PART 187—ENVIRONMENTAL EFFECTS ABROAD OF MAJOR DEPARTMENT OF DEFENSE ACTIONS Authority: Title 10 U.S.C. 131. Source: 44 FR 21786, Apr. 14, 1979, unless otherwise noted. Redesignated at 56 FR 64481, Dec. 10, 1991. § 187.1 Purpose. Executive Order 12114 provides the exclusive and complete requirement for taking account of considerations with respect to actions that do significant harm to the environment of places outside within [44 FR 21786, Apr. 14, 1979. Redesignated and amended at 56 FR 64481, Dec. 10, 1991] § 187.2 Applicability. The provisions of this part apply to the Office of the Secretary of Defense, the Military Departments, the Organization of the Joint Chiefs of Staff, the Unified and Specified Commands, and the Defense Agencies (hereafter referred to as “DoD components”). § 187.3 Definitions. (a) Environment (b) Federal Action (c) Foreign Nation (d) Global Commons (e) Major Action (f) United States § 187.4 Policy. (a) Executive Order 12114 is based on the authority vested in the President by the Constitution and the laws of the United States. The objective of the Order is to further foreign policy and national security interests while at the same time taking into consideration important environmental concerns. (b) The Department of Defense acts with care in the global commons because the stewardship of these areas is shared by all the nations of the world. The Department of Defense will take account of environmental considerations when it acts in the global commons in accordance with procedures set out in Enclosure 1 and its attachment. (c) The Department of Defense also acts with care within the jurisdiction of a foreign nation. Treaty obligations and the sovereignty of other nations must be respected, and restraint must be exercised in applying United States laws within foreign nations unless Congress has expressly provided otherwise. The Department of Defense will take account of environmental considerations in accordance with Enclosure 2 and its attachments when it acts in a foreign nation. (d) Foreign policy considerations require coordination with the Department of State on communications with foreign governments concerning environmental agreements and other formal arrangements with foreign governments concerning environmental matters under this part. Informal working-level communications and arrangements are not included in this coordination requirement. Consultation with the Department of State also is required in connection with the utilization of additional exemptions from this part as specified in paragraph C.3.b. of Enclosure 2. Coordination and consultation with the Department of State will be through the Assistant Secretary of Defense (International Security Affairs). (e) Executive Order 12114, implemented by this part prescribes the exclusive and complete procedural measures and other actions to be taken by the Department of Defense to further the purpose of the National Environmental Policy Act with respect to the environment outside the United States. § 187.5 Responsibilities. (a) The Assistant Secretary of Defense (Manpower, Reserve Affairs, and Logistics) (1) Serve as the responsible Department of Defense official for policy matters under Executive Order 12114 and this part; (2) Modify or supplement any of the enclosures to this part in a manner consistent with the policies set forth in this part; (3) Maintain liaison with the Council on Environmental Quality with respect to environmental documents; (4) Participate in determining whether a recommendation should be made to the President that a natural or ecological resource of global importance be designated for protection; and (5) Consult with the Assistant Secretary of Defense (International Security Affairs) on significant or sensitive actions or decisions affecting relations with another nation. (b) The Assistant Secretary of Defense (International Security Affairs) (1) Maintain liaison and conduct consultations with the Department of State as required under this part; and (2) Serve as the responsible official, in consultation with the Assistant Secretary of Defense (Manpower, Reserve Affairs, and Logistics), for monitoring the continuing cooperation and the exchange of information with other nations concerning the environment. (c) The General Counsel, DoD, (d) The Secretaries of the Military Departments, Directors of the Defense Agencies, Commanders of the Unified and Specified Commands, (1) Prepare and consider environmental documents when required by this directive for proposed actions within their respective DoD component (this reporting requirement has been assigned Report Control Symbol DD-M(AR) 1327 (§ 187.6)); (2) Insure that regulations and other major policy issuances are reviewed for consistency with Executive Order 12114 and this part; (3) Designate a single point-of-contact for matters pertaining to this part; and (4) Consult with the Assistant Secretary of Defense (International Security Affairs) on significant or sensitive actions or decisions affecting relations with another nation. [44 FR 21786, Apr. 14, 1979. Redesignated and amended at 56 FR 64481, Dec. 10, 1991] § 187.6 Information requirements. The documents to be prepared under § 187.5(d) and Enclosures 1 and 2, “Requirements for Environmental Considerations—Global Commons,” and “Requirements for Environmental Considerations—Foreign Nations and Protected Global Resources,” respectively, are assigned Report Control Symbol DD-M(AR) 1327. [44 FR 21786, Apr. 14, 1979. Redesignated and amended at 56 FR 64481, Dec. 10, 1991] Enclosure 1 to Part 187—Requirements for Environmental Considerations—Global Commons A. General. B. Actions included. C. Environmental Document Requirements General. 2. Limitations on Actions. 3. Emergencies. 4. Combining Documents. 5. Collective Statements. 6. Tiering. 7. Lead Agency. a. The magnitude of agency involvement; b. Which agency or agencies have project approval and disapproval authority; c. The expert capabilities concerning the environmental effects of the action; d. The duration of agency involvement; and e. The sequence of agency involvement. 8. Categorical Exclusions. 9. Environmental Assessments. D. Environmental Impact Statements. General. 2. Draft Statement. 3. Final statement. 4. Supplemental statement. 5. Statement content. 6. Incomplete Information. 7. Hearings. 8. Decision. 9. Timing. Federal Register, Federal Register. 10. Classified Information. 11. Foreign Governments. [44 FR 21786, Apr. 14, 1979. Redesignated and amended at 56 FR 64481, Dec. 10, 1991] Enclosure 2 to Part 187—Requirements for Environmental Considerations—Foreign Nations and Protected Global Resources A. General. B. Actions included. a. Major Federal actions that significantly harm the environment of a foreign nation that is not involved in the action. The involvement of the foreign nation may be directly by participation with the United States in the action, or it may be in conjunction with another participating nation. The focus of this category is on the geographical location of the environmental harm and not on the location of the action. b. Major Federal actions that are determined to do significant harm to the environment of a foreign nation because they provide to that nation: (1) A product, or involve a physical project that produces a principal product, emission, or effluent, that is prohibited or strictly regulated by Federal law in the United States because its toxic effects on the environment create a serious public health risk; or (2) a physical project that is prohibited or strictly regulated in the United States by Federal law to protect the environment against radioactive substances. Included in the category of “prohibited or strictly regulated” are the following: asbestos, vinyl chloride, acrylonitrile, isocyanates, polychlorinated biphenyls, mercury, beryllium, arsenic, cadmium, and benzene. c. Major Federal actions outside the United States that significantly harm natural or ecological resources of global importance designated for protection by the President or, in the case of such a resource protected by international agreement binding on the United States, designated for protection by the Secretary of State. Such determinations by the President or the Secretary of State to be listed in Attachment 1 to this enclosure, entitled, “Protected Global Resources”. 2. The actions prescribed by this enclosure are the exclusive and complete requirement for taking account of environmental considerations with respect to Federal actions that do significant harm to the environment of foreign nations and protected global resources as described in subsection B.1., of this enclosure. No action is required under this enclosure with respect to Federal actions that affect only the environment of a participating or otherwise involved foreign nation and that do not involve providing products or physical projects producing principal products, emissions, or effluents that are prohibited or strictly regulated by Federal law in the United States, or resources of global importance that have been designated for protection. C. Environmental Document Requirements. 1. General. (1) Environmental studies—bilateral or multilateral environmental studies, relevant or related to the proposed action, by the United States and one or more foreign nations or by an international body or organization in which the United States is a member or participant; and (2) Environmental reviews—concise reviews of the environmental issues involved that are prepared unilaterally by the United States. b. This section identifies the procedures for the preparation of environmental studies or reviews when required by this enclosure and the exceptions from the requirement to prepare environmental studies or reviews. If an environmental document already exists for a particular action, regardless of what Federal agency prepared it, no new document is required by this enclosure. 2. Lead Agency. a. The magnitude of agency involvement; b. Which agency or agencies have project approval and disapproval authority; c. The expert capabilities concerning the environmental effects of the action; d. The duration of agency involvement; and e. The sequence of agency involvement. 3. Exemptions. a. General Exemptions. (1) Actions that the DoD component concerned determines do not do significant harm to the environment outside the United States or to a designated resource of global importance. (2) Actions taken by the President. These include: Signing bills into law; signing treaties and other international agreements; the promulgation of Executive Orders; Presidential proclamations; and the issuance of Presidental decisions, instructions, and memoranda. This includes actions taken within the Department of Defense to prepare or assist in preparing recommendations, advice, or information for the President in connection with one of these actions by the President. It does not include actions taken within the Department of Defense to implement or carry out these instruments and issuances after they are promulgated by the President. (3) Actions taken by or pursuant to the direction of the President or a cabinet officer in the course of armed conflict. The term “armed conflict” refers to: hostilities for which Congress has declared war or enacted a specific authorization for the use of armed forces; hostilities or situations for which a report is prescribed by section 4(a)(1) of the War Powers Resolution, 50 U.S.C.A. 1543(a)(1) (Supp. 1978); and other actions by the armed forces that involve defensive use or introduction of weapons in situations where hostilities occur or are expected. This exemption applies as long as the armed conflict continues. (4) Actions taken by or pursuant to the direction of the President or a cabinet officer when the national security or national interest is involved. The determination that the national security or national interest is involved in actions by the Department of Defense must be made in writing by the Assistant Secretary of Defense (Manpower, Reserve Affairs, and Logistics). (5) The activities of the intelligence components utilized by the Secretary of Defense under Executive Order 12036, 43 FR 3674 (1978). These components include the Defense Intelligence Agency, the National Security Agency, the offices for the collection of specialized intelligence through reconnaissance programs, the Army Office of the Assistant Chief of Staff for Intelligence, the Office of Naval Intelligence, and the Air Force Office of the Assistant Chief of Staff for Intelligence. (6) The decisions and actions of the Office of the Assistant Secretary of Defense (International Security Affairs), the Defense Security Assistance Agency, and the other responsible offices within DoD components with respect to arms transfers to foreign nations. The term “arms transfers” includes the grant, loan, lease, exchange, or sale of defense articles or defense services to foreign governments or international organizations, and the extension or guarantee of credit in connection with these transactions. (7) Votes and other actions in international conferences and organizations. This includes all decisions and actions of the United States with respect to representation of its interests at international organizations, and at multilateral conferences, negotiations, and meetings. (8) Disaster and emergency relief actions. (9) Actions involving export licenses, export permits, or export approvals, other than those relating to nuclear activities. This includes: Advice provided by DoD components to the Department of State with respect to the issuance of munitions export licenses under section 38 of the Arms Export Control Act, 22 U.S.C. 2778 (1976); advice provided by DoD components to the Department of Commerce with respect to the granting of export licenses under the Export Administration Act of 1969, 50 U.S.C. App. 2401-2413 (1970 & Supp. V 1975); and direct exports by the Department of Defense of defense articles and services to foreign governments and international organizations that are exempt from munitions export licenses under section 38 of the Arms Export Control Act, 22 U.S.C. 2778 (1976). The term “export approvals” does not mean or include direct loans to finance exports. (10) Actions relating to nuclear activities and nuclear material, except actions providing to a foreign nation a nuclear production or utilization facility, as defined in the Atomic Energy Act of 1954, as amended, or a nuclear waste management facility. b. Additional Exemptions. (1) Case-by-Case Exemptions. (a) Emergencies. (b) Other Circumstances. (2) Class Exemptions. 4. Categorical Exclusions. D. Environmental studies. General. a. An environmental study is an analysis of the likely environmental consequences of the action that is to be considered by DoD components in the decision-making process. It includes a review of the affected environment, significant actions taken to avoid environmental harm or otherwise to better the environment, and significant environmental considerations and actions by the other participating nations, bodies, or organizations. b. An environmental study is a cooperative action and not a unilateral action undertaken by the United States. It may be bilateral or multilateral, and it is prepared by the United States in conjunction with one or more foreign nations, or by an international body or organization in which the United States is a member or participant. The environmental study, because it is prepared as a cooperative undertaking, may be best suited for use with respect to actions that provide strictly regulated or prohibited products or projects to a foreign nation (B.l.b.) and actions that affect a protected global resource (B.l.c.). 2. Department of State Coordination. 3. Whether to Prepare an Environmental Study. 4. Content of the Study. a. A general review of the affected environment; b. The predicted effect of the action on the environment; c. Significant known actions taken by governmental entities with respect to the proposed action to protect or improve the environment; and d. If no actions are being taken to protect or enhance the environment, whether the decision not to do so was made by the affected foreign government or international organization. 5. Distribution of the Study. 6. Limitations. a. Enable the component to act promptly. Considerations such as national security and foreign government involvement may require prompt action that must take precedence in the environmental review process; b. Avoid adverse impacts on relations between the United States and foreign governments and international organizations; c. Avoid infringement or the appearance of infringement on the sovereign responsibilities of another government. The collection of information and the preparation and distribution of environmental documentation for actions in which another nation is involved, or with respect to the environment and resources of another nation, unless done with proper regard to the sovereign authority of that nation, may be viewed by that nation as an interference in its internal affairs and its responsibility to evaluate requirements with respect to the environment; d. Ensure consideration of: (1) Requirements of governmental confidentiality. This refers to the need to protect sensitive foreign affairs information and information received from another government with the understanding that it will be protected from disclosure regardless of its classification; (2) National security requirements. This refers to the protection of classified information and other national security interests; (3) Availability of meaningful information. Information on the environment of foreign nations may be unavailable, incomplete, or not susceptible to meaningful evaluation, particularly where the affected foreign nation is not a participant in the analysis. This may reduce or change substantially the normal content of the environmental study; (4) The extent of the participation of the DoD component concerned and its ability to affect the decision made. The utility of the environmental analysis and the need for an in-depth review diminishes as DoD's role and control over the decision lessens; and (5) International commercial, commercial confidentiality, competitive, and export promotion factors. This refers to the requirement to protect domestic and foreign trade secrets and confidential business information from disclosure. Export promotion factors includes the concept of not unnecessarily hindering United States exports. 7. Classified Information. E. Environmental Reviews. General. a. An environmental review is a survey of the important environmental issues involved. It includes identification of these issues, and a review of what if any consideration has been or can be given to the environmental aspects by the United States and by any foreign government involved in taking the action. b. An environmental review is prepared by the DoD component concerned either unilaterally or in conjunction with another Federal agency. While an environmental review may be used for any of the actions identified by section B., it may be uniquely suitable, because it is prepared unilaterally by the United States, to actions that affect the environment of a nation not involved in the undertaking (B.l.a.). 2. Department of State Coordination. 3. Whether to Prepare an Environmental Review. 4. Content of the Review. a. A statement of the action to be taken including its timetable, physical features, general operating plan, and other similar broad-gauge descriptive factors; b. Identification of the important environmental issues involved; c. The aspects of the actions taken or to be taken by the DoD component that ameliorate or minimize the impact on the environment; and d. The actions known to have been taken or to be planned by the government of any participating and affected foreign nations that will affect environmental considerations. 5. Distribution. 6. Limitations. a. Enable the component to act promptly. Considerations such as national security and foreign government involvement may require prompt action that must take precedence in the environmental review process; b. Avoid adverse impacts on relations between the United States and foreign governments and international organizations; c. Avoid infringement or the appearance of infringement on the sovereign responsibilities of another government. The collection of information and the preparation and distribution of environmental documentation for actions in which another nation is involved or with respect to the environment and resources of another nation, unless done with proper regard to the sovereign authority of that nation, may be viewed by that nation as an interference in its internal affairs and its prerogative to evaluate requirements with respect to the environment; and d. Ensure consideration of: (1) Requirements of governmental confidentiality. This refers to the need to protect sensitive foreign affairs information and information received from another government with the understanding that it will be protected from disclosure regardless of its classification; (2) National security requirements. This refers to the protection of classified information; (3) Availability of meaningful information. Information on the environment of foreign nations may be unavailable, incomplete, or not susceptible to meaningful evaluation, and this may reduce or change substantially the normal content of the environmental review; (4) The extent of the participation of the DoD component concerned and its ability to affect the decision made. The utility of the environmental analysis and the need for an in-depth review diminishes as the role of the Department of Defense and control over the decision lessens; and (5) International commercial, commercial confidentiality, competitive, and export promotion factors. This refers to the requirements to protect domestic and foreign trade secrets and confidential business information from disclosure. Export promotion factors includes the concept of not unnecessarily hindering United States exports. 7. Classified Information.