Environmental Protection: Regulations for Implementation of the National Environmental Policy Act (NEPA), 32294-32296 [2020-10991]
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Federal Register / Vol. 85, No. 104 / Friday, May 29, 2020 / Rules and Regulations
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Hampshire Ave., Silver Spring, MD
20993–0002, 1–877–287–1373,
AskCTPRegulations@fda.hhs.gov.
SUPPLEMENTARY INFORMATION: In the
Federal Register of March 18, 2020, the
Food and Drug Administration (FDA or
Agency) issued a final rule establishing
new cigarette health warnings for
cigarette packages and advertisements.
The final rule implements a provision of
the Family Smoking Prevention and
Tobacco Control Act (Tobacco Control
Act) (Pub. L. 111–31) that requires FDA
to issue regulations requiring color
graphics depicting the negative health
consequences of smoking to accompany
new textual warning label statements.
The Tobacco Control Act amends the
Federal Cigarette Labeling and
Advertising Act of 1965 to require each
cigarette package and advertisement to
bear one of the new required warnings.
The final rule specifies the 11 new
textual warning label statements and
accompanying color graphics. Pursuant
to section 201(b) of the Tobacco Control
Act, the rule was published with an
effective date of June 18, 2021, 15
months after the date of publication of
the final rule.
On April 3, 2020, the final rule was
challenged in the U.S. District Court for
the Eastern District of Texas.1 Due to the
COVID–19 pandemic and its impacts,
on May 8, 2020, the court granted a joint
motion to govern proceedings in that
case and postpone the effective date of
the final rule by 120 days.2 The court
ordered that the new effective date of
the final rule is postponed to October
16, 2021. Pursuant to the court order,
any obligation to comply with a
deadline tied to the effective date is
similarly postponed, and those
obligations and deadlines are now tied
to the postponed effective date.
To the extent that 5 U.S.C. 553 applies
to this action, the Agency’s
implementation of this action without
opportunity for public comment,
effective immediately upon publication
today in the Federal Register, is based
on the good cause exception in 5 U.S.C.
553(b)(B). Seeking public comment is
impracticable, unnecessary, and
contrary to the public interest. The 120day postponement of the effective date,
until October 16, 2021, is required by
court order in accordance with the
court’s authority to postpone a rule’s
effective date ‘‘on such conditions as
may be required and to the extent
1 R.J.
Reynolds Tobacco Co. et al. v. United States
Food and Drug Administration et al., No. 6:20–cv–
00176 (E.D. Tex. filed April 3, 2020).
2 R.J. Reynolds Tobacco Co., No. 6:20–cv–00176
(E.D. Tex. May 8, 2020) (order granting joint motion
and establishing schedule), Doc. No. 33.
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necessary to prevent irreparable injury’’
pending judicial review (5 U.S.C. 705).
Seeking prior public comment on this
postponement would have been
impracticable, as well as contrary to the
public interest in the orderly issue and
implementation of regulations.
Dated: May 22, 2020.
Lowell J. Schiller,
Principal Associate Commissioner for Policy.
[FR Doc. 2020–11462 Filed 5–28–20; 8:45 am]
BILLING CODE 4164–01–P
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)
Department of State.
Final rule with comments.
AGENCY:
ACTION:
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
AllistonMR@state.gov, 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,
AllistonMR@state.gov.
SUPPLEMENTARY INFORMATION:
SUMMARY:
I. Background
The President of the United States has
authority to require permits for crossborder infrastructure based on his
Constitutional powers over foreign
affairs and national security vested by
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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,
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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
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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
§§ 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, § 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
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32295
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 crossborder 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
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Federal Register / Vol. 85, No. 104 / Friday, May 29, 2020 / Rules and Regulations
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.
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.
DEPARTMENT OF DEFENSE
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 nonFederal 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.
Paperwork Reduction Act
RIN 0790–AK97
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).
DoD Guidance Documents
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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).
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)
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.
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.
■
§ 161.6
[Amended]
3. Amend § 161.6in paragraph (a)(2)
introductory text by removing the words
‘‘Congressional Relations’’ and adding
in their place the words ‘‘Legislative
Affairs’’.
■
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.
§ 161.7
Executive Order 13175, Consultation
and Coordination with Indian Tribal
Governments
The Department has determined that
this rulemaking will not have tribal
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[Amended]
4. Amend § 161.7 by removing and
reserving paragraph (c)(1).
■
§ 161.10
■
[Removed and Reserved]
5. Remove and reserve § 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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Office of the Secretary
32 CFR Part 339
[Docket ID: DoD–2020–OS–0019]
Office of the Secretary of
Defense, DoD.
ACTION: Final rule.
AGENCY:
This final rule sets forth the
Department of Defense’s (DoD) policies
and processes governing the issuance
and use of guidance documents. By
issuing this final rule, DoD also
responds to the Executive Order titled:
‘‘Promoting the Rule of Law Through
Improved Agency Guidance
Documents,’’ which requires federal
agencies to finalize regulations, or
amend existing regulations as necessary,
to set forth processes and procedures for
issuing guidance documents.
DATES: Effective Date: This final rule is
effective May 29, 2020.
FOR FURTHER INFORMATION CONTACT:
Patricia Toppings, 571–372–0485.
SUPPLEMENTARY INFORMATION: This final
rule codifies the Department’s policies
and procedures regarding guidance
documents. The policies and procedures
in this final rule apply to all nonexempt DoD guidance documents,
which DoD defines in § 339.1. These
procedures require all DoD guidance
documents to receive appropriate
coordination and review. Before
guidance documents are issued, they
must be reviewed to ensure they are
written in plain language and do not
impose any substantive legal
requirements on the public above and
beyond statute or regulation. All
guidance documents must include a
clear and prominent statement
effectively stating that the contents of
the guidance document do not have the
force and effect of law and are not
meant to bind the public in any way,
and the guidance document is intended
only to provide clarity to the public
regarding existing requirements under
the law or agency regulations.
Recognizing the fact that, even though
guidance documents are not legally
binding, they could nevertheless have a
substantial economic impact on
regulated entities that alter their
conduct to conform to the guidance, this
final rule requires a good faith
assessment of the cost impact on the
public of the guidance document.
This final rule also incorporates other
policies and procedures, such as
SUMMARY:
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[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.
-----------------------------------------------------------------------
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]
BILLING CODE 4710-09-P
