E7-3123. Bureau of Western Hemisphere Affairs; Office of Canadian Affairs; Interpretative Guidance on Non-Pipeline Elements of E.O. 13337, amending E.O. 11423

AGENCY:

Department of State.

ACTION:

Notice.

SUMMARY:

Executive Order 11423, of August 16, 1968, as amended, authorizes the Secretary of State to issue Presidential permits for the construction of facilities crossing the international borders of the United States, including, but not limited to, bridges and tunnels connecting the United States with Canada or Mexico. Section 2(a) of Executive Order 13337, dated April 30, 2004, amended Executive Order 11423, inter alia, by authorizing the Secretary of State to issue Presidential permits for “border crossings for land transportation, including motor or rail vehicles, to or from a foreign country, whether or not in conjunction with the facilities” to which Executive Order 11423 previously applied. This new language is found in section 1(a)(vi) of Executive Order 11423, as amended.

In seeking to provide guidance to the public concerning its exercise of this new permitting authority, the Department has determined, after giving the matter careful consideration, that the new “land border crossing” language of section 1(a)(vi) will apply to all new crossings of the international border as well as to all substantial modifications of existing crossings of the international border. The Department assembled an interagency working group, consisting of relevant State Department personnel and personnel from other interested Federal agencies, to prepare further guidance on application of this interpretation of section 1(a)(vi) in the future. Over the course of two years, this working group studied how to implement the new and amended Executive Orders in an efficient manner. DOS intends to review this guidance periodically with participants in the interagency working group, and may modify or amend it accordingly. The guidance document and annexes are quoted in full below, under SUPPLEMENTARY INFORMATION.

FOR FURTHER INFORMATION CONTACT:

Mr. Alex Lee, Director, WHA/CAN, U.S. Department of State, Washington, DC 20520. [phone].

SUPPLEMENTARY INFORMATION:

Department of State Interpretative Guidance on Non-Pipeline Elements of E.O. 13337, amending E.O. 11423

Background

Executive Order (E.O.) 11423 (August 16, 1968) specifies that the proper conduct of the foreign relations of the United States requires that executive permission be obtained for the construction and maintenance at the borders of the United States of facilities connecting the United States with a foreign country. By virtue of E.O. 11423, as amended by E.O. 13337 (April 30, 2004), the President has delegated to the U.S. Department of State (DOS) the authority to receive applications for, and to approve and issue, Presidential permits for the construction, connection, operation, or maintenance of certain facilities at the borders of the United States with Canada and Mexico. Pursuant to section 3(b) of E.O. 13337, subsection 2(b) of E.O. 11423 and DOS Notice of Interpretation (Public Notice 5149), 70 FR 45,748 (2005), DOS determined that this authority applied to all new border crossings ^[1] and to all substantial modifications of existing border crossings of the international border.

Substantial modifications are defined as follows:

1. An expansion beyond the existing footprint ^[2] of a land port-of-entry (LPOE) inspection facility,^[3] including its grounds, approaches, and appurtenances, at an existing border crossing in such a way that the modification effectively constitutes a new piercing of the border;

2. a change in ownership of a border crossing that is not encompassed within or provided for under an applicable Presidential permit;

3. a permanent change in authorized conveyance (e.g., commercial traffic, passenger vehicles, pedestrians, etc.) not consistent with (a) What is stated in an applicable Presidential permit, or (b) current operations if a Presidential permit or other operating authority ^[4] has not been established for the facility; or

4. any other modification that would render inaccurate the definition of covered U.S. facilities set forth in an applicable Presidential permit.

The following categories of border crossings are covered by this guidance:

• Bridges
• Tunnels
• Roadway crossings
• Rail crossings
• Bicycle crossings
• Pedestrian crossings
• Cross-border material/commodity conveyors
• Livestock crossings

Note, however, that activities covered by Congressional authorization and not dependent on executive permission under E.O. 11423 and E.O. 13337 are outside the scope of this guidance.

With the assistance of an interagency working group,^[5] DOS has prepared the following guidance to clarify the types of non-pipeline projects under E.O. 11423 and E.O. 13337 that require Presidential permits and to provide guidelines for the preparation of applications for Presidential permits to facilitate an expeditious DOS response.

Presidential Permits: Purpose and Guiding Principles

It is the policy of the United States to work with Canada and Mexico to facilitate safe, fast, and efficient border transit, while ensuring U.S. national security. Within this context, E.O. 13337 was promulgated with the intent to “expedite reviews of permits” and “to provide a systematic method for the evaluation and permitting the construction and maintenance of certain border crossings for land transportation * * * while maintaining safety, public health and environmental protections.” Implicit in DOS stewardship of the Presidential permit process is recognition that border crossings are, by definition, international in nature. Successful implementation of border-crossing projects requires good intra- and inter-governmental communications, and careful consideration of the foreign relations implications of a proposed project.

Taking into account input from appropriate federal agencies and other interested participants, DOS has the responsibility to determine whether a proposed border-crossing project is in the U.S. national interest. Within the context of appropriate border security, safety, health, and environmental requirements, DOS notes that it is generally in the U.S. national interest to facilitate the efficient movement of legitimate goods and travelers across U.S. borders.

DOS and other Federal agencies further recognize that a subset of important improvements and modifications to border crossings may not require Presidential permits, and that it is in the national interest not to impose unnecessary delays and burdens on the sponsors of such improvements.

Project Sponsor

A project sponsor is an entity that has ownership, jurisdiction, custody, or control of the U.S. portion of a border crossing. A Presidential permit will only be issued to such an entity. This may be a federal, state, or local government entity, or a private individual or group.

If at the time of application, a future transfer of ownership is anticipated and the identity of the future owner is known (e.g., from a local port authority to GSA), the applicant should notify DOS in its application of that anticipated change so that provision may be made when the Presidential permit is granted for the transfer of the Presidential permit to the future owner.

Notification

A new border crossing or substantial modification to an existing border crossing must have a new or amended Presidential permit, as applicable. For purposes of determining whether a new or amended permit is required, DOS has identified three categories of projects based on the magnitude and complexity of the proposed change(s) at the border:

• Red (both DOS notification and new or amended Presidential permit required);
• Yellow (DOS notification required and a Presidential permit may be required); and
• Green (neither DOS notification nor Presidential permit required).

DOS should also be notified of changes to all facilities that comprise or feed proximately into the international border crossing (including LPOE inspection facilities or state or federal access or egress roadways) that reasonably could be expected to have a material effect on Canadian or Mexican government operations in their countries.

The Required Project Notification Information (see attached Exhibit A) will be used by the sponsor to notify DOS of either projects or modifications in the “Red” or “Yellow” categories.

A project sponsor may consult with DOS to determine a project's likely classification within these categories before submitting Required Project Notification Information to DOS. Indeed, DOS would encourage such advance consultations and, if there is a question regarding a project's color code status, the sponsor should consult with DOS as early as possible after it establishes project parameters and implementation plans. A description of the three categories follows below.

Red: This category covers all new border crossings and those proposed changes that make a substantial modification to an existing border crossing, including particularly, expansion beyond the existing footprint of an LPOE inspection facility in such a way that the modification effectively constitutes a new piercing of the border. The addition of lanes to an existing border crossing or the replacement of existing lanes with new lanes is not a substantial modification and falls under the yellow category. In all red category cases, a Presidential permit application must be submitted and approved before construction activities begin. In an emergency situation, the sponsor should contact DOS for case-specific guidance before taking any action. This would not, however, prevent the sponsor from performing or contracting for other project due diligence activities as warranted and at its own risk (e.g., preparation of environmental documentation under the National Environmental Policy Act of 1969, as amended (NEPA); project design; other permit applications; etc.), while DOS is deciding whether to issue the Presidential permit.

A change in ownership of a border crossing or a permanent change in authorized conveyance if not consistent with the previously-issued Presidential permit, will require an amendment to the Presidential permit. When a Presidential permit or operating authority has not been established for a facility, a Presidential permit will be required if a permanent change in authorized conveyance is being sought that is at variance with the current operations.

A substantial modification also could be any modification that renders inaccurate the definition of covered U.S. facilities set forth in an applicable Presidential permit.

Yellow: Yellow category changes include modification of a border crossing that may have a material effect on Canadian or Mexican government operations in their respective country. If, following receipt of the Required Project Notification Information, DOS believes that a Presidential permit is required, or that additional information is required to make such a determination, DOS will respond in writing to the project sponsor within thirty (30) calendar days of receipt of the Required Project Notification Information. In the event that DOS does not approve or disapprove the proposed project within thirty (30) calendar days after confirmed receipt of the Required Project Notification Information, the project sponsor shall give a second written notice to DOS requesting approval. In the event DOS does not approve or disapprove the proposed project within 30 days after such second notice is given, the project sponsor may proceed on the basis that a Presidential permit is not required for the project.

Green: Green category changes are those that are not expected to have a material effect on Canadian or Mexican government operations in their respective country and are not substantial modifications to the border crossing. They include most routine changes at LPOE inspection facilities near the border. Examples include changes made to government offices, inspection equipment, or routing of people and/or vehicles within U.S. border operations.

An illustrative list of activities is attached as Exhibit B to provide guidance to help determine under which category a proposed change falls.

NEPA Requirements

DOS will cooperate with other agencies to fulfill any applicable requirements under NEPA, 42 U.S.C. 4321 et seq.; implementing regulations issued by the Council on Environmental Quality, 40 CFR parts 1500-1508; and DOS implementing regulations, 22 CFR part 161. DOS and other involved federal agencies may have separate and distinct obligations under NEPA. Depending on the project, DOS may serve as the lead agency, a co-lead agency, or a cooperating agency on a project.

General

The guidance contained herein does not relieve the sponsor of the responsibility to inform DOS at the earliest opportunity of any change (policy or otherwise) at the border that could reasonably be expected to affect U.S. relations with Canada or Mexico. The sponsor should notify DOS promptly of all such planned changes, so that DOS will be in a position to facilitate expeditious resolution of any foreign policy issues that may arise in connection with proposed changes.

In furtherance of the proper conduct of the foreign relations of the United States, DOS reserves the right, notwithstanding this guidance, to take whatever steps it deems appropriate in a particular case in the exercise of its border-crossing oversight and coordination responsibilities. DOS intends to review this guidance periodically with participants in the interagency working group, and may modify or amend it accordingly. DOS welcome comments and suggestions from interested stakeholders and members of the public at any time.

Attachments

Exhibit A—Required Project Notification Information

Exhibit B—Project Categories

Exhibit A—U.S. Department of State Required Project Notification Information Regarding Proposed Non-Pipeline Border Crossing Projects

The information outlined in this notification, along with the project sponsor's recommended classification (Yellow—permit may be required—Department of State (DOS) notification required; Red—permit required), will be considered by DOS in determining whether a proposed non-pipeline border crossing project will require a Presidential permit. This information will be used, along with the guidelines established for implementation of E.O. 13337, amending E.O. 11423, to determine the substantiality of any modification of an existing border crossing. DOS, however, reserves the right to require or request additional information necessary to the exercise of its border-crossing oversight and coordination responsibilities.

For applicable projects on the U.S.-Mexico border as well as those on the U.S.-Canada border, e-mail this form to [e-mail]. If e-mail is not feasible, mail to: U.S. Department of State, 2201 C St., NW., Washington, DC 20520 (Attn: WHA/MEX 4258 HST (for projects on the border with Mexico) or WHA/CAN 3917 HST (for projects on the border with Canada), as appropriate).

1. Project Sponsor (Include contact information.)

2. Project Name

3. Project Purpose/Justification

4. Project Coordination (Include a summary of existing and anticipated coordination efforts with federal, state, and/or local agencies, including contact information.)

5. Project Location (Include names of state and county; GPS coordinates, if readily available; maps showing regional location with adjacent land ports of entry, distance from international border, and whether the project is within the three-meter international boundary.)

6. Project Description (Include brief project summary describing scope of work and expected effect on existing border crossing, if applicable. This summary should include any change in the physical capacity, change of authorized conveyance (e.g., commercial to non-commercial), change of ownership, and available drawings.)

7. Project Milestones/Schedule (Include anticipated design/construction dates at a minimum.)

Applicant's Suggested Categorization of the Proposed Project: Please select either “Red” or “Yellow” based upon review of the DOS policy for implementation of E.O. 13337, considering project information as described above. Applicant may provide additional supporting documentation along with this assessment form.

□ Red—DOS notification required and a new or amended Presidential permit is required.

□ Yellow—DOS notification required and a new or amended Presidential permit may be required.

Exhibit B—Project Categories

RED—DOS Notification and a New or Amended Presidential Permit Required

1. All new border crossings.

2. An expansion beyond the existing footprint of an LPOE inspection facility, including its grounds, approaches and appurtenances, at an existing border crossing in such a way that the modification effectively constitutes a new piercing of the border; provided, however, that this does not include the addition of lanes to an existing border crossing, or the replacement of existing lanes with new lanes (see “YELLOW,” below).

3. A change in ownership of a border crossing, when the existing permit does not encompass and/or provide for transfer of the facility to the new owner.

4. A permanent change in the operation of a border crossing that is not consistent with the terms of the existing Presidential permit (e.g., a permanent change in authorized conveyance). When a Presidential permit or operating authority has not been established for a facility, a Presidential permit will be required if a permanent change in authorized conveyance is being sought that is at variance with the current operations.

5. Any other modification that would render inaccurate the definition of covered U.S. facilities set forth in an applicable Presidential permit.

YELLOW—DOS Notification Required and a New or Amended Presidential Permit May Be Required

Changes to Border Crossing Capacity/Traffic Flow

1. A change in the physical capacity of the border crossing, especially permanent modifications to the border crossing itself (e.g., modification of a bridge, road access, or tunnel; expansion or reduction of traffic lanes).

2. A change in the physical capacity of an LPOE inspection facility, permanent expansion or reduction in the number of entry or exit booths or traffic lanes or other change that has a permanent effect on cross-border traffic flow (including vehicular wait times at an LPOE inspection facility).

3. A change within the three-meter boundary that has a permanent effect on traffic flow but is of a type not addressed explicitly in an existing Presidential permit (e.g., Nexus/SENTRI/FAST lanes).

4. An expansion of roadway infrastructure, or other form of increased traffic capacity within the three-meter boundary but beyond that portion of the existing right-of-way or footprint of an LPOE inspection facility.

5. A change in cross-border traffic caused by construction outside of the three-meter boundary that can be expected to have a material effect on Canadian or Mexican government operations in their respective country.

6. Major construction work having a short-term effect on traffic flow, including closure of traffic lanes for periods greater than one month, or closure of an entire LPOE inspection facility during regular operating hours for any amount of time.

Changes in Border Crossing Operation

7. A permanent change in authorized conveyance, if within the scope of the existing permit (e.g., adding pedestrian traffic or motor vehicle use).

Changes in Maintenance Responsibility

8. A change in the nationality of the party, the type of corporate entity, or the ownership of the entity operating the border-crossing facility.

9. A change in the party asserting operational responsibility or custodial control over a border crossing, if other than the Presidential permit holder.

GREEN—Neither DOS Notification nor Presidential Permit Required

1. Maintenance or repair of an existing bridge, roadway, or tunnel, (other than as described in “Yellow” category), including temporary lane closures (of less than a month).

2. An interior change (renovation and/or repair) to an existing LPOE inspection facility, including any routine repair, alteration, or cyclical maintenance that, individually or collectively, is not expected to have an effect on the border crossing.

3. An exterior change within the existing footprint of an LPOE inspection facility (buildings or paving).

4. An improvement to an exterior enclosure (e.g., painting, new windows, or re-roofing) of an existing LPOE inspection facility.

5. A systems change (e.g., HVAC, electrical, or fire protection) to an existing LPOE inspection facility.

6. A change in tenant agency space assignments at an existing LPOE inspection facility.

7. A change to a border crossing or an existing LPOE inspection facility that is made at the request or direction of DOS.

8. A change in GSA or DHS operational protocols or procedures that does not have a material effect on the border crossing.

9. Placement of advanced technology (e.g., radiation portal monitors) within an existing LPOE inspection facility, or approaches located within the existing footprint of the right-of-way or an existing LPOE inspection facility.

This determination will be published in the Federal Register.

Dated: February 5, 2007.

R. Nicholas Burns,

Under Secretary for Political Affairs, Department of State.

Footnotes

1.  Border crossing: the physical transportation facility that pierces the international boundary line. The crossing can be a bridge, tunnel, railroad, conveyor belt, or an at-grade roadway, etc. (See the list in the main text below for categories of border crossings covered by this guidance.) Border crossings, generally, connect a United States Land Port of Entry inspection facility (see below) to that of Canada or Mexico.

2.  Footprint: the area encompassing the crossing and the LPOE inspection facility.

3.  LPOE inspection facility: the federally-controlled compound (land, buildings, access roads, parking areas) at which travelers enter/exit the United States.

4.  4 Operating Authority: the legal authority for establishing the border crossing (e.g., legislation, Presidential permit, etc.).

5.  The interagency working group comprises representatives of the Departments of State, Homeland Security (DHS), and Transportation (DOT), as well as the General Services Administration (GSA).