§ 161.9 - Specific steps in the Department's NEPA process.

§ 161.9 Specific steps in the Department's NEPA process.

Cross Reference

Link to an amendment published at 85 FR 32296, May 29, 2020.

(a) Decision whether to prepare an EIS. In deciding whether to prepare an environmental impact statement, the responsible action officer shall make an initial review in the early planning stages of a proposed action to identify and evaluate potential environmental effects of the actions and all reasonable measures which may be taken to mitigate adverse impacts. This review must be conducted in conjunction with all requests under the Department's Circular 175 procedure (11 FAM 720), with all actions involving the obligation of funds within the Department's annual or supplemental budget submissions to the Office of Management and Budget, and with other actions when a potentially significant environmental impact may result. The responsible action officer shall ensure that the principal action memoranda prepared for such actions properly reflect the environmental review in all cases. No written statement is required in the case of actions which do not raise the question of environmental impacts. The environmental evaluation document prepared shall be considered along with political, economic and other decisionmaking factors relating to the proposed action.

(1) Review of the categories of actions. During the initial environmental review of the proposed action, the responsible action officer should classify the proposed Departmental action as one either normally requiring an environmental impact statement, normally not requiring such a statement, or normally requiring an environmental assessment. (See § 1504.1 of the CEQ Regulations and § 161.7 of these regulations.)

(i) Actions normally requiring environmental statements. Environmental assessments are not required for actions which it is already known will require the preparation of environmental impact statements. For each major Departmental action which, in the view of the responsible action officer meets the criteria of this section, he shall, in cooperation with the Office theOffice of Environment Environmental Quality and HealthTransboundary Issues, initiate steps to prepare an environmental impact statement. This will be accomplished by preparing a “Notice of intent” to prepare an EIS (see § 1508.22 of the CEQ Regulations). The Office of Environment Environmental Quality and Health Transboundary Issues shall arrange for publication of the notice in the Federal Register (see § 1507.3(e) of the CEQ Regulations). The responsible action officer shall then apply the procedures set forth in § 161.8 of these regulations to determine the scope of the proposed EIS, and proceed to prepare and release the environmental impact statement in accordance with CEQ and Departmental regulations. If, however, the responsible action officer believes that the proposed action, though included within or closely similar to one which normally requires the preparation of an EIS, will itself have no significant impact, he should conduct an environmental assessment in accordance with the CEQ Regulations (§ 1508.9). If the assessment demonstrates that there will be no significant impact, he should prepare a “Finding of no significant impact” and provide for public review a notice of this finding in accordance with §§ 1501.4(e) and 1506.6 of the CEQ Regulations.

(ii) Actions categorically excluded. Separate detailed documentation is not normally required for actions which are categorically excluded and which are therefore exempt from the requirement of preparations of an environmental assessment or environmental impact statement. However, the responsible action officer shall note in the action memorandum concerning the action that the proposed action has been reviewed under the Department's environmental procedures and determined to be categorically excluded. The Office of Environment Environmental Quality and Health Transboundary Issues shall periodically review actions in the classes categorically excluded under these regulations to determine if the original decision to categorically exclude the class remains valid. If such a review determines that a proposed action may have a significant impact on the human environment the necessary revision in the categorical exclusion shall be made and an environmental assessment shall be prepared to determine the need for the preparation of an environmental impact statement.

(iii) Actions normally requiring environmental assessments. For each action meeting the criteria of this section the responsible action officer shall prepare an environmental assessment (see §§ 1501.3 and 1508.9 of the CEQ Regulations) and, on the basis of that assessment, determine if an EIS is required. If the determination is that no environmental impact statement is required, the responsible action officer shall, in coordination with the Office of Environment Environmental Quality and HealthTransboundary Issues, prepare a “Finding of no significant impact” (see §§ 1501.4 and 1508.13 of the CEQ Regulations). The “Finding of no significant impact” shall be made available to the public through direct distribution and publication in the Federal Register. If the determination is that an environmental impact statement is required, the official shall proceed with the “Notice of intent” to prepare an EIS and the subsequent steps in the preparation and release of an EIS in accordance with the CEQ Regulations (§§ 1501.7, 1507.3 and 1508.22) and these regulations.

(2) Preparation of environmental assessments. Environmental assessments, as defined in the CEQ Regulations (§ 1508.9), should be prepared as directed in § 1501.3 of the CEQ Regulations. The environmental assessment shall be used to determine whether to prepare an environmental impact statement or a “Finding of no significant impact”. The assessment shall include a brief discussion of the need for the proposed action, of alternatives and of environmental impacts and a listing of agencies and persons consulted in preparing the assessment.

(3) Notice of intent to prepare an EIS. As soon as practicable after deciding to prepare an environmental impact statement and before initiating the scoping process (see § 161.9(b) of these regulations) the Department or another lead agency, if one is designated in accordance with § 1501.5 of the CEQ Regulations, shall publish in the Federal Register a “Notice of intent” to prepare an EIS in accordance with §§ 1501.7 and 1508.22 of the CEQ Regulations. The Office of Environment Environmental Quality and Health Transboundary Issues shall arrange for publishing the notice.

(b) Scoping. The Department shall conduct an early and open meeting with interested agencies and the public for determining the scope of issues to be addressed in a given environmental impact statement and for identifying the significant issues related to a proposed action. The elements of the scoping process are defined in § 1501.7 of the CEQ Regulations and must include consideration of the range of actions, alternatives, and impacts discussed in § 1508.25 of the CEQ Regulations.

(c) Cooperation with other agencies. Departmental officials are encouraged to cooperate with other agencies and the public throughout the conduct of the Department's NEPA process. The Office of Environment Environmental Quality and Health Transboundary Issues shall ensure also that the Department reviews the draft and final impact statements submitted for review by other agencies (§ 1502.19 of the CEQ Regulations). Where appropriate and to eliminate duplication it shall arrange to prepare environmental assessments and impact statements jointly with other Federal or State agencies. Where possible it will arrange for the department to “adopt” statements prepared by other agencies (§ 1506.3 of the CEQ Regulations). It shall arrange lead and cooperating agency responsibilities for preparing environmental documents (see §§ 1501.5 and 1501.6 of CEQ Regulations).

(d) Preparation of draft environmental impact statement. The responsible action officer shall be responsible for the preparation of the draft environmental impact statement in the manner described in § 1501.8, part 1502, and §§ 1506.2 through 1506.7 of the CEQ Regulations. Preliminary copies of the draft environmental impact statement and attachments shall be submitted to the Office of Environment Environmental Quality and Health Transboundary Issues before any formal review is conducted outside the Department. This submission shall be accompanied by a list of Federal, State, and local officials (Part 1503 of the CEQ Regulations) and a list of other interested parties (§ 1506.6 of the CEQ Regulations) whose comments shall be sought. The Office of Environment Environmental Quality and Health Transboundary Issues shall review the draft and obtain additional comments from other appropriate Departmental bureaus and offices.

(e) Review of and comment on draft EIS. For external review, the Office of Environment Environmental Quality and Health Transboundary Issues shall transmit five copies of the revised draft statement to the Environmental Protection Agency (EPA) Office of Federal Activities. EPA will publish a notice of the statement's availability the following week in the Federal Register. Upon transmission of the draft statement to EPA, the Office of Environment Environmental Quality and Health Transboundary Issues shall also seek the views of appropriate agencies and individuals in accordance with Part 1503 and §§ 1506.6 and 1506.9 of the CEQ Regulations. It shall specify that replies are required at a stated date not earlier than 45 days from the date of NEPA publication of the draft statement availability. Any views submitted during the comment period shall be provided to the responsible action officer in the Department for consideration in preparing the final statement. To the fullest extent possible, requirements for review and consultation with other agencies on environmental matters established by statutes other than NEPA, such as the review and consultation requirements of the Endangered Species Act of 1973, as amended, should be met before or through this review process (see § 161.11 of these regulations). In addition, the draft EIS shall list all environmentally-related federal permits, licenses or other approvals required to implement the proposal as specified in § 1502.25(b) of the CEQ Regulations.

(f) Public involvement.

(1) Departmental officials will make diligent efforts to involve the public in implementing these regulations as provided in §§ 1501.4(e), 1503.1(a)(e) and 1506.6 of the CEQ Regulations.

(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 Environment Environmental Quality and HealthTransboundary Issues , Room 7820, Department of State, Washington, DC 20520 (tel. [phone]). Information pertaining to the NEPA process may be sent to the above address. Federal Register notices concerning the Department's environmental documents shall specify where such information relevant to the documents in question may be obtained.

(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 Environment Environmental Quality and HealthTransboundary Issues, the responsible action shall transmit a list of such persons, groups and organizations to the Office of Environment Environmental Quality and Health 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 Environment Environmental Quality and Health Transboundary Issues and make recommendations regarding the need for public hearings. The Office of Environment Environmental Quality and Health Transboundary Issues shall, as necessary, review such recommendations with the Office of the Legal Adviser.

(g) Preparation of final environmental impact statement.

(1) After conclusion of the review process with other Federal, State and local agencies and the public, the responsible action officer shall consider suggestions received and revise the draft environmental impact statement as appropriate in accordance with part 1502 and § 1501.8 and §§ 1506.2 through 1506.7 of the CEQ Regulations.

(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 Environment Environmental Quality and HealthTransboundary Issues. The Office of Environment Environmental Quality and Health 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 Environment Environmental Quality and Health 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 Environment Environmental Quality and Health Transboundary Issues (OES/ENH), Room 7820, Department of State, Washington, DC 20520 (tel. [phone]).

(h) Record of the decision. At the time of the decision on the proposed action, the responsible Departmental official shall consult with the Office of Environment Environmental Quality and Health Transboundary Issues and prepare a concise “Record of decision” (see § 1505.2 of the CEQ Regulations).

(i) Timing of EIS preparation and action decision. Preparation of an environmental impact statement shall be initiated as soon as the responsible action officer, in consultation with the Office of Environment Environmental Quality and Health Transboundary Issues and the Office of the Legal Adviser, has determined that the statement shall be prepared. Except where permitted by the CEQ Regulations (§§ 1506.10(d), 1506.11) and these regulations (§§ 161.7(d), 161.9(n)(2)), no decision on the proposed action shall be made by the Department until the later of the following dates:

(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. Section 1505.3 of the CEQ Regulations establishes the procedures to be followed by the Department in monitoring to assure that any mitigation measures or other commitments associated with the decision and its implementation are carried out. The Office of Environment Environmental Quality and Health Transboundary Issues will maintain general oversight and cooperate with bureau officers in such monitoring.

(k) Supplemental environmental impact statements. Departmental officials shall supplement a draft EIS whenever an alternative which is substantially different from those discussed in the draft is under consideration or when the draft is otherwise out of date. A final EIS shall be supplemented when a substantial change is made in the proposed action or when significant new information on the environmental impacts comes to light. A supplemental EIS should be prepared, circulated and approved in accordance with the provisions of § 1502.9 of the CEQ Regulations. No supplemental EIS need be prepared when the final decision on the action in question has already been made. If there are reasons not to prepare a supplemental EIS when one ordinarily would be called for, the responsible action officer should consult with the Office of Environment Environmental Quality and HealthTransboundary Issues , which shall consult with the Council on Environmental Quality on the matter.

(l) Programmatic and generic environmental impact statements.

(1) Before preparing an environmental document under these regulations the responsible action officer should determine if there exists a generic or programmatic environmental document analyzing actions, effects or issues similar to those involved in the proposed action. A generic environmental document reviews the environmental effects that are generic or common to a class of Departmental actions which may not be specific to any single country or area. Where such a document is prepared it could be applied to a number of similar specific country applications. If a generic document exists and if it deals with relevant similarities in the action, such as common timing, environmental impacts, alternatives, methods of implementation or subject matter it will not be necessary to prepare further environmental documentation.

(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. Amendments to these regulations may be made by the Assistant Secretary for Oceans and International Environmental and Scientific Affairs in consultation with other Departmental bureaus and the Office of the Legal Adviser. Such amendments will be published in the Federal Register after consultation with the Council on Environmental Quality, in accordance with § 1507.3 of the CEQ Regulations, and public review and comment.

(n) Modifications. The Department's procedures for preparing environmental documents may be modified to accommodate the following circumstances:

(1) Classified material. Most Departmental environmental documents will not normally contain classified or administratively controlled material (see § 1507.3(c) of the CEQ Regulations); in some cases, however, an environmental document must include such material to evaluate adequately environmental effects. In such cases Departmental environmental documents, or portions thereof, may be classified. Such material should, if possible, be confined to a classified annex of the environmental document. Approval for classification must be granted with the concurrence of the Assistant Secretary for Oceans and International Environmental and Scientific Affairs and the Office of the Legal Adviser, and the assistant secretary of the bureau with the action responsibility for the proposed action. In these cases, Departmental environmental documents or portions thereof may be classified in accordance with the criteria set forth in Executive Order 12065, dated December 1, 1978. Handling and disclosure of classified or administratively controlled material shall be governed by 22 CFR part 9. The portions of an environmental document which are not classified or administratively controlled will be made available to persons outside the Department, as provided in 22 CFR part 9. Classification does not preclude the obligation to ensure that environmental documents are reviewed by competent scientific and technical experts. Appropriate arrangements will be made through the Office of Environment and Health for Environmental Quality and Transboundary Issues or Federal agency review of classified or administratively controlled environmental documents.

(2) Time periods for environmental review. When necessary to comply with other specific statutory requirements or for compelling reasons of national policy the Department may, by agreement with the Environmental Protection Agency, modify time periods specified by the CEQ Regulations for preparing environmental documents in accordance with § 1506.10 of the CEQ Regulations. See also provisions for emergency circumstances contained in § 1506.11 of the CEQ Regulations and § 161.7(d) of these regulations.