32 CFR Ch. I (7–1–20 Edition) § 187.4

SUBCHAPTER L—ENVIRONMENT

PART 187—ENVIRONMENTAL EF- the Military Departments, the Organi- FECTS ABROAD OF MAJOR DE- zation of the Joint Chiefs of Staff, the PARTMENT OF DEFENSE AC- Unified and Specified Commands, and the Defense Agencies (hereafter re- TIONS ferred to as ‘‘DoD components’’).

Sec. § 187.3 Definitions. 187.1 Purpose. 187.2 Applicability. (a) Environment means the natural 187.3 Definitions. and physical environment, and it ex- 187.4 Policy. cludes social, economic, and other en- 187.5 Responsibilities. vironments. Social and economic ef- 187.6 Information requirements. fects do not give rise to any require- ENCLOSURE 1 TO PART 187—REQUIREMENTS ments under this part. FOR ENVIRONMENTAL CONSIDERATIONS— (b) Federal Action means an action GLOBAL COMMONS that is implemented or funded directly ENCLOSURE 2 TO PART 187—REQUIREMENTS by the United States Government. It FOR ENVIRONMENTAL CONSIDERATIONS— FOREIGN NATIONS AND PROTECTED GLOBAL does not include actions in which the RESOURCES United States participates in an advi- sory, information-gathering, represen- AUTHORITY: Title 10 U.S.C. 131. tational, or diplomatic capacity but SOURCE: 44 FR 21786, Apr. 14, 1979, unless does not implement or fund the action; otherwise noted. Redesignated at 56 FR 64481, actions taken by a foreign government Dec. 10, 1991. or in a foreign country in which the § 187.1 Purpose. United States is a beneficiary of the action, but does not implement or fund Executive Order 12114 provides the the action; or actions in which foreign exclusive and complete requirement for governments use funds derived indi- taking account of considerations with rectly from United States funding. respect to actions that do significant (c) Foreign Nation means any geo- harm to the environment of places out- graphic area (land, water, and airspace) side the United States. This part pro- that is under the jurisdiction of one or vides policy and procedures to enable more foreign governments; any area Department of Defense (DoD) officials under military occupation by the to be informed and take account of en- United States alone or jointly with any vironmental considerations when au- other foreign government; and any thorizing or approving certain major area that is the responsibility of an Federal actions that do significant international organization of govern- harm to the environment of places out- ments. ‘‘Foreign nation’’ includes con- side the United States. Its sole objec- tiguous zones and fisheries zones of for- tive is to establish internal procedures eign nations. ‘‘Foreign government’’ in to achieve this purpose, and nothing in this context includes governments re- it shall be construed to create a cause gardless of whether recognized by the of action. Guidance for taking account United States, political factions, and of considerations with respect to the organizations that exercise govern- environment of places within the mental power outside the United United States is set out in 32 CFR part States. 188 (under rev.) That guidance is (d) Global Commons are geographical grounded on legal and policy require- areas that are outside the jurisdiction ments different from those applicable of any nation, and include the oceans to this part. outside territorial limits and Antarc- [44 FR 21786, Apr. 14, 1979. Redesignated and tica. Global commons do not include amended at 56 FR 64481, Dec. 10, 1991] contiguous zones and fisheries zones of foreign nations. § 187.2 Applicability. (e) Major Action means an action of The provisions of this part apply to considerable importance involving sub- the Office of the Secretary of Defense, stantial expenditures of time, money,

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and resources, that affects the environ- foreign governments concerning envi- ment on a large geographic scale or has ronmental agreements and other for- substantial environmental effects on a mal arrangements with foreign govern- more limited geographical area, and ments concerning environmental mat- that is substantially different or a sig- ters under this part. nificant departure from other actions, Informal working-level communica- previously analyzed with respect to en- tions and arrangements are not in- vironmental considerations and ap- cluded in this coordination require- proved, with which the action under ment. Consultation with the Depart- consideration may be associated. De- ment of State also is required in con- ployment of ships, aircraft, or other nection with the utilization of addi- mobile military equipment is not a tional exemptions from this part as major action for purposes of this part. specified in paragraph C.3.b. of Enclo- (f) United States means all States, ter- sure 2. Coordination and consultation ritories, and possessions of the United with the Department of State will be States; and all waters and airspace sub- through the Assistant Secretary of De- ject to the territorial jurisdiction of fense (International Security Affairs). the United States. The territories and (e) Executive Order 12114, imple- possessions of the United States in- mented by this part prescribes the ex- clude the Virgin Islands, American clusive and complete procedural meas- Samoa, Wake Island, Midway Island, ures and other actions to be taken by Guam, Palmyra Island, Johnston Atoll, the Department of Defense to further Navassa Island, and Kingman Reef. the purpose of the National Environ- mental Policy Act with respect to the § 187.4 Policy. environment outside the United States. (a) Executive Order 12114 is based on the authority vested in the President § 187.5 Responsibilities. by the Constitution and the laws of the (a) The Assistant Secretary of Defense United States. The objective of the (Manpower, Reserve Affairs, and Logis- Order is to further foreign policy and tics) shall: national security interests while at the (1) Serve as the responsible Depart- same time taking into consideration ment of Defense official for policy mat- important environmental concerns. ters under Executive Order 12114 and (b) The Department of Defense acts this part; with care in the global commons be- (2) Modify or supplement any of the cause the stewardship of these areas is enclosures to this part in a manner shared by all the nations of the world. consistent with the policies set forth in The Department of Defense will take this part; account of environmental consider- (3) Maintain liaison with the Council ations when it acts in the global com- on Environmental Quality with respect mons in accordance with procedures to environmental documents; set out in Enclosure 1 and its attach- (4) Participate in determining wheth- ment. er a recommendation should be made (c) The Department of Defense also to the President that a natural or eco- acts with care within the jurisdiction logical resource of global importance of a foreign nation. Treaty obligations be designated for protection; and and the sovereignty of other nations (5) Consult with the Assistant Sec- must be respected, and restraint must retary of Defense (International Secu- be exercised in applying United States rity Affairs) on significant or sensitive laws within foreign nations unless Con- actions or decisions affecting relations gress has expressly provided otherwise. with another nation. The Department of Defense will take (b) The Assistant Secretary of Defense account of environmental consider- (International Security Affairs) shall: ations in accordance with Enclosure 2 (1) Maintain liaison and conduct con- and its attachments when it acts in a sultations with the Department of foreign nation. State as required under this part; and (d) Foreign policy considerations re- (2) Serve as the responsible official, quire coordination with the Depart- in consultation with the Assistant Sec- ment of State on communications with retary of Defense (Manpower, Reserve

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Affairs, and Logistics), for monitoring scribed by this enclosure are the exclusive the continuing cooperation and the ex- and complete requirement for taking ac- change of information with other na- count of environmental considerations with tions concerning the environment. respect to Department of Defense activities (c) The General Counsel, DoD, shall that affect the global commons. provide advice and assistance con- B. Actions included. The requirements of this enclosure apply only to major Federal cerning the requirements of Executive actions that do significant harm to the envi- Order 12114 and this part. ronment of the global commons. (d) The Secretaries of the Military De- C. Environmental Document Requirements—1. partments, Directors of the Defense Agen- General. When an action is determined to be cies, and Commanders of the Unified and a major Federal action that significantly Specified Commands, for operations harms the environment of the global com- under their jurisdiction, shall: mons, an environmental impact statement, (1) Prepare and consider environ- as described below, will be prepared to en- mental documents when required by able the responsible decision-making official this directive for proposed actions to be informed of pertinent environmental considerations. The statement may be a spe- within their respective DoD component cific statement for the particular action, a (this reporting requirement has been generic statement covering the entire class assigned Report Control Symbol DD- of similar actions, or a program statement. M(AR) 1327 (§ 187.6)); 2. Limitations on Actions. Until the require- (2) Insure that regulations and other ments of this enclosure have been met with major policy issuances are reviewed for respect to actions involving the global com- consistency with Executive Order 12114 mons, no action concerning the proposal and this part; may be taken that does significant harm to (3) Designate a single point-of-con- the environment or limits the choice of rea- tact for matters pertaining to this sonable alternatives. part; and 3. Emergencies. Where emergency circumstances make it necessary to take an ac- (4) Consult with the Assistant Sec- tion that does significant harm to the envi- retary of Defense (International Secu- ronment without meeting the requirements rity Affairs) on significant or sensitive of this enclosure, the DoD component con- actions or decisions affecting relations cerned shall consult with the Assistant Sec- with another nation. retary of Defense (Manpower, Reserve Af- fairs, and Logistics). This includes actions [44 FR 21786, Apr. 14, 1979. Redesignated and that must be taken to promote the national amended at 56 FR 64481, Dec. 10, 1991] defense or security and that cannot be delayed, and actions necessary for the protec- § 187.6 Information requirements. tion of life or property. The documents to be prepared under 4. Combining Documents. Environmental § 187.5(d) and Enclosures 1 and 2, ‘‘Re- documents may be combined with other quirements for Environmental Consid- agency documents to reduce duplication. If erations—Global Commons,’’ and ‘‘Re- an environmental impact statement for a quirements for Environmental Consid- particular action already exists, regardless erations—Foreign Nations and Pro- of what Federal agency prepared it, no new statement is required by this part. tected Global Resources,’’ respectively, 5. Collective Statements. Consideration are assigned Report Control Symbol should be given to the use of generic and pro- DD-M(AR) 1327. gram statements. Generic statements may [44 FR 21786, Apr. 14, 1979. Redesignated and include actions with relevant similarities amended at 56 FR 64481, Dec. 10, 1991] such as common timing, environmental effects, alternatives, methods of implementa- ENCLOSURE 1 TO PART 187—REQUIRE- tion, or subject matter. MENTS FOR ENVIRONMENTAL CONSID- 6. Tiering. Consideration should be given to ERATIONS—GLOBAL COMMONS tiering of environmental impact statements to eliminate repetitive discussions of the A. General. This enclosure implements the same issue and to focus the issues. Tiering requirements of Executive Order 12114 with refers to the coverage of general matters in respect to major Department of Defense ac- broader environmental impact statements, tions that do significant harm to the envi- with succeeding narrower statements or en- ronment of the global commons. The focus is vironmental analyses that incorporate by not the place of the action, but the location reference the general discussion and con- of the environment with respect to which centrate only on the issues specific to the there is significant harm. The actions pre- statement subsequently prepared.

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7. Lead Agency. When one or more other prepared with respect to these effects. The Federal agencies are involved with the De- procedures for considering these effects are partment of Defense in an action or program, set out in Enclosure 2, of this part. a lead agency may be designated to supervise 2. Draft Statement. Environmental impact the preparation of the environmental impact statements will be prepared in two stages statement. In appropriate cases, more than and may be supplemented. The first, or draft one agency may act as joint lead agencies. statement, should be sufficiently complete The following factors should be considered in to permit meaningful analysis and comment. making the lead agency designation: The draft statement will be made available a. The magnitude of agency involvement; to the public, in the United States, for com- b. Which agency or agencies have project ment. The Department of State, the council approval and disapproval authority; on environmental Quality, and other inter- c. The expert capabilities concerning the ested Federal agencies will be informed of environmental effects of the action; the availability of the draft statement and d. The duration of agency involvement; will be afforded an opportunity to comment. and Contacts with foreign governments are dis- e. The sequence of agency involvement. cussed in § 187.4(d) and subsection D.11. of 8. Categorical Exclusions. The Department this enclosure. of Defense may provide categorical exclu- 3. Final statement. Final statements will sions for actions that normally do not, indi- consider, either individually or collectively, vidually or cumulatively, do significant substantive comments received on the draft harm to the environment. If an action is cov- statement. The final statement will be made ered by a categorical exclusion no environ- available to the public in the United States. mental assessment or environmental impact 4. Supplemental statement. Supplements to statement is required. Categorical exclusions the draft or final statement should be used will be established by the Assistant Sec- when substantial changes to the proposed ac- retary of Defense (Manpower, Reserve Af- tion are made relative to the environment of fairs, and Logistics) and will be identified in the global commons or when significant new Attachment 1 to this enclosure, to be enti- information or circumstances, relevant to tled, ‘‘Categorical Exclusions—Global com- environmental concerns, bears on the pro- mons. ‘‘DoD components identifying recur- posed action or its environmental effects on ring actions that have been determined, the global commons. Supplemental state- after analysis, not to do significant harm to ments will be circulated for comment as in the environment should submit rec- subsection 2. of this enclosure unless alter- ommendations for cateorical exclusions and native procedures are approved by the As- accompanying justification to the Assistant sistant Secretary of Defense (Manpower, Re- Secretary of Defense (Manpower, Reserve Af- serve Affairs, and Logistics). fairs, and Logistics). 5. Statement content. The statement will in- 9. Environmental Assessments. The purpose clude: A section on consideration of the pur- of an environmental assessment is to assist pose of and need for the proposed action; a DoD components in determining whether an section on the environmental consequences environmental impact statement is required of the proposed action and reasonable alter- for a particular action. The assessment natives; a section that provides a succinct should be brief and concise but should in- description of the environment of the global clude sufficient information on which a de- commons affected by the proposed action termination can be made whether the pro- and reasonable alternatives; and a section posed action is major and Federal, and that analyzes, in comparative form, the envi- whether it significantly harms the environ- ronmental effects on the global commons of ment of the global commons. As a minimum, the proposed action and reasonable alter- the assessment should include consideration natives. of the need for the proposed action and the 6. Incomplete Information. The statement environmental effect of the proposed action. should indicate when relevant information is The environmental assessment will be made missing due to unavailability or scientific available to the public in the United States uncertainty. upon request, but there is no requirement 7. Hearings. Public hearings are not re- that it be distributed for public comment. quired. consideration should be given in ap- D. Environmental Impact Statements. 1. Gen- propriate cases to holding or sponsoring pub- eral. Environmental impact statements will lic hearings. Factors in this consideration be concise and no longer than necessary to include: Foreign relations sensitivities; permit an informed consideration of the en- whether the hearings would be an infringe- vironmental effects of the proposed action ment or create the appearance of infringe- on the global commons and the reasonable ment on the sovereign responsibilities of an- alternatives. If an action requiring an envi- other government; requirements of domestic ronmental impact statement also has effects and foreign governmental confidentiality; on the environment of a foreign nation or on requirements of national security; whether a resource designated as one of global impor- meaningful information could be obtained tance, the statement need not consider or be through hearings; time considerations; and

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requirements for commercial confiden- be through the Assistant Secretary of De- tiality. There is no requirement that all fac- fense (International Security Affairs). tors listed in this section be considered when [44 FR 21786, Apr. 14, 1979. Redesignated and one or more factors indicate that public amended at 56 FR 64481, Dec. 10, 1991] hearings would not produce a substantial net benefit to those responsible for authorizing ENCLOSURE 2 TO PART 187—REQUIRE- or approving the proposed action. MENTS FOR ENVIRONMENTAL CONSID- 8. Decision. Relevant environmental documents developed in accordance with this en- ERATIONS—FOREIGN NATIONS AND closure will accompany the proposal for ac- PROTECTED GLOBAL RESOURCES tion through the review process to enable of- A. General. This enclosure implements the ficials responsible for authorizing or approv- requirements of Executive Order 12114 to pro- ing the proposed action to be informed and vide for procedural and other actions to be to take account of environmental consider- taken to enable officials to be informed of ations. One means of making an appropriate pertinent environmental considerations record with respect to this requirement is for when authorizing or approving certain major the decision-maker to sign and date a copy Department of Defense actions that do sig- of the environmental impact statement indi- nificant harm to the environment of a for- cating that it has been considered in the de- eign nation or to a protected global resource. cision-making process. Other means of mak- B. Actions included. 1. The requirements of ing an appropriate record are also accept- this enclosure apply only to the following ac- able. tions: 9. Timing. No decision on the proposed ac- a. Major Federal actions that significantly tion may be made until the later of 90 days harm the environment of a foreign nation after the draft statement has been made that is not involved in the action. The in- available and notice thereof published in the volvement of the foreign nation may be di- FEDERAL REGISTER, or 30 days after the final rectly by participation with the United statement has been made available and no- States in the action, or it may be in conjunc- tice thereof published in the FEDERAL REG- tion with another participating nation. The ISTER. The 90-day period and the 30-day pe- focus of this category is on the geographical riod may run concurrently. Not less than 45 location of the environmental harm and not days may be allowed for public comment. on the location of the action. The Assistant Secretary of Defense (Man- b. Major Federal actions that are deter- power, Reserve Affairs, and Logistics) may, mined to do significant harm to the environ- upon a showing of probable important ad- ment of a foreign nation because they pro- verse effect on national security or foreign vide to that nation: (1) A product, or involve policy, reduce the 30-day, 45-day, and 90-day a physical project that produces a principal periods. product, emission, or effluent, that is prohib- 10. Classified Information. Environmental ited or strictly regulated by Federal law in the United States because its toxic effects on assessments and impact statements that ad- the environment create a serious public dress classified proposals will be safeguarded health risk; or (2) a physical project that is and classified information will be restricted prohibited or strictly regulated in the United from public dissemination in accordance States by Federal law to protect the environ- with Department of Defense procedures (32 ment against radioactive substances. In- CFR part 159) established for such informa- cluded in the category of ‘‘prohibited or tion under Executive Order 12065. The re- strictly regulated’’ are the following: asbes- quirements of that Executive Order take tos, vinyl chloride, acrylonitrile, precedence over any requirement of disclo- isocyanates, polychlorinated biphenyls, mer- sure in this part. Only unclassified portions cury, beryllium, arsenic, cadmium, and ben- of environmental documents may be dissemi- zene. nated to the public. c. Major Federal actions outside the 11. Foreign Governments. Consideration will United States that significantly harm nat- be given to whether any foreign government ural or ecological resources of global impor- should be informed of the availability of en- tance designated for protection by the Presi- vironmental documents. Communications dent or, in the case of such a resource pro- with foreign governments concerning envi- tected by international agreement binding ronmental agreements and other formal ar- on the United States, designated for protec- rangements with foreign governments con- tion by the Secretary of State. Such deter- cerning environmental matters under this minations by the President or the Secretary part will be coordinated with the Depart- of State to be listed in Attachment 1 to this ment of State. Informal, working-level com- enclosure, entitled, ‘‘Protected Global Re- munications and arrangements are not in- sources’’. cluded in this coordination requirement. Co- 2. The actions prescribed by this enclosure ordination with the Department of State will are the exclusive and complete requirement

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for taking account of environmental consid- general exemptions established for all agen- erations with respect to Federal actions that cies by Executive Order 12114: do significant harm to the environment of (1) Actions that the DoD component con- foreign nations and protected global re- cerned determines do not do significant sources as described in subsection B.1., of harm to the environment outside the United this enclosure. No action is required under States or to a designated resource of global this enclosure with respect to Federal ac- importance. tions that affect only the environment of a (2) Actions taken by the President. These participating or otherwise involved foreign include: Signing bills into law; signing trea- nation and that do not involve providing ties and other international agreements; the products or physical projects producing prin- promulgation of Executive Orders; Presi- cipal products, emissions, or effluents that dential proclamations; and the issuance of are prohibited or strictly regulated by Fed- Presidental decisions, instructions, and eral law in the United States, or resources of memoranda. This includes actions taken global importance that have been designated within the Department of Defense to prepare for protection. or assist in preparing recommendations, ad- C. Environmental Document Requirements. vice, or information for the President in con- 1. General. a. There are two types of envi- nection with one of these actions by the ronmental documents officials shall use in President. It does not include actions taken taking account of environmental consider- within the Department of Defense to imple- ations for actions covered by this enclosure: ment or carry out these instruments and (1) Environmental studies—bilateral or issuances after they are promulgated by the multilateral environmental studies, relevant President. or related to the proposed action, by the (3) Actions taken by or pursuant to the di- rection of the President or a cabinet officer United States and one or more foreign na- in the course of armed conflict. The term tions or by an international body or organi- ‘‘armed conflict’’ refers to: hostilities for zation in which the United States is a mem- which Congress has declared war or enacted ber or participant; and a specific authorization for the use of armed (2) Environmental reviews—concise re- forces; hostilities or situations for which a views of the environmental issues involved report is prescribed by section 4(a)(1) of the that are prepared unilaterally by the United War Powers Resolution, 50 U.S.C.A. 1543(a)(1) States. (Supp. 1978); and other actions by the armed b. This section identifies the procedures for forces that involve defensive use or introduc- the preparation of environmental studies or tion of weapons in situations where hos- reviews when required by this enclosure and tilities occur or are expected. This exemp- the exceptions from the requirement to pre- tion applies as long as the armed conflict pare environmental studies or reviews. If an continues. environmental document already exists for a (4) Actions taken by or pursuant to the di- particular action, regardless of what Federal rection of the President or a cabinet officer agency prepared it, no new document is re- when the national security or national inter- quired by this enclosure. est is involved. The determination that the 2. Lead Agency. When one or more other national security or national interest is in- Federal agencies are involved with the De- volved in actions by the Department of De- partment of Defense in an action or program, fense must be made in writing by the Assist- a lead agency may be designated to supervise ant Secretary of Defense (Manpower, Reserve the preparation of environmental docu- Affairs, and Logistics). mentation. In appropriate cases, more than (5) The activities of the intelligence com- one agency may act as joint lead agencies. ponents utilized by the Secretary of Defense The following factors should be considered in under Executive Order 12036, 43 FR 3674 making the lead agency designation: (1978). These components include the Defense a. The magnitude of agency involvement; Intelligence Agency, the National Security b. Which agency or agencies have project Agency, the offices for the collection of spe- approval and disapproval authority; cialized intelligence through reconnaissance c. The expert capabilities concerning the programs, the Army Office of the Assistant environmental effects of the action; Chief of Staff for Intelligence, the Office of d. The duration of agency involvement; Naval Intelligence, and the Air Force Office and of the Assistant Chief of Staff for Intel- e. The sequence of agency involvement. ligence. 3. Exemptions. There are general exemp- (6) The decisions and actions of the Office tions from the requirements of this enclo- of the Assistant Secretary of Defense (Inter- sure provided by Executive Order 12114, and national Security Affairs), the Defense Secu- the Secretary of Defense has the authority rity Assistance Agency, and the other re- to approve additional exemptions. sponsible offices within DoD components a. General Exemptions. The following ac- with respect to arms transfers to foreign nations are exempt from the procedural and tions. The term ‘‘arms transfers’’ includes other requirements of this enclosure under the grant, loan, lease, exchange, or sale of

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defense articles or defense services to foreign gency exemptions. The requirement to con- governments or international organizations, sult as soon as feasible is not a requirement and the extension or guarantee of credit in of prior consultation. A report of the emer- connection with these transactions. gency action will be made by the DoD com- (7) Votes and other actions in inter- ponent head to the Assistant Secretary of national conferences and organizations. This Defense (Manpower, Reserve Affairs, and Lo- includes all decisions and actions of the gistics), who, with the Assistant Secretary of United States with respect to representation Defense (International Security Affairs), of its interests at international organiza- shall undertake the necessary consultations. tions, and at multilateral conferences, nego- (b) Other Circumstances. National security tiations, and meetings. considerations, exceptional foreign policy re- (8) Disaster and emergency relief actions. quirements, and other special circumstances (9) Actions involving export licenses, ex- not identified in paragraph C.3.a. of this en- port permits, or export approvals, other than closure, may preclude or be inconsistent those relating to nuclear activities. This in- with the preparation of environmental docu- cludes: Advice provided by DoD components mentation. In these circumstances, the head to the Department of State with respect to of the DoD component concerned is author- the issuance of munitions export licenses ized to exempt a particular action from the under section 38 of the Arms Export Control environmental documentation requirements Act, 22 U.S.C. 2778 (1976); advice provided by of this enclosure after obtaining the prior DoD components to the Department of Com- approval of the Assistant Secretary of De- merce with respect to the granting of export fense (Manpower, Reserve Affairs, and Logis- licenses under the Export Administration tics), who, with the Assistant Secretary of Act of 1969, 50 U.S.C. App. 2401–2413 (1970 & Defense (International Security Affairs), Supp. V 1975); and direct exports by the De- shall consult, before approving the exemp- partment of Defense of defense articles and tion, with the Department of State and the services to foreign governments and inter- Council on Environmental Quality. The re- national organizations that are exempt from munitions export licenses under section 38 of quirement for prior consultation is not a re- the Arms Export Control Act, 22 U.S.C. 2778 quirement for prior approval. (1976). The term ‘‘export approvals’’ does not (2) Class Exemptions. Circumstances may mean or include direct loans to finance ex- exist where a class exemption for a group of ports. related actions is more appropriate than a (10) Actions relating to nuclear activities specific exemption. Class exemptions may be and nuclear material, except actions pro- established by the Assistant Secretary of De- viding to a foreign nation a nuclear produc- fense (Manpower, Reserve Affairs, and Logis- tion or utilization facility, as defined in the tics), who, with the Assistant Secretary of Atomic Energy Act of 1954, as amended, or a Defense (International Security Affairs), nuclear waste management facility. shall consult, before approving the exemp- b. Additional Exemptions. The Department tion, with the Department of State and the of Defense is authorized under Executive Council on Environmental Quality. The re- Order 12114 to establish additional exemp- quirement for prior consultation is not a re- tions that apply only to the Department’s quirement for prior approval. Requests for operations. There are two types of additional class exemptions will be submitted by the exemptions: Case-by-case and class. head of the DoD component concerned to the (1) Case-by-Case Exemptions. Exemptions Assistant Secretary of Defense (Manpower, other than those specified above may be re- Reserve Affairs, and Logistics) after coordi- quired because emergencies, national secu- nation with other interested DoD compo- rity considerations, exceptional foreign pol- nents. Notice of the establishment of a class icy requirements, or other special cir- exemption will be issued as Attachment 2 to cumstances preclude or are inconsistent with this enclosure to be entitled, ‘‘Class Exemp- the preparation of environmental docu- tions—Foreign Nations and Protected Global mentation and the taking of other actions Resources.’’ prescribed by this enclosure. The following 4. Categorical Exclusions. The Department procedures apply for approving these exemp- of Defense is authorized by Executive Order tions: 12114 to provide for categorical exclusions. A (a) Emergencies. This category includes ac- categorical exclusion is a category of actions tions that must be taken to promote the na- that normally do not, individually or cumu- tional defense or security and that cannot be latively, do significant harm to the environ- delayed, and actions necessary for the pro- ment. If an action is covered by a categorical tection of life or property. The heads of the exclusion, no environmental document is re- DoD components are authorized to approve quired. Categorical exclusions will be estab- emergency exemptions on a case-by-case lished by the Assistant Secretary of Defense basis. The Department of Defense is required (Manpower, Reserve Affairs, and Logistics), to consult as soon as feasible with the De- and will be identified in Attachment 3 to this partment of State and the Council on Envi- enclosure to be entitled, ‘‘Categorical Exclu- ronmental Quality with respect to emer- sions—Foreign Nations and Protected Global

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Resources.’’ DoD components identifying re- proposed action to be considered in the deci- curring actions that have been determined, sion-making process. The precise content of after analysis, not to do significant harm to each study must be flexible because of such the environment should submit requests for considerations as the sensitivity of obtaining categorical exclusions and accompanying information from foreign governments, the justification to the Assistant Secretary of availability of useful and understandable in- Defense (Manpower, Reserve Affairs, and Lo- formation, and other factors identified under gistics). ‘‘Limitations,’’ (subsection D.6., of this en- D. Environmental studies. 1. General. Envi- closure). The study should, however, include ronmental studies are one of two alternative consideration of the following: types of documents to be used for actions de- a. A general review of the affected environ- scribed by section B. of this enclosure. ment; a. An environmental study is an analysis b. The predicted effect of the action on the of the likely environmental consequences of environment; the action that is to be considered by DoD c. Significant known actions taken by gov- components in the decision-making process. ernmental entities with respect to the pro- It includes a review of the affected environ- posed action to protect or improve the envi- ment, significant actions taken to avoid en- ronment; and vironmental harm or otherwise to better the d. If no actions are being taken to protect environment, and significant environmental or enhance the environment, whether the de- considerations and actions by the other par- cision not to do so was made by the affected ticipating nations, bodies, or organizations. foreign government or international organi- b. An environmental study is a cooperative zation. action and not a unilateral action under- taken by the United States. It may be bilat- 5. Distribution of the Study. Except as pro- eral or multilateral, and it is prepared by the vided under ‘‘Limitations,’’ (subsection D.6., United States in conjunction with one or of this enclosure), and except where classi- more foreign nations, or by an international fied information is involved, environmental body or organization in which the United studies will be made available to the Depart- States is a member or participant. The envi- ment of State, the Council on Environmental ronmental study, because it is prepared as a Quality, other interested Federal agencies, cooperative undertaking, may be best suited and, on request, to the public in the United for use with respect to actions that provide States. Interested foreign governments also strictly regulated or prohibited products or may be informed of the studies, subject to projects to a foreign nation (B.l.b.) and ac- the ‘‘Limitations’’ (subsection D.6., of this tions that affect a protected global resource enclosure) and controls on classified infor- (B.l.c.). mation, and furnished copies of the docu- 2. Department of State Coordination. Com- ments. No distribution is required prior to munications with foreign governments con- the preparation of the final version of the cerning environmental studies and other for- study or prior to taking the action that mal arrangements with foreign governments caused the study to be prepared. concerning environmental matters under 6. Limitations. The requirements with re- this directive will be coordinated with the spect to the preparation, content, and dis- Department of State. Informal, working- tribution of environmental studies in the level communications and arrangements are international context must remain flexible. not included in this coordination require- The specific procedures must be determined ment. Coordination with the Department of on a case-by-case basis and may be modified State will be through the Assistant Sec- where necessary to: retary of Defense (International Security Af- a. Enable the component to act promptly. fairs). Considerations such as national security and 3. Whether to Prepare an Environmental foreign government involvement may re- Study. The judgment whether the action is quire prompt action that must take prece- one that would do significant harm to one of dence in the environmental review process; the environments covered by this enclosure b. Avoid adverse impacts on relations be- normally will be made in consultation with tween the United States and foreign govern- concerned foreign governments or organiza- ments and international organizations; tions. If a negative decision is made, the file c. Avoid infringement or the appearance of will be documented with a record of that de- infringement on the sovereign responsibil- cision and the decision-makers who partici- ities of another government. The collection pated. If a decision is made to prepare a of information and the preparation and dis- study then, except as provided by this enclo- tribution of environmental documentation sure, no action concerning the proposal may for actions in which another nation is in- be taken that would do significant harm to volved, or with respect to the environment the environment until the study has been and resources of another nation, unless done completed and the results considered. with proper regard to the sovereign author- 4. Content of the Study. The document is a ity of that nation, may be viewed by that na- study of the environmental aspects of the tion as an interference in its internal affairs

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and its responsibility to evaluate require- 2. Department of State Coordination. Com- ments with respect to the environment; munications with foreign governments con- d. Ensure consideration of: cerning environmental agreements and other (1) Requirements of governmental con- formal arrangements with foreign govern- fidentiality. This refers to the need to pro- ments concerning environmental matters tect sensitive foreign affairs information and under this enclosure will be coordinated with information received from another govern- the Department of State. Informal working- ment with the understanding that it will be level communications and arrangements are protected from disclosure regardless of its not included in this coordination require- classification; ment. Coordination with the Department of (2) National security requirements. This State will be through the Assistant Sec- refers to the protection of classified informa- retary of Defense (International Security Af- tion and other national security interests; fairs). (3) Availability of meaningful information. 3. Whether to Prepare an Environmental Re- Information on the environment of foreign view. Sufficient information will be gath- nations may be unavailable, incomplete, or ered, to the extent it is reasonably available, not susceptible to meaningful evaluation, to permit an informed judgment as to wheth- particularly where the affected foreign na- er the proposed action would do significant tion is not a participant in the analysis. This harm to the environments covered by this may reduce or change substantially the nor- enclosure. If a negative decision is made, a mal content of the environmental study; record will be made of that decision and its basis. If a decision is made to prepare a re- (4) The extent of the participation of the view, then, except as provided by this enclo- DoD component concerned and its ability to sure, no action concerning the proposal may affect the decision made. The utility of the be taken that would do significant environ- environmental analysis and the need for an mental harm until the review has been com- in-depth review diminishes as DoD’s role and pleted. control over the decision lessens; and 4. Content of the Review. An environmental (5) International commercial, commercial review is a survey of the important environ- confidentiality, competitive, and export pro- mental issues associated with the proposed motion factors. This refers to the require- action that is to be considered by the DoD ment to protect domestic and foreign trade component concerned in the decision-making secrets and confidential business informa- process. It does not include all possible envi- tion from disclosure. Export promotion fac- ronmental issues and it does not include the tors includes the concept of not unneces- detailed evaluation required in an environ- sarily hindering United States exports. mental impact statement under Enclosure 1 7. Classified Information. Classified informa- of this part. There is no foreign government tion will be safeguarded from disclosure in or international organization participation accordance with the Department of Defense in its preparation, and the content therefore procedures (32 CFR 159) established for such may be circumscribed because of the avail- information under Executive Order 12065. ability of information and because of foreign The requirements of that Executive Order relations sensitivities. Other factors affect- take precedence over any requirement of dis- ing the content are identified under ‘‘Limi- closure in this directive. tations,’’ (subsection E.6., of this enclosure). E. Environmental Reviews. 1. General. Envi- To the extent reasonably practical the re- ronmental reviews are the second of the two view should include consideration of the fol- alternative types of documents to be used for lowing: actions covered by section B. of this enclo- a. A statement of the action to be taken sure. including its timetable, physical features, a. An environmental review is a survey of general operating plan, and other similar the important environmental issues in- broad-guage descriptive factors; volved. It includes identification of these b. Identification of the important environ- issues, and a review of what if any consider- mental issues involved; ation has been or can be given to the envi- c. The aspects of the actions taken or to be ronmental aspects by the United States and taken by the DoD component that amelio- by any foreign government involved in tak- rate or minimize the impact on the environ- ing the action. ment; and b. An environmental review is prepared by d. The actions known to have been taken the DoD component concerned either unilat- or to be planned by the government of any erally or in conjunction with another Fed- participating and affected foreign nations eral agency. While an environmental review that will affect environmental consider- may be used for any of the actions identified ations. by section B., it may be uniquely suitable, 5. Distribution. Except as provided under because it is prepared unilaterally by the ‘‘Limitations,’’ (subsection E.6., of this en- United States, to actions that affect the enclosure), and except where classified infor- vironment of a nation not involved in the mation is involved, environmental reviews undertaking (B.l.a.). will be made available to the Department of

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State, the Council on Environmental Qual- motion factors. This refers to the require- ity, other interested Federal agencies, and, ments to protect domestic and foreign trade on request, to the public in the United secrets and confidential business informa- States. Interested foreign governments also tion from disclosure. Export promotion fac- may be informed of the reviews and, subject tors includes the concept of not unneces- to the ‘‘Limitations’’ (subsection E.6., of this sarily hindering United States exports. enclosure) and controls on classified infor- 7. Classified Information. Classified informa- mation, will be furnished copies of the docu- tion will be safeguarded from disclosure in ments on request. This provision for docu- accordance with the DoD procedures (32 CFR ment distribution is not a requirement that 159) established for such information under distribution be made prior to taking the ac- Executive Order 12065. The requirements of tion that is the subject of the review. that Executive Order take precedence over 6. Limitations. The requirements with re- any requirement of disclosure in this part. spect to the preparation, content, and distribution of environmental reviews in the international context must remain flexible. PART 188—DOD ENVIRONMENTAL The specific procedures must be determined LABORATORY ACCREDITATION on a case-by-case basis and may be modified where necessary to: PROGRAM (ELAP) a. Enable the component to act promptly. Considerations such as national security and Sec. foreign government involvement may re- 188.1 Purpose. quire prompt action that must take prece- 188.2 Applicability. dence in the environmental review process; 188.3 Definitions. b. Avoid adverse impacts on relations be- 188.4 Policy. tween the United States and foreign governments and international organizations; 188.5 Responsibilities. c. Avoid infringement or the appearance of 188.6 Procedures. infringement on the sovereign responsibil- AUTHORITY: 15 U.S.C. 3701; Pub. L. 106–554, ities of another government. The collection 114 Stat. 2763. of information and the preparation and distribution of environmental documentation SOURCE: 81 FR 80998, Nov. 17, 2016, unless for actions in which another nation is in- otherwise noted. volved or with respect to the environment and resources of another nation, unless done § 188.1 Purpose. with proper regard to the sovereign authority of that nation, may be viewed by that na- This part implements policy, assigns tion as an interference in its internal affairs responsibilities, and provides proce- and its prerogative to evaluate requirements dures to be used by DoD personnel for with respect to the environment; and the operation and management of the d. Ensure consideration of: DoD ELAP. (1) Requirements of governmental confidentiality. This refers to the need to pro- § 188.2 Applicability. tect sensitive foreign affairs information and information received from another govern- This part applies to Office of the Sec- ment with the understanding that it will be retary of Defense, the Military Depart- protected from disclosure regardless of its ments, the Office of the Chairman of classification; the Joint Chiefs of Staff and the Joint (2) National security requirements. This refers to the protection of classified informa- Staff, the Combatant Commands, the tion; Office of the Inspector General of the (3) Availability of meaningful information. Department of Defense, the Defense Information on the environment of foreign Agencies, the DoD Field Activities, and nations may be unavailable, incomplete, or all other organizational entities within not susceptable to meaningful evaluation, the DoD (referred to collectively in and this may reduce or change substantially this part as the ‘‘DoD Components’’). the normal content of the environmental review; (4) The extent of the participation of the § 188.3 Definitions. DoD component concerned and its ability to Unless otherwise noted, these terms affect the decision made. The utility of the and their definitions are for the pur- environmental analysis and the need for an poses of this part. in-depth review diminishes as the role of the Department of Defense and control over the Accreditation. Third-party attestation decision lessens; and conveying formal demonstration of a (5) International commercial, commercial laboratory’s competence to carry out confidentiality, competitive, and export pro- specific tasks.

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