[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[S. 2588 Introduced in Senate (IS)]

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115th CONGRESS
  2d Session
                                S. 2588

To amend title 54, United States Code, to establish a program to allow 
States to assume certain Federal responsibilities under that title with 
  respect to agency actions applicable to highway projects within the 
                    States, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             March 21, 2018

 Mr. Cornyn (for himself, Mr. Hatch, and Mr. Sullivan) introduced the 
 following bill; which was read twice and referred to the Committee on 
                      Environment and Public Works

_______________________________________________________________________

                                 A BILL


 
To amend title 54, United States Code, to establish a program to allow 
States to assume certain Federal responsibilities under that title with 
  respect to agency actions applicable to highway projects within the 
                    States, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. ASSUMPTION BY STATES OF CERTAIN HISTORIC PRESERVATION 
              RESPONSIBILITIES.

    (a) In General.--Subchapter I of chapter 3061 of title 54, United 
States Code, is amended by adding at the end the following:
``Sec. 306115. Assumption by States of certain responsibilities 
              relating to highway projects
    ``(a) Establishment.--
            ``(1) In general.--The head of each agency (referred to in 
        this section as the `agency head') shall carry out an 
        assignment program (referred to in this section as the 
        `program') to allow States that are eligible under subsection 
        (b)(1) to assume certain responsibilities of the agency under 
        section 306108 with respect to agency actions applicable to 
        highway projects within the State.
            ``(2) Assumption of responsibility.--
                    ``(A) In general.--Subject to the other 
                requirements of this section, on written agreement of 
                the agency head and a State (which may be in the form 
                of a memorandum of understanding), the agency head may 
                assign, and the State may assume, the responsibilities 
                of the agency head under section 306108 with respect to 
                the undertakings of the agency described in that 
                section that are applicable to 1 or more highway 
                projects in the State.
                    ``(B) Additional responsibility.--
                            ``(i) In general.--If a State assumes 
                        responsibility under subparagraph (A), subject 
                        to clause (ii), on the request of the State, 
                        the agency head may also assign to the State, 
                        and the State may assume, the responsibilities 
                        of the agency head described in that 
                        subparagraph for 1 or more railroad, public 
                        transportation, or multimodal projects within 
                        the State.
                            ``(ii) Exclusion of projects.--In any State 
                        that assumes a responsibility of the agency 
                        head under clause (i), a recipient of 
                        assistance under chapter 53 of title 49, may 
                        submit to the agency head a request that the 
                        agency head shall maintain the responsibility 
                        of the agency head with respect to 1 or more 
                        public transportation projects carried out by 
                        the recipient in the State.
                    ``(C) Procedural and substantive requirements.--A 
                State shall assume responsibility under this section 
                subject to the same procedural and substantive 
                requirements as would apply if the responsibility were 
                carried out by the agency head.
                    ``(D) Federal responsibility.--Any responsibility 
                of an agency head that is not explicitly assumed by a 
                State by written agreement under this section shall 
                remain the responsibility of the agency head.
                    ``(E) No effect on authority.--Nothing in this 
                section preempts or interferes with any power, 
                jurisdiction, responsibility, or authority of the 
                Secretary, the Council, or the applicable agency, 
                except with respect to an authority delegated by the 
                agency head pursuant to subparagraph (A) under 
                applicable law regarding a project or agency action 
                described in subparagraph (A) or (B).
                    ``(F) Preservation of flexibility.--The agency head 
                may not require a State, as a condition of 
                participation in the program, to forgo a project 
                delivery method that is otherwise permissible for a 
                project described in subparagraph (A) or (B).
                    ``(G) Legal fees.--A State that assumes a 
                responsibility of an agency head under this section for 
                a project described in subparagraph (A) or (B) may use 
                funds apportioned to the State under section 104(b)(2) 
                of title 23, as necessary, for attorneys' fees directly 
                attributable to eligible activities associated with the 
                project.
    ``(b) State Participation.--
            ``(1) Participating states.--To be eligible to participate 
        in the program, a State shall--
                    ``(A) be participating in the surface 
                transportation project delivery program under section 
                327 of title 23; and
                    ``(B) assume the responsibilities of the Secretary 
                of Transportation under the National Environmental 
                Policy Act of 1969 (42 U.S.C. 4321 et seq.) pursuant to 
                that section.
            ``(2) Application.--Not later than 270 days after the date 
        of enactment of this section, the Secretary shall amend, as 
        appropriate, regulations that establish requirements relating 
        to information required in any application of a State to 
        participate in the program, including, at a minimum--
                    ``(A) the projects or classes of projects for which 
                the State anticipates exercising the authority that may 
                be granted under the program;
                    ``(B) verification of the financial resources 
                necessary to carry out the authority that may be 
                granted under the program; and
                    ``(C) evidence of the notice and solicitation of 
                public comment by the State relating to participation 
                of the State in the program, including copies of 
                comments received from that solicitation.
            ``(3) Public notice.--
                    ``(A) In general.--Each State that submits an 
                application in accordance with the regulations 
                described in paragraph (2) shall provide to the 
                relevant agency head and publish notice of the intent 
                of the State to participate in the program by not later 
                than 30 days before the date of submission of the 
                application.
                    ``(B) Method of notice and solicitation.--The State 
                shall provide notice and solicit public comment under 
                this paragraph by publishing the complete application 
                of the State in accordance with the appropriate public 
                notice requirements of the State.
            ``(4) Selection criteria.--The agency head may approve the 
        application of a State under this subsection only if--
                    ``(A) any necessary changes to regulations pursuant 
                to paragraph (2) have been carried out;
                    ``(B) the agency head determines that the State has 
                the capability, including financial and personnel, to 
                assume the responsibility; and
                    ``(C) the head of the State agency with primary 
                jurisdiction over highway matters enters into a written 
                agreement with the agency head, as described in 
                subsection (c).
            ``(5) Other agency views.--If a State applies to assume a 
        responsibility of the agency head that would have required the 
        agency head to consult with another agency, the agency head 
        shall solicit the views of the other agency before approving 
        the application of the State under this subsection.
    ``(c) Written Agreement.--A written agreement under this section 
shall--
            ``(1) be executed by--
                    ``(A) the Governor of the applicable State; or
                    ``(B) the top-ranking transportation official in 
                the State who is charged with responsibility for 
                highway construction;
            ``(2) be in such form as the agency head may require;
            ``(3) provide that the State--
                    ``(A) agrees to assume all or part of the 
                responsibilities of the agency head referred to in 
                subsection (a);
                    ``(B) expressly consents, on behalf of the State, 
                to accept the jurisdiction of the Federal courts for 
                the compliance, discharge, and enforcement of any 
                responsibility of the agency head assumed by the State;
                    ``(C) certifies that State laws (including 
                regulations) are in effect that--
                            ``(i) authorize the State to take the 
                        actions necessary to carry out the 
                        responsibilities being assumed; and
                            ``(ii) are comparable to section 552 of 
                        title 5, including providing that any decision 
                        regarding the public availability of a document 
                        under those State laws is reviewable by a court 
                        of competent jurisdiction; and
                    ``(D) agrees to maintain the financial resources 
                necessary to carry out the responsibilities being 
                assumed;
            ``(4) require the State to provide to the agency head any 
        information the agency head reasonably considers necessary to 
        ensure that the State is adequately carrying out the 
        responsibilities assigned to the State;
            ``(5) have a term of not more than 5 years; and
            ``(6) be renewable.
    ``(d) Jurisdiction.--
            ``(1) In general.--The United States district courts shall 
        have exclusive jurisdiction over any civil action against a 
        State for failure to carry out any responsibility assumed by 
        the State pursuant to this section.
            ``(2) Legal standards and requirements.--A civil action 
        under paragraph (1) shall be governed by the legal standards 
        and requirements that would apply in such a civil action 
        against the applicable agency head had the agency head taken 
        the actions in question.
            ``(3) Intervention.--The applicable agency head shall have 
        the right to intervene in any action described in paragraph 
        (1).
    ``(e) Effect of Assumption of Responsibility.--A State that assumes 
responsibility under subsection (a)(2) shall be solely responsible and 
solely liable for carrying out, in lieu of, and without further 
approval of, the applicable agency head, those responsibilities, until 
the date on which the program is terminated in accordance with 
subsection (j).
    ``(f) Limitations on Agreements.--Nothing in this section permits a 
State to assume any rulemaking authority of the Secretary or the 
applicable agency head under any Federal law.
    ``(g) Audits.--
            ``(1) In general.--To ensure compliance by a State with an 
        agreement of the State under subsection (c) (including 
        compliance by the State with all Federal laws for which 
        responsibility is assumed under subsection (a)(2)), for each 
        State participating in the program, the applicable agency head 
        shall--
                    ``(A) not later than 180 days after the date of 
                execution of the applicable agreement, meet with the 
                State--
                            ``(i) to review the implementation of the 
                        agreement; and
                            ``(ii) to discuss plans for the first 
                        annual audit;
                    ``(B) conduct annual audits during each of the 
                first 4 years of State participation in the program; 
                and
                    ``(C) ensure that the time period for completing an 
                annual audit, from initiation to completion (including 
                public comment and responses to those comments), does 
                not exceed 180 days.
            ``(2) Public availability and comment.--
                    ``(A) In general.--An audit conducted under 
                paragraph (1) shall be provided to the public for 
                comment.
                    ``(B) Response.--Not later than 60 days after the 
                date on which the period for public comment ends, the 
                applicable agency head shall respond to public comments 
                received under subparagraph (A).
            ``(3) Audit team.--
                    ``(A) In general.--An audit conducted under 
                paragraph (1) shall be carried out by an audit team 
                determined by the applicable agency head, in 
                consultation with the State, in accordance with 
                subparagraph (B).
                    ``(B) Consultation.--Consultation with the State 
                under subparagraph (A) shall include a reasonable 
                opportunity for the State to review, and provide 
                comments regarding, the proposed members of the audit 
                team.
    ``(h) Monitoring.--After the end of the fourth year of the 
participation by a State in the program, the applicable agency head 
shall monitor compliance by the State with the written agreement under 
subsection (c), including the provision by the State of financial 
resources to carry out the written agreement.
    ``(i) Report to Congress.--The Secretary or the Council shall 
submit to Congress an annual report that describes the administration 
of the program during the preceding calendar year.
    ``(j) Termination.--
            ``(1) Termination by agency.--The applicable agency head 
        may terminate the participation of a State in the program if--
                    ``(A) the agency head determines that the State is 
                not adequately carrying out the responsibilities 
                assigned to the State pursuant to this section;
                    ``(B) the agency head provides to the State--
                            ``(i) a notification of the determination 
                        of noncompliance;
                            ``(ii) a period of not less than 120 days 
                        to take such corrective action as the agency 
                        head determines to be necessary to comply with 
                        the applicable agreement; and
                            ``(iii) on request of the Governor of the 
                        State, a detailed description of each 
                        responsibility in need of corrective action 
                        regarding an inadequacy identified under 
                        subparagraph (A); and
                    ``(C) the State, after the notification and period 
                for corrective action provided under subparagraph (B), 
                fails to take satisfactory corrective action, as 
                determined by the agency head.
            ``(2) Termination by state.--The State may terminate the 
        participation of the State in the program at any time by 
        providing to the applicable agency head a notice, by not later 
        than the date that is 90 days before the date of termination, 
        subject to such terms and conditions as the agency head may 
        provide.
    ``(k) Capacity Building.--The Council, in cooperation with 
representatives of State officials, may carry out education, training, 
peer-exchange, and other initiatives as appropriate--
            ``(1) to assist States in developing the capacity to 
        participate in the program; and
            ``(2) to promote information sharing and collaboration 
        among States that are participating in the program.
    ``(l) Relationship to Locally Administered Projects.--A State 
granted authority under this section may, as appropriate and on the 
request of a local government--
            ``(1) exercise that authority on behalf of the local 
        government for a locally administered project; or
            ``(2) provide guidance and training regarding consolidating 
        and minimizing the documentation and environmental analyses 
        necessary for sponsors of a locally administered project to 
        comply with--
                    ``(A) section 306108; and
                    ``(B) any comparable requirements under State 
                law.''.
    (b) Technical Amendment.--The table of sections for chapter 3061 of 
title 54, United States Code, is amended by inserting after the item 
relating to section 306114 the following:

``306115. Assumption by States of certain responsibilities relating to 
                            highway projects.''.
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