[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[H.R. 4549 Introduced in House (IH)]

<DOC>






118th CONGRESS
  1st Session
                                H. R. 4549

To amend the William M. (Mac) Thornberry National Defense Authorization 
Act for Fiscal Year 2021 to clarify the scope of a major Federal action 
  under the National Environmental Policy Act of 1969 with respect to 
certain projects relating to the production of semiconductors, and for 
                            other purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                             July 11, 2023

Mrs. Kiggans of Virginia (for herself, Mr. Peters, Mr. Williams of New 
York, Mr. Allred, and Mr. McCaul) introduced the following bill; which 
was referred to the Committee on Science, Space, and Technology, and in 
addition to the Committees on Energy and Commerce, Armed Services, and 
 Natural Resources, for a period to be subsequently determined by the 
  Speaker, in each case for consideration of such provisions as fall 
           within the jurisdiction of the committee concerned

_______________________________________________________________________

                                 A BILL


 
To amend the William M. (Mac) Thornberry National Defense Authorization 
Act for Fiscal Year 2021 to clarify the scope of a major Federal action 
  under the National Environmental Policy Act of 1969 with respect to 
certain projects relating to the production of semiconductors, 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. SHORT TITLE.

    This Act may be cited as the ``Building Chips in America Act of 
2023''.

SEC. 2. SEMICONDUCTOR PROGRAM.

    Section 9909 of the William M. (Mac) Thornberry National Defense 
Authorization Act for Fiscal Year 2021 (15 U.S.C. 4659) is amended by 
adding at the end the following:
    ``(c) Authority Relating to Environmental Review.--
            ``(1) In general.--Notwithstanding any other provision of 
        law, none of the following shall be considered to be a major 
        Federal action under NEPA or an undertaking for the purposes of 
        division A of subtitle III of title 54, United States Code:
                    ``(A) The provision by the Secretary of any Federal 
                financial assistance for a project described in section 
                9902, if--
                            ``(i) the covered activity described in the 
                        application for that project has commenced 
                        before the date on which the Secretary provides 
                        that assistance;
                            ``(ii) the facility that is the subject of 
                        the project is on or adjacent to a site--
                                    ``(I) that is owned or leased by 
                                the covered entity to which Federal 
                                financial assistance is provided for 
                                that project; and
                                    ``(II) on which substantially 
                                similar construction, expansion, or 
                                modernization has been carried out such 
                                that the facility would not more than 
                                double existing developed acreage or 
                                supporting infrastructure;
                            ``(iii) the Secretary determines, in the 
                        sole discretion of the Secretary, that the laws 
                        and regulations governing environmental reviews 
                        in the State in which the facility that is the 
                        subject of the project is or will be located 
                        are functionally equivalent to the requirements 
                        under NEPA;
                            ``(iv) the Federal financial assistance 
                        provided is in the form of a loan or loan 
                        guarantee; or
                            ``(v) the Federal financial assistance 
                        provided, excluding any loan or loan guarantee, 
                        comprises less than 15 percent of the total 
                        estimated cost of the project.
                    ``(B) The provision by the Secretary of Defense of 
                any Federal financial assistance relating to--
                            ``(i) the creation, expansion, or 
                        modernization of one or more facilities 
                        described in the second sentence of section 
                        9903(a)(1); or
                            ``(ii) carrying out section 9903(b).
                    ``(C) Any activity relating to carrying out section 
                9906.
            ``(2) Savings clause.--Nothing in this subsection may be 
        construed as altering whether an activity described in 
        subparagraph (A), (B), or (C) of paragraph (1) is considered to 
        be a major Federal action under NEPA, or an undertaking under 
        division A of subtitle III of title 54, United States Code, for 
        a reason other than that the activity is eligible for funding 
        provided under this title.
    ``(d) Lead Federal Agency and Cooperating Agencies.--
            ``(1) Definition.--In this subsection, the term `lead 
        agency' has the meaning given the term in section 111 of NEPA.
            ``(2) Option to serve as lead agency.--With respect to a 
        covered activity that is a major Federal action under NEPA, the 
        Department of Commerce shall have the first right to serve as 
        the lead agency with respect to that covered activity under 
        NEPA.
            ``(3) Cooperating agency.--The Secretary may designate any 
        Federal, State, Tribal, or local agency as a cooperating agency 
        with respect to a covered activity for which the Department of 
        Commerce serves as the lead agency under paragraph (1), if the 
        applicable agency has--
                    ``(A) the jurisdiction to issue an authorization or 
                take action for or relating to that covered activity; 
                or
                    ``(B) special expertise with respect to that 
                covered activity.
            ``(4) Environmental documents.--
                    ``(A) Single document.--All authorizations relating 
                to a covered activity shall rely on a single 
                environmental document and joint record of decision 
                prepared by the lead agency with respect to that 
                covered activity for the purposes of NEPA.
                    ``(B) Inclusion.--An environmental document and 
                joint record of decision described in subparagraph (A) 
                shall--
                            ``(i) rely on any comments, analysis, 
                        proposals, or documentation developed by 
                        cooperating agencies designated under paragraph 
                        (3); and
                            ``(ii) provide all authorizations necessary 
                        for the applicable covered activity as if any 
                        cooperating agency designated under paragraph 
                        (3) had issued an environmental document and 
                        joint record of decision.
    ``(e) Adoption of Categorical Exclusions.--
            ``(1) Establishment of categorical exclusions.--Each of the 
        following categorical exclusions is established for the 
        National Institute of Standards and Technology and, beginning 
        on the date of enactment of this subsection, is available for 
        use by the Secretary:
                    ``(A) Categorical exclusion 17.04.d (relating to 
                the acquisition of machinery and equipment) in the 
                document entitled `EDA Program to Implement the 
                National Environmental Policy Act of 1969 and Other 
                Federal Environmental Mandates As Required' (Directive 
                No. 17.02-2; effective date October 14, 1992).
                    ``(B) Categorical exclusion A9 in Appendix A to 
                subpart D of part 1021 of title 10, Code of Federal 
                Regulations, or any successor regulation.
                    ``(C) Categorical exclusions B1.24, B1.31, B2.5, 
                and B5.1 in Appendix B to subpart D of part 1021 of 
                title 10, Code of Federal Regulations, or any successor 
                regulation.
                    ``(D) The categorical exclusions described in 
                paragraphs (4) and (13) of section 50.19(b) of title 
                24, Code of Federal Regulations, or any successor 
                regulation.
                    ``(E) Categorical exclusion (c)(1) in Appendix B to 
                part 651 of title 32, Code of Federal Regulations, or 
                any successor regulation.
                    ``(F) Categorical exclusions A2.3.8 and A2.3.14 in 
                Appendix B to part 989 of title 32, Code of Federal 
                Regulations, or any successor regulation.
                    ``(G) Any other categorical exclusion adopted by 
                another Federal agency that the Secretary determines 
                would accelerate the completion of a covered activity 
                if the categorical exclusion were available to the 
                Secretary.
            ``(2) Subsequent changes.--In any NEPA process that is 
        ongoing (as of the date of enactment of this subsection), or 
        that occurs on or after the date of enactment of this 
        subsection, the Secretary may update, amend, revise, or remove 
        any categorical exclusion established under paragraph (1).
            ``(3) Scope of review.--The application of any categorical 
        exclusion established under paragraph (1), as the categorical 
        exclusion may be updated, amended, or revised under paragraph 
        (2), shall not be subject to evaluation for extraordinary 
        circumstances under section 1501.4(b) of title 40, Code of 
        Federal Regulations, or any successor regulation.
    ``(f) Incorporation of Prior Planning Decisions.--
            ``(1) Definition.--In this subsection, the term `prior 
        studies and decisions' means baseline data, planning documents, 
        studies, analyses, decisions, and documentation that a Federal 
        agency has completed for a project (or that have been completed 
        under the laws and procedures of a State or Indian Tribe), 
        including for determining the reasonable range of alternatives 
        for that project.
            ``(2) Reliance on prior studies and decisions.--In 
        completing an environmental review under NEPA for a covered 
        activity, the Secretary may consider and, as appropriate, rely 
        on or adopt prior studies and decisions, if the Secretary 
        determines that--
                    ``(A) those prior studies and decisions meet the 
                standards for an adequate statement, assessment, or 
                determination under applicable procedures of the 
                Department of Commerce implementing the requirements of 
                NEPA;
                    ``(B) in the case of prior studies and decisions 
                completed under the laws and procedures of a State or 
                Indian Tribe, those laws and procedures are of equal or 
                greater rigor than those of each applicable Federal 
                law, including NEPA, implementing procedures of the 
                Department of Commerce; or
                    ``(C) if applicable, the prior studies and 
                decisions are informed by other analysis or 
                documentation that would have been prepared if the 
                prior studies and decisions were prepared by the 
                Secretary under NEPA.
    ``(g) NEPA Assignment.--
            ``(1) Assumption of responsibility.--
                    ``(A) Written agreement.--
                            ``(i) In general.--Subject to the other 
                        provisions of this section, with the written 
                        agreement of the Secretary and a State, which 
                        may be in the form of a memorandum of 
                        understanding, the Secretary may assign, and 
                        the State may assume, the responsibilities of 
                        the Secretary with respect to 1 or more covered 
                        activities within the State under NEPA.
                            ``(ii) Requirements.--A written agreement 
                        between the Secretary and a State under clause 
                        (i) shall--
                                    ``(I) be executed by the governor 
                                of the State;
                                    ``(II) provide that the State--
                                            ``(aa) agrees to assume all 
                                        or part of the responsibilities 
                                        of the Secretary described in 
                                        that clause;
                                            ``(bb) expressly consents, 
                                        on behalf of the State, to 
                                        accept the jurisdiction of the 
                                        courts of the United States 
                                        with respect to compliance 
                                        with, the discharge of, and the 
                                        enforcement of any 
                                        responsibility of the Secretary 
                                        assumed by the State;
                                            ``(cc) certifies that there 
                                        are laws of the State, 
                                        including regulations, in 
                                        effect that--

                                                    ``(AA) authorize 
                                                the State to take the 
                                                actions necessary to 
                                                carry out the 
                                                responsibilities being 
                                                assumed by the State; 
                                                and

                                                    ``(BB) are 
                                                comparable to section 
                                                552 of title 5, United 
                                                States Code, including 
                                                by providing that any 
                                                decision regarding the 
                                                public availability of 
                                                a document under those 
                                                laws of the State may 
                                                be reviewed by a court 
                                                of competent 
                                                jurisdiction; and

                                            ``(dd) agrees to make 
                                        available the financial 
                                        resources necessary to carry 
                                        out the responsibilities being 
                                        assumed by the State;
                                    ``(III) require the State to 
                                provide to the Secretary any 
                                information that the Secretary 
                                reasonably considers necessary to 
                                ensure that the State is adequately 
                                carrying out the responsibilities being 
                                assumed by the State; and
                                    ``(IV) be renewable.
                    ``(B) Additional responsibility.--If a State 
                assumes responsibility under subparagraph (A), the 
                Secretary may assign to the State, and the State may 
                assume, all or part of the responsibilities of the 
                Secretary for environmental review, consultation, or 
                other action required under any Federal environmental 
                law pertaining to the review or approval of a covered 
                activity.
                    ``(C) Procedural and substantive requirements.--A 
                State shall assume responsibility under this subsection 
                subject to the same procedural and substantive 
                requirements as would apply if that responsibility were 
                carried out by the Secretary.
                    ``(D) Federal responsibility.--Any responsibility 
                of the Secretary not explicitly assumed by a State by 
                written agreement under this subsection shall remain 
                the responsibility of the Secretary.
                    ``(E) No effect on authority.--Nothing in this 
                subsection preempts or interferes with any power, 
                jurisdiction, responsibility, or authority of an 
                agency, other than the Department of Commerce, under 
                applicable law (including regulations) with respect to 
                a project.
            ``(2) State participation.--The Secretary may develop an 
        application for a State to assume responsibility under 
        paragraph (1), at such a time and containing such information 
        as the Secretary determines appropriate.
            ``(3) Selection criteria.--The Secretary may approve the 
        application of a State to assume responsibility under this 
        subsection only if--
                    ``(A) the Secretary determines that the State has 
                the capability, including financial and with respect to 
                personnel, to assume the responsibility; and
                    ``(B) the governor of the State has entered into 
                the written agreement with the Secretary required under 
                paragraph (1)(A).
            ``(4) Limitations on agreements.--Nothing in this 
        subsection permits a State to assume any rulemaking authority 
        of the Secretary under any Federal law.
            ``(5) Audits.--To ensure compliance by a State (including 
        compliance by the State with all Federal laws for which 
        responsibility is assumed under paragraph (1)(B)), for each 
        State participating in the program under this subsection, the 
        Secretary shall--
                    ``(A) conduct annual audits for each year of State 
                participation;
                    ``(B) not later than 180 days after the date on 
                which the agreement between the Secretary and the State 
                is executed, meet with the State to review 
                implementation of the agreement and discuss plans for 
                the first annual audit required under subparagraph (A); 
                and
                    ``(C) ensure that the time period for completing an 
                audit under subparagraph (A), from initiation to 
                completion, does not exceed 180 days.
            ``(6) Termination.--
                    ``(A) Termination by secretary.--The Secretary may 
                terminate the participation of any State in the program 
                under this subsection, if--
                            ``(i) the Secretary determines that the 
                        State is not adequately carrying out the 
                        responsibilities assigned to the State;
                            ``(ii) the Secretary provides the State 
                        with--
                                    ``(I) a notification of the 
                                determination of noncompliance under 
                                clause (i);
                                    ``(II) a period of not less than 
                                120 days to take corrective action as 
                                the Secretary 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 clause (i); 
                                and
                            ``(iii) the State, after the period 
                        provided under clause (ii), fails to take 
                        satisfactory corrective action, as determined 
                        by the Secretary.
                    ``(B) Termination by the state.--A State, at any 
                time, may terminate the participation of the State in 
                the program under this subsection by providing to the 
                Secretary notice not later than 90 days before the date 
                on which that termination will take effect, subject to 
                such terms and conditions as the Secretary may provide.
    ``(h) Judicial Review.--
            ``(1) In general.--Subject to paragraph (2), nothing in 
        this section shall affect whether any final Federal agency 
        action may be reviewed in a court of the United States or of 
        any State.
            ``(2) Efficiency of claims.--
                    ``(A) Statute of limitations.--Notwithstanding any 
                other provision of law, and except as provided in 
                subparagraph (B), a claim arising under Federal law 
                seeking judicial review of Federal financial assistance 
                provided under this title, or with respect to any 
                authorization issued or denied under NEPA by the 
                Secretary for a covered activity, shall be barred 
                unless the claim is filed not later than 150 days after 
                the date on which the Secretary announces that, as 
                applicable--
                            ``(i) the Secretary has approved the 
                        application for such Federal financial 
                        assistance;
                            ``(ii) the Secretary has issued that 
                        authorization; or
                            ``(iii) the Secretary has denied that 
                        authorization.
                    ``(B) Exception.--Subparagraph (A) shall not apply 
                if a shorter deadline than the applicable deadline 
                under that subparagraph is specified in the Federal law 
                under which judicial review is allowed.
    ``(i) Use of Appropriated Funds.--To carry out the activities under 
subsections (e) through (g), the Secretary may use amounts made 
available to the Secretary under section 102(a)(2)(B)(ii) of the CHIPS 
Act of 2022 (15 U.S.C. 4651 note).
    ``(j) Definitions.--In this section:
            ``(1) Covered activity.--The term `covered activity' means 
        any activity relating to the construction, expansion, or 
        modernization of a facility, the investment in which is 
        eligible for Federal financial assistance under section 9902 or 
        9906.
            ``(2) NEPA.--The term `NEPA' means the National 
        Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.).''.
                                 <all>