[Federal Register Volume 69, Number 115 (Wednesday, June 16, 2004)]
[Notices]
[Pages 33778-33822]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-13451]
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Part IV
Department of Transportation
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Federal Aviation Administration
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Environmental Impacts: Policies and Procedures; Notice
Federal Register / Vol. 69, No. 115 / Wednesday, June 16, 2004 /
Notices
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DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
[Docket No. 29797; FAA Order 1050.1E]
Environmental Impacts: Policies and Procedures
AGENCY: Federal Aviation Administration, DOT.
ACTION: Notice of adoption; notice of availability.
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SUMMARY: The Federal Aviation Administration (FAA) has revised its
procedures for implementing the National Environmental Policy Act by
replacing Order 1050.1D, Policies and Procedures for Considering
Environmental Impacts, with Order 1050.1E Environmental Impact:
Policies and Procedures. The revisions include: consolidating the FAA
categorical exclusions in the appendixes to Order 1050.1D into the body
of the order (including those in Order 5050.4A); adding new and
modified categorical exclusions; incorporating new procedures for
preparing environmental documents; consolidating Order 1050.1D
appendixes, which describe procedures for each program office, into the
body of the order; and adding new appendixes, such as on third-party
contracting. Revisions incorporated into Order 1050.1E are consistent
with FAA efforts to streamline the NEPA process that were announced by
the Administrator in January 2001. Order 1050.1E also includes an
appendix covering the environmental stewardship and streamlining
provisions in ``Vision 100--Century of Aviation Reauthorization Act.''
This notice also provides the public with information on how to access
Order 1050.1E on the Web site of the FAA's Office of Environment and
Energy.
DATES: Order 1050.1E was effective June 8, 2004.
FOR FURTHER INFORMATION CONTACT: Mr. Matthew McMillen, Environment,
Energy, and Employee Safety Division (AEE-200), Office of Environment
and Energy, FAA, 800 Independence Avenue, SW., Washington, DC 20591;
telephone (202) 493-4018.
SUPPLEMENTARY INFORMATION: The National Environmental Policy Act (NEPA)
and implementing regulations promulgated by the Council on
Environmental Quality (CEQ) (40 CFR parts 1500-1508) establish a broad
national policy to protect the quality of the human environment and
provide policies and goals to ensure that environmental considerations
and associated public concerns are given careful attention and
appropriate weight in all decisions of the Federal Government. Section
102(2) of NEPA and 40 CFR 1505.1 require Federal agencies to develop
and, as needed, revise implementing procedures consistent with the CEQ
regulations.
The FAA's previous NEPA Order 1050.1D, Policies and Procedures for
Considering Environmental Impacts, provided FAA's policy and procedures
for complying with the requirements of: (a) The CEQ regulations for
implementing the procedural provisions of NEPA; (b) Department of
Transportation Order DOT 5610.1C, Procedures for Considering
Environmental Impacts, and (c) other applicable environmental laws,
regulations, and executive orders and policies. The FAA proposed to
replace Order 1050.1D with Order 1050.1E and incorporate certain
changes based on notice and request for comment published in the
Federal Register (64 FR 55526, October 13, 1999). All comments received
were considered in the issuance of the final Order 1050.1E.
This notice provides a synopsis of the changes adopted, including
those additional changes resulting from comments received in response
to the request for comments placed in the Federal Register (64 FR
55526, October 13, 1999). The Order is distributed throughout the FAA
by electronic means only. The order will be initially located for
viewing and downloading by all interested persons at http://www.aee.faa.gov. If the public does not have access to the internet,
they may obtain a computer disk containing the order by contacting the
Office of Environment & Energy, 800 Independence Avenue SW., Washington
DC 20591. If the public is not able to use an electronic version, they
may obtain a photocopy of the order, for a fee, by contacting the FAA's
rulemaking docket at Federal Aviation Administration, Office of the
Chief Council, Attn: Rules Docket (AGC-200)--Docket No. 29797, 800
Independence Avenue SW., Washington DC 20591.
Synopsis of the Changes: The FAA Order 1050.1E, Environmental
Impacts: Policies and Procedures, includes additions or changes to the
previous version of the order that may be of interest to the public and
other government agencies and organizations.
The revised Order 1050.1E:
a. Reorganizes to consolidate all FAA categorical exclusions,
including new and modified categorical exclusions for all FAA programs,
into chapter 3 while eliminating the separate appendices and their
respective categorical exclusions for each program. Categorical
exclusions are those types of Federal actions that meet the criteria
contained in 40 CFR 1508.4 of the NEPA regulations promulgated by the
Council on Environmental Quality. Categorical exclusions represent
actions that, based on the FAA's past experience with similar actions,
do not normally require an EA or EIS because they do not individually
or cumulatively have a significant effect on the human environment.
b. Reorganizes to place the types of actions that normally require
preparation of EA's and EIS's for all programs into Chapters 4 and 5,
respectively. Appendix 6 (Airports) of Order 1050.1D (which references
FAA Order 5050.4A, Airport Environmental Handbook, October 8, 1985) is
now incorporated under paragraph 214 of this order. Except for the
procedures for internal FAA coordination and review of environmental
documents in FAA Order 5050.4A (paragraphs 63, 64, and 95), if there is
a conflict between Order 1050.1E and supplemental program guidance,
Order 1050.1E takes precedence.
c. Adds Tribes to the list of government agencies consulted in
extraordinary circumstances determinations when actions are likely to
be highly controversial on environmental grounds based on concerns
raised by a Federal, State, or local government agency, Tribe, or by a
substantial number of the persons affected by the action (see paragraph
304i); likely to violate Tribal water quality standards under the Clean
Water Act and Safe Drinking Water Act (see paragraph 304h), or air
quality standards established under the Clean Air Act Amendments of
1990 (see paragraph 304g); or likely to be inconsistent with any Tribal
law relating to environmental aspects of the proposed action or Federal
responsibilities toward Tribal trust resources. Includes new guidance
on government-to-government consultation with Tribes, in accordance
with Executive Order 13175, Consultation and Coordination with Indian
Tribal Governments, dated November 6, 2000 (65 FR 67249, November 9,
2000), and Presidential Memorandum on Government-to-Government
Relations with Native American Tribal Governments, dated April 29, 1994
(59 FR 22951, May 4, 1994) (see paragraph 213). Incorporates references
to Tribal consultation into appendix A, section 11 on cultural
resources, in accordance with regulations governing section 106
consultation under the National Historic Preservation Act (36 CFR part
800) and compliance with the Native American
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Graves Protection and Repatriation Act (43 CFR part 10), the American
Indian Religious Freedom Act of 1978 (Pub. L. 95-341), and E.O. 13007,
Indian Sacred Sites (61 FR 26771, May 29, 1996).
d. Provides guidance on intergovernmental review of agency actions
that may affect State and local governments, in accordance with E.O.
12372, Intergovernmental Review of Federal programs (July 14, 1982),
and 49 CFR part 17, Intergovernmental Review of DOT Programs and
Activities (see paragraph 213).
e. Deletes from the characteristics for extraordinary circumstances
those actions that are likely to be highly controversial with respect
to availability of adequate relocation housing.
f. Provides guidance for the option of documenting that a project
qualifies for categorical exclusion (see paragraph 305).
g. Adds new categorical exclusions and revises existing categorical
exclusions to accommodate actions that do not significantly affect the
environment. The new and revised categorical exclusions are the result
of the accumulated environmental experience of the FAA's actions
subsequent to the original issuance of FAA's categorical exclusions
between 1973 and 1986. The new categorical exclusions are: paragraphs
307c, 307e, 307f, 307h, 307p, 307u, 310c, 310d, 310u, 310w, 310z, 311c,
311d, 311e, 311g, 311k, 311m, 311n and 312b. Categorical exclusions
that were substantively amended are: paragraphs 307i, 307k, 307m, 307o,
309a, 309d, 309e, 310a, 310b, 310h, 310i, 310k and 310p. Some of the
amended categorical exclusions are formed by combining two or more
categorical exclusions from Order 1050.1D. Applicable actions of the
Associate Administrator for Commercial Space Transportation were added
to the categorical exclusions under paragraphs 308b, 309c, 309d, 309g,
309h, 310h, 310l, 310q, 310t and 311n. Previous categorical exclusions
from Order 1050.1D that were determined to be no longer relevant
(outdated; redundant) were not carried forward into Order 1050.1E. The
deleted categorical exclusions were (as identified in Order 1050.1D):
Appendix 1, paragraphs 5i, 5o, and 5s; Appendix 3, paragraphs 4b and
4h; Appendix 4, paragraph 4e and 4m; Appendix 5, paragraphs 4a, 4b, 4c,
4e and 4f; and Appendix 7, paragraph 4b. Two previously-listed
categorical exclusions, one in Order 1050.1D (Appendix 3, paragraph 4a)
and the other in Order 5050.4A (paragraph 23b(9)), were determined to
be ``advisory actions.'' These are removed from the list of categorical
exclusions and are now properly identified as advisory actions in
paragraph 301.
h. Provides formal procedures for adopting draft and final EA's
prepared by other agencies (see paragraph 404d), as recommended by CEQ
in its Memorandum: Guidance Regarding NEPA Regulations (48 FR 34263,
July 28, 1983).
i. Provides a new optional procedure for preparing joint decision
documents that meet the requirements of NEPA and the Federal Aviation
Act of 1958, as amended (see paragraph 408).
j. Provides a new optional procedure for preparing scoping
documents (see paragraph 505).
k. Provides a new optional procedure for publishing records of
decisions (ROD's) in the Federal Register (see paragraph 512e).
l. Adds a requirement, pursuant to EPA filing guidance, to notify
the EPA if the FAA adopts an EIS prepared by another agency (see
paragraph 518h).
m. Adds a new appendix A, Analyses of Environmental Impact
Categories. Appendix A contains an overview of procedures for
implementing other applicable environmental laws, regulations, and
executive orders in the course of NEPA compliance. Appendix A
incorporates and updates Attachment 2 of Change 4 to Order 1050.1D, and
amends each impact category to include a significant threshold
paragraph where thresholds have been established.
n. Adds a new subject, ``Supplemental Noise Guidance.'' to the
Noise section of Appendix A (see section 14). Although the yearly day/
night average sound level (DNL) is FAA's metric for determining
significant noise impacts for NEPA purposes, supplemental noise
analyses are most often used to describe aircraft noise impacts for
specific noise-sensitive locations or situations and to assist in the
public's understanding of the noise impact. Accordingly, the
description should be tailored to enhance understanding of the
pertinent facts surrounding the changes. The FAA's selection of
supplemental analyses will depend upon the circumstances of each
particular case. In some cases, this may be accomplished with a more
complete narrative description of the noise events contributing to the
yearly day/night average sound level (DNL) contours with additional
tables, charts, maps, or metrics. In other cases, supplemental analyses
may include the use of metrics other than DNL. Use of supplemental
metrics selected should fit the circumstances. There is no single
supplemental methodology that is preferable for all situations and
these metrics often do not reflect the magnitude, duration, or
frequency of the noise events under study.
o. Adds a reference to the use of demographic information of the
geographic area of potentially significant impacts for purposes of
anticipating and responding to public concerns about environmental
justice and children in accordance with applicable Executive Orders,
directives, and guidance issued by the CEQ and EPA. (see section 16 of
Appendix A)
p. Provides a new procedure for integrating Clean Water Act section
404 permitting requirements and NEPA (see section 18, Appendix A,
Analysis of Environmental Impact Categories).
q. Adds a new Appendix B, FAA Guidance on Third-Party Contracting,
with a brief cross-reference in paragraph 204d. This appendix provides
guidance on the use of third-party contractors in the preparation of
NEPA documents consistent with 40 CFR 1506.5(c). Third-party
contracting refers to the preparation of an EIS by a contractor
selected by the FAA and under contract to, and paid for by, an
applicant.
r. Adds a new Appendix D that describes Environmental Stewardship
and Streamlining pursuant to provisions in ``Vision100--Century of
Aviation Reauthorization Act'' that give review priority to certain
projects, require the establishment and management of review timelines,
improve and expedite interagency coordination, reduce undue delays,
emphasize accountability, and otherwise assist in facilitating
environmental reviews.
s. Adds guidance that gives special consideration 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, and states that Part 150 land use
guidelines and the DNL 65 dB threshold of significance for noise do 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.
The new and amended categorical exclusions, and paragraph 211 on
reducing paperwork and paragraph 212 on reducing delays are consistent
with the FAA's initiative to streamline the NEPA process that was
announced by the Administrator in January 2001. The new appendix on
environmental stewardship and streamlining describes provisions enacted
into law in December 2003 and provides information on FAA
responsibilities under these provisions. The provisions
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do not change the requirements in Order 1050.1E or FAA responsibilities
for complying with NEPA and other environmental laws, as described in
the Order.
Disposition of Comments
Additional changes and clarifications were added to the final order
in response to comments received as a result of the Federal Register
notice and are discussed in the forthcoming paragraphs describing the
disposition of comments. Comments were received from three primary
sources: (1) Agencies of the Federal government and State and local
governments; (2) organizations and special interest groups; and (3)
individual members of the public. The term ``comment'' used in this
notice refers to each individual issue raised by a commenter; numerous
comments may have been identified within the correspondence forwarded
to the FAA docket by a commenter. Although the notice requested
comments only on the proposed changes to the FAA's NEPA procedures, the
FAA determined that the public interest was better served by
considering all comments submitted. Also discussed are any substantive
changes to the order resulting from deliberative discussions with the
Environmental Protection Agency, the Office of the Secretary of
Transportation, the Council on Environmental Quality, and internal
elements of the FAA.
Comments received can be classified into two categories: (1) Those
comments that broadly cover a given chapter (chapter-wide), appendix
(appendix-wide), or the order as a whole; and (2) those comments that
specifically relate to a given paragraph or component of a paragraph.
Also, certain issues were identified during the commenting process that
are of substantial interest to the commenters. Such issues (issues of
special interest) are treated with a more extensive discussion in this
preamble commensurate with the level of interest expressed in the
public comments. The order in which comments will be discussed is as
follows: (1) Issues of special interest; (2) general subject matter;
and (3) for each chapter and appendix in succession, first chapter- or
appendix-wide comments followed by comments relating to individual
paragraphs. As a consequence of changes made to the order in response
to comments, some of the paragraph and subparagraph numbering have
changed. References to specific paragraphs in this preamble are made to
the revised paragraph and subparagraph numbering of the final Order.
Issues of Special Interest
There were a number of general comments regarding the applicability
of DNL 65 dB, both as the preferred noise metric and as the sound level
generally identified as the ``significant'' threshold level of aviation
noise. The FAA's responses are addressed in the topic areas DNL Metric;
Relationship between DNL and Annoyance (Schultz Curve); and 65 dB
Level.
DNL Metric: The Aviation Safety and Noise Abatement Act of 1979
directed FAA to establish by regulation a single system for measuring
noise exposure at airports and surrounding areas which would provide a
highly reliable relationship between projected noise exposure and
surveyed reactions of people to noise. The FAA adopted DNL. The EPA
Guidelines for Noise Impact Analysis (U.S. Environmental Protection
Agency 1982) also used DNL as the primary measure of general audible
noise. All Federal agencies have now adopted DNL as the metric for
airport noise analysis in NEPA (EIS/EA) documents. DNL takes into
account the magnitude of the sound levels of all individual events that
occur during the 24-hour period, the number of events, and an increased
sensitivity to noise during typical sleeping hours. DNL is an average
in that it accumulates all the noise exposure over a 24-hour period and
divides the total by the number of seconds in a day. As described in
the FICON Technical Report, the logarithmic nature of the decibel (dB)
unit on which DNL is based causes sound levels of the loudest events to
control the 24-hour average. The FICON technical subgroup focused
extensively on the question of the applicability of the DNL metric (see
Federal Interagency Committee on Noise (FICON), Federal Agency Review
of Selected Airport Noise Analysis Issues, August 1992. After reviewing
all noise exposure metrics, the FICON technical subgroup concluded that
no other metrics are of sufficient scientific standing to replace DNL.
The available evidence indicates that DNL continues to be the superior
metric to account for variations in the noise environment, including
such factors as numbers of flights, loudness of individual aircraft,
and percentage of night flights.
Relationship between DNL and Annoyance (Schultz Curve): The Schultz
(1978) curve relating DNL to the percent of people highly annoyed (see
Schultz, T.J. 1978, Synthesis of Social Surveys on Noise Annoyance,
Journal of the Acoustical Society of America 64(2): 377-405.) is
generally accepted as a valid criterion for noise impact and has been
revalidated by subsequent analyses over the years (see Fidell, S., D.
Barber, Updating a Dosage-Effect Relationship for the Prevalence of
Annoyance Due to General Transportation Noise, Journal of the
Acoustical Society of America, 89, January 1991, pp. 221-233; also see
Finegold, L.S., C.S. Harris, and H.E. von Gierke, 1992, Applied
Acoustical Report: Criteria for Assessment of Noise Impacts on People,
Journal of the Acoustical Society of America, June 1992; also see
Finegold, L.S., C.S. Harris, and H.E. von Gierke, 1994, Community
Annoyance and Sleep Disturbance: Updated Criteria for Assessing the
Impacts of General Transportation Noise on People, Noise Control
Engineering Journal, Volume 42, Number 1, January-February 1994, pp.
25-30 ). In this regard, the Schultz dosage-effect relationship
provides the best tool available to predict noise-induced chronic
annoyance. As stated in the 1992 FICON report, ``The relationship is an
invaluable aid in assessing community response as it relates the
response to increases in both sound intensity and frequency of
occurrence. Although the predicted annoyance, in terms of absolute
levels, may vary among different communities, the Schultz curve can
reliably indicate changes in the level of annoyance for defined ranges
of sound exposure for any given community.''
65 dB Level: Federal agencies have adopted certain guidelines for
compatible land uses and environmental sound levels. Land use is
normally determined by property zoning, such as residential,
industrial, or commercial. Noise levels that are unacceptable for homes
may be quite acceptable for stores or factories. The FAA has issued
these guidelines as part of its Airport Noise Compatibility Program,
found in Part 150 of the Federal Aviation Regulations. In general, most
land uses are considered to be compatible with DNL's that do not exceed
65 dB. Part 150 notes that responsibility for determining the
``acceptable'' and permissive land uses based on needs and values and
the relationship between specific properties and specific noise
contours rests with the local authorities. For properties protected
under section 4(f) of the Department of Transportation Act, the FAA
recognizes that in certain circumstances the Part 150 guidelines may
not be sufficient, and some instances, are not sufficient, to determine
noise compatibility or the threshold of significance (see sections 4.3,
6.2, and 14.3 of Appendix A of Order 1050.1E). A DNL of 65 dB is
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generally identified as the threshold level of aviation noise, and
other sources of community noise, which are ``significant''.
Some criticism of DNL stems from beliefs that the levels identified
with land-use compatibility are too high. Any compatibility guideline,
such as a DNL of 65 dB, must represent a balance between that level
which is most desirable to protect communities and that which can be
achieved with cost-effective mitigation measures and available
technology. Local communities may choose to adopt guidelines based on
locally determined needs and values under which residential land uses
are non-compatible with noise at levels below a DNL of 65 dB.
In addition, the Federal Interagency Committee on Aviation Noise
(FICAN) continues to support the use of DNL 65 dB as the level of
aircraft noise that indicates a threshold incompatibility with
residential land use as stated in their most current Annual Report,
dated October 1998.
Definition of Significant: Several comments were received
requesting that a clear definition of the term ``significant'' as it
pertains to aircraft noise exposure be included in FAA Order 1050.1E.
The FAA's response: General guidelines for noise compatibility identify
day-night average sound levels between 55 and 65 dB as ``moderate
exposure'' and as generally acceptable for residential use. Above a DNL
of 65 dB, these guidelines identify the noise impact as
``significant''. For the purpose of defining a significant impact
threshold for assessing the impact of a proposed FAA action, a
significant noise impact would occur if analysis shows that the
proposed action will cause noise sensitive areas to experience an
increase in noise of DNL 1.5 dB or more at or above DNL 65 dB noise
exposure when compared to the no action alternative for the same
timeframe. For example, an increase from 63.5 dB to 65 dB is considered
a significant impact. This Order provides additional guidance for
special consideration where the land use compatibility guidelines under
14 CFR part 150 and the DNL 65 dB threshold either may not be or are
not relevant. See sections 4, 6, and 14 of appendix A of Order 1050.1E.
A-Weighting: There were a number of comments that objected to the
use of A-weighting. The FAA's response: When measuring community
response to noise, it is common to adjust the frequency content of the
measured sound to correspond to the frequency sensitivity of the human
ear. This adjustment is called A-weighting (American National Standards
Institute, 1988). Sound levels that have been so adjusted are referred
to as A-weighted sound levels. The A-weighted sound level is used
extensively in the U.S. for measuring community and transportation
noises. In 14 CFR part 150 the FAA adopted the A-weighted sound level
as the single system of measuring noise that has a highly reliable
relationship between projected noise impacts and surveyed reactions of
individuals to noise to apply uniformly in measuring noise at airports
and the surrounding area pursuant to the Aviation Safety and Noise
Abatement Act of 1979, 49 U.S.C. Sec. 47501 et seq. Note: A-weighting
emphasizes sound components in the frequency range where most speech
information resides, and thus yields higher readings (A-weighted
levels) for sound in the 2,000 to 6,000 Hz range, but considerably
lower readings for low-frequency noise, than does the overall sound
pressure level. The normal human ear can hear frequencies from about 20
Hz to about 15,000 or 20,000 Hz. It is most sensitive to sounds in the
1,000 to 4,000 Hz range.
Area Equivalent Method (AEM): There were a number of general
comments that suggested AEM 3.0 is outdated. The FAA's response: The
FAA concurs. However, the FAA has updated AEM to Version 6.0c
subsequent to the October 13, 1999 Federal Register Notice and will
continue to do so with each future update of the Integrated Noise Model
(INM). The Office of Environment and Energy (AEE) has released seven
versions of the Area Equivalent Method (AEM).
(1) February 1984, which required VISICALC software package and an
Apple IIe personal computer.
(2) July 1984, which required the LOTUS 1-2-3 software and an IBM
compatible personal computer.
(3) November 1989, Version 2, a LOTUS 1-2-3 spreadsheet converted
into an executable BASIC program that functioned similar to a LOTUS
spreadsheet.
(4) September 1996, Version 3, a very early DOS-based C++ program
utilizing text graphics windows.
(5) September 2000, Version 5.2a, a Microsoft EXCEL 97 worksheet.
(6) February 2001, Version 6.0b, a Microsoft EXCEL 97/2000
worksheet.
(7) September 2001, Version 6.0c, a Microsoft EXCEL 97/2000
worksheet.
The AEM algorithm has not changed since 1984. Updates to AEM
involve the software used and/or expansion of the aircraft type
database. AEM Version 6.0c's database was produced using INM 6.0c, the
current version of that model. Note: The AEM is a screening procedure
used to simplify the assessment step in determining the need for
further analysis with the Integrated Noise Model (INM) as part of
Environmental Assessments and Impact Statements (EA/EIS) and Federal
Aviation Regulations Part 150 studies. AEM is a mathematical procedure
that provides an estimated noise contour area of a specific airport
given the types of aircraft and number of operations for each aircraft.
The noise contour area is a measure of the size of the landmass
enclosed within a level of noise as produced by a given set of aircraft
operations. The AEM produces contour area (in square miles) for the DNL
65 dB noise level and any other whole DNL value between 45 and 90 dB.
The AEM is used to develop insights into potential increase or decrease
of noise resulting from a change in aircraft operations. Further
information on, and the current status of, AEM and other environmental
models may be obtained by visiting the Web site of the Office of
Environment and Energy at http://www.aee.faa.gov.
Heliport Noise Model (HNM): There were a number of general comments
that suggested HNM 2.2 is outdated. The FAA's response: The Heliport
Noise Model (HNM) Version 2.2, released March 1994, is the best tool
available to analyze heliport noise impacts; and it is part of FAA's
ongoing commitment to help resolve aircraft noise issues. HNM is a
computer program used for determining the impact of helicopter noise in
the vicinity of terminal operations. HNM Version 2.2 is based upon
FAA's Integrated Noise Model (INM) Version 4.0, a similar computer
program for assessing the impact of fixed-wing aircraft noise. The HNM
differs from the INM in its ability to accommodate the greater
complexity of helicopter flight activities compared to the activities
of fixed-wing aircraft. An updated version of HNM integrated with INM
is currently under development and is expected to be released with INM
7.0.
Corporate Jets: There were a number of general comments concerning
the exclusion of corporate jets (<75,000 lbs.) from Stage 3 rules. The
FAA's response: The newest set of standards, known as Stage 3
standards, apply to all aircraft weighing more than 75,000 pounds and
to newly manufactured aircraft weighing 75,000 pounds or less. The
Airport Noise and Capacity Act of 1990 mandated the retirement of
heavier aircraft not meeting Stage 3 standards, but not aircraft
weighing 75,000 pounds or less. These lighter aircraft also did
[[Page 33782]]
not have to be retired under earlier noise standards because the FAA
concluded that it was questionable whether the technology existed to
modify those aircraft in a cost-effective manner. (U.S. General
Accounting Office, Report to Congressional Requesters, Aviation and the
Environment: FAA's Role in Major Airport Noise Programs, April 2000, p.
6)
14 CFR Part 150: There were a number of general comments requesting
that all references to 14 CFR part 150 be deleted, especially ``Table
1, Land Use Compatibility With Yearly Day-Night Average Sound Levels,''
presented in section 4 of appendix A. The FAA's response: The FAA does
not concur with the commenters' recommendations. The table in question
continues to provide a standard reference for land uses compatible with
various levels of airport noise. As such, the table continues to play a
vital role in assessing the compatibility of aircraft noise. However,
the FAA recognizes that the Part 150 guidelines may not be sufficient
in some instances, and are not sufficient in other instances, to
determine noise compatibility or the threshold of significance (see
sections 4.3, 6.2, and 14.3 of Appendix A of Order 1050.1E. Federal
Aviation Regulation, 14 CFR part 150, Airport Noise Compatibility
Planning, is the primary Federal regulation guiding and controlling
planning for aviation noise compatibility on and around airports. Part
150 was issued as an interim regulation (46 FR 8316; January 19, 1981)
under the authority of the Aviation Safety and Noise Abatement Act of
1979 [49 U.S.C. 7501 et seq.] (ASNA Act) and 49 U.S.C. Sec. 44715.
Implementation of noise compatibility planning under the ASNA Act was
delegated to the FAA. Part 150 established procedures, standards, and
methodologies to be used by airport operators for the preparation of
Airport Noise Exposure Maps (NEM's) and Airport Noise Compatibility
Programs (NCP's) which they may submit to the FAA under Part 150 and
the ASNA Act. The final rule was issued on January 18, 1985 (49 FR
49260) and, on March 16, 1988, was amended to include freestanding
heliports (53 FR 8722).
The FAA believes that the Part 150 process is a balanced approach
for mitigating the noise impacts of airports upon their neighbors while
protecting or increasing both airport access and capacity, as well as
maintaining the efficiency of the national aviation system. Part 150
provides for the following:
(1) Establishes standard noise methodologies and units.
(2) Establishes the Integrated Noise Model (INM) as the standard
noise modeling methodology.
(3) Identifies the land uses that normally are compatible or
incompatible with various levels of airport noise.
(4) Provides voluntary development of NEM's and NCP's by airport
operators.
(5) Provides for review of NEM's to insure compliance with the Part
150 regulations.
(6) Provides for review and approval or disapproval of Part 150
NCP's submitted to the FAA by airport operators.
(7) Establishes procedures and criteria for making projects
eligible for funding under the Airport Improvement Program.
The regulations contained in Part 150 are voluntary and airport
operators are not required to participate. However, an approved Part
150 NCP is the primary vehicle for gaining approval of applications for
Federal grants for noise compatibility projects.
A standard table of land uses normally compatible (or incompatible)
with various exposures of individuals to airport-related noise is
essential to assure uniform treatment of both airport operations and
noise-sensitive land uses or activities. This is the only noise and
land use compatibility table currently in the Code of Federal
Regulations (14 CFR part 150).'' (Report to Congress: Part 150 Airport
Noise Compatibility Planning, November 1989)
3000 Foot Categorical Exclusion: The comments received indicate
considerable public interest in one of the categorical exclusions
provided in Chapter 3. The categorical exclusion at issue is identified
under paragraph 311j, which provides in part; ``Establishment of new or
revised air traffic control procedures conducted at 3000 feet or more
above ground level, * * *.'' The two environmental concerns identified
in the public comments were aircraft noise and air quality (aircraft
emissions). Given the level of public interest, the FAA determined it
was in the public interest to re-verify the technical basis for the
categorical exclusion and is using this opportunity to notify the
public of the re-verification results below:
Noise: A technical study was conducted based on the Integrated
Noise Model (INM) Version 6.0a, to demonstrate the noise exposure
effects of aircraft flights at or above 3,000 ft AGL, and specifically
to demonstrate the degree to which these actions could contribute to
significant impact of DNL 65 dBA.
The study focused on the same types of parameters that can be input
into the Air Traffic Noise Screening Model (ATNS) Version 2.0
including: (1) The number of annual operations; (2) the type of
operations (arrival/departure); and (3) the percent daytime/nighttime
operations.
The technical study utilized INM 6.0a (the most current technology
in noise modeling) to identify the number of aircraft operations
required to produce DNL 65 dBA under various noise exposure conditions.
To conduct the study the following steps were followed:
(Step 1). Selection of four aircraft to represent different
categories of commercial aircraft. The following aircraft were selected
to provide conservative estimates (estimates that would tend to over-
protect, rather than under-protect people from noise impacts): (a)
Boeing B747-400, for wide-body aircraft; (b) Boeing B757-200, for large
aircraft; (c) Fokker F100, for medium size jets; and (d) Embraer 145,
for small jets, regional jets, and props.
(Step 2). Selection of aircraft climb/power settings and speeds to
reflect full power conditions which is the same assumption used to
build the tables of the ATNS.
(Step 3). Conduct INM 6.0a runs for level fly-over, using the
selected climb/power settings and speeds for each aircraft at the
corresponding altitudes of 3,000, 3,500, 4,000, 4,500, and 5,000 feet.
(Step 4). Development of an Excel spreadsheet (CATEX Tool) that
predicts the number of flight operations necessary to increase to DNL
65 dBA.
(Step 5). Analysis of the year 2000 Official Airline Guide (OAG)
data for twelve U.S. airports (representative of large, medium and
small operational capacities) and develop representative (composite)
aircraft fleet mix and percent nighttime operations.
The study addressed the number of operations required to create a
significant impact (i.e. creation or enlargement of a 65 dB DNL noise
contour or for areas already within the 65 dB DNL noise contour, a 1.5
decibel increase in noise). Two scenarios were analyzed for: (1) Areas
currently exposed to aviation noise (Existing Noise); and (2) areas not
currently exposed to aviation noise (No Preexisting Noise). The results
are shown in Table 1 for the composite fleet.
[[Page 33783]]
Table 1.--``No Preexisting Noise'' Versus ``Existing Noise'' for the Composite Fleet\1\
----------------------------------------------------------------------------------------------------------------
Night Operations @
Airport noise exposure environment operations Day operations 3000 ft. CATEX
(percent) (percent) tool
----------------------------------------------------------------------------------------------------------------
No Preexisting Noise to DNL 65 dBA.............................. 16 84 900
Existing Noise (DNL 63.5) to DNL 65 dBA......................... 16 84 263
----------------------------------------------------------------------------------------------------------------
\1\ The composite fleet is the average of twelve airport fleets and night/day operations.
The final column, ``Operations @ 3000 ft. CATEX Tool'', represents
the number of new operations, flying over the same point, at 3,000 feet
AGL during a single day which would produce a significant impact by
either creating a DNL 65 dBA noise contour where previously there was
no aviation noise, or for areas already experiencing DNL 63.5 dBA from
aviation noise, a 1.5 decibel increase in noise. In other words,
modifications to air traffic procedures at 3,000 feet AGL would have to
route 900 new operations over noise sensitive areas not currently
exposed to aviation noise or 263 new operations over noise sensitive
areas currently exposed to aviation noise in a single day.
In the FAA's experience, the likelihood that changes to air traffic
procedure would direct numbers of operations exceeding this level over
a single noise sensitive area around any airport is remote. Therefore,
changes to air traffic procedures at or above 3,000 feet AGL in normal
circumstances (i.e. absent extraordinary circumstances) qualifies for
categorical exclusion in accordance with CEQ regulations.
A copy of the paper ``Order 1050.1E 3000 ft. AGL Categorical
Exclusion Validation Study'', which fully describes the re-validation
effort, has been placed in the docket. A copy of the report will be
available from FAA's Office of Environment and Energy Web site at
http://www.aee.faa.gov for 120 days following publication of this
notice in the Federal Register.
Air Quality: For this categorical exclusion, the effects on local
air quality resulting from aircraft operating at or above 3000 feet
above ground level (AGL) have been studied to a limited extent (FAA
Report: FAA-AEE-00-01, ``Consideration of Air Quality Impacts by
Airplane Operations At or Above 3000 Feet AGL''). It has been concluded
that aircraft operating at such altitudes, generally termed
overflights, do not impact local air quality, even with worst case
assumptions.
Local air quality impacts are defined by the National Ambient Air
Quality Standards (NAAQS) which include exceedance levels for
concentrations of six pollutants. Potential impacts on local air
quality are evaluated by predicting local concentrations and reporting
total mass emitted for a particular pollutant. When determining local
air quality impacts the location of the source is of primary
importance. For aircraft overflights, the aircraft are at considerable
altitude.
At most major U.S. airports, safety dictates that overflights be at
least 7000 feet above field elevation. However, for U.S. airspace in
general, the minimum overflight altitude may be as low as 3000 feet,
and, as such, is the figure used in this analysis. Of most importance
is the relationship between the minimum overflight altitude and the
mixing height, defined as the vertical region of the atmosphere where
pollutant mixing occurs. The EPA default value for mixing height is
3000 feet, inasmuch as that value is close to the annual average mixing
height in the contiguous United States. Above this height, pollutants
that are released generally do not mix with ground level emissions and
do not have an effect on ground level concentrations in the local area.
It can be demonstrated by dispersion modeling that by the time
aircraft exhaust gases released above 3000 feet mix with the ambient
air and reach the ground, the increase in ground level concentration is
negligible, even for very large commercial jet aircraft. This occurs
even if the mixing height is greater than 3000 feet. As for local air
quality impacts when the aircraft are at 3000 feet and the mixing
height is at a greater altitude, the effect on ground level
concentration for the NAAQS criteria pollutants is so miniscule as to
be negligible.
Based on the dearth of scientifically verifiable data on the local
air quality impacts resulting from air emissions at altitudes at or
above 3000 feet AGL, exploratory studies in this area continue.
However, based on the current state of scientific understanding and EPA
guidance on local air quality issues, a categorical exclusion is the
appropriate procedural measure for this specified set of aircraft
operations. A copy of the report FAA-AEE-00-01, ``Consideration of Air
Quality Impacts by Airplane Operations At or Above 3000 Feet AGL'',
which describes the re-validation effort, has been placed in the
docket. A copy of the report will be available from FAA's Office of
Environment and Energy Web site at http://www.aee.faa.gov for 120 days
following publication of this notice in the Federal Register.
Comments on General Subject Matter
Presentation of Guidance in Order 1050.1E. Commenters from two
Federal agencies noted that the Order contains guidance that is not
appropriate in an order. They recommend that the order contain an
outline of the CEQ regulations and the guidance put in a reference
manual. FAA's response: FAA has determined that due to the need to
update its NEPA procedures to aid users, the agency will not change the
format for Order 1050.1E, but will consider changing the format for
subsequent versions.
Health Effects: General. Several commenters expressed the view that
aviation noise and aviation effects in general cause a variety of human
ailments such as stress, aggravation, sleep deprivation, changes to
personality, loss of technical abilities, changes in character, and
mental and emotional harm. The same commenters also expressed concern
over physical effects of aviation such as vibration and traffic
congestion. FAA's response: The physical effects of aviation on the
environment are addressed in Order 1050.1E. Even if a given action is
otherwise categorically excluded from review under NEPA, extraordinary
circumstances, such as increased traffic congestion, may be sufficient
to trigger the preparation of an EA, and if significant environmental
impacts were identified that could not be mitigated, possibly an EIS.
Although it has yet to be scientifically demonstrated that aircraft
noise, as typically experienced in communities surrounding airports,
has a causal relationship with human physical and psychological
ailments as described by the commenters, the FAA and other Federal
agencies, including the EPA, through their participation in the Federal
Interagency Committee On Aviation Noise (FICAN), continue to promote
and monitor research in the field of aviation noise effects on the
[[Page 33784]]
human and ecological environment. See http://www.fican.org for further
information on FICAN activities. Federal and state environmental
regulations, coupled with the environmental review procedures mandated
under NEPA, provide a means to assess and protect human health and
welfare and the environment.
Health: Air Quality and Emissions. Several commenters expressed
their concerns for the health impacts on the residents living near
airports from toxic (air) emissions from the operation of aircraft.
They believe that data from environmental studies conducted near
airports show increased incidence of cancer and heart and respiratory
diseases. FAA's response: The FAA has reviewed the studies cited by the
commenters. Some specific studies of the health effects of aviation
emissions have been conducted in Chicago. In one of the analytical
reports, the southeast and southwest sides of Chicago were studied for
cancer risk from air pollution. The southwest Chicago air toxics study
explicitly included estimated impacts from Midway Airport. In southwest
Chicago, mobile sources (including road vehicles, non-road engines, and
aircraft engines) were estimated to contribute about 25 percent of the
air toxic emissions. The risks of cancer from air toxics in southwest
Chicago were estimated at approximately 2 in 10,000. This risk estimate
is typical, consistent with studies of other urban areas, and falls
well within the range of from 1 in 100,000 to 1 in 10,000 which was
determined in other EPA studies to be a rough estimate of the combined
health risks due to all sources of pollution in urban areas.
In an analytical report (KM Chng Environmental Inc., ``Findings
Regarding Aircraft Emissions O'Hare International Airport and
Surrounding Communities,'' KMC Report No. 991101; December 1999), it
was again concluded that sources other than aircraft using O'Hare
International Airport (O'Hare) emit the vast majority of the air
pollutants of concern near the airport and that, in fact, emissions
from aircraft using O'Hare were lower in 1998 than reported by the
Illinois Environmental Protection Agency for 1990. It was stated that
the study's findings indicate that aircraft using O'Hare play only a
very minor role in regional ozone formation and contributions to air
toxics near O'Hare.
In addition, the FAA has evaluated air toxics at Seattle-Tacoma
International Airport (Sea-Tac) at the special request of local
citizens groups. These studies indicated that automobile exhaust
emissions appeared to be the primary source of air toxics within the
region. (Sea-Tac Airport Master Plan Update Final EIS.) Such
conclusions seem to be consistent with those in the EPA studies.
However, airports are by no means being overlooked or unmitigated
as important sources of air emissions. When an airport owner proposes
significant airport expansion involving Federal approval or funding,
the FAA is responsible for evaluating the impact on national air
quality standards. If the airport project is located in a nonattainment
area, the FAA is required to determine that the type of emissions for
which the area is in nonattainment and which are caused by the project
would conform with the purposes of the applicable EPA State
Implementation Plan. If de minimis levels are exceeded, the FAA must
complete an air quality analysis for a determination of conformity,
which is subject to public review and comment. In addition, effective
control measures are currently available, particularly to reduce mobile
source emissions associated with airport operations.
Airborne Emissions of Toilet Waste. A commenter believes that an
example of the hazards caused by aircraft toxic emissions comes from
the National Transportation Safety Board, which has determined that
toilet valves on 727's and other jets leak. Descending aircraft
routinely leak raw, untreated toilet waste over communities. FAA's
response: The FAA strongly disagrees with the commenter's assertion
that aircraft routinely leak toilet waste over communities. A leaking
external liquid waste valve is a serious safety hazard to the operation
of an aircraft. When leakage occurs, the liquid freezes into a block of
ice on the exterior of the aircraft (the ``blue ice'' as popularized in
the media). When the ice eventually separates from the aircraft in
flight, the ice poses a hazard to turbojet engines mounted at the rear
of the aircraft. In one instance, the ingestion of such a block of ice
destroyed an engine of a 727 in flight, causing the engine to separate
from the aircraft. Where the FAA has determined that the design of
waste-handling components of a particular model of aircraft are not
sufficiently robust to preclude incidents of leakage, the FAA has
issued Airworthiness Directives to immediately force the operators of
that model of aircraft to re-design the components in question.
Streamlining 1050.1E Procedures. One commenter believes that the
currently proposed new and modified CATEX's, and the new procedures for
preparing environmental documents will facilitate the approval of
aviation-related programs and petitions by airport operator/user
petitions, and it will further increase the burden imposed on the
communities surrounding the airports. The commenter believes this is
not an equitable proposal, therefore, it needs to be rethought, amended
to achieve a fair balance, and then resubmitted. While not opposed to
the general reduction of bureaucratic red tape, the commenter believes
that such streamlining is warranted only for cases that have withstood
the test of time, have reached an indisputable maturity level, and
enjoy a broad based acceptance and support. Some of the current FAA
procedures and standards associated with Aviation Noise Exposure have
been and continue to be challenged as outdated or deficient, and they
are at best controversial. Under the circumstances, the commenter
believes it is premature to consider the order changes, some of which
are based on currently disputed premises. Prior to contemplating
implementation of the changes, the commenter believes that the FAA must
define and establish a number of measures that automatically safeguard
communities near airports, as much as facilitate the approval (through
CATEX's) of petitions by airport operators and users. FAA's response:
The new and modified CATEX's do not lower environmental protection
requirements. Consistent with CEQ regulations, these CATEX's have been
determined normally not to result in significant impacts. Safeguards
have been built into the categorical exclusion list through the
application of extraordinary circumstances (see paragraph 304).
Storm Water Runoff Effects. According to one commenter, the damage
to the environment from airports has been so severe that several groups
(among them the NRDC and the U.S. Humane Society) filed legal actions
against Chicago's O'Hare and Baltimore Washington airports under storm
water laws for polluting waterways with toxic chemicals which caused
massive fish kills, among other effects. It is probable that similar
conditions exist at other airports. For example, San Francisco
International Airport is under a mandate to clean up its toxic,
solvent-polluted soils under a storm water law. The commenter believes
that further airport expansion without strict environmental review of
toxic emissions, water and ground impacts, really sanctions violence
against innocent citizens in favor of highly profitable airline
[[Page 33785]]
operations. FAA's response: The FAA and airport proprietors must comply
with a variety of environmental laws and regulations that are aimed at
protecting the environment from the effects of releases of pollutants.
In the case of storm water, the principal means for protecting the
environment is through the use of National Pollutant Discharge
Elimination System (NPDES) permits. The NPDES regulatory program (40
CFR part 122) is administered pursuant to section 318, 402, and 405 of
the Clean Water Act (33 U.S.C. 1251 et seq.). Runoff from airports,
including runoff from deicing operations, is specifically covered under
the NPDES program. Pollutant limits established for each permit ensure
that applicable water quality standards of the receiving waters will
not be exceeded. NPDES permits issued to FAA facility and airport
operators (e.g., new or modified permits associated with expansion
projects) would require discharges to be monitored and reported to
demonstrate permit compliance. Any permit noncompliance constitutes a
violation of the Clean Water Act and is grounds for enforcement action
(civil and criminal penalties); for permit termination, revocation and
re-issuance, or modification; or denial of a permit renewal
application. The enforcement of NPDES permits ensures that pollution of
the environment from storm water runoff is not sanctioned.
Air Quality Conformity Requirements. A commenter (ATA) remains
concerned that the air quality conformity requirements are unduly
rigorous as applied to airport projects and have submitted joint
comments to EPA calling for revisions and clarifications. They are
encouraged by FAA's statement in Appendix A that it will publish a list
of actions presumed to conform sometime in the future. ATA urges the
FAA to develop this list as expeditiously as possible and would be glad
to work with the FAA in this regard. FAA's response: Order 1050.1E
reflects current air quality conformity requirements. FAA is continuing
to pursue progress on a ``presumed to conform'' list and other
suggested changes to general conformity requirements.
FAA Regulatory Authority. A commenter believes the revised order
may not adequately emphasize the role of the FAA as the principal
federal agency regulating commercial aviation in this country. Congress
has vested responsibility for regulating airline safety and operations
in the FAA. As such, its policies for assessing the environmental
impacts of its actions directly affect airports and the commercial
carriers that serve them. Consistent with this, the commenter believes
that the revised order should fully explain and appropriately emphasize
the Congressional statutory enactments and associated body of federal
case law that have established a plenary federal jurisdiction over
matters relating to aviation, and in particular, aircraft and airport
operations, airport development, aircraft engine emissions, noise
regulation and safety. This regulatory predicate is unique to the
airline industry and, as a critical aspect of the regulatory regime
governing aviation-related federal actions, it should be recognized and
clearly explained in the revised order. In particular, such a
discussion should emphasize the relevant aviation-related statutes and
specific regulatory requirements for matters that may affect aircraft
and airport operations and safety. As a source of information for state
and local governments, and individuals, and as guidance for FAA
consultants preparing EA's and EIS's, the revised order should be clear
about the federal government's exclusive authority in matters related
to the regulation of aviation and underscore the importance of
substantive regulatory provisions relating to aircraft and airport
operations and passenger safety in all aspects of regulatory decision-
making. FAA's response: Comment noted. However, this discussion is
outside the scope of Order 1050.1E.
Invasive Species. Hawaii DOT comments that the definition of
invasive species as alien species whose introduction is likely to cause
economic or environmental harm to human health is not understandable.
Order 1050.1D defines invasive species as those likely to cause
economic or environmental harm or harm to human health. This definition
makes more sense. FAA's response: We concur and have modified the
definition as requested (see revision at Appendix A, section 8.1).
Scoping. A commenter notes that their state environmental
protection act has long provided a mandatory scoping process. The
commenter supports a scoping process for federal actions. FAA's
response: Scoping is mandatory for an EIS. See figure 5-1 and paragraph
505 in Chapter 5. Paragraph 505a notes the utility of using scoping
documents.
Extraordinary Circumstances. The DOI notes that many in the list of
extraordinary circumstances use the word ``significant,'' which DOI
believes predetermines the NEPA decision, and allows the use of CATEX's
in all but the most severe cases. NPS is concerned that under this
wording, most of the airport issues on which NPS has worked with FAA in
recent years may be CATEXed under the proposed wording. NPS believes
that such exclusion would be improper. The word ``significant'' should
be deleted from the extraordinary circumstances list, which would bring
it in conformance with most other agencies and more consistent with
NEPA. With the lack of public and agency notice normally provided for
CATEXed projects, it is incumbent upon the FAA to ensure that only the
most environmentally benign and non-controversial projects are CATEXed.
As written, the FAA procedures allow the FAA to decide for the public
and other agencies whether they should have an environmental concern
about a project. If the FAA determines that the impacts are not
``significant'' using only FAA criteria, then neither notice nor
documentation would be required to other agencies, stakeholders or the
public. This power to decide for others without their knowledge must be
used very judiciously to meet the requirements of NEPA. The DOI
believes that the proposed procedures go too far. FAA's response:
According to the CEQ regulations at 40 CFR 1508.4, Federal agencies may
categorically exclude actions that do not cause significant individual
or cumulative impacts. Consistent with environmental streamlining
goals, the FAA intends to use CATEX's to the fullest extent provided
for in the CEQ regulations. In so doing, it is not the FAA's intent to
improperly substitute CATEX's for EA's or EIS's, or to overlook or
foreclose additional considerations that are merited for unique areas.
The final Order 1050.1E clarifies FAA's approach to CATEX's by removing
the ``significant'' terminology from the listing of extraordinary
circumstances and using the guidance in Appendix A to determine when an
extraordinary circumstance triggers an EA or EIS. The guidance in
Appendix A includes a high level of detail on how to determine the
severity of impacts for each environmental resource. It also provides
for special analytical consideration to be given to unique areas such
as national parks, national wildlife refuges, and Tribal sacred sites.
Prior to finalizing Order 1050.1E, the FAA has extensively reviewed the
proposed CATEX's and extraordinary circumstances provisions in Chapter
3 with CEQ to assure conformity with CEQ regulations.
FAA Point of Contact for NEPA Consultants. A commenter notes that
the FAA has an internal chain of command by which it operates and can
seek clarification when it deems appropriate to do so. The commenter
[[Page 33786]]
further notes that a considerable portion of the compliance activities
and required documentation identified in the order is conducted by
sponsors and consultants who are not afforded this same access to FAA
experts. While it may not be readily apparent to FAA, there is a
genuine need for a process or point of contact or hotline for project
sponsors and/or contractors and maybe even anonymous FAA staff to be
able to call for clarification or conflict resolution without going
directly through the responsible FAA official or the FAA approving
official or the decision maker or their respective designees. There are
times and situations more often than we would all like to admit when
the direct and immediate clarification of a point or a facilitated
review by a staff expert in process or law conducted in a safe setting
without repercussions would be beneficial to all. It is difficult to
know and implement all of the numerous and unwieldy and varied
environmental regulations, policies and processes, etc. Establishing
this process will promote understanding and enhance consistency in
application of the order, preempt the current hit or miss resolution
process of challenging your FAA point of contact. This approach works
but is equally riddled with potential for embarrassment, insult,
confrontation, the possible escalation of an issue and sometimes the
application of political muscle prior to obtaining the necessary
clarification. This current method is not productive for anyone
involved, does not facilitate the process or working relationships with
FAA and can deteriorate the credibility of the process in this order.
This needs to be handled in an easily accessible, non-incriminating and
non-punitive way that will not undermine anyone's official role or
integrity. It can be anonymous or it can be a ``safe'' exploratory
forum. Rather than circumventing anyone's roles and responsibilities,
this could be designed and used in a manner to enhance it. It seems
appropriate to incorporate such a process in this order. It could
provide real insight into the genuine struggles associated with the FAA
order and NEPA requirements and clarify needs. FAA's response: Part of
the job of the FAA responsible official is to ensure that consultants
and project sponsors are aware of the environmental requirements
administered by FAA that are applicable to particular projects. It is
not FAA's intent in Order 1050.1E to establish an alternative
responsible FAA individual or alternative environmental communication
channel within FAA for consultants and sponsors. Other knowledgeable
FAA staff and responsible FAA management are generally well-known to
sponsors and consultants and can be engaged when additional opinions
and assistance are requested. Anonymous contacts are seldom useful in
resolving questions or disagreements on a project's environmental
review.
Land Use Compatibility. The DOI comments that the proposed approach
in the notice assumes that the FAA's authority to govern airspace takes
precedence over land management agencies' authorities to manage the
lands under the airspace. While it may be true in a few isolated cases
(e.g., safety or national security in narrowly defined circumstances),
DOI is aware of no law specifying that FAA's airspace interest or
authority overrides a land management agency's interest or authority.
The land management agencies have various authorities to manage the
lands irrespective of the FAA's authority to manage the airspace. DOI
thinks this applies broadly to other Federal and State land management
agencies as well, but it certainly applies to lands managed by the NPS.
The NPS, under 16 U.S.C. 1 et seq., possesses broad and sole authority
to manage the lands, resources and visitors in the areas under its
charge. In NEPA terms, this includes ``special expertise'' and
``jurisdiction'' concerning any actions affecting units of the national
park system. This authority cannot be ceded to or superceded by another
agency. This authority includes the responsibility to determine the
nature, extent, and acceptability of impacts on park resources and
visitors, as broadly defined, consistent with the body of management
decisions the NPS makes concerning a park. Therefore, the DOI believes
the agencies are obligated to work with each other to assess the
impacts of any airspace proposals and to resolve any differences and
that any conflicts between an FAA airspace proposal and the land use
plans or policies of a land management agency must be clearly
considered in a NEPA document. FAA's response: The FAA disagrees that
Order 1050.1E assumes that FAA exercises any precedence over DOI's land
management authority. Order 1050.1E guides the FAA in carrying out it's
responsibilities under NEPA and other environmental law pertinent to
FAA decisions and actions. Under NEPA, the responsibility for assessing
the impacts of a proposed Federal action resides with the Federal
decisionmaking agency. The FAA is responsible for Federal decisions
concerning civil aviation and for determining the best available
methodology and impact criteria to use in its assessments. This
responsibility does not transfer to the NPS at the boundary of a
national park. The FAA recognizes the special expertise of the NPS and
routinely consults with the NPS on potential impacts on national parks.
As an agency of the U.S. Department of Transportation, FAA must comply
with Section 4(f) of the DOT Act (re-codified as 49 U.S.C. 303(c)). In
doing so, it thoroughly evaluates effects of aircraft noise on uses for
which parks, refuges, recreational, and historic sites were
established. FAA consults with NPS and other agencies having
jurisdiction over these special areas in determining if noise would
substantially impair use of these important areas. It is the FAA's goal
to develop common criteria and reach consensus with the NPS on aviation
impacts on national parks.
Another commenter is very deeply concerned that further erosion in
the rights of citizens and degradation of environmental quality will
result from the implementation of these rule changes. At the Hanscom
Field Airport, the commenter believes that these rule changes can and
will result in damage to Historical, Natural, and Cultural Landmarks,
in contravention of NEPA and the NHPA. The commenter is alarmed that
the FAA continues to take actions which directly assault U.S. citizens
and U.S. Landmarks, instead of working to make aviation a tolerable
neighbor. The commenter believes these rule changes, and the recent
attempts to bully the EC into relaxing the environmental regulations
relating to Hushkits, are fueling an image that the FAA is bought and
paid for by aviation interests instead of serving the people of the
USA. The commenter believes that these actions will simply polarize
more and more people against the FAA.
Therefore, the commenter asks that in the final order, delete all
references to Part 150, its attendant ``land use compatibility table,''
and any references to 65 DNL as a meaningful threshold. FAA's response:
As discussed in previous FAA responses on aircraft noise and Part 150,
there is a reasonable and non-arbitrary basis for the use of the DNL
metric, the criterion for the threshold of significant impact (A
significant noise impact would occur if analysis shows that the
proposed project will cause noise sensitive areas to experience an
increase in noise of DNL 1.5 dB or more at or above DNL 65 dB noise
exposure), and the use of the land use guidelines in Table A of Part
150. However, the FAA recognizes that
[[Page 33787]]
special 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. Further, the FAA recognizes that Part 150 guidelines may not
be sufficient to determine the noise impact on historic properties
where a quiet setting is a generally recognized purpose and attribute,
such as a historic village preserved specifically to convey the
atmosphere of rural life in an earlier era or a traditional cultural
property. (See sections 4.3, 6.2 and 14.3 of Appendix A). Section 4.3
of Appendix A also instructs that Part 150 land use guidelines are not
applicable to determining noise impacts on wildlife.
A commenter believes that inclusion of the ``land use
compatibility'' table from Part 150 implies at least that the noise
impacts outlined therein amount to a default definition of what
constitutes a ``''significant effect on the quality of the human
environment.'' In directing the FAA to adopt the Part 150 regulations,
Congress did not intend to give the FAA carte blanche to define on a
universal basis what constitutes a ``significant effect on the quality
of the human environment.'' The FAA has never conducted a rulemaking
that would have offered the public meaningful notice that the FAA
intended to adopt such a rule. To the extent the FAA regards the
current proceeding involving the proposed order 1050.1E as something
other than a rulemaking, the FAA has not provided such notice either.
Accordingly, the commenter asks that either (1) The final order delete
all references to Part 150 and any references to 65 DNL as a meaningful
threshold; or (2) The final order expressly state that notwithstanding
any inclusion of or reference to Part 150, any inclusion of or
reference to the Part 150 ``land use compatibility'' table, or any
suggestion that ``65 DNL'' constitutes a meaningful threshold, that
none of those references suggest that the substance of those provisions
define a significant effect on the human environment for the purposes
of NEPA. FAA's response: The FAA disagrees with the commenter regarding
the use of 1.5 dB and greater increases in noise at or above DNL 65 dB
as a significant threshold and the value of the Part 150 land use
guidelines. The FAA has provided for public notice and comment on the
use of DNL 65 db as the threshold for compatibility of residential and
most other land uses in adopting 14 CFR part 150. The FAA established
1.5 dB increases within the DNL 65 dB contour as a significance
threshold in Attachment 2, FAA Order 1050.1D, dated 12/21/83, 49 FR
28501, July 12, 1984. Moreover, the FAA has provided for public notice
and comment on this threshold as part of this update of its NEPA
guidance. Through the FAA's NEPA guidance, and 14 CFR part 150, there
has been ample public notice and opportunity to comment on DNL 65 dB as
a significance threshold. The FAA recognizes that the Part 150
guidelines may not be, or are not, sufficient in all circumstances.
This issue is further discussed earlier in this preamble under the
heading ``65 dB Level.''
Responsible FAA Officials. The Department of Agriculture notes that
throughout the notice the FAA discusses the ``responsible FAA
official.'' It would be helpful to the reader to have a chart of
possible responsible officials for each type of action. FAA's response:
This order is not intended to provide such specific information that
may change according to the proposed project and working assignments
within FAA. Each FAA EIS and EA/FONSI includes the name of the
responsible FAA official and how to contact that official.
Glossary. A commenter recommends a ``Glossary of Terms'' be added
as an appendix. FAA's response: A Glossary of Acronyms exists and has
been updated. Additionally, Chapter 1, paragraph 11 provides
definitions of terms. Otherwise, terms used in Order 1050.1E reflect
CEQ regulation terminology.
Chapter 1 Comments:
General Chapter 1 comments. One commenter asked for identification
of how to obtain changes or updates or new guidance prior to their
incorporation into this order. FAA response: Any changes or updates are
provided when they are formally issued through the Federal Register,
AEE, and the FAA Web site.
One commenter noted that NEPA documents in electronic format is a
good idea, but there would still need to be hard copies for review.
FAA's response: For public dissemination purposes, hard copies will
remain available and will be provided as requested. Electronic versions
of NEPA documents may be used by the FAA as a supplement to the
distribution of printed versions.
Regarding paragraph 2, the distribution notice in the final Order
was changed to accommodate the ongoing changeover of distributing
electronic versions of directives instead of printed copies. The
distribution provides information on where the public, who may not have
access to the internet, may, for a fee, obtain hard copies of the Order
(photocopy or computer printout) from the FAA.
Beginning of comments on Paragraph 5: A commenter believes that the
change identified as paragraph 5c (incorporating Tribal considerations
into FAA's NEPA procedures) has public appeal and may appear
politically correct, but it will not protect Tribes from the same fate
as a ``substantial number of persons affected by the [FAA] action''
when the FAA disregards its obligations to NEPA, and to local
governments and to citizens. The commenter believes that the FAA has a
track record of neutralizing NEPA by approving its own requests for
CATEX's in order to implement actions that significantly and
detrimentally impact the human environment. The commenter believes that
adding Tribes to the list of persons affected by FAA's actions under
1050.1D may add appeal to 1050.1E, but it will have no impact on
protecting the Tribe's human environment from injurious FAA actions.
FAA's response: The FAA is providing appropriate means for Tribes to
participate in the NEPA process and ensure that Tribal concerns are
considered in FAA decisionmaking.
A commenter noted that the changes identified in paragraphs 5d and
5f (and associated paragraphs 210 and 305 respectively) have the effect
of releasing FAA from documenting their decision to approve a CATEX for
an action. The commenter believes this absolves every FAA Official from
taking signature responsibility for a decision to apply a CATEX. The
persons who are affected by an FAA action are therefore left with no
mechanism to recall a faulty or fraudulent decision made by an FAA
Official to employ CATEX's. The commenter strongly urges the FAA to
rewrite the changes to require documentation for signature approval for
the use of CATEX's in order to prevent further abuses of the NEPA
process. The commenter believes that the CATEX is a ``loophole'' which
allows the FAA to forge ahead with any and all plans for airport
expansion or flight traffic route changes while circumventing NEPA and
the protection it should afford the general public. FAA's response:
NEPA and its implementing CEQ regulations do not require documentation
of the use of
[[Page 33788]]
CATEX's. Once CATEX's are promulgated with notice and public procedure,
CEQ guidance discourages repeated documentation that an activity is
CATEXed. In final Order 1050.1E, documentation of an individual CATEX
is optional.
A commenter noted that the change identified in paragraph 5h and
the associated paragraph 404d, claim to provide procedures for enabling
the FAA Official to adopt EA's prepared by other agencies and require
the FAA official to make a written evaluation of an adopted EA, take
full responsibility for that EA ``and issue [her/his] own FONSI. It
appears as if this allows the FAA to choose to adopt only those EA's
that are favorable to their plans. This should be rewritten to indicate
that issuing a FONSI based on an adopted EA is not a foregone
conclusion. It may be more appropriate to conduct an EIS or choose not
to implement the FAA action. This should also be written to require
third party, objective reviews of EA's for the adoption process and
require the FAA to adopt all EA's which did not result in a FONSI.
These paragraphs also require the FAA Official to take signature
responsibility for an adopted EA. At first glance this seems favorable,
but the system that allows the FAA to approve its own adoption of an EA
has an inherent conflict of interest. The commenter believes that the
FAA has a track record of neutralizing NEPA by approving its own
requests for CATEX's. This proposed change will allow FAA to make
selective use of EA's that favor the FAA's preferred alternative of
implementing an action that my be detrimental to the human environment.
This should be rewritten to require adoption of EA's to be allowed only
after EPA and public review. FAA's response: The CEQ regulations allow
Federal agencies to adopt EIS's at 40 CFR 1506.3, and agencies are
allowed to use the same procedures to adopt an EA. Federal agencies are
responsible for the adequacy and accuracy of environmental documents
used in their decisionmaking processes.
A commenter noted that there were several new proposed appendices
included in 1050.1E, but they are not included in the Federal Register
notice. They should be made available for public comment. FAA's
response: These appendices are simply transcriptions of existing
documents such as the CEQ regulations that are otherwise publicly
available. The appendixes in question have been removed from the final
order.
Beginning of Paragraph 6 comments: Considering paragraph 6a, The
Department of the Interior (DOI) noted that it concurs that avoidance
or minimization of adverse effects of proposed actions, and the
restoration or enhancement of resources and environmental quality is
the appropriate policy for NEPA compliance. However, such a policy is
not consistent with the use of ``significant'' in the CATEX's and
extraordinary circumstances, and provides a reason to delete those
terms in those sections. FAA's response: The FAA does not see any
inconsistency between the NEPA policy statements and the provisions for
CATEX's. The CEQ regulations at 40 CFR 1508.4 define CATEX's as a
category of actions which do not have a significant effect on the human
environment, and the regulations require that agency procedures for
CATEX's ``provide for extraordinary circumstances in which a normally
excluded action may have a significant environmental effect.'' The use
of a ``significant'' context in relation to extraordinary circumstances
is therefore appropriate and has been reviewed with CEQ. As described
in a previous response to DOI, the final Order 1050.1E uses the
detailed resource impact guidance in Appendix A to determine when an
extraordinary circumstance triggers the preparation of an EA or EIS.
(see Extraordinary Circumstances under the heading ``Comments on
General Subject Matter'' earlier in this preamble)
A commenter noted that the emphasis seems to be on the
consideration of the effect on the human environment. Isn't
consideration of the effect on natural resources or natural environment
and equal consideration? It does not appear to be presented that way
throughout the order. The commenter asks for clarification or
modification. FAA's response: See paragraph 11b where the CEQ
definition of natural environment has been added for clarification.
A commenter noted that Order 1050 outlines the procedures by which
the FAA will conform to requirements of NEPA and the CEQ regulations.
NEPA requires that before taking an action that might significantly
affect the quality of the human environment, the FAA give careful
consideration to the potential environmental consequences of the
proposed action. The FAA must also consider the cumulative
environmental impacts of actions. FAA's response: The FAA does consider
the potential environmental consequences, including cumulative impacts.
See Chapter 5, paragraph 506f.
Beginning Paragraph 7 comments. Considering paragraph 7a, a
commenter asked that the text ``reasonable time'' be defined or a limit
placed on it. FAA's response: The paragraph was revised to remove the
time requirements. It should be noted that all components of the FAA
must comply with 1050.1E. Supplementary procedures issued by a
component of the FAA will be consistent with 1050.1E.
The FAA amended paragraph 7b(1) to indicate that publishing
explanatory guidance developed by a program office in the Federal
Register for notice and public procedure is encouraged but not
mandatory. If the explanatory guidance complies with Order 1050.1E,
further public involvement should not be required.
Beginning Paragraph 10 comments. A commenter asked that the word
``substantially'' as used in paragraph 10 be defined and questioned how
one could be advised of when the Administrator has specifically
reserved authority to make changes and updates. FAA's response: Order
1050.1E establishes FAA policies and procedures for compliance with
NEPA and also provides certain explanatory guidance. Establishment of,
or substantial changes to, policies and procedures under Order 1050.1E
are subject to the notice and public procedure requirements of 40 CFR
1507.3(a). The specific procedures included in Order 1050.1E that are
subject to notice and public procedure are identified under 40 CFR
1507.3(b). Explanatory guidance, whether established within Order
1050.1E or by other agency directives or documents, is not subject to
those notice and public procedure requirements. A substantial change to
the policies and procedures prescribed under Order 1050.1E is the
establishment of, or a change to, any procedure identified in 40 CFR
1507.3(b) which will (1) alter to a lesser level the level-of-review of
a class of actions within the NEPA review process (i.e., whether a
class of actions normally requires an EIS; normally requires an EA but
not necessarily an EIS; or normally is categorically excluded); (2)
alter any period of time set pursuant to 40 CFR 1507.3(d) as necessary
to comply with other specific statutory requirements; or (3) alter any
notices to, or any interaction with, the public, private applicants, or
non-Federal entities. For example, a substantial change to the
categorical exclusions provided in Order 1050.1E would be the addition
of new categorical exclusion or a change to an existing categorical
exclusion (or the list of associated extraordinary circumstances) such
that the scope of the given categorical exclusion is expanded to
include actions previously normally subject to an EA. A substantial
change to the list of actions which normally require an EA
[[Page 33789]]
but not necessarily an EIS provided under Order 1050.1E is a change
such that an action or class of actions previously normally subject to
an EIS is removed from that list (paragraph 501) and placed in a lower
level of review (i.e., moved to the list of action which normally
require an EA but not necessarily an EIS (paragraph 401)).
The following are examples of changes that are not substantial
relative to the notice and public procedure requirements of 40 CFR
1507.3: (1) Editorial changes, including re-writing to comply with the
``plain language'' requirements of E.O. 12866 and Presidential
Memorandum on Plain Language in Government Writing, and including any
re-structuring of the existing text; (2) adding to a list of embedded
examples (a ``such as'' list); (3) reducing the scope or adding a
condition (a restriction on the application) to an existing categorical
exclusion. Regarding the commenter's issue with the authority of the
Administrator to issue changes to FAA directives, the Administrator has
statutory authority to issue such documents. The Administrator has the
authority to delegate the authority to issue changes and revisions of
directives to lower level managers (see FAA Order 1320.1D, ``FAA
Directives System''). However, the Administrator may at any time and
without advance notice re-assume sole authority to approve a change or
revision to any FAA directive.
Beginning Paragraph 11 comments. Considering the definition for
``noise sensitive areas'' under paragraph 11b(9), DOI raised the issue
that noise sensitive areas are still noise sensitive whether they are
outside the 65 DNL contour or inside the contour. This definition
should simply define the term, and should not mix the definition with
policy related to such areas. The discussion in this section that
excludes noise sensitive sites beyond a certain distance seems
arbitrary. If the noise interferes with normal activities associated
with a site, the level and distance should not matter; in such cases,
the impacts and mitigation should be thoroughly evaluated in an EA or
EIS. The impact is what is important, not a criteria which may or may
not apply in a particular situation. FAA's response: The FAA has
amended the definition in the final Order to recognize that there are
unique areas outside of a residential setting where the DNL 65 dB
standard either may not or does not apply and where determinations of
the appropriate noise assessment methodology and impact criteria must
be made based on the specific uses of these areas.
A commenter asked what constitutes a large or small rocket in
defining the extent of a noise sensitive area around a launch facility.
FAA's response: There are no large or small rockets regarding the
extent of noise they produce. All rockets are noisy when compared with
normal daily noise-producing activities. The size of the noise
sensitive area in a launch facility depends on the types of rockets
launched, the location of the facility, its topography, and the species
found in the general area.
The FAA added definitions for ``applicant,'' ``human environment''
and ``launch facility'' (see paragraphs 11b(1), 11b(6) and 11b(7)
respectively).
Chapter 2 Comments
Beginning General Chapter 2 Comments. A commenter noted that in
paragraphs 208 and 212, and other similar sections, the FAA proposes to
directly coordinate with public or regulatory review agencies at least
at the state and local levels. The commenter indicated the FAA should
include the sponsor when directly approaching the public and or
regulatory review agencies, if there is one. The FAA could
unintentionally step into or interfere with local issues that could be
detrimental to one or all. FAA's response: The FAA concurs and has
revised the cited paragraphs accordingly.
A commenter noted that Chapter 2 has been expanded significantly,
with particular emphasis on the early coordination of the requirements
under various environmental statutes. The Introduction states that
``NEPA * * * provides a means for efficiently complying with related
statutes, orders, and regulations.'' It also states that `` * * * the
responsible FAA official can use the NEPA process most effectively as
an umbrella process or vehicle for giving appropriate consideration to
specific environmental concerns. * * *'' These goals are laudable as
long as the integration of compliance is not misinterpreted as an
enhancement of authority. The revised Order should include the
appropriate cautionary language. FAA's response: Chapter 2 clarifies
the responsibilities that FAA has always had under NEPA and is not an
enhancement of authority.
Beginning Paragraph 200 Comments. A commenter noted that paragraph
200 implies that airport master plans and NEPA processing should
proceed simultaneously, or as nearly so as possible, yet some FAA
officials continue to fear that there is something inappropriate about
that. Suggest additional clarification here. FAA's response: The text
in paragraph 200 is intended to clarify and emphasize the concern of
the commenter.
Concerning paragraph 200a(1), a commenter noted that NEPA
compliance includes providing for actions that are categorically
excluded from NEPA processing. In order to provide thorough
consideration of NEPA compliance the decisionmaker should also
determine whether the NEPA process for an action justifies
consideration of a Categorical Exclusion Determination, not just an EA
or EIS. This section might be revised to the following: ``200a(1)
Whether an action is categorically excluded from further environmental
considerations, or requires an EA or an EIS.'' FAA's response: The FAA
concurs and has revised the cited paragraph accordingly.
Beginning Paragraph 201 Comments. Regarding paragraph 201(a), a
commenter indicated that the decisionmaker must also consider whether
or not the action justifies consideration of a Categorical Exclusion
Determination, not just an EA or EIS. The statement ``the FAA can take
action without further environmental review'' gives the impression that
no documentation of the decisionmaking process is warranted. The
decisionmakers should document the entire decisionmaking process,
including preparing a Categorical Exclusion Determination document.
FAA's response: The FAA has previously responded that CATEX's are not
required to be individually documented. CEQ discourages such a
practice. CATEX documentation is optional, and Order 1050.1E reiterates
this.
Regarding paragraph 201c, the DOI indicates that, consistent with
the stated NEPA policy in paragraph 6a, mitigation should be included
in a FONSI not only when it reduces impacts below a threshold of
significance, but also when it avoids or minimizes any adverse effects
of the action. The DOI believes this to be an extremely important
point, that mitigation be used in all cases where it makes sense, not
only in those cases where it is needed to avoid an EIS. FAA's response:
Paragraph 201c is intended to describe a particular type of FONSI--a
mitigated FONSI. The mitigation of adverse impacts in a FONSI, not only
where mitigation is needed to avoid an EIS, is recognized in Chapter 4
of Order 1050.1E.
Concerning paragraph 201d, a commenter suggested that the text
``the responsible FAA official may prepare a ROD * * *, be changed to
``may submit a prepared ROD. * * *'' FAA's response: The text in
question has been revised to clarify that the FAA may
[[Page 33790]]
issue a ROD no sooner than 30 days after publication of the notice of
availability of the FEIS by EPA in the Federal Register.
Regarding paragraph 201e, a commenter asked if there is a process
for relief if it appears that the FAA is asking for what reasonably
seems to be too much. The commenter is concerned that there are times
that the regulatory agencies and sponsor believe this is the case and
do not see satisfactory recourse. FAA's response: There is no formal
recourse process in the Order. When such situations occur, they are
informally discussed and resolved.
Beginning Paragraph 202 Comments. A commenter notes that paragraphs
202(a) and (2) state that the responsible FAA official should initially
review whether the proposed action: (2) would be located in * * *
habitat of Federal listed endangered or threatened species or affected
wildlife * * *? What is affected wildlife? Some wildlife will be living
in that habitat. The FAA needs to clarify what they mean by affected
wildlife because the current language infers some special legal status
on ``affected wildlife,'' since it is linked in this paragraph to
Federal listed endangered species. FAA's response: The FAA agrees with
the commenter's concern and has consequently removed the text
``affected wildlife.'' The same commenter indicates that an addition
needs to be made to address wildlife hazards including the review of a
proposed action if said action could increase wildlife hazards to
aviation and/or subsequently affect human health and safety. FAA's
response: Wildlife that are hazardous to aviation are addressed in
Appendix A, section 8.2(c).
Regarding paragraph 202, DOI believes that the word
``significantly'' should be replaced with ``adversely.'' FAA's
response: The FAA disagrees. This paragraph is intended to be an
initial review for significant impacts. The text in question is
essentially from NEPA and the CEQ regulations. DOI also recommended
that ``cultural resources'' should be added to the list in paragraph
202a(1). FAA's response: We concur. Cultural resources have been added.
DOI also believes that the initial review should also include areas
``located near noise sensitive areas'' and actions that may ``adversely
affect noise sensitive areas.'' FAA's response: This level of detail is
not appropriate for Chapter 2, which is a general overview. Appendix A
provides the detailed guidance for noise impact assessment.
Beginning Paragraph 203 Comments. A commenter recommended that this
paragraph and paragraph 204 clearly state that in third-party contract
situations, FAA maintains the same oversight and control as it would if
FAA were paying the contractor. FAA's response: This information is
included in Appendix B, specifically dealing with third-party
contractual arrangements.
Regarding paragraph 203c, a commenter asked what constitutes
commencement of an EA or EIS. FAA's response: The issue is discussed in
Chapters 4 and 5. The FAA has slightly revised paragraph 203c to add
the phrase ``no later than'' before the text string ``immediately after
the FAA receives the application or proposal'' per 40 CFR 1502.5(b),
Timing.
A commenter noted that paragraph 203 should clarify the
circumstances under which applicants can prepare EA's. Paragraph 203(b)
states only that ``Applicants may prepare EA's.'' Overall, paragraph
203 makes the distinction between (1) ``actions directly undertaken by
the FAA,'' and (2) actions ``where the FAA has sufficient control and
responsibility to condition the license or project approval.''
Paragraph 203 is clear in stating that, in case (1), FAA may prepare
EA's or EIS's, or use contractors. But paragraph 203 should be clearer
in defining what shall occur in case (2). Paragraph 203 should also
address how the conflicts of interest mentioned in appendix B would be
avoided by applicants who prepare EA's. In some EA's, the distinction
between ``significant'' and ``non-significant'' impacts is non-
straightforward, and the EA's can be large and important documents. In
such cases, the assurance that the preparer has no conflict of interest
can be very important. Paragraph 203 should make it clear that the FAA
has responsibilities to ensure that any applicant-prepared EA's meet
several of the tests mentioned in paragraph 2f of Appendix B, e.g., the
FAA is still responsible for exercising oversight to ensure that a
conflict of interest does not exist and performing independent
evaluation of the document. Paragraph 203(b) might be revised to read
as follows: Where the FAA must evaluate applications and has sufficient
control to conditionally approve the license or project, applicants may
prepare EA's but not EIS's. If the applicant prepares an EA, the FAA
must perform an independent evaluation of the EA and ensure that an
applicant's potential conflict of interest does not impair the
objectivity of the document. Applicants may fund the preparation of
EIS's through third-party contracting (see paragraph 204 and Appendix
B). In such cases, the role of the applicant is limited to providing
environmental studies and information. FAA's response: The FAA agrees
that this paragraph would be more helpful if it included more
information about the affirmative role and responsibility of the FAA
under 40 CFR 1506.5(a) and (b). Revisions substantially similar to
those proposed by the commenter are adopted. Paragraph 203(b) was
further revised to more closely conform to the requirements for
incomplete or unavailable information as provided under 40 CFR 1502.22.
Beginning Paragraph 204 Comments. One commenter believes that
paragraph 204 indicates that when a contractor prepares an EIS, FAA
will require that the contractor execute a disclosure statement
``specifying that the contractor has no financial or other interest in
the outcome of the action.'' The final Order should provide further
guidance on the type of interest that would be inappropriate, with
particular emphasis on the types of projects that involves FAA
approvals. FAA's response: CEQ is the best source of additional
guidance. See questions 17a and 17b of 40 Most Asked Questions
Concerning CEQ's NEPA regulations for this guidance. This CEQ document
is available on the Web site of the FAA Office of Environment and
Energy (http://www.aee.faa.gov).
The FAA expanded paragraph 204b to clarify the issue of contractor
conflict of interest and to include definitions for the terminology
``final design work'' and ``preliminary design work.''
Beginning Paragraph 205 Comments. A commenter noted that this
Order's effective date should be stated so that all studies begun after
a specific date will need to comply with Order 1050.1E. FAA's response:
The final order will be effective on the date of the signature of the
Order. See paragraph 12 for instructions on environmental review work
in progress or completed.
Beginning Paragraph 206 Comments. The FAA determined that the
proposed introductory paragraph should have stated that the restriction
on ``any action or irretrievable and irreversible commitment of
resources'' applies only to EIS's--not EA's as proposed. The text was
amended accordingly in the final order to properly correspond to the
requirements of 40 CFR 1506.1.
Regarding paragraph 206b, one commenter noted that paragraph 206a
is too vague and arbitrary and needs definition or reference. Should
this only apply in cases where an EA may potentially become an EIS?
FAA's response: The provision states ``may also be considered,'' and is
therefore not a requirement. See Chapter 4, paragraph 405.
[[Page 33791]]
Regarding paragraph 206b, it was noted that it would not be prudent
for the FAA to acquire an interest in land prior to completion of
required NEPA documents as proposed in paragraph 206b(1) of the notice.
Accordingly, the last two sentences of the proposed paragraph were
deleted and the existing provisions of Order 1050.1D, Appendix 5,
paragraph 1b(5) and Appendix 1, paragraph 6d were carried forward into
final Order 1050.1E as paragraph 206b(2). The existing provisions allow
the FAA to contact property owners under certain circumstances and to
acquire options for land in limited circumstances; but the FAA may not
make a final decision on acquisition prior to completion of the NEPA
review and associated documentation. Paragraph 206b(1) was further
amended in the final Order to indicate that a transfer of title or
other interests in real property is not a major Federal action
significantly affecting the environment unless the acquisition
``effectively limits the choice of reasonable alternatives''. The
adopted change more clearly conforms to the CEQ regulations.
Concerning paragraph 206c, the DOI comments that responsibilities
under section 4(f) of the DOT Act are correctly stated here. However,
lands such as units of the national park system should receive
``particular attention'' as noise sensitive, light sensitive,
culturally or ecologically sensitive, etc., as appropriate,
irrespective of section 4(f) of the DOT Act. FAA's response: Guidance
on the analysis of impacts on environmental resources in Appendix A
gives particular attention to unique areas, such as units of the
national park system, irrespective of section 4(f) of the DOT Act.
Paragraph 207 Comment. Regarding paragraph 207a, the DOI believes,
for the record, the National Parks Service possesses special expertise
and jurisdiction regarding the management of and the nature, extent,
and acceptability of impacts on park resources and visitors in units of
the national park system that may be affected by FAA actions. Whenever
any action has any potential to affect any unit of the national park
system, the NPS should be notified at the earliest possible stage of
planning. FAA's response: The Order provides for appropriate
notification of affected agencies and officials, including DOI and NPS.
Beginning Paragraph 208 Comments. The FAA split the contents of the
proposed paragraph 208 into two paragraphs: the adopted paragraph 208
discusses public involvement and paragraph 209 discusses public
hearings, workshops and meetings. Regarding paragraph 208b, the first
sentence was changed in the final Order to correctly identify and
conform to the requirements of 40 CFR 1501.2 which prescribes early
interaction of the Federal agency with the affected communities and
agencies.
Beginning Paragraph 209 Comments. The Wisconsin DOT comments most
public hearing records for EA's are currently kept by airport sponsors
or their agents. This would be a very burdensome requirement for
airport sponsors and would be a massive record keeping task for the
Chief Counsel's office. Delete this requirement. FAA's response: Order
1050.1E does not require public hearings for EA's. Public hearings for
EA's are discretionary on a case-by-case basis, as appropriate.
A commenter asks that terms such as ``degree of interest'' and
``national interest'' be defined, at least in the contexts in which
they are used. FAA's response: These terms do not lend themselves to
precise definitions, but the circumstances are usually apparent when
present.
Regarding paragraph 209c, a ``draft FONSI'' was removed from the
requirement that draft EA's and EIS's should be made available to the
public at least 30 days prior to a public hearing, meeting, or
workshop. The inclusion of a draft FONSI could be misconstrued as the
government having already decided on a finding of ``no significant
impact'' when the purpose of the hearing, meeting, or workshop is to
solicit public input on the findings of the environmental analysis
prior to a government decision based on the findings. The change was
made accordingly in the final order.
In response to an internal comment, additional information is
provided on the FAA's out-reach efforts to notify and involve
potentially affected minority and low-income populations at the
earliest stages of project planning. The additional information also
notes that provisions should be made to accommodate the needs of the
elderly, handicapped, non-English speaking, minority and low-income
populations in the FAA's public involvement efforts. This information
is provided under paragraph 209d.
Paragraph 210 Comment. Regarding paragraph 210a, a commenter noted
that if data standards are to be met, the standards should be included
or a better reference source should be included. FAA's response: A
Federal Register citation has been added. Paragraph 210b was changed in
the final Order to identify Department of Transportation ``Information
Quality Guidelines'' prepared pursuant to OMB guidelines (Pub. L. 106-
554) which prescribe guidelines for the objectivity, utility and
integrity of disseminated information. In accordance with the DOT
guidelines, paragraph 206b also provides (1) the public comment and
participation process for a draft EIS satisfies the process for
requesting correction of information; (2) any corrections deemed
appropriate will be included in the Final EIS; and (3) a request for
corrections to a Final EIS or for reconsideration of a request for
corrections may be handled as though it were a request for a
Supplemental EIS.
Regarding paragraph 211 which identifies incorporation by reference
as an allowable CEQ procedure, additional text was added to paragraph
211d of the final Order concerning the use of hyperlinks to documents
that are stored and maintained electronically in order to facilitate
public access to such documents that are incorporated by reference in a
NEPA document. As a reminder to FAA NEPA practitioners, similar text
referring to incorporation by reference was added to paragraphs 404d,
405c, 405e, 405f(1), 500B, and 506f in the final Order.
Paragraph 212 Comment. Regarding paragraph 212b, a commenter
believes that cautionary language should be added to ensure that a
``piecemeal'' approach to NEPA analysis is not encouraged. For example,
FAA should address airspace issues associated with a new airport in the
same NEPA document that addresses airport construction. The two actions
are inextricably linked, yet FAA has not always addressed them together
since different divisions within the FAA are responsible for each part.
FAA's response: Instructions on FAA actions that should be
environmentally reviewed together are in paragraph 500 of Order
1050.1E.
Beginning Paragraph 213 Comments. Regarding paragraph 213, the DOI
believes there are more than just executive orders that bear on
interagency coordination (e.g., executive memoranda, memoranda of
agreement, etc.). There should also be a paragraph discussing other
Federal agencies, especially Federal land management agencies such as
NPS, BLM and Forest Service which manage large tracts of land that may
be affected by FAA actions. FAA's response: Paragraph 213 provides a
broad, general discussion. The Order in entirety provides greater
detail on the appropriate involvement of affected agency officials,
including federal land management agencies. Also, the FAA has revised
the second sentence in paragraph 213b(2) to add at
[[Page 33792]]
the beginning ``For regulations, legislative comments, or proposed
legislation, and other policy statements or actions that have
substantial direct effects on Federally-recognized Tribes.'' Executive
Order 13175 provides for consultation concerning ``Federal policies
that have tribal implications.'' The text added to the final order sets
forth the definition of the policies that require consultation under
Executive Order (see EO 13175, section 1(a) and FAA Order
1210.20,``American Indian and Alaska Native Tribal Consultation Policy
and Procedures'' (January 28, 2004)).
Paragraph 214 was amended in the final order to incorporate recent
changes in the FAA organizational structure. Specific changes were made
to recognize the Assistant Administrator for Aviation Policy, Planning,
and Environment (AEP) and the Air Traffic Organization.
A commenter recommended that if the airport is in the vicinity of a
National Park, special consideration should be given to consultation
with the NPS both at the local and headquarters levels. FAA's response:
As written, the order provides appropriate involvement of affected
agency officials, including federal land management agencies. The
commenter also recommended that the terms ``coordination and
consultation'' should be defined more precisely, written submittals of
materials should be specified, and the possibility of funding
consultant services for the affected agencies and state and local
governments should be discussed. FAA's response: Coordination and
consultation range from brief review and comments to extensive
discussions involving additional analyses. They must be suited to the
particular project and its impacts and do not readily lend themselves
to specific definitions that cover all circumstances. Some coordination
and consultation involve written materials, but not all. The CEQ
regulations discuss funding at 40 CFR 1501.6(b)(5).
Chapter 3 Comments
General Chapter 3 Comments: A commenter recommended that all
sections describing categorically excluded actions include financial
assistance and ALP approval as one of the potential federal actions.
This is necessary because these guidelines are applied by FAA to
projects at airports for which there is no specific federal aid for the
particular proposed project, but nearly all airport projects are
considered federal actions because the airport in general has been the
recipient of federal aid in the past and because the proposed action
may affect a change on one of the many ALP detail sheets considered
part of the ALP and trigger an ALP approval. If this should not be the
case, then please state so. FAA's response: The FAA agrees and has
revised appropriate CATEX's in Chapter 3 to include the Federal actions
of financial assistance and ALP approval. The same commenter asked
whether a project by an airport proprietor using their own funds is
still subject to NEPA review. FAA's response: Yes, if FAA must approve
a change to the ALP.
Paragraph 300 Comment. A commenter believes there has always been a
problem with the CATEX discussion in FAA documents that reference to
public controversy is buried in text. Many readers focus on the
specific project that is referenced in the CATEX list, concluding that
it should rightfully be excluded. What the list really says is ``this
project is excluded unless we determine that it should be included.''
That point should be made in a much more obvious way in the text. FAA's
response: We concur. See revised wording in paragraph 303 and the
addition of emphasized text at the beginning of each paragraph (307-
312) containing the lists of categorical exclusions.
Regarding paragraph 301, the FAA action ``designation of alert
areas'' is an advisory action and not subject to NEPA requirements.
Accordingly, that action was removed from CATEX 311e and was added as
paragraph 301c in the final Order.
Regarding paragraph 302, the FAA, in the final Order, revised the
last sentence to read ``FAA will then consult with CEQ about
alternative arrangements for complying with NEPA.''
Paragraph 303 Comment. A commenter first recommended that paragraph
303 should be revisited, since many of the DOD CATEX's are now
incorporated into paragraphs 307-312 and then allow under paragraph 303
review and use of any supporting documentation DOD may provide for any
DOD CATEX that is not listed or that is listed and for which we must
review for extraordinary circumstances. In a subsequent comment, the
commenter recommended strongly that text in question in paragraph 303
be removed since it would appear that the existing CATEX list will
adequately cover the situation. It is the commenter's position that it
is not appropriate for a Federal agency to adopt another Federal
agency's decision. For example, an agency may adopt an EIS, but it
prepares its own ROD, or adopts an EA, but it prepares its own FONSI.
FAA's response: The FAA concurs and has removed the text in question
and has removed references to the text in question from other locations
in the final Order.
Beginning Paragraph 304 Comments. Regarding the introductory
paragraph of paragraph 304, the FAA determined that the presence of one
or more extraordinary circumstances(s) in connection with a proposed
action is not necessarily a reason to prepare an EA. Accordingly, and
after subsequent consultation with CEQ, the paragraph was amended in
the final Order to indicate a determination of whether a proposed
action that is normally categorically excluded should require an EA or
EIS depends on whether the proposed action (1) involves any of the
circumstances provided under paragraph 304 and (2) may have a
significant effect on the human environment.
Regarding paragraph 304a, the DOI objects to having the word
``significant'' in that sentence, ``Likely to have a significant
adverse effect on cultural resources pursuant to the NHPA. . . .''
Language in the Advisory Council on Historic Preservation regulations
refers to ``No properties adversely affected.'' There is no qualifier
in that language, and it should be removed from the sentence. Actions
with the potential to adversely affect National Register eligible or
listed properties should have an EA or EIS with public involvement to
evaluate the effects. The purpose of developing an EA is to determine
if effects are significant. If a CATEX is written instead, the public
and other agencies never have a chance to comment on the severity of
the impacts. FAA's response: Paragraph 304a has been revised to remove
the ``significant impact'' terminology. It now refers to ``adverse
effect''. Section 106 of the NHPA affords opportunities for
consultation and public comment to evaluate federal undertakings that
have the potential to adversely affect National Register eligible or
listed properties. Whether the FAA may fulfill Section 106 and conclude
the NEPA review with a categorical exclusion or is required to prepare
an EA or EIS depends upon the potential for affect and the potential
severity of the potential adverse effects established by consultation.
If Section 106 consultation establishes adverse effects that may be
significant, then at least an EA is required. In preparing the EA, the
FAA must involve the public and other agencies to the extent
practicable.
Regarding paragraphs 304(b), (c), (e), (f), (g), (h), & (k), the
DOI believes that the same rationale applies here [as in the previous
comment on paragraph
[[Page 33793]]
304a] concerning using the word ``significant'' with impacts associated
with noise, ecology, air quality, water quality, visual nature, and
traffic congestion. If there are any adverse impacts, not just
significant adverse impacts, then the severity of the impacts must be
documented in an EA or an EIS. The word ``significant'' must be deleted
from all these extraordinary circumstances. If the impacts are
``significant'' in the NEPA sense, then an EIS is required. The general
purpose of an EA is to determine if there are any ``significant''
impacts. Inserting the word ``significant'' into the CATEX's short-
circuits a large part of NEPA. FAA's response: The FAA does not concur
that ``any adverse impacts'' require an EA. The CEQ regulations at 40
CFR 1508.4 define CATEX's as a category of actions which do not have a
significant effect on the human environment. Actions that have adverse
effects that are not significant can properly be CATEX'ed under the CEQ
regulations. As discussed above in response to a previous DOI comment
on this point, the FAA has modified the guidance in paragraph 304 to
clarify how to consider the potential for significant adverse impacts
in determining whether extraordinary circumstances exist.
Regarding paragraph 304c, the DOI believes that to be consistent
with CEQ regulations 40 CFR 1508.27(b), criteria here should also
include unique characteristics of the geographic area such as proximity
to historic or cultural resources, park lands, etc. FAA's response:
Paragraph 304 has been revised to clarify that the potential for
significant impacts should be considered using the circumstances
identified in paragraph 304, guidance provided in Appendix A to Order
1050.1E, and the factors identified under 40 CFR 1508.27(b) (see
paragraph 501 of Order 1050.1E). This procedure addresses the concern
of the commenter. This procedure is consistent with the CEQ's
regulations.
Regarding paragraph 304c, the DOI indicated that the reference to
section 7 of the ESA should be removed. Species are not listed under
section 7. Section 7 describes the conservation and consultation
responsibilities of federal agencies. Section 4 of the ESA describes
listing and recovery responsibilities. FAA's response: DOI is correct
about the reference to section 7, which has been deleted in the final
Order. With this change, the text is accurate.
Regarding paragraph 304k, the DOI believes that lighting impact
should not be limited to residential areas and business properties.
Lands such as units of the national park system may be adversely
affected by lighting, and such impacts should be fully evaluated in an
EA or EIS. FAA's response: The potential impact on the visual nature of
surrounding land uses, which is also listed in paragraph 304k, is broad
enough to include lighting impacts. The cross-reference to sections 11
and 12 in Appendix A provides further guidance.
Regarding paragraph 304, a commenter believes that the way the
paragraph is written, all impacts listed in the same section are
significant and require an EIS. There is no consideration for EA's as
indicated. Rewording seems in order. FAA's response: That was not the
intent. Paragraph 304 has been reworded as previously described. An
action that is normally CATEXed could require either an EA or EIS. An
EA or EIS can also be prepared as a matter of policy at any time to aid
in agency planning and decisionmaking.
A commenter, an association, commented on two changes to paragraph
304. First, paragraph 304 indicates that significant adverse effects on
cultural resources constitute an extraordinary circumstance. The
commenter believes this is a higher standard than reflected in the
current order. However, the commenter believes that this is an
appropriate change. Second, paragraph 304 includes significant impacts
to candidate species under the Endangered Species Act (ESA) among those
that will require the preparation of some environmental documentation.
The commenter believes that the ESA does not afford protection to
``candidate species'' and the revised order should not impose
additional requirements beyond this. FAA's response: The commenter is
correct that 1050.1E reflected a higher standard for extraordinary
circumstances than 1050.1D. As explained above, in response to DOI
concerns, paragraph 304 has been revised in final Order 1050.1D to
delete the word ``significantly'' from the list of extraordinary
circumstances. As revised, paragraph 304 provides for using the
guidance in Appendix A to assess the potential for significant impacts
in determining whether an action that is normally categorically
excluded requires an EA or EIS. As to ``candidate species,'' the
commenter is correct that the ESA does not afford protection for such
species. The candidate list is maintained to provide, among other
things, advance knowledge of potential listing that could affect
decisions of environmental planners and developers. A candidate species
is one for which USFWS has on file sufficient information on biological
vulnerability and threats to support a proposal to list as endangered
or threatened but for which preparation and publication of a proposal
is precluded by higher priority listing actions. The USFWS encourages
state and Federal agencies to give consideration to these species in
environmental planning. Based on the FAA's experience, this is an area
where exercising our discretion to exceed minimum requirements is cost-
beneficial. Considering candidate species in the extraordinary
circumstance factors enables FAA environmental planners and airport
sponsors to assess potential impacts and adopt appropriate mitigation
measures to alleviate threats. This approach may remove the need for
USFWS to list the species. This approach also streamlines the
environmental review process. It forestalls any requirement after the
EA and FONSI or final EIS is issued to consider formal listing as new
information requiring supplemental environmental documentation.
Concerning adding a reference to Tribes in paragraph 304, a
commenter believes this obviously is a significant change to the level
of environmental analysis required of the agency or applicant. The
commenter, an association, believes that this additional burden should
not be thrust on private parties, in particular, without some
determination that the Tribal concerns or Tribal laws at issue are
reasonable grounds for extending the analysis. The commenter recommends
that the revised order should indicate that the appropriate FAA program
office ensure that a reasonable basis exists for extending the
environmental requirements. FAA's response: These references to Tribes
in paragraphs 304c, g, h, i, and j, are consistent with the intent of
NEPA, as implemented by the CEQ regulations. See, e.g. 40 CFR
1502.16(c) (requiring Federal agencies to consider possible conflicts
between the proposed action and the objectives of Federal, regional,
state, local (and in the case of a reservation, Tribe) land use plans,
policies and controls for the area concerned). They modernize the
extraordinary circumstance factors in 1050.1E to reflect the legal
status of Tribes under recent federal environmental laws and executive
and departmental orders. Under the Clean Air and Water Acts, Congress
has determined that Tribes may have the competence and administrative
capabilities to set air and water quality standards. Just as it does
for the States, the U.S. EPA delegates to Tribes under
[[Page 33794]]
existing regulatory programs when the specific Tribe has demonstrated
its ability to handle duties under either of these two Acts. The U.S.
EPA steps in only when necessary to ensure that statutory standards are
met. See also, Secretary of Interior and Commerce Secretarial Order
``American Indian Tribal Rights, Federal-Tribal Trust Responsibility
and the Endangered Species Act'' dated June 5, 1994 (Defining the
government-to-government relationship to require, among other things,
that both Departments consult with, and seek the participation of,
affected Tribes to the maximum extent practicable in any action under
the Endangered Species Act.) The commenter is not correct in believing
that adding these references to the extraordinary circumstances factors
changes the level of required environmental analysis. The underlying
factors are to be considered along with the potential for significant
impacts in determining whether a proposed action that normally
qualifies for categorical exclusion warrants an EA or EIS. The
standards for delegation to Tribes on a case-by-case basis under the
Clean Air and Water Acts provide the assurance desired by the commenter
for subparagraphs g and h. With respect to the remaining subparagraphs,
we see no legal basis for presuming that Tribal concerns and laws are
any less valid than their State and local counterparts.
Regarding the removal from the characteristics for extraordinary
circumstances those actions that are like to be highly controversial
with respect to the availability of adequate relocation housing
(paragraph 304), one commenter supported the deletion. However, another
commenter opposed the deletion citing that few such cases do not
provide sufficient justification. FAA's response: In FAA's experience,
this circumstance is accompanied by other extraordinary circumstances,
such as those in paragraphs 304d and k. Therefore, the provision in
1050.1D is, as proposed, deleted in the final 1050.1E.
A commenter notes that the list of impact categories in paragraph
304 and their relationship to extraordinary circumstances is complete
and useful. Paragraph 304i (controversy) has been somewhat clarified
but still remains imprecise. Suggest adding to the second sentence ``*
* * when there is merit for such concern with respect to the potential
environmental impacts of the project under consideration.'' FAA's
response: Both in response to this comment and to the suggestion of the
First Circuit Court of Appeals stated in Save Our Heritage v. FAA, 269
F.3d 49, 61 (1st Cir. 2001), the FAA has defined ``controversial'' and
``highly controversial'' more precisely to reflect applicable case law.
Language similar to that proposed by the commenter has been added to
clarify that the effects of a project are considered highly
controversial when a reasonable disagreement exists over the project's
risks of causing environmental harm. FAA environmental specialists
should consider opposition by federal, state, or local agencies, Native
American Tribes, and a substantial number of those affected by the
action in determining whether or not a reasonable disagreement exists
about a project's risks of causing harm. Opposition to an action, the
effect of which is relatively undisputed, does not qualify as an
extraordinary circumstance.
A commenter notes that paragraph 304f provides for an exception to
the CATEX rule where there are extraordinary circumstances which are
``likely to have a significant impact on noise levels or noise
sensitive areas.'' However, the description of noise sensitive areas in
paragraph 11 seems only to refer to areas within the DNL 65 noise
contour. If this is correct, then the exception would not apply to the
Special Use Airspace situation, at least where there are no 65 DNL
noise contours developed or noise contour studies for that airspace.
FAA's response: Noise sensitive areas are not restricted to the DNL 65
dB contour. Guidance on noise sensitive areas is in Appendix A and has
been expanded to include circumstances beyond the usual community noise
assessment.
A commenter notes that paragraph 304 states that actions, normally
CATEXed, would be subject to an EA, or if significant impacts are
anticipated, an EIS; however, paragraphs 304a-h all contain the word
``significant,'' meaning that in every case an EIS would have to be
prepared. Suggest ``significant'' be deleted in these sections. FAA's
response: In response to this comment and DOI comments, the FAA has
modified paragraph 304 in the final Order to remove the word
``significant,'' clarify how potential effects are weighed in
determining whether there are extraordinary circumstances that warrant
an EA or EIS, and to clarify that either an EA or EIS may be prepared.
Paragraph 304 contemplated the use of the criteria of potential
significance as an initial step and the use of screening tools and
actual data (``if potential impacts are significant'') to determine
whether an EIS was required rather than an EA. For example, the FAA has
a screening tool known as the area equivalent method for determining
whether a proposal is likely to cause a 1.5 DNL dB or greater increase
in the 65 DNL dB contour. Although the FAA does not agree that
paragraph 304 had the effect of requiring an EIS, based on
extraordinary circumstances, for every action that is normally CATEXed,
we have revised the paragraph in an abundance of caution to minimize
the potential for confusion.
Beginning Paragraph 305 Comments. The DOI comments that if
documentation is optional, how will potentially affected parties know
if and how the FAA has considered their interests in making its
determinations. We believe that some level of documentation is
warranted in all but the most benign cases. FAA's response: Some level
of documentation is prepared in most cases. Paragraph 305 refers to
preparation of documents for the administrative record beyond those
generated in the normal course of business. Like other federal
agencies, during the course of developing its own projects or approving
federal actions requested by applicants to support their projects, the
FAA typically documents the basis for its environmental determinations.
As this is the case, the CEQ discourages documentation for categorical
exclusions. As explained in its Guidance Regarding NEPA Regulations,
(48 FR 34263, July 22, 1983), ``* * * the Council discourages
procedures that would require the preparation of additional paperwork
to document an activity that has been categorically excluded.''
The Illinois DOT comments that within all categories of actions
that qualify for a CATEX, an action can sometimes require an EA or EIS
if there are extraordinary circumstances. This paragraph notes that
there may be occasions in which FAA even decides to assemble
documentation to support a decision to proceed with a CATEX. However it
does not describe any procedures for public notice of CATEX
determinations. Without some method to announce decisions about CATEX's
(including monthly mailings, newspaper announcements, posting of Web
sites, etc.), there is no way for anyone outside FAA to raise the
concern that perhaps an extraordinary circumstance exists for which FAA
is not aware. Some of the items on the list of CATEX's that are just
the sort of things for which an outsider's perspective may be needed to
determine whether extraordinary circumstances exist. Specifically, the
issuance of the National Plan for Integrated Airport Systems, which
presumably includes additions and deletions from the NPIAS, the
issuance of advisory circulars (such
[[Page 33795]]
as the recent advisory on location of runways near hazardous wildlife)
and the establishment of new or revised air traffic control procedures
over 3,000 feet AGL are all actions for which FAA may be unable to
predict the impacts of its decisions. There should be some procedure
for publication in either electronic or print format of proposed
decisions to issue CATEX's for these actions so that interested
citizens can comment on the determination that no extraordinary
circumstances exist. FAA's response: CEQ regulations do not require
documentation or public notice for CATEX's. CATEX's have been created
to alleviate the administrative burden on Federal agencies. The
suggested procedure for each and every action subject to a CATEX would
be contrary to the intent of NEPA (see 40 CFR 1500.4(p); 1500.5(k) and
1508.4). For example, the NPIAS is a planning document. The FAA issues
advisory circulars provide guidelines and approved means of compliance
with standards for airport design and operation. Neither is the type of
action that normally has the potential to significantly impact the
environment. As explained in detail above, under Issues of Special
Interest, Noise, the FAA conducted a special study to determine whether
the establishment of new or revised air traffic control procedures over
3,000 feet AGL normally has the potential to significantly impact the
environment. This study is available in the FAA Docket. We see no basis
for the statement that the NPIAS, advisory circulars, and the
categorical exclusion for air traffic control procedures over 3,000
feet AGL ``all are actions for which the FAA may be unable to predict
the impacts of its decisions.'' None of these actions normally have
possible effects that are highly uncertain or involve unique or unknown
risks. The FAA has a screening tool for determining whether air traffic
control procedures over 3,000 feet AGL are likely to result in DNL 5 dB
or greater increases in noise in residential areas subject to noise
levels between DNL 60 DB to DNL 45 dB. Based on FAA's experience, such
increases are an indicator of potential adverse community reaction.
This tool aids the FAA in making an informed judgment about the
existence of extraordinary circumstances.
A commenter cautions the FAA to avoid undercutting the benefit of
CATEX's by creating added procedures and circumstances that require
subjective determinations by FAA staff without sufficient guidance. The
extraordinary circumstances listed in 304 already contain a fair degree
of subjectivity. Overlaying additional subjective determinations about
whether documentation is required, and, if so, what type, will not
benefit the process. Reviewers should not be encouraged to exercise
subjective considerations in finding the existence of extraordinary
circumstances or in determining whether documentation is necessary.
Otherwise, unnecessary delays or EA's will be required. Additional
guidance on when the documentation is required for extraordinary
circumstances and what type should be included in the revised order.
FAA's response: Documentation of CATEX's is optional. When
documentation is prepared in addition to that generated in the normal
course of business, it is based on the judgment of the responsible FAA
official. Since documentation of CATEX's is on a case-by-case basis,
and does not impact good faith, objective compliance with NEPA, it is
neither feasible nor necessary to develop standardized guidance.
A commenter believes that this appears to be a major departure from
past FAA policy. Is it correct to infer that no written record
supporting the determination of CATEX's (including review of
extraordinary circumstances) is required? In the absence of explicit
requirements for determining ``no controversy,'' this appears to invite
abuse of the CATEX process. FAA's response: As discussed above in
response to the DOI comment, paragraph 305 is consistent with CEQ
guidance. Paragraph 305 states FAA policy and practice.
A commenter believes that although paragraph 305 states that a
CATEX determination ``shall not be considered deficient if it is not
supported by documentation,'' paragraph 306 states that the ``FAA
official must assure * * * that compliance * * * is reflected in the
determination to apply a CATEX.'' Paragraph 306 further states that
``such compliance * * * should be documented.'' These paragraphs
present a side-by-side contradiction. The entire decisionmaking process
should be documented, including the CATEX. Paragraph 305 might be
revised to state that minimal documentation of the CATEX determination
be prepared. FAA's response: Paragraph 306 has been revised to more
clearly indicate that ``compliance * * * should be documented'' refers
to laws and regulations in addition to NEPA--not to NEPA.
Beginning General Categorical Exclusion Comments. The DOI comments
that, as written, the CATEX's are so broadly worded that most actions
could be interpreted to fall within a CATEX. This is partially offset
by the list of extraordinary circumstances, except that many of those
use the word ``significant,'' which predetermines the NEPA decision and
allows the use of the CATEX in all but the most severe cases. NPS is
concerned that under this wording, most of the airport issues on which
NPS has worked with FAA in recent years may be CATEXed under the
proposed wording. DOI believes that such exclusion would be improper.
FAA's response: The CATEX's are consistent with CEQ regulations. We are
uncertain about the ``airport issues'' to which NPS refers, but major
airport actions having the potential to affect NPS resources (i.e.,
runway or major runway construction, new airports) are not listed as
CATEX's, so FAA cannot CATEX them. For these, FAA requires an EA or
EIS. See response to comment regarding ``Extraordinary Circumstances''
Under ``Comments on General Subject Matter'' above.
Three commenters submitted identical comments to the effect that
the proposed order contains numerous CATEX's that are overly broad,
vague and improperly discretionary. Examples of these are CATEX's which
are expressed in terms of ``substantial'' increase or ``significant''
increase in environmental impacts. The commenters believe these revised
CATEX's fail to contain any adequate standards for determining the
extent of the exclusion. Rather, the language is unacceptably vague and
provides improperly broad discretion to FAA managers to classify
actions as CATEX's which do not warrant it. The adoption of improper
CATEX's will undermine the long term planning process, eliminate public
participation and comment which is the goal of NEPA, and must
ultimately be adjudged arbitrary and capricious in their present form.
FAA's response: As to use of the word ``significant,'' see the Response
to Comments on General Subject Matter, Extraordinary Circumstances. The
CATEX's in question are existing CATEX's that the FAA promulgated in
earlier versions of Order 1050.1. The FAA has more than two decades of
experience with the CATEX's in question and has far more experience
with the actions identified in those CATEX's. The FAA believes that,
given the nature of the actions involved, and the FAA's judgment that
has evolved through years of experience with the actions, the public
interest is well served by these existing CATEX's. The FAA would much
rather see the efforts
[[Page 33796]]
of the project team directed to examining the real environmental issues
listed extraordinary circumstances (paragraph 304) rather than focusing
attention on whether the proposed action triggers an arbitrary (but
qualitative) significance criterion or limitation built into the CATEX.
Two commenters asked that a cumulative impact analysis be made on
each and every CATEX and until this procedure is completed for public
comment as stipulated under NEPA, all CATEX's be deleted from the final
order. FAA's response: The FAA establishes CATEX's as provided for in
CEQ regulations and has thoroughly reviewed its CATEX guidance and list
with CEQ.
A commenter believes that airports historically tend to undertake
many smaller insignificant projects such as runway, taxiway, apron, and
ramp improvements and extensions claiming CATEX's in order to
circumvent NEPA compliance. Taken together they more often than not
result in significant cumulative environmental impacts. That is true
also of accessory on-site structures, construction of facilities,
buildings, parking areas, etc. The commenter contends that AIP grants
are currently being used at the local airport (Reno, NV) for an ongoing
series of these types of projects without environmental analysis, while
significant cumulative impacts have been realized--most critically,
noise. Said airport prepared three separate EA's in three consecutive
years for the implicit purpose of avoiding a full-blown EIS. The
commenter contends that this loophole is consistently used by airports
and the FAA to circumvent public participation in quality of life
issues. FAA's response: Order 1050.1E includes guidance on the
consideration of cumulative impacts, as well as on independent utility
of projects and segmentation. Projects that have independent utility
may be categorically excluded or evaluated in separate NEPA documents
provided that reasonably foreseeable cumulative impacts are properly
assessed and disclosed. Also, in determining if extraordinary
circumstances apply to a project, FAA must often contact or consult the
public to complete the regulatory process associated with the resource
that is the focus of a potential extraordinary circumstance (i.e.,
historic property).
A commenter believes that the CATEX list is inadequate and
incomplete. Unless the CATEX's currently contained in the appendices
are incorporated into Chapter 3 in their entirety, this effort to
streamline will only result in added confusion, uncertainty and
controversy among FAA officials and the private parties impacted by the
order. FAA's response: All relevant and applicable CATEX's from Chapter
3 of Order 1050.1D, Appendixes 1-6 of Order 1050.1D and Chapter 3 of
Order 5050.4A have been included in Chapter 3 of final Order 1050.1E.
One commenter believes the proposed order's CATEX's would simplify
the approval of many projects that are currently closely scrutinized,
shifting more of the burden to the communities surrounding airports,
instead of enacting more stringent measures to mitigate (maintain or
even decrease) the level of aviation impact on these communities. The
commenter believes this is not an equitable proposal, therefore, it
needs to be rethought, amended to achieve a fair balance, and then
resubmitted. FAA's response: Federal agencies are allowed under CEQ
regulations to identify actions that do not normally have potentially
significant impacts and place them in a CATEX category. The FAA has
thoroughly examined the basis for the five new categories of actions
related to airports. The FAA believes that the environmental review of
proposed actions that are legitimate CATEX's should be simplified. This
is one of FAA's environmental streamlining goals.
A commenter noted that a recurrent theme in the proposed order is
that CATEX's will be granted, provided they: ``do not significantly
increase noise,'' ``do not substantially expand those facilities,''
``do not essentially change existing tracks,'' ``do not have a
significant effect on the human environment,'' etc. However, there is
no definition as to what constitutes a ``significant,'' or
``essential'' etc. change. As currently structured, many elements of
the proposed order are inadequately defined, therefore, prone to
misinterpretation in the absence of clear quantitative thresholds.
FAA's response: As to use of the word ``significant,'' see the Response
to Comments on General Subject Matter, Extraordinary Circumstances. The
CATEX's in question are existing CATEX's that the FAA promulgated in
earlier versions of Order 1050.1. The FAA has more than two decades of
experience with the CATEX's in question and has far more experience
with the actions identified in those CATEX's. The FAA believes that,
given the nature of the actions involved, and the FAA's judgment that
has evolved through years of experience with the actions, the public
interest is well served by these existing CATEX's. The FAA would much
rather see the efforts of the project team directed to examining the
real environmental issues listed extraordinary circumstances (paragraph
304) rather than focusing attention on whether the proposed action
triggers an arbitrary (but qualitative) significance criterion or
limitation built into the CATEX.
The commenter recommended that a new figure number be given to each
subcategory of CATEX in proposed Figure 3-2 (e.g., 3-2, 3-3, 3-4,
etc.).
That way, each CATEX can be identified by a specific number
reference. As it is now, number references such as 4 could be
referring to CATEX's in other subcategories. FAA's response: We concur.
Figure 3-2 was replaced in the final Order with paragraphs 307-312 in
order to simplify the citation of a particular categorical exclusion,
present the lists in a logical manner, and identify each categorical
exclusion with a unique reference.
Beginning Paragraph 307 Comments. Regarding the CATEX of 307a, a
commenter suggested changing ``emergency measures'' to ``measures to
respond to emergency situations'' in order to clearly state the intent
of the CATEX. FAA's response: We concur and have amended the CATEX
accordingly in the final Order. The similar CATEX under paragraph 311j
was also amended in the final Order to incorporate the commenter's
suggestion. Further, a condition was added to restrict the
applicability of the CATEX to instances where there are no reasonably
foreseeable long-term adverse effects. This restriction was added in
consideration of the requirements of 40 CFR 1506.11 and paragraph 302
of this Order which provide alternative NEPA compliance procedures for
actions taken to respond to emergency situations that significantly
affect the environment.
Regarding the CATEX of paragraph 307c, a commenter concluded that
any conveyance of land for airport purposes is almost by definition of
environmental concern and should NOT be CATEXed. FAA's response: This
CATEX applies to the conveyance of land simply to transfer ownership
where there is no reasonably foreseeable change in use that has the
potential to significantly impact the environment. The CATEX has been
revised to clarify that its use is limited to circumstances where the
proposed use of the land is either unchanged or for a use that is
CATEXed. As revised, the CATEX of paragraph 307c is within the scope of
the existing CATEX in Airport Environmental Handbook, FAA Order
5050.4A, paragraph 34a.
[[Page 33797]]
Regarding the CATEX of paragraph 307c, a commenter disagrees with
this CATEX. The commenter contends that there is an AIP project
currently, where residential property was acquired under the guise of
noise, then conveyed to Regional Transportation to construct a major
arterial roadway to benefit the airport. An Air Cargo Complex dependent
on the roadway to carry significant truck traffic was an unmentioned
part of the project. The commenter believes that granting CATEX's
rather than preparing environmental analysis deprives the public
opportunity to defend their quality of life. FAA's response: In use and
development of CATEX's, FAA follows procedures set forth in 40 CFR
1508.4 and 1507.3. The Responsible FAA official must determine if
extraordinary circumstances exist prior to applying a CATEX and these
determinations often involve public input. We are unable to determine
the relevance of the scenario described by the commenter as it appears
to involve the conveyance of airport land and a release from federal
obligations under 307b, not a conveyance of Federally-owned land. The
nature of the AIP project is not clear. Nor is it clear whether the use
of the land for a roadway project was reasonably foreseeable when the
airport sponsor requested the release. It is also not clear whether
federal action was involved in construction of the roadway project by
``Regional Transportation.''
The DOI believes that the CATEX of paragraph 307c needs a qualifier
that excepts airports in or near national park units from the CATEX.
The DOI also recommends adding the word ``existing'' to read `` * * *
operating environment of the existing airport.'' Land conveyances for
new airports should not be CATEXed. FAA's response: This CATEX has been
revised to clarify limitations on its availability, as described above.
It was not intended to apply to the conveyance of land on which to
build an entire new airport or to a conveyance of land on which to
build airport development that is not also normally subject to
categorical exclusion. As qualified, the conveyance of land alone has
no impact on the environment regardless of the location of an airport.
Regarding the CATEX's of paragraphs 307e and c, a commenter
supports the inclusion of NOTAMS and FAA actions relating to conveyance
of land that do not substantially change the operating environment.
FAA's response: Comment noted.
Regarding the paragraph of 307d, the CATEX was revised in the final
Order 1050.1E to make clear that the CATEX addresses Federal funding
and FAA's approval to amend the airport layout plan to depict Part 150
noise compatibility projects.
Regarding the CATEX of paragraph 307f, a commenter concluded that
the appropriateness of excluding mandatory actions required under
treaties from NEPA analysis is questionable. CATEX's are for actions
that normally do not result in significant impacts, based on the
inherent characteristics of the action. An action that is mandatory
under a treaty may well result in significant environmental impacts.
The mandatory nature of the action relates to the discretion of the FAA
in implementing the action, not the resulting environmental impacts.
Even if implementation of the action is mandatory, there may be
opportunity to reduce impacts on the environment through proper timing
or staging of the action or use of other mitigation measures identified
by a NEPA analysis. Another commenter believes that treaties with
international organizations, governments and/or authorities must not
overrule U.S. law that is designed to protect the health, safety and
environment of its citizens. Other international entities could be more
concerned about commerce, over human health and our environment. FAA's
response: The FAA believes that the phrase at the end of the
categorical exclusion, ``except when the United States has discretion
over implementation of such requirements'' addresses the concern raised
by the commenter. ``Mandatory action'' refers to circumstances in which
the federal agency has no choice about whether or how to accomplish the
action, including timing, staging or mitigating impacts during
implementation. The NEPA requires Federal agencies to take
environmental concerns into consideration when making decisions over
actions that are potentially subject to Federal control and
responsibility. See 40 CFR 1508.18. Conversely, the federal courts have
recognized that where no choice is involved such that an action is
ministerial, no NEPA analysis is required. No purpose would be served
in completing such analysis where the Federal agency has no discretion
to take environmental impacts into account in implementing the action.
See, City of New York v. Slater, 262 F.3d 169 (2nd Cir. 2001). For
example, the 1995 bilateral agreement phasing in an ``Open
Transborder'' regime between the U.S. and Canada required the FAA to
allocate slots to Canadian carriers under the slot program for Chicago
O'Hare International Airport (14 CFR part 93, subpart K). During the
rulemaking to amend the slot program at O'Hare Airport the FAA realized
that mandatory actions taken by the State Department pursuant to
treaties or international agreements qualify for exemption from NEPA
under State Department regulations implementing the NEPA, 22 CFR part
161. This categorical exclusion is intended to afford the same
treatment to such actions when taken by the FAA. This categorical
exclusion stems from the NEPA, not from application of the
international treaty or agreement to override U.S. law. As a result of
the Wendell H. Ford Aviation Investment Reform Act of 2000, there
should be fewer occasions to use this categorical exclusion. Reagan
National Airport is now the only airport left in the high density
traffic airport program.
The FAA amended the CATEX of paragraph 307h to include the
indicated text: ``Approval of an airport sponsor's request solely to
impose Passenger Facility Charges (PFC) or approval to impose and use
Passenger Facility Charges for planning studies''. Federal funding of a
planning study, including those studies necessary to comply with NEPA,
whether under the airports grants program or the state block grants
program (see CATEX paragraph 307o), or under the PFC program, does not
imply Federal commitment to execution of the project or action under
study. FAA approval of such projects or actions is independent of the
planning study approval. Concerning the PFC program, since, for the
purposes of compliance with NEPA, approval to impose and use PFC's for
planning purposes is functionally equivalent to similar approvals for
planning studies under the airport grants program or the state block
grants program, and since a CATEX has been found to be appropriate for
planning studies under the airport grants program and the state block
grants program, it may be concluded that the planning studies approved
under the PFC program can be similarly CATEX'ed from further NEPA
review. In fact, funds are often co-mingled for such studies leading to
the conclusion that the source of funding is irrelevant to NEPA
compliance issues. It is further concluded that the issue is better
addressed by amending the CATEX under paragraph 307h rather than
amending paragraph 307o. Accordingly, the text at issue is adopted
under paragraph 307h in the final Order 1050.1E.
Concerning the CATEX in paragraph 307o, the Illinois DOT commented
that
[[Page 33798]]
within the AIP, certain states, including Illinois, are allowed to
administer the federal program under the State Block Grant Program.
Each state has a separate block grant agreement with the FAA that
identifies the state's role and responsibilities. Each year IDOT
receives a single grant (or multiple grants) for the program based on
an application that includes a list of airport development projects.
The commenter notes that the FAA uses a CATEX on the issuance of the
state block grant, which excludes the need for NEPA review of projects
contained in the block grant. In practical terms this means that IDOT
is required to produce and approve the environmental documents that FAA
would have approved if there were no state block grant. The Illinois
DOT consults with FAA but does not act on its behalf. The commenter
states that the proposed order does not make any reference to the
peculiarities of the procedures to carry out NEPA under the special
state/FAA relationship for block grant states. Additionally, FAA's NEPA
oversight after the block grant is issued is not spelled out in the
proposed order. The FAA cannot delegate NEPA to a state so the state
cannot act in FAA's name. Environmental action approvals prepared by a
block grant state are signed only after intense scrutiny by FAA, but
they are the state's own decisions. The scrutiny has reached a point
where the state cannot sign the approval unless FAA agrees. While
Illinois DOT has successfully worked with FAA to implement the State
Block Grant Program for some years, it urges that this ``gray area'' of
interagency operation be clarified in the new order. The Illinois DOT
recommends that it address any special procedural actions used for the
block grants, especially since this order is intended to reflect
numerous changes since the last update in the 1980's. FAA's response:
This order incorporates categorical exclusions for the FAA's airport
improvement program, however the detailed environmental policies and
procedures for administration of the airport program will remain in its
separate order, FAA Order 5050.4, the Airport Environmental Handbook.
The FAA Office of Airports, in updating Order 5050.4, intends to
include more detailed information on the State Block Grant Program that
will address your concerns. Order 5050.4B will be consistent with Order
1050.1E, but will include more detailed guidance specific to airport
environmental reviews.
The FAA found that the proposed CATEX of paragraph 307o did not
carry forward the condition ``which do not imply a project commitment''
for those planning grants as originally provided in the existing CATEX
under Order 1050.1D, Chapter 3, paragraph 31a(3). Proposed paragraph
307o, which was a combination of existing CATEX's under 1050.1D and
Order 5050.4a, could be misinterpreted to imply that the original
intent of the existing CATEX's was not carried forward into Order
1050.1E. Accordingly, the final Order 1050.1E adopts the original CATEX
from Order 1050.1D and adds to paragraph 307o the existing CATEX from
Order 5050.4a as a ``such as'' provision of paragraph 307o. Thus, as
intended, the original intent of the existing CATEX's are carried
forward in the final Order 1050.1E.
Beginning Paragraph 308 Comments. Regarding the CATEX of paragraph
308c, a commenter strongly recommended that issuances of certificates
and related actions under the Airport Certification Program be
eliminated from CATEX's. The commenter reported a situation of an air
carrier, Shuttle America, being certified without an environmental
review--a major change and disruption to the community. FAA's response:
The commenter has confused airport certification for safety with the
issuance of aircraft operations specifications. The foregoing are
distinctly separate and independent programs within the FAA. FAA
believes the CATEX for the Airport Certification Program is
appropriate. It is not a newly-proposed CATEX; it has been in existence
for years. Regarding the issuance of air carrier certificates and
operating specifications, as noted in response to paragraph 307
comments, the FAA as a matter of policy applies NEPA to FAA approval of
air carrier operations specifications and amendments to specifications.
The comment overlooks the environmental review that the FAA conducted
in deciding to approve Shuttle America's application to initiate
service at, and increase service from Hansom Field to other airports.
See, Save Our Heritage v. FAA, 269 F.3d 49 (1st Cir. 2001). The court
in that case upheld the FAA's reasoned determination of de minimis
environmental effects from ten or so flights a day, against a backdrop
of nearly 100,000 flights a year. Given the FAA's policy of reviewing
the proposed FAA actions that most directly authorize air carriers to
change service at airports, the normal categorical exclusion of other
ministerial, safety-based related FAA actions is justified. Airports
are certificated to serve air carriers based upon safety standards and
requirements such as crash, fire, and rescue equipment and security
programs in 14 CFR part 139. Although airport and air carrier
certification are prerequisites, it is not normally clear that new air
carrier service will result. Although not required, as a matter of
policy the FAA has proposed to replace the statement that the
categorical exclusion for airport certification is not subject to
review for extraordinary circumstances with the statement that there is
no reasonable expectation of a change in use that would cause
environmental impacts. See paragraph 303d. This final Order has been
revised further to affirmatively state in paragraph 308 that the
categorical exclusion for airport certification is subject to review
for extraordinary circumstances.
Regarding the CATEX of paragraph 308c, a commenter noted that in
September 1999, Massport issued a certificate for commercial flights to
Shuttle America, using Hanscom Field. Massport had promised repeatedly,
in writing, since 1978 that Hanscom Field would remain a GA airport.
Massport took this action with no review by the Advisory Board that had
been chartered by the State to review Hanscom changes. Massport is
being sued by the surrounding towns for this action. A CATEX for
Issuance of Certificates gives an airport owner inappropriate control
of the destiny of a very large area, again, for the financial benefit
of a very small number of people (in this case, a group of investors in
Shuttle America). FAA's response: This categorical exclusion would
apply to certificates issued by the FAA under federal law, not
certificates issued by Massport as proprietor of the airport under
state law.
Regarding the CATEX of paragraph 308d, a commenter believes that
the CATEX restricts and limits the current exclusion provided in
Appendix 4, paragraph 3e in 1050.1D which clearly provides that
preparation of an EA is normally required for ``Approval of operations
specifications authorizing an operator to use turbojet airplanes for
scheduled passenger service into an airport when that airport has not
previously been serviced by any scheduled passenger turbojet
airplanes.'' FAA's response: Although it is correct that an EA is
normally required for scheduled turbojet passenger service into an
airport when that airport has not been previously been serviced by any
scheduled passenger turbojet airplanes, Order 1050.1D, Appendix 4,
paragraph 3e does not preclude the possibility of an EA being required
when an airport already had scheduled passenger turbojet airplanes.
Further, the commenter is incorrect in the
[[Page 33799]]
assumption that the situation identified in his comment is a
``restriction'' on the applicability of the CATEX in question. In Order
1050.1D, the appendixes provide separate paragraphs for those actions
which normally require an EA and those actions that are normally
CATEXed. In Order 1050.1E, the provisions of the appendixes of Order
1050.1D were separated. Those actions which normally require an EA are
now consolidated and listed under paragraph 401 in final Order 1050.1E.
The specific action identified by the commenter is now listed as
paragraph 401(l). CATEX's from Order 1050.1D (along with those from
Order 5050.4A) are consolidated and are now listed in Chapter 3 of
Order 1050.1E. The provisions of Appendix 4 of Order 1050.1D are, with
minor editorial changes, carried forward unchanged into final Order
1050.1E as previously described.
Regarding the CATEX of paragraph 308d, three commenters believe the
CATEX fails to define what is meant by the term ``substantially'' or
``operating environment of the airport.'' Thus, it is impossible to
ascertain to what activities the proposed CATEX would pertain, and the
proposed CATEX is thereby rendered vague and ambiguous, implausible and
unenforceable as arbitrary and capricious. FAA's response: This CATEX
is an existing CATEX originally issued approximately in its present
form in Order 1050.1B (June 16, 1977). The FAA is not proposing to
alter the intent or scope of this existing CATEX in Order 1050.1E. The
text string ``do not significantly change the operating environment of
the airport'' means that the proposed change in the (aircraft
operations) level of service or type of aircraft operation is minor and
does not have the potential to significantly increase noise over noise
sensitive areas or to result in other significant impacts. A sentence
to this effect has been added to this CATEX in the final Order. See,
Sierra Club v. Dole, 753 F.2d 120 (DC Cir. 1985), Save Our Heritage v.
FAA 269 F.3d 49, 56 (1st Cir. 2001). See also paragraph 401(l) of Order
1050.1E which further delineates the meaning of the text string in
question by including examples of operating specifications which may
significantly change the operating environment of an airport and which,
consequently, require the preparation of an EA. The issue of
``significance,'' and significance thresholds where available, are
discussed for each environmental impact category in Appendix A of Order
1050.1E. For example, a significant increase in noise is defined as an
increase of DNL 1.5 dB or more at or above DNL 65 dB noise exposure
over a noise sensitive area (see section 14.3 of Appendix A).
Beginning Paragraph 309 Comments. Regarding the CATEX's of
paragraphs 309b, c, d, and g, the DOI believes that these CATEX's need
qualifiers that except airports in or near national park units. FAA's
response: The extraordinary circumstances listed in paragraph 304
include provisions for section 4(f) lands, which include public parks
(e.g., National Parks) and recreational lands, wildlife and waterfowl
refuges, and historic sites. However, geographic proximity alone,
without resulting effects that trigger extraordinary circumstances,
does not warrant preparation of an EA or EIS for actions that normally
qualify for a CATEX.
Regarding the CATEX of paragraph 309a, the DOI recommends that
after ``equipment,'' add the following: ``within the perimeter of an
airport or launch facility, or in a location currently used for similar
facilities or equipment.'' FAA's response: We concur and the
recommendation, with a minor change, is adopted.
Regarding the CATEX of paragraph 309b, the DOI recommends that at
the end, add the following: ``provided the action will not create light
emissions or visual impacts visible outside of the airport from areas
such as wilderness, national park system units, or similar light-
sensitive areas near the airport.'' FAA's response: The FAA believes
that national parks, wilderness areas, and other areas are adequately
protected from the inappropriate use of a CATEX by the guidance
governing extraordinary circumstances.
Regarding the CATEX of paragraph 309b, the DOI notes that there
appears to be a conflict with paragraph 401j. Conflict would disappear
if ``which are not on airport property'' were added to 401j. FAA's
response: We concur. The recommendation was adopted and paragraph 401j
has been modified accordingly in the final Order.
Regarding the CATEX's of paragraphs 309b and c, a commenter
questions most of the provisions of this CATEX, believing any changes
in major lighting systems, approach beacons, and navigational systems
affect both the appearance of the airport and flight practices, and
they should not be CATEXed. The commenter believes that building,
strengthening, extending or resurfacing of existing runways and ramps
can change the airport capacity to handle flights, and may open up the
airport to additional operations. Likewise, construction of accessory
structures such as storage buildings, garages or small parking areas
affect future airport activities and its capacity, and they should not
be CATEXed. FAA's response: The scenarios described by the commenter do
not normally occur and would constitute an extraordinary circumstance
for these CATEX's. These items remain CATEXed in Order 1050.1E, subject
to extraordinary circumstances.
Regarding the CATEX of paragraph 309c, the FAA added a
parenthetical note to indicate that the establishment or relocation of
Instrument Landing Systems are not included in the CATEX. Also, text
relating to upgrading facilities and equipment to improve operational
efficiency, which was misplaced under paragraph 310s, was relocated to
the end of the fourth sentence of paragraph 309c in the final Order.
Regarding the CATEX of paragraph 309d, a commenter noted that this
CATEX does not appear to be in keeping with FAA practice. In recent
years, the FAA has prepared EA's for many proposed radar facilities
(e.g. terminal Doppler weather radars, airport surveillance radars,
precision runway monitors, and next generation weather radars) located
at or near airports. FAA's response: Paragraph 309d only applies to
facilities and equipment that would be located on airports, or FAA or
launch facilities. Contrary to the commenter's assertion, this CATEX is
routinely used by the FAA if an analysis of extraordinary circumstances
determines that significant impacts would not occur. As a current
example of the FAA's routine use of this CATEX, FAA has identified the
preferred sites for approximately 30 on-airport ASR-11 radar systems.
Following an analysis of extraordinary circumstances, 23 of the 30 on-
airport preferred sites qualify for this CATEX and CATEX's have been
applied at these 23 locations. The FAA prepares EA/FONSI's when an
analysis of extraordinary circumstances determines that potentially
significant impacts may occur, or the facility or equipment would not
be located on an airport or other FAA or launch facility. The commenter
also noted that ANSI/IEEE use the word ``standards,'' not
``guidelines.'' FAA's response: We concur and the appropriate change
was adopted.
Regarding the CATEX of paragraph 309d, two commenters support this
CATEX. One commenter notes that the listed equipment has minimal
environmental impact, and a CATEX provides a valuable tool for the
timely installation of equipment such as the Precision Runway Monitor
(PRM). The other commenter supports the inclusion
[[Page 33800]]
of approach lighting systems. FAA's response: Comments noted.
Regarding the CATEX's of paragraphs 309b, 309c and 309d, the FAA
found that the qualifier ``within the perimeter of an airport'' needed
to be better delineated. Accordingly, the text in question was replaced
with ``on designated airport or FAA property or launch facility.'' In
this context, ``on designated airport property'' means previously
acquired real property used for, or intended to be used for, airport
purposes as provided under 14 CFR Subchapter I, Airports, of the
Federal Aviation Regulations. ``On FAA property'' means real property
previously acquired by the FAA for purposes other than the proposed
action. ``Launch facility'' means an existing facility as defined in
paragraph 11 of Order 1050.1E.
Regarding the CATEX of paragraph 309e, the FAA added mobile Airport
Traffic Control Towers and Mobile Emergency Radar Facilities to the
examples of miscellaneous airports facilities and equipment that are
included under the CATEX. These facilities are mobile and designed for
temporary use in place of damaged or otherwise out of commission
facilities already in use on an airport. A mobile Airport Traffic
Control Tower may also be used as a temporary facility in support of an
airshow at small airport lacking a permanent Airport Traffic Control
Tower. These facilities are used in conjunction with other actions that
are CATEXed (see paragraphs 307a, 311j and 312b). The indicated
facilities are included in paragraph 309e in final order 1050.1E.
Beginning Paragraph 310 Comments. Regarding paragraphs 310e, f, g,
h, and r, the DOI believes that these CATEX's need qualifiers that
except airports in or near national park units. FAA's response: As
previously noted, geographic proximity to a national park alone does
not disqualify an action for CATEX. Sensitive environmental resources
within or near an airport would be reviewed pursuant to Order 1050.1E
to determine whether extraordinary circumstances, involving impacts on
resources, require the preparation of an EA or EIS.
Regarding the CATEX of paragraph 310d, three commenters believe
that this CATEX would immunize from environmental analysis FAA
assistance to, planning for, and installation of de-icing facilities
which purport to have obtained requisite water quality permits. The
commenters believe that this totally begs the question of, among other
impacts, the air quality effects of de-icing facilities. In other
words, de-icing facilities using toxic chemicals ethylene and propylene
glycol would be exempt from review because, arguably their water
quality impacts had been resolved, leaving unresolved numerous
additional potential impacts. The proposed order is devoid of evidence
to support a CATEX where important environmental impacts are both
probably present and unexplored. FAA's response: De-icing facilities
have been reviewed and have not been found to produce the significant
impacts the commenter is concerned about. Our review of the literature
on glycol-based deicing fluids indicates glycol atomizes and mixes with
air in the immediate and adjacent vicinities of the aircraft being
treated with these fluids. The resulting dilution protects workers
beyond the immediate area where the deicing occurs. As a result, a
person beyond an airport's airside operations is highly unlikely to be
exposed to airborne glycol concentrations causing harm to one's health.
Water quality impacts are the known circumstance that could
extraordinarily preclude a CATEX. However, other extraordinary
circumstances would also be reviewed by the FAA responsible official.
Regarding the CATEX of paragraph 310d, a commenter asks for
justification for the addition of installation of deicing and anti-
icing facilities with NPDES permits or similar permits. The commenters
question whether this is a new policy. Another commenter noted that the
proposed change must not CATEX federal assistance, ALP approval, or FAA
installation of deicing/anti-icing facilities just because they comply
with NPDES since many state permits are of minimum quality. FAA's
response: The CATEX is based on the determination that de-icing/anti-
icing facilities meeting NPDES permit requirements would not
significantly impact water quality--the primary impact of concern.
State water quality agencies specify the volumes of de-icing agents
that an airport may discharge to receiving waters based on the
receiving water's ability to decompose, biologically and chemically,
the de-icing agents. Consequently, concentrations of dissolved oxygen
and de-icing agent components in receiving waters remain at levels that
are not harmful to aquatic life.
Regarding the CATEX of paragraphs 310f and h, a commenter suggests
that the terms ``limited'' and ``small'' be defined or examples of
excluded projects included in final guidance materials. Several other
commenters requests that the terms ``substantially'' and ``limited
expansion'' be defined so that the potential to lead to expanded
operations would not be ignored. For example, would adding 10 airline
gates when there are already 120 gates ``substantially expand'' the
airport? Does FAA have a ``rule of thumb'' that applies to interpret
``substantially expand'' in the context of passenger gates and cargo
warehouses? FAA's response: The responsible FAA official determines
``substantially'' on a case-by-case basis in conjunction with a
thorough examination of extraordinary circumstances. The Office of
Airports (ARP) approves construction or expansion of passenger handling
and cargo handling facilities. It finances only the public use areas of
passenger handling facilities. As written, categorical exclusion 307h
would apply only to passenger or cargo construction or expansion having
no potential to significantly affect air quality, noise, or other
environmental impacts. As a result, minor passenger or cargo facility
construction or expansion would not normally cause significant
environmental impacts. However, FAA recognizes small changes in these
facilities could cause significant environmental changes. For example,
they could adversely affect an endangered species. As a result, FAA's
categorical exclusion analysis requires that the responsible FAA
official conduct compulsory reviews of extraordinary circumstances.
This ensures no minor expansion causes significant environmental
effects. If such effects would occur, FAA will not categorically
exclude any passenger or cargo handling facility causing those effects.
As a result, the proposed categorical exclusion revision would meet
CEQ's categorical exclusion definition because it would not normally
cause significant environmental impacts. Note: ``Substantial
expansion'' means actions increasing the numbers of passengers,
vehicular traffic, or aircraft operations to levels that can cause
changes in air quality or noise requiring further analyses. For air
quality impact screening, refer to pg. 20 of the FAA and U.S. Air
Force's ``Air Quality Procedures for Civilian Airports and Air Force
Bases,'' (April 1997). For noise impact screening, refer to pg. 30, of
FAA Order 5050.4A, ``Airports Environmental Handbook,'' para.
47e(1)(c)2. Whether or not expansion falls within a limited or
substantial classification relates to the change in both size and
service capabilities at specific locations. These items have been
subject to CATEX's for years, and the appropriate application of
extraordinary circumstances combined
[[Page 33801]]
with technical judgments have identified those expansions that need to
be reviewed with an EA or EIS. The FAA understands the interest in more
detailed, rule-of-thumb guidance and will provide it in FAA Order
5050.4B, the Airport Environmental Handbook. Order 5050.4B will be
consistent with Order 1050.1E, but will deal more specifically with the
environmental review of airport development.
Regarding the CATEX of paragraph 310h, a commenter objects to this
CATEX. The commenter states that any construction of terminal
facilities, passenger handling facilities, cargo buildings at
commercial service airports have potential vehicular traffic impacts,
and by attracting more customers, impact on frequency of commercial
services. The commenter regards such changes to be of critical
environmental significance, and they should not be CATEXed. The
commenter further regards construction of terminal facilities as a sign
of airport expansion. FAA's response: The FAA disagrees with the
commenter's assumption that the construction of airport buildings
necessarily attracts more air passengers. With respect to the
commenter's concern that terminal expansion is a sign of airport
expansion, the CATEX is worded to exclude substantial expansion. This
categorical exclusion would not apply where construction of facilities
is connected to other expansion activities, such as additional runways
or new air carrier service. In addition, extraordinary circumstances
would trigger an EA or EIS, instead of a CATEX, if changes of critical
environmental significance were related to a specific terminal
expansion proposal. Further regarding this CATEX, the FAA has
determined that the scope of this CATEX includes ``T-hangers'' used for
storage/parking of small general aviation aircraft. This determination
is based on EA's conducted for such facilities and consequent findings
of no significant impact.
Regarding the CATEX of paragraph 310k, a commenter suggests a
clarification, as there may be a number of cases where a USACOE
Nationwide Permit would be appropriate for minor projects in wetland
areas that would not require an EA or EIS. Suggest adding this sentence
at the end: ``When the land is delineated as a wetland, FAA will
consult with the U.S. Corps of Engineers (Corps) to determine the
required environmental documentation to meet the standards of the Corp;
if an EA or EIS is not required, FAA will use this CATEX unless other
environmental considerations require an EA or EIS.'' FAA's response:
The FAA concurs and has added a sentence to the effect that minor
dredging and filling of wetlands may qualify under this CATEX if the
action qualifies for a U.S. Army Corps of Engineers nationwide or
regional general permit. The features of interest to the commenter are
essentially built into the CATEX and extraordinary circumstances.
Further, consultation procedures are explicitly addressed in Appendix
A, section 18 on wetlands.
Regarding the CATEX of paragraph 310m, the FAA concluded that the
length of the lease for space in buildings and towers was not a
determining factor in predicting the potential for environmental
impact. Accordingly, the qualifying text ``for a firm-term of one year
or less'' was deleted from the CATEX in the final Order. The qualifying
text was originally included since at that time the FAA only had
authority to execute leases for a maximum of one year. A lease of any
duration that may have an impact on the environment would be captured
under the extraordinary circumstances analysis process.
Regarding the CATEX of paragraph 310p, the CATEX adopted in the
final order was amended by adding restrictions on the application of
the CATEX that reflect concerns about invasive species, landscape
practices that are environmentally damaging and unsustainable, and
attractants to wildlife that are hazardous to aviation as follows:
``New gardening or landscaping, and maintenance of existing landscaping
that do not cause or promote the introduction or spread of invasive
species that would harm the native ecosystem, use landscape practices
that reflect the recommendations in the Guidance for Presidential
Memorandum on Environmentally and Economically Beneficial Landscape
Practices on Federal Landscaped Grounds (60 FR 40837), and do not
attract wildlife that is hazardous to aviation.'' The restriction on
invasive species was added to ensure the application of the CATEX is
consistent with E.O. 13112, ``Invasive Species.'' The restriction for
wildlife hazardous to aviation was added to ensure that such issues are
substantively addressed if present. Also, the CATEX was amended in the
final Order to add the consideration of landscape practices that
reflect the recommendations in the Guidance for Presidential Memorandum
on Environmentally and Economically Beneficial Landscape Practices on
Federal Landscaped Grounds (60 FR 40837). The Presidential Memorandum
is a guidance document developed to assist federal agencies in the
application of environmentally and economically beneficial landscape
practices. The intent is to use landscape practices that can result in
healthier, longer-lived plantings which rely less on pesticides and
fertilizers, minimize water use, require less maintenance, and increase
erosion control. The guidance is fairly general in nature and limited
by the parameter of cost-effectiveness and discretionary site-specific
considerations. It does not advocate replacement of existing
landscapes, unless it is cost-effective to do so. The guidance does not
supersede Federal agency directives, policy, or other guidance relating
to the mission of the agency or to health and safety concerns.
Regarding the CATEX of paragraph 310r, a commenter objects to this
CATEX. The commenter believes that the purchase of 3 or less acres of
land adjacent to an airport changes the potential of the airport to
handle traffic, is of significance to the neighbors of the airport, and
should not be CATEXed. The purchase of 3 acres can represent a large
amount of land in urban and suburban communities. FAA's response: The
CATEX in question involves small tracts of land and associated
easements and rights-of-way. Land purchased for significant airport
expansion is not CATEXed.
Regarding the CATEX of paragraph 310r, a commenter asked if the
easements and rights-of-way mentioned are those that may be required or
those previously existing, or both. FAA's response: Generally, the
CATEX applies to new easements and rights-of-way; however, on occasion
it may apply to those previously existing.
Regarding the CATEX of paragraph 310r, the DOI believes that this
action should not automatically be CATEXed; sometimes it should require
an EA or EIS. FAA's response: The FAA's experience is that acquisition
of small tracts of land and associated easements and rights-of-way do
not individually or cumulatively cause significant impacts. The
acquisition of land does not precipitate any change in the status quo.
By merely accepting title the FAA is not undertaking a project that
changes the character or function of the land. The use of the land for
the proposed new facility would require an EA or EIS. For example, the
acquisition of land and associated restrictive easements for Airport
Surveillance Radar facilities will maintain the type of land use and
the status quo of the airspace. The restrictive easement will prevent
the development of the land and avoid physical impacts to the
environment. This is not the type of change that normally effects the
environment.
[[Page 33802]]
However, if such were the case in any particular instance,
extraordinary circumstances would trigger either an EA or EIS.
Regarding the CATEX of paragraph 310t, a commenter objects to this
CATEX. The commenter contends that commencing or adding to heliport
operations changes the nature of air traffic at the airport. Sometimes,
standard DNL contours may not change, but the perception of the
aviation noise will change if helicopters are included or added. The
phrase ``would not increase noise over noise sensitive areas'' is
unacceptable to the commenter in that it eliminates public input of
which areas are sensitive and under what conditions noise is increased.
Helicopter noise has a different character than airplanes. Helicopters
tend to warm up longer and fly lower. FAA's response: The critical
qualifying factor of the CATEX is that noise would not significantly
increase over noise sensitive areas. The FAA uses quantitative analysis
to determine significant noise increases. The FAA has published
guidance for public review in this Order of the definitions of noise
sensitive areas and its methods of assessing noise. In addition,
through extraordinary circumstances screening, if an action is likely
to be highly controversial on environmental grounds, this action would
not be CATEXed. Appendix A, section 6.2, DOT section 4(f), and section
14.4b, Noise, set forth the applicability of Part 150 land use
guidelines and the standards of significance for noise increases over
residential and traditional recreational land uses. These sections,
together with section 4, Compatible Land Use, also provide special
guidance for areas in units of the national park system and national
wildlife refuges that are of value for their quiet setting, as this is
an evolving area.
Regarding the CATEX of paragraph 310t, a commenter notes that this
presumes someone would know the flight tracks and noise footprint of
helicopters flying in and out of a newly licensed facility, and would
also know where noise sensitive areas are, before being able to CATEX
the proposed activity. In order to be able to fully analyze these
factors, an EA would need to be prepared. This CATEX needs to be
modified or deleted. FAA's response: Because this activity would occur
at an existing airport, the location of noise sensitive areas would be
known. This knowledge would help in determining whether extraordinary
circumstances are present. The CATEX is adopted as proposed.
Regarding the CATEX of paragraph 310t, the DOI recommends that the
word ``significantly'' should be deleted in the phrase ``would not
significantly increase noise over noise sensitive areas.'' FAA's
response: As previously stated in this preamble, CEQ regulations
provide for Federal agencies to CATEX actions that do not
``significantly'' affect the environment (see 40 CFR 1508.4).
Accordingly, the recommendation is not adopted.
Regarding the CATEX of paragraph 310t, a commenter recommended that
after the words ``launch facility,'' remove the word ``that'' and
replace with ``either of which.'' FAA's response: We concur with the
recommendation, and the change is adopted.
Regarding the CATEX of paragraph 310t, three commenters believe
that helicopters represent a unique variety of noise, different than
that attributable to fixed-wing aircraft, and sometimes more onerous,
due partially to the low frequency noise created, as well as to
helicopter's ability to hover in one place for long periods of time.
The commenters believe that CATEX approval of an ALP containing a
heliport--the earliest opportunity to analyze the proposed heliport's
environmental impacts--would give carte blanche to new and even more
intrusive noise impacts than already exist. The purported limitation
contained in the order that a CATEX under this section would only be
granted where the proposed facility would not ``significantly increase
noise over noise sensitive areas'' is no improvement. The commenter
believes that the limitation is so overbroad and vague that virtually
any contemplated project could fit within it. FAA's response: The FAA
believes the qualifier for this CATEX, backed up by historical
experience concerning when significant impacts could potentially
result, are adequate to support the CATEX and to provide for
environmental review of appropriate exceptions to the CATEX.
Regarding the CATEX of paragraph 310u, the FAA expanded the CATEX
to include closure, removal or remediation of fuel storage tanks, and
the CATEX was clarified to specify that all actions pertaining to
closure, removal, or remediation of a fuel storage tank at a FAA
facility must conform to the requirements of FAA Order 1050.15A, Fuel
Storage Tanks at FAA Facilities, and EPA regulations 40 CFR parts 280,
281, and 112 in order to qualify for this CATEX.
Regarding the CATEX of paragraph 310v, a commenter supports the
inclusion of de-icing /anti-icing facilities. FAA's response:
Replacement facilities that fall within the parameters of the CATEX
would be included.
Regarding the CATEX of paragraph 310v, three commenters believe
that this would go beyond anything previously proposed, in that it
would allow not merely the approval of a plan or ALP for a new terminal
without environmental review, but also actual construction of the
terminal without environmental review as well. Moreover, the commenters
contend that purported limitation on applicability to projects of the
same size, scope and location is no limitation at all, as the proposed
rule contains neither a measure to gauge whether the terminal is
``substantially'' the same size, nor a definition of ``substantially.''
The commenters believe this CATEX has no justification or explanation
and is arbitrary and capricious. FAA's response: The FAA does not
believe the CATEX is ill-defined, arbitrary, or capricious, or far
beyond anything previously proposed. It is applicable to the
replacement of reconstruction of a building of similar size and purpose
on the same site as the building being replaced or reconstructed. The
only change in this CATEX from the current CATEX is the insertion of
the word ``terminal'' to clarify that a terminal is considered as a
structure or building. All actions qualifying as CATEX's undergo
evaluations for extraordinary circumstances. These evaluations must
satisfy applicable environmental laws and regulation, many of which
require public input. Results of these evaluations help FAA determine
if the proposed action will be the subject of an EA (or if potential
impacts are significant, an EIS). (see paragraph 304). Therefore, NEPA
analysis of actions that qualify as CATEX's does take place.
Regarding the CATEX of paragraph 310w, the FAA found that snow
removal, vegetation control and erosion control work for trails,
grounds, parking areas and utilities are similar to such practices for
roads and rights-of-way, and that none of the actions significantly
affect the environment (in the absence of extraordinary circumstances--
see paragraph 304). Accordingly, trails, grounds, parking areas and
utilities are added to paragraph 310w in the final order.
Regarding the CATEX of paragraph 310x, a commenter asks the FAA to
define the difference between ``facility decommissioning'' and
``facility disposal.'' FAA's response: Decommissioning is defined as
being no longer operational in the National Airway System (NAS).
Disposal includes surplusing of property.
[[Page 33803]]
Regarding the CATEX of paragraph 310y, a commenter suggests adding
the phrase ``* * * if the proposed use is essentially the same.'' FAA's
response: The use of facilities being taken over by the FAA for
incorporation in the National Airspace System (NAS) would always be the
same. Accordingly, the proposed change is not adopted.
Regarding the CATEX of paragraph 310z, a commenter supports the
inclusion of tree trimming to meet 14 CFR 77. FAA's response: The CATEX
includes topping or trimming trees to remove obstructions to airspace.
Regarding the CATEX of paragraph 310aa, the DOI has a concern that
this CATEX applies to airports near NPS cultural landscape areas where
changing paint color, for example, could adversely affect the integrity
of the landscape. In such cases, the action should not be CATEXed.
FAA's response: This possibility of significant impacts resulting from
a change in the paint color of a building would be extremely rare, but
would be covered under paragraph 304k.
Regarding the CATEX of paragraph 310bb, the FAA found that the
existing CATEX, identified in Order 1050.1D as paragraph 4f under
Appendix 5, was inadvertently not included in the CATEX's identified in
the Federal Register notice of October 1999 for proposed Order 1050.1E.
The CATEX in question, ``Purchase of land or easements for existing
operational facilities,'' is carried forward unchanged in final Order
1050.1E.
A commenter requests adding the following new CATEX: ``Federal,
state or local financial assistance, licensing, local government
approval, ALP approval, or FAA action related to establishment of a
parachute jump facility, drop zone, parachute landing area, etc.''
FAA's response: We believe that the FAA actions identified in the
request are adequately accounted for under the CATEX's of paragraphs
311b and 312b. The other actions identified in the request are non-
federal actions and, as such, are not within the scope of the
procedures associated with this Order.
Beginning Paragraph 311 Comments. Regarding the CATEX of paragraph
311c, the DOI believes that if actions to return Special Use Airspace
to the National Airspace System could include airspace such as the
Grand Canyon National Park Special Flight Rules Area, then this CATEX
is much too broad and should be reworded or deleted. FAA's response:
Special Use Airspace does not include airspace such as the Grand Canyon
National Park Special Flight Rules Area. See 14 CFR part 73 and FAA
Order 7400.2E, ``Procedures for Handling Airspace Matters.''
Regarding the CATEX of paragraph 311d, the DOI believes that this
action should not automatically be CATEXed; sometimes it should require
an EA or EIS. This becomes significant if the rerouting brings aircraft
over or close to noise sensitive areas such as national park units.
FAA's response: Paragraph 311d has been revised to replace the phrase
``involving minor adjustments to'' with the text ``that does not
alter.'' As revised, this categorical exclusion does not permit
modifications that could bring aircraft over or close to noise
sensitive areas and units of the national park system. Extraordinary
circumstances related to noise sensitive areas, including noise
sensitive areas in National Park System units, would ensure the
consideration of impacts on such areas when deciding whether to invoke
this CATEX.
Regarding the CATEX of paragraph 311e, the DOI believes that this
action [designation of alert areas and controlled firing areas (CFA)]
should not automatically be CATEXed; sometimes it should require an EA
or EIS. This CATEX needs qualification. If these are new designations,
they should not be CATEXed. However, if they are designated within
existing SUA and do no more than make a minor change to the use of the
SUA, they may warrant a CATEX. FAA's response: FAA does not concur.
FAA's experience with CFA designations is that they typically do not
affect the environment. CFA's are established to contain activities
that are conducted in a controlled manner to prevent any hazard or
impact to nonparticipating aircraft. Examples of such activities are
munitions disposal and rocket test stand firings. Although CFA's are
technically classified as SUA, there is no charted airspace designation
involved, nor is any airspace reserved for the user. In a CFA, the user
simply agrees to keep a watch for passing aircraft and immediately
terminate the activity if an aircraft approaches the area; and to
adhere to certain visibility conditions to ensure the ability to
observe passing aircraft. CFA's are not published on aeronautical
charts and aircraft are NOT required to deviate around the CFA. Because
CFA's impose no impact whatever on aviation, pilots would not even be
aware of the existence of a CFA. There is no statutory requirement for
the creation of a CFA. As to the designation of alert areas, since this
is an advisory action, it has been removed from the CATEX and placed in
paragraph 301 in the final Order. An alert area is a type of SUA that
is designated where there is a high volume of pilot training activity,
or an unusual type of aeronautical activity is conducted. Designation
of an alert area is not required in order for that activity to take
place. All activities in the area must be conducted in compliance with
applicable Federal Aviation Regulations without waiver. Alert areas are
shown on aeronautical charts and serve to inform pilots of the
existence of activity that they might not otherwise expect to
encounter. These are pre-existing activities that do not require FAA
approval. Therefore, the designation of an alert area does not result
in any change to the environment in that area.
Regarding the CATEX of paragraph 311f, the DOI believes that this
action should not automatically be CATEXed; sometimes it should require
an EA or EIS. This becomes significant if the rerouting brings aircraft
over noise sensitive areas such as national park units. DOI further
comments that the 3,000 feet designation does not necessarily relate to
impacts, especially where flight tracks occur over national park units.
The Nevada DOT believes that this change is inconsistent with the
Nevada Statewide Aviation System Plan policies or goals. If
incorporated into the document, this CATEX could provide for the
establishment of SUA independent of public comment and could undermine
the intended purpose of the Joint Military Affairs Committee process.
Another commenter believes that because DOD requests for special use
airspace establishment or modification are inherently controversial,
because there is a paucity of scientific evidence and data concerning
the cause and effect relationship between military aircraft overflight
and wildlife, recreation, livestock production, and other environmental
values, the commenter requests that the FAA's proposed rule be changed
to require that all DOD special use airspace proposals for
establishment or modification be evaluated at least at the EA level and
that a CATEX not be available for such actions. FAA's response: The
CATEX in question, originally proposed as item 6, Procedural
Action of Figure 3-2, ``Categorical Exclusion List,'' in the Federal
Register notice, has been removed in the final Order for further study.
CATEX 311f in the final Order is marked ``Reserved''.
Regarding the CATEX of paragraph 311i, the DOI believes that this
action should not automatically be CATEXed; sometimes it should require
an EA or EIS. Impacts on park units may occur from traffic greater than
3,000 feet AGL. FAA's response: Past environmental assessments and
impact statements
[[Page 33804]]
confirm that the FAA normally proposes changes in air traffic and
instrument approach and departure procedures for air traffic in the
vicinity of large, busy airports. The predominant land uses in these
areas are suburban and residential. Proposed changes to the routes that
overfly parks like Zion and Grand Canyon National Park are much less
frequent than those in the vicinity of large airports. Assuming,
without deciding, that changes in procedures for air traffic at
altitudes greater than 3,000 feet may cause potentially significant
impacts on park units, these occur in exceptional circumstances. Air
traffic and instrument approach and departure procedures for proposed
major airport development projects are connected actions that would be
part of an EA or EIS.
Regarding the CATEX of paragraph 311i, a commenter believes that
impacts from changes to air traffic control procedures over noise
sensitive areas should be exempt from regular noise monitoring
requirements where they exist, as well as CATEXed as long as the
procedures are limited in time and there is a mechanism for
coordination with the airport sponsor and the impacted air carriers.
FAA's response: Instrument procedures conducted below 3,000 feet AGL
that cause traffic to be routinely routed over noise sensitive areas
would at least be subject to an EA, which normally would not include
noise monitoring. However, noise monitoring should be considered if
there are legitimate questions concerning potential cumulative noise
impacts on DOT Section 4(f) resources. Such re-routings can potentially
cause significant noise impacts and, therefore, cannot be CATEXed. The
commenter's proposal is not adopted.
Regarding the CATEX of paragraph 311j, in response to a comment to
the similar CATEX under paragraph 307a, paragraph 311j was amended in
the final order consistent with the changes adopted in Paragraph 307a.
See the discussion for the comment to paragraph 307a in this preamble.
Regarding the CATEX of paragraph 311m, a commenter supports
CATEXing short-term air traffic changes below 3000 feet to accommodate
airport construction. However, changes of six months duration may be
too long (and controversial) for exposure to new aircraft noise. A
change in procedures of that duration should be anticipated by FAA and
the airport if it is for airport construction. Such changes should be
susceptible to an EA. FAA's response: We agree that if it is reasonably
foreseeable that construction will last more than six months, an EA
would normally be appropriate. However, based upon FAA experience,
where the activity will not exceed six months, a CATEX is appropriate,
absent extraordinary circumstances. We agree that there may be
circumstances in which changes of six months duration that could result
in potentially significant long-term impacts. Based on the experience
of the FAA in conducting environmental reviews for over short term
tests of changes in air traffic procedures at airports like Newark
International, Detroit Metropolitan, Minneapolis St. Paul, Washington
National, and Dulles Airports, these circumstances are not the norm.
A commenter requested the following new CATEX: ``FAA air traffic
control receipt of notification letter for, or issuance of
authorization for, parachute jump activity parachute operations, or
skydiving activity in the National Airspace System.'' FAA's response:
We believe that the FAA actions identified in the request are
adequately accounted for under the CATEX of paragraph 311b.
Proposed new CATEX (Table 3-2; Procedural Actions; item 7;
``Establishment or modification of Special Use Airspace (SUA) for
supersonic flying operations over land and above 30,000 feet mean sea
level (MSL) or over water above 10,000 feet MSL and more than 15
nautical miles from land,'' is withdrawn from the final order in order
to further validate by analysis and review of current scientific
literature the specified altitude and distance thresholds.
Beginning Paragraph 312 Comments. Regarding the CATEX of paragraph
312b, the DOI believes that the actions should not be automatically
CATEXed; sometimes they should require an EA or EIS. Depending upon the
location and nature of such actions, the temporary impacts may cause
long-term adverse effects that warrant an EA or EIS. FAA's response:
The qualifying wording of the CATEX (i.e., that the ``temporary impacts
* * * revert back to original conditions upon action completion'')
means that actions that cause long-term adverse effects are not covered
by this CATEX. The FAA believes the DOI concern is accounted for in the
CATEX without the need for further modification.
A commenter requested amending paragraph 312b to include
``Aerobatic Practice Box'' and ``Aerobatic Contest Box'' stating that
aviation activities conducted within such airspace per FAA Order
8700.1, Chapter 48, are considered to be equal to ``airshows'' as a
type of ``infrequent'' aviation event. Individually or cumulatively
these events do not have a significant effect on the human environment,
and are not conducted within or above noise sensitive areas. FAA's
response: We concur with the request and the conclusions stated and
have revised paragraph 312b accordingly.
Regarding the CATEX of paragraph 312d, the DOI believes that while
the issuance of the document might be a CATEX, the actions proposed in
the documents might not be. This seems too broad. These actions should
not be automatically CATEXed; sometimes they should require an EA or
EIS. FAA's response: As stated in the CATEX, the actions proposed in
the regulatory document are limited to administrative or procedural
actions which are typically categorically excluded. See response to
comment regarding ``Extraordinary Circumstances'' under the heading
``Comments on General Subject Matter'', above. The need for an EA or
EIS would be identified through the extraordinary circumstances
analysis process described in paragraph 304.
Regarding the CATEX of paragraph 312f, it was found that the
existing CATEX, identified in Order 1050.1D as paragraph 4j under
Appendix 4, was inadvertently not included in the CATEX's identified in
the Federal Register notice of October 1999. The CATEX in question,
``Regulations, standards, and exemptions (excluding those which if
implemented may cause a significant impact on the human environment),''
is carried forward unchanged in final Order 1050.1E as paragraph 312f.
A commenter requested the addition of the following new CATEX:
``Authorizations, waivers, certificates, and exemptions for infrequent
or occasional actions such as parachute or skydiving demonstration or
exhibition jumps, parachute or skydiving competitions or meets; and
parachute or skydiving conventions or events that may or may not draw
public attention or spectators.'' FAA's response: We believe that the
actions described in the requested CATEX are adequately accounted for
under the CATEX of paragraph 312b.
Chapter 4 Comments
Beginning Paragraph 401 Comments. Regarding paragraph 401g, the FAA
found that the requirements for an EA for the establishment or
relocation of Air Route Surveillance Radars, Air Traffic Control
Beacons, and Next Generation Radar was not consistent with the
categorical exclusion provided under paragraph 309d. Paragraph 401g is
consequently amended in the final
[[Page 33805]]
Order to indicate that EA's are normally required only if located off
of airport property. Paragraph 309d states that if such facilities are
located on airport or designated FAA property they are categorically
excluded.
Regarding paragraph 401k, the DOI comments that DNL levels (i.e.,
1.5 dB increase and 65 dB) are not absolutes. There may be instances
where an airport is used infrequently enough for its noise not to
significantly affect the annual average DNL, but where its noise could
significantly affect a sensitive resource during a sensitive time
period (e.g., nesting endangered species off the end of the runway, or
a cultural site during a sensitive religious period). Where
appropriate, other criteria should be used. FAA's response: Paragraph
401k presents categories of airport actions that normally require an
EA, and may require an EIS. It is not the ``normal'' or usual case that
a runway strengthening project, which is the subject of DOI's DNL 65 dB
comment, would present the type of environmental circumstances
envisioned by DOI. However, there is provision in Appendix A to give
special noise consideration to national parks and other unique areas,
and Order 1050.1E provides flexibility to assess noise effects on such
areas that would be lower than DNL 65 dB with metrics other than DNL.
Regarding paragraphs 401m, n, and p, the DOI comments that
significant impacts might occur to national park units and noise
sensitive areas at flight altitudes greater than 3,000 feet AGL. FAA's
response: This response is similar to the one above. Paragraphs 401m,
n, and p address the usual and normal EA requirements, and do not
preclude preparation of an EA or EIS for actions above 3,000 feet AGL,
where appropriate.
Regarding paragraph 401p, one commenter notes that the FAA suggests
that EA's would only be required for DOD special use airspace
applications where the floor of the proposed area is below 3,000 ft AGL
or a supersonic flight is anticipated at any altitude. The commenter
agrees with the FAA proposal that supersonic flight anticipated in
special use airspace at any altitude should trigger a minimum
evaluation through an EA. However, the suggested floor of 3,000 feet
AGL for triggering an EA is inappropriate for DOD special use airspace
applications. The establishment or modification of special use airspace
by the DOD is generally contrary to the established FAA policy of
minimizing the proliferation of special use and restricted airspace.
Also, there is no basis in the EA or overflight impact assessment
literature that establishes that military flight at 3,000 feet AGL is a
presumptively safe or environmentally benign level. Accordingly,
because DOD requests for special use airspace establishment or
modification are inherently controversial, because there is a paucity
of scientific evidence and data concerning the cause and effect
relationship between military aircraft overflight and wildlife,
recreation, livestock production, and other environmental values, and
because the establishment of military special use airspace is generally
an exception established FAA policy on the nonproliferation of special
use airspace, the commenter requests that the FAA's proposed rule be
changed to require that all DOD special use airspace proposals for
establishment or modification be evaluated at least at the EA level and
that a CATEX not be available for such actions. FAA's response: The
CATEX at issue has been removed from the final Order for further study.
Paragraph 401p has also been accordingly amended in the final Order to
remove references to the 3,000 ft. AGL condition on the applicability
of the CATEX and paragraph 401p. Paragraph 401p now prescribes that an
EA should be conducted for all SUA airspace designations regardless of
the base height above ground unless otherwise explicitly CATEXed under
Chapter 3.
Beginning Paragraph 404 Comments. Regarding Figure 4-1, the DOI
recommends adding the topics of scoping and alternative formulation
between steps 3 and 4 of the figure. FAA's response: We concur with the
requested change, and the figure is modified accordingly. Scoping
remains optional for EA's. Also regarding the same figure, another
commenter requested adding ``and alternatives'' to the end of the text
of Step 1. FAA's response: We concur, and the figure is modified
accordingly. Also regarding paragraph 404, a new sentence was added in
the final Order to the effect that an EA for an airport capacity
project, an aviation safety project, or an aviation security project
may quality and be appropriate for environmental streamlining under
provisions of ``Vision 100--Century of Aviation Reauthorization Act.''
Regarding Figure 4-2, the DOI recommends that under the title
``Scope'' the sentence should read, ``Addresses the proposed action's
impacts on affected environmental resources (natural, cultural, and
socioeconomic).'' Under the title ``Content'' the last bullet should be
modified to read, ``Agencies, organizations, and persons consulted.''
FAA's response: Figure 4-2 is intended to provide an outline of the
process; more detail is provided in the text. The first DOI
recommendation is not adopted. The second DOI recommendation regarding
``Content'' is adopted. Also regarding Figure 4-2, another commenter
requested a definition of ``baseline.'' FAA's response: The term is
changed to ``existing'' to remove the ambiguity.
Regarding paragraph 404b(5), a commenter recommends substituting
the word ``context'' for ``severity.'' CEQ regulations define
``significance'' in terms of both ``context'' and ``intensity,'' where
``intensity'' is equated with ``severity.'' Environmental justice
impacts can be overlooked if the analysis is limited to one aspect and
not both. For example, a change at an airport or facility may not be
significant across a regional population but may be ``intensely'' felt
by a sub-population, such as a low-income neighborhood, or low-income
workers within but spread out among the regional population. FAA's
response: The sentence in 404b(5) containing this terminology has been
removed from this particular location in the Order during final review
with CEQ because it was misplaced. ``Significance'' is addressed
elsewhere in the Order. We agree that the word ``context'' is
appropriate, instead of ``severity''. The commenter also suggested that
there should be a separate section in the order that covers
environmental justice. FAA's response: Environmental Justice is covered
in appendix A, section 16.
Regarding paragraph 404c, the following new sentence was added in
the final Order: ``If FAA has experience with an environmental
management system (EMS) that includes monitoring of the implementation
of actions similar to the proposed action and alternatives, the EMS may
provide a factual basis for an assessment of the potential
environmental impacts.'' The new sentence was added to facilitate
coordination of the NEPA and EMS processes. Executive Order 13148 of
April 21, 2000 ``Greening the Government Through Leadership in
Environmental Management'' requires Federal agencies to use an EMS
approach for improving environmental performance. Where EMS's have been
implemented, they may assist in the evaluation of environmental
impacts. In those cases, the NEPA and EMS processes should be
complementary. Similar references to complementary aspects between NEPA
and EMS were added to paragraphs 405f(1)(c) and 506h(1) in the final
Order.
[[Page 33806]]
Regarding paragraph 404d, a commenter asks; What does ``If more
than three years have elapsed since the FONSI was issued, the
responsible FAA official should prepare a written evaluation of the
EA'' mean? Does this refer to reevaluation of an EA/FONSI if a project
has not begun within three years? Does it refer to a project that has
begun with EA approval but not been completed in three years? Three
years will elapse on any FONSI, but the question is what is the trigger
for reevaluation? FAA's response: The three-year period begins from the
date another agency issues its EA/FONSI. When the FAA adopts another
agency's EA, there would be no circumstance under which an action would
have begun prior to the FAA's adoption. Paragraph 404d is adopted with
changes to clarify that the three-year period starts when the other
agency issues its EA/FONSI.
Regarding paragraph 404d, a commenter notes that a significant
benefit of this provision is lost if FAA must prepare a written
evaluation of the information in the other agency's EA. The purpose of
this requirement is to ensure that FAA independently verifies the
information in the EA and that the analysis is appropriate, given the
approval that FAA must provide. Those goals can be met without the
formality of a written evaluation, and this additional step should be
avoided. The revised order should retain the procedure for adopting
EA's or FONSI's of other agencies, but delete the requirement for a
written evaluation. FAA's response: We concur. Independent review does
not have to be written, but a written reevaluation is required if
another agency's EA is more than three years old. The provision is
adopted with the requested change.
The FAA, in the final order, deleted the proposed sentence in
paragraph 404d indicating that a copy of an adopted EA or EA/FONSI
should be forwarded to EPA. The deleted sentence could have been
interpreted as mandatory and that forwarding of such documents is not a
requirement of, or consistent with, FAA, DOT, or CEQ policies or CEQ
regulations.
Further regarding paragraph 404d, two additional sentences were
adopted in the final Order indicating that incorporating by reference
may be useful in ensuring that the EA is both concise and clear about
the bases for its conclusions.
Beginning Paragraph 405 Comments. Regarding paragraph 405e, the DOI
recommends that the fourth sentence should be modified to read:
``However, data and analysis should be pertinent to the impacts and
commensurate with its importance.'' FAA's response: The recommended
change is adopted. The sentence at issue was further expanded in the
final Order to indicate that such background data may be incorporated
by reference.
The FAA has revised paragraph 405c to provide that the Office of
the Chief Counsel (Regional Counsel and AGC-600) will not waive legal
sufficiency review of the FONSI and underlying EA where the proposed
Federal action is opposed on environmental grounds by a Federal, state,
or local agency or a Tribe. It has been our experience that legal
review of the FONSI and underlying EA is in the best interest of the
agency in such circumstances.
Regarding paragraph 405d, the discussion on identifying and
considering alternatives to a proposed action was amended in the final
Order to ensure conformity with CEQ regulations and policies.
Regarding paragraph 405e(2), the DOI recommends that examples
should include ``appropriate noise and visual data.'' FAA's response:
These types of data are already included in the general text of
paragraph 405e(2) (e.g., ``This section shall succinctly describe
existing environmental conditions of the potentially affected
geographic area(s) * * * It also may include * * * any other unique
factors associated with the action.''), and it is therefore unnecessary
to list them separately.
Regarding paragraph 405e(5), a commenter asks for a definition for
time frames of the actions. FAA's response: The temporal boundary used
for the cumulative effects analysis will vary depending on the proposed
action and duration of its effects.
Regarding paragraph 405f, a commenter believes that the referenced
document ``Considering Cumulative Effects under the National
Environmental Policy Act'' is problematic and flawed. FAA's response:
This document is the best, currently available guidance from CEQ and is
used at the discretion of the FAA. Paragraph 405f(1)(c) has been
revised in the final Order to summarize the CEQ regulations regarding
cumulative effects.
Regarding paragraph 405f, the Illinois DOT notes that this
provision states that the environmental consequences of the proposed
action and the no action alternatives should be shown in comparative
form and that environmental impacts of other alternatives that are
being considered should also be discussed in the EA/EIS. This appears
to mean that there should be an impact analysis of alternatives which
were considered in the EA/EIS, but do not meet the purpose and need.
Clarify. FAA's response: If an alternative is being analyzed under the
environmental consequences section of an EA, it has already been
determined that the alternative is reasonable; otherwise, it would have
been eliminated from further analysis. Paragraph 405f is amended in the
final Order to clarify the issue and to ensure conformity of the
paragraph with the CEQ regulations and policies.
Regarding paragraph 405g, the Illinois DOT notes that this
provision states that when mitigation measures are changed after a
FONSI and the changes result in significant impacts, the responsible
FAA official must issue a Notice of Intent (NOI) to prepare an EIS. We
do not think that every change in mitigation that follows a FONSI, even
if it is judged to cause a significant impact, should automatically
mandate an EIS. We recommend that the FAA be given flexibility to
address the issue without being required in every instance to prepare a
full EIS for the project, given all that is entailed in such an effort.
FAA's response: An EIS would only be required in this instance when
environmental impacts rise to significant levels that are not mitigated
below thresholds of significance. If impacts are significant, an EIS
must be prepared.
Regarding paragraph 405i, a commenter asks whether any further
detail should be provided, e.g., dates or phone numbers, for the list
of agencies and persons contacted? FAA's response: This is not required
information. It may optionally be provided, to the extent determined
appropriate and useful.
Beginning Paragraph 406 Comments. Regarding Figure 4-3, the DOI
agrees that the content of the FONSI should include mitigation
measures. FAA's response: Comment noted.
Regarding paragraph 406c(1), which prescribes the internal FAA
review process, the following sentence from Order 1050.1D, paragraph
56a, which was inadvertently omitted in draft Order 1050.1E, is carried
forward in final Order 1050.1E in order to emphasize the purpose of the
internal review requirements: ``This internal review is to ensure that
related foreseeable agency actions by other FAA elements are properly
covered in the statement or finding and are coordinated with the
appropriate action office so that commitments which are the
responsibility of other divisions or offices will be carried out.''
Regarding paragraph 406d, a commenter asks for clarification on
what is meant by ``FONSI's are required to be coordinated outside of
the agency
[[Page 33807]]
* * *.'' It is unclear if an FAA decisionmaker can satisfy this
requirement by relying on the results of normal agency consultation, if
a decisionmaker must circulate a draft FONSI for approval by officials
from other agencies who have relevant expertise and jurisdiction, or if
a decisionmaker is merely obligated to send copies of a FONSI to
officials of other agencies. FAA's response: We have modified
paragraphs 404f and 406d in the final Order to clarify the procedures.
Regarding paragraphs 406f and g, the Wisconsin DOT believes that
not all final EA's and FONSI's need to be circulated to commenting
agencies. This is normally only done when requested. FAA's response:
Those agencies, organizations or individuals that provided substantive
comments are included on a mailing list to receive a copy of the final
EA/FONSI.
Paragraph 407 Comments. A commenter believes that this paragraph
should be expanded to include the responsibilities of the FAA to self-
police with a formal follow-up commitment to ensure that air traffic
procedures that are described in the EA/EIS for use with a new runway
or airport are followed. It should not become the responsibility of the
airport operator to ensure that these procedures are adhered to. FAA's
response: The FAA is responsible for assuring the implementation of
mitigation commitments within the FAA's sphere of responsibility, such
as air traffic procedures. The first sentence of paragraph 407 clearly
states that mitigation ``* * * shall be implemented by the lead agency
* * *.'' The FAA does not believe that expansion of 1050.1E guidance on
this point is necessary. Individual FAA offices may issue more detailed
instructions to their respective field personnel.
Paragraph 408 Comments. Commenters noted that the FAA's use of the
term ``record of decision'' (ROD) in conjunction with a FONSI is easily
confused with the same term used in the EIS process. Both suggested
alternative terminology for the FONSI/ROD. FAA's response: This
provision simply codifies long-standing policy and guidance that
permits FAA to prepare decision documents in conjunction with findings
of no significant impact. These decision documents include the same
content as records of decision that must be prepared following
preparation of an environmental impact statement, as well as
identifying the document as the decision/order that is subject to
judicial review in accordance with the appropriate statutory review
provisions. Use of similar terminology is beneficial because FAA
personnel are familiar with the content and purpose of an FAA record of
decision. It is also useful because it highlights the legal distinction
between a finding of no significant impact and the agency decision to
take action based upon the FONSI that forms the basis for judicial
review. Therefore, FAA has determined to retain use of the term FONSI/
ROD in FAA Order 1050.1E.
Paragraph 410 Comments. The Wisconsin DOT believes that the
requirements for EIS's should not be imposed on EA's for purposes of a
written re-evaluation. FAA's response: Although there is no legal
requirement to perform a written evaluation of EA's, the FAA has
previously concluded that there can be a benefit to doing a written re-
evaluation for an EA because a written re-evaluation can confirm the
continued accuracy and validity of the EA when questions and challenges
have arisen. Accordingly, Order 1050.1D already contains such
requirements and those requirements are carried forward in final Order
1050.1E under paragraph 410. Further, the time limitations for the life
expectancy of environmental documents originally identified in
paragraphs 91 and 92 of Order 1050.1D are explicitly set forth under
paragraph 402 in the final Order 1050.1E. The time limitations for EA's
and FONSI's are similar to those prescribed for EIS's under paragraph
514 of final Order 1050.1E.
Paragraph 411 Comments. The Wisconsin DOT believes that the
requirements for EIS's should not be imposed on EA's for purposes of
revision or adding supplemental information. FAA's response: Compliance
with NEPA to ensure accurate disclosure of impacts would necessitate
similar consideration for preparing a supplemental EA/FONSI. Existing
Order 1050.1D already contains conditional criteria for preparing a
supplement to an EA under paragraph 92. Those existing requirements are
carried forward in final Order 1050.1E under paragraph 411.
Paragraph 412 Comments. The Wisconsin DOT believes that the
requirements for EIS's should not be imposed on EA's for purposes of
review and adoption of EA's proposed by other agencies. FAA's response:
We concur in part. We agree that the CEQ's regulatory requirements for
commenting (only) on other agency's EIS's should not be made mandatory
requirements for the FAA's commenting on other agency's EA's. Such
requirements are not contained in Order 1050.1D and it was not the
intent of the FAA to imply in Order 1050.1E that such requirements be
made to apply to EA's. Thus, references in paragraph 412 to paragraphs
518h and 404h, and proposed paragraph 404h itself, are removed from the
final Order 1050.1E. However, as discussed above in the responses to
comments on paragraph 410 and 411, the FAA believes that it is entirely
proper that certain requirements for evaluation and adoption of EIS's
should also apply to EA's. Order 1050.1D already provides for such
requirements for EA's in paragraphs 92 and 93 and those requirements
are carried forward in final Order 1050.1E as paragraphs 410 and 411.
Since the requirements for adopting another agency's EA are already
provided under paragraph 404d and since the remainder of proposed
paragraph 412 has been deleted, proposed paragraph 412 is redundant and
has been removed from the final Order 1050.1E.
Chapter 5 Comments
Paragraph 500 Comments. The FAA found that since the procedure used
to file draft, final, supplemental and programmatic EIS's is the same,
it would be appropriate to have one EIS filing paragraph and refer to
that paragraph in paragraphs 508, 509, 513 and 519. The affected
paragraphs were modified accordingly in the final Order.
Paragraph 501 comments. The FAA deleted the third sentence proposed
under paragraph 501b in the final Order. The FAA need not necessarily
circulate a mitigated EA/FONSI for public and agency comment. Instead,
reference is made to paragraph 406e wherein instructions are provided
for public review of an EA/FONSI under special circumstances.
Paragraph 501 has been revised to (1) clarify that the significance
criteria set forth in 40 CFR 1508.27 should be considered in
determining whether to prepare an EIS after an EA has been prepared and
(2) include the text of 1508.27.
Paragraph 503 Comments. Regarding Step 1 of Figure 5.1, the DOI
commented that the proposed action should not be defined prior to
scoping. One of the primary purposes of scoping is to define the
proposed action and alternatives. FAA's response: Proposed FAA direct
actions and applicant proposals to FAA are usually formulated prior to
FAA's determination that an EIS will be required and, therefore, prior
to scoping. See CEQ regulations at 40 CFR 1501.7 on scoping: ``There
shall be an early and open process for determining the scope of issues
to be addressed and for identifying the significant issues related to a
proposed action.'' CEQ guidance on
[[Page 33808]]
scoping states that scoping ``cannot be useful until the agency knows
enough about the proposed action * * * to present a coherent proposal
and a suggested initial list of environmental issues and
alternatives.'' (see CEQ memorandum: Scoping Guidance (CEQ, April 30,
1981) (see FAA Web site at http://www.aee.faa.gov). The proposed action
may be modified to address issues raised during scoping.
Beginning Paragraph 504 Comments. Regarding Figure 5-2, third
bullet, left column, a commenter believes the cited text should say no
less than 30 days. FAA's response: ``At least 30 days'' means the same
thing as ``no less than 30 days.''
Further regarding Figure 5-2, it was correctly noted that the 30-
day lead time for notification of a scoping meeting is suggested FAA
policy; not a regulatory requirement. Accordingly, Figure 5-2 was
amended in the final Order to change ``must'' to ``should'' in
reference to the 30-day scoping meeting notification.
One commenter believes that the Notice of Intent (NOI) should not
just be published in the Federal Register, but should be mailed to the
appropriate local officials in the communities abutting the airport.
FAA's response: A NOI must be published in the Federal Register and
invite state, local and Tribal representatives and the public to
participate in the scoping process. See 40 CFR 1501.7(a)(1) and
1508.22. Direct mailings of a NOI is not a CEQ requirement and,
accordingly, is not required in Order 1050.1E.
Beginning Paragraph 505 Comments. Regarding paragraph 505a, a
commenter notes that the FAA has proposed creating an optional
procedure for preparing a scoping document. The commenter believes this
additional procedural step is unnecessary and will add more time and
expense to the process and yield little, if any, benefit. While it is
being presented as an ``optional'' approach, it is likely to very
quickly become a standard de facto practice. Aviation projects
sometimes are controversial, particularly as they relate to community
impacts. FAA staff may be reluctant to deny procedural opportunities
for the public to provide input, if they perceive that there is
opposition. In addition, encouraging 30 days notice for meetings or
hearings removes some of the process flexibility the FAA currently
enjoys. Similarly, encouraging the creation of a report will mean
additional costs and delays for private applicants. The commenter
contends that there is no evidence that scoping under the current
system is not effective, and FAA should avoid creating what will be
perceived as an entitlement when it will make little, if any,
meaningful difference to the process. The proposed scoping document
should be deleted. FAA's response: We do not concur with the conclusion
that an optional scoping document will become a standard de facto
practice. Documentation of the scoping process is an optional procedure
that is available to the responsible FAA official. The proposal to
eliminate the optional scoping document is not adopted.
Further regarding paragraph 505a, the third sentence of paragraph
505a was corrected in the final Order to indicate that the purpose of
scoping includes identifying and eliminating from detailed study those
issues that are insignificant. The correction is necessary to remove a
typographical error in the proposed text in question that indicated
scoping would ``de-emphasize issues that are significant.''
A commenter noted that preparers need consistent guidance on the
content and location in the EIS of the discussion of contextual
material, planning forecasts, planning process, other projects
(independent and cumulative actions), timing of the proposed action,
funding, and required permits. Also needed are working definitions of
purpose and need. Guidance as to the latitude available for variation
in the organization of the EIS would be useful for preparers. FAA's
response: The FAA believes that sufficient agency-wide guidance is
provided in paragraph 506. Components and lines-of-business of the FAA
may issue more detailed guidance tailored to their specific needs.
Beginning Paragraph 506 Comments. Regarding paragraph 506d, the DOI
asks why the proposed action is being presented in this paragraph. This
paragraph presents the rationale for the study and the issues that need
to be resolved. The proposed action should be described in the
Alternatives paragraph (506e). FAA's response: We concur and have
modified paragraph 506d accordingly. However for many FAA actions,
identification of the proposed action (a brief description) in the
context of the agency's purpose and need is appropriate. The decision
to address the proposed action in the purpose and need section is left
to the discretion of the responsible FAA official.
The FAA has revised paragraph 506e in the final Order to delete the
phrase ``but within the jurisdiction of the Federal Government'' and
simply refer to the ``rule of reason'' as codified in the CEQ
regulations and articulated, qualified, and applied in the case law.
Regarding paragraph 506g, the Illinois DOT notes that the provision
states that the environmental consequences of the proposed action and
the no action alternatives should be shown in comparative form and that
environmental impacts of other alternatives that are being considered
should also be discussed in the EA/EIS. This appears to mean that there
should be an impact analysis of alternatives which were considered in
the EA/EIS, but do not meet the purpose and need. Since this was
probably not the intent and is not consistent with FAA NEPA practice,
the language should be clarified. FAA's response: We concur with the
comment and have modified paragraphs 506g(1) and (2) accordingly.
Regarding Figure 5-3, it was noted that holding a public hearing
less than 30 days after issuance of the draft EIS is inconsistent with
paragraph 209c, which provides that a draft EIS must be available to
the public at least 30 days prior to a public hearing. Figure 5-3 was
changed in the final Order to be consistent with paragraph 209c.
Paragraph 507 Comments. A commenter notes that the first statement
is quite confusing. The comment period for a draft EIS is a minimum of
45 days (1506.10(c)). No final decision on the proposed action can be
made or recorded in a ROD until 90 days after the filing of the draft
EIS (1506.10(b)(1)). There is a 30-day wait period after the filing of
the final EIS. However, if the final EIS is filed within the 90-day
period after filing of the draft EIS, then the decision cannot be made
until both the 30-day and 90-day requirements have been met. While the
45-day and 30-day periods can be altered by EPA upon a showing of
compelling reasons of national policy, the 90-day period cannot be
altered. FAA's response: We concur and have modified paragraph 507a
accordingly. Corresponding changes to Figure 5-1 are also made in the
final order. The commenter also noted that the statement ``EPA may
receive a 30-day extension * * *'' probably is an incorrect
interpretation of 40 CFR 1506.10(d)). This statement needs to be
rewritten as ``EPA, upon a showing by another Federal agency of
compelling reasons of national policy, may extend the 30-day and 45-day
periods for up to 30 days, but no longer than 30 days without the
permission of the lead Federal Agency.'' FAA's response: We concur and
have adopted the recommended text.
The standard language in paragraph 508c(3) has been revised in the
final Order to use plain English.
Beginning Paragraph 508 Comments. Regarding paragraph 508h, a
commenter
[[Page 33809]]
suggests deleting specific reference to EPA's current rating system
since these ratings are EPA actions and not FAA actions. They are used
as a summary shorthand for the EPA comments and thus do not seem
relevant to FAA's order. FAA's response: We concur and have removed the
reference accordingly.
A commenter also recommends that this paragraph should clarify that
as part of the EIS filing process EPA publishes the official Federal
Register notice of availability for an EIS. Agencies, including FAA,
may also publish an availability notice in the Federal Register, but
the FAA notice cannot be used on its own. FAA's response: We concur and
have added text clarifying the issue to paragraph 507(a).
Regarding paragraph 508c, the requirement was changed in the final
Order to specify that the DEIS must be distributed to interested
parties, libraries and other public venues prior to formal notification
to the EPA. As adopted in the final Order, the responsible FAA official
must certify that such distribution has occurred in the FAA's letter to
the EPA requesting publication of a Notice of Availability in the
Federal Register. As originally proposed, the text in question called
for concurrent public distribution and notification to the EPA.
Regarding paragraph 508d(2)(e), a commenter believes that it is
confusing to mix the EPA EIS filing distribution with the EPA review
distribution. The commenter suggested that FAA drop the filing because
it is covered in another section. FAA's response: We concur and have
deleted the text in question from this paragraph in the final Order.
Regarding paragraph 508d(2)(g), a commenter notes that it appears
something may be askew here, but it is not clear. It seems that this
paragraph should be presented similarly and contain similar information
as paragraph 511e-g. FAA's response: Paragraphs 508 and 511 have been
modified to clarify the requirements.
Regarding paragraph 509, a sentence was added in the final Order to
specify that the action in question must be in compliance with all
applicable environmental laws, regulations, executive orders and agency
orders prior to issuance of the ROD. It is desired that all
environmental issues be resolved and documented in the FEIS; however,
if it is impossible to comply with certain environmental issues in the
FEIS, then such issues must be resolved prior to issuance of the ROD.
Paragraph 510 Comments. A commenter noted that the statement ``EPA
may obtain a 30-day extension'' probably is an incorrect interpretation
of 40 CFR 1506.10(d). This statement needs to be rewritten as ``EPA,
upon a showing by another Federal Agency of compelling reasons of
national policy, may extend prescribed periods up to 30 days, but no
longer than 30 days without the permission of the lead agency.'' FAA's
response: We concur and have adopted the recommended text. The
commenter also suggests that a sentence be added that states that if
FAA approves an overall extension of the comment period, then EPA
should be notified so that EPA's Federal Register notice can be
modified. FAA's response: We concur and have added a sentence to this
effect.
Beginning Paragraph 512 Comments. A commenter suggests that some
language be added to this paragraph to indicate that the ROD can also
be used to clarify and respond to issues raised on the final EIS. FAA's
response: We concur and have added the suggested text in the second
sentence of the paragraph.
A commenter suggested that paragraph 512 describe the difference
between a NEPA ROD and a FAA ROD. It should also state that where
appropriate the NEPA decision document and the FAA ROD may be combined
into one document. FAA's response: This provision simply codifies long-
standing policy and guidance that permits FAA to prepare decision
documents in conjunction with findings of no significant impact. These
decision documents include the same content as records of decision that
must be prepared following preparation of an environmental impact
statement, as well as identify the document as the decision/order that
is subject to judicial review in accordance with the appropriate
statutory review provisions. Use of similar terminology is beneficial
because FAA personnel are familiar with the content and purpose of an
FAA record of decision. It is also useful because it highlights the
legal distinction between a finding of no significant impact and the
agency decision to take action based upon the FONSI that forms the
basis for judicial review. Therefore, FAA has determined to retain use
of the term FONSI/ROD in paragraph 408 of Order 1050.1E. The FAA
believes that it would be confusing to reiterate the discussion on
FONSI/ROD in Chapter 5.
Paragraph 513 Comments. A commenter suggests that this paragraph
include a sentence such as, ``FAA prepares, circulates, and files
tiered and programmatic EIS's in the same fashion as draft and final
EIS's. FAA's response: We concur and have added a sentence to this
effect as the last sentence of the paragraph.
Further regarding paragraph 514, proposed paragraph 514b(3) was not
carried forward into the final Order. The provision called for an
extension to the three-year time period of assumed validity of an EIS
if the proposed action is restrained or enjoined by court order or
legislative process. Although the provision is an existing provision
under paragraph 91b(3) of Order 1050.1D, the FAA has determined that
the provision is no longer necessary.
Regarding paragraph 515, the FAA amended the proposed time limits
for EIS's in the final Order to exclude the applicability of such time
limits to programmatic EIS's. By their nature, programmatic EIS's are
expected to have a longer shelf-life than typical project-specific
EIS's.
Beginning Paragraph 516 Comments. Regarding paragraph 516b, a
commenter recommends a rewrite of the second to last sentence to read:
``If, however, there are compelling reasons of national policy to
shorten the time periods, the agency must consult with EPA.'' FAA's
response: We concur and have adopted the requested text.
Regarding paragraph 516c, a commenter recommends deleting the text
since it restates what has already been stated in paragraph 515. FAA's
response: We concur and have revised the text to cross-reference
paragraph 515.
Regarding paragraph 516d, the Wisconsin DOT comments that
establishing a new coordination requirement (status sheets) for EIS
documents does not seem warranted. FAA's response: The provision stated
``may,'' and therefore would not have been a requirement. However,
paragraph 516d has been eliminated as a result of other comments (see
next).
Regarding paragraph 516d, a commenter believes that while this
procedure makes available information that is not available under
current procedures, FAA needs to ensure that its staff does not use
this to fill information gaps that should have been addressed in the
original planning. Otherwise, important NEPA rights will be lost. For
example, the proposed procedure does not give the public the
opportunity to comment on the new information. The commenter agrees
that allowing public comment on such information, if a supplemental EIS
is not required, is not necessary. Nevertheless, FAA should include
language in the order that cautions against using this procedure as a
safety net to develop information that should have identified from the
outset and prepared as part of
[[Page 33810]]
the original EIS. FAA's response: We concur with the commenter's
concerns. Paragraph 516d has been deleted from the Order. The status is
periodically provided throughout the NEPA process.
Regarding paragraph 516d, three commenters note that the paragraph
is revised to provide for a new procedure for circulating supplemental
information for ``public comment on points of concern.'' We support the
inclusion of this new procedure, as long as it is clear that it is not
a substitute for a Supplemental EIS where the later is required.
However, the present proposed language only discusses the publishing of
supplemental information to inform the public, but does not
specifically provide for the public's right to comment on this
supplemental information. We recommend that it be modified to
specifically provide for the opportunity for the public to submit
comments on this supplemental information. FAA's response: Paragraph
516d has been removed from the Order in response to the concerns raised
by several commenters.
Regarding paragraph 516d, a commenter indicated it is not clear
what the purpose of this change to paragraph 516 is, or the
circumstances in which the FAA would issue such status sheets. FAA's
response: Paragraph 516d has been removed from the Order in response to
the concerns raised by several commenters.
Beginning Paragraph 517 Comments. A commenter recommended that this
paragraph be clarified and made into at least two paragraphs. The
commenter believes that a ``notice of intended referral'' is most often
received on a draft EIS, and it may well be sent only to a FAA field
office (40 CFR 1504.3(a)). In practice, the letter sent by the
referring agency to the lead agency informing it of the referral is
normally sent either to the FAA Administrator or, more likely, to the
DOT Secretary. FAA's response: We concur with the comment and have
modified paragraph 517 accordingly. The commenter further notes that
FAA may want to add some guidance that FAA would use when referring
another Federal agency's FEIS. FAA's response: We will consider the
development of such guidance in future updates of this Order.
Further regarding paragraph 507, the last sentence of paragraph
517c was amended in the final Order to correctly state that an FAA
response to a referral by another Federal agency to the CEQ must be
made no later than 25 days after the referral; not 20 days as stated in
the proposal. An agency's response within 25 days is required under 40
CFR 1504.3b.
Regarding paragraph 519, the FAA clarified this paragraph in the
final Order to better distinguish between the CEQ requirements for a
draft legislative environmental impact statement (LEIS) and a final
LEIS. The final Order now refers to 40 CFR 1506.8(b)(2) which provides
the conditions for completion of a final LEIS.
Paragraph 520 Comments. A commenter noted that the term ``FONSI''
should probably read ``EA/FONSI.'' FAA's response: We concur and have
adopted the change.
Further regarding paragraph 520, this paragraph has been combined
with paragraph 522a and revised to conform to CEQ regulations
applicable to informal rulemaking, public involvement in environmental
assessments, and issuance of final rules concurrently with FEIS's
without waiting 30 days in certain circumstances. Formal rulemaking is
used rarely, where a statute other than the Administrative Procedure
Act requires a rule to ``be made on the record after opportunity for
agency hearing.'' If the DEIS should normally accompany the proposed
rule during informal rulemaking, then the same timing should normally
apply to other rulemaking processes.
Regarding paragraph 522, the provision (522a) discussing informal
rulemaking (i.e., development and promulgation of regulations) was
found to be misplaced. The issue is covered under paragraph 520.
Proposed paragraph 522a is deleted in the final Order and subsequent
subparagraphs renumbered accordingly.
Appendix A Comments
General Appendix A Comments. The Wisconsin DOT comments that each
section (2-19) is preceded by a table with reference to applicable
statues, etc. Most tables are very complete. However, some (example--
sections 12 and 13) have no references. The following text in the
section will sometimes discuss specific E.O.'s, etc, that should have
been included in the preceding table. Document should be consistent.
FAA's response: Revisions to the final Order clarify that for some
categories of environmental effects considered under NEPA, there are no
special purpose laws.
A commenter believes that few regulations currently exist to
protect citizens, to monitor aircraft-produced toxic pollution, or to
effectively monitor the health impacts of jet noise. No agency reviews
how the FAA does or does not act to protect the safety of those on the
ground. The commenter believes that further airport expansion without
strict environmental review of toxic emissions, water and ground
pollution, and noise impacts sanctions violence against innocent
citizens in favor of highly profitable airline operations. FAA's
response: There are many Federal, State, and local environmental
protection and safety laws and regulations in effect. The evidence of
such laws and regulations is found in the requirements expressed in
Order 1050.1E.
A commenter notes that appendix A is a very good compendium of
environmental requirements and guidance, but recommends that it be
deleted from the order and included in a FAA NEPA manual (or desk
reference) along with EIS ``how-to'' information. FAA's response: FAA
has decided to retain appendix A in its final Order as a helpful
attachment to the order. FAA has determined that due to the need to
update its NEPA procedures to aid users, the agency will not change the
format for Order 1050.1E, but will consider changing the format for
subsequent versions of the Order.
Section 1 Comments. The DOI comments that the list of impact
categories should include: Cultural Resources, Threatened and
Endangered Species, and (if Wild and Scenic Rivers are a category)
National Parks and other Sensitive Areas. FAA's response: Cultural
Resources are included in section 11. Threatened and Endangered Species
are included in section 8. National Parks and other sensitive areas are
addressed in a number of other sections where appropriate (i.e.,
sections 4, 6, 12, 14, etc.). The recommended change to the list of
impact categories was not adopted in the final Order.
Beginning Section 2 Comments. A commenter suggested the following
three changes: (1) The section 2.1(c) discussion of direct and indirect
emissions should include a reference to the issues of cumulative
impacts and the need for that type of analysis when appropriate; (2) in
the second to last sentence of section 2.1(c), the sentence should be
clarified to indicate that the concentrations referred to are modeled
concentrations and projected exceedences; and (3) in the section 2.1(i)
discussion on General Conformity, a sentence should be added to
indicate that it is desirable to complete the conformity analysis
before the final EIS. FAA's response: We concur and have adopted the
suggested changes.
A commenter notes the following statement in the order: ``To date,
FAA does not have a list of actions that are presumed to conform.
Notification of such a list and the basis for the
[[Page 33811]]
presumption of conformity will be published in the Federal Register.''
As the commenter reads it, this statement can be understood it two
ways--either as a statement of intention (i.e., the FAA will publish a
list of presumed-to-conform actions) or as a conditional statement of
policy (i.e., if the FAA develops a list of presumed-to-conform
actions, then it will publish that list). How should this statement be
understood? Is FAA developing such a list now, and if so, when does FAA
expect it might become available to the public? FAA's response: It is a
statement of policy. When FAA develops such a list, it will be
published in the Federal Register. However, the statement in question
was removed from the final Order in order to prevent any
misinterpretation.
Regarding section 2.3 ``Significant Impact Thresholds,'' the
following was added in the final Order 1050.1E: ``Potentially
significant air quality impacts associated with an FAA project or
action would be demonstrated by the project or action exceeding one or
more of the NAAQS for any of the time periods analyzed.'' This sentence
was added to identify well-established, quantitative, health-based
criteria for significant air quality impacts.
Regarding section 2.4, subsection 2.4(e) was split and the split-
off portion designated as 2.4(f) (and subsequent subsections re-
numbered accordingly) in the final Order 1050.1E in order to separate
the distinct issues of ``air toxics analysis'' and ``supplemental
analysis of non-aviation sources.''
Also regarding section 2, section 305 of the ``Vision 100--Century
of Aviation Reauthorization Act'' (of 2003) eliminates the requirement
of an air and water quality certification from the governor of a state
for certain airport development projects. The requirement and
associated citations have been removed from section 2 (and section 17)
of Appendix A of the final Order. Specifically, references to the
former requirement (49 U.S.C. 47106(c)(1)(B)) were deleted from the
table of statutes and regulations and sections 2.1(a) and 2.4(b) in the
final Order, and narrative describing the requirement, as proposed in
the third paragraph under section 2.1 of the Federal Register notice,
was removed from the final Order.
Beginning Section 4 Comments. The DOI believes that airports
constructed, modified, or relocated in or near national park units
should be included in this section and further notes that national park
units are not included or considered in the land use compatibility
table or Federal Aviation Regulation Part 150. The NPS and other land
management agencies should be considered as ``local authorities'' in
the context of the text accompanying Table 1. In addition, the DOI
recommends that the use of other noise metrics besides DNL also be
presented here; supplemental analyses will often be necessary. FAA's
response: While some National Park System units are not specifically
listed in Table 1 in Section 4 (14 CFR part 150, Table 1), some of
these units include traditional recreational uses that are delineated
in Table 1 of Section 4. Moreover, section 4.3 recognizes that
``[s]pecial consideration needs to be given to whether Part 150 land
use categories are appropriate for evaluating noise impact on unique
and sensitive section 4(f) properties. For example, Part 150 land use
categories are not sufficient to determine the noise compatibility of
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, or to address noise effects on wildlife.'' The NPS is a
Federal agency with specific jurisdiction and expertise, and is
properly not included in the definition of ``local authorities''.
Section 14 of Appendix A addresses special noise consideration and
analyses for unique areas such as national parks, including the use of
supplemental noise metrics.
Regarding section 4.1(b), a commenter notes that this section
requires the airport sponsor to provide documentation in support of the
``compatible land use'' grant assurance. This appears to be part of the
FAA's effort to encourage local governments to take a more reasonable
approach to airport land use compatibility. Of course, many airport
operators do not have land use jurisdiction and are dependent on the
good will of other local governments. The FAA must acknowledge this
when it reviews the ``evidence'' provided in these future environmental
documents. FAA's response: The FAA does understand and acknowledge that
airport proprietors may have limited or no land use jurisdiction. The
compatible land use assurance includes the qualification ``to the
extent reasonable''.
Regarding section 4.1(b), a commenter notes that it is clear how
the compatible land use assurances relate to land use planning and
regulation in guiding future development. Yet the last sentence says
the compatible land use assurances also ``must be related to existing
and planned land uses.'' What does this statement mean? What does the
FAA envision with respect to compatible land use assurances relating to
existing land use? Does this refer to some means of phasing out non-
compatible existing land uses? FAA's response: If the existing use of
land is compatible with airport operations, the airport proprietor is
expected to take appropriate action, to the extent reasonable, to
maintain compatibility.
Regarding section 4.2 comments, a commenter noted that this section
includes the land use compatibility table from 14 CFR part 150. It
includes an apparent contradiction. While the text states simply that
land use compatibility is to be determined from the table, the ``Note''
in the table itself has this Part 150 disclaimer: ``these designations
do not constitute a Federal determination that any use of land * * * is
acceptable or unacceptable. * * *'' The responsibility for determining
the acceptable and permissible land uses and the relationship between
specific properties and specific noise contours rest with the local
authorities. The language in the text should be amended to agree with
the table. The commenter also notes that Table 1 includes a reference
to Part 150 that seems inappropriate here. If this is intended, clarity
would be improved by specifically noting in the text that Table 1 is
taken verbatim from 14 CFR part 150. The commenter also recommends that
the section discuss situations where local governments have officially
enacted land use compatibility guidelines that are stricter than Part
150. In California and Oregon, for example, many communities have noise
standards in their comprehensive (or general) plans. Often, these
standards set compatibility thresholds for residential uses at levels
below 65 DNL (or CNEL). FAA's response: We concur with the thrust of
the recommendations and have modified the text accordingly.
Regarding table 1, a commenter notes that the text indicates that
areas experiencing a DNL of 65 dB are compatible with residential use.
The DNL 65 dB level, which qualifies residential owners to free
soundproofing of a single room, is often referred to as a ``speech
interference threshold.'' This is a gross misnomer, and a direct
consequence of the year-long average feature of DNL. FAA's response:
The FAA disagrees with several aspects of the commenter's statements.
The FAA and other Federal agencies have adopted DNL 65 dB as their
noise threshold of significance. It has been well established that DNL
correlates well with community response to noise. (Schultz, Fidell, and
Finegold). See appendix A, section 14.
Regarding section 4.3, the DOI believes that the Part 150 land use
categories are not appropriate for
[[Page 33812]]
national park lands protected under section 4(f) (of the DOT Act). In
the context of national parks, the DOI believes that the thresholds
provided in Appendix A are generally not relevant and do not provide an
adequate test of significance. FAA's response: Section 4.3 was amended
in the final Order to state that part 150 land use categories are not
sufficient to determine the noise compatibility of 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, or
to address noise effects on wildlife. As noted in section 6.1 of
Appendix A, FAA will consult with officials having jurisdiction over
affected parklands when determining the severity of noise impacts and
other impact categories as appropriate.
Regarding section 4.3, a commenter believes that the last sentence
is troubling. By making the statement, the FAA is opening the door to
ad hoc case-by-case determinations of land use compatibility for
section 4(f) uses [section 4(f) of the DOT Act]. Perhaps this is the
only practical way to handle this, but it seems fairness and
consistency would be better served by establishing some criteria or
guidelines on which to base compatibility determinations for these
uses. (Some guidance is provided in section 6.2, f, g, h, and i, but it
is quite general.) At a minimum, the FAA should provide and continually
update a compilation of land use compatibility decisions that have been
made with respect to section 4(f) properties in environmental documents
so that FAA reviewers and EA/EIS preparers have some basis for making
land use compatibility decisions and mitigation plans. FAA's response:
The last sentence in section 4.3 has been clarified in the final Order
to recognize that Table 1 in section 4.2 includes guidelines applicable
to traditional recreational uses that may be protected under section
4(f) of the DOT Act.
Beginning Section 6 Comments. The DOI believes that National Park
System (NPS) units, which have greater levels of protection and
stronger mandates, should be a separate impact topic. As currently
written, NPS units would only receive consideration under the FAA order
under section 4(f) of the DOT Act. However, even if section 4(f) did
not exist, NPS units would require special treatment from Federal
agencies. The DOI is concerned that units of the NPS may be
significantly adversely affected by FAA actions many miles from the
focus of the action and at much lower noise levels than DNL 60 or 65.
Although noise can interfere with normal activities associated with the
use of NPS units, unlike other ``noise sensitive areas'' as the term is
used in the FAA procedures, noise in parks is both a human and a
resource issue. NPS policy is to take action to prevent or minimize all
noise that, through frequency, magnitude or duration, adversely affects
the natural ambient soundscape, other park resources or values, or
exceeds levels that have been identified as acceptable to, or
appropriate for, visitor uses at the sites being monitored. Therefore,
units of the NPS should be in a separate category, not just considered
under section 4(f) or as a ``noise sensitive area.'' The DOI also
believes that socioeconomic impacts are part of the human environment
and should be fully considered in NEPA documents. The NPS possesses
special expertise to assess the economic impacts and benefits of
actions on park resources. FAA's response: Since there is no
legislation directing Federal agencies (other than the NPS) to take
particular actions according to specified criteria for units of the
national park system, it would not be consistent with the structure of
Order 1050.1E to establish a separate impact topic for national parks.
FAA disagrees that NPS units only receive consideration under section
4(f). While FAA does not agree with NPS that all human-made noise is an
adverse impact on national parks, national parks are recognized under
several impact topics in the Order, including noise, as unique areas
that merit special consideration. Socioeconomic impacts are considered
in FAA environmental documents, and guidance on socioeconomic impacts
is in section 16 of Appendix A.
Regarding section 6.1, the DOI believes that section 4(f) of the
DOT Act is inaccurately quoted. The text states prudent and feasible
alternatives ``or'' all possible planning to minimize harm. The law
uses ``and'' rather than ``or,'' requiring that both conditions be met.
FAA's response: We concur and have made the necessary corrections. The
DOI also states that all units of the national park system possess
national significance by definition, and are included under section
4(f). This should be stated in section 6.2 of Appendix A along with the
other categories. FAA's response: FAA agrees that units of the national
park system have national significance, but does not believe that
section 6.2 of Appendix A needs to be revised. Section 6.2 does not
provide a list of all section 4(f) properties that are significant.
Rather, section 6.2(a) presumes that any part of a publicly owned park
is significant unless the officials with jurisdiction over the park
determine that the park is insignificant and FAA concurs.
Regarding section 6.2(e), the DOI states that the NPS has sole
authority to determine impairment to resources and visitors in units of
the national park system, and must concur in any such determination by
the FAA in a 4(f) [of the DOT Act] determination. FAA's response: The
FAA disagrees and has so stated in a June 6, 2000 letter from the FAA
Assistant Administrator for Policy, Planning, and International
Aviation to the Deputy Director of the NPS. Under NEPA, the
responsibility for assessing the environmental impacts of proposed
actions rests with the decision-making Federal agency. This
responsibility does not transfer to the NPS at the boundary of a
national park. With respect to section 4(f) of the DOT Act, the FAA is
required to consult with the NPS regarding direct or constructive use
of a national park by an aviation project, but is not required to
obtain NPS concurrence. The FAA consults closely with the NPS regarding
impacts on national parks and seeks consensus to the extent possible.
Further regarding section 6.2(e), a sentence proposed under section
6.2(i) is revised and moved to section 6.2(e) of the final Order to
clarify that it applies to all constructive use determinations and to
all types of project-related impacts, and not simply noise impacts on
properties located in a quiet setting, which is the subject of section
6.2(i). The sentence is also revised to clarify that FAA's
determination is whether project-related noise or other impacts would
constitute a constructive use under section 4(f) of the DOT Act. This
modification does not change the meaning or effect of the sentence as
previously worded, which indicated that FAA would determine whether
project-related noise impacts would substantially impair the resources
because substantial impairment constitutes constructive use. Finally, a
new sentence is added to the final Order that ``Following consultation,
FAA is ultimately solely responsible for section 4(f) applicability and
determinations.'' This sentence describes long-standing existing
authority and does not confer any new authority upon FAA. The sentence
is added to avoid confusion of roles between FAA and consulted
officials having jurisdiction over section 4(f) resources.
Regarding section 6.2(f), two additional sentences are added to the
final Order to emphasize that impairment of a protected resource must
be substantial in order to constitute constructive use under section
4(f) of the DOT Act. The second sentence
[[Page 33813]]
provides an example of aircraft noise, which is the most common trigger
for constructive use by an aviation proposal. These sentences simply
clarify, but do not change, long-standing definitions of section 4(f)
constructive use.
Regarding section 6.2(g), the DOI believes that the land use
compatibility guidelines are not applicable to units of the national
park systems, and DNL has little or no applicability. FAA's response:
Section 6.2(i) of Appendix A provides special instructions on the
applicability of the land use compatibility guidelines to section 4(f)
(of the DOT Act) properties of unique significance, such as national
parks. There is also special guidance for areas such as national parks
under the impact category of noise (section 14 of appendix A).
Regarding section 6.2(h), the DOI notes that the text ``No
Effects'' should be changed to ``No Historic Properties Affected.''
FAA's response: We concur and have made the recommended change.
Further regarding section 6.2(h), the FAA concluded that in it's
effort to make a more general statement in proposed Order 1050.1E of
the applicability of section 4(f) to certain archeological resources,
the intent of the original sentence in paragraph 5 of Attachment 2,
Order 1050.1D, which established the conditions under which section
4(f) does not apply, was lost. The FAA further concluded that the
proposed revised sentence only served to add confusion to the issue.
Our intent is to carry forward the existing definitive statement
provided in Order 1050.1D and to maintain consistency with the
requirements and provisions of the parallel FHWA regulation (23 CFR
771.135g(2)). Accordingly, the sixth sentence of section 6.2(h) is
revised in the final Order to carry forward into Order 1050.1E the
existing sentence in Order 1050.1D, modified by adding the text to
emphasize that a determination that an archeological resource is of
value chiefly for data recovery purposes and is not important for
preservation in place can only be made after consultation with the
appropriate SHPO/THPO. The sentence in question now reads: ``Although
there may be some physical taking of land, section 4(f) does not apply
to archeological resources where the responsible FAA official, after
consultation with the SHPO/THPO, determines that the archeological
resource is important chiefly for data recovery and is not important
for preservation in place.'' Further, a new (seventh) sentence is
adopted in the final Order reading ``FAA is responsible for complying
with section 106 of the National Historic Preservation Act (NHPA) (see
section 11 of this appendix) regardless of the disposition of section
4(f).'' The new sentence is added in order to emphasize that section
4(f) of the DOT Act and section 106 of NHPA are independent
requirements and each, if found applicable, must be complied with.
Further regarding section 6.2(h), the final Order was amended to
state that part 150 guidelines may not be sufficient to determine the
noise impact on historic properties where a quiet setting is a
generally recognized purpose and attribute, such as a historic village
preserved specifically to convey the atmosphere of rural life in an
earlier era or a traditional cultural property.
Regarding section 6.2(i), the DOI believes that Part 150 guidelines
are not applicable to national parks, and the issue is not simply the
effects of noise on people as stated, but the effects of noise on park
resources and values as well. FAA's response: The FAA is aware of the
DOI's views. Section 6.2(i) provides for special consideration beyond
Part 150 guidelines, including FAA consultation with officials having
jurisdiction over affected section 4(f) resources when determining
project-related noise impacts on those resources. The final Order was
amended after the first sentence to read: ``Additional factors must be
weighed in determining whether to apply the thresholds listed in Part
150 guidelines to determine the significance of noise impacts on noise
sensitive areas within national parks, national wildlife refuges, and
historic sites including traditional cultural properties. The Part 150
land use compatibility table may be used as a guideline to determine
significance of noise impacts on section 4(f) properties to the extent
that the land uses specified bear relevance to the value, significance,
and enjoyment of the lands in question. For example, Part 150
guidelines may not be sufficient for all historic sites (see 6.2h
above) and do not adequately address the effects of noise on the
expectations and purposes of people visiting 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.'' The
FAA and National Park Service are seeking to develop special criteria
for national parks.
Further regarding section 6.2(j) of the final Order, the FAA added
``mitigation of project impacts'' to the description of measures that
may be employed to minimize harm to section 4(f) resources.
Regarding section 6.2(l), the DOI suggests adding wilderness areas
to 4(f) properties. FAA's response: Wilderness areas are addressed in
section 6.2(b).
Regarding section 6.3, the DOI believes that the same standards for
use and constructive use should determine significance, not an
additional threshold of ``eliminate or severely degrade.'' If a project
uses a 4(f) property, it must meet the standard of no prudent and
feasible alternatives and all possible planning to minimize harm before
it can proceed. The significant impact threshold proposed in section
6.3 of Appendix A is not an established standard, and it is one that
the NPS disagrees with respect to national park units. FAA's response:
The significant impact threshold in section 6.3 of Appendix A (related
to section 4(f) of the DOT Act) has been reworded to explicitly
reference constructive use as the basis for determining significance of
effects. The significant impact threshold is reworded for clarity and
continuity with the threshold that has been in place since 1985 in FAA
Order 5050.4B, Airport Environmental Handbook. The earlier proposed
wording was not intended to change the threshold, but gave the
appearance of change because it was expressed differently, that is: ``A
significant impact would occur when a proposed action would eliminate
or severely degrade the purpose of use for which the section 4(f) land
was established and mitigation would not reduce the impact to levels
that would allow the purpose or use to continue.'' The revised wording
adopted in the final Order is: ``A significant impact would occur
pursuant to NEPA when a proposed action either involves more than a
minimal physical use of a section 4(f) property or is deemed a
``constructive use'' substantially impairing the 4(f) property, and
mitigation measures do not eliminate or reduce the effects of the use
below the threshold of significance (e.g., by replacement in kind of a
neighborhood park). Substantial impairment would occur when impacts to
section 4(f) lands are sufficiently serious that the value of the site
in terms of its prior significance and enjoyment are substantially
reduced or lost. Following this sentence, an additional sentence is
added to clarify that if a proposed action has a direct or constructive
use, FAA is responsible for complying with section 4(f), even if the
impact is less than significant for NEPA purposes. These changes are
also responsive to the DOI's comments on section 6.3 that the same
standards for use and constructive use should determine significance,
and that if a project uses a 4(f) property, it must meet the standard
of no prudent and feasible
[[Page 33814]]
alternatives and all possible planning to minimize harm before it can
proceed. DOI further commented that the significant impact threshold
proposed for section 6.3 is not an established standard, and it is one
that the NPS disagrees with respect to national park units. In
response, FAA is retaining the established standard. FAA is defining
significance in terms of constructive use except where FAA and the
jurisdictional agency agree that the constructive use has been
effectively eliminated or reduced below significant levels. (Such a
determination is not expected for national parks, but is not uncommon
with respect to direct or constructive use of a portion of an urban
playground that is replaced in kind.) FAA is also complying with the
requirements of section 4(f) of the DOT Act at all times if a project
uses a 4(f) property even if impacts are below significant levels.
Finally, the last sentence proposed in section 6.3 regarding
consultation with jurisdictional officials when determining the degree
of impairment is deleted from the final Order because this
determination occurs earlier in the process and is addressed in section
6.2(e).
Section 7 Comments. Regarding the table at the head of the section,
the Wisconsin DOT commented that under the heading of oversight agency,
``USDA'' should be prefixed to Natural Resource Conservation Service.
FAA's response: We concur and have adopted the requested change.
Section 8 Comments. Regarding the table heading the section, the
Department of Agriculture commented that ``The ADC Act of 1931'' should
be included under the ``Statute'' heading and ``Wildlife Services''
should be listed under the ``Oversight Agency'' heading. This policy
will be used by the FAA's NEPA people and District offices at a
minimum. The FAA should include in their NEPA policy that Wildlife
Services has wildlife management responsibility and expertise. FAA's
response: We have added the ADC Act to the table and new text as
section 8.2(c), to ensure that consultation and coordination with
wildlife management specialists from the U.S. Department of
Agriculture's Wildlife Services will occur as appropriate.
The DOI comments that section 8 does not address FAA
responsibilities under the Migratory Bird Treaty Act (MBTA). Birds
protected by the MBTA are often taken on or in the vicinity of airports
during control operations, and such take requires a permit from the
USFWS. Although the MBTA does not expressly protect bird habitats, the
FAA must consider the impacts of airport construction and expansion
activities on migratory birds and their habitats under NEPA and other
federal regulations. New airports are often constructed on or near
wetlands, and these proposed procedures should also consider conflicts
that might arise between FAA and bird conservation activities promoted
by legislation such as the North American Wetlands Conservation Act.
FAA's response: A split developed in the federal circuit courts of
appeals concerning the applicability of the MBTA to Federal agencies
after the FAA issued 1050.1E for comment. Compare Humane Soc. of the
U.S. v. Glickman, 217 F.3d 882 (D.C. Cir. 2000) and Sierra Club v.
Martin, 110 F.3d 1551 (11th Cir. 1997). In addition, Executive Order
13186, ``Responsibilities of Federal Agencies to Protect Migratory
Birds,'' was issued ``in furtherance of the purposes of'' among other
authorities, the MBTA. The last paragraph in Section 2 of the E.O.
states ``These migratory bird conventions impose substantive
obligations on the United States for the conservation of migratory
birds and their habitats, and through the Migratory Bird Treaty Act
(Act), the United States has implemented these migratory bird
conventions with respect to the United States. This Executive Order
directs Executive departments and agencies to take certain actions to
further implement the Act.'' The FAA has accordingly revised Section 8
to add language addressing both the MBTA and E.O. 13186. The MBTA
requires private parties (and Federal agencies in certain federal
circuits) to obtain a permit to hunt, take, sell, or engage in other
activities that harm migratory birds, their eggs, or nests. E.O. 13186
requires Federal agencies to enter into Memoranda of Understanding
(MOU's) with the Fish and Wildlife Service to promote the conservation
of migratory birds. Among other things, these MOU's must ensure that
environmental analyses of Federal actions under NEPA and other
established environmental review processes evaluate the effects of
actions and agency plans on migratory birds. Airport sponsors are
responsible for meeting wildlife control measures to ensure safe
airport operations. When these measures affect migratory birds, the
sponsor must obtain a permit from USFWS any permit required under the
MBTA. As a result, USFWS is responsible for preparing the NEPA document
for the issuance of that permit. During FAA's environmental analysis of
a new airport, or for that matter, any airport project requiring FAA
approval, the agency evaluates the effects of the proposed project on
birds, wetlands, and other affected resources, in compliance with NEPA
and other applicable environmental requirements.
The DOI believes that impacts on Fish, Wildlife and Plants are not
just an endangered species issue. In the context of all Federal
agencies' responsibilities to minimize impacts on the environment,
impacts on all species must be considered. FAA's response: Section 8 of
Appendix A is intended to identify and briefly discuss all major
statutes and regulations that may be relevant when fish, wildlife, and
plants are potentially impacted by a proposed project. Thus, this
section does not limit its scope to a discussion of potential impacts
to federally endangered species. Instead, this section acknowledges
that impacts to fish, wildlife, and plants should be considered based
on myriad statutes and regulations.
Regarding section 8.1(a), the DOI recommends that the reference to
section 10 of the Endangered Species Act (ESA) should be removed.
Recovery plans are not developed under section 10, they are described
in section 4. The DOI further comments that the sentence with the
reference to candidate species is incorrect and should be changed to
read: ``If a species has been proposed for listing as threatened or
endangered or critical habitat has been proposed, section 7(a)(4)
states that each agency shall confer with the Services.'' FAA's
response: We concur and have cited section 4 and adopted the
recommended text. The FAA has also added a new sentence properly
referencing section 10 and it's associated conservation plan.
Regarding section 8.1(g), the Department of Agriculture notes that
section 8.1(h) states one of the goals of the FAA's systematic,
interdisciplinary approach used during the decision making process is
to ``maintain the health, sustainability, and biological diversity of
ecosystems * * *.'' Is this an appropriate goal at an airport, given
the potential for wildlife to be a hazard to aircraft and passenger
safety? Also, the section states that the ecosystem approach considers
all relevant ecological and economic consequences, but there is no
statement considering or addressing the safety of the flying public.
FAA's response: We concur with the observation and have amended the
section 8.1(g) to add FAA's mission to ensure aviation safety with
respect to wildlife that are hazards to aviation.
Regarding section 8.2, the DOI comments that there are several
mistakes regarding the Endangered Species Act and the section 7
consultation process. The DOI states that it is difficult to identify
specific
[[Page 33815]]
lines where corrections should be made, as much of the FAA's proposed
language regarding section 7 consultation procedures is incorrect.
FAA's response: We have revised section 8.2 of Appendix A to correct
and clarify the process.
Regarding section 8.2(c), the DOI believes that the discussion of
procedures is misleading. The FAA should refer to the interagency
consultation regulations (50 CFR 402.13) and the Consultation Handbook
for guidance on informal consultation. The regulations at 50 CFR 402.12
regarding Biological Assessment(s) (BA's) also pertain to this section.
In general the informal consultation process includes all discussions
and correspondence between the Fish & Wildlife Service (FWS) and
National Marine Fisheries Service (NMFS) and the Federal agency which
are designed to assist the Federal agency in determining whether formal
consultation or a conference is required. Informal consultation ends
when the Federal agency makes a determination of whether the proposed
action will adversely affect listed species or critical habitat. If the
Federal agency determines that the proposed action is not likely to
adversely affect listed species or critical habitat, and the FWS and/or
NMFS concurs with this determination in writing, section 7 consultation
is complete. If the Federal agency determines that the proposed action
will adversely affect listed species or critical habitat, or the FWS/
NMFS does not concur with the determination of not likely to adversely
affect, the Federal agency must request formal consultation. FAA's
response: We have revised section 8.2 of Appendix A to clarify the
process.
Regarding section 8.3, the DOI notes that ``significant impacts''
are defined in this section as when the FWS or NMFS determines that the
proposed action would be likely to jeopardize the species. If this
definition is applied to the description of extraordinary
circumstances, actions that adversely impact listed species up to the
point of jeopardizing the species could be categorically excluded from
further environmental analysis. FAA's response: In all cases, the FAA
will fulfill its responsibilities under the Endangered Species Act in
addition to NEPA responsibilities. For NEPA purposes, if a proposed
action would result in potential impacts on endangered or threatened
species that are not individually or cumulatively significant, a CATEX
is allowed under CEQ regulations. A CATEX is not precluded due to
adverse impacts; it is precluded due to significant impacts.
Regarding section 8.3, the DOI comments that the words
``significance,'' ``significant,'' and ``significantly'' are used much
too broadly. In section 8.3, the FAA chooses to establish a level of
significance for endangered species impacts. DOI believes it is
inappropriate to connect the term ``significant impact'' as used in
NEPA with the determinations made during section 7 [of the Endangered
Species Act] consultation. Significant impacts must be determined on a
case-by-case basis and should not be tied to section 7 consultations.
Significant impacts may occur without jeopardizing the existence of a
listed species. This threshold is much too high, and does not apply to
non-listed species at all. FAA's response: We agree that impacts may be
significant where FWS or NMFS have determined that a proposed action is
not likely to jeopardize the existence of a species. Section 8.3 of
Appendix A was not intended to set forth a per se rule prohibiting the
FAA from issuing a finding of significance under the NEPA unless the
DOI has issued a jeopardy opinion. The text of this section has been
revised in the final Order to clarify that serious impacts like the
threat of extinction are factors weighing in favor of a finding of
significance, however lesser impacts, including impacts on non-listed
species, may also be significant. In consultation with agencies having
jurisdiction or specialized expertise (including Tribes), FAA NEPA
practitioners should consider other relevant factors in assessing
potential significance such as the existence of uncertainty regarding
potential impacts and impacts on biodiversity and the ecosystem. The
determination of significance should be based on the best available
scientific information concerning factors of population dynamics that
affect the sustainability of species populations.
Section 10 Comments. The DOI comments that it may be useful to
highlight that CERCLA [Comprehensive Environmental Response,
Compensation, and Liability Act] includes provisions for notification
of and coordination with natural resource trustees (e.g. DOI, NOAA,
DOD, DOE, States, Tribes) where there are potential resource damages
and/or settlement negotiations with responsible parties due to
contaminant releases. FAA's response: We concur and have added text to
this effect in section 10.1(a).
Section 11 Comments. Regarding section 11.1, the DOI comments that
it is inappropriate to use a CATEX for a project with an ``adverse
effect'' on a National Register property. FAA's response: It is noted
at 36 CFR 800.8(b)(1) that a project, activity or program that falls
within a NEPA categorical exclusion may still require NHPA section 106
review. A categorical exclusion from NEPA does not mean that section
106 may not apply. As previously stated, a CATEX is not precluded based
on adverse effects, so long as those effects are not significant.
Regarding section 11.1, the Hawaii DOT comments that discussion of
Native Hawaiian religious sensitivities in this section and in the
context of Environmental Justice can be a complicated matter in
relation to Hawaii airports because of the ceded land issue. Because
airport revenues cannot legally be used to reimburse claims by the
Office of Hawaiian Affairs, the state has to compensate with other
funds. Until this statewide issue is settled, ancient religious sites
may be remembered on airports. FAA's response: Comment noted.
Further regarding section 11, the FAA re-drafted section 11 in the
final Order to clarify the requirements of the Federal Archeology
Program and applicable Federal historic and cultural resource
preservation laws and to correct technical inconsistencies with those
requirements. Sections 11.2(b) and 11.2(l)(4) and (5) have been revised
to reflect the Advisory Council on Historic Preservation's proposed
amendment to 36 CFR part 800 in response to National Mining Association
(NMA) v. Fowler, 324 F.3d 752 (DC Cir. 2003), rev'g NMA v. Slater, 167
F. Supp.2d 265 (DDC 2001) at 68 FR 55354 (proposed September 25, 2003).
The phrase in the second sentence of 11.2(b) ``and the SHPO/THPO
concurs'' has been deleted because there is no such requirement at this
stage in the 106 process under the applicable regulations. Sections
11.2(e)-(h) have been changed to clarify the provisions relating to
Traditional Cultural Properties and certain other cultural resources,
to distinguish those resources which are not TCP's but may qualify for
protection, and to make the terminology more consistent with applicable
laws, regulations, and Executive Orders. Section 11.3 was changed in
the final Order 1050.1E to add a statement regarding adverse effect
findings from the section 106 regulations of the National Historic
Preservation Act. Further, the text ``feasible and prudent'' prior to
the word ``alternatives'' was deleted from the second sentence in the
final order to be consistent with the section 106 regulation cited
above. The two sentences in question now read: ``Regulations at 36 CFR
800.8(a) state
[[Page 33816]]
that an adverse effect finding does not automatically trigger
preparation of an EIS (i.e., a significant impact). The section 106
consultation process includes consideration of alternatives to avoid
adverse effects on National Register listed or eligible properties; of
mitigation measures; and of accepting adverse effects.''
Regarding section 12.1(a), when consideration is given to light
emissions and visual impacts on people and properties covered by
section 4(f) of the DOT Act, the FAA believes that the guidance of
section 6 of Appendix A, ``Department of Transportation, Section 4(f)''
should be used to determine section 4(f) use and significant impact.
The recommended reference to section 6 of Appendix A would ensure that
the criteria for substantial impairment set forth in section 6 are
appropriately applied to light emissions and visual impacts. The
foregoing change is adopted in the final Order.
Regarding section 12.2, the DOI comments that in the context of
national park units that may be affected by light emissions by airports
or similar facilities, annoyance is not the issue. The issue is impacts
on the use and/or characteristics of the unit, and preserving the
resources in an unimpaired natural condition. In some cases, the night
sky may be an important part of the park's purpose. FAA's response:
Sections 12.2(b) and 12.3(b) deal with visual and aesthetic impacts
that differ from annoyance.
Regarding section 12.2(b), the FAA added to the final Order text,
to the effect, that the mere visual sight of aircraft, aircraft
contrails, or aircraft lights at night, particularly at a viewing
distance that is not normally intrusive, should not be assumed to
constitute an adverse impact.
Section 14 Comments. Regarding section 14 in general, the DOI
believes that the significant impact threshold, analysis, and noise
methodology (e.g., DNL and CNEL) are mostly inapplicable to units of
the national park system. FAA's response: Although DNL is the primary
metric for aircraft noise exposure, the FAA recognizes that there are
situations, involving locations within the National Park System and
elsewhere, in which it is appropriate to perform supplemental noise
analysis, which may include the use of metrics other than DNL, in
characterizing specific noise impacts from a proposed action. As
explained in section 14 of Appendix A, one of the uses of supplemental
noise analysis is to describe aircraft noise impacts for specific
noise-sensitive locations. The significance threshold in section 14.3
has been qualified to note that special 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. Section 14.3
further states that 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. In the final
Order, section 14.5(g) has been revised to provide specifically that
the FAA will consider use of appropriate supplemental noise analysis in
consultation with the officials having jurisdiction over the properties
in question.
Regarding section 14 in general, a commenter provides the following
observations and recommendations: Observations. (1) Noise is the
biggest environmental problem in aviation. In over 20 years of use of
65 DNL as a criterion, the communities around airports have not agreed
that predicted noise exposures under 65 DNL constitute ``no significant
impact.'' (2) Aircraft noise has been reduced through technological
developments over this time, but Stage 3 jets are not ``noise-less.''
In fact levels in excess of 85 dBA (max level) have been measured from
these jets at altitudes of over 3,000 feet. Thus, they would interfere
with speech communication in the classroom, according to the FICON
report. (3) Every time flight paths or corridors are changed, newly-
impacted communities complain vociferously. This occurs even when
changes in impact are below 1.5 dB in DNL, predicted noise exposures
are only 55 DNL, or aircraft are over 3,000 feet. Many have stated that
the changes are ``illegal,'' even though with the current procedures
they are not. (4) Jet arrivals 15 nautical miles away and at altitudes
over 8,000 feet result in nighttime complaints about sleep
interference. So do turboprop operations (although at lower altitudes).
Recommendations. (1) Require environmental noise assessments for all
projects to 55 DNL. FAA's response: The recommendation is not accepted
as a mandatory requirement. FAA's guidance in Order 1050.1E is
consistent with the conclusions and recommendations of the FICON report
on the scope of noise analyses within the NEPA context. Recommendation
(2) Require environmental noise assessments for all changes in
nighttime procedures (10 pm to 7 am), showing where impact is increased
and where it is reduced around the affected airport. FAA's response:
The FAA disagrees that all changes during nighttime hours should
generate a detailed noise assessment. The nature of the nighttime
weighting of the DNL metric already makes it more sensitive to changes
in air traffic during nighttime hours, triggering an assessment in
appropriate cases. Also, see response to Issues of Special Interest
topic DNL 65 dBA provided earlier in this preamble. Recommendation (3)
Change the 3,000 foot exemption to 10,000 feet. FAA's response: See
response to Issues of Special Interest topic 3000 ft. CATEX provided
earlier in this preamble. Recommendation (4) If noise monitoring
information is available, require a comparison of a current year
contour prediction with comparable measured data. FAA's response: Noise
monitoring can be a useful supplement, but is prone to errors since
there is no standard noise monitoring methodology. As such, it cannot
be used to replicate noise contours. The FAA suggests that monitoring
be done on a voluntary basis. Recommendation (5) Revise noise-sensitive
and noise compatibility criteria (section 4 of appendix A) to account
for known speech interference effects. As a minimum, the
``compatibility'' DNL should not be higher than 60 DNL. A future goal
could be the compatibility criteria developed by HUD in the 1970's,
where compatible DNL's for residential areas were on the order of 45
dBA. FAA's response: The FAA does not believe there is an adequate
basis for changing the threshold of significance. State and local
governments have the discretion to define land use compatibility
criteria that differ from the Federal guidelines. The FAA believes the
reference to 45 dBA is an interior compatibility guideline, not an
exterior one. The FAA's compatibility goal for insulating the interiors
of noise sensitive structures is 45 dBA. Also see response to Issues of
Special Interest topic DNL 65 dBA provided earlier in this preamble.
Regarding section 14 in general, a commenter believes that, while
recognizing that the DNL is the recommended noise metric and should be
used as such for purposes of assessing aircraft noise exposure, the
revised order appears to open the door to supplementing the DNL metric
with other ``specific noise effects'' on a potentially open-ended basis
(``to assist the public's understanding of noise impacts'').
Unfortunately, the proposal does not sufficiently explain and
circumscribe the instances in which the FAA might look to such
supplemental
[[Page 33817]]
``noise effects'' and how, if at all, they would be evaluated in the
context of a particular federal action. It therefore creates a
potential for misinterpretation and misapplication of the underlying
regulatory requirements. Indeed, the discussion of these effects and
their impacts provides little in the way of guidance in their potential
application other than to indicate that they will be considered on an
ad hoc basis. Underlying this deficiency is the reality that the
referenced supplemental noise effects have little significance in
assessing noise impacts other than in situations involving extremely
sensitive noise impact areas such as national parks, hospitals,
schools, and the like. The proposed revised order should clarify the
limited significance of applicability of such supplement ``noise
effects'' in the NEPA context and ensure that the consideration of such
effects is addressed only in appropriate and carefully circumscribed
contexts consistent with existing regulatory provisions relating to the
use of metrics, such as those set forth in Part 150 of the Federal
Aviation Regulations. FAA's response: Comment noted. As stated in
section 14.5 Supplemental Noise Analysis, these supplemental metrics
are useful in characterizing specific events and conveying to the
affected communities a clearer understanding of the potential on their
living environments as a result of proposed changes in aircraft
operations. (See FICON report, August 1992 and FICAN finding on
awakenings from sleep, May 1998.)
Regarding section 14 in general, a commenter believes that if any
DNL contours or data are used in noise analysis, it must be made a
requirement that the estimated accuracy of the modeled data, as
dependant on the assumptions made in the modeling and as compared to
actual measurements, should be specified. The commenter also recommends
that a table should be provided translating the dB data as linear ratio
to the average environmental non-aviation noise level. FAA's response:
FAA is confident in the accuracy of our noise models to determine the
effects of aircraft noise. FAA has no requirements regarding noise
measurement since short-term measurements can be less accurate than
modeled data, which are based on specific controlled measurement data.
Noise measurements cannot practically replicate noise contours and
cannot be used for forecasting future impacts. Further, measurements to
establish ambient non-aviation noise levels are very difficult to
acquire accurately.
Regarding section 14 in general, a commenter believes that as long
as the FAA continues basing its policies and thresholds on DNL values
(with only occasional consideration of other metrics) the problems of
the past will persist. The root cause of the problem is that DNL
incorrectly uses a long-time, energy-averaging process to characterize
the effects of flyovers, which are intrinsically short duration events,
with significant amplitude excursions above the ambient noise.
Furthermore, DNL routinely combines levels ranging from 40 to 100 dB,
which corresponds to averaging (acoustic energy) values ranging from 1
to 1,000,000, respectively. Averaging objects of such an extreme
dynamic range is not a good scientific practice because it tends to
obscure the true effects of the ``high energy events'' associated with
flyovers. FAA's response: See response to Issues of Special Interest
topic DNL 65 dBA provided earlier in this preamble.
Regarding section 14 in general, a commenter notes that this
section is based entirely on the metric of a noise contour which
exceeds 65 decibels. The 65 dB threshold is inadequate when comparing
the noise impact of increased plane traffic over neighborhoods that are
adjacent to properties of unique significance such as national parks.
The text of Appendix A does state that such a situation should be
considered when making an assessment of noise impact. Unfortunately,
this clause which protects areas of unique significance from improper
noise assessments is negated by a prior paragraph in section 14 which
empowers the FAA to use the noise impact model AEM and to make a
determination of no significant impact using that model which is based
on the 65 dB threshold. This section creates a system that negates the
use of noise models with lower thresholds, even when appropriate, and
creates a conflict of interest by allowing the FAA to apply the noise
models themselves. This entire section should be rewritten to require
EPA oversight or objective third party review of FAA noise assessments.
FAA's response: The instructions on the use of AEM do not preclude
special noise consideration of locations of unique sensitivity,
including such locations in national parks. FAA continues to support
the Federal land use compatibility guidelines for residential land uses
and for parks to the extent relevant to activities in the parks.
Sections 4, 6, and 14 of Appendix A have been revised to give special
consideration to areas of unique significance such as national parks.
Neither NEPA nor CEQ regulations mandate third-party oversight by EPA
or any other entity of FAA's noise assessments. FAA's noise assessments
are subjected to scrutiny by other agencies and the public through the
NEPA process.
Regarding section 14.1, the DOI comments that the section fails to
mention the need for and applicability of ``supplemental analyses.'' It
is not sufficient to simply say that Part 150 categories may need some
adjustment with respect to national parks; they do not apply at all. In
addition, while FAA can certainly specify what types of analysis it
normally finds prudent and acceptable, the DOI knows of no FAA
authority to limit presentation of additional analysis which an agency,
such as the NPS, or other entity believes is important for the
decision-maker's consideration in assessing the full extent of impacts.
DOI believes there is enough controversy surrounding the applicability
of specific noise methodologies in specific situations, notably
national park situations, which additional flexibility should be
provided in these procedures to present the most relevant information
and analyses to the decision-makers and the public. FAA's response:
Guidance in the final Order 1050.1E has been strengthened to require
the weighing of additional factors in determining whether to apply the
thresholds listed in Part 150 land use guidelines to determine the
significance of noise impacts on noise sensitive areas within national
parks, national wildlife refuges, and historic sites including
traditional cultural properties. There is variability among units of
the national park system and a variety of uses within national parks,
including traditional recreational uses. FAA does not assume that all
Part 150 categories of uses would be inapplicable for all park
situations, but does explicitly state that Part 150 guidelines do not
adequately address the effects of noise on the expectations and
purposes of people visiting 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. (See section 6.2(i).) Order
1050.1E clearly provides flexibility for noise assessment in locations
to which the Part 150 guidelines would not be relevant, including such
locations in national parks, and provides for consultation with NPS on
analyses. However, ``flexibility'' does not mean that FAA is required
to perform all additional analyses that may be requested by other
agencies.
Regarding section 14.1, a commenter, noting the inclusion of a
reference to the
[[Page 33818]]
MOA between the FAA and DOI/NPS that specifies coordination of noise
minimization efforts over DOI/NPS lands, asks the questions: Do these
requirements apply when the sponsoring body is another federal agency?
Are other agreements in place that place similar requirements or
constraints on the FAA for noise or other categorical evaluations?
FAA's response: The paragraph in question relates to the Interagency
Agreement (IA) between the National Park Service (NPS), Fish and
Wildlife Service (FWS), Bureau of Land Management (BLM), and Federal
Aviation Administration (FAA). The IA, while recognizing the public
freedom of transit of the navigable airspace, was developed to identify
cooperative efforts by each agency, individually and jointly, to seek
voluntary cooperation with the 2,000 feet above ground level (AGL)
minimum altitude advisory (FAA Advisory Circular [AC] 91-36C) to reduce
the incidence of low-flying aircraft, including fixed-wing aircraft,
helicopters, ultralight vehicles, balloons, and gliders, over NPS, FWS,
and BLM administered lands. The IA, effective January 15, 1993, was set
to expire on December 31, 1999. However, by letter in November 1999,
the FAA Administrator extended the cancellation date for one year to
allow revision of the IA. Efforts to further extend the cancellation
date past December 2000 were overtaken by higher priority events and
therefore, by default, the IA was cancelled. The FAA and the other
signature agencies of the IA determined that the procedures outlined in
the original IA were still valid and should remain in force. Therefore,
an interagency team was formed to update the IA, and information
gathered during this process was used as a basis for updating the
Advisory Circular. Since the updated Interagency Agreement has not yet
been signed, the paragraph in question has been deleted from the final
Order 1050.1E. However, once the new IA and the associated Advisory
Circular related to Visual Flight Rules (VFR) Flight Over Noise
Sensitive Lands (AC91-36) are signed, appropriate notification will be
made in the Federal Register. Additionally, a decision will be made at
that time as to whether the Order 1050.1E should be changed to include
the updated documents.
Regarding section 14.1(b), a commenter noting the text calls for
use of the most current version of INM or HNM; asks, current at which
point in the study? FAA's response: At the time the FAA begins its
noise analysis.
Regarding section 14.1(b), a commenter notes that the text
references the AEM as an appropriate screening tool. The model has not
been updated for years and uses algorithms and information from Version
3 of the INM as a foundation for noise level description. It is
significantly outdated given the new aircraft that have entered the
fleet in the last eight years. FAA's response: See response to Issues
of Special Interest topic AEM.
Regarding section 14.1(b), a commenter notes that the text
references the ATNS as an appropriate screening tool. The document
should assure the availability of the model for screening. The FAA
hasn't released the model for use except for specific types of
projects. FAA's response: The ATNS is available upon request. Requests
may be made to the Federal Aviation Administration, Noise Division
(AEE-100), 800 Independence Ave., SW., Washington, DC 20591. (AEE-100
handles distribution of ATNS as a courtesy to the Air Traffic
Organization which is responsible for the content and application of
the ATNS.)
Regarding section 14.1(c), a commenter believes that guidance
should be provided as to the justification required for deviation from
INM and/or HNM standard and default data. The INM Users Manual provides
guidance that should be recognized for the modification of model
default data bases. FAA's response: Comment noted. See revision
(section 14.2c).
Regarding sections 14.1(c) and (d), a commenter believes that these
requirements, while justified, appear to discourage the modification of
INM input data to better represent use-specific or locally-mandated
operational techniques and mitigation actions. Not all operators fly
using the same procedures, nor do all airports request the use of the
standard departure procedure by all aircraft or from all runways. FAA's
response: Comment noted. See revision (section 14.2c).
Regarding section 14.2(a), a commenter notes that the text states
that if mitigation abates noise below significant noise impact
threshold levels, an EIS need not be prepared. Elsewhere, the order
says that if controversy is sufficient, an EIS must be prepared. Does
controversy still take precedence, requiring an EIS be prepared? FAA's
response: A reasonable disagreement concerning a project's risks of
causing environmental harm is a circumstance that may warrant
preparation of an EA as noted in paragraph 304i. Where there is such a
disagreement, absent a well-settled threshold of significance and
binding mitigation measures that reduce impacts below that threshold,
the criteria for significance under 40 CFR 1508.27 must be carefully
considered to determine whether an EIS is required. These criteria
relate to context and intensity, and include the degree to which
effects are likely to be highly controversial and the degree to which
the possible effects on the human environment and highly uncertain or
involve unique or unknown risks. In these circumstances, the agency
would also want to consider whether the circumstances warrant making
the FONSI available for 30 days before the agency makes its final
determination whether to prepare an EIS under 40 CFR 1501.4(d)(2).
Regarding section 14.2(b), a commenter recommends that, following
the sentence, ``Use of an equivalent methodology * * *'' the following
sentences should be inserted: ``For SUA proposals, AEE has approved the
following DOD noise computer models as equivalent methodologies, as
appropriate: MR NMAP (airspace, MOA's Ranges), NOISEMAP (airfield
noise), BOOMMAP (sonic boom), BNOISE (blast noise and ground-dropping
ordnance or weapons) and SARNAM (small arms range). AEE has approved
the Noise Integrated Routing System (NIRS) computer model for
quantifying the predicted change in noise exposure for noise analysis
conducted for EIS's. The NIRS program is an adaptation of the INM that
facilitates noise exposure analysis of Air Traffic applications. It is
tailored to complex Air Traffic applications involving high altitude
routing and broad area airspace modifications affecting multiple
airports. NIRS may also be applied to other complex airspace
modifications in the terminal or enroute environments that are
difficult to assess using other methods. NIRS may be used in place of
INM in cases where noise analysis requires processing capabilities that
are not part of the current version of INM.'' FAA's response: FAA has
approved the DOD-developed computer models MR--NMAP and BOOMMAP for use
and analysis of SUA. See revision to section 14.2.
Regarding section 14.3, a commenter recommends that this section
clearly state that an increase of 3.0 or more decibels of DNL (CNEL)
between 60 and 65 decibels, where there is an increase of 1.5 decibels
or more within the 65 DNL is not to be considered a significant impact.
FAA's response: The purpose of section 14.3 is to define a significant
impact. The omission of reference to a 3 decibel increase between DNL
60 and 65 dB means that it is not a significant impact.
Regarding section 14.3, a commenter recommends that this section
clearly
[[Page 33819]]
state whether exposure of noise sensitive uses to a level of 65 DNL
(CNEL) is or is not a significant impact, regardless of degree of
change between no action and project conditions. FAA's response: While
DNL or CNEL 65 dB is considered a significant level of exposure, it
does not automatically signify that a proposed action is causing a
significant effect. A significant effect would occur when a proposed
action causes a noise sensitive land use located in the DNL 65 dBA
contour to sustain at least a DNL 1.5 dBA increase, or if such an
increase places the sensitive land use in the DNL 65 contour.
Further regarding section 14.3, the text was amended in the final
Order to state that special 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.
Regarding section 14.4, the EPA believes that this section should
give guidance that in most cases the same INM version should be used
for all analysis (current or base year, operational year and future
year). The EPA believes that some guidance should be given regarding
the selection of the current or base year. We have seen a number of FAA
projects where the current year is four or five years earlier than the
date the draft EIS is published. In general, the EPA believes that the
last year in which there is actual aircraft operational data is
appropriate. FAA's response: The selection of the base year is related
to the timing of planning for proposed projects. Planning time lines
vary from close proximity to the timing of Draft EIS's to greater
distances in time. The FAA is responsible for assuring that current
conditions are reasonably represented in either case. Since technical
analyses used to prepare a Draft EIS usually take longer than a year,
the specificity that EPA suggests would cause analyses to be considered
outdated before many Draft EIS's could be issued.
Regarding section 14.4, the EPA believes that a major concern with
this section is the lack of any noise mitigation guidance. This section
should contain general guidance on when it is appropriate to require
the use of mitigation measures such as acquisition, easements and sound
proofing. This guidance should be built around the general assumption
that residential housing within the DNL 65+ contours is a non-
compatible land use. FAA's response: The FAA encourages and supports
noise mitigation. However, there is no Federal law that requires the
use of designated mitigation measures such as acquisition, easements,
sound insulation. The specifics of noise mitigation are tailored to
individual airport and community situations and preferences. All of the
above techniques are equally available to use; none is specifically
required. FAA has issued other reports on the uses of various noise
mitigation techniques.
Regarding section 14.4(a), a commenter notes that AEM hasn't been
updated for years and does not include many aircraft now common in the
operating fleet, including all retrofits of Stage 2 aircraft to Stage 3
levels, as well as many recent versions of Stage 3 aircraft. Further,
changes in runway use patterns may significantly modify the contour
size and shape even though the ground track location and flight profile
do not change. The AEM either should be updated on a regular basis or
not be used as a screening tool for EIS considerations of the potential
impact of aircraft noise exposure. FAA's response: AEM is now updated
on a regular basis. See response to Issues of Special Interest topic
AEM provided earlier in this preamble.
Regarding section 14.4(b), the DOI recommends that the fourth
sentence be modified to read: ``In general, many studies to date
indicate that aircraft noise probably has a minimal long-term impact on
animal populations under most circumstances. However, some studies on
specific species in specific circumstances have indicated an impact,
and most studies are generally not conclusive either way.'' The DOI
believes that especially in national parks where preservation of the
unimpaired natural environment means that such animal adaptations as
habituation can be major impacts, the unmodified statement is
inaccurate. FAA's response: Upon further review, we find that both the
original proposed sentence and the proposed change by the DOI are
overly generic and add nothing constructive to our procedures for
assessing impacts on wildlife populations. Accordingly, the sentence is
deleted in the final Order. The operative procedure is captured in the
last sentence of section 14.4(b): ``When instances arise in which
aircraft noise is a concern with respect to wildlife impacts, available
studies dealing with specific species should be reviewed and used in
the analysis.''
Regarding section 14.4(c), the DOI believes that the FAA needs to
add a discussion on other acoustical modeling and measurements; those
described are often not appropriate for national park units. FAA's
response: The comment is not applicable to this section. Guidance on
supplemental noise analysis is in section 14.5.
Regarding section 14.4(c), a commenter questions whether analysis
according to FICON guidance ``should be done'' or ``must be done'' to
consider changes of 3 decibels within 60-65 decibel range if 1.5
decibel increase occurs above 65 DNL? FAA's response: The correct text
is ``should be done.''
Regarding section 14.4(c), the FAA modified and expanded the last
sentence in the final Order to more adequately capture the 1992 FICON
recommendation the consideration of mitigation of noise in certain
noise sensitive areas.
Regarding section 14.4(d)(1), a commenter believes the development
of a 60 DNL (CNEL) contour will be required if the 3.0 decibel increase
is triggered. In practice the contour sets the out boundary of the area
of exposure increase. FAA's response: If the 3 decibel increase between
DNL 60 and 65 dB is triggered, noise sensitive areas that would
experience that level of increase may be identified by a grid point
analysis or by a contour. The DNL 60 dB contour is optional.
Regarding section 14.4(d)(2) and (3), a commenter believes the INM
``contour difference'' function should be required to delineate the
areas exposed to 1.5 and 3.0 decibel increases between the no action
and project cases. FAA's response: As long as clear identification is
provided, the method of identifying such areas is not mandated.
Regarding section 14.4(e), a commenter asks; what constitutes the
``current'' conditions--project initiation, conclusion or some
threshold year? FAA's response: The current condition is usually
project initiation, but this may vary. The current condition should
reasonably portray the existing environment that may be affected by the
proposed project.
Regarding section 14.4(f), a commenter believes that the provision
that noise monitoring is not required and should not be used to
calibrate the model is important enough to be capitalized. In
California, state law requires calibration by measurement for quarterly
reports of noise exposure patterns submitted to CalTrans Noise Office.
It is frequently very difficult to match the measured and modeled data,
particularly if modifications to the model are not allowed without
[[Page 33820]]
significant justification and measurements cannot be part of the
justification. FAA's response: Comment noted. The commenter agrees with
Order 1050.1E guidance.
Regarding section 14.4(f), a commenter concurs that the noise
modeling should not be required, but why does the revised order not
allow monitoring to be used to calibrate the model? The commenter
acknowledges that short-term monitoring cannot be used for calibration
purposes. However, if an airport has a NOMS system (including a series
of permanent noise monitors located within the 65 DNL) that compiles
DNL information and other data for a full year, why are those data not
allowed to be used to fine-tune the modeled results? The commenter has
spent (and will spend) significant dollars for its NOMS and believes
that this system can give excellent information to adjust future
modeled results for the INM through a comparison with actual yearly
levels recorded from the NOMS system. The comment is not that an
airport sponsor must use the NOMS data, but that the NOMS data should
be allowed to be used during the preparation of environmental documents
to fine-tune the noise analysis. FAA's response: FAA recognizes the
guidance documents of the SAE Aviation Noise committee as the
appropriate methodology for assessing noise exposure around airports.
This group performs comprehensive peer review of all recommended
enhancements to modeling aircraft noise. For FAA to adopt a ``blessed''
procedure, an airport sponsor would need to submit a proposal for
utilizing noise monitored data, have this process peer reviewed and
validated, and then published as an Aviation Recommend Practice (ARP).
Regarding section 14.4(i)(1), a commenter believes that the number
of persons within a contour is a very fluid number and cannot be simply
identified. It is always an extrapolated value based on the number of
dwellings within the contour and some population per dwelling unit
factor. Population is only as accurate as the census and then only on
the date of the census. Furthermore, we do not mitigate people, we
mitigate dwellings. Therefore, rather than identifying the numbers and
changes in people, the commenter believes that the FAA should identify
the number of dwellings and estimate the population in them. FAA's
response: The paragraph has been revised in the final Order to allow
either the number of residences or the number of people to be provided.
Regarding sections 14.4(i)(1) and (2), a commenter asks; are
population, residences and noise sensitive uses required to be
identified within the area exposed to 3 decibel increases within 60-65
DNL contour range? This is not addressed by the order. FAA's response:
To comply with FICON's recommendation, FAA would do supplemental grid
point analysis in the DNL 60-65 contour, if FAA determines that a
project would cause a significant noise impact (i.e., a 1.5 dB increase
over noise sensitive areas within the DNL 65 contour). The analysis is
needed to determine noise sensitive land uses in the DNL 60-65 that
would experience project-related DNL 3 dB noise increases. If such uses
exist, FAA will identify them and consider mitigation. This guidance is
in section 14.4(c), rather than 14.4(i).
Regarding section 14.4(j), a commenter believes that the last
paragraph of this section might be better placed as the first paragraph
of the subsequent section. FAA's response: The FAA disagrees with the
suggested location change of this paragraph. This information would be
part of FAA's basic noise evaluation, not supplemental noise analysis.
Regarding section 14.5, the DOI comments that ``time above'' A-
weighted sound level is not as valuable as ``time audible'' in many
national park situations. Both metrics should be listed; they are
usually not equivalent in parks. In addition, the L90 value should also
be listed as one measure of the natural ambient sound level. FAA's
response: The FAA does not agree that the L90 value is an appropriate
NEPA noise threshold since L90 represents the quietest 10 percent of
monitored noise. In addition, the final Order provides a list of
several supplemental noise metrics, including both ``time above'' and
audibility (``time audible''), and notes that supplemental noise
analysis is not, by itself, a measure of adverse aircraft noise or
significant aircraft noise impact.
The FAA added a new section 14.5(d) to the final Order to emphasize
that the Air Traffic Noise Screening procedure (ATNS) must be used for
proposed air traffic or special use airspace actions above 3,000 feet
above ground level. The ATNS determines if a proposed action would
increase the community noise level by 5 decibels or more. Where the
proposed action triggers the 5 decibel criterion, the FAA then
considers whether there are extraordinary circumstances (paragraph 304)
that warrant preparation of an environmental assessment.
The FAA added a new section 14.5e to the final Order specifying
that the Noise Integrated Routing System model must be used for air
traffic airspace actions where the study area is larger than the
immediate area of an airport, incorporates more than one airport, or
includes actions above 3,000 feet above ground level.
Regarding section 14.5(f)(1), a commenter notes that INM cannot
compute contours or simple grid point analysis of the highest SEL to
which an area is exposed. To obtain meaningful data, a much more costly
and time-consuming detailed grid analysis is required. SEL contours can
be computed for single aircraft events, but when more than one event is
included in the assessment, the SEL is the cumulative noise resulting
from the several events, without averaging across a period of time.
FAA's response: Maximum SEL is not a required metric for policy
decision or environmental disclosure. Users familiar with INM are able
to obtain this value for grid point analysis. Maximum SEL contours are
not defined.
Regarding section 14.5(f)(2), a commenter believes that ``Lmax''
can also provide the highest noise level achieved at a location during
a period of time assessed, e.g., the loudest event during an average
day. FAA's response: Lmax is a single event noise metric that is the
highest A-weighted sound level measured during an event. It is included
as a supplemental metric in section 14.5(f)(2).
Regarding section 14.5(g), a commenter believes that the converse
of the last sentence of the section implies that single events below 85
dB may be assumed not to have some effect on communication in the
classroom. This statement is too broad. FAA's response: The FAA
concurs. The last two sentences in question have been deleted in the
final Order and a reference to FICON substituted in lieu thereof.
Further regarding section 14.5(g), the word ``community'' was deleted
from the first sentence to broaden the applicability of the section to
National Parks. Wording was added to the end of section 14.5(g) to
emphasize that the ``FAA will consider use of appropriate supplemental
noise analysis in consultation with the officials having jurisdiction
for national parks, national wildlife refuges, and historic sites
including traditional cultural properties where a quiet setting is a
generally recognized purpose and attribute that FAA identifies within
the study area of a proposed action.''
The FAA changed the title of section 14.8 in the final Order to
``Facility and Equipment Noise Emissions.'' This
[[Page 33821]]
change better relates the title to the intent of the section, which is
to consider only those local noise emissions from the facility and
associated equipment and machinery.
Section 15 Comments. The DOI comments that secondary (induced)
impacts can often be extremely important where national park lands are
involved. A nearby airport can significantly change park visitation
patterns and numbers. FAA's response: Secondary impacts are always
considered.
The Wisconsin DOT recommends that a discussion of ``cumulative
impacts'' should be added to this section. FAA's response: Cumulative
impacts are described and discussed in Chapter 5, paragraph 500c of
Order 1050.1E. Cumulative impacts are not a separate impact, but may
potentially occur with respect to the other impact topics in Appendix
A. Cumulative impacts have been removed from the title of Section 15 of
Appendix A in the final Order.
Section 16 Comments. A commenter noted that while the U.S. EPA has
no Environmental Justice (EJ) authority or guidance that specifically
applies to other Federal agencies, it may be useful in this section to
alert FAA staff preparing NEPA EJ sections to review the guidance EPA
uses when it prepares its own NEPA documents and guidance that EPA uses
when it reviews NEPA EJ sections of other Federal agencies' EIS's.
FAA's response: DOT issued its own instructions (Order DOT 5610.2)
instructing FAA and other DOT agencies how to assess EJ issues. FAA
bases its analysis on that Order, but will use the EPA guidance
mentioned in section 16.1 or other guidance as the responsible FAA
official deems appropriate. In addition, EPA's Guidance has been cited
in the table at the beginning of section 16.
A commenter noted that Order DOT 5610.2, Environmental Justice,
refers to the Health and Human Services definition of low-income, which
is limited. The draft FAA order refers to the Census Bureau's
definition of low-income when it refers to the EPA and CEQ's recent
guidance on environmental justice (section 16 of appendix A). The
Census Bureau definition is broader. As these definitions differ, FAA
should consider revising the order to note the discrepancy and address
the need to do the analyses using both definitions. FAA's response: The
FAA agrees that the Health and Human Services (HHS) definition (poverty
guidelines) is ``limited.'' The Census Bureau's poverty threshold is
inclusive of the HHS guideline, although the two numbers are
essentially the same from an analytical standpoint considering the type
of demographic data that is most readily available for such analyses
(i.e., decennial census data). Consequently, the Census Bureau's
poverty threshold appears to be generally the most conservative and,
therefore, appropriate for NEPA analysis of environmental justice
effects, which FAA suggests follow the CEQ and EPA guidance. FAA does
not believe that the small difference in the HHS and Census Bureau's
numbers warrant two separate analyses of environmental justice impacts.
Section 16.1(a) has been supplemented in the final Order to note the
difference in the HHS and Census Bureau's numbers, and provide the
responsible FAA official with the option to use what is deemed the most
appropriate given the available data and circumstances of the proposed
action being assessed.
A commenter notes that the purpose of section 16 is to incorporate
relevant E.O.'s addressing environmental justice and children's health
issues. While these are important concerns, it should be emphasized
that E.O.'s relate to the faithful execution of existing laws, and do
not create substantive or procedural rights and entitlements. FAA needs
to make it clear that the order does not create substantive rights that
are not already established by actual referenced policies or laws.
FAA's response: Order 1050.1E is intended to provide practical guidance
on how the FAA implements environmental requirements that apply to
proposed FAA actions. The order is not intended to provide legal
differentiation among laws, regulations, executive orders, etc.
A commenter believes that the FAA's adoption of ANSI/IEEE standards
for electromagnetic radiation is a sensible and valid change. FAA's
response: Comment noted.
Regarding section 16.2, the DOI recommends adding a sentence to the
first paragraph that says, ``The environmental document also needs to
address impacts to park resources and visitors where national park
units are involved.'' FAA's response: Section 16.2 deals with
environmental justice, children's health and safety risks, and Federal
acquisition policies for private property. It does not apply to park
resources and visitors.
Section 17 Comments. The DOI comments that in many large urban
areas, water bodies that violate Water Quality Standards are listed by
State under Clean Water Act (CWA) section 303(d), subject to approval
by the EPA. These water bodies have TMDL analysis performed for the
pollutant(s) in violation of standards. Certain airport pollutants may
be subject to these TMDL's and could require reduction of pollutant
loadings from both point and non-point sources at airport facilities.
Point source reductions would be administered through CWA section 402
NPDES permits. FAA's response: Comment noted. See revision to table of
statutes and regulations heading the section.
Regarding section 17.2, a commenter believes that ensuring the
applicable water quality (WC) certificate is issued before FAA approves
the proposed action is an unnecessary requirement. In the commenter's
experience, WQ certifications are typically associated with wetland
impacts and are issued by the State along with the permit for wetlands
disturbance. The commenter is concerned that the requirement that a
FONSI cannot be awarded without having a WQ certification in hand will
significantly delay most actions that involve WQ impacts. It is not
unusual for wetland impacts to occur in year 3 or 4 of a multiyear
project and permit-suitable design drawings are generally not available
years in advance of project implementation * * * the NEPA process would
be delayed until suitable design drawings could be prepared. The
commenter believes the existing requirement for description of a
proposed action's design, mitigation measures, best management
practices, etc. works well and is more than sufficient to provide
insight into whether permit requirements will be met. The commenter
contends that a requirement that a WQ certificate be issued prior to
FAA approval of an action will tie the approval of an EA to receipt of
various permits, significantly delay the development of airport
projects, and result in the analysis of much more finalized project
development plans than recommended by NEPA. The requirement should be
deleted from the order. FAA's response: The commenter has identified
the need for FAA to clarify the text of this paragraph. The water
quality certificate referred to in the draft Order 1050.1E is the
governor's water quality certificate that has been required for certain
proposals under the Airport Improvement Act. The most recent Act,
``Vision 100--Century of Aviation Reauthorization Act,'' Signed into
law December 12, 2003, eliminates the governor's water quality
certificate, as well as the governor's air quality certificate, because
they are duplicative of protections in the Clean Water Act and Clean
Air Act. Accordingly, these
[[Page 33822]]
certificates have been eliminated from final Order 1050.1E.
Regarding section 17.2, the Wisconsin DOT comments that the last
sentence should read: ``The responsible FAA Official must ensure the
environmental document contains the water quality certification
mentioned in section 17.1.'' FAA's response: See above response.
Section 18 Comments. A commenter notes that the section encourages
a new approach to complying with NEPA and section 404 of the CWA and
the commenter believes that this is a sensible approach. FAA's
response: Comment noted.
Regarding section 18.1, a commenter suggests that the sentence that
reads ``The purchase of credits from an approved bank signifies that
the section 404 permittee has satisfied its permit required mitigation
obligations'' be revised to read ``The purchase of credits from an
approved bank can be used by a section 404 permittee to satisfy its
permit required mitigation obligations.'' FAA's response: We concur and
have adopted the suggested text in section 18.1(d) of the final Order.
Regarding section 18.1, the Department of Agriculture notes that
the text states the FAA will consult with federal agencies with
interest in wetlands. However, the creation or maintenance of wetlands
is inconsistent with 14 CFR 139.337 and advisory circular 5200-33.
Wildlife Services (WS) should be consulted regarding wetlands since
this habitat may become or may already be a wildlife attractant. WS
input should be considered under this section since WS assists airports
in avoiding the creation of or ameliorating wildlife attractants. The
FAA should add Wildlife Services to this section. FAA's response: We
concur and have added a reference to Wildlife Services to section
18.2(a) of the final Order.
Section 19 Comments. The DOI comments that Wild and Scenic Rivers
is an appropriate impact topic; similarly, ``National Park System
Units,'' which have greater levels of protection and stronger mandates,
should be a separate impact topic. FAA's response: Legislation
directing all Federal agencies to take specific actions with respect to
Wild and Scenic Rivers causes FAA to address these rivers under a
separate impact topic to provide for clarity of the governing
requirements. There is no similar legislation with respect to National
Park System units per se, although a number of different pieces of
legislation, regulations, and policies relate to the consideration of
impacts on national parks. Impacts on national parks are addressed
under several impact topics in Appendix A.
Proposed Appendix 3 Comments
The Wisconsin DOT commented that including Order 5050.4A as
(proposed) Appendix 3 is desirable; however, this order has not been
updated. The commenter recommends some direction to handle the areas
where there are differences between the two orders until Order 5050.4A
is updated. FAA's response: We concur and have added text to paragraph
5e of Chapter 1 that until Order 5050.4A is revised, if a conflict
between orders occurs, Order 1050.1E takes precedence. The substance of
what was to be appendix 3 was incorporated under paragraph 214 of the
order. The proposed Appendix 3, now redundant with paragraph 214, is
removed from the final Order.
Appendix B Comments
Regarding paragraph 2f, a commenter believes that this paragraph
needs to clearly state that in third party contract situations, FAA
maintains the same oversight control as it would if FAA were paying the
contractor. FAA's response: We concur and have added clarification to
this effect to paragraph 2b of Appendix B.
Regarding paragraph 2d, a commenter believes that editorial work is
needed. The commenter notes and appreciates the efforts of the FAA to
clarify conflict of interest for third-party contractors. The order
should reflect guidelines for identifying potential conflict of
interest, as well as the requirements to be placed on contracting
consultants with respect to eligibility for follow-on work or
coincidental work on independent projects. FAA's response: The primary
guidance in CEQ regulations and ``Forty Most Asked Questions'' is cited
in Appendix B. Otherwise, the commenter is asking for a greater level
of detail than is appropriate for Order 1050.1E.
In addition to the foregoing comments, many comments were received
identifying typographical errors, missing or incorrect paragraph
identifiers, incorrect internal references, and other minor grammatical
inconsistencies. All such corrections are adopted unless stated
otherwise in this preamble.
Issued in Washington DC on June 8, 2004.
Carl E. Burleson,
Director, Office of Environment and Energy.
[FR Doc. 04-13451 Filed 6-9-04; 3:51 pm]
BILLING CODE 4910-13-P