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Federal Register / Vol. 86, No. 5 / Friday, January 8, 2021 / Rules and Regulations
commenters claim it lacks. For example, one comment letter asserts that the recommended performance schedule RPS established for a new sector pursuant to 42 U.S.C. 4370m1c1C
limits the flexibility of agencies to craft a permitting timetable that reflects the complexity of the specific project or the impacts of the project on unique environmental or cultural resources. But FAST41 specifically provides that agencies may modify the RPS based on relevant factors, including factors such as those identified by the commenter i.e., to accommodate the size and complexity of the covered project and the sensitivity of the natural or historic resources affected by the project. 42 U.S.C. 4370m 2c2Bi & iv. Indeed, despite the commenters concern about the RPS
provision, the Permitting Council has successfully created a unique permitting timetable for each FAST41 covered project.
Similarly, commenters concern that agencies are unable to adjust FAST41
project permitting timetables as needed to accommodate changed circumstances or new information is unfounded.
Pursuant to 42 U.S.C. 4370m 2c2DiI and II, agencies may adjust permitting timetable milestones where interagency agreement can be reached about the need for the extension and a written explanation is provided for the record. And if an extension of a milestone would extend a final permitting completion date by more than 30 days, the Permitting Council Executive Director may extend the final permitting timetable date after consulting with relevant agencies and determining on the record that that an extension is warranted based on the same relevant factors that can be used for deviating from the RPS. 42 U.S.C.
4370m2c2DiIII. In short, nothing in FAST41 prevents agencies from modifying permitting timetables for the reasons commenters are concerned about.
Commenters concerns regarding the FAST41 provision that requires OMB
approval and a report to Congress if a permitting timetable exceeds by 50
percent the originally established permitting timetable 150 percent date are equally misplaced. 42 U.S.C.
4370m2c2Diii. Like the milestone extension requirements, the 150 percent date requirement is a transparency and accountability mechanism which, like many of FAST
41s substantive provisions, encourages thoughtful, coordinated, and deliberate agency planning and action. Nothing prevents OMB from granting permitting timetable extensions beyond 50 percent
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of the original timetable to accommodate any information gap, needed stakeholder consultation, or environmental concern. The Permitting Council agrees with commenters that project sponsor delay can be a significant source of permitting timeline delay. That is why the 150 percent date requirement does not count against an agency when the permitting timetable extension request is for reasons outside the governments control. 42 U.S.C.
4370m2c2DiiiI.
Likewise, and contrary to the assertions of some commenters, FAST
41 does not limit the rights of the public to provide input into the project review process, nor does it affect the discretion of agencies to establish or extend comment periods to obtain essential environmental information. Although FAST41 establishes default comment periods for various environmental documents,4 agencies retain discretion to extend any comment period for good cause. This allows agencies to extend comment periods to provide affected parties sufficient opportunity for timely input, or to obtain any environmental information essential for project review.
This requirement is analogous to other Federal programs intended to foster timely and deliberate agency decision making. See, e.g., 23 U.S.C. 139g2
minimum comment periods for NEPA
documents that are subject to Department of Transportation efficient environmental review provisions may be extended when agencies agree or for good cause; 23 CFR 771.123k default comment period for environmental assessments and environmental impact statements that are subject to Department of Transportation efficient environmental review provisions is 4560 days.
Finally, the FAST 41 provisions that require early development of NEPA
alternatives and specify that agencies may develop preferred alternatives to a higher level of detail than other alternatives do not constrain agency discretion to subsequently develop additional NEPA alternatives when needed, and are entirely consistent with controlling CEQ NEPA implementing regulations. 42 U.S.C. 4370m4c; see 40 CFR 1501.2, 1502.14, 1502.17.
Federal and State Coordination One commenter expressed concern that the application of FAST41 may interfere with cooperation between state and Federal officials with respect to 4 The default comment period for environmental impact statements is 4560 days and 45 days for all other NEPA documents. 42 U.S.C. 4370m4b1D
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review and authorization of covered projects. However, FAST41 encourages Federal-state cooperation by providing states the opportunity to opt-in to the FAST41 process 42 U.S.C. 4370m 2c3, and additionally requires Federal agencies to consult with states before taking certain actions, such as establishing a covered project permitting timetable. 43 U.S.C. 4370m 2c2A, see also 42 U.S.C. 4370m3
interstate compacts; 42 U.S.C. 4370m 5 delegated state permitting programs.
FAST41 Limitations Period Several commenters expressed concern that the two-year FAST41
limitations period contained in 42
U.S.C. 4370m6a1A may prevent access to the courts by parties affected by mining pollution or violations by mine operators of permit conditions or applicable regulations. Although the FAST41 limitations period is shorter than the six-year limitations period for claims against the government brought under the Administrative Procedure Act APA, 5 U.S.C. 551 et seq., the two-year limitations period applies exclusively to Federal authorizations of FAST41
covered projects. The limitations period does not apply to lawsuits alleging noncompliance with applicable regulations or permit conditions, or to tort claims. Moreover, because all FAST41 covered project Federal authorizations are publically posted on the Permitting Dashboard,5 FAST41
ensures that anyone wishing to challenge the validity of a Federal agency authorization with respect to a covered project will have adequate opportunity to do so.
Consultation With Indian Tribal Governments; Environmental Justice Several commenters assert that the Permitting Council is required to engage in government-to-government consultation with Indian Tribal Governments pursuant to section 5 of E.O. 13175 because Tribes are affected by mining projects. Several commenters similarly argue that the Permitting Council is required to identify and address the disproportionate effects that mining can have on minority and lowincome populations pursuant to E.O.
12898.
Designating mining as a FAST41
sector is a ministerial act that has no effect on Tribes and does not disproportionately affect minority or low-income populations. As explained in the preamble to the proposed rule, only prospective covered project 5 Available at https
www.permits.performance.gov/.

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