Inclusion of Expiration Dates in Presidential Permits for International Border Crossings
Federal Register: April 24, 2009 (Volume 74, Number 78)
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
SUMMARY: The Department of State announces, in consultation with relevant Federal agencies, that it will include an expiration date among the conditions it establishes in Presidential permits that it issues for the construction, operation, and maintenance of border crossing facilities. Based on the Department's experience and on interagency consultations, the Department intends to provide for the expiration of permits for vehicular border crossings (i.e., crossings for cars, trucks, buses, and trains) ten (10) years after issuance unless the permittee notifies the Department within that timeframe that construction has begun, and for the expiration of permits for all other border crossing facilities (e.g., pipelines, conveyor belts, pedestrian crossings, etc.) five (5) years after issuance unless the permittee notifies the Department within that timeframe that construction has begun. The Department believes that this provision provides sufficient time for viable projects to move forward while preventing unexecuted permits from creating needless uncertainty and/or hindering the development of worthy projects that would better serve the national interest.
FOR FURTHER INFORMATION CONTACT: Mr. Daniel Darrach, U.S.-Mexico Border Affairs Coordinator, via e-mail at WHA-BorderAffairs@state.gov; by phone at 202-647-9894; or by mail at Office of Mexican Affairs--Room 3909, Department of State, 2201 C St., NW., Washington, DC 20520. Information about Presidential permits is available at http://
SUPPLEMENTARY INFORMATION: Executive Order (EO) 11423 of August 16, 1968, as amended, authorizes the Secretary of State to issue Presidential permits for the construction, connection, operation, and maintenance of facilities crossing the international borders of the United States, including, but not limited to, bridges and pipelines connecting the United States with Canada or Mexico. EO 13337, dated April 30, 2004, amended EO 11423, inter alia, by expanding the Presidential permit program to include at-grade land border crossings. In order to issue a Presidential permit, the Secretary or her delegate must find that a border crossing is in the U.S. national interest. Within the context of appropriate border security, safety, health, and environmental requirements, it is in the U.S. national interest to facilitate the efficient movement of legitimate goods and travelers across U.S. borders.
Since 1968, the Department has issued 21 Presidential permits for non-pipeline border crossings on the U.S.-Mexico border and one for the U.S.-Canada border. Of the 21 U.S.-Mexican border projects that have received permits, most began construction within two to five years. One permitted project took 16 years to be built, one is under construction nearly 30 years after receiving a permit, and three are not likely to be built although they have had permits more than 10 years (one of these permits is more than 30 years old). These permits were issued to the City of Mission, Texas (1978), the Union Pacific Railroad Company (1995), and the Brownsville Navigation District (1997). The Department is currently evaluating whether it should revoke these permits, given the change of circumstances in each of the project areas, development of nearby projects, inaction by the permittees on the proposed projects, and lack of interest in pursuing the corresponding projects in Mexico.
The Presidential permit process, which emphasizes interagency and binational coordination, is designed to ensure that border crossings are built if and only if there is clear local, binational, and interagency support for the project and construction is in the U.S. national interest. It is not in the U.S. national interest to commit scarce government resources (e.g., Customs and Border Protection inspectors, highway improvement funds, etc.) as well as private resources (e.g., land, capital, etc.) for border crossing projects that cannot be successfully implemented within a reasonable time period. The lapse of time may have an impact on the Department's national interest determination. While the Department may find a project to be in the U.S. national interest under a certain set of circumstances in one period, those circumstances may change over time so that five or ten years later, the Department may conclude that the project is no longer in the U.S. national interest or that the relevant agencies should reconsider their recommendations on the Department's initial grant of the permit. Border regions are dynamic and fast-changing and it is important that an outdated permit not be used to build a border crossing on a site that is no longer appropriate for a crossing due to the lapse of time (e.g., due to changes in transportation patterns, development patterns, etc.).
At the same time, the Department recognizes that, by their nature, border crossing projects are complex, time consuming, and subject to political, financial, regulatory, and logistical setbacks. It is unrealistic to expect permits to be implemented instantly and it would be inefficient to set permit expiration dates on such a short timeframe that the relevant agencies are required to review them repeatedly while waiting for construction to begin.
The Department has determined, after consulting with relevant Federal agencies, including the Border Facilitation Working Group, and giving the matter careful consideration, that Presidential permits for vehicular border crossings (for cars, trucks, buses, and trains) will be valid for a period of ten (10) years, while permits for all other border crossing facilities (e.g., pipelines, conveyor belts, pedestrian crossings, etc.) will be valid for a period of five (5) years. In the Department's experience, vehicular border crossings typically involve intricate coordination among numerous agencies and often use Federal financing that is not immediately available, whereas other border crossing projects are generally smaller in scale, less expensive, and dependent on private financing that is more readily available. The Department intends to tie the expiration condition in the permit to the date the permit is signed and expects that this expiration condition will be satisfied by the permittee's notice to the Department that the construction authorized by the permit has begun.
If, after a permit has expired, a permittee continues to believe that the project should be built, the Department would welcome the submission of a revised Presidential permit application that demonstrats current local support, shows that the project is financially feasible, and explains based on updated traffic and other studies why the project continues to be in the U.S. national interest. This new application would generally need to be accompanied by updated environmental review documents, in keeping with the Council on Environmental Quality's guidance that environmental documents more than five years old are considered out of date.
In December 2008, the Department issued to the General Services Administration a Presidential permit containing an expiration clause for the new border crossing to be built at Otay Mesa East, near San Diego, California.
Dated: April 17, 2009. Alex Lee, Director, Office of Mexican Affairs, Department of State.
[FR Doc. E9-9352 Filed 4-23-09; 8:45 am]
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