H. R. 292
IN THE HOUSE OF REPRESENTATIVES
January 8, 2019
Mr. Curtis introduced the following bill; which was referred to the Committee on Natural Resources, and in addition to the Committee on Agriculture, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned
To allow certain State and Tribal permitting authority to encourage expansion of broadband service to rural and Tribal communities, and for other purposes.
This Act may be cited as the
Rural Broadband Permitting Efficiency Act of 2019.
In this Act:
broadband project means an installation by a broadband provider of wireless or broadband infrastructure, including but not limited to, copper lines, fiber optic lines, communications towers, buildings, or other improvements on Federal land.
broadband provider means a provider of wireless or broadband infrastructure that enables a user to originate and receive high-quality voice, data, graphics, and video telecommunications.
Indian Lands means—
any land owned by an Indian Tribe, located within the boundaries of an Indian reservation, pueblo, or rancheria; or
any land located within the boundaries of an Indian reservation, pueblo, or rancheria, the title to which is held—
in trust by the United States for the benefit of an Indian Tribe or an individual Indian;
by an Indian Tribe or an individual Indian, subject to restriction against alienation under laws of the United States; or
by a dependent Indian community.
Indian Tribe means a federally recognized Indian Tribe.
operational right-of-way means all real property interests (including easements) acquired for the construction or operation of a project, including the locations of the roadway, bridges, interchanges, culverts, drainage, clear zone, traffic control signage, landscaping, copper and fiber optic lines, utility shelters, and broadband infrastructure as installed by broadband providers, and any rest areas with direct access to a controlled access highway or the National Highway System.
Secretary concerned means—
the Secretary of Agriculture (acting through the Chief of the Forest Service), with respect to National Forest System land; and
the Secretary of the Interior, with respect to land managed by the Department of the Interior (including land held in trust for an Indian Tribe).
State or Tribal permitting authority
The Secretary concerned shall establish (or in the case where both Department of the Interior and National Forest System land would be affected, shall jointly establish) a voluntary program under which any State or Indian Tribe may offer, and the Secretary concerned may agree, to enter into a memorandum of understanding to allow for the State or Indian Tribe to prepare environmental analyses required under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) for the permitting of broadband projects within an operational right-of-way on National Forest System land, land managed by the Department of the Interior, and Indian Lands. Under such a memorandum of understanding, an Indian Tribe or State may volunteer to cooperate with the signatories to the memorandum in the preparation of the analyses required under the National Environmental Policy Act of 1969.
Assumption of responsibilities
In entering into a memorandum of understanding under this section, the Secretary concerned may assign to the State or Indian Tribe, and the State or Indian Tribe may agree to assume, all or part of the responsibilities of the Secretary concerned for environmental analyses under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.).
State or Indian Tribe responsibility
A State or Indian Tribe that assumes any responsibility under paragraph (1) shall be subject to the same procedural and substantive requirements as would apply if the responsibility were carried out by the Secretary concerned.
Effect of assumption of responsibility
A State or Indian Tribe that assumes any responsibility, including financial responsibility, under paragraph (1) shall be solely responsible and solely liable for carrying out, in lieu of the Secretary concerned, the responsibilities assumed under that paragraph until the date on which the program is terminated under subsection (g).
A State or Indian Tribe that assumes any responsibility under paragraph (1) shall comply with the environmental review procedures under parts 1500–1508 of title 40, Code of Federal Regulations (or successor regulations), and the regulations of the Secretary concerned.
Any responsibility of the Secretary concerned described in paragraph (1) that is not explicitly assumed by the State or Indian Tribe in the memorandum of understanding shall remain the responsibility of the Secretary concerned.
Offer and notification
A State or Indian Tribe that intends to offer to enter into a memorandum of understanding under this section shall provide to the Secretary concerned notice of the intent of the State or Indian Tribe not later than 90 days before the date on which the State or Indian Tribe submits a formal written offer to the Secretary concerned.
Within 90 days of entering into any memorandum of understanding with a State, the Secretary concerned shall initiate consultation with relevant Indian Tribes.
Memorandum of understanding
A memorandum of understanding entered into under this section shall—
be executed by the Governor or the Governor’s designee, or in the case of an Indian Tribe, by an officer designated by the governing body of the Indian Tribe;
be for a term not to exceed 10 years;
be in such form as the Secretary concerned may prescribe;
provide that the State or Indian Tribe—
agrees to assume all or part of the responsibilities of the Secretary concerned described in subsection (b)(1);
expressly consents, including through the adoption of express waivers of sovereign immunity, on behalf of the State or Indian Tribe, to accept the jurisdiction of the Federal courts for the compliance, discharge, and enforcement of any responsibility of the Secretary concerned assumed by the State or Indian Tribe;
certify that State laws and regulations, with respect to States, or Tribal laws and regulations, with respect to Indian Tribes, are in effect that—
authorize the State or Indian Tribe to take the actions necessary to carry out the responsibilities being assumed; and
are comparable to section 552 of title 5, United States Code, including providing that any decision regarding the public availability of a document under the State laws is reviewable by a court of competent jurisdiction;
agrees to maintain the financial resources necessary to carry out the responsibilities being assumed;
agrees to provide to the Secretary concerned any information the Secretary concerned considers necessary to ensure that the State or Indian Tribe is adequately carrying out the responsibilities assigned to and assumed by the State or Indian Tribe;
agrees to return revenues generated from the use of public lands authorized under this section to the United States annually, in accordance with the Federal Land Policy Management Act of 1976 (43 U.S.C. 1701 et seq.); and
agrees to send a copy of all authorizing documents to the United States for proper notation and recordkeeping;
prioritize and expedite any analyses under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) under the memorandum of understanding;
not be granted to a State on Indian Lands without the consent of the relevant Indian Tribe; and
not be granted to an Indian Tribe on State lands without the consent of the relevant State.
Nothing in this section permits a State or Indian Tribe to assume—
any rulemaking authority of the Secretary concerned under any Federal law; and
Federal Government responsibilities for government-to-government consultation with Indian Tribes.
Termination by the Secretary
The Secretary concerned may terminate the participation of any State or Indian Tribe in the program established under this section if—
the Secretary concerned determines that the State or Indian Tribe is not adequately carrying out the responsibilities assigned to and assumed by the State or Indian Tribe;
the Secretary concerned provides to the State or Indian Tribe—
notification of the determination of noncompliance; and
a period of at least 30 days during which to take such corrective action as the Secretary concerned determines is necessary to comply with the applicable agreement; and
the State or Indian Tribe, after the notification and period provided under subparagraph (B), fails to take satisfactory corrective action, as determined by the Secretary concerned.
Termination by the State or Indian Tribe
A State or Indian Tribe may terminate the participation of the State or Indian Tribe in the program established under this section at any time by providing to the Secretary concerned a notice of intent to terminate by not later than the date that is 90 days before the date of termination.
Termination of memorandum of understanding with State or Indian Tribe
A State or an Indian Tribe may terminate a joint memorandum of understanding under this section at any time by providing to the Secretary concerned a notice of intent to terminate by no later than the date that is 90 days before the date of termination.
Federal broadband permit coordination
The Secretary concerned shall establish a broadband permit streamlining team comprised of qualified staff under subsection (b)(4) in each State or regional office that has been delegated responsibility for issuing permits for broadband projects.
Memorandum of understanding
Not later than 90 days after the date of enactment of this Act, the Secretary concerned, in consultation with the National Conference of State Historic Preservation Officers and the National Tribal Historic Preservation Officers Association, shall enter into a memorandum of understanding to carry out this section with—
the Secretary of Agriculture or of the Interior, as appropriate;
the Director of the Bureau of Indian Affairs; and
the Director of the United States Fish and Wildlife Service.
The purpose of the memorandum of understanding under paragraph (1) is to coordinate and expedite permitting decisions for broadband projects.
State or Tribal participation
The Secretary concerned may request that the Governor of any State or the officer designated by the governing body of the Indian Tribe with one or more broadband projects be a party to the memorandum of understanding under paragraph (1).
Designation of qualified staff
Not later than 30 days after the date of entrance into the memorandum of understanding under paragraph (1), the head of each Federal agency that is a party to the memorandum of understanding (other than the Secretary concerned) may, if the head of the Federal agency determines it to be appropriate, designate to each State or regional office an employee of that Federal agency with expertise in regulatory issues relating to that Federal agency, including, as applicable, particular expertise in—
planning under the Forest and Rangeland Renewable Resources Planning Act of 1974 (16 U.S.C. 1600 et seq.) and planning under the Federal Land Policy Management Act of 1976 (43 U.S.C. 1701 et seq.);
the preparation of analyses under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.); or
consultation and the preparation of biological opinions under section 7 of the Endangered Species Act of 1973 (16 U.S.C. 1536).
Each employee designated under subparagraph (A) shall—
be responsible for any issue relating to any broadband project within the jurisdiction of the State or regional office under the authority of the Federal agency from which the employee is assigned;
participate as part of the team of personnel working on one or more proposed broadband projects, including planning and environmental analyses; and
serve as the designated point of contact with any applicable State or Indian Tribe that assumes any responsibility under section 3(b)(1) relating to any issue described in clause (i).