[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.).''.
______