Environmental Impacts: Policies and Procedures

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.

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

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

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

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. § 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

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. § 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.

Table 1.—“No Preexisting Noise” Versus “Existing Noise” for the Composite Fleet

1

Airport noise exposure environment

Night

operations

(percent)

Day

operations

(percent)

Operations

@ 3000 ft.

CATEX 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

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

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

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

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

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

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

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.

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

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

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

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

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

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.

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

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

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

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