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 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. 

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

3 SECTION 1. ASSUMPTION BY STATES OF CERTAIN HIS4 TORIC PRESERVATION RESPONSIBILITIES. 

5 (a) IN GENERAL.—Subchapter I of chapter 3061 of 

6 title 54, United States Code, is amended by adding at the 

7 end the following: 


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1 ‘‘§ 306115. Assumption by States of certain respon2 sibilities relating to highway projects 

3 ‘‘(a) ESTABLISHMENT.— 

4 ‘‘(1) IN GENERAL.—The head of each agency 

5 (referred to in this section as the ‘agency head’) 

6 shall carry out an assignment program (referred to 

7 in this section as the ‘program’) to allow States that 

8 are eligible under subsection (b)(1) to assume cer9 tain responsibilities of the agency under section 

10 306108 with respect to agency actions applicable to 

11 highway projects within the State. 

12 ‘‘(2) ASSUMPTION OF RESPONSIBILITY.— 

13 ‘‘(A) IN GENERAL.—Subject to the other 

14 requirements of this section, on written agree15 ment of the agency head and a State (which 

16 may be in the form of a memorandum of under17 standing), the agency head may assign, and the 

18 State may assume, the responsibilities of the 

19 agency head under section 306108 with respect 

20 to the undertakings of the agency described in 

21 that section that are applicable to one or more 

22 highway projects in the State. 

23 ‘‘(B) ADDITIONAL RESPONSIBILITY.— 

24 ‘‘(i) IN GENERAL.—If a State as25 sumes responsibility under subparagraph 

26 (A), subject to clause (ii), on the request 


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1 of the State, the agency head may also as2 sign to the State, and the State may as3 sume, the responsibilities of the agency 

4 head described in that subparagraph for 

5 one or more railroad, public transpor6 tation, or multimodal projects within the 

7 State. 

8 ‘‘(ii) EXCLUSION OF PROJECTS.—In 

9 any State that assumes a responsibility of 

10 the agency head under clause (i), a recipi11 ent of assistance under chapter 53 of title 

12 49, may submit to the agency head a re13 quest that the agency head shall maintain 

14 the responsibility of the agency head with 

15 respect to one or more public transpor16 tation projects carried out by the recipient 

17 in the State. 

18 ‘‘(C) PROCEDURAL AND SUBSTANTIVE RE19 QUIREMENTS.—A State shall assume responsi20 bility under this section subject to the same 

21 procedural and substantive requirements as 

22 would apply if the responsibility were carried 

23 out by the agency head. 

24 ‘‘(D) FEDERAL RESPONSIBILITY.—Any re25 sponsibility of an agency head that is not exVerDate Sep 11 2014 04:40 Apr 11, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S1054.IS S1054

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1 plicitly assumed by a State by written agree2 ment under this section shall remain the re3 sponsibility of the agency head. 

4 ‘‘(E) NO EFFECT ON AUTHORITY.—Noth5 ing in this section preempts or interferes with 

6 any power, jurisdiction, responsibility, or au7 thority of the Secretary, the Council, or the ap8 plicable agency, except with respect to an au9 thority delegated by the agency head pursuant 

10 to subparagraph (A) under applicable law re11 garding a project or agency action described in 

12 subparagraph (A) or (B). 

13 ‘‘(F) PRESERVATION OF FLEXIBILITY.— 

14 The agency head may not require a State, as a 

15 condition of participation in the program, to 

16 forgo a project delivery method that is other17 wise permissible for a project described in sub18 paragraph (A) or (B). 

19 ‘‘(G) LEGAL FEES.—A State that assumes 

20 a responsibility of an agency head under this 

21 section for a project described in subparagraph 

22 (A) or (B) may use funds apportioned to the 

23 State under section 104(b)(2) of title 23, as 

24 necessary, for attorneys’ fees directly attribVerDate Sep 11 2014 04:40 Apr 11, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S1054.IS S1054

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1 utable to eligible activities associated with the 

2 project. 

3 ‘‘(b) STATE PARTICIPATION.— 

4 ‘‘(1) PARTICIPATING STATES.—To be eligible to 

5 participate in the program, a State shall— 

6 ‘‘(A) be participating in the surface trans7 portation project delivery program under sec8 tion 327 of title 23; and 

9 ‘‘(B) assume the responsibilities of the 

10 Secretary of Transportation under the National 

11 Environmental Policy Act of 1969 (42 U.S.C. 

12 4321 et seq.) pursuant to that section. 

13 ‘‘(2) APPLICATION.—Not later than 270 days 

14 after the date of enactment of this section, the Sec15 retary shall amend, as appropriate, regulations that 

16 establish requirements relating to information re17 quired in any application of a State to participate in 

18 the program, including, at a minimum— 

19 ‘‘(A) the projects or classes of projects for 

20 which the State anticipates exercising the au21 thority that may be granted under the program; 

22 ‘‘(B) verification of the financial resources 

23 necessary to carry out the authority that may 

24 be granted under the program; and 


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1 ‘‘(C) evidence of the notice and solicitation 

2 of public comment by the State relating to par3 ticipation of the State in the program, including 

4 copies of comments received from that solicita5 tion. 

6 ‘‘(3) PUBLIC NOTICE.— 

7 ‘‘(A) IN GENERAL.—Each State that sub8 mits an application in accordance with the reg9 ulations described in paragraph (2) shall pro10 vide to the relevant agency head and publish 

11 notice of the intent of the State to participate 

12 in the program by not later than 30 days before 

13 the date of submission of the application. 

14 ‘‘(B) METHOD OF NOTICE AND SOLICITA15 TION.—The State shall provide notice and so16 licit public comment under this paragraph by 

17 publishing the complete application of the State 

18 in accordance with the appropriate public notice 

19 requirements of the State. 

20 ‘‘(4) SELECTION CRITERIA.—The agency head 

21 may approve the application of a State under this 

22 subsection only if— 

23 ‘‘(A) any necessary changes to regulations 

24 pursuant to paragraph (2) have been carried 

25 out; 


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1 ‘‘(B) the agency head determines that the 

2 State has the capability, including financial and 

3 personnel, to assume the responsibility; and 

4 ‘‘(C) the head of the State agency with pri5 mary jurisdiction over highway matters enters 

6 into a written agreement with the agency head, 

7 as described in subsection (c). 

8 ‘‘(5) OTHER AGENCY VIEWS.—If a State applies 

9 to assume a responsibility of the agency head that 

10 would have required the agency head to consult with 

11 another agency, the agency head shall solicit the 

12 views of the other agency before approving the appli13 cation of the State under this subsection. 

14 ‘‘(c) WRITTEN AGREEMENT.—A written agreement 

15 under this section shall— 

16 ‘‘(1) be executed by— 

17 ‘‘(A) the Governor of the applicable State; 

18 or 

19 ‘‘(B) the top-ranking transportation offi20 cial in the State who is charged with responsi21 bility for highway construction; 

22 ‘‘(2) be in such form as the agency head may 

23 require; 

24 ‘‘(3) provide that the State— 


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1 ‘‘(A) agrees to assume all or part of the re2 sponsibilities of the agency head referred to in 

3 subsection (a); 

4 ‘‘(B) expressly consents, on behalf of the 

5 State, to accept the jurisdiction of the Federal 

6 courts for the compliance, discharge, and en7 forcement of any responsibility of the agency 

8 head assumed by the State; 

9 ‘‘(C) certifies that State laws (including 

10 regulations) are in effect that— 

11 ‘‘(i) authorize the State to take the 

12 actions necessary to carry out the respon13 sibilities being assumed; and 

14 ‘‘(ii) are comparable to section 552 of 

15 title 5, including providing that any deci16 sion regarding the public availability of a 

17 document under those State laws is review18 able by a court of competent jurisdiction; 

19 and 

20 ‘‘(D) agrees to maintain the financial re21 sources necessary to carry out the responsibil22 ities being assumed; 

23 ‘‘(4) require the State to provide to the agency 

24 head any information the agency head reasonably 

25 considers necessary to ensure that the State is adeVerDate Sep 11 2014 04:40 Apr 11, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S1054.IS S1054

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1 quately carrying out the responsibilities assigned to 

2 the State; 

3 ‘‘(5) have a term of not more than 5 years; and 

4 ‘‘(6) be renewable. 

5 ‘‘(d) JURISDICTION.— 

6 ‘‘(1) IN GENERAL.—The United States district 

7 courts shall have exclusive jurisdiction over any civil 

8 action against a State for failure to carry out any 

9 responsibility assumed by the State pursuant to this 

10 section. 

11 ‘‘(2) LEGAL STANDARDS AND REQUIRE12 MENTS.—A civil action under paragraph (1) shall be 

13 governed by the legal standards and requirements 

14 that would apply in such a civil action against the 

15 applicable agency head had the agency head taken 

16 the actions in question. 

17 ‘‘(3) INTERVENTION.—The applicable agency 

18 head shall have the right to intervene in any action 

19 described in paragraph (1). 

20 ‘‘(e) EFFECT OF ASSUMPTION OF RESPONSI21 BILITY.—A State that assumes responsibility under sub22 section (a)(2) shall be solely responsible and solely liable 

23 for carrying out, in lieu of, and without further approval 

24 of, the applicable agency head, those responsibilities, until 


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1 the date on which the program is terminated in accordance 

2 with subsection (j). 

3 ‘‘(f) LIMITATIONS ON AGREEMENTS.—Nothing in 

4 this section permits a State to assume any rulemaking au5 thority of the Secretary or the applicable agency head 

6 under any Federal law. 

7 ‘‘(g) AUDITS.— 

8 ‘‘(1) IN GENERAL.—To ensure compliance by a 

9 State with an agreement of the State under sub10 section (c) (including compliance by the State with 

11 all Federal laws for which responsibility is assumed 

12 under subsection (a)(2)), for each State partici13 pating in the program, the applicable agency head 

14 shall— 

15 ‘‘(A) not later than 180 days after the date 

16 of execution of the applicable agreement, meet 

17 with the State— 

18 ‘‘(i) to review the implementation of 

19 the agreement; and 

20 ‘‘(ii) to discuss plans for the first an21 nual audit; 

22 ‘‘(B) conduct annual audits during each of 

23 the first 4 years of State participation in the 

24 program; and 


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1 ‘‘(C) ensure that the time period for com2 pleting an annual audit, from initiation to com3 pletion (including public comment and re4 sponses to those comments), does not exceed 

5 180 days. 

6 ‘‘(2) PUBLIC AVAILABILITY AND COMMENT.— 

7 ‘‘(A) IN GENERAL.—An audit conducted 

8 under paragraph (1) shall be provided to the 

9 public for comment. 

10 ‘‘(B) RESPONSE.—Not later than 60 days 

11 after the date on which the period for public 

12 comment ends, the applicable agency head shall 

13 respond to public comments received under sub14 paragraph (A). 

15 ‘‘(3) AUDIT TEAM.— 

16 ‘‘(A) IN GENERAL.—An audit conducted 

17 under paragraph (1) shall be carried out by an 

18 audit team determined by the applicable agency 

19 head, in consultation with the State, in accord20 ance with subparagraph (B). 

21 ‘‘(B) CONSULTATION.—Consultation with 

22 the State under subparagraph (A) shall include 

23 a reasonable opportunity for the State to re24 view, and provide comments regarding, the pro25 posed members of the audit team. 


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1 ‘‘(h) MONITORING.—After the end of the fourth year 

2 of the participation by a State in the program, the applica3 ble agency head shall monitor compliance by the State 

4 with the written agreement under subsection (c), including 

5 the provision by the State of financial resources to carry 

6 out the written agreement. 

7 ‘‘(i) REPORT TO CONGRESS.—The Secretary or the 

8 Council shall submit to Congress an annual report that 

9 describes the administration of the program during the 

10 preceding calendar year. 

11 ‘‘(j) TERMINATION.— 

12 ‘‘(1) TERMINATION BY AGENCY.—The applica13 ble agency head may terminate the participation of 

14 a State in the program if— 

15 ‘‘(A) the agency head determines that the 

16 State is not adequately carrying out the respon17 sibilities assigned to the State pursuant to this 

18 section; 

19 ‘‘(B) the agency head provides to the 

20 State— 

21 ‘‘(i) a notification of the determina22 tion of noncompliance; 

23 ‘‘(ii) a period of not less than 120 

24 days to take such corrective action as the 


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1 agency head determines to be necessary to 

2 comply with the applicable agreement; and 

3 ‘‘(iii) on request of the Governor of 

4 the State, a detailed description of each re5 sponsibility in need of corrective action re6 garding an inadequacy identified under 

7 subparagraph (A); and 

8 ‘‘(C) the State, after the notification and 

9 period for corrective action provided under sub10 paragraph (B), fails to take satisfactory correc11 tive action, as determined by the agency head. 

12 ‘‘(2) TERMINATION BY STATE.—The State may 

13 terminate the participation of the State in the pro14 gram at any time by providing to the applicable 

15 agency head a notice, by not later than the date that 

16 is 90 days before the date of termination, subject to 

17 such terms and conditions as the agency head may 

18 provide. 

19 ‘‘(k) CAPACITY BUILDING.—The Council, in coopera20 tion with representatives of State officials, may carry out 

21 education, training, peer-exchange, and other initiatives as 

22 appropriate— 

23 ‘‘(1) to assist States in developing the capacity 

24 to participate in the program; and 


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1 ‘‘(2) to promote information sharing and col2 laboration among States that are participating in 

3 the program. 

4 ‘‘(l) RELATIONSHIP TO LOCALLY ADMINISTERED

5 PROJECTS.—A State granted authority under this section 

6 may, as appropriate and on the request of a local govern7 ment— 

8 ‘‘(1) exercise that authority on behalf of the 

9 local government for a locally administered project; 

10 or 

11 ‘‘(2) provide guidance and training regarding 

12 consolidating and minimizing the documentation and 

13 environmental analyses necessary for sponsors of a 

14 locally administered project to comply with— 

15 ‘‘(A) section 306108; and 

16 ‘‘(B) any comparable requirements under 

17 State law.’’. 

18 (b) TECHNICAL AMENDMENT.—The table of sections 

19 for chapter 3061 of title 54, United States Code, is 

20 amended by inserting after the item relating to section 

21 306114 the following: 

‘‘306115. Assumption by States of certain responsibilities relating to highway 

projects.’’. 

Æ 


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