II
117th CONGRESS
1st Session
S. 531
IN THE SENATE OF THE UNITED STATES
March 2 (legislative day, March 1), 2021
Ms. Smith introduced the following bill; which was read twice and referred to the Committee on Energy and Natural Resources
A BILL
To provide additional funds for Federal and State facility energy resiliency programs, and for other purposes.
Short title
This Act may be cited as the Open Back Better Act of 2021
.
Facilities energy resiliency
Definitions
In this section:
Covered project
The term covered project
means a building project at an eligible facility that—
increases—
resiliency, including—
public health and safety;
power outages;
natural disasters;
indoor air quality; and
any modifications necessitated by the COVID–19 pandemic;
energy efficiency;
renewable energy; and
grid integration; and
may have combined heat and power and energy storage as project components.
Early childhood education program
The term early childhood education program
has the meaning given the term in section 103 of the Higher Education Act of 1965 (20 U.S.C. 1003).
Elementary school
The term elementary school
has the meaning given the term in section 8101 of the Elementary and Secondary Education Act of 1965 (20 U.S.C. 7801).
Eligible facility
The term eligible facility
means a public facility, as determined by the Secretary, including—
a public school, including an elementary school and a secondary school;
a facility used to operate an early childhood education program;
a local educational agency;
a medical facility;
a local or State government building;
a community facility;
a public safety facility;
a day care center;
an institution of higher education;
a public library; and
a wastewater treatment facility.
Environmental justice community
The term environmental justice community means a community with significant representation of communities of color, low income communities, or Tribal and indigenous communities, that experiences, or is at risk of experiencing, higher or more adverse human health or environmental effects.
Institution of higher education
The term institution of higher education
has the meaning given the term in section 101 of the Higher Education Act of 1965 (20 U.S.C. 1001).
Local educational agency
The term local educational agency
has the meaning given the term in section 8101 of the Elementary and Secondary Education Act of 1965 (20 U.S.C. 7801).
Low income
The term low income, with respect to a household, means an annual household income equal to, or less than, the greater of—
80 percent of the median income of the area in which the household is located, as reported by the Department of Housing and Urban Development; and
200 percent of the Federal poverty line.
Low income community
The term low income community means a census block group in which not less than 30 percent of households are low income.
Secondary school
The term secondary school
has the meaning given the term in section 8101 of the Elementary and Secondary Education Act of 1965 (20 U.S.C. 7801).
Secretary
The term Secretary
means the Secretary of Energy.
State
The term State
has the meaning given the term in section 3 of the Energy Policy and Conservation Act (42 U.S.C. 6202).
State Energy Program
The term State Energy Program
means the State Energy Program established under part D of title III of the Energy Policy and Conservation Act (42 U.S.C. 6321 et seq.).
Tribal organization
In general
The term tribal organization
has the meaning given the term in section 3765 of title 38, United States Code.
Technical amendment
Section 3765(4) of title 38, United States Code, is amended by striking section 4(l) of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450b(l))
and inserting section 4 of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 5304)
.
State programs
Establishment
Not later than 60 days after the date of enactment of this Act, the Secretary shall distribute grants to States under the State Energy Program, in accordance with the allocation formula established under that Program, to implement covered projects.
Use of funds
In general
Subject to subparagraph (B), grant funds under paragraph (1) may be used for technical assistance, project facilitation, and administration.
Technical assistance
A State may use not more than 10 percent of grant funds received under paragraph (1) to provide technical assistance for the development, facilitation, management, oversight, and measurement of results of covered projects implemented using those funds.
Environmental justice and other communities
To support communities adversely impacted by the COVID–19 pandemic, a State shall use not less than 40 percent of grant funds received under paragraph (1) to implement covered projects in environmental justice communities or low income communities.
Private financing
A State receiving a grant under paragraph (1) shall—
to the extent practicable, leverage private financing for cost-effective energy efficiency, renewable energy, resiliency, and other smart-building improvements, such as by entering into an energy service performance contract; but
maintain the use of grant funds to carry out covered projects with more project resiliency, public health, and capital-intensive efficiency and emission reduction components than are typically available through private energy service performance contracts.
Guidance
In carrying out a covered project using grant funds received under paragraph (1), a State shall, to the extent practicable, adhere to guidance developed by the Secretary pursuant to the American Recovery and Reinvestment Act of 2009 (Public Law 111–5; 123 Stat. 115) relating to distribution of funds, if that guidance will speed the distribution of funds under this subsection.
No matching requirement
Notwithstanding any other provision of law, a State receiving a grant under paragraph (1) shall not be required to provide any amount of matching funding.
Report
Not later than 1 year after the date on which grants are distributed under paragraph (1), and each year thereafter until the funds appropriated under paragraph (5) are no longer available, the Secretary shall submit a report on the use of those funds (including in the communities described in paragraph (2)(C)) to—
the Subcommittee on Energy and Water Development of the Committee on Appropriations of the Senate;
the Subcommittee on Energy and Water Development and Related Agencies of the Committee on Appropriations of the House of Representatives;
the Committee on Energy and Natural Resources of the Senate; and
the Committee on Energy and Commerce of the House of Representatives.
Funding
In addition to any amounts made available to the Secretary to carry out the State Energy Program, there is authorized to be appropriated to the Secretary $18,000,000,000 to carry out this subsection, to remain available until September 30, 2026.
Supplement, not supplant
Funds made available under paragraph (5) shall supplement, not supplant, any other funds made available to States for the State Energy Program or the weatherization assistance program established under part A of title IV of the Energy Conservation and Production Act (42 U.S.C. 6861 et seq.).
Federal Energy Management Program
In general
Beginning 60 days after the date of enactment of this Act, the Secretary shall use the funds appropriated under paragraph (4) to provide grants under the AFFECT program under the Federal Energy Management Program of the Department of Energy to implement covered projects.
Private financing
A recipient of a grant under paragraph (1) shall—
to the extent practicable, leverage private financing for cost-effective energy efficiency, renewable energy, resiliency, and other smart-building improvements, such as by entering into an energy service performance contract; but
maintain the use of grant funds to carry out covered projects with more project resiliency, public health, and capital-intensive efficiency and emission reduction components than are typically available through private energy service performance contracts.
Report
Not later than 1 year after the date on which grants are distributed under paragraph (1), and each year thereafter until the funds appropriated under paragraph (4) are no longer available, the Secretary shall submit a report on the use of those funds to—
the Subcommittee on Energy and Water Development of the Committee on Appropriations of the Senate;
the Subcommittee on Energy and Water Development and Related Agencies of the Committee on Appropriations of the House of Representatives;
the Committee on Energy and Natural Resources of the Senate; and
the Committee on Energy and Commerce of the House of Representatives.
Funding
In addition to any amounts made available to the Secretary to carry out the AFFECT program described in paragraph (1), there is authorized to be appropriated to the Secretary $500,000,000 to carry out this subsection, to remain available until September 30, 2026.
Tribal organizations
In general
Not later than 60 days after the date of enactment of this Act, the Secretary, acting through the head of the Office of Indian Energy, shall distribute funds made available under paragraph (3) to tribal organizations to implement covered projects.
Report
Not later than 1 year after the date on which funds are distributed under paragraph (1), and each year thereafter until the funds made available under paragraph (3) are no longer available, the Secretary shall submit a report on the use of those funds to—
the Subcommittee on Energy and Water Development of the Committee on Appropriations of the Senate;
the Subcommittee on Energy and Water Development and Related Agencies of the Committee on Appropriations of the House of Representatives;
the Committee on Energy and Natural Resources of the Senate; and
the Committee on Energy and Commerce of the House of Representatives.
Funding
There is authorized to be appropriated to the Secretary $1,500,000,000 to carry out this subsection, to remain available until September 30, 2026.
Use of American iron, steel, and manufactured goods
In general
Except as provided in paragraph (2), none of the funds made available by or pursuant to this section may be used for a covered project unless all of the iron, steel, and manufactured goods used in the project are produced in the United States.
Exceptions
The requirement under paragraph (1) shall be waived by the head of the relevant Federal department or agency in any case or category of cases in which the head of the relevant Federal department or agency determines that—
adhering to that requirement would be inconsistent with the public interest;
the iron, steel, and manufactured goods needed for the project are not produced in the United States—
in sufficient and reasonably available quantities; and
in a satisfactory quality; or
the inclusion of iron, steel, and relevant manufactured goods produced in the United States would increase the overall cost of the project by more than 25 percent.
Waiver publication
If the head of a Federal department or agency makes a determination under paragraph (2) to waive the requirement under paragraph (1), the head of the Federal department or agency shall publish in the Federal Register a detailed justification for the waiver.
International agreements
This subsection shall be applied in a manner consistent with the obligations of the United States under all applicable international agreements.
Wage rate requirements
In general
Notwithstanding any other provision of law, all laborers and mechanics employed by contractors and subcontractors on projects funded directly or assisted in whole or in part by the Federal Government pursuant to this section shall be paid wages at rates not less than those prevailing on projects of a similar character in the locality, as determined by the Secretary of Labor in accordance with subchapter IV of chapter 31 of title 40, United States Code (commonly known as the Davis-Bacon Act
).
Authority
With respect to the labor standards specified in paragraph (1), the Secretary of Labor shall have the authority and functions set forth in Reorganization Plan Numbered 14 of 1950 (64 Stat. 1267; 5 U.S.C. App.) and section 3145 of title 40, United States Code.
Personnel
In general
To carry out section 2, the Secretary shall hire within the Department of Energy—
not less than 300 full-time employees in the Office of Energy Efficiency and Renewable Energy;
not less than 100 full-time employees, to be distributed among—
the Office of General Counsel;
the Office of Procurement Policy;
the Golden Field Office;
the National Energy Technology Laboratory; and
the Office of the Inspector General; and
not less than 20 full-time employees in the Office of Indian Energy.
Timeline
Not later than 60 days after the date of enactment of this Act, the Secretary shall—
hire all personnel under subsection (a); or
certify that the Secretary is unable to hire all personnel by the date required under this subsection.
Contract hires
In general
If the Secretary makes a certification under subsection (b)(2), the Secretary may hire on a contract basis not more than 50 percent of the personnel required to be hired under subsection (a).
Duration
An individual hired on a contract basis under paragraph (1) shall have an employment term of not more than 1 year.
Authorization of appropriations
There is authorized to be appropriated to the Secretary to carry out this section $84,000,000 for each of fiscal years 2022 through 2032.
Report
Not later than 60 days after the date of enactment of this Act, and annually thereafter for 2 years, the Secretary shall submit a report on progress made in carrying out subsection (a) to—
the Subcommittee on Energy and Water Development of the Committee on Appropriations of the Senate;
the Subcommittee on Energy and Water Development and Related Agencies of the Committee on Appropriations of the House of Representatives;
the Committee on Energy and Natural Resources of the Senate; and
the Committee on Energy and Commerce of the House of Representatives.
