```

[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[S. 2324 Introduced in Senate (IS)]

<DOC>

117th CONGRESS
  1st Session
                                S. 2324

 To amend the FAST Act to improve the Federal permitting process, and 
                          for other purposes.

_______________________________________________________________________

                   IN THE SENATE OF THE UNITED STATES

                             July 13, 2021

 Mr. Portman (for himself, Ms. Sinema, Mr. Manchin, and Mr. Sullivan) 
introduced the following bill; which was read twice and referred to the 
        Committee on Homeland Security and Governmental Affairs

_______________________________________________________________________

                                 A BILL

 
 To amend the FAST Act to improve the Federal permitting process, 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 ``Federal Permitting Reform and Jobs 
Act''.

SEC. 2. FEDERAL PERMITTING IMPROVEMENT.

    (a) Definitions.--Section 41001 of the FAST Act (42 U.S.C. 4370m) 
is amended--
            (1) in paragraph (3), by inserting ``and any interagency 
        consultation'' after ``issued by an agency'';
            (2) in paragraph (4), by striking ``means'' and all that 
        follows through the period at the end of subparagraph (B) and 
        inserting ``has the meaning given the term in section 1508.1 of 
        title 40, Code of Federal Regulations (or successor 
        regulations).'';
            (3) in paragraph (5), by striking ``Federal Infrastructure 
        Permitting Improvement Steering Council'' and inserting 
        ``Federal Permitting Improvement Steering Council'';
            (4) in paragraph (6)(A)--
                    (A) in clause (ii), by striking ``or'' at the end;
                    (B) by redesignating clause (iii) as clause (iv); 
                and
                    (C) by inserting after clause (ii) the following:
                            ``(iii) is--
                                    ``(I) subject to NEPA;
                                    ``(II) sponsored by an Indian Tribe 
                                (as defined in section 4 of the Indian 
                                Self-Determination and Education 
                                Assistance Act (25 U.S.C. 5304)), an 
                                Alaska Native Corporation, a Native 
                                Hawaiian organization (as defined in 
                                section 6207 of the Elementary and 
                                Secondary Education Act of 1965 (20 
                                U.S.C. 7517)), the Department of 
                                Hawaiian Home Lands, or the Office of 
                                Hawaiian Affairs; and
                                    ``(III) located on land owned or 
                                under the jurisdiction of the entity 
                                that sponsors the activity under 
                                subclause (II); or''; and
            (5) in paragraph (8), by striking ``means'' and all that 
        follows through the period at the end and inserting ``has the 
        meaning given the term in section 1508.1 of title 40, Code of 
        Federal Regulations (or successor regulations).''
    (b) Federal Permitting Improvement Steering Council.--Section 41002 
of the FAST Act (42 U.S.C. 4370m-1) is amended--
            (1) in the section heading, by striking ``federal 
        permitting improvement council'' and inserting ``federal 
        permitting improvement steering council'';
            (2) in subsection (b)(2)(A)--
                    (A) in clause (i)--
                            (i) by striking ``Each'' and inserting the 
                        following:
                                    ``(I) In general.--Each''; and
                            (ii) by adding at the end the following:
                                    ``(II) Redesignation.--If an 
                                individual listed in subparagraph (B) 
                                designates a different member to serve 
                                on the Council than the member 
                                designated under subclause (I), the 
                                individual shall notify the Executive 
                                Director of the designation by not 
                                later than 30 days after the date on 
                                which the designation is made.''; and
                    (B) in clause (iii)(II), by striking ``a deputy 
                secretary (or the equivalent) or higher'' and inserting 
                ``the applicable agency councilmember'';
            (3) in subsection (c)--
                    (A) in paragraph (1)(C)(ii)--
                            (i) by striking subclause (I) and inserting 
                        the following:
                                    ``(I) In general.--The performance 
                                schedules shall reflect employment of 
                                the most sound and efficient applicable 
                                processes, including the alignment of 
                                Federal reviews of projects, reduction 
                                of permitting and project delivery 
                                time, and consideration of the best 
                                practices for public participation.'';
                            (ii) by redesignating subclause (II) as 
                        subclause (III);
                            (iii) by inserting after subclause (I) the 
                        following:
                                    ``(II) Goal.--
                                            ``(aa) In general.--To the 
                                        maximum extent practicable, and 
                                        consistent with applicable 
                                        Federal law, the Executive 
                                        Director, in consultation with 
                                        the Council, shall aim to 
                                        develop recommended performance 
                                        schedules under clause (i) of 
                                        not more than 2 years.
                                            ``(bb) Exception.--If a 
                                        recommended performance 
                                        schedule developed under clause 
                                        (i) exceeds 2 years, the 
                                        relevant agencies, in 
                                        consultation with the Executive 
                                        Director and the Council, shall 
                                        explain in that recommended 
                                        performance schedule the 
                                        factors that cause the 
                                        environmental reviews and 
                                        authorizations in that category 
                                        of covered projects to take 
                                        longer than 2 years.''; and
                            (iv) in subclause (III)(bb) (as so 
                        redesignated), by striking ``on the basis of 
                        data from the preceding 2 calendar years'' and 
                        inserting ``based on relevant historical data, 
                        as determined by the Executive Director,'';
                    (B) in paragraph (2)(B)--
                            (i) in the matter preceding clause (i), by 
                        striking ``later than'' and all that follows 
                        through ``practices for'' and inserting ``less 
                        frequently than annually, the Council shall 
                        issue recommendations on the best practices for 
                        improving the Federal permitting process for 
                        covered projects, which may include'';
                            (ii) in clause (i)--
                                    (I) by striking ``stakeholder 
                                engagement, including fully 
                                considering'' and inserting 
                                ``stakeholder engagement, including--
                                    ``(II) fully considering''; and
                                    (II) by inserting before subclause 
                                (II) (as added by subclause (I)) the 
                                following:
                                    ``(I) engaging with Native American 
                                stakeholders to ensure that project 
                                sponsors and agencies identify 
                                potential natural, archeological, and 
                                cultural resources and locations of 
                                historic and religious significance in 
                                the area of a covered project; and'';
                            (iii) in clause (vii), by striking ``and'' 
                        at the end;
                            (iv) by redesignating clause (viii) as 
                        clause (x); and
                            (v) by inserting after clause (vii) the 
                        following:
                            ``(viii) in coordination with the Executive 
                        Director, improving preliminary engagement with 
                        project sponsors in developing coordinated 
                        project plans;
                            ``(ix) using programmatic assessments, 
                        templates, and other tools based on the best 
                        available science and data; and''; and
                    (C) in paragraph (3)(A), by inserting ``, including 
                agency compliance with intermediate and final 
                completion dates described in coordinated project 
                plans'' after ``authorizations''; and
            (4) by striking subsection (d).
    (c) Permitting Process Improvement.--Section 41003 of the FAST Act 
(42 U.S.C. 4370m-2) is amended--
            (1) in subsection (a)--
                    (A) in paragraph (1), by adding at the end the 
                following:
                    ``(D) Confidentiality.--Any information relating to 
                Native American natural, cultural, and historical 
                resources submitted in a notice by a project sponsor 
                under subparagraph (A) shall be--
                            ``(i) kept confidential; and
                            ``(ii) exempt from the disclosure 
                        requirements under section 552 of title 5, 
                        United States Code (commonly known as the 
                        `Freedom of Information Act'), and the Federal 
                        Advisory Committee Act (5 U.S.C. App.).'';
                    (B) in paragraph (2)--
                            (i) in subparagraph (A), in the matter 
                        preceding clause (i), by striking ``45 days'' 
                        and inserting ``21 calendar days''; and
                            (ii) in subparagraph (B), by inserting ``14 
                        calendar day'' before ``deadline''; and
                    (C) in paragraph (3)(A), in the matter preceding 
                clause (i), by inserting ``and the Executive Director'' 
                after ``as applicable,'';
            (2) in subsection (b)--
                    (A) in paragraph (2)(A), by adding at the end the 
                following:
                            ``(iii) Projects other than covered 
                        projects.--
                                    ``(I) In general.--The Executive 
                                Director may direct a lead agency to 
                                create a specific entry on the 
                                Dashboard for a project that is not a 
                                covered project and is under review by 
                                the lead agency if the Executive 
                                Director determines that a Dashboard 
                                entry for that project is in the 
                                interest of transparency.
                                    ``(II) Requirements.--Not later 
                                than 14 days after the date on which 
                                the Executive Director directs the lead 
                                agency to create a specific entry on 
                                the Dashboard for a project described 
                                in subclause (I), the lead agency shall 
                                create and maintain a specific entry on 
                                the Dashboard for the project that 
                                contains--
                                            ``(aa) a comprehensive 
                                        permitting timetable, as 
                                        described in subsection 
                                        (c)(2)(A);
                                            ``(bb) the status of the 
                                        compliance of each lead agency, 
                                        cooperating agency, and 
                                        participating agency with the 
                                        permitting timetable required 
                                        under item (aa);
                                            ``(cc) any modifications of 
                                        the permitting timetable 
                                        required under item (aa), 
                                        including an explanation as to 
                                        why the permitting timetable 
                                        was modified; and
                                            ``(dd) information about 
                                        project-related public 
                                        meetings, public hearings, and 
                                        public comment periods, which 
                                        shall be presented in English 
                                        and the predominant language of 
                                        the community or communities 
                                        most affected by the project, 
                                        as that information becomes 
                                        available.''; and
                    (B) in paragraph (3)(A)--
                            (i) in clause (i)--
                                    (I) in subclause (IV), by striking 
                                ``and'' at the end;
                                    (II) by redesignating subclause (V) 
                                as subclause (VI);
                                    (III) by inserting after subclause 
                                (IV) the following:
                                    ``(V) information on the status of 
                                mitigation measures that were agreed to 
                                as part of the environmental review and 
                                permitting process, including whether 
                                and when the mitigation measures have 
                                been fully implemented; and''; and
                                    (IV) in subclause (VI) (as so 
                                redesignated), by striking ``and'' at 
                                the end;
                            (ii) in clause (ii), by striking the period 
                        at the end and inserting ``; and''; and
                            (iii) by adding at the end the following:
                            ``(iii) information about project-related 
                        public meetings, public hearings, and public 
                        comment periods, which shall be presented in 
                        English and the predominant language of the 
                        community or communities most affected by the 
                        project, as that information becomes 
                        available.''; and
            (3) in subsection (c)(2)--
                    (A) in subparagraph (A), strike ``coordination'' 
                and insert ``coordinated'';
                    (B) in subparagraph (D)(i)--
                            (i) by redesignating subclauses (I) through 
                        (III) as subclauses (II) through (IV), 
                        respectively;
                            (ii) by inserting before subclause (II) (as 
                        so redesignated) the following:
                                    ``(I) the facilitating or lead 
                                agency, as applicable, consults with 
                                the Executive Director regarding the 
                                potential modification not less than 15 
                                days before engaging in the 
                                consultation under subclause (II);''; 
                                and
                            (iii) in subclause (II) (as so 
                        redesignated), by inserting ``, the Executive 
                        Director,'' after ``participating agencies''; 
                        and
                    (C) in subparagraph (F)--
                            (i) in clause (i)--
                                    (I) by inserting ``intermediate and 
                                final'' before ``completion dates''; 
                                and
                                    (II) by inserting ``intermediate or 
                                final'' before ``completion date''; and
                            (ii) in clause (ii)--
                                    (I) in the matter preceding 
                                subclause (I), by striking ``a 
                                completion date for agency action on a 
                                covered project or is at significant 
                                risk of failing to conform with'' and 
                                inserting ``an intermediate or final 
                                completion date for agency action on a 
                                covered project or reasonably believes 
                                the agency will fail to conform with a 
                                completion date 30 days before''; and
                                    (II) in subclause (I), by striking 
                                ``significantly risking failing to 
                                conform'' and inserting ``reasonably 
                                believing the agency will fail to 
                                conform''.
    (d) Coordination of Required Reviews.--Section 41005 of the FAST 
Act (42 U.S.C. 4370m-4) is amended--
            (1) in subsection (a)--
                    (A) in paragraph (1), by striking ``and'' at the 
                end;
                    (B) in paragraph (2), by striking the period at the 
                end and inserting ``; and''; and
                    (C) by adding at the end the following:
            ``(3) where an environmental impact statement is required 
        for a project, prepare a single, joint interagency 
        environmental impact statement for the project unless the lead 
        agency provides justification in the coordinated project plan 
        that multiple environmental documents are more efficient for 
        project review and authorization.'';
            (2) in subsection (b)--
                    (A) by striking ``(1) State environmental 
                documents; supplemental documents.--'';
                    (B) by redesignating subparagraphs (A) through (E) 
                as paragraphs (1) through (5), respectively, and 
                indenting appropriately;
                    (C) in paragraph (1) (as so redesignated)--
                            (i) by redesignating clauses (i) and (ii) 
                        as subparagraphs (A) and (B), respectively, and 
                        indenting appropriately; and
                            (ii) in subparagraph (A) (as so 
                        redesignated)--
                                    (I) by striking ``State laws and 
                                procedures'' and inserting ``the laws 
                                and procedures of a State or Indian 
                                Tribe (as defined in section 102 of the 
                                Federally Recognized Indian Tribe List 
                                Act of 1994 (25 U.S.C. 5130))''; and
                                    (II) by inserting ``developed 
                                pursuant to laws and procedures of that 
                                State or Indian Tribe (as so defined) 
                                that are of equal or greater rigor to 
                                each applicable Federal law and 
                                procedure, and'' after ``Council on 
                                Environmental Quality,'';
                    (D) in paragraph (2) (as so redesignated), by 
                striking ``subparagraph (A)'' each place it appears and 
                inserting ``paragraph (1)'';
                    (E) in paragraph (3) (as so redesignated)--
                            (i) in the matter preceding clause (i), by 
                        striking ``subparagraph (A)'' and inserting 
                        ``paragraph (1)''; and
                            (ii) by redesignating clauses (i) and (ii) 
                        as subparagraphs (A) and (B), respectively, and 
                        indenting appropriately;
                    (F) in paragraph (4) (as so redesignated)--
                            (i) in the matter preceding clause (i), by 
                        striking ``subparagraph (C)'' and inserting 
                        ``paragraph (3)''; and
                            (ii) by redesignating clauses (i) and (ii) 
                        as subparagraphs (A) and (B), respectively, and 
                        indenting appropriately; and
                    (G) in paragraph (5) (as so redesignated)--
                            (i) by striking ``subparagraph (A)'' and 
                        inserting ``paragraph (1)''; and
                            (ii) by striking ``subparagraph (C)'' and 
                        inserting ``paragraph (3)'';
            (3) in subsection (c)(4)--
                    (A) in the matter preceding subparagraph (A), by 
                striking ``determines that the development of the 
                higher level of detail will not prevent--'' and 
                inserting ``determines that--'';
                    (B) in subparagraph (A), by inserting ``the 
                development of the higher level of detail will not 
                prevent'' before ``the lead agency''; and
                    (C) by striking subparagraph (B) and inserting the 
                following:
                    ``(B) the preferred and other alternatives are 
                developed in sufficient detail to enable the public to 
                comment on the alternatives.'';
            (4) by redesignating subsection (f) as subsection (g); and
            (5) by inserting after subsection (e) the following:
    ``(f) Record of Decision.--When an environmental impact statement 
is prepared, Federal agencies must, to the maximum extent practicable, 
issue a record of decision not later than 90 days after the date on 
which the final environmental impact statement is issued.''.
    (e) Litigation, Judicial Review, and Savings Provision.--Section 
41007 of the FAST Act (42 U.S.C. 4370m-6) is amended--
            (1) in subsection (a)(1)--
                    (A) in subparagraph (A)--
                            (i) by striking ``the action'' and 
                        inserting ``the claim''; and
                            (ii) by striking ``of the final record of 
                        decision or approval or denial of a permit'' 
                        and inserting ``of notice of final agency 
                        action on the authorization''; and
                    (B) in subparagraph (B)(i), by striking ``the 
                action'' and inserting ``the claim''; and
            (2) in subsection (e), in the matter preceding paragraph 
        (1), by striking ``this section'' and inserting ``this title''.
    (f) Reports.--Section 41008 of the FAST Act (42 U.S.C. 4370m-7) is 
amended by striking subsection (a) and inserting the following:
    ``(a) Reports to Congress.--
            ``(1) Executive director annual report.--
                    ``(A) In general.--Not later than April 15 of each 
                year for 10 years beginning on the date of enactment of 
                the Federal Permitting Reform and Jobs Act, the 
                Executive Director shall submit to Congress a report 
                detailing the progress accomplished under this title 
                during the previous fiscal year.
                    ``(B) Opportunity to include comments.--Each 
                councilmember, with input from the respective agency 
                CERPO, shall have the opportunity to include comments 
                concerning the performance of the agency in the report 
                described in subparagraph (A).
            ``(2) Quarterly agency performance report.--The Executive 
        Director shall submit to Congress a quarterly report evaluating 
        agency compliance with the provisions of this title, which 
        shall include a description of the implementation and adherence 
        of each agency to the coordinated project plan and permitting 
        timetable requirements under section 41003(c).
            ``(3) Agency best practices report.--Not later than April 
        15 of each year, each participating agency and lead agency 
        shall submit to Congress and the Director of the Office of 
        Management and Budget a report assessing the performance of the 
        agency in implementing the best practices described in section 
        41002(c)(2)(B).''.
    (g) Funding for Governance, Oversight, and Processing of 
Environmental Reviews and Permits.--Section 41009 of the FAST Act (42 
U.S.C. 4370m-8) is amended--
            (1) by striking subsection (a) and inserting the following:
    ``(a) In General.--For the purpose of carrying out this title, the 
Executive Director, in consultation with the heads of the agencies 
listed in section 41002(b)(2)(B) and with the guidance of the Director 
of the Office of Management and Budget, may, after public notice and 
opportunity for comment, issue regulations establishing a fee structure 
for sponsors of covered projects to reimburse the United States for 
reasonable costs incurred in conducting environmental reviews and 
authorizations for covered projects.'';
            (2) in subsection (b), by striking ``and 41003'' and 
        inserting ``through 41008''; and
            (3) in subsection (d)--
                    (A) in the subsection heading, by striking ``and 
                Permitting''; and
                    (B) by striking paragraphs (2) and (3) and 
                inserting the following:
            ``(2) Availability.--Amounts in the Fund shall be available 
        to the Executive Director, without fiscal year limitation, 
        solely for the purposes of administering, implementing, and 
        enforcing this title, including the expenses of the Council, 
        staffing of the Office of the Executive Director, and support 
        of the role of the Council as a Federal center for permitting 
        excellence, which may include supporting interagency detailee 
        and rotation opportunities, advanced training, enhanced support 
        for agency project managers, and fora for sharing information 
        and lessons learned.
            ``(3) Transfer.--For the purpose of carrying out this 
        title, the Executive Director, with the approval of the 
        Director of the Office of Management and Budget, may transfer 
        amounts in the Fund to other Federal agencies and State, 
        Tribal, and local governments to facilitate timely and 
        efficient environmental reviews and authorizations for covered 
        projects and other projects under this title, including direct 
        reimbursement agreements with agency CERPOs, reimbursable 
        agreements, and approval and consultation processes and staff 
        for covered projects.''.
    (h) Sunset.--Section 41013 of the FAST Act (42 U.S.C. 4370m-12) is 
repealed.
    (i) Technical Correction.--Section 41002(b)(2)(A)(ii) of the FAST 
Act (42 U.S.C. 4370m-1(b)(2)(A)(ii)) is amended by striking 
``councilmem-ber'' and inserting ``councilmember''.
    (j) Clerical Amendment.--The table of contents in section 1(b) of 
the FAST Act (Public Law 114-94; 129 Stat. 1319) is amended by striking 
the item relating to section 41002 and inserting the following:

``Sec. 41002. Federal Permitting Improvement Steering Council.''.
                                 <all>
```