Text of H.R. 3370 (117th): Broadband Permitting Modernization Act (Introduced version)

117th CONGRESS

1st Session

H. R. 3370

IN THE HOUSE OF REPRESENTATIVES

May 20, 2021

Mr. Curtis (for himself, Mr. Westerman, Mr. McKinley, Mr. Upton, Mr. Wittman, and Mr. Armstrong) introduced the following bill; which was referred to the Committee on Natural Resources, and in addition to the Committees on Agriculture, and Energy and Commerce, 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

A BILL

To streamline the broadband permitting process for broadband services, and for other purposes.

This Act may be cited as the Broadband Permitting Modernization Act.

The table of contents for this Act is as follows:

Sec. 1. Short title.

Sec. 2. Table of contents.

Sec. 3. Enhancing Administrative Reviews for Broadband Deployment Act.

Sec. 4. DIGITAL Applications Act.

Sec. 5. Facilitating DIGITAL Applications Act.

Sec. 6. Rural Broadband Permitting Efficiency Act of 2021.

(a)

This section may be cited as the Enhancing Administrative Reviews for Broadband Deployment Act.

(b)

(1)

In this section:

(A)

The term appropriate committees of Congress means—

(i)

the Committee on Energy and Commerce of the House of Representatives;

(ii)

the Committee on Natural Resources of the House of Representatives;

(iii)

the Committee on Commerce, Science, and Transportation of the Senate; and

(iv)

the Committee on Environment and Public Works of the Senate.

(B)

The term communications facility includes—

(i)

any infrastructure, including any transmitting device, tower, or support structure, and any equipment, switch, wiring, cabling, power source, shelter, or cabinet, associated with the licensed or permitted unlicensed wireless or wireline transmission of any writing, sign, signal, data, image, picture, or sound of any kind; and

(ii)

any antenna or apparatus that—

(I)

is designed for the purpose of emitting radio frequency;

(II)

is designed to be operated, or is operating, from a fixed location pursuant to authorization by the Commission or is using a duly authorized device that does not require an individual license; and

(III)

is added to a tower, building, or other structure.

(C)

The term communications site means an area of covered land designated for communications uses.

(D)

The term communications use means the placement and operation of a communications facility.

(E)

The term communications use authorization means an easement, right-of-way, lease, license, or other authorization to locate or modify a communications facility on covered land by the Department concerned for the primary purpose of authorizing the occupancy and use of the covered land for communications use.

(F)

The term covered land means—

(i)

public land administered by the Secretary of the Interior; and

(ii)

National Forest System land.

(G)

The term Department concerned means the Department of the Interior or the Department of Agriculture.

(H)

The term organizational unit means—

(i)

with respect to public land administered by the Secretary of the Interior—

(I)

a State office;

(II)

a district office; or

(III)

a field office; and

(ii)

within the Forest Service—

(I)

a regional office;

(II)

the headquarters;

(III)

a management unit; or

(IV)

a ranger district office.

(I)

The term Secretary concerned means—

(i)

the Secretary of the Interior, with respect to public land; and

(ii)

the Secretary of Agriculture, with respect to National Forest System land.

(2)

Not later than 1 year after the date of enactment of this Act, the Secretary concerned shall submit to the appropriate committees of Congress a report that—

(A)

provides an assessment on programmatic or administrative barriers to reviewing communications use authorizations by the Department concerned or organizational units of the Department concerned;

(B)

provides an assessment whether there are rules or regulations of the Department concerned that could be revised to improve the efficiency of reviewing a communications use authorization;

(C)

describes the process for prioritizing the review of a communications use authorization; and

(D)

provides a plan to ensure adequate staffing throughout organizational units of the Department concerned to review communications use authorizations in a timely manner.

(a)

This section may be cited as the Deploying Infrastructure with Greater Internet Transactions And Legacy Applications Act or the DIGITAL Applications Act.

(b)

(1)

In this section:

(A)

The term appropriate committees of Congress means—

(i)

the Committee on Energy and Commerce of the House of Representatives;

(ii)

the Committee on Natural Resources of the House of Representatives;

(iii)

the Committee on Commerce, Science, and Transportation of the Senate; and

(iv)

the Committee on Environment and Public Works of the Senate.

(B)

The term Assistant Secretary means the Assistant Secretary of Commerce for Communications and Information.

(C)

The term Department concerned means the Department of the Interior or the Department of Agriculture.

(D)

The term Form 299 means the form established under section 6409(b)(2)(A) of the Middle Class Tax Relief and Job Creation Act of 2012 (47 U.S.C. 1455(b)(2)(A)) or any successor form.

(E)

The term Secretary concerned means—

(i)

the Secretary of the Interior, with respect to land administered by such Secretary; and

(ii)

the Secretary of Agriculture, with respect to National Forest System land.

(2)

(A)

Not later than 1 year after the date of enactment of this Act, the Secretary concerned shall establish an online portal for the acceptance, processing, and disposal of a Form 299.

(B)

Not later than 3 business days after the date on which the online portal has been established pursuant to subparagraph (A), the Secretary concerned shall notify the Assistant Secretary of such establishment.

(3)

The Assistant Secretary shall publish on the website of the National Telecommunications and Information Administration a link to each online portal established pursuant to paragraph (1)(A).

(a)

This section may be cited as the Facilitating the Deployment of Infrastructure with Greater Internet Transactions And Legacy Applications Act or the Facilitating DIGITAL Applications Act.

(b)

(1)

In this section:

(A)

The term appropriate committees of Congress means—

(i)

the Committee on Energy and Commerce of the House of Representatives;

(ii)

the Committee on Natural Resources of the House of Representatives;

(iii)

the Committee on Commerce, Science, and Transportation of the Senate; and

(iv)

the Committee on Environment and Public Works of the Senate.

(B)

The term Assistant Secretary means the Assistant Secretary of Commerce for Communications and Information.

(C)

The term communications facility includes—

(i)

(ii)

any antenna or apparatus that—

(I)

is designed for the purpose of emitting radio frequency;

(II)

is designed to be operated, or is operating, from a fixed location pursuant to authorization by the Commission or is using a duly authorized device that does not require an individual license; and

(III)

is added to a tower, building, or other structure.

(D)

The term communications use means the placement and operation of a communications facility.

(E)

(F)

The term covered land means—

(i)

public land administered by the Secretary of the Interior; and

(ii)

National Forest System land.

(G)

The term Department concerned means the Department of the Interior or the Department of Agriculture.

(H)

The term Form 299 means the form established under section 6409(b)(2)(A) of the Middle Class Tax Relief and Job Creation Act of 2012 (47 U.S.C. 1455(b)(2)(A)), or any successor form.

(I)

The term Secretary concerned means—

(i)

the Secretary of the Interior, with respect to land administered by such Secretary; and

(ii)

the Secretary of Agriculture, with respect to National Forest System land.

(2)

(A)

Not later than 90 days after the date of enactment of this section, and every 60 days thereafter until the notification described in subparagraph (B), the Assistant Secretary shall submit to the appropriate committees in Congress a report that—

(i)

describes whether the Department concerned has established an online portal for the acceptance, processing, and disposal of a Form 299; and

(ii)

describes any barrier to the establishment of an online portal for the acceptance, processing, and disposal of a Form 299.

(B)

The Secretary concerned shall notify the Assistant Secretary not later than 3 business days after the Department concerned has established an online portal for the acceptance, processing, and disposal of a Form 299.

(a)

This section may be cited as the Rural Broadband Permitting Efficiency Act of 2021.

(b)

In this section:

(1)

The term 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.

(2)

The term 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.

(3)

The term Indian Lands means—

(A)

any land owned by an Indian Tribe, located within the boundaries of an Indian reservation, pueblo, or rancheria; or

(B)

any land located within the boundaries of an Indian reservation, pueblo, or rancheria, the title to which is held—

(i)

in trust by the United States for the benefit of an Indian Tribe or an individual Indian;

(ii)

by an Indian Tribe or an individual Indian, subject to restriction against alienation under laws of the United States; or

(iii)

by a dependent Indian community.

(4)

The term Indian Tribe means a federally recognized Indian Tribe.

(5)

The term 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.

(6)

The term Secretary concerned means—

(A)

the Secretary of Agriculture (acting through the Chief of the Forest Service), with respect to National Forest System land; and

(B)

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).

(c)

(1)

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.

(2)

(A)

In entering into a memorandum of understanding under this subsection, 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.).

(B)

(i)

A State or Indian Tribe that assumes any responsibility under subparagraph (A) shall be subject to the same procedural and substantive requirements as would apply if the responsibility were carried out by the Secretary concerned.

(ii)

A State or Indian Tribe that assumes any responsibility, including financial responsibility, under subparagraph (A) shall be solely responsible and solely liable for carrying out, in lieu of the Secretary concerned, the responsibilities assumed under that subparagraph until the date on which the program is terminated under paragraph (7).

(iii)

A State or Indian Tribe that assumes any responsibility under subparagraph (A) 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.

(C)

Any responsibility of the Secretary concerned described in subparagraph (A) that is not explicitly assumed by the State or Indian Tribe in the memorandum of understanding shall remain the responsibility of the Secretary concerned.

(3)

A State or Indian Tribe that intends to offer to enter into a memorandum of understanding under this subsection 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.

(4)

Within 90 days of entering into any memorandum of understanding with a State, the Secretary concerned shall initiate consultation with relevant Indian Tribes.

(5)

A memorandum of understanding entered into under this subsection shall—

(A)

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;

(B)

be for a term not to exceed 10 years;

(C)

be in such form as the Secretary concerned may prescribe;

(D)

provide that the State or Indian Tribe—

(i)

agrees to assume all or part of the responsibilities of the Secretary concerned described in paragraph (2)(A);

(ii)

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;

(iii)

certify that State laws and regulations, with respect to States, or Tribal laws and regulations, with respect to Indian Tribes, are in effect that—

(I)

authorize the State or Indian Tribe to take the actions necessary to carry out the responsibilities being assumed; and

(II)

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;

(iv)

agrees to maintain the financial resources necessary to carry out the responsibilities being assumed;

(v)

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;

(vi)

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

(vii)

agrees to send a copy of all authorizing documents to the United States for proper notation and recordkeeping;

(E)

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;

(F)

not be granted to a State on Indian Lands without the consent of the relevant Indian Tribe; and

(G)

not be granted to an Indian Tribe on State lands without the consent of the relevant State.

(6)

Nothing in this subsection permits a State or Indian Tribe to assume—

(A)

any rulemaking authority of the Secretary concerned under any Federal law; and

(B)

Federal Government responsibilities for government-to-government consultation with Indian Tribes.

(7)

(A)

The Secretary concerned may terminate the participation of any State or Indian Tribe in the program established under this subsection if—

(i)

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;

(ii)

the Secretary concerned provides to the State or Indian Tribe—

(I)

notification of the determination of noncompliance; and

(II)

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

(iii)

the State or Indian Tribe, after the notification and period provided under clause (ii), fails to take satisfactory corrective action, as determined by the Secretary concerned.

(B)

A State or Indian Tribe may terminate the participation of the State or Indian Tribe in the program established under this subsection 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.

(C)

A State or an Indian Tribe may terminate a joint memorandum of understanding under this subsection 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.

(d)

(1)

The Secretary concerned shall establish a broadband permit streamlining team comprised of qualified staff under paragraph (2)(D) in each State or regional office that has been delegated responsibility for issuing permits for broadband projects.

(2)

(A)

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 subsection with—

(i)

the Secretary of Agriculture or of the Interior, as appropriate;

(ii)

the Director of the Bureau of Indian Affairs; and

(iii)

the Director of the United States Fish and Wildlife Service.

(B)

The purpose of the memorandum of understanding under subparagraph (A) is to coordinate and expedite permitting decisions for broadband projects.

(C)

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 subparagraph (A).

(D)

(i)

Not later than 30 days after the date of entrance into the memorandum of understanding under subparagraph (A), 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—

(I)

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 and Management Act of 1976 (43 U.S.C. 1701 et seq.);

(II)

the preparation of analyses under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.); or

(III)

consultation and the preparation of biological opinions under section 7 of the Endangered Species Act of 1973 (16 U.S.C. 1536).

(ii)

Each employee designated under clause (i) shall—

(I)

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;

(II)

participate as part of the team of personnel working on one or more proposed broadband projects, including planning and environmental analyses; and

(III)

serve as the designated point of contact with any applicable State or Indian Tribe that assumes any responsibility under subsection (c)(2)(A) relating to any issue described in subclause (A).

H.R. 3370 (117^th): Broadband Permitting Modernization Act

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