II Calendar No. 499 116th CONGRESS 2d Session S. 1976 [Report No. 116–241] IN THE SENATE OF THE UNITED STATES June 26, 2019 Mr. Portman introduced the following bill; which was read twice and referred to the Committee on Homeland Security and Governmental Affairs July 29, 2020 Reported by Mr. Johnson , with an amendment Strike out all after the enacting clause and insert the part printed in italic A BILL To amend the FAST Act to improve the Federal permitting process, and for other purposes.

1. Short title This Act may be cited as the Federal Permitting Reform and Jobs Act . 2. Federal permitting improvement (a) Definitions (1) In general Section 41001 of the FAST Act ( 42 U.S.C. 4370m ) is amended— (A) in paragraph (4), by striking means and all that follows through the period at the end and inserting has the meaning given the term in section 1508.5 of title 40, Code of Federal Regulations (as in effect on the date of enactment of the Federal Permitting Reform and Jobs Act ). ; (B) in paragraph (5), by striking Federal Infrastructure Permitting Improvement Steering Council and inserting Federal Permitting Improvement Steering Council ; and (C) in paragraph (6)— (i) in subparagraph (A), in the matter preceding clause (i), by inserting projects after infrastructure ; and (ii) by striking subparagraph (B) and inserting the following: (B) Treatment Section 553 of title 5, United States Code, shall not apply to a majority vote described in subparagraph (A). . (b) Federal Permitting Improvement Council Section 41002 of the FAST Act ( 42 U.S.C. 4370m–1 ) is amended— (1) in subsection (b)(2)(A)(i)— (A) by striking Each and inserting the following: (I) In general Each ; and (B) 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. ; (2) in subsection (c)— (A) in paragraph (2)— (i) in subparagraph (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 (vii), by striking and at the end; (III) by redesignating clause (viii) as clause (ix); and (IV) 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; and ; (ii) by redesignating subparagraph (C) as subparagraph (D); and (iii) by inserting after subparagraph (B) the following: (C) Notification The Executive Director shall notify the Committees on Homeland Security and Governmental Affairs and Environment and Public Works of the Senate and the Committees on Energy and Commerce and Transportation and Infrastructure of the House of Representatives if any agency fails to reasonably implement the recommended best practices. ; and (B) in paragraph (3)(A), by inserting , including agency compliance with interim and final completion dates described in coordinated project plans after authorizations ; and (3) in subsection (d)— (A) by striking The Director and inserting the following: (1) In general The Director ; and (B) by adding at the end the following: (2) Savings provision The designated agency under paragraph (1) shall not— (A) participate in policy decisions or substantive management of the Council; or (B) require the Executive Director or the Council to comply with agency policies in carrying out the duties of the Executive Director or the Council, as applicable. . (c) Permitting process improvement Section 41003 of the FAST Act ( 42 U.S.C. 4370m–2 ) is amended— (1) in subsection (a)(3)(A), in the matter preceding clause (i), by inserting and the Executive Director after as applicable, ; (2) in subsection (b)(2)— (A) by striking 14 days each place it appears and inserting 14 business days ; and (B) in subparagraph (A)(ii), by inserting completed before notice ; (3) in subsection (c)— (A) in paragraph (1)— (i) in subparagraph (A), by inserting in coordination with the Executive Director and after as applicable, ; and (ii) in subparagraph (B), by adding at the end the following: (v) A checklist— (I) to help project sponsors identify potential natural, cultural, and historic resources in the area of the project; and (II) the purposes of which are— (aa) to identify agencies and organizations that can provide information about natural, cultural, and historic resources; and (bb) to develop the information needed to determine the range of alternatives. (vi) In the case of a tiered project review, a description of the relationship between any applicable programmatic analysis and the planned tiered environmental review. ; and (B) in paragraph (2)— (i) in subparagraph (A)— (I) by striking As part of the coordination project plan and inserting the following: (i) In general In accordance with clause (ii) and as part of the coordinated project plan ; and (II) by adding at the end the following: (ii) Goal (I) In general The permitting timetable established under clause (i) shall provide for the completion of the permitting process within 2 years. (II) Exception If the facilitating agency or lead agency, as applicable, determines that the permitting process cannot be completed within 2 years, the coordinated project plan under paragraph (1) shall include— (aa) the specific reasons why the facilitating agency or lead agency, as applicable, anticipates that the permitting process will take longer than 2 years; and (bb) the specific efforts that the facilitating agency or lead agency, as applicable, each coordinating and participating agency, the project sponsor, and any State in which the project is located will take to reduce the time needed to complete the permitting process. ; (ii) 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 (iii) in subparagraph (F)— (I) in clause (i)— (aa) by inserting interim and final before completion dates ; and (bb) by inserting interim or final before completion date ; and (II) in clause (ii)— (aa) 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 interim 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 (bb) in subclause (I), by striking significantly risking failing to conform and inserting reasonably believing the agency will fail to conform ; (4) in subsection (d)— (A) by redesignating paragraphs (1) through (3) as subparagraphs (A) through (C), respectively, and indenting appropriately; and (B) by striking the matter preceding subparagraph (A) (as so redesignated) and inserting the following: (1) In general The facilitating or lead agency, as applicable, shall provide an expeditious process for potential or current project sponsors to confer with each potential and identified cooperating and participating agency involved. (2) Provision of information Not later than 60 days after the date on which the potential or current project sponsor submits a request under this subsection, each agency that received such a request shall provide to the project sponsor information concerning— ; and (5) by striking subsection (f) and inserting the following: (f) Facilitation of environmental review and authorization process of additional projects (1) In general In the case of a project that is not a covered project, on the request of an individual described in section 41002(b)(2)(B) or the project sponsor, the Executive Director may work with the lead agency and any cooperating or participating agency to facilitate the environmental review and authorization process in accordance with this subsection, including by— (A) mediating and resolving disputes; (B) promoting early coordination among the agencies; and (C) taking such actions as may be established pursuant to paragraph (2). (2) Establishment of policies The Executive Director, in consultation with the Director of the Office of Management and Budget and the Chair of the Council on Environmental Quality, may establish policies and procedures as appropriate to carry out the facilitation under paragraph (1). (3) Cooperation required If the Executive Director is facilitating the environmental review and authorization process under paragraph (1), the lead agency and any cooperating or participating agency shall cooperate with the Executive Director to the maximum extent practicable. (4) Savings provision Facilitation of a project by the Executive Director under paragraph (1) shall not subject the project to any provisions under this title, other than as provided in this subsection. . (d) Coordination of required reviews Section 41005(b) of the FAST Act ( 42 U.S.C. 4370m–4(b) ) is amended— (1) by striking (1) State environmental documents; supplemental documents .— ; (2) by redesignating subparagraphs (A) through (E) as paragraphs (1) through (5), respectively, and indenting appropriately; (3) in paragraph (1) (as so redesignated), by redesignating clauses (i) and (ii) as subparagraphs (A) and (B), respectively, and indenting appropriately; (4) in paragraph (2) (as so redesignated), by striking subparagraph (A) each place it appears and inserting paragraph (1) ; (5) in paragraph (3) (as so redesignated)— (A) in the matter preceding clause (i), by striking subparagraph (A) and inserting paragraph (1) ; and (B) by redesignating clauses (i) and (ii) as subparagraphs (A) and (B), respectively, and indenting appropriately; (6) in paragraph (4) (as so redesignated)— (A) in the matter preceding clause (i), by striking subparagraph (C) and inserting paragraph (3) ; and (B) by redesignating clauses (i) and (ii) as subparagraphs (A) and (B), respectively, and indenting appropriately; and (7) in paragraph (5) (as so redesignated)— (A) by striking subparagraph (A) and inserting paragraph (1) ; and (B) by striking subparagraph (C) and inserting paragraph (3) . (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— (1) in subsection (a)(2)— (A) in the matter preceding subparagraph (A), by striking based on and all that follows through including and inserting , including ; (B) in subparagraph (A), by striking those best practices and inserting the best practices described in section 41002(c)(2)(B) ; (C) in subparagraph (B), by striking the period at the end and inserting ; and ; and (D) by adding at the end the following: (C) agency compliance with sections 41003 through 41006. ; and (2) by adding at the end the following: (c) FERC report (1) In general Not later than 90 days after the date of enactment of the Federal Permitting Reform and Jobs Act , the Federal Energy Regulatory Commission shall submit to the Committees on Homeland Security and Governmental Affairs and Environment and Public Works of the Senate and the Committees on Energy and Commerce and Transportation and Infrastructure of the House of Representatives a report that includes recommendations on ways to reconcile regulations of the Federal Energy Regulatory Commission with requirements under this title. (2) Review In the first report under subsection (a) that is submitted after the date on which the report under paragraph (1) is submitted, the Executive Director shall include a review of the recommendations in the report under that paragraph. . (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) by striking subsection (d)(3) and inserting the following: (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, State, Tribal, and local governments to facilitate timely and efficient environmental reviews and authorizations for proposed 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) Repeal of certain exclusions Section 11503(b) of the FAST Act ( 42 U.S.C. 4370m note; Public Law 114–94 ) is repealed. (j) 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 .

1. Short title This Act may be cited as the Federal Permitting Reform and Jobs Act . 2. Federal permitting improvement (a) Definitions (1) In general Section 41001 of the FAST Act ( 42 U.S.C. 4370m ) is amended— (A) in paragraph (4), by striking means and all that follows through the period at the end and inserting has the meaning given the term in section 1508.5 of title 40, Code of Federal Regulations (as in effect on the date of enactment of the Federal Permitting Reform and Jobs Act ). ; (B) in paragraph (5), by striking Federal Infrastructure Permitting Improvement Steering Council and inserting Federal Permitting Improvement Steering Council ; and (C) in paragraph (6)— (i) in subparagraph (A)— (I) in the matter preceding clause (i), by inserting projects after infrastructure ; and (II) in clause (i)— (aa) in subclause (I), by inserting and at the end; (bb) in subclause (II), by striking and at the end and inserting or ; and (cc) by striking subclause (III); and (ii) by striking subparagraph (B) and inserting the following: (B) Treatment Section 553 of title 5, United States Code, shall not apply to a majority vote described in subparagraph (A). . (b) Federal Permitting Improvement Council Section 41002 of the FAST Act ( 42 U.S.C. 4370m–1 ) is amended— (1) in subsection (b)(2)(A)(i)— (A) by striking Each and inserting the following: (I) In general Each ; and (B) 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. ; (2) in subsection (c)— (A) in paragraph (2)— (i) in subparagraph (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 (vii), by striking and at the end; (III) by redesignating clause (viii) as clause (ix); and (IV) 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; and ; (ii) by redesignating subparagraph (C) as subparagraph (D); and (iii) by inserting after subparagraph (B) the following: (C) Notification The Executive Director shall notify the Committees on Homeland Security and Governmental Affairs and Environment and Public Works of the Senate and the Committees on Energy and Commerce and Transportation and Infrastructure of the House of Representatives if any agency fails to reasonably implement the recommended best practices. ; and (B) in paragraph (3)(A), by inserting , including agency compliance with interim and final completion dates described in coordinated project plans after authorizations ; and (3) in subsection (d)— (A) by striking The Director and inserting the following: (1) In general The Director ; and (B) by adding at the end the following: (2) Savings provision The designated agency under paragraph (1) shall not— (A) participate in policy decisions or substantive management of the Council; or (B) require the Executive Director or the Council to comply with agency policies in carrying out the duties of the Executive Director or the Council, as applicable. . (c) Permitting process improvement Section 41003 of the FAST Act ( 42 U.S.C. 4370m–2 ) is amended— (1) in subsection (a)(3)(A), in the matter preceding clause (i), by inserting and the Executive Director after as applicable, ; (2) in subsection (b)(2)— (A) by striking 14 days each place it appears and inserting 14 business days ; and (B) in subparagraph (A)(ii), by inserting completed before notice ; (3) in subsection (c)— (A) in paragraph (1)— (i) in subparagraph (A), by inserting in coordination with the Executive Director and after as applicable, ; and (ii) in subparagraph (B), by adding at the end the following: (v) A checklist— (I) to help project sponsors identify potential natural, cultural, and historic resources in the area of the project; (II) to ensure that the project sponsor consults with any federally recognized Indian tribe that attaches religious or cultural significance to land affected by a covered project; and (III) the purposes of which are— (aa) to identify agencies and organizations that can provide information about natural, cultural, and historic resources; and (bb) to develop the information needed to determine the range of alternatives. (vi) In the case of a tiered project review, a description of the relationship between any applicable programmatic analysis and the planned tiered environmental review. ; and (B) in paragraph (2)— (i) in subparagraph (A)— (I) by striking As part of the coordination project plan and inserting the following: (i) In general In accordance with clause (ii) and as part of the coordinated project plan ; and (II) by adding at the end the following: (ii) Goal (I) In general The permitting timetable established under clause (i) shall provide for the completion of the permitting process within 2 years. (II) Exception If the facilitating agency or lead agency, as applicable, determines that the permitting process cannot be completed within 2 years, the coordinated project plan under paragraph (1) shall include— (aa) the specific reasons why the facilitating agency or lead agency, as applicable, anticipates that the permitting process will take longer than 2 years; and (bb) the specific efforts that the facilitating agency or lead agency, as applicable, each coordinating and participating agency, the project sponsor, and any State in which the project is located will take to reduce the time needed to complete the permitting process. ; (ii) 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 (iii) in subparagraph (F)— (I) in clause (i)— (aa) by inserting interim and final before completion dates ; and (bb) by inserting interim or final before completion date ; and (II) in clause (ii)— (aa) 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 interim 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 (bb) in subclause (I), by striking significantly risking failing to conform and inserting reasonably believing the agency will fail to conform ; (4) in subsection (d)— (A) by redesignating paragraphs (1) through (3) as subparagraphs (A) through (C), respectively, and indenting appropriately; and (B) by striking the matter preceding subparagraph (A) (as so redesignated) and inserting the following: (1) In general The facilitating or lead agency, as applicable, shall provide an expeditious process for potential or current project sponsors to confer with each potential and identified cooperating and participating agency involved. (2) Provision of information Not later than 60 days after the date on which the potential or current project sponsor submits a request under this subsection, each agency that received such a request shall provide to the project sponsor information concerning— ; and (5) by striking subsection (f) and inserting the following: (f) Facilitation of environmental review and authorization process of additional projects (1) In general In the case of a project that is not a covered project, on the request of an individual described in section 41002(b)(2)(B) or the project sponsor, the Executive Director may work with the lead agency and any cooperating or participating agency to facilitate the environmental review and authorization process in accordance with this subsection, including by— (A) mediating and resolving disputes; (B) promoting early coordination among the agencies; and (C) taking such actions as may be established pursuant to paragraph (2). (2) Establishment of policies The Executive Director, in consultation with the Director of the Office of Management and Budget and the Chair of the Council on Environmental Quality, may establish policies and procedures as appropriate to carry out the facilitation under paragraph (1). (3) Cooperation required If the Executive Director is facilitating the environmental review and authorization process under paragraph (1), the lead agency and any cooperating or participating agency shall cooperate with the Executive Director to the maximum extent practicable. (4) Savings provision Facilitation of a project by the Executive Director under paragraph (1) shall not subject the project to any provisions under this title, other than as provided in this subsection. . (d) Coordination of required reviews Section 41005(b) of the FAST Act ( 42 U.S.C. 4370m–4(b) ) is amended— (1) by striking (1) State environmental documents; supplemental documents .— ; (2) by redesignating subparagraphs (A) through (E) as paragraphs (1) through (5), respectively, and indenting appropriately; (3) in paragraph (1) (as so redesignated), by redesignating clauses (i) and (ii) as subparagraphs (A) and (B), respectively, and indenting appropriately; (4) in paragraph (2) (as so redesignated), by striking subparagraph (A) each place it appears and inserting paragraph (1) ; (5) in paragraph (3) (as so redesignated)— (A) in the matter preceding clause (i), by striking subparagraph (A) and inserting paragraph (1) ; and (B) by redesignating clauses (i) and (ii) as subparagraphs (A) and (B), respectively, and indenting appropriately; (6) in paragraph (4) (as so redesignated)— (A) in the matter preceding clause (i), by striking subparagraph (C) and inserting paragraph (3) ; and (B) by redesignating clauses (i) and (ii) as subparagraphs (A) and (B), respectively, and indenting appropriately; and (7) in paragraph (5) (as so redesignated)— (A) by striking subparagraph (A) and inserting paragraph (1) ; and (B) by striking subparagraph (C) and inserting paragraph (3) . (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)— (A) in paragraph (1)— (i) in the matter preceding subparagraph (A), by inserting except as provided in paragraph (4), after provision of law, ; (ii) 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 (iii) in subparagraph (B)(i), by striking the action and inserting the claim ; and (B) by adding at the end the following: (4) Special rule for certain projects Notwithstanding paragraphs (1) and (2), in the case of a covered project that is subject to section 139 of title 23, United States Code, the time limits under subsection (l) of that section shall apply to the covered project in lieu of the time limits under paragraphs (1) and (2). ; 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— (1) in subsection (a)(2)— (A) in the matter preceding subparagraph (A), by striking based on and all that follows through including and inserting , including ; (B) in subparagraph (A), by striking those best practices and inserting the best practices described in section 41002(c)(2)(B) ; (C) in subparagraph (B), by striking the period at the end and inserting ; and ; and (D) by adding at the end the following: (C) agency compliance with sections 41003 through 41006. ; and (2) by adding at the end the following: (c) FERC report (1) In general Not later than 90 days after the date of enactment of the Federal Permitting Reform and Jobs Act , the Federal Energy Regulatory Commission shall submit to the Committees on Homeland Security and Governmental Affairs and Environment and Public Works of the Senate and the Committees on Energy and Commerce and Transportation and Infrastructure of the House of Representatives a report that includes recommendations on ways to reconcile regulations of the Federal Energy Regulatory Commission with requirements under this title. (2) Review In the first report under subsection (a) that is submitted after the date on which the report under paragraph (1) is submitted, the Executive Director shall include a review of the recommendations in the report under that paragraph. . (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) by striking subsection (d)(3) and inserting the following: (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, State, Tribal, and local governments to facilitate timely and efficient environmental reviews and authorizations for proposed 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) Repeal of certain exclusions Section 11503(b) of the FAST Act ( 42 U.S.C. 4370m note; Public Law 114–94 ) is repealed. (j) 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 .

July 29, 2020 Reported with an amendment