order 13771: Reducing Regulation and Controlling 
Regulatory Costs

[[Page 44847]]

I. Background

    Title 41 of the Fixing America's Surface Transportation Act (Pub. 
L. 114-94, secs. 41001 et seq. (Dec. 4, 2015) (codified at 42 U.S.C. 
4370m et seq.)) (FAST-41) seeks to encourage greater coordination 
across the Federal Government in environmental reviews and 
authorizations for large, complex infrastructure projects. To oversee 
its implementation, FAST-41 created the Federal Permitting Improvement 
Steering Council (FPISC or Permitting Council), which is chaired by an 
Executive Director appointed by the President and consists of Deputy 
Secretary-level members from 14 Federal agencies, the Council on 
Environmental Quality (CEQ), and the Office of Management and Budget 
(OMB) (42 U.S.C. 4370m-1). The 14 Federal agencies include 13 agencies 
designated in FAST-41 as enacted (42 U.S.C. 4370m-1(b)(2)(B)), as well 
as the General Services Administration (GSA), which was invited to join 
the Permitting Council by the Executive Director pursuant to 42 U.S.C. 
4370m-1(b)(2)(B)(xiv) on May 2, 2017. In addition, GSA was designated 
by the OMB Director to provide administrative support for the Executive 
Director and, as reasonably necessary, provide support and staff to 
enable the Executive Director to fulfill the duties of the position, 
effective March 1, 2016 (42 U.S.C. 4370m-1(d)). GSA's membership in the 
Permitting Council and its role in providing administrative support to 
the Permitting Council establish the basis for GSA to assist the FPISC 
with this proposal (The term ``we'' as used in this document refers to 
the Permitting Council).
    To become a new covered project under FAST-41, the project sponsor 
must submit a complete FAST-41 initiation notice (FIN) and send it to 
the facilitating agency, as designated in the OMB and CEQ Guidance to 
Federal Agencies Regarding the Environmental Review and Authorization 
Process for Infrastructure Projects (FAST-41 Implementation Guidance, 
published January 13, 2017) at https://www.permits.performance.gov/tools/fast-41-implementation-guidance, and the Executive Director. 
However, project sponsors have the option to engage and consult with 
potential lead, participating, and cooperating agencies (as defined in 
42 U.S.C. 4370m) early in the project lifecycle, before they submit a 
FIN. FPISC-OED facilitates many of these consultations and discusses 
with the project sponsor the various considerations that project 
sponsors may take into account when determining whether and when to 
submit a FIN. For example, FPISC-OED will ensure the project sponsor 
knows who the facilitating agency would be for the project, the best 
approach in moving forward if there is a formalized pre-application 
process already in place, and an understanding of eligibility under 
FAST-41. For additional information on the requirements for a project 
to become covered under FAST-41 and the coordination recommended for 
project sponsors interested in submitting a FIN, see the FAST-41 
Implementation Guidance.
    If a FIN is approved and the project becomes a covered project 
under FAST-41, FPISC-OED supports the relevant Federal agencies and 
project sponsor during the Federal environmental review and 
authorization process. This support can include managing the integrity 
and content of data on the publicly-available Permitting Dashboard 
regarding schedules for the specific permits during the permitting 
process, verifying the accuracy of the data on a routine basis, 
assessing and determining the viability of modifications to schedules 
after they are posted on the Permitting Dashboard, and handling 
disputes between Federal agencies or between a project sponsor and a 
Federal agency related to the schedules (42 U.S.C. 4370m-2(c)(2)). In 
addition, FPISC-OED facilitates regularly scheduled Permitting Council 
meetings, consultations with the Department of Transportation (DOT) on 
Permitting Dashboard management, and meetings with project sponsors 
regarding project status and any updates related to agency 
coordination.
    The duties of the Executive Director include, but are not limited 
to:
     Developing, in consultation with the Permitting Council, 
``recommended performance schedules, including intermediate and final 
completion dates, for environmental reviews and authorizations most 
commonly required for each category of covered projects'' (42 U.S.C. 
4370m-1(c)(1)(C));
     Recommending, in consultation with the Permitting Council, 
to the Director of OMB or to CEQ, guidance for agencies to carry out 
the responsibilities of FAST-41(42 U.S.C. 4370m-1(c)(1)(D));
     Coordinating with the Permitting Council to issue yearly 
recommendations on best practices for the categories outlined in 42 
U.S.C. 4370m-1(c)(2)(B);
     Coordinating with the Permitting Council to meet annually 
with groups or individuals representing State, tribal, and local 
governments that are engaged in the infrastructure permitting process 
(42 U.S.C. 4370m-1(c)(2)(C));
     Reviewing and approving any modifications of more than 30 
days to the permitting schedule of covered projects to prevent undue 
delays and ensure a realistic and concurred-upon schedule has been 
developed, upon which all parties will act moving forward (42 U.S.C. 
4370m-2(c)(2)(D)(i)(III)); and
     Mediating disputes between project sponsors and relevant 
agencies related to the permitting timetable. If no conclusions are 
made after a total of 60 days, the Office of Management and Budget will 
make a final decision (42 U.S.C. 4370m-2(c)(2)(C).

This document proposes to establish a required initiation fee for 
project sponsors to reimburse FPISC-OED for reasonable costs to 
implement the requirements and authorities mentioned above under FAST-
41 and costs of operating FPISC-OED. The fee is necessary because as an 
oversight council, FPISC-OED is responsible for implementing the 
provisions of FAST-41 by facilitating and institutionalizing the 
transparency, accountability, and coordination among Federal agencies 
related to the Federal environmental review and authorization process. 
The fee allows FPISC-OED to carry out its obligations to improve the 
infrastructure permitting process.

II. Authority

    Pursuant to 42 U.S.C. 4370m-8(a), the heads of Permitting Council 
agencies, with the guidance of the Director of OMB and in consultation 
with the Executive Director, may issue regulations establishing a fee 
structure to recover, from project sponsors, reasonable costs incurred 
in conducting environmental reviews and authorizations for 
infrastructure projects covered by FAST-41. Reasonable costs include 
costs to implement the requirements and authorities of 42 U.S.C. 4370m-
1 and 4370m-2, including (1) the costs to agencies and (2) the costs of 
operating the Council (42 U.S.C. 4370m-8(b)), which includes FPISC-OED.

III. Discussion

A. Proposed Regulations

i. Sec.  1900.1 Purpose and Scope
    FAST-41 established a new governance structure, set of procedures, 
and authorities to improve the timeliness, predictability, and 
transparency of the Federal environmental review and authorization 
process for covered infrastructure projects. Section 1900.1 of this 
proposed

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regulation would restate the statutory requirement and introduce the 
purpose of the proposed requirements. Section 1900.1 also would set the 
rule's effective date (i.e., the date on which project sponsors would 
have to comply with the rule).
    We propose the effective date to be one day following publication 
of a final rule because we estimate that project sponsors will take 
only 2.5 hours to familiarize themselves with the rule, complete the 
FIN, and ensure that their accounting system(s) can transfer the 
appropriate initiation fee with the FIN. FAST-41 was signed into law in 
December 2015; since then, seven projects have submitted FINs and gone 
through the process of becoming covered projects. We request comment on 
the effective date of the proposed rule and whether the proposed 
effective date would provide project sponsors sufficient time to 
adequately comply with the regulations.
ii. Sec.  1900.2 Definitions
    Section 1900.2 would define key terms used throughout the proposed 
regulations, many of which were derived from FAST-41, with 
modifications where further clarification was needed. We propose to 
adopt the same definition of the following terms as they are defined in 
42 U.S.C. 4370m: ``Agency,'' ``Covered project,'' ``Executive 
Director,'' ``Facilitating agency,'' ``Lead agency,'' ``NEPA,'' and 
``Project sponsor.'' In addition, we propose to add the following terms 
that have not been defined in FAST-41 to provide clarity for the 
regulations:
    (a) Business day. We propose that the term ``business day'' means 
Monday through Friday and excludes Federal legal holidays.
    (b) Environmental Review Improvement Fund. We propose that the term 
``Environmental Review Improvement Fund'' refers to the fund described 
in 42 U.S.C. 4370m-8(d) which must be established in the Treasury of 
the United States to deposit any fees collected. The amounts available 
in the Environmental Review and Improvement Fund shall be available to 
the Executive Director, without appropriation or fiscal year 
limitation, solely for the purposes of administering, implementing, and 
enforcing FAST-41, including the expenses of the Council;
    (c) FAST-41. We propose to define the term ``FAST-41'' to mean 
Title 41 of the Fixing America's Surface Transportation Act (Pub. L. 
114-94, 41001 et seq. (Dec. 4, 2015) (codified at 42 U.S.C. 4370m et 
seq.)) which is the basis for this proposed regulation;
    (d) FAST-41 initiation notice (FIN). We propose to define the term 
``FAST-41 initiation notice,'' which is not defined in Title 42 of the 
United States Code, as a FAST-41 initiation notice of a proposed 
covered project that a project sponsor submits to FPISC-OED and the 
facilitating agency;
    (e) FPISC-OED. We propose to define the term ``FPISC-OED,'' which 
is not defined in Title 42 of the United States Code, as the Federal 
Permitting Improvement Steering Council-Office of Executive Director 
that supports the Federal Permitting Improvement Steering Council in 
implementing the provisions of FAST-41;
    (f) Indian tribe. We propose to define the term ``Indian tribe,'' 
which is not defined in Title 42 of the United States Code, as any 
Indian tribe, band, nation, or other organized group or community, 
including any Alaskan Native village or regional or village corporation 
as defined in or established pursuant to the Alaska Native Claims 
Settlement Act (43 U.S.C. 1601 et seq.), that is recognized as eligible 
for the special programs and services provided by the United States to 
Indians because of their status as Indians.
    (g) Initiation Fee. We propose to define the term ``initiation 
fee,'' which is not defined in Title 42 of the United States Code, as a 
non-refundable payment submitted by a project sponsor. The proposed 
rule provides more detail on the initiation fee amount and how it will 
be assessed.
iii. Sec.  1900.3 FAST-41 Initiation Fee
    In proposed section 1900.3(a), we propose an initiation fee of 
$200,000 per FIN submitted for each project by a project sponsor of a 
proposed covered project. An explanation of how this amount was 
determined is discussed in section B.iii of this proposed rule. The 
initiation fee would be due in two parts--$5,000 would be due at the 
time the project sponsor submits the FIN and $195,000 would be due 
within 10 business days of a determination that the project is a 
covered project for purposes of FAST-41. The $5,000 non-refundable 
portion was determined through analysis of FPISC-OED's costs incurred 
on pre-coordination with project sponsors, pre-coordination with lead 
and cooperating agencies, and FIN review. If the project is determined 
not to be a covered project, the $5,000 portion of the initiation fee 
would not be refunded and the $195,000 would not be assessed. We 
determined that 10 business days was an appropriate balance of 
providing sponsors with sufficient time to prepare the necessary funds 
and wanting to start providing FPISC-OED services as soon as possible. 
That being said, we solicit public comment on whether we should 
consider a different period of time.
    In the future, we may need to adjust the amount of the initiation 
fee based on changes to program costs and the number of new FINs 
received. Section 1900.3(b) sets out the mechanism by which the 
Permitting Council would be able to change the fee. The fee being set 
in this regulation is based, in part, on the fact that in fiscal year 
(FY) 2017 FPISC-OED supported 35 covered projects. In the next few 
years, FPISC-OED anticipates additional projects becoming covered at 
the beginning of or in the early stages of project implementation. As a 
result, more coordination may be necessary between FPISC-OED, the 
Permitting Council agencies, and project sponsors. In addition, FPISC-
OED's costs are anticipated to increase based on the number of projects 
that are accepted as covered projects as a greater number of projects 
will require additional staff for support. If necessary, FPISC-OED 
would adjust the fee by developing an average hourly rate for 
government staff using the number of full time employees multiplied by 
the salary of each employee (based on the General Schedule 
classification and pay system), which also includes overhead and 
operational costs. For contractor support costs, FPISC-OED would use 
total contract costs divided by full time employees to develop an 
average hourly rate that also includes salary, overhead, and 
operational costs. A change in the initiation fee would not change the 
non-refundable portion of the fee, only the portion due at the time the 
project was determined to be a covered project under FAST-41. The 
regulation would require FPISC to publish the new amount of the 
initiation fee in the Federal Register before it can take effect. We 
seek comment on the methodology for calculating the new initiation fee 
and whether changes to the initiation fee should be made through 
notification in the Federal Register or whether we should take comment 
before a revised initiation fee takes effect.
    In proposed section 1900.3(c), any Indian tribe proposing covered 
projects on trust property are exempted from paying the initiation fee. 
This is consistent with the trust relationship as well as the 
government-to-government relationship between the Federal Government 
and federally-recognized Indian tribes, and will enable FPISC-OED to 
provide services, without

[[Page 44849]]

additional cost to tribal governments, in order to protect trust assets 
held for the benefit of Indian tribes.
    In addition to Indian tribes, the fee structure allows the 
Permitting Council to exempt other parties for which the fee would 
impose an undue financial burden or is otherwise determined to be 
inappropriate. Therefore, on a case-by-case basis, FPISC-OED would 
grant exemptions, in whole or in part, to project sponsors 
demonstrating that the fee would impose undue financial burden or was 
otherwise inappropriate. A petition for an exemption would require 
sufficient supporting evidence to demonstrate that the fee would be 
economically burdensome or inappropriate. FPISC-OED would consider the 
following factors in making an exemption determination:
    (a) The nature and cost of the infrastructure project;
    (b) The financial impact of the fee on the project sponsor;
    (c) The financial resources of the project sponsor; and
    (d) The type of operations of the project sponsor.
    In proposed section 1900.3(d), the Executive Director would review 
a project sponsor's petition for an exemption and based on the factors 
listed above and would either approve or deny the petition for 
exemption. We are proposing the Executive Director have 30 days to 
review the petition for exemption and make a written determination. 
Once a determination is made, the Executive Director will transmit the 
written determination, including a statement of reasons, to the project 
sponsor. This proposal solicits public comment on the specific 
exemptions it is proposing and on the conditions by which it would 
review such exemptions.
    In proposed section 1900.3(e), as allowed by FAST-41, the 
initiation fee would be used by FPISC-OED to cover its costs in 
implementing the requirements and authorities of 42 U.S.C. 4370m-1 and 
4370m-2 and the operational costs of FPISC-OED (42 U.S.C. 4370m-8(a)). 
For example, activities undertaken by FPISC-OED that may be covered by 
the initiation fee could include, without being limited to, pre-
coordination with project sponsors; pre-coordination with lead and 
cooperating agencies; FIN review; maintenance and enhancements of the 
Permitting Dashboard including operations, security, and the 
development and provision of training; outreach to stakeholders through 
conferences and meetings; producing handouts, flyers, and information 
materials for project sponsors related to FAST-41; developing 
recommended performance schedules including intermediate and final 
completion dates for environmental reviews and authorizations; 
assisting with development of coordinated project plans (CPPs); 
reviewing and approving any modifications of more than 30 days to the 
permitting schedule of covered projects; mediating disputes between 
projects sponsors and relevant agencies related to the permitting 
timetable; assessing Permitting Council agency updates to the CPPs and 
Permitting Dashboard; tracking compliance with permitting timetable 
dates; writing reports and implementation guidance; writing standard 
operating procedures; and conducting Permitting Council, Chief 
Environmental Review and Permitting Officer (CERPO), and Permitting 
Council Working Group meetings. The initiation fee would also cover 
FPISC-OED's costs of operations including, but not limited to, staffing 
and personnel, office space and equipment, and program support 
contracts. The proposed initiation fee would have no impact on fee 
requirements of other Federal agencies under their existing processes 
and is not intended to be allotted to Permitting Council agencies to 
facilitate their reviews and/or participation in the FAST-41 process.
    In proposed section 1900.3(f), we would ensure that all initiation 
fees collected were deposited into the Environmental Review and 
Improvement Fund as required by FAST-41 (42 U.S.C. 4370m-8(d)(1)). 
Amounts collected under the initiation fee final rule would be 
available to the Permitting Council Executive Director, without 
appropriation or fiscal year limitation, for the purpose of 
administering FAST-41 and operating the FPISC-OED (42 U.S.C. 4370m-
8(d)(2)). The use of funds accepted under this fee structure shall not 
impact impartial decision-making with respect to environmental reviews 
or authorizations, either substantively or procedurally, because FPISC-
OED does not have any authority in the decision-making with respect to 
environmental reviews and authorizations (42 U.S.C. 4370m-8(e)). FPISC-
OED ensures enhanced coordination, visibility, predictability, and 
accountability in the environmental review and authorization process. 
The outcome of the environmental review and authorization process 
remains with the lead, cooperating, and participating agencies, as 
applicable, that conduct and issue environmental reviews and 
authorizations.

B. Economic Impacts

i. Benefits of the Initiation Fee to Project Sponsors of Covered 
Projects
    In considering the potential impacts of the proposed rule, we 
anticipate that there will be no change in potential benefits 
associated with this rule. Benefits are not quantified in this 
analysis. However, the proposed rule is associated with benefits in 
that it allows for the continuation of the FPISC-OED's services. An 
initiation fee is necessary because as an oversight council, FPISC-OED 
is responsible for implementing the provisions of FAST-41 by 
facilitating and institutionalizing the transparency, accountability, 
and coordination among Federal agencies related to the Federal 
environmental review and authorization process. The fee allows FPISC-
OED to carry out its obligations to improve the infrastructure 
permitting process. Specifically, an initiation fee would allow FPISC 
to continue to produce the following benefits for projects covered 
under FAST-41:
     Enhanced coordination: When a proposed project becomes a 
covered project under FAST-41, the lead or facilitating agency, as 
applicable, must identify all agencies and governmental entities likely 
to have financing, environmental reviews, authorizations, or other 
responsibilities with respect to the covered project, and invite all 
Federal agencies to become participating or cooperating agencies (42 
U.S.C. 4370m-2(a)(2)(A)(ii)). The lead or facilitating agency, as 
applicable, in consultation with each coordinating and participating 
agency, shall establish a project-specific CPP for coordinating public 
and agency participation in, and completion of, any required Federal 
environmental review and authorization for the project (42 U.S.C. 
4370m-2(c)(1)(A)). Advanced coordination has been known to help improve 
the efficiency of reviews by allowing early communication of project 
goals and discussion of potential alternatives with permitting agencies 
and stakeholders which can lead to environmental reviews and 
authorizations being completed earlier by identifying and addressing 
potential causes of delay earlier in the process.
     Enhanced visibility and predictability: The lead agency, 
within a CPP, will develop a permitting timetable for each covered 
project, which establishes scheduled dates for all required Federal 
environmental reviews and authorizations (as well as for State permits 
and environmental reviews when the State elects to participate in the 
FAST-41 process) based on project-

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specific factors, statutory and regulatory requirements, and historical 
timeframes for the activities. Scheduled and actual timeframes for 
government processes will be publicly displayed and tracked on the 
online Permitting Dashboard. If an environmental review or 
authorization is delayed, the lead, cooperating, or participating 
agency is required to update the schedule at least 30 days before the 
currently reported completion date and the agency will not be allowed 
to extend the final completion date by more than 30 days without 
consulting with the project sponsor. The enhanced visibility and 
predictability leads to greater accountability by Federal agencies. As 
discussed in the FAST-41 Implementation Guidance, environmental review 
and authorization schedules for independent regulatory commissions are 
not subject to review and oversight by project sponsors or other 
government offices.
     Enhanced accountability: Covered projects benefit from 
high-level oversight on the permitting process from the Executive 
Director to ensure that Federal agencies follow FAST-41 processes and 
adhere to established timeframes. If the lead, participating, or 
cooperating agencies delay the permitting process by more than 150 
percent of the original schedule, it must be reported to Congress (42 
U.S.C. 4370m-2(c)(2)(D)(iii)).
     Enhanced public participation: Specific timeframes have 
been developed for certain public participation activities, including 
early coordination for collection of key concerns, public involvement 
in the development of reasonable alternatives, and public comment 
periods on draft Environmental Impact Statements (EISs). For example, 
the lead agency must establish a comment period for draft EISs to be 
between 45 days and 60 days unless the lead agency, project sponsor, 
and any cooperating agency agree to a longer deadline or the lead 
agency, in consultation with each cooperating agency, extends the 
deadline for good cause (42 U.S.C. 4370m-4(d)(1)).
     Enhanced legal protections: The statute of limitations to 
challenge any Federal authorizations for covered projects is reduced 
from 6 years to 2 years from the date the authorization is issued by 
the agency, and future claims pertaining to a Federal environmental 
review may be brought only if the commenter filed a sufficiently 
detailed comment and put the lead agency on notice of the issue during 
the environmental review process. Persons who did not submit comments 
on the environmental review would not have any standing to challenge 
the authorization for a covered project (42 U.S.C. 4370m-6(a)).
ii. Costs of the Initiation Fee to Project Sponsors of Covered Projects
    We evaluated potential costs and transfer provisions associated 
with this rulemaking. Cost provisions include consideration of time 
associated with rule familiarization for stakeholders and time required 
to complete the FIN. We concluded that the proposed rule would result 
in a 10-year total cost of $20,637 undiscounted, $18,290 discounted at 
3 percent, and $15,847 discounted at 7 percent. The transfer provision 
accounts for the non-refundable portion of the initiation fee for all 
FINs as well as the additional fee required from successful project 
sponsors. We determined that over a 10-year period, the proposed rule 
would transfer funds from project sponsors to FPISC totaling 
$78,692,000 undiscounted, $67,963,353 discounted at 3 percent, and 
$56,794,754 discounted at 7 percent. The costs of the fee are described 
in greater detail in section IV.A.ii below.
iii. Determination of Amount of Initiation Fee
    The initiation fee amount was determined based on an analysis of 
current and projected FPISC-OED expenditures, a review of the existing 
portfolio of covered projects, and estimates of the number of new 
covered projects that will be added in future years. In FY 2017, FPISC-
OED had expenditures of approximately $4.75 million and supported 35 
projects on the Permitting Dashboard. Of those 35 covered projects, 25 
were still in progress while 10 were listed as ``Complete'' at the end 
of FY 2017. Based on this data, we estimate the FY 2017 cost per FAST-
41 covered project was approximately $190,000 ($4.75M/25 covered 
projects still in progress).
    It is important to note that most of the initial set of 35 covered 
projects were existing projects that were already far along in the 
environmental review and authorization process when FAST-41 was 
enacted. As new projects are added, we anticipate additional support 
and coordination will be needed for newly designated covered projects 
that are in the early stages of development or the environmental review 
and authorization process. This enhanced level of support includes 
early coordination and stakeholder outreach, assisting in the 
development of CPPs and permitting timetables for the entire permitting 
process, consulting and facilitating throughout the Federal 
environmental review and authorization process, and monitoring and 
assessing Federal agency performance in meeting Federal permitting 
timetable goals. We estimated that the proposed $200,000 initiation fee 
per project for project sponsors is sufficient for FPISC-OED to fully 
carry out its responsibilities under FAST-41, including the additional 
level of support and coordination needed for newly designated covered 
projects.
    At the beginning of FY 2018, FPISC-OED was overseeing 37 covered 
projects. Based on estimates of the number of projects that would be 
completed each year and the number of new covered projects each year, 
we estimate that FPISC-OED will support 24 new covered projects in FY 
2019; 26 new covered projects in FY 2020; 33 new covered projects in FY 
2021; 41 new covered projects in FY 2022; and 48 new covered projects 
each year in FY 2023-2028. Therefore, the annual fee collected would 
range from $4.80 million in FY 2019 to $9.60 million by FY 2023. This 
estimate comes from the anticipated increase in visibility of the 
program from projects successfully going through the FAST-41 process. 
In addition, we anticipate that by FY 2023 the number of new projects 
will stay steady at 48 new projects a year because there are a limited 
number of projects in the country that would be eligible to be covered 
under FAST-41. Furthermore, FPISC-OED anticipates not all eligible 
projects will apply to become covered projects.
    The analysis assumes a 5 percent charge to provide a reserve fund 
for the program. OMB established Circular A-25 (User Charges), which 
promulgated Federal policy regarding the self-sufficiency of all 
projects.\1\ A central goal of OMB Circular A-25 guidelines is to 
efficiently allocate government resources by at least fully recouping 
all costs associated with providing the good or service. OMB Circular 
A-25 guidelines state that all recipients of special benefits from 
Federal activities will be assessed a fee for services beyond those 
received by the general public. If existing laws restrict such a fee, 
agencies will review activities periodically and recommend legislative 
changes as appropriate. User fees will be collected in advance or at 
the time of the provision of service. When possible, agencies should 
set charges as rates rather than fixed amounts. Both direct and 
indirect costs will be included in

[[Page 44851]]

the calculation of total costs, including salaries and fringe benefits, 
travel, general overhead, consulting fees, and insurance, among other 
cost elements.
---------------------------------------------------------------------------

    \1\ The guidelines were issued under the authority granted by 
Title V of the Independent Offices Appropriations Act of 1952 (31 
U.S.C. 1111) and Executive Orders No. 8248 and 11541. Available at 
https://www.whitehouse.gov/wp-content/uploads/2017/11/Circular-025.pdf.
---------------------------------------------------------------------------

    Public demand for such services varies from year to year. This 
variation creates challenges because agencies seek to recover the costs 
of managing programs and the associated services provided to 
recipients. For this reason, many agencies maintain reserve funds to 
ensure that sufficient agency funding is available for the continued 
operation of the agency. In Federal User Fees: A Design Guide, the 
Government Accountability Office (GAO) recommended that maintaining 
reserve funds can help hedge against sudden or temporary fluctuations 
in demand and the corresponding costs of operations.\2\ As such, we 
included a reserve fund fee to provide program stability year to year.
---------------------------------------------------------------------------

    \2\ Federal User Fees: A Design Guide, GAO-08-386SP, May 2008. 
Available at: http://www.gao.gov/new.items/d08386sp.pdf.
---------------------------------------------------------------------------

    The proposed initiation fee would not apply to covered projects 
that were already identified under FAST-41 and posted to the Permitting 
Dashboard prior to the effective date of this rule. The effective date 
would be one day after publication of the final rule. We propose the 
effective date because it estimates that project sponsors would take 
only 2.5 hours to familiarize themselves with the rule, complete the 
FIN, and ensure that their accounting system(s) can transfer the 
appropriate initiation fee with the FIN. For FY 2019 and beyond, we may 
reassess the amount of the initiation fee based on early program 
implementation experience and the number of FINs submitted by project 
sponsors for proposed covered projects, and to adequately cover the 
reasonable costs of FPISC-OED.
    In addition, FAST-41 places a limit on the fee structure that 
requires the fee to ``be established in a manner that ensures that the 
aggregate amount of fees collected for a fiscal year is estimated not 
to exceed 20 percent of the total estimated costs for the fiscal year 
for the resources allocated for the conduct of environmental reviews 
and authorizations covered by this subchapter, as determined by the 
Director of the Office of Management and Budget'' (42 U.S.C. 4370m-
8(c)(3)). Therefore, the total estimated costs for the fiscal year for 
the conduct of environmental reviews and authorizations covered by the 
subchapter was calculated by adding the cost for all environmental 
reviews under the National Environmental Policy Act (NEPA), all 
authorizations \3\ for projects that likely would have been covered 
under FAST-41, and FPISC-OED costs. Based on CEQ estimates on the 
average costs of completing EISs ($250,000 to $2 million) and the 
number of final EISs (FEISs) that were published (162), the cost for 
environmental reviews under NEPA was estimated to be approximately 
$182.25 million in FY 2014.\4\
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    \3\ As defined in 42 U.S.C. 4370m(3) authorizations ``means any 
license, permit, approval, finding, determination, or other 
administrative decision issued by an agency that is required or 
authorized under Federal law in order to site, construct, 
reconstruct, or commence operations of a covered project 
administered by a Federal agency or, in the case of a State that 
chooses to participate in the environmental review and authorization 
process in accordance with [42 U.S.C. 4370m-2(c)(3)(A)], a State 
agency.''
    \4\ The NEPA Task Force Report to Council on Environmental 
Quality: Modernizing NEPA Implementation (Sept. 2003) at pp. 65-66.
---------------------------------------------------------------------------

     Environmental reviews costs (low range): Number of FEISs 
Published in FY 2014 * Low Range for Average Cost of EIS = 162 * 
$250,000 = $40.5 million
     Environmental reviews costs (high range): Number of FEISs 
Published in FY 2014 * High Range for Average Cost of EIS = 162 * $2 
million = $324 million
     Average cost: (High range + Low rage)/2 = ($40.5 million + 
$324 million)/2 = $182.25 million
    The data for the cost of authorizations for covered projects under 
FAST-41 is derived from an OMB data call to the Department of 
Agriculture, the Department of Commerce, the Department of Defense, the 
Department of Energy, the Department of Homeland Security, the 
Department of Housing and Urban Development, the Department of the 
Interior, the Department of Transportation, the Environmental 
Protection Agency, the Advisory Council on Historic Preservation, and 
the U.S. Army Corps of Engineers on August 19, 2014 regarding agencies' 
budgets for infrastructure permitting and review and other existing 
agency authorities for financing infrastructure permitting activities. 
The data collected from agencies is current as of August 17, 2015. The 
average cost in FY 2014 for authorizations for projects that likely 
would have been covered under FAST-41 was estimated to be approximately 
$106.33 million. In addition, the costs for FPISC-OED in FY 2017 were 
$4.75 million. FY 2017 numbers were used to estimate FPISC-OED costs 
since the office was not in existence in FY 2014. Therefore, the 
aggregate amount of fees collected for a fiscal year could not exceed 
$58.67 million (20 percent of $293.33 million). We estimate that FPISC-
OED will have 24 new projects in FY 2019 and by FY 2023 there will be 
48 new projects. Therefore, in FY 2019 the aggregate amount of fees 
collected by FPISC-OED would be $4.80 million ($200,000 * 24 new 
projects) and by FY 2023 the aggregate amount of fees collected by 
FPISC-OED would be $9.60 million ($200,000 * 48 new projects). Thus, 
the aggregate amount of fees would be far less than the 20 percent 
limit of $58.67 million. We request comments on the calculation of the 
proposed initiation fee and proposed calculation of future initiation 
fees.

C. Issues on Which the Permitting Council Seeks Comment

    Although we welcome comment on any aspect of this proposal, FPISC 
is particularly interested in receiving comments and views of 
interested parties concerning the following issues:
    1. Initiation Fee Non-Refundable and Due in Two Parts: The proposal 
to have the initiation fee be non-refundable and paid in two parts--
$5,000 of the fee at the time the project sponsor submits the FIN, and 
then $195,000 within 10 business days of the Federal facilitating or 
lead agency's determination, the Executive Director's final 
determination, or the Council's opinion that the project is a covered 
project under FAST-41.
    2. Calculation of Initiation Fee: The methodology and assumptions 
of the calculation of the initiation fee as discussed in III.B.iii.
    3. Exclusions: The exclusions to the initiation fee as discussed in 
section III.A.iii.

D. Public Participation

    We will accept comments, data, and information regarding this 
proposed rule no later than the date provided in the DATES section. 
Interested parties may submit comments using any of the methods 
described in the ADDRESSES section.
    1. Submitting Comments via Regulations.gov: The regulations.gov web 
page will require you to provide your name and contact information. 
Your contact information will be viewable to FPISC-OED and GSA staff 
only. Your contact information will not be publicly viewable except for 
your first and last names, organization name (if any), and submitter 
representative name (if any). If your comment is not processed properly 
because of technical difficulties, FPISC-OED and GSA will use this 
information to contact you. If FPISC-OED and GSA cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification,

[[Page 44852]]

we may not be able to consider your comment.
    However, your contact information will be publicly viewable if you 
include it in the comment or in any documents attached to your comment. 
Any information that you do not want to be publicly viewable should not 
be included in your comment, nor in any document attached to your 
comment. Persons viewing comments will see only first and last names, 
organization names, correspondence containing comments, and any 
documents submitted with the comments.
    Do not submit to regulations.gov information for which disclosure 
is restricted by statute, such as trade secrets and commercial or 
financial information (hereinafter referred to as Confidential Business 
Information (CBI)). Comments submitted through regulations.gov cannot 
be claimed as CBI. Comments received through the website will waive any 
CBI claims for the information submitted. For information on submitting 
CBI, see the Confidential Business Information section below.
    FPISC-OED and GSA processes submissions made through 
regulations.gov before posting. Normally, comments will be posted 
within a few days of being submitted. However, if large volumes of 
comments are being processed simultaneously, your comment may not be 
viewable for up to several weeks. Please keep the comment tracking 
number that regulations.gov provides after you have successfully 
uploaded your comment.
    2. Submitting Comments via Email or Mail: Comments and documents 
submitted via email, hand delivery, or mail also will be posted to 
regulations.gov. If you do not want your personal contact information 
to be publicly viewable, do not include it in your comment or any 
accompanying documents. Instead, provide your contact information on a 
cover letter. Include your first and last names, email address, 
telephone number, and optional mailing address. The cover letter will 
not be publicly viewable as long as it does not include any comments.
    Include contact information each time you submit comments, data, 
documents, and other information to FPISC-OED and GSA. Email 
submissions are preferred. If you submit via mail or hand delivery, 
please provide all items on a CD, if feasible. It is not necessary to 
submit printed copies. No facsimiles (faxes) will be accepted.
    Comments, data, and other information submitted electronically 
should be provided in PDF (preferred), Microsoft Word, or Excel file 
format. Provide documents that are not secured, written in English, and 
are free of any defects or viruses. Documents should not contain 
special characters or any form of encryption and, if possible, they 
should carry the electronic signature of the author.
    (a) Campaign Form Letters: Please submit campaign form letters by 
the originating organization in batches of between 50 to 500 form 
letters per PDF or as one form letter with a list of supporters' names 
compiled into one or more PDFs. This reduces comment processing and 
posting time.
    (b) Confidential Business Information: Any person submitting 
information that he or she believes to be confidential and exempt by 
law from public disclosure should submit via email, postal mail, or 
hand delivery two well-marked copies: one copy of the document marked 
confidential including all the information believed to be confidential, 
and one copy of the document marked non-confidential with the 
information believed to be confidential deleted. Submit these documents 
via email or on a CD, if feasible. We will make our own determination 
about the confidential status of the information and treat it according 
to its determination.
    Factors of interest to us when evaluating requests to treat 
submitted information as confidential include: (1) A description of the 
items, (2) whether and why such items are customarily treated as 
confidential within the industry, (3) whether the information is 
generally known by or available from other sources, (4) whether the 
information has previously been made available to others without 
obligation concerning its confidentiality, (5) an explanation of the 
competitive injury to the submitting person which would result from 
public disclosure, (6) when such information might lose its 
confidential character due to the passage of time, and (7) why 
disclosure of the information would be contrary to the public interest.
    It is our policy that all comments may be included in the public 
docket, without change and as received, including any personal 
information provided in the comments (except information deemed to be 
exempt from public disclosure).

E. Docket

    The docket is available for review at http://www.regulations.gov 
and includes Federal Register notices, public comments, and other 
supporting documents and materials. All documents in the docket are 
listed in the regulations.gov index. However, not all documents listed 
in the index may be publicly available, such as information that is 
exempt from public disclosure. A link to the docket web page can be 
found at: https://www.permits.performance.gov/tools/notice-proposed-rule-making-permitting-council-fast-41-initiation-user-fee. This web 
page contains a link to the docket for this proposed rule on the 
regulations.gov site. The regulations.gov web page also contains 
instructions on how to access all documents, including public comments, 
in the docket.

IV. Regulatory Review

A. Executive Order 12866: Regulatory Planning and Review, and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This rule is a ``significant regulatory action'' under Executive 
Order 12866 so it was submitted to OMB for review.
    We evaluated the potential costs and benefits that could result 
from this rulemaking. As presented in Table 1, we estimate that the 
proposed rule would result in a 10-year total cost of $20,637 
undiscounted, $18,290 discounted at 3 percent, and $15,847 discounted 
at 7 percent. On an annualized basis, the proposed rule would result in 
a cost of $2,064 undiscounted, $2,144 discounted at 3 percent, and 
$2,256 discounted at 7 percent. The transfer provision accounts for the 
non-refundable portion of the initiation fee for all FINs as well as 
the additional fee required from successful project sponsors. We 
determined that over a 10-year period, the proposed rule will tranfer 
funds from project sponsors to FPISC-OED totaling $78.692 million 
undiscounted, $67.963 million discounted at 3 percent, and $56.795 
million discounted at 7 percent. On an annualized basis, the transfer 
provision amounts to $7.869 million undiscounted, $7.967 million 
discounted at 3 percent, and $8.086 million discounted at 7 percent. 
Although we were unable to quantify benefits directly attributable to 
the fee, we do understand that there are significant benefits from 
FPISC-OED's services and the fee will allow the program to continue in 
future years. We invite comments from the public on how to estimate 
these benefits.
i. Scope and Key Inputs to the Analysis
    We estimated that rule familiarization would occur only during the 
first year of the analysis period and would require familiarization by 
a manager and by an environmental engineer. When determining the 
initiation fee, we assumed there would be 48 projects

[[Page 44853]]

whose sponsors would submit FINs each year. While we expect the program 
to reach this level over time, fewer than 48 FINs are expected for the 
first few years as the program ramps up and expands. For the purposes 
of this analysis, we estimate that 24 FINs will be received from 
project sponsors in FY 2019, 26 FINs will be received in FY 2020, 33 
FINs will be received in FY 2021, 41 FINs will be received in FY 2022, 
and 48 FINs will be received each year in FY 2023 through FY 2028.
    We evaluated changes in the opportunity cost of time for project 
sponsors and other stakeholders using wage rates to represent the value 
of managers' or engineers' time that, in the absence of the rule, would 
not have been spent on rule familiarization or completing FINs to 
gather fee amounts. This analysis uses wage rates for General and 
Operations Managers (occupation code 11-1021) in the Utilities sector 
(North American Industry Classification System code 22) as well as wage 
rates for Environmental Engineers (occupation code 17-2081) in the 
Utilities sector (NAICS code 22). The source for wages is the median 
hourly wage data (May 2016) from the U.S. Department of Labor (DOL), 
Bureau of Labor Statistics (BLS), Occupational Employment Statistics 
(OES).\5\ The BLS does not publish data on fringe benefits for specific 
occupations, but it does for the broad industry groups in its Employer 
Costs for Employee Compensation (ECEC) release. This analysis uses an 
hourly wage of $58.16 for managers and an hourly wage of $41.10 for 
environmental engineers. For private industry, benefits account for 
30.4 percent of employer costs,\6\ while the remaining 69.6 percent of 
employer costs are directed towards salary. Therefore, we applied a 
loaded wage rate factor of 1.44 to account for total costs to employers 
(inclusive of benefits) when calculating cost associated with rule 
familiarization and application completion (1.44 = 1 + 30.9/69.6).
---------------------------------------------------------------------------

    \5\ U.S. Department of Labor (DOL), Bureau of Labor Statistics 
(BLS). Occupational Employment Statistics (OES). National Industry-
Specific Occupational Employment and Wage Estimates. May 2016. 
Available at: https://www.bls.gov/oes/current/naics2_22.htm#11-0000 
(accessed February 8, 2018).
    \6\ U.S. Department of Labor, Bureau of Labor Statistics (BLS). 
Employer Costs for Employee Compensation--September 2017. December 
15, 2017. https://www.bls.gov/news.release/pdf/ecec.pdf (accessed 
February 16, 2018).
---------------------------------------------------------------------------

ii. Costs
    Rule familiarization is expected to require one hour of a manager's 
time and one hour of an environmental engineer's time for each project 
sponsor or other interested stakeholder. Because 24 FINs are expected 
in FY 2019, and because rule familiarization only takes place in FY 
2019, the proposed rule will require a total of 24 hours of managers' 
time and 24 hours of environmental engineers' time at the appropriate 
wage rates (as discussed in the ``Scope and Key Inputs to the 
Analysis'' section of this proposed rule). Therefore, over the 10-year 
analysis period, the only costs associated with rule familiarization 
occur in FY 2019 and amount to $3,423 (24 projects x (1 hour of time 
required for manager's familiarization x $58.16 wage for manager x 1.44 
loaded wage rate factor) + (1 hour of time required for environmental 
engineer's familiarization x $41.10 wage for environmental engineer x 
1.44 loaded wage rate factor)).
    There are also costs associated with the additional time required 
for project sponsors to complete the FIN as a result of the changes 
introduced by this proposed rule, namely gathering an initiation fee. 
We estimate that program sponsors in each year will require 0.5 hours 
of a manager's time at the appropriate wage rate (as discussed in the 
``Scope and Key Inputs to the Analysis'' section of this proposed rule) 
as a result of the new FIN elements. We expect the number of FINs to 
reach 48 by FY 2023, but expect fewer than 48 FINs each year between FY 
2019 and FY 2022. The 10-year total undiscounted cost of time 
associated with FIN completion is $17,214. This is calculated by 
multiplying the 0.5 hours of managers' time by the associated wage rate 
(including accounting for the loaded wage rate factor) to get $41.78 (= 
0.5 x 1.44 x $58.16), then multiplying this amount by the number of 
FINs expected in each year. For the purposes of this analysis, we 
estimate that 24 FINs will be received from project sponsors in FY 
2019, 26 FINs will be received in FY2020, 33 FINs will be received in 
FY 2021, 41 FINs will be received in FY 2022, and 48 FINs will be 
received each year in FY 2023 through FY 2028. The total cost across 
all years is $17,214.
    Table 1 of this proposed rule shows the combined costs of rule 
familiarization and FIN completion. As presented in Table 1, the 
proposed rule would result in a 10-year total cost of $20,637 
undiscounted, $18,290 discounted at 3 percent, and $15,847 discounted 
at 7 percent. On an annualized basis, the proposed rule would result in 
an undiscounted cost of $2,064, $2,144 discounted at 3 percent, and 
$2,256 discounted at 7 percent. Rule famliarization costs are assumed 
to occur only in FY 2019, and therefore are not discounted at either 3 
percent or 7 percent. Costs associated with FIN completion occur each 
year and are discounted.

                            Table 1--Summary of the Total Costs of the Proposed Rule
                                                     [2016$]
----------------------------------------------------------------------------------------------------------------
                                                                                            Discounted
                                      Rule                          Total costs  -------------------------------
             Year                familiarization  FIN completion       \(a)\       Discounted at   Discounted at
                                                                                        3%              7%
----------------------------------------------------------------------------------------------------------------
2018..........................            $3,423          $1,003          $4,426          $4,426          $4,426
2019..........................               N/A           1,086           1,086           1,055           1,015
2020..........................               N/A           1,379           1,379           1,300           1,204
2021..........................               N/A           1,713           1,713           1,568           1,398
2022..........................               N/A           2,006           2,006           1,782           1,530
2023..........................               N/A           2,006           2,006           1,782           1,530
2024..........................               N/A           2,006           2,006           1,782           1,530
2025..........................               N/A           2,006           2,006           1,782           1,530
2026..........................               N/A           2,006           2,006           1,782           1,530
2027..........................               N/A           2,006           2,006           1,782           1,530
                               ---------------------------------------------------------------------------------
    Total.....................             3,423          17,214          20,637          18,290          15,847
Annualized....................  ................  ..............           2,064           2,144           2,256
----------------------------------------------------------------------------------------------------------------
Notes: \(a)\ Total cost values may not equal the sum of the components due to rounding.


[[Page 44854]]

iii. Benefits
    In considering the potential impacts of the proposed rule, we 
anticipate that there will be no change in potential benefits 
associated with this rule. Benefits are not quantified in this 
analysis. However, the proposed rule is associated with benefits in 
that it allows for the continuation of the FPISC-OED's services. An 
initiation fee is necessary because as an oversight council, FPISC-OED 
is responsible for implementing the provisions of FAST-41 by 
facilitating and institutionalizing the transparency, accountability, 
and coordination among Federal agencies related to the Federal 
environmental review and authorization process. The fee allows FPISC-
OED to carry out its obligations to improve the infrastructure 
permitting process. Specifically, an initiation fee would allow FPISC 
to continue to produce the following benefits for projects found to be 
``covered'' under FAST-41:
     Enhanced coordination: When a proposed project becomes a 
covered project under FAST-41, the lead or facilitating agency, as 
applicable, must identify all agencies and governmental entities likely 
to have financing, environmental reviews, authorizations, or other 
responsibilities with respect to the covered project, and invite all 
Federal agencies to become participating or cooperating agencies (42 
U.S.C. 4370m-2(a)(2)(A)(ii)). The lead or facilitating agency, as 
applicable, in consultation with each coordinating and participating 
agency, shall establish a project-specific CPP for coordinating public 
and agency participation in, and completion of, any required Federal 
environmental review and authorization for the project (42 U.S.C. 
4370m-2(c)(1)(A)). Advanced coordination has been known to help improve 
the efficiency of reviews by allowing early communication of project 
goals and discussion of potential alternatives with permitting agencies 
and stakeholders which can lead to environmental reviews and 
authorizations being completed earlier by identifying and addressing 
potential causes of delay earlier in the process.
     Enhanced visibility and predictability: The lead agency, 
within a CPP, will develop a permitting timetable for each covered 
project, which establishes scheduled dates for all required Federal 
environmental reviews and authorizations (as well as for State permits 
and environmental reviews when the State elects to participate in the 
FAST-41 process) based on project-specific factors, statutory and 
regulatory requirements, and historical timeframes for the activities. 
Scheduled and actual timeframes for government processes will be 
publicly displayed and tracked on the online Permitting Dashboard. If 
an environmental review or authorization is delayed, the lead, 
cooperating, or participating agency is required to update the schedule 
at least 30 days before the currently reported completion date and the 
agency will not be allowed to extend the final completion date by more 
than 30 days without consulting with the project sponsor. The enhanced 
visibility and predictability leads to greater accountability by 
Federal agencies. As discussed in the FAST-41 Implementation Guidance, 
environmental review and authorization schedules for independent 
regulatory commissions are not subject to review and oversight by 
project sponsors or other government offices.
     Enhanced accountability: Covered projects benefit from 
high-level oversight on the permitting process from the Executive 
Director to ensure that Federal agencies follow FAST-41 processes and 
adhere to established timeframes. If the lead, participating or 
cooperating agencies delay the permitting process by more than 150 
percent of the original schedule, it must be reported to Congress (42 
U.S.C. 4370m-2(c)(2)(D)(iii)).
     Enhanced public participation: Specific timeframes have 
been developed for certain public participation activities, including 
early coordination for collection of key concerns, public involvement 
in the development of reasonable alternatives, and public comment 
periods on draft EISs. For example, the lead agency must establish a 
comment period for draft EISs to be between 45 days and 60 days unless 
the lead agency, project sponsor, and any cooperating agency agree to a 
longer deadline or the lead agency, in consultation with each 
cooperating agency, extends the deadline for good cause (42 U.S.C. 
4370m-4(d)(i)).
     Enhanced legal protections: The statute of limitations to 
challenge any Federal authorizations for covered projects is reduced 
from 6 years to 2 years from the date the authorization is issued by 
the agency, and future claims pertaining to a Federal environmental 
review may be brought only if the commenter filed a sufficiently 
detailed comment and put the lead agency on notice of the issue during 
the environmental review process. Persons who did not submit comments 
on the environmental review would not have any standing to challenge 
the authorization for a covered project (42 U.S.C. 4370m-6(a)).

B. Paperwork Reduction Act

    This rulemaking does not include any information collection 
requirements subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 
3501 et seq.).

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires 
preparation of an initial regulatory flexibility analysis (IRFA) for 
any rule that by law must be proposed for public comment, unless the 
agency certifies that the rule, if promulgated, will not have a 
significant economic impact on a substantial number of small entities.
    This proposed rule establishes a user fee for voluntary use of 
Permitting Council services for the purposes of streamlining Federal 
environmental reviews and authorizations for covered infrastructure 
projects. Entities may still receive Federal environmental reviews and 
authorizations without the use of Permitting Council services.
    This proposed rule may affect up to several dozen entities at any 
given time. Based on the current list of 37 covered projects in NAICS 
codes 2211 (Electric power generation, transmission and distribution) 
and 2212 (Natural gas distribution), approximately one third count as 
small entities according to Small Business Administration (SBA) size 
standards. Therefore, this rule will have an impact on a substantial 
number of small entities. However, this rule will not have a 
significant economic impact on those entities. The costs of the rule 
occur across two categories (rule familiarization and application 
completion) and at most, have an impact of $185 per firm ($143 for rule 
familiarization and $42 for application completion). The standard 
threshold for a significant economic impact is considered 1 percent of 
a firm's revenue. Of the 37 current covered projects, no project 
sponsor has revenue less than $42 million.\7\ With rule costs of $185, 
these only account for less than 0.0004 percent of revenue (= 185/
42,000,000). Even when considering the fee amount of $200,000, the rule 
only accounts for 0.5 percent of revenue. No current or future entity 
in these NAICS codes likely has revenues such that this amount would 
constitute an undue burden and furthermore, participation in this 
program is voluntary and no firm is required to pay the fee discussed 
in this proposed rulemaking in order to receive a Federal environmental 
review or authorization (although other fees may apply based on 
specific

[[Page 44855]]

environmental review or authorization and agency requirements).
---------------------------------------------------------------------------

    \7\ Revenue estimates were gathered from publicly available 
revenue data or project sponsor annual reports.
---------------------------------------------------------------------------

    For the reasons stated above, we certify that this proposed rule, 
if promulgated, will not have a significant economic impact on a 
substantial number of small entities. Therefore, the Regulatory 
Flexibility Act, as amended, does not require us to prepare a 
regulatory flexibility analysis.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (URMA) 
requires each Federal agency to assess the effects of Federal 
regulatory actions on State, local, and Tribal governments and the 
private sector (Pub. L. 104-4, sec. 201 (codified at 2 U.S.C. 1531)). 
For a regulatory action likely to result in a rule that may cause the 
expenditure by State, local, and Tribal governments, in the aggregate, 
or by the private sector of $100 million or more in any one year 
(adjusted annually for inflation), section 202 of UMRA requires a 
Federal agency to publish a written statement that estimates the 
resulting costs, benefits, and other effects on the national economy (2 
U.S.C. 1532(a) and (b)). The UMRA also requires a Federal agency to 
develop an effective process to permit timely input by elected officers 
of State, local, and Tribal governments on a ``significant 
intergovernmental mandate,'' and requires an agency plan for giving 
notice and opportunity for timely input to potentially affected small 
governments before establishing any requirements that might 
significantly or uniquely affect small governments. This proposed rule 
does not contain a Federal intergovernmental or private sector mandate, 
as those terms are defined in UMRA.

E. Executive Order 13132: Federalism

    Executive Order 13132, ``Federalism,'' published at 64 FR 43255, on 
August 4, 1999, imposes certain requirements on agencies formulating 
and implementing policies and regulations that preempt State law or 
that have federalism implications. The Executive Order requires 
agencies to examine the constitutional and statutory authority 
supporting any action that would limit the policymaking discretion of 
the states and then carefully assess the necessity for such actions. 
The Executive Order also requires agencies to have a process to ensure 
meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications. 
We examined this proposed rule and have determined that, if 
promulgated, it will not pre-empt State law. This action impacts 
project sponsors of FAST-41 covered projects. Accordingly, no further 
action is required by Executive Order 13132.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    Executive Order 13175, ``Consultation and Coordination with Indian 
Tribal Governments,'' published at 65 FR 67249, on Nov. 9, 2000, 
reaffirms the Federal government's commitment to tribal sovereignty, 
self-determination, and self-government. Its purpose is to ensure that 
all agencies consult with the Indian tribes and respect tribal 
sovereignty as they develop policy on issues that impact Indian 
communities. This proposed rule will allow a tribal government, or a 
consortium of tribal governments, to apply as project sponsors for an 
infrastructure project to become a FAST-41 covered project, and covered 
projects may be implemented on tribal lands. In addition, a tribal 
government or a consortium of tribal governments may be asked by a lead 
agency to become a cooperating or participating agency on a FAST-41 
covered project. On November 30, 2017, the Executive Director of the 
Permitting Council sent letters to 567 federally-recognized tribes 
requesting consultation on this proposed rule. The Muscogee (CREEK) 
Nation provided a comment that requested an automatic exemption from 
the initiation fee for tribal governments proposing projects on trust 
property under FAST-41.
    The United States government has specific responsibilities to each 
Tribe based on treaties, statutes, or other sources. Consistent with 
these responsibilities, the trust relationship, and the government-to-
government relationship between the Federal government and federally-
recognized tribes, the Federal government often provides services to 
tribes relating to the protection of trust assets at no cost. 
Therefore, the proposed rule includes an exemption for tribal grants 
proposing projects on trust property under FAST-41.

G. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use,'' published 
at 66 FR 28355 on May 22, 2001, requires Federal agencies to prepare 
and submit to OMB's Office of Information and Regulatory Affairs (OIRA) 
a Statement of Energy Effects for any proposed significant energy 
action. A ``significant energy action'' is defined as any action by an 
agency that promulgates or is expected to lead to promulgation of a 
final rule or regulation, and that: (1) Is a significant regulatory 
action under Executive Order 12866, or any successor order; and (2) is 
likely to have a significant adverse effect on the supply, 
distribution, or use of energy; or (3) is designated by the 
Administrator of OIRA as a significant energy action. For any proposed 
significant energy action, the agency must give a detailed statement of 
any adverse effects on energy supply, distribution, or use should the 
proposal be implemented, and of reasonable alternatives to the action 
and their expected benefits on energy supply, distribution, and use.
    We have preliminarily concluded that this regulatory action is not 
a ``significant energy action'' because the proposed rulemaking is not 
likely to have a significant adverse effect on the supply, 
distribution, or use of energy, nor has it been designated as such by 
the Administrator at OIRA. Accordingly, we have not prepared a 
Statement of Energy Effects for this proposed rule.

H. National Environmental Policy Act

    Each infrastructure project that is covered under FAST-41 requires 
Federal agencies to render certain decisions. Such Federal agencies are 
required to adhere to the National Environmental Policy Act of 1969, as 
amended (42 U.S.C. 4321 et seq.) when making those decisions. This 
rulemaking simply imposes fees on those project sponsors applying to 
become a covered project under FAST-41; therefore, by itself, this 
rulemaking would not have any effect on the quality of the environment.

I. Executive Order 13771: Reducing Regulation and Controlling 
Regulatory Costs

    This rule is not expected to be subject to the requirements of 
Executive Order 13771, published at 82 FR 9339, on February 3, 2017.

List of Subjects in 40 CFR Part 1900

    Administrative practice and procedure, Fees, Reporting and 
recordkeeping requirements.

    Dated: August 27, 2018.
Angela F. Colamaria,
Acting Executive Director, Federal Permitting Improvement Steering 
Council--Office of the Executive Director (FPISC-OED).

[[Page 44856]]


0
For the reasons stated in the preamble, under the authority of 42 
U.S.C. 4370m et seq., FPISC proposes to add chapter IX to title 40 of 
the Code of Federal Regulations as set forth below:

CHAPTER IX--FEDERAL PERMITTING IMPROVEMENT STEERING COUNCIL

PART 1900--COORDINATION OF ENVIRONMENTAL REVIEWS AND 
AUTHORIZATIONS--FEES

Subpart A--General
Sec.
1900.1 Purpose and scope.
1900.2 Definitions.
1900.3 Initiation fee.
Subpart B--[Reserved]

    Authority: 42 U.S.C. 4370m et seq.

Subpart A--General


Sec.  1900.1   Purpose and scope.

    The purpose of this part is to establish an initiation fee to 
reimburse the Federal Permitting Improvement Steering Council-Office of 
the Executive Director (FPISC-OED) for costs incurred in the 
coordination of environmental reviews and authorizations under Title 41 
of the Fixing America's Surface Transportation Act of 2015 (FAST-41) 
(42 U.S.C. 4370m et seq.). As of [date one day after the publication of 
the final rule in the Federal Register], any project sponsor submitting 
a FAST-41 initiation notice must comply with all applicable 
requirements of this part.


Sec.  1900.2   Definitions.

    As used in this part--
    Agency means the same as the term in 5 U.S.C. 551.
    Business day means Monday through Friday and excludes Federal legal 
holidays.
    Covered project means the same as the term in 42 U.S.C. 4370m(6).
    Environmental Review Improvement Fund means the fund established in 
the Treasury of the United States to deposit any initiation fees 
collected by FPISC-OED.
    Executive Director means the same as the term in 42 U.S.C. 
4370m(12).
    Facilitating agency means the same as the term in 42 U.S.C. 
4370m(13).
    FAST-41 means Title 41 of the Fixing America's Surface 
Transportation Act, codified at 42 U.S.C. 4370m through 4370m-12.
    FAST-41 initiation notice (FIN) means a FAST-41 initiation notice 
of a proposed covered project that a project sponsor submits to the 
Federal facilitating or lead agency and FPISC-OED.
    FPISC-OED means the Federal Permitting Improvement Steering 
Council-Office of the Executive Director that supports the Federal 
Permitting Improvement Steering Council in implementing the provisions 
of FAST-41.
    Indian tribe means any Indian tribe, band, nation, or other 
organized group or community, including any Alaskan Native village or 
regional or village corporation as defined in or established pursuant 
to the Alaska Native Claims Settlement Act (43 U.S.C. 1601 et seq.), 
that is recognized as eligible for the special programs and services 
provided by the United States to Indians because of their status as 
Indians.
    Initiation fee means a non-refundable payment submitted by a 
project sponsors in two parts: When the sponsor submits a FAST-41 
initiation notice, and upon determination that the project is a covered 
project under FAST-41.
    Lead agency means the same as the term in 42 U.S.C. 4370m(15).
    NEPA means the National Environmental Policy Act of 1969, as 
amended (42 U.S.C. 4321 et seq.).
    Project sponsor means the same as the term in 42 U.S.C. 4370m(18).


Sec.  [thinsp]1900.3  FAST--41 initiation fee.

    (a) Initiation fee. A project sponsor shall submit an initiation 
fee of $200,000, $5,000 of which the project sponsor shall pay upon 
submission of a FIN and $195,000 of which the project sponsor shall pay 
within 10 business days of being notified that a project is a covered 
project.
    (b) Adjustment of initiation fee. Each fiscal year, beginning in FY 
2019, the FPISC-OED may reassess and adjust the amount of the 
initiation fee described in paragraph (a) of this section based on 
program implementation experience and the number of infrastructure 
projects seeking to become ``covered projects'' under FAST-41, and to 
adequately cover reasonable costs of the FPISC-OED. The FPISC-OED will 
publish this amount in a Federal Register document.
    (c) Exemptions. The initiation fee shall be excluded for the 
following parties:
    (1) Indian tribe proposing covered projects on trust property; and
    (2) Other parties determined by FPISC-OED, in whole or in part, for 
which an initiation fee would impose an undue financial burden or is 
otherwise determined to be inappropriate. A project sponsor must submit 
a petition for exemption which provides sufficient evidence to 
demonstrate that the initiation fee would be economically burdensome or 
inappropriate. FPISC-OED will consider the following factors in making 
an exemption determination:
    (i) The nature and cost of the infrastructure project;
    (ii) The financial impact of the initiation fee on the project 
sponsor;
    (iii) The financial resources of the project sponsor; and
    (iv) The type of operations of the project sponsor.
    (d) On or before 30 days from the date that a project sponsor 
submits a complete petition for exemption, the Executive Director shall 
decide whether FPISC-OED will approve the petition for exemption based 
on the factors set forth in paragraph (c)(2) of this section. Upon a 
determination, the Executive Director shall notify in writing a project 
sponsor of the determination, including a statement of reasons.
    (e) Use of initiation fee. The collected initiation fees will be 
available to FPISC-OED, without appropriation or fiscal year 
limitation, solely for the purposes of administering and implementing 
42 U.S.C. Chapter 44, Subchapter IV: Federal Permitting Improvement, 
including the expenses of the Council.
    (f) Collection. All fee amounts collected under paragraph (a) of 
this section will be deposited into the Environmental Review 
Improvement Fund.

Subpart B--[Reserved]

[FR Doc. 2018-19032 Filed 8-31-18; 8:45 am]
 BILLING CODE 6820-BR-P