[Federal Register Volume 88, Number 183 (Friday, September 22, 2023)]
[Proposed Rules]
[Pages 65350-65356]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-20270]
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FEDERAL PERMITTING IMPROVEMENT STEERING COUNCIL
40 CFR Part 1900
[Docket Number 2023-001]
RIN 3121-AA04
Revising Scope of the Mining Sector of Projects That Are Eligible
for Coverage Under Title 41 of the Fixing America's Surface
Transportation Act
AGENCY: Federal Permitting Improvement Steering Council.
ACTION: Proposed rule.
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SUMMARY: The Federal Permitting Improvement Steering Council
(Permitting Council) proposes to amend its regulations to revise the
scope of ``mining'' as a sector with infrastructure projects eligible
for coverage under Title 41 of the Fixing America's Surface
Transportation Act (FAST-41). The Permitting Council added ``mining''
as a FAST-41 sector in January 2021. This proposed rule would: (1)
revise the FAST-41 ``mining'' sector to apply solely to critical
minerals mining projects; and (2) expand the scope of the sector to
include infrastructure constructed to support critical minerals supply
chain activities, including critical minerals beneficiation,
processing, and recycling. The proposed modification will help ensure
that qualified critical minerals supply chain projects beyond critical
minerals mining can obtain FAST-41 coverage. FAST-41 was enacted to
improve the timeliness, predictability, transparency, and
accountability of the Federal environmental review and authorization
processes for covered infrastructure projects. FAST-41 coverage does
not predetermine or affect the outcome of any Federal decision-making
process with respect to a covered project, or modify any required
environmental review or public or tribal consultation process.
DATES: Please send your comments on this proposal to the Permitting
Council Office of the Executive Director on or before October 23, 2023.
ADDRESSES: You may send comments, identified by Permitting Council
Docket Number 2023-001 or RIN 3121-AA04, by any of the following
methods:
Federal eRulemaking Portal: https://www.regulations.gov.
Follow the instructions for sending comments.
Mail: Federal Permitting Improvement Steering Council,
Office of the Executive Director, 1800 M St. NW, Suite 6006,
Washington, DC 20036, Attention: RIN 3121-AA04.
FOR FURTHER INFORMATION CONTACT: John G. Cossa, General Counsel,
Federal Permitting Improvement Steering Council, 1800 M St. NW, Suite
6006, Washington, DC 20036, [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:
I. FAST-41 and the Permitting Council
Established in 2015 by Title 41 of the Fixing America's Surface
Transportation Act (FAST-41), 42 U.S.C. 4370m et seq., the Permitting
Council is a unique Federal agency charged with improving the
transparency and predictability of the Federal environmental review and
authorization process for certain infrastructure projects. The
Permitting Council is comprised of the Permitting Council Executive
Director, who serves as the Council Chair; 13 Federal agency Council
members (including deputy secretary-level 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 Chairs of
the Federal Energy Regulatory Commission, Nuclear Regulatory
Commission, and the Advisory Council on Historic Preservation); and the
Chair of the Council on Environmental Quality and the Director of the
Office of Management and Budget. 42 U.S.C. 4370m-1(a) & (b).
The Permitting Council coordinates Federal environmental reviews
\1\ and authorizations \2\ for projects that seek and qualify for FAST-
41 coverage. FAST-41 covered projects are entitled to comprehensive
permitting timetables and transparent, collaborative management of
those timetables on the Federal Permitting Dashboard in compliance with
FAST-41 procedural requirements. 42 U.S.C. 4370m-2(c) & (d). Sponsors
of FAST-41 covered projects also benefit from the direct engagement of
the Permitting Council Executive Director and the Permitting Council
members in timely identification and resolution of permitting issues
that affect covered projects' permitting timetables. The Permitting
Council Executive Director additionally may transfer funds from the
Environmental Review and Improvement Fund (ERIF) to Federal agencies
and state, local, and tribal governments to make the environmental
review and authorization process for FAST-41 covered projects more
timely and efficient. 42 U.S.C. 4370m-8(d)(3).
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\1\ 42 U.S.C. 4370m(11) (defining ``environmental review'' as
``the agency procedures and processes for applying a categorical
exclusion or for preparing an environmental assessment, an
environmental impact statement, or other document required under
[the National Environmental Policy Act]'').
\2\ 42 U.S.C. 4370m(3) (defining ``authorization'' as ``any
license, permit, approval, finding, determination, or other
administrative decision issued by an agency and any interagency
consultation 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'').
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II. FAST-41 Infrastructure Sectors and Covered Project Criteria
FAST-41 provides that activities located in the United States that
require authorization or environmental review by a Federal agency
involving construction of infrastructure that are in the following
sectors may be eligible for FAST-41 coverage: (1) renewable energy
production; (2) conventional energy production; (3) electricity
transmission; (4) surface transportation; (5) aviation; (6) ports and
waterways; (7) water resource projects; (8) broadband; (9) pipelines;
(10) manufacturing; (11) semiconductors; (12) artificial intelligence
and machine learning; (13) high-performance computing and advanced
computer hardware and software; (14) quantum information science and
technology; (15) data storage and data management; (16) cybersecurity;
(17) carbon capture; and (18) energy storage. 42 U.S.C. 4370m(6)(A).
FAST-41 authorizes the Permitting Council to designate additional
sectors by majority vote of the Permitting Council members. Id. On
January 4, 2021, a majority of the Permitting Council voted to
designate ``mining'' as a FAST-41 sector, and on
[[Page 65351]]
January 8, 2021, the Permitting Council Promulgated a final rule adding
a new Part 1900 to Title 40 of the Code of Federal Regulations (CFR) to
reflect this designation. 86 FR 1281 (Jan. 8, 2021); see 40 CFR 1900.1
& 1900.2.
To qualify for FAST-41 coverage, an infrastructure project in a
FAST-41 sector must be located in the United States, require
environmental review and authorization by a Federal agency, and meet
one of the four sets of FAST-41 covered project criteria: (1) the
``objective'' criteria; (2) the ``carbon capture'' criterion; (3) the
``Tribal'' criteria; or the (4) ``discretionary'' criteria. 42 U.S.C.
4370m(6)(A).
Under the ``objective'' criteria, a project could qualify for FAST-
41 coverage if it: (i) is subject to review under the National
Environmental Policy Act (NEPA), 42 U.S.C. 4321 et seq.; (ii) is likely
to require a total investment of $200 million or more; and (iii) does
not qualify for abbreviated authorization or environmental review
processes under any applicable law. 42 U.S.C. 4370m(6)(A)(i). The
majority of FAST-41 covered projects are covered under the
``objective'' criteria.
Alternatively, under the ``carbon capture'' criterion, an
infrastructure project in a FAST-41 sector could qualify for FAST-41
coverage if the project is covered by a programmatic plan or
environmental review developed for the primary purpose of facilitating
development of carbon dioxide pipelines. 42 U.S.C. 4370m(6)(A)(ii).
To qualify for FAST-41 coverage under the ``Tribal'' criteria, a
the project must be: (i) subject to NEPA; (ii) sponsored by an Indian
Tribe (as defined in 25 U.S.C. 5304), an Alaska Native Corporation, a
Native Hawaiian organization (as defined in section 20 U.S.C. 7517),
the Department of Hawaiian Home Lands, or the Office of Hawaiian
Affairs; and (iii) located in whole or in part on lands owned or under
the jurisdiction of the project sponsor. 42 U.S.C. 4370m(6)(A)(iii).
Finally, a project also could qualify for FAST-41 coverage under
the ``discretionary'' criteria if the project: (i) is subject to NEPA;
and (ii) in the opinion of the Permitting Council, the size and
complexity of the project make it likely to benefit from the enhanced
oversight and coordination provided by FAST-41, including projects
likely to require environmental review and authorization from multiple
agencies or projects for which the preparation of an environmental
impact statement is required. 42 U.S.C. 4370m(6)(A)(iv).
Pursuant to section 11503(b) of the FAST Act, projects for which
the U.S. Department of Transportation is the sole lead agency under
NEPA, and projects that are subject to authorization under Department
of the Army's Project Acceleration Procedures pursuant to 33 U.S.C.
2348, are not FAST-41 covered projects. Pub. L. 114-94, 129 Stat. 1312,
1692 (Dec. 4, 2015); see also 42 U.S.C. 4370m(6)(B). Additionally,
Federal environmental reviews and authorizations issued pursuant to
Title 23, 46, or 49 of the U.S. Code, including direct loan and loan
guarantee programs, are not subject to the requirements of FAST-41. 129
Stat. at 1692.
The proposed revision of the FAST-41 mining infrastructure sector
is not a determination by the Permitting Council that any particular
mining project will qualify as a FAST-41 covered project, and it does
not predetermine the outcome of the Federal decision-making process
with respect to any covered project. FAST-41 is a voluntary program
governed by the eligibility criteria in 42 U.S.C. 4370m(6) and the
procedural requirements of 42 U.S.C. 4370m-2 and 4370m-4. To become a
FAST-41 covered project, a critical minerals mining or critical
minerals supply chain project sponsor, like project sponsors in the
other FAST-41 sectors, must first demonstrate that its project meets a
covered project criteria pursuant to 42 U.S.C. 4370m(6) by submitting a
notice of the initiation of a proposed covered project (also known as a
FAST-41 Initiation Notice or ``FIN'') to the Permitting Council
Executive Director and the appropriate facilitating or lead agency.\3\
42 U.S.C. 4370m-2(a)(1). Within 14 days of receiving the FIN, the
Permitting Council Executive Director must create an entry for the
project on the Federal Permitting Dashboard,\4\ which means that the
project is a FAST-41 covered project, unless the Executive Director or
the facilitating or lead agency determines that the project is not a
FAST-41 covered project. 42 U.S.C. 4370m-2(b)(2)(A)(ii).
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\3\ Project FINs can be filled out or submitted online via the
Permitting Dashboard at https://www.permits.performance.gov/fpisc-content/become-fast-41-covered-project.
\4\ Available at https://www.permits.performance.gov/.
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Substantively, FAST-41 provides for timely Federal agency review,
enhanced interagency coordination, predictability, and accountability
in the Federal decision-making process for covered projects, and the
option to transfer funds to Federal, state, local, and tribal
governments to facilitate timely and efficient environmental reviews
and authorizations of covered projects. Participation in the FAST-41
program can provide covered project sponsors with increased certainty
of timely Federal action in accordance with publicly available project-
specific permitting timetables. 42 U.S.C. 4370m-2; see Permitting
Dashboard at https://www.permits.performance.gov/. FAST-41 provides for
early coordination of agencies' schedules and synchronization of
environmental reviews and related authorizations without altering the
substance or scope of those Federal agency efforts. 42 U.S.C. 4370m-4
(Coordination of required reviews). It provides mechanisms for
resolving permitting related disputes. 42 U.S.C. 4370m-2(c)(2)(C)
(Dispute resolution). FAST-41 further ensures agency accountability and
transparency by providing clear processes and notice requirements for
altering project permitting timetables. 42 U.S.C. 4370m-2(c)(2)(D),
(E), & (F). The statute also allows the Executive Director to transfer
ERIF funds to Federal agencies and state, local, and tribal governments
to facilitate timely and efficient environmental reviews and
authorizations for the project. 42 U.S.C. 4370m-8(d)(3).
FAST-41 does not mandate or predetermine any substantive result in
the permitting process. The provisions of FAST-41 do not supersede or
alter any internal procedure or decision-making authority of any
Federal agency or official. 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); id. 4370m-6(e)(1) (``Nothing in [FAST-41] preempts,
limits, or interferes with . . . any practice of seeking, considering,
or responding to public comment''); id. 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.''); see also id. 4370m-11 (NEPA is not amended by FAST-41).
Accordingly, revising the FAST-41 mining infrastructure sector will not
grant any permit, authorization, or approval for a covered project. See
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'').
[[Page 65352]]
III. Proposal To Revise and Expand the Scope of the FAST-41 Mining
Infrastructure Sector
In conjunction with a public notice-and-comment rulemaking effort,
on January 4, 2021, the Permitting Council voted to designate
``mining'' as a FAST-41 sector. 86 FR 1281 (Jan. 8, 2021). The
definition of ``mining'' finally adopted by the Permitting Council was
broad, and encompassed ``the process of extracting ore, minerals, or
raw materials from the ground'' except for oil and gas extraction. 40
CFR 1900.1. Accordingly, any infrastructure project in the ``mining''
sector--including any critical minerals mining project--currently can
become a FAST-41 covered project, provided that the project meets a
FAST-41 ``covered project'' criteria described above.
The Permitting Council coordinates Federal environmental reviews
and authorizations for projects that seek and obtain FAST-41 coverage.
Sponsors of FAST-41 covered projects are entitled to comprehensive
permitting timetables and transparent, collaborative management of
those timetables on the public-facing Federal Permitting Dashboard.
Project sponsors additionally must be consulted in establishing and
managing FAST-41 covered project permitting timetables, and have access
to issue elevation and dispute resolution processes that ensure
unresolved project permitting issues are expeditiously resolved by
high-level Federal decision makers. The Permitting Council Executive
Director additionally may transfer funds from the ERIF to Federal
agencies and state, local, and tribal governments to make environmental
reviews and authorizations for FAST-41 covered projects more timely and
efficient. The consultation, enhanced interagency coordination,
transparency, issue elevation, funding transfer, and Permitting
Dashboard management requirements of FAST-41 represent a significant
departure from the business-as-usual scenario for the Federal
infrastructure review and authorization process.
To the maximum extent practicable, the Permitting Council is
committed to providing Federal environmental review and permitting
resources toward infrastructure projects that are most likely to help
develop a reliable and environmentally and socially responsible supply
of critical minerals necessary for national security, economic
prosperity, and fighting the climate crisis. This includes encouraging
project sponsors to adopt recognized best practices for tribal and
community engagement, such as development of a ``Community Benefits
Agreement,'' \5\ providing financial support for Tribes and communities
to allow for independent technical review of mining proposals, making
environmental monitoring data publicly available, and taking other
steps to maximize transparency, engagement, and responsiveness to local
concerns.
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\5\ See https://www.energy.gov/diversity/community-benefit-agreement-cba-toolkit.
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It also is important to inform prospective project sponsors, whose
projects are the primary means to achieve these objectives, that their
qualified project proposals are welcome for consideration under the
FAST-41 rubric. The Biden-Harris Administration has identified the
urgent need for better coordination of environmental reviews,
permitting processes, consultations, and other agency decisions to
facilitate improved efficiency and effectiveness of critical minerals
project delivery, and improved transparency and predictability in the
Federal environmental review and authorization process for critical
minerals projects.
The Administration has called for the application of all current
best practices for improving communication and coordination with state
regulators, Tribes, and stakeholders, including industry, affected
communities, environmental justice leaders, and labor unions, in
reviewing and authorizing critical minerals projects.\6\ FAST-41 is an
ideal tool for achieving these objectives, and the Permitting Council
believes that Federal resources should be targeted, to the maximum
extent practicable, toward the pool of projects that are most likely to
deliver on the Administration's critical minerals priorities and in
line with publicly stated mining reform principles.\7\
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\6\ See https://www.doi.gov/sites/doi.gov/files/biden-harris-administration-fundamental-principles-for-domestic-mining-reform.pdf; see also 42 U.S.C. 4370m-1(c)(2)(B) (FAST-41 best
practices requirement); FY 2022 Best Practices at https://www.permits.performance.gov/fpisc-content/fy-2022-recommended-best-practices-report.
\7\ See https://www.doi.gov/sites/doi.gov/files/biden-harris-administration-fundamental-principles-for-domestic-mining-reform.pdf.
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Accordingly, the Permitting Council proposes to refine the FAST-41
mining infrastructure sector to: (i) limit the scope of potentially
covered mining projects to those involving the extraction of critical
minerals, as defined by section 7002 of the Energy Act of 2020 \8\ and
listed by the Director of the U.S. Geological Survey at 87 FR 10381
(Feb. 24, 2022), including any amendments to the definition or list of
critical minerals by the U.S. Geological Survey or by Act of Congress;
and (ii) critical mineral supply chain activities, including critical
mineral beneficiation, processing, and recycling.
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\8\ Public Law 116-260, 134 Stat. 1182, 2562 (Dec. 27, 2020),
codified at 30 U.S.C. 1606.
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IV. Effect of Revising FAST-41 Mining Infrastructure Sector and Next
Steps
Revising the FAST-41 mining sector as proposed would enable
sponsors of qualified critical minerals mining, beneficiation,
processing, and recycling projects to seek the same benefits of FAST-41
coverage that are currently available to qualified projects in the
statutorily identified FAST-41 sectors. Sponsors of infrastructure
projects that are not involved in critical minerals-related activities
would be ineligible for FAST-41 coverage unless their projects were
eligible for coverage under another FAST-41 infrastructure sector.\9\
In the time since the Permitting Council voted to designate mining as a
FAST-41 sector in January 2021, the Permitting Council has not received
any FINs seeking FAST-41 coverage for a non-critical minerals mining
project. Limiting the mining sector to critical minerals mining
infrastructure projects is not expected to result in a substantial
change in the number of mining related project proposals.
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\9\ See Federal Permitting Improvement Steering Council, Adding
Mining as a Sector of Projects Eligible for Coverage Under Title 41
of the Fixing America's Surface Transportation Act, Proposed Rule,
85 FR 75998, 75999-76000 (Nov. 27, 2020) (describing how the
Permitting Council applies the FAST-41 infrastructure sectors to
project FINs).
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After considering the comments received in response to this
proposed rule, the Permitting Council will determine whether to revise
the scope of the current mining sector. The Permitting Council
subsequently will vote on any proposed modifications to the current
FAST-41 mining infrastructure sector. If a majority of the Permitting
Council votes in favor of modification, the Permitting Council will
promulgate a final rule amending 40 CFR part 1900 consistent with the
adopted modification. The Permitting Council seeks public comment on
all aspects of this proposal and will address all substantive comments
that it receives in response to this proposal in the Federal Register
notice for any final rule.
Economic Analysis
Revising the FAST-41 mining infrastructure sector could 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
[[Page 65353]]
process for those covered projects. However, quantifying any potential
economic benefits that might result from revising the FAST-41 mining
sector is speculative. Simply providing the option of FAST-41 coverage
to qualified critical minerals mining and critical minerals supply
chain projects, some of which are currently eligible for FAST-41
coverage under the existing FAST-41 mining sector, does not indicate
how many, if any, additional critical minerals project FINs will be
submitted to the Permitting Council, or how many projects ultimately
will become covered projects. Nor does it guarantee that any economic
benefits necessarily would result from such coverage, particularly
given that FAST-41 only imposes coordination, transparency, and
disclosure requirements related to the Federal environmental review and
authorization process for a covered infrastructure project, and not any
substantive outcome. Foreclosing FAST-41 eligibility for project
sponsors of non-critical minerals mining projects will ensure that such
project sponsors will be unable to derive the benefits of FAST-41
coverage. However, quantification of any costs to non-critical mineral
mining project sponsors who may be no longer eligible to seek FAST-41
coverage is likewise speculative, particularly given that no such
project sponsor has sought or obtained FAST-41 coverage since mining
was added as a FAST-41 sector in January 2021. Moreover, quantification
of economic benefits or costs to any specific project sponsor is
speculative because the permitting and environmental review
requirements and permitting timetables for each covered project are
unique.
Although the Permitting Council cannot predict how many critical
minerals mining and supply chain projects may become covered projects,
the number likely will be small. Based on historical experience
implementing the current mining sector and the other FAST-41 sectors,
and the fact that only a portion of project sponsors, including mining
project sponsors, that seek FAST-41 coverage succeed in obtaining it,
the Permitting Council anticipates that the proposed modification to
the FAST-41 mining sector will result in the submission of 15 or fewer
additional project FINs, and likely 10 or fewer additional covered
projects. Because critical mineral mining projects are already included
in the current FAST-41 mining sector, any increase likely would be due
to the expansion of the sector to include critical mineral
beneficiation, processing, and recycling infrastructure projects.
The eligibility criteria for FAST-41 coverage are selective;
generally, only the largest projects in a given sector become FAST-41
covered projects. All but two of the projects that have become FAST-41
covered projects have been covered pursuant to the FAST-41
``objective'' criteria, which requires a minimum economic value of $200
million.\10\ See 42 U.S.C. 4370m(6)(A)(i). Since the enactment of FAST-
41 in 2015, a total of 71 projects have become covered projects. Of
these projects, 37 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 pursuant to 42 U.S.C.
4370m-1(c)(1)(A)(i) and 4370m-2(b)(2)(A)(i) immediately after the
enactment of FAST-41. Of the 18 FAST-41 sectors, only the renewable
energy sector, which has been in place since the enactment of FAST-41,
represents over 10 FIN-initiated FAST-41 covered projects.
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\10\ The other two projects, the Santa Fe Indian School
Broadband project, and the Alaska Fiber Optic Segment 1 Broadband
project, became FAST-41 covered projects pursuant to the ``Tribal
criteria'' at 42 U.S.C. 4370m(6)(A)(ii).
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The proposed refinements of the FAST-41 mining infrastructure
sector are unlikely to result in a substantial change in the number of
projects that may seek and obtain FAST-41 coverage. Based on historical
experience, only a portion of mining related FINs likely will become
covered projects. Since the enactment of FAST-41 in 2015, the
Permitting Council has received seven FINs for projects that involve
mining that may potentially have been eligible for coverage under the
statutory FAST-41 sectors (e.g., conventional energy) or the mining
sector that was designated as a FAST-41 sector in January 2021. Of
these FINs, all but one were either rejected for failing to meet the
FAST-41 eligibility criteria or were withdrawn by the project sponsor
for other reasons. Since the Permitting Council voted to designate
mining as a FAST-41 sector in January 2021, only two project sponsors
have sought FAST-41 coverage for their mining projects, both of which
were critical minerals mining projects. One project sponsor did not
perfect its FIN and withdrew its application, and the other mining
project has become a FAST-41 covered project.\11\ The proposed revision
to expressly expand the potential for FAST-41 coverage to critical
minerals beneficiation, processing, and recycling infrastructure
projects similarly is not expected to result in a significant number of
new FAST-41 covered projects. Accordingly, although the Permitting
Council believes the proposed revision will result in FAST-41 coverage
for some potentially important critical minerals supply chain
infrastructure projects, the Permitting Council does not believe that
this change alone would result in receiving a large number of new
FINs--likely 15 or fewer--for FAST-41 coverage in the revised mining
sector. The Permitting council believes that a smaller subset of these
FINs--likely 10 or fewer--will result in new FAST-41 covered projects.
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\11\ See https://www.permits.performance.gov/permitting-project/fast-41-covered-projects/south32-hermosa-critical-minerals-project.
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Revising the FAST-41 mining sector could result in reduced costs
for any critical minerals mining and supply-chain project sponsor that
obtains FAST-41 coverage for its project and potentially for the
Federal agencies with review and permitting responsibilities for the
covered project, by virtue of the potentially improved timeliness,
predictability, and transparency in the process; 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 cannot know in advance precisely how many projects
will be covered as a result of the proposed modification to the FAST-41
mining sector, 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 project, it is impossible to
predict with any reliability or specificity what, if any, economic
benefit might broadly accrue as a result of revising the FAST-41 mining
sector.
The proposed modifications to the FAST-41 mining sector will not
directly increase or decrease the costs to agencies of complying with
the substantive provisions of FAST-41. Although administering the
provisions of FAST-41 have costs associated with them (including staff
and resources to administer and coordinate permitting timetables and
associated reporting), it is unlikely that the proposed changes to the
FAST-41 mining sector will increase the number of FAST-41 covered
projects such that these costs
[[Page 65354]]
would increase significantly. There likely would be costs to the
Permitting Council associated with any additional project that might
become a covered project, but that is true with or without the proposed
modifications, and administering such projects pursuant to the
requirements of FAST-41 is a Permitting Council core function for which
Congress provides funding in the ERIF.
FAST-41 does not impose any regulatory requirements on covered
project sponsors; the implementation obligations of FAST-41 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 are 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)(1)(C). Because the Permitting Council
anticipates receiving few additional project FINs as a result of the
proposed modifications to the FAST-41 mining sector, and the burden
associated with preparing a FIN is minimal, the additional economic
cost associated with the proposed modifications the FAST-41 mining
sector, if any, would be negligible. The Permitting Council invites
comment on this economic analysis, including the expectations about the
likely number of FAST-41 applications with and without these changes.
Procedural Matters
Regulatory Planning and Review (E.O. 12866) and Improving Regulation
and Regulatory Review (E.O. 13563)
This action is a significant regulatory action that was submitted
to OMB for review.
Regulatory Flexibility Act (RFA), as Amended by the Small Business
Regulatory Enforcement Fairness Act (SBREFA), 5 U.S.C. 601 et seq.
Congress enacted the RFA to ensure that government regulations do
not unnecessarily or disproportionately burden small entities. Small
entities include small businesses, small governmental jurisdictions,
and small not-for-profit enterprises. The RFA generally requires that
Federal agencies prepare a regulatory flexibility analysis for
regulatory proposals that are subject to the notice and comment
rulemaking requirements of 5 U.S.C. 503 if the proposal would have a
significant economic impact, either detrimental or beneficial, on a
substantial number of small entities. See 5 U.S.C. 601-612. Pursuant to
5 U.S.C. 605(b), the Permitting Council certifies that the proposed
modifications to the pool of FAST-41 eligible mining projects and
expansion of potential FAST-41 eligibility to sponsors of qualified
critical mineral beneficiation, processing, and recycling 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.
As explained in the Economic Analysis section of this proposal, the
Permitting Council anticipates that the revision of the FAST-41 mining
sector will result in the submission of 15 or fewer additional FINs, at
least some of which, based on the Permitting Council's past experience
with project FINs that involve mining and the other FAST-41 sectors,
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 15 or fewer project sponsors that
submit FINs for mining projects could be small entities. The Permitting
Council reviewed the Small Business Administration size standards for
small businesses across the mining industry, and, depending on the
nature of the minerals mined, the threshold for small North American
Industry Classification System (NAICS) Sector-21 mining entities ranges
from below 250 employees to below 1,500 employees. Because 15 or fewer
entities likely will be affected, the Permitting Council does not
anticipate that the proposed revisions to the FAST-41 mining sector
will affect substantial number of small entities.
Nor will revising the FAST-41 mining sector significantly or
disproportionately impose costs on any small entity that may be
impacted. 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 Executive Director 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 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 the Executive Director will review the FIN in accordance with 42
U.S.C. 4370m-2(a)(1) and (b)(2) and associated guidance \12\ to
determine whether the project is a FAST-41 covered project. 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. As explained in the
Economic Analysis section of this proposal, any potential economic
benefits that might accrue to a covered project sponsor by virtue of
the project's FAST-41 covered status are speculative and project-
specific. Accordingly, the proposed modifications to the FAST-41 mining
sector will not significantly affect a substantial number of small
entities, and the RFA does not apply.
---------------------------------------------------------------------------
\12\ See OMB M-17-14, Guidance to Federal Agencies Regarding the
Environmental Review and Authorization Process for Infrastructure
Projects (2017 Guidance) (Jan. 13, 2017) https://www.permits.performance.gov/tools/fast-41-implementation-guidance;
Permitting Council Executive Director Role and Responsibilities in
FAST-41 Project Coverage Determinations, Executive Director
Memorandum (Jan. 12, 2021) https://www.permits.performance.gov/documentation/ed-memo-ed-role-and-responsibilities-fast-41-project-coverage-determinations; see also In re Atlantic Shores North,
Executive Director Final Determination of Covered Status No. 2022-02
(Sep. 2, 2022), https://www.permits.performance.gov/fpisc-content/fpisc-ed-final-determination-covered-project-status-re-atlantic-shores-north.
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[[Page 65355]]
Unfunded Mandates Reform Act (UMRA), 2 U.S.C. 1501 et seq.
The proposed 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, local, or tribal governments or the private sector.
Therefore, a statement containing the information required by the UMRA
is not required. The proposed 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 proposed 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 proposed 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 proposal affects only the eligibility of
mining project proponents and certain critical minerals supply chain
project sponsors 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 proposal 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 proposed rule does not involve an agency request for information,
nor does it require an information response. The proposal 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 that seek FAST-41 coverage. The proposal 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 effects of major Federal actions significantly affecting
the quality of the human environment. The proposed rule does not make
any project-level decisions and does not affect the human environment.
By statute, in order to be a FAST-41 covered project, the project must
be subject to NEPA review or a NEPA equivalent process, which FAST-41
does not alter. 42 U.S.C. 4370m(6)(A); id. 4370m-4; id. 4370m-11 (NEPA
unaffected). FAST-41 focuses on facilitating interagency coordination
and agency accountability for administering Federally directed
environmental reviews and permitting timetables. 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)(2); 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(e)(1) (``Nothing
in [FAST-41] 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). 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 critical minerals mining, beneficiation,
processing, and recycling projects does not make any such 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) (``Nothing in [FAST-41] . . .
creates a presumption that a covered project will be approved or
favorably reviewed by any agency''). Based on this analysis, the
Permitting Council has preliminarily determined that this rulemaking
action is not a major Federal Action under NEPA and would not impact
the human environment.
Effects on the Energy Supply (E.O. 13211)
This proposed 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. Revising the FAST-41 mining sector to focus on
critical minerals mining and critical minerals beneficiation,
processing, and recycling will not itself 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 pursuant to FAST-41 statutory criteria.
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, the proposal to add 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.
List of Subjects in 40 CFR Part 1900
Critical minerals, Infrastructure, Mineral beneficiation, Mineral
processing, Mineral recycling, Mineral resources, Mines, Permitting,
Reporting and recordkeeping requirements, Underground mining.
For the reasons stated in the preamble, and under the authority
stated below, the Federal Permitting Improvement Steering Council
proposes to revise part 1900 to title 40 of the Code of Federal
Regulations as follows:
PART 1900--FEDERAL PERMITTING IMPROVEMENT
0
1. The authority citation for part 1900 continues to read as follows:
Authority: 42 U.S.C. 4370m et seq.
0
2. Revise Sec. 1900.1 to read as follows:
Sec. 1900.1 Definitions.
For the purposes of this part, the following terms shall have the
meaning indicated:
Beneficiation means the preparation of ores to regulate the size
(including crushing and grinding) of the product, to remove unwanted
constituents, or to improve the quality, purity, or grade of a desired
product.
[[Page 65356]]
Critical Mineral has the meaning given the term in section 7002(a)
of the Energy Act of 2020 (30 U.S.C. 1606(a)) and enumerated by the
Director of the U.S. Geological Survey at 87 FR 10381 and any
successive U.S. Geological Survey Director enumerations made pursuant
to that authority, and any amendments to the enumerations by Act of
Congress.
Critical Minerals Project means a project for which the primary
product or co-product by economic value is a critical mineral.
Extraction means the activities performed to extract or harvest
minerals or natural resources from the ground or a body of water,
including, but not limited to, by operating equipment to extract or
harvest minerals or natural resources from mines and wells, or to
extract minerals or natural resources from the waste or residue of
prior extraction.
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 a process for which the primary purpose is extracting
minerals from the ground. Mining does not include the process of
extracting oil or natural gas.
Processing means the refining of materials, including the treating,
baking, and coating processes used to convert raw products into
constituent materials.
Recycling means the process of collecting and processing spent
materials and devices and turning the materials and devices into raw
materials or components that can be reused either partially or
completely.
0
3. Amend Sec. 1900.2 by revising paragraph (a) to read as follows:
Sec. 1900.2 FAST-41 sectors.
* * * * *
(a) Critical minerals mining, extraction, beneficiation,
processing, and recycling.
* * * * *
Eric Beightel,
Executive Director, Federal Permitting Improvement Steering Council.
[FR Doc. 2023-20270 Filed 9-21-23; 8:45 am]
BILLING CODE 6820-PL-P