[Congressional Record Volume 169, Number 206 (Thursday, December 14, 2023)]
[Senate]
[Pages S6005-S6006]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

  SA 1378. Mr. SCHUMER (for Mr. Kelly (for himself, Mr. Cruz, Mr. 
Young, Mr. Hagerty, Mr. Brown, Ms. Sinema, and Mr. Heinrich)) proposed 
an amendment to the bill S. 2228, 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; 
as follows:

        Strike all after the enacting clause and insert the 
     following:

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Building Chips in America 
     Act of 2023''.

     SEC. 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:

[[Page S6006]]

       ``(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.).''.

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