(from the Environmental Procedures Training Manual, Appendix A.2)

Regulatory citation
Exemptions [§216.2(b)(1)]:
(1) Projects, programs, or activities involving the following are exempt:

(i) International disaster assistance [International disasters are declared by the U.S. Ambassador in the country(ies) involved, including those that receive emergency food aid];
(ii) Other emergency circumstances; and
(iii) Circumstances involving exceptional foreign policy sensitivities.

Sometimes Title II activities are exempt because they are undertaken as part of international disaster assistance involving emergencies (for example, civil strife, famine, major earthquake, or flood). There are instances in which “notwithstanding” authorities will be invoked for emergency actions that have the effect of waiving certain normally required provisions. These instances will need to be determined in consultation with USAID. For example, "notwithstanding" language exists for “emergency feeding” programs that exempts these activities from everything, including 22 CFR 216. The purpose for this is to avoid slowing down food drops to people who are on the verge of starving to death—it is not for sustainable development.

The exemptions of §216.2(b)(1) are not applicable to assistance for the procurement or use of pesticides.

Development activities almost never qualify for exemptions. Permission for an exemption under (ii) and (iii) is required from the highest levels of USAID and from the President’s Council on Environmental Quality. In the extremely unlikely event that your activities might qualify for exemptions (ii) and (iii), a formal written determination, including a statement of justification, is required for each project, program, or activity. The determination is made by the Assistant USAID Administrator with responsibility for the program, project, or activity, or by the USAID Administrator, if authority to approve financing is reserved for the Administrator. The determination is made after consultation with the Council on Environmental Quality (a rare event) regarding the environmental consequences of the proposed program, project, or activity.

Table A.1 lists several kinds of PVO activities that USAID may determine to be exempt.

The Agency Environmental Coordinator has responded to several questions from the field concerning exemptions in order to clarify the underlying principles that justify an exemption.

On the ground, practitioners not infrequently encounter situations which require distinguishing between emergency and development programming modalities, and decisions need to made as to whether emergency or development procedures and requirements apply, especially as related to environmental compliance. Typically questions arise as to how one handles:

1. actual (unpredictable) emergencies, such as major floods, cyclones or similar situations, that are declared disasters by the Ambassador and which, if they use TII funds, could be considered exemptions, in accordance with §216.2(b)(1)(i);
2. situations which appear to be defined as emergencies because the source of funding is the emergency side of FFP. (In this case, the justification for an exemption does not appear to lie within Reg. 216 per se); and
3. emergency programs that are justified with “notwithstanding” clauses and which may not be actual emergencies in the sense of number 1, but the source of the justification for not applying Reg. 216 is a “notwithstanding” clause(s).
   The discussion below addresses these issues.

Table 1: Some activities that may quality for exemption

• When the current 22 CFR 216 was drafted in 1979-80, USAID created 216.2(b)(1)(i) for declared disaster assistance to avoid any possible delay in getting assistance to people who would die or suffer terribly if help didn't arrive in a matter of days. In the process, (ii) Other emergency circumstances and (iii) Circumstances involving exceptional foreign policy sensitivities were provided as contingencies to cover matters where people like the Administrator and the White House agreed that in extraordinary cases something was so urgent or so sensitive that environmental review was simply outweighed by the foreign policy need. The benchmark is extraordinarily high for these “emergency” or “foreign policy sensitivities” exemptions. They have been used rarely and even USAID’s first work in war-torn Bosnia did not qualify.
  
  Spending time and effort finding ways around an environmental review is time wasted that could have been used to make a project more effective. The purpose of the regulation is not to go through pointless bureaucratic gyrations, but to ensure a professional job of designing a project to be sustainable and not hurt the people and the society it is trying to help. With or without a regulation such as 22 CFR 216, inattention to environmental impacts can lead to under-performance or harmful activities.

• USAID has determined that declared disaster assistance emergencies funded through the Office of Foreign Assistance (OFDA) are the only situations that qualify for exemption (i). The purpose of this exemption is to give USAID the flexibility to address those disaster situations where even a day or two of delay would cause loss of lives and where getting relief to a location is critical. Even in cases of OFDA disaster assistance, the exemption clause should not be considered a license to ignore environmental consequences. OFDA does advance planning on how it will respond to different categories of disasters and this is where efforts should be made to ensure that whatever is designed as a standard response package is as environmentally sound as possible, in the same way that OFDA puts serious thought into advance planning to deliver medicines or temporary shelter. When a disaster response is extended in time, there should be a conscious effort to consider environmental impacts and to adjust assistance so as to minimize any long?term harm it might cause.

  USAID and other donors are now beginning to understand that giving exemptions to disaster assistance may not be as humane as once thought, since poorly designed disaster assistance can cause major problems after the disaster has passed. Refugee camps are one example. Cooperating Sponsors, USAID, and other donors are learning that while very real needs may exist to get help to people as fast as possible in emergencies, there is also a need to "pre?design" emergency response packages with full consideration of environmental implications and mitigate them in advance of a response. They are also undertaking environmental review concurrently with providing disaster assistance, so that the assistance can be modified as it goes along to make it more environmentally sound.

  USAID’s own OFDA has developed guidance for use by PVOs/NGOs in preparation and response to emergencies. PVOs/NGOs are encouraged to develop environmentally sensitive programs based on this guidance and to coordinate their activities with the United Nations High Commission for Refugees (UNHCR) or other entities, which have environmental procedures for refugee operations.

• for bonafide declared emergencies threatening human lives with imminent danger, political sensitivities; and
• for overriding geopolitical factors and programmatic needs (such as regional HIV/AIDS programs) deemed important and “without borders”—thus being able to operate in countries in which USAID has no Mission (“non-presence” countries) or is prohibited by law from assisting (e.g., due to military coup—Section 508 of the FY98 Appropriations Act).