118 S2228 ES: Building Chips in America Act of 2023
U.S. Senate
text/xml
EN
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118th CONGRESS
1st Session
S. 2228
IN THE SENATE OF THE UNITED STATES
AN ACT
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.
1.

Short title
This Act may be cited as the “Building Chips in America Act of 2023”.
2.

Semiconductor program
Title XCIX of division H of the William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021 (15 U.S.C. 4651 et seq.) is amended—
(1)
in section 9902 (15 U.S.C. 4652)—
(A)
by redesignating subsections (h) and (i) as subsections (i) and (j), respectively; and
(B)
by inserting after subsection (g) the following:
“(h)

Authority relating to environmental review
(1)

In general
Notwithstanding any other provision of law, the provision by the Secretary of Federal financial assistance for a project described in this section that satisfies the requirements under subsection (a)(2)(C)(i) of this section shall not be considered to be a major Federal action under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) (referred to in this subsection as “NEPA”) or an undertaking for the purposes of division A of subtitle III of title 54, United States Code, if—
(A)
the activity described in the application for that project has commenced not later than December 31, 2024;
(B)
the Federal financial assistance provided is in the form of a loan or loan guarantee; or
(C)
the Federal financial assistance provided, excluding any loan or loan guarantee, comprises not more than 10 percent of the total estimated cost of the project.
(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 Federal financial assistance provided under this section.”; and
(2)
in section 9909 (15 U.S.C. 4659), by adding at the end the following:
“(c)

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 (42 U.S.C. 4336e).
(2)

Option to serve as lead agency
With respect to a covered activity that is a major Federal action under NEPA, and with respect to which the Department of Commerce is authorized or required by law to issue an authorization or take action for or relating to that covered activity, the Department of Commerce shall have the first right to serve as the lead agency with respect to that covered activity under NEPA.
(d)

Categorical exclusions
(1)

Establishment of categorical exclusions
Each of the following categorical exclusions is established for the National Institute of Standards and Technology with respect to a covered activity and, beginning on the date of enactment of this subsection, is available for use by the Secretary with respect to a covered activity:
(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.
(2)

Additional categorical exclusions
Notwithstanding any other provision of law, each of the following shall be treated as a category of action categorically excluded from the requirements relating to environmental assessments and environmental impact statements under section 1501.4 of title 40, Code of Federal Regulations, or any successor regulation:
(A)
The provision by the Secretary of any Federal financial assistance for a project described in section 9902, if 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, as of the date on which the Secretary provides that Federal financial assistance, substantially similar construction, expansion, or modernization is being or has been carried out, such that the facility would not more than double existing developed acreage or on-site supporting infrastructure.
(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), as in effect on the date of enactment of this subsection.
(C)
Any activity undertaken by the Secretary relating to carrying out section 9906, as in effect on the date of enactment of this subsection.
(e)

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.
(f)

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.).”.
Passed the Senate December 14, 2023.
Secretary