Bureau of Western Hemisphere Affairs; Office of Canadian Affairs; Interpretative Guidance on Non-Pipeline Elements of E.O. 13337, amending E.O. 11423, 8245-8248 [E7-3123]

Agencies

• DEPARTMENT OF STATE

[Federal Register Volume 72, Number 36 (Friday, February 23, 2007)]
[Notices]
[Pages 8245-8248]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-3123]


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DEPARTMENT OF STATE

[Public Notice 5699]


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.

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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

[[Page 8246]]

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. (202) 647-2170.

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

[[Page 8247]]

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

[[Page 8248]]

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 
WHABorder@state.gov. 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.
    [squ] Red--DOS notification required and a new or amended 
Presidential permit is required.
    [squ] 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.
[FR Doc. E7-3123 Filed 2-22-07; 8:45 am]
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