Environmental Protection: Regulations for Implementation of the National Environmental Policy Act (NEPA)
| Published date | 29 May 2020 |
| Citation | 85 FR 32294 |
| Record Number | 2020-10991 |
| Section | Rules and Regulations |
| Court | State Department |
Federal Register, Volume 85 Issue 104 (Friday, May 29, 2020)
[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.
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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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