A bill to amend title 54, United States Code, to establish a program to allow States to assume certain Federal responsibilities under that title with respect to agency actions applicable to highway projects within the States, and for other purposes.

II 116TH CONGRESS 1ST SESSION S. 1054 To amend title 54, United States Code, to establish a program to allow States to assume certain Federal responsibilities under that title with respect to agency actions applicable to highway projects within the States, and for other purposes. IN THE SENATE OF THE UNITED STATES APRIL 4, 2019 Mr. CORNYN (for himself, Mr. SULLIVAN, Mr. CRUZ, and Ms. MURKOWSKI) introduced the following bill; which was read twice and referred to the Committee on Environment and Public Works A BILL To amend title 54, United States Code, to establish a pro- gram to allow States to assume certain Federal respon- sibilities under that title with respect to agency actions applicable to highway projects within the States, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. ASSUMPTION BY STATES OF CERTAIN HIS- 3 TORIC PRESERVATION RESPONSIBILITIES. 4 (a) IN GENERAL.—Subchapter I of chapter 3061 of 5 title 54, United States Code, is amended by adding at the 6 end the following: 7 VerDate Sep 11 2014 04:40 Apr 11, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S1054.IS S1054 kjohnson on DSK79L0C42 with BILLS 2 •S 1054 IS ‘‘§ 306115. Assumption by States of certain respon- 1 sibilities relating to highway projects 2 ‘‘(a) ESTABLISHMENT.— 3 ‘‘(1) IN GENERAL.—The head of each agency 4 (referred to in this section as the ‘agency head’) 5 shall carry out an assignment program (referred to 6 in this section as the ‘program’) to allow States that 7 are eligible under subsection (b)(1) to assume cer- 8 tain responsibilities of the agency under section 9 306108 with respect to agency actions applicable to 10 highway projects within the State. 11 ‘‘(2) ASSUMPTION OF RESPONSIBILITY.— 12 ‘‘(A) IN GENERAL.—Subject to the other 13 requirements of this section, on written agree- 14 ment of the agency head and a State (which 15 may be in the form of a memorandum of under- 16 standing), the agency head may assign, and the 17 State may assume, the responsibilities of the 18 agency head under section 306108 with respect 19 to the undertakings of the agency described in 20 that section that are applicable to one or more 21 highway projects in the State. 22 ‘‘(B) ADDITIONAL RESPONSIBILITY.— 23 ‘‘(i) IN GENERAL.—If a State as- 24 sumes responsibility under subparagraph 25 (A), subject to clause (ii), on the request 26 VerDate Sep 11 2014 04:40 Apr 11, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S1054.IS S1054 kjohnson on DSK79L0C42 with BILLS 3 •S 1054 IS of the State, the agency head may also as- 1 sign to the State, and the State may as- 2 sume, the responsibilities of the agency 3 head described in that subparagraph for 4 one or more railroad, public transpor- 5 tation, or multimodal projects within the 6 State. 7 ‘‘(ii) EXCLUSION OF PROJECTS.—In 8 any State that assumes a responsibility of 9 the agency head under clause (i), a recipi- 10 ent of assistance under chapter 53 of title 11 49, may submit to the agency head a re- 12 quest that the agency head shall maintain 13 the responsibility of the agency head with 14 respect to one or more public transpor- 15 tation projects carried out by the recipient 16 in the State. 17 ‘‘(C) PROCEDURAL AND SUBSTANTIVE RE- 18 QUIREMENTS.—A State shall assume responsi- 19 bility under this section subject to the same 20 procedural and substantive requirements as 21 would apply if the responsibility were carried 22 out by the agency head. 23 ‘‘(D) FEDERAL RESPONSIBILITY.—Any re- 24 sponsibility of an agency head that is not ex- 25 VerDate Sep 11 2014 04:40 Apr 11, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S1054.IS S1054 kjohnson on DSK79L0C42 with BILLS 4 •S 1054 IS plicitly assumed by a State by written agree- 1 ment under this section shall remain the re- 2 sponsibility of the agency head. 3 ‘‘(E) NO EFFECT ON AUTHORITY.—Noth- 4 ing in this section preempts or interferes with 5 any power, jurisdiction, responsibility, or au- 6 thority of the Secretary, the Council, or the ap- 7 plicable agency, except with respect to an au- 8 thority delegated by the agency head pursuant 9 to subparagraph (A) under applicable law re- 10 garding a project or agency action described in 11 subparagraph (A) or (B). 12 ‘‘(F) PRESERVATION OF FLEXIBILITY.— 13 The agency head may not require a State, as a 14 condition of participation in the program, to 15 forgo a project delivery method that is other- 16 wise permissible for a project described in sub- 17 paragraph (A) or (B). 18 ‘‘(G) LEGAL FEES.—A State that assumes 19 a responsibility of an agency head under this 20 section for a project described in subparagraph 21 (A) or (B) may use funds apportioned to the 22 State under section 104(b)(2) of title 23, as 23 necessary, for attorneys’ fees directly attrib- 24 VerDate Sep 11 2014 04:40 Apr 11, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S1054.IS S1054 kjohnson on DSK79L0C42 with BILLS 5 •S 1054 IS utable to eligible activities associated with the 1 project. 2 ‘‘(b) STATE PARTICIPATION.— 3 ‘‘(1) PARTICIPATING STATES.—To be eligible to 4 participate in the program, a State shall— 5 ‘‘(A) be participating in the surface trans- 6 portation project delivery program under sec- 7 tion 327 of title 23; and 8 ‘‘(B) assume the responsibilities of the 9 Secretary of Transportation under the National 10 Environmental Policy Act of 1969 (42 U.S.C. 11 4321 et seq.) pursuant to that section. 12 ‘‘(2) APPLICATION.—Not later than 270 days 13 after the date of enactment of this section, the Sec- 14 retary shall amend, as appropriate, regulations that 15 establish requirements relating to information re- 16 quired in any application of a State to participate in 17 the program, including, at a minimum— 18 ‘‘(A) the projects or classes of projects for 19 which the State anticipates exercising the au- 20 thority that may be granted under the program; 21 ‘‘(B) verification of the financial resources 22 necessary to carry out the authority that may 23 be granted under the program; and 24 VerDate Sep 11 2014 04:40 Apr 11, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S1054.IS S1054 kjohnson on DSK79L0C42 with BILLS 6 •S 1054 IS ‘‘(C) evidence of the notice and solicitation 1 of public comment by the State relating to par- 2 ticipation of the State in the program, including 3 copies of comments received from that solicita- 4 tion. 5 ‘‘(3) PUBLIC NOTICE.— 6 ‘‘(A) IN GENERAL.—Each State that sub- 7 mits an application in accordance with the reg- 8 ulations described in paragraph (2) shall pro- 9 vide to the relevant agency head and publish 10 notice of the intent of the State to participate 11 in the program by not later than 30 days before 12 the date of submission of the application. 13 ‘‘(B) METHOD OF NOTICE AND SOLICITA- 14 TION.—The State shall provide notice and so- 15 licit public comment under this paragraph by 16 publishing the complete application of the State 17 in accordance with the appropriate public notice 18 requirements of the State. 19 ‘‘(4) SELECTION CRITERIA.—The agency head 20 may approve the application of a State under this 21 subsection only if— 22 ‘‘(A) any necessary changes to regulations 23 pursuant to paragraph (2) have been carried 24 out; 25 VerDate Sep 11 2014 04:40 Apr 11, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S1054.IS S1054 kjohnson on DSK79L0C42 with BILLS 7 •S 1054 IS ‘‘(B) the agency head determines that the 1 State has the capability, including financial and 2 personnel, to assume the responsibility; and 3 ‘‘(C) the head of the State agency with pri- 4 mary jurisdiction over highway matters enters 5 into a written agreement with the agency head, 6 as described in subsection (c). 7 ‘‘(5) OTHER AGENCY VIEWS.—If a State applies 8 to assume a responsibility of the agency head that 9 would have required the agency head to consult with 10 another agency, the agency head shall solicit the 11 views of the other agency before approving the appli- 12 cation of the State under this subsection. 13 ‘‘(c) WRITTEN AGREEMENT.—A written agreement 14 under this section shall— 15 ‘‘(1) be executed by— 16 ‘‘(A) the Governor of the applicable State; 17 or 18 ‘‘(B) the top-ranking transportation offi- 19 cial in the State who is charged with responsi- 20 bility for highway construction; 21 ‘‘(2) be in such form as the agency head may 22 require; 23 ‘‘(3) provide that the State— 24 VerDate Sep 11 2014 04:40 Apr 11, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S1054.IS S1054 kjohnson on DSK79L0C42 with BILLS 8 •S 1054 IS ‘‘(A) agrees to assume all or part of the re- 1 sponsibilities of the agency head referred to in 2 subsection (a); 3 ‘‘(B) expressly consents, on behalf of the 4 State, to accept the jurisdiction of the Federal 5 courts for the compliance, discharge, and en- 6 forcement of any responsibility of the agency 7 head assumed by the State; 8 ‘‘(C) certifies that State laws (including 9 regulations) are in effect that— 10 ‘‘(i) authorize the State to take the 11 actions necessary to carry out the respon- 12 sibilities being assumed; and 13 ‘‘(ii) are comparable to section 552 of 14 title 5, including providing that any deci- 15 sion regarding the public availability of a 16 document under those State laws is review- 17 able by a court of competent jurisdiction; 18 and 19 ‘‘(D) agrees to maintain the financial re- 20 sources necessary to carry out the responsibil- 21 ities being assumed; 22 ‘‘(4) require the State to provide to the agency 23 head any information the agency head reasonably 24 considers necessary to ensure that the State is ade- 25 VerDate Sep 11 2014 04:40 Apr 11, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S1054.IS S1054 kjohnson on DSK79L0C42 with BILLS 9 •S 1054 IS quately carrying out the responsibilities assigned to 1 the State; 2 ‘‘(5) have a term of not more than 5 years; and 3 ‘‘(6) be renewable. 4 ‘‘(d) JURISDICTION.— 5 ‘‘(1) IN GENERAL.—The United States district 6 courts shall have exclusive jurisdiction over any civil 7 action against a State for failure to carry out any 8 responsibility assumed by the State pursuant to this 9 section. 10 ‘‘(2) LEGAL STANDARDS AND REQUIRE- 11 MENTS.—A civil action under paragraph (1) shall be 12 governed by the legal standards and requirements 13 that would apply in such a civil action against the 14 applicable agency head had the agency head taken 15 the actions in question. 16 ‘‘(3) INTERVENTION.—The applicable agency 17 head shall have the right to intervene in any action 18 described in paragraph (1). 19 ‘‘(e) EFFECT OF ASSUMPTION OF RESPONSI- 20 BILITY.—A State that assumes responsibility under sub- 21 section (a)(2) shall be solely responsible and solely liable 22 for carrying out, in lieu of, and without further approval 23 of, the applicable agency head, those responsibilities, until 24 VerDate Sep 11 2014 04:40 Apr 11, 2019 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S1054.IS S1054 kjohnson on DSK79L0C42 with BILLS 10 •S 1054 IS the date on which the program is terminated in accordance 1 with subsection (j). 2 ‘‘(f) LIMITATIONS ON AGREEMENTS.—Nothing in 3 this section permits a State to assume any rulemaking au- 4 thority of the Secretary or the applicable agency head 5 under any Federal law. 6 ‘‘(g) AUDITS.— 7 ‘‘(1) IN GENERAL.—To ensure compliance by a 8 State with an agreement of the State under sub- 9 section (c) (including compliance by the State with 10 all Federal laws for which responsibility is assumed 11 under subsection (a)(2)), for each State partici- 12 pating in the program, the applicable agency head 13 shall— 14 ‘‘(A) not later than 180 days after the date 15 of execution of the applicable agreement, meet 16 with the State— 17 ‘‘(i) to review the implementation of 18 the agreement; and 19 ‘‘(ii) to discuss plans for the first an- 20 nual audit; 21 ‘‘(B) conduct annual audits during each of 22 the first 4 years of State participation in the 23 program; and 24 VerDate Sep 11 2014 04:40 Apr 11, 2019 Jkt 089200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S1054.IS S1054 kjohnson on DSK79L0C42 with BILLS 11 •S 1054 IS ‘‘(C) ensure that the time period for com- 1 pleting an annual audit, from initiation to com- 2 pletion (including public comment and re- 3 sponses to those comments), does not exceed 4 180 days. 5 ‘‘(2) PUBLIC AVAILABILITY AND COMMENT.— 6 ‘‘(A) IN GENERAL.—An audit conducted 7 under paragraph (1) shall be provided to the 8 public for comment. 9 ‘‘(B) RESPONSE.—Not later than 60 days 10 after the date on which the period for public 11 comment ends, the applicable agency head shall 12 respond to public comments received under sub- 13 paragraph (A). 14 ‘‘(3) AUDIT TEAM.— 15 ‘‘(A) IN GENERAL.—An audit conducted 16 under paragraph (1) shall be carried out by an 17 audit team determined by the applicable agency 18 head, in consultation with the State, in accord- 19 ance with subparagraph (B). 20 ‘‘(B) CONSULTATION.—Consultation with 21 the State under subparagraph (A) shall include 22 a reasonable opportunity for the State to re- 23 view, and provide comments regarding, the pro- 24 posed members of the audit team. 25 VerDate Sep 11 2014 04:40 Apr 11, 2019 Jkt 089200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S1054.IS S1054 kjohnson on DSK79L0C42 with BILLS 12 •S 1054 IS ‘‘(h) MONITORING.—After the end of the fourth year 1 of the participation by a State in the program, the applica- 2 ble agency head shall monitor compliance by the State 3 with the written agreement under subsection (c), including 4 the provision by the State of financial resources to carry 5 out the written agreement. 6 ‘‘(i) REPORT TO CONGRESS.—The Secretary or the 7 Council shall submit to Congress an annual report that 8 describes the administration of the program during the 9 preceding calendar year. 10 ‘‘(j) TERMINATION.— 11 ‘‘(1) TERMINATION BY AGENCY.—The applica- 12 ble agency head may terminate the participation of 13 a State in the program if— 14 ‘‘(A) the agency head determines that the 15 State is not adequately carrying out the respon- 16 sibilities assigned to the State pursuant to this 17 section; 18 ‘‘(B) the agency head provides to the 19 State— 20 ‘‘(i) a notification of the determina- 21 tion of noncompliance; 22 ‘‘(ii) a period of not less than 120 23 days to take such corrective action as the 24 VerDate Sep 11 2014 04:40 Apr 11, 2019 Jkt 089200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S1054.IS S1054 kjohnson on DSK79L0C42 with BILLS 13 •S 1054 IS agency head determines to be necessary to 1 comply with the applicable [Text truncated for display. 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