[Federal Register Volume 70, Number 243 (Tuesday, December 20, 2005)]
[Notices]
[Pages 75529-75532]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-24132]


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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

[Docket No. FAA 2005 22020]


Environmental Impacts: Policies and Procedures

AGENCY: Federal Aviation Administration, DOT.

ACTION: Notice; request for comment.

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SUMMARY: The Federal Aviation Administration (FAA) proposes to revise 
its procedures for implementing the National Environmental Policy Act, 
Order 1050.1E, Environmental Impacts: Policies and Procedures, with 
proposed Order 1050.1E, Change 1. The revisions in proposed Order 
1050.1E, Change 1, include: Changes for clarification; changes for 
consistency; a change for addition of information; corrections; 
editorial changes, and the addition of Categorical Exclusion 311f for 
prohibited areas. This notices provides the public opportunity to 
comment on the proposed changes. All comments on the proposed changes 
will be considered in preparing the final version of FAA Order 1050.1E, 
Change 1.

DATES: Comments must be received on or before January 19, 2005.

ADDRESSES: Comments should be mailed, in triplicate, to the Federal 
Aviation Administration (FAA) Office of the Chief Counsel, Attn: Rules 
Docket (AGC-200), Docket No. FAA 2005 22020, 800 Independence Avenue, 
SW., Room 915G, Washington, DC 20591. Comments may be inspected in Room 
915G between 8:30 a.m. and 5 p.m., weekdays except Federal Holidays.
    Commenters who wish the FAA to acknowledge the receipt of their 
comments must submit with their comments a self-addressed, stamped 
postcard on which the following statement is made: ``Comments to Docket 
No. FAA 2005 22020.'' The postcard will be dated-stamped by the FAA and 
returned to the commenter.

SUPPLEMENTARY INFORMATION: The National Environmental Policy Act (NEPA) 
and implementing regulations promulgated by the Council on 
Environmental Quality (CEQ) (40 CFR parts 1500-1508) establish a broad 
national policy to protect the quality of the human environment and 
provide policies and goals to ensure that environmental considerations 
and associated public concerns are given careful attention and 
appropriate weight in all decisions of the Federal Government. Section 
102(2) of NEPA and 40 CFR 1505.1 require Federal agencies to develop 
and, as needed, revise implementing procedures consistent with the CEQ 
regulations. The FAA's current Order 1050.1E, Environmental Impacts: 
Policies and Procedures, provides FAA's policy and procedures for 
complying with the requirements of: (a) The CEQ regulations for 
implementing the procedural provisions of NEPA; (b) Department of 
Transportation (DOT) Order DOT 5610.1C, Procedures for Considering 
Environmental Impacts, and (c) other applicable environmental laws, 
regulations, and executive orders and policies. The FAA is proposing to 
amend Order 1050.1E with Order 1050.1E, Change 1.

Request for Comment

    As part of revising its environmental order, the FAA is seeking 
public comment regarding the proposed changes as described in the 
following synopsis of changes.

Synopsis of Proposed Changes

    The proposed FAA Order 1050.1E, Change 1, Environmental Impacts: 
Policies and Procedures, includes additions or changes to the current 
version of FAA Order 1050.1E which may be of interest to the public and 
other government agencies and organizations. The revised Order 1050.1E, 
Change 1, would institute changes in the following chapters and 
sections of Appendices A and C. Changes are shown by italic text.

Chapter 3. Advisory and Emergency Actions and Categorical Exclusions

    (1) Ch. 3, Para 301c: Change for clarification. The category of 
``warning areas'' has been added to the list of advisory actions. FAA 
regulations define ``warning area'' as airspace of defined dimensions, 
extending from 3 nautical miles outward from the coast of the United 
States, that contain activity that may be hazardous to nonparticipating 
aircraft. (see 14 CFR Sec.  1.1). The purpose of a warning area is to 
warn nonparticipating pilots of the potential danger. Designation of a 
warning area is not necessary for the hazardous activity to occur. 
Therefore, the FAA is proposing to classify designation of warning 
areas, like designation of alert areas, as an advisory action.
    301c. Designation of alerts areas and warning areas under FAA Order 
7400.2, Procedures for Handling Airspace Matters.
    (2) Ch. 3, Para. 304c: Change for clarification. The paragraph was 
revised to include coastal zones in the list of

[[Page 75530]]

examples of a natural, ecological, or scenic resource.
    304c. An impact on natural, ecological (e.g., invasive species), or 
scenic resources of Federal, Tribal, State, or local significance (for 
example: Federally listed or proposed endangered, threatened, or 
candidate species or designated or proposed critical habitat under the 
Endangered Species Act); resources protected by the Fish and Wildlife 
Coordination Act; wetlands; floodplains; coastal zones; prime, unique, 
State or locally important farmlands; energy supply and natural 
resources; and wild and scenic rivers, including study or eligible 
river segments and solid waste management.
    (3) Ch. 3, Para. 309c: Editorial Change. The word ``system'' was 
removed following the word ``ILS'' in line 11. The word was removed 
because it was duplicative. The sentence now reads ``* * * 
(establishment or relocation of an ILS is not included * * *''.
    309c. Federal financial assistance for, or ALP approval of, or FAA 
installation or upgrade of facilities and equipment, other than radars, 
on designated airport or FAA property or launch facility. Facilities 
and equipment means FAA communications, navigation, surveillance and 
weather systems. Weather systems include hygrothermometers, Automated 
Weather Observing System (AWOS), Automatic Surface Observation System 
(ASOS), Stand Alone Weather Sensors (SAWS), Runway Visual Range (RVR), 
other essentially similar facilities and equipment that provides for 
modernization or enhancement of the service provided by these 
facilities. Navigational aids include Very High Frequency 
Omnidirectional Range (VOR), VOR Test facility (VOT), co-located VOR's 
and Tactical Aircraft Control and Navigation (TACAN) (VORTAC), Low 
Power TACAN, Instrument Landing System (ILS) equipment or components of 
ILS equipment (establishment or relocation of an ILS is not included; 
an EA is normally required; see paragraph 401i), Wide Area Augmentation 
System (WAAS), Local Area Augmentation System (LAAS), other essentially 
similar facilities and equipment, and equipment that provides for 
modernization or enhancement of the service provided by that facility, 
such as conversion of VOR to VORTAC or conversion to Doppler VOR 
(DVOR), or conversion of ILS to category II or III standards. FAA Order 
6820.10 ``VOR, VOR/DME, and TACAN Siting Criteria'' governs the 
installation of VOR/VOT/VORTAC-type equipment. These facilities are 
typically located within a 150 ft. x 150 ft parcel, with a total 
structure height reaching approximately 50-ft in height. (ATO, APP, 
AST)
    (4) Ch. 3, Para. 311f: Addition of Categorical Exclusion (CATEX) 
311f., Establishment or modification of prohibited areas. In its 
initial notice concerning Order 1050.1E, the FAA proposed a CATEX for 
the ``[e]stablishment or modification of Special Use Airspace (SUA), 
(e.g., restricted areas, warning areas), and military training routes 
for subsonic operations that have a base altitude of 3,000 feet above 
ground level (AGL), or higher.'' In the preamble to the final Order 
1050.1E, the FAA announced that it was removing this CATEX for further 
study. For the reasons given below, the FAA is now proposing a separate 
CATEX for prohibited areas, a type of SUA.
    Prohibited areas are airspace designated under 14 CFR part 73 
within which no person may operate an aircraft without permission of 
the using agency (see 14 CFR 1.1). The FAA establishes prohibited areas 
when necessary to prohibit flight over an area on the surface in the 
interest of national security or welfare. It is possible that the 
establishment or modification of a prohibited area could necessitate a 
revision of air traffic control procedures. However, such a revision 
generally would only affect aircraft operating under instrument flight 
rules over 3,000 feet AGL unless they are arriving or departing within 
an airport environment. Prohibited areas are not normally established 
within the airport environment. Revised air traffic control procedures 
at 3,000 feet or more AGL are already covered by the CATEX in paragraph 
311i of Order 1050.1E, as are procedures below 3,000 feet AGL that do 
not cause air traffic to be routinely routed over noise sensitive 
areas. The proposed CATEX below incorporates relevant language from the 
existing CATEX in paragraph 311i.
    311f. Establishment or modification of prohibited areas, unless the 
establishment or modification would affect instrument procedures 
conducted below 3,000 feet AGL that cause air traffic to be routinely 
routed over noise sensitive areas. (ATO)
    (5) Ch. 4, Para 401p: Change for clarification. Text was added to 
the paragraph to clarify the types of SUA actions that are subject to 
environmental review.
    401p. Special Use Airspace (unless otherwise explicitly listed as 
an advisory action or categorically excluded under Chapter 3 of this 
Order). This airspace shall not be designated, established, or modified 
until:
    (6) Ch. 4, Para 401p.(5): Change for clarification. Text was added 
to the paragraph to differentiate between temporary and permanent 
changes to SUA and to be consistent with categorical exclusion 307e. 
Permanent changes to SUA normally require an EA. Temporary changes 
(e.g., temporary military operations area (MOA)) are established by 
issuing a Notice to Airman (NOTAM). NOTAMs are categorically excluded 
actions under Paragraph 307e.
    (5) The provisions of p(1)-(4) of this paragraph are not applicable 
to special use airspace actions if minor adjustments are made such as 
raising the altitudes; if a change is made in the designation of the 
controlling or using agency; or if the special use airspace action is 
temporary in nature and does not exceed 90 days (e.g., temporary 
military operations area (MOA)).
    (7) Ch. 4, Para 404e: Change for consistency. Two sentences would 
be revised to change ``should'' to ``shall'' and ``coordinated'' to 
``reviewed'' to be consistent with Para. 406c. The sentences now read 
``For projects that originate in or are approved at FAA headquarters, 
the EA and FONSI should be coordinated with AGC for legal sufficiency. 
For projects that originate in and are approved by the regions, the EA 
and FONSI should be reviewed by Regional Counsel''.
    404e. Internal review of the EA is conducted by potentially 
affected FAA program offices having an interest in the proposed action 
to assure that all FAA concerns have been addressed technically, and 
with AGC or Regional Counsel to assure that the EA is legally 
sufficient. For projects that originate in or are approved at FAA 
headquarters, the EA and FONSI shall be reviewed by AGC for legal 
sufficiency. For projects that originate in and are approved by the 
regions, the EA and FONSI shall be reviewed by Regional Counsel. The 
responsible FAA official should contact the program offices to 
determine appropriate levels of coordination. The responsible FAA 
official should consult with AEE (AEE-200) for general advice on 
compliance with NEPA and other applicable environmental laws, 
regulations, and executive orders, especially for actions of national 
importance or which are highly controversial.
    (8) Ch. 5, Para 506b: Change for consistency with CEQ regulations. 
As written, the text appears to require that the environmentally 
preferred alternative be identified in the EIS's Executive Summary. CEQ 
regulations encourage, but do not require identification of the 
environmentally

[[Page 75531]]

preferred alternative until the ROD is prepared. The words ``identifies 
any environmentally preferred'' have been removed from line 6 and the 
underlined text had been added.
    506b. Executive Summary. An executive summary will be included to 
adequately and accurately summarize the EIS. The summary describes the 
proposed action, stresses the major conclusions, areas of controversy 
(including issues raised by agencies and the public), and the issues to 
be resolved (including the choice among alternatives). It also 
discusses major environmental considerations and how these have been 
addressed; summarizes the analysis of alternatives; and agency 
preferred and sponsor preferred alternatives. If the agency has 
identified an environmentally preferred alternative, it may also be 
included. It discusses mitigation measures, including planning and 
design to avoid or minimize impacts. It identifies interested agencies, 
lists permits, licenses, and other approvals that must be obtained, and 
reflects compliance with other applicable environmental laws, 
regulations and executive orders.
    (9) Ch. 5, Para 506e: Change for consistency with CEQ regulations. 
Two sentences were removed and two sentences were modified to be 
consistent with CEQ regulation, 40 CFR 1505.2(b) regarding the timing 
of the identification of the environmentally preferred alternative. 
This paragraph now requires that the environmentally preferred 
alternative be identified in the EIS. However, federal agencies are not 
required under the CEQ regulations to discuss the environmentally 
preferred alternative until the record of decision. If an 
environmentally preferred alternative is known to the agency before the 
ROD, it can be disclosed at that time.
    506e. This section is the heart of the EIS (see 40 CFR 1502.14; see 
also 40 CFR 1502.10(e) and 40 CFR 1505.2 for more information on 
alternatives). It presents a comparative analysis of the no action 
alternative, the proposed action and other reasonable alternatives to 
fulfill the purpose and need for the action. Although CEQ encourages 
Federal agencies to identify the environmentally preferred alternatives 
in the EIS (see CEQs ``40 Most Asked Questions,'' number 6), CEQ 
regulations do not require that discussion until the ROD. Reasonable 
alternatives not within the jurisdiction of the lead agency should be 
considered (see 40 CFR 1502.14(c)). The FAA may include alternatives 
proposed by the public or another agency. However, they must meet the 
basic criteria for any alternative: It must be reasonable, feasible, 
and achieve the project's purpose. The extent of active participation 
in the NEPA process by the proponent of the alternative also bears on 
the extent to which a proffered alternative deserves consideration. To 
provide a clear basis of choice amongst the alternatives, graphic or 
tabular presentation of the comparative impact is recommended. This 
section also presents a brief discussion of alternatives that were not 
considered reasonable due to their inadequacy in meeting the purpose 
and need for the proposed action. The FEIS must specifically and 
individually identify the preferred alternative. Criteria other than 
those included in the affected environment and environmental 
consequences section of the EIS may be applied to identify the 
preferred alternative.
    (10) Ch. 5, Para 512: Change for consistency CEQ regulations. A 
phrase was inserted indicating that the ROD must identify all 
alternatives considered, including the environmentally preferred 
alternative.
    5.12. Following the time periods described in 40 CFR 1506.10 (i.e., 
90 days from DEIS Notice of Availability (NOA) issuance and 30 day 
waiting period for FEIS NOA issuance), the agency's decisionmaker may 
make a decision on the Federal action. The ROD presents the agency's 
decision on the actions, identifies all alternatives considered by the 
agency, specifying which alternatives were considered to be 
environmentally preferable, identifies applicable mitigation and 
monitoring actions required, and as necessary, can be used to clarify 
and respond to issues raised on the FEIS. The ROD may discuss 
preferences among alternatives based on relevant factors including 
economic and technical considerations and agency statutory missions. 
The ROD shall identify and discuss all factors including any essential 
consideration and national policies that were balanced by the agency in 
making its decision and state how those considerations entered into the 
decision. The ROD shall state whether all practicable means to avoid or 
minimize environmental harm from the alternatives selected have been 
adopted, and if not adopted, why they were not adopted. The draft ROD 
should accompany the proposed FEIS during the internal review prior to 
approval only when headquarters' concurrence is required. The 
decisionmaker must obtain concurrence before approving the ROD. After 
approving the ROD, the decisionmaker may begin implementing the 
selected action. Figure 5-4, Record of Decision Overview, presents an 
overview of the components of a ROD.
    (11) Ch. 5, text box on page 5-16: Change for clarification. The 
phrase ``for the first time'' was inserted.
    FAA encourages all interested parties to provide comments 
concerning the scope and content of the Draft EIS. Comments should be 
as specific as possible and address the analysis of potential 
environmental impacts and the adequacy of the proposed action or merits 
of alternatives and the mitigation being considered. Reviewers should 
organize their participation so that it is meaningful and makes the 
agency aware of the viewer's interests and concerns using quotations 
and other specific references to the text of the Draft EIS and related 
documents. Matters that could have been raised with specifically during 
the comment period on the Draft EIS may not be considered if they are 
raised for the first time later in the decision process. This 
commenting procedure is intended to ensure that substantive comments 
and concerns are made available to the FAA in a timely manner so that 
the FAA has an opportunity to address them.
    (12) Ch. 5, Para. 509a.(1) and (4): Change for consistency with AEE 
policy. Both paragraphs indicate that an FEIS originating in 
Headquarters (1) and regions (4) should be forwarded to the Office of 
Environment and Energy (AEE) for review and concurrence. As a matter of 
policy, AEE does not review FEISs, most of which are sent to AEE for 
information only. AEE does not review and concur unless AEE is 
specifically requested to review and concur on a document for a 
specific purpose. Both paragraphs have been revised to reflect this 
policy.
    509a. Internal review is coordinated as follows:
    (1) FEIS's originating in headquarters. The office or service 
director shall send a copy of the FEIS to AGC to review for legal 
sufficiency and concurrence. The responsible office or service director 
will send a copy of the FEIS to AEE for information unless review and 
concurrence are specifically requested. After the office or service 
director approves the FEIS, the responsible FAA official will file it 
with EPA (see paragraphs 509a(6) and 512).
    (4) FEIS's originating in regions or centers, but where authority 
to approve the FEIS is retained in headquarters. The applicable 
division manager or center shall send the proposed FEIS to the 
appropriate headquarters' office or service director. The office or 
service will provide the FEIS to AGC for review. The office or service 
director will provide the FEIS to AEE for information

[[Page 75532]]

unless review is specifically requested. Following approval, the FEIS 
will be filed with EPA. Presently, approval for these types of FEIS's 
is being delegated, if comments on the DEIS have been incorporated. 
(See paragraph 507.)
    (13) Appendix A, Section 3. Coastal Resources: Change for 
correction. Paragraph 3.2b.(2) was revised to clarify what should be 
included concerning coastal zone consistency in an EA or EIS for a 
direct Federal action, e.g. an activity that the FAA itself is 
undertaking such as establishment of a navigational aid. Title 16 
U.S.C. 1456(e)(2), states that the CZMA shall not be construed to 
supersede laws applicable to Federal agencies. Title 15 CFR 930.32(a) 
further provides that a Federal agency may determine that full 
consistency with the policies of a management program is prohibited by 
existing law applicable to the agency.
    3.2b. CZMA. When a proposed action affects (changes the manner of 
use or quality of land, water or other coastal resources, or limits the 
range of their uses) the coastal zone in a State with an approved 
coastal zone management (CZM) program, the EA or EIS shall include the 
following:
    (2) For activities that the FAA itself undertakes, the EA or EIS 
should include the same information listed above for federally assisted 
activities. If the State or local agency that administers the CZM 
program objects to the consistency determination, then the FAA may 
proceed with the federal activity only if the FAA determines that full 
consistency is prohibited by existing laws specifically applicable to 
the agency, such as aviation laws. In such a case, the EA or EIS should 
further state that the FAA provided the State or local agency with a 
written statement clearly describing the statutory provisions, 
legislative history, or other legal authority that limits the FAA's 
discretion to be fully consistent with the enforceable policies of the 
CZM program.
    (14) Appendix A, Section 6. Department of Transportation Act, 
Section 4(f): Change for correction. Paragraph 6.1a. is being revised 
to correct a misstatement regarding the legislative history of 49 
U.S.C. 303(c). Section 4(f) was not recodified and renumbered as part 
of the 1994 recodification of aviation statutes.
    6.1a. The Federal statute that governs impacts in this category is 
commonly known as the Department of Transportation (DOT) Act, section 
4(f) provisions. Section 4(f) of the DOT Act, which is codified and 
numbered as section 303(c) of 49 U.S.C., provides that the Secretary of 
Transportation will not approve any program or project that requires 
the use of any publicly owned land from a public park, recreation area, 
or wildlife and waterfowl refuge of national, State, or local 
significance or land from a historic site of national, State, or local 
significance as determined by the officials having jurisdiction 
thereof, unless there is no feasible and prudent alternative to the use 
of such land and such program, and the project includes all possible 
planning to minimize harm resulting from the use. This order continues 
to refer to section 4(f) because it would create needless confusion to 
do otherwise; the policies section 4(f) engendered are widely referred 
to as ``section 4(f)'' matters.
    (15) Appendix A, Section 9. Floodplains: Change for clarification. 
Currently paragraphs 9.2c and 9.2g contain the same extensive 
notification requirements for both encroachments and significant 
encroachments. DOT Order 5650.2 paragraph 7 makes a distinction between 
notification requirements for encroachments and significant 
encroachments. Paragraph 9.2c is being revised to clarify the 
distinction between the notification requirements for encroachments and 
significant encroachments.
    9.2c. If the agency finds that the only practicable alternative 
requires siting in the base floodplain, a floodplain encroachment would 
occur and further environmental analysis is needed. The FAA shall, 
prior to taking the action, design or modify the proposed action to 
minimize potential harm to natural floodplain values or within the base 
floodplain. The action is to be consistent with regulations issued 
according to section 2(d) of E.O. 11988. The FAA shall also provide the 
public with an opportunity to review the encroachment through its 
public involvement process and any public hearing presentations shall 
include identification of encroachments.
    (16) Appendix A, Section 10. Hazardous Material, Pollution 
Prevention, and Solid Waste: Change for correction and consistency. 
Paragraph 10.1d (2). The definition of hazardous waste under the 
Resource Conservation and Recovery Act (RCRA) is slightly different 
than that in EPA regulation 40 CFR 261.1. Paragraph 10.1d(2) referenced 
both definitions. FAA uses the EPA regulatory definition for purposes 
of NEPA compliance so we propose to delete the reference to the RCRA 
definition.
    (2) Hazardous Waste--a waste is considered hazardous if it is 
listed in, or meets the characteristics described in 40 CFR part 261, 
including ignitability, corrosivity, reactivity, or toxicity.
    (17) Appendix A, Section 11. Historical, Architectural, 
Archeological, and Cultural Resources: Change for clarification. 
Paragraph 11.2b. was revised to remove contradictory language. The 
beginning of the sentence indicated that identifying the area of 
potential effect (APE) was only required if the undertaking may have an 
adverse effect. The beginning of the sentence, ``If an undertaking may 
have an adverse effect,'' has been deleted.
    11.2b. Determination of Undertaking. The responsible FAA official 
determines whether the proposed action is an ``undertaking,'' as 
defined in 36 CFR 800.16(y) (and not an undertaking that is merely 
subject to State or local regulation administered pursuant to a 
delegation or approval by a Federal agency), and whether it is a type 
of activity that has the potential to cause adverse effects on historic 
properties eligible for or listed on the NRHP. If the agency 
determines, and the SHPO/THPO does not object, that an undertaking does 
not have the potential to have an effect on historic properties, a 
historical or cultural resource survey is not necessary and the FAA may 
issue a determination that the action has no effect. The first step is 
to identify the area of potential effect (APE) and the historical or 
cultural resources within it (see Secretary's Standards and Guidelines 
for Identification).
    (18) Appendix C, Figure 3. Related Memoranda and Guidance: Change 
for correction. The date of the Memorandum of Understanding between the 
FAA and the Department of Defense was updated. The description of the 
Memorandum was also revised to more accurately describe the document.

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           Memoranda &  guidance                     Description
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Memorandum of Understanding (MOU) between   Addresses environmental
 the FAA and the Department of Defense,      review of special use
 October 4, 2005.                            airspace actions.
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    Issued in, Washington, DC December 12, 2005.
Carl E. Burleson,
Federal Aviation Administration, Director, Office of Environment and 
Energy.
[FR Doc. 05-24132 Filed 12-19-05; 8:45 am]
BILLING CODE 4910-13-M