[Congressional Record Volume 164, Number 49 (Wednesday, March 21, 2018)]
[Senate]
[Pages S1878-S1879]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. CORNYN (for himself, Mr. Hatch, and Mr. Sullivan):
  S. 2588. 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; to the Committee on 
Environment and Public Works.
  Mr. CORNYN. Mr. President, I ask unanimous consent that the text of 
the bill be printed in the Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                S. 2588

       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

[[Page S1879]]

       ``(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.''.

                          ____________________