42 U.S.C. § 4370m–8: Funding for governance…

Summary

Allows the Executive Director, after talking with certain federal agency leaders, following OMB guidance, and giving the public notice and a chance to comment, to write rules that set fees for project sponsors. These fees must cover "reasonable costs" to do the environmental reviews and permits and to run the Council. The fee plan must be made with input from affected project sponsors and others, must exempt people who would face an undue financial burden or where a fee is not appropriate, and must be set so total fees collected in a fiscal year are estimated not to exceed 20 percent of the year’s estimated costs for doing the covered reviews, as decided by the OMB Director. All fee money goes into the Environmental Review Improvement Fund in the U.S. Treasury. The Executive Director can use the Fund, with no yearly time limit, only to run and enforce this work, pay Council expenses, hire staff, and support the Council’s role as a federal permitting center (for example, training, detailees, and support for project managers). With OMB approval, the Executive Director can transfer Fund money to other federal, State, Tribal, or local governments to help speed reviews and reimburse staff. The rules must make sure use of the money does not affect impartial decision‑making. Agency heads may also move their own appropriated funds to other agencies to help, but funds from Title 23 and the Army Corps’ civil works appropriations cannot be moved.

Title 42, §4370m–8

The Public Health and Welfare, Source: USLM XML via OLRC

(a)In general

For the purpose of carrying out this subchapter, the Executive Director, in consultation with the heads of the agencies listed in section 4370m–1(b)(2)(B) of this title and with the guidance of the Director of the Office of Management and Budget, may, after public notice and opportunity for comment, issue regulations establishing a fee structure for sponsors of covered projects to reimburse the United States for reasonable costs incurred in conducting environmental reviews and authorizations for covered projects.

(b)Reasonable costs

As used in this section, the term “reasonable costs” shall include costs to implement the requirements and authorities required under sections 4370m–1 through 4370m–7 of this title, including the costs to agencies and the costs of operating the Council.

(c)Fee structure

The fee structure established under subsection (a) shall—

(1)be developed in consultation with affected project proponents, industries, and other stakeholders;

(2)exclude parties for which the fee would impose an undue financial burden or is otherwise determined to be inappropriate; and

(3)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 the environmental reviews and authorizations covered by this subchapter, as determined by the Director of the Office of Management and Budget.

(d)Environmental Review Improvement Fund

(1)In general

All amounts collected pursuant to this section shall be deposited into a separate fund in the Treasury of the United States to be known as the “Environmental Review Improvement Fund” (referred to in this section as the “Fund”).

(2)Availability

Amounts in the Fund shall be available to the Executive Director, without fiscal year limitation, solely for the purposes of administering, implementing, and enforcing this subchapter, including the expenses of the Council, appointing and fixing the compensation of such employees as the Executive Director considers necessary to carry out the roles and responsibilities of the Executive Director, and support of the role of the Council as a Federal center for permitting excellence, which may include supporting interagency detailee and rotation opportunities, advanced training, enhanced support for agency project managers, and fora for sharing information and lessons learned.

(3)Transfer

For the purpose of carrying out this subchapter, the Executive Director, with the approval of the Director of the Office of Management and Budget, may transfer amounts in the Fund to other Federal agencies and State, Tribal, and local governments to facilitate timely and efficient environmental reviews and authorizations for covered projects and other projects under this subchapter, including direct reimbursement agreements with agency CERPOs, reimbursable agreements, and approval and consultation processes and staff for covered projects.

(e)Effect on permitting

The regulations adopted pursuant to subsection (a) shall ensure that the use of funds accepted under subsection (d) will not impact impartial decision-making with respect to environmental reviews or authorizations, either substantively or procedurally.

(f)Transfer of appropriated funds

(1)In general

The heads of agencies listed in section 4370m–1(b)(2)(B) of this title shall have the authority to transfer, in accordance with section 1535 of title 31, funds appropriated to those agencies and not otherwise obligated to other affected Federal agencies for the purpose of implementing the provisions of this subchapter.

(2)Limitation

Appropriations under title 23 and appropriations for the civil works program of the Army Corps of Engineers shall not be available for transfer under paragraph (1).

Notes & Related Subsidiaries

Editorial Notes

Codification Section was enacted as part of the Fixing America’s Surface Transportation Act, also known as the FAST Act, and not as part of the National Environmental Policy Act of 1969 which comprises this chapter.

Amendments

2022—Subsec. (d)(2). Pub. L. 117–328 substituted “appointing and fixing the compensation of such employees as the Executive Director considers necessary to carry out the roles and responsibilities of the Executive Director” for “staffing of the Office of the Executive Director”. 2021—Subsec. (a). Pub. L. 117–58, § 70801(g)(1), added subsec. (a) and struck out former subsec. (a). Prior to amendment, text read as follows: “The heads of agencies listed in section 4370m–1(b)(2)(B) of this title, with the guidance of the Director of the Office of Management and Budget and in consultation with the Executive Director, may, after public notice and opportunity for comment, issue

Regulations

establishing a fee structure for project proponents to reimburse the United States for reasonable costs incurred in conducting environmental reviews and authorizations for covered projects.” Subsec. (b). Pub. L. 117–58, § 70801(g)(2), substituted “through 4370m–7” for “and 4370m–2”. Subsec. (d). Pub. L. 117–58, § 70801(g)(3)(A), struck out “and Permitting” after “Review” in heading. Subsec. (d)(2), (3). Pub. L. 117–58, § 70801(g)(3)(B), added pars. (2) and (3) and struck out former pars. (2) and (3) which read as follows: “(2) Availability.—Amounts in the Fund shall be available to the Executive Director, without appropriation or fiscal year limitation, solely for the purposes of administering, implementing, and enforcing this subchapter, including the expenses of the Council. “(3) Transfer.—The Executive Director, with the approval of the Director of the Office of Management and Budget, may transfer amounts in the Fund to other agencies to facilitate timely and efficient environmental reviews and authorizations for proposed covered projects.”

§4370m–8 Funding for Governance, Oversight, and Processing of Environmental Reviews and Permits