[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:
    <bullet> Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the instructions for sending comments.
    <bullet> 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, <a href="/cdn-cgi/l/email-protection#f892979096d69b978b8b99b89e88918b9bd69f978e"><span class="__cf_email__" data-cfemail="ddb7b2b5b3f3beb2aeaebc9dbbadb4aebef3bab2ab">[email protected]</span></a>, 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.

---------------------------------------------------------------------------

[[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


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