On September 22, 2023, the Federal Permitting Improvement Steering Council (also known as the Permitting Council) proposed to revise the scope of what qualifies as “mining” for new infrastructure projects eligible for coverage under Title 41 of the Fixing America’s Surface Transportation Act (FAST-41)—intending that the proposed revision will help more projects associated with developing the United States’ critical mineral resources qualify for FAST-41 coverage. 

FAST-41 streamlines a project's timeline for approval by establishing a new governance structure, set of procedures, and funding authorities to improve and make more transparent the Federal review and permitting process. Project sponsors (usually private entities) must apply for FAST-41 coverage for their projects.

FAST-41 coverage entitles project sponsors to a comprehensive, integrated Federal permitting timetable that is posted publicly and contains all Federal environmental reviews and authorizations needed to begin construction of the project. FAST-41 requires that agencies collaboratively establish and maintain these permitting timetables and consult with the project sponsor on any proposed permitting timetable changes. Permitting timetables may only be modified in compliance with FAST-41’s consultation and public disclosure requirements to ensure accountability. 

The proposed revisions will: 

1. Limit the scope of potentially covered mining projects to those involving critical minerals extraction (as defined by section 7002 of the Energy Act of 2020 and listed by the U.S. Geological Survey at 87 FR 10381), and
2. Incorporate critical mineral supply chain activities, including critical mineral beneficiation, processing, and recycling.

Doing so 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.

The Permitting Council also noted that revising the FAST-41 mining sector could result in:

• Reduced costs for any critical mineral mining and supply-chain project sponsor that obtains FAST–41 coverage for its project.
• Reduced costs 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. 

Next Steps:

The proposed rule solicits feedback from the public and other stakeholders in advance of a final rulemaking; the deadline to submit comments is October 23, 2023. 

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, then vote on any proposed modifications. 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. 

For additional information, please see ZETA’s full summary of the proposal here.