[Congressional Record Volume 169, Number 120 (Thursday, July 13, 2023)]
[Senate]
[Pages S2698-S2700]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

  SA 576. Mr. KELLY (for himself, Mr. Hagerty, Mr. Brown, Mr. Young, 
Ms. Sinema, Mr. Heinrich, and Mr. Budd) submitted an amendment intended 
to be proposed by him to the bill S. 2226, to authorize appropriations 
for fiscal year 2024 for military activities of the Department of 
Defense, for military construction, and for defense activities of the 
Department of Energy, to prescribe military personnel strengths for 
such fiscal year, and for other purposes; which was ordered to lie on 
the table; as follows:

       At the appropriate place, insert the following:

     SEC. ___. BUILDING CHIPS IN AMERICA.

       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 at the facility;

       ``(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.--

[[Page S2699]]

       ``(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.

[[Page S2700]]

       ``(i) 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.).''.
                                 ______