Presidential Permits Implementing EO 13337 Last year I briefed you on the Presidential permitting process. This year, I would like to provide you with an update of where we are on implementing Executive Order 13337, which added land border ports of entry to those border-crossing facilities requiring State Department review. Implementing EO 13337

Review Presidential permit review has two aspects: Is a given proposal in the national interest? Purpose and need (trade & transportation, security, etc.) Effect on international relations Does a given proposal meet legal requirements? Environmental reviews (NEPA, ESA, environmental justice, etc.) As you may recall from my presentation last year – and to review the basics in case the finer details are long gone from your memories – let me just outline the basic parameters again for you.

Process EO 11423 delegates Presidential authority to Secretary of State to review applications for permits to build new border crossing facilities. State Department conducts reviews in consultation with other federal agencies, assessing national interest and environmental impact. The reviews are conducted by the country desks, that is, by officers in the Office of Mexican Affairs and the Office of Canadian Affairs, for proposed facilities on the respective borders. We consult with the Environmental Protection Agency, the Department of Transportation, the General Services Administration, by various offices and agencies in the Department of Homeland Security, and others. Some of these consultations are required by the Executive Order and others are just smart.

Process State Department acts as the conduit between the applicant/proponent and the other federal agencies. Department provides opportunity for public to comment through publication in Federal Register. Department notifies foreign government of receipt of application, takes comments.

Outcomes State Department makes a determination of national interest, issues a determination on environmental and related reviews, and recommends for or against issuance of a permit. DHS, DOJ, Treasury, A/G, and DOT have final opportunity to object to issuance of a permit.

Permit Issued Barring any objections by the specified agencies, a permit will issue. The permit will contain certain conditions regarding construction, operation, maintenance, and control of the new facility. State Department will communicate final decision to the affected foreign government.

Purpose of EO 13337 Land border ports of entry are crucial to securing our borders and facilitating legitimate trade and travel. In a post-9/11 world, including land border ports of entry in the Presidential permit “world” will ensure full federal oversight of these crucial sites. Now we come to the matter of requiring Presidential permits for land border ports of entry. The change to the Executive Order governing Presidential permits (EO 11423) was made by EO 13337, which was signed by President Bush on April 30, 2004.

Purpose of EO 13337 EO 13337 (April 30, 2004) added a requirement for Presidential permits at land border ports of entry. State Department is in final stages of establishing implementation policy. Policy will be announced/published when fully cleared and approved. The broad outlines of the expected policy (subject to further internal review) are set forth on the next slides. In the months since the new Executive Order was published, we have received a number of inquiries about whether this proposal or that change falls within the new requirement. We have heard from GSA, DHS, and DOT, and are continuing our conversations internally as well. I hesitate to announce we have completed our review, but I think we are getting close.

Policy Plans The requirement to apply for Presidential permits will apply to substantial changes at land border ports of entry. Non-substantial changes will not require Presidential permit review. The permit, when issued, will encompass the entire port of entry, not just the change. A completely new POE would be subject to the Presidential permit requirement. These are the broad outlines of our proposed implementation policy. The big question of course is, “what is a substantial change?” We will be able to rely on guidance developed in our experience with other border crossing facilities. At this point, however, we are taking each request individually and I just can’t get into a lot of “what-if” scenarios at this stage.

Process Agency or entity contemplating changes at a land border POE sends information about the proposal to the relevant country desk. Country officer reviews file in consultation with pertinent agencies and officials. Decision on substantiality is made by a senior State Department official.

Process Department’s decision is communicated to inquiring party by the director of the relevant country office. A determination of non-substantiality does not waive the requirements of any other law or competent legal regulating authority. Even if a Presidential permit is not required because the change is not substantial, the entity proposing the changes must comply with all other relevant laws, including the National Environmental Policy Act.