[Federal Register Volume 86, Number 5 (Friday, January 8, 2021)]
[Rules and Regulations]
[Pages 1281-1288]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-00088]


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FEDERAL PERMITTING IMPROVEMENT STEERING COUNCIL

40 CFR Chapter IX

[Agency Docket Number 2020-001]
RIN 3121-AA01


Adding Mining as a Sector of Projects Eligible for Coverage Under 
Title 41 of the Fixing America's Surface Transportation Act

AGENCY: Federal Permitting Improvement Steering Council.

ACTION: Final rule.

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SUMMARY: The Federal Permitting Improvement Steering Council 
(Permitting Council) has voted to add mining as a sector with 
infrastructure projects eligible for coverage under Title 41 of the 
Fixing America's Surface Transportation Act (FAST-41). A new part will 
be included in the Code of Federal Regulations that adds mining to the 
list of statutory FAST-41 sectors. The addition of mining as a FAST-41 
sector will allow qualified mining infrastructure projects to become 
FAST-41 covered projects. FAST-41 coverage will help Federal agencies 
coordinate their environmental and project review efforts to improve 
the timeliness, efficiency, predictability, and transparency of the 
decision-making processes associated with covered

[[Page 1282]]

mining projects. The designation of mining as a FAST-41 sector does not 
predetermine or affect any Federal agency decision with respect to any 
mining authorization or permit application, nor does it sidestep any 
required environmental review or public consultation process.

DATES: This rule becomes effective on January 8, 2021.

FOR FURTHER INFORMATION CONTACT: John G. Cossa, General Counsel, 
Federal Permitting Improvement Steering Council, 1800 G St. NW, Suite 
2400, Washington, DC 20006, [email protected], or by telephone at 
202-255-6936.
    Persons who use a telecommunications device for the deaf may call 
the Federal Information Relay Service (FIRS) at 1-800-877-8339 to 
contact this individual during normal business hours or to leave a 
message at other times. FIRS is available 24 hours a day, 7 days a 
week. You will receive a reply to a message during normal business 
hours.

SUPPLEMENTARY INFORMATION: On November 27, 2020, the Permitting 
Council, which comprises the Permitting Council Executive Director; 13 
Federal agency council members (including the designees of the 
Secretaries of Agriculture, Army, Commerce, Interior, Energy, 
Transportation, Defense, Homeland Security, and Housing and Urban 
Development, the Administrator of the Environmental Protection Agency, 
and the Chairmen of the Federal Energy Regulatory Commission, Nuclear 
Regulatory Commission, and the Advisory Council on Historic 
Preservation); and additional Permitting Council members, the Chairman 
of the Council on Environmental Quality (CEQ) and the Director of the 
Office of Management and Budget (OMB); \1\ published in the Federal 
Register a proposed rule to designate mining as a sector of 
infrastructure projects eligible for coverage under FAST-41, 42 U.S.C. 
4370m et seq. 85 FR 75998. The comment period for the proposed rule 
closed on December 28, 2020. The Permitting Council received 6,487 
comments, the majority of which were form letters opposed to the 
proposal. Responses to selected comments are contained in the Responses 
to Selected Comments section below. The Permitting Council did not 
alter the regulatory proposal in response to comments.
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    \1\ See 42 U.S.C. 4370m-1(b) (Prescribing Permitting Council 
composition).
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    The Permitting Council reviewed the comments received, and on 
January 4, 2021, voted whether to designate mining, as defined in the 
proposed rule, as a FAST-41 sector. A majority of the Permitting 
Council, including the Executive Director, Permitting Council members 
representing the Nuclear Regulatory Commission, Advisory Council on 
Historic Preservation, Department of Commerce, Department of Energy, 
Environmental Protection Agency, Army Corps of Engineers, Department of 
the Interior, Department of Agriculture, Department of Transportation, 
Department of Defense, and Department of Homeland Security, and the 
Chairman of CEQ voted in favor of the proposal. The Permitting Council 
member representing the Department of Housing and Urban Development and 
the Director of OMB abstained from the vote. The Permitting Council 
member representing the Federal Energy Regulatory Commission did not 
vote. No Permitting Council member voted against the proposal.
    The Permitting Council continues to believe that, like the other 
FAST-41 sectors, mining is an important infrastructure sector. Mining 
projects can involve the construction of significant infrastructure, 
require substantial investment, and necessitate extensive and complex 
Federal and state environmental reviews and authorizations. 
Accordingly, like qualified projects from the statutory FAST-41 
sectors, mining projects that satisfy the other covered project 
criteria of 42 U.S.C. 4370m(6) could benefit from the enhanced 
interagency coordination, transparency, and predictability provided by 
FAST-41 coverage. Extending FAST-41 coverage to qualified mining 
projects is consistent with Executive Order (E.O.) 13807, Establishing 
Discipline and Accountability in the Environmental Review and 
Permitting Process for Infrastructure Projects, 82 FR 40463 (Aug. 14, 
2017) and E.O. 13817, A Federal Strategy to Ensure Secure and Reliable 
Supplies of Critical Minerals, 82 FR 60835 (Dec. 20, 2017).
    Because a majority of the Permitting Council voted in favor of 
designating mining as a FAST-41 sector pursuant to 42 U.S.C. 
4370m(6)(A), the Permitting Council will add part 1900 to title 40 of 
the Code of Federal Regulations to designate mining as a FAST-41 
sector.

Responses to Selected Comments

    The Permitting Council received 6,487 comments, the majority of 
which were variants of two form letters opposed to adding mining as a 
FAST-41 sector. Although none of the comments resulted in changes to 
the proposed rule, the Permitting Council provides the following 
comment responses to clarify apparent misperceptions in the comment 
record about the scope and effect of FAST-41 and FAST-41 coverage.

Denial of Request for Extension of Time To Comment

    On December 9, 2020, the Permitting Council received a letter 
undersigned by several non-governmental entities requesting that the 
Permitting Council extend by an additional 45 days the 30-day comment 
period for the proposed rule. The letter asserted that the extension 
was needed because the ongoing COVID-19 crisis and the holiday season 
limited the ability of potentially affected stakeholders to provide 
timely comment, particularly given the various and disparate 
environmental and economic effects of mining. The Permitting Council 
denied the extension request, explaining that 30 days was sufficient 
time to provide comment on the proposal, which is administrative in 
nature and does not make any mining project more or less likely to be 
approved or implemented, or any environmental or economic effect that 
may be associated with a mining project to occur.

Authority To Designate Mining as a FAST-41 Sector

    Numerous commenters incorrectly argue that the scope of the FAST 
Act is limited to transportation, and that therefore, the Permitting 
Council is prohibited from designating mining--which is not 
transportation--as a FAST-41 sector. While much of the FAST Act does 
deal with transportation issues, 6 of the 10 statutory FAST-41 
sectors--renewable energy production, conventional energy production, 
electricity transmission, water resource projects, broadband, and 
manufacturing--are not transportation. 42 U.S.C. 4370m(6)(A). Nothing 
in FAST-41 suggests that the Permitting Council is prohibited from 
designating new sectors that are not transportation.
    Some commenters make the unsubstantiated assertion that Congress 
intentionally did not include mining as a FAST-41 sector because the 
environmental effects of mining allegedly are more severe than the 
effects of the other FAST-41 sectors. The FAST-41 statute contains no 
evidence of such Congressional intent. The statute places no limitation 
on the Permitting Council's authority to add a FAST-41 sector based on 
that sector's perceived environmental impacts. On the contrary, the 
only limitation

[[Page 1283]]

Congress placed on the Permitting Council's authority to designate a 
FAST-41 sector is that the designation occur ``by majority vote.'' 42 
U.S.C. 4370m(6)(A). Moreover, because compliance with the National 
Environmental Policy Act (NEPA) is a precondition of FAST-41 project 
coverage, the fact that a sector has projects with potentially 
significant environmental impacts militates in favor of adding it as a 
FAST-41 sector. 42 U.S.C. 4370m(6)(A)(i) & (ii).

Suitability of Mining Projects for FAST-41 Coverage

    Several commenters argue that designating mining as a FAST-41 
sector is inappropriate because mining projects are too complex and 
diverse for the FAST-41 process and the Permitting Council to manage. 
One commenter suggested that the Permitting Council lacks adequate 
resources, funding, and technical expertise to conduct environmental 
reviews and oversee the permitting process for any covered mining 
projects, despite the fact that the Permitting Council consists of all 
the Federal agencies currently responsible for the environmental review 
and authorization of mining projects and collectively possesses all the 
technical and environmental expertise that the U.S. government has to 
bear.
    Mining is an appropriate FAST-41 sector precisely because mining 
projects can be complex and diverse, and can necessitate extensive and 
coordinated Federal and state environmental review and decision making. 
The more complex the permitting path, the more likely it is that a 
project will be able to benefit from the enhanced interagency 
coordination, transparency, and predictability FAST-41 coverage 
provides. The Permitting Council's current project portfolio includes 
some of the largest, most complex, and novel infrastructure projects in 
the U.S., including multibillion-dollar renewable energy projects (wind 
and solar) as well as pipeline projects that are hundreds of miles 
long, cross Federal, state, private, and Tribal lands, and require 
dozens of permits and authorizations from numerous Federal and state 
entities. Covered projects also include several unprecedented, 
multibillion-dollar offshore wind projects, which require close 
interagency coordination as they are shepherded through the project 
review and approval process. Two of the FAST-41 covered projects that 
completed the Federal review process in 2020 are the largest of their 
kind (a solar renewable energy project and a liquefied natural gas and 
pipeline project).
    Most large-scale infrastructure projects that would be eligible for 
FAST-41 coverage present environmental, jurisdictional, procedural, and 
interagency permitting challenges that the Permitting Council works 
daily to resolve. Through its vote to add mining as a FAST-41 sector, 
the Permitting Council has signaled its willingness to assist covered 
mining project sponsors in resolving their complex project review 
process challenges.
    The same commenters who argue that mining projects are too complex 
and diverse for FAST-41 coverage inconsistently argue that FAST-41 
coverage for mining projects is unnecessary because mining permitting 
in the U.S. is relatively swift, purportedly averaging two years. But 
the fact that some mining projects may be approved within a relatively 
short timeframe has no bearing on whether any given mining project may 
benefit from the enhanced interagency coordination, predictability, 
efficiency, and transparency that FAST-41 coverage can provide. 
Additionally, the two-year average permitting timeframe cited by 
commenters originates in a U.S. Government Accountability Office (GAO) 
report that only considered the time needed to obtain mining 
authorizations from Federal land management agencies, and not the 
estimated time needed to obtain myriad other Federal authorizations and 
permits that likely would be included in any FAST-41 covered project 
permitting timetable.\2\ The GAO report acknowledges that it sometimes 
can take ``over 11 years'' to obtain authorizations from Federal land 
management agencies, not counting these other required 
authorizations.\3\ Several commenters referenced the example of the 
Kensington Mine in Alaska, which reportedly took 19 years to authorize 
and required over 90 Federal and State authorizations.
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    \2\ GAO, Hardrock Mining: BLM and Forest Service Have Taken Some 
Actions to Expedite the Mine Plan Review Process but Could Do More, 
GAO-16-165 (Jan. 2016).
    \3\ Id. at 13, 17 (``we identified six categories of federal 
permits and authorizations that mine operators may need to obtain 
from entities other than BLM and the Forest Service and seven 
categories of state and local permits and authorizations across 12 
western states that may be required depending on the nature of the 
mining operations'').
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FAST-41 Does Not Supplant NEPA or Existing Procedural Requirements

    Many of the comments evidence a widespread belief that FAST-41 
provides an alternate ``expedited'' project review and permitting 
regime that supplants NEPA and potentially other permitting and 
procedural requirements. This is not the case. The FAST-41 statute 
expressly does not supersede NEPA or affect any other agency statutory 
or regulatory requirement. See 42 U.S.C. 4370m-6(d)(1) (FAST-41 does 
not supersede, amend, or modify any Federal statute or affect the 
responsibility of any Federal agency officer to comply with or enforce 
any statute); 42 U.S.C. 4370m-6(d)(2) (``Nothing in [FAST-41] . . . 
creates a presumption that a covered project will be approved or 
favorably reviewed by any agency''); 42 U.S.C. 4370m-6(e)(1) (``Nothing 
in this section preempts, limits, or interferes with . . . any practice 
of seeking, considering, or responding to public comment''); 42 U.S.C. 
4370m-6(e)(2) (``Nothing in [FAST-41] preempts, limits, or interferes 
with . . . any power, jurisdiction, responsibility, or authority that a 
Federal, State, or local governmental agency, metropolitan planning 
organization, Indian tribe, or project sponsor has with respect to 
carrying out a project or any other provisions of law applicable to any 
project, plan, or program.''); 42 U.S.C. 4370m-11 (providing that FAST-
41 does not amend NEPA).
    Although FAST-41 may provide more timely Federal decision making 
with respect to a covered project, it does not alter the ``rigor'' of 
any Federal agency's decision making, as some commenters suggest. 
Longer permitting timeframes should not be confused with rigorous 
Federal agency decision making. Much of the time savings associated 
with FAST-41 coverage has been achieved through coordinating 
interagency efforts, eliminating needless duplication, and engaging 
agencies and project sponsors to foster improved communication, and not 
through subverting applicable project review or decision-making 
procedures.

FAST-41 Flexibility Mechanisms

    Commenters appear to incorrectly presume that FAST-41 coverage 
would subject mining projects to an arbitrarily inflexible, 
``expedited'' environmental review and authorization process that would 
prevent Federal decision makers from obtaining and reviewing necessary 
technical and environmental information, providing opportunities for 
essential public input, coordinating with relevant state, local, and 
Tribal governments, and adjusting the FAST-41 project permitting 
timetable (42 U.S.C. 4370m-2(c)(1)(A), (c)(1)(b)(ii) & (c)(2)) to 
accommodate adequate NEPA review. But FAST-41 contains precisely the 
flexibility mechanisms that

[[Page 1284]]

commenters claim it lacks. For example, one comment letter asserts that 
the recommended performance schedule (RPS) established for a new sector 
pursuant to 42 U.S.C. 4370m-1(c)(1)(C) limits the flexibility of 
agencies to craft a permitting timetable that reflects the complexity 
of the specific project or the impacts of the project on unique 
environmental or cultural resources. But FAST-41 specifically provides 
that agencies may modify the RPS based on ``relevant factors,'' 
including factors such as those identified by the commenter (i.e., to 
accommodate ``the size and complexity of the covered project'' and 
``the sensitivity of the natural or historic resources affected by the 
project''). 42 U.S.C. 4370m-2(c)(2)(B)(i) & (iv). Indeed, despite the 
commenter's concern about the RPS provision, the Permitting Council has 
successfully created a unique permitting timetable for each FAST-41 
covered project.
    Similarly, commenters' concern that agencies are unable to adjust 
FAST-41 project permitting timetables as needed to accommodate changed 
circumstances or new information is unfounded. Pursuant to 42 U.S.C. 
4370m-2(c)(2)(D)(i)(I) and (II), agencies may adjust permitting 
timetable milestones where interagency agreement can be reached about 
the need for the extension and a written explanation is provided for 
the record. And if an extension of a milestone would extend a final 
permitting completion date by more than 30 days, the Permitting Council 
Executive Director may extend the final permitting timetable date after 
consulting with relevant agencies and determining on the record that 
that an extension is warranted based on the same ``relevant factors'' 
that can be used for deviating from the RPS. 42 U.S.C. 4370m-
2(c)(2)(D)(i)(III). In short, nothing in FAST-41 prevents agencies from 
modifying permitting timetables for the reasons commenters are 
concerned about.
    Commenters' concerns regarding the FAST-41 provision that requires 
OMB approval and a report to Congress if a permitting timetable exceeds 
by 50 percent the originally established permitting timetable (150 
percent date) are equally misplaced. 42 U.S.C. 4370m-2(c)(2)(D)(iii). 
Like the milestone extension requirements, the 150 percent date 
requirement is a transparency and accountability mechanism which, like 
many of FAST-41's substantive provisions, encourages thoughtful, 
coordinated, and deliberate agency planning and action. Nothing 
prevents OMB from granting permitting timetable extensions beyond 50 
percent of the original timetable to accommodate any information gap, 
needed stakeholder consultation, or environmental concern. The 
Permitting Council agrees with commenters that project sponsor delay 
can be a significant source of permitting timeline delay. That is why 
the 150 percent date requirement does not count against an agency when 
the permitting timetable extension request is for reasons outside the 
government's control. 42 U.S.C. 4370m-2(c)(2)(D)(iii)(I).
    Likewise, and contrary to the assertions of some commenters, FAST-
41 does not limit the rights of the public to provide input into the 
project review process, nor does it affect the discretion of agencies 
to establish or extend comment periods to obtain essential 
environmental information. Although FAST-41 establishes default comment 
periods for various environmental documents,\4\ agencies retain 
discretion to extend any comment period ``for good cause.'' This allows 
agencies to extend comment periods to provide affected parties 
sufficient opportunity for timely input, or to obtain any environmental 
information essential for project review. This requirement is analogous 
to other Federal programs intended to foster timely and deliberate 
agency decision making. See, e.g., 23 U.S.C. 139(g)(2) (minimum comment 
periods for NEPA documents that are subject to Department of 
Transportation efficient environmental review provisions may be 
extended when agencies agree or ``for good cause''); 23 CFR 771.123(k) 
(default comment period for environmental assessments and environmental 
impact statements that are subject to Department of Transportation 
efficient environmental review provisions is 45-60 days).
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    \4\ The default comment period for environmental impact 
statements is 45-60 days and 45 days for all other NEPA documents. 
42 U.S.C. 4370m-4(b)(1)(D) & (d).
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    Finally, the FAST 41 provisions that require early development of 
NEPA alternatives and specify that agencies may develop preferred 
alternatives to a higher level of detail than other alternatives do not 
constrain agency discretion to subsequently develop additional NEPA 
alternatives when needed, and are entirely consistent with controlling 
CEQ NEPA implementing regulations. 42 U.S.C. 4370m-4(c); see 40 CFR 
1501.2, 1502.14, 1502.17.

Federal and State Coordination

    One commenter expressed concern that the application of FAST-41 may 
interfere with cooperation between state and Federal officials with 
respect to review and authorization of covered projects. However, FAST-
41 encourages Federal-state cooperation by providing states the 
opportunity to ``opt-in'' to the FAST-41 process (42 U.S.C. 4370m-
2(c)(3)), and additionally requires Federal agencies to consult with 
states before taking certain actions, such as establishing a covered 
project permitting timetable. 43 U.S.C. 4370m-2(c)(2)(A), see also 42 
U.S.C. 4370m-3 (interstate compacts); 42 U.S.C. 4370m-5 (delegated 
state permitting programs).

FAST-41 Limitations Period

    Several commenters expressed concern that the two-year FAST-41 
limitations period contained in 42 U.S.C. 4370m-6(a)(1)(A) may prevent 
access to the courts by parties affected by mining pollution or 
violations by mine operators of permit conditions or applicable 
regulations. Although the FAST-41 limitations period is shorter than 
the six-year limitations period for claims against the government 
brought under the Administrative Procedure Act (APA), 5 U.S.C. 551 et 
seq., the two-year limitations period applies exclusively to Federal 
authorizations of FAST-41 covered projects. The limitations period does 
not apply to lawsuits alleging noncompliance with applicable 
regulations or permit conditions, or to tort claims. Moreover, because 
all FAST-41 covered project Federal authorizations are publically 
posted on the Permitting Dashboard,\5\ FAST-41 ensures that anyone 
wishing to challenge the validity of a Federal agency authorization 
with respect to a covered project will have adequate opportunity to do 
so.
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    \5\ Available at https://www.permits.performance.gov/.
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Consultation With Indian Tribal Governments; Environmental Justice

    Several commenters assert that the Permitting Council is required 
to engage in government-to-government consultation with Indian Tribal 
Governments pursuant to section 5 of E.O. 13175 because Tribes are 
affected by mining projects. Several commenters similarly argue that 
the Permitting Council is required to identify and address the 
disproportionate effects that mining can have on minority and low-
income populations pursuant to E.O. 12898.
    Designating mining as a FAST-41 sector is a ministerial act that 
has no effect on Tribes and does not disproportionately affect minority 
or low-income populations. As explained in the preamble to the proposed 
rule, only prospective covered project

[[Page 1285]]

sponsors and Federal agencies are affected by the rule. Designating 
mining as a FAST-41 sector does not extend FAST-41 coverage to any 
project, affect any agency's discretion to issue or deny a mining 
project permit or authorization, or displace any existing requirement 
for public involvement or environmental review associated with any 
covered project. It remains the responsibility of each authorizing 
agency to weigh the relative environmental and economic merits of their 
decisions with respect to a covered project in accordance with their 
own statutory and regulatory authorities and policies. Designating 
mining as a FAST-41 sector likewise does not affect any Federal 
agency's obligation to engage in government-to-government consultation 
with respect to any mining project. Because adding mining as a FAST-41 
sector does not affect Tribes or minority and low-income populations, 
the Permitting Council is not required to engage in government-to-
government consultation pursuant to E.O. 13175 or to identify and 
address any disproportionate effect that mining may have on minority 
and low-income populations.

Proposed Definition of ``Mine''

    Two commenters recommended that the Permitting Council consider 
adopting the definition of ``mine'' from 40 CFR 440.132(g), which 
includes land and property under or above the surface of an active 
mining area that is used in, or results from, the work of extracting 
metal ore or minerals from their natural deposits. The commenters' 
referenced definition also includes such lands that are used for 
secondary recovery of metal ore from refuse or other storage piles, 
wastes, or rock dumps, and mill tailings derived from the mining, 
cleaning, or concentration of metal ores.
    The Permitting Council appreciates the suggestion, but for the 
purpose of adding a FAST-41 sector pursuant to 42 U.S.C. 4370m(6)(A), 
the Permitting Council seeks to define ``mining,'' rather than 
``mine.'' The Permitting Council did not change the definition of 
``mining'' in response to the comment, and believes that the definition 
in the proposed rule is sufficiently broad to capture the range of 
mining activities intended (i.e., extracting ore, minerals, or raw 
materials from the ground).

Economic Analysis

    Adding mining as a sector with infrastructure projects eligible for 
coverage under FAST-41could result in improved timeliness, 
predictability, and transparency associated with the projects that 
ultimately become FAST-41 covered projects, and for the Federal 
agencies participating in the FAST-41 process for those covered 
projects. However, quantifying any potential economic benefits that 
might result from adding mining as a FAST-41 sector is speculative. 
Simply providing the option of FAST-41 coverage to qualified mining 
projects does not assure how many, if any, mining project FAST-41 
Initiation Notices (FINs) will be submitted to the Permitting Council 
for coverage, or how many projects ultimately will be covered. See 42 
U.S.C. 4370m-2(a)(1)(A) & (C). Nor does it guarantee that any economic 
benefits would result from such coverage, particularly given that the 
permitting and environmental review requirements and permitting 
timetables for each covered project are unique.
    Although the Permitting Council cannot predict precisely how many 
mining projects may become covered projects, the number will be small. 
The eligibility criteria for FAST-41 coverage are selective; only the 
largest projects that are the most prepared for Federal review may 
become covered projects. See 42 U.S.C. 4370m(6) (definition of 
``covered project'' including $200 million project value threshold or 
alternative permitting complexity requirement); 4370m-2(c)(1)(A) & 
(B)(ii), 4370m-2(c)(2)(A) (sponsors must provide agencies with 
information sufficient to create a comprehensive and complete project 
permitting timetable within 60 days of initial project coverage); OMB 
M-17-14, Guidance to Federal Agencies Regarding the Environmental 
Review and Authorization Process for Infrastructure Projects (FAST-41 
Guidance), Sec. 3 (Jan. 17, 2017) (project description must be 
sufficient at the outset to facilitate appropriate level of analysis 
under NEPA and interagency coordination on all required permits/
authorizations). Since the enactment of FAST-41 in 2015, a total of 54 
projects have been covered. Of these projects, only 20 were covered as 
the result of successfully submitted FINs that met the FAST-41 coverage 
criteria. The remaining 34 projects were statutorily covered as pending 
projects immediately after the enactment of FAST-41. See 43 U.S.C. 
4370m-1(c)(1)(A)(i) and 4370m-2(b)(2)(A)(i). The 20 successfully 
submitted FINs include one conventional energy production project, one 
electricity transmission project, two pipeline projects, one ports and 
waterways project, 13 renewable energy production projects, and two 
water resource projects.
    Some commenters expressed the belief that the Permitting Council 
will receive more interest from potential mining project sponsors, and 
ultimately cover more mining projects, than estimated in the preamble 
to the proposed rule. But the Permitting Council continues to 
anticipate that very few--likely 10 or fewer--mining project FINs will 
be submitted before the FAST-41 sunset date of December 4, 2022. 42 
U.S.C. 4370m-12. This is in part because the Permitting Council expects 
the sunset date to act as a disincentive to the project sponsors who 
are likely to be most interested in FAST-41 coverage. Such sponsors 
include proponents of large or complex mining projects with a 
significant number of Federal and state authorizations and with longer 
permitting horizons. It is questionable whether these project sponsors 
would be able to derive the full benefits of FAST-41 coverage if the 
FAST-41 program may terminate before the Federal review and decision-
making process for the project can be completed.
    The Permitting Council notes that the statutory criteria for 
becoming a FAST-41 covered project is different from the criteria for 
whether a project is subject to the provisions of E.O. 13807, or E.O. 
13766, Expediting Environmental Reviews and Approvals for High Priority 
Infrastructure Projects, 82 FR 8567 (Jan. 30, 2017). Accordingly, the 
fact that a federal agency may have determined that a project is 
subject to one or both of these E.O.s does not indicate that that 
project is, would, or could become a FAST-41 covered project. The 
exclusive means by which a project can become a FAST-41 covered project 
is through the submission and review of a project FIN in accordance 
with the FAST-41 covered project criteria at 42 U.S.C. 4370m(6), and 
the subsequent addition of the project to the Permitting Dashboard by 
the Permitting Council Executive Director in accordance with 42 U.S.C. 
4370m-2(b)(2).
    Based on historical experience, only a portion of submitted FINs 
become covered projects. Since the inception of FAST-41, only 20 
submitted FINs have become covered projects across all 10 FAST-41 
sectors. To date, the Permitting Council has received fewer than five 
FINs for projects that involve mining that may potentially have been 
eligible for coverage under the statutory FAST-41 sectors (e.g., 
conventional energy). But all of these FINs either were rejected for 
failing to meet other FAST-41 eligibility criteria or were withdrawn by 
the project sponsor for other reasons. It is therefore unlikely that 
adding mining to the 10 statutory

[[Page 1286]]

FAST-41 sectors will result in the coverage of a substantial number of 
new projects.
    Designating mining as a FAST-41 sector could result in reduced 
costs for any mining project sponsor that obtains FAST-41 coverage for 
its project and for the Federal agencies with review and permitting 
responsibilities for the covered project by virtue of potentially 
improved timeliness, predictability, and transparency, associated 
increased Federal agency coordination, and reduced duplication of 
Federal and project sponsor effort. However, these benefits are 
difficult to quantify, particularly given that the Federal permitting 
and environmental review requirements and the permitting timetable for 
each project are unique and vary widely from project to project. 
Because the Permitting Council does not know in advance how many mining 
projects will become FAST-41 covered projects, what the permitting or 
environmental review requirements might be for any potential future 
covered mining project, or what opportunities might exist to coordinate 
any Federal agency reviews that might be necessary for any such covered 
mining project, it is impossible to predict with any specificity what, 
if any, economic benefit might broadly accrue as a result of 
designating mining as a FAST-41 sector.
    Adding mining as a FAST-41 sector will not directly increase or 
decrease the costs to agencies of complying with the substantive 
provisions of FAST-41, although there will be costs to the Permitting 
Council associated with any additional project that might become a 
covered project.
    FAST-41 does not impose any regulatory requirements on covered 
project sponsors; FAST-41 implementation obligations fall primarily on 
the government. However, because FAST-41 is a voluntary program, 
sponsors of mining projects potentially eligible for FAST-41 coverage 
would incur some costs associated with seeking FAST-41 coverage. These 
costs associated with a request to be a covered project likely will be 
small. Seeking FAST-41 coverage involves formulating and submitting a 
project FIN, which is expected to take only a few hours. See 42 U.S.C. 
4370m-2(a)(i)(C). Because the Permitting Council anticipates receiving 
few additional project FINs as a result of adding mining as a FAST-41 
sector, and the burden associated with preparing a FIN is minimal, the 
additional economic cost associated with adding mining as a FAST-41 
sector, if any, would be negligible, and likely would be 
counterbalanced by the benefits of FAST-41 coverage.

Procedural Matters

Regulatory Planning and Review (E.O. 12866) and Improving Regulation 
and Regulatory Review (E.O. 13563)

    This action is not a significant regulatory action and was not 
submitted to OMB for further review.

Reducing Regulation and Controlling Regulatory Costs (E.O. 13771)

    This rule is an E.O. 13771 deregulatory action. A discussion of the 
potential economic benefits of this rule can be found in the rule's 
Economic Analysis section.

Regulatory Flexibility Act (RFA), as Amended by the Small Business 
Regulatory Enforcement Fairness Act (SBREFA), 5 U.S.C. 601 et seq.

    Pursuant to 5 U.S.C. 605(b), the Permitting Council certifies that 
providing the option of FAST-41 coverage for qualified mining projects 
that are not already eligible for FAST-41 coverage under any of the 
statutory FAST-41 sectors will not have a significant economic impact 
on a substantial number of small entities.
    The Permitting Council anticipates that the addition of mining as a 
FAST-41 sector will result in the submission of 10 or fewer mining 
project FINs, at least some of which, based on the Permitting Council's 
past experience with project FINs that involve mining, likely will not 
become FAST-41 covered projects. Though the Permitting Council does not 
conduct an analysis of the business structures of FAST-41 project 
sponsors to determine whether they are small entities, it is possible 
that at least some of the 10 or fewer project sponsors that submit FINs 
for mining projects could be small entities. However, because 10 or 
fewer entities likely will be affected, the Permitting Council does not 
anticipate that adding mining as a FAST-41 sector will affect a 
substantial number of small entities.
    Nor will adding mining as a FAST-41 sector significantly or 
disproportionately impose costs on any small entity that is affected by 
the rule. The requirements for submitting a project FIN are simple and 
not burdensome. The FAST-41 statute only requires the project sponsor 
to formulate and send to the Permitting Council and the lead or 
facilitating agency a project FIN that contains: (1) A statement of the 
purpose and objectives of the project; (2) a description of the general 
project location; (3) any available geospatial information about 
project and environmental, cultural, and historic resource locations; 
(4) a statement regarding the technical and financial ability of the 
project sponsor to construct the proposed project; (5) a statement of 
any Federal financing, environmental reviews, and authorizations 
anticipated to be required to complete the proposed project; and (6) an 
assessment that the proposed project meets the definition of a covered 
project pursuant to 42 U.S.C. 4370m(6)(A) with supporting rationale. 42 
U.S.C. 4370m-2(a)(1)(A) & (C). Any project sponsor credibly seeking 
Federal authorization and environmental review for a project that 
requires $200 million or more in investment will have the information 
required to submit a project FIN readily available, and preparing and 
submitting a project FIN should require only a few hours of effort. 
FAST-41 contains no pre-FIN requirements (although project sponsors are 
free to consult the Permitting Council with any questions about the 
FAST-41 program and FIN preparation or submission), and there are no 
regulations implementing FAST-41 that impose any additional 
requirements on the project sponsor. The lead or facilitating agency 
(and in some instances, the Permitting Council Executive Director) will 
review the FIN in accordance with sections 4.4-4.12 of the FAST-41 
Guidance to determine whether the project is a FAST-41 covered project. 
See Fast-41 Guidance at 30-34. If the project is a covered project, 
FAST-41 imposes no requirements or obligations on the project sponsor 
that are additional to those imposed by the substantive Federal 
authorization or environmental review statutes that otherwise apply to 
the project. Accordingly, adding mining as FAST-41 sector will not 
significantly affect a substantial number of small entities, and the 
RFA does not apply.

Congressional Review Act (CRA), 5 U.S.C. 804

    This rule is not a ``major rule'' as defined under 5 U.S.C. 804(2) 
because it will not cause a major increase in costs or prices for 
consumers; individual industries; Federal, state, or local government 
agencies; or geographic regions. The rule will not have an annual 
effect on the economy of $100 million or more.

Unfunded Mandates Reform Act (UMRA), 2 U.S.C. 1501 et seq.

    This rule does not impose an unfunded mandate on state, local, or 
tribal governments, or on the private sector of more than $100 million 
per year. The rule does not have a significant or unique effect on 
state,

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local, or tribal governments or the private sector. Therefore, a 
statement containing the information required by the UMRA is not 
required. The rule also is not subject to the requirements of UMRA 
section 203 because it contains no regulatory requirements that might 
significantly or uniquely affect small governments. The rule contains 
no requirements that apply to small governments, nor does it impose 
obligations upon them.

Federalism (E.O. 13132)

    This action does not have federalism implications under E.O. 13132. 
The rule will not have a substantial direct effect on the states, on 
the relationship between the Federal Government and the states, or on 
the distribution of power and responsibilities among the levels of 
government. The rule affects only the eligibility of mining project 
proponents to participate in the voluntary FAST-41 program; it will not 
affect the obligations or rights of states or local governments or 
state or local governmental entities.

Civil Justice Reform (E.O. 12988)

    This rule complies with section 3(a) of E.O. 12988, which requires 
agencies to review all rules to eliminate errors and ambiguity and to 
write all regulations to minimize litigation. This rule also meets the 
criteria of section 3(b)(2), which requires agencies to write all 
regulations in clear language with clear legal standards.

Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq.

    The PRA provides that an agency may not conduct or sponsor, and a 
person is not required to respond to, a collection of information 
unless it displays a currently valid control number issued by OMB. 
Collections of information include requests and requirements that an 
individual, partnership, or corporation obtain information, and report 
it to a Federal agency. See 44 U.S.C. 3502(3); 5 CFR 1320.3(c) & (k). 
The rule does not involve an agency request for information, nor does 
it require an information response. The rule would not alter any of the 
other FAST-41 eligibility criteria or implementation of FAST-41, and 
does not change the information collected from project sponsors seeking 
FAST-41 coverage. The rule could result in a small increase in the 
number of project sponsors submitting FINs to the Permitting Council.

NEPA, 42 U.S.C. 4321 et seq.

    NEPA requires agencies to consider the reasonably foreseeable 
environmental consequences of major Federal actions significantly 
affecting the quality of the human environment. The rule does not make 
any project-level decisions and does not authorize any activity or 
commit resources to a project that may affect the environment. 
Furthermore, under FAST-41 all covered projects are subject to NEPA 
review. 42 U.S.C. 4370m(6)(A).
    FAST-41 focuses on facilitating interagency coordination and agency 
accountability for meeting self-imposed environmental review and 
permitting timetables and providing certain legal protections for 
covered projects. The statute expressly does not supersede NEPA or 
affect any internal procedure or decision-making authority of any 
agency. See 42 U.S.C. 4370m-6(d); 42 U.S.C. 4370m-6(e); 42 U.S.C. 
4370m-11. Because FAST-41 coverage does not alter or affect the 
discretion of any agency to approve or deny any permit or authorization 
for any project, extending potential FAST-41 eligibility to otherwise 
qualified mining projects does not make any mining project more or less 
likely to be permitted, authorized, or constructed, or any 
environmental effect that may be associated with such a project to 
occur. See 42 U.S.C. 4370m-6(d)(2).

Effects on the Energy Supply (E.O. 13211)

    This rule is not a significant energy action for the purposes of 
E.O. 13211 because it will not have any discernible effect on the 
energy supply. Qualified energy-related mining projects such as coal 
and uranium are eligible for coverage under FAST-41's ``conventional 
energy production'' sector. The only additive effect of the rule would 
be to make mining projects that are unrelated to energy production (and 
not covered under other statutory FAST-41 sectors) eligible for 
coverage under FAST-41.
    Adding mining as a FAST-41 sector will not extend FAST-41 coverage 
to any specific project--energy related or otherwise--nor will it 
permit or authorize any mining project. Qualified applicants must first 
seek and obtain FAST-41 coverage. Participation in the FAST-41 program 
does not alter any agency's existing discretion to approve or deny 
project permits or authorizations, and does not make ultimate project 
authorization more or less likely. Accordingly, this final rule that 
adds mining as a FAST-41 sector will not affect the supply, 
distribution, or use of energy, and is not a ``significant energy 
action'' for the purpose of E.O. 13211.

Immediate Effective Date (5 U.S.C. 553(d))

    Section 553(d) of the APA generally requires agencies to publish a 
rule in the Federal Register at least 30 days prior to its effective 
date. The purpose of this requirement is to inform affected parties and 
give them a reasonable time to adjust to the requirements of the new 
rule. Am. Federation of Gov't Empl., AFL-CIO v. Block, 655 F.2d 1153, 
1157 (D.C. Cir. 1981). Pursuant to 5 U.S.C. 553(d)(3), an agency may 
dispense with the 30-day requirement for good cause.
    In this circumstance good cause exists to dispense with the 30 day 
requirement because the rule designating mining as a FAST-41 sector 
does not impose any short-term requirement or obligation on any party 
other than the Permitting Council members who promulgated the rule. The 
other parties affected by the rule are prospective covered project 
sponsors, who will not be required to take any prompt action or comply 
with any new regulatory requirements. Instead, the rule extends to 
prospective covered project sponsors the opportunity to voluntarily 
apply for and receive FAST-41 coverage benefits at their discretion. 
The rule does not require timely project sponsor action to receive 
potential FAST-41 benefits.
    Because a 30-day delayed effective date in this circumstance would 
not serve the purpose of 5 U.S.C. 553(d), good cause exists to dispense 
with the requirement. Accordingly this rule takes immediate effect upon 
publication in the Federal Register.

List of Subjects in 40 CFR Part 1900

    Critical infrastructure, Infrastructure, Mines, Mineral resources, 
Permitting, Reporting and recordkeeping requirements, Underground 
mining.


0
For the reasons stated in the preamble to the proposed rule and the 
preamble above, under the authority stated below, the Federal 
Permitting Improvement Steering Council hereby adds 40 CFR chapter IX, 
consisting of part 1900, to read as follows:

CHAPTER IX--FEDERAL PERMITTING IMPROVEMENT STEERING COUNCIL

PART 1900--FEDERAL PERMITTING IMPROVEMENT

Sec.
1900.1 Definitions.
1900.2 FAST-41 sectors.

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


Sec.  1900.1  Definitions.

    For the purposes of this part, the following terms shall have the 
meaning indicated:

[[Page 1288]]

    FAST-41 means Title 41 of the Fixing America's Surface 
Transportation Act, 42 U.S.C. 4370m et seq.
    Federal Permitting Improvement Steering Council or Permitting 
Council means the Federal agency established pursuant to 42 U.S.C. 
4370m-1(a).
    Mining means the process of extracting ore, minerals, or raw 
materials from the ground. Mining does not include the process of 
extracting oil or natural gas from the ground.


Sec.  1900.2  FAST-41 sectors.

    Pursuant to 42 U.S.C. 4370m(6)(A), the Federal Permitting 
Improvement Steering Council has added the following sectors to the 
statutorily defined list of FAST-41 sectors:
    (a) Mining.
    (b) [Reserved]

Nicholas Falvo,
Attorney Advisor, Federal Permitting Improvement Steering Council.
[FR Doc. 2021-00088 Filed 1-7-21; 8:45 am]
BILLING CODE 6820-PL-P