PART 161—REGULATIONS FOR IMPLEMENTATION OF THE NATIONAL ENVIRONMENTAL POLICY ACT (NEPA) Authority: National Environmental Policy Act (NEPA), as amended, 42 U.S.C. 4321 et seq.; 22 U.S.C. 2651a and 2656; 42 U.S.C. 4321 et seq.; Source: 45 FR 59554, Sept. 10, 1980, unless otherwise noted. Editorial Note: Nomenclature changes to part 161 appear at 85 FR 32296, July 13, 2020. Subpart A—General § 161.1 Purpose and scope. These Departmental regulations are designed to supplement the CEQ Regulations and provide for the implementation of those provisions identified in § 1507.3(b) of the CEQ Regulations. The CEQ Regulations are incorporated herein by reference. The Department's regulations seek to assure that environmental considerations and values are incorporated into the Department's decisionmaking process and assign responsibility within the Department for assessing the significant environmental effects in the United States of the Department's actions. § 161.2 Policy. It is the policy of the Department of State to use all practicable means, consistent with the Department's statutory authority, available resources and national policy, to: (a) Protect and enhance the quality of the environment; (b) Ensure that environmental amenities and values are appropriately considered in Departmental actions; (c) Integrate planning and environmental review procedures with the Department's decisionmaking process; (d) Invite and facilitate, when appropriate, Federal, State and local governmental authorities and public involvement in decisions which affect the quality of the environment; and (e) Recognize the worldwide and long-range character of environmental concerns and, when consistent with the foreign policy of the United States, lend appropriate support to initiatives, resolutions, and programs designed to maximize international cooperation in anticipating and preventing a decline in the quality of the world environment. § 161.3 Applicability. The provisions of these regulations apply to decisions on all Departmental actions which may affect the quality of the environment within the United States. The Department is establishing separate environmental review procedures under Executive Order 12114 (January 4, 1979) for actions having potential effects on the environment of global commons or areas outside the jurisdiction of any nation, or on the environment of foreign nations. § 161.4 Definitions. Definitions for many terms used in these regulations may be found in section 1508 of the CEQ Regulations. In addition, for the purpose of these regulations, the term: (a) Responsible action officer (b) CEQ Regulations (c) United States (d) Environmental document Subpart B—NEPA and Departmental Decisionmaking § 161.5 Major decision points and timing. (a) The responsible action officer shall ensure compliance with these regulations at the earliest practicable stage of Departmental study, consideration or planning of a proposed major Federal action which could significantly affect the quality of the human environment. To accomplish this the responsible action officer must ensure that data developed during the review process is collected, analyzed and made available for consideration early in planning and decisionmaking when it will be most valuable in formulating, reviewing and deciding upon proposals for Departmental action. (b) Environmental analysis and review of a proposed Departmental action shall be conducted as early as practicable so as to be timely, yet late enough to be relevant to the decisionmaking. (c) Environmental documents should, whenever possible, accompany the principal action memorandum relating to a proposed action. An environmental document required in conjunction with conclusion of an international agreement shall, where possible, be prepared and circulated for review and comment before final negotiations begin. The completed environmental document should thus ordinarily accompany the principal action memorandum or request for authority to negotiate an agreement under the Department's Circular 175 regulation (11 FAM 720). (d) To the maximum extent possible an environmental document should be prepared before the establishment of a final United States position on a proposal. In such cases the document should indicate the alternatives under consideration without specifying a Departmental preference. If the content and dimensions of a proposed action will not be clear until after the conclusion of an international negotiation or if a decision to proceed on an action involving another nation or international organization is required on short notice and before the environmental document can be prepared, the environmental document should be prepared as soon as possible after the conclusion of an agreed text of a treaty or agreement on the proposed action. If the Senate's advice and consent to a treaty with potential significant environmental effects in the United States will be sought, the final environmental impact statement should accompany other decision documentation for ratification. Legislative environmental impact statements on proposed treaties or legislation shall conform to the requirements of § 1506.8 of the CEQ Regulations and must be prepared in time for Congressional hearings and deliberations. (e) Because actions having effects on the United States may to varying degrees be initiated, influenced and conducted by other countries, it is recognized that the preparation of environmental documents for such actions must be adjusted to meet a variety of circumstances. Bearing in mind the degree to which other countries possess information on and the ability to affect the decision under consideration, responsible action officers shall seek at all times to prepare environmental analysis documents as early as feasible in the decisionmaking process. § 161.6 Responsibilities of departmental officials. (a) General. (1) Departmental bureaus. (i) Implementing these regulations and incorporating them into its normal decisionmaking processes; (ii) Identifying actions it intends to initiate which may affect significantly the environment of the United States and employing the environmental evaluation procedures outlined in these regulations to ensure that necessary actions are taken to meet the requirements of applicable laws and regulations; (iii) Coordinating environmental assessment-related activities for which it is responsible with the Office of Environmental Quality and Transboundary Issues in the Bureau of Oceans and International Environmental and Scientific Affairs and supporting and assisting the Office of Environmental Quality and Transboundary Issues in implementing these regulations as required; and (iv) Providing the personnel required to implement these regulations, informing the Office of Environmental Quality and Transboundary Issues and the Office of the Legal Adviser whenever it is anticipated that environmental documents will be prepared under these regulations, and consulting the Office of Environmental Quality and Transboundary Issues and the Office of the Legal Adviser as necessary for guidance and assistance in the preparation of such documents. (2) Bureau of Oceans and International Environmental and Scientific Affairs. (i) Coordinate the formulation, development and revision of Departmental policies and positions on matters pertaining to environmental evaluation and review; (ii) Develop and ensure the implementation of Departmentwide standards, procedures and working relationships for environmental review and compliance with applicable environmental laws and regulations; (iii) Develop, as an integral part of the Department's basic decision processes, procedures to ensure that environmental factors are properly considered in all relevant proposals and decisions; (iv) Monitor these processes to ensure that Departmental procedures are achieving their purposes; (v) Advise, assist and inform Departmental bureaus of the technical and management aspects of environmental analysis, and of the relevant expertise available in and outside the Department; (vi) Establish and maintain working relationships with the Council on Environmental Quality, Environmental Protection Agency, and other federal, State and local governmental agencies concerned with environmental matters; (vii) Represent the Department in working with other government agencies and organizations to formulate, revise and achieve uniform understanding and application of government-wide policies relating to the environment; (viii) Consolidate and transmit to the appropriate parties Departmental comments on environmental impact statements and other environmental reports prepared by other agencies; and (ix) Acquire information for and prepare other Departmental reports on environmental assessment matters. (3) Office of the Legal Adviser. (4) Bureau Environmental Coordinators. (5) Departmental Committee of Environmental Coordinators. (6) Outside contractors. [45 FR 59554, Sept. 10, 1980, as amended at 85 FR 32296, May 29, 2020] § 161.7 Categories of actions. Departmental officers shall review each major Departmental action having a potentially significant effect on the quality of the environment in the United States. The need to prepare formal environmental documents will depend on the scope of the action and the context and intensity of any environmental effects expected if the action is implemented. Departmental actions can generally be grouped into three categories, as follows: (a) Actions normally requiring environmental impact statements. Federal Register. (b) Actions categorically excluded from the requirement to prepare environmental impact statements. (1) Routine conduct of Departmental and overseas political and economic functions, including reporting on political and economic developments, trends and activities, communicating to host governments United States Government views, maintaining contact with foreign officials and individuals, and facilitating trade opportunities abroad and U.S. business expansion in foreign markets; (2) Provision of consular services—visas, passports and citizenship, and special consular services, such as issuing or reviewing passports and visas, taking legal depositions, notarizing absentee ballots and other documents and delivering retirement checks, social security payments and veterans benefits; (3) Conduct of routine administrative functions, such as budget and finance, personnel and general services. This includes routine administrative procurements (e.g., general supplies, negotiating leases for office space or staff housing, ordering supplies and arranging for customs clearances); financial transactions, including salaries, expenses and grants; routine management, formulation and allocation of the Department's budget at all levels (this does not exempt the preparation of environmental documents for proposals included in the Department's budget when required); and personnel actions (e.g., promotions, hirings, and counseling American and host country employees who work for the Department of State); (4) Preparing for and participating in conferences, workshops or meetings for information exchange, data collection or research or study activities; and (5) Document and information exchanges. Even though an action may be categorically excluded from the need for an environmental impact statement, if information developed during the planning for the actions indicates the possibility that the particular action in question may nonetheless cause significant environmental effects, an environmental assessment shall be prepared to evaluate those effects. Based upon the assessment, a determination will be made whether to prepare an environmental impact statement. The Department may designate additional actions for categorical exclusion by publishing a listing of actions proposed for such designation in the Federal Register. (c) Actions normally requiring environmental assessments. (1) [Reserved] (2) Wetlands, floodplains, endangered species and national historical, archeological and recreational sites (see also specific requirements for environmental review and consultation in § 161.11 of these regulations); and (3) Ocean dumping, control of toxic substances, disposal and storage of wastes and radioactive substances. (d) Emergencies and other exceptional circumstances. (1) Actions taken in emergency circumstances and disaster and emergency relief activities as defined in § 1506.11 of the CEQ Regulations (in such circumstances the responsible action officer should consult with the Office of Environmental Quality and Transboundary Issues which shall consult with the Council on Environmental Quality about appropriate alternative arrangements); (2) Mandatory actions required under any treaty or international agreement to which the United States Government is a party, or required by the decisions of international organizations or authorities in which the United States is a member or participant except when the United States has substantial discretion over implementation of such requirements; (3) Payment of contributions, either assessed or voluntary, to any international organization of which the United States is a member pursuant to the obligation of a treaty or other international agreement or which is not for the purpose of carrying out a specifically identifiable action which would affect the environment; and (4) Support for or acquiescence in (by affirmative vote or agreement to consensus) an activity or expenditure of funds by an international organization where the United States has no unilateral right to control such expenditures. [45 FR 59554, Sept. 10, 1980, as amended at 85 FR 32296, May 29, 2020] Subpart C—Environmental Review Procedures § 161.8 General description of the Department's NEPA process. In reviewing proposed actions for potential environmental effects in the United States responsible action officers will follow the procedural steps set forth below. These steps are developed in conjunction with the procedural steps required by the CEQ Regulations which are referenced in the following sections. (a) Preliminary environmental evaluations. (1) Actions normally requiring environmental impact statements; (2) Actions categorically excluded from environmental impact statements; or (3) Actions normally requiring environmental assessments. If the responsible action officer concludes that the proposed action is a major action potentially having significant effects in the United States he should, in cooperation with other appropriate Departmental officials, carry out the steps described in these regulations. If during his review of the location of potential environmental effects or following preparation of an environmental assessment it is determined that the action could affect the environment of the global commons or a foreign nation the officer is responsible for ensuring compliance with the Department's procedures for implementing Executive Order No. 12114 on Environmental Effects Abroad of Major Federal Actions (Foreign Affairs Manual, Volume 2). (b) Environmental Assessment. (c) Finding of no significant impact. (d) Environmental impact statement. (1) Notice of intent to prepare an EIS. Federal Register (2) Scoping procedures. (3) Draft environmental impact statement (DEIS). (4) Final environmental impact statement (FEIS). (5) Record of decision. § 161.9 Specific steps in the Department's NEPA process. (a) Decision whether to prepare an EIS. (1) Review of the categories of actions. (i) Actions normally requiring environmental statements. Federal Register (ii) Actions categorically excluded. (iii) Actions normally requiring environmental assessments. Federal Register. (2) Preparation of environmental assessments. (3) Notice of intent to prepare an EIS. Federal Register (b) Scoping. (c) Cooperation with other agencies. (d) Preparation of draft environmental impact statement. (e) Review of and comment on draft EIS. Federal Register. (f) Public involvement. (2) Interested persons can obtain information on the Department's environmental impact statements and other aspects of the Department's NEPA process by contacting the Director, Office of Environmental Quality and Transboundary Issues , Room 7820, Department of State, Washington, DC 20520 (tel. 202/632-9266). Information pertaining to the NEPA process may be sent to the above address. Federal Register (3) The responsible action officer shall identify those persons, community organizations, environmental interest groups, international organizations or other bodies which may have an interest in or be affected by the proposed Departmental action and who should therefore be involved in the NEPA process. With the assistance of the Office of Environmental Quality and Transboundary Issues, the responsible action shall transmit a list of such persons, groups and organizations to the Office of Environmental Quality and Transboundary Issues at the same time he submits: (i) A recommendation regarding a “Finding of no significant impact”; (ii) A “Notice of intent to prepare an EIS”; (iii) A recommendation on possible public hearings (see § 1506.6(c) of CEQ Regulations); (iv) A draft EIS, or (v) A final EIS. (4) The responsible action officer shall consult with the Office of Environmental Quality and Transboundary Issues and make recommendations regarding the need for public hearings. The Office of Environmental Quality and Transboundary Issues shall, as necessary, review such recommendations with the Office of the Legal Adviser. (g) Preparation of final environmental impact statement. (2) Five copies of the preliminary final environmental impact statement, with attached copies of the comments received and suggested responses, shall be provided to the Office of Environmental Quality and Transboundary Issues. The Office of Environmental Quality and Transboundary Issues
will, as appropriate, obtain additional comments from any other appropriate Departmental bureau or offices and notify the responsible action officer of any further changes required and the number of final statements to be transmitted. The Office of Environmental Quality and Transboundary Issues shall submit five copies of the final statement to the Environmental Protection Agency's Office of Environmental Review. Copies shall also be sent to all parties who commented and to other interested parties in accordance with § 1506.9 of the CEQ Regulations. (3) Each draft and final statement, the supporting documentation, and the “Record of decision” (see § 161.9(h) of these regulations) shall be available for public review and copying at the Office of Environmental Quality and Transboundary Issues (OES/ENH), Room 7820, Department of State, Washington, DC 20520 (tel. 202/632-9267). (h) Record of the decision. (i) Timing of EIS preparation and action decision. (1) Ninety (90) days after publication by EPA of a notice of availability of a Departmental draft EIS. (2) Thirty (30) days after publication by EPA of a notice of availability of a departmental final EIS. (j) Implementing and monitoring the decision. (k) Supplemental environmental impact statements. (l) Programmatic and generic environmental impact statements. (2) A programmatic environmental document shall focus its analysis on the environmental aspects of an entire program rather than on the specific elements of the program. If a programmatic environmental document has already been prepared the responsible action officer should determine whether it adequately deals with the environmental effects of the particular action under review. If the programmatic document adequately reviews the environmental impacts of the action under consideration, then additional environmental documentation is not required under these regulations. In preparing environmental documents on specific actions, Departmental officers shall consider the advisability of modifying or expanding the documents so they may serve as generic or programmatic documents for a broader range of actions. (m) Amendments. Federal Register (n) Modifications. (1) Classified material. (2) Time periods for environmental review. Subpart D—Coordination of Other Requirements of NEPA § 161.10 [Reserved] § 161.11 Environmental review and consultation requirements. In addition to the environmental review requirements of NEPA the Department has other statutory environmental review and consultation requirements. Departmental officials, in cooperation with the Office of Environmental Quality and Transboundary Issues and the Office of the Legal Adviser shall, to the maximum extent possible, conduct environmental review and consultation for these additional requirements concurrently with and integrated with preparation of assessments, and environmental impact statements. The principal additional requirements affecting the Department of State's actions are outlined below. (a) Section 7 of the Endangered Species Act, as amended, 16 U.S.C. 1531 et seq., (b) Section 106 of the National Historic Preservation Act of 1966, as amended, 16 U.S.C. 470(f), requires identification of National Register properties, eligible properties, or properties in the United States which may be eligible for the National Register within the area of the potential impact of a proposed Departmental action. Evaluation of the impact of the action on such properties shall be discussed in draft environmental impact statements and transmitted to the Advisory Council on Historic Preservation for comments. (c) Executive Order 11988 (Floodplains Management) and Executive Order 11990 (Wetlands), requires identification of actions which will occur in or affect a floodplain or wetland (e.g., in areas along the boundary with Canada or Mexico). A comparative evaluation of such actions shall be discussed in draft environmental impact statements and transmitted to the U.S. Water Resources Council for comments. (d) Fish and Wildlife Coordination Act, 16 U.S.C. 661 et seq. (e) Section 309 of the Clean Air Act of 1955, as amended, 42 U.S.C. 7609. (f) Clean Water Act of 1977, 33 U.S.C. 1251 et seq. (g) Coastal Zone Management Act of 1972, as amended, 16 U.S.C. 1451 et seq. (h) Marine Protection, Research and Sanctuaries Act of 1972, as amended, 16 U.S.C. 1401 et seq. (i) Deepwater Port Act of 1974, as amended, 33 U.S.C. 1501 et seq. (j) Marine Mammal Protection Act of 1972, 16 U.S.C. 1361 et seq. § 161.12 Environmental effects abroad of major departmental actions. Departmental officials shall analyze actions under their cognizance with due regard for the environmental effects in the global commons and areas outside the jurisdiction of any nation and in foreign jurisdictions. Such analysis shall be prepared in accordance with separate Departmental procedures (Foreign Affairs Manual, Volume 2), dated September 4, 1979 for implementing Executive Order 12114, “Environmental Effects Abroad of Major Federal Actions” (44 FR 1957), dated January 4, 1979.