†
196
HR 3 EAS
‘‘(2) SCOPE
OF
AUTHORITY.—A determination
described in paragraph (1) shall be made by a State
in accordance with criteria established by the Sec-
retary and only for types of activities specifically des-
ignated by the Secretary.
‘‘(3) CRITERIA.—The criteria under paragraph
(2) shall include provisions for public availability of
information consistent with section 552 of title 5 and
the National Environmental Policy Act of 1969 (42
U.S.C. 4321 et seq.).
‘‘(b) OTHER APPLICABLE FEDERAL LAWS.—
‘‘(1) IN GENERAL.—If a State assumes responsi-
bility under subsection (a), the Secretary may also
assign and the State may assume all or part of the
responsibilities of the Secretary for environmental re-
view, consultation, or other related actions required
under any Federal law applicable to activities that
are classified by the Secretary as categorical exclu-
sions, with the exception of government-to-government
consultation with Indian tribes, subject to the same
procedural and substantive requirements as would be
required if that responsibility were carried out by the
Secretary.
‘‘(2) SOLE RESPONSIBILITY.—A State that as-
sumes responsibility under paragraph (1) with re-
†
197
HR 3 EAS
spect to a Federal law shall be solely responsible and
solely liable for complying with and carrying out that
law, and the Secretary shall have no such responsi-
bility or liability.
‘‘(c) MEMORANDA OF UNDERSTANDING.—
‘‘(1) IN GENERAL.—The Secretary and the State,
after providing public notice and opportunity for
comment, shall enter into a memorandum of under-
standing setting forth the responsibilities to be as-
signed under this section and the terms and condi-
tions under which the assignments are made, includ-
ing establishment of the circumstances under which
the Secretary would reassume responsibility for cat-
egorical exclusion determinations.
‘‘(2) 
TERM.—A 
memorandum 
of
understanding—
‘‘(A) shall have term of not more than 3
years; and
‘‘(B) shall be renewable.
‘‘(3) ACCEPTANCE
OF
JURISDICTION.—In a
memorandum of understanding, the State shall con-
sent to accept the jurisdiction of the Federal courts for
the compliance, discharge, and enforcement of any re-
sponsibility of the Secretary that the State assumes.
‘‘(4) MONITORING.—The Secretary shall—
†
198
HR 3 EAS
‘‘(A) monitor compliance by the State with
the memorandum of understanding and the pro-
vision by the State of financial resources to
carry out the memorandum of understanding;
and
‘‘(B) take into account the performance by
the State when considering renewal of the memo-
randum of understanding.
‘‘(d) TERMINATION.—The Secretary may terminate
any assumption of responsibility under a memorandum of
understanding on a determination that the State is not ade-
quately carrying out the responsibilities assigned to the
State.
‘‘(e) STATE AGENCY DEEMED TO BE FEDERAL AGEN-
CY.—A State agency that is assigned a responsibility under
a memorandum of understanding shall be deemed to be a
Federal agency for the purposes of the Federal law under
which the responsibility is exercised.’’.
(b) CONFORMING
AMENDMENT.—The analysis for
chapter 3 of title 23, United States Code (as amended by
section 1511(b)), is amended by inserting after the item re-
lating to section 326 the following:
‘‘327. Assumption of responsibility for categorical exclusions.’’.
†
199
HR 3 EAS
SEC. 1513. SURFACE TRANSPORTATION PROJECT DELIVERY
PILOT PROGRAM.
(a) IN GENERAL.—Chapter 3 of title 23, United States
Code (as amended by section 1512(a)), is amended by in-
serting after section 327 the following:
‘‘§ 328. Surface transportation project delivery pilot
program
‘‘(a) ESTABLISHMENT.—
‘‘(1) IN
GENERAL.—The Secretary shall carry
out a surface transportation project delivery pilot
program (referred to in this section as the ‘program’).
‘‘(2) ASSUMPTION OF RESPONSIBILITY.—
‘‘(A) IN
GENERAL.—Subject to the other
provisions of this section, with the written agree-
ment of the Secretary and a State, which may
be in the form of a memorandum of under-
standing, the Secretary may assign, and the
State may assume, the responsibilities of the Sec-
retary with respect to 1 or more highway
projects within the State under the National En-
vironmental Policy Act of 1969 (42 U.S.C. 4321
et seq.).
‘‘(B) ADDITIONAL
RESPONSIBILITY.—If a
State assumes responsibility under subparagraph
(A)—
†
200
HR 3 EAS
‘‘(i) 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 en-
vironmental law pertaining to the review or
approval of a specific project; but
‘‘(ii) the Secretary may not assign—
‘‘(I) responsibility for any con-
formity determination required under
section 176 of the Clean Air Act (42
U.S.C. 7506); or
‘‘(II) any responsibility imposed
on the Secretary by section 134 or 135.
‘‘(C) PROCEDURAL AND SUBSTANTIVE RE-
QUIREMENTS.—A State shall assume responsi-
bility under this section subject to the same pro-
cedural and substantive requirements as would
apply if that responsibility were carried out by
the Secretary.
‘‘(D) FEDERAL RESPONSIBILITY.—Any re-
sponsibility of the Secretary not explicitly as-
sumed by the State by written agreement under
this section shall remain the responsibility of the
Secretary.
†
201
HR 3 EAS
‘‘(E) NO EFFECT ON AUTHORITY.—Nothing
in this section preempts or interferes with any
power, jurisdiction, responsibility, or authority
of an agency, other than the Department of
Transportation, under applicable law (including
regulations) with respect to a project.
‘‘(b) STATE PARTICIPATION.—
‘‘(1) NUMBER OF PARTICIPATING STATES.—The
Secretary may permit not more than 5 States (in-
cluding the State of Oklahoma) to participate in the
program.
‘‘(2) APPLICATION.—Not later than 270 days
after the date of enactment of this section, the Sec-
retary shall promulgate regulations that establish re-
quirements relating to information required to be con-
tained in any application of a State to participate
in the program, including, at a minimum—
‘‘(A) the projects or classes of projects for
which the State anticipates exercising the au-
thority that may be granted under the program;
‘‘(B) verification of the financial resources
necessary to carry out the authority that may be
granted under the program; and
‘‘(C) evidence of the notice and solicitation
of public comment by the State relating to par-
†
202
HR 3 EAS
ticipation of the State in the program, including
copies of comments received from that solicita-
tion.
‘‘(3) PUBLIC NOTICE.—
‘‘(A) IN GENERAL.—Each State that sub-
mits an application under this subsection shall
give notice of the intent of the State to partici-
pate in the program not later than 30 days be-
fore the date of submission of the application.
‘‘(B) METHOD OF NOTICE AND SOLICITA-
TION.—The State shall provide notice and solicit
public comment under this paragraph by pub-
lishing the complete application of the State in
accordance with the appropriate public notice
law of the State.
‘‘(4) SELECTION CRITERIA.—The Secretary may
approve the application of a State under this section
only if—
‘‘(A) the regulatory requirements under
paragraph (2) have been met;
‘‘(B) the Secretary determines that the State
has the capability, including financial and per-
sonnel, to assume the responsibility; and
‘‘(C) the head of the State agency having
primary jurisdiction over highway matters en-
†
203
HR 3 EAS
ters into a written agreement with the Secretary
described in subsection (c).
‘‘(5) OTHER
FEDERAL
AGENCY
VIEWS.—If a
State applies to assume a responsibility of the Sec-
retary that would have required the Secretary to con-
sult with another Federal agency, the Secretary shall
solicit the views of the Federal agency before approv-
ing the application.
‘‘(c) WRITTEN AGREEMENT.—A written agreement
under this section shall—
‘‘(1) be executed by the Governor or the top-rank-
ing transportation official in the State who is charged
with responsibility for highway construction;
‘‘(2) be in such form as the Secretary may pre-
scribe;
‘‘(3) provide that the State—
‘‘(A) agrees to assume all or part of the re-
sponsibilities of the Secretary described in sub-
section (a);
‘‘(B) expressly consents, on behalf of the
State, to accept the jurisdiction of the Federal
courts for the compliance, discharge, and enforce-
ment of any responsibility of the Secretary as-
sumed by the State;
†
204
HR 3 EAS
‘‘(C) certifies that State laws (including
regulations) are in effect that—
‘‘(i) authorize the State to take the ac-
tions necessary to carry out the responsibil-
ities being assumed; and
‘‘(ii) are comparable to section 552 of
title 5, including providing that any deci-
sion regarding the public availability of a
document under those State laws is review-
able by a court of competent jurisdiction;
and
‘‘(D) agrees to maintain the financial re-
sources necessary to carry out the responsibilities
being assumed.
‘‘(d) JURISDICTION.—
‘‘(1) IN GENERAL.—The United States district
courts shall have exclusive jurisdiction over any civil
action against a State for failure to carry out any re-
sponsibility of the State under this section.
‘‘(2) LEGAL STANDARDS AND REQUIREMENTS.—
A civil action under paragraph (1) shall be governed
by the legal standards and requirements that would
apply in such a civil action against the Secretary
had the Secretary taken the actions in question.
†
205
HR 3 EAS
‘‘(3) INTERVENTION.—The Secretary shall have
the right to intervene in any action described in
paragraph (1).
‘‘(e) EFFECT OF ASSUMPTION OF RESPONSIBILITY.—
A State that assumes responsibility under subsection (a)(2)
shall be solely responsible and solely liable for carrying out,
in lieu of the Secretary, the responsibilities assumed under
subsection (a)(2), until the program is terminated as pro-
vided in subsection (i).
‘‘(f) LIMITATIONS ON AGREEMENTS.—Nothing in this
section permits a State to assume any rulemaking author-
ity of the Secretary under any Federal law.
‘‘(g) AUDITS.—
‘‘(1) IN GENERAL.—To ensure compliance by a
State with any agreement of the State under sub-
section (c)(1) (including compliance by the State with
all Federal laws for which responsibility is assumed
under subsection (a)(2)), for each State participating
in the program under this section, the Secretary shall
conduct—
‘‘(A) semiannual audits during each of the
first 2 years of State participation; and
‘‘(B) annual audits during each subsequent
year of State participation.
‘‘(2) PUBLIC AVAILABILITY AND COMMENT.—
†
206
HR 3 EAS
‘‘(A) IN
GENERAL.—An audit conducted
under paragraph (1) shall be provided to the
public for comment.
‘‘(B) RESPONSE.—Not later than 60 days
after the date on which the period for public
comment ends, the Secretary shall respond to
public comments received under subparagraph
(A).
‘‘(h) REPORT TO CONGRESS.—The Secretary shall sub-
mit to Congress an annual report that describes the admin-
istration of the program.
‘‘(i) TERMINATION.—
‘‘(1) IN GENERAL.—Except as provided in para-
graph (2), the program shall terminate on the date
that is 6 years after the date of enactment of this sec-
tion.
‘‘(2) TERMINATION
BY
SECRETARY.—The Sec-
retary may terminate the participation of any State
in the program if—
‘‘(A) the Secretary determines that the State
is not adequately carrying out the responsibil-
ities assigned to the State;
‘‘(B) the Secretary provides to the State—
‘‘(i) notification of the determination
of noncompliance; and