[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[H.R. 4141 Introduced in House (IH)]
<DOC>
118th CONGRESS
1st Session
H. R. 4141
To provide that certain communications projects are not subject to
requirements to prepare certain environmental or historical
preservation reviews, and for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
June 15, 2023
Mr. Fulcher introduced the following bill; which was referred to the
Committee on Energy and Commerce, and in addition to the Committee on
Natural Resources, for a period to be subsequently determined by the
Speaker, in each case for consideration of such provisions as fall
within the jurisdiction of the committee concerned
_______________________________________________________________________
A BILL
To provide that certain communications projects are not subject to
requirements to prepare certain environmental or historical
preservation reviews, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. APPLICATION OF NEPA AND NHPA TO CERTAIN COMMUNICATIONS
PROJECTS.
(a) In General.--
(1) NEPA exemption.--A Federal authorization with respect
to a covered project may not be considered a major Federal
action under section 102(2)(C) of the National Environmental
Policy Act of 1969 (42 U.S.C. 4332(2)(C)).
(2) National historic preservation act exemption.--A
covered project may not be considered an undertaking under
section 300320 of title 54, United States Code.
(b) Grant of Easement on Federal Property.--
(1) NEPA exemption.--A Federal authorization with respect
to a covered easement for a communications facility may not be
considered a major Federal action under section 102(2)(C) of
the National Environmental Policy Act of 1969 (42 U.S.C.
4332(2)(C)), if--
(A) a covered easement has previously been granted
for another communications facility or a utility
facility with respect to the same building or other
property owned by the Federal Government; or
(B) the covered easement is for a communications
facility in a public right-of-way.
(2) National historic preservation act exemption.--A
covered easement for a communications facility may not be
considered an undertaking under section 300320 of title 54,
United States Code, if--
(A) a covered easement has previously been granted
for another communications facility or a utility
facility with respect to the same building or other
property owned by the Federal Government; or
(B) the covered easement is for a communications
facility in a public right-of-way.
(c) Requests for Modification of Certain Existing Wireless
Facilities.--Section 6409(a)(3) of the Middle Class Tax Relief and Job
Creation Act of 2012 (47 U.S.C. 1455(a)(3)) is amended to read as
follows:
``(3) Application of nepa; nhpa.--
``(A) NEPA exemption.--A Federal authorization with
respect to an eligible facilities request may not be
considered a major Federal action under section
102(2)(C) of the National Environmental Policy Act of
1969 (42 U.S.C. 4332(2)(C)).
``(B) National historic preservation act
exemption.--An eligible facilities request may not be
considered an undertaking under section 300320 of title
54, United States Code.
``(C) Federal authorization defined.--In this
paragraph, the term `Federal authorization'--
``(i) means any authorization required
under Federal law with respect to an eligible
facilities request; and
``(ii) includes any permits, special use
authorizations, certifications, opinions, or
other approvals as may be required under
Federal law with respect to an eligible
facilities request.''.
SEC. 2. PRESUMPTION WITH RESPECT TO CERTAIN COMPLETE FCC FORMS.
(a) Presumption.--If an Indian Tribe is shown to have received a
complete FCC Form 620 or FCC Form 621 (or any successor form), or can
be reasonably expected to have received a complete FCC Form 620 or FCC
Form 621 (or any successor form), and has not acted on a request
contained in such complete form by the date that is 45 days after the
date of such receipt or reasonably expected receipt--
(1) the Commission and a court of competent jurisdiction
(as the case may be) shall presume the applicant with respect
to such complete form has made a good faith effort to provide
the information reasonably necessary for such Indian Tribe to
ascertain whether historic properties of religious or cultural
significance to such Indian Tribe may be affected by the
undertaking related to such complete form; and
(2) such Indian Tribe shall be presumed to have disclaimed
interest in such undertaking.
(b) Overcoming Presumption.--
(1) In general.--An Indian Tribe may overcome a presumption
under subsection (a) upon making, to the Commission or a court
of competent jurisdiction, a favorable demonstration with
respect to 1 or more of the factors described in paragraph (2).
(2) Factors considered.--In making a determination
regarding a presumption under subsection (a), the Commission or
court of competent jurisdiction shall give substantial weight
to--
(A) whether the applicant with respect to the
relevant complete form failed to make a reasonable
attempt to follow up with the applicable Indian Tribe
not earlier than 30 days, and not later than 50 days,
after the applicant submitted a complete FCC Form 620
or FCC Form 621 (as the case may be) to such Indian
Tribe; and
(B) whether the rules of the Commission, or FCC
Form 620 or FCC Form 621, are found to be in violation
of a Nationwide Programmatic Agreement of the
Commission.
SEC. 3. RULE OF CONSTRUCTION.
Nothing in this Act or any amendment made by this Act may be
construed to affect the obligation of the Commission to evaluate
radiofrequency exposure under the National Environmental Policy Act of
1969 (42 U.S.C. 4321 et seq.).
SEC. 4. DEFINITIONS.
In this Act:
(1) Chief executive.--The term ``Chief Executive'' means
the person who is the Chief, Chairman, Governor, President, or
similar executive official of an Indian tribal government.
(2) Commission.--The term ``Commission'' means the Federal
Communications Commission.
(3) Communications facility.--The term ``communications
facility'' has the meaning given the term ``communications
facility installation'' in section 6409(d) of the Middle Class
Tax Relief and Job Creation Act of 2012 (47 U.S.C. 1455(d)).
(4) Covered easement.--The term ``covered easement'' means
an easement, right-of-way, or lease with respect to a building
or other property owned by the Federal Government, excluding
Tribal land held in trust by the Federal Government (unless the
Indian tribal government with respect to such land requests
that the Commission not exclude the land for purposes of this
definition), for the right to install, construct, modify, or
maintain a communications facility or a utility facility.
(5) Covered project.--The term ``covered project'' means
any of the following:
(A) A project--
(i) for--
(I) the mounting or installation of
a personal wireless service facility
with another personal wireless service
facility that exists at the time at
which a request for authorization of
such mounting or installation is
submitted to a State or local
government or instrumentality thereof
or to an Indian tribal government; or
(II) the modification of a personal
wireless service facility; and
(ii) for which a permit, license, or
approval from the Commission is required or
that is otherwise subject to the jurisdiction
of the Commission.
(B) A project--
(i) for the placement, construction, or
modification of a telecommunications service
facility in or on eligible support
infrastructure; and
(ii) for which a permit, license, or
approval from the Commission is required or
that is otherwise subject to the jurisdiction
of the Commission.
(C) A project to deploy a small personal wireless
service facility.
(D) A project--
(i) for the deployment or modification of a
communications facility that is to be carried
out entirely within a floodplain (as defined in
section 9.4 of title 44, Code of Federal
Regulations, as in effect on the date of the
enactment of this Act); and
(ii) for which a permit, license, or
approval from the Commission is required or
that is otherwise subject to the jurisdiction
of the Commission.
(E) A project--
(i) for the deployment or modification of a
communications facility that is to be carried
out entirely within a brownfield site (as
defined in section 101 of the Comprehensive
Environmental Response, Compensation, and
Liability Act of 1980 (42 U.S.C. 9601)); and
(ii) for which a permit, license, or
approval from the Commission is required or
that is otherwise subject to the jurisdiction
of the Commission.
(F) A project to permanently remove covered
communications equipment or services (as defined in
section 9 of the Secure and Trusted Communications
Networks Act of 2019 (47 U.S.C. 1608)) and to replace
such covered communications equipment or services with
communications equipment or services (as defined in
such section) that are not covered communications
equipment or services (as so defined).
(G) A project that--
(i) is to be carried out entirely within an
area for which the President, the Governor of a
State, or the Chief Executive of an Indian
tribal government has declared a major disaster
or an emergency;
(ii) is to be carried out not later than 5
years after the date on which the President,
Governor, or Chief Executive made such
declaration; and
(iii) replaces a communications facility
damaged by such disaster or emergency or makes
improvements to a communications facility in
such area that could reasonably be considered
as necessary for recovery from such disaster or
emergency or to prevent or mitigate any future
disaster or emergency.
(H) A project for the placement and installation of
a new communications facility if--
(i) such new facility--
(I) will be located within a public
right-of-way; and
(II) is not more than 50 feet tall
or 10 feet taller than any existing
structure in the public right-of-way,
whichever is higher;
(ii) such new facility is--
(I) a replacement for an existing
communications facility; and
(II) the same as, or substantially
similar to (as such term is defined by
the Commission), the existing
communications facility that such new
communications facility is replacing;
(iii) such new facility is a type of
communications facility that--
(I) is described in section
6409(d)(1)(B) of the Middle Class Tax
Relief and Job Creation Act of 2012 (47
U.S.C. 1455(d)(1)(B)); and
(II) meets the size limitation of a
small antenna established by the
Commission; or
(iv) the placement and installation of such
new facility involves the expansion of the site
of an existing communications facility not more
than 30 feet in any direction.
(6) Eligible support infrastructure.--The term ``eligible
support infrastructure'' means infrastructure that supports or
houses a facility for communication by wire (or that is
designed for or capable of supporting or housing such a
facility) at the time when a request to a State or local
government or instrumentality thereof, or to an Indian tribal
government, for authorization to place, construct, or modify a
telecommunications service facility in or on the infrastructure
is submitted to the government or instrumentality.
(7) Emergency.--The term ``emergency'' means--
(A) in the case of an emergency declared by the
President, an emergency declared by the President under
section 501 of the Robert T. Stafford Disaster Relief
and Emergency Assistance Act (42 U.S.C. 5191); and
(B) in the case of an emergency declared by the
Governor of a State or the Chief Executive of an Indian
tribal government, any occasion or instance with
respect to which the Governor or Chief Executive
declares that an emergency exists (or makes a similar
declaration) under State or Tribal law (as the case may
be).
(8) Federal authorization.--The term ``Federal
authorization''--
(A) means any authorization required under Federal
law with respect to a covered project or a covered
easement; and
(B) includes any permits, special use
authorizations, certifications, opinions, or other
approvals as may be required under Federal law with
respect to a covered project or a covered easement.
(9) Governor.--The term ``Governor'' means the chief
executive of any State.
(10) Indian tribal government.--The term ``Indian tribal
government'' means the governing body of an Indian Tribe.
(11) Indian tribe.--The term ``Indian Tribe'' has the
meaning given the term ``Indian tribe'' under section 102 of
the Federally Recognized Indian Tribe List Act of 1994 (25
U.S.C. 5130).
(12) Major disaster.--The term ``major disaster'' means--
(A) in the case of a major disaster declared by the
President, a major disaster declared by the President
under section 401 of the Robert T. Stafford Disaster
Relief and Emergency Assistance Act (42 U.S.C. 5170);
and
(B) in the case of a major disaster declared by the
Governor of a State or the Chief Executive of an Indian
tribal government, any occasion or instance with
respect to which the Governor or Chief Executive
declares that a disaster exists (or makes a similar
declaration) under State or Tribal law (as the case may
be).
(13) Personal wireless service.--The term ``personal
wireless service'' means any fixed or mobile service (other
than a broadcasting (as defined in section 3 of the
Communications Act of 1934 (47 U.S.C. 153)) service) provided
via licensed or unlicensed frequencies, including--
(A) commercial mobile service (as defined in
section 332(d) of the Communications Act of 1934 (47
U.S.C. 332(d)));
(B) commercial mobile data service (as defined in
section 6001 of the Middle Class Tax Relief and Job
Creation Act of 2012 (47 U.S.C. 1401));
(C) unlicensed wireless service; and
(D) common carrier wireless exchange access
service.
(14) Personal wireless service facility.--The term
``personal wireless service facility'' means a facility used to
provide or support the provision of personal wireless service.
(15) Public right-of-way.--The term ``public right-of-
way''--
(A) means--
(i) the area on, below, or above a public
roadway, highway, street, sidewalk, alley, or
similar property (whether currently or
previously used in such manner); and
(ii) any land immediately adjacent to and
contiguous with property described in clause
(i) that is within the right-of-way grant; and
(B) does not include a portion of the Interstate
System (as such term is defined in section 101(a) of
title 23, United States Code).
(16) Small personal wireless service facility.--The term
``small personal wireless service facility'' means a personal
wireless service facility in which each antenna is not more
than 3 cubic feet in volume (excluding a wireline backhaul
facility connected to such personal wireless service facility).
(17) State.--The term ``State'' means each State of the
United States, the District of Columbia, and each territory or
possession of the United States.
(18) Telecommunications service.--The term
``telecommunications service'' has the meaning given such term
in section 3 of the Communications Act of 1934 (47 U.S.C. 153).
(19) Telecommunications service facility.--The term
``telecommunications service facility''--
(A) means a facility that is designed or used to
provide or facilitate the provision of any interstate
or intrastate telecommunications service; and
(B) includes a facility described in subparagraph
(A) that is used to provide other services.
(20) Unlicensed wireless service.--The term ``unlicensed
wireless service''--
(A) means the offering of telecommunications
service or information service (as defined in section 3
of the Communications Act of 1934 (47 U.S.C. 153))
using a duly authorized device that does not require an
individual license; and
(B) does not include the provision of direct-to-
home satellite services (as defined in section 303(v)
of the Communications Act of 1934 (47 U.S.C. 303(v))).
(21) Utility facility.--The term ``utility facility'' means
any privately, publicly, or cooperatively owned line, facility,
or system for producing, transmitting, or distributing power,
electricity, light, heat, gas, oil, crude products, water,
steam, waste, storm water not connected with highway drainage,
or any other similar commodity, including any fire or police
signal system or street lighting system, that directly or
indirectly serves the public.
(22) Wireline backhaul facility.--The term ``wireline
backhaul facility'' means an above-ground or underground
wireline facility used to transport communications service or
other electronic communications from a small personal wireless
service facility or its adjacent network interface device to a
communications network.
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