II 

116TH CONGRESS 

2D SESSION S. 4060 

To provide additional funds for Federal and State facility energy resiliency 

programs, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

JUNE 24, 2020 

Ms. SMITH introduced the following bill; which was read twice and referred 

to the Committee on Energy and Natural Resources 

A BILL 

To provide additional funds for Federal and State facility 

energy resiliency programs, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Open Back Better Act 

5 of 2020’’. 

6 SEC. 2. FACILITIES ENERGY RESILIENCY. 

7 (a) DEFINITIONS.—In this section: 

8 (1) COVERED PROJECT.—The term ‘‘covered 

9 project’’ means a building project at an eligible facil10 ity that— 


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1 (A) increases— 

2 (i) resiliency, including— 

3 (I) public health and safety; 

4 (II) power outages; 

5 (III) natural disasters; 

6 (IV) indoor air quality; and 

7 (V) any modifications neces8 sitated by the COVID–19 pandemic; 

9 (ii) energy efficiency; 

10 (iii) renewable energy; and 

11 (iv) grid integration; and 

12 (B) may have combined heat and power 

13 and energy storage as project components. 

14 (2) EARLY CHILDHOOD EDUCATION PRO15 GRAM.—The term ‘‘early childhood education pro16 gram’’ has the meaning given the term in section 

17 103 of the Higher Education Act of 1965 (20 

18 U.S.C. 1003). 

19 (3) ELEMENTARY SCHOOL.—The term ‘‘elemen20 tary school’’ has the meaning given the term in sec21 tion 8101 of the Elementary and Secondary Edu22 cation Act of 1965 (20 U.S.C. 7801). 

23 (4) ELIGIBLE FACILITY.—The term ‘‘eligible fa24 cility’’ means a public facility, as determined by the 

25 Secretary, including— 


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1 (A) a public school, including an elemen2 tary school and a secondary school; 

3 (B) a facility used to operate an early 

4 childhood education program; 

5 (C) a local educational agency; 

6 (D) a medical facility; 

7 (E) a local or State government building; 

8 (F) a community facility; 

9 (G) a public safety facility; 

10 (H) a day care center; 

11 (I) an institution of higher education; 

12 (J) a public library; and 

13 (K) a wastewater treatment facility. 

14 (5) ENVIRONMENTAL JUSTICE COMMUNITY.— 

15 The term ‘‘environmental justice community’’ means 

16 a community with significant representation of com17 munities of color, low income communities, or Tribal 

18 and indigenous communities, that experiences, or is 

19 at risk of experiencing, higher or more adverse 

20 human health or environmental effects. 

21 (6) INSTITUTION OF HIGHER EDUCATION.—The 

22 term ‘‘institution of higher education’’ has the 

23 meaning given the term in section 101 of the Higher 

24 Education Act of 1965 (20 U.S.C. 1001). 


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1 (7) LOCAL EDUCATIONAL AGENCY.—The term 

2 ‘‘local educational agency’’ has the meaning given 

3 the term in section 8101 of the Elementary and Sec4 ondary Education Act of 1965 (20 U.S.C. 7801). 

5 (8) LOW INCOME.—The term ‘‘low income’’, 

6 with respect to a household, means an annual house7 hold income equal to, or less than, the greater of— 

8 (A) 80 percent of the median income of the 

9 area in which the household is located, as re10 ported by the Department of Housing and 

11 Urban Development; and 

12 (B) 200 percent of the Federal poverty 

13 line. 

14 (9) LOW INCOME COMMUNITY.—The term ‘‘low 

15 income community’’ means a census block group in 

16 which not less than 30 percent of households are low 

17 income. 

18 (10) SECONDARY SCHOOL.—The term ‘‘sec19 ondary school’’ has the meaning given the term in 

20 section 8101 of the Elementary and Secondary Edu21 cation Act of 1965 (20 U.S.C. 7801). 

22 (11) SECRETARY.—The term ‘‘Secretary’’ 

23 means the Secretary of Energy. 


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1 (12) STATE.—The term ‘‘State’’ has the mean2 ing given the term in section 3 of the Energy Policy 

3 and Conservation Act (42 U.S.C. 6202). 

4 (13) STATE ENERGY PROGRAM.—The term 

5 ‘‘State Energy Program’’ means the State Energy 

6 Program established under part D of title III of the 

7 Energy Policy and Conservation Act (42 U.S.C. 

8 6321 et seq.). 

9 (14) TRIBAL ORGANIZATION.— 

10 (A) IN GENERAL.—The term ‘‘tribal orga11 nization’’ has the meaning given the term in 

12 section 3765 of title 38, United States Code. 

13 (B) TECHNICAL AMENDMENT.—Section 

14 3765(4) of title 38, United States Code, is 

15 amended by striking ‘‘section 4(l) of the Indian 

16 Self-Determination and Education Assistance 

17 Act (25 U.S.C. 450b(l))’’ and inserting ‘‘section 

18 4 of the Indian Self-Determination and Edu19 cation Assistance Act (25 U.S.C. 5304)’’. 

20 (b) STATE PROGRAMS.— 

21 (1) ESTABLISHMENT.—Not later than 60 days 

22 after the date of enactment of this Act, the Sec23 retary shall distribute grants to States under the 

24 State Energy Program, in accordance with the alloVerDate Sep 11 2014 22:29 Jul 03, 2020 Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S4060.IS S4060

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1 cation formula established under that Program, to 

2 implement covered projects. 

3 (2) USE OF FUNDS.— 

4 (A) IN GENERAL.—Subject to subpara5 graph (B), grant funds under paragraph (1) 

6 may be used for technical assistance, project fa7 cilitation, and administration. 

8 (B) TECHNICAL ASSISTANCE.—A State 

9 may use not more than 10 percent of grant 

10 funds received under paragraph (1) to provide 

11 technical assistance for the development, facili12 tation, management, oversight, and measure13 ment of results of covered projects implemented 

14 using those funds. 

15 (C) ENVIRONMENTAL JUSTICE AND OTHER

16 COMMUNITIES.—To support communities ad17 versely impacted by the COVID–19 pandemic, a 

18 State shall use not less than 40 percent of 

19 grant funds received under paragraph (1) to 

20 implement covered projects in environmental 

21 justice communities or low income communities. 

22 (D) PRIVATE FINANCING.—A State receiv23 ing a grant under paragraph (1) shall— 

24 (i) to the extent practicable, leverage 

25 private financing for cost-effective energy 


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1 efficiency, renewable energy, resiliency, and 

2 other smart-building improvements, such 

3 as by entering into an energy service per4 formance contract; but 

5 (ii) maintain the use of grant funds to 

6 carry out covered projects with more 

7 project resiliency, public health, and cap8 ital-intensive efficiency and emission reduc9 tion components than are typically avail10 able through private energy service per11 formance contracts. 

12 (E) GUIDANCE.—In carrying out a covered 

13 project using grant funds received under para14 graph (1), a State shall, to the extent prac15 ticable, adhere to guidance developed by the 

16 Secretary pursuant to the American Recovery 

17 and Reinvestment Act of 2009 (Public Law 

18 111–5; 123 Stat. 115) relating to distribution 

19 of funds, if that guidance will speed the dis20 tribution of funds under this subsection. 

21 (3) NO MATCHING REQUIREMENT.—Notwith22 standing any other provision of law, a State receiv23 ing a grant under paragraph (1) shall not be re24 quired to provide any amount of matching funding. 


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1 (4) REPORT.—Not later than 1 year after the 

2 date on which grants are distributed under para3 graph (1), and each year thereafter until the funds 

4 appropriated under paragraph (5) are no longer 

5 available, the Secretary shall submit a report on the 

6 use of those funds (including in the communities de7 scribed in paragraph (2)(C)) to— 

8 (A) the Subcommittee on Energy and 

9 Water Development of the Committee on Ap10 propriations of the Senate; 

11 (B) the Subcommittee on Energy and 

12 Water Development and Related Agencies of 

13 the Committee on Appropriations of the House 

14 of Representatives; 

15 (C) the Committee on Energy and Natural 

16 Resources of the Senate; and 

17 (D) the Committee on Energy and Com18 merce of the House of Representatives. 

19 (5) FUNDING.—In addition to any amounts 

20 made available to the Secretary to carry out the 

21 State Energy Program, there is appropriated to the 

22 Secretary, out of funds in the Treasury not other23 wise appropriated, $18,000,000,000 to carry out this 

24 subsection, to remain available until September 30, 

25 2025. 


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1 (6) SUPPLEMENT, NOT SUPPLANT.—Funds 

2 made available under paragraph (5) shall supple3 ment, not supplant, any other funds made available 

4 to States for the State Energy Program or the 

5 weatherization assistance program established under 

6 part A of title IV of the Energy Conservation and 

7 Production Act (42 U.S.C. 6861 et seq.). 

8 (c) FEDERAL ENERGY MANAGEMENT PROGRAM.— 

9 (1) IN GENERAL.—Not later than 60 days after 

10 the date of enactment of this Act, the Secretary 

11 shall use the funds appropriated under paragraph 

12 (4) to provide grants under the AFFECT program 

13 under the Federal Energy Management Program of 

14 the Department of Energy to implement covered 

15 projects. 

16 (2) PRIVATE FINANCING.—A recipient of a 

17 grant under paragraph (1) shall— 

18 (A) to the extent practicable, leverage pri19 vate financing for cost-effective energy effi20 ciency, renewable energy, resiliency, and other 

21 smart-building improvements, such as by enter22 ing into an energy service performance contract; 

23 but 

24 (B) maintain the use of grant funds to 

25 carry out covered projects with more project reVerDate Sep 11 2014 22:29 Jul 03, 2020 Jkt 099200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S4060.IS S4060

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1 siliency, public health, and capital-intensive effi2 ciency and emission reduction components than 

3 are typically available through private energy 

4 service performance contracts. 

5 (3) REPORT.—Not later than 1 year after the 

6 date on which grants are distributed under para7 graph (1), and each year thereafter until the funds 

8 appropriated under paragraph (4) are no longer 

9 available, the Secretary shall submit a report on the 

10 use of those funds to— 

11 (A) the Subcommittee on Energy and 

12 Water Development of the Committee on Ap13 propriations of the Senate; 

14 (B) the Subcommittee on Energy and 

15 Water Development and Related Agencies of 

16 the Committee on Appropriations of the House 

17 of Representatives; 

18 (C) the Committee on Energy and Natural 

19 Resources of the Senate; and 

20 (D) the Committee on Energy and Com21 merce of the House of Representatives. 

22 (4) FUNDING.—In addition to any amounts 

23 made available to the Secretary to carry out the AF24 FECT program described in paragraph (1), there is 

25 appropriated to the Secretary, out of funds in the 


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1 Treasury not otherwise appropriated, $500,000,000 

2 to carry out this subsection, to remain available 

3 until September 30, 2025. 

4 (d) TRIBAL ORGANIZATIONS.— 

5 (1) IN GENERAL.—Not later than 60 days after 

6 the date of enactment of this Act, the Secretary, act7 ing through the head of the Office of Indian Energy, 

8 shall distribute funds made available under para9 graph (3) to tribal organizations to implement cov10 ered projects. 

11 (2) REPORT.—Not later than 1 year after the 

12 date on which funds are distributed under para13 graph (1), and each year thereafter until the funds 

14 made available under paragraph (3) are no longer 

15 available, the Secretary shall submit a report on the 

16 use of those funds to— 

17 (A) the Subcommittee on Energy and 

18 Water Development of the Committee on Ap19 propriations of the Senate; 

20 (B) the Subcommittee on Energy and 

21 Water Development and Related Agencies of 

22 the Committee on Appropriations of the House 

23 of Representatives; 

24 (C) the Committee on Energy and Natural 

25 Resources of the Senate; and 


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1 (D) the Committee on Energy and Com2 merce of the House of Representatives. 

3 (3) FUNDING.—There is appropriated to the 

4 Secretary, out of funds in the Treasury not other5 wise appropriated, $1,500,000,000 to carry out this 

6 subsection, to remain available until September 30, 

7 2025. 

8 (e) USE OF AMERICAN IRON, STEEL, AND MANUFAC9 TURED GOODS.— 

10 (1) IN GENERAL.—Except as provided in para11 graph (2), none of the funds made available by or 

12 pursuant to this section may be used for a covered 

13 project unless all of the iron, steel, and manufac14 tured goods used in the project are produced in the 

15 United States. 

16 (2) EXCEPTIONS.—The requirement under 

17 paragraph (1) shall be waived by the head of the rel18 evant Federal department or agency in any case or 

19 category of cases in which the head of the relevant 

20 Federal department or agency determines that— 

21 (A) adhering to that requirement would be 

22 inconsistent with the public interest; 

23 (B) the iron, steel, and manufactured 

24 goods needed for the project are not produced 

25 in the United States— 


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1 (i) in sufficient and reasonably avail2 able quantities; and 

3 (ii) in a satisfactory quality; or 

4 (C) the inclusion of iron, steel, and rel5 evant manufactured goods produced in the 

6 United States would increase the overall cost of 

7 the project by more than 25 percent. 

8 (3) WAIVER PUBLICATION.—If the head of a 

9 Federal department or agency makes a determina10 tion under paragraph (2) to waive the requirement 

11 under paragraph (1), the head of the Federal de12 partment or agency shall publish in the Federal 

13 Register a detailed justification for the waiver. 

14 (4) INTERNATIONAL AGREEMENTS.—This sub15 section shall be applied in a manner consistent with 

16 the obligations of the United States under all appli17 cable international agreements. 

18 (f) WAGE RATE REQUIREMENTS.— 

19 (1) IN GENERAL.—Notwithstanding any other 

20 provision of law, all laborers and mechanics em21 ployed by contractors and subcontractors on projects 

22 funded directly or assisted in whole or in part by the 

23 Federal Government pursuant to this section shall 

24 be paid wages at rates not less than those prevailing 

25 on projects of a similar character in the locality, as 


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1 determined by the Secretary of Labor in accordance 

2 with subchapter IV of chapter 31 of title 40, United 

3 States Code (commonly known as the ‘‘Davis-Bacon 

4 Act’’). 

5 (2) AUTHORITY.—With respect to the labor 

6 standards specified in paragraph (1), the Secretary 

7 of Labor shall have the authority and functions set 

8 forth in Reorganization Plan Numbered 14 of 1950 

9 (64 Stat. 1267; 5 U.S.C. App.) and section 3145 of 

10 title 40, United States Code. 

11 SEC. 3. PERSONNEL. 

12 (a) IN GENERAL.—To carry out section 2, the Sec13 retary shall hire within the Department of Energy— 

14 (1) not less than 300 full-time employees in the 

15 Office of Energy Efficiency and Renewable Energy; 

16 (2) not less than 100 full-time employees, to be 

17 distributed among— 

18 (A) the Office of General Counsel; 

19 (B) the Office of Procurement Policy; 

20 (C) the Golden Field Office; 

21 (D) the National Energy Technology Lab22 oratory; and 

23 (E) the Office of the Inspector General; 

24 and 


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1 (3) not less than 20 full-time employees in the 

2 Office of Indian Energy. 

3 (b) TIMELINE.—Not later than 60 days after the 

4 date of enactment of this Act, the Secretary shall— 

5 (1) hire all personnel under subsection (a); or 

6 (2) certify that the Secretary is unable to hire 

7 all personnel by the date required under this sub8 section. 

9 (c) CONTRACT HIRES.— 

10 (1) IN GENERAL.—If the Secretary makes a 

11 certification under subsection (b)(2), the Secretary 

12 may hire on a contract basis not more than 50 per13 cent of the personnel required to be hired under sub14 section (a). 

15 (2) DURATION.—An individual hired on a con16 tract basis under paragraph (1) shall have an em17 ployment term of not more than 1 year. 

18 (d) AUTHORIZATION OF APPROPRIATIONS.—There is 

19 authorized to be appropriated to the Secretary to carry 

20 out this section $84,000,000 for each of fiscal years 2021 

21 through 2031. 

22 (e) REPORT.—Not later than 60 days after the date 

23 of enactment of this Act, and annually thereafter for 2 

24 years, the Secretary shall submit a report on progress 

25 made in carrying out subsection (a) to— 


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1 (1) the Subcommittee on Energy and Water 

2 Development of the Committee on Appropriations of 

3 the Senate; 

4 (2) the Subcommittee on Energy and Water 

5 Development and Related Agencies of the Committee 

6 on Appropriations of the House of Representatives; 

7 (3) the Committee on Energy and Natural Re8 sources of the Senate; and 

9 (4) the Committee on Energy and Commerce of 

10 the House of Representatives. 

Æ 


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