# Final Order 1050.1F Environmental Impact: Policies and Procedures

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URL: https://www.frixlaw.com/law-library/documents/fr%3A2015-18084

## Record

- **Collection:** Federal Register
- **Document type:** Notice
- **Published:** July 24, 2015
- **Citation:** 80 FR 44208

## Text

DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
[FAA-2013-0685]
Final Order 1050.1F Environmental Impact: Policies and Procedures

AGENCY:

Federal Aviation Administration (FAA), DOT.

ACTION:

Notice.

SUMMARY:

The Federal Aviation Administration (FAA) has revised its procedures for implementing the National Environmental Policy Act (NEPA) by issuing Order 1050.1F,
Environmental Impacts: Policies and Procedures.
Order 1050.1F cancels Order 1050.1E,
Environmental Impacts: Policies and Procedures.
The revisions in Order 1050.1F include reorganization of the Order to make it easier to use, clarification of requirements, additions to the list of Categorical Exclusions (CATEXs), updating of policies and procedures to be consistent with recent guidance, addition of provisions for emergency actions, and updating of terminology to incorporate the Next Generation Air Transportation System (NextGen). The FAA issued a notice and request for comment in the
Federal Register
on August 14, 2013 (78 FR 49596). All comments received were considered in the issuance of the final Order. This notice summarizes the changes made to Order 1050.1E and includes responses to substantive comments received.

DATES:

Order 1050.1F is effective July 16, 2015.

SUPPLEMENTARY INFORMATION:

NEPA and the implementing regulations promulgated by the Council on Environmental Quality (CEQ) (40 Code of Federal Regulations [CFR] parts 1500-1508) establish a broad national policy to protect the quality of the human environment and provide policies and goals to ensure that environmental considerations and associated public concerns are given careful attention and appropriate weight in all decisions of the Federal government. Section 102(2) of NEPA and 40 CFR 1505.1 and 1507.3 require Federal agencies to develop and, as needed, revise implementing procedures consistent with the CEQ Regulations.

The FAA's previous NEPA Order, Order 1050.1E,
Environmental Impacts: Policies and Procedures,
provided the FAA's policy and procedures for compliance with (a) the CEQ Regulations for implementing the procedural provisions of NEPA; (b) Department of Transportation (DOT) Order 5610.1C,
Procedures for Considering Environmental Impacts,
and (c) other applicable environmental laws, regulations, Executive Orders, and policies. The FAA proposed to replace Order 1050.1E with Order 1050.1F and incorporate certain changes based on notice and request for comment published in the
Federal Register
(78 FR 49596, August 14, 2013). All comments received were considered in the issuance of the final Order 1050.1F.

This notice provides a synopsis of the changes adopted including those additional changes resulting from comments received. The Order is distributed throughout the FAA by electronic means only. The Order is available for viewing and downloading by all interested persons at
http://www.faa.gov/about/office_org/headquarters_offices/apl/environ_policy_guidance/policy/draft_faa_order/.
If the public is not able to use an electronic version, they may obtain a photocopy of the Order, for a fee to cover the cost of reproducing copies, by contacting the FAA's rulemaking docket at the FAA Office of the Chief Counsel, Attn: Rules Docket (AGC-200)—Docket No. FAA-2013-0685, 800 Independence Avenue SW., Washington, DC 20591.

In November 2014, DOT issued guidance on implementing Section 1319 of the Moving Ahead for Progress in the 21st Century Act (MAP-21), 42 U.S.C. 4332a. The guidance, which applies to all DOT components, including the FAA, is available at
http://www.dot.gov/sites/dot.gov/files/docs/MAP-21_1319_Final_Guidance.pdf.
Section 1319(a) of MAP-21, which relates to the use of errata sheets for environmental impact statements and largely mirrors the CEQ regulations on that topic (see 40 CFR 1503.4(c)), was already reflected in the draft Order 1050.1F published for public comment. The FAA has made minor changes to the final Order 1050.1F to ensure it is not in conflict with Section 1319(b) of MAP-21, which requires DOT, to the maximum extent practicable, to expeditiously develop a single document that consists of a final Environmental Impact Statement (EIS) and a Record of Decision (ROD), unless certain conditions exist. The FAA will be issuing additional guidance on implementing Section 1319(b) of MAP-21 and will update Order 1050.1F as appropriate to reflect that guidance. In the meantime, the FAA will comply with Section 1319(b) to the extent applicable.

Synopsis of Changes From Order 1050.1E:
The final Order 1050.1F incorporates all changes proposed in 78 FR 49596. Additional changes and clarifications were added to the final Order in response to comments received as a result of the
Federal Register
notice and deliberative discussions with the Office of the Secretary of Transportation, CEQ, and internal elements of the FAA. References throughout the Preamble refer to paragraph references for Order 1050.1F unless otherwise noted. These changes include:

The information contained in Appendix A of FAA Order 1050.1E,
Analysis of Environmental Impact Categories,
has been moved to the 1050.1F Desk Reference. This was done to allow for updates to the 1050.1F Desk Reference, as needed. Any FAA-specific analysis, modeling, and documentation requirements that were contained in Appendix A of FAA Order 1050.1E have been moved to Appendix B of FAA Order 1050.1F,
Federal Aviation Administration Requirements for Assessing Impacts Related to Noise and Noise-Compatible Land Use and Section 4(f) of the Department of Transportation Act (49 U.S.C. 303).

The Order has been restructured to reduce redundancies and improve clarity. Order 1050.1F is divided into eleven chapters as opposed to the five chapters of 1050.1E. The numbering and structure are changed to more closely follow FAA Order 1320.1,
FAA Directives Management.
In addition, systematic editorial changes have been applied to ensure 1050.1F is consistent with the FAA's plain language guidelines as established in FAA Order 1000.36,
FAA Writing Standards
(
e.g.,
changes use of the term “shall” to “should” or “must,” as appropriate).

The language referring to the applicability of the Order and CEQ Regulations to FAA actions has been modified for clarity to state “[t]he provisions of this Order and the CEQ Regulations apply to actions directly undertaken by the FAA and to actions undertaken by a non-Federal entity where the FAA has authority to condition a permit, license, or other approval.” This change has been made throughout the Order, where applicable.

The FAA's policy statement (see Paragraph 1-8) has been updated to include the FAA's goals of ensuring timely, effective, and efficient environmental reviews and includes a discussion of NextGen. The policy reflects established expedited environmental review procedures and processes including the legislative provisions in the
FAA Modernization and Reform Act of 2012, Public Law 112-95 (“FAA Reauthorization of 2012” or “the Act”)
to expedite the

environmental review process for certain air traffic procedures.

The titles and roles of FAA Lines of Businesses and Staff Offices (LOB/SOs) have been updated to reflect changes to the FAA's organizational structure and responsibilities since publication of FAA Order 1050.1E (see Paragraph 2-2.1.b). These revisions include: Removing Aviation Policy, Planning, and Environment (AEP) and International Aviation (AIP), since these divisions have been combined to form a new office known as Policy, International Affairs and Environment (APL); revising Office of Financial Services (ABA) to Office of Finance and Management (AFN), revising Regulation and Certification (AVR) to Aviation Safety (AVS); revising the text to reflect that the Office of Corporate Learning and Development is now located under Human Resource Management (AHR); and adding the staff office NextGen (ANG).

The Order breaks out the roles and responsibilities of the FAA (see Paragraph 2-2.1), applicants (see Paragraph 2-2.2), and contractors (see Paragraph 2-2.3) into separate paragraphs for easy reference and transparency.

A paragraph on the roles and responsibilities under the State Block Grant Program has been added to the Order (see Paragraph 2-2.1.e). This language is also currently located in the Office of Airports NEPA procedures in FAA Order 5050.4B,
National Environmental Policy Act (NEPA) Implementing Instructions for Airport Projects,
but has been added to Order 1050.1F as it involves multiple FAA Lines of Businesses LOBs.

The similarities and differences between Environmental Assessments (EAs) and EISs are clarified throughout Order 1050.1F. The terminology “EIS or EA” has been replaced with “NEPA documentation” when guidance would apply to either type of document to help clarify Paragraph 206a of Order 1050.1E, which states that requirements that apply to EISs may also be used for the preparation of EAs. Alternatively, when guidance is specific to an EA or to an EIS, but not to both, the appropriate type of document is stated.

A discussion of Environmental Management Systems (EMS) has been added to highlight the importance of EMS and the potential benefit of aligning NEPA with the elements of EMS (see Paragraph 2-3.3).

The discussion on mitigation has been reorganized and updated to be consistent with CEQ's guidance on
Appropriate Use of Mitigation and Monitoring and Clarifying the Appropriate Use of Mitigated Findings of No Significant Impact,
76 FR 3843 (January 21, 2011) (see Paragraphs 2-3.6, 4-4, 6-2.3, and 7-1.1.h). The proposed changes also clarify which projects may warrant environmental monitoring and the type and extent of such monitoring.

The list of actions normally requiring an EA has been modified to reflect the FAA's experience.

Actions newly identified as normally requiring an EA are:

Paragraph 3-1.2.b(13): Establishment or modification of an Instrument Flight Rules Military Training Route (IR MTR); and

Paragraph 3-1.2.b(16): Formal and informal runway use programs that may significantly increase noise over noise sensitive areas.

Actions normally requiring an EA that have been amended include:

Paragraph 3-1.2.b(2) modifies the language of 401b of 1050.1E to include all types of certificates for aircraft types for which environmental regulations have not been issued, and new amended engine types for which emission regulations have not been issued where an environmental analysis has not been prepared in connection with a regulatory action.

Paragraph 3-1.2.b(10), formerly 401k of Order 1050.1E, was changed to limit the typical EA to new commercial service airport locations that would not be located in a Metropolitan Statistical Area (MSA). In addition, the description of a new runway was limited by stating that the new runway is at an existing airport that is not located in an MSA. Major runway extension projects were removed from this list and added to the list of actions that typically require an EIS. This is because the definition of major runway extension includes runway extensions that cause a significant adverse environmental impact.

Paragraph 3-1.2.b(11) changes Paragraph 401l of Order 1050.1E to provide more clarity when the issuance of operations specifications normally requires an EA; specifically, any approval of operations specifications that may significantly change the character of the operational environment when authorizing passenger or cargo service, or authorizing an operator to serve an airport with different aircraft when that service may significantly increase noise, air, or other environmental impacts, normally requires an EA.

Paragraph 3-1.2.b(12) combines Paragraphs 401m and 401n from Order 1050.1E and includes a caveat that certain procedures may be categorically excluded under new legislative CATEXs in the
FAA Reauthorization of 2012.

Paragraph 3-1.2.b(14) modifies Paragraph 401p of Order 1050.1E to remove the four requirements for the notice of proposed rulemaking for Special Use Airspace (SUA) projects since these criteria are not based on environmental impacts, but on the process for establishing a SUA. The new paragraph describes SUA actions as normally requiring an EA (unless otherwise explicitly listed as an advisory action (see Paragraph 2-1.2.b, Advisory Actions) or categorically excluded (see Paragraph 5-6, the FAA's List of Approved Categorical Exclusions)).

Paragraph 3-1.2.b(15) modifies Paragraph 401c of Order 1050.1E to clarify the type of commercial space launch actions that normally require an EA. The proposed paragraph states issuance of any of the following requires an EA: (a) A commercial space launch site operator license for operation of a launch site at an existing facility on disturbed ground where little to no infrastructure would be constructed (
e.g.,
co-located with a Federal range or municipal airport); or (b) A commercial space launch license, reentry license, or experimental permit to operate a vehicle to/from an existing site.

The Order has added the following examples of actions normally requiring an EIS (see Paragraph 3-1.3.b):

(1) Unconditional Airport Layout Plan (ALP) approval of, or federal financial participation in, the following categories of airport actions:

(a) Location of a new commercial service airport in an MSA;

(b) A new runway to accommodate air carrier aircraft at a commercial service airport in an MSA; and

(c) Major runway extension

(2) Issuance of a commercial space launch site operator license, launch license, or experimental permit to support activities requiring the construction of a new commercial space launch site on undeveloped land.

The Order expands the discussion of programmatic NEPA documents and tiering to provide more guidance on the use of programmatic NEPA documents (see Paragraph 3-2). The discussion is consistent with CEQ's guidance on
Effective Use of Programmatic NEPA Reviews (December 18, 2014) at http://www.whitehouse.gov/sites/default/files/docs/effective_use_of_programmatic_nepa_reviews_final_dec2014_searchable.pdf.

A statement was added to the Order that FAA LOB/SOs will, whenever possible, use the FAA NEPA Database to track projects and make final documents

available to others in the FAA (see Paragraph 3-3).

A new chapter was added to describe environmental impact categories, significance thresholds, and factors to consider in determining the significance of environmental impacts (see Chapter 4). The environmental impact categories were originally contained in Appendix A of Order 1050.1E. There are some additions and modifications to the list of environmental impact categories. Climate has been added to the list of impact categories to be considered in the FAA's NEPA documents. Climate was previously addressed in FAA Order 1050.1E Guidance Memo #3,
Considering Greenhouse Gases and Climate under the National Environmental Policy Act (NEPA): Interim Guidance.
Noise and noise-compatible land use have been combined into a single environmental impact category to provide better context and clarity. The remaining land use topics are discussed as a separate category. Fish, Wildlife, and Plants has been renamed Biological Resources. Light Emissions and Visual Impacts has been renamed Visual Effects. Water Resource impacts have been combined to include water quality, wetlands, floodplains, surface waters, groundwater, and wild and scenic rivers. Construction and secondary impacts have been removed as separate categories and instead are to be analyzed within each applicable environmental impact category. Further guidance on environmental impact category analysis is contained within the 1050.1F Desk Reference.

A table has been provided, Exhibit 4-1, that summarizes the significance thresholds that were formerly described under individual environmental impact categories in Appendix A of FAA Order 1050.1E. This table also includes factors to consider in making determinations of significant impacts. These factors to consider are not exhaustive. There may also be other factors that should be evaluated when making a determination of significance. There are three modifications to the significance thresholds found in Appendix A of Order 1050.1E: (1) Air Quality threshold includes “or to increase the frequency or severity of any such existing violations” to help clarify that increase in the frequency or severity of any existing violations would also be considered a trigger; (2) Surface Waters now includes “contaminate a public drinking water supply such that public health may be adversely affected” as a threshold, and (3) Groundwater includes “contaminate an aquifer used for public water supply such that public health may be adversely affected” as a threshold. (See Exhibit 4-1, Significance Determination for FAA Actions).

The list of extraordinary circumstances for CATEXs (see Paragraph 5-2.b) has been modified. National marine sanctuaries and wilderness areas have been added to the list of resources that must be considered in evaluating actions for extraordinary circumstances that would preclude the use of a CATEX for a proposed action. The Order makes other text revisions, including modifying (1) the description of wild and scenic rivers to be consistent with CEQ's memorandum
Interagency Consultation to Avoid or Mitigate Adverse Effects on Rivers in the Nationwide Inventory
(August 10, 1980); and (2) the description of hazardous materials to specify projects likely to cause environmental contamination by hazardous materials, or likely to disturb an existing hazardous material contamination site such that new environmental contamination risks are created.

The FAA's guidance regarding CATEX documentation has been updated to be consistent with CEQ's 2010 Guidance on
Establishing, Applying, and Revising Categorical Exclusions under the National Environmental Policy Act,
75 FR 75628 (December 6, 2010) (hereafter referred to as “CEQ's CATEX Guidance”) (see Paragraph 5-3). These updates include: Clarifying when and what level of documentation is needed in the application of a CATEX and explaining what to include in CATEX documentation.

A new paragraph has been added to the Order providing information on combining a decision document with a CATEX (CATEX/ROD) (see Paragraph 5-3.e). CATEX/RODs are not commonly used, but may be advisable in certain circumstances.

Guidance on public notification of CATEXs has been added, consistent with CEQ's CATEX Guidance (see Paragraph 5-4).

New CATEXs have been added to the Order for actions which the FAA has determined do not have the potential to significantly affect the environment individually or cumulatively, absent extraordinary circumstances. The following CATEXs have been added:

Paragraph 5-6.3.i adds a CATEX for the unconditional approval of an ALP, Federal financial assistance, or FAA projects for the installation of solar or wind powered energy, provided the installation does not involve more than three total acres and would not have the potential to cause significant impacts on bird or bat populations.

Paragraph 5-6.4.bb adds a CATEX for an unconditional ALP approval or Federal financial assistance for actions related to a purchase of land for a runway protection zone (RPZ) or other aeronautical purpose, provided there is no land disturbance.

Paragraph 5-6.4.cc adds a CATEX for an unconditional ALP approval or Federal financial assistance to permanently close a runway and use it as a taxiway at small, low activity airports provided any changes to lights or pavement would be on previously developed airport land.

Paragraph 5-6.4.dd adds a CATEX for FAA construction, reconstruction or relocation of a non-Radar, Level 1 air traffic control tower at an existing visual flight rule (VFR) airport, or FAA unconditional approval of an ALP and/or Federal funding provided the action would occur on a previously disturbed area of the airport and not: (1) Cause an increase in the number of aircraft operations, a change in the time of aircraft operations, or a change in the type of aircraft operating at the airport; (2) cause a significant noise increase in noise sensitive areas; or (3) cause significant air quality impacts.

Paragraph 5-6.4.ee adds a CATEX for environmental investigation of hazardous waste or hazardous substance contamination on previously developed land provided the work plan or Sampling and Analysis Plan (SAP) for the project integrates current industry best practices and addresses, as applicable, surface restoration, well and soil boring decommissioning, and the collection, storage, handling, transportation, minimization, and disposal of investigation derived wastes and other Federal or state regulated wastes generated by the investigation. The work plan or SAP must be coordinated with and, if required, approved by the appropriate or relevant governmental agency or agencies prior to commencement of work.

Paragraph 5-6.4.ff adds a CATEX for remediation of hazardous wastes or hazardous substances impacting approximately one acre in aggregate surface area provided remedial or corrective actions must be performed in accordance with an approved work plan (
i.e.,
remedial action plan, corrective action plan, or similar document) that documents applicable current industry best practices and addresses, as applicable, permitting requirements, surface restoration, well and soil boring decommissioning, and the minimization, collection, any necessary associated on-site treatment, storage, handling, transportation, and disposal of Federal or state regulated wastes. The

work plan must be coordinated with, and if required, approved by, the appropriate governmental agency or agencies prior to the commencement of work. As a matter of policy, actions under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) and corrective actions under the Resource Conservation and Recovery Act (RCRA) generally do not require separate analysis under NEPA or the preparation of a NEPA document. The FAA will rely on CERCLA processes for environmental review of actions to be taken under CERCLA, and will address NEPA values to the extent practicable. As a matter of law, there is a statutory conflict between NEPA and CERCLA; NEPA, therefore, does not apply to CERCLA cleanup actions. The FAA may rely on the CERCLA process for RCRA corrective action if the action is to be taken under a compliance agreement for an FAA site on the CERCLA National Priorities List that integrates the requirements of RCRA and CERCLA to such an extent that the requirements are largely inseparable in a practical sense.

Paragraph 5-6.5.f adds a CATEX for actions to increase the altitude of SUA.

In addition, two legislative CATEXs, provided in Section 213(c) of the
FAA Reauthorization of 2012,
are added (see Paragraphs 5-6.5.q and 5-6.5.r). One allows for a CATEX for Area Navigation/Required Navigation Performance (RNP) procedures proposed for core airports and any medium or small hub airports located within the same metroplex area that are identified by the Administrator, and for RNP procedures proposed at 35 non-core airports selected by the Administrator, subject to extraordinary circumstances. The second provides a CATEX for any navigation performance or other performance based navigation procedure (PBN) developed, certified, published, or implemented that, in the determination of the Administrator, would result in measurable reductions in fuel consumption, carbon dioxide emissions, and noise on a per flight basis as compared to aircraft operations that follow existing instrument flight rules procedures in the same airspace irrespective of the altitude.

Four CATEXs have been substantially modified:

Paragraph 5-6.4.e (formerly Paragraph 310e of Order 1050.1E), is modified to include widening of a taxiway, apron, loading ramp, or runway safety area (RSA) including an RSA using Engineered Material Arresting System (EMAS), or widening of an existing runway.

Paragraph 5-6.4.i (formerly Paragraph 310i of Order 1050.1E) is modified to allow for financial assistance for or unconditional approval of an ALP for the demolition or removal of non-FAA owned buildings and structures on airports except those of historic, archeological, or architectural significance as officially designated by Federal, state, tribal or local governments. This CATEX also adds the expansion of a facility or structure where no hazardous substance contamination or contaminated equipment is present on the site.

Paragraph 5-6.4.u (formerly Paragraph 310u in Order 1050.1E) is expanded to include unconditional approval of an ALP for the installation, repair, or replacement of on-airport aboveground storage tanks or underground storage tanks. The CATEX further clarifies that the closure and removal applies to the fuel storage tank, and remediation applies to the contaminants resulting from the use of the fuel storage tank. It also clarifies that distribution systems are not within the scope of the CATEX.

Paragraph 5-6.5.l (formerly Paragraph 311l in Order 1050.1E) is modified to allow for Federal financial assistance, unconditional ALP approval, or other FAA action to establish a displaced threshold on an existing runway. It further states that removal or establishment of a displaced threshold is allowed within the scope of the CATEX provided the action does not require establishing or relocating an approach light system that is not on airport property or an instrument landing system.

Several CATEXs have been slightly modified as follows:

Paragraph 5-6.2.c (formerly Paragraph 308c in Order 1050.1E) is modified to include operating certificates. This is a clarification since these certificates are similar to the other types of certificates already contained in Paragraph 308c of Order 1050.1E.

Paragraph 5-6.2.d (formerly Paragraph 308d in Order 1050.1E) has been modified to clarify that [these types of actions] do not have the potential to cause significant impacts.

Paragraph 5-6.3.h (formerly Paragraph 309h in Order 1050.1E) is revised for clarity. The terminology “launch facility” is changed to “commercial space launch site.” The FAA regulations at 14 CFR part 107,
Airport Security,
have been withdrawn and no longer apply. Therefore, reference to this regulatory provision has been removed.

Paragraph 5-6.4.f (formerly Paragraph 310f in Order 1050.1E) is modified to include hangers and t-hangers. Hangers and t-hangers are included in this CATEX so long as a review of extraordinary circumstances demonstrates that any increase in aircraft does not contribute to significant noise increases in noise sensitive areas or significant air impacts.

Paragraph 5-6.4.h (formerly Paragraph 310h in Order 1050.1E) has been clarified to include non-aeronautical uses at existing airports or commercial space launch sites.

Paragraph 5-6.5.b (formerly Paragraph 311b in Order 1050.1E) adds clarification that this CATEX for procedural actions applies to establishment of jet routes as they are one type of Federal airway.

Paragraph 5-6.5.c (formerly Paragraph 311c in Order 1050.1E) adds the example “reduction in times of use (
e.g.,
from continuous to intermittent, or use by a Notice to Airmen (NOTAM))” to the list of “such as” actions. This clarifies that actions to return all or part of SUA to the National Airspace System (NAS) include reduction in times of use.

Paragraph 5-6.5.g (formerly Paragraph 311g in Order 1050.1E) is slightly modified to include RNP. It also specifies that a Noise Screening Tool or other FAA-approved environmental screening methodology should be used.

Paragraph 5-6.5.h (formerly Paragraph 311h in Order 1050.1E) is slightly modified to include “modification” of helicopter routes to clarify that establishment of helicopter routes also includes modification of these routes as long as they channel helicopter activity over major thoroughfares. The FAA has also added “would not have the potential to significantly increase noise over noise sensitive areas” to highlight significant increase in noise as a specific extraordinary circumstance to be aware of when applying this CATEX.

Paragraph 5-6.5.i (formerly Paragraph 311i in Order 1050.1E) updates reference to a Noise Screening Tool or other FAA-approved environmental screening methodology.

Paragraph 5-6.6.b is modified to provide clarity that the CATEX applies to an aerobatic practice area containing one aerobatic practice box in accordance with 1050.1E Guidance Memo #5,
Clarification of FAA Order 1050.1 CATEX 312b for Aerobatic Actions
.

The discussion of EA format and process has been revised to simplify the explanation of each element and clarify that an EA should be concise and focused and generally should not be as detailed as an EIS (see Paragraphs 6-2.1 and 6-2.2). As this discussion has been reduced in detail, there are cross-

references to the corresponding EIS sections for EAs that may need to be more substantial.

The language required to be included in notices soliciting public comment on draft EAs and draft EISs has been revised, stating that personal information provided by commenters (
e.g.,
addresses, phone numbers, and email addresses) may be made publicly available (see Paragraphs 6-2.2.g and 7-1.2.d(1)(a)).

The Order adds two paragraphs on the use of errata sheets when the modifications to a draft EA or draft EIS are minor and confined to factual corrections or explanations of why the comments do not warrant additional agency response (see Paragraphs 6-2.2.i and 7-1.2.f).

A new paragraph has been added to explain the conditions under which the FAA may choose to terminate preparation of an EIS and to clarify what steps the FAA should take when this situation occurs (see Paragraph 7-1.3).

The timing of a decision on a proposed action for which an EIS is prepared has been revised slightly to allow for the joint issuance of a Final EIS and ROD pursuant to Section 1319(b) of Map-21 (see Paragraph 7-1.2.j).

The requirements relating to review of other agencies' NEPA documents and FAA's adoption of other agencies' NEPA documents have been clarified (see Paragraphs 8-1 and 8-2). Please note the discussion of recirculation requirements for EISs to highlight that there are some circumstances in which adopted documents must be recirculated (see Paragraph 8-2.e).

A discussion of FAA policy with respect to consideration of transboundary impacts resulting from FAA actions has been added (see Paragraph 8-5). This was added to differentiate analysis of impacts to other countries versus FAA actions that occur in other countries. This is not intended to create a requirement to discuss global climate change impacts from FAA actions.

The discussion of international actions has been modified to be consistent with DOT Order 5610.1, including guidance on coordination within the FAA/DOT and U.S. State Department when communication with foreign governments is needed (see Paragraph 8-6).

The alternative process to consider environmental impacts before taking actions necessary to protect the lives and safety of the public in emergency circumstances has been amended. Alternative arrangements are limited to actions necessary to control the immediate impacts of an emergency. Order 1050.1F expands this paragraph to provide for emergency procedures when a CATEX or EA would be the appropriate level of NEPA review (see Paragraph 8-7).

Provisions relating to written re-evaluations have been modified and clarified. The FAA has added language requiring a written re-evaluation before further FAA approval may be granted for an action if, after the FAA has approved an EA or EIS for the action, there are changes to the action, or new circumstances or information, that could trigger the need for a supplemental EA or EIS, or all or part of the action is postponed beyond the time period analyzed in the EA or EIS. The FAA added a statement to explain that written re-evaluations may be prepared in other circumstances and added a discussion of combining decision documents with written re-evaluations (
i.e.,
a “Written Re-evaluation/ROD”) (see Paragraph 9-2).

The section on Supplemental Environmental Impact Statements was modified to incorporate Section 1319(b) of Map-21 (see Paragraph 9-3).

The provisions relating to review, approval, and signature authority for FAA NEPA documents have been consolidated (see Chapter 10).

Paragraph 11-2 clarifies the authority of various parties and is consistent with other FAA Orders (see Paragraph 11-2).

Provisions relating to explanatory guidance have been amended to show a two-step process for coordination and review with the FAA's Office of Environment and Energy (AEE) and Office of Chief Counsel (AGC) (see Paragraph 11-4).

The definitions paragraph has been modified to add “extraordinary circumstances,” “NEPA lead,” “special purpose laws and requirements,” and “traditional cultural properties.” “Environmental Due Diligence Audit” has been deleted because this term is no longer used in FAA Order 1050.1F. Definitions of “environmental studies,” “approving official,” and “decisionmaker” are revised to reflect current practice. The definition of “human environment” was modified to more closely align with the CEQ Regulations. The term “launch facility” is changed to “commercial space launch site” to be consistent with 14 CFR part 420. The definition of “noise sensitive area” is revised to include a reference to Table 1 of 14 CFR part 150 rather than Appendix A of FAA Order 1050.1E, to provide context in light of the removal of Appendix A from Order 1050.1F. “Major Federal action” was added to the list of definitions as a cross reference to the CEQ Regulations (See Paragraph 11-5.b).

Disposition of Comments

The FAA appreciates the thoughtful responses to its request for comments on the draft Order 1050.1F,
Environmental Impacts: Policies and Procedures
. The FAA received more than 800 comments. Commenters included private citizens, elected officials, corporations, trade associations, and Federal and state agencies. Those comments that raised policy or substantive concerns within the scope of the order have been grouped thematically, summarized, and addressed in this Notice. The term “comment” used in this Notice refers to each individual issue raised by a commenter, thus, numerous comments may have been identified within the correspondence submitted by a commenter. The comments that address similar themes or issues, even if submitted by different commenters, have been combined for response where possible. References to specific paragraphs in this Preamble refer to the revised paragraph and subparagraph numbering of the final Order. Due to the number of comments received on helicopters and the two legislative CATEXs, these comments are addressed after the general Order 1050.1F comments.

I. General Order 1050.1F Comments

Several commenters were concerned that changes in Order 1050.1F would relax requirements for environmental review or public involvement including concerns that the Order exempts the FAA from further environmental studies and the Order evades community and general stakeholder input
.

FAA Order 1050.1F provides the FAA's policies and procedures for compliance with NEPA. Under NEPA, Federal agencies must disclose significant impacts of their actions to the public. Order 1050.1F has not relaxed any standards and is consistent with NEPA and the CEQ Regulations. Actions that cause significant impacts will require preparation of an EIS and compliance with the associated public involvement requirements before being implemented.

Chapter 1: General

Paragraph 1-6. Related Publications

One commenter was concerned with potential conflicts between Order 1050.1F and other FAA environmental guidance documents and Orders (i.e., the Office of Airport's Order 5050.4B and the accompanying Environmental Desk Reference for Airport Actions)
.

AEE developed Order 1050.1F and its accompanying 1050.1F Desk Reference in a workgroup with all LOB/SOs, including the FAA's Office of Airports, to ensure that any modifications are consistent throughout the agency. As specified in Paragraph 11-4, Order 1050.1F supersedes any inconsistent explanatory guidance and FAA LOB/SOs must update any current explanatory guidance to be consistent with Order 1050.1F. If any conflicts exist, Order 1050.1F would take precedence until other explanatory guidance is revised.

The Office of Airports will be updating Order 5050.4B and the
Environmental Desk Reference for Airport Actions
to provide guidance on airport specific projects consistent with Order 1050.1F. The
Environmental Desk Reference for Airport Actions
will not be discontinued because it contains specific information that is relevant to airport projects that is not contained in 1050.1F Desk Reference.

Several commenters requested that the 1050.1F Desk Reference be made available to the public for comment and stated that they could not provide adequate comments on the Order until the Desk Reference was made available for comment.

The FAA recognizes the public's interest in reviewing and providing comments on the 1050.1F Desk Reference. The 1050.1F Desk Reference is guidance material intended to assist FAA employees with NEPA implementation. Although the Order refers the reader to the 1050.1F Desk Reference in numerous places, this is to identify where additional guidance is available regarding significant impact determinations, information on FAA-approved models, and compliance with other environmental laws, regulations and requirements so that the NEPA practitioner can more easily prepare an adequate analysis under NEPA for each environmental impact category.

The FAA undertook a careful review of Appendix A from Order 1050.1E when determining the content that could reasonably and appropriately be placed in the desk reference. Any requirements of the FAA's NEPA procedures that were contained in Appendix A of Order 1050.1E and that do not originate from an independent law, regulation, executive order, or other directive external to the FAA, such as requirements associated with noise analysis, have been retained in the main body of or appendices to Order 1050.1F. Content that has been removed from the Order and placed in the desk reference is limited to explanatory or technical guidance intended to assist FAA employees with implementation of NEPA and other environmental laws, regulations and requirements. As such, there are no FAA NEPA review requirements that are solely located in the desk reference, and as a result, the FAA has provided interested members of the public an opportunity to make meaningful comment on the FAA's NEPA policies and procedures as embodied in Order 1050.1F. Although the FAA is not providing a formal comment period on the 1050.1F Desk Reference, the users of the 1050.1F Desk Reference can submit comments on it through the FAA Web site at
http://www.faa.gov/about/office_org/headquarters_offices/apl/environ_policy_guidance/policy/draft_faa_order/.
These comments will be reviewed and incorporated into the 1050.1F Desk Reference on an ongoing basis, as needed.

One commenter stated that the Administrative Procedure Act (APA) and the FAA Policy on Public Involvement require that the FAA make the 1050.1F Desk Reference available to the public under notice and comment procedures.

The APA's requirements regarding notice and comment for agency rulemaking are not applicable to the Order 1050.1F Desk Reference. Content that has been placed in the Order 1050.1F desk reference is limited to explanatory or technical guidance intended to assist FAA employees with NEPA implementation, and does not contain any requirements or obligations that are not otherwise contained in Order 1050.1F or other statutes, regulations, or directives. As a result, the comment period provided for Order 1050.1F was adequate, as concurrent review of the Order 1050.1F desk reference was not necessary to facilitate review of the Order.

The APA does not require that guidance documents be publicly available under notice and comment procedures. The 1050.1F Desk Reference is a guidance document that provides information to NEPA practitioners on how to comply with environmental regulations, Orders, and requirements in the NEPA setting.

The FAA is unaware of an “FAA Policy on Public Involvement” and can only assume that the commenter is referring to the
Community Involvement Policy Statement
(April 17, 1995). This policy statement was issued almost 20 years ago, but is still valid. The FAA regards community involvement as an essential element in the development of programs and decisions that affect the public. The 1050.1F Desk Reference is available to the public. However, it will not undergo a formal review and comment period since it is a guidance document that may need to be updated as other environmental laws and regulations are amended. Individuals may submit comments on the Desk Reference through the FAA Web site at:
http://www.faa.gov/about/office_org/headquarters_offices/apl/environ_policy_guidance/policy/draft_faa_order/.
All comments will be considered on an ongoing basis for future editions of the 1050.1F Desk Reference.

Two commenters expressed concern that the 1050.1F Desk Reference will not be updated as stated, citing the fact that the Office of Airports made their Environmental Desk Reference for Airport Actions separate from their Order 5050.4B in 2006 for the same reasons and it has never been updated.

The FAA understands the concerns of the commenter. To help improve the efficiency and ease of updating the 1050.1F Desk Reference, the Office of Environment and Energy has implemented a process for receiving comments on the 1050.1F Desk Reference and will review and update the 1050.1F Desk Reference on a regular basis to address any concerns and changes that are needed. The length of time between updates to the 1050.1F Desk Reference will be dictated by any changes to special purpose laws, regulations, or other requirements and/or applicable guidance and the content of comments received on the 1050.1F Desk Reference.

One commenter stated that by removing the information within Appendix A to a Desk Reference, this could limit the ability to cite to this material appropriately in NEPA documents. The commenter encouraged the FAA to note what authority to cite in NEPA documents.

The 1050.1F Desk Reference provides guidance to FAA personnel on how to prepare a NEPA document. The FAA encourages preparers of documents to reference the appropriate underlying statutes, regulations, or other authorities for the analytical and disclosure requirements that are described in the 1050.1F Desk Reference. The 1050.1F Desk Reference provides additional guidance on the appropriate situations and manner for citing the 1050.1F Desk Reference. It is important to note that if there is an underlying statutory, regulatory, or other requirement, the underlying authority should be cited instead of the 1050.1F Desk Reference.

One commenter stated that not allowing public review of the 1050.1F Desk Reference is not proper policy because this information contains FAA requirements concerning noise and thus

should be available to the public for review.

Appendix B of Order 1050.1F is comprised of excerpts from the 1050.1F Desk Reference that contain FAA-specific requirements on noise analysis. Appendix B was made available to the public during the public comment review period of this Order. When developing the public draft of Order 1050.1F, the FAA carefully reviewed not only the noise chapter, but also the Section 4(f) chapter of the 1050.1F Desk Reference to ensure that any FAA-specific requirements that are not already based on other special purpose laws are contained within Appendix B of draft Order 1050.1F, and thus made available for public review and comment.

One commenter stated to the extent that FAA places new, substantive requirements in the 1050.1F Desk Reference that otherwise would trigger full notice and comment procedures, the 1050.1F Desk Reference should be subjected to such review.

Although the 1050.1F Desk Reference does contain substantive requirements, the majority of these requirements are based on authorities outside of the FAA (
i.e.,
the Clean Air Act, the Clean Water Act, National Historic Preservation Act, etc.). It is not appropriate to solicit notice and comment on these authorities. To the extent that there are FAA-specific requirements within the 1050.1F Desk Reference, these have been placed within Appendix B of Order 1050.1F. These include FAA-specific requirements for noise and Section 4(f). Appendix B was published as part of the draft Order 1050.1F to allow for public review and comment.

Two commenters were concerned that important information that was previously contained in Order 1050.1E has been left out of this Order and without review of the 1050.1F Desk Reference they could not provide meaningful comments. One commenter stated, as an example, Chapter 4 seems to leave out light emissions, cumulative impacts, construction, and secondary (induced) impacts.

Throughout the updates to Order 1050.1, the FAA has carefully reviewed this Order to ensure that information contained in Order 1050.1E has been included in either Order 1050.1F and/or the 1050.1F Desk Reference, as appropriate.

As stated in Paragraph 1-10.13, the FAA has made several changes to the environmental impact categories. One of which was combining light emissions with the chapter on visual impacts. The FAA has changed the title of visual effects in the draft Order 1050.1F to “visual effects (including light emissions)” in this final version of Order 1050.1F, to ensure clarity that light emissions is included within the visual impacts.

As Paragraph 1-10.13 also stated, the FAA has eliminated construction and secondary impacts as separate environmental impact categories and these are now discussed within each relevant environmental impact category. To address this comment, the FAA has added a statement to Paragraph 4-1 to highlight this.

Cumulative impacts is not considered a specific environmental impact category, which is why it is not listed in Paragraph 4-1; however, there is a chapter devoted to cumulative impacts in the 1050.1F Desk Reference.

One commenter requested that the 1050.1F Desk Reference contain specific examples of air traffic actions since the current Desk Reference, Environmental Desk Reference for Airport Actions, focuses on airport actions.

The
Environmental Desk Reference for Airport Actions
referred to by the commenter was prepared by and for the Office of Airports and therefore is appropriately focused on airport actions. The 1050.1F Desk Reference provides guidance for all the FAA LOB/SOs to utilize and is general in nature. Specific examples are included where applicable. The FAA LOB/SOs were encouraged to provide specific examples related to their programs that would be useful to include in the 1050.1F Desk Reference.

Paragraph 1-8. Federal Aviation Administration Policy

One commenter stated that since there was an emphasis on expedited reviews in the policy section, there should be a paragraph in Order 1050.1F on the process for expedited reviews or references to those applicable expedited steps in the policy statement.

The paragraph referenced by the commenter is the FAA's policy statement for this Order. The policy statement is general in nature and provides an overview of the FAA's policies in NEPA. Specific expedited review processes are generally LOB specific and therefore are not contained within Order 1050.1F.

However, information regarding timely, effective, and efficient environmental reviews has been incorporated throughout the Order where appropriate.

The expedited reviews referred to in the policy statement are not new to the FAA. For instance, the policy statement contained in Order 1050.1E cites the expedited reviews under Title III of Vision 100—Century of Aviation Reauthorization Act, also cited as the Aviation Streamlining Approval Process Act of 2003, 49 United States Code (U.S.C.) 47171-47175.

Since the expedited review processes are for specific FAA LOB actions, the details of these processes are most appropriately listed in the specific LOB's environmental Orders. For example, FAA Order 5050.4B contains specific expedited processes for airport actions and FAA Order 7400.2K contains specific expedited processes for air traffic actions.

One commenter asked why there was an emphasis on NextGen in Order 1050.1F since this is being addressed in the Air Traffic Organization's (ATO's) NEPA Order.

NextGen is not just ATO-specific and applies across FAA LOBs. One of the purposes for updating Order 1050.1F was to incorporate NextGen terms and processes to ensure that NextGen actions adhere to the requirements of NEPA. Although Order 7400.2 has been updated, it only addresses ATO-specific NextGen activities.

One commenter stated that the NextGen EMS text in the policy paragraph seems out of place unless it explains how an EMS can be used in meeting the FAA's NEPA requirements.

The policy statement in Order 1050.1F highlights the FAA's policies with regard to NEPA compliance and other environmental responsibilities. Since the last revision of FAA Order 1050.1E in 2006, the FAA has begun implementation of NextGen. As a result, NextGen concepts, including NextGen EMS, have been included in the policy statement of FAA Order 1050.1F. The FAA has included the reference to the NextGen EMS in the policy statement because the NextGen EMS is a new approach to improve the integration of environmental performance into the planning, decision-making, and operation of NextGen, which is consistent with the goals of NEPA. More information on how the EMS approach, in general, can be used in the NEPA process is contained in Paragraph 2-3.3.

One commenter stated that the NextGen EMS is conceived simply as a tool to track the environmental impacts of NextGen deployment to ensure its beneficial impacts will support sustained aviation growth.

Based on the comment, it seems there is a misunderstanding of the NextGen EMS program. The NextGen EMS provides the framework for improving NextGen's environmental performance by integrating environmental considerations into the planning, decision-making, and operation of

NextGen to achieve environmental protection that allows sustained aviation growth and is not a tool to track environmental impacts of NextGen deployment as the commenter has suggested.

One commenter questioned how the check and act portion of NextGen EMS is being implemented relative to the airport stakeholders and how does it affect the NEPA process?

The check and act portion of NextGen EMS does not apply to airport stakeholders or their actions. The NextGen EMS is a strategic application of the EMS approach (Plan-Do-Check-Adapt), and is being used to integrate environmental considerations into FAA decision-making. The check and act portion of NextGen EMS pertains to the FAA's `check' for progress against the goals articulated in our Environmental and Energy Policy Statement. The FAA plans to use the results of the `check' to inform and `adapt' its programs and policies as needed. The NextGen EMS helps to inform the FAA's implementation of NEPA.

In contrast, the Order identifies how EMSs can be integrated within NEPA. For instance, EMS data collection, tracking, and analysis may be useful in the preparation of NEPA documentation, including providing input to the affected environment and assessment of potential impacts (see Paragraph 2-3.3). EMSs can also be useful in tracking and monitoring mitigation commitments (see Paragraph 4-4.d).

Using this approach, an airport EMS could not only provide data useful in the analysis within a NEPA document, but also could be used to help monitor any mitigation commitments that are agreed to in implementing a proposed action. However, the use of an EMS approach in this context is not a NEPA requirement.

Paragraph 1-9. Applicability and Scope

One commenter was concerned about the effective date of the Order and how it would be applied to ongoing activities.

Order 1050.1F will be effective on the date the final Order is published in the
Federal Register
. Order 1050.1F applies to the extent practicable to ongoing activities and environmental documents that began before the effective date, but only to those that do not require substantial revisions. Additional text has been added to Paragraph 1-9 to emphasize that procedures contained in this Order should not apply to ongoing environmental reviews where substantial revisions to ongoing environmental documents would be required.

Chapter 2. National Environmental Policy Act Planning and Integration

Paragraph 2-1. Applicability of National Environmental Policy Act Procedures to Federal Aviation Administration Actions

Paragraph 2-1.1. Federal Aviation Administration Actions Subject to National Environmental Policy Act Review

One commenter asked what Federal actions the FAA would take that it views it does not have “sufficient control and responsibility to condition a license or approval?”

This language has been modified to “authority to condition a permit, license, or approval” (see Paragraph 1-9). It is well-settled law that the provisions of NEPA apply only to discretionary Federal actions. The language of Paragraph 1-9 of the Order expresses this requirement for Federal discretion and decisional authority within the typical program and project paradigm of FAA actions. This general statement of applicability of the CEQ Regulations and this Order is clarified further through a series of more specific, though not exhaustive, examples of discretionary actions taken routinely by the FAA (see Paragraph 2-1.1).

Neither Paragraph 1-9 nor Paragraph 2-1.1 was intended to definitively identify the complete universe of actions over which the FAA does or does not have authority to condition a permit, license, or approval. The FAA has modified this text to make it clear that these actions are (1) directly undertaken by the FAA; and (2) undertaken by a non-Federal entity where the FAA has authority to condition a permit, license, or approval.

One commenter requested emphasis on “major Federal action” as a requirement triggering NEPA review. The commenter stated that without clarifying that FAA actions subject to NEPA review must constitute “major Federal action” and otherwise meet the requirements triggering NEPA review, Paragraph 2-1.1 could be interpreted that the listed actions are subject to NEPA review regardless of whether the statutory triggers have been satisfied.

The FAA does not interpret “major Federal action” as a limitation on the applicability of NEPA to specific Federal actions. The CEQ Regulations at 40 CFR 1508.18 define a major Federal action as “actions with effects that may be major and which are potentially subject to Federal control and responsibility. Major reinforces but does not have a meaning independent of significantly (Section 1508.27).” Therefore, the FAA has not defined the concept of a “major Federal action” as an initial threshold for determining the applicability of NEPA review.

FAA actions are subject to NEPA except as provided in Paragraph 2-1.2 of Order 1050.1F. FAA actions not subject to NEPA include actions that applicable Federal law or congressional mandate expressly prohibits or makes compliance with NEPA impossible, actions excepted by CEQ Regulations, advisory actions, judicial or administrative civil enforcement actions, and actions that are done in furtherance of NEPA (
i.e.,
development and implementation of NEPA documents and Orders).

Paragraph 2-1.2. Federal Aviation Administration Actions Not Subject to National Environmental Policy Act Review

One commenter stated that NEPA should apply to FAA Determinations of Hazard or No Hazard to Air Navigation, especially when determinations are made for wind farms and cell towers.

Hazard determinations are advisory actions under 14 CFR part 77,
Safe, Efficient Use, and Preservation of the Navigable Airspace.
As noted by the United States Court of Appeals for the District of Columbia Circuit in
Town of Barnstable, Massachusetts
v.
FAA,
659 F.3d. 28 (D.C. Cir. 2011), the FAA's determinations under part 77 are not legally binding. Furthermore, the Court noted that the FAA has no authority to countermand an approval of a project that the FAA has reviewed under part 77 or to require changes to such a project in response to environmental concerns. Because the FAA lacks the necessary discretion and control over actions reviewed under part 77, the most basic requirements for the application of NEPA are lacking. Therefore, part 77 determinations are advisory actions and as such, not subject to NEPA. Paragraph 2-1.2 of this Order identifies the FAA's advisory actions, including hazard determinations under part 77.

One commenter specified that the statement describing administrative actions is not clear and recommended clarifying whether specific air traffic administrative actions (such as air space boundary changes) are included in Paragraph 2-1.2.d. Administrative Actions.

The statement describing administrative actions states that administrative actions for compliance with NEPA procedures and the promulgation of NEPA Orders are not subject to NEPA. This would include preparation of Order 1050.1F and other

similar Orders that provide requirements and guidance to NEPA practitioners. In addition, it covers contractual arrangements for the preparation of NEPA documents.

Specific air traffic actions that would fall within Paragraph 2-1.2.d include the creation or revision of an air traffic-specific NEPA Order, such as FAA Order 7400.2K. In addition, this would include administrative actions such as hiring a contractor for preparation of a NEPA document.

Air traffic actions, including airspace boundary actions, are subject to NEPA and Order 1050.1F. Some of these actions can be categorically excluded under Paragraph 5-6 of this Order and would not need preparation of an EA or EIS. If these actions are not within the scope of a CATEX, or there is a potential for extraordinary circumstances, an EA or EIS may need to be prepared.

Paragraph 2-2. Responsibilities

Paragraph 2-2.1. Responsibilities of the Federal Aviation Administration

Paragraph 2-2.1.a. General FAA Responsibilities

One commenter stated that special purpose laws should be noted as an FAA responsibility.

Special purpose laws are already covered under Paragraph 2-2.1.a(1) that includes “ensuring compliance with NEPA, the CEQ Regulations, this Order, and other environmental requirements” as a general FAA responsibility. The FAA did not add additional language to specify special purpose laws since these are covered under other environmental requirements.

One commenter suggested the Order should more clearly note that the ultimate decision regarding the NEPA document rests with the FAA. For instance, the FAA should approve an initial scope and make the decision on whether or not a NEPA document is ready for public review.

The FAA has the ultimate responsibility for complying with NEPA. Under Paragraph 2-2.1.a(3) of Order 1050.1F, the FAA is responsible for “independently and objectively evaluating applicant-submitted information and EAs and taking responsibility for content and adequacy of any such information or documents used by the FAA for compliance with NEPA or other environmental requirements.”

Each FAA LOB/SO may provide for specific procedures when working with applicants on the level of review and approval throughout the process (
i.e.,
scope of work, studies, etc.). Applicants are encouraged to coordinate with the appropriate FAA offices to ensure complete, timely, and efficient document preparation.

Throughout Order 1050.1F, there are references to the relationship between the FAA and applicants with respect to the preparation and content of NEPA documents. For instance, Paragraph 6-2.2.e of Order 1050.1F states “[t]he EA must present a detailed analysis, to the satisfaction of the responsible FAA official, commensurate with the level of impact of the proposed action and alternatives, to determine whether any impacts will be significant.” This denotes that the responsible FAA official must be satisfied with the analysis contained in the document and must accept responsibility for its contents.

Paragraph 6-2.2.g states “If a draft EA is circulated, the responsible FAA official, or applicant as directed by the FAA, must circulate the draft EA to interested agencies and parties, including any who submitted comments on the proposed action.” In this particular paragraph, the applicant is directed by the FAA when circulating a draft EA.

Although the FAA may not formally “approve” the EA until a Finding of No Significant Impact (FONSI) is prepared, the FAA is still working with the applicant and/or contractor throughout the process and taking responsibility for the document's contents.

Paragraph 2-2.1.b. Roles of Lines of Business/Staff Offices (LOB/SOs)

One commenter suggested adding a reference to the Environmental Desk Reference for Airport Actions under Office of Airport's Roles and Responsibilities to reinforce use of FAA NEPA guidance documents.

The FAA did not add a reference to the
Environmental Desk Reference for Airport Actions
to Paragraph 2-2.1.b(2)(g). This paragraph outlines the roles and responsibilities of the Office of Airports. The inclusion of FAA Order 5050.4 highlights the supplemental explanatory guidance issued by the Office of Airports, which is subject to FAA Order 1320.1,
FAA Directives Management,
and is adopted and revised by the agency through notice and comment procedures. The
Environmental Desk Reference for Airport Actions,
by contrast, is intended to be an aid or manual for practitioners in satisfying the requirements of the CEQ Regulations, FAA Order 1050.1E, FAA Order 5050.4B, and other environmental requirements. Furthermore, the
Environmental Desk Reference for Airport Actions
does not go through the notice and comment process as do FAA Orders, nor does it fall under FAA Order 1320.1,
FAA Directives Management.
For these reasons, it does not warrant being included in the roles and responsibilities of the Office of Airports as enumerated in the paragraph in question.

Paragraph 2-2.1.c. Actions Undertaken by the FAA

One commenter asked what the “feasibility analysis (go/no-go) stage” is.

The referenced text was contained in Order 1050.1E and is consistent with the CEQ Regulations (40 CFR 1502.5(a)). The definition of feasibility is “capable of being done or carried out” (
Merriam-Webster Online Dictionary
available at
http://www.merriam-webster.com/dictionary/feasible
).

The go/no-go stage is the point at which the agency determines: (1) Whether an action is available to address an identified need or problem, and (2) whether to seek resolution of the identified need or problem through discretionary Federal action.

Essentially, the referenced paragraph is stating that NEPA documentation must be done before a decision to proceed with a project is made.

Paragraph 2-2.1.d. FAA Approval of Applicant Actions

One commenter questioned whether actions undertaken by an applicant should specify that applicants should comply with all provisions of this Order with regard to documentation required by the FAA.

NEPA is a Federal obligation. Order 1050.1F contains the NEPA implementing procedures for FAA actions. It is the responsibility of the FAA, not an applicant, to ensure that the provisions of this Order have been complied with before accepting any NEPA documentation prepared by an applicant. Paragraph 2-2.1.d, FAA Approval of Applicant Actions, states that the FAA must advise and assist the applicant during preparation of the EA, and must independently evaluate and take responsibility for the EA to ensure that: (1) The applicant's potential conflict of interest does not impair the objectivity of the document; and (2) the EA meets the requirements of this Order.

Paragraph 2-2.2. Responsibilities of Applicants

One commenter recommended that the FAA distinguish between signing CATEX documentation and approving CATEX documentation, since most CATEXs are signed by multiple parties,

and the signatures do not always constitute approval.

The FAA has changed the language from “sign” to “approve” for clarification. It is important to note that the FAA must make the CATEX determination; any party other than the FAA, including contractors and applicants, cannot approve CATEX determinations.

One commenter stated the Order indicates only the FAA may prepare the CATEX record, and questioned whether a consultant working for the FAA can support the FAA in preparing the written record.

The commenter is correct that applicants and contractors may provide data and analysis to assist the FAA in determining whether a CATEX applies (including whether an extraordinary circumstance exists); however, applicants and contractors may not determine the applicability of CATEXs or approve CATEX documentation (as indicated in Paragraph 2-2.2).

Paragraph 2-2.3 Responsibilities of Contractors

One commenter stated that there should be disclosure requirements for conflicts of interest. In addition, the FAA should provide specific examples of how a contractor's objectivity may be compromised by its involvement in other projects.

The FAA's Procurement Toolbox Guidance, Section T3.1.7
Organizational Conflict of Interest,
dated April 4, 2006, contains the FAA's requirements for conflicts of interest. This Order is referenced in Paragraph 2-2.1(f)(2). Specific examples are not being added to this Order to avoid any inconsistencies that would occur if T3.1.7 is updated or revised.

Paragraph 2-3. Planning and Integration

One commenter asked for clarification that number of days means calendar days and not business days.

The commenter is correct, when referencing number of days throughout Order 1050.1F, the FAA means calendar days and not business days. For instance, the public comment period is typically 30 (calendar) days. This should be interpreted to be approximately one month.

Paragraph 2-3.1 Early Planning

One commenter asked for clarification on the sentence “The FAA or applicant, as applicable, should prepare a list noting all obvious environmental resources.” The commenter asked whether this list is the same as the Initial Environmental Review (IER) prepared by ATO/NextGen and whether “environmental resources” is the same as the environmental categories from Appendix A of Order 1050.1E.

The FAA has modified the sentence in Paragraph 2-3.1, Early Planning, to state “[t]he FAA or applicant, as applicable, should identify known environmental impact categories that the proposed action and the alternatives could affect, including specially protected resources,” to make it clear that a list does not need to be provided. It was not the FAA's intent to refer to the IER prepared by ATO/NextGen. The term “environmental resources” was also changed to “environmental impact categories” throughout the order to clarify that the FAA is referring to the categories outlined in Paragraph 4-1 of this Order.

Paragraph 2-3.2 Initial Environmental Review

One commenter questioned whether the Initial Environmental Review paragraph was the same as ATO's IER in Order 7400.2 and/or the same as Office of Airport's CATEX checklist. The commenter also indicated the FAA should consider adding more information regarding the requirements for completion of IERs, CATEX checklists, or special studies that support the applicant's conclusions about the impacts of the proposal.

The process outlined in Paragraph 2-3.2 of this Order is not the same as the IER or the CATEX checklist as suggested by the commenter. This paragraph highlights the steps that the FAA responsible official should consider when initially looking at a proposed project to help identify the potential impacts and where these can be minimized in project design. This initial review helps identify what level of NEPA is appropriate, any permits that need to be obtained, and which agencies the FAA should coordinate with on the proposed action.

The ATO IER and Office of Airports CATEX checklist are specific to ATO actions and airport improvement actions respectively and can aid a NEPA practitioner in deciding what level of documentation to prepare. Since these are specific to the FAA LOB actions, information on these tools is appropriately discussed in their supplemental Orders.

One commenter suggested that the FAA include a statement that an applicant or contractor working for an applicant should contact the responsible FAA official as soon as there is sufficient information about the project's design.

The FAA has decided not to include the suggested text. Paragraph 2-3.2 is intended to direct the FAA, not an applicant, on the sequence of events when starting an evaluation of a proposed project. The appropriate timing of the sequence is dependent on the nature of the action and is determined on a case-by-case basis. Applicants are encouraged to work with the FAA at the earliest stages of project development.

One commenter stated that paragraph 2-3.2 has caused confusion in the past for applicants. They suggested this paragraph be reworded to state applicants should consider if their proposal is likely to trigger adverse impacts relative to special purpose laws or extraordinary circumstances that could be avoided by changes in the proposal that would still achieve the proposal's goals and objectives. Additionally, they noted avoidance of these issues before starting the NEPA environmental review process can materially reduce the time needed to comply with NEPA.

The FAA agrees that avoidance of certain environmental impacts through modifications to design in the early stages of a project can reduce the overall time needed to comply with NEPA. However, the FAA has not added the language provided by the commenter to this paragraph. First, this Order is designed for use by FAA NEPA practitioners and is not specific to applicants. Therefore, it is not appropriate to narrow the scope of the identified text in a way that appears to limit its applicability to project applicants. However, applicants are encouraged to familiarize themselves with the Order's contents as this will often aid the applicant in understanding the FAA's NEPA responsibilities and prepare the applicant to assist the FAA in the execution of its NEPA responsibilities. In addition, Paragraph 2-3.2 provides guidance to NEPA practitioners on what to consider initially for a proposed action. It is not limited to identification of adverse impacts relative to special purpose laws and extraordinary circumstances. Rather, this paragraph also instructs NEPA practitioners to determine whether an action is already covered by an existing programmatic document or is within the scope of a CATEX, and instructs NEPA practitioners to identify the level of controversy regarding the project's risks of causing environmental harm, which can play important roles in deciding the level of documentation.

To address the commenter's concern regarding incorporating mitigation into project design, the FAA has added more

clarifying language to Paragraph 2-3.6 of the Order to reflect that applicants should work with the FAA to incorporate mitigation into project design during early planning and ensure that mitigation is consistent with the project purpose and need.

One commenter asked for guidance on how to determine if previous NEPA documents covering the proposed action exist.

Paragraph 2-3.2 states the responsible FAA official should initially review whether the proposed action is covered under an existing NEPA document. Since this is an FAA responsibility, and has not caused any issues in the past, no additional guidance is being prepared. The FAA will coordinate with the applicant and other Federal agencies to determine the existence of relevant documents for the proposed action.

One commenter suggested that Paragraph 2-3.2 should emphasize “adequately addressed” and “approved NEPA document” and remove the language on broad system, program, or regional assessment.

FAA disagrees with the comment. The changes the commenter has recommended do not adequately capture what the phrase is meant to convey. The addition of “adequately” or “approved” would not be appropriate as a practitioner could build on a document that was incomplete or was never approved.

Programmatic NEPA documents remain a viable approach and may be well suited to certain types of projects. As such, the FAA has retained the language referencing programmatic documents in the Order (broad system, program, or regional assessment). However, a cross reference is provided to direct NEPA practitioners to Paragraph 3-2 that outlines what a programmatic document entails.

One commenter questioned whether “broad system, program, or regional assessments” are additional terms of documentation to meet the FAA's NEPA compliance such as CATEX checklist, IER, EA or EIS.

The terms “
broad system, program,
and
regional assessment
” refer to programmatic documents. The only terms of documentation to meet the FAA's NEPA compliance are CATEXs, EAs, and EISs. Other terms such as CATEX checklist, IER, and types of programmatic documents (including broad system, program, or regional assessments), are specific CATEX, EA, or EIS documentation choices.

Paragraph 2-3.2.b(2) Cumulative Actions

One commenter stated that the FAA has traditionally applied cumulative impact philosophy to CATEXs, IERs, and EAs and therefore shouldn't the general term “NEPA documentation” be applied rather than limiting it to EISs.

The commenter may be confusing cumulative impacts and cumulative actions. Cumulative impacts must be evaluated for CATEXs, EAs, and EISs to determine the potential for significance. However, in this text we are referring to cumulative actions, which by definition have significant impacts, and thus would be discussed only in an EIS.

One commenter recommended the Order use the definition for cumulative actions from the CEQ Regulations at 40 CFR 1508.7.

The regulations cited by the commenter define the term “cumulative impact,” which is different from the concept of cumulative actions. “Cumulative impacts” are impacts on the environment which result from the incremental impact of the action when added to other past, present, and reasonably foreseeable actions (see CFR
1508.7).
Cumulative actions are discussed in regard to determining the scope of an EIS and are actions “which when viewed with other proposed actions have cumulatively significant impacts,” and should be addressed in a single EIS (see 40 CFR 1508.25(a)(2)). The Order discusses the scope of NEPA documents, and with respect to cumulative actions, mirrors the language in the CEQ Regulations at 40 CFR 1508.25(a)(2). Cumulative impacts are discussed in Paragraph 4-2.d(3) of Order 1050.1F. A cross reference for the discussion on cumulative impacts (Paragraph 4-2.d(3)) has been added to Paragraph 2-3.2.b(2) to help avoid any confusion.

One commenter recommended that the FAA should clarify what kinds of proposed actions should be considered when determining cumulative actions.

The referenced text is the same as the language used in 40 CFR 1508.25(a)(2) of the CEQ Regulations. Any proposed actions whose impacts affect similar resources should be considered to determine if the impacts, when considered cumulatively, are significant and therefore should be addressed in a single EIS. Further guidance on the consideration of cumulative impacts is provided in the 1050.1F Desk Reference.

Paragraph 2-3.2.b(3) Similar Actions

One commenter requested that the FAA include additional guidance on the criteria used to identify similar geography and timing.

The text in the Order regarding “similar actions” is based upon the language of Section 1508.25(a)(3) of the CEQ Regulations. The FAA does not have specific criteria to identify similar actions. Consistent with the CEQ Regulations, reasonable judgment should be applied to determine if actions have similarities that provide a basis for evaluating their environmental consequences together, such as common timing or geography.

Paragraph 2-3.3 Environmental Management System Approach

One commenter stressed that, unlike EMS, NEPA does not require either “continual improvement in environmental performance” or selection of an alternative that makes progress towards that goal.

The FAA acknowledges that NEPA is a procedural statute that does not mandate “continual improvement in environmental performance.” The FAA has revised Paragraph 2-3.3 of the Order to more appropriately describe the role that EMS can play in the NEPA process. The final Order removes emphasis from the EMS concepts of continual improvement in environmental performance and selection of an alternative that makes progress towards a specific environmental goal, and instead emphasizes how EMS can be integrated and utilized for environmental analysis and project decisions.

Paragraph 2-3.4. Reducing Paperwork

One commenter suggested adding more detail to the reducing paperwork paragraph by adding information on FAA Order 1000.36, FAA's Writing Standards, CEQ's Handbook for Integrating NEPA and Section 106, and further guidance on joint document preparation.

The referenced text is derived from 40 CFR 1500.4 of the CEQ Regulations and has been provided to remind individuals how they can reduce the length of NEPA documents and reduce paperwork generated when complying with NEPA. Generally speaking, the FAA has chosen not to elaborate on these principles in Order 1050.1F. However, Paragraph 2-6 of Order 1050.1F provides more information on plain language.

The FAA does not have specific guidance on the preparation of joint documents. However, guidance on joint document preparation can be found on CEQ's Web site.

One commenter stated that measures to reduce paperwork should apply to all NEPA documents, not just EISs.

The FAA agrees and has added a statement that the FAA applies paperwork reduction measures to all NEPA documents.

Paragraph 2-3.6 Mitigation

One commenter stated that the Order should require, not just urge, the responsible FAA official to take mitigation into account in project design to avoid and mitigate environmental harm.

The Order addresses mitigation as it applies both to incorporation into project design and to address unavoidable environmental impacts. The FAA recognizes, however, that the facts of each individual project will dictate the availability and appropriateness of mitigation for incorporation into project design. For that reason, the FAA has included language in the Order that encourages, but does not require, incorporation of mitigation into project design.

One commenter recommended adding clarification that mitigation should be incorporated into project design only in so much as it does not diminish the purpose of and need for the project. The commenter also stated that Paragraph 2-3.6 of the draft Order 1050.1F “can be construed by a lay reader to mean that `environmental harm' is always a factor in meeting purpose and need. Is `environmental harm' the same as `environmental significant impact?' `Harm' can be construed as any type of environmental change that may not necessarily be significant.”

The FAA interprets the comment regarding whether environmental harm is a factor in meeting purpose and need to mean that the commenter is concerned that mitigation incorporated into project design could change the agency's approach to defining purpose and need. The FAA has not intended to suggest that a desire to mitigate environmental impacts should undermine the purpose and need of a proposed action. The FAA has modified Paragraph 2-3.6 of the final Order to emphasize that mitigation incorporated into project design should be consistent with the purpose and need of the project.

With respect to the commenter's question of whether environmental harm is the same as environmental significant impact, this paragraph was not intended to limit use of mitigation only in the case of a significant impact, as mitigation can be used to reduce any impacts whether or not they are significant. The FAA has edited Paragraph 2-3.6 to remove the term “environmental harm” to avoid any confusion between harm and impacts.

One commenter suggested the FAA highlight that costs should be taken into account when decisions are being made to incorporate mitigation.

Whether or not to include discussion of the costs of mitigation within the environmental documentation is determined on a case-by-case basis. Therefore, the requested text changes regarding discussion of mitigation costs have not been included in 1050.1F.

One commenter suggested that the term mitigation should be reserved specifically for actions to address unavoidable environmental impacts and not for avoidance measures built into the project design.

The concept of mitigation measures incorporated into project design is based on CEQ's guidance on
Appropriate use of Mitigation and Monitoring and Clarifying the Appropriate use of Mitigated Findings of No Significant Impact,
76
Federal Register
3843 (January 21, 2011).

The guidance distinguishes mitigation incorporated into project design from other types of mitigation measures that can be, but may not be, adopted when the proposed project is implemented. Mitigation measures incorporated in project design, by their nature, are measures that will be implemented.

In addition, mitigation as defined under 40 CFR 1508.20 includes “avoiding the impact altogether by not taking a certain action or part of an action.” This further supports not limiting mitigation to unavoidable impacts.

Once commenter suggested including mention of the applicant and contractor(s) when coordinating mitigation.

In response to the comment, FAA has added “[F]or projects involving an applicant, the FAA will coordinate proposed mitigation with the applicant.” FAA did not mention the contractor since the contractor is not implementing the mitigation. However, the applicant and the FAA will work with contractors to ensure that mitigation measures are described adequately in a NEPA document.

Paragraph 2-4. Coordination

Paragraph 2-4.2 Lead and Cooperating Agencies

Paragraph 2-4.2.b Cooperating Agency Invitation

One commenter stated that the FAA should require, not merely urge, the FAA NEPA lead to ask state and local agencies with special expertise or jurisdiction to be cooperating agencies.

Cooperating Agency status is a specific status that establishes a formal relationship between entities to cooperate in the preparation of a NEPA document for a proposed action. The CEQ Regulations state that “a state or local agency of similar qualifications or, when the effects are on a reservation, an Indian tribe, may by agreement with the lead agency become a cooperating agency.” Paragraph 2-4.2.b is consistent with Sections 1501.6 and 1508.5 of the CEQ Regulations. While Cooperating Agency status for state and local agencies with special expertise or jurisdiction is not required in the Order, the FAA notes that Paragraph 2-4.3 requires the responsible FAA official, when appropriate, to consult affected Federal and state agencies, tribes, and local units of government early in the NEPA process.

Paragraph 2-4.2.c Role as a Cooperating Agency

One commenter stated that the FAA should emphasize close involvement and coordination with the lead agency throughout the coordination process to ensure that the FAA's views as a cooperating agency are reflected and requirements are met, therefore reducing the delay of the project.

The FAA has modified the text to in Paragraph 2-4.2.c to clarify that active communication with the lead agency early and often in the NEPA process can help to ensure that the FAA's views are adequately incorporated in the environmental document.

Paragraph 2-4.3 Intergovernmental and Interagency Coordination

One commenter stated the Order should more clearly define the circumstances when consultation with Federal and state agencies, tribes, and local units of government is appropriate and identify any exceptions.

The Order states that the FAA must consult with affected Federal and state agencies, tribes, and local units of government “when appropriate.” The basis for concluding that consultation is appropriate with another Federal or state agency, tribe, or local unit of government depends upon the specific facts of each project. The need and extent of consultation depend in part upon the existence of resources or impacts that implicate special purpose laws or other requirements. Due to the highly fact-specific nature of this inquiry, Order 1050.1F should not attempt to define specifically when it is or is not necessary and appropriate to undertake consultation. The decision as to when and with whom to consult is made on a case-by-case basis. Consultation and coordination with Federal and state agencies, local

governments, and Tribes is strongly encouraged throughout the Order and when required has been specified. The 1050.1F Desk Reference details more information on consultation and coordination with non-FAA entities under each environmental impact category.

One commenter stated the Order should reference Federal guidance on concurrent agency consultation such as CEQ's NEPA and NHPA—A Handbook for Integrating NEPA and Section 106.

The 1050.1F Desk Reference contains specific guidance on consultation processes. This guidance is provided in the 1050.1F Desk Reference, as opposed to Order 1050.1F, so it can be easily updated if other agencies modify procedures or processes.

Paragraph 2-4.4 Tribal Consultation

One commenter questioned whether the need for government-to-government consultation applies to all tribes or just federally-recognized tribes?

Government-to-government consultation applies to tribes as defined in Paragraph 11-5.b(14) of the Order, which specifies that tribes are those recognized under the Federally Recognized Indian Tribe List Act of 1994, 25 U.S.C. 479a.

Paragraph 2-5. Public Involvement

Two commenters stated that the Order does not provide clear descriptions of public notification and involvement requirements for each of the levels of environmental review, including the timing and extent of public involvement expected or required for CATEXs, EAs, and EISs.

The Order discusses public involvement in various sections. The FAA has provided more discussion in these sections to help prevent any confusion on public involvement in NEPA processes. The following discussion is intended to further explain what requirements are applicable and where to find these in the Order.

The FAA encourages public involvement in various ways depending on the type of action and the potential for impacts. This Order makes the public involvement process as flexible as possible for case-by-case determination. Depending on the type of action and where it is located, it may be better to conduct early scoping meetings, solicit public comments on a draft document either through comment solicitation or through public meetings, or do a combination of these and other approaches.

It is important to distinguish between public notification and public comment to avoid confusion regarding these public involvement concepts and their associated requirements. Public notification makes a NEPA document available to the public, whereas public comment invites the public to not only review the document but also to provide comments.

The Order addresses the various public involvement topics as follows:

In Paragraph 2-5, the FAA provides a limited discussion of public involvement, including timing, to encourage planning of public involvement at the early stages of a project's consideration. This paragraph then refers the reader to the applicable public involvement paragraphs for EAs and EISs elsewhere in the Order.

Paragraph 5-4 of the Order makes it clear that public notification of a CATEX is not a requirement, but may be encouraged in certain circumstances. There is no prescribed form for notification in those instances where the FAA decides to undertake public notification of a CATEX.

Paragraph 6-2.2.b specifies that when preparing EAs, the FAA or applicant must involve the public, to the extent practicable. Paragraph 6-2.2.g refers to circulation of the draft EA for public comment. This Order leaves flexibility as to the type and extent of public involvement provided for EAs beyond the minimum requirement of public notification under 40 CFR 1506.6(b) of the CEQ Regulations. Strategic planning is needed to successfully integrate public involvement in the EA process.

Paragraph 6-3.d identifies specific circumstances where a 30-day public review period is required for EAs and FONSIs.

Paragraph 6-3.d states that the FAA or applicant must make the EA and FONSI available to the public. The title of this paragraph has been modified to remove the reference to “and review” so that it is not confused with public comment periods.

Paragraph 7-1.2.c states that scoping is required for EISs. The FAA's scoping process is dependent on the type of action and project complexity. Paragraph 7-1.2.d states the draft EIS must be made available for public review and comment and identifies that public meetings may be held to discuss comments on the draft document.

Paragraph 7-1.2.b states that the FAA must prepare a Notice of Intent which includes an overview of the proposed action, the alternatives being considered (including no action), and the name and address of the FAA official who can answer questions about the proposed action and EIS. Paragraph 7-1.2.i states that the final EIS, comments received, and supporting documents must be made available to the public. Paragraph 7-2.1.e states that there must be a notification of the availability of the ROD.

Paragraph 2-5.1. Timing and Extent of Public Involvement

One commenter requested that the extent of early coordination should depend on not only project complexity, degree of Federal involvement, and anticipated environmental impacts of the proposed action, but also the requirements of applicable special purpose laws. In addition, the commenter suggested replacing the term “sensitivity” with the phrase “the potential for a project to be highly controversial on environmental grounds.”

Paragraph 2-5.1 deals with the timing and extent of public involvement. The existing text in this paragraph encompasses the requirements of applicable special purpose laws, which are discussed in more detail under Paragraph 2-5.2.a.

Replacing “sensitivity” with “highly controversial on environmental grounds” does not adequately capture the full range of situations in which early coordination with the public should be considered.

One commenter is concerned that the wording of Paragraph 2-5.1 will not allow the public and resource agencies to provide meaningful input into the preparation of an EA. The commenter specifically requested that the following text be added, “[F]or an EA, this [early coordination] would normally occur when the sponsor's early planning information is sufficient to describe the proposed action and a preliminary scope of the actions' expected environmental impacts. For an EIS, this [early coordination] would occur during the scoping process.”

Paragraph 2-5.1 requires the FAA or applicant to provide pertinent information to the affected communities and agencies and to consider their opinions at the earliest appropriate time. This paragraph also indicates that the extent of early coordination depends on the complexity, sensitivity, degree of Federal involvement, and anticipated environmental impacts. This language is designed to be flexible so that public involvement can be tailored to the specific facts of each proposal, rather than creating a rigid approach that may not be reflective of the unique circumstances surrounding each proposed action. The FAA has taken this flexible approach to ensure meaningful, yet project-appropriate public and agency input early in the NEPA process. For this reason, the FAA

has declined to make the requested text changes in Paragraph 2-5.1. To avoid confusion regarding the timing and extent of public involvement for EAs versus EISs, the FAA has provided cross-references to the specific paragraphs where this information is contained in the Order. Additional information on public involvement for EAs is provided in Paragraph 6-2.2.b. Additional information on public involvement for EISs is provided in Paragraph 7-1.2.

Paragraph 2-5.2. Federal Aviation Administration Requirements for Public Involvement

Paragraph 2-5.2.b. Environmental Justice

One commenter asked what form of notification is considered acceptable to notify potentially affected minority and/or low income populations and whether this requirement applies to actions initiated by airport sponsors
.

This requirement is based on Executive Order 12898,
Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, 59 Federal Register 7629 (February 16, 1994),
and DOT Order 5610.2(a),
Environmental Justice,
77 FR 27534 (May 10, 2012), which require the FAA to provide for meaningful public involvement by minority and low-income populations. The requirement to notify potentially affected minority and/or low income populations was provided in FAA Order 1050.1E at Paragraphs 209d and 16.1a. The FAA must ensure that its NEPA process provides public involvement opportunities for disproportionately affected low-income and minority populations to comply with Executive Order 12898 and DOT Order 5610.2(a).

If the action initiated by an airport sponsor or other applicant requires a Federal decision (permit, license, etc.), then the need to notify potentially affected minority and/or low-income populations applies. Any form of notification is acceptable as long as it is effective for the population and every effort was made to inform the affected community. Decisions regarding what form of notification to use will be based, in part, upon the level of community interest and the complexity of the concerns. It is important to involve the appropriate stakeholders to ensure effective notification. Such stakeholders may include, but are not limited to: community and neighborhood groups; community service organizations; environmental organizations; local industry and business; religious communities; not-for-profit and non-governmental organizations; and government agencies (Federal, state, county, local and tribal). Notification options include, but are not limited to: direct mailings of fact sheets or community updates (a mailing list should be developed); distribution of materials to and through community centers and local government offices and groups; local newspaper notices (preferably appearing on a regular news page, not in the legal/public notice section); and press releases or public service announcements issued to local media.

Paragraph 2-5.3 Public Meetings, Workshops, and Hearings

Several commenters stated public involvement, including meetings, hearings, notice, and comment periods, should be required, not merely urged.

The FAA's public involvement requirements are consistent with CEQ's requirements for public notice and comment. The level of public involvement required by the Order is commensurate with the level of potential significant impacts. The need to prepare public notices and convene meetings, workshops, and hearings is determined on a case-by-case basis depending on the type of action, the scope and degree of certainty of impacts, the complexity of issues, the potential for significant impacts, and other considerations. Paragraphs 5-4, 6-2.2, and 7-1.2 of the Order outline specific requirements for CATEXs, EAs, and EISs respectively. While the Order requires FAA NEPA practitioners to meet the requirements for public involvement as set forth in the CEQ Regulations, the Order also encourages a thoughtful public involvement approach that is tailored to the facts and circumstances of each individual project subject to NEPA review.

One commenter questioned the following regarding public involvement: (1) How the FAA differentiates between a hearing and a public meeting; (2) how a public meeting differs from a workshop; and (3) if an open house is also an acceptable form of public involvement
.

A public hearing is an official proceeding required under various laws. It is a formal process that has a designated public hearing officer who presides over the meeting and a court reporter present to compile a transcript of all oral comments.

A public meeting is a less formal meeting than a public hearing. Public meetings can vary in their structure and approach to best facilitate public involvement. Public meetings can include workshops or open houses that allow the public to ask questions and get clarifications on the proposed action and NEPA process.

One commenter asked for clarification regarding public hearings. The commenter questioned: (1) Whether a designated official must preside over a public hearing; (2) whether a formal court reporter and preparation of a transcript is required; (3) how meeting notices should be advertised; and (4) whether meeting materials need to be provided in advance.

When holding a public hearing, a designated official must preside over a public hearing and a court reporter must be present to compile a transcript of the hearing. This language has been added to Paragraph 2-5.3.b to clarify the requirements of a public hearing.

Notice of a public meeting or hearing should be published at least 30 days prior to the event. Notice of actions having national implications must be published in the
Federal Register
and mailed to national organizations having an interest in the matter. Other methods of notifying the public about public meetings or hearings include: Newspaper ads, direct mailings, notices on the FAA Web site, and other notification methods reasonably accessible by the public. If the purpose of the public meeting is to obtain comments on draft NEPA documents, those documents should be made available for public review at least 30 days before the event. While other materials may be utilized during the public meeting or hearing to help explain the proposed action and/or the NEPA document, only the draft NEPA document must be made available for public review in advance of the public hearing or meeting. Paragraph 2-5.3.b of Order 1050.1F provides further details on public meetings, hearings, and public notification of such, including the information the public hearing/meeting notice.

One commenter asked whether workshops or open houses are sufficient to meet the requirement for public involvement since they are not specifically referenced.

Workshops and open houses are forms of public meetings and are therefore sufficient for public involvement for NEPA purposes, but in certain instances other applicable requirements regarding public outreach may exist. For example, 49 U.S.C. 47106(c)(1)(A)(i) requires an opportunity for a public hearing where a project involves the location of an airport, runway, or a major runway extension. If a hearing were requested, a NEPA workshop or open house alone would not satisfy the statute's

requirement that a hearing be provided when requested. Even where no other public involvement requirement is applicable, the type of public involvement appropriate in the NEPA context will vary depending on the nature of the action and the potential for impacts. Strategic planning is needed to successfully integrate public participation in the NEPA process.

Paragraph 2-7. Limitations on Actions Involving Real Property Prior to Completing National Environmental Policy Act Review

One commenter asked the FAA to clarify whether discussion with property owners would be considered formal contact.

The purpose of this paragraph is to prevent formal action to acquire property, including any offer to purchase property, before NEPA is completed. The text in this discussion has been modified to replace the phrase “formal contact with the property owner” with the phrase “formal action to acquire the property.” Therefore, discussion alone would not be considered “formal action to acquire the property.”

One commenter requested the exception for further engineering study be expanded for other environmental investigations.

The prohibition in Paragraph 2-7.b on formal action to acquire property for the purpose of conducting other environmental investigations is already provided by the circumstance provided in Paragraph 2-7.b(2) that states that “obtaining rights-of-way for such purposes as preparation for site testing, obtaining data, property surveys, etc.” is permissible. Site testing and obtaining data would include environmental investigations.

Chapter 3: Levels of National Environmental Policy Act Review

Paragraph 3-1. Three Levels of National Environmental Policy Act Review

Paragraph 3-1.2 Actions Normally Requiring an Environmental Assessment

One commenter suggested the language in the introduction to Paragraph 3-1.2 be expanded to indicate that “human environment” also includes natural resources.

As stated in Paragraph 11-5.b(7) of the Order, the definition for human environment includes natural resources. Because this term is already defined and includes natural resources, the FAA has not added language to the introduction of Paragraph 3-1.2 as requested by the commenter.

One commenter questioned whether it was accurate that acquisition of property greater than three acres that requires construction of new office buildings and essentially similar FAA facilities requires an EA [Paragraph 3-1.2.b(1)]. The commenter also asked whether an EA is required if the land was undeveloped or if the size of the building would matter.

This example of actions normally requiring an EA was included in Paragraph 401a of Order 1050.1E and has not been modified in this update. The acquisition of land of more than three acres for construction of a building would require an EA under Order 1050.1F. This is irrespective of whether it is developed or undeveloped land and the size of the building.

However, not all acquisition of land over three acres requires an EA. Paragraph 5-6.4.b allows for acquisition of land and relocation associated with a categorically excluded action. Paragraph 5-6.4.bb allows for acquisition of land for an RPZ or other aeronautical purposes provided there is no land disturbance and it does not require extensive business or residential relocations.

Actions that normally require an EA are actions that do not fall within the scope of a CATEX and normally do not require an EIS. In order for an agency to create a CATEX, the agency must make a determination that these types of actions do not individually or cumulatively, absent extraordinary circumstances, have significant impacts. The limitations within a CATEX are based on FAA experience and can only be modified if the FAA provides justification for the modifications.

One commenter asked the FAA to clarify what type of NEPA documentation is required for fuel storage and distribution systems. The commenter specifically asked, for example, whether 400 Hz power at gates would require an EA, and whether creation of hydrant fueling in aprons requires an EA.

Paragraph 3-1.2.b(5) states establishment of FAA housing, sanitation systems, fuel storage and distribution systems, and power source and distribution systems normally require an EA. Actions that are not within the scope of a CATEX will require the preparation of an EA. With respect to documentation required for fuel storage and distribution systems, the FAA has established CATEX 5-6.4.u for the installation, repair, or replacement of fuel storage tanks. The CATEX specifically states it does not include the establishment of bulk fuel storage and the associated distribution systems.

If a tank within a fuel storage distribution system is being replaced or repaired, the action would still be within the scope of the CATEX. However, if a distribution system is being established, the potential for significant impacts increases and an EA must be prepared. For determination of whether a particular project is within the scope of the CATEX 5-6.4.u, please see the CATEX Justification Package available on the FAA's Web site at:
http://www.faa.gov/about/office_org/headquarters_offices/apl/environ_policy_guidance/policy/draft_faa_order/media/C-CATEX_Justification_Package.pdf
.

With respect to the specific situations provided by the commenter, to the extent that these actions are within the scope of existing CATEXs and do not involve extraordinary circumstances, these actions would not require an EA. The FAA has not removed any CATEXs with this update to FAA Order 1050.1E. However, more information would be needed to determine if these types of actions are within the scope of existing CATEXs.

One commenter asked for clarification on how FAA determines “significantly increased air emissions” in Paragraph 3-1.2.b(11). The commenter stated that the FAA's threshold of significant impact is an exceedance of the NAAQS, which is different from an increase in air emissions.

FAA has revised the language in this paragraph to state “actions that may cause significant impacts to noise, air quality, or other environmental impact categories.” Chapter 4 of the Order provides the information necessary to determine whether an action may cause significant impacts to noise, air quality, or other environmental impact categories.

One commenter stated that commercial space actions [Paragraph 3-1.2.b(15)] should be categorized as actions typically requiring an EIS because both the frequency and duration of commercial space launches could have significant impacts to adjacent wildlife resources.

Based upon the agency's experience, there is no evidence that the types of commercial space actions described in Paragraph 3-1.2.b(15) “typically” have significant impacts to wildlife that require review in an EIS. As is always the case, each proposed project is examined to determine the appropriate level of NEPA review based upon the proposed action's specific facts. With respect to the type of commercial space

actions described in Paragraph 3-1.2.b(15) of the Order, the FAA examines the frequency of the launches as well as the duration of these launches, among other considerations, to determine if there would be significant impacts. If significant impacts are reasonably foreseeable, an EIS would be required.

Paragraph 3-1.3. Actions Normally Requiring an Environmental Impact Statement

Two commenters asked for clarification on the definition of a major runway extension and why a major runway extension requires an EIS when runway extensions and runway strengthening only require an EA per the Airport and Airway Improvement Act (AAIA).

The AAIA does not contain any provisions identifying the type of NEPA documentation required for specific types of airport development actions.

There is a distinction between a runway extension and a major runway extension. Major runway extension has been defined by the FAA's Office of Airports as a runway extension that causes a significant adverse environmental impact to any affected environmental resource (
e.g.,
wetland, floodplain, historic property, etc.). This includes, but is not limited to, causing noise sensitive areas in the Day-Night Average Sound Level (DNL) 65 decibel (dB) contour to experience at least a DNL 1.5 dB noise increase when compared to the no action alternative for the same time frame (see Paragraph 9.1l(1) of 5050.4B).

To the extent that a runway extension causes a significant impact, that runway extension would be considered a major runway extension and an EIS would be required.

One commenter questioned why the list of actions under Paragraph 3-1.3, Actions Normally Requiring an Environmental Impact Statement, does not have any associated air traffic operation actions.

The list of actions that is described in the Order as normally requiring an EIS has been compiled by the FAA based on the FAA's extensive experience with these actions over time. Where the FAA's experience has indicated that a category of actions normally results in one or more significant impacts, the FAA has included that category of actions in the list of actions normally requiring an EIS. At this time, determinations to prepare an EIS for air traffic actions are decided on a case-by-case basis because the FAA has not identified any air traffic actions that typically involve significant impacts. For this reason, there are no air traffic actions to include in the list that is the subject of this comment. Notwithstanding the absence of air traffic actions on the list of actions normally requiring an EIS, the FAA may decide that an EIS is appropriate for a particular air traffic action.

Paragraph 3-2. Programmatic National Environmental Policy Act Documents and Tiering

One commenter stated that FAA commercial space launch site operator licenses should be examined under a national programmatic NEPA document to identify the need, purpose, and alternatives that reflect the national scope of the project under consideration (i.e., alternatives should be considered nationwide and not limited to any given region).

The FAA does not agree that there is a national scope for FAA commercial space launch site operator licenses; rather, the geographic extent of the applicant governs the geographic scope of the NEPA review. The FAA does not fund commercial space launch sites or designate where a launch site should be developed within the United States. Instead, the FAA reviews the proposed actions of applicants that want to establish a new commercial space launch site at a specific location. As such, the purpose and need and range of alternatives for any individual commercial space launch site application are dictated by the proposal the FAA receives from the applicant.

Chapter 4. Impact Categories, Significance, and Mitigation

Paragraph 4-1. Environmental Impact Categories

One commenter requested clarification that the discussion of resources in a NEPA document must follow the alphabetical order indicated in Paragraph 4-1.

The discussion of resources in a NEPA document does not need to address environmental impact categories in alphabetical order. This discussion can vary depending on the type of action and the potential impacts. The FAA has added a statement to the Order to specify that the categories are alphabetized in the Order for ease of reference but are not intended to impose an obligation to present analysis in alphabetical order in the FAA's NEPA documents.

One commenter requested that the FAA consider adding references to migratory bird conservation, the Migratory Bird Treaty Act, and the Bald and Golden Eagle Protection Act throughout the Order.

The FAA has added migratory birds to Paragraph 2-3.2 and has added migratory bird impacts and bald and golden eagle impacts to the factors to consider column for the Biological Resources environmental impact category in Exhibit 4-1. The 1050.1F Desk Reference contains additional information on migratory birds, the Migratory Bird Treaty Act, and the Bald and Golden Eagle Protection.

One commenter suggested changing the environmental impact category for Biological Resources to include federally and state-protected species since there is no separate category to do so.

The environmental impact category, Biological Resources, includes federally and state-protected species without making the change to the title of the category. The significance threshold and factors to consider specifically mention federally and state-protected species. The Biological Resources environmental impact category chapter of the 1050.1F Desk Reference contains more information on how to analyze Biological impacts.

One commenter asked for clarification that Section 4(f) refers to Section 4(f) of the DOT Act.

The commenter is correct that references to Section 4(f) pertain to 49 U.S.C. 303, formerly Section 4(f), of the DOT Act of 1966. Due to the ubiquitous use of the term “Section 4(f)” in Federal jurisprudence, as well as practitioner familiarity with this terminology for the requirements codified at 49 U.S.C. 303, the FAA continues to refer to the statutory requirements as “Section 4(f)” requirements. Please see the footnote in Paragraph 2-3.2 of the Order.

Paragraph 4-2. Consideration of Impacts

Paragraph 4-2.b. FAA-Approved Models

One commenter asked the FAA to clarify if AEE must approve all input files used for analysis. Clarifying this issue would be helpful in developing NEPA document preparation schedules.

AEE does not need to approve standard input files when the FAA-approved models are used. However, AEE approval is required for non-standard input files, models, and methodologies. All input files, regardless of the model used, should be provided to the responsible FAA official for informational purposes. Appendix B of the Order provides more detailed instructions. The text in Paragraph 4-2.b regarding the FAA-approved models

has been modified to provide better clarity.

One commenter asked for additional information on the use of non-FAA approved models. For example, not all FAA tools will evaluate various impacts at airports from an air quality perspective. Thus, there are specific circumstances where projects in any state/location must use a non-FAA model.

The 1050.1F Desk Reference provides information on when an FAA-approved model must be used and the situations in which approval for use of other models would be required for both noise and air quality.

One commenter stated that without being able to review the Desk Reference, they are unclear if the FAA is improving the guidance about acceptable tools for various efforts. Since all technical environmental category detail is deferred to the 1050.1F Desk Reference, this material should also be deferred, as it is without context.

The FAA recognizes the public's interest in reviewing the 1050.1F Desk Reference with Order 1050.1F. However, the purpose of this section is to outline the requirement that an FAA-approved model must be used for both air quality and noise analysis. We have retained the information for the FAA-approved models within the Desk Reference to allow for updates as new versions of the models are available.

Although the FAA is not providing a formal comment period on the 1050.1F Desk Reference, the users of this desk reference can submit comments on it through the FAA Web site at
http://www.faa.gov/about/office_org/headquarters_offices/apl/environ_policy_guidance/policy/draft_faa_order/
. These comments will be reviewed and incorporated into the 1050.1F Desk Reference on an ongoing basis, as needed.

Paragraph 4-2.c. Environmental Impact Category Not Affected

Two commenters asked for clarity on what should be documented when an environmental impact category is not affected.

When an environmental impact category is not relevant to the proposed action, the reason why it is not relevant should be specified and no additional analysis is required. This could be a simple statement that the environmental impact category is not present or an explanation why a proposed project would not impact a specific resource. The Order has been revised to clarify that “the reason why the impact category is not relevant” should be briefly noted.

Paragraph 4-2.d. Types of Impacts

One commenter requested a definition for “reasonably foreseeable action” such as provided in FAA Order 5050.4B Paragraph 9.q.

The definition of “reasonably foreseeable action” provided in FAA Order 5050.4B is specifically tailored to airport improvement projects and the type of considerations that are unique to those actions. Application of the definition of “reasonably foreseeable action” from FAA Order 5050.4B to actions that do not resemble airport improvement actions and the unique nature of such actions would therefore not be appropriate in Order 1050.1F.

The FAA has decided not to create a separate, broadly applicable definition of “reasonably foreseeable action” in Order 1050.1F. Because Order 1050.1F is applicable agency-wide, its terms and requirements must be sufficiently broad to appropriately address the wide variety of actions taken by LOB/SOs within the agency. The definition of a reasonably foreseeable action may vary based on the nature of the action being undertaken, and the FAA has determined that reasonably foreseeable actions are best identified within the context of the individual projects being examined by the relevant office.

To assist NEPA practitioners in determining on a case-by-case basis what actions are reasonably foreseeable, the FAA has provided guidance in the 1050.1F Desk Reference under the cumulative impacts section regarding reasonably foreseeable actions. Finally, as stated earlier, Order 5050.4B will continue to apply to Office of Airports actions and will be updated to include any changes needed to conform to Order 1050.1F.

Paragraph 4-2.f. Special Purpose Laws and Requirements

One commenter asked whether applicants have to summarize/note what permits are required or whether they must provide the materials to support the permit/license (i.e., complete a permit application/license).

An EA or EIS should include information required to demonstrate compliance with other applicable requirements and should identify any permits, licenses, other approvals, or reviews that apply to the proposed action and indicate any known problems with obtaining them. The EA or EIS must report on any special consultation required. The EA or EIS does not have to contain a complete permit application or license application. Paragraph 4-2.f has been modified to clarify the requirements.

Paragraph 4-3.2 Context and Intensity

One commenter asked for clarification on whether highly controversial in the seventh bullet under context and intensity means highly controversial for any reason or highly controversial on environmental grounds.

The referenced bullet in Paragraph 4-3.2 describes the contents of Section 1508.27(b)(4) of the CEQ Regulations, which lists “[t]he degree to which the effects on the quality of the human environment are likely to be highly controversial” as a factor that should be considered in evaluating the intensity of environmental impacts. Judicial interpretations of this regulatory provision are consistent with the definition of “highly controversial on environmental grounds” in Paragraph 5-2.b(10), which was edited for clarity in the final Order. The FAA has not added “on environmental grounds” after “highly controversial” in Paragraph 4-3.2 because that phrase does not appear in Section 1508.27(b)(4) of the CEQ Regulations.

Exhibit 4-1. Significance Determination for FAA Actions

One commenter wanted confirmation that the significance thresholds and factors to consider have not changed, except for the two instances indicated.

The FAA has made three substantive changes to the significance thresholds and factors to consider from Order 1050.1E, Appendix A. Two were identified in Paragraph 1-10 of the draft Order 1050.1F. In addition, the FAA has clarified that the Air Quality significance threshold includes instances where the action would increase the frequency or severity of an existing air quality standard violation.

The significance thr

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2015-18084. Public record. Not legal advice.