[Federal Register Volume 85, Number 104 (Friday, May 29, 2020)]
[Rules and Regulations]
[Pages 32294-32296]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-10991]


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DEPARTMENT OF STATE

22 CFR Part 161

[Public Notice: 11070]
RIN 1400-AF02


Environmental Protection: Regulations for Implementation of the 
National Environmental Policy Act (NEPA)

AGENCY: Department of State.

ACTION: Final rule with comments.

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SUMMARY: The U.S. Department of State (Department) is issuing a final 
rule to update the Department's Regulations for Implementation of the 
National Environmental Policy Act (NEPA) to reflect a recent Executive 
Order that revised the process for the development and issuance of 
Presidential permits for certain facilities and land transportation 
crossings at the international boundaries of the United States.

DATES: This rule is effective July 13, 2020. Comments will be received 
until June 29, 2020.

ADDRESSES: Comments may be submitted at https://www.regulations.gov by 
searching for Docket Number DOS-2020-0013. Comments may also be 
submitted to M. Ross Alliston, NEPA Coordinator, at 
[email protected], or at Office of Environmental Quality and 
Transboundary Issues, U.S. Department of State, 2201 C Street NW, Room 
2726, Washington, DC 20520.

FOR FURTHER INFORMATION CONTACT: M. Ross Alliston, NEPA Coordinator, 
Office of Environmental Quality and Transboundary Issues, U.S. 
Department of State. 2201 C Street NW, Room 2726, Washington, DC 20520. 
(202) 647-4828, [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    The President of the United States has authority to require permits 
for cross-border infrastructure based on his Constitutional powers over 
foreign affairs and national security vested by Article II of the 
Constitution. In Executive Orders 11423 and 13337, acting pursuant to 
the Constitution and the laws of the United States, including Section 
301 of Title 3 of the United States Code, the President provided the 
Secretary of State the authority to receive applications for, and to 
issue or deny, Presidential permits for certain types of border 
facilities.
    In 1968, under Executive Order 11423, President Lyndon B. Johnson 
designated and empowered the Secretary of State to receive applications 
and to issue permits for certain types of cross-border infrastructure. 
Executive Order 11423 also provided that, in the event of certain 
interagency disagreements, the President would make the final decision 
to issue or deny a permit. The types of infrastructure included: (i) 
Pipelines, conveyor belts, and similar facilities for the exportation 
or importation of petroleum, petroleum products, coal, minerals, or 
other products to or from a foreign country; (ii) facilities for the 
exportation or importation of water or sewage to or from a foreign 
country; (iii) monorails, aerial cable cars, aerial tramways and 
similar facilities for the transportation of persons or things, or 
both, to or from a foreign country; and (iv) bridges, to the extent 
that congressional authorization is not required.
    In 2004, under Executive Order 13337, President George W. Bush 
revised the process to be followed by the Secretary of State in issuing 
Presidential permits for facilities for the exportation or importation 
of petroleum, petroleum products, coal, or other fuels while 
maintaining that, in the event of certain interagency disagreements, 
the President would make the final decision to issue or deny a permit. 
Because determinations regarding approval or denials of Presidential 
permits are Presidential actions, the requirements of NEPA, the 
National Historic Preservation Act of 1966, the Endangered Species Act 
of 1973, the Administrative Procedure Act, and other similar laws and 
regulations that do not apply to Presidential actions were inapplicable 
to such determinations, including determinations that were made by the 
Secretary of State or his delegate pursuant to Executive Order 11423 
and 13337. However, as a matter of policy the Department of State 
conducted environmental reviews of Presidential permit applications 
consistent with NEPA in the course of preparing determinations pursuant 
to those Executive Orders.
    On April 10, 2019, President Donald J. Trump issued Executive Order 
13867,

[[Page 32295]]

entitled ``Issuance of Permits With Respect to Facilities and Land 
Transportation Crossings at the International Boundaries of the United 
States,'' 84 FR 15491, April 15, 2019, which revoked Executive Orders 
11423 and 13337 and thus revoked the authority of the Secretary of 
State to issue or deny Presidential permits that had been granted by 
those Executive Orders. Section 1 of Executive Order 13867 provides 
that the purpose of the order is to promote cross-border infrastructure 
and facilitate the expeditious delivery of advice to the President 
regarding Presidential permitting decisions, which are an exercise of 
the President's foreign affairs authority. U.S. Constitution, Art. II, 
Sec. 2. While Section 3 of Executive Order 13867 leaves previously 
issued permits undisturbed, Section 2 of the Executive Order revises 
the procedures concerning applications for the issuance or amendment of 
Presidential permits for the construction, connection, operation, or 
maintenance of certain facilities at the international boundaries of 
the United States. Under the revised process, the Secretary of State 
receives applications and provides a recommendation to the President as 
to whether issuance or amendment of a permit would serve the foreign 
policy interests of the United States, but the Secretary does not make 
any decision to issue, deny, or amend a permit. The Secretary's 
recommendations are based on consultation with such other agency heads 
as the President may direct, as well as with domestic or foreign 
government officials as the President may deem necessary. Under Section 
2(i) of Executive Order 13867, any decision to issue, deny, or amend a 
Presidential permit is made solely by the President. The President is 
not a ``federal agency'' to which NEPA applies (40 CFR 1508.12).
    Section 2(j) of Executive Order 13867 instructed the Secretary of 
State, consistent with applicable law, to review the Department of 
State's regulations and to make any appropriate changes to them to 
ensure consistency with that Executive Order by May 29, 2020. Following 
such review, it has been determined that the Department's NEPA 
regulations at 22 CFR part 161 should be amended to reflect Executive 
Order 13867. In particular, the Department's NEPA regulations should be 
updated to remove all references to any permitting authority that has 
been revoked by Executive Order 13867.

II. Purpose of the Regulatory Action

    This rulemaking fulfills the instruction in Executive Order 13867 
that the Secretary of State review the Department of State's 
regulations and make any appropriate changes to them to ensure 
consistency with that Executive Order. This final rule updates 22 CFR 
part 161 to reflect the fact that the Secretary of State no longer has 
the authority to issue Presidential permits for cross-border 
infrastructure projects. The current regulations refer to authority 
previously exercised under Executive Orders 11423 and 13337 at 
Sec. Sec.  161.7(c)(1) and 161.10. Because the authority referred to in 
these two places has been revoked, they are removed from Part 161.
    Finally, since part 161 was last updated in 1980, this rule 
provides several nonsubstantive administrative updates.

III. Regulatory Analyses

Administrative Procedure Act (APA)

    This rule is exempt from notice and comment rulemaking because it 
relates to a foreign affairs function of the United States. See 5 
U.S.C. 553(a)(1). Specifically, the President's authority to grant or 
deny a border-crossing permit for international infrastructure is 
rooted in the President's inherent constitutional authority over 
foreign affairs as well as his authority as Commander-in-Chief. 
Presidents have exercised that inherent authority to authorize border 
crossing facilities since the Grant Administration. See Hackworth, 
Digest of International Law, Vol. IV, Sec.  350 (1942).
    In exercise of this constitutional foreign affairs authority, the 
President had authorized the Secretary of State, pursuant to Executive 
Orders 11423 and 13337, to receive applications and to issue or deny 
Presidential permits for certain types of cross-border facilities. 
Exercising the same authority, the President acted, in Executive Order 
13867, to revoke the authority of the Secretary of State and to reserve 
to himself the cross-border permitting decisions described therein.
    Notwithstanding the Department's determination that this rulemaking 
is exempt from notice and comment and without prejudice to this 
determination, the Department will accept public comment for 30 days 
after the date of publication.

Regulatory Flexibility Act

    Because this final rule is exempt from the rulemaking provisions of 
5 U.S.C. 553, it does not require analysis under the Regulatory 
Flexibility Act (RFA). Notwithstanding the inapplicability of the RFA, 
the Department has determined and hereby certifies that this final rule 
will not have a significant economic impact on a substantial number of 
small entities, given that the final rule has the potential to have an 
economic impact only on entities large enough to propose, finance, and 
construct cross-border infrastructure projects. Moreover, even if the 
final rule did have an economic impact on small entities, it would not 
affect a substantial number of them, because in no year has the 
Department ever received more than ten applications concerning cross-
border infrastructure projects.

Unfunded Mandates Reform Act of 1995

    This amendment does not involve a mandate that will result in the 
expenditure by State, local, and tribal governments, in the aggregate, 
or by the private sector, of $100 million or more in any year, and it 
will not significantly or uniquely affect small governments. Therefore, 
no actions were deemed necessary under the provisions of the Unfunded 
Mandates Reform Act of 1995.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rulemaking has been found not to be a major rule within the 
meaning of the Small Business Regulatory Enforcement Fairness Act of 
1996.

Executive Orders 12866 and 13563, Regulatory Planning

    Executive Orders 12866 and 13563 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributed impacts, and equity). The 
Department believes that the benefits of this rulemaking outweigh any 
cost to the public, which is anticipated to be minimal. This rule has 
been designated as a significant rulemaking under Executive Order 
12866.

Executive Order 13771, Reducing Regulation and Controlling Regulatory 
Costs

    This rule is not subject to the requirements of E.O. 13771 because 
this rule results in no more than de minimis costs.

Executive Order 12988, Civil Justice Reform

    The Department of State reviewed this rulemaking in light of 
sections 3(a) and 3(b)(2) of Executive Order 12988 to eliminate 
ambiguity, minimize litigation, establish clear legal

[[Page 32296]]

standards, and reduce burden. No retroactive effect will be given to 
this rule, and no administrative appeal procedures must be exhausted 
before an action against the Department may be initiated.

Executive Order 12372, Intergovernmental Review of Federal Programs

    This rule is not subject to Executive Order 12372. This rule 
updates the Department's NEPA regulations and does not implicate 
provision of non-Federal funds by State and local governments. 
Similarly, the Department's NEPA regulations do not implicate Federal 
financial assistance or direct Federal development within the scope of 
Executive Order 12372.

National Environmental Policy Act

    In this final rule, the Department proposes to implement the 
Presidential directive in Section 2(j) of Executive Order 13867 to 
bring the Department of State's regulations into conformity with 
Executive Order 13867. The Council on Environmental Quality (CEQ) does 
not direct agencies to prepare a NEPA analysis before establishing 
agency NEPA procedures as required by the CEQ regulations for 
implementing the procedural provisions of NEPA pursuant to 40 CFR 
1505.1 and 1507.3. The determination that establishing agency NEPA 
procedures does not require NEPA analysis and documentation has been 
upheld in Heartwood, Inc. v. U.S. Forest Service, 73 F. Supp. 2d 962, 
972-73 (S.D. Ill. 1999), aff'd, 230 F. 3d 947, 954-55 (7th Cir. 2000). 
Moreover, the Department of State has no discretion to deviate from the 
presidential instructions set forth in Executive Order 13867, and 
nondiscretionary actions are not subject to NEPA analytical 
requirements. Department of Transportation v. Public Citizen, 541 U.S. 
752, 756, 770 (2004).

Executive Order 13132, Federalism

    The policies contained in this final rule do not have any 
substantial direct effect on states, on the relationship between the 
National Government and the states, or on the distribution of power and 
responsibilities among the various levels of government. Nor does this 
final rule impose substantial direct compliance costs on state and 
local governments. Therefore, consultation with the states is not 
required.

Executive Order 13175, Consultation and Coordination with Indian Tribal 
Governments

    The Department has determined that this rulemaking will not have 
tribal implications, will not impose substantial direct compliance 
costs on Indian tribal governments, and will not preempt tribal law. 
Accordingly, Executive Order 13175 does not apply to this rulemaking.

Paperwork Reduction Act

    The Department has determined that this rulemaking does not create 
or revise any information collection that would require approval under 
the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35).

List of Subjects in 22 CFR Part 161

    Environmental impact statements.

    Accordingly, for the reasons set forth above, title 22, chapter I, 
subtitle Q, part 161 is amended as follows:

PART 161--REGULATIONS FOR IMPLEMENTATION OF THE NATIONAL 
ENVIRONMENTAL POLICY ACT (NEPA)

0
1. The authority citation for part 161 is revised to read as follows:

    Authority: 22 U.S.C. 2651a and 2656; 42 U.S.C. 4321 et seq.; 
E.O. 11514, 34 FR 4247, 3 CFR, 1966-1970, Comp., p. 902, as amended 
by E.O. 11991, 42 FR 26927, 3 CFR, 1977 Comp., p. 123; E.O. 13867, 
84 FR 15491.


0
2. In part 161, remove the words ``Office of Environment and Health'' 
and add in their place the words ``Office of Environmental Quality and 
Transboundary Issues'' wherever they occur.


Sec.  161.6  [Amended]

0
3. Amend Sec.  161.6in paragraph (a)(2) introductory text by removing 
the words ``Congressional Relations'' and adding in their place the 
words ``Legislative Affairs''.


Sec.  161.7  [Amended]

0
4. Amend Sec.  161.7 by removing and reserving paragraph (c)(1).


Sec.  161.10  [Removed and Reserved]

0
5. Remove and reserve Sec.  161.10.

Zachary A. Parker,
Director, Office of Directives Management, U.S. Department of State.
[FR Doc. 2020-10991 Filed 5-28-20; 8:45 am]
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