65350 Federal Register / Vol. 88, No. 183 / Friday, September 22, 2023 / Proposed Rules 

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’’). 

reference, Nitrogen dioxide, Particulate 

matter, Sulfur dioxide, Reporting and 

recordkeeping requirements, Volatile 

organic compounds. 

Authority: 42 U.S.C. 7401 et seq. 

Dated: September 18, 2023. 

Martha Guzman Aceves, 

Regional Administrator, Region IX. 

[FR Doc. 2023–20555 Filed 9–21–23; 8:45 am] 

BILLING CODE 6560–50–P 

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. 

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, john.cossa@

fpisc.gov, 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). 

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 


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3Project 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. 4Available at https://www.permits.

performance.gov/. 

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). 

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 decisionmaking 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’’). 


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5See https://www.energy.gov/diversity/ 

community-benefit-agreement-cba-toolkit. 

6See https://www.doi.gov/sites/doi.gov/files/ 

biden-harris-administration-fundamentalprinciples-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/fy2022-recommended-best-practices-report. 

7See https://www.doi.gov/sites/doi.gov/files/ 

biden-harris-administration-fundamentalprinciples-for-domestic-mining-reform.pdf. 

8Public Law 116–260, 134 Stat. 1182, 2562 (Dec. 

27, 2020), codified at 30 U.S.C. 1606. 

9See 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). 

III. Proposal To Revise and Expand the 

Scope of the FAST–41 Mining 

Infrastructure Sector 

In conjunction with a public noticeand-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 businessas-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. 

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

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. 

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 mineralsrelated 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. 

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 


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10The 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). 

11See https://www.permits.performance.gov/ 

permitting-project/fast-41-covered-projects/ 

south32-hermosa-critical-minerals-project. 

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 noncritical 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. 

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. 

Revising the FAST–41 mining sector 

could result in reduced costs for any 

critical minerals mining and supplychain 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 


lotter on DSK11XQN23PROD with PROPOSALS1
65354 Federal Register / Vol. 88, No. 183 / Friday, September 22, 2023 / Proposed Rules 

12See 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-andresponsibilities-fast-41-project-coveragedeterminations; 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/fpisced-final-determination-covered-project-status-reatlantic-shores-north. 

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. 


lotter on DSK11XQN23PROD with PROPOSALS1
Federal Register / Vol. 88, No. 183 / Friday, September 22, 2023 / Proposed Rules 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 

■ 1. The authority citation for part 1900 

continues to read as follows: 

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

■ 2. Revise § 1900.1 to read as follows: 

§ 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. 


lotter on DSK11XQN23PROD with PROPOSALS1
65356 Federal Register / Vol. 88, No. 183 / Friday, September 22, 2023 / Proposed Rules 

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. 

■ 3. Amend § 1900.2 by revising 

paragraph (a) to read as follows: 

§ 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 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[Docket No. FWS–R4–ES–2023–0103; 

FF09E21000 FXES1111090FEDR 234] 

RIN 1018–BG31 

Endangered and Threatened Wildlife 

and Plants; Threatened Species Status 

With Section 4(d) Rule for the Miami 

Cave Crayfish 

Correction 

In proposed rule document 2023– 

20293, appearing on pages 64856–64870 

in the issue of Wednesday, September 

20, 2023, make the following correction: 

§ 17.46 [Corrected] 

D On page 64870, in the first column, in 

the fourth and fifth lines after the table 

at the top of the page, ‘‘(e) Miami cave 

crish (Procambarus milleri).’’ should 

read ‘‘(e) Miami cave crayfish 

(Procambarus milleri).’’ 

[FR Doc. C1–2023–20293 Filed 9–21–23; 8:45 am] 

BILLING CODE 0099–10–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 665 

[Docket No. 230918–0221] 

RIN 0648–BM34 

Pacific Island Fisheries; 5-Year 

Extension of Moratorium on Harvest of 

Gold Corals 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Proposed rule; request for 

comments. 

SUMMARY: This proposed rule would 

extend the current region-wide 

moratorium on the harvest of gold corals 

in the U.S. Pacific Islands through June 

30, 2028. NMFS intends this proposed 

rule to prevent overfishing and to 

stimulate research on gold corals. 

DATES: NMFS must receive comments 

by October 23, 2023. 

ADDRESSES: You may submit comments 

on this document, identified by NOAA– 

NMFS–2023–0071, by either of the 

following methods: 

• Electronic Submission: Submit all 

electronic public comments via the 

Federal e-Rulemaking Portal. Go to 

https://www.regulations.gov and enter 

NOAA–NMFS–2023–0071 in the Search 

box. Click on the ‘‘Comment’’ icon, 

complete the required fields, and enter 

or attach your comments. 

• Mail: Send written comments to 

Sarah Malloy, Acting Regional 

Administrator, NMFS Pacific Islands 

Regional Office (PIRO), 1845 Wasp 

Blvd., Bldg. 176, Honolulu, HI 96818. 

Instructions: Comments sent by any 

other method, to any other address or 

individual, or received after the end of 

the comment period, will not be 

considered by NMFS. All comments 

received are a part of the public record 

and will generally be posted for public 

viewing on https://www.regulations.gov 

without change. All personal identifying 

information (e.g., name, address, etc.), 

confidential business information, or 

otherwise sensitive information 

submitted voluntarily by the sender will 

be publicly accessible. NMFS will 

accept anonymous comments (enter ‘‘N/ 

A’’ in the required fields if you wish to 

remain anonymous). 

FOR FURTHER INFORMATION CONTACT: Pua 

Borges, NMFS PIRO Sustainable 

Fisheries, 808–725–5184. 

SUPPLEMENTARY INFORMATION: Jewelry 

designers use small amounts of precious 

corals to adorn their products. The 

precious corals fishery in the U.S. 

Pacific Islands include black, pink, 

bamboo, and gold corals. They are slowgrowing and have low rates of natural 

mortality and recruitment. Unexploited 

populations are relatively stable, and a 

wide range of age classes is generally 

present in those populations. Due to the 

great longevity of individuals and the 

associated slow population turnover 

rates, a long period of reduced fishing 

effort is required to restore a stock’s 

ability to produce at the maximum 

sustainable yield if a stock has been 

over-exploited. Fishermen harvest 

precious corals by various methods, 

including by hand-harvesting and by 

submersible. 

Gold corals are suspension feeders 

and live in deep water (100–1,500 

meters (m)) on hard substrates where 

bottom currents are strong, such as 

seamounts, ledges, pinnacles, walls, and 

cliffs. Prior fishing effort harvested gold 

corals by submersible or tangle net 

dredges. There are several beds of gold 

corals (Gerardia spp., Callogorgia 

gilberti, Narella spp., and Calyptrophora 

spp.) in the U.S. Exclusive Economic 

Zone (EEZ; generally 3–200 nautical 

miles (6–370 kilometers) from shore) 

around Hawaii. Gold coral distribution 

and abundance are unknown in the 

region beyond Hawaii, but they likely 

occur in the EEZ around American 


lotter on DSK11XQN23PROD with PROPOSALS1