[Congressional Record Volume 167, Number 138 (Tuesday, August 3, 2021)]
[Senate]
[Pages S5771-S5772]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
SA 2417. Ms. LUMMIS (for herself and Mr. Hickenlooper) submitted an
amendment intended to be proposed to amendment SA 2137 proposed by Mr.
Schumer (for Ms. Sinema (for herself, Mr. Portman, Mr. Manchin, Mr.
Cassidy, Mrs. Shaheen, Ms. Collins, Mr. Tester, Ms. Murkowski, Mr.
Warner, and Mr. Romney)) to the bill H.R. 3684, to authorize funds for
Federal-aid highways, highway safety programs, and transit programs,
and for other purposes; which was ordered to lie on the table; as
follows:
At the end of division D, add the following:
TITLE XIII--RURAL BROADBAND PERMITTING EFFICIENCY
SEC. 41301. SHORT TITLE.
This title may be cited as the ``Rural Broadband Permitting
Efficiency Act of 2021''.
SEC. 41302. DEFINITIONS.
In this title:
(1) Broadband project.--The term ``broadband project''
means an installation by a broadband provider of wireless or
broadband infrastructure, including but not limited to,
copper lines, fiber optic lines, communications towers,
buildings, or other improvements on Federal land.
(2) Broadband provider.--The term ``broadband provider''
means a provider of wireless or broadband infrastructure that
enables a user to originate and receive high-quality voice,
data, graphics, and video telecommunications.
(3) Indian lands.--The term ``Indian Lands'' means--
(A) any land owned by an Indian Tribe, located within the
boundaries of an Indian reservation, pueblo, or rancheria; or
(B) any land located within the boundaries of an Indian
reservation, pueblo, or rancheria, the title to which is
held--
(i) in trust by the United States for the benefit of an
Indian Tribe or an individual Indian;
(ii) by an Indian Tribe or an individual Indian, subject to
restriction against alienation under laws of the United
States; or
(iii) by a dependent Indian community.
(4) Indian tribe.--The term ``Indian Tribe'' means a
federally recognized Indian Tribe.
(5) Operational right-of-way.--The term ``operational
right-of-way'' means all real property interests (including
easements) acquired for the construction or operation of a
project, including the locations of the roadway, bridges,
interchanges, culverts, drainage, clear zone, traffic control
signage, landscaping, copper and fiber optic lines, utility
shelters, poles, and broadband infrastructure as installed by
broadband providers, and any rest areas with direct access to
a controlled access highway or the National Highway System.
(6) Secretary concerned.--The term ``Secretary concerned''
means--
(A) the Secretary of Agriculture (acting through the Chief
of the Forest Service), with respect to National Forest
System land; and
(B) the Secretary of the Interior, with respect to land
managed by the Department of the Interior (including land
held in trust for an Indian Tribe).
SEC. 41303. STATE OR TRIBAL PERMITTING AUTHORITY.
(a) In General.--The Secretary concerned shall establish
(or in the case where both Department of the Interior and
National Forest System land would be affected, shall jointly
establish) a voluntary program under which any State or
Indian Tribe may offer, and the Secretary concerned may
agree, to enter into a memorandum of understanding to allow
for the State or Indian Tribe to prepare environmental
analyses required under the National Environmental Policy Act
of 1969 (42 U.S.C. 4321 et seq.) for the permitting of
broadband projects within an operational right-of-way on
National Forest System land, land managed by the Department
of the Interior, and Indian Lands. Under such a memorandum of
understanding, an Indian Tribe or State may volunteer to
cooperate with the signatories to the memorandum in the
preparation of the analyses required under the National
Environmental Policy Act of 1969.
(b) Assumption of Responsibilities.--
(1) In general.--In entering into a memorandum of
understanding under this section, the Secretary concerned may
assign to the State or Indian Tribe, and the State or Indian
Tribe may agree to assume, all or part of the
responsibilities of the Secretary concerned for environmental
analyses under the National Environmental Policy Act of 1969
(42 U.S.C. 4321 et seq.).
(2) State or indian tribe responsibility.--
(A) In general.--A State or Indian Tribe that assumes any
responsibility under paragraph (1) shall be subject to the
same procedural and substantive requirements as would apply
if the responsibility were carried out by the Secretary
concerned.
(B) Effect of assumption of responsibility.--A State or
Indian Tribe that assumes any responsibility, including
financial responsibility, under paragraph (1) shall be solely
responsible and solely liable for carrying out, in lieu of
the Secretary concerned, the responsibilities assumed under
that paragraph until the date on which the program is
terminated under subsection (g).
(C) Environmental review.--A State or Indian Tribe that
assumes any responsibility under paragraph (1) shall comply
with the environmental review procedures under parts 1500-
1508 of title 40, Code of Federal Regulations (or successor
regulations), and the regulations of the Secretary concerned.
(3) Federal responsibility.--Any responsibility of the
Secretary concerned described in paragraph (1) that is not
explicitly assumed by the State or Indian Tribe in the
memorandum of understanding shall remain the responsibility
of the Secretary concerned.
(c) Offer and Notification.--A State or Indian Tribe that
intends to offer to enter into a memorandum of understanding
under this section shall provide to the Secretary concerned
notice of the intent of the State or Indian Tribe not later
than 90 days before the date on which the State or Indian
Tribe submits a formal written offer to the Secretary
concerned.
(d) Tribal Consultation.--Within 90 days of entering into
any memorandum of understanding with a State, the Secretary
concerned shall initiate consultation with relevant Indian
Tribes.
(e) Memorandum of Understanding.--A memorandum of
understanding entered into under this section shall--
(1) be executed by the Governor or the Governor's designee,
or in the case of an Indian Tribe, by an officer designated
by the governing body of the Indian Tribe;
(2) be for a term not to exceed 10 years;
(3) be in such form as the Secretary concerned may
prescribe;
(4) provide that the State or Indian Tribe--
(A) agrees to assume all or part of the responsibilities of
the Secretary concerned described in subsection (b)(1);
(B) expressly consents, including through the adoption of
express waivers of sovereign immunity, on behalf of the State
or Indian Tribe, to accept the jurisdiction of the Federal
courts for the compliance, discharge, and enforcement of any
responsibility of the Secretary concerned assumed by the
State or Indian Tribe;
(C) certify that State laws and regulations, with respect
to States, or Tribal laws and regulations, with respect to
Indian Tribes, are in effect that--
(i) authorize the State or Indian Tribe to take the actions
necessary to carry out the responsibilities being assumed;
and
(ii) are comparable to section 552 of title 5, United
States Code, including providing that any decision regarding
the public availability of a document under the State laws is
reviewable by a court of competent jurisdiction;
(D) agrees to maintain the financial resources necessary to
carry out the responsibilities being assumed;
(E) agrees to provide to the Secretary concerned any
information the Secretary concerned considers necessary to
ensure that the State or Indian Tribe is adequately carrying
out the responsibilities assigned to and assumed by the State
or Indian Tribe;
(F) agrees to return revenues generated from the use of
public lands authorized under this section to the United
States annually, in accordance with the Federal Land Policy
and Management Act of 1976 (43 U.S.C. 1701 et seq.); and
(G) agrees to send a copy of all authorizing documents to
the United States for proper notation and recordkeeping;
(5) prioritize and expedite any analyses under the National
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.)
under the memorandum of understanding;
(6) not be granted to a State on Indian Lands without the
consent of the relevant Indian Tribe, which consent may be
withdrawn at any time before the work under the
[[Page S5772]]
memorandum of understanding is complete; and
(7) not be granted to an Indian Tribe on State lands
without the consent of the relevant State.
(f) Limitation.--Nothing in this section permits a State or
Indian Tribe to assume--
(1) any rulemaking authority of the Secretary concerned
under any Federal law; and
(2) Federal Government responsibilities for government-to-
government consultation with Indian Tribes.
(g) Termination.--
(1) Termination by the secretary.--The Secretary concerned
may terminate the participation of any State or Indian Tribe
in the program established under this section if--
(A) the Secretary concerned determines that the State or
Indian Tribe is not adequately carrying out the
responsibilities assigned to and assumed by the State or
Indian Tribe;
(B) the Secretary concerned provides to the State or Indian
Tribe--
(i) notification of the determination of noncompliance; and
(ii) a period of at least 30 days during which to take such
corrective action as the Secretary concerned determines is
necessary to comply with the applicable agreement; and
(C) the State or Indian Tribe, after the notification and
period provided under subparagraph (B), fails to take
satisfactory corrective action, as determined by the
Secretary concerned.
(2) Termination by the state or indian tribe.--A State or
Indian Tribe may terminate the participation of the State or
Indian Tribe in the program established under this section at
any time by providing to the Secretary concerned a notice of
intent to terminate by not later than the date that is 90
days before the date of termination.
(3) Termination of memorandum of understanding with state
or indian tribe.--A State or an Indian Tribe may terminate a
joint memorandum of understanding under this section at any
time by providing to the Secretary concerned a notice of
intent to terminate by no later than the date that is 90 days
before the date of termination.
SEC. 41304. FEDERAL BROADBAND PERMIT COORDINATION.
(a) Establishment.--The Secretary concerned shall establish
a broadband permit streamlining team comprised of qualified
staff under subsection (b)(4) in each State or regional
office that has been delegated responsibility for issuing
permits for broadband projects.
(b) Memorandum of Understanding.--
(1) In general.--Not later than 90 days after the date of
enactment of this Act, the Secretary concerned, in
consultation with the National Conference of State Historic
Preservation Officers and the National Tribal Historic
Preservation Officers Association, shall enter into a
memorandum of understanding to carry out this section with--
(A) the Secretary of Agriculture or of the Interior, as
appropriate;
(B) the Director of the Bureau of Indian Affairs; and
(C) the Director of the United States Fish and Wildlife
Service.
(2) Purpose.--The purpose of the memorandum of
understanding under paragraph (1) is to coordinate and
expedite permitting decisions for broadband projects.
(3) State or tribal participation.--The Secretary concerned
may request that the Governor of any State or the officer
designated by the governing body of the Indian Tribe with one
or more broadband projects be a party to the memorandum of
understanding under paragraph (1).
(4) Designation of qualified staff.--
(A) In general.--Not later than 30 days after the date of
entrance into the memorandum of understanding under paragraph
(1), the head of each Federal agency that is a party to the
memorandum of understanding (other than the Secretary
concerned) may, if the head of the Federal agency determines
it to be appropriate, designate to each State or regional
office an employee of that Federal agency with expertise in
regulatory issues relating to that Federal agency, including,
as applicable, particular expertise in--
(i) planning under the Forest and Rangeland Renewable
Resources Planning Act of 1974 (16 U.S.C. 1600 et seq.) and
planning under the Federal Land Policy and Management Act of
1976 (43 U.S.C. 1701 et seq.);
(ii) the preparation of analyses under the National
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.); or
(iii) consultation and the preparation of biological
opinions under section 7 of the Endangered Species Act of
1973 (16 U.S.C. 1536).
(B) Duties.--Each employee designated under subparagraph
(A) shall--
(i) be responsible for any issue relating to any broadband
project within the jurisdiction of the State or regional
office under the authority of the Federal agency from which
the employee is assigned;
(ii) participate as part of the team of personnel working
on one or more proposed broadband projects, including
planning and environmental analyses; and
(iii) serve as the designated point of contact with any
applicable State or Indian Tribe that assumes any
responsibility under section 41303(b)(1) relating to any
issue described in clause (i).
SEC. 41305. EFFECT.
(a) In General.--Nothing in this title or a memorandum of
understanding entered into under section 41303 terminates,
waives, modifies, or reduces the trust responsibility of the
United States to Indian Tribes or individual Indians.
(b) Requirement.--In carrying out this title, the Secretary
concerned shall act in good faith in upholding the trust
responsibility of the United States to Indian Tribes or
individual Indians.
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