# National Environmental Policy Act (NEPA) Implementing Instructions for Airport Actions

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URL: https://www.frixlaw.com/law-library/documents/fr%3A06-4527

## Record

- **Collection:** Federal Register
- **Document type:** Notice
- **Published:** May 18, 2006
- **Citation:** 71 FR 29014

## Text

DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
[Docket No. FAA-2004-19058; FAA Order 5050.4B]
National Environmental Policy Act (NEPA) Implementing Instructions for Airport Actions

AGENCY:

Federal Aviation Administration, DOT.

ACTION:

Notice of publication of the Preamble to Order 5050.4B.

SUMMARY:

The Federal Aviation Administration's Office of Airports (ARP) is responsible for reviewing and deciding on projects airport sponsors propose for public-use airports. ARP revised its National Environmental Policy Act (NEPA) implementing instructions for those airport projects under its authority and placed those instructions in Order 5050.4B, National Environmental Policy Act (NEPA) Implementing Instructions for Airport Actions. The Order's effective date was April 28, 2006.
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The Order and Preamble are available electronically at ARP's Web site,
http://www.faa.gov/airports_airtraffic/airports.

ARP announced the availability of that Order and its Preamble in the April 28, 2006,
Federal Register
(71 FR 25279). There, ARP noted that it would publish the text of the Preamble in the
Federal Register
shortly after the April 28th Notice of Availability. Today's publication of this document satisfies ARP's commitment to publish the Preamble in the
Federal Register
.

The Preamble presents a summary of the major changes ARP has included in Order 5050.4B . The Preamble also discusses the many changes and additions ARP has made in response to comments on draft Order 5050.4B that ARP published in the December 16, 2004, version of the
Federal Register
(69 FR 75374). The Preamble also discusses other changes ARP judged necessary since publishing the draft Order.

Order 1050.1E Environmental Impacts: Policies and Procedures sets FAA's agency-wide environmental protocol. Order 5050.4B supplements Order 1050.1E by providing NEPA instructions especially for proposed Federal actions to support airport development projects. Order 5050.4B follows the Council on Environmental Quality's (CEQ's) NEPA implementing regulations at 40 CFR 1500—1508. It also follows DOT's Order 5610.C, Policies for Considering Environmental Impacts, and FAA Order 1050.1E.

ARP has made Order 5050.4B as consistent with FAA Order 1050.1E as possible. Users of Order 5050.4B must interpret it in a manner consistent with FAA Order 1050.1E. Exceptions to this rule apply to internal FAA coordination and review of environmental documents. For those actions, users follow the instructions in Order 5050.4B. If specific questions about the instructions in Orders 1050.1E and 5050.4B arise, users should call the contact person noted below for clarification. The contact will notify FAA's Office of Environment and Energy (AEE), the FAA organization responsible for developing general NEPA procedures for all FAA organizations, about identified conflicts. This will provide a transparent system to resolve legitimate conflicts and ensure NEPA conformity within all FAA organizations.

Cancellation:
Order 5050.4B, replaces Order 5050.4A, Airports Environmental Handbook, dated October 8, 1985.

DATES:

Effective Date:
Order 5050.4B is effective April 28, 2006.

FOR FURTHER INFORMATION CONTACT:

Please e-mail or call: Mr. Ed Melisky (
edward.melisky@faa.gov
), Environmental Specialist, Federal Aviation Administration, Office of Airport Planning and Programming (APP-400), 800 Independence Avenue, SW., Washington, DC 20591; telephone (202) 267-5869; fax (202) 267-8821.

SUPPLEMENTARY INFORMATION:

The National Environmental Policy Act (NEPA) and CEQ's regulations implementing NEPA provide Federal agencies with instructions on protecting the quality of the human and natural environments. NEPA and its implementing regulations require Federal agencies to carefully evaluate and consider the environmental effects of actions under their respective authorities before the agencies make decisions on those actions.

Section 102(B) of NEPA requires Federal agencies, in consultation with CEQ, to develop procedures to carry out NEPA and CEQ's regulations for activities under the agencies' respective purviews. Although FAA Order 1050.1E presents FAA's agency-wide instructions to complete the NEPA process, ARP is issuing Order 5050.4B to supplement those instructions. ARP has traditionally published Order 5050 to provide detailed NEPA instructions specific to airport actions under its authority. Readers wanting to know how other FAA organizations address NEPA requirements for non-airport projects should see FAA Order 1050.1E.

As noted earlier, Order 5050.4B replaces Order 5050.4A dated October 8, 1985. That Order served FAA personnel, airport sponsors, airport consultants, Federal, State, local, and tribal governments and the public well for over 20 years. However, changes in Federal laws and regulations, FAA policies and procedures (
i.e.
, Order 1050.1E), and evolving environmental processing and evaluation for airports occurring since 1985 signaled the need to issue Order 5050.4B.

Distribution:
ARP is distributing this Order to ARP personnel and other interested parties by electronic means only. ARP has placed this Order for viewing and downloading at its Web site.
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Anyone without access to the Internet may obtain a compact disk (CD) containing the Order. Please make that request to the Federal Aviation Administration, Office of Airport Planning and Programming (APP-1), 800 Independence Avenue, SW., Washington, DC 20591. Those unable to use an electronic version of the Order, may obtain a photocopy of the Order by contacting FAA's rulemaking docket at: Federal Aviation Administration, Office of Chief Council, Attn: Rules Docket (AGC-200)—Docket No. FAA-2004-19058, 800 Independence Avenue, SW., Washington, DC 20591.

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http://www.faa.gov/airports_airtraffic/airports/resources/publications/orders/environmental_5050_4/.

Summary of changes:
FAA Order 5050.4B includes information from the draft Order published in the
Federal Register
on December 16, 2004, and additions or changes to that draft. The re-organization and addition of material to respond to comments on that draft have caused changes to the Order's organization and chapter titles. Because of these organizational changes, this Preamble discusses comments referencing specific paragraphs in the draft Order, but ARP's responses refer to the final Order's revised paragraph and subparagraph numbering system. This Preamble presents a summary of the major changes to the draft Order that may be of interest to airport sponsors, the public, other governmental agencies and organizations. The Preamble also presents ARP's responses to public comments on draft Order 5050.4B.

Major changes in final FAA Order 5050.4B:
a. The Order deletes the summary of requirements and procedures under special purpose environmental laws, regulations, and executive orders outside NEPA. Order 5050.4A addressed these topics in paragraphs 47.e.(1) thru (20) and 85.a through t. Those paragraphs addressed various requirements protecting sensitive environmental resources such as wetlands, federally-listed endangered

species, or historic properties. However, Order 5050.4B, Table 7-1 keeps information from those paragraphs that ARP and commenters found helpful in determining impact intensity and the proper NEPA review. In addition, this information will help users integrate the review, analyses, and consultation requirements of applicable special purpose laws with NEPA requirements.

ARP will issue a separate document entitled, Environmental Desk Reference for Federal Airport Actions (Desk Reference) to provide its staff and interested parties with information to integrate and comply with Federal environmental laws, regulations, and executive orders other than NEPA. ARP plans to issue the Desk Reference as soon as possible. Meanwhile, FAA personnel and other interested parties should use Appendix A in Order 1050.1E for guidance.

ARP is making this change to address recommendations FAA received when it published a draft version of Order 1050.1E for comment. Some commenters recommended that FAA delete Appendix A of that Order to focus that document on NEPA's implementing instructions. ARP's review of NEPA implementing instructions published in the
Federal Register
during 2004 shows none of the six Federal agencies publishing NEPA instructions included substantial information about Federal environmental laws, regulations, or executive orders outside NEPA.

ARP's removal of requirements outside NEPA from Order 5050.4B does not reflect a lack of FAA commitment to meet those requirements or absolve airport sponsors from complying with them. Compliance with those special purpose laws does not depend on their presence or absence in Order 5050.4B because many of them have their own compliance requirements. ARP will continue to integrate compliance with applicable environmental laws, regulations, and executive orders outside NEPA with its NEPA process to the fullest extent possible to streamline the overall environmental review process.

b. When compared to the draft version of Order 5050.4B, ARP has made organizational changes to more logically and clearly present information about the NEPA process and how ARP implements it. Chapter 2 of the final order focuses on special NEPA requirements and responsibilities for airport actions. Formerly, Chapter 5 (“Special Instructions”) presented that information, but ARP decided to place that information earlier in the Order. ARP made that change to provide an early alert to airport sponsors, ARP personnel, and State Block Grant Program (SBGP) participants about the NEPA process and each entity's responsibilities in that process. Presenting that information earlier in the Order ensures those responsible for airport actions pay close attention to the subsequent chapters and their contents to ensure efficient, effective NEPA processing. ARP deleted the instructions about airport and noise planning grants in paragraphs 500 and 501, which simply explained the categorical exclusions in Chapter 6. ARP has kept information on agency and Tribal consultation and participation in Chapter 3, but has created new Chapter 4 to highlight the need for public involvement. Formerly, public involvement information was a portion of Chapter 3.

New Chapter 5 focuses on coordinating airport planning and the NEPA process. ARP includes that information to better promote coordination between airport planning and the NEPA process as CEQ regulations require. The draft Order devoted only one paragraph (paragraph 302.a) to this important topic. However, to promote streamlining and efficient analyses, Chapter 5 stresses the critical linkage between airport planning and the NEPA process. ARP based much of this chapter on valuable planning and environmental information in its Best Practices Web site
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and Advisory Circular 150/5070-6, Airport Master Plans. Revised Chapters 6 through 13 provide information on categorical exclusions (CATEXs), environmental assessments (EAs), environmental impact statements (EISs), and Records of Decision (RODs), respectively. Chapter 6 incorporates the information on CATEXs that appeared in Chapter 4 of the draft Order. Chapter 7 incorporates information on EAs the draft Order discussed in Chapter 4.

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(
http://www.faa.gov/arp/environmental/5054a/bestpractices.cfm
)

Finally, Chapter 9 contains information on airport actions normally requiring an EIS. The chapter also discusses scoping and the EIS's purpose and content. Formerly, Chapters 4 and 10 of the draft Order provided that information. Finally, Chapter 15 of the final Order retains information on streamlining the environmental process for airport capacity enhancement projects at congested airports or airport safety and security projects that “Vision 100—The Century of Aviation Re-Authorization Act of 2003” (Vision 100) discusses.

c. Order 5050.4B provides definitions for important terms used during ARP's NEPA analysis for actions at airports. Among other definitions, the Order provides definitions for the term “approving FAA official” and notes decisions for actions at airports are delegated to various personnel. This reflects requirements in FAA Order 1100.154A, Delegation of Authority, dated June 1990, which notes the approving FAA official will vary due to the number of FAA organizations an airport action involves. Order 5050.4B also defines the term “Federal action” and how it applies to actions under ARP's authority. Since publishing the draft Order, ARP has added definitions in paragraph 9 for the terms “Environmental Management System” and “ ‘NEPA-like’ State or agencies.” The Order also provides a revised, more comprehensive definition for the term “reasonably foreseeable action.” The definition, now at paragraph 9.q and presented in a short table, lists criteria for off-airport and on-airport actions. ARP developed this definition to help users better define “reasonably foreseeable actions.” The final Order also provides a revised definition for “special purpose laws.” The final Order at paragraph 9.t, now lists all the laws, regulations, and executive orders comprising that term.

d. Chapter 2 provides information on limits for conditional airport layout plan (ALP) approvals. Paragraph 202.c(4) (paragraph 505b(3) in the draft Order) has been revised to clarify that these limitations apply when a sponsor or its consultant is preparing an EA or FAA is preparing an EIS for a major airport development project. ARP limits such approvals to avoid the appearance that it is making decisions on proposed projects before it completes the required NEPA processes for those actions. ARP also modified paragraph 202c(4) to clarify that FAA may conduct and issue airspace determinations for those projects. The paragraph also clarifies that FAA may approve other actions at the same airport, provided those actions are independent of the actions that are the subjects of an EA or EIS being prepared.

e. Paragraphs 202.d(1), (2), and (3) provide suggested language for conditional, unconditional, or mixed airport layout plan (ALP) approval letters, respectively. ARP added the “mixed ALP approval” to the final Order to address those situations where ARP reviews ALPs depicting short-term and long-term projects that are and are not ripe for decision, respectively.

f. Paragraph 204 (paragraph 507 in the draft Order) discusses land acquisitions

by airport sponsors during the EIS process. ARP notes that 40 CFR 1506.1(a) and (b) state that, until a Federal agency issues its Record of Decision, neither the agency or the applicant may take an action concerning any proposal that would adversely affect environmental resources or limit the FAA's choice of reasonable alternatives.

g. Paragraph 205 discusses FAA's roles and responsibilities under NEPA when an airport sponsor wishes to participate in a joint-use program or program to convert a military airfield to civilian use. Joint-use occurs when the sponsor shares use of an airport with the U.S. Department of Defense. In these instances, FAA normally will be a cooperating agency for NEPA purposes.

h. Paragraph 208 (formerly paragraph 511 in the draft Order) provides instructions to the responsible FAA official on complying with Executive Order 12114, Environmental Effects Abroad of Major Federal Actions. The official must meet the Executive Order's requirements if NEPA analysis shows an airport action would cause a significant impact in a foreign land. Revised paragraph 208 includes the need for FAA to coordinate communications with the Department of State through the Department of Transportation's Office of Transportation Policy Development (P-100), per Order 1050.1E, paragraph 521f.

i. Paragraph 209 (paragraph 513 in the draft Order) has been revised to distinguish between: (1) FAA grant funding for development of wildlife hazard management plans (WHMPs) and approval of those plans based on safety factors; and (2) subsequent FAA actions to support implementation of measures in those plans. The instructions for NEPA review associated with WHMPs are now similar to the instructions for NEPA review regarding airport noise compatibility planning. Paragraph 303.b of draft Order 5050.4B noted that issuance of AIP grants for noise compatibility planning is categorically excluded under paragraph 307n of Order 1050.1E. Paragraph 209a of the Order 5050.4B clarifies that the grant to fund the development of a WHMP or the approval of that plan normally qualifies for a categorical exclusion under Order 1050.1E, paragraph 308e. Paragraph 209.b clarifies that airport layout plan approvals and/or approvals of grants for Federal funding to carry out measures in FAA approved WHMPs: (1) May qualify for a categorical exclusion; or (2) may require preparation of an environmental assessment or an environmental impact statement.

j. Paragraphs 212.e and 303 provide information on complying with Executive Order 13175, Consultation and Coordination with Indian Tribal Governments. The paragraphs discuss the need for government-to-government relations when a project may involve or affect federally-recognized Tribes, their trust resources, or other rights. The paragraph also notes FAA personnel must follow FAA Order 1210.20, American Indian and Alaska Native Tribal Consultation Policy and Procedures when addressing issues with those Tribes.

k. Paragraphs 210 through 214 provide detailed policies and procedures for FAA's State Block Grant Program (SBGP). ARP presents detailed guidance to fulfill a commitment FAA made in the Preamble to Order 1050.1E. Specifically, paragraph 210 of Order 5050.4B discusses the SBGP in general and the SBGP actions at non-primary airports that are the responsibilities of states participating in the SBGP. Paragraph 211 notes that these duties include completing the environmental requirements ARP would have normally fulfilled for an airport-specific project and associated Federal actions if ARP had retained discretion over the use of SGBP funds. Under 49 U.S.C. 47128, states participating in the SBGP assume administrative responsibilities for all airport grant amounts available under Subchapter 1 of Chapter 471 (49 U.S.C. 47101-47137) (the SBGP), except for amounts designated for use at primary airports. For purposes of paragraphs 210-214, Order 5050.4B distinguishes between apportionment of funds made available to the states under 49 U.S.C. 47114(d)(2) and (3) and discretionary funds awarded to airports under 49 U.S.C. 47115 and administered by states participating in the SBGP. Paragraph 212 notes that ARP does not have approval or funding authority for projects under the SBGP wholly funded through apportionments under 47114(d)(2) and (3). A state agency's assignment of SBGP money for specific airport actions to individual, non-primary airports is not a “Federal action.” Therefore, NEPA does not apply to those airport actions because FAA has no discretion over the use of the SBGP funds financing those actions. However, the paragraph notes that for policy reasons, ARP contractually requires states participating in the SBGP to fulfill the environmental duties ARP would have fulfilled if it had discretion over SBGP airport actions. This contractual commitment ensures that the participating states properly evaluate and consider the potential environmental impacts resulting from SBGP airport actions before deciding to fund those projects under the SBGP. Paragraph 212 further discusses how an SBGP agency must use this Order to prepare environmental documents for SBGP actions. Paragraphs 212.b and c note that contractual commitments under the SBGP depend on whether the participating state is subject to “NEPA-like” or “non-NEPA-like” state environmental laws. Paragraph 213 discusses the actions connected to SBGP airport actions that are outside the SBGP that remain under the authority of ARP or other FAA organizations. For those connected actions, the FAA organization having authority for the action outside the SBGP (
e.g.
, installing radars, NAVAIDS, lighting systems, etc.) remains responsible for complying with NEPA and other applicable environmental laws pertaining to those actions. The paragraph also notes that ARP retains responsibility where the SBGP agency requests AIP discretionary funding to supplement SBGP funding for a specific airport project at a specific location. Paragraph 214 provides information on environmental documents needed for SBGP projects and their connected actions and SBGP and FAA organization NEPA responsibilities for those actions.

l. As noted earlier, Chapter 4 is a new chapter on public participation. ARP includes it to highlight the importance of public participation in the NEPA process for airport actions. ARP decided to dedicate a chapter on this topic to make it easier to find instructions on this critical process. The draft Order inconveniently presented this information in different Chapters.

m. ARP includes Chapter 5 in the Order to highlight the need to closely coordinate airport planning and the NEPA process. Doing so allows airport sponsors to plan their projects efficiently and facilitate FAA's subsequent evaluation of an airport plan's environmental effects. CEQ regulations tell agencies to integrate planning and NEPA as early as possible. This chapter underlines this requirement by alerting airport sponsors, their planners, and ARP personnel to it. It significantly expands upon the information included in paragraph 302 of the draft Order that addressed coordinating airport planning and NEPA. This interdisciplinary coordination is not intended to be a substitute for the NEPA process. Instead, it encourages planners to work with environmental specialists to identify sensitive environmental resources and consider alternative ways to avoid or reduce a project's

environmental impacts early in the planning process when the greatest range of alternatives exists. If those alternatives do not exist, this coordination help ensure unavoidable environmental effects are justified and minimized as much as practical. The chapter adds paragraph 504d. The paragraph states that the range of alternatives FAA and the airport sponsor consider during airport planning may be limited to those actions within the sponsor's or FAA's purviews. This is different than the range of alternatives FAA considers during the NEPA process, since NEPA requires the lead Federal agency to examine alternatives that are outside the agency's jurisdiction. The chapter also discusses critical airport planning data for which the airport sponsor is responsible and the data's importance to effective and efficient environmental analyses. The chapter discusses key planning steps that help FAA and airport sponsors meet their responsibilities and streamline the planning and NEPA processes. ARP experience shows that failure to coordinate these processes causes delays in the preparing NEPA documents. Often, this is because important planning data needed to thoroughly evaluate environmental effects were not available when document preparation began.

n. Chapter 6 of the Order includes information on airport actions that are normally categorically excluded (CATEXs). The draft Order addressed CATEXs in Chapters 4 and 6, but to improve document organization, the final Order places information on CATEXs in Chapter 6. Tables 6-1 and 6-2 list those portions of the categorical exclusions in Order 1050.1E, paragraphs 307-312 discussing airport actions. Table 6-1 lists the CATEXs rarely involving extraordinary circumstances, while those listed in Table 6-2 involve those circumstances more often. ARP personnel must use the citations from Order 1050.1E as authorizations for the CATEXs Tables 6-1 and 6-2 summarize.

Table 6-1 does not add or alter any CATEXs. However, Table 6-2 Order includes a new categorical exclusion addressing categorically excluded actions in non-jurisdictional wetlands and a CATEX addressing voluntary airport low emission equipment (VALE). ARP proposed those categorical exclusions in the December 16, 2004, Notice of Availability of draft Order 5050.4B. Based on comments it received on those issues, ARP has inserted information to address those activities in Table 6-2.

Readers should recall that paragraph 310k of Order 1050.1E includes categorically excluded actions in jurisdictional wetlands qualifying for Corps of Engineers General Permits (GP). This is because the Corps issues GPs for the types of actions that do not normally cause significant environmental effects (
i.e.
, categorical exclusions). The new entry in Table 6-2 addressing non-jurisdictional wetlands uses similar rationale. That entry focuses on those actions that are normally categorically excluded, but that are not covered by GPs because the actions would not involve jurisdictional wetlands. Nevertheless, by designing projects to meet GP design standards, ARP contends those projects would not normally cause significant environmental effects, provided there are no extraordinary circumstances. Therefore, the actions qualify as categorical exclusions.

Turning to VALE, Table 6-2 includes actions addressing this equipment because paragraphs 309u, 310f, 310n, and 310u of Order 1050.1E address many of the actions associated with installing facilities needed for VALE. See Comments Addressing Table 2 at the end of this Preamble for more information on categorically excluding VALE.

Paragraph 603 emphasizes the need for airport sponsors to provide responsible FAA officials with specific environmental information when sponsors propose actions that may qualify for CATEXs. ARP highlights this step to encourage airport sponsors to collect information the responsible FAA official will need to review a potential CATEX. Doing so should quicken the responsible FAA official's review of a proposed CATEX because the sponsor's request comes to FAA with information the official needs to thoroughly review the proposed airport action. The paragraph also encourages sponsors to allot enough time in project schedules: to collect needed information; to verify that the sponsor or FAA, as appropriate, has complied with special purpose laws related to any potential extraordinary circumstances; and to enable the responsible FAA official to complete a timely review of the proposed action.

Table 6-3 alphabetically lists and annotates the extraordinary circumstances that FAA Order 1050.1E, paragraph 304 presents. Readers should note that ARP has added a footnote to this table defining the terms, “dividing” and “disrupting” communities. ARP did this to address many questions it received on these terms as they relate to airport-induced community impacts. The Order also provides instructions on special purpose laws and their relationships to extraordinary circumstances when determining if an action may be categorically excluded. Paragraph 606.b provides details on how the responsible FAA official must address extraordinary circumstances involving special purpose laws. Paragraph 607 highlights required and optional documentation for CATEXs with extraordinary circumstances that involve special purpose laws. The paragraph notes that FAA requires specific documentation before it issues a CATEX for a proposed action that possibly involves extraordinary circumstances associated with one or more applicable special purpose laws. That documentation is helpful in determining the level NEPA review, but it is not for NEPA purposes. Rather, it shows compliance with the applicable special purpose law. Paragraph 607 also tells the responsible FAA official to ensure that case files for CATEXs involving special purpose laws include documentation to show FAA has complied with the special purpose laws applicable to those CATEXs.

Paragraph 608 requires the responsible FAA official to inform the airport sponsor via a dated letter or dated e-mail that ARP has categorically excluded an action. ARP includes this instruction to ensure airport sponsors know that ARP has completed the NEPA process for a categorically excluded action, or that it has denied a CATEX for a proposed action. ARP makes this a formal step in its NEPA implementing instructions to address misunderstandings that have occurred concerning categorically excluded airport actions.

o. ARP revised Chapter 7 to place information about environmental assessments (EAs) in one chapter. Paragraph 405 of the draft Order expanded the list of airport actions normally requiring EAs. ARP did this to respond to a number of questions about a variety of actions that Order 5050.4A, paragraph 22 (“Actions normally requiring an Environmental Assessment”) did not address. Final Order 5050.4B adopts the list presented in paragraph 405 of the draft Order. The list appears at paragraph 702. Readers should also note that ARP has added paragraph 702.j (“Other circumstances”) to the list in the final Order. That paragraph states that the responsible FAA official should consider the need for an EA in circumstances not mentioned in paragraphs 702.a-i, particularly when controversy exists because the proposed action involves a special purpose law. Paragraph 703 discusses those situations where ARP

suggests that it, not the airport sponsor, selects the consultant who will prepare an EA for an airport project. ARP addresses this as a way to streamline the NEPA process, if an EA might later show indicate an EIS is needed. Paragraph 705 includes information on when scoping is helpful for an EA. Paragraph 706 provides information on EA format and content. Paragraph 706.b provides information on Purpose and Need. To conform to 1050.1E, paragraph 706.d.(5) provides details on when an EA must consider unresolved conflicts and the resulting need to expand the EA's Alternatives Analysis beyond the No Action and Proposed Action Alternatives. Paragraph 707.e discusses required and optional Regional Counsel reviews of EAs addressing airport actions. Paragraph 708 notes that a sponsor must coordinate EAs with FAA before issuing them for comment, including those the public will review when preparing for a public hearing. The paragraph notes that the sponsor must: (1) File the Draft EA with the FAA for review; (2) make the revisions the FAA reviewer notes; and (3) make the revised EA available to the public at least 30 days before the hearing occurs. ARP provides this information to ensure draft EAs are available to interested parties as they prepare for a public hearing, if one will be held. ARP provided that information in draft Order 5050.4B, at paragraphs 307c.(2) and (3).

ARP includes new table (Table 7-1) in this chapter. For convenience, Table 7-1 presents agency-wide, impact-specific significance thresholds that Order 1050.1E, Appendix A contains. In addition, ARP supplements those thresholds with helpful information from Order 5050.4A, paragraphs 47.e and 85. a through t that Order 1050.1E, Appendix A does not present. ARP provides this information from Order 5050.4A (called “intensity factors” in draft Order 5050.4B) because experience shows that it is very useful to ARP specialists and others evaluating environmental impacts associated with the land or water impacts airport projects may cause. During the past 20 years, ARP personnel have found that information very helpful in determining if a proposed airport action requires an EA or EIS.

Paragraph 712 refers the reader to Chapter 14 of the Order to ensure Order users know ARP is following the requirement in Order 1050.1E paragraph 411 fixing a 3-year “shelf life” for all FAA EAs. Paragraph 713 refers the reader to Chapter 14 of this Order for instructions on re-evaluating or supplementing an EA for an airport action.

p. Paragraph 800.a discusses the approving FAA official's use of significance thresholds when determining if a FONSI is appropriate for a proposed airport action. Paragraph 801 discusses the process when the approving FAA official prefers an alternative differing from the airport sponsor's proposed action. Paragraph 802 presents information a FONSI should contain and the specific wording reflecting the approving FAA official's environmental finding. Paragraphs 803 and 804 discuss the internal coordination and public reviews FONSIs undergo. In particular, paragraph 803.c discusses when a Regional Administrator will sign a FONSI. The paragraph also notes that before the Regional Administrator signs a FONSI, various FAA organizations responsible for a portion of the proposed project must review the FONSI.

Paragraph 805.a describes the factors the responsible FAA official should consider when determining if Record of Decision is needed for a FONSI (“FONSI/ROD”). As Order 1050.1E, paragraph 408 notes, a FONSI/ROD is a combined decision document and environmental determination FAA uses for controversial actions that are the subjects of EAs and FONSIs and other specified actions.

Paragraph 806 provides information on distributing approved FONSIs, while paragraph 807 discusses the process for notifying the public about a FONSI's availability. Paragraph 808 directs the approving FAA official to incorporate in a grant assurance or unconditional ALP approval letter the mitigation measures required to support a FONSI. It also suggests that FAA use an EMS to track compliance with mitigation commitments.

q. Chapter 9 provides information on EISs. Paragraph 902.c encourages the responsible FAA official to consult with interested parties and involved FAA organizations to establish schedules for preparing EISs. It notes that FAA officials must establish EIS schedules when requested by the airport sponsor. Factors an official and a sponsor should consider when developing a schedule include the proposed action's complexity and the complexity of the environmental analyses and processes needed to complete the analyses. However, interested parties should note even the most thoughtfully developed schedule is subject to events beyond FAA's control and those events may affect any projected schedule. FAA officials will notify and consult airport sponsors when the volume or nature of comments on a DEIS require schedule adjustments (paragraph 1200.c of the final Order). Otherwise, FAA officials exercise their discretion when revising the schedule to accommodate such unforeseen events.

Paragraph 903 lists those airport actions that normally require FAA to prepare EISs. Paragraph 904.b notes that FAA will begin the EIS preparation as soon as possible after the airport sponsor presents FAA with a proposal within the meaning of 40 CFR 1508.23. FAA will consider whether there is sufficient airport planning data and information when determining if a proposal exists. ARP will do so because during the past decade it has found that a lack of well-conceived and well-developed airport planning information or a failure to resolve planning issues have caused substantial delays in preparing EISs. Often, these delays were not NEPA-related, but, instead resulted from a lack of good airport planning data. This lack of data severely hampered FAA's subsequent ability to meaningfully evaluate project impacts and prepare EISs. Because scoping is so critical to efficient, effective EIS preparation, ARP included more information about the scoping process (paragraphs 905 and 906) than Order 5050.4A provided. Paragraphs 907 and 908 discuss the timing and content of a Notice of Intent (NOI), respectively. Paragraph 909 provides information on how the responsible FAA official may withdraw an NOI. ARP includes this information to address situations where, after anticipating significant impacts during the scoping process, ARP's analyses showed a proposed action or its reasonable alternatives, would not cause significant environmental effects. Paragraph 910 provides expanded information on the responsible FAA official's duties during scoping. ARP includes this information to highlight the varied roles the official fulfills during this critical stage in the EIS process. Paragraph 911 discusses the important roles an airport sponsor may fulfill during scoping due to its knowledge about the airport's operations and its relationship to the surrounding area. Paragraph 912 notes FAA may be a cooperating agency, not the lead agency, in certain situations warranting an EIS. For example, FAA is normally a cooperating agency for airport actions involving military base joint-use or re-use as a commercial airport or conveyance of Federally-owned land for airport purposes.

r. Chapter 10 discusses the process used to prepare an EIS. Paragraph 1001 discusses an EIS's purpose. That paragraph stresses the need to prepare clearly-written documents so the public

unfamiliar with aviation may understand the purpose and need, a sponsor's proposed project, reasonable alternatives, and the environmental impacts the project or alternatives may cause. Paragraph 1003 provides information on preparing EISs. The paragraph discusses “NEPA-like” states and agencies. It explains how FAA and states or their agencies that comply with laws similar to NEPA may work cooperatively during EIS preparation to reduce duplicating efforts. This paragraph also discusses ARP, airport sponsor, and environmental consultant roles during ARP's EIS preparation. It reflects the policy and procedures FAA has adopted for EIS preparation in response to
Citizens Against Burlington
v.
FAA,
938 F.2d 190, (DC Cir. 1991). The paragraph notes that FAA decides EIS content, even though the airport sponsor pays the environmental consultant's costs for ARP's preparation of the EIS. Paragraph 1003.c provides information about a Memorandum of Understanding (MOU) governing ARP, sponsor, and consultant roles during EIS preparation. Paragraph 1003.d discusses the need for a Disclosure Statement environmental consultants must sign to work with ARP as it prepares the EIS. The paragraph also discusses the limits on consultant activities during EIS preparation.

Paragraph 1004 discusses limitations on FAA and airport sponsor activities during the EIS process. Paragraph 1004.a discusses limits on airport sponsor or FAA activities that would cause adverse effects or limit alternatives during the NEPA process. Paragraph 1004.c provides information on the steps FAA officials must take if FAA becomes aware that a sponsor is proceeding to final design while FAA is preparing an EIS. ARP provides this information to alert Order users about the requirements in CEQ regulations addressing limits on agency and airport sponsor actions during the EIS process. ARP also includes this information to address questions it has received about the level of planning and design activities a sponsor should normally develop for NEPA purposes. Conversely, paragraph 1004.d discusses the level of plans and design a sponsor may need to apply for permits or financial assistance. ARP recognizes the differences in design levels to streamline the NEPA process and to avoid duplicating paperwork or State or local procedures. Paragraph 1005 explains how ARP adopts another Federal agency's EIS as another way to streamline (
i.e.,
improve the efficiency of) the NEPA process and to reduce paperwork and duplication of efforts.

Paragraph 1007 provides re-organized and updated information on EIS format and content to more closely track information in FAA Order 1050.1E. The paragraph also includes information from the FAA Guide to Best Practices ARP has found important in preparing EISs. Paragraph 1007.b(8) clarifies instructions in the draft Order that discussed the environmentally preferred alternative. To correctly reflect 40 CFR 1505.2(b), the final Order encourages FAA to identify the environmentally preferred alternative in the final EIS. ARP makes this change to more accurately reflect 40 CFR 1505.2(b), which requires identification of that alternative in the Record of Decision, not the final EIS.

Paragraph 1007.e(5) in the final Order now states the criteria the responsible FAA official must consider when determining the “prudence” of an alternative per 49 U.S.C. 47106.(c)(1)(B). This section of 49 U.S.C. requires the Secretary of Transportation to consider a “possible and prudent alternative” when considering a grant application for a project involving a new airport, a new runway, or a major runway extension having significant adverse effects. Although criteria in paragraph 1007.e(5) apply to decisions for actions involving Section 4(f) resources (now, 49 U.S.C. 303), FAA is using that definition of “prudent” for major airport projects to aid its staff determine when an alternative is “prudent.” FAA worked with the Federal Highway Administration (FHWA) on the definition as presented in FHWA's March 2005 Section 4(f) guidance
4

and believes it is appropriate for FAA actions under 49 U.S.C. 47106.(c)(1)(B) as well as Section 4(f).

4

http://enironment.fhwa.gov/dot/projdev/4fpolicy.asp.

Paragraph 1007.h discusses the need to consult the airport sponsor, FAA organizations, Tribes, or resource agencies about conceptual mitigation measures that are not included in the proposed action. Paragraph 1007.m stresses the use of appendices and references to reduce EIS bulk. This promotes CEQ's intent to keep an EIS to a manageable size.

s. Chapter 11 provides information on processing draft EISs (DEIS). Paragraph 1100 discusses how ARP and other FAA organizations internally review preliminary draft EISs. The process varies with the proposed action and if it is subject to Vision 100's streamlining requirements. Paragraph 1101 explains how to distribute DEISs for public and inter-agency reviews. Various paragraphs provide addresses for headquarters' offices of the Federal departments that review FAA DEISs. The paragraphs also provide the number of hard copies (hard copies and CDs) of a DEIS ARP must send to those departments. Paragraph 1101.b.(1)(d) provides standard language certifying that ARP has issued DEISs to the public at the same time or before it has filed the documents with the U.S. Environmental Protection Agency (EPA). Paragraph 1104 provides instructions for re-circulating DEISs. ARP provides this information to answer questions it has received on this topic.

t. Chapter 12 discusses processing a final EIS (FEIS). Paragraph 1202 notes that CEQ requires an agency to identify its preferred alternative in the FEIS, unless a law prohibits the agency from doing so. This clarifies that FEISs must contain this information, if the approving FAA official did not identify a preferred alternative in the DEIS. Paragraph 1203.b requires the responsible FAA official to ensure the FEIS contains evidence that: (1) An airport sponsor has either certified that the airport management board has voting representation from the communities; or (2) the sponsor has advised communities they have the right to petition the Secretary of Transportation about a proposed new airport location, new runway, or major runway extension.

Paragraph 1203.b.(3) directs the responsible FAA official to ensure that on request, the airport sponsor has made available and provided to an existing metropolitan planning organization in the area where an action would occur, a copy of a proposed airport layout plan (ALP) amendment depicting a major proposed airport project at a medium or large hub airport and the master plan describing or depicting that project. ARP includes this assurance to meet the requirements of 49 U.S.C. 47106(c)(1)(A)(iii) so that ARP may include that information in its Record of Decision, if needed.

Paragraph 1206 discusses the need for an FEIS to include evidence to support necessary determinations addressing impacts to jurisdictional and non-jurisdictional waters and wetlands. Non-jurisdictional wetlands are waters or wetlands that are not “waters of the United States” under Section 404 of the Clean Water Act. Such wetlands do not fall within the jurisdiction of the U.S. Army Corps of Engineers. However, ARP includes information on non-jurisdictional wetlands to address many questions it has received about

reviewing impacts to those resources. Paragraph 1206 clarifies that impacts on all wetlands, including non-jurisdictional wetlands, must be analyzed to comply with NEPA, Executive Order 11990, Protection of Wetlands; and DOT Order 5660.1A, Preservation of the Nation's Wetlands.

Paragraph 1208 discusses the need for an FEIS to include evidence to support determinations in a ROD for a proposed action that affects coastal resources, even if the action is not at an airport located within the boundaries of a designated coastal zone area. ARP includes this information to address amendments to the Coastal Zone Management Act (CZMA). Among other things, the amendments require Federal agencies to address impacts to coastal zone resources, even if a project occurs outside a state's coastal zone boundaries. Paragraphs 1208.a and b discuss the evidence that an FEIS must include to support determinations in a ROD regarding 15 CFR subparts C and D (regulations implementing the CZMA). Paragraph 1208.a provides information on CZMA consistency requirements for actions FAA does not undertake, but for which it has approval authority. Paragraph 1208.b provides information about consistency requirements for projects FAA itself undertakes, such as installing a NAVAID in a coastal zone. ARP includes this information to highlight the different CZMA requirements that may apply to airport actions.

Paragraph 1209 clarifies the evidence that an FEIS should include for actions involving disproportionately high and adverse impacts on minority and low-income populations. ARP includes this information in the final Order to ensure FEISs address this important issue when appropriate.

Paragraph 1210 discusses the delegation of authority within ARP to approve environmental documents and decisions under FAA Order 1100.154A, Delegation of Authority, dated June 12, 1990. The Order delegates approval authority for certain airport projects from the FAA Administrator to the Associate Administrator for Airports (ARP-1). ARP-1 may further delegate that authority, per Order 1100.154A, as paragraph 1210 explains.

Paragraph 1211 provides updated information on FEIS distribution to reviewing Federal agencies. Various subparagraphs discuss the number of FEIS copies (hard and CD) the responsible FAA official must send to various reviewers. Paragraph 1211.c discusses when FAA may extend the 30-day “wait period” between the time EPA publishes a notice of an FEIS's availability in the
Federal Register
and the time the agency issues a decision on a proposed action. Order 5050.4B provides this information for those rare occasions when FAA may wish to exercise this option under 40 CFR 1506.10(d).

Paragraph 1212 discusses more details concerning the process for referring EISs to CEQ under 40 CFR part 1504. ARP includes this information to ensure its personnel know about this little used, but important CEQ provision.

u. Paragraph 1301.g requires FAA to ensure the agency and the airport sponsor complete required mitigation. The paragraph suggests using an Environmental Management System (EMS) is an excellent way to track the sponsor's compliance with required mitigation and promote Executive Order 13148, Greening the Government Through Leadership in Environmental Management.

Paragraph 1304 discusses the requirement at 40 CFR 1506.6(b) to notify the public about ROD availability for major Federal actions. The paragraph urges ARP personnel to publish notices announcing FAA's issuance of a ROD for an airport project. Although this is not a CEQ requirement, ARP recommends this because this is an effective way to inform the public about ARP decisions significantly affecting the environment. It also provides a clear starting point for the 60-day statute of limitations for legal challenges under 49 U.S.C. 46110.

v. Paragraph 1401 provides guidance on the longevities of draft and final EAs and EISs, the need for re-evaluating those documents, and the need to supplement them. ARP provides that information to address questions about EA and EIS “shelf-live” it has received since issuing Order 5050.4A in 1985 and to comply with FAA Order 1050.1E, paragraphs 402.a and 514. ARP addresses these issues to ensure NEPA documents provide approving FAA officials with the best available information. ARP further clarifies that a written re-evaluation is required when the responsible FAA official determines an EIS must be re-evaluated.

Paragraphs 1401.b and c discuss the factors the responsible FAA official considers when deciding if he or she must re-evaluate a draft or final EIS, respectively. Readers should note that paragraph 1401.a also notes that the responsible FAA official may use discretion when determining the need for a written re-evaluation in other circumstances. The official may also use discretion when deciding if FAA will distribute the re-evaluation to the public. Order 5050.4B includes this requirement to address an oversight in Order 1050.1E that FAA corrected in Change 1 to Order 1050.1E (Notice of Adoption, Notice of Availability (71 FR 15249, March 27, 2006).

Paragraph 1402 provides information about supplementing EAs and EISs to address many questions ARP has received on this topic since issuing Order 5050.4A in 1985. It notes that FAA, and, therefore, ARP, is applying the standards it uses for EISs to EAs to ensure FAA NEPA documents provide accurate and timely information. Paragraphs 1403 and 1404 address tiering EISs and emergency situations and EIS preparation.

w. Chapter 15 provides information on streamlining the EIS process for certain airport projects to address Vision 100 requirements. Among other things, Vision 100 requires streamlining the environmental process for airport capacity projects at congested airports. These are airports that account for at least 1% of all delayed aircraft operations in the Nation. Vision 100 also applies to airport safety and airport security projects throughout the nation, regardless of their congestion levels.

x. ARP has deleted paragraph 407 in the draft Order addressing cumulative impacts. More extensive information on cumulative impacts now appears in paragraph 1007.i of the final Order. ARP will provide more detail on this topic in the Desk Reference. Until ARP issues that information, document preparers and reviewers should use information in paragraph 1007.i of this Order, paragraph 500c of Order 1050.1, and CEQ's guidance on assessing cumulative impacts, Considering Cumulative Effects Under the National Environmental Policy Act (
http://ceq.eh.doe.gov/nepa/ccenepa/ccenepa.htm
).

ARP has also deleted the examples of the third party Memorandum of Understanding and the “short form” Environmental Assessment that were included as appendices of the draft Order. ARP is deleting them because it has decided to place examples of documents and other information that ARP has found helpful but not required in the Desk Reference.

y. Appendix 1 includes updated flowcharts on completing the NEPA processes for categorical exclusions, EAs, FONSIs, EISs, and RODs.

Disposition of Comments:
ARP has made additional changes, clarifications, and corrections to the final Order. It does so in response to comments received after publishing the
Federal Register
notice of December 16, 2004, announcing the availability of the draft Order for public review. The changes, clarifications, and corrections are

discussed in the following sections of this Preamble. ARP received comments from three primary sources: (1) An organization representing airport management; (2) an organization representing state, regional, and local governing bodies that own and operate the principal airports serving scheduled air carriers in the United States and Canada; (3) two individual airport sponsors; (4) an organization representing airport consultants; (5) two individual airport consultant corporations; (5) two Federal agencies; (6) various state and local governments; and (7) one member of the public. The term “comment” used in this Preamble refers to an individual issue a commenter raised. A commenter may have raised numerous issues in correspondence forwarded to ARP from the docket. This Preamble also discusses substantive comments resulting from deliberative discussions with the Office of the Secretary of Transportation, the Council on Environmental Quality, internal FAA elements and ARP personnel at regional and district offices.

ARP classified the comments received into three categories: (1) Comments that broadly cover the entire Order; (2) comments that relate to a paragraph or a portion of paragraph in the Order; and (3) comments on Tables 1-3. ARP has provided specific responses to those comments in that sequence, with the level of response commensurate with the degree of public interest expressed.

General Comments

The Order in general:
FAA received several comments on the need to update FAA Order 5050.4A. One commenter noted the revised Order was long overdue. Many commenters applauded ARP's efforts to update instructions in a writing style that was clearer and easier to understand than the previous Order. Nevertheless, several commenters noted the document is a “work in progress.” Two commenters recommended that ARP conduct working sessions conducted with an open dialogue to address some of the comments of major concern.
ARP's response:
FAA notes the comment on the need to update FAA Order 5050.4A. It appreciates the comments on the effort to update the instructions in a plain writing style. ARP has adopted that style for this Order to help the public understand its NEPA procedures and to comply with FAA requirements to prepare documents in plain English. FAA acknowledges that the draft Order contained language and instructions that required further input to ensure the final version addressed major concerns and that it was a valuable tool in completing the NEPA process for airport actions.

Regarding working sessions, ARP personnel met with representatives of some of the commenting organizations at various times and locations. In these instances, ARP: (1) Discussed the major concerns the organizations had about the draft Order; (2) sought clarification of other concerns the commenting organizations expressed; and (3) answered questions about the Order. ARP believes the final Order is improved due to this and other efforts. This Preamble's General Discussion provides ARP's reasons for revising the Order to address general comments on the draft. The section of the Preamble entitled Beginning responses to comments on specific paragraphs of the draft Order addresses comments on specific paragraphs and provides ARP responses to those comments.

Best Practices:
On commenter suggested adding information from The FAA Guide to the Best Practices for Environmental Impact Statement Management (Best Practices). The commenter seeks blending information from the Best Practices with the Order's text or placing it as an appendix to the Order.
ARP's Response:
Agree, in part. Chapter 5 of the Order is based on and incorporates much of the Best Practices' information linking airport planning and the NEPA process. However, ARP believes it is not necessary to include the entire Best Practices document as an appendix to this Order. ARP prepared the Best Practices material as internal guidance and appreciates the commenter's complements on it. Readers seeking additional information on those practices should visit the Best Practices
5

Web site.

5

http://www.faa.gov/Arp/environmental/5054a/bestprac.cfm.

Chapters addressing EISs:
One reviewer states the Order would be more user-friendly if Chapters 9 through 12 were combined into one chapter addressing EIS preparation and processing. The reviewer is concerned that the draft Order's presentation could lead users to think that the instructions are not linked. Consequently, users will not realize these chapters provide details on the various steps the responsible FAA official and/or FAA's EIS contractor complete as they prepare an EIS.
ARP's Response:
Disagree. No other reviewers have voiced this concern. ARP retains the draft Order's presentation. It presents individual, successive chapters explaining how to: (1) Begin and finish preparing a draft and final EIS; (2) making those documents available for public review and comment; (3) responding to those comments in the final EIS; and (4) preparing and issuing a Record of Decision.

Consistency and redundancy with FAA Order 1050.1E:
Many commenters stated the draft Order was inconsistent with Order 1050.1E.
ARP's Response:
ARP believes revisions to the draft Order have addressed this concern. ARP intends the instructions in Order 5050.4B to be substantively consistent with 1050.1E, differing only as necessary to provide more specific instructions tailored to airport actions and to legal reviews of environmental assessments and Findings of No Significant Impact.

Turning to redundancy issues, a few commenters noted that this Order repeated guidance in Order 1050.1E or relied on it.
ARP's Response:
Order 1050.1E addresses NEPA requirements for all FAA organizations. However, Order 5050.4B provides NEPA instructions tailored to airport projects. Readers should note that ARP cited paragraph from Order 1050.1E to address comments and underscore certain requirements germane to the agency (
e.g.
, 3-year “shelf life” for an environmental assessment; preparing a Record of Decision for a Finding of No Significant Impact, etc.). ARP did this to highlight new, agency-wide procedures.

Another commenter suggested deleting the tables in Order 5050.4B (Tables 6-1 and 6-2 of this Order) containing portions of CATEXs in paragraphs 307 through 312 of Order 1050.1E. (Tables 6-1 and 6-2 of the final Order provide alphabetically arranged, annotated sections of those paragraphs that apply to airport actions). The commenter stated that having to cite the paragraph in 1050.1E would “tend to confuse” many people.
ARP's Response:
ARP does not agree. This commenter was the only one noting possible confusion. To avoid this confusion and to stress there is only one list of FAA-wide categorically excluded actions, Order 5050.4B uses the citations from Order 1050.1E. Paragraph 602.c of Order 5050.4B clearly instructs the responsible FAA official to use information in column C of Tables 6-1 and 6-2 as the cites for the paragraphs in Order 1050.1E containing the annotated airport action under review.

Consultation with airport sponsors:
A commenter urged ARP to include airport sponsors in the NEPA process. Although the commenter recognizes FAA's expertise in the national air transport system, it notes that airport sponsors have greater expertise than FAA personnel on local issues, financial

resources, business arrangements with airlines, and other users specific to their respective airports. In addition, sponsors have the best knowledge of the goals and objectives they wish their airports to attain. They, better than FAA, can provide valuable information on those issues to ensure proposed airport actions address the problems sponsors face. The commenter stated it knows of instances where the airport sponsor was virtually excluded from the preparation and issuance of draft NEPA documents. The commenter stated that the exclusion of sponsors from participating in EIS preparation had potentially serious ramifications on the end product. Therefore, the commenter urges ARP to include airport sponsors in the NEPA process and to help reduce risks of error and delay in that process. The commenter notes sponsors can do so without compromising the independence FAA needs in making decisions about sponsor proposals.
ARP's Response:
ARP thanks the commenter for recognizing FAA's expertise and agrees airport sponsors provide valuable local and regional information about airports and proposed airport actions. For these reasons, ARP facilitates sponsor participation in the NEPA process. For decades, ARP shared pre-decisional drafts of EIS's with sponsors to achieve common goals, including, among others, the preparation of a complete, accurate, and comprehensive report on environmental impacts sufficient to survive judicial review. However, in response to a recent U.S. Supreme Court decision (
Department of the Interior
v.
Klamath Water Users Protective Association,
532 U.S. 121 S. Ct. (2001)), ARP now limits sponsor participation in terms of access to pre-decisional, deliberative material more so than it did in the past. Today, as a result of the Supreme Court's decision, ARP, on a case-by-case basis, decides when sponsor participation in the NEPA process should include access to pre-decisional, draft documents such as preliminary draft EISs or draft technical reports. ARP staff typically limits sponsor access to draft versions or reports and documents during the NEPA process for two reasons. First, it does so where there is a high level of public distrust and concern about the NEPA process' integrity and objectivity. Second, it does so on controversial projects to help minimize delays in preparing a draft EIS that may arise when ARP staff must devote time to compiling and releasing documents in response to requests under the Freedom of Information Act (FOIA). Under the FOIA, FAA must release to the public the information it shared with airport sponsors. This is because under the Klamath Decision, the release of that information waives FAA's privilege to withhold information as deliberative in nature under Exemption 5 of the FOIA.

In response to this comment and concerns airport sponsors expressed in the past, ARP has identified what it considers to be a best practice already in use in some regional and field offices. When planning the EIS process and developing EIS schedules, ARP encourages its staff to seek agreement with airport sponsors about the types of preliminary EIS material they wish to see and when the sponsor wants to see it. ARP and the sponsor will not consider just the potential consequences under FOIA, but also state and local laws bearing on the release of deliberative NEPA documents, including sunshine laws and mini-NEPA laws that may apply to the airport sponsor. They will also decide if it makes sense for FAA to seek help from sponsors to accomplish needed tasks and minimize risks of analytical mistakes that could affect the quality of NEPA documents. In each case, ARP will also consider the quality of the relationship and the level of trust with the community. It will also consider the potential chilling effect on the internal deliberative process that may occur due to the release of documents under FOIA. ARP, in consultation with the airport sponsor, will then design the appropriate document review process.

Desk Reference.
ARP received varied comments on its decision to publish a separate document entitled, Environmental Desk Reference for Federal Airport Actions.
ARP's Response:
Comment noted. Order 5050.4B focuses on the NEPA implementing instructions for airport projects under FAA's purview. However, the Desk Reference will be a compendium of special purpose laws outside NEPA that also apply to those projects. As a compendium, it simply places all of the environmental laws, regulations, and executive orders outside NEPA in one location for the use and convenience of those analyzing airport actions.

ARP is also issuing the Desk Reference to be more responsive to changes in the many non-NEPA laws and regulations that change more frequently than NEPA and the CEQ regulations implementing it. A lack of updated information on non-NEPA laws and regulations in Order 5050.4A has been a source of legitimate concern from ARP staff and other users of Order 5050.4A during the past decade. ARP believes the Desk Reference is the most flexible and best way to address this problem.

Since 1985, when FAA issued Order 5050.4A, many laws, regulations and orders outside NEPA have been amended or revised, while CEQ's regulations have had one minor change during that period. However, readers should note that since 1985, ARP has issued over 17 Supplemental Guidance Memos to its personnel. Those memos ensured ARP staff had updated instructions on non-NEPA issues resulting from new or amended laws, or regulations implementing them. Also, during training classes and via other methods, ARP issued many instructions to its environmental staff concerning procedural or analytical changes related to special purpose laws. When compared to these past practices, ARP believes the Desk Reference will be a more formal and efficient way to distribute updated information on special purpose laws and how they relate to airport projects.

ARP will issue the Desk Reference after it issues this Order. Until then, ARP staff and other interested parties must use Appendix A of Order 1050.1E for information on assessing resources outside NEPA. When ARP issues the Desk Reference, all parties should use the Desk Reference to analyze airport actions. ARP will make the Desk Reference and changes to it available to ARP's regional and district office personnel and the public. It will do so by placing it on ARP's Web site. In addition, ARP will contact groups representing airport sponsors about the updates and rely on those groups to help ARP announce those updates.

ARP made the decision to issue the Desk Reference after reviewing comments on Order 1050.1E's inclusion of Appendix A, which addresses many of the same Federal laws, regulations, and executive orders as the Desk Reference (69 FR 33810 June 16, 2004). In that
Federal Register
, FAA stated that Appendix A is a helpful attachment to the Order but that it, “* * * will consider changing the format in subsequent revisions of the Order.”

Some reviewers stated that ARP should develop the Desk Reference in collaboration with industry stakeholders to ensure NEPA documents meet NEPA/CEQ objectives and how those objectives affect the daily operations of airports.
ARP's Response:
ARP appreciates and understands these concerns, but emphasize that the Desk Reference merely summarizes existing legal requirements. It contains no policy guidance implementing NEPA, so ARP sees little value in affording an opportunity for public review and

commend in advance. Nevertheless, after publishing this Order, but before issuing the Desk Reference, ARP will distribute selected chapters of the Desk Reference for public information purposes only.

In a related matter regarding the Desk Reference, one commenter stated that ARP's failure to prepare an order substantially covering the same material that Order 5050.4A contained (the Order had extensive information on non-NEPA requirements that the Desk Reference will provide) did not meet Congress' intent.
ARP's Response:
ARP respectfully disagrees. ARP notes that as the FAA office responsible for analyzing airport actions, it will consider input from stakeholders, but it has the discretion to decide the contents of Order 5050.4B, provided it meets CEQ, DOT, and FAA requirements. Readers should note ARP prepared this Order in consultation with CEQ. It has received a finding from CEQ that the Order conforms to NEPA; therefore, ARP is assured the Order meets the requirements of NEPA and its implementing instructions. Finally, concurrence of DOT's Acting Assistant Secretary for Transportation Policy indicates Order 5050.4B conforms to DOT requirements.

In another related matter, commenters further noted that ARP's failure to make the Desk Reference available for public review is inconsistent with Vision 100's mandate that FAA issue a revision to Order 5050.4A.
ARP's Response:
ARP appreciates and understands these concerns. Section 307 of Vision 100 set a date by which FAA was to publish a draft version of Order 5050.4B. It did not limit the agency's discretion to update the Order or specify any material that the Order had to include.

ARP wishes to highlight that the agencies responsible for the regulatory changes beyond NEPA often publish those changes in the
Federal Register
for public review and comment. ARP has the discretion to summarize environmental laws and regulations other than NEPA and how they typically apply to airport actions for ease of reference for its personnel in a Desk Reference. As noted earlier, ARP decided the Desk Reference affords a flexible way to stay apprised of the ever-changing regulatory landscape and how it applies to airport actions under FAA's purview. ARP will distribute selected chapters of the Desk Reference for public information purposes only.

Finally, some commenters agree with ARP's approach. However, they are concerned about placing instructions in a Desk Reference makes the instructions in that document difficult to legally defend.
ARP's Response:
ARP disagrees. Many if not most of the laws and information in the Desk Reference have their own enforcement provisions. ARP's decision to not include them in Order 5050.4B does not diminish those provisions.

Editorial and grammatical errors:
Commenters noted the draft Order contained editorial, grammatical, and formatting errors.
ARP's Response:
ARP agrees. Readers should note that ARP has not prepared responses to comments on grammatical errors the draft Order contained. Doing so would make this Preamble far too long and cumbersome to read. ARP believes that the extensive re-organization and editing of the Order have addressed most of the organizational and grammatical concerns commenters noted.

Electronic distribution of this Order:
A commenter indicated that ARP should distribute the Order in compact disc (CD) format or post it on the internet.
ARP's Response:
Agree. ARP will provide free copies of the Order on CD or paper when requested. However, it urges users to use Web access when possible. ARP has posted this Order on the ARP Web site mentioned in the Summary section of this Preamble.

Electronic distribution of NEPA documents and related materials:
A commenter requests information on the electronic distribution of documents.
ARP's Response:
ARP has included this information in Chapters 7, 8, 11, and 12 of the Order.

FAA resources:
A commenter states that the draft Order assumes the existence of FAA resources that are not present. Airport sponsors remain frustrated with the time FAA staff needs to address airport projects. The Order assumes the staff has the expertise and experience needed with airports, but many FAA offices do not have those abilities. Staff resources and experience must increase “dramatically” to meet the Order's instructions. The Order should candidly address the problem and provide procedures that that limited FAA staff can meet. The commenter states it has historically supported FAA efforts to get the resources needed to meet agency duties and will continue to do so.
ARP's Response:
ARP appreciates the commenter's support for adequate FAA resources. ARP also understands and appreciates the frustration of airport sponsors regarding staffing, but ARP does not agree that the Order is the place to resolve those issues.

In addition, as FAA discussed in its May 2001 Report to Congress on Environmental Review of Airport Improvement Projects
6

requirements under NEPA and other Federal environmental laws and local consensus play far greater roles than FAA staffing levels in determining the time needed to complete NEPA reviews for airport development projects. ARP has included in 5050.4B the practical lessons it has learned since 1985 about how to effectively prepare airport EISs. For example, ARP experience indicates airport sponsors will reduce FAA's workload if they complete good master planning and build local consensus before asking the agency to start the NEPA process.

6

http://www.faa.gov/arp/environmental/5054a/RTCenv.pdf.

Turning to staffing resources, we believe that many offices have the expertise and ability to address airport projects. Before 2003, ARP had environmental specialists and attorneys with proven track records of successfully completing environmental impact statements for airport development projects within an average of 3
1/2
years. While ARP agrees that some regional and field offices have less expertise and/or higher workloads than others, FAA headquarters historically delivers additional project management, technical, and legal services as needed for a timely and effective EIS process as noted earlier. ARP also notes that its regional and district Airports offices share personnel to the extent permissible and practical to assist in EIS preparation.

ARP acknowledges the commenter's major role in Congress enacting the Department of Transportation Appropriations Act of 2003, part of which established and funded 30 additional positions in FAA to expedite environmental reviews for airport projects. ARP conducts regular training conferences, enrolling employees in reputable environmental training courses, and gradually increases the responsibilities of its newer employees in offices throughout the country. Those new employees are developing the skills and abilities needed to address multiple, complex airport projects concurrently and effectively. At the same time, when ARP anticipates that headquarters resources may not be sufficient to meet schedules for multiple ongoing complex airport projects, it has asked sponsors to fund additional FAA staff and trained consultants.

Independent Utility:
A commenter requests information on independent utility.
ARP's Response:
Paragraph 202.c(4)(a) discusses ALP approvals for actions having independent utility.

Information in Order 5050.4A:
One commenter noted that in some areas the language in Order 5050.4B is improved over the language in Order 5050.4A. In other instances, neither Order 5050.4B or Order 1050.1E contains language adequately addressing specific airport actions. The commenter fears that these omissions will obscure the clarity of instruction for some of these actions that Order 5050.4A provided.
ARP's Response:
Agree. ARP has revised much of the discussion from Order 5050.4A that the commenter specifically recommended.

Instructions are not consistent with NEPA:
One commenter voiced its extreme concern that the information in the Order is not consistent with NEPA, that it lacks scientific and factual basis, and that it exhibits a bias toward the aviation industry, while stating it presents environmental stewardship principles. The commenter provided specific examples of its concerns to ensure the Order more accurately reflected NEPA requirements. Some examples the commenter included were: (1) A DNL 3 dBA increase in the DNL 60-65 dBA contour should be a significant effect, (2) FAA should, “* * * produce peer-reviewed scientific research that investigates the effects of a 3 dBA increase in 60-65 DNL contour;” (3) that the DNL metric is the only acceptable noise metric to the exclusion of others; (4) that FAA should seek input of a local advisory board in selecting its EIS consultant; and (5) that FAA should not consider the need to relieve airport congestion as an emergency per CEQ'a emergency procedures at 40 CFR 1504.(b)(2).
ARP's Response:
FAA disagrees with the commenter's statements on consistency with NEPA. ARP notes that Order 5050.4B must be and is consistent with Order 1050.1E. Since the latter Order presents agency-wide NEPA implementing instructions, Order 5050.4B's consistency with Order 1050.1E means it is consistent with NEPA. ARP requests that the commenter review the Significant noise impact threshold portion of this Preamble for FAA's definition of significant noise, the use of the DNL metric, and other noise concerns the commenter noted. ARP also suggests that the commenter review responses to comments on in this Preamble addressing paragraphs 1003 and 1404 for issues related to consultant selection and FAA's compliance with NEPA during emergencies, respectively. Regarding the Order's consistent with NEPA, ARP reminds the commenter that CEQ has reviewed Orders 5050.4B as well as 1050.1E. FAA has revised both Orders to ensure they meet CEQ concerns. CEQ's reviews and certifications of those both Orders indicate CEQ has determined that both Orders conform to CEQ regulations.

Instructions on “NEPA-like” states or agencies:
Two reviewers sought more information on these issues in general. They request instructions on what to do when state rules specifically require discussions of certain issues and prohibit discussions of others. Of particular note, they seek information on how to handle the topic of human health risks (
i.e.
, hazardous air pollutants) in joint Federal-State documents. They note that Orders 5050.4A and 5050.4B seem to encourage separating State and Federal environmental documents. The commenters note there may be statutory or regulatory limits on combining documents, nevertheless, they request more information on the “NEPA-like” issue.
ARP's Response:
For information on aviation-related air toxins and human health risk assessments, readers should use FAA's
Federal Register
“Notice of Adoption and Availability of Order 1050.1E” (No. 69. FR No. 115, p. 33784, 6/16/2004). However, since preparing that notice in June 2004, the Federal Highway Administration (FHWA) has issued its Interim Policy on Mobile Source Air Toxins, and FAA has addressed this topic in EISs it prepared for airport actions at Los Angeles (LAX), O'Hare, and Philadelphia International Airports. In these EISs, FAA estimated air toxin emissions but did not prepare human health risk assessments.

Regarding the comment on handling the topic of hazardous air pollutants in a joint Federal and State document, the LAX Final EIS illustrates one way of handling that issue. That joint document was prepared to meet NEPA/CEQA (California Environmental Policy Act) requirements. In the Environmental Justice section of FAA's FEIS for LAX's master planning effort, FAA notably included, for disclosure purposes, the human health risk assessment (HHRA) the City of Los Angeles prepared to comply with the California Environmental Quality Act. In that FEIS, FAA explained that it presented the HHRA results as follows: “* * * however, to the extent that fulfillment of the purposes of Executive Order 12898 [on Environmental Justice] would be furthered by such an analysis, presented below are the results of the [Los Angeles World Airports] Human Health Risk Assessment, which was prepared in compliance with CEQA and based upon CEQA thresholds of significance and provides a qualitative comparisons [sic] of potential health risks.”
7

7
FAA's FEIS for the Proposed LAX Master Plan Improvements, Los Angeles International Airport, Los Angeles, Los Angeles County, California, Volume A, page A.2-88.

Turning to the statement that FAA encourages preparation of separate, documents consistent with 40 CFR 1506.2, FAA NEPA guidance encourages preparation of joint Federal and State documents. FAA recognizes that preparing joint documents is often more complex and time-consuming initially, but joint documents may save time in the long-term by eliminating sequential Federal and State reviews. On the other hand, separate documents may be more efficient and effective where Federal and State requirements and timing differ substantially or the Federal and State agency cannot agree on proper analytic methodology. If separate documents are prepared, FAA and the State should attempt to conduct their environmental review processes on parallel tracks within the same time frames using common databases to the best of their abilities. This will avoid end-to-end sequential processes that often lengthen document preparation times. FAA encourages readers to review the Best Practices' Web site mentioned earlier for more information.

References should be available:
A reviewer requests that ARP provide copies of all FAA and DOT documents and orders noted in Order 1050.1E and 5050.4B, or that FAA routinely uses during its NEPA process. The reviewer suggests providing that information via appendices or FAA's Web site.
ARP's Response:
Most of the Department of Transportation (DOT) and FAA information and other references used to prepare the Orders is available on DOT, FAA, or ARP Web sites. Interested parties may also obtain that and other information via Internet “search engines” by searching on key words in the item of interest.

Saving time during the NEPA process and streamlining the NEPA process:
A few commenters expressed appreciation for ARP's efforts to improve its NEPA processes and recognize constrained resources lead many people to perceive that ARP has inefficient NEPA processes. Nevertheless, the commenters urge ARP to save time during the NEPA process by incorporating many measures in that process. These measures include: Parallel, rather than sequential reviews; conducting earlier and frequent coordination with agencies to address purpose and need and alternatives; disclosing EIS data before publishing

draft EISs; making faster legal decisions; and establishing firm deadlines or milestones and emphasizing Vision 100's streamlining terms. The commenters also urge ARP to limit analyses to the requirements of laws or regulations and include words (
i.e.
, milestone, schedule, deadline) in the Order to stress the need to process information in a timely fashion. The commenters believe the Order should instill greater urgency within the agency about the need to reduce processing times. Another commenter argues that FAA should codify performance deadlines.
ARP's Response:
ARP appreciates the commenters' recognition of ARP's efforts to make its NEPA process more efficient. ARP recognizes that there is room for improvement; however, ARP notes that it has a long and proven track record of expediting EISs successfully by using the measures noted in the comment such as parallel processing of environmental requirements and reaching consensus with resource agencies. Chapter 15 of Order 5050.4B expressly addresses requirements for streamlining certain projects under Vision 100 and Executive Order 13274, while other chapters discuss administrative streamlining initiatives and ways to improve the NEPA process for other projects. ARP will continue to use these proven, effective methods to make the NEPA process more efficient.

Regarding the extent of analyses, ARP reminds the commenters that ARP, as the lead Federal agency, not the airport sponsor, is ultimately responsible for meeting Federal legal requirements and preparing an EIS. Therefore, ARP staff, in consultation with expertise agencies, must determine the extent of analyses needed to meet applicable laws and regulations. But airport sponsors sometimes disagree with these ARP decisions. When sponsors disagree with ARP in these matters, they may want to consider if the time spent to resolve disagreements with FAA and resource agencies about impact analyses might be better used to complete the NEPA process. ARP urges sponsors to realize that the analyses are those ARP, in consultation with its legal counsel and agencies having expertise, determines necessary to provide an adequate interdisciplinary analysis as NEPA requires and to comply with applicable laws and regulations. ARP's failure to do so would compromise the sponsor's schedule and the agency's Airports Program. Since FAA is responsible for providing a safe, efficient air transport system, and ARP is responsible for a program that supports that system, it, in consultation with its counsel, must make the final decisions on the levels of analyses an airport project requires.

Regarding the commenters' recommendations for milestones, deadlines, and schedules, ARP maintains that FAA senior management and agency managers and staff have consistently demonstrated a sense of urgency in addressing major airport development projects. As explained in the response to the comment above relating to FAA Resources, sponsors have the ability to do a great deal to reduce NEPA processing times. Among other things, they should work to build local consensus to support their proposed projects and complete sound master planning before asking the FAA to begin the NEPA process. Expedited EISs for projects that do not come to fruition are frustrating for FAA staff and divert limited resources better invested elsewhere. Further, in its May 2001 Report to Congress on Environmental Review of Airport Improvement Projects, FAA described the administrative initiatives that it uses to improve its processing of airport actions. Many of these initiatives are required for projects selected for streamlined review under Executive Order 13274, Environmental Stewardship and Transportation Infrastructure. In 2003, Vision 100 codified into law the initiatives relating to expedited, coordinated reviews for projects at congested airports. And, within a span of two years, FAA notably issued final EISs and RODs for four major projects: (1) The Runway 17/35 at Philadelphia International Airport; (2) the O'Hare Modernization Program at O'Hare International Airport: (3) Runway 1/19W at Dulles International Airport; and (4) the Master Plan development at Los Angeles International Airport. FAA's performances on these complex and needed projects show that FAA is utilizing existing streamlining initiatives and measures for airport projects. Those efforts show that ARP and FAA work diligently to meet milestones, deadlines, and schedules without compromising the agency's environmental responsibilities. ARP constantly strives to make the NEPA process for airport actions more efficient and effective. ARP believes Order 5050.4B provides instructions that will help expedite environmental reviews.

ARP sees no need to include additional instructions about milestones, deadlines, and schedules in the final Order. ARP has not included specific deadlines for certain NEPA process steps in the Order or to define or codify deadlines as commenters have suggested. ARP has not done so because each airport action has unforeseen problems that would make a defined deadline contrary to NEPA, unworkable, and unrealistic. ARP urges the commenters and others to note that it will continue to work smarter, more efficiently, and more effectively, but it will not compromise adequate environmental analyses to meet desired schedules. Therefore, ARP will establish tentative schedules for EISs and, if requested, will apply techniques to streamline the NEPA process for airport actions as much as possible without compromising its duty to properly analyze and consider action-related environmental effects. It will do so based on: (1) Scoping and consultation with airport sponsors and involved agencies; (2) the completeness and accuracy of sponsor-provided master planning data; and (3) public concerns. These and other efforts show ARP will establish realistic schedules to properly scope its EISs, but it reminds interested parties that unforeseen issues or problems may alter any well-conceived schedule.

In summary, ARP will establish EIS schedules for projects under Executive Order 13274 and Vision 100, and if requested, projects not under those requirements. But in developing these schedules, ARP will apply techniques to streamline the NEPA process, provided they do not compromise ARP's responsibilities to properly analyze, consider, and disclose action-related environmental effects.

Significant noise impact threshold:
Some reviewers note that FAA's insistence that there are no significant noise impacts below the DNL or CNEL 65-dB level is unjustified. They contend that FAA should consider impacts below that level, especially in the DNL or CNEL 60 to 65-dB noise contours significant in the Order. One commenter disagrees that DNL is the only metric to measure noise impacts and asserts that its validity is being questioned worldwide. Commenters further state that FAA's assumption that there are no negative health impacts inside this contour is wrong. Finally, FAA is wrong in assuming aircraft noise occurring 3,000 feet above ground level does not cause significant noise effects.
ARP's Response:
FAA addressed the commenters' noise concerns in its
Federal Register
Notice of Adoption and Availability of Order 1050.1E (No. 69. FR No. 115, 6/16/2004, pages 33780-33783, 33812, 33813, and 33816 -33820). ARP urges the commenters to review that information for responses to these comments.

Special purpose laws vs. special protection laws:
One commenter noted the draft Order used these terms interchangeably, but this may confuse the reader.
ARP's Response:
Agree. The final Order uses the term, “special purpose laws” as a “catch-all” term for the Federal environmental laws, regulations and executive orders outside NEPA that apply often to airport actions (Table 1-1 in the Order). Paragraph 9.t defines the term for purposes of the Order.

State Block Grant Program:
In responding to comments on FAA Order 1050.1E, FAA stated Order 5050.4B would provide details on the State Block Grant Program (SBGP) that ARP manages (69 FR 33788 June 16, 2004). One commenter noted that Order 5050.4B makes a state participating in the SBGP responsible for addressing an airport action's environmental impacts under the SBGP, except for those actions remaining under FAA's purview. The commenter notes there are often no “Federal actions” associated with the state's activities under the SBGP. The commenter further notes that there are no Federal environmental requirements, except for the contractual provisions to comply with NEPA the SBGP agency made with FAA to comply with NEPA when the SBGP agency became a SBGP participant. Those provisions make the participating state responsible for analyzing the environmental effects of actions under the state's SBGP purview. The Order should clarify that for SBGP purposes, references to “FAA” responsibilities mean SBGP agency responsibilities, unless the Order notes otherwise. Another commenter urges FAA to seek opinions from CEQ and EPA about the way FAA conducts the SBGP. The commenter contends that FAA cannot delegate its responsibilities to SBGP participants and that FAA's approach differs significantly from the Federal Highway Administration's (FHWA) local assistance programs. In no instances may State and local requirements substitute for Federal requirements. Following “NEPA-like” laws instead of NEPA will cause many inconsistencies in the SBGP. Therefore, FAA should follow Federal requirements. The commenter suggests that FAA use the commenter's program as an example of delegating responsibilities to a modal entity.
ARP's Response:
Order 5050.4B ARP, paragraphs 210-214 clarify how environmental requirements apply under the SBGP. FAA made a commitment to provide that information in its preamble for Order 1050.1E. Those paragraphs explain how participating states and various FAA environmental effects of SBGP airport projects and FAA actions associated with those projects.

Regarding the clarification of responsibilities under the SBGP, ARP has revised the Order's Introduction and included new paragraph 212. The revisions clarify that for SBGP actions, participating state agency personnel assume the roles a responsible FAA official or an approving FAA official would normally fulfill, unless Order 5050.4B specifies differently.

Addressing a commenter's note that FAA should seek CEQ and EPA opinions on the way FAA conducts its SBGP, CEQ has determined that 5050.4B procedures,“* * * comport with NEPA.”
8

8
Comments on Order 5050.4B Preamble, personnel communication from Edward A. Boling, Council on Environmental Quality to Edward Melisky, FAA, dated April 9, 2006.

Addressing the comment on delegating responsibilities to SBGP participants, ARP wishes to again clarify a misconception that it is “delegating” its NEPA responsibilities in SBGP cases. ARP is not delegating those responsibilities because it has no major Federal action to delegate. Paragraph 211 of the final Order clearly states that upon distributing SBGP funding, which is categorically excluded under paragraph 307o of Order 1050.1E, ARP has no discretion in deciding the use of that funding. That decision is solely the SBGP agency's. As a result, ARP has no NEPA responsibilities since it lacks authority over the airport projects the SBGP monies finance. However, readers should note that paragraph 213.a clearly states that ARP does retain NEPA responsibilities for that portion of an SBGP airport action for which an SBGP agency requests AIP discretionary funds to supplement SBGP funding. In this case, ARP must meet its responsibilities under NEPA and other applicable special purpose law because it is exercising discretion regarding the allocation of the additional funds.

Regarding the commenters concern about “NEPA-like” laws, ARP notes that paragraphs 212.b and c address this concern. Paragraph 211 underscores that once ARP issues the SBGP funds to participating states, ARP has no discretion on the airport projects on which the States spends their SBGP funding. Therefore, Federal environmental requirements do not apply to those actions. However, to maintain environmental stewardship, FAA imposes a contractual agreement on states participating in the SBGP. The agreement requires the SBGP state to meet applicable environmental requirements to ensure the SBGP participants use a rational, interdisciplinary, and proven method to analyze airport project impacts on environmental resources. Paragraph 212.b notes, a “NEPA-like” SBGP participant may use the State's NEPA-like requirements in lieu of this Order. This practice is consistent with CEQ policy regarding integration of procedures (40 CFR 1500.2) and requirements addressing reductions of paperwork and delay (40 CFR 1500.4 and 1500.5, respectively). States not having “NEPA-like” laws must comply with the requirements of Order 5050.4B. In both instances, the participating SBGP state must also meet special purpose laws outside NEPA.

ARP appreciates the commenter's suggestion that ARP use the commenter's program delegating environmental responsibilities to states. But because ARP is not delegating any of its responsibilities, there is no need to develop a delegation agreement with its SBGP participants. Once ARP approves the grant of block funds to a participating state under 49 U.S.C. 47128, that state assumes administrative responsibility for all airport grant amounts available under Subchapter 1 of Chapter 471, except those funds for primary airports. However, ARP does oversee the SBGP to ensure participants are meeting their contractual agreements.

Streamlining:
A commenter does not think any streamlining rule that rushes the NEPA process is a good one. The commenter considers the rule as a “euphemism used to conceal and deceive the public” about aviation's environmental destruction. The commenter opposes every proposal the Order contains because the Order's main purpose is to promote aviation's benefit and destroy the environment. The commenter also states that wildlife hazard management is intended to kill wildlife. The commenter also requests a copy of the Best Practices.
ARP's Response:
ARP prepared the streamlining instructions in Chapter 15 of the final Order to address Congressional and Presidential requirements in Vision 100 and Executive Order 13274, respectively.

ARP stresses sponsor-prepared and implemented wildlife management plans help reduce injuries and deaths to millions of passengers, birds, and other wildlife species resulting from aircraft-wildlife collisions. ARP's requirements for airport sponsors to control wildlife species, especially those that have regularly been involved in aircraft-

wildlife collisions, are parts of the agency's airport certification program. This program is needed to address the agency's mission to provide safe, efficient air transportation for the nation. It also helps to reduce wildlife populations near airports. This, in turn, helps to reduce wildlife mortality, which often occurs when these animals collide with aircraft.

Surface transportation and cumulative impacts:
Two commenters note these topics have become important for airport actions. They recognize Order 5050.4B provides greater guidance on cumulative impacts than Order 1050.1E, but suggest Order 5050.4B include more information on these topics. One commenter notes that surface transportation issues have become major EIS and EA topics due in part to associated air quality impacts on National Ambient Air Quality Standards and community concerns about road congestion. The commenter requests that the Order provide more information on these topics and notes Order 1050.1E does not address them. The commenter further notes induced secondary impacts typically address these issues, because they are among the most complex an EA or EIS addresses. Another commenter states the Order should explain the airport sponsor's role during scoping.
ARP's Response:
ARP agrees these are topical, difficult subjects. Paragraph 1007.i of the Order provides a summary of information on cumulative impacts, but ARP will provide more detail on this topic in the Desk Reference. Until ARP issues that information, document preparers and reviewers should use information in paragraph 1007.i, paragraph 500c of Order 1050.1E, CEQ's guidance on assessing cumulative impacts, Considering Cumulative Effects Under the National Environmental Policy Act (
http://ceq.eh.doe.gov/nepa/ccenepa/ccenepa.htm
) and CEQ's June 24, 2005, memorandum addressing cumulative effects and past actions. The Desk Reference will address the topic of surface transportation and its relationship to air quality effects.

Beginning Responses to Comments on Specific Paragraphs of the Draft Order

Preface comments:
Two commenters suggested adding language to the Preface to note the Order provides NEPA guidance for ARP. If conflicts between this Order and Order 1050.1E exist, users are to follow the instructions in 1050.1E. In that case, FAA personnel may follow the instructions in Order 5050.4. The commenters note that Order 5050.4A lacked a process for updating its content, so the commenter suggested that the Preface explain how FAA would update Order 5050.4B.
ARP's Response:
ARP agrees. ARP has placed the information the commenters suggest in the Order's revised Introduction.

Introduction comments:
A commenter suggested adding a clarifying statement about reasonable alternatives. Those alternatives should meet the purpose and need and FAA's mission to provide safe, efficient air transportation for the Nation.
ARP's Response:
We agree in part and respectfully disagree in part. ARP has revised the text addressing this topic and placed it in paragraph 504.d of the Order. That paragraph notes that the range of alternatives developed during airport planning differs from that FAA examines during the NEPA process. As paragraph 504.d(2) notes, the range of reasonable alternatives FAA considers during NEPA must include alternatives developed during project planning and those reasonable alternatives outside the airport sponsor's and FAA's jurisdiction. Therefore, FAA agrees that these alternatives should meet purpose and need, but it disagrees with the commenter's clarification due to the requirements of 40 CFR 1502.14(c). That would be inconsistent with 40 CFR 1502.14(c), which states agencies: “shall include reasonable alternatives not within the jurisdiction of the lead agency.” Including the statement regarding FAA's statutory mission in the final Order could be misconstrued. Doing so could mean that FAA has adopted the statutory objectives test to narrowly define a purpose and need that would exclude reasonable alternatives from NEPA analysis.

Chapter 1 comments:
ARP received no general comments on this chapter. Regarding paragraph 1, one commenter stated the paragraph extends NEPA's reach. Another commenter stated that this description of objectives is incomplete because it omits important detail from 40 CFR 1500.1 and focuses solely on public disclosure. Both commenters recommend using different text to more accurately describe NEPA's intent. One commenter suggested using the entire statement of objectives from 40 CFR 1500.1(a) or paragraph 10a from Order 5050.4A, the other recommended the text from paragraph 200.a of draft Order 5050.4B.
ARP's Response:
Agree. ARP revised paragraphs 1 and 2 to better reflect NEPA's intent using information in 1500.1(a). ARP deleted paragraph 200.a. as written in the draft Order because it was somewhat duplicative.

Two commenters state that paragraph 3.d should note the Order should strengthen the explanation of how ARP addresses special purpose laws. The Order should relate that presentation to the laws' application in a NEPA context.
ARP's Response:
Agree. Paragraph 9.t explains this.

Comments on paragraph 8 varied. This paragraph contained several subparagraphs defining many of the terms the Order uses. Another commenter sought definitions for “mitigated FONSI” and “special protection laws.” Other commenters sought definitions for or clarifications of the terms: “Airport Improvement Program;” “day-night average level;” “expertise agencies;” “joint lead agency;” “major Federal action;” “major runway extension;” “reasonably foreseeable action;” “responsible FAA official;” “significant impact;” “special purpose laws;” “special protection laws;” “supplemental EIS;” and “written-re-evaluation.” Another commenter urged the use of “highly controversial action” as defined in Order 1050.1E.
ARP's Response:
Readers should note that the final Order now presents definitions in paragraphs 9a.-9v. Document re-organization caused this paragraph re-numbering. ARP has enhanced many of the definitions these paragraphs provide. Readers should note that the draft Order used the terms, “special purpose laws” and “special protection laws” synonymously. For consistency, the final Order uses only “special purpose laws.” Also, the final Order contains a more complete list of laws, regulations, and executive orders comprising the term, “special purpose laws.” Order 5050.4B has incorporated Order 1050.1E's definition of the term, “highly controversial action” and more information on “written re-evaluations.” Paragraph 1402 provides a more comprehensive discussion for supplementing NEPA documents.

Chapter 2 comments: General Chapter 2 Comments:
A commenter stated the text in the draft Order was not clear regarding NEPA's applicability to ALP changes not involving Federal funding.
ARP's Response:
ARP addresses this issue in paragraph 202.b of the final Order. The paragraph states FAA must comply with NEPA and other applicable special purpose laws when unconditionally approving ALPs whether or not the approval involves Federal funding (paragraph 9.g (3)).

Another commenter suggested the note on the Desk Reference following paragraph 200.d of the draft Order stress that ARP will provide the Desk Reference to clarify applications of significance thresholds in Order 1050.1E, Appendix A. The commenter suggests that Order 5050.4B modify

thresholds to eliminate their ambiguity.
ARP's Response:
Order 5050.4B deleted the note. Readers should see that Table 7-1 presents the agency's significance thresholds per Order 1050.1E, Appendix A. ARP is not authorized to modify any of the thresholds because Order 1050.1E, as the agency-wide document, provided those thresholds for public review and they are the thresholds FAA established for all FAA organizations. Although ARP can petition the Office of Environment and Energy (AEE) to change the thresholds, only AEE is authorized to do so. But before making changes, AEE will provide the public an opportunity to review changes or additions to the thresholds because they would change the agency's Order implementing NEPA. Readers should note that column 3 of Table 7-1 presents information to help Order 5050.4B users determine airport-related impacts relative to the stated thresholds. These factors are based on information in paragraphs 47.e and 85.a -t of Order 5050.4A that ARP staff and others have found valuable in determining impact significance for airport actions during the past 20 years. Because airport actions often physically disturb more land or water areas than most other FAA actions, ARP includes that information for convenience and because of its analytical value. Doing so also addresses a comment from some reviewers who noted that Order 5050.4A contains useful information that Order 5050.4B should include.

Regarding paragraph 200.c, a commenter states that FAA must evaluate more than environmental factors in its NEPA process. Other commenters ask if NEPA applies to ALP and Passenger Facility Charges (PFC).
ARP's Response:
ARP concurs and has revised the wording. Paragraph 200.a(2) notes the agency considers other factors (
e.g.,
economic, technical, safety) as well as environmental factors. The intent of the sentence was to stress that FAA must weigh environmental factors in its decisions. That paragraph also uses the term, “Federal actions,” a term including PFC and ALP approvals per paragraph 9.g of the final Order.

Addressing comments on paragraph 201.b(1), a commenter recommends deleting “FAA-funded” master plans.
ARP's Response:
Concur. Revised paragraph 201.b(1) tells airport sponsors to consider environmental factors in master planning, regardless of the funding source used to develop that planning. This should help enhance the subsequent NEPA process ARP would complete to make a decision on the planned airport projects master plans address.

Regarding paragraph 201.b.(4), a commenter seeks clarification on the need for a SBGP participant to consult with federally-recognized Tribes on a government-to-government basis. The commenter notes if a SBGP agency is authorized to conduct direct consultation after initial FAA/Tribal contact, the Order should state so. Another commenter notes a public hearing or meeting is not needed for all NEPA actions.
ARP's Response:
Paragraph 212.e of the final Order clarifies SBGP and Tribal consultation. The paragraph states if an FAA organization is involved in an action associated with an SBGP airport action, the responsible FAA organization will conduct the Tribal consultation. If there is no FAA involvement, the SBGP agency should follow instructions in paragraph 303 of the Order, to ensure Tribal consultation occurs in a respectful manner. SBGP agencies should note that regional and district ARP office personnel are available to aid the SBGP agency in this consultation. That paragraph and other paragraphs in new Chapter 3 (Agency and Tribal Coordination) developed for the final Order discuss how FAA personnel will conduct Tribal consultation according to FAA Order 1210.20, American Indian and Alaska Native Tribal Consultation and Policy and Procedures.

ARP concurs with the comment that public hearings are not needed for all NEPA actions. Revised text in paragraph 201.b(4) adds the words “* * * if one is appropriate” to clarify that not all NEPA actions require a hearing.

Concerning paragraph 203.a, a commenter requests information regarding the need to consult with FAA when an SBGP action requires an EIS. The commenter wants to know if the airport sponsor or the state agency is responsible for consulting with FAA regarding EIS preparation in this case.
ARP's Response:
Paragraph 214.d(2)(a) of the final Order clarifies this issue. When ARP or another FAA organization has an action connected to a SBGP project, the FAA organization responsible for the connected action will be a joint-lead agency with the SBGP agency to ensure the document also meets the requirements of Order 1050.1E and Order 5050.4B. As needed, the SBGP and/or the FAA organization may request assistance from the appropriate regional or district ARP office or ARP's Airports Planning and Environment Division (APP-400). Although these ARP offices are not responsible for preparing EISs for all SBGP connected actions, they have experience that may aid the SBGP agency and other FAA organizations in document preparation. This involvement may also help ensure efficient information exchanges and proper consultation among the SBGP, agencies, and interested parties occurs. In those rare cases, where there is no FAA organization involved, the state agency follows instructions in paragraph 214.d(1) of the final Order.

Regarding paragraph 205, a commenter complimented ARP for recognizing the public's participation in airport review. Another commenter requests more information on obtaining public involvement during EA scoping or for categorically excluded actions.
ARP's Response:
The agency appreciates the comment. Now, this information is part Chapter 4 of the Order, which focuses on public involvement. Also, paragraph 704 discusses public involvement in EA preparation. Paragraph 606.b discusses public involvement requirements of special purpose laws and categorically excluded actions. The reader should note that FAA must complete public involvement requirements before categorically excluding an action, if the potential extraordinary circumstances relating to the proposed action involve special purpose laws having public involvement requirements.

Chapter 3 comments:
General Chapter 3 Comments: A commenter states “one reason some environmental reviews take so long is the disconnect between physical/facility planning and environmental review. Projects are not sufficiently defined before the NEPA process begins. FAA is revising the advisory circular (AC) concerning master planning. There needs to be close integration between this chapter, particularly 302, and the revised master planning AC. If master plan analysis more closely resembled NEPA analysis on such major issues as project purpose, alternatives and environmental impacts, planning, projects and environmental reviews would be improved. This chapter should encourage that planning. ARP's Response: ARP agrees it sometimes begins the NEPA process prematurely. However, ARP wishes to note that this “premature start” is often in response to airport sponsor desires or demands to force ARP to begin the NEPA process before the sponsor completes the planning for which it is responsible.

ARP agrees that Order 5050.4B should reflect some of the concepts on critical NEPA and planning issues like project purpose, alternatives, and other topics that the master planning AC discusses. The draft Order had some information on the NEPA/planning connections, but ARP has greatly enhanced this

information in the final Order. New Chapter 5 addresses early airport planning and NEPA. The chapter contains planning information from the master planning AC and ARP's Best Practices Web site. ARP hopes that the new chapter and AC improve the coordination between airport planners and environmental specialists so airport planning and NEPA processes are more efficient and effective.

Regarding paragraph 300.a, another commenter stated the Order should clarify that the approving FAA official must evaluate an airport action's environmental effects and issue a “NEPA decision” approving that action.
ARP's Response:
Agree. New paragraph 500.b highlights the need for the approving FAA official to issue a FONSI or ROD or categorically exclude an airport action before an official approves the action.

Concerning paragraph 300.b, another commenter suggested that the Order reinforce the requirement that the NEPA process is an independent process, not intended to justify a proponent's action.
ARP's Response:
Agree. New paragraph 500.a enforces critical NEPA principles of objectivity and good faith.

Regarding paragraph 300.c, the same commenter disagreed with the paragraph's requirement for the responsible FAA official to work more closely with airport planners early in the planning process. The commenter stated this would commit FAA to expanded roles that would have to be embraced to make the process work smoothly.
ARP's Response:
ARP realizes that earlier involvement places a workload on FAA personnel. However, this involvement should reduce delays during the subsequent NEPA process by addressing flaws and gaps in planning data that could delay that process. Chapter 5, particularly paragraph 501, emphasizes the need for better coordination between planners and environmental specialists. This will improve the efficiency and effectiveness of the planning process and the subsequent NEPA process.

Two comments on paragraph 301.b sought a definition for the term “practicable alternative.” Another stated the Order should tell airport sponsors to tell the surrounding communities about the sponsor's proposed actions.
ARP's Response:
The final Order deleted this term. Instead, paragraph 706.d(6) of the Order notes that “reasonable alternatives” are those choices the airport sponsor (or FAA) has developed to address the problems the sponsor faces. That section also states that agencies must include reasonable alternatives not within the jurisdiction of the lead agency (see response to Introduction). Those alternatives would also include Paragraph 706.d provides more information on alternatives. It emphasizes that an EA must address reasonable alternatives in addition to the No Action and Proposed Action when there is an unresolved conflict regarding alternative uses of available resources (paragraphs 706.d (5) and (6)).

Regarding the comment on telling surrounding communities about proposed actions, paragraph 501.a of the final Order notes the importance of considering community concerns about aircraft noise during the planning process. In addition, new Chapter 4 on public participation provides more information on how airport sponsors and FAA alert and engage surrounding communities about proposed airport projects. As Chapter 4 of the final Order and the AC on master planning emphasizes, the airport sponsor is responsible for informing and engaging the public during the sponsor's planning efforts.

Starting comments on paragraph 302. Another commenter made a general comment about the statement that a sponsor identifies its proposed actions during master planning. According to the commenter, this “* * * could appear that FAA encourages sponsors to make a decision too early in the NEPA process.” The commenter notes this may give the appearance that FAA encourages sponsors to make decisions before FAA complete the NEPA process. The commenter also argues the purpose and need should be part of master planning.
ARP's Response:
ARP appreciates the comment on using the words, “proposed action,” but we see no conflict with NEPA. Many airport sponsors identify a proposed action during master planning to address the issues the airport sponsor is attempting to solve. ARP sees no harm in the airport sponsor identifying a proposed action, provided sponsors and the public realize ARP is not obligated in any way to approve the sponsor's proposed action. The “proposed action” may be, but is not necessarily the agency's “preferred alternative.” The proposed action may be a proposal in its initial form before undergoing analysis in the NEPA process, “* * * a proposed action may be granting an application to a non-federal entity for a permit” (Forty Most Asked Questions (46 FR 18025, March 23, 1981, as amended 51 FR 15619, April 25, 1986, Question 5a). As ARP may not have a preferred alternative until it issues a draft or final EIS, ARP is able to rebut any claims of bias that may result from a sponsor identifying a proposed action.

In response to the comment that, “purpose and need” during planning, should be part of the master plan, we respectfully disagree. “Purpose and need” is a term of art under NEPA. Although the master plan considers environmental factors, it is not the NEPA process nor should it be. Master planning is the sponsor's responsibility, while NEPA is FAA's. To avoid confusing planners and others preparing master plans and NEPA documents, ARP avoided using the term “purpose and need” for planning purposes in Chapter 5.

A commenter recommended revising paragraph 302.a to include some discussion about the need to compare a sponsor's airport master plan forecasts and FAA's Terminal Area forecasts.
ARP's Response:
Agree. The final Order discusses the need for reasonable consistency between a sponsor's forecasts and FAA's Terminal Area Forecast (TAF) to ensure the scientific integrity of the discussions and environmental analyses in NEPA documents for airport actions. Paragraph 706.b(3) of the final Order provides instructions for handling variations in forecasts.

Regarding paragraph 302.b one commenter suggested deleting the discussion of airport noise compatibility planning because 5050.4B was not the place to define master plan requirements except to the extent that they facilitate NEPA processing. This commenter also indicated that paragraph 303 was ample to address noise compatibility planning. Another commenter indicated that the text as drafted suggested that noise issues should be addressed in the master plan, not an airport noise compatibility program.
ARP's Response:
Agree. Although Order 5050.4A discussed airport noise planning under 14 CFR part 150 (Airport Noise Compatibility Planning), we have eliminated it from this Order. Revised paragraph 503.c notes that airport planners should consider noise when planning an action because noise is often the public's primary concern regarding airport actions. Knowing the locations of noise sensitive land uses relative to a proposed action's environmental impacts provides valuable information during the subsequent NEPA process.

Concerning paragraph 303 in general, a few commenters disagreed with the following language in the draft Order dealing with project specific noise impacts and part 150, “ the sponsor may not delay the proposed action's mitigation for inclusion in an NCP that would be prepared after the EA or EIS is completed.” One commenter noted

that this would obligate sponsors to mitigate for actions that FAA might approve, while the other stated, “meaningful noise mitigation cannot be defined during the NEPA process, particularly when litigation is expected.”
ARP's Response:
ARP has revised paragraph 706.g(3) to clarify that FAA may not rely upon a commitment by an airport sponsor to conduct a study under 14 CFR part 150 as mitigation measure in an EA or an EIS. Rather, a part 150 study may only be used to identify mitigation measures if the study is completed concurrently with the EA or EIS. Contrary to the first commenter, the mitigation measures would be identified not in advance, but at the same time that FAA makes its decision concerning the proposed action. We believe that meaningful noise mitigation can be identified during the NEPA process. Mitigation measures approved in an environmental Record of Decision for an airport development project may now be funded using amounts available under the noise set aside in the discretionary fund under 49 U.S.C. 47117(e). Therefore, there is no need for airport sponsor to prepare noise studies under 14 CFR part 150 with EISs to gain access to noise set aside funds.

One commenter stated that paragraph 303.b should require public involvement for categorically excluded actions.
ARP's Response:
Agree in part. Paragraph 606.b of the final Order discusses public involvement and CATEXs. The reader should note that ARP must complete all public involvement requirements for CATEXs if the actions involve extraordinary circumstances based on special purpose laws having public involvement requirements.

A commenter noted that paragraph 303.c should include the California Noise Equivalent Level (CNEL) metric. Another commenter noted the DNL 6

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A06-4527. Public record. Not legal advice.