Adding Mining as a Sector of Projects Eligible for Coverage Under Title 41 of the Fixing America's Surface Transportation Act
| Published date | 27 November 2020 |
| Citation | 85 FR 75998 |
| Record Number | 2020-25235 |
| Section | Proposed rules |
| Court | Federal Permitting Improvement Steering Council |
Federal Register, Volume 85 Issue 229 (Friday, November 27, 2020)
[Federal Register Volume 85, Number 229 (Friday, November 27, 2020)]
[Proposed Rules]
[Pages 75998-76003]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-25235]
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FEDERAL PERMITTING IMPROVEMENT STEERING COUNCIL
40 CFR Chapter IX
[FPISC Case 2020-001; Docket No. 2020-0018; Sequence No. 1]
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: Proposed rule.
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SUMMARY: The Federal Permitting Improvement Steering Council
(Permitting Council) proposes 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). Current FAST-41
sectors include renewable and conventional energy production,
electricity transmission, surface transportation, aviation, ports and
waterways, water resource projects, broadband, pipelines, and
manufacturing. The addition of mining as a FAST-41 sector would allow a
qualified mining infrastructure project to become a FAST-41 covered
project. FAST-41 coverage does not predetermine the outcome of any
Federal decision making process, but is intended to improve the
timeliness, predictability, and transparency of the Federal
environmental review and authorization processes for covered
infrastructure projects.
DATES: Please send your comments on this proposal to the Permitting
Council Office of the Executive Director on or before December 28,
2020.
ADDRESSES: You may send comments, identified by FPISC Case 2020-001, or
RIN 3121-AA01, by any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for sending comments.
Mail: Federal Permitting Improvement Steering Council,
Office of the Executive Director, 1800 G St. NW, Suite 2400,
Washington, DC 20006, Attention: RIN 3121-AA01.
Instructions: Please submit comments only and cite FPISC Case 2020-
001 in all correspondence related to this case. All comments received
will be posted without change to http://www.regulations.gov, including
any personal and/or business confidential information provided. To
confirm receipt of your comment(s), please check www.regulations.gov
approximately two-to-three business days after submission to verify
posting (except allow 30 days for posting of comments submitted by
mail).
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, seven days a
week. You will receive a reply to a message during normal business
hours.
SUPPLEMENTARY INFORMATION: Title 41 of the Fixing America's Surface
Transportation Act (FAST-41), 42 U.S.C. 4370m et seq., established the
Federal Permitting Improvement Steering Council (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 council
members, the Chairman of the Council on Environmental Quality (CEQ) and
the Director of the Office of Management and Budget (OMB). 42 U.S.C.
4170m-1(a) & (b). The Permitting Council and the procedural provisions
of FAST-41 can improve the timeliness, predictability, and transparency
of the Federal environmental review and authorization processes for
``covered'' infrastructure projects. See 42 U.S.C. 4370m-2, 4370m-4.
The FAST-41 statute provides that infrastructure projects in the
following 10 sectors are 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;
and (10) manufacturing. 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.
To qualify for FAST-41 coverage, an infrastructure project in a
FAST-41 sector must be located in the United States and require
environmental review and authorization by a Federal agency. Id. A
project also must: (i) Be subject to review under the National
Environmental Policy Act (NEPA), 42 U.S.C. 4321 et seq.; (ii) be likely
to require a total investment of $200 million or more; and (iii) not
qualify for abbreviated authorization or environmental review processes
under any applicable law. 42 U.S.C. 4370m(6)(A)(i). Alternatively, a
project in a FAST-41 sector could qualify for FAST-41 coverage if: (i)
It is subject to
[[Page 75999]]
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 (EIS) is required. 42 U.S.C. 4370m(6)(A)(ii). Projects
that are subject to the Department of Transportation's procedures for
Efficient Environmental Reviews for Project Decisionmaking pursuant to
23 U.S.C. 139, and projects subject to the Department of the Army's
Project Acceleration Procedures pursuant to 33 U.S.C. 2348, cannot
become FAST-41 covered projects. 42 U.S.C. 4370m(6)(B); see also 49
U.S.C. 24201 (Requiring Department of Transportation to apply its
Efficient Environmental Reviews for Project Decisionmaking procedures
to certain railroad projects, thereby precluding those projects from
FAST-41 coverage). The Permitting Council applies the FAST-41 covered
project eligibility requirements consistent with OMB M-17-14, Guidance
to Federal Agencies Regarding the Environmental Review and
Authorization Process for Infrastructure Projects (FAST-41 Guidance),
issued jointly by CEQ and OMB on January 17, 2017 pursuant to 42 U.S.C.
4370m-1(c)(1)(D).\1\
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\1\ Available at https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/memoranda/2017/m-17-14.pdf.
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The Permitting Council proposes to add mining to the list of FAST-
41 sectors identified in 42 U.S.C. 4370m(6)(A). This addition would
enable sponsors of qualified mining projects to seek the same FAST-41
coverage currently available to qualified projects in the statutorily
identified FAST-41 sectors. After considering the comments received in
response to this proposed rule, the Permitting Council will vote on the
proposal to include mining as a FAST-41 sector. If a majority of the
councilmembers vote in favor of including mining, the Permitting
Council will promulgate a final rule at 40 CFR part 1900 that adds
mining as a FAST-41 sector. The Permitting Council seeks public comment
on 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.
Designating mining as a FAST-41 sector is not a determination that
any particular mining project will qualify as a FAST-41 covered project
and 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 mining project sponsor, like project
sponsors in the other FAST-41 sectors, must first demonstrate that its
project meets the criteria for coverage 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. 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 Permitting Dashboard,\2\ 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 does not
meet the statutory covered project criteria. 42 U.S.C. 4370m-
2(b)(2)(A)(ii).
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\2\ 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
certain legal protections. 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 interagency disputes and disputes involving the project
sponsor. 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
milestones and timetables. 42 U.S.C. 4370m-2(c)(2)(D) (Modification
after approval). The statute also provides certain legal protections,
such as a two-year limitations period for claims related to agency
authorizations for covered projects, and specific criteria for granting
injunctive relief. 42 U.S.C. 4370m-6 (Litigation, judicial review, and
savings provision).
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)(2); id. 4370m-
6(d)(i) (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)(i) (``Nothing in
this section preempts, limits, or interferes with . . . any practice of
seeking, considering, or responding to public comment''); id. 4370m-
6(e)(ii) (``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, designating mining as a FAST-41
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'').
The Permitting Council has twice voted on proposals to include
mining as a FAST-41 sector. On May 14, 2019, the Permitting Council
voted in favor of a proposal to add as a FAST-41 sector mining projects
that involve construction of infrastructure for extraction of locatable
minerals, leasable minerals, and saleable minerals located on Federal
lands. On January 15, 2020, the Permitting Council voted in favor of a
refined proposal to add as a FAST-41 sector only ``non-energy mining''
because, in the Permitting Council's view, it was unnecessary to extend
duplicative FAST-41 coverage to mining projects that were eligible for
coverage under the statutory FAST-41 sectors, such as the conventional
energy sector. The January 2020 vote also expanded the scope of the
proposed sector to cover non-energy mining on non-Federal as well as
Federal lands, and to include mining for critical minerals. The
Permitting Council has determined that it would be appropriate to
solicit and consider public comments on this topic before adding mining
as a FAST-41 sector.
[[Page 76000]]
Specifically, the Permitting Council proposes to designate all
mining as a FAST-41 sector. This proposed designation includes mining
on and off federally managed lands, mining of federally managed and
non-Federally managed minerals, and mining of any mineral, ore, or raw
material extracted from the ground, regardless of whether such mineral,
ore, or raw material is used for energy production, manufacturing, or
any other purpose. Oil and gas exploration and production are not
included in the proposed FAST-41 mining sector.
The FAST-41 statute does not provide or imply that a project must
fall within only one FAST-41 sector. Indeed, a number of projects
currently covered under FAST-41 are eligible for coverage under a
number of FAST-41 sectors. For example, a project involving a natural
gas pipeline and a coastal liquefied natural gas export facility could
be covered under the statutory ``conventional energy production,''
``pipelines,'' or ``ports and waterways'' sectors. A natural gas
pipeline project could be covered under either the ``conventional
energy production'' or ``pipelines'' sectors. Likewise, a uranium
mining project could be covered under either the ``conventional energy
production'' or the proposed ``mining'' sector described herein. As
with the other FAST-41 sectors, the Permitting Council will decide at
the time of coverage which sector is most appropriate for the specific
project proposed. See FAST-41 Guidance at 19-21.
The purpose of this proposed rule, like the Permitting Council's
previous vote on the proposal to add ``non-energy mining,'' is to
ensure that any qualified mining sector projects that are not part of a
statutory FAST-41 sector have the option to become FAST-41 covered
projects. Accordingly, the Permitting Council proposes to add
``mining'' as a FAST-41 sector. The Permitting Council also proposes to
define ``mining'' for the purpose of 42 U.S.C. 4370m(6)(A) as the
process of extracting ore, minerals, or raw materials from the ground.
As a result, projects (i) ``that involve the construction of
infrastructure,'' (ii) to extract ore, minerals, or raw materials from
the ground, and (iii) that meet the other ``covered project'' criteria
of 42 U.S.C. 4370m(6) will be eligible for FAST-41 coverage.
The Permitting Council continues to believe that, like the other
FAST-41 sectors, mining, including non-energy mining, is an important
infrastructure sector. Mining projects also can involve the
construction of significant infrastructure, involve substantial
investment, and, in certain circumstances, necessitate extensive
Federal review and authorization. Accordingly, like qualified projects
from the statutory FAST-41 sectors, mining projects that satisfy the
other requirements of 42 U.S.C. 4370m(6) could benefit from the
enhanced interagency coordination and permitting timeline
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 60,835 (Dec. 20, 2017).
I. 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. See Permitting Council, FAST-41 Annual Report to Congress for
FY 2019, and related documents, available at https://www.permits.performance.gov/fpisc-content/fast-41-annual-report-congress-fy-2019. 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 indicate how many, if any, mining
project FINs will be submitted to the Permitting Council for coverage
or how many projects ultimately will be covered. 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 how many mining
projects may become covered projects, the number will be small. The
eligibility criterion for FAST-41 coverage is 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); FAST-
41 Guidance, Sec. 3 (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
FAST-41's enactment in 2015, a total of 52 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 pursuant to 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.
Adding mining as a FAST-41 sector likely will result in only a
small number of new covered projects through 2022. Since the enactment
of FAST-41 in 2015, 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. The Permitting Council
anticipates receiving very few--likely 10 or fewer--additional project
FINs through 2022 as a result of adding mining as a FAST-41 sector,
particularly given that the FAST-41 program is currently scheduled to
sunset in 2022 (42 U.S.C. 4370m-12). Moreover, based on historical
experience, only a portion of the newly submitted FINs likely will
become covered projects. It is therefore unlikely that adding mining to
the 10 statutory 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,
[[Page 76001]]
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 projects will be covered as FAST-41
mining 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.
The proposal to add 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.
II. Procedural Matters
A. 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.
B. Reducing Regulation and Controlling Regulatory Costs (E.O. 13771)
This proposed rule is expected to be an E.O. 13771 deregulatory
action. A discussion of the potential economic benefits of this
proposed rule can be found in the rule's economic analysis.
C. 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 proposal to
provide 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.
As explained in the Economic Analysis section of this proposal, 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. 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 (for anthracite, or uranium-radium-vanadium ore
mining) to below 1,500 employees (for underground bituminous coal
mining and gold mining). The small entity threshold for other forms of
hardrock and ``other'' mining projects falls within this range.
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 successful 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 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. As
explained in the Economic Analysis
[[Page 76002]]
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,
adding mining as FAST-41 sector will not significantly affect a
substantial number of small entities, and the RFA does not apply.
C. Congressional Review Act
The proposed 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 proposal will not have
an annual effect on the economy of $100 million or more.
D. 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.
E. 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 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.
F. 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.
III. Paperwork Reduction Act
The proposed rule does not involve an agency request for
information, nor does it require an information response subject to
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). 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 seeking FAST-41 coverage. The proposal
could result in a small increase in the number of project sponsors
submitting FINs to the Permitting Council.
IV. National Environmental Policy Act
NEPA requires agencies to consider the reasonably foreseeable
environmental consequences 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 authorize any
activity or commit resources to a project that may affect the
environment. Furthermore, under FAST-41 all eligible 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)(2); 42 U.S.C. 4370m-6(d)(i) (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)(i) (``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). 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) (``Nothing in [FAST-41] . . .
creates a presumption that a covered project will be approved or
favorably reviewed by any agency'').
V. 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. As noted above, 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 proposal 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, 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 infrastructure, Infrastructure, Mines, Mineral resources,
Permitting, Reporting and recordkeeping requirements, Underground
mining.
Nicholas Falvo,
Attorney Advisor, Federal Permitting Improvement Steering Council.
For the reasons stated in the preamble, under the authority of 42
U.S.C. 4370m et seq., FPISC proposes to add chapter IX to title 40 of
the Code of Federal regulations as set forth below:
CHAPTER IX--FEDERAL PERMITTING IMRPOVEMENT STEERING COUNCIL
0
1. Add chapter IX to read as follows:
[[Page 76003]]
PART 1900--FEDERAL PERMITTING IMPROVEMENT
Sec.
1900.1 Definitions.
1900.2 FAST-41 Sectors.
Authority: 42 U.S.C. 4370m et seq.
1900.1 Definitions.
For the purposes of this part, the following terms shall have the
meaning indicated:
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.
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.
[FR Doc. 2020-25235 Filed 11-25-20; 8:45 am]
BILLING CODE 6820-PL-P
