[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[S. 2228 Introduced in Senate (IS)]
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118th CONGRESS
1st Session
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.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
July 11, 2023
Mr. Kelly (for himself, Mr. Young, Mr. Hagerty, and Mr. Brown)
introduced the following bill; which was read twice and referred to the
Committee on Environment and Public Works
_______________________________________________________________________
A BILL
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.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Building Chips in America Act of
2023''.
SEC. 2. SEMICONDUCTOR PROGRAM.
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;
``(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.--
``(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.
``(i) Use of Appropriated Funds.--To carry out the activities under
subsections (e) through (g), the Secretary may use amounts made
available to the Secretary under section 102(a)(2)(B)(ii) of the CHIPS
Act of 2022 (15 U.S.C. 4651 note).
``(j) 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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