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National Environmental Policy Act (NEPA) Implementing Instructions for Airport Actions
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: May 18, 2006 (Volume 71, Number 96)]
[Notices]
[Page 29013-29055]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18my06-121]
[[Page 29014]]
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DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
[Docket No. FAA-2004-19058; FAA Order 5050.4B]
National Environmental Policy Act (NEPA) Implementing
Instructions for Airport Actions
AGENCY: Federal Aviation Administration, DOT.
ACTION: Notice of publication of the Preamble to Order 5050.4B.
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SUMMARY: The Federal Aviation Administration's Office of Airports (ARP)
is responsible for reviewing and deciding on projects airport sponsors
propose for public-use airports. ARP revised its National Environmental
Policy Act (NEPA) implementing instructions for those airport projects
under its authority and placed those instructions in Order 5050.4B,
National Environmental Policy Act (NEPA) Implementing Instructions for
Airport Actions. The Order's effective date was April 28, 2006.\1\
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\1\ The Order and Preamble are available electronically at ARP's
Web site, http://www.faa.gov/airports_airtraffic/airports. 
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ARP announced the availability of that Order and its Preamble in
the April 28, 2006, Federal Register (71 FR 25279). There, ARP noted
that it would publish the text of the Preamble in the Federal Register
shortly after the April 28th Notice of Availability. Today's
publication of this document satisfies ARP's commitment to publish the
Preamble in the Federal Register.
The Preamble presents a summary of the major changes ARP has
included in Order 5050.4B . The Preamble also discusses the many
changes and additions ARP has made in response to comments on draft
Order 5050.4B that ARP published in the December 16, 2004, version of
the Federal Register (69 FR 75374). The Preamble also discusses other
changes ARP judged necessary since publishing the draft Order.
Order 1050.1E Environmental Impacts: Policies and Procedures sets
FAA's agency-wide environmental protocol. Order 5050.4B supplements
Order 1050.1E by providing NEPA instructions especially for proposed
Federal actions to support airport development projects. Order 5050.4B
follows the Council on Environmental Quality's (CEQ's) NEPA
implementing regulations at 40 CFR 1500--1508. It also follows DOT's
Order 5610.C, Policies for Considering Environmental Impacts, and FAA
Order 1050.1E.
ARP has made Order 5050.4B as consistent with FAA Order 1050.1E as
possible. Users of Order 5050.4B must interpret it in a manner
consistent with FAA Order 1050.1E. Exceptions to this rule apply to
internal FAA coordination and review of environmental documents. For
those actions, users follow the instructions in Order 5050.4B. If
specific questions about the instructions in Orders 1050.1E and 5050.4B
arise, users should call the contact person noted below for
clarification. The contact will notify FAA's Office of Environment and
Energy (AEE), the FAA organization responsible for developing general
NEPA procedures for all FAA organizations, about identified conflicts.
This will provide a transparent system to resolve legitimate conflicts
and ensure NEPA conformity within all FAA organizations.
Cancellation: Order 5050.4B, replaces Order 5050.4A, Airports
Environmental Handbook, dated October 8, 1985.
DATES: Effective Date: Order 5050.4B is effective April 28, 2006.
FOR FURTHER INFORMATION CONTACT: Please e-mail or call: Mr. Ed Melisky
edward.melisky@faa.gov), Environmental Specialist, Federal Aviation
Administration, Office of Airport Planning and Programming (APP-400),
800 Independence Avenue, SW., Washington, DC 20591; telephone (202)
267-5869; fax (202) 267-8821.
SUPPLEMENTARY INFORMATION: The National Environmental Policy Act (NEPA)
and CEQ's regulations implementing NEPA provide Federal agencies with
instructions on protecting the quality of the human and natural
environments. NEPA and its implementing regulations require Federal
agencies to carefully evaluate and consider the environmental effects
of actions under their respective authorities before the agencies make
decisions on those actions.
Section 102(B) of NEPA requires Federal agencies, in consultation
with CEQ, to develop procedures to carry out NEPA and CEQ's regulations
for activities under the agencies' respective purviews. Although FAA
Order 1050.1E presents FAA's agency-wide instructions to complete the
NEPA process, ARP is issuing Order 5050.4B to supplement those
instructions. ARP has traditionally published Order 5050 to provide
detailed NEPA instructions specific to airport actions under its
authority. Readers wanting to know how other FAA organizations address
NEPA requirements for non-airport projects should see FAA Order 1050.1E.
As noted earlier, Order 5050.4B replaces Order 5050.4A dated
October 8, 1985. That Order served FAA personnel, airport sponsors,
airport consultants, Federal, State, local, and tribal governments and
the public well for over 20 years. However, changes in Federal laws and
regulations, FAA policies and procedures (i.e., Order 1050.1E), and
evolving environmental processing and evaluation for airports occurring
since 1985 signaled the need to issue Order 5050.4B.
Distribution: ARP is distributing this Order to ARP personnel and
other interested parties by electronic means only. ARP has placed this
Order for viewing and downloading at its Web site.\2\ Anyone without
access to the Internet may obtain a compact disk (CD) containing the
Order. Please make that request to the Federal Aviation Administration,
Office of Airport Planning and Programming (APP-1), 800 Independence
Avenue, SW., Washington, DC 20591. Those unable to use an electronic
version of the Order, may obtain a photocopy of the Order by contacting
FAA's rulemaking docket at: Federal Aviation Administration, Office of
Chief Council, Attn: Rules Docket (AGC-200)--Docket No. FAA-2004-19058,
800 Independence Avenue, SW., Washington, DC 20591.
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\2\ http://www.faa.gov/airports_airtraffic/airports/resources/
publications/orders/environmental_5050_4/.
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Summary of changes: FAA Order 5050.4B includes information from the
draft Order published in the Federal Register on December 16, 2004, and
additions or changes to that draft. The re-organization and addition of
material to respond to comments on that draft have caused changes to
the Order's organization and chapter titles. Because of these
organizational changes, this Preamble discusses comments referencing
specific paragraphs in the draft Order, but ARP's responses refer to
the final Order's revised paragraph and subparagraph numbering system.
This Preamble presents a summary of the major changes to the draft
Order that may be of interest to airport sponsors, the public, other
governmental agencies and organizations. The Preamble also presents
ARP's responses to public comments on draft Order 5050.4B.
Major changes in final FAA Order 5050.4B: a. The Order deletes the
summary of requirements and procedures under special purpose
environmental laws, regulations, and executive orders outside NEPA.
Order 5050.4A addressed these topics in paragraphs 47.e.(1) thru (20)
and 85.a through t. Those paragraphs addressed various requirements
protecting sensitive environmental resources such as wetlands,
federally-listed endangered
[[Page 29015]]
species, or historic properties. However, Order 5050.4B, Table 7-1
keeps information from those paragraphs that ARP and commenters found
helpful in determining impact intensity and the proper NEPA review. In
addition, this information will help users integrate the review,
analyses, and consultation requirements of applicable special purpose
laws with NEPA requirements.
ARP will issue a separate document entitled, Environmental Desk
Reference for Federal Airport Actions (Desk Reference) to provide its
staff and interested parties with information to integrate and comply
with Federal environmental laws, regulations, and executive orders
other than NEPA. ARP plans to issue the Desk Reference as soon as
possible. Meanwhile, FAA personnel and other interested parties should
use Appendix A in Order 1050.1E for guidance.
ARP is making this change to address recommendations FAA received
when it published a draft version of Order 1050.1E for comment. Some
commenters recommended that FAA delete Appendix A of that Order to
focus that document on NEPA's implementing instructions. ARP's review
of NEPA implementing instructions published in the Federal Register
during 2004 shows none of the six Federal agencies publishing NEPA
instructions included substantial information about Federal
environmental laws, regulations, or executive orders outside NEPA.
ARP's removal of requirements outside NEPA from Order 5050.4B does
not reflect a lack of FAA commitment to meet those requirements or
absolve airport sponsors from complying with them. Compliance with
those special purpose laws does not depend on their presence or absence
in Order 5050.4B because many of them have their own compliance
requirements. ARP will continue to integrate compliance with applicable
environmental laws, regulations, and executive orders outside NEPA with
its NEPA process to the fullest extent possible to streamline the
overall environmental review process.
b. When compared to the draft version of Order 5050.4B, ARP has
made organizational changes to more logically and clearly present
information about the NEPA process and how ARP implements it. Chapter 2
of the final order focuses on special NEPA requirements and
responsibilities for airport actions. Formerly, Chapter 5 (``Special
Instructions'') presented that information, but ARP decided to place
that information earlier in the Order. ARP made that change to provide
an early alert to airport sponsors, ARP personnel, and State Block
Grant Program (SBGP) participants about the NEPA process and each
entity's responsibilities in that process. Presenting that information
earlier in the Order ensures those responsible for airport actions pay
close attention to the subsequent chapters and their contents to ensure
efficient, effective NEPA processing. ARP deleted the instructions
about airport and noise planning grants in paragraphs 500 and 501,
which simply explained the categorical exclusions in Chapter 6. ARP has
kept information on agency and Tribal consultation and participation in
Chapter 3, but has created new Chapter 4 to highlight the need for
public involvement. Formerly, public involvement information was a
portion of Chapter 3.
New Chapter 5 focuses on coordinating airport planning and the NEPA
process. ARP includes that information to better promote coordination
between airport planning and the NEPA process as CEQ regulations
require. The draft Order devoted only one paragraph (paragraph 302.a)
to this important topic. However, to promote streamlining and efficient
analyses, Chapter 5 stresses the critical linkage between airport
planning and the NEPA process. ARP based much of this chapter on
valuable planning and environmental information in its Best Practices
Web site \3\ and Advisory Circular 150/5070-6, Airport Master Plans.
Revised Chapters 6 through 13 provide information on categorical
exclusions (CATEXs), environmental assessments (EAs), environmental
impact statements (EISs), and Records of Decision (RODs), respectively.
Chapter 6 incorporates the information on CATEXs that appeared in
Chapter 4 of the draft Order. Chapter 7 incorporates information on EAs
the draft Order discussed in Chapter 4.
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\3\ (http://www.faa.gov/airports_airtraffic/airports/environmental/
eis_best_practices/)
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Finally, Chapter 9 contains information on airport actions normally
requiring an EIS. The chapter also discusses scoping and the EIS's
purpose and content. Formerly, Chapters 4 and 10 of the draft Order
provided that information. Finally, Chapter 15 of the final Order
retains information on streamlining the environmental process for
airport capacity enhancement projects at congested airports or airport
safety and security projects that ``Vision 100--The Century of Aviation
Re-Authorization Act of 2003'' (Vision 100) discusses.
c. Order 5050.4B provides definitions for important terms used
during ARP's NEPA analysis for actions at airports. Among other
definitions, the Order provides definitions for the term ``approving
FAA official'' and notes decisions for actions at airports are
delegated to various personnel. This reflects requirements in FAA Order
1100.154A, Delegation of Authority, dated June 1990, which notes the
approving FAA official will vary due to the number of FAA organizations
an airport action involves. Order 5050.4B also defines the term
``Federal action'' and how it applies to actions under ARP's authority.
Since publishing the draft Order, ARP has added definitions in
paragraph 9 for the terms ``Environmental Management System'' and ``
`NEPA-like' State or agencies.'' The Order also provides a revised,
more comprehensive definition for the term ``reasonably foreseeable
action.'' The definition, now at paragraph 9.q and presented in a short
table, lists criteria for off-airport and on-airport actions. ARP
developed this definition to help users better define ``reasonably
foreseeable actions.'' The final Order also provides a revised
definition for ``special purpose laws.'' The final Order at paragraph
9.t, now lists all the laws, regulations, and executive orders
comprising that term.
d. Chapter 2 provides information on limits for conditional airport
layout plan (ALP) approvals. Paragraph 202.c(4) (paragraph 505b(3) in
the draft Order) has been revised to clarify that these limitations
apply when a sponsor or its consultant is preparing an EA or FAA is
preparing an EIS for a major airport development project. ARP limits
such approvals to avoid the appearance that it is making decisions on
proposed projects before it completes the required NEPA processes for
those actions. ARP also modified paragraph 202c(4) to clarify that FAA
may conduct and issue airspace determinations for those projects. The
paragraph also clarifies that FAA may approve other actions at the same
airport, provided those actions are independent of the actions that are
the subjects of an EA or EIS being prepared.
e. Paragraphs 202.d(1), (2), and (3) provide suggested language for
conditional, unconditional, or mixed airport layout plan (ALP) approval
letters, respectively. ARP added the ``mixed ALP approval'' to the
final Order to address those situations where ARP reviews ALPs
depicting short-term and long-term projects that are and are not ripe
for decision, respectively.
f. Paragraph 204 (paragraph 507 in the draft Order) discusses land
acquisitions
[[Page 29016]]
by airport sponsors during the EIS process. ARP notes that 40 CFR
1506.1(a) and (b) state that, until a Federal agency issues its Record
of Decision, neither the agency or the applicant may take an action
concerning any proposal that would adversely affect environmental
resources or limit the FAA's choice of reasonable alternatives.
g. Paragraph 205 discusses FAA's roles and responsibilities under
NEPA when an airport sponsor wishes to participate in a joint-use
program or program to convert a military airfield to civilian use.
Joint-use occurs when the sponsor shares use of an airport with the
U.S. Department of Defense. In these instances, FAA normally will be a
cooperating agency for NEPA purposes.
h. Paragraph 208 (formerly paragraph 511 in the draft Order)
provides instructions to the responsible FAA official on complying with
Executive Order 12114, Environmental Effects Abroad of Major Federal
Actions. The official must meet the Executive Order's requirements if
NEPA analysis shows an airport action would cause a significant impact
in a foreign land. Revised paragraph 208 includes the need for FAA to
coordinate communications with the Department of State through the
Department of Transportation's Office of Transportation Policy
Development (P-100), per Order 1050.1E, paragraph 521f.
i. Paragraph 209 (paragraph 513 in the draft Order) has been
revised to distinguish between: (1) FAA grant funding for development
of wildlife hazard management plans (WHMPs) and approval of those plans
based on safety factors; and (2) subsequent FAA actions to support
implementation of measures in those plans. The instructions for NEPA
review associated with WHMPs are now similar to the instructions for
NEPA review regarding airport noise compatibility planning. Paragraph
303.b of draft Order 5050.4B noted that issuance of AIP grants for
noise compatibility planning is categorically excluded under paragraph
307n of Order 1050.1E. Paragraph 209a of the Order 5050.4B clarifies
that the grant to fund the development of a WHMP or the approval of
that plan normally qualifies for a categorical exclusion under Order
1050.1E, paragraph 308e. Paragraph 209.b clarifies that airport layout
plan approvals and/or approvals of grants for Federal funding to carry
out measures in FAA approved WHMPs: (1) May qualify for a categorical
exclusion; or (2) may require preparation of an environmental
assessment or an environmental impact statement.
j. Paragraphs 212.e and 303 provide information on complying with
Executive Order 13175, Consultation and Coordination with Indian Tribal
Governments. The paragraphs discuss the need for government-to-
government relations when a project may involve or affect federally-
recognized Tribes, their trust resources, or other rights. The
paragraph also notes FAA personnel must follow FAA Order 1210.20,
American Indian and Alaska Native Tribal Consultation Policy and
Procedures when addressing issues with those Tribes.
k. Paragraphs 210 through 214 provide detailed policies and
procedures for FAA's State Block Grant Program (SBGP). ARP presents
detailed guidance to fulfill a commitment FAA made in the Preamble to
Order 1050.1E. Specifically, paragraph 210 of Order 5050.4B discusses
the SBGP in general and the SBGP actions at non-primary airports that
are the responsibilities of states participating in the SBGP. Paragraph
211 notes that these duties include completing the environmental
requirements ARP would have normally fulfilled for an airport-specific
project and associated Federal actions if ARP had retained discretion
over the use of SGBP funds. Under 49 U.S.C. 47128, states participating
in the SBGP assume administrative responsibilities for all airport
grant amounts available under Subchapter 1 of Chapter 471 (49 U.S.C.
47101-47137) (the SBGP), except for amounts designated for use at
primary airports. For purposes of paragraphs 210-214, Order 5050.4B
distinguishes between apportionment of funds made available to the
states under 49 U.S.C. 47114(d)(2) and (3) and discretionary funds
awarded to airports under 49 U.S.C. 47115 and administered by states
participating in the SBGP. Paragraph 212 notes that ARP does not have
approval or funding authority for projects under the SBGP wholly funded
through apportionments under 47114(d)(2) and (3). A state agency's
assignment of SBGP money for specific airport actions to individual,
non-primary airports is not a ``Federal action.'' Therefore, NEPA does
not apply to those airport actions because FAA has no discretion over
the use of the SBGP funds financing those actions. However, the
paragraph notes that for policy reasons, ARP contractually requires
states participating in the SBGP to fulfill the environmental duties
ARP would have fulfilled if it had discretion over SBGP airport
actions. This contractual commitment ensures that the participating
states properly evaluate and consider the potential environmental
impacts resulting from SBGP airport actions before deciding to fund
those projects under the SBGP. Paragraph 212 further discusses how an
SBGP agency must use this Order to prepare environmental documents for
SBGP actions. Paragraphs 212.b and c note that contractual commitments
under the SBGP depend on whether the participating state is subject to
``NEPA-like'' or ``non-NEPA-like'' state environmental laws. Paragraph
213 discusses the actions connected to SBGP airport actions that are
outside the SBGP that remain under the authority of ARP or other FAA
organizations. For those connected actions, the FAA organization having
authority for the action outside the SBGP (e.g., installing radars,
NAVAIDS, lighting systems, etc.) remains responsible for complying with
NEPA and other applicable environmental laws pertaining to those
actions. The paragraph also notes that ARP retains responsibility where
the SBGP agency requests AIP discretionary funding to supplement SBGP
funding for a specific airport project at a specific location.
Paragraph 214 provides information on environmental documents needed
for SBGP projects and their connected actions and SBGP and FAA
organization NEPA responsibilities for those actions.
l. As noted earlier, Chapter 4 is a new chapter on public
participation. ARP includes it to highlight the importance of public
participation in the NEPA process for airport actions. ARP decided to
dedicate a chapter on this topic to make it easier to find instructions
on this critical process. The draft Order inconveniently presented this
information in different Chapters.
m. ARP includes Chapter 5 in the Order to highlight the need to
closely coordinate airport planning and the NEPA process. Doing so
allows airport sponsors to plan their projects efficiently and
facilitate FAA's subsequent evaluation of an airport plan's
environmental effects. CEQ regulations tell agencies to integrate
planning and NEPA as early as possible. This chapter underlines this
requirement by alerting airport sponsors, their planners, and ARP
personnel to it. It significantly expands upon the information included
in paragraph 302 of the draft Order that addressed coordinating airport
planning and NEPA. This interdisciplinary coordination is not intended
to be a substitute for the NEPA process. Instead, it encourages
planners to work with environmental specialists to identify sensitive
environmental resources and consider alternative ways to avoid or
reduce a project's
[[Page 29017]]
environmental impacts early in the planning process when the greatest
range of alternatives exists. If those alternatives do not exist, this
coordination help ensure unavoidable environmental effects are
justified and minimized as much as practical. The chapter adds
paragraph 504d. The paragraph states that the range of alternatives FAA
and the airport sponsor consider during airport planning may be limited
to those actions within the sponsor's or FAA's purviews. This is
different than the range of alternatives FAA considers during the NEPA
process, since NEPA requires the lead Federal agency to examine
alternatives that are outside the agency's jurisdiction. The chapter
also discusses critical airport planning data for which the airport
sponsor is responsible and the data's importance to effective and
efficient environmental analyses. The chapter discusses key planning
steps that help FAA and airport sponsors meet their responsibilities
and streamline the planning and NEPA processes. ARP experience shows
that failure to coordinate these processes causes delays in the
preparing NEPA documents. Often, this is because important planning
data needed to thoroughly evaluate environmental effects were not
available when document preparation began.
n. Chapter 6 of the Order includes information on airport actions
that are normally categorically excluded (CATEXs). The draft Order
addressed CATEXs in Chapters 4 and 6, but to improve document
organization, the final Order places information on CATEXs in Chapter
6. Tables 6-1 and 6-2 list those portions of the categorical exclusions
in Order 1050.1E, paragraphs 307-312 discussing airport actions. Table
6-1 lists the CATEXs rarely involving extraordinary circumstances,
while those listed in Table 6-2 involve those circumstances more often.
ARP personnel must use the citations from Order 1050.1E as
authorizations for the CATEXs Tables 6-1 and 6-2 summarize.
Table 6-1 does not add or alter any CATEXs. However, Table 6-2
Order includes a new categorical exclusion addressing categorically
excluded actions in non-jurisdictional wetlands and a CATEX addressing
voluntary airport low emission equipment (VALE). ARP proposed those
categorical exclusions in the December 16, 2004, Notice of Availability
of draft Order 5050.4B. Based on comments it received on those issues,
ARP has inserted information to address those activities in Table 6-2.
Readers should recall that paragraph 310k of Order 1050.1E includes
categorically excluded actions in jurisdictional wetlands qualifying
for Corps of Engineers General Permits (GP). This is because the Corps
issues GPs for the types of actions that do not normally cause
significant environmental effects (i.e., categorical exclusions). The
new entry in Table 6-2 addressing non-jurisdictional wetlands uses
similar rationale. That entry focuses on those actions that are
normally categorically excluded, but that are not covered by GPs
because the actions would not involve jurisdictional wetlands.
Nevertheless, by designing projects to meet GP design standards, ARP
contends those projects would not normally cause significant
environmental effects, provided there are no extraordinary
circumstances. Therefore, the actions qualify as categorical exclusions.
Turning to VALE, Table 6-2 includes actions addressing this
equipment because paragraphs 309u, 310f, 310n, and 310u of Order
1050.1E address many of the actions associated with installing
facilities needed for VALE. See Comments Addressing Table 2 at the end
of this Preamble for more information on categorically excluding VALE.
Paragraph 603 emphasizes the need for airport sponsors to provide
responsible FAA officials with specific environmental information when
sponsors propose actions that may qualify for CATEXs. ARP highlights
this step to encourage airport sponsors to collect information the
responsible FAA official will need to review a potential CATEX. Doing
so should quicken the responsible FAA official's review of a proposed
CATEX because the sponsor's request comes to FAA with information the
official needs to thoroughly review the proposed airport action. The
paragraph also encourages sponsors to allot enough time in project
schedules: to collect needed information; to verify that the sponsor or
FAA, as appropriate, has complied with special purpose laws related to
any potential extraordinary circumstances; and to enable the responsible
FAA official to complete a timely review of the proposed action.
Table 6-3 alphabetically lists and annotates the extraordinary
circumstances that FAA Order 1050.1E, paragraph 304 presents. Readers
should note that ARP has added a footnote to this table defining the
terms, ``dividing'' and ``disrupting'' communities. ARP did this to
address many questions it received on these terms as they relate to
airport-induced community impacts. The Order also provides instructions
on special purpose laws and their relationships to extraordinary
circumstances when determining if an action may be categorically
excluded. Paragraph 606.b provides details on how the responsible FAA
official must address extraordinary circumstances involving special
purpose laws. Paragraph 607 highlights required and optional
documentation for CATEXs with extraordinary circumstances that involve
special purpose laws. The paragraph notes that FAA requires specific
documentation before it issues a CATEX for a proposed action that
possibly involves extraordinary circumstances associated with one or
more applicable special purpose laws. That documentation is helpful in
determining the level NEPA review, but it is not for NEPA purposes.
Rather, it shows compliance with the applicable special purpose law.
Paragraph 607 also tells the responsible FAA official to ensure that
case files for CATEXs involving special purpose laws include
documentation to show FAA has complied with the special purpose laws
applicable to those CATEXs.
Paragraph 608 requires the responsible FAA official to inform the
airport sponsor via a dated letter or dated e-mail that ARP has
categorically excluded an action. ARP includes this instruction to
ensure airport sponsors know that ARP has completed the NEPA process
for a categorically excluded action, or that it has denied a CATEX for
a proposed action. ARP makes this a formal step in its NEPA
implementing instructions to address misunderstandings that have
occurred concerning categorically excluded airport actions.
o. ARP revised Chapter 7 to place information about environmental
assessments (EAs) in one chapter. Paragraph 405 of the draft Order
expanded the list of airport actions normally requiring EAs. ARP did
this to respond to a number of questions about a variety of actions
that Order 5050.4A, paragraph 22 (``Actions normally requiring an
Environmental Assessment'') did not address. Final Order 5050.4B adopts
the list presented in paragraph 405 of the draft Order. The list
appears at paragraph 702. Readers should also note that ARP has added
paragraph 702.j (``Other circumstances'') to the list in the final
Order. That paragraph states that the responsible FAA official should
consider the need for an EA in circumstances not mentioned in
paragraphs 702.a-i, particularly when controversy exists because the
proposed action involves a special purpose law. Paragraph 703 discusses
those situations where ARP
[[Page 29018]]
suggests that it, not the airport sponsor, selects the consultant who
will prepare an EA for an airport project. ARP addresses this as a way
to streamline the NEPA process, if an EA might later show indicate an
EIS is needed. Paragraph 705 includes information on when scoping is
helpful for an EA. Paragraph 706 provides information on EA format and
content. Paragraph 706.b provides information on Purpose and Need. To
conform to 1050.1E, paragraph 706.d.(5) provides details on when an EA
must consider unresolved conflicts and the resulting need to expand the
EA's Alternatives Analysis beyond the No Action and Proposed Action
Alternatives. Paragraph 707.e discusses required and optional Regional
Counsel reviews of EAs addressing airport actions. Paragraph 708 notes
that a sponsor must coordinate EAs with FAA before issuing them for
comment, including those the public will review when preparing for a
public hearing. The paragraph notes that the sponsor must: (1) File the
Draft EA with the FAA for review; (2) make the revisions the FAA
reviewer notes; and (3) make the revised EA available to the public at
least 30 days before the hearing occurs. ARP provides this information
to ensure draft EAs are available to interested parties as they prepare
for a public hearing, if one will be held. ARP provided that
information in draft Order 5050.4B, at paragraphs 307c.(2) and (3).
ARP includes new table (Table 7-1) in this chapter. For
convenience, Table 7-1 presents agency-wide, impact-specific
significance thresholds that Order 1050.1E, Appendix A contains. In
addition, ARP supplements those thresholds with helpful information
from Order 5050.4A, paragraphs 47.e and 85. a through t that Order
1050.1E, Appendix A does not present. ARP provides this information
from Order 5050.4A (called ``intensity factors'' in draft Order
5050.4B) because experience shows that it is very useful to ARP
specialists and others evaluating environmental impacts associated with
the land or water impacts airport projects may cause. During the past
20 years, ARP personnel have found that information very helpful in
determining if a proposed airport action requires an EA or EIS.
Paragraph 712 refers the reader to Chapter 14 of the Order to
ensure Order users know ARP is following the requirement in Order
1050.1E paragraph 411 fixing a 3-year ``shelf life'' for all FAA EAs.
Paragraph 713 refers the reader to Chapter 14 of this Order for
instructions on re-evaluating or supplementing an EA for an airport action.
p. Paragraph 800.a discusses the approving FAA official's use of
significance thresholds when determining if a FONSI is appropriate for
a proposed airport action. Paragraph 801 discusses the process when the
approving FAA official prefers an alternative differing from the
airport sponsor's proposed action. Paragraph 802 presents information a
FONSI should contain and the specific wording reflecting the approving
FAA official's environmental finding. Paragraphs 803 and 804 discuss
the internal coordination and public reviews FONSIs undergo. In
particular, paragraph 803.c discusses when a Regional Administrator
will sign a FONSI. The paragraph also notes that before the Regional
Administrator signs a FONSI, various FAA organizations responsible for
a portion of the proposed project must review the FONSI.
Paragraph 805.a describes the factors the responsible FAA official
should consider when determining if Record of Decision is needed for a
FONSI (``FONSI/ROD''). As Order 1050.1E, paragraph 408 notes, a FONSI/
ROD is a combined decision document and environmental determination FAA
uses for controversial actions that are the subjects of EAs and FONSIs
and other specified actions.
Paragraph 806 provides information on distributing approved FONSIs,
while paragraph 807 discusses the process for notifying the public
about a FONSI's availability. Paragraph 808 directs the approving FAA
official to incorporate in a grant assurance or unconditional ALP
approval letter the mitigation measures required to support a FONSI. It
also suggests that FAA use an EMS to track compliance with mitigation
commitments.
q. Chapter 9 provides information on EISs. Paragraph 902.c
encourages the responsible FAA official to consult with interested
parties and involved FAA organizations to establish schedules for
preparing EISs. It notes that FAA officials must establish EIS
schedules when requested by the airport sponsor. Factors an official
and a sponsor should consider when developing a schedule include the
proposed action's complexity and the complexity of the environmental
analyses and processes needed to complete the analyses. However,
interested parties should note even the most thoughtfully developed
schedule is subject to events beyond FAA's control and those events may
affect any projected schedule. FAA officials will notify and consult
airport sponsors when the volume or nature of comments on a DEIS
require schedule adjustments (paragraph 1200.c of the final Order).
Otherwise, FAA officials exercise their discretion when revising the
schedule to accommodate such unforeseen events.
Paragraph 903 lists those airport actions that normally require FAA
to prepare EISs. Paragraph 904.b notes that FAA will begin the EIS
preparation as soon as possible after the airport sponsor presents FAA
with a proposal within the meaning of 40 CFR 1508.23. FAA will consider
whether there is sufficient airport planning data and information when
determining if a proposal exists. ARP will do so because during the
past decade it has found that a lack of well-conceived and well-
developed airport planning information or a failure to resolve planning
issues have caused substantial delays in preparing EISs. Often, these
delays were not NEPA-related, but, instead resulted from a lack of good
airport planning data. This lack of data severely hampered FAA's
subsequent ability to meaningfully evaluate project impacts and prepare
EISs. Because scoping is so critical to efficient, effective EIS
preparation, ARP included more information about the scoping process
(paragraphs 905 and 906) than Order 5050.4A provided. Paragraphs 907
and 908 discuss the timing and content of a Notice of Intent (NOI),
respectively. Paragraph 909 provides information on how the responsible
FAA official may withdraw an NOI. ARP includes this information to
address situations where, after anticipating significant impacts during
the scoping process, ARP's analyses showed a proposed action or its
reasonable alternatives, would not cause significant environmental
effects. Paragraph 910 provides expanded information on the responsible
FAA official's duties during scoping. ARP includes this information to
highlight the varied roles the official fulfills during this critical
stage in the EIS process. Paragraph 911 discusses the important roles
an airport sponsor may fulfill during scoping due to its knowledge
about the airport's operations and its relationship to the surrounding
area. Paragraph 912 notes FAA may be a cooperating agency, not the lead
agency, in certain situations warranting an EIS. For example, FAA is
normally a cooperating agency for airport actions involving military
base joint-use or re-use as a commercial airport or conveyance of
Federally-owned land for airport purposes.
r. Chapter 10 discusses the process used to prepare an EIS.
Paragraph 1001 discusses an EIS's purpose. That paragraph stresses the
need to prepare clearly-written documents so the public
[[Page 29019]]
unfamiliar with aviation may understand the purpose and need, a
sponsor's proposed project, reasonable alternatives, and the
environmental impacts the project or alternatives may cause. Paragraph
1003 provides information on preparing EISs. The paragraph discusses
``NEPA-like'' states and agencies. It explains how FAA and states or
their agencies that comply with laws similar to NEPA may work
cooperatively during EIS preparation to reduce duplicating efforts.
This paragraph also discusses ARP, airport sponsor, and environmental
consultant roles during ARP's EIS preparation. It reflects the policy
and procedures FAA has adopted for EIS preparation in response to
Citizens Against Burlington v. FAA, 938 F.2d 190, (DC Cir. 1991). The
paragraph notes that FAA decides EIS content, even though the airport
sponsor pays the environmental consultant's costs for ARP's preparation
of the EIS. Paragraph 1003.c provides information about a Memorandum of
Understanding (MOU) governing ARP, sponsor, and consultant roles during
EIS preparation. Paragraph 1003.d discusses the need for a Disclosure
Statement environmental consultants must sign to work with ARP as it
prepares the EIS. The paragraph also discusses the limits on consultant
activities during EIS preparation.
Paragraph 1004 discusses limitations on FAA and airport sponsor
activities during the EIS process. Paragraph 1004.a discusses limits on
airport sponsor or FAA activities that would cause adverse effects or
limit alternatives during the NEPA process. Paragraph 1004.c provides
information on the steps FAA officials must take if FAA becomes aware
that a sponsor is proceeding to final design while FAA is preparing an
EIS. ARP provides this information to alert Order users about the
requirements in CEQ regulations addressing limits on agency and airport
sponsor actions during the EIS process. ARP also includes this
information to address questions it has received about the level of
planning and design activities a sponsor should normally develop for
NEPA purposes. Conversely, paragraph 1004.d discusses the level of
plans and design a sponsor may need to apply for permits or financial
assistance. ARP recognizes the differences in design levels to
streamline the NEPA process and to avoid duplicating paperwork or State
or local procedures. Paragraph 1005 explains how ARP adopts another
Federal agency's EIS as another way to streamline (i.e., improve the
efficiency of) the NEPA process and to reduce paperwork and duplication
of efforts.
Paragraph 1007 provides re-organized and updated information on EIS
format and content to more closely track information in FAA Order
1050.1E. The paragraph also includes information from the FAA Guide to
Best Practices ARP has found important in preparing EISs. Paragraph
1007.b(8) clarifies instructions in the draft Order that discussed the
environmentally preferred alternative. To correctly reflect 40 CFR
1505.2(b), the final Order encourages FAA to identify the
environmentally preferred alternative in the final EIS. ARP makes this
change to more accurately reflect 40 CFR 1505.2(b), which requires
identification of that alternative in the Record of Decision, not the
final EIS.
Paragraph 1007.e(5) in the final Order now states the criteria the
responsible FAA official must consider when determining the
``prudence'' of an alternative per 49 U.S.C. 47106.(c)(1)(B). This
section of 49 U.S.C. requires the Secretary of Transportation to
consider a ``possible and prudent alternative'' when considering a
grant application for a project involving a new airport, a new runway,
or a major runway extension having significant adverse effects.
Although criteria in paragraph 1007.e(5) apply to decisions for actions
involving Section 4(f) resources (now, 49 U.S.C. 303), FAA is using
that definition of ``prudent'' for major airport projects to aid its
staff determine when an alternative is ``prudent.'' FAA worked with the
Federal Highway Administration (FHWA) on the definition as presented in
FHWA's March 2005 Section 4(f) guidance \4\ and believes it is appropriate
for FAA actions under 49 U.S.C. 47106.(c)(1)(B) as well as Section 4(f).
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\4\ http://enironment.fhwa.gov/dot/projdev/4fpolicy.asp.
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Paragraph 1007.h discusses the need to consult the airport sponsor,
FAA organizations, Tribes, or resource agencies about conceptual
mitigation measures that are not included in the proposed action.
Paragraph 1007.m stresses the use of appendices and references to
reduce EIS bulk. This promotes CEQ's intent to keep an EIS to a
manageable size.
s. Chapter 11 provides information on processing draft EISs (DEIS).
Paragraph 1100 discusses how ARP and other FAA organizations internally
review preliminary draft EISs. The process varies with the proposed
action and if it is subject to Vision 100's streamlining requirements.
Paragraph 1101 explains how to distribute DEISs for public and inter-
agency reviews. Various paragraphs provide addresses for headquarters'
offices of the Federal departments that review FAA DEISs. The
paragraphs also provide the number of hard copies (hard copies and CDs)
of a DEIS ARP must send to those departments. Paragraph 1101.b.(1)(d)
provides standard language certifying that ARP has issued DEISs to the
public at the same time or before it has filed the documents with the
U.S. Environmental Protection Agency (EPA). Paragraph 1104 provides
instructions for re-circulating DEISs. ARP provides this information to
answer questions it has received on this topic.
t. Chapter 12 discusses processing a final EIS (FEIS). Paragraph
1202 notes that CEQ requires an agency to identify its preferred
alternative in the FEIS, unless a law prohibits the agency from doing
so. This clarifies that FEISs must contain this information, if the
approving FAA official did not identify a preferred alternative in the
DEIS. Paragraph 1203.b requires the responsible FAA official to ensure
the FEIS contains evidence that: (1) An airport sponsor has either
certified that the airport management board has voting representation
from the communities; or (2) the sponsor has advised communities they
have the right to petition the Secretary of Transportation about a
proposed new airport location, new runway, or major runway extension.
Paragraph 1203.b.(3) directs the responsible FAA official to ensure
that on request, the airport sponsor has made available and provided to
an existing metropolitan planning organization in the area where an
action would occur, a copy of a proposed airport layout plan (ALP)
amendment depicting a major proposed airport project at a medium or
large hub airport and the master plan describing or depicting that
project. ARP includes this assurance to meet the requirements of 49
U.S.C. 47106(c)(1)(A)(iii) so that ARP may include that information in
its Record of Decision, if needed.
Paragraph 1206 discusses the need for an FEIS to include evidence
to support necessary determinations addressing impacts to
jurisdictional and non-jurisdictional waters and wetlands. Non-
jurisdictional wetlands are waters or wetlands that are not ``waters of
the United States'' under Section 404 of the Clean Water Act. Such
wetlands do not fall within the jurisdiction of the U.S. Army Corps of
Engineers. However, ARP includes information on non-jurisdictional
wetlands to address many questions it has received about
[[Page 29020]]
reviewing impacts to those resources. Paragraph 1206 clarifies that
impacts on all wetlands, including non-jurisdictional wetlands, must be
analyzed to comply with NEPA, Executive Order 11990, Protection of
Wetlands; and DOT Order 5660.1A, Preservation of the Nation's Wetlands.
Paragraph 1208 discusses the need for an FEIS to include evidence
to support determinations in a ROD for a proposed action that affects
coastal resources, even if the action is not at an airport located
within the boundaries of a designated coastal zone area. ARP includes
this information to address amendments to the Coastal Zone Management
Act (CZMA). Among other things, the amendments require Federal agencies
to address impacts to coastal zone resources, even if a project occurs
outside a state's coastal zone boundaries. Paragraphs 1208.a and b
discuss the evidence that an FEIS must include to support
determinations in a ROD regarding 15 CFR subparts C and D (regulations
implementing the CZMA). Paragraph 1208.a provides information on CZMA
consistency requirements for actions FAA does not undertake, but for
which it has approval authority. Paragraph 1208.b provides information
about consistency requirements for projects FAA itself undertakes, such
as installing a NAVAID in a coastal zone. ARP includes this information
to highlight the different CZMA requirements that may apply to airport
actions.
Paragraph 1209 clarifies the evidence that an FEIS should include
for actions involving disproportionately high and adverse impacts on
minority and low-income populations. ARP includes this information in the
final Order to ensure FEISs address this important issue when appropriate.
Paragraph 1210 discusses the delegation of authority within ARP to
approve environmental documents and decisions under FAA Order
1100.154A, Delegation of Authority, dated June 12, 1990. The Order
delegates approval authority for certain airport projects from the FAA
Administrator to the Associate Administrator for Airports (ARP-1). ARP-
1 may further delegate that authority, per Order 1100.154A, as
paragraph 1210 explains.
Paragraph 1211 provides updated information on FEIS distribution to
reviewing Federal agencies. Various subparagraphs discuss the number of
FEIS copies (hard and CD) the responsible FAA official must send to
various reviewers. Paragraph 1211.c discusses when FAA may extend the
30-day ``wait period'' between the time EPA publishes a notice of an
FEIS's availability in the Federal Register and the time the agency
issues a decision on a proposed action. Order 5050.4B provides this
information for those rare occasions when FAA may wish to exercise this
option under 40 CFR 1506.10(d).
Paragraph 1212 discusses more details concerning the process for
referring EISs to CEQ under 40 CFR part 1504. ARP includes this
information to ensure its personnel know about this little used, but
important CEQ provision.
u. Paragraph 1301.g requires FAA to ensure the agency and the
airport sponsor complete required mitigation. The paragraph suggests
using an Environmental Management System (EMS) is an excellent way to
track the sponsor's compliance with required mitigation and promote
Executive Order 13148, Greening the Government Through Leadership in
Environmental Management.
Paragraph 1304 discusses the requirement at 40 CFR 1506.6(b) to
notify the public about ROD availability for major Federal actions. The
paragraph urges ARP personnel to publish notices announcing FAA's
issuance of a ROD for an airport project. Although this is not a CEQ
requirement, ARP recommends this because this is an effective way to
inform the public about ARP decisions significantly affecting the
environment. It also provides a clear starting point for the 60-day
statute of limitations for legal challenges under 49 U.S.C. 46110.
v. Paragraph 1401 provides guidance on the longevities of draft and
final EAs and EISs, the need for re-evaluating those documents, and the
need to supplement them. ARP provides that information to address
questions about EA and EIS ``shelf-live'' it has received since issuing
Order 5050.4A in 1985 and to comply with FAA Order 1050.1E, paragraphs
402.a and 514. ARP addresses these issues to ensure NEPA documents
provide approving FAA officials with the best available information.
ARP further clarifies that a written re-evaluation is required when the
responsible FAA official determines an EIS must be re-evaluated.
Paragraphs 1401.b and c discuss the factors the responsible FAA
official considers when deciding if he or she must re-evaluate a draft
or final EIS, respectively. Readers should note that paragraph 1401.a
also notes that the responsible FAA official may use discretion when
determining the need for a written re-evaluation in other
circumstances. The official may also use discretion when deciding if
FAA will distribute the re-evaluation to the public. Order 5050.4B
includes this requirement to address an oversight in Order 1050.1E that
FAA corrected in Change 1 to Order 1050.1E (Notice of Adoption, Notice
of Availability (71 FR 15249, March 27, 2006).
Paragraph 1402 provides information about supplementing EAs and
EISs to address many questions ARP has received on this topic since
issuing Order 5050.4A in 1985. It notes that FAA, and, therefore, ARP,
is applying the standards it uses for EISs to EAs to ensure FAA NEPA
documents provide accurate and timely information. Paragraphs 1403 and
1404 address tiering EISs and emergency situations and EIS preparation.
w. Chapter 15 provides information on streamlining the EIS process
for certain airport projects to address Vision 100 requirements. Among
other things, Vision 100 requires streamlining the environmental
process for airport capacity projects at congested airports. These are
airports that account for at least 1% of all delayed aircraft
operations in the Nation. Vision 100 also applies to airport safety and
airport security projects throughout the nation, regardless of their
congestion levels.
x. ARP has deleted paragraph 407 in the draft Order addressing
cumulative impacts. More extensive information on cumulative impacts
now appears in paragraph 1007.i of the final Order. ARP will provide
more detail on this topic in the Desk Reference. Until ARP issues that
information, document preparers and reviewers should use information in
paragraph 1007.i of this Order, paragraph 500c of Order 1050.1, and
CEQ's guidance on assessing cumulative impacts, Considering Cumulative
Effects Under the National Environmental Policy Act
(http://ceq.eh.doe.gov/nepa/ccenepa/ccenepa.htm).
ARP has also deleted the examples of the third party Memorandum of
Understanding and the ``short form'' Environmental Assessment that were
included as appendices of the draft Order. ARP is deleting them because
it has decided to place examples of documents and other information
that ARP has found helpful but not required in the Desk Reference.
y. Appendix 1 includes updated flowcharts on completing the NEPA
processes for categorical exclusions, EAs, FONSIs, EISs, and RODs.
Disposition of Comments: ARP has made additional changes,
clarifications, and corrections to the final Order. It does so in
response to comments received after publishing the Federal Register
notice of December 16, 2004, announcing the availability of the draft
Order for public review. The changes, clarifications, and corrections are
[[Page 29021]]
discussed in the following sections of this Preamble. ARP received
comments from three primary sources: (1) An organization representing
airport management; (2) an organization representing state, regional,
and local governing bodies that own and operate the principal airports
serving scheduled air carriers in the United States and Canada; (3) two
individual airport sponsors; (4) an organization representing airport
consultants; (5) two individual airport consultant corporations; (5)
two Federal agencies; (6) various state and local governments; and (7)
one member of the public. The term ``comment'' used in this Preamble
refers to an individual issue a commenter raised. A commenter may have
raised numerous issues in correspondence forwarded to ARP from the
docket. This Preamble also discusses substantive comments resulting
from deliberative discussions with the Office of the Secretary of
Transportation, the Council on Environmental Quality, internal FAA
elements and ARP personnel at regional and district offices.
ARP classified the comments received into three categories: (1)
Comments that broadly cover the entire Order; (2) comments that relate
to a paragraph or a portion of paragraph in the Order; and (3) comments
on Tables 1-3. ARP has provided specific responses to those comments in
that sequence, with the level of response commensurate with the degree
of public interest expressed.
General Comments
The Order in general: FAA received several comments on the need to
update FAA Order 5050.4A. One commenter noted the revised Order was
long overdue. Many commenters applauded ARP's efforts to update
instructions in a writing style that was clearer and easier to
understand than the previous Order. Nevertheless, several commenters
noted the document is a ``work in progress.'' Two commenters
recommended that ARP conduct working sessions conducted with an open
dialogue to address some of the comments of major concern. ARP's
response: FAA notes the comment on the need to update FAA Order
5050.4A. It appreciates the comments on the effort to update the
instructions in a plain writing style. ARP has adopted that style for
this Order to help the public understand its NEPA procedures and to
comply with FAA requirements to prepare documents in plain English. FAA
acknowledges that the draft Order contained language and instructions
that required further input to ensure the final version addressed major
concerns and that it was a valuable tool in completing the NEPA process
for airport actions.
Regarding working sessions, ARP personnel met with representatives
of some of the commenting organizations at various times and locations.
In these instances, ARP: (1) Discussed the major concerns the
organizations had about the draft Order; (2) sought clarification of
other concerns the commenting organizations expressed; and (3) answered
questions about the Order. ARP believes the final Order is improved due
to this and other efforts. This Preamble's General Discussion provides
ARP's reasons for revising the Order to address general comments on the
draft. The section of the Preamble entitled Beginning responses to
comments on specific paragraphs of the draft Order addresses comments
on specific paragraphs and provides ARP responses to those comments.
Best Practices: On commenter suggested adding information from The
FAA Guide to the Best Practices for Environmental Impact Statement
Management (Best Practices). The commenter seeks blending information
from the Best Practices with the Order's text or placing it as an
appendix to the Order. ARP's Response: Agree, in part. Chapter 5 of the
Order is based on and incorporates much of the Best Practices'
information linking airport planning and the NEPA process. However, ARP
believes it is not necessary to include the entire Best Practices
document as an appendix to this Order. ARP prepared the Best Practices
material as internal guidance and appreciates the commenter's
complements on it. Readers seeking additional information on those
practices should visit the Best Practices \5\ Web site.
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\5\ http://www.faa.gov/Arp/environmental/5054a/bestprac.cfm.
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Chapters addressing EISs: One reviewer states the Order would be
more user-friendly if Chapters 9 through 12 were combined into one
chapter addressing EIS preparation and processing. The reviewer is
concerned that the draft Order's presentation could lead users to think
that the instructions are not linked. Consequently, users will not
realize these chapters provide details on the various steps the
responsible FAA official and/or FAA's EIS contractor complete as they
prepare an EIS. ARP's Response: Disagree. No other reviewers have
voiced this concern. ARP retains the draft Order's presentation. It
presents individual, successive chapters explaining how to: (1) Begin
and finish preparing a draft and final EIS; (2) making those documents
available for public review and comment; (3) responding to those comments
in the final EIS; and (4) preparing and issuing a Record of Decision.
Consistency and redundancy with FAA Order 1050.1E: Many commenters
stated the draft Order was inconsistent with Order 1050.1E. ARP's
Response: ARP believes revisions to the draft Order have addressed this
concern. ARP intends the instructions in Order 5050.4B to be
substantively consistent with 1050.1E, differing only as necessary to
provide more specific instructions tailored to airport actions and to
legal reviews of environmental assessments and Findings of No
Significant Impact.
Turning to redundancy issues, a few commenters noted that this
Order repeated guidance in Order 1050.1E or relied on it. ARP's
Response: Order 1050.1E addresses NEPA requirements for all FAA
organizations. However, Order 5050.4B provides NEPA instructions
tailored to airport projects. Readers should note that ARP cited
paragraph from Order 1050.1E to address comments and underscore certain
requirements germane to the agency (e.g., 3-year ``shelf life'' for an
environmental assessment; preparing a Record of Decision for a Finding
of No Significant Impact, etc.). ARP did this to highlight new, agency-
wide procedures.
Another commenter suggested deleting the tables in Order 5050.4B
(Tables 6-1 and 6-2 of this Order) containing portions of CATEXs in
paragraphs 307 through 312 of Order 1050.1E. (Tables 6-1 and 6-2 of the
final Order provide alphabetically arranged, annotated sections of
those paragraphs that apply to airport actions). The commenter stated
that having to cite the paragraph in 1050.1E would ``tend to confuse''
many people. ARP's Response: ARP does not agree. This commenter was the
only one noting possible confusion. To avoid this confusion and to
stress there is only one list of FAA-wide categorically excluded
actions, Order 5050.4B uses the citations from Order 1050.1E. Paragraph
602.c of Order 5050.4B clearly instructs the responsible FAA official
to use information in column C of Tables 6-1 and 6-2 as the cites for
the paragraphs in Order 1050.1E containing the annotated airport action
under review.
Consultation with airport sponsors: A commenter urged ARP to
include airport sponsors in the NEPA process. Although the commenter
recognizes FAA's expertise in the national air transport system, it
notes that airport sponsors have greater expertise than FAA personnel
on local issues, financial
[[Page 29022]]
resources, business arrangements with airlines, and other users
specific to their respective airports. In addition, sponsors have the
best knowledge of the goals and objectives they wish their airports to
attain. They, better than FAA, can provide valuable information on
those issues to ensure proposed airport actions address the problems
sponsors face. The commenter stated it knows of instances where the
airport sponsor was virtually excluded from the preparation and
issuance of draft NEPA documents. The commenter stated that the
exclusion of sponsors from participating in EIS preparation had
potentially serious ramifications on the end product. Therefore, the
commenter urges ARP to include airport sponsors in the NEPA process and
to help reduce risks of error and delay in that process. The commenter
notes sponsors can do so without compromising the independence FAA
needs in making decisions about sponsor proposals. ARP's Response: ARP
thanks the commenter for recognizing FAA's expertise and agrees airport
sponsors provide valuable local and regional information about airports
and proposed airport actions. For these reasons, ARP facilitates
sponsor participation in the NEPA process. For decades, ARP shared pre-
decisional drafts of EIS's with sponsors to achieve common goals,
including, among others, the preparation of a complete, accurate, and
comprehensive report on environmental impacts sufficient to survive
judicial review. However, in response to a recent U.S. Supreme Court
decision (Department of the Interior v. Klamath Water Users Protective
Association, 532 U.S. 121 S. Ct. (2001)), ARP now limits sponsor
participation in terms of access to pre-decisional, deliberative
material more so than it did in the past. Today, as a result of the
Supreme Court's decision, ARP, on a case-by-case basis, decides when
sponsor participation in the NEPA process should include access to pre-
decisional, draft documents such as preliminary draft EISs or draft
technical reports. ARP staff typically limits sponsor access to draft
versions or reports and documents during the NEPA process for two
reasons. First, it does so where there is a high level of public
distrust and concern about the NEPA process' integrity and objectivity.
Second, it does so on controversial projects to help minimize delays in
preparing a draft EIS that may arise when ARP staff must devote time to
compiling and releasing documents in response to requests under the
Freedom of Information Act (FOIA). Under the FOIA, FAA must release to
the public the information it shared with airport sponsors. This is
because under the Klamath Decision, the release of that information
waives FAA's privilege to withhold information as deliberative in
nature under Exemption 5 of the FOIA.
In response to this comment and concerns airport sponsors expressed
in the past, ARP has identified what it considers to be a best practice
already in use in some regional and field offices. When planning the
EIS process and developing EIS schedules, ARP encourages its staff to
seek agreement with airport sponsors about the types of preliminary EIS
material they wish to see and when the sponsor wants to see it. ARP and
the sponsor will not consider just the potential consequences under
FOIA, but also state and local laws bearing on the release of
deliberative NEPA documents, including sunshine laws and mini-NEPA laws
that may apply to the airport sponsor. They will also decide if it
makes sense for FAA to seek help from sponsors to accomplish needed
tasks and minimize risks of analytical mistakes that could affect the
quality of NEPA documents. In each case, ARP will also consider the
quality of the relationship and the level of trust with the community.
It will also consider the potential chilling effect on the internal
deliberative process that may occur due to the release of documents
under FOIA. ARP, in consultation with the airport sponsor, will then
design the appropriate document review process.
Desk Reference. ARP received varied comments on its decision to
publish a separate document entitled, Environmental Desk Reference for
Federal Airport Actions. ARP's Response: Comment noted. Order 5050.4B
focuses on the NEPA implementing instructions for airport projects
under FAA's purview. However, the Desk Reference will be a compendium
of special purpose laws outside NEPA that also apply to those projects.
As a compendium, it simply places all of the environmental laws,
regulations, and executive orders outside NEPA in one location for the
use and convenience of those analyzing airport actions.
ARP is also issuing the Desk Reference to be more responsive to
changes in the many non-NEPA laws and regulations that change more
frequently than NEPA and the CEQ regulations implementing it. A lack of
updated information on non-NEPA laws and regulations in Order 5050.4A
has been a source of legitimate concern from ARP staff and other users
of Order 5050.4A during the past decade. ARP believes the Desk
Reference is the most flexible and best way to address this problem.
Since 1985, when FAA issued Order 5050.4A, many laws, regulations
and orders outside NEPA have been amended or revised, while CEQ's
regulations have had one minor change during that period. However,
readers should note that since 1985, ARP has issued over 17
Supplemental Guidance Memos to its personnel. Those memos ensured ARP
staff had updated instructions on non-NEPA issues resulting from new or
amended laws, or regulations implementing them. Also, during training
classes and via other methods, ARP issued many instructions to its
environmental staff concerning procedural or analytical changes related
to special purpose laws. When compared to these past practices, ARP
believes the Desk Reference will be a more formal and efficient way to
distribute updated information on special purpose laws and how they
relate to airport projects.
ARP will issue the Desk Reference after it issues this Order. Until
then, ARP staff and other interested parties must use Appendix A of
Order 1050.1E for information on assessing resources outside NEPA. When
ARP issues the Desk Reference, all parties should use the Desk
Reference to analyze airport actions. ARP will make the Desk Reference
and changes to it available to ARP's regional and district office
personnel and the public. It will do so by placing it on ARP's Web
site. In addition, ARP will contact groups representing airport
sponsors about the updates and rely on those groups to help ARP
announce those updates.
ARP made the decision to issue the Desk Reference after reviewing
comments on Order 1050.1E's inclusion of Appendix A, which addresses
many of the same Federal laws, regulations, and executive orders as the
Desk Reference (69 FR 33810 June 16, 2004). In that Federal Register,
FAA stated that Appendix A is a helpful attachment to the Order but
that it, ``* * * will consider changing the format in subsequent
revisions of the Order.''
Some reviewers stated that ARP should develop the Desk Reference in
collaboration with industry stakeholders to ensure NEPA documents meet
NEPA/CEQ objectives and how those objectives affect the daily
operations of airports. ARP's Response: ARP appreciates and understands
these concerns, but emphasize that the Desk Reference merely summarizes
existing legal requirements. It contains no policy guidance
implementing NEPA, so ARP sees little value in affording an opportunity
for public review and
[[Page 29023]]
commend in advance. Nevertheless, after publishing this Order, but
before issuing the Desk Reference, ARP will distribute selected
chapters of the Desk Reference for public information purposes only.
In a related matter regarding the Desk Reference, one commenter
stated that ARP's failure to prepare an order substantially covering
the same material that Order 5050.4A contained (the Order had extensive
information on non-NEPA requirements that the Desk Reference will
provide) did not meet Congress' intent. ARP's Response: ARP
respectfully disagrees. ARP notes that as the FAA office responsible
for analyzing airport actions, it will consider input from
stakeholders, but it has the discretion to decide the contents of Order
5050.4B, provided it meets CEQ, DOT, and FAA requirements. Readers
should note ARP prepared this Order in consultation with CEQ. It has
received a finding from CEQ that the Order conforms to NEPA; therefore,
ARP is assured the Order meets the requirements of NEPA and its
implementing instructions. Finally, concurrence of DOT's Acting
Assistant Secretary for Transportation Policy indicates Order 5050.4B
conforms to DOT requirements.
In another related matter, commenters further noted that ARP's
failure to make the Desk Reference available for public review is
inconsistent with Vision 100's mandate that FAA issue a revision to
Order 5050.4A. ARP's Response: ARP appreciates and understands these
concerns. Section 307 of Vision 100 set a date by which FAA was to
publish a draft version of Order 5050.4B. It did not limit the agency's
discretion to update the Order or specify any material that the Order
had to include.
ARP wishes to highlight that the agencies responsible for the
regulatory changes beyond NEPA often publish those changes in the
Federal Register for public review and comment. ARP has the discretion
to summarize environmental laws and regulations other than NEPA and how
they typically apply to airport actions for ease of reference for its
personnel in a Desk Reference. As noted earlier, ARP decided the Desk
Reference affords a flexible way to stay apprised of the ever-changing
regulatory landscape and how it applies to airport actions under FAA's
purview. ARP will distribute selected chapters of the Desk Reference
for public information purposes only.
Finally, some commenters agree with ARP's approach. However, they
are concerned about placing instructions in a Desk Reference makes the
instructions in that document difficult to legally defend. ARP's
Response: ARP disagrees. Many if not most of the laws and information
in the Desk Reference have their own enforcement provisions. ARP's
decision to not include them in Order 5050.4B does not diminish those
provisions.
Editorial and grammatical errors: Commenters noted the draft Order
contained editorial, grammatical, and formatting errors. ARP's
Response: ARP agrees. Readers should note that ARP has not prepared
responses to comments on grammatical errors the draft Order contained.
Doing so would make this Preamble far too long and cumbersome to read.
ARP believes that the extensive re-organization and editing of the
Order have addressed most of the organizational and grammatical
concerns commenters noted.
Electronic distribution of this Order: A commenter indicated that
ARP should distribute the Order in compact disc (CD) format or post it
on the internet. ARP's Response: Agree. ARP will provide free copies of
the Order on CD or paper when requested. However, it urges users to use
Web access when possible. ARP has posted this Order on the ARP Web site
mentioned in the Summary section of this Preamble.
Electronic distribution of NEPA documents and related materials: A
commenter requests information on the electronic distribution of
documents. ARP's Response: ARP has included this information in
Chapters 7, 8, 11, and 12 of the Order.
FAA resources: A commenter states that the draft Order assumes the
existence of FAA resources that are not present. Airport sponsors
remain frustrated with the time FAA staff needs to address airport
projects. The Order assumes the staff has the expertise and experience
needed with airports, but many FAA offices do not have those abilities.
Staff resources and experience must increase ``dramatically'' to meet
the Order's instructions. The Order should candidly address the problem
and provide procedures that that limited FAA staff can meet. The
commenter states it has historically supported FAA efforts to get the
resources needed to meet agency duties and will continue to do so.
ARP's Response: ARP appreciates the commenter's support for adequate
FAA resources. ARP also understands and appreciates the frustration of
airport sponsors regarding staffing, but ARP does not agree that the
Order is the place to resolve those issues.
In addition, as FAA discussed in its May 2001 Report to Congress on
Environmental Review of Airport Improvement Projects \6\ requirements
under NEPA and other Federal environmental laws and local consensus
play far greater roles than FAA staffing levels in determining the time
needed to complete NEPA reviews for airport development projects. ARP
has included in 5050.4B the practical lessons it has learned since 1985
about how to effectively prepare airport EISs. For example, ARP
experience indicates airport sponsors will reduce FAA's workload if
they complete good master planning and build local consensus before
asking the agency to start the NEPA process.
---------------------------------------------------------------------------
\6\ http://www.faa.gov/arp/environmental/5054a/RTCenv.pdf.
---------------------------------------------------------------------------
Turning to staffing resources, we believe that many offices have
the expertise and ability to address airport projects. Before 2003, ARP
had environmental specialists and attorneys with proven track records
of successfully completing environmental impact statements for airport
development projects within an average of 3\1/2\ years. While ARP
agrees that some regional and field offices have less expertise and/or
higher workloads than others, FAA headquarters historically delivers
additional project management, technical, and legal services as needed
for a timely and effective EIS process as noted earlier. ARP also notes
that its regional and district Airports offices share personnel to the
extent permissible and practical to assist in EIS preparation.
ARP acknowledges the commenter's major role in Congress enacting
the Department of Transportation Appropriations Act of 2003, part of
which established and funded 30 additional positions in FAA to expedite
environmental reviews for airport projects. ARP conducts regular
training conferences, enrolling employees in reputable environmental
training courses, and gradually increases the responsibilities of its
newer employees in offices throughout the country. Those new employees
are developing the skills and abilities needed to address multiple,
complex airport projects concurrently and effectively. At the same
time, when ARP anticipates that headquarters resources may not be
sufficient to meet schedules for multiple ongoing complex airport
projects, it has asked sponsors to fund additional FAA staff and
trained consultants.
Independent Utility: A commenter requests information on
independent utility. ARP's Response: Paragraph 202.c(4)(a) discusses
ALP approvals for actions having independent utility.
[[Page 29024]]
Information in Order 5050.4A: One commenter noted that in some
areas the language in Order 5050.4B is improved over the language in
Order 5050.4A. In other instances, neither Order 5050.4B or Order
1050.1E contains language adequately addressing specific airport
actions. The commenter fears that these omissions will obscure the
clarity of instruction for some of these actions that Order 5050.4A
provided. ARP's Response: Agree. ARP has revised much of the discussion
from Order 5050.4A that the commenter specifically recommended.
Instructions are not consistent with NEPA: One commenter voiced its
extreme concern that the information in the Order is not consistent
with NEPA, that it lacks scientific and factual basis, and that it
exhibits a bias toward the aviation industry, while stating it presents
environmental stewardship principles. The commenter provided specific
examples of its concerns to ensure the Order more accurately reflected
NEPA requirements. Some examples the commenter included were: (1) A DNL
3 dBA increase in the DNL 60-65 dBA contour should be a significant
effect, (2) FAA should, ``* * * produce peer-reviewed scientific
research that investigates the effects of a 3 dBA increase in 60-65 DNL
contour;'' (3) that the DNL metric is the only acceptable noise metric
to the exclusion of others; (4) that FAA should seek input of a local
advisory board in selecting its EIS consultant; and (5) that FAA should
not consider the need to relieve airport congestion as an emergency per
CEQ'a emergency procedures at 40 CFR 1504.(b)(2). ARP's Response: FAA
disagrees with the commenter's statements on consistency with NEPA. ARP
notes that Order 5050.4B must be and is consistent with Order 1050.1E.
Since the latter Order presents agency-wide NEPA implementing
instructions, Order 5050.4B's consistency with Order 1050.1E means it
is consistent with NEPA. ARP requests that the commenter review the
Significant noise impact threshold portion of this Preamble for FAA's
definition of significant noise, the use of the DNL metric, and other
noise concerns the commenter noted. ARP also suggests that the
commenter review responses to comments on in this Preamble addressing
paragraphs 1003 and 1404 for issues related to consultant selection and
FAA's compliance with NEPA during emergencies, respectively. Regarding
the Order's consistent with NEPA, ARP reminds the commenter that CEQ
has reviewed Orders 5050.4B as well as 1050.1E. FAA has revised both
Orders to ensure they meet CEQ concerns. CEQ's reviews and
certifications of those both Orders indicate CEQ has determined that
both Orders conform to CEQ regulations.
Instructions on ``NEPA-like'' states or agencies: Two reviewers
sought more information on these issues in general. They request
instructions on what to do when state rules specifically require
discussions of certain issues and prohibit discussions of others. Of
particular note, they seek information on how to handle the topic of
human health risks (i.e., hazardous air pollutants) in joint Federal-
State documents. They note that Orders 5050.4A and 5050.4B seem to
encourage separating State and Federal environmental documents. The
commenters note there may be statutory or regulatory limits on
combining documents, nevertheless, they request more information on the
``NEPA-like'' issue. ARP's Response: For information on aviation-
related air toxins and human health risk assessments, readers should
use FAA's Federal Register ``Notice of Adoption and Availability of
Order 1050.1E'' (No. 69. FR No. 115, p. 33784, 6/16/2004). However,
since preparing that notice in June 2004, the Federal Highway
Administration (FHWA) has issued its Interim Policy on Mobile Source
Air Toxins, and FAA has addressed this topic in EISs it prepared for
airport actions at Los Angeles (LAX), O'Hare, and Philadelphia
International Airports. In these EISs, FAA estimated air toxin
emissions but did not prepare human health risk assessments.
Regarding the comment on handling the topic of hazardous air
pollutants in a joint Federal and State document, the LAX Final EIS
illustrates one way of handling that issue. That joint document was
prepared to meet NEPA/CEQA (California Environmental Policy Act)
requirements. In the Environmental Justice section of FAA's FEIS for
LAX's master planning effort, FAA notably included, for disclosure
purposes, the human health risk assessment (HHRA) the City of Los
Angeles prepared to comply with the California Environmental Quality
Act. In that FEIS, FAA explained that it presented the HHRA results as
follows: ``* * * however, to the extent that fulfillment of the
purposes of Executive Order 12898 [on Environmental Justice] would be
furthered by such an analysis, presented below are the results of the
[Los Angeles World Airports] Human Health Risk Assessment, which was
prepared in compliance with CEQA and based upon CEQA thresholds of
significance and provides a qualitative comparisons [sic] of potential
health risks.'' \7\
---------------------------------------------------------------------------
\7\ FAA's FEIS for the Proposed LAX Master Plan Improvements,
Los Angeles International Airport, Los Angeles, Los Angeles County,
California, Volume A, page A.2-88.
---------------------------------------------------------------------------
Turning to the statement that FAA encourages preparation of
separate, documents consistent with 40 CFR 1506.2, FAA NEPA guidance
encourages preparation of joint Federal and State documents. FAA
recognizes that preparing joint documents is often more complex and
time-consuming initially, but joint documents may save time in the
long-term by eliminating sequential Federal and State reviews. On the
other hand, separate documents may be more efficient and effective
where Federal and State requirements and timing differ substantially or
the Federal and State agency cannot agree on proper analytic
methodology. If separate documents are prepared, FAA and the State
should attempt to conduct their environmental review processes on
parallel tracks within the same time frames using common databases to
the best of their abilities. This will avoid end-to-end sequential
processes that often lengthen document preparation times. FAA
encourages readers to review the Best Practices' Web site mentioned
earlier for more information.
References should be available: A reviewer requests that ARP
provide copies of all FAA and DOT documents and orders noted in Order
1050.1E and 5050.4B, or that FAA routinely uses during its NEPA
process. The reviewer suggests providing that information via
appendices or FAA's Web site. ARP's Response: Most of the Department of
Transportation (DOT) and FAA information and other references used to
prepare the Orders is available on DOT, FAA, or ARP Web sites.
Interested parties may also obtain that and other information via Internet
``search engines'' by searching on key words in the item of interest.
Saving time during the NEPA process and streamlining the NEPA
process: A few commenters expressed appreciation for ARP's efforts to
improve its NEPA processes and recognize constrained resources lead
many people to perceive that ARP has inefficient NEPA processes.
Nevertheless, the commenters urge ARP to save time during the NEPA
process by incorporating many measures in that process. These measures
include: Parallel, rather than sequential reviews; conducting earlier
and frequent coordination with agencies to address purpose and need and
alternatives; disclosing EIS data before publishing
[[Page 29025]]
draft EISs; making faster legal decisions; and establishing firm
deadlines or milestones and emphasizing Vision 100's streamlining
terms. The commenters also urge ARP to limit analyses to the
requirements of laws or regulations and include words (i.e., milestone,
schedule, deadline) in the Order to stress the need to process
information in a timely fashion. The commenters believe the Order
should instill greater urgency within the agency about the need to
reduce processing times. Another commenter argues that FAA should
codify performance deadlines. ARP's Response: ARP appreciates the
commenters' recognition of ARP's efforts to make its NEPA process more
efficient. ARP recognizes that there is room for improvement; however,
ARP notes that it has a long and proven track record of expediting EISs
successfully by using the measures noted in the comment such as
parallel processing of environmental requirements and reaching
consensus with resource agencies. Chapter 15 of Order 5050.4B expressly
addresses requirements for streamlining certain projects under Vision
100 and Executive Order 13274, while other chapters discuss
administrative streamlining initiatives and ways to improve the NEPA
process for other projects. ARP will continue to use these proven,
effective methods to make the NEPA process more efficient.
Regarding the extent of analyses, ARP reminds the commenters that
ARP, as the lead Federal agency, not the airport sponsor, is ultimately
responsible for meeting Federal legal requirements and preparing an
EIS. Therefore, ARP staff, in consultation with expertise agencies,
must determine the extent of analyses needed to meet applicable laws
and regulations. But airport sponsors sometimes disagree with these ARP
decisions. When sponsors disagree with ARP in these matters, they may
want to consider if the time spent to resolve disagreements with FAA
and resource agencies about impact analyses might be better used to
complete the NEPA process. ARP urges sponsors to realize that the
analyses are those ARP, in consultation with its legal counsel and
agencies having expertise, determines necessary to provide an adequate
interdisciplinary analysis as NEPA requires and to comply with
applicable laws and regulations. ARP's failure to do so would
compromise the sponsor's schedule and the agency's Airports Program.
Since FAA is responsible for providing a safe, efficient air transport
system, and ARP is responsible for a program that supports that system,
it, in consultation with its counsel, must make the final decisions on
the levels of analyses an airport project requires.
Regarding the commenters' recommendations for milestones,
deadlines, and schedules, ARP maintains that FAA senior management and
agency managers and staff have consistently demonstrated a sense of
urgency in addressing major airport development projects. As explained
in the response to the comment above relating to FAA Resources,
sponsors have the ability to do a great deal to reduce NEPA processing
times. Among other things, they should work to build local consensus to
support their proposed projects and complete sound master planning
before asking the FAA to begin the NEPA process. Expedited EISs for
projects that do not come to fruition are frustrating for FAA staff and
divert limited resources better invested elsewhere. Further, in its May
2001 Report to Congress on Environmental Review of Airport Improvement
Projects, FAA described the administrative initiatives that it uses to
improve its processing of airport actions. Many of these initiatives
are required for projects selected for streamlined review under
Executive Order 13274, Environmental Stewardship and Transportation
Infrastructure. In 2003, Vision 100 codified into law the initiatives
relating to expedited, coordinated reviews for projects at congested
airports. And, within a span of two years, FAA notably issued final
EISs and RODs for four major projects: (1) The Runway 17/35 at
Philadelphia International Airport; (2) the O'Hare Modernization
Program at O'Hare International Airport: (3) Runway 1/19W at Dulles
International Airport; and (4) the Master Plan development at Los
Angeles International Airport. FAA's performances on these complex and
needed projects show that FAA is utilizing existing streamlining
initiatives and measures for airport projects. Those efforts show that
ARP and FAA work diligently to meet milestones, deadlines, and
schedules without compromising the agency's environmental
responsibilities. ARP constantly strives to make the NEPA process for
airport actions more efficient and effective. ARP believes Order 5050.4B
provides instructions that will help expedite environmental reviews.
ARP sees no need to include additional instructions about
milestones, deadlines, and schedules in the final Order. ARP has not
included specific deadlines for certain NEPA process steps in the Order
or to define or codify deadlines as commenters have suggested. ARP has
not done so because each airport action has unforeseen problems that
would make a defined deadline contrary to NEPA, unworkable, and
unrealistic. ARP urges the commenters and others to note that it will
continue to work smarter, more efficiently, and more effectively, but
it will not compromise adequate environmental analyses to meet desired
schedules. Therefore, ARP will establish tentative schedules for EISs
and, if requested, will apply techniques to streamline the NEPA process
for airport actions as much as possible without compromising its duty
to properly analyze and consider action-related environmental effects.
It will do so based on: (1) Scoping and consultation with airport
sponsors and involved agencies; (2) the completeness and accuracy of
sponsor-provided master planning data; and (3) public concerns. These
and other efforts show ARP will establish realistic schedules to
properly scope its EISs, but it reminds interested parties that
unforeseen issues or problems may alter any well-conceived schedule.
In summary, ARP will establish EIS schedules for projects under
Executive Order 13274 and Vision 100, and if requested, projects not
under those requirements. But in developing these schedules, ARP will
apply techniques to streamline the NEPA process, provided they do not
compromise ARP's responsibilities to properly analyze, consider, and
disclose action-related environmental effects.
Significant noise impact threshold: Some reviewers note that FAA's
insistence that there are no significant noise impacts below the DNL or
CNEL 65-dB level is unjustified. They contend that FAA should consider
impacts below that level, especially in the DNL or CNEL 60 to 65-dB
noise contours significant in the Order. One commenter disagrees that
DNL is the only metric to measure noise impacts and asserts that its
validity is being questioned worldwide. Commenters further state that
FAA's assumption that there are no negative health impacts inside this
contour is wrong. Finally, FAA is wrong in assuming aircraft noise
occurring 3,000 feet above ground level does not cause significant
noise effects. ARP's Response: FAA addressed the commenters' noise
concerns in its Federal Register Notice of Adoption and Availability of
Order 1050.1E (No. 69. FR No. 115, 6/16/2004, pages 33780-33783, 33812,
33813, and 33816 -33820). ARP urges the commenters to review that
information for responses to these comments.
[[Page 29026]]
Special purpose laws vs. special protection laws: One commenter
noted the draft Order used these terms interchangeably, but this may
confuse the reader. ARP's Response: Agree. The final Order uses the
term, ``special purpose laws'' as a ``catch-all'' term for the Federal
environmental laws, regulations and executive orders outside NEPA that
apply often to airport actions (Table 1-1 in the Order). Paragraph 9.t
defines the term for purposes of the Order.
State Block Grant Program: In responding to comments on FAA Order
1050.1E, FAA stated Order 5050.4B would provide details on the State
Block Grant Program (SBGP) that ARP manages (69 FR 33788 June 16,
2004). One commenter noted that Order 5050.4B makes a state
participating in the SBGP responsible for addressing an airport
action's environmental impacts under the SBGP, except for those actions
remaining under FAA's purview. The commenter notes there are often no
``Federal actions'' associated with the state's activities under the
SBGP. The commenter further notes that there are no Federal
environmental requirements, except for the contractual provisions to
comply with NEPA the SBGP agency made with FAA to comply with NEPA when
the SBGP agency became a SBGP participant. Those provisions make the
participating state responsible for analyzing the environmental effects
of actions under the state's SBGP purview. The Order should clarify
that for SBGP purposes, references to ``FAA'' responsibilities mean
SBGP agency responsibilities, unless the Order notes otherwise. Another
commenter urges FAA to seek opinions from CEQ and EPA about the way FAA
conducts the SBGP. The commenter contends that FAA cannot delegate its
responsibilities to SBGP participants and that FAA's approach differs
significantly from the Federal Highway Administration's (FHWA) local
assistance programs. In no instances may State and local requirements
substitute for Federal requirements. Following ``NEPA-like'' laws
instead of NEPA will cause many inconsistencies in the SBGP. Therefore,
FAA should follow Federal requirements. The commenter suggests that FAA
use the commenter's program as an example of delegating
responsibilities to a modal entity. ARP's Response: Order 5050.4B ARP,
paragraphs 210-214 clarify how environmental requirements apply under
the SBGP. FAA made a commitment to provide that information in its
preamble for Order 1050.1E. Those paragraphs explain how participating
states and various FAA environmental effects of SBGP airport projects
and FAA actions associated with those projects.
Regarding the clarification of responsibilities under the SBGP, ARP
has revised the Order's Introduction and included new paragraph 212.
The revisions clarify that for SBGP actions, participating state agency
personnel assume the roles a responsible FAA official or an approving
FAA official would normally fulfill, unless Order 5050.4B specifies
differently.
Addressing a commenter's note that FAA should seek CEQ and EPA
opinions on the way FAA conducts its SBGP, CEQ has determined that
5050.4B procedures,``* * * comport with NEPA.'' \8\
---------------------------------------------------------------------------
\8\ Comments on Order 5050.4B Preamble, personnel communication
from Edward A. Boling, Council on Environmental Quality to Edward
Melisky, FAA, dated April 9, 2006.
---------------------------------------------------------------------------
Addressing the comment on delegating responsibilities to SBGP
participants, ARP wishes to again clarify a misconception that it is
``delegating'' its NEPA responsibilities in SBGP cases. ARP is not
delegating those responsibilities because it has no major Federal
action to delegate. Paragraph 211 of the final Order clearly states
that upon distributing SBGP funding, which is categorically excluded
under paragraph 307o of Order 1050.1E, ARP has no discretion in
deciding the use of that funding. That decision is solely the SBGP
agency's. As a result, ARP has no NEPA responsibilities since it lacks
authority over the airport projects the SBGP monies finance. However,
readers should note that paragraph 213.a clearly states that ARP does
retain NEPA responsibilities for that portion of an SBGP airport action
for which an SBGP agency requests AIP discretionary funds to supplement
SBGP funding. In this case, ARP must meet its responsibilities under
NEPA and other applicable special purpose law because it is exercising
discretion regarding the allocation of the additional funds.
Regarding the commenters concern about ``NEPA-like'' laws, ARP
notes that paragraphs 212.b and c address this concern. Paragraph 211
underscores that once ARP issues the SBGP funds to participating
states, ARP has no discretion on the airport projects on which the
States spends their SBGP funding. Therefore, Federal environmental
requirements do not apply to those actions. However, to maintain
environmental stewardship, FAA imposes a contractual agreement on
states participating in the SBGP. The agreement requires the SBGP state
to meet applicable environmental requirements to ensure the SBGP
participants use a rational, interdisciplinary, and proven method to
analyze airport project impacts on environmental resources. Paragraph
212.b notes, a ``NEPA-like'' SBGP participant may use the State's NEPA-
like requirements in lieu of this Order. This practice is consistent
with CEQ policy regarding integration of procedures (40 CFR 1500.2) and
requirements addressing reductions of paperwork and delay (40 CFR
1500.4 and 1500.5, respectively). States not having ``NEPA-like'' laws
must comply with the requirements of Order 5050.4B. In both instances,
the participating SBGP state must also meet special purpose laws
outside NEPA.
ARP appreciates the commenter's suggestion that ARP use the
commenter's program delegating environmental responsibilities to
states. But because ARP is not delegating any of its responsibilities,
there is no need to develop a delegation agreement with its SBGP
participants. Once ARP approves the grant of block funds to a
participating state under 49 U.S.C. 47128, that state assumes
administrative responsibility for all airport grant amounts available
under Subchapter 1 of Chapter 471, except those funds for primary
airports. However, ARP does oversee the SBGP to ensure participants are
meeting their contractual agreements.
Streamlining: A commenter does not think any streamlining rule that
rushes the NEPA process is a good one. The commenter considers the rule
as a ``euphemism used to conceal and deceive the public'' about
aviation's environmental destruction. The commenter opposes every
proposal the Order contains because the Order's main purpose is to
promote aviation's benefit and destroy the environment. The commenter
also states that wildlife hazard management is intended to kill
wildlife. The commenter also requests a copy of the Best Practices.
ARP's Response: ARP prepared the streamlining instructions in Chapter
15 of the final Order to address Congressional and Presidential
requirements in Vision 100 and Executive Order 13274, respectively.
ARP stresses sponsor-prepared and implemented wildlife management
plans help reduce injuries and deaths to millions of passengers, birds,
and other wildlife species resulting from aircraft-wildlife collisions.
ARP's requirements for airport sponsors to control wildlife species,
especially those that have regularly been involved in aircraft-
[[Page 29027]]
wildlife collisions, are parts of the agency's airport certification
program. This program is needed to address the agency's mission to
provide safe, efficient air transportation for the nation. It also
helps to reduce wildlife populations near airports. This, in turn,
helps to reduce wildlife mortality, which often occurs when these
animals collide with aircraft.
Surface transportation and cumulative impacts: Two commenters note
these topics have become important for airport actions. They recognize
Order 5050.4B provides greater guidance on cumulative impacts than
Order 1050.1E, but suggest Order 5050.4B include more information on
these topics. One commenter notes that surface transportation issues
have become major EIS and EA topics due in part to associated air
quality impacts on National Ambient Air Quality Standards and community
concerns about road congestion. The commenter requests that the Order
provide more information on these topics and notes Order 1050.1E does
not address them. The commenter further notes induced secondary impacts
typically address these issues, because they are among the most complex
an EA or EIS addresses. Another commenter states the Order should
explain the airport sponsor's role during scoping. ARP's Response: ARP
agrees these are topical, difficult subjects. Paragraph 1007.i of the
Order provides a summary of information on cumulative impacts, but ARP
will provide more detail on this topic in the Desk Reference. Until ARP
issues that information, document preparers and reviewers should use
information in paragraph 1007.i, paragraph 500c of Order 1050.1E, CEQ's
guidance on assessing cumulative impacts, Considering Cumulative
Effects Under the National Environmental Policy Act (http://
ceq.eh.doe.gov/nepa/ccenepa/ccenepa.htm) and CEQ's June 24,
2005, memorandum addressing cumulative effects and past actions. The Desk
Reference will address the topic of surface transportation and its
relationship to air quality effects.
Beginning Responses to Comments on Specific Paragraphs of the Draft Order
Preface comments: Two commenters suggested adding language to the
Preface to note the Order provides NEPA guidance for ARP. If conflicts
between this Order and Order 1050.1E exist, users are to follow the
instructions in 1050.1E. In that case, FAA personnel may follow the
instructions in Order 5050.4. The commenters note that Order 5050.4A
lacked a process for updating its content, so the commenter suggested
that the Preface explain how FAA would update Order 5050.4B. ARP's
Response: ARP agrees. ARP has placed the information the commenters
suggest in the Order's revised Introduction.
Introduction comments: A commenter suggested adding a clarifying
statement about reasonable alternatives. Those alternatives should meet
the purpose and need and FAA's mission to provide safe, efficient air
transportation for the Nation. ARP's Response: We agree in part and
respectfully disagree in part. ARP has revised the text addressing this
topic and placed it in paragraph 504.d of the Order. That paragraph
notes that the range of alternatives developed during airport planning
differs from that FAA examines during the NEPA process. As paragraph
504.d(2) notes, the range of reasonable alternatives FAA considers
during NEPA must include alternatives developed during project planning
and those reasonable alternatives outside the airport sponsor's and
FAA's jurisdiction. Therefore, FAA agrees that these alternatives
should meet purpose and need, but it disagrees with the commenter's
clarification due to the requirements of 40 CFR 1502.14(c). That would
be inconsistent with 40 CFR 1502.14(c), which states agencies: ``shall
include reasonable alternatives not within the jurisdiction of the lead
agency.'' Including the statement regarding FAA's statutory mission in
the final Order could be misconstrued. Doing so could mean that FAA has
adopted the statutory objectives test to narrowly define a purpose and
need that would exclude reasonable alternatives from NEPA analysis.
Chapter 1 comments: ARP received no general comments on this
chapter. Regarding paragraph 1, one commenter stated the paragraph
extends NEPA's reach. Another commenter stated that this description of
objectives is incomplete because it omits important detail from 40 CFR
1500.1 and focuses solely on public disclosure. Both commenters
recommend using different text to more accurately describe NEPA's
intent. One commenter suggested using the entire statement of
objectives from 40 CFR 1500.1(a) or paragraph 10a from Order 5050.4A,
the other recommended the text from paragraph 200.a of draft Order
5050.4B. ARP's Response: Agree. ARP revised paragraphs 1 and 2 to
better reflect NEPA's intent using information in 1500.1(a). ARP
deleted paragraph 200.a. as written in the draft Order because it was
somewhat duplicative.
Two commenters state that paragraph 3.d should note the Order
should strengthen the explanation of how ARP addresses special purpose
laws. The Order should relate that presentation to the laws'
application in a NEPA context. ARP's Response: Agree. Paragraph 9.t
explains this.
Comments on paragraph 8 varied. This paragraph contained several
subparagraphs defining many of the terms the Order uses. Another
commenter sought definitions for ``mitigated FONSI'' and ``special
protection laws.'' Other commenters sought definitions for or
clarifications of the terms: ``Airport Improvement Program;'' ``day-
night average level;'' ``expertise agencies;'' ``joint lead agency;''
``major Federal action;'' ``major runway extension;'' ``reasonably
foreseeable action;'' ``responsible FAA official;'' ``significant
impact;'' ``special purpose laws;'' ``special protection laws;''
``supplemental EIS;'' and ``written-re-evaluation.'' Another commenter
urged the use of ``highly controversial action'' as defined in Order
1050.1E. ARP's Response: Readers should note that the final Order now
presents definitions in paragraphs 9a.-9v. Document re-organization
caused this paragraph re-numbering. ARP has enhanced many of the
definitions these paragraphs provide. Readers should note that the
draft Order used the terms, ``special purpose laws'' and ``special
protection laws'' synonymously. For consistency, the final Order uses
only ``special purpose laws.'' Also, the final Order contains a more
complete list of laws, regulations, and executive orders comprising the
term, ``special purpose laws.'' Order 5050.4B has incorporated Order
1050.1E's definition of the term, ``highly controversial action'' and
more information on ``written re-evaluations.'' Paragraph 1402 provides
a more comprehensive discussion for supplementing NEPA documents.
Chapter 2 comments: General Chapter 2 Comments: A commenter stated
the text in the draft Order was not clear regarding NEPA's
applicability to ALP changes not involving Federal funding. ARP's
Response: ARP addresses this issue in paragraph 202.b of the final
Order. The paragraph states FAA must comply with NEPA and other
applicable special purpose laws when unconditionally approving ALPs
whether or not the approval involves Federal funding (paragraph 9.g (3)).
Another commenter suggested the note on the Desk Reference
following paragraph 200.d of the draft Order stress that ARP will
provide the Desk Reference to clarify applications of significance
thresholds in Order 1050.1E, Appendix A. The commenter suggests that
Order 5050.4B modify
[[Page 29028]]
thresholds to eliminate their ambiguity. ARP's Response: Order 5050.4B
deleted the note. Readers should see that Table 7-1 presents the
agency's significance thresholds per Order 1050.1E, Appendix A. ARP is
not authorized to modify any of the thresholds because Order 1050.1E,
as the agency-wide document, provided those thresholds for public
review and they are the thresholds FAA established for all FAA
organizations. Although ARP can petition the Office of Environment and
Energy (AEE) to change the thresholds, only AEE is authorized to do so.
But before making changes, AEE will provide the public an opportunity
to review changes or additions to the thresholds because they would
change the agency's Order implementing NEPA. Readers should note that
column 3 of Table 7-1 presents information to help Order 5050.4B users
determine airport-related impacts relative to the stated thresholds.
These factors are based on information in paragraphs 47.e and 85.a -t
of Order 5050.4A that ARP staff and others have found valuable in
determining impact significance for airport actions during the past 20
years. Because airport actions often physically disturb more land or
water areas than most other FAA actions, ARP includes that information
for convenience and because of its analytical value. Doing so also
addresses a comment from some reviewers who noted that Order 5050.4A
contains useful information that Order 5050.4B should include.
Regarding paragraph 200.c, a commenter states that FAA must
evaluate more than environmental factors in its NEPA process. Other
commenters ask if NEPA applies to ALP and Passenger Facility Charges
(PFC). ARP's Response: ARP concurs and has revised the wording.
Paragraph 200.a(2) notes the agency considers other factors (e.g.,
economic, technical, safety) as well as environmental factors. The
intent of the sentence was to stress that FAA must weigh environmental
factors in its decisions. That paragraph also uses the term, ``Federal
actions,'' a term including PFC and ALP approvals per paragraph 9.g of
the final Order.
Addressing comments on paragraph 201.b(1), a commenter recommends
deleting ``FAA-funded'' master plans. ARP's Response: Concur. Revised
paragraph 201.b(1) tells airport sponsors to consider environmental
factors in master planning, regardless of the funding source used to
develop that planning. This should help enhance the subsequent NEPA
process ARP would complete to make a decision on the planned airport
projects master plans address.
Regarding paragraph 201.b.(4), a commenter seeks clarification on
the need for a SBGP participant to consult with federally-recognized
Tribes on a government-to-government basis. The commenter notes if a
SBGP agency is authorized to conduct direct consultation after initial
FAA/Tribal contact, the Order should state so. Another commenter notes
a public hearing or meeting is not needed for all NEPA actions. ARP's
Response: Paragraph 212.e of the final Order clarifies SBGP and Tribal
consultation. The paragraph states if an FAA organization is involved
in an action associated with an SBGP airport action, the responsible
FAA organization will conduct the Tribal consultation. If there is no
FAA involvement, the SBGP agency should follow instructions in
paragraph 303 of the Order, to ensure Tribal consultation occurs in a
respectful manner. SBGP agencies should note that regional and district
ARP office personnel are available to aid the SBGP agency in this
consultation. That paragraph and other paragraphs in new Chapter 3
(Agency and Tribal Coordination) developed for the final Order discuss
how FAA personnel will conduct Tribal consultation according to FAA
Order 1210.20, American Indian and Alaska Native Tribal Consultation
and Policy and Procedures.
ARP concurs with the comment that public hearings are not needed
for all NEPA actions. Revised text in paragraph 201.b(4) adds the words
``* * * if one is appropriate'' to clarify that not all NEPA actions
require a hearing.
Concerning paragraph 203.a, a commenter requests information
regarding the need to consult with FAA when an SBGP action requires an
EIS. The commenter wants to know if the airport sponsor or the state
agency is responsible for consulting with FAA regarding EIS preparation
in this case. ARP's Response: Paragraph 214.d(2)(a) of the final Order
clarifies this issue. When ARP or another FAA organization has an
action connected to a SBGP project, the FAA organization responsible
for the connected action will be a joint-lead agency with the SBGP
agency to ensure the document also meets the requirements of Order
1050.1E and Order 5050.4B. As needed, the SBGP and/or the FAA
organization may request assistance from the appropriate regional or
district ARP office or ARP's Airports Planning and Environment Division
(APP-400). Although these ARP offices are not responsible for preparing
EISs for all SBGP connected actions, they have experience that may aid
the SBGP agency and other FAA organizations in document preparation.
This involvement may also help ensure efficient information exchanges
and proper consultation among the SBGP, agencies, and interested
parties occurs. In those rare cases, where there is no FAA organization
involved, the state agency follows instructions in paragraph 214.d(1)
of the final Order.
Regarding paragraph 205, a commenter complimented ARP for
recognizing the public's participation in airport review. Another
commenter requests more information on obtaining public involvement
during EA scoping or for categorically excluded actions. ARP's
Response: The agency appreciates the comment. Now, this information is
part Chapter 4 of the Order, which focuses on public involvement. Also,
paragraph 704 discusses public involvement in EA preparation. Paragraph
606.b discusses public involvement requirements of special purpose laws
and categorically excluded actions. The reader should note that FAA
must complete public involvement requirements before categorically
excluding an action, if the potential extraordinary circumstances
relating to the proposed action involve special purpose laws having
public involvement requirements.
Chapter 3 comments: General Chapter 3 Comments: A commenter states
``one reason some environmental reviews take so long is the disconnect
between physical/facility planning and environmental review. Projects
are not sufficiently defined before the NEPA process begins. FAA is
revising the advisory circular (AC) concerning master planning. There
needs to be close integration between this chapter, particularly 302,
and the revised master planning AC. If master plan analysis more
closely resembled NEPA analysis on such major issues as project
purpose, alternatives and environmental impacts, planning, projects and
environmental reviews would be improved. This chapter should encourage
that planning. ARP's Response: ARP agrees it sometimes begins the NEPA
process prematurely. However, ARP wishes to note that this ``premature
start'' is often in response to airport sponsor desires or demands to
force ARP to begin the NEPA process before the sponsor completes the
planning for which it is responsible.
ARP agrees that Order 5050.4B should reflect some of the concepts
on critical NEPA and planning issues like project purpose,
alternatives, and other topics that the master planning AC discusses.
The draft Order had some information on the NEPA/planning connections,
but ARP has greatly enhanced this
[[Page 29029]]
information in the final Order. New Chapter 5 addresses early airport
planning and NEPA. The chapter contains planning information from the
master planning AC and ARP's Best Practices Web site. ARP hopes that
the new chapter and AC improve the coordination between airport
planners and environmental specialists so airport planning and NEPA
processes are more efficient and effective.
Regarding paragraph 300.a, another commenter stated the Order
should clarify that the approving FAA official must evaluate an airport
action's environmental effects and issue a ``NEPA decision'' approving
that action. ARP's Response: Agree. New paragraph 500.b highlights the
need for the approving FAA official to issue a FONSI or ROD or
categorically exclude an airport action before an official approves the
action.
Concerning paragraph 300.b, another commenter suggested that the
Order reinforce the requirement that the NEPA process is an independent
process, not intended to justify a proponent's action. ARP's Response:
Agree. New paragraph 500.a enforces critical NEPA principles of
objectivity and good faith.
Regarding paragraph 300.c, the same commenter disagreed with the
paragraph's requirement for the responsible FAA official to work more
closely with airport planners early in the planning process. The
commenter stated this would commit FAA to expanded roles that would
have to be embraced to make the process work smoothly. ARP's Response:
ARP realizes that earlier involvement places a workload on FAA
personnel. However, this involvement should reduce delays during the
subsequent NEPA process by addressing flaws and gaps in planning data
that could delay that process. Chapter 5, particularly paragraph 501,
emphasizes the need for better coordination between planners and
environmental specialists. This will improve the efficiency and
effectiveness of the planning process and the subsequent NEPA process.
Two comments on paragraph 301.b sought a definition for the term
``practicable alternative.'' Another stated the Order should tell
airport sponsors to tell the surrounding communities about the
sponsor's proposed actions. ARP's Response: The final Order deleted
this term. Instead, paragraph 706.d(6) of the Order notes that
``reasonable alternatives'' are those choices the airport sponsor (or
FAA) has developed to address the problems the sponsor faces. That
section also states that agencies must include reasonable alternatives
not within the jurisdiction of the lead agency (see response to
Introduction). Those alternatives would also include Paragraph 706.d
provides more information on alternatives. It emphasizes that an EA
must address reasonable alternatives in addition to the No Action and
Proposed Action when there is an unresolved conflict regarding
alternative uses of available resources (paragraphs 706.d (5) and (6)).
Regarding the comment on telling surrounding communities about
proposed actions, paragraph 501.a of the final Order notes the
importance of considering community concerns about aircraft noise
during the planning process. In addition, new Chapter 4 on public
participation provides more information on how airport sponsors and FAA
alert and engage surrounding communities about proposed airport
projects. As Chapter 4 of the final Order and the AC on master planning
emphasizes, the airport sponsor is responsible for informing and
engaging the public during the sponsor's planning efforts.
Starting comments on paragraph 302. Another commenter made a
general comment about the statement that a sponsor identifies its
proposed actions during master planning. According to the commenter,
this ``* * * could appear that FAA encourages sponsors to make a
decision too early in the NEPA process.'' The commenter notes this may
give the appearance that FAA encourages sponsors to make decisions
before FAA complete the NEPA process. The commenter also argues the
purpose and need should be part of master planning. ARP's Response: ARP
appreciates the comment on using the words, ``proposed action,'' but we
see no conflict with NEPA. Many airport sponsors identify a proposed
action during master planning to address the issues the airport sponsor
is attempting to solve. ARP sees no harm in the airport sponsor
identifying a proposed action, provided sponsors and the public realize
ARP is not obligated in any way to approve the sponsor's proposed
action. The ``proposed action'' may be, but is not necessarily the
agency's ``preferred alternative.'' The proposed action may be a
proposal in its initial form before undergoing analysis in the NEPA
process, ``* * * a proposed action may be granting an application to a
non-federal entity for a permit'' (Forty Most Asked Questions (46 FR
18025, March 23, 1981, as amended 51 FR 15619, April 25, 1986, Question
5a). As ARP may not have a preferred alternative until it issues a
draft or final EIS, ARP is able to rebut any claims of bias that may
result from a sponsor identifying a proposed action.
In response to the comment that, ``purpose and need'' during
planning, should be part of the master plan, we respectfully disagree.
``Purpose and need'' is a term of art under NEPA. Although the master
plan considers environmental factors, it is not the NEPA process nor
should it be. Master planning is the sponsor's responsibility, while
NEPA is FAA's. To avoid confusing planners and others preparing master
plans and NEPA documents, ARP avoided using the term ``purpose and
need'' for planning purposes in Chapter 5.
A commenter recommended revising paragraph 302.a to include some
discussion about the need to compare a sponsor's airport master plan
forecasts and FAA's Terminal Area forecasts. ARP's Response: Agree. The
final Order discusses the need for reasonable consistency between a
sponsor's forecasts and FAA's Terminal Area Forecast (TAF) to ensure
the scientific integrity of the discussions and environmental analyses
in NEPA documents for airport actions. Paragraph 706.b(3) of the final
Order provides instructions for handling variations in forecasts.
Regarding paragraph 302.b one commenter suggested deleting the
discussion of airport noise compatibility planning because 5050.4B was
not the place to define master plan requirements except to the extent
that they facilitate NEPA processing. This commenter also indicated
that paragraph 303 was ample to address noise compatibility planning.
Another commenter indicated that the text as drafted suggested that
noise issues should be addressed in the master plan, not an airport
noise compatibility program. ARP's Response: Agree. Although Order
5050.4A discussed airport noise planning under 14 CFR part 150 (Airport
Noise Compatibility Planning), we have eliminated it from this Order.
Revised paragraph 503.c notes that airport planners should consider
noise when planning an action because noise is often the public's
primary concern regarding airport actions. Knowing the locations of
noise sensitive land uses relative to a proposed action's environmental
impacts provides valuable information during the subsequent NEPA process.
Concerning paragraph 303 in general, a few commenters disagreed
with the following language in the draft Order dealing with project
specific noise impacts and part 150, `` the sponsor may not delay the
proposed action's mitigation for inclusion in an NCP that would be
prepared after the EA or EIS is completed.'' One commenter noted
[[Page 29030]]
that this would obligate sponsors to mitigate for actions that FAA
might approve, while the other stated, ``meaningful noise mitigation
cannot be defined during the NEPA process, particularly when litigation
is expected.'' ARP's Response: ARP has revised paragraph 706.g(3) to
clarify that FAA may not rely upon a commitment by an airport sponsor
to conduct a study under 14 CFR part 150 as mitigation measure in an EA
or an EIS. Rather, a part 150 study may only be used to identify
mitigation measures if the study is completed concurrently with the EA
or EIS. Contrary to the first commenter, the mitigation measures would
be identified not in advance, but at the same time that FAA makes its
decision concerning the proposed action. We believe that meaningful
noise mitigation can be identified during the NEPA process. Mitigation
measures approved in an environmental Record of Decision for an airport
development project may now be funded using amounts available under the
noise set aside in the discretionary fund under 49 U.S.C. 47117(e).
Therefore, there is no need for airport sponsor to prepare noise
studies under 14 CFR part 150 with EISs to gain access to noise set
aside funds.
One commenter stated that paragraph 303.b should require public
involvement for categorically excluded actions. ARP's Response: Agree
in part. Paragraph 606.b of the final Order discusses public
involvement and CATEXs. The reader should note that ARP must complete
all public involvement requirements for CATEXs if the actions involve
extraordinary circumstances based on special purpose laws having public
involvement requirements.
A commenter noted that paragraph 303.c should include the
California Noise Equivalent Level (CNEL) metric. Another commenter
noted the DNL 65 dB level is not always FAA's significant noise
threshold, especially for Section 4(f) or historic resource impacts.
Yet another commenter noted that FAA should use noise levels below the
DNL 65 dB level to determine noise effects. ARP's Response: ARP agrees
with the comment on CNEL. The revised Order references CNEL as an
acceptable metric in paragraph 9.n. Regarding the significant noise
threshold, readers should review FAA's response to this issue in its
Federal Register Notice of Availability of Order 1050.1E (69 FR 33818-
19, June 16, 2004). As stated in Order 1050.1E, Appendix A, section
14.3, ``[s]pecial consideration needs to be given to the evaluation of
the significance of noise impacts on noise sensitive areas within
national parks, national wildlife refuges and historic sites, including
traditional cultural properties. For example, the DNL 65 dB threshold
does not adequately address the effects of noise on visitors to areas
within a national park or national wildlife refuge where other noise is
very low and a quiet setting is a generally recognized purpose and
attribute.'' Order 1050.1E, Appendix A, section 14.5g states that ``the
FAA will consider use of appropriate supplemental noise analysis in
consultation with the officials having jurisdiction'' over such areas.
Table 7-1 of final Order 5050.4B incorporates this information.
Concerning paragraph 304, two commenters seek clarification of the
objectives noted in the paragraph. ARP's Response: As written, the
paragraph indicated that ARP would analyze the data provided and
determine if more information were needed to address issues or
problems. The second objective was to determine the proper
environmental analyses. ARP has revised this paragraph, which is now
paragraph 506 of the final Order. The paragraph states that during
project planning the responsible FAA official will determine, via an
interdisciplinary approach and working with the airport sponsor, the
probable environmental evaluation a proposed action warrants.
Concerning paragraph 304.b, a commenter suggests ARP review Tables
in the draft Order listing CATEXs to ensure they include all airport
actions listed in paragraphs 307-312 of Order 1050.1E. The commenter
noted the Tables did not contain all actions and this could mislead the
public about airport actions that are categorically excluded. ARP's
Response: Agree. ARP has revised Tables 6-1 and 6-2 to include airport
actions the draft Order inadvertently omitted.
Regarding paragraph 304.b(1), a commenter rightly noted this
paragraph was not consistent with paragraph 403.b, which provided
clearer guidance on when FAA may CATEX an action similar to ones
listed. The commenter notes some FAA offices have categorically
excluded an action if it fits into a category. This appears to be
counter to the instructions in Order 1050.1E, paragraph 303c, which
that states FAA may categorically exclude only listed actions. ARP's
Response: Agree. The draft Order did not properly convey the
instructions in Order 1050.1E. Paragraph 601 of the final Order
clarifies the draft's instructions. In particular, paragraph 601
addresses other actions that may be categorically excluded provided
they are similar to those listed in paragraphs in Order 1050.1E.
A general comment on paragraph 305 emphasized the need for clearer
instructions on minimum public involvement for actions an EA addresses.
The commenter wants to know if all draft EAs are subject to public
review and if the sponsor must respond to comments on a draft EA the
way FAA must respond to comments on a draft EIS. Another commenter
suggested deleting the word, ``Environmental Assessment'' from the
section title because information in the paragraph also pertains to
EISs. ARP's Response: Agree in part, disagree in part. We agree with
the commenter about the section title. ARP replaced the words
``Environmental Assessment'' in the title of paragraph 301 with ``the
Environmental Review Process.'' We included paragraphs 301 and 704 to
emphasize requirements under 40 CFR 1501.4 for Federal agencies to
involve the public to the extent practicable in preparing EAs. As to
whether comments on a draft EA have to be responded to in the way FAA
responds to comments on a draft EIS, the approach depends upon the
complexity of the matter involved. Generally, responses to comments on
a draft EAs may be less comprehensive and detailed.
For paragraph 305.b, a state agency noted that cooperating agency
status applies only to EISs. The paragraph is wrong in stating
cooperating agency status is warranted for EAs and warns ARP about
using CEQ terms in the wrong context. Another commenter objects to
public review before the final EA is submitted to FAA. The implication
is comments on the draft EA are used in preparing the final EA. The
commenter seeks clarification on the need for a draft and final EA for
all actions. Finally, although involving the public in the EA process
is prudent, requiring drafts, comment periods and final EAs in all
circumstances is ``resource intensive.'' ARP's Response: Disagree with
the comment addressing cooperating agencies and EAs. Although the
commenter is correct in stating that CEQ regulations only address
adoption of EISs, the objectives of reducing delays and eliminating
duplication underlying the adoption provisions apply to adopting EAs.
``Consequently, the Council encourages agencies to put in place a
mechanism for adopting environmental assessments prepared by other
agencies.'' (See Memorandum: Guidance Regarding NEPA Regulations, at 48
FR 34263, July 28, 1983). FAA established agency-wide procedures for
adopting EAs in paragraph 404d of 1050.1E and 5050.4B must conform to
those procedures. Regarding the second
[[Page 29031]]
commenter's input, ARP agrees with the commenter's interpretation of
the instruction that, ``public review for draft EAs is important and
should be considered when preparing the final EA.'' Regarding the need
for a draft and final EA for all actions, typically this is the case.
Rarely does ARP accept the initial EA as a final. Finally, readers
should note ARP is not requiring public review for all draft EAs. That
review is warranted when a public hearing will occur (see paragraph 708
of the final Order), but the need for such review in other situations
is left to the responsible FAA official's discretion.
Concerning paragraph 306, a commenter suggests that state and local
review processes should include local municipalities. ARP's Response:
Agree. The draft text assumed readers would include affected
municipalities in their consultations. Paragraphs 301 and 302 of the
final Order note that the term, ``local agencies'' includes
municipalities and why their input can be important.
Addressing a comment on paragraph 306c, a commenter notes, in its
opinion, there are five steps to realize a project. These are planning,
engineering, environmental review, financing, and construction. The
commenter states the first and last steps are clearly defined, but the
others are not, so it recommends the Order address them. It should
address the 20% limit on engineering drawings noted later and the fact
that infrastructure projects can have a logical purpose and need, but
won't occur if they are not AIP eligible or financed. Another commenter
believes requesting review agency consultation is excessive. ARP's
Response: Addressing the ``five steps,'' ARP agrees they are critical.
Readers should note the Order addresses how four steps relate to the
NEPA process (actual construction is not discussed). Chapter 5 of the
Order addresses the relationship between planning, which includes cost
estimates and construction plans, and environmental review. Paragraph
1004 addresses the relationship between engineering (the level of
engineering drawings) and environmental review. ARP recognizes that
there is a need to consider financial costs in identifying reasonable
alternatives under NEPA. Eligibility for federal funding or use of
passenger facility charges could affect the range of alternatives
studied under NEPA. However, ARP does not agree with the commenter that
this Order, prepared for NEPA compliance, should address planning,
engineering, financing or construction as distinct topics. Beyond the
manner in which they bear upon NEPA review, instructions concerning
these matters are outside the scope of this Order. ARP's Financial
Division (APP-500) has issued guidance for financial assistance,
including Order 5100.38, Airports Programming Handbook and FAA Policy
and Final Guidance Regarding Benefits Cost Analysis on Airport Capacity
Projects for FAA Decisions on Airport Improvement Program Discretionary
Grants and Letters of Intent, (64 FR 70107, December 15, 1999). ARP's
Engineering Division (AAS-100) is available to help sponsors and other
interested parties with design and construction plans. Turning to
``excessive'' agency consultation, ARP disagrees. When reviewing an EA
or information supporting a CATEX, agency input is critical to ARP's
determination of impacts and the proper NEPA document. These
instructions ensure the responsible FAA official has the agency input
needed to complete the NEPA process efficiently and effectively.
Concerning paragraphs 306.c(1) and (2), a commenter noted the 60-
day and 45-day periods signaling the start of agency or Tribal
consultation are inconsistent. Another commenter suggests the time
frames are too short and seeks to tie the consultation to Capital
Improvement Plan data sheets or grant application submittal. Non-agency
commenters sought clarification of the 45-day period regarding ALP
approvals that do not involve Federal funding. The commenters think
this requirement will unnecessarily delay approvals of certain
categorically excluded actions and needs to provide some flexibility.
Another commenter wants ARP to omit the specified time frames and
substitute ``reasonable timeframe.'' Another commenter urges ARP to
include EISs in this discussion, since Order 1050.1E directs FAA
personnel to ensure compliance with NEPA. The same commenter notes that
agencies are reluctant to begin consultation before FAA has determined
an EA or EIS is needed. The commenter suggests deleting the discussion
when a sponsor is not seeking AIP funding, since the opening sentence
addresses AIP funding. ARP's Response: Regarding the comment on timing
consultation, ARP disagrees. The draft's paragraphs properly
highlighted different time sequences, depending on the sponsor's need
for AIP funding. The times are needed to ensure proper consultation
occurs for the NEPA process. To better reflect AIP funding and review
needs, paragraph 302.b(2) of the final Order clarifies the start of
this consultation. After consulting with the Airports Programming
Division (APP-500), ARP's office responsible for AIP financing, we
revised paragraph 302.b(2) to meet financial reviewer needs as well as
those of environmental specialists. The paragraph now states the
sponsor should start consultation so there is sufficient time to enable
the sponsor to file the final EA with ARP by April 30 of the fiscal
year (FY) preceding the FY the sponsor seeks discretionary AIP funding
for the action. If the sponsor seeks no AIP funds, paragraph 302.b(3)
states the consultation should begin at a time that is sufficient for
FAA to complete its NEPA review and accommodate the sponsor's schedule.
Addressing other comments on time frames, ARP declines to add EISs
to this discussion. The intent of instructions in 302.b is simply to
help airport sponsors schedule the start of consultation for documents
they prepare. Since FAA is responsible for preparing EISs for most
airport projects, ARP believes paragraphs 302.b(2) and (3) address the
commenter's concerns. The new instructions highlight the need for
airport sponsors to determine the ``reasonable timeframes'' to meet
consultation requirements and their schedules. This provides the
flexibility commenters sought. ARP emphasizes that sponsors should not
delay consultation, since it is crucial to ARP completing the NEPA process.
Addressing the last comment, ARP disagrees with the commenter's
suggestion to delete the information addressing ALP approvals not
involving Federal funding. The Order should address common situations,
so ARP includes the information in paragraph 302.b(3) of the final
Order to address this rare scenario.
Regarding paragraph 306.d, a few commenters noted the confusing
language this paragraph contains. One commenter suggests the 30-day
period that must elapse between issuance of opportunity for a public
hearing and the hearing itself is the maximum time allowed. The
commenter also asks if the hearing must occur before or after the draft
EA is published. Another commenter states that the instructions require
punctuation and clarification. A third commenter states that requiring
two notices (opportunities for a public hearing and document
availability for the hearing) is unnecessary. One notice should be
sufficient. A fourth commenter suggests that the FAA define what it
means by ``expertise agency.'' Without this, the commenter is concerned
NEPA documents would contain unnecessary information. The commenter
also suggests the term is different from State, local and Tribal
[[Page 29032]]
entities mentioned elsewhere. ARP's Response: ARP agrees the draft
instructions were confusing. The ``Notice of Opportunity for a Public
Hearing'' tells the public that it may request a hearing for an action.
The ``Notice of Public Hearing'' tells the public that the sponsor, in
response to public's review of the ``Notice of Opportunity for a Public
Hearing,'' has determined a hearing will occur. Paragraphs 404 and 406
of the final Order clarify these points. Paragraph 404.a(4) notes the
draft NEPA document must be available to the public for a 30-day period
to help people prepare for the hearing. Paragraph 406.b states that 30
days must elapse between the ``Notice of Public Hearing'' and the time
the hearing will occur. Finally, regarding the term, ``expertise
agencies,'' paragraph 9.f of the final Order defines this term. It
means ``a Federal, State, local, or Tribal government agency with
specialized skill or technical knowledge on a particular environmental
resource.''
Concerning paragraph 307.f, an SBGP commenter seeks clarification
on resolving issues at state levels. The commenter notes that sending
unresolved issues to DOT's Secretary for Administration is excessive.
The particular block grant agreement designates the State with the
responsibility to resolve the SBGP issues. ARP's Response: Comment
noted. Readers should review this Preamble's paragraphs b, k, and State
Block Grant Program section for more information on the roles of State
agencies participating in the SBGP. Participating state agencies should
use instructions in paragraphs 210-214 of the final Order to help them
address environmental effects SBGP actions may cause. They should also
use those instructions to determine if FAA retains authority for any
actions connected to the airport action under the SBGP.
Concerning non-state block comments on paragraph 307.f, to avoid
confusion, another commenter mentions the paragraph should emphasize
FAA reaching agreement with the sponsor before making the EA public and
if agreement isn't possible, to advise the sponsor that FAA cannot
accept the sponsor's EA. Another commenter states FAA should not be
involved in resolving issues, unless there is a Federal tie and the
intervention should not occur until an EA receives public review. The
commenter also states elevation of an issue to the DOT is
inappropriate, unless the issue has national importance. ARP's
Response: ARP concurs that agreement on important issues is critical in
preparing any NEPA document. It is the responsible FAA official's duty
to work with the sponsor to reach that agreement. However, due to
conflicting opinions on environmental issues, agreements do not always
occur. To address this, the final Order (paragraph 707.d), as Order
5050.4A did, discusses how the responsible FAA official might be able
to help resolve disagreements. This information is helpful in
determining if an EA is appropriate for an action or if FAA must
prepare an EIS.
Responding to the second commenter, ARP points out there would be
no need for a NEPA document unless a ``Federal nexus'' existed. ARP
disagrees that its personnel should wait until an EA is available for
public review before it tries to aid in resolving a problem. That is
not efficient or effective project or NEPA management. In addition, the
public does not review all EAs, yet they may still require ARP
assistance to resolve issues. Further, when possible, ARP prefers to
work out solutions to problems before issuing an EA for public review.
This provides the public with a more valuable document, shows that a
disagreement existed, and the agencies worked to solve it, proving no
one ``rubber stamps'' actions. Finally, citing the DOT Assistant
Secretary in the instructions, shows the various governmental levels
that may be needed to resolve an airport issue. Of course, it is the
ARP official's decision to determine the process he or she will use in
trying to resolve an issue. Knowing this, ARP doubts its personnel
would contact DOT, unless the disagreement involved a matter of
national significance or otherwise warranted DOT involvement.
Turning to comments on paragraph 307, a commenter suggested that
the Order define the term, ``public hearing'' to reflect various ways
to collect and exchange information with the public. Experience shows
informal venues often provide the best flow of information between FAA
and the public. The same commenter also notes that airport sponsors
often conduct ``local public meetings to discuss future development.''
The commenter states the Order should discuss these meetings and how
they relate to the ``FAA public forum.'' ARP's Response: ARP agrees
with the comment that there are many informal and highly effective ways
to involve the public in planning future airport development projects
and in the NEPA process. However, the comment mistakenly assumes that
public involvement is the same as a public hearing. NEPA requires
opportunities for public involvement, including opportunities for
review and comment in some cases, but not public hearings. ``Public
hearing'' is a term of art under 49 U.S.C. 47106(c)(1)(A)(i), pursuant
to which airport sponsors must certify that they have afforded the
opportunity for a public hearing to qualify major airport development
projects for federal grant funding. ARP recognizes that the most
important aspects of a traditional, formal hearing are that a
designated hearing officer controls the gathering and there is an
accurate record of the major public concerns stated during the
gathering. Such criteria are viewed by some as crucial to agency
decision making because they provide the approving FAA official and
other interested parties with information on topics of paramount
concern to interested parties. ARP declines for the first time in this
final Order to define the term public hearing for purposes of 49 U.S.C.
47106(c)(1)(A)(i) and NEPA, including whether a public hearing may take
forms other than the traditional one. Addressing the request for
information to distinguish ``local'' and ``FAA'' forums, ARP notes that
it believes the commenter's request addressing ``local'' forum relates
to public participation in master plan development (i.e., ``future
development''). In ARP's opinion, hearings for master planning are
outside the NEPA process and are parts of airport sponsor planning
responsibilities. Therefore, the sponsor may follow any procedures it
wishes to inform and conduct those meetings. Readers should note the
final Order's public hearing instructions at paragraph 404.b apply to
those airport actions mentioned at 49 U.S.C. 47016.(c)(1)(A)(i)
requiring the sponsor to provide opportunities for a public hearing.
More instructions at paragraph 403.c discuss other actions that may warrant
a hearing to help the sponsor and FAA address other public concerns.
In discussing paragraph 307.a, one commenter wants clearer
instructions about giving out information to the public as it prepares
for a public hearing. The commenter also suggests there should be two
public hearings, one to provide information to the interested public, a
second for comments after the public has thought about the information.
ARP's Response: ARP agrees the public should have access to information
to prepare for hearings or meetings. Paragraphs 404.a and 708 of the
final Order discuss this. Paragraph 404.a states the ``Notice of
Opportunity for a Public Hearing'' must provide information on various
project issues and where and when the public may review the draft EA or
EIS over a
[[Page 29033]]
30-day period. Paragraph 708 tells airport sponsors that the
responsible FAA official should review a draft EA before the sponsor
issues it to the public preparing for a public hearing. FAA's review
ensures the draft EA the public will study adequately reflects FAA
policy and concerns before the public sees the document. In addition,
many draft EAs and EISs are on publicly accessible Web sites; this
helps to further distribute information for public hearings and public
reviews. ARP disagrees with the commenter's recommendation to conduct
two public hearings. ARP believes distributing the ``Notice of
Opportunity for a Public Hearing,'' the draft EA, and conducting the
hearing satisfy the reasons the commenter cites for conducting two
meetings. Reviewing the draft EA and other information provides facts
to the public about an action. The meeting itself gives the public the
opportunity to present its concerns about issues the EA discusses.
Concerning paragraph 307.b, one commenter seeks clarification on an
obvious inconsistency regarding the draft Order's instructions
addressing the opportunity for a public hearing. Another commenter
states paragraph 307.a requires the sponsor to provide an opportunity
for a public hearing, while paragraph 307.b appears to make the
opportunity for a hearing optional. A third commenter suggested a
revision to alert the public that a public hearing may be needed for
reasons not addressed in paragraph 307a. ARP's Response: ARP does not
agree an inconsistency in the paragraphs exists. The intent of
paragraph 307.a is to alert the sponsor who intends to file a project
grant application for a new airport, a new runway, or major runway
extension that the sponsor must provide an opportunity for a public
hearing. The sponsor must do so to comply with 49 U.S.C.
47106(c)(1)(A)(i). Paragraph 307.b (now paragraph 403) tells the
sponsor and FAA they may provide an opportunity for a public hearing
for other airport actions, after considering the specific factors mentioned
in that paragraph. ARP sees no reason to modify these instructions.
A comment on paragraph 307.c noted that simply filing a draft EA
with FAA before a public hearing occurs does not ensure the document
would accurately reflect FAA policies and concerns. Modify the
paragraph to ensure the draft EA addresses those policies and concerns.
ARP's Response: Agree. Although we assumed the reader would understand
the EA would need revision to address FAA concerns, we agree that
statement is needed. Paragraph 708 of the final Order conveys the
commenter's suggestion.
Starting paragraph 307.d comments. Two commenters note that the
requirement in paragraph 307.d(1)(d) requiring the public to send
written comments in response to a public hearing within 14 days of the
hearing is new guidance or a new requirement. They state the specified
time is unnecessary. Another commenter states that paragraphs 307.d and
307.d(1) addressing the timing of the hearing relative to notice of the
hearing contradict each other. Still addressing hearing timing, another
commenter disagrees with the requirement to provide 30 days between the
time the notice that a hearing will occur and the date the hearing will
occur. This period with the 30-day period given to the public to
respond to an offer to conduct a hearing gives the public at least 60
days to review a NEPA document. The commenter suggests providing a 15-
day period between the notice announcing the hearing will occur and the
hearing date. ARP's Response: Regarding the concern about time limits
for submitting public hearing comments, ARP disagrees with the
commenters' statement. ARP believes that some reasonable time to file
comments is appropriate. ARP contends that failing to set that time
could cause inefficient NEPA processing and result in documents that
fail to include important concerns arising during public hearings.
Therefore, paragraph 406.b(4) of the final Order tells the public to
submit written comments within a 10-day period following the hearing or
by the end of the NEPA document comment period, whichever is later. ARP
has set this period to alert the public that project managers need
timely public input to ensure NEPA documents address public concerns.
Although no CEQ or FAA-wide requirements addressing public hearing
comment submittals exist, ARP has established a reasonable time frame
to help make its NEPA process more efficient and effective.
Turning to the comments on the ``Notice of Opportunity for a Public
Hearing'' and the ``Notice of Public Hearing,'' ARP has revised the
information in paragraph 307.d (1)-(3) of the draft Order. ARP agrees
the 60-day period between the ``Notice of Opportunity for a Public
Hearing'' and the public hearing itself may be unnecessary. Therefore,
paragraph 404.a(5) of the final Order provides a 15-day period for the
public to decide if it wants a public hearing. Although, this time is
15 days less than the response time noted in draft Order at paragraph
307.c, ARP believes that 15 days is sufficient time for the public to
review the information the ``Notice of Opportunity for Public Hearing''
contains and decide that it wants or does not want a public hearing.
However, paragraph 406.b retains the 30-day period between the time the
sponsor or FAA issues the notice that a public hearing will occur and
the date of the hearing. ARP believes the 30-day period provides the
public sufficient time to prepare for a public hearing.
Regarding paragraph 307.d(2)(c), a few commenters suggest deleting
the reference to floodplain encroachment in the ``Notice of Public
Hearing.'' Citing only one of many resource areas could confuse the
public that floodplain encroachment is the only impact an action would
cause. ARP's Response: ARP agrees in part. It has revised the text that
appeared in the draft Order. To ensure the public is aware of an
action's potential environmental effects, paragraph 403.b of the final
Order suggests that the Notice highlight potentially affected
environmental resources especially floodplain, wetland or historic
property impacts. Special emphasis is placed on these resources to meet
the public involvement requirements of the special purpose laws
protecting those resources. The sponsor or FAA should base the list on
information in the draft EA or EIS available for public review as noted
in paragraph 406.b(3) of the final Order. This revision would highlight
and provide a more thorough list of project-related impacts.
Addressing comments on paragraph 307.f, ARP reports that two
commenters stated requiring transcripts for all public hearings,
including informal workshops, is unnecessary and to do so is costly.
They agree formal hearings (conducted by designated hearing officials)
are appropriate venues for transcripts, but informal workshops do not
lend themselves to court reporting techniques. Instead, they suggest
using comment forms at workshops or other informal hearings. ARP's
Response: Disagree. This change is not needed. Paragraph 406.d of the
final order requires hearing transcripts to ensure decision makers have
information about major concerns and issues raised during public hearings.
Chapter 4 comments. General comment: A commenter suggested placing
all tables at the end of the chapter for easier reference and to aid in
reading the text. ARP's Response: Agree. Tables 6-1 through 6-3 of the
final Order (formerly Tables 1 though 3 in Chapter 4 of the draft
Order) are now at the end of Chapter 6 in the final Order.
[[Page 29034]]
Chapter 6 provides information about CATEXs.
Another commenter had many comments on the assumptions FAA makes on
assessing noise impacts and the applicability of the assumptions to
categorical exclusions. ARP's Response: Please refer to this Preamble's
Significant noise impact threshold section for ARP's response to the
commenter's concerns.
Regarding the footnote on page 1 of the draft Order's Chapter 4, a
few commenters noted the list of laws was incomplete. For example, it
failed to include wetlands and the Clean Air and Clean Water Acts.
ARP's Response: Agree. To correct this error, paragraph 9.t and Table
1-1, list the laws, regulations, and orders comprising the term,
``special purpose laws'' for purposes of this Order. The table includes
information from Order 1050.1E, Appendix A, which discusses
requirements outside NEPA.
Regarding footnote 2, a commenter wanted clarification of the
Emissions Dispersion Modeling System (EDMS) model version one should
use when conducting air quality analysis. The commenter also states it
is concerned about EDMS's capability because EDMS doesn't provide for a
particulate matter analysis and some default values are outdated. The
commenter also asks for information about evaluating toxins * * *
should one use State or Federal standards? The commenter also requests
a discussion on air quality conformity. ARP's Response: In response to
the comment on the EDMS version needed to conduct air quality analysis,
Order users must use the most recent version of that model (see Order
1050.1E, Appendix A, paragraph 2.4d).
In response to the comment about EDMS's ability to predict
particulate matter (PM), FAA recently developed the First Order
Approximation (FOA) method to enable the EDMS users to estimate
PM10 and PM2.5 emissions for commercial, jet-
turbine aircraft engines. The FOA only applies to aircraft engines
having reported Smoke Numbers (SNs) and modal fuel flows for take-off,
climb out, taxi/idle and approach. In cases where EDMS does not include
aircraft PM emission estimates, analysts are to use the best available
information. An example of this information is average the aircraft
engine PM data from AP-42, Volume II, Mobile Sources, 4th edition,
September 1985. Those interested in the FOA may learn more about it at:
http://www.faa.gov/about/office_org/headquarters_offices/aep/
models/edms_model/.
In addressing the issue of air toxins, ARP refers the reader to the
discussion of aviation-related pollutants and health risks in FAA's
Federal Register Notice of Adoption and Availability of Order 1050.1E
(69 FR 33784, June 16, 2004). As to whether to use Federal or state
standards for air toxins, the U.S. EPA has not established standards
for hazardous air pollutants (HAPS). FAA policy is to disclose
estimates of HAPS emissions for NEPA purposes, but not to assess human
health risks due to the absence of Federal standards and acceptable
data linking air toxins to human health (see this Preamble's
Instructions on ``NEPA-like'' states or agencies for more information).
FHWA recently issued an interim policy on mobile source air toxins on
February 3, 2006, at http://www.fhwa.dot.gov/environment/airtoxic.
Turning to conformity instructions, ARP disagrees with the
commenter's request to include instructions on conducting a conformity
analysis. The Clean Air Act, not NEPA governs conformity requirements.
The Desk Reference will address this topic. Until ARP completes the
Desk Reference, users of Order 5050.4B should follow instructions on
general conformity in the Air Quality section of Order 1050.1E's
Appendix A.
Regarding draft Order Chapter 4's Tables 1 and 2, a commenter
stated the Tables did not include certain actions that are
categorically excluded. As a result, ARP could not CATEX certain
actions if they did not appear in these Tables. ARP's Response: Agree
in part. ARP admits that it unintentionally omitted certain airport
projects and associated actions from the draft Order. To correct this,
ARP has revised the Tables (now, Tables 6-1 and 6-2). Regarding the
balance of the comment, ARP disagrees with that commenter's statement.
ARP wishes to note that its personnel may categorically exclude an
action even if it is not listed in Tables 6-1 and 6-2 of the final
Order, provided the action is listed in Order 1050.1E, paragraphs 307-
312. This is because those paragraphs list the categorical exclusions
that all FAA organizations must use. ARP could have relied solely on
those paragraphs for airport actions that may be categorically
excluded. But for convenience and to avoid reading the extensive text
in those paragraphs not pertaining to airport actions, ARP
alphabetically arranged airport-specific portions of the agency's
categorical exclusions in Tables 6-1 and 6-2 of Order 5050.4B. ARP has
assembled and provided the CATEXs in these tables for ease of
reference. Nevertheless, there may be actions that ARP may approve, but
that the Tables inadvertently omitted. If there is any inconsistency,
Order 1050.1E supersedes the Tables in Order 5050.4B.
Starting paragraph 403 comments, a reviewer states that CATEXs do
not contain public disclosure requirements, a critical part of the NEPA
process. In addition, the commenter objects to the instruction that ARP
need not notify local officials that ARP is considering a CATEX.
Further, no written report explaining assumptions on a CATEX is
required. Finally, there is no way to legally appeal or challenge FAA's
CATEX determination. ARP's Response: Disagree. ARP follows the agency-
wide instructions in Order 1050.1E, Chapter 3 addressing CATEXs. In
developing the instructions in Order 1050.1E at Chapter 3, FAA, in
consultation with CEQ, determined there is no need to involve the
public when impacts are so minimal that they don't trigger
extraordinary circumstances. After public vetting of draft Order
1050.1E, CEQ certified and FAA adopted the instructions in that Order.
For NEPA purposes, the Order does not include public disclosure
requirements for CATEXs because these actions are to be so minor in
impact that they rarely cause significant environmental impacts (40 CFR
1508.4). Therefore, FAA decided public notices of those actions are not
needed. However, FAA believes the need to examine extraordinary
circumstances provides an adequate level of public involvement for
categorically excluded actions deserving public input. ARP emphasizes
that if a potential CATEX involves an extraordinary circumstance
associated with a special purpose law, the responsible FAA official
must ensure FAA complies with the requirements of that law or Executive
Order. Some special purpose laws require public involvement.
Consequently, the responsible FAA official cannot CATEX an action
without ensuring compliance with the applicable special purpose law's
public involvement requirements. ARP wishes to point out, that anyone
who believes ARP did not meet the requirements of the applicable
special purpose law, may legally challenge the FAA's CATEX
determination. Anyone believing that ARP did not fulfill the
requirements of the applicable special purpose law may challenge in
court FAA's decisions based on the CATEX. ARP notes this provision
addresses the commenter's concerns there is no way to ``legally appeal
or challenge FAA's categorical exclusion determination.''
Regarding alerting local officials, ARP has adopted a requirement
that its responsible FAA officials inform the airport sponsor that ARP
has or has not categorically excluded an action. No
[[Page 29035]]
CEQ regulation or agency instruction requires this, but ARP requires it
to avoid past misunderstandings claiming ARP did not environmentally
analyze CATEXs.
Concerning paragraph 403.f, one commenter stated the annotations in
Tables 1 and 2 are too narrow and should be expanded to include other
types of airport actions and ALP amendments. For example, Table 2 only
allows ALP amendments for FAA-approved noise compatibility program
measures. ARP's Response: Agree. We have revised the lead-in language
for each type of Federal action Tables 6-1 and 6-2. The language may be
to: Approve AIP funding; to approve an ALP; or to approval AIP funding
and an ALP.
Addressing paragraph 403.f(2), a commenter suggested revising the
text. The revision would allow the sponsor to provide available
information to FAA so the responsible FAA official could analyze
effects. If that information isn't sufficient, the official may request
an EA or begin an EIS. ARP's Response: Agree. Paragraph 603 of the
revised Order addresses this concept. It encourages an airport sponsor
to provide information it has collected to the responsible FAA official
to aid the official determine if a CATEX is appropriate.
Concerning paragraph 403.g(1)(a), a few commenters stated that
requiring documentation to meet applicable legal requirements
unnecessarily burdens sponsors to prepare evaluations for actions
normally categorically excluded. The commenter suggests using telephone
memos, e-mails or other communications to verify the requirements of
special purpose laws have been met. Another commenter objected to the
text that appeared to give other agencies veto power over FAA
determinations on categorical exclusions. ARP's Response: Agree in
part. If the applicable special purpose law does not require specific
documentation, ARP agrees the sponsor may use emails, memoranda, faxes,
or other correspondence to show it has contacted the appropriate
agency. However, revised instructions at paragraph 605.b address
documentation needs. Paragraph 606.b(3) of the final Order clearly
states case files must contain the documentation an applicable special
purpose law requires. This information is extremely useful to the
responsible FAA official's decision to CATEX an action or require the
airport sponsor (or its consultant) to prepare an EA or for FAA to
prepare an EIS. Addressing the text regarding veto over FAA decisions,
paragraph 606.b(4) clearly indicates the approving FAA official
determines the proper NEPA process an action would require.
Beginning comments on Table 1 of the draft Order. In a comment that
generally addresses Tables 1 and 2 of the draft Order, a reviewer
states actions involving extraordinary circumstances require the
sponsor to provide more documentation for a CATEX. For actions not
involving these circumstances, the reviewer seeks instruction on how to
document that situation. The reviewer suggests the sponsor prepare a
short letter to FAA stating that fact. ARP's Response: See response to
paragraph 403.g(1)(a).
Addressing paragraph 404, (the responsible FAA official notifies
airport sponsors about CATEXs), another commenter stated this appears
to be optional. Another commenter noted that sponsors are alerted when
a categorically excluded action involves extraordinary circumstances,
but sponsors are not notified when actions do not involve those
circumstances. Another reviewer suggested that ARP adopt one form of
notice. Finally, another commenter sought notice to local
municipalities. ARP's Response: Paragraph 608 of the final Order makes
the notification to airport sponsors mandatory. ARP declines the
request to notify a local municipality regarding CATEX decisions,
unless the municipality is the airport sponsor. To avoid past confusion
some sponsors had about ARP's CATEX reviews, ARP voluntarily adopted
the notification measure. Regarding the form of notice, paragraph 608
of the final Order requires an e-mail or dated letter. ARP is using
either format to ensure this notification e does not place an undue
burden on regional or district Airports office personnel.
Regarding Paragraph 405, a few commenters objected to the need for
an EA if an action required moving people and/or businesses for any
action. A commenter questioned the need for an EA if an action caused
one resident to move. Another commenter stated that citing CEQ's
regulation addressing preparation of an EA when an ARP official decides
one is needed for agency planning or decision making would be
confusing, especially for CATEXs sponsors view as not ripe for
decision. Another commenter suggested deleting the phrase, * * * ``or
its consultant'' from the instruction that stated FAA must ensure the
airport sponsor or its consultant prepare an EA. The commenter stated
that FAA cannot require the sponsor's consultant to prepare an EA and
that the sponsor has discretion to decide if it or its consultant will
prepare the document.
Another commenter recommended specifying the need for an EA if an
action were near a historic site or national park. Lastly, a commenter
suggested that this chapter include an ``Environmental Checklist'' such
as the one in Order 1050.1E, Appendix 1, ``page 5,J.'' Using this aid
should expedite the environmental review process. ARP's Response:
Regarding the comment about the need for an EA due to relocating
businesses or residents, text in paragraph 702.c of the final Order
clarifies that if moving businesses or people are highly controversial
actions, an EA is normally needed.
Addressing the comment on EA preparation for planning or decision
making purposes, ARP has modified the instruction. As lead Federal
agency, a regional or district Airports office may need to prepare an
EA to make a decision on planning issues or for other actions needing
an FAA decision. According to 40 CFR 1501.3(b), the offices may prepare
an EA for agency decision making. Paragraph 701 reflects this response.
Addressing the use of consultants to prepare EAs, ARP believes the
word, ``its'' caused confusion. In the draft, ``its'' referred to the
sponsor, not FAA. To clarify the sponsor's right to prepare an EA or to
hire a qualified consultant to do so, the text in paragraph 702 of the
final Order states the sponsor or its qualified consultant prepares an EA.
ARP disagrees there is a need to specify the distance between an
airport action and a historic resource or national park. If the action
is normally a CATEX, ARP's analyses of extraordinary circumstances will
determine the need for an EA or EIS to better decide the intensity of
the action's effects on those resources. If the action is not normally
a CATEX, the responsible FAA official would request that a sponsor
prepare an EA, regardless of the project's distance from these resource.
ARP has not revised the text to include the commenter's suggestion.
Finally, addressing the use of an ``Environmental Checklist,'' we
were unable to find the page in Order 1050.1E, the commenter noted. ARP
is discouraging encyclopedic EAs that do not focus on the specific
environmental resources an action would affect and their resultant
environmental consequences. Historically, EAs have contained much more
information than ARP needs to make a finding on impact severity. ARP is
encouraging its staff and others to be concise, yet accurate and
complete when preparing EAs. This should expedite the NEPA process
[[Page 29036]]
without compromising document quality.
Addressing paragraph 405.d, a commenter suggested that the Order
use the DNL 65 dB contour to more accurately define when new heliport
operations cause noise over noise sensitive areas. ARP's Response:
Agree in part. Paragraph 702.b of the final Order specifies the DNL 65-
dB contour and the need to examine if the action may cause a DNL 1.5 dB
noise increase over noise sensitive areas within the DNL 65 dB contour.
The paragraph also notes in accordance with paragraph 9.n of the final
Order that there are quiet settings where the DNL 65-dB standard may
not apply. ARP made this change to reflect the definition of noise
sensitive areas in Order 1050.1E, paragraph 11.b(8).
Addressing paragraphs 405.d and 405.f, a commenter asked
clarification on the relationship between these paragraphs. Paragraph
405.d requires an EA for a new airport serving general aviation, while
paragraph 405.f requires an EA for a new airport that is not located in
a Metropolitan Statistical Area (MSA). ARP's Response: Disagree.
Paragraph 702.d of the final Order clearly requires an EA for a new
airport serving only general aviation, regardless of its location.
Paragraph 702.e of the final Order requires an EA for a proposed new
airport serving commercial service aircraft or commercial service and
general aviation aircraft, provided that facility would not be located
in an MSA. Airports serving commercial service aircraft that are
proposed in an MSA require an EIS (paragraph 903.b).
Regarding paragraph 405.i, a commenter recommended adding a
provision allowing ARP to adopt an EA if the Corps has accepted that
document for a permit it has issued for the proposed action. Another
commenter from Alaska wants ARP to issue an exemption regarding the
need to prepare EAs for airport actions affecting wetlands in that
state. The commenter notes that wetland involvement is a ``kick out''
to categorically excluding an action. Therefore, EAs will be the norm
in Alaska for projects affecting wetlands due to Alaska's abundance of
wetlands. ARP's Response: Regarding the first comment, ARP agrees, with
the suggestion. Paragraph 707.b of the final Order provides information
from Order 1050.1E, paragraph 404d, describing the responsible FAA
official's duties when ARP will adopt another Federal agency's EA.
ARP disagrees with the comment from Alaska stating an EA is needed
for all airport actions affecting wetlands. ARP cannot issue an
exemption for the State of Alaska, nor other locales. If the commenter
seeks that exemption, it should contact the Office of Environment and
Energy, since that office is responsible for changes to agency-wide
procedures. However, readers should note that Chapters 6 and 7 of the
final Order clarify when EAs are needed for airport actions in
compliance with Order 1050.1E. In preparing Orders 1050.1E and 5050.4B,
FAA and ARP, respectively, streamlined the NEPA process for actions
involving wetlands as much as possible. ARP informs the commenter that
development of the CATEX for Order 1050.1E, paragraph 310k, addressed
``actions having minor impacts on U.S. waters and wetlands.'' This,
indeed, was a streamlining measure FAA implemented in preparing Order
1050.1E, and ARP includes it in Order 5050.4B. FAA includes this
instruction in these Orders to reduce the number of EAs prepared for
actions that affect wetlands. Earlier instructions required EAs for all
FAA actions affecting any amount of U.S. waters or wetlands. ARP
contends this procedures in Orders 1050.1E and 5050.4B regarding
wetlands are the most efficient and effective ways to address this
issue. When an EA is needed, ARP reminds airport sponsors to work with
the responsible FAA official early in the EA preparation process. This
should focus the EA on information the FAA official needs to determine
if the EA adequately addresses practicable alternatives, wetland
impacts and their consequences, impact severity, and mitigation. This
information is needed to meet FAA and other Federal requirements.
Working early with the official should also reduce the EA's bulk. Too
often, EAs include unnecessary and lengthy discussions about resources
the action would not affect. Better vigilance and quality control to
focus the EA on expected impacts and consequences should expedite the
NEPA process for airport actions without compromising document quality.
Concerning paragraph 406.b, a commenter applauded the inclusion of
language stating that FAA need not prepare an EIS if a sponsor's EA
shows the action would not have significant environmental effects.
ARP's Response: Comment noted. Paragraph 903.c of the final Order
contains that text.
Concerning paragraph 407, which discussed cumulative effects, some
commenters disliked the instructions the paragraph provided. They
suggested that ARP provide much more information on this topic. ARP's
Response: Paragraph 1007.i provides information on cumulative effects.
ARP will provide more details in its Desk Reference. Until ARP that
document is available, ARP urges readers to review paragraph 1007.i of
this Order, paragraph 500c of Order 1050.1E, and CEQ's guidance on
cumulative impact analysis, Considering Cumulative Effects Under the
National Environmental Policy Act
(http://ceq.eh.doe.gov/nepa/ccenepa/ccenepa.htm).
Addressing paragraph 408.a, a commenter objected to the statement,
``airport actions often disturb substantially more area than other FAA
activities.'' The commenter noted that actions the Air Traffic
Organization oversees often affect greater areas than do airport
actions. ARP's Response: Agree. ARP has deleted the statement from the
Order. However, ARP notes that noise impacts due to air traffic actions
may affect greater areas than airport projects. However, item n of this
Preamble's Final FAA Order 5050.4B section notes that the extent of
physical disturbances due to airport actions is often greater than the
physical disturbances other FAA actions cause.
Concerning paragraph 408.b(1), commenters argue the analysis needed
to determine if an action would exceed a national ambient air quality
standard requires costly, time-consuming dispersion analysis. This
analysis creates an undue burden on airport sponsor. Instead, the
commenter suggests using conformity applicability analysis for projects
in non-attainment areas. ARP's Response: ARP disagrees with the
commenter's request to replace the impact severity criteria of NAAQS
violations with exceedances of de minimis levels for Clean Air Act
general conformity in non-attainment areas. NEPA requires some type of
air quality evaluation for most actions having potentially significant
air quality effects. ARP notes that NEPA does not limit that analysis
to non-attainment or maintenance areas as General Conformity does.
FAA's upcoming ``presumed to conform'' list will provide further
information on actions that have no potential to significantly affect
air quality. The screening criteria in the FAA/Air Force Air Quality
Handbook may also be considered in evaluating potential air quality
impacts. It is not ARP's intent to require a dispersion analysis in
every case.
Concerning paragraph 402.b.(2), a few commenters stated the terms,
``sizeable amount'' and ``small tract of sensitive habitat'' provided
little, if any guidance and complicate the analysis. Consider deleting
this section and use the simple reference in Order 1050.1E, Appendix
[[Page 29037]]
A. ARP's Response: Table 7-1 incorporates this and other thresholds
from Order 1050.1E, Appendix A. ARP recognizes and agrees with the
commenters' statements that Order 5050.4B should include useful
information from Order 5050.4A. Table 7-1 incorporates some of the
information from Order 5050.4A, paragraphs 47.e and 85. a-t in the
Table's ``Factors to Consider'' column. Although Order 1050.1E does not
include this information, ARP included it in Table 7-1 because ARP
specialists, airport sponsors, and consultants have, for years, found
the information useful in assessing airport actions. Readers should
note the ``factors'' are not significance thresholds, but simply
summarize past guidance that remains useful in determining if an action
``triggers'' a significant impact threshold in Order 1050.1E.
Chapter 5 Comments: ARP received no general comments on this
chapter. Addressing comments on paragraph 500, a commenter suggested
the text note that an EA or EIS is not needed if FAA CATEXs an action.
ARP's Response: Agreed. ARP made a revision to paragraph 601.c of the
final Order clarifying that item.
Addressing paragraph 500.d, another commenter sought clarification
about ARP's role in preparing or reviewing environmental documents that
State Block Grant Program (SBGP) participants prepare. The commenter
sought information on ARP oversight of the SBGP. ARP's Response: Agree.
Paragraph 213 of the final Order states ARP remains responsible for
overseeing a participating state's activities under the SBGP, not
reviewing every environmental document for adequacy. This oversight is
to ensure the SBGP participant is complying with its SBGP contractual
agreements.
Regarding a comment on paragraph 502, a commenter seeks provisions
for ARP funding to communities that SBGP actions would affect.
Particularly, the commenter wants funding to study airport-related
noise, water, and air pollution impacts. A commenter from a
participating SBGP entity, another commenter, and the U.S. EPA seek
information on how Section 106 of the National Historic Preservation
Act, Section 4(f), and other special purpose laws relate to the SBGP.
The commenters question who is responsible for meeting NEPA and the
special purpose law requirements outside NEPA. ARP's Response: In
addressing the comment on funding for surrounding communities, ARP
disagrees. This funding is not eligible under the Airport Improvement
Program or the SBGP. Like all other airport actions, communities must
fund their own studies. In response to the questions on SBGP
responsibilities, ARP notes that its issuance of SBGP money is a CATEX
(Order 1050.1E, paragraph 307.o). After issuing that money to SBGP
participants, ARP has no discretion over the money. Therefore,
financing of airport actions under the SBGP is not a Federal action and
NEPA does not apply. However, ARP notes the participating SBGP states
signed a contractual agreement that makes them responsible for
completing an environmental evaluation of the airport action that will
receive SBGP funding (paragraph 211 of the final Order).\9\ According
to that contract, the evaluation must be similar to the
interdisciplinary analysis ARP would have done if it had responsibility
for the action (recall that the SBGP participant has discretion over
the action) States with ``NEPA-like laws'' comply with those laws when
completing the environmental impact analysis SBGP actions would cause.
They must also follow instructions in this Order and 1050.1E, Appendix
A (and eventually the Desk Reference) to address the special purpose
laws outside NEPA (paragraph 212.b of the final Order). States without
``NEPA-like laws must follow the NEPA implementing instructions in this
Order and Appendix A (and eventually the Desk Reference) as noted
previously (paragraph 212.c of the final Order). ARP requires this
process not to comply with Federal regulations, but to provide SBGP
personnel with information they contractually agreed to use to evaluate
environmental effects of SBGP actions in a comprehensive,
interdisciplinary manner.
---------------------------------------------------------------------------
\9\ CEQ has stated that the Order's instructions on the SBGP: ``
* * * comport [agree] with NEPA. In fact, FAA deserves credit for
not simply categorically excluding the program [SBGP], as it can
based on the limited authority over the distribution of funds by
statutory apportionment (49 U.S.C 47114(d)), but furthering NEPA
purposes through contractual commitments to meet NEPA
requirements.'' Comments on Order 5050.4B Preamble, personnel
communication from Edward A. Boling, Council on Environmental
Quality to Edward Melisky, FAA, dated April 9, 2006.
---------------------------------------------------------------------------
Concerning paragraph 502.e(1), another commenter sought clearer
instructions on ARP's role when it awards discretionary funding for an
airport action under the SBGP. ARP's Response: Comment noted. Paragraph
213.a of the final Order addresses this situation. In this case, ARP,
not the participating state, is responsible for completing the NEPA
process. This is because ARP uses its discretion when reviewing
requests for discretionary money for a specific SBGP action at a
particular airport. Since ARP exercises discretion over a portion of
the funds for the action, it must meet NEPA requirements.
Concerning paragraph 504, a commenter questioned the awareness of
other FAA organization responsibilities for actions connected to SBGP
airport actions. A commenter from an SBGP state notes the Order
references the need for an airport sponsor to provide information to
and consult with FAA for airport projects, but it doesn't discuss these
issues relative to the SBGP. The commenter notes the Order should more
clearly address how the sponsor should relate to SBGP agencies. The
same commenter also wishes to know if SBGP participants will have
access to the Desk Reference. ARP's Response: ARP discusses the
concerns of the commenter in item k of this Preamble and in comments
addressing paragraphs 203.a and 307.f of the draft Order. Readers
should review those responses for information on the FAA organization's
duties and SBGP projects. Additionally, ARP wants readers to know that
it has coordinated the requirements of paragraph 213 (addressing FAA
Actions connected to SBGP projects) with other FAA organizations who
retain authority for actions connected to SBGP projects. Those
organizations are aware of their continued involvement in these projects.
In addressing the comment about airport sponsor coordination for
SBGP actions, paragraph 212.a of the final Order addresses this. It
clearly states that participating SBGP State agencies should substitute
the words, ``SBGP agency personnel'' when reviewing instructions their
Federal counterparts would normally meet. This wording informs the
reader that the State, not FAA, is taking an action or making a finding
or decision regarding a particular airport action under the SBGP.
Regarding Desk Reference availability, ARP directs the commenter to the
General Comments section of this Preamble discussing the Desk Reference.
Responding to a comment about paragraph 505, a reviewer objects to
ALP approvals occurring without formally involving communities
adjoining an airport. Three other commenters seek added text to show
that ARP may conditionally and unconditionally approve an ALP. ARP's
Response: ARP notes the comment addressing public involvement. ARP
informs the commenter that NEPA and many of the special purpose laws
applicable to airport projects require
[[Page 29038]]
public involvement. ARP cannot unconditionally approve an ALP or other
Federal actions without meeting the requirements of these laws,
including their public involvement provisions. Addressing the comments
about issuing both types of approvals for an ALP, ARP agrees. To more
clearly emphasize this, ARP has discussed those approvals in paragraph
202.c of the final Order. The paragraph notes the approving FAA
official may not conditionally approve an ALP depicting a new airport,
a new runway, or a major runway extension, when an EA or EIS is being
prepared for any of these facilities and actions connected to them.
Instead, the approving FAA official may unconditionally approve an ALP
depicting those facilities and their connected actions only if FAA has
issued a FONSI or ROD that is based on an EA or EIS, respectively, that
addresses those airport actions.
Concerning paragraph 505.b(2), two commenters suggest noting that
conditional ALP approvals apply to actions FAA deems ``not ripe'' for a
decision (i.e., tiering). ARP's Response: Agree. Paragraph 202.c of the
final Order discusses how conditional, unconditional, and ``mixed''
approvals relate to tiering.
Regarding paragraph 505.b(3), a commenter objects to the limit on
conditional airport layout plan (ALP) approvals. The commenter objects
because ALPs often include actions, ``that do not require any type of
federal approval.'' The limits proposed could jeopardize and delay
projects not requiring that approval. Another commenter states this
paragraph discourages sponsors from beginning the NEPA process early in
project planning. A third commenter suggested adding the words, ``and
not shown on an unconditionally approved ALP'' after the phrase,
``[t]he approving FAA official may not issue a conditional approval to
a sponsor who has begun preparing an EA or if FAA has begun preparing
an EIS addressing [an]action depicted on proposed ALPs.'' The same
commenter also suggested adding text discussing ALP features that
provide safe, efficient airport operations or airport use. ARP's
Response: Agree in part. ARP has revised the wording in paragraph
202.c.(3)(a) of the Order to more clearly describe the limits on ALP
approvals. The new text limits this provision to three types of
projects'a new airport in a Metropolitan Standard Area, a new runway,
and a major runway extension and any of their connected actions
(paragraph 202.c(4)). FAA officials may not conditionally approve any
ALP for any of those projects when the projects are subjects of EAs or
EISs being prepared and the approving FAA officials have not yet issued
a Finding of No Significant Impact (FONSI) or Record of Decision (ROD),
respectively. This new text better reflects the instructions ARP issued
to its staff in November 2003. ARP issued that guidance to address
concerns that it was approving certain major Federal actions before it
completed the NEPA process. ARP decided that guidance was needed to
counter arguments that it was prejudging certain actions before it
completed the NEPA process.
ARP declines to add the suggested wording addressing unconditional
ALP approvals. ARP sees no value in doing so since an airport sponsor
could not construct the project if it were not on an unconditionally
approved ALP. To unconditionally approve an ALP, ARP must have
completed the NEPA process for that project (paragraph 202.c(2)(b) of
the final Order). However, it accepts the suggested text discussing ALP
features that provide safe, efficient airport operations or airport
use. That language is useful to airport sponsors because it helps them
develop plans in a timely manner.
Regarding the comment on changing ALPs without FAA approval, ARP is
unsure of the types of actions the commenter mentions. ARP reminds
airport sponsors that changes to an ALP that would involve a Federal
action (as defined in paragraph 9.g of the final Order) require FAA to
complete the NEPA process for those actions. Upon completing that
process, the approving FAA official may unconditionally approve the ALP
depicting the actions. After FAA issues that approval, the sponsor may
begin the projects depicted on that ALP.
Finally, addressing the comment that this ALP approval limit would
discourage sponsor start-up of the NEPA process early in project
planning, ARP understands the commenter's concern. To clarify this
point, ARP urges readers to review Chapter 5 in Advisory Circular 150/
5070-6, Airport Master Plans. That information discusses considering
environmental issues during project planning before the NEPA process
begins. ARP prepared this guidance to address the commenter's concern
among other reasons. Chapter 5 of the final Order also discusses
airport planning and the NEPA process.
Regarding paragraph 505.d, a commenter noted the purpose of the
paragraph was unclear and did not relate to the rest of the text
following it. The information on cumulative impacts was not considered
useful. The commenter also sought some information on actions having
independent utility. ARP's Response: Agree. ARP has deleted the
paragraph. Paragraph 1007.i of this Order contains information on
cumulative effects. (See item x, discussions of Surface Transportation
and Cumulative Impacts, and responses to comments on paragraph 407 for
more information).
Addressing comments on paragraph 507.a, three commenters stated the
information in this paragraph simply repeats the unclear guidance that
Order 5050.4A, paragraph 33 provided. As a result the final Order will
continue the uncertainties that exist in Order 5050.4A. Two commenters
requested clearer information on situations: (1) Where a sponsor does
not use AIP or Passenger Facility Charge (PFC) charges to buy land and
that does not change the use of the purchased tracts; (2) on land
purchases done for land-banking purposes, even if the lands do not
border an airport; and (3) to buy land that special purpose agencies or
courts require for mitigation or remediation. Another commenter seeks
information to address an airport sponsor's purchase of land for future
airport development while using money from an unknown source or while
using AIP funding to do so. ARP's Response: ARP notes the comment on
Order 5050.4A. Regarding the actions noted above, ARP has addressed
circumstances similar to the three of the four noted above in paragraph
204 of the final Order. The Order does not address the item on buying
land other agencies or the court requires for mitigation or remediation.
Regarding purchases of land for reasons other than mitigation or
remediation, paragraph 204.a of the Order references 40 CFR 1506.1.
That regulation notes that, until a Federal agency issues its Record of
Decision, neither the agency (40 CFR 1506.1(a)) or the applicant (40
CFR 1506.1(b)) may take action concerning any proposal that would
adversely affect environmental resources or limit the agency's choice
of reasonable alternatives. Paragraph 204.b of the Order discusses ARP
responsibilities when it learns about a sponsor who is about to buy
land before ARP completes the NEPA process. The approving FAA official
will tell the sponsor that the sponsor's action could prejudice or
preclude favorable ARP decisions addressing uses of the land. The
official will also tell the sponsor that ARP will take appropriate
actions to comply with NEPA and any other applicable Federal laws.
Before FAA approves future actions involving the property, ARP will
consider the manner in which the property was acquired,
[[Page 29039]]
paying particular attention to DOT Section 4(f) responsibilities and
other special purpose laws applicable to the situation. The official
will also carefully consider if the land acquisition would have adverse
environmental effects or limit the choice of reasonable alternatives,
based on the manner in which the sponsor obtained the property before
ARP issued a decision for future FAA actions involving the property
(paragraph 204.b(2)(a)). Finally, paragraph 204.c requires the sponsor
to show to the approving FAA official that the purchase was consistent
with this Order, and that the purchase did not prejudice ARP's
objective analysis of alternatives or limited implementation of the
preferred alternative.
Turning to the situation on buying land that other agencies or the
courts require, the Order does not address this situation because ARP
does not see that it has an action in these cases, unless the land
borders an existing airport. In that case, as in the above situations,
ARP would need to unconditionally approve the airport layout plan (ALP)
under 49 U.S.C. 47107, if the airport would include the purchased land,
even if the sponsor acquires the land with its own money. That approval
is needed to show the land has been added to the airport. Paragraph 204
would also apply in this case. If no change to an ALP is needed or no
Airport Improvement Program or Passenger Facility Charge funding is
involved, the sponsor would buy the land to meet requirements of
another Federal agency or the courts. Therefore, those purchases would
occur outside FAA's purview.
Addressing comments on paragraph 507.b, a commenter seeks
information on specific situations that would preclude ARP from
reimbursing a sponsor. The commenter also seeks guidance on how ARP
would determine if the purchase met the requirements of this Order and
the NEPA process. The commenter also seeks information on the need for
an Environmental Due Diligence Audit (EDDA). ARP's Response: Please see
the response for paragraph 507.a, particularly the information
regarding paragraphs 204.b and 204.c of the Order. ARP would reimburse
a sponsor only if ARP could meet the requirements noted in those
paragraphs. Turning to the comment on the need for an EDDA, ARP notes
that the need for an EDDA depends on the land's present or prior uses.
Actions involving lands having or that had commercial or industrial
uses are good candidates for EDDAs. FAA's Order 1050.19, Environmental
Due Diligence Audits in the Conduct of FAA Real Property Transactions,
addresses the need for EDDAs when FAA will purchase land. Information
in that Order is also useful to airport sponsors.
Concerning paragraph 507.b(1)(c), a commenter states the paragraph
mistakenly describes and greatly expands the scope of Section 4(f).
Countryside beauty is not mandated in Section 4(f). ARP's Response:
Disagree. In highlighting the countryside, ARP was conveying
Congressional policy regarding the resources Section 4(f) protects. 49
U.S.C. 303(a) clearly states: ``It is the policy of the United States
Government that special effort should be made to preserve the natural
beauty of the countryside and public park and recreational lands,
wildlife and waterfowl refuges, and historic sites.'' By including that
statement, ARP emphasized the philosophical as well as procedural
requirements of 49 U.S.C. 303.
Concerning paragraph 512, an SBGP participating state sought
information on how an SBGP participant is to consult with Federally-
recognized Tribes. ARP's Response: Paragraph 212.e of the final Order
clarifies SBGP and Tribal consultation. The paragraph states if an FAA
organization is involved in an action connected to an SBGP airport
action, the responsible FAA organization will conduct the Tribal
consultation. Regional and district ARP personnel are available to
assist the FAA organization if requested. If there is no FAA
involvement, the SBGP agency should follow instructions in paragraph
303 of the Order. That paragraph notes that regional and district ARP
personnel are available to assist the SBGP agency if requested. That
paragraph and other paragraphs in Chapter 3 (Agency and Tribal
Coordination) of the final Order discuss how FAA personnel (and SBGP
personnel when appropriate) are to conduct Tribal consultation
according to FAA Order 1210.20, American Indian and Alaska Native
Tribal Consultation and Policy and Procedures. Paragraph 212.e notes
that Order 1210.20 applies solely to FAA personnel, but urges SBGP
agencies to use those instructions as a guide for conducting
respectful, meaningful Tribal consultation when there are no FAA
actions connected to an SBGP airport action.
Regarding paragraph 513, a commenter noted that extraordinary
circumstances did not include consideration of Federally-listed
endangered or threatened species. Therefore, the commenter noted that
ARP's review of a wildlife hazard management plan (WHMP) might
accidentally omit the need to comply with the Endangered Species Act
(ESA). The commenter also urged ARP to include flexibility in its is
NEPA procedures to allow it to CATEX WHMP approvals if Section 7
consultation under the ESA shows the WHMP would not affect or not
jeopardize a Federally-listed endangered or threatened species. ARP's
Response: The commenter is incorrect in stating that extraordinary
circumstances do not include consideration of Federally-listed
endangered or threatened species. In any event, paragraph 209.a
clarifies that a grant to fund the development of wildlife hazard
management plans (WHMPs) or the approval of those plans is
categorically excluded under Order 1050.1E paragraphs 308e. Paragraph
209.b states that airport layout plan approvals and/or approvals of
grants for Federal funding to carry out FAA approved WHMPs include
items: (1) That may be categorically excluded; or (2) that may require
preparation of an environmental assessment or an environmental impact
statement. When reviewing airport sponsor requests for Federal funding
to implement the WHMP or changing an Airport Layout Plan to depict
approved WHMP projects, FAA must consider extraordinary circumstances,
such as biotic communities and endangered species.
Chapter 6 Comments: ARP did not receive any general comments on
this chapter. Addressing paragraph 600, two commenters noted that some
FAA regions have prescribed formats for CATEXs. The commenters
suggested that a standardized format would allow sponsors and their
consultants to more easily provide needed information and
documentation. A state block grant participant asks if SBGP
participants must use regional or district Airport office-issued forms.
Another commenter states, ``* * * it is completely wrong that no
prescribed documentation or memorandum is required to support a
categorical exclusion.'' ARP's Response: Disagree. ARP does not require
standard forms for CATEXs. Turning to the comment that prescribed
documentation should be required, ARP notes that: ``CEQ strongly
discourages procedures that would require the preparation of paperwork
to document that an activity has been categorically excluded'' (CEQ
Memorandum: Guidance Regarding NEPA Regulations, 48 FR 34268, July 28,
1983). However, ARP requires documentation to verify compliance with
any special purpose laws outside NEPA that apply to a proposed CATEX.
Order 1050.1E, paragraph 304 requires this documentation and ARP reflects
[[Page 29040]]
that requirement in paragraph 607 of this Order. Therefore, case files
for CATEXs must contain the documentation that applicable special
purpose laws require. This procedure verifies that ARP has made the
appropriate CATEX determinations for NEPA purposes and complied with
applicable special purpose laws.
For information purposes, readers should note that paragraph 607.c
addresses optional documentation. That paragraph states that if the
categorical exclusion does not require documentation to address any
special purpose laws, the responsible FAA official may choose to
include information in the project file for reference or legal
challenges that may occur. A note to that paragraph also states that
ARP leaves the decision to include contractual requirements for SBGP
participants to use forms to the discretion of Airports Division
managers for the respective regions having participants in the SBGP.
Readers should also note that paragraph 608 requires the responsible
FAA official to notify an airport sponsor by letter or dated e-mail
that ARP has categorically excluded an action. ARP requires this
notice, not for NEPA purposes, but to ensure airport sponsors know that
FAA has or has not categorically excluded proposed airport actions. ARP
institutes this requirement to avoid misunderstandings that airport
sponsors have had about ARP's environmental reviews of categorically
excluded actions.
Concerning paragraph 601.a, one commenter states the sponsor should
send a copy of the information it filed with FAA to the community
adjoining the airport. ARP's Response. Comment noted. NEPA does not
require documenting or sharing any information to support a CATEX. If
an airport sponsor wishes to distribute information it may do so, but
only after conferring with the responsible FAA official. This step
ensures the information a sponsor distributes accurately reflects FAA
policy and concerns. This is a step for EAs and EISs and is good
management policy for CATEXs. The commenter should note that if a CATEX
has an extraordinary circumstance that involves a special purpose law,
distribution of information is likely. This is because some of those
laws require public involvement. Therefore, the sponsor or the
responsible FAA official, as appropriate, must distribute or inform the
public according to the regulations implementing any special purpose
law applicable to the proposed action (paragraph 607.b). This approach
is reasonable, since CATEXs not involving special purpose laws or
extraordinary circumstances typically have no or minimal adverse
environmental effects.
Regarding paragraph 601.b, many commenters objected to the 30-day
period the paragraph required. The draft Order proposed this time to
enable the airport sponsor to obtain information from agencies to
support a CATEX. One commenter noted 30 days may not be sufficient time
for agencies to reply due to their respective workloads, while another
commenter stated 15 days was sufficient time for an agency response.
Two commenters noted the past practice allowing airport sponsors to
provide documentation they have to support a CATEX should continue. One
commenter noted that this information includes the documentation the
sponsor believes it needs to meet an applicable special purpose law.
Sometimes, agency consultation is not needed. Typically sponsors
consult with the responsible FAA official to determine the needed
documentation. ARP's Response: Agree in part. ARP has removed timelines
for agency replies. Instead, paragraph 606.brequires the sponsor or
FAA, as appropriate, to comply with the requirements of the special
purpose law that applies to the proposed action. For example, if an
applicable special purpose law has a 30-day review period, that is the
time the responsible FAA official or sponsor must provide for the
agency to reply. Paragraph 606.b(4) notes that the sponsor, if it is
attempting to collect information from the agency, should immediately
contact the responsible FAA official. That official should immediately
contact the resource agency via telephone or e-mail to determine when
the information will be arriving or to discuss alternative steps to
meet the applicable law. The official should keep a record of that
contact. If this step produces no information, the official should
immediately contact the approving FAA official for a decision. The
approving FAA official then decides if FAA should CATEX the action or
require an EA or EIS. ARP believes this process will show it has made a
good faith effort to comply with all applicable laws. To help ARP
accomplish its duties and meet sponsor schedules, paragraph 603 urges
airport sponsors or their consultants to develop realistic schedules.
The schedules should consider the time needed to collect information
needed to review a CATEX and any extraordinary circumstances it
involves. The schedule should provide sufficient time for the
responsible FAA official to review the proposed action. The intent of
this instruction is to allow ARP to meet the requirements of special
purpose laws that would apply to an action without infringing on the
sponsor's desired schedule. Therefore, airport sponsors should consult
responsible FAA officials as needed to determine the timelines and
documents the official will need to determine if ARP may categorically
exclude the action. If sponsors do not provide the information noted
above, the responsible FAA official will have to collect it before the
approving FAA official can make a decision on the project.
Another commenter on paragraph 605.b suggested adding some other
resources to the list the paragraph notes. Two commenters also note
that FAA may CATEX an action even it adversely affects a property on or
eligible for the National Register of Historic Places. Another
commenter stated that affected resource considerations for a CATEX
should include national parks. A third commenter stated the Order
should not require agency consultation if it is obvious that an action
would not affect a resource. Requiring agency consultation would only
delay the action. ARP's Response: Regarding the first comment, ARP
disagrees. The paragraph listed the resources for illustrative purposes
only. The final Order at paragraph 9.t defines the special purpose
laws, while Table 1-1 lists those special purpose laws that apply most
often to airport actions.
Addressing adverse effects on historic properties and CATEXs, ARP
agrees. If the responsible FAA official meets the requirements of 36
CFR part 800 et seq. regarding adverse effects and the official decides
an EA or EIS is not needed, the approving FAA official may CATEX the
action.
Regarding the need to include national parks in a CATEX analysis,
ARP agrees. The analysis would consider parks and other Section 4(f)-
protected resources if they occur in a project's affected area. Table
6-3 listing extraordinary circumstances includes parks and other
Section 4(f)-protected resources.
Addressing the last comment regarding agency consultation, ARP
agrees in part. Agency consultation is not needed if the responsible
FAA official decides it is obvious no extraordinary circumstance
applies to the proposed action. However, those decisions are not always
``obvious.'' In these instances, the responsible FAA official should
review any information about the action the sponsor provides
information. Based on that information, the official should use his or her
[[Page 29041]]
discretion to decide if agency consultation is needed.
Concerning paragraph 605.b.(1)(e), a commenter states that this
paragraph would require formal coastal zone consistency for each
project in the coastal zone or affecting that zone. Most state agencies
responsible for deciding if an action meets coastal zone standards
require a formal review process, which according to the regulations
could last 6 months. ARP's Response: Agree. To comply with Order
1050.1E, paragraph 304j (the likelihood an action is consistent with
any Federal, State, or local law relating to the environmental aspects
of a proposed action) would require a coastal zone consistency opinion
from the appropriate State agency. However, ARP notes that state
coastal zone management plans (CZMPs) list the specific Federal
licensing, permitting, or approval actions to which that plans apply.
ARP urges sponsors and responsible FAA officials to consult their
respective CZMPs to facilitate overall airport development. As an
alternative, sponsors should contact the CZMP agency early in project
planning to determine if the agency lists any Federal actions in
paragraph 9.g as actions the CZMP agency wants to review. Also, readers
should note that if the CZMP does not list any of those actions, the
State coastal zone agency must notify the sponsor and FAA that the
State agency intends to review the proposed activity. That agency must
make this decision within 30 days of receiving notice of the action.
So, it is critical that the sponsor or its consultant contact the
appropriate State agency early in project planning to ensure coastal
zone requirements do not delay ARP's evaluation of the proposed action
or the sponsor's intended schedule.
Discussing paragraph 603, a commenter states ARP notice to sponsors
about the fate of a CATEX should be mandatory, not discretionary. ARP's
Response: Agree. Paragraph 608 of the final Order requires the
responsible FAA official to inform the airport sponsor via dated letter
or e-mail. ARP includes this instruction to its personnel to ensure the
airport sponsor knows that FAA has categorically excluded or has denied
a CATEX for a proposed airport action. ARP makes this a formal step in
its NEPA implementing instructions for CATEXs to address
misunderstandings that have occurred regarding ARP environmental
reviews of certain categorically excluded airport actions.
Chapter 7 Comments: Beginning general comments. A commenter noted
the chapter does not provide information on public reviews of draft
EAs. ARP's Response: Agree in part. Paragraph 307.c(3) of the draft
Order required a 30-day public review of a draft EA if a public hearing
would occur. However, the draft did not define any review period for
other situations. ARP has corrected that oversight. Paragraphs 404.a(4)
and 708 of the final Order discuss public availability and review of
draft EAs for public hearings.
Regarding paragraph 700, a commenter from a state participating in
the SBGP requests clearer procedures for processing EAs. The commenter
asks what happens if the state decides an EIS is needed, but FAA does
not agree. Will FAA prepare an EIS or will it issue a FONSI? ARP's
Response: Regarding procedures for processing EAs, ARP refers the
reader to paragraph 710 of the Order. Although this and other
information throughout the Order refers to ARP personnel, the commenter
should note paragraph 212.d. That paragraph tells SBGP participants to
alter text and instructions regarding responsible FAA official and
approving FAA official responsibilities as needed.
Addressing the comment about EIS preparation, as noted earlier,
financing airport actions under the SBGP is not a Federal action, so
NEPA does not apply. However, ARP notes the participating state signed
a contractual agreement that makes the State responsible for completing
an environmental evaluation of the airport action that will receive
SBGP funding (paragraph 211 of the final Order). According to that
contract, the evaluation must be similar to the interdisciplinary
analysis ARP would have done had it retained responsibility for the
action that is now the SBGP participant's responsibility. Therefore,
FAA would not have any decision on a state's decision to prepare a
document similar to an EIS, unless an FAA organization has authority
over an action connected to the action under the SBGP. Paragraph 214 of
the final Order discusses this situation. It notes although regional
and district Airports offices are not responsible for preparing the
EIS-like document, they have experience that may aid the SBGP agency in
its document preparation. We recommend that readers seeking more
information on the SBGP portion of the comment review item j of this
Preamble and the sections addressing paragraphs 203.a; 307.f; 500; 502;
and 504.
Regarding paragraph 701, a commenter states the 15-page limit noted
here should be a recommendation. The most important thing is that the
document provide information the responsible FAA official needs to
independently review the proposed action. A few other commenters stated
that although it's a good idea, a 15-page EA is unrealistic. They
request a new paragraph suggesting ways to make an EA concise to help
``temper'' FAA requirements for more analyses and data, while another
commenter suggests dropping the statement. ARP's Response: The Order
retains CEQ's 15-page recommendation. The Order does not require that
page length, but it notes the recommendation to convey information in
question 36a of CEQ's Forty Most Asked Questions (46 FR 18026, March
23, 1981). ARP stresses that the page limit recommendation is for the
EA itself. That page recommendation does not: Include proof of required
consultation; material or data supporting the EA, or other information
supporting statements the EA contains. Instead, appendices to the EA
should present that information while the EA should cite the page
numbers of the particular appendix supporting the conclusions the EA
provides. Citing those pages in the EA facilitates reader review, while
keeping the EA concise and focused on the most important information in
the appendices pertaining to the potential environmental impacts. It is
the information in the EA that the approving FAA official will likely
use to determine the severities and contexts of environmental effects.
Airport sponsors or their consultants should contact the responsible
FAA Official to determine if the regional Airports office has developed
EA examples. Although ARP includes this recommended page limit, the
critical factor is ensuring the EA properly addresses potential impacts.
Addressing paragraph 701, a commenter seeks more information on the
term, ``reasonable alternative.'' Paragraph 706.d.(5) notes that these
are alternatives that may be achieved when one considers the technical,
economic, and environmental factors associated with each alternative.
Paragraphs 1007.e(4)(a) and (b) of the final Order also discusses the
``prudent and possible/(feasible)'' aspects of these alternatives.
Concerning paragraph 701.d, a commenter seeks clearer information
on conflicts by suggesting the conflict be ``substantially grounded.''
ARP's Response: Section 102(E) of NEPA requires Federal agencies to
study appropriate alternatives in any proposal involving unresolved
conflicts concerning alternative uses of available resources. Paragraph
706.d(5)(a) of the final Order conveys this requirement and conforms
5050.4B with FAA Order 1050.1E. ARP agrees that there needs to be some
evidence of various uses of an
[[Page 29042]]
environmental resource to show an unresolved conflict or resources. This
ensures the responsible FAA official and others interested in the project
do not spend time and effort resolving a conflict that has no basis.
Addressing 701.f, two commenters seek more explanation of the term,
``conceptual mitigation.'' One commenter notes 40 CFR 1502.14(a) and
1502.16(h) suggest the need for some level of detail for mitigation.
The same commenter states language in 701.f is not consistent with
Order 1050.1E, paragraph 405.g. ARP's Response: Comment noted.
Paragraph 706.g explains this term and borrows some wording from Order
1050.1E. The paragraph describes the term as a preliminary, qualitative
description of each mitigation measure's elements. The description
should also allow the reader to understand the mitigation's benefits
and how the mitigation would prevent or reduce expected adverse
environmental effects.
Addressing paragraph 702, a state block grant participant
recommends adding a note about preparing EAs. The commenter suggests
the note direct Order users to realize that references to FAA in the
chapter should also be construed to mean states under the SBGP. ARP's
Response: Agree. New paragraph 211 of the final Order clarifies that
for SBGP actions, the participating state agency assumes the roles a
responsible FAA official or approving FAA official would normally
fulfill, unless Order 5050.4B specifies differently.
Concerning paragraph 703, a commenter requests information on FAA's
role in determining an adequate Purpose and Need. The commenter
recommends including the requirement that the Purpose and Need meet
accepted FAA airport design and planning standards. Another commenter
states the responsible FAA official should seek local community input
during EA preparation. ARP Response: Agree in part. Revised paragraph
707.a retains original text acknowledging FAA's role in reviewing the
EA for adequacy under NEPA. We believe this clearly includes
determining adequate purpose and believe no further guidance is needed.
ARP has added to this paragraph the statement that the agency often
helps the airport sponsor define Purpose and Need.
Turning to the recommendation to define purpose and need to include
airport design and planning standards, ARP disagrees. Paragraph 502 of
the Order states that ARP airport planners are responsible for
reviewing proposed actions and reasonable alternatives for consistency
with FAA's airport planning and design standards. ARP only approves
projects meeting those standards, unless planners determine
modifications to those standards are necessary to meet local conditions
and that the modifications provide acceptable safety levels. Therefore,
the responsible FAA official is assured that the proposed action and
the reasonable alternatives that would achieve the purpose and need and
that are analyzed in a NEPA document meet those standards or have
qualified for modifications to those standards.
Regarding public input and EA preparation, paragraphs 301 and 704
emphasize that there shall be public involvement to the extent
practicable in preparation of EAs, citing 40 CFR 1501.4. In addition,
special purpose laws addressed as part of an EA may require public
involvement. The responsible FAA official will ensure the required
public involvement occurs as he/she complies with this final Order.
Addressing paragraph 703.b.(5), a state block grant commenter is
unclear on an SBGP agency certifying that an EA is a Federal document
and wants to know if the agency should forward the EA to FAA for
signature. ARP's Response: As stated earlier in the responses to SBGP
issues (item j; paragraphs 203a; 307f; 500; 502; 504; and 700), the
document an SBGP participant prepares is not a Federal document because
there is no Federal action, unless an FAA organization has authority
for a connected action. Then, the document would be a joint Federal-
State document. Therefore, SBGP agency should revise the adequacy statement
in paragraph 707.f as noted in paragraph 212.d of the final Order.
Concerning paragraph 703.c, two commenters ask when a public
hearing would be needed for a CATEX. ARP's Response: Paragraph 606.b(1)
of the final Order addresses this point. Some special purpose laws such
as Section 106 of the National Historic Preservation Act, or Executive
Orders on floodplains and wetlands require public review. In some
situations, the responsible FAA official may decide a public hearing is
the most efficient way to get public review to comply with these
special purpose laws.
Regarding paragraph 704, a commenter states the information on
format and content does not match the information in Order 1050.1E. The
commenter believes the intent to produce 10 to 15-page EAs and the
``substantially abbreviated description of the contents of an EA'' will
lead to improperly prepared EAs. The commenter recommends including
information similar to that in Order 5050.4A, paragraph 47. The
commenter lists a number of items from that Order it believes Order
5050.4B should contain. Another commenter requests a better explanation
of how the Desk Reference will link to the NEPA process and other
processes such as those for general conformity and wetland permitting.
A few commenters noted that the draft Order did not list Affected
Environment as one of the EA sections. They asked if EAs no longer need
that section. ARP's Response: Earlier sections of this preamble (item
a, the Desk Reference, FAA Order 5050.4B; and Instructions on ``NEPA-
like States'') discuss the Desk Reference. ARP refers the reader to
those sections. Regarding the omission of the Affected Environment
section, ARP notes that was an oversight. Paragraph 706.e of the Order
provides information on this important EA section.
Addressing paragraph 704.a, a commenter asks if the EA cover sheet
should list sub-consultants as well the prime consultant responsible
for preparing the EA. ARP's Response: Sub-consultant names should not
be on the cover sheet. A footnote to paragraph 706.a of the final Order
states the List of EA Preparers should identify those people, including
sub-consultants, who have prepared the EA and substantial background
material used in to prepare the EA. The List will identify the person,
the material he or she prepared, and his or her employer.
Concerning paragraph 704.b, a commenter noted that regulations
implementing Section 106 of the National Historic Preservation Act
allow agencies to withhold confidential information. The comment also
notes that this paragraph states the reference material used to prepare
the Purpose and Need must be available to anyone wishing to review it.
ARP's Response: Agree. Paragraph 700.b of the final Order addresses
this. It states all appendices and references must be available to
anyone wishing to review them, unless another law prohibits disclosure
of certain information or contains confidentiality provisions.
Regarding paragraph 704.c, a commenter states the discussion,
``splits the concept of purpose and need into two, distinct aspects.''
This could cause preparers to discuss this issue in two different EA
sections. By focusing on the purpose, the commenter states NEPA
documents could appear to be pre-decisional, rather than a document
that takes a hard look at the proposed action an its alternatives.
Another commenter suggests wording regarding the need to compare
airport sponsor
[[Page 29043]]
forecasts to forecasts available from other sources. The section should
discuss a reasonable range of deviation to support Purpose and Need and
environmental analyses. ARP's Response: Regarding the Purpose and Need
Statement, ARP agrees. Paragraph 706.b(2) of the final Order indicates
this is one statement and should be one to two paragraphs long per
CEQ's May 12, 2003, memorandum on Purpose and Need statements. ARP
included the information to answer many questions it has received on
this NEPA term since publishing Order 5050.4A.
Addressing the comment on comparing forecasts, ARP agrees.
Paragraph 706.b(3) discusses the guidance ARP's Director of Airport
Planning and Programming issued on this topic on December 23, 2004.
That guidance lists acceptable forecast deviations between the
sponsor's forecasts and FAA's Terminal Area Forecasts (i.e., 10-percent
and 15-percent discrepancy limits for 5 and 10-year forecasts,
respectively).
Regarding paragraph 704.e(2), a commenter suggests revising the
paragraph to emphasize integrating information special purpose law
requirements into the EA to avoid duplicating information in a separate
section of the EA discussing those laws. ARP's Response: Agree. The
draft discussed this, but paragraph 706.f(2) provides further
information on integrating these requirements. ARP notes combining NEPA
and non-NEPA requirements helps the responsible FAA official determine
impact significance for NEPA purposes and streamline other
environmental reviews for airport actions.
Concerning paragraph 704.e(4), a commenter requested a definition
of the term, ``Environmental Management System'' (EMS) and a statement
about how an EMS would be helpful. ARP's Response: Agree. Paragraph 9.e
of the final Order provides the definition. An EMS is a set of
processes and practices designed to provide an organization with
information about environmental impacts of its operations. An EMS is a
tool to monitor and report on an organization's environmental practices
and tracks measures used to mitigate environmental impacts due to
organizational actions. For example, an environmental management system
(EMS) may provide valuable information about airport facility designs
and mitigation measures that have helped prevent or minimize
significant environmental impacts. An EMS is also useful in tracking
the status of environmental activities and to highlight those
activities that may require change. Paragraph 706.g(4) discusses EMS
use. It notes that reviewing other airport EMSs for similar actions could
provide information on the effectiveness of various measures in minimizing
environmental impacts due to airport construction and operation.
Concerning paragraph 705, a commenter states that public review of
an EA is not mandatory, but it should be. ARP's Response: See the
Response to the comment above regarding former paragraph 703 and public
input and preparation of EAs. Various parts of the final Order discuss
public involvement in EA preparation.
Addressing paragraph 705.b, a commenter requests information on
NEPA compliance if a sponsor has completed a project but then decides
to seek ARP funding for it. Another commenter states the approval of an
ALP is normally a CATEX, so why does this discussion on EAs address
that issue. ARP's Response: First, addressing the request for post
project funding, the Order defines Federal actions to include ALP
approvals . NEPA must be met before FAA issues an unconditional ALP
approval. An airport sponsor operating a public-use airport under FAA's
purview should not build a project unless and until FAA has
unconditionally approved the ALP depicting the proposed facility (see
paragraph 202.c of the final Order). In addition, this Order provides
for compliance with NEPA and environmental requirements under the
airport funding statute so that the agency may proceed to process a
grant application. ARP reminds airport sponsors that NEPA applies to
actions that would involve first time or altered ALPs, even if the
actions will not receive AIP funding.
Addressing the comment about categorically excluding revised ALPs,
ARP notes that approvals of some actions depicted on ALPs may be
CATEXs, while others may be the subjects of EAs or EISs. It is the
proposed action and the severity of its impacts that determine the NEPA
process, not the review of the ALP. Certainly, actions depicted on an
ALP may be categorically excluded if they are listed in Order 1050.1E,
paragraph 307 thru 312 (Tables 6-1 and 6-2 of the final Order), and the
responsible FAA official determines extraordinary circumstances do not
warrant preparation of an EA or EIS. However, other actions that have
more substantive adverse effects require more intensive NEPA
processing. Paragraphs 702.a-j and 903.a and b, list actions depicted
on an ALP that are normally subjects of EAs or EISs, respectively.
Regarding paragraph 706.g, two commenters state proposed conceptual
mitigation must be coordinated with agencies having jurisdiction for an
affected resource and those agencies must concur with the mitigation.
ARP's Response: Agree in part. FAA as the lead Federal agency has
ultimate discretion in deciding the mitigation needed for an action. To
require that outside agencies must concur in the mitigation lessens
FAA's authority as the agency responsible for the action. However,
paragraph 706.g of the final Order notes the sponsor should work
closely with the responsible FAA official and expertise or
jurisdictional agencies. This allows the sponsor to use the agencies'
expertise and try to ensure the mitigation meets the recommendations of
the agencies. If substantial disagreement about mitigation or other
issues exists between the sponsor or FAA and an expertise agency, the
responsible FAA official should contact APP-400 as noted in paragraph
707.d. This will allow APP-400 to understand the issues and assist the
responsible FAA official as needed to complete the EA process.
Chapter 8 Comments: ARP received no general comments on this
chapter. Beginning paragraph 800 comments. A commenter suggests a
comprehensive definition of the term, ``special purpose laws'' and
deleting the partial list the paragraph presented. Another commenter
from a state block grant agency recommends adding a note to provide
state block grant participants an alternative approval process. The
note should state references to FAA should refer to SBGP participants.
ARP's Response: Concerning the comment on special purpose laws, ARP
agrees. Paragraph 9.t of the final Order defines the term and provides
a list of special purpose laws that apply most often to airport
actions. The Desk Reference mentioned earlier in this Preamble will
provide instructions on applying those laws to airport actions. Until
ARP publishes it, readers should use Order 1050.1E, Appendix A for
information on those laws. Paragraph 800 of the final Order no longer
discusses special purpose laws.
Addressing the SBGP issue, paragraph 211 of the final Order notes
that for SBGP actions, the participating state agency assumes the roles
a responsible FAA official or approving FAA official would normally
fulfill, unless Order 5050.4B specifies differently.
Concerning paragraph 801, a commenter states public health impacts
need to be evaluated, but notes that Appendix A of Order 1050.1E
contains the impact categories where this would
[[Page 29044]]
occur. Should ARP use this information? Also, a commenter states the
paragraph should specifically require impact intensity determinations
for national parks. ARP's Response: Addressing the comment on public
health impacts, ARP generally agrees that Order 1050.1E, Appendix A,
provides good information on assessing various impact categories that
could affect public health. Users of this Order should use Order
1050.1E, Appendix A until ARP issues the Desk Reference. Readers should
note that Appendix A of Order 1050.1E provides the information
available on the seven criteria pollutants. At present, there is no
reliable and scientifically-approved methodology available to conduct
health risk assessments for air toxics (i.e., hazardous air
pollutants). In addition, EPA has not established standards or
thresholds for evaluating air toxics. Regarding the comment on national
parks, ARP requires the analysis to consider impacts on parks and other
Section 4(f)-protected resources if they occur in a project's affected
area.
Concerning paragraph 801.b, a commenter urges ARP to include the
airport sponsor in discussions about mitigation because the sponsor is
responsible for possible mitigation and project design. Two commenters
recommend including a statement that expertise agencies should
determine the adequacy of mitigation. Another commenter stated that the
first two sentence of the paragraph conflict. ARP's Response: Disagree.
Paragraph 801.c of the draft Order included the airport sponsor in
discussions about mitigation. Paragraph 800.b of the final Order
slightly revised the wording, but makes the sponsor a critical part of
mitigation and design decisions.
Regarding expertise agency concurrence on mitigation, ARP
disagrees. FAA, as the lead Federal agency for most airport actions,
has ultimate discretion in deciding the mitigation the FONSI will
require. To allow an outside agencies to determine that mitigation
lessens FAA's authority as the lead Federal agency responsible for the
airport action. However, paragraph 706.g of the final Order notes the
sponsor, when developing mitigation, should coordinate with FAA and
expertise or jurisdictional agencies. This allows the sponsor and FAA
to use the jurisdictional agency's experience and expertise when
developing mitigation that a FONSI would likely contain.
Addressing the final comment, ARP disagrees. The intent of the
paragraph in the draft was to alert readers that the responsible FAA
official will make an extra attempt to determine if any mitigation or
project design change would reduce impacts below significant
thresholds. To better clarify this point, ARP revised paragraph 800.b
to note that this effort should occur before the responsible FAA
official recommends preparing an EIS. The official does so in
consultation with expertise agencies and the airport sponsor.
Addressing paragraph 802 comments, a commenter states public
involvement should be compulsory and the process for it should be
disclosed. The same commenter states the FONSI should be valid for only
3 years. ARP's Response: Addressing public involvement, ARP agrees in
part. We have responded to this concern in responses to comments on
various paragraphs (e.g., 205; 303; 703). ARP stresses that 40 CFR
1501.4 requires public involvement to the extent practicable during EA
preparation. In 1050.1E, paragraph 406.e(1) and paragraph 804 of this
Order FAA has also adopted procedures for making FONSIs available for
public review for 30 days before the agency makes its final determination
on the severities of project impacts . These instructions provide multiple
opportunities for mandatory and optional public involvement.
Regarding FONSI longevity, ARP agrees. ARP addresses this issue in
paragraphs 1401 and 1402 of the Order, which discuss special
instructions and re-evaluating and supplementing NEPA documents,
respectively. Paragraph 809.c mentions when FAA may need to amend a FONSI.
Paragraph 802.i, a commenter requested an explanation of the term,
``mitigated FONSI.'' ARP's Response: ARP has added a footnote to the
``boilerplate statement'' in paragraph 802.g of the final Order. It
states a ``mitigated FONSI'' is one conditioned upon mitigation
measures that avoid or reduce otherwise significant effects below
applicable threshold levels. Paragraph 805a of this Order recommends
preparation of a FONSI /Record of Decision (FONSI/ROD) to provide the
approving FAA official's reasoning in support of the FONSI in these
instances.
Discussing paragraph 804.a comments, one commenter suggests
clarifying that the Regional Administrator would sign a FONSI when ARP
and at least one other FAA organization are involved in a proposed
action. Another commenter states firm guidelines are needed for
reviewing findings at each reviewing level. Another commenter notes
that ARP cannot require other FAA organization to review FONSIs.
Instead, ARP should provide the opportunity for that review. The same
commenter notes that in a particular region, Airports Division managers
have FONSI approval authority. The commenter recommends the paragraph
allow re-delegation of the Regional Administrator's approval. ARP's
Response: ARP agrees with the comment regarding clarification that the
Regional Administrator signs the FONSI when the proposed actions
involve more than one organization within the FAA. Paragraph 803.c of
the final Order clearly states under FAA Order 1100.154A, Delegation of
Authority, the Regional Administrator overseeing the FAA regional
office responsible for the EA will issue the FONSI.
Regarding firm deadlines, ARP disagrees. It cannot set review
schedules for other FAA organizations. ARP will discuss project
importance with the reviewing organizations and urge them to review
projects within 30 days of receiving the document.
Addressing the comment that this Order should re-delegate signature
authority, ARP disagrees. FAA Order 1100.154A, Delegation of Authority,
clearly describes the approval authority when more than one FAA
organization is involved in an action. Order 5050.4B cannot modify the
requirements of Order 1100.154A.
Concerning paragraph 804.b, a commenter states the Order does not
require Regional Counsel review when special purpose laws beyond
Section 106 and Section 4(f) are involved in an action. A state block
grant participant states the Order should provide alternative review
procedures or remove the internal coordination for SBGP actions.
Another commenter states FAA Regional Counsel should not review
actions, ``where the SHPO has issued a determination of no effect, a
determination of no adverse effect, or a conditional determination of
no adverse effect.'' ARP's Response: Paragraph 803.a of the Order
discusses the internal review process. Required legal review occurs
when actions involve: (1) Opposition by a Federal, State, or local
agency or a Tribe on environmental grounds or a substantial number of
people affected by the project; (2) resources protected under Section
106 of the National Historic Preservation Act; or (3) a determination
of use of resources protected under Section 4(f) of the Department of
Transportation Act (recodified at 49 U.S.C. 303c). In addition, the
responsible FAA official may use his or her discretion for actions that
affect other resources when deciding if Regional Counsel review is
needed (paragraph 802.a(2)).
[[Page 29045]]
Addressing the SBGP issue, coordination within FAA would depend on
the SBGP and its connected actions as discussed in item j. of this
Preamble and responses to comments on paragraph 703.b(5). If there is
no FAA organization involved, the action does not require FAA Regional
Counsel review as noted in Order 1050.1E paragraphs 404e and 406c.
However, ARP urges SBGP participants to contact their own State
attorneys for legal reviews of those SBGP actions. Addressing the last
commenter's statement, ARP wishes to alert the commenter that the SHPO
is not responsible for making these determinations. According to 36 CFR
800.2(a) FAA is responsible for doing so. ARP has found Regional
Counsel review of these determinations is helpful. ARP chooses to
retain that review.
Concerning paragraph 805, a commenter objects to providing a 30-day
review for a proposed FONSI in certain situations. ARP's Response:
Comment noted. Paragraph 804.b of the final Order reflects agency-wide
requirements in Order 1050.1E paragraphs 406e.(1)(a) and (b) and 406.2(2).
Addressing paragraphs 805.c and d, a commenter objects to the 30-
day period for projects that include mitigation reducing an action's
potential significant impacts or if the action is highly controversial.
ARP's Response: Agree. We have deleted the 30-day review period.
Paragraph 805.c discussing FONSI/ROD availability addresses this issue.
Regarding paragraph 808, a commenter requested guidance on when
approved FONSIs would be available to the public. The commenter asks if
FONSI/ROD availability should be similar to notice of a ROD prepared
for an EIS. ARP's Response: Agree. Paragraph 805.c of the final Order
refers the reader to paragraph 1402.b. Although information in that
paragraph refers to EISs, it is appropriate for FONSIs and their
accompanying EAs as well. That information will help ensure approving
FAA officials use the most current environmental information in their
decisions.
Concerning paragraph 810, a commenter suggests adding information
saying when ARP would need to revise a FONSI. ARP's Response: Paragraph
809 addresses that issue.
Chapter 9 Comments: ARP received no general comments on this
chapter. Regarding paragraph 900, a commenter requests that the state
agency having Department-wide responsibilities for developing airport
projects be able to prepare an EIS under FAA's direction. Another
commenter suggests adding a sentence noting the importance of setting
realistic milestones for completing EIS tasks, with milestones based on
project complexity. ARP's Response: Addressing the first comment, ARP
agrees. When a state or agency subject to NEPA-like laws is involved,
it would prepare the equivalent of an EIS. In those instances, the
State or agency will have expertise in complying with applicable mini-
NEPA laws. In other instances where an EIS is called for, although ARP
isn't responsible for preparing the document addressing the SBGP
action, regional or district Airports office personnel are ready to
answer questions and provide guidance to the SBGP agency. If there is a
connected action remaining under the purview of an FAA organization,
FAA would be a joint-lead agency, helping the SBGP prepare the EIS.
Paragraph 214 of the final Order has been revised to include this new
information.
Regarding the discussion of realistic milestones, ARP agrees.
Paragraph 902.c discusses factors critical to establishing realistic
schedules to complete EISs.
Addressing paragraph 901 comments, a commenter noted an EIS should
address environmental impacts and should not be expanded by discussing
other public concerns outside of environmental effects. ARP's Response:
Agree. The intent of the paragraph as drafted was to include factors
that had environmental connections. ARP has revised the discussion,
which is now in paragraph 902.a of the final Order. The text states the
EIS should properly analyze and disclose potential significant
individual and cumulative environmental impacts a proposed airport
action and its reasonable alternatives would cause. Paragraph 902.b notes
that information must be clearly written so the public understands it.
Concerning paragraph 903, three commenters state a scoping meeting
is not necessary for every EIS. ARP's Response: Agree. ARP has revised
paragraph 906 in the final Order to clarify that scoping meetings are
optional. ARP has removed text that confused the commenter.
Addressing paragraph 903.b, a commenter noted the paragraph
discusses duties that should occur during master planning or
feasibility engineering, both of which precede the EIS. ARP's Response:
Agree. ARP has urged airport sponsors to complete most or all airport
planning before ARP begins preparing its EIS. Experience has shown that
when planning is delayed, EIS schedules are normally delayed. This
``domino effect'' occurs because FAA and other interested parties do
not have the planning information that is critical to efficiently
determine an EIS's scope and the analyses needed to address that scope.
To help airport sponsors complete airport planning with NEPA in
mind, ARP has prepared a new Chapter 5 for this Order. That chapter
outlines the connection between airport planning and how it affects
timely NEPA processing. Chapter 5 of the Order incorporates information
from Chapter 5 of ARP's recent advisory circular on airport planning
(150/5070-6) and ARP's, Best Practices Web site. Readers may wish to
review those documents for more information.
In addition, paragraph 904.b of the final Order discusses the
timing of the start of an EIS. That paragraph states that FAA will
start an EIS when it receives a proposed for an airport action that
contains sufficient planning data or information to meaningfully
evaluate alternatives and their potential environmental effects (40 CFR
1508.23). Paragraph 904.b provides this information because during the
past decade, ARP has found that a lack of well-conceived and well-
developed airport planning information or a failure to resolve planning
issues have caused substantial delays in the NEPA process. Many times
these delays were not NEPA-related, but were due to a lack of good
planning data. ARP found that this lack of data severely hampered its
ability to meaningfully evaluate project impacts and prepare the EIS.
Regarding paragraph 903.c(6), a commenter stated delay is a big
problem for airport development projects, with the EIS process being a
major reason for that delay. The commenter states its perception is
that FAA and other agencies do not appreciate the urgency that airport
sponsors, airlines, and the public feel. FAA should commit to a fixed,
ambitious deadline to substantially improve its performance and reduce
its tendency to over analyze and conduct long-term reviews. The
commenter states FAA should work in parallel with other agencies, not
sequentially or separately. The draft does not reflect the need to
reduce time needed for EIS preparation. The draft should include ways
to oversee and coordinate EIS processes to avoid unnecessary delays.
ARP's Response: ARP respectfully disagrees that its personnel do not
appreciate the urgency the sponsor and industry feel. See the response
above under General Comments, Saving Time During NEPA Process, relating
to the recommendation that the Order include instructions for
[[Page 29046]]
milestones, deadlines, and schedules. ARP has a well-established track
record of conducting concurrent reviews under NEPA and other applicable
environmental laws to make the environmental review process efficient
and effective. ARP notes that it will continue to work to improve the
efficiency and effectiveness of the NEPA process.
Addressing paragraph 903.d, a commenter states FAA should rely on
valid information sources regardless of the information's age. The same
commenter states that ARP should consult with the airport sponsor
before deleting an alternative. ARP's Response: Regarding the validity
of information, ARP disagrees. The draft paragraph noted the
responsible FAA official should consider whether a document's age
affects its validity for NEPA purposes. ARP highlights this, not
because information is of poor quality, but because due to its age, the
document may no longer accurately reflect existing environmental
conditions critical to FAA's decisions. Paragraph 906.d of the final
Order deletes the word, ``caution'' and cites paragraph 1401. Paragraph
1401 discusses the need to re-evaluate EAs and EISs. Regarding
consulting the sponsor about deleting an alternative, ARP agrees in
part. Paragraph 906.d(1) has been revised to recommend that FAA notify
the sponsor when the agency determines that an alternative studied in
detail in the EA will be briefly discussed in the EIS and then
dismissed from further consideration.
Concerning paragraph 904, a commenter notes that a substantial
amount of ``scoping'' takes place before the decision to prepare an EIS
occurs or before an agency publishes a Notice of Intent (NOI). The
commenter suggests the Order explain how ARP should consider scoping
conducted before the NOI. ARP's Response: Comment noted. According to
40 CFR 1501.7, scoping shall follow the publishing of the NOI. ARP
recognizes substantial, good work often occurs before the NOI, but that
would be consultation and does not fulfill EIS scoping requirements.
The information gleaned from the pre-NOI work is often valuable and is
frequently used in preparing for scoping. Instructions that were in
paragraph 904 of the draft Order, now appear in paragraph 907 of the
final Order but remain unchanged.
Addressing paragraph 906.b comments, a commenter suggests adding
text urging the preparation of a Memorandum of Agreement (MOA) with
cooperating agencies. The MOA is a very useful tool in defining roles
and commitments to FAA's schedule. The commenter notes this is a good
practice and almost always improves the process and reduces delays.
Another commenter objects to the need to invite agencies having
permitting or approval authorities to be cooperating agencies during
EIS preparation. The commenter believes cooperating agencies should be
limited to those agencies that propose to implement or approve an
action. The commenter states ARP should invite only agencies having
discretionary approval to be cooperating agencies. The commenter
further states that agencies providing funding or exercising authority
over affected resources should not be cooperating agencies. A third
commenter states that municipalities adjoining an airport should be
cooperating agencies. A fourth commenter suggests contacting local land
use agencies regarding future land uses in the airport vicinity. ARP's
Response: Regarding the MOA with cooperating agencies, ARP agrees.
Paragraph 906.a(5) of the final Order discusses a similar a document,
the Memorandum of Understanding (MOU). We have revised the paragraph to
encourage ARP personnel to consider the utility of entering into a
formal agreement with cooperating agencies. ARP notes that a ``one-size
fits all'' approach is not appropriate.
Turning to the comments on cooperating agency status, ARP disagrees
with the first commenter and agrees, in part with the second one. As
lead Federal agency, ARP is required to invite agencies having
permitting or approval authority for the proposed action to be
cooperating agencies (40 CFR 1501.6 and 1508.5). In addition, in
January 2002, CEQ urged all Federal agencies to improve their
cooperating agencies efforts by inviting participation by Federal and
non-Federal entities as cooperating agencies. Following that date, ARP
notified its personnel that agencies having authority for a component
of a project should be a cooperating agency during EIS preparations.
Paragraph 910.c of the final Order reflects those instructions. To
enhance EIS preparation, the responsible FAA official may also decide
to invite agencies with expertise to be cooperating agencies. This may
be helpful because those agencies often have information and knowledge
that aids in properly scoping and analyzing an action's environmental
effects or mitigating expected environmental impacts. It may also
foster good relations and facilitate early resolution of environmental
concerns.
Turning to the comment that municipalities adjoining an airport
should be invited to participate as cooperating agencies, ARP believes
that this it has to make decisions on cooperating agencies on a case-
by-case basis. Among other things, ARP considers the potential benefits
extending an invitation may offer. These considerations may include:
The existence of municipal data and information that are not publicly
available; the history of the relationship between the airport sponsor
and the municipalities; or approval authority the municipality may have
regarding an aspect of the proposed project.
Regarding the comment on recognizing local land use agencies as
cooperating agencies, ARP disagrees. Paragraph 910.a recommends
contacting and involving local agencies participate as ``interested
parties'' because these agencies can provide valuable information about
land uses in the airport area that may be noise sensitive or otherwise
incompatible with airport operations (e.g., attracting wildlife that
are known hazards to aviation). The responsible FAA official should
consider the role that the local land use agency plays and the history
of its relationship with the airport in determining whether it makes
sense to invite their participation as cooperating agencies. Involving
hostile local agencies would jeopardize ARP's ability to establish a
functional working group and complete an effective and efficient NEPA
process.
Regarding paragraph 906.j, two commenters question the information
about a cooperating agency's failure to provide comments during
scoping. A commenter seeks information on the requirement, while
another states this is an, ``empty threat.'' ARP's Response: Comment
noted. ARP retains the text because it is not an, ``empty threat.'' CEQ
has addressed this situation and paragraph 910.i of the final Order
recognizes CEQ's position on it. Those interested in that position
should review Question 14.d of the Forty Most Asked Questions (46 FR
18026, March 23, 1981).
Chapter 10 Comments: Beginning General Chapter 10 comments. A
commenter notes that the Order or FAA's Web site should provide copies
of all FAA and DOT documents and orders cited in FAA Orders 1050.1E and
5050.4B or that are often used during the NEPA process. ARP's Response:
Comment noted. ARP chooses not to include the material in Order
5050.4B. Since this information is available from other sources, ARP
suggests that interested parties use web-based ``search engines'' to
find the material. Regarding additions to Order 1050.1E, the commenter
should contact FAA's Office
[[Page 29047]]
of Environment and Energy, the FAA office responsible for the content
of that document.
Regarding paragraph 1001.e, a commenter states that the EIS should
also identify the airport sponsor's ``preferred alternative.'' Another
commenter noted the text stated the airport sponsor decides if it will
complete proposed action, but was questioning the statement about the
conditions that would lead to a preferred alternative that is different
than a sponsor's proposed action. ARP's Response: Addressing the use of
``preferred alternative'' to identify a sponsor's action, ARP
disagrees. For NEPA purposes, the term, ``preferred alternative'' has a
specific meaning. According to Question 4a of the Forty Most Asked
Questions document noted in response to comment 906.j, this is the
alternative that, ``* * * the agency [emphasis added] believes would
fulfill its statutory mission and responsibilities, giving
consideration to economic, environmental, technical and other factors.''
Regarding the comment about preferred alternative differing from a
proposed action, ARP notes the comment. ARP alerts the commenter that
simply selecting a proposed action because that is what the sponsor
wishes is ``rubber stamping'' an airport plan without considering its
economic, environmental, and technical effects. That is not NEPA's
intent, nor is that the way ARP makes its decisions. After completing
its NEPA process, ARP has occasionally selected a preferred alternative
that differed from a sponsor's proposed actions. As noted in the first
part of this response, ARP's independent analyses and the approving FAA
official's consideration of economic, environmental, and technical
factors can lead to a decision differing from the airport sponsor's.
Addressing comments on paragraph 1003, a commenter states, although
it recognizes FAA's final discretion in deciding an EIS's adequacy, the
paragraph unduly limits airport sponsor participation in the EIS
process. The comment further notes that airport sponsors play necessary
and appropriate roles in EIS preparation, especially when State
documents have been prepared for actions. The commenter wants ARP to
revise the paragraph to allow more active sponsor participation.
Another commenter seeks instructions allowing the airport sponsor to
review consultant work to decide if it has been performed competently
and completely per the contract the sponsor finances. A third commenter
objects to excluding everyone except FAA in getting, managing, or using
raw data. The commenter suggests that local citizen advisory committees
provide input to the consultant's selection. FAA's approach concerns
the commenter because it may allow the agency to conclude the process
without a thorough review of analytical procedures. ARP's Response:
Regarding sponsors participating in EIS processing, please see the
response to comment in this Preamble's Consultation with airport
sponsors section.
Regarding the comment on the sponsor's review of consultant work
for contract purposes, under 40 CFR 1506.6(c) FAA, not the sponsor, has
exclusive oversight and authority to direct the EIS consultant's work.
This impliedly includes the authority to assure that consultant EIS
work is fully and competently performed. In overseeing and directing
the work of EIS consultants, FAA decides if the contractor's work is
meeting quality and timeliness requirements under the contract. When
FAA becomes concerned that the consultant (contractor) is in default,
then the sponsor will be given sufficient access to information to
allow it make its own determination. EIS contracts are exceptions to
ordinary contracts because Section 1506.6(c) overrides competing state
and local procurement and contract management practices.
Turning to concerns about cost control, the current process
contains ample safeguards to assure that the work is performed at
reasonable costs. The sponsor has access to sufficient information,
including the cost estimates in the Statement of Work, consultant
invoices, and the EIS schedule, to determine whether costs are being
reasonably incurred. If sponsors have concerns that the costs of the
work being performed are not reasonably incurred then sponsors present
those concerns to FAA and they are normally resolved.
ARP appreciates the sponsor's desire for greater access to
information during the NEPA process. As discussed above in detail in
response to the general comment, section, Consultation with airport
sponsors, FAA meets with sponsors to discuss and reach agreement upon
the access to be provided. As far as access to verify costs, the
current process strikes the right balance between cost considerations
and conserving the integrity of the NEPA process. FAA is aware that
there have been rare, but regrettable occasions when sponsors have
terminated EIS contracts due to objections to cost. On one occasion
this occurred, when in FAA's opinion, the contractor was performing
work fully and competently. However, the sponsor felt the contractor's
estimate for continuing work was too costly and desired not to continue
to work with the contractor.
These past instances suggest additional sponsor review could have
the unintended effect of making cost control a higher priority than
meeting NEPA requirements. The reviews proposed would also require the
agency to release contractor drafts under FOIA. This would potentially
cause public confusion, a chilling effect upon agency deliberations,
and diversion of agency resources from the NEPA process. It is
unnecessary to expose the NEPA process to such a review with these
potential consequences when there are other ample, less intrusive means
available for controlling costs. Therefore, ARP does not agree that
sponsors should be allowed to review consultant's work for adequacy and
reasonableness of cost prior to authorizing payment.
Addressing the comment recommending citizen advisory board input in
selecting EIS consultants, ARP disagrees. Federal agencies must comply
with the Federal Advisory Committee Act to obtain consensus
recommendations from the public. Given the time, effort, and money
involved, ARP does not believe that it is practical for the FAA to
convene Federal advisory committees to represent the various groups
that might want to provide input to assist FAA with the very limited
task of selecting airport EIS consultants.
Concerning paragraph 1004.a, three commenters objected to the
statement that sponsors may develop conceptual plans or designs that
depict about 20 percent of the specifications needed to build or
perform other work. One of these commenters noted there is no legal
authority for this change in policy or intrusion into the sponsor's
affairs. The commenter notes that limiting design and engineering
imposes delays in improvements, which are already, in the view of the
commenter, delayed by a process that takes too long. Also, extensive
design and other information may be needed to finance a project,
develop mitigation, and engage the community. Section 1506.1(d) does
not prevent applicants from developing plans or designs or performing
work necessary to apply for licenses, permits, and assistance. Another
commenter observed that this statement would appear to limit the amount
of engineering/design work that an airport sponsor can undertake in
anticipation of completion of the NEPA process. This
[[Page 29048]]
commenter recommends replacing ``may develop'' with ``often develops.''
A third commenter asks if a sponsor goes beyond the 20-percent
provision, what is the responsible FAA official to do? ARP's Response:
ARP agrees in part. Paragraph 1004.c. of the final Order (``Plans and
Designs for the NEPA process'') replaces the term ``may develop'' with
the phrase ``[n]ormally, this analysis requires * * *.'' Paragraphs
1004.c (2)-(4) explain that ARP discourages sponsors from developing
substantially more than 25 percent of the detailed plans, except in
certain cases where a sponsor is applying for a permit or monetary
assistance. Paragraph 1004.c also notes that going beyond stated design
development risks prompting legal challenges. It also lists the steps
that responsible FAA official shall take to assure the integrity of the
EIS process. These revisions clarify that FAA is establishing an
approximate level of project design for its own use. It is doing this
to assure that the actions it takes during the EIS, including approval
of grant funds to prepare the EIS itself, meet the letter and spirit of
NEPA. Section 1004.c. in the final Order also now states that
completing final project design may raise issues of compliance under
Section 1506.1 and is at the sponsor's own risk. This reflects the
dearth of case law concerning the responsibilities of Federal agencies
and applicants when an applicant is completing final project design
before the EIS process has been completed. See, CEQ's Forty Most Asked
Questions, Question 11 (46 FR 18026 March 23, 1981).
Turning to the comment that extensive design and engineering may be
needed for matters within the sponsors' prerogatives such as project
financing, we note that Section 1506.1(d) permits applicants to develop
plans and designs needed to apply for permits, licenses, and
assistance. It is unclear under the case law whether such matters
otherwise lie within the sponsors' prerogatives during completion of an
EIS. ARP has added a new subsection d to Section 1004 that acknowledges
the exception for certain plans and designs and recommends that
sponsors consult FAA in these circumstances to determine the level of
planning needed. It also clarifies that FAA does not discourage
preparation of more detailed plans in the circumstances discussed
there. As noted in paragraph 1004.c.(2) and discussed above,
preparation of detailed plans before the EIS is completed may engage
the community in ways that are not helpful. It has not been ARP's
experience that a greater level of detail than 25% is normally needed
to develop mitigation, however, if data become available to support
this statement then we will change this guidance as appropriate.
Responding to the comment about responsible FAA official duties if
a sponsor exceeds the 30-percent design level, ARP does not have
jurisdiction by law to halt completion of final project design by
sponsors.\10\ Section 1004 clarifies that responsible FAA officials
should normally limit AIP and PFC funding for the design work in an EIS
to the 25% level. See, Village of Bensenville v. FAA, (376 F.3d 1114
(D.C. Circuit, 2004). Responsible FAA officials also must also warn
sponsors in writing about the possible risks of not complying with
1506.1, as described in detail in new subsections (2), (3), and (4) of
section 1004.c. ARP also added a new subparagraph b to Section 1004 to
remind personnel about their responsibilities under related provisions
concerning ALP approvals and land acquisition.
---------------------------------------------------------------------------
\10\ Under 49 U.S.C. 47172, enacted in 2003 as part of Vision
100, ARP may approve design-build contracts.
---------------------------------------------------------------------------
Regarding paragraph 1005.e, a commenter requests revisions to allow
adoption of material other than NEPA documents. ARP's Response: ARP has
added a note to paragraph 1005.d addressing this issue. The note states
that the responsible FAA official may use information not in NEPA
documents to prepare EISs for FAA actions. However, before doing so,
the official must independently review the information and accept
responsibility for it. This is the same process those officials use to
adopt NEPA documents that other agencies prepare.
Addressing paragraph 1007, one commenter recommended that the Order
provide guidance on addressing cumulative impacts. The commenter
suggested using one of these methods: as a separate impact category in
the Environmental Consequences section; within each of the other impact
categories; or as a separate chapter. ARP's Response: 1007.i of this
Order provides a summary of cumulative impacts. ARP will provide more
detail on this topic in the Desk Reference it will prepare. Until ARP
issues that information, document preparers and reviewers should use
paragraph 1007.i, Order 1050.1E, paragraph 500c, and CEQ's guidance on
assessing cumulative impacts, Considering Cumulative Effects Under the
National Environmental Policy Act (http://ceq.eh.doe.gov/nepa/ccenepa/
ccenepa.htm). Concerning the presentation of cumulative impacts,
EIS preparers may use any of the three presentation methods mentioned above
in the comment summary.
Addressing paragraph 1007.d, a commenter states the Purpose and
Need information is not consistent with Order 1050.1E, paragraph 405.c.
Another commenter states FAA should have one clear statement of Purpose
and Need. Two commenters highlight the need to consider airport design
and aviation concerns in the Purpose and Need. They discuss several
planning issues like load factors and airside design criteria. ARP's
Response: Agree in part regarding consistency with 1050.1E. ARP used
information from Order 1050.1E, paragraph 405c and 506d in preparing
purpose and need instructions in 5050.4B. However, ARP notes that many
other FAA organizations build facilities. In contrast, as paragraph
706.b notes, an airport sponsor, not FAA, initiates proposed
development projects at an airport. Sponsors apply to FAA for approval
to amend airport layout plans to depict their projects and for
financial assistance for construction. The instructions in 1050.1E
primarily address purpose and need statements for direct Federal
actions that FAA itself undertakes (e.g., constructing radar
facilities, installing aids to navigation, NAVAIDS). ARP personnel
require supplemental instructions because case law continues to evolve
concerning the definition of purpose and need and the obligation to
evaluate alternatives to a proposed action developed by an applicant
for a license or permit.
ARP has revised paragraph 706.b to delete the statement formerly in
paragraph 1007 ``Since airport sponsors, not the FAA, propose airport
projects, the responsible FAA official's role is to review the
sponsor's proposal to determine if it meets the purpose and need.''
(Paragraph 1007.d now refers the reader to paragraph 706.b.) ARP has
deleted this sentence because it is somewhat inconsistent with
instructions in 1050.1e paragraph 506d \11\ and the CEQ guidance
underlying it.\12\ ARP has replaced the
[[Page 29049]]
sentence with the following statement in paragraph 706.b(1): ``The
purpose and need should be defined considering the statutory objectives
of the proposed Federal actions as well as the sponsor's goals and
objectives.'' The new text is consistent with Citizens Against
Burlington Inc. v. Busey, 938 F.2d, 190 (D.C. Cir. 1991). It is also
consistent with prior CEQ guidance that the applicant's goals and
objectives may be considered along with other common sense realities;
CEQ Guidance on NEPA Regulations, Selection of Alternatives in
Licensing and Permitting Situations (48 FR 34263 July 28, 1983).
---------------------------------------------------------------------------
\11\ Paragraph 506d of 1050.1E states: ``[The purpose and need]
distinguishes between the need for the proposed action and the
desires or preferences of the agency or applicant * * *''
\12\ Question 2a of the Memorandum: Forty Most Asked Questions
(46 FR 18026-18038, March 23, 1981). Question 2 indicates: ``In
determining the scope of alternatives to be considered, the emphasis
is on what is ``reasonable'', rather than on whether the proponent
or applicant likes or is itself capable of carrying out a particular
alternative. Reasonable alternatives include those that are
practical or feasible from the technical or economic standpoint and
using common sense, rather than simply desirable from the standpoint
of the applicant.''
---------------------------------------------------------------------------
Section 1007.d(1) summarizes 49 U.S.C. section 47171(j), which
establishes a process for notice, comment, and deference to FAA Purpose
and Need statements for actions at congested airports. Order 5050.4B
must also supplement the instructions in Order 1050.1E relating to
purpose and need statements because different legal requirements apply.
In response to the comments on airport planning, ARP agrees in
part. Paragraph 706.b of the final Order mentions planning concerns in
general, but does not provide much information because the purpose of
the Order is to use planning input to complete the NEPA process. In
preparing its advisory circular on airport master planning (AC 150/
5070-6), ARP notes it is the sponsor's duty to adequately plan an
airport project before ARP starts preparing an EIS. ARP has provided
information on that planning process in Chapter 5 of that AC and in
paragraph 904.b of the final Order. Chapter 5 of this Order also summarizes
the important link between the NEPA process and airport planning.
Concerning another comment on paragraph 1007.d, a commenter
suggested adding a ninth subparagraph to discuss the need for accurate
forecast data and a reasonable range among data to develop supportable
Purpose and Need statements and conduct good environmental analyses.
Another commenter states that using the 2001 benchmarking study to
determine project that ARP would streamline to meet Vision 100 would
essentially ``lock'' ARP to those capacity data. ARP's Response:
Regarding the first comment, ARP agrees. The final Order discusses the
need for reasonable consistency between between a sponsor's forecasts
and FAA's Terminal Area Forecast (TAF) to ensure proper environmental
analyses in EAs and EISs. Paragraph 706.b(3) provides guidelines for
judging reasonable consistency.
Addressing the comment on benchmark data, ARP declines to interpret
this provision for the first time in the final Order. The plain
language of 49 U.S.C. 47175(2) defines the term ``congested airport''
with reference to airports listed in Table 1 of the FAA's 2001 Airport
Capacity Benchmark Report. There is sparse legislative history on this
topic. Section 47175 also provides that a congested airport must be
``an airport that accounted for at least 1% of all delayed aircraft
operations in the United States in the most recent data available to
the FAA Administrator. In the context of delay, Congress explicitly
provided for use of the most recent data available. The final Order
includes a footnote to paragraph 1007.d. stating that congested
airports are those accounting for 1% of all delayed aircraft operations
in the U.S. using data in FAA's 2001 Airport Capacity Benchmark Report
(49 U.S.C. 40129(e)). The footnote further states that ARP's Planning
and Environmental Division should be contacted for more information if
needed. Notably, the FAA's 2004 Airport Capacity Benchmark Report added
only 4 airports to the list (Cleveland-Hopkins, Fort Lauderdale-
Hollywood, and Portland International Airports, and Chicago-Midway
Airport). We intend to seek clarification of Congress' intent as part
of the reauthorization of the agency's enabling legislation. Addressing
paragraph 1007.e, a commenter requests including valuable information
from paragraph Order 5050.4A for the term ``prudent and feasible''
alternative due to the requirements of section 509(b)(5) of the 1982
Airport Act (recodified at 49 U.S.C. 47106(c)(1)(B)) and section 4(f)
of the Dept. of Transportation Act (recodified at 49 U.S.C. 303(c)).
Also, a number of commenters discuss the term ``reasonable'' and
request further guidance on it. One commenter indicated that ``and
achievable'' should be deleted. They also stated the draft's discussion
of the terms ``reasonable'' and ``possible/feasible and prudent''
appeared to be inconsistent. ARP's Response: Regarding definitions for
the term ``feasible and prudent,'' ARP agrees. ARP has revised
paragraphs 1007.e(4) and (5) of the final Order to clarify that the
phrase ``feasible and prudent'' is used in both statutes. ARP has also
provided additional guidance regarding the term ``prudent'' to reflect
recently updated (March 2005) FHWA guidance on the ``feasible and
prudent'' standard under Department of Transportation Act Section 4(f),
(recodified at 49 U.S.C. 303).\13\ For example, based on the new
guidance ``prudent'' means an alternative that must achieve the
Project's purpose and need. We have also noted in this paragraph that
Section 509(b)(5) addresses alternatives to the project while
alternatives to the use are involved under DOT Section 4(f).''
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\13\ See, Section 4(f) Policy Paper, dated March 1, 2005. Review
the paper's ``Section 4(f) Evaluation'' section focusing on Examples
of Alternative Selection Process. http://environment.fhwa.dot.gov/projdev/
4fpolicy.asp#alternatives.
---------------------------------------------------------------------------
Addressing the comment regarding consistent terminology, ARP
disagrees. Although the terms are used throughout the Order, the
appropriate term was used depending upon the applicable legal context,
that is, the NEPA document being prepared and the applicable special
purpose law. When discussing EAs, the term ``reasonable'' is used
(paragraph 706.d), but when discussing EISs addressing new airports,
new runways, or major runway extensions, the terms ``possible and
prudent'' are also used. Here, EISs addressing these actions must
include the terms ``possible and prudent alternative'' to meet the
requirements of 49 U.S.C. 47106(c)(1)(B). In this case, the Secretary
of Transportation (Secretary) may approve a project grant application
for those airport facilities having significant adverse effects only
after finding that no possible and prudent alternative exists
(paragraph 1007.e(4) of the final Order). Also, the term ``feasible and
prudent'' must appear in EISs addressing any transportation action that
would use section 4(f) resources as noted in paragraph 1007.e(5) of the
final Order. Section 4(f) provides that the Secretary may approve a
project that would use a 4(f)-protected resource only if there is no
prudent and feasible alternative to using the protected resource and
the approved project includes all possible planning to minimize harm to
the resource. Finally, projects involving wetlands and floodplains require
the analysis of ``practicable'' alternatives (paragraph 1007.e(6)).
Addressing the improper use of the word, ``achievable'' and Section
4(f) requirements, ARP agrees that was a typographical error. ARP has
corrected the text in paragraph 1007.e(4) of the Order. It now repeats
the requirements in 49 U.S.C. 303(c)(1) regarding, ``* * * all possible
planning to minimize harm.''
Concerning paragraph 1007.f, a commenter states the information on
Affected Environment is vague. ARP's Response: Disagree. The Order
provides the same information in Order 1050.1E,
[[Page 29050]]
paragraphs 405e and 506.f. Paragraph 706.e discusses what an EA's
Affected Environment should contain. Paragraph 1007.f discusses the
information an EIS's Affected Environment section would need and
incorporating information from an EA in that EIS section.
Addressing paragraph 1007.g, a commenter recommends including
Appendix A from 1050.1E. Another commenter sought information on the
sequence in which EISs should discuss environmental consequences. ARP's
Response: Regarding Appendix A, ARP notes the comment. ARP has
addressed this issue in various parts of this preamble (item a,
Instructions to ``NEPA-like'' states, Desk Reference). To summarize,
ARP will issue the Desk Reference after it issues this Order. Until
then, ARP staff and other interested parties must use Appendix A of
Order 1050.1E for information on assessing resources outside NEPA. When
ARP issues the Desk Reference, all parties may use the Desk Reference
to analyze airport actions.
Concerning the sequence of consequences, paragraph 1007.g(2) does
not require alphabetical presentations in NEPA documents. Document
preparers should present the information in the most informative,
``easiest-to-understand'' way. Readers should note that in preparing
Appendix A for Order 1050.1E, the authors simply presented the
resources in alphabetical order for easier document and reference use.
That sequence does not dictate the presentation of impacts in
alphabetical order.
Regarding paragraph 1007.j, a few commenters suggested
electronically distributing NEPA documents to reduce costs. ARP's
Response: The responsible FAA official may use CDs or a Web sites to
distribute EISs. ARP realizes that not all interested parties have
access to electronic documents, so the final Order also mentions hard
copy availability. Like other FAA organizations, ARP encourages
electronic distribution to reduce costs, delivery time, and
environmental concerns (waste, transportation, etc.) associated with
hard copies.
Concerning paragraph 1007.n, a commenter notes the instructions
here repeated information in paragraph 1007.m and caused some
confusion. ARP's Response: Agree. Paragraph 1007.n incorporates and re-
arranges information on using and distributing EIS appendices and
reference material. Paragraph 1007.o now presents information about
incomplete or unavailable information formerly in paragraph 1007.n(3).
Chapter 11 Comments: ARP received no general comments on this
chapter. Turning to paragraph 1100, two commenters note the Order
should state sponsors should be able to review preliminary draft EISs
and other information used to prepare it.
ARP's Response: Comment noted. ARP refers readers this Preamble's
Consultation with Airport Sponsors section.
Regarding paragraph 1101.a, a commenter states local municipalities
adjoining the airport should review draft EISs. The commenter also
states the National Park Service (NPS) should review those documents.
Another commenter notes some entities should receive copies of draft
EIS (metropolitan planning organizations, local governments), while
others need not review the document (asbestos regulators). ARP's
Response: Comments noted. The draft Order reflects the requirements
under 40 CFR 1503.1. FAA obtains comments from the entities named in
these comments in the circumstances identified. Paragraph 1101.a(1)-(5)
as revised clarifies that FAA requests comments from various entities.
These include municipalities or state transportation departments that
do not qualify under 1503.1(a)(2) or the public under 40 CFR
1503.1(a)(4) when either entity has an interest in the proposed project
or may be affected by it.
Addressing paragraph 1101.b, a number of commenters stated
electronic distribution should be an option. ARP's Response: Agree.
Paragraph 1101.b contains this instruction. Also, see response to
comment for paragraph 1007.j.
Concerning paragraph 1101.(d), a commenter states there is no need
to publish a press release to announce draft EIS availability. ARP's
Response: Agree. Regulations at 40 CFR 1506.6(b)(3)(iv) provide that
Federal agencies shall: ``* * * (b) provide public notice of * * * the
availability of environmental documents so as to inform those persons
and agencies who may be interested or affected * * *. (3) In the case
of an action with effects primarily of local concern the notice may
include: * * * (iii) Publication in local newspapers * * * (v) Notice
through other local media.'' Paragraph 1101.b(3) clarifies that the
responsible FAA official must provide notice of the draft EIS's
availability to the public. The paragraph further states that the
responsible FAA official may do so by sending a press release to local
media serving the project area. ARP believes press releases are excellent
ideas, since many people in an affected area read local newspapers.
Concerning paragraph 1102.b, a commenter states this paragraph
should include action-forcing deadlines and procedures to increase the
likelihood or require timely reviews. ARP's Response: See the Response
to the general comment, Saving time during the NEPA process and
streamlining the NEPA process. In addition, readers should note that
paragraphs 1102.b(1) and (2) of the final Order now discuss altering
the prescribed DEIS review periods to reflect requirements in 40 CFR
1506.10.(d).
Regarding paragraph 1104, a commenter notes that other agencies
should not have discretion on when a draft EIS is ruled inadequate. FAA
should have the final discretion regarding document re-circulation.
ARP's Response: Agree. Paragraph 1104 of the final Order clarifies this
is the responsible FAA official's decision.
Chapter 12 Comments: ARP received no general comments on this
chapter. Addressing paragraph 1200, a commenter states airport sponsors
should be consulted on all comment responses and have reasonable
opportunity to review all proposed responses. The commenter notes this
is needed because issues may be raised for the first time during the
comment period, and this will trigger the first response to a
substantive issue. ARP Response: ARP has revised this paragraph to
indicate that the responsible FAA official must consult the airport
sponsor before finalizing a response to a comment that would commit the
sponsor to change the proposed project, change the operation of the
airport or change proposed mitigation measures. See the response to the
general comment, Consultation with airport sponsors, for further
explanation.
Regarding paragraphs 1203.c and 1203.e, a commenter states the
requirements concerning Section 4(f) and wetlands, respectively, could
conflict and prevent a project from moving forward. The commenter
suggests including information to address this situation. ARP's
Response: Agree in part. ARP has revised paragraph 1204.a of the final
Order advising the responsible FAA official to watch for this
situation. It states that if there is an alternative under
consideration to comply with another special purpose law, and it
conflicts with the alternative that would avoid Section 4(f) use or
minimize effects on a 4(f)-protected resources, the official must
carefully evaluate both alternatives and balance the harm the alternatives
[[Page 29051]]
would cause. This balance should be in consultation with pertinent
resource agencies. The official must recommend the alternative avoiding
Section 4(f) use or reducing impacts on a 4(f) resource if it meets
purpose and need. However, there are times where important non-4(f)
resource impacts must be weighed to determine the most prudent
alternative.\14\ Therefore, ARP does not agree with the commenter that
such conflicts prevent FAA from making decision to move forward with
airport actions. Before making a decision, the approving official
should discuss this with the airport sponsor to alert the sponsor to
the situation.
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\14\ See, Section 4(f) Policy Paper, dated March 1, 2005. Review
the paper's ``Section 4(f) Evaluation'' section focusing on Examples
of Alternative Selection Process.
http://environment.fhwa.dot.gov/projdev/4fpolicy.asp#examples.
---------------------------------------------------------------------------
Addressing paragraph 1202, a commenter states ARP should quickly
alert a sponsor to the fact that its preferred alternative is not the
sponsor's proposed action. ARP's Response: Agree. Paragraph 1202 of the
final Order tells the approving FAA to notify the sponsor about this as
early as possible and follow the process outlined in paragraph 801.
Concerning paragraph 1203, a commenter states the information
discussed should not be in the final EIS. Instead, it should be in the
action's administrative record. Addressing paragraph 1203.b(1), a
commenter questions the provision noting sponsor certification for a
public hearing and placing that information in an EIS. ARP's Response:
Disagree as to the information being placed in the administrative record.
Addressing paragraph 1203.b(1), a commenter questions the provision
noting sponsor certification for a public hearing and placing that
information in an EIS. ARP's Response: Disagree as to the information
being placed in the administrative record. ARP has revised the title of
the paragraph to clarify that it relates to AIP-eligible airport
projects and has revised the text to specify that this integrates
environmental requirements under 49 U.S.C. 47106 and 47107(a). Notably,
the review and finding under 47106(c)(1)(B)(1)(ii) must be a matter of
public record. The approving FAA official needs this evidence to make
the necessary determinations in findings in the Record of Decision
(ROD) concerning these AIP environmental requirements. As to the
hearing, FAA and the sponsor typically provide this opportunity for a
hearing during the NEPA process. This is the most appropriate time for
a hearing concerning a proposed airport project's economic, social, and
environmental effects and its consistency with local or state planning
objectives. For these reasons, it is appropriate for FAA to integrate
this certification requirement into its NEPA procedures.
Concerning paragraph 1203.g(1), a commenter asks why getting
permits cannot occur as a grant assurance, since sponsors can get other
permits such as section 404 permits after FAA completes its NEPA
process. ARP's Response: The approach the commenter suggested would not
be consistent with NEPA or recent initiatives to streamline NEPA
reviews. Various paragraphs in Chapter 12 reflect requirements under 40
CFR 1500.5(g). That regulation provides that Federal agencies: ``* * *
shall [emphasis added] reduce delays* * * by integrating NEPA
requirements with other environmental review and consultation
requirements.'' For example, paragraph 1208 addresses coastal zone
consistency requirements that ARP addresses during the NEPA process.
ARP requires this because during NEPA, it must analyze and disclose
potential impacts on resources (in this case, coastal resources) as
part of the NEPA process. Also, FAA, as the lead agency, must ensure
compliance with the Coastal Zone Management Act before it may take
final agency action to approve an airport development project (see 15
CFR subparts C and D, part 930).
Admittedly, FAA has had some difficulty integrating compliance with
section 404 Clean Water Act permitting requirements into some of its
NEPA analyses. As a result, for projects such as the third runway at
Seattle International Airport, the Corps prepared a supplemental NEPA
document after FAA completed its EIS and issued its ROD. In the past,
sponsors have been somewhat reluctant to invest in the additional
design and engineering work needed for a permit before FAA completes
its environmental review. As part of ARP's renewed efforts to reduce
delays and streamline its environmental reviews, ARP is improving its
performance in this area.
Regarding 1205.b, two commenters asked clarification on extending
final EIS review periods. ARP's Response: Agree. Readers should note
that paragraph 1211.b of the final Order clarifies 40 CFR 1503.1(b).
That regulation states that FAA may request comments on an FEIS.
Regarding paragraph 1206, two commenters noted a mistake about the
time to refer a final EIS to CEQ. ARP's Response: Agree. The draft
contained a typographical error addressing the timing of a referral.
Paragraph 1212.a(2) states that a Federal agency may refer a proposed
major Federal action to CEQ no later than 25 days after the final EIS
has been made available to the public, commenting agencies, and the EPA.
Chapter 13 Comments: ARP received no general comments on this
chapter. Concerning paragraph 1301.a, a commenter states the draft
Order implies the Record of Decision (ROD) identifies, ``* * * material
representations in the FEIS.'' The commenter states this is important
because as the proposed action's details change sponsors need to know
if a written re-evaluation of an EIS is needed. The commenter suggests
that the ROD incorporate by reference information in the final EIS.
ARP's Response: Disagree. Approving FAA officials provide rationales
for their decisions in RODs. ARP has developed a format to do so, and
the instructions in the draft and final Orders provide that
information. Instructions in paragraph 1401 of the final Order discuss
circumstances that may require a re-evaluation. In summary, not all
changes warrant a re-evaluation. The responsible FAA official may use
discretion in deciding the need for that. In doing so, the official
would determine if changes to the proposed action or other factors
regarding the affected environment would cause environmental effects
not previously analyzed or worsen those already studied.
Concerning paragraph 1301.c(2), a commenter asks why an approving
FAA official would choose a preferred alternative different from one,
``* * * described in the FEIS he/she has just approved'? ARP's
Response: Comments on the final EIS (paragraph 1211.b) or new
information or technology may lead the decision maker to select an
alternative that differs from the agency preferred alternative
identified in the final EIS. The decision maker may determine that
another alternative is superior when balancing all relevant factors or
that an applicable special purpose law requires selection of another
alternative. ARP includes instructions on this rarely used, but
possible situation to ensure its staff has instructions on the process
it must follow in this situation.
Addressing paragraph 1301.g(4), a commenter objects to the
paragraph. Zoning and compatible land use decisions are local
responsibilities, not FAA's. Therefore, FAA cannot or should not impose
more requirements on a sponsor to ensure the airport is compatible with
surrounding areas. ARP's Response: Paragraph 1301.g(4) uses language in
paragraph 99.b(4) of 5050.4A to clarify language that was in
[[Page 29052]]
the draft Order. The paragraph indicates that this is one guideline for
environmental assurances in grant agreements and other documents. The
special commitment would relate to the noise effects of the proposed
airport project. For example, a runway extension might require zoning
an area for industrial use. This guideline is consistent with the
obligation sponsor's of federally funded airports assume under 49
U.S.C. 47107(a)(10). That section requires the sponsor, to the extent
reasonable, to take appropriate action to restrict land uses next to or
near the airport to uses that are compatible with normal airport operations.
Concerning paragraph 1302.e, a commenter suggests adding text to
the ROD to address mitigation and the need to include all practicable
means to minimize environmental harm the preferred alternative would
cause. Conversely, if that mitigation is not in the ROD, the official
provides rationale for not including it. The commenter notes 40 CFR
1502.2(c) states this provision. ARP's Response: Agree. The draft
inadvertently omitted this. Paragraph 1301.e of the final Order
includes this information.
Paragraph 1303 of the final Order discusses issuance of the Record
of Decision (ROD). Paragraph 1303 states that the approving FAA
official cannot issue a ROD until 30 days have elapsed from the date
EPA publishes the Notice of an FEIS's availability in the Federal
Register. The paragraph also notes EPA may reduce the 30-day ``wait
period,'' if FAA shows compelling reasons of national policy to do so
(40 CFR 1506.10(d)). Conversely, EPA may extend the 30-day ``wait
period,'' if a Federal agency provides compelling reasons of national
policy supporting that extension. However, EPA may do so only after
consulting with FAA. EPA may not extend the ``wait period'' more than
addition 30 days, if FAA does not agree with a longer extension (40 CFR
1506.10(d)).
Chapter 14 Comments: ARP received no general comments on this
chapter. Addressing paragraph 1401, two commenters express concern
about the 3-year longevite instruction. One commenter notes that CEQ
guidance does not define document longevite but, instead, uses various
tests to determine a document's adequacy and reliability. The commenter
seeks information on how the time limit was set and instances where it
may not apply. The other commenter notes that Question No. 32 in CEQ's
Forty Most Asked Questions (46 FR 18026, March 23, 1981) uses a 5-year
`` rule of thumb.'' The commenter argues that FAA must not use the
shelf life as a reason for not preparing EIS for phased projects.
Another commenter seeks information on when the shelf life begins.
ARP's Response: FAA must follow requirements in DOT Order 5610.1C,
paragraph 19d, and Order 1050.1E, paragraph 514. Besides meeting DOT
and Order 1050.1E requirements, ARP includes this information in
paragraphs 1401.b and c to address the many questions it has received
on this topic since publishing FAA Order 5050.4A in 1985.
In response to the phasing comment, ARP does not use the 3-year
shelf life to avoid EISs (or EAs) for phased projects. In fact,
paragraph 1402.c(3) of the final Order discusses this issue.
Finally, responding to the question on the start of the 3-year
period, paragraphs 1401.b and c provide that information. For draft
EISs (and EAs), that period begins when the responsible FAA official
completes FAA's review of the draft document. For final EAs, the time
stars when the responsible FAA official accepts the airport sponsor's
final EA as a Federal document. FEIS ``start time'' is the date the
approving FAA official signs the EIS approval declaration.
Concerning paragraph 1402, a commenter states a supplement should
be required every 5 years and a supplement should be triggered if new
information is available. ARP's Response: Agree in part. ARP disagrees
a supplement is needed every 5 years. Re-evaluations address this
issue. If there is no substantial change in the project and on
significant new information bearing upon environmental impacts becomes
available in that period, there is no need to supplement. While not all
new information requires a supplement, a supplement is needed in if new
information is available as the commenter noted. Paragraph 1402 of the
final Order discusses this.
For paragraph 1402.b(2), a commenter notes that changes in the
affected environment may require more evaluation. ARP's Response:
Agree. The draft paragraph noted that, ``significant new changes,
circumstances, or information'' may become available. To ensure users
understand this phrase includes affected environment, paragraph
1402.b(2) now specifies that factor.
Addressing paragraph 1402.d notes that a new FONSI may be needed if
an EA is supplemented. ARP's Response: Agree. Paragraph 1402.d(3) of
the final Order includes this provision.
Concerning paragraph 1404, a commenter states emergencies should be
CATEXs. ARP's Response: Disagree. Regulations at 40 CFR 1506.11 address
emergencies when an EIS is normally required. CEQ does not designate
the NEPA process for these situations. Instead regulations require
agencies, in consultation with CEQ, to set up alternative arrangements
to control the emergency's immediate impacts. Paragraph 1404 addresses
emergency situations.
Chapter 15 Comments: Beginning General Chapter 15 comments. A
commenter states this chapter repeats information in Order 1050.1E,
Appendix D. The chapter should focus on issues that the Appendix does
not address. ARP's Response: Disagree The commenter is correct that
much of Chapter 15 includes information from Appendix D, but ARP
includes this information to complete the Order's instructions and
minimize reliance on 1050.1E.
Addressing paragraph 1504.b(2), a commenter states the need to
relieve airport congestion is not an emergency situation. ARP's
Response: Agree. ARP has not and does not intend to use NEPA's
emergency provisions to address airport congestion.
Concerning paragraph 1505.k, a commenter states that FAA should not
have the ability to force another agency to issue approvals or
authorizations according to a rigid timetable. It states that reporting
missed deadlines, ``has the appearance of a veiled threat * * *
contrary to U.S. government edicts to streamline procedures and reduce
paperwork.'' The commenter recommends that FAA use a constructive, less
``heavy-handed approach'' because the stated instructions will cause,
``an unbelievably large amount of manpower and wasted taxes.'' ARP's
Response: Comment noted. The instructions in this paragraph and the
final Order reflect Congress' requirements (see Title III of Vision
100--The Century of Aviation Re-Authorization Act of 2003, section
47171). They are not FAA's attempt to use a ``heavy-handed approach.''
Appendix A Comments: A commenter suggests deleting the example of a
``short-form'' EA because it is a poor example. ARP's Response: Agree.
The Desk Reference will provide a revised example of a short-form'' EA
for guidance and information.
Comments Addressing Table 1 (Now Table 6-1 of the Final Order)
Avigation easements. A commenter suggested adding these easements
to the list of categorical exclusions. ARP's Response: Avigation
easements qualify for categorical exclusion under
[[Page 29053]]
paragraph 307d of FAA Order 1050.1E when carried an airport sponsor
carries them out as parts of an FAA-approved noise compatibility
program under 14 CFR part 150. They also qualify for categorical
exclusion under paragraph 310z of FAA Order 1050.1E when related to
topping or trimming trees to meet standards for removing obstructions
to navigable airspace under 14 CFR part 77. FAA invites the commenter
to specify other circumstances, if any, in which a categorical
exclusion should be available for avigation easements. ARP will
consider this information in determining whether to recommend such a
change to Order 1050.1E.
Snow equipment. A commenter noted the table does not include snow
equipment. Please add it per Order 1050.1E. ARP's Response: Agree.
Table 6-1 of the final Order includes this under ``Safety equipment for
airport certification.''
Wildlife Hazard Management Plan (WHMP). A commenter stated the
relationship between NEPA and WHMP approval is not very clear. What is
the status of Part 139 certification during an extended NEPA review of
a WHMP? ARP's Response: Paragraph 209 of the final Order has been
revised to provide clearer instructions concerning application of NEPA
to WHMP approval and implementation. The sponsor's filing of a WHMP for
approval under 14 CFR 139.337(d)(1) satisfies the sponsor's Part 139
certification requirements. Because FAA approval of a WHMP normally
qualifies for categorical exclusion under Paragraph 308e of Order
1050.1E, extended NEPA review for WHMP approvals will be unusual.
Comments Addressing Table 2 (Now Table 6-2 of the Final Order)
Airfield improvements, aircraft parking area. A commenter suggested
adding taxiways. ARP's Response: Agree. ARP includes taxiways in the
table. It is included in Order 1050.1E, paragraph 310.e.
Airfield improvements, roads. A commenter suggested inserting the
word, ``permanently'' regarding change in Level of Service. ARP's
Response: Agree. ARP made the change.
Cargo building. The commenter notes the annotation isn't clear. The
statement, ``similar in size'' doesn't address large buildings covering
many acres. Please clarify the annotation to ensure it states, ``within
the same footprint as the existing [building].'' Without that
information there is a chance to categorically exclude large facilities
having substantial impacts. ARP's Response: Agree in part. ARP is not
authorized to change the text or intent of Order 1050.1E, paragraph
310h. Therefore, we cannot add the suggested wording. However, ARP
agrees there is a need to provide some way of determining if an action
``would substantially expand a passenger handling or cargo building.''
Footnote 2 in Table 6-2 provides information on determining if a
terminal or cargo facility would be substantially expanded. That
information focuses on potential noise and air quality issues, since
most expansions typically involve those issues.
Conveying airport land. A commenter stated this should refer to
only Federally-owned land to meet Order 1050.1E. ARP's Response: Agree.
ARP changed the text. We unintentionally omitted the qualifying words,
``federally-owned.''
Deicing/anti-icing facility. A commenter asks if this facility
includes stormwater collection, diversion, conveyance and treatment or
recycling facilities? ARP's Response: Yes. All of these items are
included because they help prevent significant water quality effects
due to de-icing/anti-icing activities. Of course, if building or
operating any of these items would involve extraordinary circumstances,
the responsible FAA official would need to determine if an EA or EIS is
needed.
Low emission technology equipment. The commenter is unclear on how
Order 1050.1E, paragraphs 309g, 310n, and 310u apply to this equipment.
ARP's Response: ARP states the disturbances to build infrastructure
within airport boundaries needed for this equipment cause many of the
same effects the cited paragraphs address. In addition, the
environmental benefits due to operating this equipment help to improve
airport-related air quality. Paragraph 309.g of Order 1050.1E addresses
upgrading power and control cables for existing facilities and
equipment noted in Order 6850.2, Visual Guidance Lighting Systems.
Since the low emission equipment requires electrically powered charging
stations and other electrical power supply, upgrading existing power
and control cables to service low emission equipment has impacts like
those activities paragraph 309.g addresses. Paragraph 310n of Order
1050.1E addresses minor facility expansion not requiring additional
land. ARP believes this paragraph applies because low emission
equipment service facilities often are built near aircraft operating
areas or other disturbed areas that paragraph 310n addresses. Finally,
ARP believes Paragraph 310u of Order 1050.1E addresses closing and
removing above ground or underground storage tanks (AST/USTs) at an FAA
facility. Although the public-use airports ARP oversees are not FAA
facilities, using the same AST/UST removal instructions as those FAA
facilities would use (FAA Order 1050.15A, Fuel Storage Tanks at FAA
Facilities), and following EPA regulations (40 CFR 280, 281, and 112)
would prevent significant impacts due to removing AST/USTs. This
removal often accompanies low emission technology equipment purchase
and use at an airport.
Non-U.S. waters, including wetlands and categorically excluded
actions. A commenter objected to considering these resources because
the Corps' regulations do not address them. ARP's Response: Disagree.
NEPA, and special purpose laws like the Fish and Wildlife Coordination
Act, and Executive Order 11990, Wetlands, do not differentiate between
jurisdictional and non-jurisdictional wetlands. Designation as a
``navigable waterway'' does not minimize a resource's ecological value.
Including this information also reflects information in Order 1050.1E,
Appendix A, section 18 addressing wetlands. ARP also provides
information on this issue to address a number of questions it has
received about these non-jurisdictional waters and wetlands. Table 6-2
includes a new categorical exclusion addressing categorically excluded
actions in non-jurisdictional wetlands. ARP proposed that categorical
exclusion in its December 16, 2004, Notice of Availability of draft
Order 5050.4B. Based on comments received, ARP has inserted information
to address non-jurisdictional wetlands in Table 6-2.
On-airport obstruction treatment. A commenter requests not limiting
actions to tree trimming or vegetation clearing. The commenter suggests
including any non-mechanized land clearing. ARP's Response: Disagree.
The annotation as written and paragraphs 310l or 310z of Order 1050.1E
focus on addressing obstruction to air navigation. Paragraphs 3101 and
310z do not limit actions to non-mechanized methods. Therefore, the
recommended change is not needed. Reviewers must consider any
extraordinary circumstances related to obstruction removal actions to
determine if the action is a CATEX or if it requires an EA or EIS.
Ownership change by purchase or transfer. A commenter asks why
transfer by purchase is not included. ARP's Response: Agree. We have
revised the text to include this action to better reflect Order
1050.1E, paragraph 307m.
Releasing airport land. A commenter requests changing the
annotation to
[[Page 29054]]
clarify if an environmental analysis is needed for short-term leases
(i.e., less than or equal to 5 years). ARP's Response: Agree. ARP has
revised the text for this action to better reflect the intent of Order
1050.1E, paragraph 307b. The responsible FAA official must consider the
environmental effects associated with airport land releases, regardless
of the duration of the release.
U.S. Waters, including wetlands and categorically excluded actions.
A commenter strongly objected to limiting categorical exclusions to
those that qualify for General Permits. The commenter states
involvement of U.S. waters or wetlands should not disqualify a CATEX.
In Alaska, it is a rare event that an action does not involve waters of
the U.S. The reason for qualifying for a CATEX should depend on the
impact, not a regulatory authority. Another commenter suggests that FAA
work with the Corps of Engineers to develop a category of actions that
Nationwide Permit No. 23 would cover. This would address many actions
having minor impacts on U.S. waters, including wetlands. Commenters
from the State of Alaska argue this is needed to address the number of
actions in that state involving waters and wetlands and to
``streamline'' the NEPA process. Another commenter sought guidance on
the need for sponsors to create new wetlands to replace those lost.
This mitigation may be needed under the Federal government's ``no net
loss policy.'' Several commenters stated the annotation should not
reference the Corps' General Permit Program, but instead, use the
words, ``Corps of Engineers Nationwide Permit'' or ``Corps of Engineers
Regional Permit.'' Another commenter states this and other CATEX omit
state water permitting and Coastal Zone Management Act (CZMA) Federal
consistency requirements. ARP's Response: Disagree. Tables 6-1 and 6-2
summarize those sections of the CATEXs in FAA Order 1050.1E, paragraphs
307-312 specific to airports. The Office of Environment and Energy
(AEE) is responsible for coordinating substantial, agency-wide changes
such as this one to Order 1050.1E (see Order 1050.1E, paragraph 10.0).
In addition, actions falling under General Permits are those that do
not normally cause significant environmental impacts. That is why they
are CATEXs in Order 1050.1E. Therefore, when preparing Order 1050.1E,
it seemed appropriate for FAA to develop CATEXs based on General
Permits to compliment the Corps' General Permit Program.
Addressing the suggestion about Nationwide Permit No. 23, readers
should review the above response. ARP informs the commenter that FAA
developed CATEX paragraph 310k in Order 1050.1E to address, ``actions
having minor impacts on U.S. waters and wetlands.'' FAA did this to
help streamline its NEPA process. Earlier versions of Orders 1050.1 and
5050.4 required EAs for all FAA actions affecting U.S. waters or wetlands,
regardless of the type of project or amount of wetland affected.
Concerning the comment on ``no net loss,'' ARP believes required
consultation with expertise agencies addressing wetland impacts would
address the extent of required mitigation.
Regarding the comments that the Order's annotation should not
reference the Corps' General Permit Program, but instead, use the
words, ``Corps of Engineers Nationwide Permit'' or ``Corps of Engineers
Regional Permit,'' ARP disagrees. ARP sees no need to change the
annotation. The term, ``General Permit'' includes Nationwide, Regional,
and Programmatic Permit Programs (61 FR 241 65874).
Concerning, coastal zone consistency, we agree. Readers should note
the extraordinary circumstance evaluation in Table 6-3 includes the
need to examine potential project impacts on coastal zone resources.
Comments Addressing Table 3 (Now Table 6-3 of the Final Order
General Comment: A number of commenters noted the table did not
include information addressing federally-listed endangered/threatened
species, Section 4(f), Section 106, prime/unique farmlands, and some
other resources. Another commenter notes confusion may occur about the
expertise agency having jurisdiction over resources involving certain
extraordinary circumstances. The commenter suggested the table provide
information about the agency(ies) with whom the sponsor or FAA would
consult. A commenter noted that the table did not address inconsistency
with Federal, State, local, or Tribal laws. The commenter requested
adding this text from Order 1050.1E, paragraph 304j. ARP's Response:
Agree. Table 6-3 includes the important information the commenters noted.
Air Quality. Some commenters are troubled by FAA-wide guidance.
Now, that guidance states that if an action causes air pollutants to
exceed respective National Air Quality Standard (NAAQSA) thresholds,
costly, time-consuming air quality modeling using dispersion analysis
is needed. The commenter requests that FAA provide guidance to clarify
this issue, perhaps by recognizing General Conformity's applicability
analysis. If this analysis shows emissions would be below NAAQS
thresholds, further analysis is not needed. The commenter suggests that
dispersion analysis is needed only for non-attainment pollutants at
airports in non-attainment areas. ARP's Response: See the Response to
the Comment on paragraph 408.b(1), above.
Community disruption. A commenter suggests using the term,
``compatible land use'' when deciding if land use is compatible with
aviation. Using community disruption does not apply to noise
compatibility, so delete it. ARP's Response: Disagree. Table 6-3
includes community disruption because Order 1050.1E, paragraph 304d
includes that term. Noise impacts on noise-sensitive areas are
addressed in Order 1050.1E, paragraph 304f, and are also included in
Table 6-3 of this Order.
Cumulative impacts. Two commenters urge ARP and FAA to provide
guidance on cumulative impact analysis. The commenter notes Order
1050.1E does not provide sufficient guidance on that important topic.
The commenters argue the information is too important for a desk
reference that, ``has not undergone the proper vetting within the
airport community.'' ARP's Response: Agree in part. ARP agrees added
information on this topic is helpful. Readers should note that ARP's
Desk Reference will address this issue with more guidance than Order
1050.1E presents because so many of its analysts and sponsors sought
that information. However, ARP notes that Order 1050.1E at paragraph
500.c provide some information on this topic and references various
portions of the CEQ regulations that discuss it. In addition, paragraph
1007.i of this Order provides helpful information from Order 5050.4A.
CEQ has issued detailed guidance in a special publication that is
useful for all Federal actions, not just airport actions
(http://ceq.eh.doe.gov/nepa/ccenepa/ccenepa.htm).
Regarding publishing this information in a desk reference that has
not received public vetting, ARP disagrees. As the Desk Reference
merely summarizes existing legal requirements, and contains no policy
guidance implementing NEPA, ARP sees little value in affording an
opportunity for public review and comment in advance. Nevertheless,
before issuing the Desk Reference later this year, ARP has decided to
distribute selected chapters of the Desk Reference for public
information purposes only (see this
[[Page 29055]]
Preamble's Desk Reference section for other information).
Floodplains. Two commenters request adding information from Order
1050.1E, Appendix A, paragraphs 9.2b and 9.2f to Table 6-3. ARP's
Response: Disagree. Like other extraordinary circumstances Table 6-3
discusses, this entry reflects information from Order 1050.1E,
paragraph 304, particularly paragraph 304.d. That paragraph does not
incorporate information from Appendix A discussing how to assess
extraordinary circumstances. As noted in responses to Air Quality,
Table 6-3 is a tool to alert analysts that a resource could present an
extraordinary circumstance warranting further study. Order 1050.1E,
Appendix A provides information on conducting the analysis for each
extraordinary circumstance addressing requirements outside NEPA. (ARP's
Desk Reference will do likewise for airport actions). To alert
reviewers that this circumstance would apply only to actions affecting
the floodplain, we have added the words, ``that an action in the 100-
year floodplain would cause.'' This matches the note referring to the
Corps of Engineers or the Federal Emergency Management Agency and
should help analysts screen a proposed action for floodplain impacts.
Highly controversial action. Two commenters suggested using
information from Order 1050.1E, paragraph 304i to better describe this
circumstance. ARP's Response: Agree. Table 6-3 refers to paragraph 9.i
of the final Order. That paragraph incorporates the information from
Order 1050.1E, paragraph 304.i.
Noise. Two commenters suggest focusing the extraordinary
circumstance on noise increases within the DNL 65-dB contour to avoid
confusion about using supplemental noise metrics. They suggest using
language in Order 1050.1E, Appendix A, section 11.b(8). ARP's Response:
Agree. The table refers the reader to the noise information in
paragraph 9.n of the Order. That paragraph reflects the information in
Order 1050.1E.
Water quality. Two commenters state the text is confusing. They
suggest using text from Order 5050.4A. ARP's Response: Disagree. Like
other extraordinary circumstances Table 6-3 discusses, this entry
reflects information in Order 1050.1E, paragraph 304, particularly
paragraph 304h, which supersedes Order 5050.4A.
Dated: May 5, 2006.
Dennis E. Roberts,
Director, Office of Airport, Planning and Programming, APP-1.
[FR Doc. 06-4527 Filed 5-17-06; 8:45 am]
BILLING CODE 4910-13-P