44846 Federal Register / Vol. 83, No. 171 / Tuesday, September 4, 2018 / Proposed Rules 

AD, if requested using the procedures found 

in 14 CFR 39.19. In accordance with 14 CFR 

39.19, send your request to your principal 

inspector or local Flight Standards District 

Office, as appropriate. If sending information 

directly to the International Section, send it 

to the attention of the person identified in 

paragraph (i)(2) of this AD. Information may 

be emailed to: 9-ANM-116-AMOCREQUESTS@faa.gov. Before using any 

approved AMOC, notify your appropriate 

principal inspector, or lacking a principal 

inspector, the manager of the local flight 

standards district office/certificate holding 

district office. 

(2) Contacting the Manufacturer: For any 

requirement in this AD to obtain corrective 

actions from a manufacturer, the action must 

be accomplished using a method approved 

by the Manager, International Section, 

Transport Standards Branch, FAA; or the 

European Aviation Safety Agency (EASA); or 

Airbus SAS’s EASA Design Organization 

Approval (DOA). If approved by the DOA, 

the approval must include the DOAauthorized signature. 

(3) Required for Compliance (RC): If any 

service information contains procedures or 

tests that are identified as RC, those 

procedures and tests must be done to comply 

with this AD; any procedures or tests that are 

not identified as RC are recommended. Those 

procedures and tests that are not identified 

as RC may be deviated from using accepted 

methods in accordance with the operator’s 

maintenance or inspection program without 

obtaining approval of an AMOC, provided 

the procedures and tests identified as RC can 

be done and the airplane can be put back in 

an airworthy condition. Any substitutions or 

changes to procedures or tests identified as 

RC require approval of an AMOC. 

(i) Related Information 

(1) Refer to Mandatory Continuing 

Airworthiness Information (MCAI) EASA AD 

2018–0108, dated May 15, 2018, for related 

information. This MCAI may be found in the 

AD docket on the internet at http://

www.regulations.gov by searching for and 

locating Docket No. FAA–2018–0761. 

(2) For more information about this AD, 

contact Kathleen Arrigotti, Aerospace 

Engineer, International Section, Transport 

Standards Branch, FAA, 2200 South 216th 

St., Des Moines, WA 98198; telephone and 

fax 206–231–3218. 

(3) For service information identified in 

this AD, contact Airbus SAS, Airworthiness 

Office—EAL, Rond-Point Emile Dewoitine 

No: 2, 31700 Blagnac Cedex, France; 

telephone +33 5 61 93 36 96; fax +33 5 61 

93 45 80; email continuedairworthiness.a350@airbus.com; internet 

http://www.airbus.com. You may view this 

service information at the FAA, Transport 

Standards Branch, 2200 South 216th St., Des 

Moines, WA. For information on the 

availability of this material at the FAA, call 

206–231–3195. 

Issued in Des Moines, Washington, on 

August 17, 2018. 

Michael Kaszycki, 

Acting Director, System Oversight Division, 

Aircraft Certification Service. 

[FR Doc. 2018–18993 Filed 8–31–18; 8:45 am] 

BILLING CODE 4910–13–P 

FEDERAL PERMITTING 

IMPROVEMENT STEERING COUNCIL 

40 CFR Chapter IX 

[FPISC Case 2018–001; Docket No. 2018– 

0008; Sequence No. 1] 

RIN 3090–AJ88 

Fees for Governance, Oversight, and 

Processing of Environmental Reviews 

and Authorizations by the Federal 

Permitting Improvement Steering 

Council 

AGENCY: Federal Permitting 

Improvement Steering Council. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: This notice of proposed 

rulemaking proposes to establish an 

initiation fee for project sponsors to 

reimburse the Federal Permitting 

Improvement Steering Council—Office 

of the Executive Director (FPISC–OED) 

for reasonable costs to implement 

certain requirements and authorities 

required under Title 41 of the Fixing 

America’s Surface Transportation Act 

(FAST–41) and costs of operating 

FPISC–OED. FAST–41 creates a new 

authority to establish a fee structure to 

reimburse reasonable costs incurred in 

implementing certain requirements and 

authorities including the costs to 

agencies and the costs of operating the 

Permitting Council. In this rulemaking, 

we propose an initiation fee that would 

cover only reasonable costs for FPISC– 

OED’s operations and costs to provide 

oversight and support to implement 

FAST–41. We seek comments on all 

aspects of the proposed rulemaking. 

DATES: We will accept comments, data, 

and information regarding this proposed 

rule no later than November 5, 2018. 

ADDRESSES: Submit comments in 

response to FPISC Case 2018–001 by 

any of the following methods: 

• Regulations.gov: http://

www.regulations.gov. Submit comments 

via the Federal eRulemaking portal by 

entering ‘‘FPISC Case 2018–001’’, under 

the heading ‘‘Enter Keyword or ID’’ and 

select ‘‘Search’’. Select the link ‘‘Submit 

a Comment’’ that corresponds with 

‘‘FPISC Case 2018–001’’ and follow the 

instructions provided at the ‘‘Comment 

Now’’ screen. Please include your name, 

company name (if any), and ‘‘FPISC 

Case 2018–001’’ on your attached 

document. 

• Mail: FPISC–OED, c/o General 

Services Administration, Regulatory 

Secretariat (MVCB), ATTN: Ms. Lois 

Mandell, 1800 F Street NW, 

Washington, DC 20405. 

Instructions: Please submit comments 

only and cite FPISC Case 2018–001 in 

all correspondence related to this case. 

All comments received will be posted 

without change to http://

www.regulations.gov, including any 

personal and/or business confidential 

information provided. To confirm 

receipt of your comment(s), please 

check www.regulations.gov 

approximately two to three days after 

submission to verify posting (except 

allow 30 days for posting of comments 

submitted by mail). 

FOR FURTHER INFORMATION CONTACT: 

Amber Levofsky, Federal Permitting 

Improvement Steering Council—Office 

of the Executive Director, 1800 F Street 

NW, Washington, DC 20504; telephone 

number: 202–412–2064; email address: 

amber.levofsky@fpisc.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

II. Authority 

III. Discussion 

A. Proposed Regulations 

i. § 1900.1 Purpose and Scope 

ii. § 1900.2 Definitions 

iii. § 1900.3 FAST–41 Initiation Fee 

B. Economic Impacts 

i. Benefits of the Initiation Fee to Project 

Sponsors of Covered Projects 

ii. Costs of the Initiation Fee to Project 

Sponsors of Covered Projects 

iii. Determination of Amount of Initiation 

Fee 

C. Issues on Which We Seek Comment 

i. Initiation Fee Non-Refundable and Due 

in Two Parts 

ii. Calculation of Initiation Fee 

iii. Exclusions 

D. Public Participation 

E. Docket 

IV. Regulatory Review 

A. Executive Order 12866 

i. Scope and Key Inputs to the Analysis 

ii. Costs 

iii. Benefits 

B. Paperwork Reduction Act 

C. Regulatory Flexibility Act 

D. Unfunded Mandates Reform Act 

E. Executive Order 13132: Federalism 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

G. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

H. National Environmental Policy Act 

I. Executive Order 13771: Reducing 

Regulation and Controlling Regulatory 

Costs 


sradovich on DSK3GMQ082PROD with PROPOSALS
Federal Register / Vol. 83, No. 171 / Tuesday, September 4, 2018 / Proposed Rules 44847 

I. Background 

Title 41 of the Fixing America’s 

Surface Transportation Act (Pub. L. 

114–94, secs. 41001 et seq. (Dec. 4, 

2015) (codified at 42 U.S.C. 4370m et 

seq.)) (FAST–41) seeks to encourage 

greater coordination across the Federal 

Government in environmental reviews 

and authorizations for large, complex 

infrastructure projects. To oversee its 

implementation, FAST–41 created the 

Federal Permitting Improvement 

Steering Council (FPISC or Permitting 

Council), which is chaired by an 

Executive Director appointed by the 

President and consists of Deputy 

Secretary-level members from 14 

Federal agencies, the Council on 

Environmental Quality (CEQ), and the 

Office of Management and Budget 

(OMB) (42 U.S.C. 4370m–1). The 14 

Federal agencies include 13 agencies 

designated in FAST–41 as enacted (42 

U.S.C. 4370m–1(b)(2)(B)), as well as the 

General Services Administration (GSA), 

which was invited to join the Permitting 

Council by the Executive Director 

pursuant to 42 U.S.C. 4370m– 

1(b)(2)(B)(xiv) on May 2, 2017. In 

addition, GSA was designated by the 

OMB Director to provide administrative 

support for the Executive Director and, 

as reasonably necessary, provide 

support and staff to enable the 

Executive Director to fulfill the duties of 

the position, effective March 1, 2016 (42 

U.S.C. 4370m–1(d)). GSA’s membership 

in the Permitting Council and its role in 

providing administrative support to the 

Permitting Council establish the basis 

for GSA to assist the FPISC with this 

proposal (The term ‘‘we’’ as used in this 

document refers to the Permitting 

Council). 

To become a new covered project 

under FAST–41, the project sponsor 

must submit a complete FAST–41 

initiation notice (FIN) and send it to the 

facilitating agency, as designated in the 

OMB and CEQ Guidance to Federal 

Agencies Regarding the Environmental 

Review and Authorization Process for 

Infrastructure Projects (FAST–41 

Implementation Guidance, published 

January 13, 2017) at https://

www.permits.performance.gov/tools/ 

fast-41-implementation-guidance, and 

the Executive Director. However, project 

sponsors have the option to engage and 

consult with potential lead, 

participating, and cooperating agencies 

(as defined in 42 U.S.C. 4370m) early in 

the project lifecycle, before they submit 

a FIN. FPISC–OED facilitates many of 

these consultations and discusses with 

the project sponsor the various 

considerations that project sponsors 

may take into account when 

determining whether and when to 

submit a FIN. For example, FPISC–OED 

will ensure the project sponsor knows 

who the facilitating agency would be for 

the project, the best approach in moving 

forward if there is a formalized preapplication process already in place, 

and an understanding of eligibility 

under FAST–41. For additional 

information on the requirements for a 

project to become covered under FAST– 

41 and the coordination recommended 

for project sponsors interested in 

submitting a FIN, see the FAST–41 

Implementation Guidance. 

If a FIN is approved and the project 

becomes a covered project under FAST– 

41, FPISC–OED supports the relevant 

Federal agencies and project sponsor 

during the Federal environmental 

review and authorization process. This 

support can include managing the 

integrity and content of data on the 

publicly-available Permitting Dashboard 

regarding schedules for the specific 

permits during the permitting process, 

verifying the accuracy of the data on a 

routine basis, assessing and determining 

the viability of modifications to 

schedules after they are posted on the 

Permitting Dashboard, and handling 

disputes between Federal agencies or 

between a project sponsor and a Federal 

agency related to the schedules (42 

U.S.C. 4370m–2(c)(2)). In addition, 

FPISC–OED facilitates regularly 

scheduled Permitting Council meetings, 

consultations with the Department of 

Transportation (DOT) on Permitting 

Dashboard management, and meetings 

with project sponsors regarding project 

status and any updates related to agency 

coordination. 

The duties of the Executive Director 

include, but are not limited to: 

• Developing, in consultation with 

the Permitting Council, ‘‘recommended 

performance schedules, including 

intermediate and final completion dates, 

for environmental reviews and 

authorizations most commonly required 

for each category of covered projects’’ 

(42 U.S.C. 4370m–1(c)(1)(C)); 

• Recommending, in consultation 

with the Permitting Council, to the 

Director of OMB or to CEQ, guidance for 

agencies to carry out the responsibilities 

of FAST–41(42 U.S.C. 4370m– 

1(c)(1)(D)); 

• Coordinating with the Permitting 

Council to issue yearly 

recommendations on best practices for 

the categories outlined in 42 U.S.C. 

4370m–1(c)(2)(B); 

• Coordinating with the Permitting 

Council to meet annually with groups or 

individuals representing State, tribal, 

and local governments that are engaged 

in the infrastructure permitting process 

(42 U.S.C. 4370m–1(c)(2)(C)); 

• Reviewing and approving any 

modifications of more than 30 days to 

the permitting schedule of covered 

projects to prevent undue delays and 

ensure a realistic and concurred-upon 

schedule has been developed, upon 

which all parties will act moving 

forward (42 U.S.C. 4370m– 

2(c)(2)(D)(i)(III)); and 

• Mediating disputes between project 

sponsors and relevant agencies related 

to the permitting timetable. If no 

conclusions are made after a total of 60 

days, the Office of Management and 

Budget will make a final decision (42 

U.S.C. 4370m–2(c)(2)(C). 

This document proposes to establish a 

required initiation fee for project 

sponsors to reimburse FPISC–OED for 

reasonable costs to implement the 

requirements and authorities mentioned 

above under FAST–41 and costs of 

operating FPISC–OED. The fee is 

necessary because as an oversight 

council, FPISC–OED is responsible for 

implementing the provisions of FAST– 

41 by facilitating and institutionalizing 

the transparency, accountability, and 

coordination among Federal agencies 

related to the Federal environmental 

review and authorization process. The 

fee allows FPISC–OED to carry out its 

obligations to improve the infrastructure 

permitting process. 

II. Authority 

Pursuant to 42 U.S.C. 4370m–8(a), the 

heads of Permitting Council agencies, 

with the guidance of the Director of 

OMB and in consultation with the 

Executive Director, may issue 

regulations establishing a fee structure 

to recover, from project sponsors, 

reasonable costs incurred in conducting 

environmental reviews and 

authorizations for infrastructure projects 

covered by FAST–41. Reasonable costs 

include costs to implement the 

requirements and authorities of 42 

U.S.C. 4370m–1 and 4370m–2, 

including (1) the costs to agencies and 

(2) the costs of operating the Council (42 

U.S.C. 4370m–8(b)), which includes 

FPISC–OED. 

III. Discussion 

A. Proposed Regulations 

i. § 1900.1 Purpose and Scope 

FAST–41 established a new 

governance structure, set of procedures, 

and authorities to improve the 

timeliness, predictability, and 

transparency of the Federal 

environmental review and authorization 

process for covered infrastructure 

projects. Section 1900.1 of this proposed 


sradovich on DSK3GMQ082PROD with PROPOSALS
44848 Federal Register / Vol. 83, No. 171 / Tuesday, September 4, 2018 / Proposed Rules 

regulation would restate the statutory 

requirement and introduce the purpose 

of the proposed requirements. Section 

1900.1 also would set the rule’s effective 

date (i.e., the date on which project 

sponsors would have to comply with 

the rule). 

We propose the effective date to be 

one day following publication of a final 

rule because we estimate that project 

sponsors will take only 2.5 hours to 

familiarize themselves with the rule, 

complete the FIN, and ensure that their 

accounting system(s) can transfer the 

appropriate initiation fee with the FIN. 

FAST–41 was signed into law in 

December 2015; since then, seven 

projects have submitted FINs and gone 

through the process of becoming 

covered projects. We request comment 

on the effective date of the proposed 

rule and whether the proposed effective 

date would provide project sponsors 

sufficient time to adequately comply 

with the regulations. 

ii. § 1900.2 Definitions 

Section 1900.2 would define key 

terms used throughout the proposed 

regulations, many of which were 

derived from FAST–41, with 

modifications where further 

clarification was needed. We propose to 

adopt the same definition of the 

following terms as they are defined in 

42 U.S.C. 4370m: ‘‘Agency,’’ ‘‘Covered 

project,’’ ‘‘Executive Director,’’ 

‘‘Facilitating agency,’’ ‘‘Lead agency,’’ 

‘‘NEPA,’’ and ‘‘Project sponsor.’’ In 

addition, we propose to add the 

following terms that have not been 

defined in FAST–41 to provide clarity 

for the regulations: 

(a) Business day. We propose that the 

term ‘‘business day’’ means Monday 

through Friday and excludes Federal 

legal holidays. 

(b) Environmental Review 

Improvement Fund. We propose that the 

term ‘‘Environmental Review 

Improvement Fund’’ refers to the fund 

described in 42 U.S.C. 4370m–8(d) 

which must be established in the 

Treasury of the United States to deposit 

any fees collected. The amounts 

available in the Environmental Review 

and Improvement Fund shall be 

available to the Executive Director, 

without appropriation or fiscal year 

limitation, solely for the purposes of 

administering, implementing, and 

enforcing FAST–41, including the 

expenses of the Council; 

(c) FAST–41. We propose to define 

the term ‘‘FAST–41’’ to mean Title 41 of 

the Fixing America’s Surface 

Transportation Act (Pub. L. 114–94, 

41001 et seq. (Dec. 4, 2015) (codified at 

42 U.S.C. 4370m et seq.)) which is the 

basis for this proposed regulation; 

(d) FAST–41 initiation notice (FIN). 

We propose to define the term ‘‘FAST– 

41 initiation notice,’’ which is not 

defined in Title 42 of the United States 

Code, as a FAST–41 initiation notice of 

a proposed covered project that a project 

sponsor submits to FPISC–OED and the 

facilitating agency; 

(e) FPISC–OED. We propose to define 

the term ‘‘FPISC–OED,’’ which is not 

defined in Title 42 of the United States 

Code, as the Federal Permitting 

Improvement Steering Council-Office of 

Executive Director that supports the 

Federal Permitting Improvement 

Steering Council in implementing the 

provisions of FAST–41; 

(f) Indian tribe. We propose to define 

the term ‘‘Indian tribe,’’ which is not 

defined in Title 42 of the United States 

Code, as any Indian tribe, band, nation, 

or other organized group or community, 

including any Alaskan Native village or 

regional or village corporation as 

defined in or established pursuant to the 

Alaska Native Claims Settlement Act (43 

U.S.C. 1601 et seq.), that is recognized 

as eligible for the special programs and 

services provided by the United States 

to Indians because of their status as 

Indians. 

(g) Initiation Fee. We propose to 

define the term ‘‘initiation fee,’’ which 

is not defined in Title 42 of the United 

States Code, as a non-refundable 

payment submitted by a project sponsor. 

The proposed rule provides more detail 

on the initiation fee amount and how it 

will be assessed. 

iii. § 1900.3 FAST–41 Initiation Fee 

In proposed section 1900.3(a), we 

propose an initiation fee of $200,000 per 

FIN submitted for each project by a 

project sponsor of a proposed covered 

project. An explanation of how this 

amount was determined is discussed in 

section B.iii of this proposed rule. The 

initiation fee would be due in two 

parts—$5,000 would be due at the time 

the project sponsor submits the FIN and 

$195,000 would be due within 10 

business days of a determination that 

the project is a covered project for 

purposes of FAST–41. The $5,000 nonrefundable portion was determined 

through analysis of FPISC–OED’s costs 

incurred on pre-coordination with 

project sponsors, pre-coordination with 

lead and cooperating agencies, and FIN 

review. If the project is determined not 

to be a covered project, the $5,000 

portion of the initiation fee would not 

be refunded and the $195,000 would not 

be assessed. We determined that 10 

business days was an appropriate 

balance of providing sponsors with 

sufficient time to prepare the necessary 

funds and wanting to start providing 

FPISC–OED services as soon as possible. 

That being said, we solicit public 

comment on whether we should 

consider a different period of time. 

In the future, we may need to adjust 

the amount of the initiation fee based on 

changes to program costs and the 

number of new FINs received. Section 

1900.3(b) sets out the mechanism by 

which the Permitting Council would be 

able to change the fee. The fee being set 

in this regulation is based, in part, on 

the fact that in fiscal year (FY) 2017 

FPISC–OED supported 35 covered 

projects. In the next few years, FPISC– 

OED anticipates additional projects 

becoming covered at the beginning of or 

in the early stages of project 

implementation. As a result, more 

coordination may be necessary between 

FPISC–OED, the Permitting Council 

agencies, and project sponsors. In 

addition, FPISC–OED’s costs are 

anticipated to increase based on the 

number of projects that are accepted as 

covered projects as a greater number of 

projects will require additional staff for 

support. If necessary, FPISC–OED 

would adjust the fee by developing an 

average hourly rate for government staff 

using the number of full time employees 

multiplied by the salary of each 

employee (based on the General 

Schedule classification and pay system), 

which also includes overhead and 

operational costs. For contractor support 

costs, FPISC–OED would use total 

contract costs divided by full time 

employees to develop an average hourly 

rate that also includes salary, overhead, 

and operational costs. A change in the 

initiation fee would not change the nonrefundable portion of the fee, only the 

portion due at the time the project was 

determined to be a covered project 

under FAST–41. The regulation would 

require FPISC to publish the new 

amount of the initiation fee in the 

Federal Register before it can take 

effect. We seek comment on the 

methodology for calculating the new 

initiation fee and whether changes to 

the initiation fee should be made 

through notification in the Federal 

Register or whether we should take 

comment before a revised initiation fee 

takes effect. 

In proposed section 1900.3(c), any 

Indian tribe proposing covered projects 

on trust property are exempted from 

paying the initiation fee. This is 

consistent with the trust relationship as 

well as the government-to-government 

relationship between the Federal 

Government and federally-recognized 

Indian tribes, and will enable FPISC– 

OED to provide services, without 


sradovich on DSK3GMQ082PROD with PROPOSALS
Federal Register / Vol. 83, No. 171 / Tuesday, September 4, 2018 / Proposed Rules 44849 

additional cost to tribal governments, in 

order to protect trust assets held for the 

benefit of Indian tribes. 

In addition to Indian tribes, the fee 

structure allows the Permitting Council 

to exempt other parties for which the fee 

would impose an undue financial 

burden or is otherwise determined to be 

inappropriate. Therefore, on a case-bycase basis, FPISC–OED would grant 

exemptions, in whole or in part, to 

project sponsors demonstrating that the 

fee would impose undue financial 

burden or was otherwise inappropriate. 

A petition for an exemption would 

require sufficient supporting evidence 

to demonstrate that the fee would be 

economically burdensome or 

inappropriate. FPISC–OED would 

consider the following factors in making 

an exemption determination: 

(a) The nature and cost of the 

infrastructure project; 

(b) The financial impact of the fee on 

the project sponsor; 

(c) The financial resources of the 

project sponsor; and 

(d) The type of operations of the 

project sponsor. 

In proposed section 1900.3(d), the 

Executive Director would review a 

project sponsor’s petition for an 

exemption and based on the factors 

listed above and would either approve 

or deny the petition for exemption. We 

are proposing the Executive Director 

have 30 days to review the petition for 

exemption and make a written 

determination. Once a determination is 

made, the Executive Director will 

transmit the written determination, 

including a statement of reasons, to the 

project sponsor. This proposal solicits 

public comment on the specific 

exemptions it is proposing and on the 

conditions by which it would review 

such exemptions. 

In proposed section 1900.3(e), as 

allowed by FAST–41, the initiation fee 

would be used by FPISC–OED to cover 

its costs in implementing the 

requirements and authorities of 42 

U.S.C. 4370m–1 and 4370m–2 and the 

operational costs of FPISC–OED (42 

U.S.C. 4370m–8(a)). For example, 

activities undertaken by FPISC–OED 

that may be covered by the initiation fee 

could include, without being limited to, 

pre-coordination with project sponsors; 

pre-coordination with lead and 

cooperating agencies; FIN review; 

maintenance and enhancements of the 

Permitting Dashboard including 

operations, security, and the 

development and provision of training; 

outreach to stakeholders through 

conferences and meetings; producing 

handouts, flyers, and information 

materials for project sponsors related to 

FAST–41; developing recommended 

performance schedules including 

intermediate and final completion dates 

for environmental reviews and 

authorizations; assisting with 

development of coordinated project 

plans (CPPs); reviewing and approving 

any modifications of more than 30 days 

to the permitting schedule of covered 

projects; mediating disputes between 

projects sponsors and relevant agencies 

related to the permitting timetable; 

assessing Permitting Council agency 

updates to the CPPs and Permitting 

Dashboard; tracking compliance with 

permitting timetable dates; writing 

reports and implementation guidance; 

writing standard operating procedures; 

and conducting Permitting Council, 

Chief Environmental Review and 

Permitting Officer (CERPO), and 

Permitting Council Working Group 

meetings. The initiation fee would also 

cover FPISC–OED’s costs of operations 

including, but not limited to, staffing 

and personnel, office space and 

equipment, and program support 

contracts. The proposed initiation fee 

would have no impact on fee 

requirements of other Federal agencies 

under their existing processes and is not 

intended to be allotted to Permitting 

Council agencies to facilitate their 

reviews and/or participation in the 

FAST–41 process. 

In proposed section 1900.3(f), we 

would ensure that all initiation fees 

collected were deposited into the 

Environmental Review and 

Improvement Fund as required by 

FAST–41 (42 U.S.C. 4370m–8(d)(1)). 

Amounts collected under the initiation 

fee final rule would be available to the 

Permitting Council Executive Director, 

without appropriation or fiscal year 

limitation, for the purpose of 

administering FAST–41 and operating 

the FPISC–OED (42 U.S.C. 4370m– 

8(d)(2)). The use of funds accepted 

under this fee structure shall not impact 

impartial decision-making with respect 

to environmental reviews or 

authorizations, either substantively or 

procedurally, because FPISC–OED does 

not have any authority in the decisionmaking with respect to environmental 

reviews and authorizations (42 U.S.C. 

4370m–8(e)). FPISC–OED ensures 

enhanced coordination, visibility, 

predictability, and accountability in the 

environmental review and authorization 

process. The outcome of the 

environmental review and authorization 

process remains with the lead, 

cooperating, and participating agencies, 

as applicable, that conduct and issue 

environmental reviews and 

authorizations. 

B. Economic Impacts 

i. Benefits of the Initiation Fee to Project 

Sponsors of Covered Projects 

In considering the potential impacts 

of the proposed rule, we anticipate that 

there will be no change in potential 

benefits associated with this rule. 

Benefits are not quantified in this 

analysis. However, the proposed rule is 

associated with benefits in that it allows 

for the continuation of the FPISC–OED’s 

services. An initiation fee is necessary 

because as an oversight council, FPISC– 

OED is responsible for implementing 

the provisions of FAST–41 by 

facilitating and institutionalizing the 

transparency, accountability, and 

coordination among Federal agencies 

related to the Federal environmental 

review and authorization process. The 

fee allows FPISC–OED to carry out its 

obligations to improve the infrastructure 

permitting process. Specifically, an 

initiation fee would allow FPISC to 

continue to produce the following 

benefits for projects covered under 

FAST–41: 

• Enhanced coordination: When a 

proposed project becomes a covered 

project under FAST–41, the lead or 

facilitating agency, as applicable, must 

identify all agencies and governmental 

entities likely to have financing, 

environmental reviews, authorizations, 

or other responsibilities with respect to 

the covered project, and invite all 

Federal agencies to become 

participating or cooperating agencies (42 

U.S.C. 4370m–2(a)(2)(A)(ii)). The lead or 

facilitating agency, as applicable, in 

consultation with each coordinating and 

participating agency, shall establish a 

project-specific CPP for coordinating 

public and agency participation in, and 

completion of, any required Federal 

environmental review and authorization 

for the project (42 U.S.C. 4370m– 

2(c)(1)(A)). Advanced coordination has 

been known to help improve the 

efficiency of reviews by allowing early 

communication of project goals and 

discussion of potential alternatives with 

permitting agencies and stakeholders 

which can lead to environmental 

reviews and authorizations being 

completed earlier by identifying and 

addressing potential causes of delay 

earlier in the process. 

• Enhanced visibility and 

predictability: The lead agency, within a 

CPP, will develop a permitting timetable 

for each covered project, which 

establishes scheduled dates for all 

required Federal environmental reviews 

and authorizations (as well as for State 

permits and environmental reviews 

when the State elects to participate in 

the FAST–41 process) based on projectVerDate Sep<11>2014 16:36 Aug 31, 2018 Jkt 244001 PO 00000 Frm 00006 Fmt 4702 Sfmt 4702 E:\FR\FM\04SEP1.SGM 04SEP1

sradovich on DSK3GMQ082PROD with PROPOSALS
44850 Federal Register / Vol. 83, No. 171 / Tuesday, September 4, 2018 / Proposed Rules 

1The guidelines were issued under the authority 

granted by Title V of the Independent Offices 

Appropriations Act of 1952 (31 U.S.C. 1111) and 

Executive Orders No. 8248 and 11541. Available at 

https://www.whitehouse.gov/wp-content/uploads/ 

2017/11/Circular-025.pdf. 

specific factors, statutory and regulatory 

requirements, and historical timeframes 

for the activities. Scheduled and actual 

timeframes for government processes 

will be publicly displayed and tracked 

on the online Permitting Dashboard. If 

an environmental review or 

authorization is delayed, the lead, 

cooperating, or participating agency is 

required to update the schedule at least 

30 days before the currently reported 

completion date and the agency will not 

be allowed to extend the final 

completion date by more than 30 days 

without consulting with the project 

sponsor. The enhanced visibility and 

predictability leads to greater 

accountability by Federal agencies. As 

discussed in the FAST–41 

Implementation Guidance, 

environmental review and authorization 

schedules for independent regulatory 

commissions are not subject to review 

and oversight by project sponsors or 

other government offices. 

• Enhanced accountability: Covered 

projects benefit from high-level 

oversight on the permitting process from 

the Executive Director to ensure that 

Federal agencies follow FAST–41 

processes and adhere to established 

timeframes. If the lead, participating, or 

cooperating agencies delay the 

permitting process by more than 150 

percent of the original schedule, it must 

be reported to Congress (42 U.S.C. 

4370m–2(c)(2)(D)(iii)). 

• Enhanced public participation: 

Specific timeframes have been 

developed for certain public 

participation activities, including early 

coordination for collection of key 

concerns, public involvement in the 

development of reasonable alternatives, 

and public comment periods on draft 

Environmental Impact Statements 

(EISs). For example, the lead agency 

must establish a comment period for 

draft EISs to be between 45 days and 60 

days unless the lead agency, project 

sponsor, and any cooperating agency 

agree to a longer deadline or the lead 

agency, in consultation with each 

cooperating agency, extends the 

deadline for good cause (42 U.S.C. 

4370m–4(d)(1)). 

• Enhanced legal protections: The 

statute of limitations to challenge any 

Federal authorizations for covered 

projects is reduced from 6 years to 2 

years from the date the authorization is 

issued by the agency, and future claims 

pertaining to a Federal environmental 

review may be brought only if the 

commenter filed a sufficiently detailed 

comment and put the lead agency on 

notice of the issue during the 

environmental review process. Persons 

who did not submit comments on the 

environmental review would not have 

any standing to challenge the 

authorization for a covered project (42 

U.S.C. 4370m–6(a)). 

ii. Costs of the Initiation Fee to Project 

Sponsors of Covered Projects 

We evaluated potential costs and 

transfer provisions associated with this 

rulemaking. Cost provisions include 

consideration of time associated with 

rule familiarization for stakeholders and 

time required to complete the FIN. We 

concluded that the proposed rule would 

result in a 10-year total cost of $20,637 

undiscounted, $18,290 discounted at 3 

percent, and $15,847 discounted at 7 

percent. The transfer provision accounts 

for the non-refundable portion of the 

initiation fee for all FINs as well as the 

additional fee required from successful 

project sponsors. We determined that 

over a 10-year period, the proposed rule 

would transfer funds from project 

sponsors to FPISC totaling $78,692,000 

undiscounted, $67,963,353 discounted 

at 3 percent, and $56,794,754 

discounted at 7 percent. The costs of the 

fee are described in greater detail in 

section IV.A.ii below. 

iii. Determination of Amount of 

Initiation Fee 

The initiation fee amount was 

determined based on an analysis of 

current and projected FPISC–OED 

expenditures, a review of the existing 

portfolio of covered projects, and 

estimates of the number of new covered 

projects that will be added in future 

years. In FY 2017, FPISC–OED had 

expenditures of approximately $4.75 

million and supported 35 projects on 

the Permitting Dashboard. Of those 35 

covered projects, 25 were still in 

progress while 10 were listed as 

‘‘Complete’’ at the end of FY 2017. 

Based on this data, we estimate the FY 

2017 cost per FAST–41 covered project 

was approximately $190,000 ($4.75M/ 

25 covered projects still in progress). 

It is important to note that most of the 

initial set of 35 covered projects were 

existing projects that were already far 

along in the environmental review and 

authorization process when FAST–41 

was enacted. As new projects are added, 

we anticipate additional support and 

coordination will be needed for newly 

designated covered projects that are in 

the early stages of development or the 

environmental review and authorization 

process. This enhanced level of support 

includes early coordination and 

stakeholder outreach, assisting in the 

development of CPPs and permitting 

timetables for the entire permitting 

process, consulting and facilitating 

throughout the Federal environmental 

review and authorization process, and 

monitoring and assessing Federal 

agency performance in meeting Federal 

permitting timetable goals. We 

estimated that the proposed $200,000 

initiation fee per project for project 

sponsors is sufficient for FPISC–OED to 

fully carry out its responsibilities under 

FAST–41, including the additional level 

of support and coordination needed for 

newly designated covered projects. 

At the beginning of FY 2018, FPISC– 

OED was overseeing 37 covered 

projects. Based on estimates of the 

number of projects that would be 

completed each year and the number of 

new covered projects each year, we 

estimate that FPISC–OED will support 

24 new covered projects in FY 2019; 26 

new covered projects in FY 2020; 33 

new covered projects in FY 2021; 41 

new covered projects in FY 2022; and 

48 new covered projects each year in FY 

2023–2028. Therefore, the annual fee 

collected would range from $4.80 

million in FY 2019 to $9.60 million by 

FY 2023. This estimate comes from the 

anticipated increase in visibility of the 

program from projects successfully 

going through the FAST–41 process. In 

addition, we anticipate that by FY 2023 

the number of new projects will stay 

steady at 48 new projects a year because 

there are a limited number of projects in 

the country that would be eligible to be 

covered under FAST–41. Furthermore, 

FPISC–OED anticipates not all eligible 

projects will apply to become covered 

projects. 

The analysis assumes a 5 percent 

charge to provide a reserve fund for the 

program. OMB established Circular A– 

25 (User Charges), which promulgated 

Federal policy regarding the selfsufficiency of all projects.1 A central 

goal of OMB Circular A–25 guidelines is 

to efficiently allocate government 

resources by at least fully recouping all 

costs associated with providing the good 

or service. OMB Circular A–25 

guidelines state that all recipients of 

special benefits from Federal activities 

will be assessed a fee for services 

beyond those received by the general 

public. If existing laws restrict such a 

fee, agencies will review activities 

periodically and recommend legislative 

changes as appropriate. User fees will be 

collected in advance or at the time of 

the provision of service. When possible, 

agencies should set charges as rates 

rather than fixed amounts. Both direct 

and indirect costs will be included in 


sradovich on DSK3GMQ082PROD with PROPOSALS
Federal Register / Vol. 83, No. 171 / Tuesday, September 4, 2018 / Proposed Rules 44851 

2Federal User Fees: A Design Guide, GAO–08– 

386SP, May 2008. Available at: http://www.gao.gov/ 

new.items/d08386sp.pdf. 

3As defined in 42 U.S.C. 4370m(3) authorizations 

‘‘means any license, permit, approval, finding, 

determination, or other administrative decision 

issued by an agency 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.’’ 

4The NEPA Task Force Report to Council on 

Environmental Quality: Modernizing NEPA 

Implementation (Sept. 2003) at pp. 65–66. 

the calculation of total costs, including 

salaries and fringe benefits, travel, 

general overhead, consulting fees, and 

insurance, among other cost elements. 

Public demand for such services 

varies from year to year. This variation 

creates challenges because agencies seek 

to recover the costs of managing 

programs and the associated services 

provided to recipients. For this reason, 

many agencies maintain reserve funds 

to ensure that sufficient agency funding 

is available for the continued operation 

of the agency. In Federal User Fees: A 

Design Guide, the Government 

Accountability Office (GAO) 

recommended that maintaining reserve 

funds can help hedge against sudden or 

temporary fluctuations in demand and 

the corresponding costs of operations.2

As such, we included a reserve fund fee 

to provide program stability year to 

year. 

The proposed initiation fee would not 

apply to covered projects that were 

already identified under FAST–41 and 

posted to the Permitting Dashboard 

prior to the effective date of this rule. 

The effective date would be one day 

after publication of the final rule. We 

propose the effective date because it 

estimates that project sponsors would 

take only 2.5 hours to familiarize 

themselves with the rule, complete the 

FIN, and ensure that their accounting 

system(s) can transfer the appropriate 

initiation fee with the FIN. For FY 2019 

and beyond, we may reassess the 

amount of the initiation fee based on 

early program implementation 

experience and the number of FINs 

submitted by project sponsors for 

proposed covered projects, and to 

adequately cover the reasonable costs of 

FPISC–OED. 

In addition, FAST–41 places a limit 

on the fee structure that requires the fee 

to ‘‘be established in a manner that 

ensures that the aggregate amount of 

fees collected for a fiscal year is 

estimated not to exceed 20 percent of 

the total estimated costs for the fiscal 

year for the resources allocated for the 

conduct of environmental reviews and 

authorizations covered by this 

subchapter, as determined by the 

Director of the Office of Management 

and Budget’’ (42 U.S.C. 4370m–8(c)(3)). 

Therefore, the total estimated costs for 

the fiscal year for the conduct of 

environmental reviews and 

authorizations covered by the 

subchapter was calculated by adding the 

cost for all environmental reviews under 

the National Environmental Policy Act 

(NEPA), all authorizations 3 for projects 

that likely would have been covered 

under FAST–41, and FPISC–OED costs. 

Based on CEQ estimates on the average 

costs of completing EISs ($250,000 to $2 

million) and the number of final EISs 

(FEISs) that were published (162), the 

cost for environmental reviews under 

NEPA was estimated to be 

approximately $182.25 million in FY 

2014.4

• Environmental reviews costs (low 

range): Number of FEISs Published in 

FY 2014 * Low Range for Average Cost 

of EIS = 162 * $250,000 = $40.5 million 

• Environmental reviews costs (high 

range): Number of FEISs Published in 

FY 2014 * High Range for Average Cost 

of EIS = 162 * $2 million = $324 million 

• Average cost: (High range + Low 

rage)/2 = ($40.5 million + $324 million)/ 

2 = $182.25 million 

The data for the cost of authorizations 

for covered projects under FAST–41 is 

derived from an OMB data call to the 

Department of Agriculture, the 

Department of Commerce, the 

Department of Defense, the Department 

of Energy, the Department of Homeland 

Security, the Department of Housing 

and Urban Development, the 

Department of the Interior, the 

Department of Transportation, the 

Environmental Protection Agency, the 

Advisory Council on Historic 

Preservation, and the U.S. Army Corps 

of Engineers on August 19, 2014 

regarding agencies’ budgets for 

infrastructure permitting and review 

and other existing agency authorities for 

financing infrastructure permitting 

activities. The data collected from 

agencies is current as of August 17, 

2015. The average cost in FY 2014 for 

authorizations for projects that likely 

would have been covered under FAST– 

41 was estimated to be approximately 

$106.33 million. In addition, the costs 

for FPISC–OED in FY 2017 were $4.75 

million. FY 2017 numbers were used to 

estimate FPISC–OED costs since the 

office was not in existence in FY 2014. 

Therefore, the aggregate amount of fees 

collected for a fiscal year could not 

exceed $58.67 million (20 percent of 

$293.33 million). We estimate that 

FPISC–OED will have 24 new projects 

in FY 2019 and by FY 2023 there will 

be 48 new projects. Therefore, in FY 

2019 the aggregate amount of fees 

collected by FPISC–OED would be $4.80 

million ($200,000 * 24 new projects) 

and by FY 2023 the aggregate amount of 

fees collected by FPISC–OED would be 

$9.60 million ($200,000 * 48 new 

projects). Thus, the aggregate amount of 

fees would be far less than the 20 

percent limit of $58.67 million. We 

request comments on the calculation of 

the proposed initiation fee and 

proposed calculation of future initiation 

fees. 

C. Issues on Which the Permitting 

Council Seeks Comment 

Although we welcome comment on 

any aspect of this proposal, FPISC is 

particularly interested in receiving 

comments and views of interested 

parties concerning the following issues: 

1. Initiation Fee Non-Refundable and 

Due in Two Parts: The proposal to have 

the initiation fee be non-refundable and 

paid in two parts—$5,000 of the fee at 

the time the project sponsor submits the 

FIN, and then $195,000 within 10 

business days of the Federal facilitating 

or lead agency’s determination, the 

Executive Director’s final determination, 

or the Council’s opinion that the project 

is a covered project under FAST–41. 

2. Calculation of Initiation Fee: The 

methodology and assumptions of the 

calculation of the initiation fee as 

discussed in III.B.iii. 

3. Exclusions: The exclusions to the 

initiation fee as discussed in section 

III.A.iii. 

D. Public Participation 

We will accept comments, data, and 

information regarding this proposed 

rule no later than the date provided in 

the DATES section. Interested parties 

may submit comments using any of the 

methods described in the ADDRESSES

section. 

1. Submitting Comments via 

Regulations.gov: The regulations.gov 

web page will require you to provide 

your name and contact information. 

Your contact information will be 

viewable to FPISC–OED and GSA staff 

only. Your contact information will not 

be publicly viewable except for your 

first and last names, organization name 

(if any), and submitter representative 

name (if any). If your comment is not 

processed properly because of technical 

difficulties, FPISC–OED and GSA will 

use this information to contact you. If 

FPISC–OED and GSA cannot read your 

comment due to technical difficulties 

and cannot contact you for clarification, 


sradovich on DSK3GMQ082PROD with PROPOSALS
44852 Federal Register / Vol. 83, No. 171 / Tuesday, September 4, 2018 / Proposed Rules 

we may not be able to consider your 

comment. 

However, your contact information 

will be publicly viewable if you include 

it in the comment or in any documents 

attached to your comment. Any 

information that you do not want to be 

publicly viewable should not be 

included in your comment, nor in any 

document attached to your comment. 

Persons viewing comments will see only 

first and last names, organization 

names, correspondence containing 

comments, and any documents 

submitted with the comments. 

Do not submit to regulations.gov 

information for which disclosure is 

restricted by statute, such as trade 

secrets and commercial or financial 

information (hereinafter referred to as 

Confidential Business Information 

(CBI)). Comments submitted through 

regulations.gov cannot be claimed as 

CBI. Comments received through the 

website will waive any CBI claims for 

the information submitted. For 

information on submitting CBI, see the 

Confidential Business Information 

section below. 

FPISC–OED and GSA processes 

submissions made through 

regulations.gov before posting. 

Normally, comments will be posted 

within a few days of being submitted. 

However, if large volumes of comments 

are being processed simultaneously, 

your comment may not be viewable for 

up to several weeks. Please keep the 

comment tracking number that 

regulations.gov provides after you have 

successfully uploaded your comment. 

2. Submitting Comments via Email or 

Mail: Comments and documents 

submitted via email, hand delivery, or 

mail also will be posted to 

regulations.gov. If you do not want your 

personal contact information to be 

publicly viewable, do not include it in 

your comment or any accompanying 

documents. Instead, provide your 

contact information on a cover letter. 

Include your first and last names, email 

address, telephone number, and 

optional mailing address. The cover 

letter will not be publicly viewable as 

long as it does not include any 

comments. 

Include contact information each time 

you submit comments, data, documents, 

and other information to FPISC–OED 

and GSA. Email submissions are 

preferred. If you submit via mail or 

hand delivery, please provide all items 

on a CD, if feasible. It is not necessary 

to submit printed copies. No facsimiles 

(faxes) will be accepted. 

Comments, data, and other 

information submitted electronically 

should be provided in PDF (preferred), 

Microsoft Word, or Excel file format. 

Provide documents that are not secured, 

written in English, and are free of any 

defects or viruses. Documents should 

not contain special characters or any 

form of encryption and, if possible, they 

should carry the electronic signature of 

the author. 

(a) Campaign Form Letters: Please 

submit campaign form letters by the 

originating organization in batches of 

between 50 to 500 form letters per PDF 

or as one form letter with a list of 

supporters’ names compiled into one or 

more PDFs. This reduces comment 

processing and posting time. 

(b) Confidential Business Information: 

Any person submitting information that 

he or she believes to be confidential and 

exempt by law from public disclosure 

should submit via email, postal mail, or 

hand delivery two well-marked copies: 

one copy of the document marked 

confidential including all the 

information believed to be confidential, 

and one copy of the document marked 

non-confidential with the information 

believed to be confidential deleted. 

Submit these documents via email or on 

a CD, if feasible. We will make our own 

determination about the confidential 

status of the information and treat it 

according to its determination. 

Factors of interest to us when 

evaluating requests to treat submitted 

information as confidential include: (1) 

A description of the items, (2) whether 

and why such items are customarily 

treated as confidential within the 

industry, (3) whether the information is 

generally known by or available from 

other sources, (4) whether the 

information has previously been made 

available to others without obligation 

concerning its confidentiality, (5) an 

explanation of the competitive injury to 

the submitting person which would 

result from public disclosure, (6) when 

such information might lose its 

confidential character due to the 

passage of time, and (7) why disclosure 

of the information would be contrary to 

the public interest. 

It is our policy that all comments may 

be included in the public docket, 

without change and as received, 

including any personal information 

provided in the comments (except 

information deemed to be exempt from 

public disclosure). 

E. Docket 

The docket is available for review at 

http://www.regulations.gov and 

includes Federal Register notices, 

public comments, and other supporting 

documents and materials. All 

documents in the docket are listed in 

the regulations.gov index. However, not 

all documents listed in the index may 

be publicly available, such as 

information that is exempt from public 

disclosure. A link to the docket web 

page can be found at: https://

www.permits.performance.gov/tools/ 

notice-proposed-rule-makingpermitting-council-fast-41-initiationuser-fee. This web page contains a link 

to the docket for this proposed rule on 

the regulations.gov site. The 

regulations.gov web page also contains 

instructions on how to access all 

documents, including public comments, 

in the docket. 

IV. Regulatory Review 

A. Executive Order 12866: Regulatory 

Planning and Review, and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

This rule is a ‘‘significant regulatory 

action’’ under Executive Order 12866 so 

it was submitted to OMB for review. 

We evaluated the potential costs and 

benefits that could result from this 

rulemaking. As presented in Table 1, we 

estimate that the proposed rule would 

result in a 10-year total cost of $20,637 

undiscounted, $18,290 discounted at 3 

percent, and $15,847 discounted at 7 

percent. On an annualized basis, the 

proposed rule would result in a cost of 

$2,064 undiscounted, $2,144 discounted 

at 3 percent, and $2,256 discounted at 

7 percent. The transfer provision 

accounts for the non-refundable portion 

of the initiation fee for all FINs as well 

as the additional fee required from 

successful project sponsors. We 

determined that over a 10-year period, 

the proposed rule will tranfer funds 

from project sponsors to FPISC–OED 

totaling $78.692 million undiscounted, 

$67.963 million discounted at 3 percent, 

and $56.795 million discounted at 7 

percent. On an annualized basis, the 

transfer provision amounts to $7.869 

million undiscounted, $7.967 million 

discounted at 3 percent, and $8.086 

million discounted at 7 percent. 

Although we were unable to quantify 

benefits directly attributable to the fee, 

we do understand that there are 

significant benefits from FPISC–OED’s 

services and the fee will allow the 

program to continue in future years. We 

invite comments from the public on 

how to estimate these benefits. 

i. Scope and Key Inputs to the Analysis 

We estimated that rule familiarization 

would occur only during the first year 

of the analysis period and would require 

familiarization by a manager and by an 

environmental engineer. When 

determining the initiation fee, we 

assumed there would be 48 projects 


sradovich on DSK3GMQ082PROD with PROPOSALS
Federal Register / Vol. 83, No. 171 / Tuesday, September 4, 2018 / Proposed Rules 44853 

5U.S. Department of Labor (DOL), Bureau of 

Labor Statistics (BLS). Occupational Employment 

Statistics (OES). National Industry-Specific 

Occupational Employment and Wage Estimates. 

May 2016. Available at: https://www.bls.gov/oes/ 

current/naics2_22.htm#11-0000 (accessed February 

8, 2018). 

6U.S. Department of Labor, Bureau of Labor 

Statistics (BLS). Employer Costs for Employee 

Compensation—September 2017. December 15, 

2017. https://www.bls.gov/news.release/pdf/ 

ecec.pdf (accessed February 16, 2018). 

whose sponsors would submit FINs 

each year. While we expect the program 

to reach this level over time, fewer than 

48 FINs are expected for the first few 

years as the program ramps up and 

expands. For the purposes of this 

analysis, we estimate that 24 FINs will 

be received from project sponsors in FY 

2019, 26 FINs will be received in FY 

2020, 33 FINs will be received in FY 

2021, 41 FINs will be received in FY 

2022, and 48 FINs will be received each 

year in FY 2023 through FY 2028. 

We evaluated changes in the 

opportunity cost of time for project 

sponsors and other stakeholders using 

wage rates to represent the value of 

managers’ or engineers’ time that, in the 

absence of the rule, would not have 

been spent on rule familiarization or 

completing FINs to gather fee amounts. 

This analysis uses wage rates for 

General and Operations Managers 

(occupation code 11–1021) in the 

Utilities sector (North American 

Industry Classification System code 22) 

as well as wage rates for Environmental 

Engineers (occupation code 17–2081) in 

the Utilities sector (NAICS code 22). 

The source for wages is the median 

hourly wage data (May 2016) from the 

U.S. Department of Labor (DOL), Bureau 

of Labor Statistics (BLS), Occupational 

Employment Statistics (OES).5 The BLS 

does not publish data on fringe benefits 

for specific occupations, but it does for 

the broad industry groups in its 

Employer Costs for Employee 

Compensation (ECEC) release. This 

analysis uses an hourly wage of $58.16 

for managers and an hourly wage of 

$41.10 for environmental engineers. For 

private industry, benefits account for 

30.4 percent of employer costs,6 while 

the remaining 69.6 percent of employer 

costs are directed towards salary. 

Therefore, we applied a loaded wage 

rate factor of 1.44 to account for total 

costs to employers (inclusive of 

benefits) when calculating cost 

associated with rule familiarization and 

application completion (1.44 = 1 + 30.9/ 

69.6). 

ii. Costs 

Rule familiarization is expected to 

require one hour of a manager’s time 

and one hour of an environmental 

engineer’s time for each project sponsor 

or other interested stakeholder. Because 

24 FINs are expected in FY 2019, and 

because rule familiarization only takes 

place in FY 2019, the proposed rule will 

require a total of 24 hours of managers’ 

time and 24 hours of environmental 

engineers’ time at the appropriate wage 

rates (as discussed in the ‘‘Scope and 

Key Inputs to the Analysis’’ section of 

this proposed rule). Therefore, over the 

10-year analysis period, the only costs 

associated with rule familiarization 

occur in FY 2019 and amount to $3,423 

(24 projects × (1 hour of time required 

for manager’s familiarization × $58.16 

wage for manager × 1.44 loaded wage 

rate factor) + (1 hour of time required for 

environmental engineer’s 

familiarization × $41.10 wage for 

environmental engineer × 1.44 loaded 

wage rate factor)). 

There are also costs associated with 

the additional time required for project 

sponsors to complete the FIN as a result 

of the changes introduced by this 

proposed rule, namely gathering an 

initiation fee. We estimate that program 

sponsors in each year will require 0.5 

hours of a manager’s time at the 

appropriate wage rate (as discussed in 

the ‘‘Scope and Key Inputs to the 

Analysis’’ section of this proposed rule) 

as a result of the new FIN elements. We 

expect the number of FINs to reach 48 

by FY 2023, but expect fewer than 48 

FINs each year between FY 2019 and FY 

2022. The 10-year total undiscounted 

cost of time associated with FIN 

completion is $17,214. This is 

calculated by multiplying the 0.5 hours 

of managers’ time by the associated 

wage rate (including accounting for the 

loaded wage rate factor) to get $41.78 (= 

0.5 × 1.44 × $58.16), then multiplying 

this amount by the number of FINs 

expected in each year. For the purposes 

of this analysis, we estimate that 24 

FINs will be received from project 

sponsors in FY 2019, 26 FINs will be 

received in FY2020, 33 FINs will be 

received in FY 2021, 41 FINs will be 

received in FY 2022, and 48 FINs will 

be received each year in FY 2023 

through FY 2028. The total cost across 

all years is $17,214. 

Table 1 of this proposed rule shows 

the combined costs of rule 

familiarization and FIN completion. As 

presented in Table 1, the proposed rule 

would result in a 10-year total cost of 

$20,637 undiscounted, $18,290 

discounted at 3 percent, and $15,847 

discounted at 7 percent. On an 

annualized basis, the proposed rule 

would result in an undiscounted cost of 

$2,064, $2,144 discounted at 3 percent, 

and $2,256 discounted at 7 percent. 

Rule famliarization costs are assumed to 

occur only in FY 2019, and therefore are 

not discounted at either 3 percent or 7 

percent. Costs associated with FIN 

completion occur each year and are 

discounted. 

TABLE 1—SUMMARY OF THE TOTAL COSTS OF THE PROPOSED RULE

[2016$] 

Year Rule 

familiarization 

FIN 

completion 

Total 

costs (a)

Discounted 

Discounted 

at 3% 

Discounted 

at 7% 

2018 .................................................................................................................. $3,423 $1,003 $4,426 $4,426 $4,426 

2019 .................................................................................................................. N/A 1,086 1,086 1,055 1,015 

2020 .................................................................................................................. N/A 1,379 1,379 1,300 1,204 

2021 .................................................................................................................. N/A 1,713 1,713 1,568 1,398 

2022 .................................................................................................................. N/A 2,006 2,006 1,782 1,530 

2023 .................................................................................................................. N/A 2,006 2,006 1,782 1,530 

2024 .................................................................................................................. N/A 2,006 2,006 1,782 1,530 

2025 .................................................................................................................. N/A 2,006 2,006 1,782 1,530 

2026 .................................................................................................................. N/A 2,006 2,006 1,782 1,530 

2027 .................................................................................................................. N/A 2,006 2,006 1,782 1,530 

Total ........................................................................................................... 3,423 17,214 20,637 18,290 15,847 

Annualized ......................................................................................................... ............................ ........................ 2,064 2,144 2,256 

Notes: (a)Total cost values may not equal the sum of the components due to rounding. 


sradovich on DSK3GMQ082PROD with PROPOSALS
44854 Federal Register / Vol. 83, No. 171 / Tuesday, September 4, 2018 / Proposed Rules 

7Revenue estimates were gathered from publicly 

available revenue data or project sponsor annual 

reports. 

iii. Benefits 

In considering the potential impacts 

of the proposed rule, we anticipate that 

there will be no change in potential 

benefits associated with this rule. 

Benefits are not quantified in this 

analysis. However, the proposed rule is 

associated with benefits in that it allows 

for the continuation of the FPISC–OED’s 

services. An initiation fee is necessary 

because as an oversight council, FPISC– 

OED is responsible for implementing 

the provisions of FAST–41 by 

facilitating and institutionalizing the 

transparency, accountability, and 

coordination among Federal agencies 

related to the Federal environmental 

review and authorization process. The 

fee allows FPISC–OED to carry out its 

obligations to improve the infrastructure 

permitting process. Specifically, an 

initiation fee would allow FPISC to 

continue to produce the following 

benefits for projects found to be 

‘‘covered’’ under FAST–41: 

• Enhanced coordination: When a 

proposed project becomes a covered 

project under FAST–41, the lead or 

facilitating agency, as applicable, must 

identify all agencies and governmental 

entities likely to have financing, 

environmental reviews, authorizations, 

or other responsibilities with respect to 

the covered project, and invite all 

Federal agencies to become 

participating or cooperating agencies (42 

U.S.C. 4370m–2(a)(2)(A)(ii)). The lead or 

facilitating agency, as applicable, in 

consultation with each coordinating and 

participating agency, shall establish a 

project-specific CPP for coordinating 

public and agency participation in, and 

completion of, any required Federal 

environmental review and authorization 

for the project (42 U.S.C. 4370m– 

2(c)(1)(A)). Advanced coordination has 

been known to help improve the 

efficiency of reviews by allowing early 

communication of project goals and 

discussion of potential alternatives with 

permitting agencies and stakeholders 

which can lead to environmental 

reviews and authorizations being 

completed earlier by identifying and 

addressing potential causes of delay 

earlier in the process. 

• Enhanced visibility and 

predictability: The lead agency, within a 

CPP, will develop a permitting timetable 

for each covered project, which 

establishes scheduled dates for all 

required Federal environmental reviews 

and authorizations (as well as for State 

permits and environmental reviews 

when the State elects to participate in 

the FAST–41 process) based on projectspecific factors, statutory and regulatory 

requirements, and historical timeframes 

for the activities. Scheduled and actual 

timeframes for government processes 

will be publicly displayed and tracked 

on the online Permitting Dashboard. If 

an environmental review or 

authorization is delayed, the lead, 

cooperating, or participating agency is 

required to update the schedule at least 

30 days before the currently reported 

completion date and the agency will not 

be allowed to extend the final 

completion date by more than 30 days 

without consulting with the project 

sponsor. The enhanced visibility and 

predictability leads to greater 

accountability by Federal agencies. As 

discussed in the FAST–41 

Implementation Guidance, 

environmental review and authorization 

schedules for independent regulatory 

commissions are not subject to review 

and oversight by project sponsors or 

other government offices. 

• Enhanced accountability: Covered 

projects benefit from high-level 

oversight on the permitting process from 

the Executive Director to ensure that 

Federal agencies follow FAST–41 

processes and adhere to established 

timeframes. If the lead, participating or 

cooperating agencies delay the 

permitting process by more than 150 

percent of the original schedule, it must 

be reported to Congress (42 U.S.C. 

4370m–2(c)(2)(D)(iii)). 

• Enhanced public participation: 

Specific timeframes have been 

developed for certain public 

participation activities, including early 

coordination for collection of key 

concerns, public involvement in the 

development of reasonable alternatives, 

and public comment periods on draft 

EISs. For example, the lead agency must 

establish a comment period for draft 

EISs to be between 45 days and 60 days 

unless the lead agency, project sponsor, 

and any cooperating agency agree to a 

longer deadline or the lead agency, in 

consultation with each cooperating 

agency, extends the deadline for good 

cause (42 U.S.C. 4370m–4(d)(i)). 

• Enhanced legal protections: The 

statute of limitations to challenge any 

Federal authorizations for covered 

projects is reduced from 6 years to 2 

years from the date the authorization is 

issued by the agency, and future claims 

pertaining to a Federal environmental 

review may be brought only if the 

commenter filed a sufficiently detailed 

comment and put the lead agency on 

notice of the issue during the 

environmental review process. Persons 

who did not submit comments on the 

environmental review would not have 

any standing to challenge the 

authorization for a covered project (42 

U.S.C. 4370m–6(a)). 

B. Paperwork Reduction Act 

This rulemaking does not include any 

information collection requirements 

subject to the Paperwork Reduction Act 

of 1995 (44 U.S.C. 3501 et seq.). 

C. Regulatory Flexibility Act 

The Regulatory Flexibility Act (5 

U.S.C. 601 et seq.) requires preparation 

of an initial regulatory flexibility 

analysis (IRFA) for any rule that by law 

must be proposed for public comment, 

unless the agency certifies that the rule, 

if promulgated, will not have a 

significant economic impact on a 

substantial number of small entities. 

This proposed rule establishes a user 

fee for voluntary use of Permitting 

Council services for the purposes of 

streamlining Federal environmental 

reviews and authorizations for covered 

infrastructure projects. Entities may still 

receive Federal environmental reviews 

and authorizations without the use of 

Permitting Council services. 

This proposed rule may affect up to 

several dozen entities at any given time. 

Based on the current list of 37 covered 

projects in NAICS codes 2211 (Electric 

power generation, transmission and 

distribution) and 2212 (Natural gas 

distribution), approximately one third 

count as small entities according to 

Small Business Administration (SBA) 

size standards. Therefore, this rule will 

have an impact on a substantial number 

of small entities. However, this rule will 

not have a significant economic impact 

on those entities. The costs of the rule 

occur across two categories (rule 

familiarization and application 

completion) and at most, have an 

impact of $185 per firm ($143 for rule 

familiarization and $42 for application 

completion). The standard threshold for 

a significant economic impact is 

considered 1 percent of a firm’s 

revenue. Of the 37 current covered 

projects, no project sponsor has revenue 

less than $42 million.7 With rule costs 

of $185, these only account for less than 

0.0004 percent of revenue (= 185/ 

42,000,000). Even when considering the 

fee amount of $200,000, the rule only 

accounts for 0.5 percent of revenue. No 

current or future entity in these NAICS 

codes likely has revenues such that this 

amount would constitute an undue 

burden and furthermore, participation 

in this program is voluntary and no firm 

is required to pay the fee discussed in 

this proposed rulemaking in order to 

receive a Federal environmental review 

or authorization (although other fees 

may apply based on specific 


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Federal Register / Vol. 83, No. 171 / Tuesday, September 4, 2018 / Proposed Rules 44855 

environmental review or authorization 

and agency requirements). 

For the reasons stated above, we 

certify that this proposed rule, if 

promulgated, will not have a significant 

economic impact on a substantial 

number of small entities. Therefore, the 

Regulatory Flexibility Act, as amended, 

does not require us to prepare a 

regulatory flexibility analysis. 

D. Unfunded Mandates Reform Act 

Title II of the Unfunded Mandates 

Reform Act of 1995 (URMA) requires 

each Federal agency to assess the effects 

of Federal regulatory actions on State, 

local, and Tribal governments and the 

private sector (Pub. L. 104–4, sec. 201 

(codified at 2 U.S.C. 1531)). For a 

regulatory action likely to result in a 

rule that may cause the expenditure by 

State, local, and Tribal governments, in 

the aggregate, or by the private sector of 

$100 million or more in any one year 

(adjusted annually for inflation), section 

202 of UMRA requires a Federal agency 

to publish a written statement that 

estimates the resulting costs, benefits, 

and other effects on the national 

economy (2 U.S.C. 1532(a) and (b)). The 

UMRA also requires a Federal agency to 

develop an effective process to permit 

timely input by elected officers of State, 

local, and Tribal governments on a 

‘‘significant intergovernmental 

mandate,’’ and requires an agency plan 

for giving notice and opportunity for 

timely input to potentially affected 

small governments before establishing 

any requirements that might 

significantly or uniquely affect small 

governments. This proposed rule does 

not contain a Federal intergovernmental 

or private sector mandate, as those 

terms are defined in UMRA. 

E. Executive Order 13132: Federalism 

Executive Order 13132, ‘‘Federalism,’’ 

published at 64 FR 43255, on August 4, 

1999, imposes certain requirements on 

agencies formulating and implementing 

policies and regulations that preempt 

State law or that have federalism 

implications. The Executive Order 

requires agencies to examine the 

constitutional and statutory authority 

supporting any action that would limit 

the policymaking discretion of the states 

and then carefully assess the necessity 

for such actions. The Executive Order 

also requires agencies to have a process 

to ensure meaningful and timely input 

by State and local officials in the 

development of regulatory policies that 

have federalism implications. We 

examined this proposed rule and have 

determined that, if promulgated, it will 

not pre-empt State law. This action 

impacts project sponsors of FAST–41 

covered projects. Accordingly, no 

further action is required by Executive 

Order 13132. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

Executive Order 13175, ‘‘Consultation 

and Coordination with Indian Tribal 

Governments,’’ published at 65 FR 

67249, on Nov. 9, 2000, reaffirms the 

Federal government’s commitment to 

tribal sovereignty, self-determination, 

and self-government. Its purpose is to 

ensure that all agencies consult with the 

Indian tribes and respect tribal 

sovereignty as they develop policy on 

issues that impact Indian communities. 

This proposed rule will allow a tribal 

government, or a consortium of tribal 

governments, to apply as project 

sponsors for an infrastructure project to 

become a FAST–41 covered project, and 

covered projects may be implemented 

on tribal lands. In addition, a tribal 

government or a consortium of tribal 

governments may be asked by a lead 

agency to become a cooperating or 

participating agency on a FAST–41 

covered project. On November 30, 2017, 

the Executive Director of the Permitting 

Council sent letters to 567 federallyrecognized tribes requesting 

consultation on this proposed rule. The 

Muscogee (CREEK) Nation provided a 

comment that requested an automatic 

exemption from the initiation fee for 

tribal governments proposing projects 

on trust property under FAST–41. 

The United States government has 

specific responsibilities to each Tribe 

based on treaties, statutes, or other 

sources. Consistent with these 

responsibilities, the trust relationship, 

and the government-to-government 

relationship between the Federal 

government and federally-recognized 

tribes, the Federal government often 

provides services to tribes relating to the 

protection of trust assets at no cost. 

Therefore, the proposed rule includes 

an exemption for tribal grants proposing 

projects on trust property under FAST– 

41. 

G. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

Executive Order 13211, ‘‘Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use,’’ published at 66 

FR 28355 on May 22, 2001, requires 

Federal agencies to prepare and submit 

to OMB’s Office of Information and 

Regulatory Affairs (OIRA) a Statement of 

Energy Effects for any proposed 

significant energy action. A ‘‘significant 

energy action’’ is defined as any action 

by an agency that promulgates or is 

expected to lead to promulgation of a 

final rule or regulation, and that: (1) Is 

a significant regulatory action under 

Executive Order 12866, or any successor 

order; and (2) is likely to have a 

significant adverse effect on the supply, 

distribution, or use of energy; or (3) is 

designated by the Administrator of 

OIRA as a significant energy action. For 

any proposed significant energy action, 

the agency must give a detailed 

statement of any adverse effects on 

energy supply, distribution, or use 

should the proposal be implemented, 

and of reasonable alternatives to the 

action and their expected benefits on 

energy supply, distribution, and use. 

We have preliminarily concluded that 

this regulatory action is not a 

‘‘significant energy action’’ because the 

proposed rulemaking is not likely to 

have a significant adverse effect on the 

supply, distribution, or use of energy, 

nor has it been designated as such by 

the Administrator at OIRA. Accordingly, 

we have not prepared a Statement of 

Energy Effects for this proposed rule. 

H. National Environmental Policy Act 

Each infrastructure project that is 

covered under FAST–41 requires 

Federal agencies to render certain 

decisions. Such Federal agencies are 

required to adhere to the National 

Environmental Policy Act of 1969, as 

amended (42 U.S.C. 4321 et seq.) when 

making those decisions. This 

rulemaking simply imposes fees on 

those project sponsors applying to 

become a covered project under FAST– 

41; therefore, by itself, this rulemaking 

would not have any effect on the quality 

of the environment. 

I. Executive Order 13771: Reducing 

Regulation and Controlling Regulatory 

Costs 

This rule is not expected to be subject 

to the requirements of Executive Order 

13771, published at 82 FR 9339, on 

February 3, 2017. 

List of Subjects in 40 CFR Part 1900 

Administrative practice and 

procedure, Fees, Reporting and 

recordkeeping requirements. 

Dated: August 27, 2018. 

Angela F. Colamaria, 

Acting Executive Director, Federal Permitting 

Improvement Steering Council—Office of the 

Executive Director (FPISC–OED). 


sradovich on DSK3GMQ082PROD with PROPOSALS
44856 Federal Register / Vol. 83, No. 171 / Tuesday, September 4, 2018 / Proposed Rules 

■ For the reasons stated in the preamble, 

under the authority of 42 U.S.C. 4370m 

et seq., FPISC proposes to add chapter 

IX to title 40 of the Code of Federal 

Regulations as set forth below: 

CHAPTER IX—FEDERAL PERMITTING 

IMPROVEMENT STEERING COUNCIL 

PART 1900—COORDINATION OF 

ENVIRONMENTAL REVIEWS AND 

AUTHORIZATIONS—FEES 

Subpart A—General 

Sec. 

1900.1 Purpose and scope. 

1900.2 Definitions. 

1900.3 Initiation fee. 

Subpart B—[Reserved] 

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

Subpart A—General 

§ 1900.1 Purpose and scope. 

The purpose of this part is to establish 

an initiation fee to reimburse the 

Federal Permitting Improvement 

Steering Council-Office of the Executive 

Director (FPISC–OED) for costs incurred 

in the coordination of environmental 

reviews and authorizations under Title 

41 of the Fixing America’s Surface 

Transportation Act of 2015 (FAST–41) 

(42 U.S.C. 4370m et seq.). As of [date 

one day after the publication of the final 

rule in the Federal Register], any project 

sponsor submitting a FAST–41 

initiation notice must comply with all 

applicable requirements of this part. 

§ 1900.2 Definitions. 

As used in this part— 

Agency means the same as the term in 

5 U.S.C. 551. 

Business day means Monday through 

Friday and excludes Federal legal 

holidays. 

Covered project means the same as the 

term in 42 U.S.C. 4370m(6). 

Environmental Review Improvement 

Fund means the fund established in the 

Treasury of the United States to deposit 

any initiation fees collected by FPISC– 

OED. 

Executive Director means the same as 

the term in 42 U.S.C. 4370m(12). 

Facilitating agency means the same as 

the term in 42 U.S.C. 4370m(13). 

FAST–41 means Title 41 of the Fixing 

America’s Surface Transportation Act, 

codified at 42 U.S.C. 4370m through 

4370m–12. 

FAST–41 initiation notice (FIN) 

means a FAST–41 initiation notice of a 

proposed covered project that a project 

sponsor submits to the Federal 

facilitating or lead agency and FPISC– 

OED. 

FPISC–OED means the Federal 

Permitting Improvement Steering 

Council-Office of the Executive Director 

that supports the Federal Permitting 

Improvement Steering Council in 

implementing the provisions of FAST– 

41. 

Indian tribe means any Indian tribe, 

band, nation, or other organized group 

or community, including any Alaskan 

Native village or regional or village 

corporation as defined in or established 

pursuant to the Alaska Native Claims 

Settlement Act (43 U.S.C. 1601 et seq.), 

that is recognized as eligible for the 

special programs and services provided 

by the United States to Indians because 

of their status as Indians. 

Initiation fee means a non-refundable 

payment submitted by a project 

sponsors in two parts: When the 

sponsor submits a FAST–41 initiation 

notice, and upon determination that the 

project is a covered project under 

FAST–41. 

Lead agency means the same as the 

term in 42 U.S.C. 4370m(15). 

NEPA means the National 

Environmental Policy Act of 1969, as 

amended (42 U.S.C. 4321 et seq.). 

Project sponsor means the same as the 

term in 42 U.S.C. 4370m(18). 

§ 1900.3 FAST—41 initiation fee. 

(a) Initiation fee. A project sponsor 

shall submit an initiation fee of 

$200,000, $5,000 of which the project 

sponsor shall pay upon submission of a 

FIN and $195,000 of which the project 

sponsor shall pay within 10 business 

days of being notified that a project is 

a covered project. 

(b) Adjustment of initiation fee. Each 

fiscal year, beginning in FY 2019, the 

FPISC–OED may reassess and adjust the 

amount of the initiation fee described in 

paragraph (a) of this section based on 

program implementation experience 

and the number of infrastructure 

projects seeking to become ‘‘covered 

projects’’ under FAST–41, and to 

adequately cover reasonable costs of the 

FPISC–OED. The FPISC–OED will 

publish this amount in a Federal 

Register document. 

(c) Exemptions. The initiation fee 

shall be excluded for the following 

parties: 

(1) Indian tribe proposing covered 

projects on trust property; and 

(2) Other parties determined by 

FPISC–OED, in whole or in part, for 

which an initiation fee would impose an 

undue financial burden or is otherwise 

determined to be inappropriate. A 

project sponsor must submit a petition 

for exemption which provides sufficient 

evidence to demonstrate that the 

initiation fee would be economically 

burdensome or inappropriate. FPISC– 

OED will consider the following factors 

in making an exemption determination: 

(i) The nature and cost of the 

infrastructure project; 

(ii) The financial impact of the 

initiation fee on the project sponsor; 

(iii) The financial resources of the 

project sponsor; and 

(iv) The type of operations of the 

project sponsor. 

(d) On or before 30 days from the date 

that a project sponsor submits a 

complete petition for exemption, the 

Executive Director shall decide whether 

FPISC–OED will approve the petition 

for exemption based on the factors set 

forth in paragraph (c)(2) of this section. 

Upon a determination, the Executive 

Director shall notify in writing a project 

sponsor of the determination, including 

a statement of reasons. 

(e) Use of initiation fee. The collected 

initiation fees will be available to 

FPISC–OED, without appropriation or 

fiscal year limitation, solely for the 

purposes of administering and 

implementing 42 U.S.C. Chapter 44, 

Subchapter IV: Federal Permitting 

Improvement, including the expenses of 

the Council. 

(f) Collection. All fee amounts 

collected under paragraph (a) of this 

section will be deposited into the 

Environmental Review Improvement 

Fund. 

Subpart B—[Reserved] 

[FR Doc. 2018–19032 Filed 8–31–18; 8:45 am] 

BILLING CODE 6820–BR–P 


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