[Federal Register Volume 71, Number 96 (Thursday, May 18, 2006)]
[Notices]
[Pages 29014-29055]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-4527]



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Part III





Department of Transportation





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Federal Aviation Administration



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

  Federal Register / Vol. 71, No. 96 / Thursday, May 18, 2006 / 
Notices  

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

[Docket No. FAA-2004-19058; FAA Order 5050.4B]


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

AGENCY: Federal Aviation Administration, DOT.

ACTION: Notice of publication of the Preamble to Order 5050.4B.

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SUMMARY: The Federal Aviation Administration's Office of Airports (ARP) 
is responsible for reviewing and deciding on projects airport sponsors 
propose for public-use airports. ARP revised its National Environmental 
Policy Act (NEPA) implementing instructions for those airport projects 
under its authority and placed those instructions in Order 5050.4B, 
National Environmental Policy Act (NEPA) Implementing Instructions for 
Airport Actions. The Order's effective date was April 28, 2006.\1\
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    \1\ The Order and Preamble are available electronically at ARP's 
Web site, http://www.faa.gov/airports_airtraffic/airports.
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    ARP announced the availability of that Order and its Preamble in 
the April 28, 2006, Federal Register (71 FR 25279). There, ARP noted 
that it would publish the text of the Preamble in the Federal Register 
shortly after the April 28th Notice of Availability. Today's 
publication of this document satisfies ARP's commitment to publish the 
Preamble in the Federal Register.
    The Preamble presents a summary of the major changes ARP has 
included in Order 5050.4B . The Preamble also discusses the many 
changes and additions ARP has made in response to comments on draft 
Order 5050.4B that ARP published in the December 16, 2004, version of 
the Federal Register (69 FR 75374). The Preamble also discusses other 
changes ARP judged necessary since publishing the draft Order.
    Order 1050.1E Environmental Impacts: Policies and Procedures sets 
FAA's agency-wide environmental protocol. Order 5050.4B supplements 
Order 1050.1E by providing NEPA instructions especially for proposed 
Federal actions to support airport development projects. Order 5050.4B 
follows the Council on Environmental Quality's (CEQ's) NEPA 
implementing regulations at 40 CFR 1500--1508. It also follows DOT's 
Order 5610.C, Policies for Considering Environmental Impacts, and FAA 
Order 1050.1E.
    ARP has made Order 5050.4B as consistent with FAA Order 1050.1E as 
possible. Users of Order 5050.4B must interpret it in a manner 
consistent with FAA Order 1050.1E. Exceptions to this rule apply to 
internal FAA coordination and review of environmental documents. For 
those actions, users follow the instructions in Order 5050.4B. If 
specific questions about the instructions in Orders 1050.1E and 5050.4B 
arise, users should call the contact person noted below for 
clarification. The contact will notify FAA's Office of Environment and 
Energy (AEE), the FAA organization responsible for developing general 
NEPA procedures for all FAA organizations, about identified conflicts. 
This will provide a transparent system to resolve legitimate conflicts 
and ensure NEPA conformity within all FAA organizations.
    Cancellation: Order 5050.4B, replaces Order 5050.4A, Airports 
Environmental Handbook, dated October 8, 1985.

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

FOR FURTHER INFORMATION CONTACT: Please e-mail or call: Mr. Ed Melisky 
([email protected]), Environmental Specialist, Federal Aviation 
Administration, Office of Airport Planning and Programming (APP-400), 
800 Independence Avenue, SW., Washington, DC 20591; telephone (202) 
267-5869; fax (202) 267-8821.

SUPPLEMENTARY INFORMATION: The National Environmental Policy Act (NEPA) 
and CEQ's regulations implementing NEPA provide Federal agencies with 
instructions on protecting the quality of the human and natural 
environments. NEPA and its implementing regulations require Federal 
agencies to carefully evaluate and consider the environmental effects 
of actions under their respective authorities before the agencies make 
decisions on those actions.
    Section 102(B) of NEPA requires Federal agencies, in consultation 
with CEQ, to develop procedures to carry out NEPA and CEQ's regulations 
for activities under the agencies' respective purviews. Although FAA 
Order 1050.1E presents FAA's agency-wide instructions to complete the 
NEPA process, ARP is issuing Order 5050.4B to supplement those 
instructions. ARP has traditionally published Order 5050 to provide 
detailed NEPA instructions specific to airport actions under its 
authority. Readers wanting to know how other FAA organizations address 
NEPA requirements for non-airport projects should see FAA Order 
1050.1E.
    As noted earlier, Order 5050.4B replaces Order 5050.4A dated 
October 8, 1985. That Order served FAA personnel, airport sponsors, 
airport consultants, Federal, State, local, and tribal governments and 
the public well for over 20 years. However, changes in Federal laws and 
regulations, FAA policies and procedures (i.e., Order 1050.1E), and 
evolving environmental processing and evaluation for airports occurring 
since 1985 signaled the need to issue Order 5050.4B.
    Distribution: ARP is distributing this Order to ARP personnel and 
other interested parties by electronic means only. ARP has placed this 
Order for viewing and downloading at its Web site.\2\ Anyone without 
access to the Internet may obtain a compact disk (CD) containing the 
Order. Please make that request to the Federal Aviation Administration, 
Office of Airport Planning and Programming (APP-1), 800 Independence 
Avenue, SW., Washington, DC 20591. Those unable to use an electronic 
version of the Order, may obtain a photocopy of the Order by contacting 
FAA's rulemaking docket at: Federal Aviation Administration, Office of 
Chief Council, Attn: Rules Docket (AGC-200)--Docket No. FAA-2004-19058, 
800 Independence Avenue, SW., Washington, DC 20591.
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    \2\ http://www.faa.gov/airports_airtraffic/airports/resources/publications/orders/environmental_5050_4/.
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    Summary of changes: FAA Order 5050.4B includes information from the 
draft Order published in the Federal Register on December 16, 2004, and 
additions or changes to that draft. The re-organization and addition of 
material to respond to comments on that draft have caused changes to 
the Order's organization and chapter titles. Because of these 
organizational changes, this Preamble discusses comments referencing 
specific paragraphs in the draft Order, but ARP's responses refer to 
the final Order's revised paragraph and subparagraph numbering system. 
This Preamble presents a summary of the major changes to the draft 
Order that may be of interest to airport sponsors, the public, other 
governmental agencies and organizations. The Preamble also presents 
ARP's responses to public comments on draft Order 5050.4B.
    Major changes in final FAA Order 5050.4B: a. The Order deletes the 
summary of requirements and procedures under special purpose 
environmental laws, regulations, and executive orders outside NEPA. 
Order 5050.4A addressed these topics in paragraphs 47.e.(1) thru (20) 
and 85.a through t. Those paragraphs addressed various requirements 
protecting sensitive environmental resources such as wetlands, 
federally-listed endangered

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species, or historic properties. However, Order 5050.4B, Table 7-1 
keeps information from those paragraphs that ARP and commenters found 
helpful in determining impact intensity and the proper NEPA review. In 
addition, this information will help users integrate the review, 
analyses, and consultation requirements of applicable special purpose 
laws with NEPA requirements.
    ARP will issue a separate document entitled, Environmental Desk 
Reference for Federal Airport Actions (Desk Reference) to provide its 
staff and interested parties with information to integrate and comply 
with Federal environmental laws, regulations, and executive orders 
other than NEPA. ARP plans to issue the Desk Reference as soon as 
possible. Meanwhile, FAA personnel and other interested parties should 
use Appendix A in Order 1050.1E for guidance.
    ARP is making this change to address recommendations FAA received 
when it published a draft version of Order 1050.1E for comment. Some 
commenters recommended that FAA delete Appendix A of that Order to 
focus that document on NEPA's implementing instructions. ARP's review 
of NEPA implementing instructions published in the Federal Register 
during 2004 shows none of the six Federal agencies publishing NEPA 
instructions included substantial information about Federal 
environmental laws, regulations, or executive orders outside NEPA.
    ARP's removal of requirements outside NEPA from Order 5050.4B does 
not reflect a lack of FAA commitment to meet those requirements or 
absolve airport sponsors from complying with them. Compliance with 
those special purpose laws does not depend on their presence or absence 
in Order 5050.4B because many of them have their own compliance 
requirements. ARP will continue to integrate compliance with applicable 
environmental laws, regulations, and executive orders outside NEPA with 
its NEPA process to the fullest extent possible to streamline the 
overall environmental review process.
    b. When compared to the draft version of Order 5050.4B, ARP has 
made organizational changes to more logically and clearly present 
information about the NEPA process and how ARP implements it. Chapter 2 
of the final order focuses on special NEPA requirements and 
responsibilities for airport actions. Formerly, Chapter 5 (``Special 
Instructions'') presented that information, but ARP decided to place 
that information earlier in the Order. ARP made that change to provide 
an early alert to airport sponsors, ARP personnel, and State Block 
Grant Program (SBGP) participants about the NEPA process and each 
entity's responsibilities in that process. Presenting that information 
earlier in the Order ensures those responsible for airport actions pay 
close attention to the subsequent chapters and their contents to ensure 
efficient, effective NEPA processing. ARP deleted the instructions 
about airport and noise planning grants in paragraphs 500 and 501, 
which simply explained the categorical exclusions in Chapter 6. ARP has 
kept information on agency and Tribal consultation and participation in 
Chapter 3, but has created new Chapter 4 to highlight the need for 
public involvement. Formerly, public involvement information was a 
portion of Chapter 3.
    New Chapter 5 focuses on coordinating airport planning and the NEPA 
process. ARP includes that information to better promote coordination 
between airport planning and the NEPA process as CEQ regulations 
require. The draft Order devoted only one paragraph (paragraph 302.a) 
to this important topic. However, to promote streamlining and efficient 
analyses, Chapter 5 stresses the critical linkage between airport 
planning and the NEPA process. ARP based much of this chapter on 
valuable planning and environmental information in its Best Practices 
Web site \3\ and Advisory Circular 150/5070-6, Airport Master Plans. 
Revised Chapters 6 through 13 provide information on categorical 
exclusions (CATEXs), environmental assessments (EAs), environmental 
impact statements (EISs), and Records of Decision (RODs), respectively. 
Chapter 6 incorporates the information on CATEXs that appeared in 
Chapter 4 of the draft Order. Chapter 7 incorporates information on EAs 
the draft Order discussed in Chapter 4.
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    \3\ (http://www.faa.gov/arp/environmental/5054a/bestpractices.cfm)
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    Finally, Chapter 9 contains information on airport actions normally 
requiring an EIS. The chapter also discusses scoping and the EIS's 
purpose and content. Formerly, Chapters 4 and 10 of the draft Order 
provided that information. Finally, Chapter 15 of the final Order 
retains information on streamlining the environmental process for 
airport capacity enhancement projects at congested airports or airport 
safety and security projects that ``Vision 100--The Century of Aviation 
Re-Authorization Act of 2003'' (Vision 100) discusses.
    c. Order 5050.4B provides definitions for important terms used 
during ARP's NEPA analysis for actions at airports. Among other 
definitions, the Order provides definitions for the term ``approving 
FAA official'' and notes decisions for actions at airports are 
delegated to various personnel. This reflects requirements in FAA Order 
1100.154A, Delegation of Authority, dated June 1990, which notes the 
approving FAA official will vary due to the number of FAA organizations 
an airport action involves. Order 5050.4B also defines the term 
``Federal action'' and how it applies to actions under ARP's authority. 
Since publishing the draft Order, ARP has added definitions in 
paragraph 9 for the terms ``Environmental Management System'' and `` 
`NEPA-like' State or agencies.'' The Order also provides a revised, 
more comprehensive definition for the term ``reasonably foreseeable 
action.'' The definition, now at paragraph 9.q and presented in a short 
table, lists criteria for off-airport and on-airport actions. ARP 
developed this definition to help users better define ``reasonably 
foreseeable actions.'' The final Order also provides a revised 
definition for ``special purpose laws.'' The final Order at paragraph 
9.t, now lists all the laws, regulations, and executive orders 
comprising that term.
    d. Chapter 2 provides information on limits for conditional airport 
layout plan (ALP) approvals. Paragraph 202.c(4) (paragraph 505b(3) in 
the draft Order) has been revised to clarify that these limitations 
apply when a sponsor or its consultant is preparing an EA or FAA is 
preparing an EIS for a major airport development project. ARP limits 
such approvals to avoid the appearance that it is making decisions on 
proposed projects before it completes the required NEPA processes for 
those actions. ARP also modified paragraph 202c(4) to clarify that FAA 
may conduct and issue airspace determinations for those projects. The 
paragraph also clarifies that FAA may approve other actions at the same 
airport, provided those actions are independent of the actions that are 
the subjects of an EA or EIS being prepared.
    e. Paragraphs 202.d(1), (2), and (3) provide suggested language for 
conditional, unconditional, or mixed airport layout plan (ALP) approval 
letters, respectively. ARP added the ``mixed ALP approval'' to the 
final Order to address those situations where ARP reviews ALPs 
depicting short-term and long-term projects that are and are not ripe 
for decision, respectively.
    f. Paragraph 204 (paragraph 507 in the draft Order) discusses land 
acquisitions

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by airport sponsors during the EIS process. ARP notes that 40 CFR 
1506.1(a) and (b) state that, until a Federal agency issues its Record 
of Decision, neither the agency or the applicant may take an action 
concerning any proposal that would adversely affect environmental 
resources or limit the FAA's choice of reasonable alternatives.
    g. Paragraph 205 discusses FAA's roles and responsibilities under 
NEPA when an airport sponsor wishes to participate in a joint-use 
program or program to convert a military airfield to civilian use. 
Joint-use occurs when the sponsor shares use of an airport with the 
U.S. Department of Defense. In these instances, FAA normally will be a 
cooperating agency for NEPA purposes.
    h. Paragraph 208 (formerly paragraph 511 in the draft Order) 
provides instructions to the responsible FAA official on complying with 
Executive Order 12114, Environmental Effects Abroad of Major Federal 
Actions. The official must meet the Executive Order's requirements if 
NEPA analysis shows an airport action would cause a significant impact 
in a foreign land. Revised paragraph 208 includes the need for FAA to 
coordinate communications with the Department of State through the 
Department of Transportation's Office of Transportation Policy 
Development (P-100), per Order 1050.1E, paragraph 521f.
    i. Paragraph 209 (paragraph 513 in the draft Order) has been 
revised to distinguish between: (1) FAA grant funding for development 
of wildlife hazard management plans (WHMPs) and approval of those plans 
based on safety factors; and (2) subsequent FAA actions to support 
implementation of measures in those plans. The instructions for NEPA 
review associated with WHMPs are now similar to the instructions for 
NEPA review regarding airport noise compatibility planning. Paragraph 
303.b of draft Order 5050.4B noted that issuance of AIP grants for 
noise compatibility planning is categorically excluded under paragraph 
307n of Order 1050.1E. Paragraph 209a of the Order 5050.4B clarifies 
that the grant to fund the development of a WHMP or the approval of 
that plan normally qualifies for a categorical exclusion under Order 
1050.1E, paragraph 308e. Paragraph 209.b clarifies that airport layout 
plan approvals and/or approvals of grants for Federal funding to carry 
out measures in FAA approved WHMPs: (1) May qualify for a categorical 
exclusion; or (2) may require preparation of an environmental 
assessment or an environmental impact statement.
    j. Paragraphs 212.e and 303 provide information on complying with 
Executive Order 13175, Consultation and Coordination with Indian Tribal 
Governments. The paragraphs discuss the need for government-to-
government relations when a project may involve or affect federally-
recognized Tribes, their trust resources, or other rights. The 
paragraph also notes FAA personnel must follow FAA Order 1210.20, 
American Indian and Alaska Native Tribal Consultation Policy and 
Procedures when addressing issues with those Tribes.
    k. Paragraphs 210 through 214 provide detailed policies and 
procedures for FAA's State Block Grant Program (SBGP). ARP presents 
detailed guidance to fulfill a commitment FAA made in the Preamble to 
Order 1050.1E. Specifically, paragraph 210 of Order 5050.4B discusses 
the SBGP in general and the SBGP actions at non-primary airports that 
are the responsibilities of states participating in the SBGP. Paragraph 
211 notes that these duties include completing the environmental 
requirements ARP would have normally fulfilled for an airport-specific 
project and associated Federal actions if ARP had retained discretion 
over the use of SGBP funds. Under 49 U.S.C. 47128, states participating 
in the SBGP assume administrative responsibilities for all airport 
grant amounts available under Subchapter 1 of Chapter 471 (49 U.S.C. 
47101-47137) (the SBGP), except for amounts designated for use at 
primary airports. For purposes of paragraphs 210-214, Order 5050.4B 
distinguishes between apportionment of funds made available to the 
states under 49 U.S.C. 47114(d)(2) and (3) and discretionary funds 
awarded to airports under 49 U.S.C. 47115 and administered by states 
participating in the SBGP. Paragraph 212 notes that ARP does not have 
approval or funding authority for projects under the SBGP wholly funded 
through apportionments under 47114(d)(2) and (3). A state agency's 
assignment of SBGP money for specific airport actions to individual, 
non-primary airports is not a ``Federal action.'' Therefore, NEPA does 
not apply to those airport actions because FAA has no discretion over 
the use of the SBGP funds financing those actions. However, the 
paragraph notes that for policy reasons, ARP contractually requires 
states participating in the SBGP to fulfill the environmental duties 
ARP would have fulfilled if it had discretion over SBGP airport 
actions. This contractual commitment ensures that the participating 
states properly evaluate and consider the potential environmental 
impacts resulting from SBGP airport actions before deciding to fund 
those projects under the SBGP. Paragraph 212 further discusses how an 
SBGP agency must use this Order to prepare environmental documents for 
SBGP actions. Paragraphs 212.b and c note that contractual commitments 
under the SBGP depend on whether the participating state is subject to 
``NEPA-like'' or ``non-NEPA-like'' state environmental laws. Paragraph 
213 discusses the actions connected to SBGP airport actions that are 
outside the SBGP that remain under the authority of ARP or other FAA 
organizations. For those connected actions, the FAA organization having 
authority for the action outside the SBGP (e.g., installing radars, 
NAVAIDS, lighting systems, etc.) remains responsible for complying with 
NEPA and other applicable environmental laws pertaining to those 
actions. The paragraph also notes that ARP retains responsibility where 
the SBGP agency requests AIP discretionary funding to supplement SBGP 
funding for a specific airport project at a specific location. 
Paragraph 214 provides information on environmental documents needed 
for SBGP projects and their connected actions and SBGP and FAA 
organization NEPA responsibilities for those actions.
    l. As noted earlier, Chapter 4 is a new chapter on public 
participation. ARP includes it to highlight the importance of public 
participation in the NEPA process for airport actions. ARP decided to 
dedicate a chapter on this topic to make it easier to find instructions 
on this critical process. The draft Order inconveniently presented this 
information in different Chapters.
    m. ARP includes Chapter 5 in the Order to highlight the need to 
closely coordinate airport planning and the NEPA process. Doing so 
allows airport sponsors to plan their projects efficiently and 
facilitate FAA's subsequent evaluation of an airport plan's 
environmental effects. CEQ regulations tell agencies to integrate 
planning and NEPA as early as possible. This chapter underlines this 
requirement by alerting airport sponsors, their planners, and ARP 
personnel to it. It significantly expands upon the information included 
in paragraph 302 of the draft Order that addressed coordinating airport 
planning and NEPA. This interdisciplinary coordination is not intended 
to be a substitute for the NEPA process. Instead, it encourages 
planners to work with environmental specialists to identify sensitive 
environmental resources and consider alternative ways to avoid or 
reduce a project's

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environmental impacts early in the planning process when the greatest 
range of alternatives exists. If those alternatives do not exist, this 
coordination help ensure unavoidable environmental effects are 
justified and minimized as much as practical. The chapter adds 
paragraph 504d. The paragraph states that the range of alternatives FAA 
and the airport sponsor consider during airport planning may be limited 
to those actions within the sponsor's or FAA's purviews. This is 
different than the range of alternatives FAA considers during the NEPA 
process, since NEPA requires the lead Federal agency to examine 
alternatives that are outside the agency's jurisdiction. The chapter 
also discusses critical airport planning data for which the airport 
sponsor is responsible and the data's importance to effective and 
efficient environmental analyses. The chapter discusses key planning 
steps that help FAA and airport sponsors meet their responsibilities 
and streamline the planning and NEPA processes. ARP experience shows 
that failure to coordinate these processes causes delays in the 
preparing NEPA documents. Often, this is because important planning 
data needed to thoroughly evaluate environmental effects were not 
available when document preparation began.
    n. Chapter 6 of the Order includes information on airport actions 
that are normally categorically excluded (CATEXs). The draft Order 
addressed CATEXs in Chapters 4 and 6, but to improve document 
organization, the final Order places information on CATEXs in Chapter 
6. Tables 6-1 and 6-2 list those portions of the categorical exclusions 
in Order 1050.1E, paragraphs 307-312 discussing airport actions. Table 
6-1 lists the CATEXs rarely involving extraordinary circumstances, 
while those listed in Table 6-2 involve those circumstances more often. 
ARP personnel must use the citations from Order 1050.1E as 
authorizations for the CATEXs Tables 6-1 and 6-2 summarize.
    Table 6-1 does not add or alter any CATEXs. However, Table 6-2 
Order includes a new categorical exclusion addressing categorically 
excluded actions in non-jurisdictional wetlands and a CATEX addressing 
voluntary airport low emission equipment (VALE). ARP proposed those 
categorical exclusions in the December 16, 2004, Notice of Availability 
of draft Order 5050.4B. Based on comments it received on those issues, 
ARP has inserted information to address those activities in Table 6-2.
    Readers should recall that paragraph 310k of Order 1050.1E includes 
categorically excluded actions in jurisdictional wetlands qualifying 
for Corps of Engineers General Permits (GP). This is because the Corps 
issues GPs for the types of actions that do not normally cause 
significant environmental effects (i.e., categorical exclusions). The 
new entry in Table 6-2 addressing non-jurisdictional wetlands uses 
similar rationale. That entry focuses on those actions that are 
normally categorically excluded, but that are not covered by GPs 
because the actions would not involve jurisdictional wetlands. 
Nevertheless, by designing projects to meet GP design standards, ARP 
contends those projects would not normally cause significant 
environmental effects, provided there are no extraordinary 
circumstances. Therefore, the actions qualify as categorical 
exclusions.
    Turning to VALE, Table 6-2 includes actions addressing this 
equipment because paragraphs 309u, 310f, 310n, and 310u of Order 
1050.1E address many of the actions associated with installing 
facilities needed for VALE. See Comments Addressing Table 2 at the end 
of this Preamble for more information on categorically excluding VALE.
    Paragraph 603 emphasizes the need for airport sponsors to provide 
responsible FAA officials with specific environmental information when 
sponsors propose actions that may qualify for CATEXs. ARP highlights 
this step to encourage airport sponsors to collect information the 
responsible FAA official will need to review a potential CATEX. Doing 
so should quicken the responsible FAA official's review of a proposed 
CATEX because the sponsor's request comes to FAA with information the 
official needs to thoroughly review the proposed airport action. The 
paragraph also encourages sponsors to allot enough time in project 
schedules: to collect needed information; to verify that the sponsor or 
FAA, as appropriate, has complied with special purpose laws related to 
any potential extraordinary circumstances; and to enable the 
responsible FAA official to complete a timely review of the proposed 
action.
    Table 6-3 alphabetically lists and annotates the extraordinary 
circumstances that FAA Order 1050.1E, paragraph 304 presents. Readers 
should note that ARP has added a footnote to this table defining the 
terms, ``dividing'' and ``disrupting'' communities. ARP did this to 
address many questions it received on these terms as they relate to 
airport-induced community impacts. The Order also provides instructions 
on special purpose laws and their relationships to extraordinary 
circumstances when determining if an action may be categorically 
excluded. Paragraph 606.b provides details on how the responsible FAA 
official must address extraordinary circumstances involving special 
purpose laws. Paragraph 607 highlights required and optional 
documentation for CATEXs with extraordinary circumstances that involve 
special purpose laws. The paragraph notes that FAA requires specific 
documentation before it issues a CATEX for a proposed action that 
possibly involves extraordinary circumstances associated with one or 
more applicable special purpose laws. That documentation is helpful in 
determining the level NEPA review, but it is not for NEPA purposes. 
Rather, it shows compliance with the applicable special purpose law. 
Paragraph 607 also tells the responsible FAA official to ensure that 
case files for CATEXs involving special purpose laws include 
documentation to show FAA has complied with the special purpose laws 
applicable to those CATEXs.
    Paragraph 608 requires the responsible FAA official to inform the 
airport sponsor via a dated letter or dated e-mail that ARP has 
categorically excluded an action. ARP includes this instruction to 
ensure airport sponsors know that ARP has completed the NEPA process 
for a categorically excluded action, or that it has denied a CATEX for 
a proposed action. ARP makes this a formal step in its NEPA 
implementing instructions to address misunderstandings that have 
occurred concerning categorically excluded airport actions.
    o. ARP revised Chapter 7 to place information about environmental 
assessments (EAs) in one chapter. Paragraph 405 of the draft Order 
expanded the list of airport actions normally requiring EAs. ARP did 
this to respond to a number of questions about a variety of actions 
that Order 5050.4A, paragraph 22 (``Actions normally requiring an 
Environmental Assessment'') did not address. Final Order 5050.4B adopts 
the list presented in paragraph 405 of the draft Order. The list 
appears at paragraph 702. Readers should also note that ARP has added 
paragraph 702.j (``Other circumstances'') to the list in the final 
Order. That paragraph states that the responsible FAA official should 
consider the need for an EA in circumstances not mentioned in 
paragraphs 702.a-i, particularly when controversy exists because the 
proposed action involves a special purpose law. Paragraph 703 discusses 
those situations where ARP

[[Page 29018]]

suggests that it, not the airport sponsor, selects the consultant who 
will prepare an EA for an airport project. ARP addresses this as a way 
to streamline the NEPA process, if an EA might later show indicate an 
EIS is needed. Paragraph 705 includes information on when scoping is 
helpful for an EA. Paragraph 706 provides information on EA format and 
content. Paragraph 706.b provides information on Purpose and Need. To 
conform to 1050.1E, paragraph 706.d.(5) provides details on when an EA 
must consider unresolved conflicts and the resulting need to expand the 
EA's Alternatives Analysis beyond the No Action and Proposed Action 
Alternatives. Paragraph 707.e discusses required and optional Regional 
Counsel reviews of EAs addressing airport actions. Paragraph 708 notes 
that a sponsor must coordinate EAs with FAA before issuing them for 
comment, including those the public will review when preparing for a 
public hearing. The paragraph notes that the sponsor must: (1) File the 
Draft EA with the FAA for review; (2) make the revisions the FAA 
reviewer notes; and (3) make the revised EA available to the public at 
least 30 days before the hearing occurs. ARP provides this information 
to ensure draft EAs are available to interested parties as they prepare 
for a public hearing, if one will be held. ARP provided that 
information in draft Order 5050.4B, at paragraphs 307c.(2) and (3).
    ARP includes new table (Table 7-1) in this chapter. For 
convenience, Table 7-1 presents agency-wide, impact-specific 
significance thresholds that Order 1050.1E, Appendix A contains. In 
addition, ARP supplements those thresholds with helpful information 
from Order 5050.4A, paragraphs 47.e and 85. a through t that Order 
1050.1E, Appendix A does not present. ARP provides this information 
from Order 5050.4A (called ``intensity factors'' in draft Order 
5050.4B) because experience shows that it is very useful to ARP 
specialists and others evaluating environmental impacts associated with 
the land or water impacts airport projects may cause. During the past 
20 years, ARP personnel have found that information very helpful in 
determining if a proposed airport action requires an EA or EIS.
    Paragraph 712 refers the reader to Chapter 14 of the Order to 
ensure Order users know ARP is following the requirement in Order 
1050.1E paragraph 411 fixing a 3-year ``shelf life'' for all FAA EAs. 
Paragraph 713 refers the reader to Chapter 14 of this Order for 
instructions on re-evaluating or supplementing an EA for an airport 
action.
    p. Paragraph 800.a discusses the approving FAA official's use of 
significance thresholds when determining if a FONSI is appropriate for 
a proposed airport action. Paragraph 801 discusses the process when the 
approving FAA official prefers an alternative differing from the 
airport sponsor's proposed action. Paragraph 802 presents information a 
FONSI should contain and the specific wording reflecting the approving 
FAA official's environmental finding. Paragraphs 803 and 804 discuss 
the internal coordination and public reviews FONSIs undergo. In 
particular, paragraph 803.c discusses when a Regional Administrator 
will sign a FONSI. The paragraph also notes that before the Regional 
Administrator signs a FONSI, various FAA organizations responsible for 
a portion of the proposed project must review the FONSI.
    Paragraph 805.a describes the factors the responsible FAA official 
should consider when determining if Record of Decision is needed for a 
FONSI (``FONSI/ROD''). As Order 1050.1E, paragraph 408 notes, a FONSI/
ROD is a combined decision document and environmental determination FAA 
uses for controversial actions that are the subjects of EAs and FONSIs 
and other specified actions.
    Paragraph 806 provides information on distributing approved FONSIs, 
while paragraph 807 discusses the process for notifying the public 
about a FONSI's availability. Paragraph 808 directs the approving FAA 
official to incorporate in a grant assurance or unconditional ALP 
approval letter the mitigation measures required to support a FONSI. It 
also suggests that FAA use an EMS to track compliance with mitigation 
commitments.
    q. Chapter 9 provides information on EISs. Paragraph 902.c 
encourages the responsible FAA official to consult with interested 
parties and involved FAA organizations to establish schedules for 
preparing EISs. It notes that FAA officials must establish EIS 
schedules when requested by the airport sponsor. Factors an official 
and a sponsor should consider when developing a schedule include the 
proposed action's complexity and the complexity of the environmental 
analyses and processes needed to complete the analyses. However, 
interested parties should note even the most thoughtfully developed 
schedule is subject to events beyond FAA's control and those events may 
affect any projected schedule. FAA officials will notify and consult 
airport sponsors when the volume or nature of comments on a DEIS 
require schedule adjustments (paragraph 1200.c of the final Order). 
Otherwise, FAA officials exercise their discretion when revising the 
schedule to accommodate such unforeseen events.
    Paragraph 903 lists those airport actions that normally require FAA 
to prepare EISs. Paragraph 904.b notes that FAA will begin the EIS 
preparation as soon as possible after the airport sponsor presents FAA 
with a proposal within the meaning of 40 CFR 1508.23. FAA will consider 
whether there is sufficient airport planning data and information when 
determining if a proposal exists. ARP will do so because during the 
past decade it has found that a lack of well-conceived and well-
developed airport planning information or a failure to resolve planning 
issues have caused substantial delays in preparing EISs. Often, these 
delays were not NEPA-related, but, instead resulted from a lack of good 
airport planning data. This lack of data severely hampered FAA's 
subsequent ability to meaningfully evaluate project impacts and prepare 
EISs. Because scoping is so critical to efficient, effective EIS 
preparation, ARP included more information about the scoping process 
(paragraphs 905 and 906) than Order 5050.4A provided. Paragraphs 907 
and 908 discuss the timing and content of a Notice of Intent (NOI), 
respectively. Paragraph 909 provides information on how the responsible 
FAA official may withdraw an NOI. ARP includes this information to 
address situations where, after anticipating significant impacts during 
the scoping process, ARP's analyses showed a proposed action or its 
reasonable alternatives, would not cause significant environmental 
effects. Paragraph 910 provides expanded information on the responsible 
FAA official's duties during scoping. ARP includes this information to 
highlight the varied roles the official fulfills during this critical 
stage in the EIS process. Paragraph 911 discusses the important roles 
an airport sponsor may fulfill during scoping due to its knowledge 
about the airport's operations and its relationship to the surrounding 
area. Paragraph 912 notes FAA may be a cooperating agency, not the lead 
agency, in certain situations warranting an EIS. For example, FAA is 
normally a cooperating agency for airport actions involving military 
base joint-use or re-use as a commercial airport or conveyance of 
Federally-owned land for airport purposes.
    r. Chapter 10 discusses the process used to prepare an EIS. 
Paragraph 1001 discusses an EIS's purpose. That paragraph stresses the 
need to prepare clearly-written documents so the public

[[Page 29019]]

unfamiliar with aviation may understand the purpose and need, a 
sponsor's proposed project, reasonable alternatives, and the 
environmental impacts the project or alternatives may cause. Paragraph 
1003 provides information on preparing EISs. The paragraph discusses 
``NEPA-like'' states and agencies. It explains how FAA and states or 
their agencies that comply with laws similar to NEPA may work 
cooperatively during EIS preparation to reduce duplicating efforts. 
This paragraph also discusses ARP, airport sponsor, and environmental 
consultant roles during ARP's EIS preparation. It reflects the policy 
and procedures FAA has adopted for EIS preparation in response to 
Citizens Against Burlington v. FAA, 938 F.2d 190, (DC Cir. 1991). The 
paragraph notes that FAA decides EIS content, even though the airport 
sponsor pays the environmental consultant's costs for ARP's preparation 
of the EIS. Paragraph 1003.c provides information about a Memorandum of 
Understanding (MOU) governing ARP, sponsor, and consultant roles during 
EIS preparation. Paragraph 1003.d discusses the need for a Disclosure 
Statement environmental consultants must sign to work with ARP as it 
prepares the EIS. The paragraph also discusses the limits on consultant 
activities during EIS preparation.
    Paragraph 1004 discusses limitations on FAA and airport sponsor 
activities during the EIS process. Paragraph 1004.a discusses limits on 
airport sponsor or FAA activities that would cause adverse effects or 
limit alternatives during the NEPA process. Paragraph 1004.c provides 
information on the steps FAA officials must take if FAA becomes aware 
that a sponsor is proceeding to final design while FAA is preparing an 
EIS. ARP provides this information to alert Order users about the 
requirements in CEQ regulations addressing limits on agency and airport 
sponsor actions during the EIS process. ARP also includes this 
information to address questions it has received about the level of 
planning and design activities a sponsor should normally develop for 
NEPA purposes. Conversely, paragraph 1004.d discusses the level of 
plans and design a sponsor may need to apply for permits or financial 
assistance. ARP recognizes the differences in design levels to 
streamline the NEPA process and to avoid duplicating paperwork or State 
or local procedures. Paragraph 1005 explains how ARP adopts another 
Federal agency's EIS as another way to streamline (i.e., improve the 
efficiency of) the NEPA process and to reduce paperwork and duplication 
of efforts.
    Paragraph 1007 provides re-organized and updated information on EIS 
format and content to more closely track information in FAA Order 
1050.1E. The paragraph also includes information from the FAA Guide to 
Best Practices ARP has found important in preparing EISs. Paragraph 
1007.b(8) clarifies instructions in the draft Order that discussed the 
environmentally preferred alternative. To correctly reflect 40 CFR 
1505.2(b), the final Order encourages FAA to identify the 
environmentally preferred alternative in the final EIS. ARP makes this 
change to more accurately reflect 40 CFR 1505.2(b), which requires 
identification of that alternative in the Record of Decision, not the 
final EIS.
    Paragraph 1007.e(5) in the final Order now states the criteria the 
responsible FAA official must consider when determining the 
``prudence'' of an alternative per 49 U.S.C. 47106.(c)(1)(B). This 
section of 49 U.S.C. requires the Secretary of Transportation to 
consider a ``possible and prudent alternative'' when considering a 
grant application for a project involving a new airport, a new runway, 
or a major runway extension having significant adverse effects. 
Although criteria in paragraph 1007.e(5) apply to decisions for actions 
involving Section 4(f) resources (now, 49 U.S.C. 303), FAA is using 
that definition of ``prudent'' for major airport projects to aid its 
staff determine when an alternative is ``prudent.'' FAA worked with the 
Federal Highway Administration (FHWA) on the definition as presented in 
FHWA's March 2005 Section 4(f) guidance \4\ and believes it is 
appropriate for FAA actions under 49 U.S.C. 47106.(c)(1)(B) as well as 
Section 4(f).
---------------------------------------------------------------------------

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

    Paragraph 1007.h discusses the need to consult the airport sponsor, 
FAA organizations, Tribes, or resource agencies about conceptual 
mitigation measures that are not included in the proposed action. 
Paragraph 1007.m stresses the use of appendices and references to 
reduce EIS bulk. This promotes CEQ's intent to keep an EIS to a 
manageable size.
    s. Chapter 11 provides information on processing draft EISs (DEIS). 
Paragraph 1100 discusses how ARP and other FAA organizations internally 
review preliminary draft EISs. The process varies with the proposed 
action and if it is subject to Vision 100's streamlining requirements. 
Paragraph 1101 explains how to distribute DEISs for public and inter-
agency reviews. Various paragraphs provide addresses for headquarters' 
offices of the Federal departments that review FAA DEISs. The 
paragraphs also provide the number of hard copies (hard copies and CDs) 
of a DEIS ARP must send to those departments. Paragraph 1101.b.(1)(d) 
provides standard language certifying that ARP has issued DEISs to the 
public at the same time or before it has filed the documents with the 
U.S. Environmental Protection Agency (EPA). Paragraph 1104 provides 
instructions for re-circulating DEISs. ARP provides this information to 
answer questions it has received on this topic.
    t. Chapter 12 discusses processing a final EIS (FEIS). Paragraph 
1202 notes that CEQ requires an agency to identify its preferred 
alternative in the FEIS, unless a law prohibits the agency from doing 
so. This clarifies that FEISs must contain this information, if the 
approving FAA official did not identify a preferred alternative in the 
DEIS. Paragraph 1203.b requires the responsible FAA official to ensure 
the FEIS contains evidence that: (1) An airport sponsor has either 
certified that the airport management board has voting representation 
from the communities; or (2) the sponsor has advised communities they 
have the right to petition the Secretary of Transportation about a 
proposed new airport location, new runway, or major runway extension.
    Paragraph 1203.b.(3) directs the responsible FAA official to ensure 
that on request, the airport sponsor has made available and provided to 
an existing metropolitan planning organization in the area where an 
action would occur, a copy of a proposed airport layout plan (ALP) 
amendment depicting a major proposed airport project at a medium or 
large hub airport and the master plan describing or depicting that 
project. ARP includes this assurance to meet the requirements of 49 
U.S.C. 47106(c)(1)(A)(iii) so that ARP may include that information in 
its Record of Decision, if needed.
    Paragraph 1206 discusses the need for an FEIS to include evidence 
to support necessary determinations addressing impacts to 
jurisdictional and non-jurisdictional waters and wetlands. Non-
jurisdictional wetlands are waters or wetlands that are not ``waters of 
the United States'' under Section 404 of the Clean Water Act. Such 
wetlands do not fall within the jurisdiction of the U.S. Army Corps of 
Engineers. However, ARP includes information on non-jurisdictional 
wetlands to address many questions it has received about

[[Page 29020]]

reviewing impacts to those resources. Paragraph 1206 clarifies that 
impacts on all wetlands, including non-jurisdictional wetlands, must be 
analyzed to comply with NEPA, Executive Order 11990, Protection of 
Wetlands; and DOT Order 5660.1A, Preservation of the Nation's Wetlands.
    Paragraph 1208 discusses the need for an FEIS to include evidence 
to support determinations in a ROD for a proposed action that affects 
coastal resources, even if the action is not at an airport located 
within the boundaries of a designated coastal zone area. ARP includes 
this information to address amendments to the Coastal Zone Management 
Act (CZMA). Among other things, the amendments require Federal agencies 
to address impacts to coastal zone resources, even if a project occurs 
outside a state's coastal zone boundaries. Paragraphs 1208.a and b 
discuss the evidence that an FEIS must include to support 
determinations in a ROD regarding 15 CFR subparts C and D (regulations 
implementing the CZMA). Paragraph 1208.a provides information on CZMA 
consistency requirements for actions FAA does not undertake, but for 
which it has approval authority. Paragraph 1208.b provides information 
about consistency requirements for projects FAA itself undertakes, such 
as installing a NAVAID in a coastal zone. ARP includes this information 
to highlight the different CZMA requirements that may apply to airport 
actions.
    Paragraph 1209 clarifies the evidence that an FEIS should include 
for actions involving disproportionately high and adverse impacts on 
minority and low-income populations. ARP includes this information in 
the final Order to ensure FEISs address this important issue when 
appropriate.
    Paragraph 1210 discusses the delegation of authority within ARP to 
approve environmental documents and decisions under FAA Order 
1100.154A, Delegation of Authority, dated June 12, 1990. The Order 
delegates approval authority for certain airport projects from the FAA 
Administrator to the Associate Administrator for Airports (ARP-1). ARP-
1 may further delegate that authority, per Order 1100.154A, as 
paragraph 1210 explains.
    Paragraph 1211 provides updated information on FEIS distribution to 
reviewing Federal agencies. Various subparagraphs discuss the number of 
FEIS copies (hard and CD) the responsible FAA official must send to 
various reviewers. Paragraph 1211.c discusses when FAA may extend the 
30-day ``wait period'' between the time EPA publishes a notice of an 
FEIS's availability in the Federal Register and the time the agency 
issues a decision on a proposed action. Order 5050.4B provides this 
information for those rare occasions when FAA may wish to exercise this 
option under 40 CFR 1506.10(d).
    Paragraph 1212 discusses more details concerning the process for 
referring EISs to CEQ under 40 CFR part 1504. ARP includes this 
information to ensure its personnel know about this little used, but 
important CEQ provision.
    u. Paragraph 1301.g requires FAA to ensure the agency and the 
airport sponsor complete required mitigation. The paragraph suggests 
using an Environmental Management System (EMS) is an excellent way to 
track the sponsor's compliance with required mitigation and promote 
Executive Order 13148, Greening the Government Through Leadership in 
Environmental Management.
    Paragraph 1304 discusses the requirement at 40 CFR 1506.6(b) to 
notify the public about ROD availability for major Federal actions. The 
paragraph urges ARP personnel to publish notices announcing FAA's 
issuance of a ROD for an airport project. Although this is not a CEQ 
requirement, ARP recommends this because this is an effective way to 
inform the public about ARP decisions significantly affecting the 
environment. It also provides a clear starting point for the 60-day 
statute of limitations for legal challenges under 49 U.S.C. 46110.
    v. Paragraph 1401 provides guidance on the longevities of draft and 
final EAs and EISs, the need for re-evaluating those documents, and the 
need to supplement them. ARP provides that information to address 
questions about EA and EIS ``shelf-live'' it has received since issuing 
Order 5050.4A in 1985 and to comply with FAA Order 1050.1E, paragraphs 
402.a and 514. ARP addresses these issues to ensure NEPA documents 
provide approving FAA officials with the best available information. 
ARP further clarifies that a written re-evaluation is required when the 
responsible FAA official determines an EIS must be re-evaluated.
    Paragraphs 1401.b and c discuss the factors the responsible FAA 
official considers when deciding if he or she must re-evaluate a draft 
or final EIS, respectively. Readers should note that paragraph 1401.a 
also notes that the responsible FAA official may use discretion when 
determining the need for a written re-evaluation in other 
circumstances. The official may also use discretion when deciding if 
FAA will distribute the re-evaluation to the public. Order 5050.4B 
includes this requirement to address an oversight in Order 1050.1E that 
FAA corrected in Change 1 to Order 1050.1E (Notice of Adoption, Notice 
of Availability (71 FR 15249, March 27, 2006).
    Paragraph 1402 provides information about supplementing EAs and 
EISs to address many questions ARP has received on this topic since 
issuing Order 5050.4A in 1985. It notes that FAA, and, therefore, ARP, 
is applying the standards it uses for EISs to EAs to ensure FAA NEPA 
documents provide accurate and timely information. Paragraphs 1403 and 
1404 address tiering EISs and emergency situations and EIS preparation.
    w. Chapter 15 provides information on streamlining the EIS process 
for certain airport projects to address Vision 100 requirements. Among 
other things, Vision 100 requires streamlining the environmental 
process for airport capacity projects at congested airports. These are 
airports that account for at least 1% of all delayed aircraft 
operations in the Nation. Vision 100 also applies to airport safety and 
airport security projects throughout the nation, regardless of their 
congestion levels.
    x. ARP has deleted paragraph 407 in the draft Order addressing 
cumulative impacts. More extensive information on cumulative impacts 
now appears in paragraph 1007.i of the final Order. ARP will provide 
more detail on this topic in the Desk Reference. Until ARP issues that 
information, document preparers and reviewers should use information in 
paragraph 1007.i of this Order, paragraph 500c of Order 1050.1, and 
CEQ's guidance on assessing cumulative impacts, Considering Cumulative 
Effects Under the National Environmental Policy Act (http://ceq.eh.doe.gov/nepa/ccenepa/ccenepa.htm).
    ARP has also deleted the examples of the third party Memorandum of 
Understanding and the ``short form'' Environmental Assessment that were 
included as appendices of the draft Order. ARP is deleting them because 
it has decided to place examples of documents and other information 
that ARP has found helpful but not required in the Desk Reference.
    y. Appendix 1 includes updated flowcharts on completing the NEPA 
processes for categorical exclusions, EAs, FONSIs, EISs, and RODs.
    Disposition of Comments: ARP has made additional changes, 
clarifications, and corrections to the final Order. It does so in 
response to comments received after publishing the Federal Register 
notice of December 16, 2004, announcing the availability of the draft 
Order for public review. The changes, clarifications, and corrections 
are

[[Page 29021]]

discussed in the following sections of this Preamble. ARP received 
comments from three primary sources: (1) An organization representing 
airport management; (2) an organization representing state, regional, 
and local governing bodies that own and operate the principal airports 
serving scheduled air carriers in the United States and Canada; (3) two 
individual airport sponsors; (4) an organization representing airport 
consultants; (5) two individual airport consultant corporations; (5) 
two Federal agencies; (6) various state and local governments; and (7) 
one member of the public. The term ``comment'' used in this Preamble 
refers to an individual issue a commenter raised. A commenter may have 
raised numerous issues in correspondence forwarded to ARP from the 
docket. This Preamble also discusses substantive comments resulting 
from deliberative discussions with the Office of the Secretary of 
Transportation, the Council on Environmental Quality, internal FAA 
elements and ARP personnel at regional and district offices.
    ARP classified the comments received into three categories: (1) 
Comments that broadly cover the entire Order; (2) comments that relate 
to a paragraph or a portion of paragraph in the Order; and (3) comments 
on Tables 1-3. ARP has provided specific responses to those comments in 
that sequence, with the level of response commensurate with the degree 
of public interest expressed.

General Comments

    The Order in general: FAA received several comments on the need to 
update FAA Order 5050.4A. One commenter noted the revised Order was 
long overdue. Many commenters applauded ARP's efforts to update 
instructions in a writing style that was clearer and easier to 
understand than the previous Order. Nevertheless, several commenters 
noted the document is a ``work in progress.'' Two commenters 
recommended that ARP conduct working sessions conducted with an open 
dialogue to address some of the comments of major concern. ARP's 
response: FAA notes the comment on the need to update FAA Order 
5050.4A. It appreciates the comments on the effort to update the 
instructions in a plain writing style. ARP has adopted that style for 
this Order to help the public understand its NEPA procedures and to 
comply with FAA requirements to prepare documents in plain English. FAA 
acknowledges that the draft Order contained language and instructions 
that required further input to ensure the final version addressed major 
concerns and that it was a valuable tool in completing the NEPA process 
for airport actions.
    Regarding working sessions, ARP personnel met with representatives 
of some of the commenting organizations at various times and locations. 
In these instances, ARP: (1) Discussed the major concerns the 
organizations had about the draft Order; (2) sought clarification of 
other concerns the commenting organizations expressed; and (3) answered 
questions about the Order. ARP believes the final Order is improved due 
to this and other efforts. This Preamble's General Discussion provides 
ARP's reasons for revising the Order to address general comments on the 
draft. The section of the Preamble entitled Beginning responses to 
comments on specific paragraphs of the draft Order addresses comments 
on specific paragraphs and provides ARP responses to those comments.
    Best Practices: On commenter suggested adding information from The 
FAA Guide to the Best Practices for Environmental Impact Statement 
Management (Best Practices). The commenter seeks blending information 
from the Best Practices with the Order's text or placing it as an 
appendix to the Order. ARP's Response: Agree, in part. Chapter 5 of the 
Order is based on and incorporates much of the Best Practices' 
information linking airport planning and the NEPA process. However, ARP 
believes it is not necessary to include the entire Best Practices 
document as an appendix to this Order. ARP prepared the Best Practices 
material as internal guidance and appreciates the commenter's 
complements on it. Readers seeking additional information on those 
practices should visit the Best Practices \5\ Web site.
---------------------------------------------------------------------------

    \5\ http://www.faa.gov/Arp/environmental/5054a/bestprac.cfm.
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    Chapters addressing EISs: One reviewer states the Order would be 
more user-friendly if Chapters 9 through 12 were combined into one 
chapter addressing EIS preparation and processing. The reviewer is 
concerned that the draft Order's presentation could lead users to think 
that the instructions are not linked. Consequently, users will not 
realize these chapters provide details on the various steps the 
responsible FAA official and/or FAA's EIS contractor complete as they 
prepare an EIS. ARP's Response: Disagree. No other reviewers have 
voiced this concern. ARP retains the draft Order's presentation. It 
presents individual, successive chapters explaining how to: (1) Begin 
and finish preparing a draft and final EIS; (2) making those documents 
available for public review and comment; (3) responding to those 
comments in the final EIS; and (4) preparing and issuing a Record of 
Decision.
    Consistency and redundancy with FAA Order 1050.1E: Many commenters 
stated the draft Order was inconsistent with Order 1050.1E. ARP's 
Response: ARP believes revisions to the draft Order have addressed this 
concern. ARP intends the instructions in Order 5050.4B to be 
substantively consistent with 1050.1E, differing only as necessary to 
provide more specific instructions tailored to airport actions and to 
legal reviews of environmental assessments and Findings of No 
Significant Impact.
    Turning to redundancy issues, a few commenters noted that this 
Order repeated guidance in Order 1050.1E or relied on it. ARP's 
Response: Order 1050.1E addresses NEPA requirements for all FAA 
organizations. However, Order 5050.4B provides NEPA instructions 
tailored to airport projects. Readers should note that ARP cited 
paragraph from Order 1050.1E to address comments and underscore certain 
requirements germane to the agency (e.g., 3-year ``shelf life'' for an 
environmental assessment; preparing a Record of Decision for a Finding 
of No Significant Impact, etc.). ARP did this to highlight new, agency-
wide procedures.
    Another commenter suggested deleting the tables in Order 5050.4B 
(Tables 6-1 and 6-2 of this Order) containing portions of CATEXs in 
paragraphs 307 through 312 of Order 1050.1E. (Tables 6-1 and 6-2 of the 
final Order provide alphabetically arranged, annotated sections of 
those paragraphs that apply to airport actions). The commenter stated 
that having to cite the paragraph in 1050.1E would ``tend to confuse'' 
many people. ARP's Response: ARP does not agree. This commenter was the 
only one noting possible confusion. To avoid this confusion and to 
stress there is only one list of FAA-wide categorically excluded 
actions, Order 5050.4B uses the citations from Order 1050.1E. Paragraph 
602.c of Order 5050.4B clearly instructs the responsible FAA official 
to use information in column C of Tables 6-1 and 6-2 as the cites for 
the paragraphs in Order 1050.1E containing the annotated airport action 
under review.
    Consultation with airport sponsors: A commenter urged ARP to 
include airport sponsors in the NEPA process. Although the commenter 
recognizes FAA's expertise in the national air transport system, it 
notes that airport sponsors have greater expertise than FAA personnel 
on local issues, financial

[[Page 29022]]

resources, business arrangements with airlines, and other users 
specific to their respective airports. In addition, sponsors have the 
best knowledge of the goals and objectives they wish their airports to 
attain. They, better than FAA, can provide valuable information on 
those issues to ensure proposed airport actions address the problems 
sponsors face. The commenter stated it knows of instances where the 
airport sponsor was virtually excluded from the preparation and 
issuance of draft NEPA documents. The commenter stated that the 
exclusion of sponsors from participating in EIS preparation had 
potentially serious ramifications on the end product. Therefore, the 
commenter urges ARP to include airport sponsors in the NEPA process and 
to help reduce risks of error and delay in that process. The commenter 
notes sponsors can do so without compromising the independence FAA 
needs in making decisions about sponsor proposals. ARP's Response: ARP 
thanks the commenter for recognizing FAA's expertise and agrees airport 
sponsors provide valuable local and regional information about airports 
and proposed airport actions. For these reasons, ARP facilitates 
sponsor participation in the NEPA process. For decades, ARP shared pre-
decisional drafts of EIS's with sponsors to achieve common goals, 
including, among others, the preparation of a complete, accurate, and 
comprehensive report on environmental impacts sufficient to survive 
judicial review. However, in response to a recent U.S. Supreme Court 
decision (Department of the Interior v. Klamath Water Users Protective 
Association, 532 U.S. 121 S. Ct. (2001)), ARP now limits sponsor 
participation in terms of access to pre-decisional, deliberative 
material more so than it did in the past. Today, as a result of the 
Supreme Court's decision, ARP, on a case-by-case basis, decides when 
sponsor participation in the NEPA process should include access to pre-
decisional, draft documents such as preliminary draft EISs or draft 
technical reports. ARP staff typically limits sponsor access to draft 
versions or reports and documents during the NEPA process for two 
reasons. First, it does so where there is a high level of public 
distrust and concern about the NEPA process' integrity and objectivity. 
Second, it does so on controversial projects to help minimize delays in 
preparing a draft EIS that may arise when ARP staff must devote time to 
compiling and releasing documents in response to requests under the 
Freedom of Information Act (FOIA). Under the FOIA, FAA must release to 
the public the information it shared with airport sponsors. This is 
because under the Klamath Decision, the release of that information 
waives FAA's privilege to withhold information as deliberative in 
nature under Exemption 5 of the FOIA.
    In response to this comment and concerns airport sponsors expressed 
in the past, ARP has identified what it considers to be a best practice 
already in use in some regional and field offices. When planning the 
EIS process and developing EIS schedules, ARP encourages its staff to 
seek agreement with airport sponsors about the types of preliminary EIS 
material they wish to see and when the sponsor wants to see it. ARP and 
the sponsor will not consider just the potential consequences under 
FOIA, but also state and local laws bearing on the release of 
deliberative NEPA documents, including sunshine laws and mini-NEPA laws 
that may apply to the airport sponsor. They will also decide if it 
makes sense for FAA to seek help from sponsors to accomplish needed 
tasks and minimize risks of analytical mistakes that could affect the 
quality of NEPA documents. In each case, ARP will also consider the 
quality of the relationship and the level of trust with the community. 
It will also consider the potential chilling effect on the internal 
deliberative process that may occur due to the release of documents 
under FOIA. ARP, in consultation with the airport sponsor, will then 
design the appropriate document review process.
    Desk Reference. ARP received varied comments on its decision to 
publish a separate document entitled, Environmental Desk Reference for 
Federal Airport Actions. ARP's Response: Comment noted. Order 5050.4B 
focuses on the NEPA implementing instructions for airport projects 
under FAA's purview. However, the Desk Reference will be a compendium 
of special purpose laws outside NEPA that also apply to those projects. 
As a compendium, it simply places all of the environmental laws, 
regulations, and executive orders outside NEPA in one location for the 
use and convenience of those analyzing airport actions.
    ARP is also issuing the Desk Reference to be more responsive to 
changes in the many non-NEPA laws and regulations that change more 
frequently than NEPA and the CEQ regulations implementing it. A lack of 
updated information on non-NEPA laws and regulations in Order 5050.4A 
has been a source of legitimate concern from ARP staff and other users 
of Order 5050.4A during the past decade. ARP believes the Desk 
Reference is the most flexible and best way to address this problem.
    Since 1985, when FAA issued Order 5050.4A, many laws, regulations 
and orders outside NEPA have been amended or revised, while CEQ's 
regulations have had one minor change during that period. However, 
readers should note that since 1985, ARP has issued over 17 
Supplemental Guidance Memos to its personnel. Those memos ensured ARP 
staff had updated instructions on non-NEPA issues resulting from new or 
amended laws, or regulations implementing them. Also, during training 
classes and via other methods, ARP issued many instructions to its 
environmental staff concerning procedural or analytical changes related 
to special purpose laws. When compared to these past practices, ARP 
believes the Desk Reference will be a more formal and efficient way to 
distribute updated information on special purpose laws and how they 
relate to airport projects.
    ARP will issue the Desk Reference after it issues this Order. Until 
then, ARP staff and other interested parties must use Appendix A of 
Order 1050.1E for information on assessing resources outside NEPA. When 
ARP issues the Desk Reference, all parties should use the Desk 
Reference to analyze airport actions. ARP will make the Desk Reference 
and changes to it available to ARP's regional and district office 
personnel and the public. It will do so by placing it on ARP's Web 
site. In addition, ARP will contact groups representing airport 
sponsors about the updates and rely on those groups to help ARP 
announce those updates.
    ARP made the decision to issue the Desk Reference after reviewing 
comments on Order 1050.1E's inclusion of Appendix A, which addresses 
many of the same Federal laws, regulations, and executive orders as the 
Desk Reference (69 FR 33810 June 16, 2004). In that Federal Register, 
FAA stated that Appendix A is a helpful attachment to the Order but 
that it, ``* * * will consider changing the format in subsequent 
revisions of the Order.''
    Some reviewers stated that ARP should develop the Desk Reference in 
collaboration with industry stakeholders to ensure NEPA documents meet 
NEPA/CEQ objectives and how those objectives affect the daily 
operations of airports. ARP's Response: ARP appreciates and understands 
these concerns, but emphasize that the Desk Reference merely summarizes 
existing legal requirements. It contains no policy guidance 
implementing NEPA, so ARP sees little value in affording an opportunity 
for public review and

[[Page 29023]]

commend in advance. Nevertheless, after publishing this Order, but 
before issuing the Desk Reference, ARP will distribute selected 
chapters of the Desk Reference for public information purposes only.
    In a related matter regarding the Desk Reference, one commenter 
stated that ARP's failure to prepare an order substantially covering 
the same material that Order 5050.4A contained (the Order had extensive 
information on non-NEPA requirements that the Desk Reference will 
provide) did not meet Congress' intent. ARP's Response: ARP 
respectfully disagrees. ARP notes that as the FAA office responsible 
for analyzing airport actions, it will consider input from 
stakeholders, but it has the discretion to decide the contents of Order 
5050.4B, provided it meets CEQ, DOT, and FAA requirements. Readers 
should note ARP prepared this Order in consultation with CEQ. It has 
received a finding from CEQ that the Order conforms to NEPA; therefore, 
ARP is assured the Order meets the requirements of NEPA and its 
implementing instructions. Finally, concurrence of DOT's Acting 
Assistant Secretary for Transportation Policy indicates Order 5050.4B 
conforms to DOT requirements.
    In another related matter, commenters further noted that ARP's 
failure to make the Desk Reference available for public review is 
inconsistent with Vision 100's mandate that FAA issue a revision to 
Order 5050.4A. ARP's Response: ARP appreciates and understands these 
concerns. Section 307 of Vision 100 set a date by which FAA was to 
publish a draft version of Order 5050.4B. It did not limit the agency's 
discretion to update the Order or specify any material that the Order 
had to include.
    ARP wishes to highlight that the agencies responsible for the 
regulatory changes beyond NEPA often publish those changes in the 
Federal Register for public review and comment. ARP has the discretion 
to summarize environmental laws and regulations other than NEPA and how 
they typically apply to airport actions for ease of reference for its 
personnel in a Desk Reference. As noted earlier, ARP decided the Desk 
Reference affords a flexible way to stay apprised of the ever-changing 
regulatory landscape and how it applies to airport actions under FAA's 
purview. ARP will distribute selected chapters of the Desk Reference 
for public information purposes only.
    Finally, some commenters agree with ARP's approach. However, they 
are concerned about placing instructions in a Desk Reference makes the 
instructions in that document difficult to legally defend. ARP's 
Response: ARP disagrees. Many if not most of the laws and information 
in the Desk Reference have their own enforcement provisions. ARP's 
decision to not include them in Order 5050.4B does not diminish those 
provisions.
    Editorial and grammatical errors: Commenters noted the draft Order 
contained editorial, grammatical, and formatting errors. ARP's 
Response: ARP agrees. Readers should note that ARP has not prepared 
responses to comments on grammatical errors the draft Order contained. 
Doing so would make this Preamble far too long and cumbersome to read. 
ARP believes that the extensive re-organization and editing of the 
Order have addressed most of the organizational and grammatical 
concerns commenters noted.
    Electronic distribution of this Order: A commenter indicated that 
ARP should distribute the Order in compact disc (CD) format or post it 
on the internet. ARP's Response: Agree. ARP will provide free copies of 
the Order on CD or paper when requested. However, it urges users to use 
Web access when possible. ARP has posted this Order on the ARP Web site 
mentioned in the Summary section of this Preamble.
    Electronic distribution of NEPA documents and related materials: A 
commenter requests information on the electronic distribution of 
documents. ARP's Response: ARP has included this information in 
Chapters 7, 8, 11, and 12 of the Order.
    FAA resources: A commenter states that the draft Order assumes the 
existence of FAA resources that are not present. Airport sponsors 
remain frustrated with the time FAA staff needs to address airport 
projects. The Order assumes the staff has the expertise and experience 
needed with airports, but many FAA offices do not have those abilities. 
Staff resources and experience must increase ``dramatically'' to meet 
the Order's instructions. The Order should candidly address the problem 
and provide procedures that that limited FAA staff can meet. The 
commenter states it has historically supported FAA efforts to get the 
resources needed to meet agency duties and will continue to do so. 
ARP's Response: ARP appreciates the commenter's support for adequate 
FAA resources. ARP also understands and appreciates the frustration of 
airport sponsors regarding staffing, but ARP does not agree that the 
Order is the place to resolve those issues.
    In addition, as FAA discussed in its May 2001 Report to Congress on 
Environmental Review of Airport Improvement Projects \6\ requirements 
under NEPA and other Federal environmental laws and local consensus 
play far greater roles than FAA staffing levels in determining the time 
needed to complete NEPA reviews for airport development projects. ARP 
has included in 5050.4B the practical lessons it has learned since 1985 
about how to effectively prepare airport EISs. For example, ARP 
experience indicates airport sponsors will reduce FAA's workload if 
they complete good master planning and build local consensus before 
asking the agency to start the NEPA process.
---------------------------------------------------------------------------

    \6\ http://www.faa.gov/arp/environmental/5054a/RTCenv.pdf.
---------------------------------------------------------------------------

    Turning to staffing resources, we believe that many offices have 
the expertise and ability to address airport projects. Before 2003, ARP 
had environmental specialists and attorneys with proven track records 
of successfully completing environmental impact statements for airport 
development projects within an average of 3\1/2\ years. While ARP 
agrees that some regional and field offices have less expertise and/or 
higher workloads than others, FAA headquarters historically delivers 
additional project management, technical, and legal services as needed 
for a timely and effective EIS process as noted earlier. ARP also notes 
that its regional and district Airports offices share personnel to the 
extent permissible and practical to assist in EIS preparation.
    ARP acknowledges the commenter's major role in Congress enacting 
the Department of Transportation Appropriations Act of 2003, part of 
which established and funded 30 additional positions in FAA to expedite 
environmental reviews for airport projects. ARP conducts regular 
training conferences, enrolling employees in reputable environmental 
training courses, and gradually increases the responsibilities of its 
newer employees in offices throughout the country. Those new employees 
are developing the skills and abilities needed to address multiple, 
complex airport projects concurrently and effectively. At the same 
time, when ARP anticipates that headquarters resources may not be 
sufficient to meet schedules for multiple ongoing complex airport 
projects, it has asked sponsors to fund additional FAA staff and 
trained consultants.
    Independent Utility: A commenter requests information on 
independent utility. ARP's Response: Paragraph 202.c(4)(a) discusses 
ALP approvals for actions having independent utility.

[[Page 29024]]

    Information in Order 5050.4A: One commenter noted that in some 
areas the language in Order 5050.4B is improved over the language in 
Order 5050.4A. In other instances, neither Order 5050.4B or Order 
1050.1E contains language adequately addressing specific airport 
actions. The commenter fears that these omissions will obscure the 
clarity of instruction for some of these actions that Order 5050.4A 
provided. ARP's Response: Agree. ARP has revised much of the discussion 
from Order 5050.4A that the commenter specifically recommended.
    Instructions are not consistent with NEPA: One commenter voiced its 
extreme concern that the information in the Order is not consistent 
with NEPA, that it lacks scientific and factual basis, and that it 
exhibits a bias toward the aviation industry, while stating it presents 
environmental stewardship principles. The commenter provided specific 
examples of its concerns to ensure the Order more accurately reflected 
NEPA requirements. Some examples the commenter included were: (1) A DNL 
3 dBA increase in the DNL 60-65 dBA contour should be a significant 
effect, (2) FAA should, ``* * * produce peer-reviewed scientific 
research that investigates the effects of a 3 dBA increase in 60-65 DNL 
contour;'' (3) that the DNL metric is the only acceptable noise metric 
to the exclusion of others; (4) that FAA should seek input of a local 
advisory board in selecting its EIS consultant; and (5) that FAA should 
not consider the need to relieve airport congestion as an emergency per 
CEQ'a emergency procedures at 40 CFR 1504.(b)(2). ARP's Response: FAA 
disagrees with the commenter's statements on consistency with NEPA. ARP 
notes that Order 5050.4B must be and is consistent with Order 1050.1E. 
Since the latter Order presents agency-wide NEPA implementing 
instructions, Order 5050.4B's consistency with Order 1050.1E means it 
is consistent with NEPA. ARP requests that the commenter review the 
Significant noise impact threshold portion of this Preamble for FAA's 
definition of significant noise, the use of the DNL metric, and other 
noise concerns the commenter noted. ARP also suggests that the 
commenter review responses to comments on in this Preamble addressing 
paragraphs 1003 and 1404 for issues related to consultant selection and 
FAA's compliance with NEPA during emergencies, respectively. Regarding 
the Order's consistent with NEPA, ARP reminds the commenter that CEQ 
has reviewed Orders 5050.4B as well as 1050.1E. FAA has revised both 
Orders to ensure they meet CEQ concerns. CEQ's reviews and 
certifications of those both Orders indicate CEQ has determined that 
both Orders conform to CEQ regulations.
    Instructions on ``NEPA-like'' states or agencies: Two reviewers 
sought more information on these issues in general. They request 
instructions on what to do when state rules specifically require 
discussions of certain issues and prohibit discussions of others. Of 
particular note, they seek information on how to handle the topic of 
human health risks (i.e., hazardous air pollutants) in joint Federal-
State documents. They note that Orders 5050.4A and 5050.4B seem to 
encourage separating State and Federal environmental documents. The 
commenters note there may be statutory or regulatory limits on 
combining documents, nevertheless, they request more information on the 
``NEPA-like'' issue. ARP's Response: For information on aviation-
related air toxins and human health risk assessments, readers should 
use FAA's Federal Register ``Notice of Adoption and Availability of 
Order 1050.1E'' (No. 69. FR No. 115, p. 33784, 6/16/2004). However, 
since preparing that notice in June 2004, the Federal Highway 
Administration (FHWA) has issued its Interim Policy on Mobile Source 
Air Toxins, and FAA has addressed this topic in EISs it prepared for 
airport actions at Los Angeles (LAX), O'Hare, and Philadelphia 
International Airports. In these EISs, FAA estimated air toxin 
emissions but did not prepare human health risk assessments.
    Regarding the comment on handling the topic of hazardous air 
pollutants in a joint Federal and State document, the LAX Final EIS 
illustrates one way of handling that issue. That joint document was 
prepared to meet NEPA/CEQA (California Environmental Policy Act) 
requirements. In the Environmental Justice section of FAA's FEIS for 
LAX's master planning effort, FAA notably included, for disclosure 
purposes, the human health risk assessment (HHRA) the City of Los 
Angeles prepared to comply with the California Environmental Quality 
Act. In that FEIS, FAA explained that it presented the HHRA results as 
follows: ``* * * however, to the extent that fulfillment of the 
purposes of Executive Order 12898 [on Environmental Justice] would be 
furthered by such an analysis, presented below are the results of the 
[Los Angeles World Airports] Human Health Risk Assessment, which was 
prepared in compliance with CEQA and based upon CEQA thresholds of 
significance and provides a qualitative comparisons [sic] of potential 
health risks.'' \7\
---------------------------------------------------------------------------

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

    Turning to the statement that FAA encourages preparation of 
separate, documents consistent with 40 CFR 1506.2, FAA NEPA guidance 
encourages preparation of joint Federal and State documents. FAA 
recognizes that preparing joint documents is often more complex and 
time-consuming initially, but joint documents may save time in the 
long-term by eliminating sequential Federal and State reviews. On the 
other hand, separate documents may be more efficient and effective 
where Federal and State requirements and timing differ substantially or 
the Federal and State agency cannot agree on proper analytic 
methodology. If separate documents are prepared, FAA and the State 
should attempt to conduct their environmental review processes on 
parallel tracks within the same time frames using common databases to 
the best of their abilities. This will avoid end-to-end sequential 
processes that often lengthen document preparation times. FAA 
encourages readers to review the Best Practices' Web site mentioned 
earlier for more information.
    References should be available: A reviewer requests that ARP 
provide copies of all FAA and DOT documents and orders noted in Order 
1050.1E and 5050.4B, or that FAA routinely uses during its NEPA 
process. The reviewer suggests providing that information via 
appendices or FAA's Web site. ARP's Response: Most of the Department of 
Transportation (DOT) and FAA information and other references used to 
prepare the Orders is available on DOT, FAA, or ARP Web sites. 
Interested parties may also obtain that and other information via 
Internet ``search engines'' by searching on key words in the item of 
interest.
    Saving time during the NEPA process and streamlining the NEPA 
process: A few commenters expressed appreciation for ARP's efforts to 
improve its NEPA processes and recognize constrained resources lead 
many people to perceive that ARP has inefficient NEPA processes. 
Nevertheless, the commenters urge ARP to save time during the NEPA 
process by incorporating many measures in that process. These measures 
include: Parallel, rather than sequential reviews; conducting earlier 
and frequent coordination with agencies to address purpose and need and 
alternatives; disclosing EIS data before publishing

[[Page 29025]]

draft EISs; making faster legal decisions; and establishing firm 
deadlines or milestones and emphasizing Vision 100's streamlining 
terms. The commenters also urge ARP to limit analyses to the 
requirements of laws or regulations and include words (i.e., milestone, 
schedule, deadline) in the Order to stress the need to process 
information in a timely fashion. The commenters believe the Order 
should instill greater urgency within the agency about the need to 
reduce processing times. Another commenter argues that FAA should 
codify performance deadlines. ARP's Response: ARP appreciates the 
commenters' recognition of ARP's efforts to make its NEPA process more 
efficient. ARP recognizes that there is room for improvement; however, 
ARP notes that it has a long and proven track record of expediting EISs 
successfully by using the measures noted in the comment such as 
parallel processing of environmental requirements and reaching 
consensus with resource agencies. Chapter 15 of Order 5050.4B expressly 
addresses requirements for streamlining certain projects under Vision 
100 and Executive Order 13274, while other chapters discuss 
administrative streamlining initiatives and ways to improve the NEPA 
process for other projects. ARP will continue to use these proven, 
effective methods to make the NEPA process more efficient.
    Regarding the extent of analyses, ARP reminds the commenters that 
ARP, as the lead Federal agency, not the airport sponsor, is ultimately 
responsible for meeting Federal legal requirements and preparing an 
EIS. Therefore, ARP staff, in consultation with expertise agencies, 
must determine the extent of analyses needed to meet applicable laws 
and regulations. But airport sponsors sometimes disagree with these ARP 
decisions. When sponsors disagree with ARP in these matters, they may 
want to consider if the time spent to resolve disagreements with FAA 
and resource agencies about impact analyses might be better used to 
complete the NEPA process. ARP urges sponsors to realize that the 
analyses are those ARP, in consultation with its legal counsel and 
agencies having expertise, determines necessary to provide an adequate 
interdisciplinary analysis as NEPA requires and to comply with 
applicable laws and regulations. ARP's failure to do so would 
compromise the sponsor's schedule and the agency's Airports Program. 
Since FAA is responsible for providing a safe, efficient air transport 
system, and ARP is responsible for a program that supports that system, 
it, in consultation with its counsel, must make the final decisions on 
the levels of analyses an airport project requires.
    Regarding the commenters' recommendations for milestones, 
deadlines, and schedules, ARP maintains that FAA senior management and 
agency managers and staff have consistently demonstrated a sense of 
urgency in addressing major airport development projects. As explained 
in the response to the comment above relating to FAA Resources, 
sponsors have the ability to do a great deal to reduce NEPA processing 
times. Among other things, they should work to build local consensus to 
support their proposed projects and complete sound master planning 
before asking the FAA to begin the NEPA process. Expedited EISs for 
projects that do not come to fruition are frustrating for FAA staff and 
divert limited resources better invested elsewhere. Further, in its May 
2001 Report to Congress on Environmental Review of Airport Improvement 
Projects, FAA described the administrative initiatives that it uses to 
improve its processing of airport actions. Many of these initiatives 
are required for projects selected for streamlined review under 
Executive Order 13274, Environmental Stewardship and Transportation 
Infrastructure. In 2003, Vision 100 codified into law the initiatives 
relating to expedited, coordinated reviews for projects at congested 
airports. And, within a span of two years, FAA notably issued final 
EISs and RODs for four major projects: (1) The Runway 17/35 at 
Philadelphia International Airport; (2) the O'Hare Modernization 
Program at O'Hare International Airport: (3) Runway 1/19W at Dulles 
International Airport; and (4) the Master Plan development at Los 
Angeles International Airport. FAA's performances on these complex and 
needed projects show that FAA is utilizing existing streamlining 
initiatives and measures for airport projects. Those efforts show that 
ARP and FAA work diligently to meet milestones, deadlines, and 
schedules without compromising the agency's environmental 
responsibilities. ARP constantly strives to make the NEPA process for 
airport actions more efficient and effective. ARP believes Order 
5050.4B provides instructions that will help expedite environmental 
reviews.
    ARP sees no need to include additional instructions about 
milestones, deadlines, and schedules in the final Order. ARP has not 
included specific deadlines for certain NEPA process steps in the Order 
or to define or codify deadlines as commenters have suggested. ARP has 
not done so because each airport action has unforeseen problems that 
would make a defined deadline contrary to NEPA, unworkable, and 
unrealistic. ARP urges the commenters and others to note that it will 
continue to work smarter, more efficiently, and more effectively, but 
it will not compromise adequate environmental analyses to meet desired 
schedules. Therefore, ARP will establish tentative schedules for EISs 
and, if requested, will apply techniques to streamline the NEPA process 
for airport actions as much as possible without compromising its duty 
to properly analyze and consider action-related environmental effects. 
It will do so based on: (1) Scoping and consultation with airport 
sponsors and involved agencies; (2) the completeness and accuracy of 
sponsor-provided master planning data; and (3) public concerns. These 
and other efforts show ARP will establish realistic schedules to 
properly scope its EISs, but it reminds interested parties that 
unforeseen issues or problems may alter any well-conceived schedule.
    In summary, ARP will establish EIS schedules for projects under 
Executive Order 13274 and Vision 100, and if requested, projects not 
under those requirements. But in developing these schedules, ARP will 
apply techniques to streamline the NEPA process, provided they do not 
compromise ARP's responsibilities to properly analyze, consider, and 
disclose action-related environmental effects.
    Significant noise impact threshold: Some reviewers note that FAA's 
insistence that there are no significant noise impacts below the DNL or 
CNEL 65-dB level is unjustified. They contend that FAA should consider 
impacts below that level, especially in the DNL or CNEL 60 to 65-dB 
noise contours significant in the Order. One commenter disagrees that 
DNL is the only metric to measure noise impacts and asserts that its 
validity is being questioned worldwide. Commenters further state that 
FAA's assumption that there are no negative health impacts inside this 
contour is wrong. Finally, FAA is wrong in assuming aircraft noise 
occurring 3,000 feet above ground level does not cause significant 
noise effects. ARP's Response: FAA addressed the commenters' noise 
concerns in its Federal Register Notice of Adoption and Availability of 
Order 1050.1E (No. 69. FR No. 115, 6/16/2004, pages 33780-33783, 33812, 
33813, and 33816 -33820). ARP urges the commenters to review that 
information for responses to these comments.

[[Page 29026]]

    Special purpose laws vs. special protection laws: One commenter 
noted the draft Order used these terms interchangeably, but this may 
confuse the reader. ARP's Response: Agree. The final Order uses the 
term, ``special purpose laws'' as a ``catch-all'' term for the Federal 
environmental laws, regulations and executive orders outside NEPA that 
apply often to airport actions (Table 1-1 in the Order). Paragraph 9.t 
defines the term for purposes of the Order.
    State Block Grant Program: In responding to comments on FAA Order 
1050.1E, FAA stated Order 5050.4B would provide details on the State 
Block Grant Program (SBGP) that ARP manages (69 FR 33788 June 16, 
2004). One commenter noted that Order 5050.4B makes a state 
participating in the SBGP responsible for addressing an airport 
action's environmental impacts under the SBGP, except for those actions 
remaining under FAA's purview. The commenter notes there are often no 
``Federal actions'' associated with the state's activities under the 
SBGP. The commenter further notes that there are no Federal 
environmental requirements, except for the contractual provisions to 
comply with NEPA the SBGP agency made with FAA to comply with NEPA when 
the SBGP agency became a SBGP participant. Those provisions make the 
participating state responsible for analyzing the environmental effects 
of actions under the state's SBGP purview. The Order should clarify 
that for SBGP purposes, references to ``FAA'' responsibilities mean 
SBGP agency responsibilities, unless the Order notes otherwise. Another 
commenter urges FAA to seek opinions from CEQ and EPA about the way FAA 
conducts the SBGP. The commenter contends that FAA cannot delegate its 
responsibilities to SBGP participants and that FAA's approach differs 
significantly from the Federal Highway Administration's (FHWA) local 
assistance programs. In no instances may State and local requirements 
substitute for Federal requirements. Following ``NEPA-like'' laws 
instead of NEPA will cause many inconsistencies in the SBGP. Therefore, 
FAA should follow Federal requirements. The commenter suggests that FAA 
use the commenter's program as an example of delegating 
responsibilities to a modal entity. ARP's Response: Order 5050.4B ARP, 
paragraphs 210-214 clarify how environmental requirements apply under 
the SBGP. FAA made a commitment to provide that information in its 
preamble for Order 1050.1E. Those paragraphs explain how participating 
states and various FAA environmental effects of SBGP airport projects 
and FAA actions associated with those projects.
    Regarding the clarification of responsibilities under the SBGP, ARP 
has revised the Order's Introduction and included new paragraph 212. 
The revisions clarify that for SBGP actions, participating state agency 
personnel assume the roles a responsible FAA official or an approving 
FAA official would normally fulfill, unless Order 5050.4B specifies 
differently.
    Addressing a commenter's note that FAA should seek CEQ and EPA 
opinions on the way FAA conducts its SBGP, CEQ has determined that 
5050.4B procedures,``* * * comport with NEPA.'' \8\
---------------------------------------------------------------------------

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

    Addressing the comment on delegating responsibilities to SBGP 
participants, ARP wishes to again clarify a misconception that it is 
``delegating'' its NEPA responsibilities in SBGP cases. ARP is not 
delegating those responsibilities because it has no major Federal 
action to delegate. Paragraph 211 of the final Order clearly states 
that upon distributing SBGP funding, which is categorically excluded 
under paragraph 307o of Order 1050.1E, ARP has no discretion in 
deciding the use of that funding. That decision is solely the SBGP 
agency's. As a result, ARP has no NEPA responsibilities since it lacks 
authority over the airport projects the SBGP monies finance. However, 
readers should note that paragraph 213.a clearly states that ARP does 
retain NEPA responsibilities for that portion of an SBGP airport action 
for which an SBGP agency requests AIP discretionary funds to supplement 
SBGP funding. In this case, ARP must meet its responsibilities under 
NEPA and other applicable special purpose law because it is exercising 
discretion regarding the allocation of the additional funds.
    Regarding the commenters concern about ``NEPA-like'' laws, ARP 
notes that paragraphs 212.b and c address this concern. Paragraph 211 
underscores that once ARP issues the SBGP funds to participating 
states, ARP has no discretion on the airport projects on which the 
States spends their SBGP funding. Therefore, Federal environmental 
requirements do not apply to those actions. However, to maintain 
environmental stewardship, FAA imposes a contractual agreement on 
states participating in the SBGP. The agreement requires the SBGP state 
to meet applicable environmental requirements to ensure the SBGP 
participants use a rational, interdisciplinary, and proven method to 
analyze airport project impacts on environmental resources. Paragraph 
212.b notes, a ``NEPA-like'' SBGP participant may use the State's NEPA-
like requirements in lieu of this Order. This practice is consistent 
with CEQ policy regarding integration of procedures (40 CFR 1500.2) and 
requirements addressing reductions of paperwork and delay (40 CFR 
1500.4 and 1500.5, respectively). States not having ``NEPA-like'' laws 
must comply with the requirements of Order 5050.4B. In both instances, 
the participating SBGP state must also meet special purpose laws 
outside NEPA.
    ARP appreciates the commenter's suggestion that ARP use the 
commenter's program delegating environmental responsibilities to 
states. But because ARP is not delegating any of its responsibilities, 
there is no need to develop a delegation agreement with its SBGP 
participants. Once ARP approves the grant of block funds to a 
participating state under 49 U.S.C. 47128, that state assumes 
administrative responsibility for all airport grant amounts available 
under Subchapter 1 of Chapter 471, except those funds for primary 
airports. However, ARP does oversee the SBGP to ensure participants are 
meeting their contractual agreements.
    Streamlining: A commenter does not think any streamlining rule that 
rushes the NEPA process is a good one. The commenter considers the rule 
as a ``euphemism used to conceal and deceive the public'' about 
aviation's environmental destruction. The commenter opposes every 
proposal the Order contains because the Order's main purpose is to 
promote aviation's benefit and destroy the environment. The commenter 
also states that wildlife hazard management is intended to kill 
wildlife. The commenter also requests a copy of the Best Practices. 
ARP's Response: ARP prepared the streamlining instructions in Chapter 
15 of the final Order to address Congressional and Presidential 
requirements in Vision 100 and Executive Order 13274, respectively.
    ARP stresses sponsor-prepared and implemented wildlife management 
plans help reduce injuries and deaths to millions of passengers, birds, 
and other wildlife species resulting from aircraft-wildlife collisions. 
ARP's requirements for airport sponsors to control wildlife species, 
especially those that have regularly been involved in aircraft-

[[Page 29027]]

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

Beginning Responses to Comments on Specific Paragraphs of the Draft 
Order

    Preface comments: Two commenters suggested adding language to the 
Preface to note the Order provides NEPA guidance for ARP. If conflicts 
between this Order and Order 1050.1E exist, users are to follow the 
instructions in 1050.1E. In that case, FAA personnel may follow the 
instructions in Order 5050.4. The commenters note that Order 5050.4A 
lacked a process for updating its content, so the commenter suggested 
that the Preface explain how FAA would update Order 5050.4B. ARP's 
Response: ARP agrees. ARP has placed the information the commenters 
suggest in the Order's revised Introduction.
    Introduction comments: A commenter suggested adding a clarifying 
statement about reasonable alternatives. Those alternatives should meet 
the purpose and need and FAA's mission to provide safe, efficient air 
transportation for the Nation. ARP's Response: We agree in part and 
respectfully disagree in part. ARP has revised the text addressing this 
topic and placed it in paragraph 504.d of the Order. That paragraph 
notes that the range of alternatives developed during airport planning 
differs from that FAA examines during the NEPA process. As paragraph 
504.d(2) notes, the range of reasonable alternatives FAA considers 
during NEPA must include alternatives developed during project planning 
and those reasonable alternatives outside the airport sponsor's and 
FAA's jurisdiction. Therefore, FAA agrees that these alternatives 
should meet purpose and need, but it disagrees with the commenter's 
clarification due to the requirements of 40 CFR 1502.14(c). That would 
be inconsistent with 40 CFR 1502.14(c), which states agencies: ``shall 
include reasonable alternatives not within the jurisdiction of the lead 
agency.'' Including the statement regarding FAA's statutory mission in 
the final Order could be misconstrued. Doing so could mean that FAA has 
adopted the statutory objectives test to narrowly define a purpose and 
need that would exclude reasonable alternatives from NEPA analysis.
    Chapter 1 comments: ARP received no general comments on this 
chapter. Regarding paragraph 1, one commenter stated the paragraph 
extends NEPA's reach. Another commenter stated that this description of 
objectives is incomplete because it omits important detail from 40 CFR 
1500.1 and focuses solely on public disclosure. Both commenters 
recommend using different text to more accurately describe NEPA's 
intent. One commenter suggested using the entire statement of 
objectives from 40 CFR 1500.1(a) or paragraph 10a from Order 5050.4A, 
the other recommended the text from paragraph 200.a of draft Order 
5050.4B. ARP's Response: Agree. ARP revised paragraphs 1 and 2 to 
better reflect NEPA's intent using information in 1500.1(a). ARP 
deleted paragraph 200.a. as written in the draft Order because it was 
somewhat duplicative.
    Two commenters state that paragraph 3.d should note the Order 
should strengthen the explanation of how ARP addresses special purpose 
laws. The Order should relate that presentation to the laws' 
application in a NEPA context. ARP's Response: Agree. Paragraph 9.t 
explains this.
    Comments on paragraph 8 varied. This paragraph contained several 
subparagraphs defining many of the terms the Order uses. Another 
commenter sought definitions for ``mitigated FONSI'' and ``special 
protection laws.'' Other commenters sought definitions for or 
clarifications of the terms: ``Airport Improvement Program;'' ``day-
night average level;'' ``expertise agencies;'' ``joint lead agency;'' 
``major Federal action;'' ``major runway extension;'' ``reasonably 
foreseeable action;'' ``responsible FAA official;'' ``significant 
impact;'' ``special purpose laws;'' ``special protection laws;'' 
``supplemental EIS;'' and ``written-re-evaluation.'' Another commenter 
urged the use of ``highly controversial action'' as defined in Order 
1050.1E. ARP's Response: Readers should note that the final Order now 
presents definitions in paragraphs 9a.-9v. Document re-organization 
caused this paragraph re-numbering. ARP has enhanced many of the 
definitions these paragraphs provide. Readers should note that the 
draft Order used the terms, ``special purpose laws'' and ``special 
protection laws'' synonymously. For consistency, the final Order uses 
only ``special purpose laws.'' Also, the final Order contains a more 
complete list of laws, regulations, and executive orders comprising the 
term, ``special purpose laws.'' Order 5050.4B has incorporated Order 
1050.1E's definition of the term, ``highly controversial action'' and 
more information on ``written re-evaluations.'' Paragraph 1402 provides 
a more comprehensive discussion for supplementing NEPA documents.
    Chapter 2 comments: General Chapter 2 Comments: A commenter stated 
the text in the draft Order was not clear regarding NEPA's 
applicability to ALP changes not involving Federal funding. ARP's 
Response: ARP addresses this issue in paragraph 202.b of the final 
Order. The paragraph states FAA must comply with NEPA and other 
applicable special purpose laws when unconditionally approving ALPs 
whether or not the approval involves Federal funding (paragraph 9.g 
(3)).
    Another commenter suggested the note on the Desk Reference 
following paragraph 200.d of the draft Order stress that ARP will 
provide the Desk Reference to clarify applications of significance 
thresholds in Order 1050.1E, Appendix A. The commenter suggests that 
Order 5050.4B modify

[[Page 29028]]

thresholds to eliminate their ambiguity. ARP's Response: Order 5050.4B 
deleted the note. Readers should see that Table 7-1 presents the 
agency's significance thresholds per Order 1050.1E, Appendix A. ARP is 
not authorized to modify any of the thresholds because Order 1050.1E, 
as the agency-wide document, provided those thresholds for public 
review and they are the thresholds FAA established for all FAA 
organizations. Although ARP can petition the Office of Environment and 
Energy (AEE) to change the thresholds, only AEE is authorized to do so. 
But before making changes, AEE will provide the public an opportunity 
to review changes or additions to the thresholds because they would 
change the agency's Order implementing NEPA. Readers should note that 
column 3 of Table 7-1 presents information to help Order 5050.4B users 
determine airport-related impacts relative to the stated thresholds. 
These factors are based on information in paragraphs 47.e and 85.a -t 
of Order 5050.4A that ARP staff and others have found valuable in 
determining impact significance for airport actions during the past 20 
years. Because airport actions often physically disturb more land or 
water areas than most other FAA actions, ARP includes that information 
for convenience and because of its analytical value. Doing so also 
addresses a comment from some reviewers who noted that Order 5050.4A 
contains useful information that Order 5050.4B should include.
    Regarding paragraph 200.c, a commenter states that FAA must 
evaluate more than environmental factors in its NEPA process. Other 
commenters ask if NEPA applies to ALP and Passenger Facility Charges 
(PFC). ARP's Response: ARP concurs and has revised the wording. 
Paragraph 200.a(2) notes the agency considers other factors (e.g., 
economic, technical, safety) as well as environmental factors. The 
intent of the sentence was to stress that FAA must weigh environmental 
factors in its decisions. That paragraph also uses the term, ``Federal 
actions,'' a term including PFC and ALP approvals per paragraph 9.g of 
the final Order.
    Addressing comments on paragraph 201.b(1), a commenter recommends 
deleting ``FAA-funded'' master plans. ARP's Response: Concur. Revised 
paragraph 201.b(1) tells airport sponsors to consider environmental 
factors in master planning, regardless of the funding source used to 
develop that planning. This should help enhance the subsequent NEPA 
process ARP would complete to make a decision on the planned airport 
projects master plans address.
    Regarding paragraph 201.b.(4), a commenter seeks clarification on 
the need for a SBGP participant to consult with federally-recognized 
Tribes on a government-to-government basis. The commenter notes if a 
SBGP agency is authorized to conduct direct consultation after initial 
FAA/Tribal contact, the Order should state so. Another commenter notes 
a public hearing or meeting is not needed for all NEPA actions. ARP's 
Response: Paragraph 212.e of the final Order clarifies SBGP and Tribal 
consultation. The paragraph states if an FAA organization is involved 
in an action associated with an SBGP airport action, the responsible 
FAA organization will conduct the Tribal consultation. If there is no 
FAA involvement, the SBGP agency should follow instructions in 
paragraph 303 of the Order, to ensure Tribal consultation occurs in a 
respectful manner. SBGP agencies should note that regional and district 
ARP office personnel are available to aid the SBGP agency in this 
consultation. That paragraph and other paragraphs in new Chapter 3 
(Agency and Tribal Coordination) developed for the final Order discuss 
how FAA personnel will conduct Tribal consultation according to FAA 
Order 1210.20, American Indian and Alaska Native Tribal Consultation 
and Policy and Procedures.
    ARP concurs with the comment that public hearings are not needed 
for all NEPA actions. Revised text in paragraph 201.b(4) adds the words 
``* * * if one is appropriate'' to clarify that not all NEPA actions 
require a hearing.
    Concerning paragraph 203.a, a commenter requests information 
regarding the need to consult with FAA when an SBGP action requires an 
EIS. The commenter wants to know if the airport sponsor or the state 
agency is responsible for consulting with FAA regarding EIS preparation 
in this case. ARP's Response: Paragraph 214.d(2)(a) of the final Order 
clarifies this issue. When ARP or another FAA organization has an 
action connected to a SBGP project, the FAA organization responsible 
for the connected action will be a joint-lead agency with the SBGP 
agency to ensure the document also meets the requirements of Order 
1050.1E and Order 5050.4B. As needed, the SBGP and/or the FAA 
organization may request assistance from the appropriate regional or 
district ARP office or ARP's Airports Planning and Environment Division 
(APP-400). Although these ARP offices are not responsible for preparing 
EISs for all SBGP connected actions, they have experience that may aid 
the SBGP agency and other FAA organizations in document preparation. 
This involvement may also help ensure efficient information exchanges 
and proper consultation among the SBGP, agencies, and interested 
parties occurs. In those rare cases, where there is no FAA organization 
involved, the state agency follows instructions in paragraph 214.d(1) 
of the final Order.
    Regarding paragraph 205, a commenter complimented ARP for 
recognizing the public's participation in airport review. Another 
commenter requests more information on obtaining public involvement 
during EA scoping or for categorically excluded actions. ARP's 
Response: The agency appreciates the comment. Now, this information is 
part Chapter 4 of the Order, which focuses on public involvement. Also, 
paragraph 704 discusses public involvement in EA preparation. Paragraph 
606.b discusses public involvement requirements of special purpose laws 
and categorically excluded actions. The reader should note that FAA 
must complete public involvement requirements before categorically 
excluding an action, if the potential extraordinary circumstances 
relating to the proposed action involve special purpose laws having 
public involvement requirements.
    Chapter 3 comments: General Chapter 3 Comments: A commenter states 
``one reason some environmental reviews take so long is the disconnect 
between physical/facility planning and environmental review. Projects 
are not sufficiently defined before the NEPA process begins. FAA is 
revising the advisory circular (AC) concerning master planning. There 
needs to be close integration between this chapter, particularly 302, 
and the revised master planning AC. If master plan analysis more 
closely resembled NEPA analysis on such major issues as project 
purpose, alternatives and environmental impacts, planning, projects and 
environmental reviews would be improved. This chapter should encourage 
that planning. ARP's Response: ARP agrees it sometimes begins the NEPA 
process prematurely. However, ARP wishes to note that this ``premature 
start'' is often in response to airport sponsor desires or demands to 
force ARP to begin the NEPA process before the sponsor completes the 
planning for which it is responsible.
    ARP agrees that Order 5050.4B should reflect some of the concepts 
on critical NEPA and planning issues like project purpose, 
alternatives, and other topics that the master planning AC discusses. 
The draft Order had some information on the NEPA/planning connections, 
but ARP has greatly enhanced this

[[Page 29029]]

information in the final Order. New Chapter 5 addresses early airport 
planning and NEPA. The chapter contains planning information from the 
master planning AC and ARP's Best Practices Web site. ARP hopes that 
the new chapter and AC improve the coordination between airport 
planners and environmental specialists so airport planning and NEPA 
processes are more efficient and effective.
    Regarding paragraph 300.a, another commenter stated the Order 
should clarify that the approving FAA official must evaluate an airport 
action's environmental effects and issue a ``NEPA decision'' approving 
that action. ARP's Response: Agree. New paragraph 500.b highlights the 
need for the approving FAA official to issue a FONSI or ROD or 
categorically exclude an airport action before an official approves the 
action.
    Concerning paragraph 300.b, another commenter suggested that the 
Order reinforce the requirement that the NEPA process is an independent 
process, not intended to justify a proponent's action. ARP's Response: 
Agree. New paragraph 500.a enforces critical NEPA principles of 
objectivity and good faith.
    Regarding paragraph 300.c, the same commenter disagreed with the 
paragraph's requirement for the responsible FAA official to work more 
closely with airport planners early in the planning process. The 
commenter stated this would commit FAA to expanded roles that would 
have to be embraced to make the process work smoothly. ARP's Response: 
ARP realizes that earlier involvement places a workload on FAA 
personnel. However, this involvement should reduce delays during the 
subsequent NEPA process by addressing flaws and gaps in planning data 
that could delay that process. Chapter 5, particularly paragraph 501, 
emphasizes the need for better coordination between planners and 
environmental specialists. This will improve the efficiency and 
effectiveness of the planning process and the subsequent NEPA process.
    Two comments on paragraph 301.b sought a definition for the term 
``practicable alternative.'' Another stated the Order should tell 
airport sponsors to tell the surrounding communities about the 
sponsor's proposed actions. ARP's Response: The final Order deleted 
this term. Instead, paragraph 706.d(6) of the Order notes that 
``reasonable alternatives'' are those choices the airport sponsor (or 
FAA) has developed to address the problems the sponsor faces. That 
section also states that agencies must include reasonable alternatives 
not within the jurisdiction of the lead agency (see response to 
Introduction). Those alternatives would also include Paragraph 706.d 
provides more information on alternatives. It emphasizes that an EA 
must address reasonable alternatives in addition to the No Action and 
Proposed Action when there is an unresolved conflict regarding 
alternative uses of available resources (paragraphs 706.d (5) and (6)).
    Regarding the comment on telling surrounding communities about 
proposed actions, paragraph 501.a of the final Order notes the 
importance of considering community concerns about aircraft noise 
during the planning process. In addition, new Chapter 4 on public 
participation provides more information on how airport sponsors and FAA 
alert and engage surrounding communities about proposed airport 
projects. As Chapter 4 of the final Order and the AC on master planning 
emphasizes, the airport sponsor is responsible for informing and 
engaging the public during the sponsor's planning efforts.
    Starting comments on paragraph 302. Another commenter made a 
general comment about the statement that a sponsor identifies its 
proposed actions during master planning. According to the commenter, 
this ``* * * could appear that FAA encourages sponsors to make a 
decision too early in the NEPA process.'' The commenter notes this may 
give the appearance that FAA encourages sponsors to make decisions 
before FAA complete the NEPA process. The commenter also argues the 
purpose and need should be part of master planning. ARP's Response: ARP 
appreciates the comment on using the words, ``proposed action,'' but we 
see no conflict with NEPA. Many airport sponsors identify a proposed 
action during master planning to address the issues the airport sponsor 
is attempting to solve. ARP sees no harm in the airport sponsor 
identifying a proposed action, provided sponsors and the public realize 
ARP is not obligated in any way to approve the sponsor's proposed 
action. The ``proposed action'' may be, but is not necessarily the 
agency's ``preferred alternative.'' The proposed action may be a 
proposal in its initial form before undergoing analysis in the NEPA 
process, ``* * * a proposed action may be granting an application to a 
non-federal entity for a permit'' (Forty Most Asked Questions (46 FR 
18025, March 23, 1981, as amended 51 FR 15619, April 25, 1986, Question 
5a). As ARP may not have a preferred alternative until it issues a 
draft or final EIS, ARP is able to rebut any claims of bias that may 
result from a sponsor identifying a proposed action.
    In response to the comment that, ``purpose and need'' during 
planning, should be part of the master plan, we respectfully disagree. 
``Purpose and need'' is a term of art under NEPA. Although the master 
plan considers environmental factors, it is not the NEPA process nor 
should it be. Master planning is the sponsor's responsibility, while 
NEPA is FAA's. To avoid confusing planners and others preparing master 
plans and NEPA documents, ARP avoided using the term ``purpose and 
need'' for planning purposes in Chapter 5.
    A commenter recommended revising paragraph 302.a to include some 
discussion about the need to compare a sponsor's airport master plan 
forecasts and FAA's Terminal Area forecasts. ARP's Response: Agree. The 
final Order discusses the need for reasonable consistency between a 
sponsor's forecasts and FAA's Terminal Area Forecast (TAF) to ensure 
the scientific integrity of the discussions and environmental analyses 
in NEPA documents for airport actions. Paragraph 706.b(3) of the final 
Order provides instructions for handling variations in forecasts.
    Regarding paragraph 302.b one commenter suggested deleting the 
discussion of airport noise compatibility planning because 5050.4B was 
not the place to define master plan requirements except to the extent 
that they facilitate NEPA processing. This commenter also indicated 
that paragraph 303 was ample to address noise compatibility planning. 
Another commenter indicated that the text as drafted suggested that 
noise issues should be addressed in the master plan, not an airport 
noise compatibility program. ARP's Response: Agree. Although Order 
5050.4A discussed airport noise planning under 14 CFR part 150 (Airport 
Noise Compatibility Planning), we have eliminated it from this Order. 
Revised paragraph 503.c notes that airport planners should consider 
noise when planning an action because noise is often the public's 
primary concern regarding airport actions. Knowing the locations of 
noise sensitive land uses relative to a proposed action's environmental 
impacts provides valuable information during the subsequent NEPA 
process.
    Concerning paragraph 303 in general, a few commenters disagreed 
with the following language in the draft Order dealing with project 
specific noise impacts and part 150, `` the sponsor may not delay the 
proposed action's mitigation for inclusion in an NCP that would be 
prepared after the EA or EIS is completed.'' One commenter noted

[[Page 29030]]

that this would obligate sponsors to mitigate for actions that FAA 
might approve, while the other stated, ``meaningful noise mitigation 
cannot be defined during the NEPA process, particularly when litigation 
is expected.'' ARP's Response: ARP has revised paragraph 706.g(3) to 
clarify that FAA may not rely upon a commitment by an airport sponsor 
to conduct a study under 14 CFR part 150 as mitigation measure in an EA 
or an EIS. Rather, a part 150 study may only be used to identify 
mitigation measures if the study is completed concurrently with the EA 
or EIS. Contrary to the first commenter, the mitigation measures would 
be identified not in advance, but at the same time that FAA makes its 
decision concerning the proposed action. We believe that meaningful 
noise mitigation can be identified during the NEPA process. Mitigation 
measures approved in an environmental Record of Decision for an airport 
development project may now be funded using amounts available under the 
noise set aside in the discretionary fund under 49 U.S.C. 47117(e). 
Therefore, there is no need for airport sponsor to prepare noise 
studies under 14 CFR part 150 with EISs to gain access to noise set 
aside funds.
    One commenter stated that paragraph 303.b should require public 
involvement for categorically excluded actions. ARP's Response: Agree 
in part. Paragraph 606.b of the final Order discusses public 
involvement and CATEXs. The reader should note that ARP must complete 
all public involvement requirements for CATEXs if the actions involve 
extraordinary circumstances based on special purpose laws having public 
involvement requirements.
    A commenter noted that paragraph 303.c should include the 
California Noise Equivalent Level (CNEL) metric. Another commenter 
noted the DNL 65 dB level is not always FAA's significant noise 
threshold, especially for Section 4(f) or historic resource impacts. 
Yet another commenter noted that FAA should use noise levels below the 
DNL 65 dB level to determine noise effects. ARP's Response: ARP agrees 
with the comment on CNEL. The revised Order references CNEL as an 
acceptable metric in paragraph 9.n. Regarding the significant noise 
threshold, readers should review FAA's response to this issue in its 
Federal Register Notice of Availability of Order 1050.1E (69 FR 33818-
19, June 16, 2004). As stated in Order 1050.1E, Appendix A, section 
14.3, ``[s]pecial consideration needs to be given to the evaluation of 
the significance of noise impacts on noise sensitive areas within 
national parks, national wildlife refuges and historic sites, including 
traditional cultural properties. For example, the DNL 65 dB threshold 
does not adequately address the effects of noise on visitors to areas 
within a national park or national wildlife refuge where other noise is 
very low and a quiet setting is a generally recognized purpose and 
attribute.'' Order 1050.1E, Appendix A, section 14.5g states that ``the 
FAA will consider use of appropriate supplemental noise analysis in 
consultation with the officials having jurisdiction'' over such areas. 
Table 7-1 of final Order 5050.4B incorporates this information.
    Concerning paragraph 304, two commenters seek clarification of the 
objectives noted in the paragraph. ARP's Response: As written, the 
paragraph indicated that ARP would analyze the data provided and 
determine if more information were needed to address issues or 
problems. The second objective was to determine the proper 
environmental analyses. ARP has revised this paragraph, which is now 
paragraph 506 of the final Order. The paragraph states that during 
project planning the responsible FAA official will determine, via an 
interdisciplinary approach and working with the airport sponsor, the 
probable environmental evaluation a proposed action warrants.
    Concerning paragraph 304.b, a commenter suggests ARP review Tables 
in the draft Order listing CATEXs to ensure they include all airport 
actions listed in paragraphs 307-312 of Order 1050.1E. The commenter 
noted the Tables did not contain all actions and this could mislead the 
public about airport actions that are categorically excluded. ARP's 
Response: Agree. ARP has revised Tables 6-1 and 6-2 to include airport 
actions the draft Order inadvertently omitted.
    Regarding paragraph 304.b(1), a commenter rightly noted this 
paragraph was not consistent with paragraph 403.b, which provided 
clearer guidance on when FAA may CATEX an action similar to ones 
listed. The commenter notes some FAA offices have categorically 
excluded an action if it fits into a category. This appears to be 
counter to the instructions in Order 1050.1E, paragraph 303c, which 
that states FAA may categorically exclude only listed actions. ARP's 
Response: Agree. The draft Order did not properly convey the 
instructions in Order 1050.1E. Paragraph 601 of the final Order 
clarifies the draft's instructions. In particular, paragraph 601 
addresses other actions that may be categorically excluded provided 
they are similar to those listed in paragraphs in Order 1050.1E.
    A general comment on paragraph 305 emphasized the need for clearer 
instructions on minimum public involvement for actions an EA addresses. 
The commenter wants to know if all draft EAs are subject to public 
review and if the sponsor must respond to comments on a draft EA the 
way FAA must respond to comments on a draft EIS. Another commenter 
suggested deleting the word, ``Environmental Assessment'' from the 
section title because information in the paragraph also pertains to 
EISs. ARP's Response: Agree in part, disagree in part. We agree with 
the commenter about the section title. ARP replaced the words 
``Environmental Assessment'' in the title of paragraph 301 with ``the 
Environmental Review Process.'' We included paragraphs 301 and 704 to 
emphasize requirements under 40 CFR 1501.4 for Federal agencies to 
involve the public to the extent practicable in preparing EAs. As to 
whether comments on a draft EA have to be responded to in the way FAA 
responds to comments on a draft EIS, the approach depends upon the 
complexity of the matter involved. Generally, responses to comments on 
a draft EAs may be less comprehensive and detailed.
    For paragraph 305.b, a state agency noted that cooperating agency 
status applies only to EISs. The paragraph is wrong in stating 
cooperating agency status is warranted for EAs and warns ARP about 
using CEQ terms in the wrong context. Another commenter objects to 
public review before the final EA is submitted to FAA. The implication 
is comments on the draft EA are used in preparing the final EA. The 
commenter seeks clarification on the need for a draft and final EA for 
all actions. Finally, although involving the public in the EA process 
is prudent, requiring drafts, comment periods and final EAs in all 
circumstances is ``resource intensive.'' ARP's Response: Disagree with 
the comment addressing cooperating agencies and EAs. Although the 
commenter is correct in stating that CEQ regulations only address 
adoption of EISs, the objectives of reducing delays and eliminating 
duplication underlying the adoption provisions apply to adopting EAs. 
``Consequently, the Council encourages agencies to put in place a 
mechanism for adopting environmental assessments prepared by other 
agencies.'' (See Memorandum: Guidance Regarding NEPA Regulations, at 48 
FR 34263, July 28, 1983). FAA established agency-wide procedures for 
adopting EAs in paragraph 404d of 1050.1E and 5050.4B must conform to 
those procedures. Regarding the second

[[Page 29031]]

commenter's input, ARP agrees with the commenter's interpretation of 
the instruction that, ``public review for draft EAs is important and 
should be considered when preparing the final EA.'' Regarding the need 
for a draft and final EA for all actions, typically this is the case. 
Rarely does ARP accept the initial EA as a final. Finally, readers 
should note ARP is not requiring public review for all draft EAs. That 
review is warranted when a public hearing will occur (see paragraph 708 
of the final Order), but the need for such review in other situations 
is left to the responsible FAA official's discretion.
    Concerning paragraph 306, a commenter suggests that state and local 
review processes should include local municipalities. ARP's Response: 
Agree. The draft text assumed readers would include affected 
municipalities in their consultations. Paragraphs 301 and 302 of the 
final Order note that the term, ``local agencies'' includes 
municipalities and why their input can be important.
    Addressing a comment on paragraph 306c, a commenter notes, in its 
opinion, there are five steps to realize a project. These are planning, 
engineering, environmental review, financing, and construction. The 
commenter states the first and last steps are clearly defined, but the 
others are not, so it recommends the Order address them. It should 
address the 20% limit on engineering drawings noted later and the fact 
that infrastructure projects can have a logical purpose and need, but 
won't occur if they are not AIP eligible or financed. Another commenter 
believes requesting review agency consultation is excessive. ARP's 
Response: Addressing the ``five steps,'' ARP agrees they are critical. 
Readers should note the Order addresses how four steps relate to the 
NEPA process (actual construction is not discussed). Chapter 5 of the 
Order addresses the relationship between planning, which includes cost 
estimates and construction plans, and environmental review. Paragraph 
1004 addresses the relationship between engineering (the level of 
engineering drawings) and environmental review. ARP recognizes that 
there is a need to consider financial costs in identifying reasonable 
alternatives under NEPA. Eligibility for federal funding or use of 
passenger facility charges could affect the range of alternatives 
studied under NEPA. However, ARP does not agree with the commenter that 
this Order, prepared for NEPA compliance, should address planning, 
engineering, financing or construction as distinct topics. Beyond the 
manner in which they bear upon NEPA review, instructions concerning 
these matters are outside the scope of this Order. ARP's Financial 
Division (APP-500) has issued guidance for financial assistance, 
including Order 5100.38, Airports Programming Handbook and FAA Policy 
and Final Guidance Regarding Benefits Cost Analysis on Airport Capacity 
Projects for FAA Decisions on Airport Improvement Program Discretionary 
Grants and Letters of Intent, (64 FR 70107, December 15, 1999). ARP's 
Engineering Division (AAS-100) is available to help sponsors and other 
interested parties with design and construction plans. Turning to 
``excessive'' agency consultation, ARP disagrees. When reviewing an EA 
or information supporting a CATEX, agency input is critical to ARP's 
determination of impacts and the proper NEPA document. These 
instructions ensure the responsible FAA official has the agency input 
needed to complete the NEPA process efficiently and effectively.
    Concerning paragraphs 306.c(1) and (2), a commenter noted the 60-
day and 45-day periods signaling the start of agency or Tribal 
consultation are inconsistent. Another commenter suggests the time 
frames are too short and seeks to tie the consultation to Capital 
Improvement Plan data sheets or grant application submittal. Non-agency 
commenters sought clarification of the 45-day period regarding ALP 
approvals that do not involve Federal funding. The commenters think 
this requirement will unnecessarily delay approvals of certain 
categorically excluded actions and needs to provide some flexibility. 
Another commenter wants ARP to omit the specified time frames and 
substitute ``reasonable timeframe.'' Another commenter urges ARP to 
include EISs in this discussion, since Order 1050.1E directs FAA 
personnel to ensure compliance with NEPA. The same commenter notes that 
agencies are reluctant to begin consultation before FAA has determined 
an EA or EIS is needed. The commenter suggests deleting the discussion 
when a sponsor is not seeking AIP funding, since the opening sentence 
addresses AIP funding. ARP's Response: Regarding the comment on timing 
consultation, ARP disagrees. The draft's paragraphs properly 
highlighted different time sequences, depending on the sponsor's need 
for AIP funding. The times are needed to ensure proper consultation 
occurs for the NEPA process. To better reflect AIP funding and review 
needs, paragraph 302.b(2) of the final Order clarifies the start of 
this consultation. After consulting with the Airports Programming 
Division (APP-500), ARP's office responsible for AIP financing, we 
revised paragraph 302.b(2) to meet financial reviewer needs as well as 
those of environmental specialists. The paragraph now states the 
sponsor should start consultation so there is sufficient time to enable 
the sponsor to file the final EA with ARP by April 30 of the fiscal 
year (FY) preceding the FY the sponsor seeks discretionary AIP funding 
for the action. If the sponsor seeks no AIP funds, paragraph 302.b(3) 
states the consultation should begin at a time that is sufficient for 
FAA to complete its NEPA review and accommodate the sponsor's schedule.
    Addressing other comments on time frames, ARP declines to add EISs 
to this discussion. The intent of instructions in 302.b is simply to 
help airport sponsors schedule the start of consultation for documents 
they prepare. Since FAA is responsible for preparing EISs for most 
airport projects, ARP believes paragraphs 302.b(2) and (3) address the 
commenter's concerns. The new instructions highlight the need for 
airport sponsors to determine the ``reasonable timeframes'' to meet 
consultation requirements and their schedules. This provides the 
flexibility commenters sought. ARP emphasizes that sponsors should not 
delay consultation, since it is crucial to ARP completing the NEPA 
process.
    Addressing the last comment, ARP disagrees with the commenter's 
suggestion to delete the information addressing ALP approvals not 
involving Federal funding. The Order should address common situations, 
so ARP includes the information in paragraph 302.b(3) of the final 
Order to address this rare scenario.
    Regarding paragraph 306.d, a few commenters noted the confusing 
language this paragraph contains. One commenter suggests the 30-day 
period that must elapse between issuance of opportunity for a public 
hearing and the hearing itself is the maximum time allowed. The 
commenter also asks if the hearing must occur before or after the draft 
EA is published. Another commenter states that the instructions require 
punctuation and clarification. A third commenter states that requiring 
two notices (opportunities for a public hearing and document 
availability for the hearing) is unnecessary. One notice should be 
sufficient. A fourth commenter suggests that the FAA define what it 
means by ``expertise agency.'' Without this, the commenter is concerned 
NEPA documents would contain unnecessary information. The commenter 
also suggests the term is different from State, local and Tribal

[[Page 29032]]

entities mentioned elsewhere. ARP's Response: ARP agrees the draft 
instructions were confusing. The ``Notice of Opportunity for a Public 
Hearing'' tells the public that it may request a hearing for an action. 
The ``Notice of Public Hearing'' tells the public that the sponsor, in 
response to public's review of the ``Notice of Opportunity for a Public 
Hearing,'' has determined a hearing will occur. Paragraphs 404 and 406 
of the final Order clarify these points. Paragraph 404.a(4) notes the 
draft NEPA document must be available to the public for a 30-day period 
to help people prepare for the hearing. Paragraph 406.b states that 30 
days must elapse between the ``Notice of Public Hearing'' and the time 
the hearing will occur. Finally, regarding the term, ``expertise 
agencies,'' paragraph 9.f of the final Order defines this term. It 
means ``a Federal, State, local, or Tribal government agency with 
specialized skill or technical knowledge on a particular environmental 
resource.''
    Concerning paragraph 307.f, an SBGP commenter seeks clarification 
on resolving issues at state levels. The commenter notes that sending 
unresolved issues to DOT's Secretary for Administration is excessive. 
The particular block grant agreement designates the State with the 
responsibility to resolve the SBGP issues. ARP's Response: Comment 
noted. Readers should review this Preamble's paragraphs b, k, and State 
Block Grant Program section for more information on the roles of State 
agencies participating in the SBGP. Participating state agencies should 
use instructions in paragraphs 210-214 of the final Order to help them 
address environmental effects SBGP actions may cause. They should also 
use those instructions to determine if FAA retains authority for any 
actions connected to the airport action under the SBGP.
    Concerning non-state block comments on paragraph 307.f, to avoid 
confusion, another commenter mentions the paragraph should emphasize 
FAA reaching agreement with the sponsor before making the EA public and 
if agreement isn't possible, to advise the sponsor that FAA cannot 
accept the sponsor's EA. Another commenter states FAA should not be 
involved in resolving issues, unless there is a Federal tie and the 
intervention should not occur until an EA receives public review. The 
commenter also states elevation of an issue to the DOT is 
inappropriate, unless the issue has national importance. ARP's 
Response: ARP concurs that agreement on important issues is critical in 
preparing any NEPA document. It is the responsible FAA official's duty 
to work with the sponsor to reach that agreement. However, due to 
conflicting opinions on environmental issues, agreements do not always 
occur. To address this, the final Order (paragraph 707.d), as Order 
5050.4A did, discusses how the responsible FAA official might be able 
to help resolve disagreements. This information is helpful in 
determining if an EA is appropriate for an action or if FAA must 
prepare an EIS.
    Responding to the second commenter, ARP points out there would be 
no need for a NEPA document unless a ``Federal nexus'' existed. ARP 
disagrees that its personnel should wait until an EA is available for 
public review before it tries to aid in resolving a problem. That is 
not efficient or effective project or NEPA management. In addition, the 
public does not review all EAs, yet they may still require ARP 
assistance to resolve issues. Further, when possible, ARP prefers to 
work out solutions to problems before issuing an EA for public review. 
This provides the public with a more valuable document, shows that a 
disagreement existed, and the agencies worked to solve it, proving no 
one ``rubber stamps'' actions. Finally, citing the DOT Assistant 
Secretary in the instructions, shows the various governmental levels 
that may be needed to resolve an airport issue. Of course, it is the 
ARP official's decision to determine the process he or she will use in 
trying to resolve an issue. Knowing this, ARP doubts its personnel 
would contact DOT, unless the disagreement involved a matter of 
national significance or otherwise warranted DOT involvement.
    Turning to comments on paragraph 307, a commenter suggested that 
the Order define the term, ``public hearing'' to reflect various ways 
to collect and exchange information with the public. Experience shows 
informal venues often provide the best flow of information between FAA 
and the public. The same commenter also notes that airport sponsors 
often conduct ``local public meetings to discuss future development.'' 
The commenter states the Order should discuss these meetings and how 
they relate to the ``FAA public forum.'' ARP's Response: ARP agrees 
with the comment that there are many informal and highly effective ways 
to involve the public in planning future airport development projects 
and in the NEPA process. However, the comment mistakenly assumes that 
public involvement is the same as a public hearing. NEPA requires 
opportunities for public involvement, including opportunities for 
review and comment in some cases, but not public hearings. ``Public 
hearing'' is a term of art under 49 U.S.C. 47106(c)(1)(A)(i), pursuant 
to which airport sponsors must certify that they have afforded the 
opportunity for a public hearing to qualify major airport development 
projects for federal grant funding. ARP recognizes that the most 
important aspects of a traditional, formal hearing are that a 
designated hearing officer controls the gathering and there is an 
accurate record of the major public concerns stated during the 
gathering. Such criteria are viewed by some as crucial to agency 
decision making because they provide the approving FAA official and 
other interested parties with information on topics of paramount 
concern to interested parties. ARP declines for the first time in this 
final Order to define the term public hearing for purposes of 49 U.S.C. 
47106(c)(1)(A)(i) and NEPA, including whether a public hearing may take 
forms other than the traditional one. Addressing the request for 
information to distinguish ``local'' and ``FAA'' forums, ARP notes that 
it believes the commenter's request addressing ``local'' forum relates 
to public participation in master plan development (i.e., ``future 
development''). In ARP's opinion, hearings for master planning are 
outside the NEPA process and are parts of airport sponsor planning 
responsibilities. Therefore, the sponsor may follow any procedures it 
wishes to inform and conduct those meetings. Readers should note the 
final Order's public hearing instructions at paragraph 404.b apply to 
those airport actions mentioned at 49 U.S.C. 47016.(c)(1)(A)(i) 
requiring the sponsor to provide opportunities for a public hearing. 
More instructions at paragraph 403.c discuss other actions that may 
warrant a hearing to help the sponsor and FAA address other public 
concerns.
    In discussing paragraph 307.a, one commenter wants clearer 
instructions about giving out information to the public as it prepares 
for a public hearing. The commenter also suggests there should be two 
public hearings, one to provide information to the interested public, a 
second for comments after the public has thought about the information. 
ARP's Response: ARP agrees the public should have access to information 
to prepare for hearings or meetings. Paragraphs 404.a and 708 of the 
final Order discuss this. Paragraph 404.a states the ``Notice of 
Opportunity for a Public Hearing'' must provide information on various 
project issues and where and when the public may review the draft EA or 
EIS over a

[[Page 29033]]

30-day period. Paragraph 708 tells airport sponsors that the 
responsible FAA official should review a draft EA before the sponsor 
issues it to the public preparing for a public hearing. FAA's review 
ensures the draft EA the public will study adequately reflects FAA 
policy and concerns before the public sees the document. In addition, 
many draft EAs and EISs are on publicly accessible Web sites; this 
helps to further distribute information for public hearings and public 
reviews. ARP disagrees with the commenter's recommendation to conduct 
two public hearings. ARP believes distributing the ``Notice of 
Opportunity for a Public Hearing,'' the draft EA, and conducting the 
hearing satisfy the reasons the commenter cites for conducting two 
meetings. Reviewing the draft EA and other information provides facts 
to the public about an action. The meeting itself gives the public the 
opportunity to present its concerns about issues the EA discusses.
    Concerning paragraph 307.b, one commenter seeks clarification on an 
obvious inconsistency regarding the draft Order's instructions 
addressing the opportunity for a public hearing. Another commenter 
states paragraph 307.a requires the sponsor to provide an opportunity 
for a public hearing, while paragraph 307.b appears to make the 
opportunity for a hearing optional. A third commenter suggested a 
revision to alert the public that a public hearing may be needed for 
reasons not addressed in paragraph 307a. ARP's Response: ARP does not 
agree an inconsistency in the paragraphs exists. The intent of 
paragraph 307.a is to alert the sponsor who intends to file a project 
grant application for a new airport, a new runway, or major runway 
extension that the sponsor must provide an opportunity for a public 
hearing. The sponsor must do so to comply with 49 U.S.C. 
47106(c)(1)(A)(i). Paragraph 307.b (now paragraph 403) tells the 
sponsor and FAA they may provide an opportunity for a public hearing 
for other airport actions, after considering the specific factors 
mentioned in that paragraph. ARP sees no reason to modify these 
instructions.
    A comment on paragraph 307.c noted that simply filing a draft EA 
with FAA before a public hearing occurs does not ensure the document 
would accurately reflect FAA policies and concerns. Modify the 
paragraph to ensure the draft EA addresses those policies and concerns. 
ARP's Response: Agree. Although we assumed the reader would understand 
the EA would need revision to address FAA concerns, we agree that 
statement is needed. Paragraph 708 of the final Order conveys the 
commenter's suggestion.
    Starting paragraph 307.d comments. Two commenters note that the 
requirement in paragraph 307.d(1)(d) requiring the public to send 
written comments in response to a public hearing within 14 days of the 
hearing is new guidance or a new requirement. They state the specified 
time is unnecessary. Another commenter states that paragraphs 307.d and 
307.d(1) addressing the timing of the hearing relative to notice of the 
hearing contradict each other. Still addressing hearing timing, another 
commenter disagrees with the requirement to provide 30 days between the 
time the notice that a hearing will occur and the date the hearing will 
occur. This period with the 30-day period given to the public to 
respond to an offer to conduct a hearing gives the public at least 60 
days to review a NEPA document. The commenter suggests providing a 15-
day period between the notice announcing the hearing will occur and the 
hearing date. ARP's Response: Regarding the concern about time limits 
for submitting public hearing comments, ARP disagrees with the 
commenters' statement. ARP believes that some reasonable time to file 
comments is appropriate. ARP contends that failing to set that time 
could cause inefficient NEPA processing and result in documents that 
fail to include important concerns arising during public hearings. 
Therefore, paragraph 406.b(4) of the final Order tells the public to 
submit written comments within a 10-day period following the hearing or 
by the end of the NEPA document comment period, whichever is later. ARP 
has set this period to alert the public that project managers need 
timely public input to ensure NEPA documents address public concerns. 
Although no CEQ or FAA-wide requirements addressing public hearing 
comment submittals exist, ARP has established a reasonable time frame 
to help make its NEPA process more efficient and effective.
    Turning to the comments on the ``Notice of Opportunity for a Public 
Hearing'' and the ``Notice of Public Hearing,'' ARP has revised the 
information in paragraph 307.d (1)-(3) of the draft Order. ARP agrees 
the 60-day period between the ``Notice of Opportunity for a Public 
Hearing'' and the public hearing itself may be unnecessary. Therefore, 
paragraph 404.a(5) of the final Order provides a 15-day period for the 
public to decide if it wants a public hearing. Although, this time is 
15 days less than the response time noted in draft Order at paragraph 
307.c, ARP believes that 15 days is sufficient time for the public to 
review the information the ``Notice of Opportunity for Public Hearing'' 
contains and decide that it wants or does not want a public hearing. 
However, paragraph 406.b retains the 30-day period between the time the 
sponsor or FAA issues the notice that a public hearing will occur and 
the date of the hearing. ARP believes the 30-day period provides the 
public sufficient time to prepare for a public hearing.
    Regarding paragraph 307.d(2)(c), a few commenters suggest deleting 
the reference to floodplain encroachment in the ``Notice of Public 
Hearing.'' Citing only one of many resource areas could confuse the 
public that floodplain encroachment is the only impact an action would 
cause. ARP's Response: ARP agrees in part. It has revised the text that 
appeared in the draft Order. To ensure the public is aware of an 
action's potential environmental effects, paragraph 403.b of the final 
Order suggests that the Notice highlight potentially affected 
environmental resources especially floodplain, wetland or historic 
property impacts. Special emphasis is placed on these resources to meet 
the public involvement requirements of the special purpose laws 
protecting those resources. The sponsor or FAA should base the list on 
information in the draft EA or EIS available for public review as noted 
in paragraph 406.b(3) of the final Order. This revision would highlight 
and provide a more thorough list of project-related impacts.
    Addressing comments on paragraph 307.f, ARP reports that two 
commenters stated requiring transcripts for all public hearings, 
including informal workshops, is unnecessary and to do so is costly. 
They agree formal hearings (conducted by designated hearing officials) 
are appropriate venues for transcripts, but informal workshops do not 
lend themselves to court reporting techniques. Instead, they suggest 
using comment forms at workshops or other informal hearings. ARP's 
Response: Disagree. This change is not needed. Paragraph 406.d of the 
final order requires hearing transcripts to ensure decision makers have 
information about major concerns and issues raised during public 
hearings.
    Chapter 4 comments. General comment: A commenter suggested placing 
all tables at the end of the chapter for easier reference and to aid in 
reading the text. ARP's Response: Agree. Tables 6-1 through 6-3 of the 
final Order (formerly Tables 1 though 3 in Chapter 4 of the draft 
Order) are now at the end of Chapter 6 in the final Order.

[[Page 29034]]

Chapter 6 provides information about CATEXs.
    Another commenter had many comments on the assumptions FAA makes on 
assessing noise impacts and the applicability of the assumptions to 
categorical exclusions. ARP's Response: Please refer to this Preamble's 
Significant noise impact threshold section for ARP's response to the 
commenter's concerns.
    Regarding the footnote on page 1 of the draft Order's Chapter 4, a 
few commenters noted the list of laws was incomplete. For example, it 
failed to include wetlands and the Clean Air and Clean Water Acts. 
ARP's Response: Agree. To correct this error, paragraph 9.t and Table 
1-1, list the laws, regulations, and orders comprising the term, 
``special purpose laws'' for purposes of this Order. The table includes 
information from Order 1050.1E, Appendix A, which discusses 
requirements outside NEPA.
    Regarding footnote 2, a commenter wanted clarification of the 
Emissions Dispersion Modeling System (EDMS) model version one should 
use when conducting air quality analysis. The commenter also states it 
is concerned about EDMS's capability because EDMS doesn't provide for a 
particulate matter analysis and some default values are outdated. The 
commenter also asks for information about evaluating toxins * * * 
should one use State or Federal standards? The commenter also requests 
a discussion on air quality conformity. ARP's Response: In response to 
the comment on the EDMS version needed to conduct air quality analysis, 
Order users must use the most recent version of that model (see Order 
1050.1E, Appendix A, paragraph 2.4d).
    In response to the comment about EDMS's ability to predict 
particulate matter (PM), FAA recently developed the First Order 
Approximation (FOA) method to enable the EDMS users to estimate 
PM10 and PM2.5 emissions for commercial, jet-
turbine aircraft engines. The FOA only applies to aircraft engines 
having reported Smoke Numbers (SNs) and modal fuel flows for take-off, 
climb out, taxi/idle and approach. In cases where EDMS does not include 
aircraft PM emission estimates, analysts are to use the best available 
information. An example of this information is average the aircraft 
engine PM data from AP-42, Volume II, Mobile Sources, 4th edition, 
September 1985. Those interested in the FOA may learn more about it at: 
http://www.faa.gov/about/office_org/headquarters_offices/aep/models/edms_model/.
    In addressing the issue of air toxins, ARP refers the reader to the 
discussion of aviation-related pollutants and health risks in FAA's 
Federal Register Notice of Adoption and Availability of Order 1050.1E 
(69 FR 33784, June 16, 2004). As to whether to use Federal or state 
standards for air toxins, the U.S. EPA has not established standards 
for hazardous air pollutants (HAPS). FAA policy is to disclose 
estimates of HAPS emissions for NEPA purposes, but not to assess human 
health risks due to the absence of Federal standards and acceptable 
data linking air toxins to human health (see this Preamble's 
Instructions on ``NEPA-like'' states or agencies for more information). 
FHWA recently issued an interim policy on mobile source air toxins on 
February 3, 2006, at http://www.fhwa.dot.gov/environment/airtoxic.
    Turning to conformity instructions, ARP disagrees with the 
commenter's request to include instructions on conducting a conformity 
analysis. The Clean Air Act, not NEPA governs conformity requirements. 
The Desk Reference will address this topic. Until ARP completes the 
Desk Reference, users of Order 5050.4B should follow instructions on 
general conformity in the Air Quality section of Order 1050.1E's 
Appendix A.
    Regarding draft Order Chapter 4's Tables 1 and 2, a commenter 
stated the Tables did not include certain actions that are 
categorically excluded. As a result, ARP could not CATEX certain 
actions if they did not appear in these Tables. ARP's Response: Agree 
in part. ARP admits that it unintentionally omitted certain airport 
projects and associated actions from the draft Order. To correct this, 
ARP has revised the Tables (now, Tables 6-1 and 6-2). Regarding the 
balance of the comment, ARP disagrees with that commenter's statement. 
ARP wishes to note that its personnel may categorically exclude an 
action even if it is not listed in Tables 6-1 and 6-2 of the final 
Order, provided the action is listed in Order 1050.1E, paragraphs 307-
312. This is because those paragraphs list the categorical exclusions 
that all FAA organizations must use. ARP could have relied solely on 
those paragraphs for airport actions that may be categorically 
excluded. But for convenience and to avoid reading the extensive text 
in those paragraphs not pertaining to airport actions, ARP 
alphabetically arranged airport-specific portions of the agency's 
categorical exclusions in Tables 6-1 and 6-2 of Order 5050.4B. ARP has 
assembled and provided the CATEXs in these tables for ease of 
reference. Nevertheless, there may be actions that ARP may approve, but 
that the Tables inadvertently omitted. If there is any inconsistency, 
Order 1050.1E supersedes the Tables in Order 5050.4B.
    Starting paragraph 403 comments, a reviewer states that CATEXs do 
not contain public disclosure requirements, a critical part of the NEPA 
process. In addition, the commenter objects to the instruction that ARP 
need not notify local officials that ARP is considering a CATEX. 
Further, no written report explaining assumptions on a CATEX is 
required. Finally, there is no way to legally appeal or challenge FAA's 
CATEX determination. ARP's Response: Disagree. ARP follows the agency-
wide instructions in Order 1050.1E, Chapter 3 addressing CATEXs. In 
developing the instructions in Order 1050.1E at Chapter 3, FAA, in 
consultation with CEQ, determined there is no need to involve the 
public when impacts are so minimal that they don't trigger 
extraordinary circumstances. After public vetting of draft Order 
1050.1E, CEQ certified and FAA adopted the instructions in that Order. 
For NEPA purposes, the Order does not include public disclosure 
requirements for CATEXs because these actions are to be so minor in 
impact that they rarely cause significant environmental impacts (40 CFR 
1508.4). Therefore, FAA decided public notices of those actions are not 
needed. However, FAA believes the need to examine extraordinary 
circumstances provides an adequate level of public involvement for 
categorically excluded actions deserving public input. ARP emphasizes 
that if a potential CATEX involves an extraordinary circumstance 
associated with a special purpose law, the responsible FAA official 
must ensure FAA complies with the requirements of that law or Executive 
Order. Some special purpose laws require public involvement. 
Consequently, the responsible FAA official cannot CATEX an action 
without ensuring compliance with the applicable special purpose law's 
public involvement requirements. ARP wishes to point out, that anyone 
who believes ARP did not meet the requirements of the applicable 
special purpose law, may legally challenge the FAA's CATEX 
determination. Anyone believing that ARP did not fulfill the 
requirements of the applicable special purpose law may challenge in 
court FAA's decisions based on the CATEX. ARP notes this provision 
addresses the commenter's concerns there is no way to ``legally appeal 
or challenge FAA's categorical exclusion determination.''
    Regarding alerting local officials, ARP has adopted a requirement 
that its responsible FAA officials inform the airport sponsor that ARP 
has or has not categorically excluded an action. No

[[Page 29035]]

CEQ regulation or agency instruction requires this, but ARP requires it 
to avoid past misunderstandings claiming ARP did not environmentally 
analyze CATEXs.
    Concerning paragraph 403.f, one commenter stated the annotations in 
Tables 1 and 2 are too narrow and should be expanded to include other 
types of airport actions and ALP amendments. For example, Table 2 only 
allows ALP amendments for FAA-approved noise compatibility program 
measures. ARP's Response: Agree. We have revised the lead-in language 
for each type of Federal action Tables 6-1 and 6-2. The language may be 
to: Approve AIP funding; to approve an ALP; or to approval AIP funding 
and an ALP.
    Addressing paragraph 403.f(2), a commenter suggested revising the 
text. The revision would allow the sponsor to provide available 
information to FAA so the responsible FAA official could analyze 
effects. If that information isn't sufficient, the official may request 
an EA or begin an EIS. ARP's Response: Agree. Paragraph 603 of the 
revised Order addresses this concept. It encourages an airport sponsor 
to provide information it has collected to the responsible FAA official 
to aid the official determine if a CATEX is appropriate.
    Concerning paragraph 403.g(1)(a), a few commenters stated that 
requiring documentation to meet applicable legal requirements 
unnecessarily burdens sponsors to prepare evaluations for actions 
normally categorically excluded. The commenter suggests using telephone 
memos, e-mails or other communications to verify the requirements of 
special purpose laws have been met. Another commenter objected to the 
text that appeared to give other agencies veto power over FAA 
determinations on categorical exclusions. ARP's Response: Agree in 
part. If the applicable special purpose law does not require specific 
documentation, ARP agrees the sponsor may use emails, memoranda, faxes, 
or other correspondence to show it has contacted the appropriate 
agency. However, revised instructions at paragraph 605.b address 
documentation needs. Paragraph 606.b(3) of the final Order clearly 
states case files must contain the documentation an applicable special 
purpose law requires. This information is extremely useful to the 
responsible FAA official's decision to CATEX an action or require the 
airport sponsor (or its consultant) to prepare an EA or for FAA to 
prepare an EIS. Addressing the text regarding veto over FAA decisions, 
paragraph 606.b(4) clearly indicates the approving FAA official 
determines the proper NEPA process an action would require.
    Beginning comments on Table 1 of the draft Order. In a comment that 
generally addresses Tables 1 and 2 of the draft Order, a reviewer 
states actions involving extraordinary circumstances require the 
sponsor to provide more documentation for a CATEX. For actions not 
involving these circumstances, the reviewer seeks instruction on how to 
document that situation. The reviewer suggests the sponsor prepare a 
short letter to FAA stating that fact. ARP's Response: See response to 
paragraph 403.g(1)(a).
    Addressing paragraph 404, (the responsible FAA official notifies 
airport sponsors about CATEXs), another commenter stated this appears 
to be optional. Another commenter noted that sponsors are alerted when 
a categorically excluded action involves extraordinary circumstances, 
but sponsors are not notified when actions do not involve those 
circumstances. Another reviewer suggested that ARP adopt one form of 
notice. Finally, another commenter sought notice to local 
municipalities. ARP's Response: Paragraph 608 of the final Order makes 
the notification to airport sponsors mandatory. ARP declines the 
request to notify a local municipality regarding CATEX decisions, 
unless the municipality is the airport sponsor. To avoid past confusion 
some sponsors had about ARP's CATEX reviews, ARP voluntarily adopted 
the notification measure. Regarding the form of notice, paragraph 608 
of the final Order requires an e-mail or dated letter. ARP is using 
either format to ensure this notification e does not place an undue 
burden on regional or district Airports office personnel.
    Regarding Paragraph 405, a few commenters objected to the need for 
an EA if an action required moving people and/or businesses for any 
action. A commenter questioned the need for an EA if an action caused 
one resident to move. Another commenter stated that citing CEQ's 
regulation addressing preparation of an EA when an ARP official decides 
one is needed for agency planning or decision making would be 
confusing, especially for CATEXs sponsors view as not ripe for 
decision. Another commenter suggested deleting the phrase, * * * ``or 
its consultant'' from the instruction that stated FAA must ensure the 
airport sponsor or its consultant prepare an EA. The commenter stated 
that FAA cannot require the sponsor's consultant to prepare an EA and 
that the sponsor has discretion to decide if it or its consultant will 
prepare the document.
    Another commenter recommended specifying the need for an EA if an 
action were near a historic site or national park. Lastly, a commenter 
suggested that this chapter include an ``Environmental Checklist'' such 
as the one in Order 1050.1E, Appendix 1, ``page 5,J.'' Using this aid 
should expedite the environmental review process. ARP's Response: 
Regarding the comment about the need for an EA due to relocating 
businesses or residents, text in paragraph 702.c of the final Order 
clarifies that if moving businesses or people are highly controversial 
actions, an EA is normally needed.
    Addressing the comment on EA preparation for planning or decision 
making purposes, ARP has modified the instruction. As lead Federal 
agency, a regional or district Airports office may need to prepare an 
EA to make a decision on planning issues or for other actions needing 
an FAA decision. According to 40 CFR 1501.3(b), the offices may prepare 
an EA for agency decision making. Paragraph 701 reflects this response.
    Addressing the use of consultants to prepare EAs, ARP believes the 
word, ``its'' caused confusion. In the draft, ``its'' referred to the 
sponsor, not FAA. To clarify the sponsor's right to prepare an EA or to 
hire a qualified consultant to do so, the text in paragraph 702 of the 
final Order states the sponsor or its qualified consultant prepares an 
EA.
    ARP disagrees there is a need to specify the distance between an 
airport action and a historic resource or national park. If the action 
is normally a CATEX, ARP's analyses of extraordinary circumstances will 
determine the need for an EA or EIS to better decide the intensity of 
the action's effects on those resources. If the action is not normally 
a CATEX, the responsible FAA official would request that a sponsor 
prepare an EA, regardless of the project's distance from these 
resource. ARP has not revised the text to include the commenter's 
suggestion.
    Finally, addressing the use of an ``Environmental Checklist,'' we 
were unable to find the page in Order 1050.1E, the commenter noted. ARP 
is discouraging encyclopedic EAs that do not focus on the specific 
environmental resources an action would affect and their resultant 
environmental consequences. Historically, EAs have contained much more 
information than ARP needs to make a finding on impact severity. ARP is 
encouraging its staff and others to be concise, yet accurate and 
complete when preparing EAs. This should expedite the NEPA process

[[Page 29036]]

without compromising document quality.
    Addressing paragraph 405.d, a commenter suggested that the Order 
use the DNL 65 dB contour to more accurately define when new heliport 
operations cause noise over noise sensitive areas. ARP's Response: 
Agree in part. Paragraph 702.b of the final Order specifies the DNL 65-
dB contour and the need to examine if the action may cause a DNL 1.5 dB 
noise increase over noise sensitive areas within the DNL 65 dB contour. 
The paragraph also notes in accordance with paragraph 9.n of the final 
Order that there are quiet settings where the DNL 65-dB standard may 
not apply. ARP made this change to reflect the definition of noise 
sensitive areas in Order 1050.1E, paragraph 11.b(8).
    Addressing paragraphs 405.d and 405.f, a commenter asked 
clarification on the relationship between these paragraphs. Paragraph 
405.d requires an EA for a new airport serving general aviation, while 
paragraph 405.f requires an EA for a new airport that is not located in 
a Metropolitan Statistical Area (MSA). ARP's Response: Disagree. 
Paragraph 702.d of the final Order clearly requires an EA for a new 
airport serving only general aviation, regardless of its location. 
Paragraph 702.e of the final Order requires an EA for a proposed new 
airport serving commercial service aircraft or commercial service and 
general aviation aircraft, provided that facility would not be located 
in an MSA. Airports serving commercial service aircraft that are 
proposed in an MSA require an EIS (paragraph 903.b).
    Regarding paragraph 405.i, a commenter recommended adding a 
provision allowing ARP to adopt an EA if the Corps has accepted that 
document for a permit it has issued for the proposed action. Another 
commenter from Alaska wants ARP to issue an exemption regarding the 
need to prepare EAs for airport actions affecting wetlands in that 
state. The commenter notes that wetland involvement is a ``kick out'' 
to categorically excluding an action. Therefore, EAs will be the norm 
in Alaska for projects affecting wetlands due to Alaska's abundance of 
wetlands. ARP's Response: Regarding the first comment, ARP agrees, with 
the suggestion. Paragraph 707.b of the final Order provides information 
from Order 1050.1E, paragraph 404d, describing the responsible FAA 
official's duties when ARP will adopt another Federal agency's EA.
    ARP disagrees with the comment from Alaska stating an EA is needed 
for all airport actions affecting wetlands. ARP cannot issue an 
exemption for the State of Alaska, nor other locales. If the commenter 
seeks that exemption, it should contact the Office of Environment and 
Energy, since that office is responsible for changes to agency-wide 
procedures. However, readers should note that Chapters 6 and 7 of the 
final Order clarify when EAs are needed for airport actions in 
compliance with Order 1050.1E. In preparing Orders 1050.1E and 5050.4B, 
FAA and ARP, respectively, streamlined the NEPA process for actions 
involving wetlands as much as possible. ARP informs the commenter that 
development of the CATEX for Order 1050.1E, paragraph 310k, addressed 
``actions having minor impacts on U.S. waters and wetlands.'' This, 
indeed, was a streamlining measure FAA implemented in preparing Order 
1050.1E, and ARP includes it in Order 5050.4B. FAA includes this 
instruction in these Orders to reduce the number of EAs prepared for 
actions that affect wetlands. Earlier instructions required EAs for all 
FAA actions affecting any amount of U.S. waters or wetlands. ARP 
contends this procedures in Orders 1050.1E and 5050.4B regarding 
wetlands are the most efficient and effective ways to address this 
issue. When an EA is needed, ARP reminds airport sponsors to work with 
the responsible FAA official early in the EA preparation process. This 
should focus the EA on information the FAA official needs to determine 
if the EA adequately addresses practicable alternatives, wetland 
impacts and their consequences, impact severity, and mitigation. This 
information is needed to meet FAA and other Federal requirements. 
Working early with the official should also reduce the EA's bulk. Too 
often, EAs include unnecessary and lengthy discussions about resources 
the action would not affect. Better vigilance and quality control to 
focus the EA on expected impacts and consequences should expedite the 
NEPA process for airport actions without compromising document quality.
    Concerning paragraph 406.b, a commenter applauded the inclusion of 
language stating that FAA need not prepare an EIS if a sponsor's EA 
shows the action would not have significant environmental effects. 
ARP's Response: Comment noted. Paragraph 903.c of the final Order 
contains that text.
    Concerning paragraph 407, which discussed cumulative effects, some 
commenters disliked the instructions the paragraph provided. They 
suggested that ARP provide much more information on this topic. ARP's 
Response: Paragraph 1007.i provides information on cumulative effects. 
ARP will provide more details in its Desk Reference. Until ARP that 
document is available, ARP urges readers to review paragraph 1007.i of 
this Order, paragraph 500c of Order 1050.1E, and CEQ's guidance on 
cumulative impact analysis, Considering Cumulative Effects Under the 
National Environmental Policy Act (http://ceq.eh.doe.gov/nepa/ccenepa/ccenepa.htm).
    Addressing paragraph 408.a, a commenter objected to the statement, 
``airport actions often disturb substantially more area than other FAA 
activities.'' The commenter noted that actions the Air Traffic 
Organization oversees often affect greater areas than do airport 
actions. ARP's Response: Agree. ARP has deleted the statement from the 
Order. However, ARP notes that noise impacts due to air traffic actions 
may affect greater areas than airport projects. However, item n of this 
Preamble's Final FAA Order 5050.4B section notes that the extent of 
physical disturbances due to airport actions is often greater than the 
physical disturbances other FAA actions cause.
    Concerning paragraph 408.b(1), commenters argue the analysis needed 
to determine if an action would exceed a national ambient air quality 
standard requires costly, time-consuming dispersion analysis. This 
analysis creates an undue burden on airport sponsor. Instead, the 
commenter suggests using conformity applicability analysis for projects 
in non-attainment areas. ARP's Response: ARP disagrees with the 
commenter's request to replace the impact severity criteria of NAAQS 
violations with exceedances of de minimis levels for Clean Air Act 
general conformity in non-attainment areas. NEPA requires some type of 
air quality evaluation for most actions having potentially significant 
air quality effects. ARP notes that NEPA does not limit that analysis 
to non-attainment or maintenance areas as General Conformity does. 
FAA's upcoming ``presumed to conform'' list will provide further 
information on actions that have no potential to significantly affect 
air quality. The screening criteria in the FAA/Air Force Air Quality 
Handbook may also be considered in evaluating potential air quality 
impacts. It is not ARP's intent to require a dispersion analysis in 
every case.
    Concerning paragraph 402.b.(2), a few commenters stated the terms, 
``sizeable amount'' and ``small tract of sensitive habitat'' provided 
little, if any guidance and complicate the analysis. Consider deleting 
this section and use the simple reference in Order 1050.1E, Appendix

[[Page 29037]]

A. ARP's Response: Table 7-1 incorporates this and other thresholds 
from Order 1050.1E, Appendix A. ARP recognizes and agrees with the 
commenters' statements that Order 5050.4B should include useful 
information from Order 5050.4A. Table 7-1 incorporates some of the 
information from Order 5050.4A, paragraphs 47.e and 85. a-t in the 
Table's ``Factors to Consider'' column. Although Order 1050.1E does not 
include this information, ARP included it in Table 7-1 because ARP 
specialists, airport sponsors, and consultants have, for years, found 
the information useful in assessing airport actions. Readers should 
note the ``factors'' are not significance thresholds, but simply 
summarize past guidance that remains useful in determining if an action 
``triggers'' a significant impact threshold in Order 1050.1E.
    Chapter 5 Comments: ARP received no general comments on this 
chapter. Addressing comments on paragraph 500, a commenter suggested 
the text note that an EA or EIS is not needed if FAA CATEXs an action. 
ARP's Response: Agreed. ARP made a revision to paragraph 601.c of the 
final Order clarifying that item.
    Addressing paragraph 500.d, another commenter sought clarification 
about ARP's role in preparing or reviewing environmental documents that 
State Block Grant Program (SBGP) participants prepare. The commenter 
sought information on ARP oversight of the SBGP. ARP's Response: Agree. 
Paragraph 213 of the final Order states ARP remains responsible for 
overseeing a participating state's activities under the SBGP, not 
reviewing every environmental document for adequacy. This oversight is 
to ensure the SBGP participant is complying with its SBGP contractual 
agreements.
    Regarding a comment on paragraph 502, a commenter seeks provisions 
for ARP funding to communities that SBGP actions would affect. 
Particularly, the commenter wants funding to study airport-related 
noise, water, and air pollution impacts. A commenter from a 
participating SBGP entity, another commenter, and the U.S. EPA seek 
information on how Section 106 of the National Historic Preservation 
Act, Section 4(f), and other special purpose laws relate to the SBGP. 
The commenters question who is responsible for meeting NEPA and the 
special purpose law requirements outside NEPA. ARP's Response: In 
addressing the comment on funding for surrounding communities, ARP 
disagrees. This funding is not eligible under the Airport Improvement 
Program or the SBGP. Like all other airport actions, communities must 
fund their own studies. In response to the questions on SBGP 
responsibilities, ARP notes that its issuance of SBGP money is a CATEX 
(Order 1050.1E, paragraph 307.o). After issuing that money to SBGP 
participants, ARP has no discretion over the money. Therefore, 
financing of airport actions under the SBGP is not a Federal action and 
NEPA does not apply. However, ARP notes the participating SBGP states 
signed a contractual agreement that makes them responsible for 
completing an environmental evaluation of the airport action that will 
receive SBGP funding (paragraph 211 of the final Order).\9\ According 
to that contract, the evaluation must be similar to the 
interdisciplinary analysis ARP would have done if it had responsibility 
for the action (recall that the SBGP participant has discretion over 
the action) States with ``NEPA-like laws'' comply with those laws when 
completing the environmental impact analysis SBGP actions would cause. 
They must also follow instructions in this Order and 1050.1E, Appendix 
A (and eventually the Desk Reference) to address the special purpose 
laws outside NEPA (paragraph 212.b of the final Order). States without 
``NEPA-like laws must follow the NEPA implementing instructions in this 
Order and Appendix A (and eventually the Desk Reference) as noted 
previously (paragraph 212.c of the final Order). ARP requires this 
process not to comply with Federal regulations, but to provide SBGP 
personnel with information they contractually agreed to use to evaluate 
environmental effects of SBGP actions in a comprehensive, 
interdisciplinary manner.
---------------------------------------------------------------------------

    \9\ CEQ has stated that the Order's instructions on the SBGP: `` 
* * * comport [agree] with NEPA. In fact, FAA deserves credit for 
not simply categorically excluding the program [SBGP], as it can 
based on the limited authority over the distribution of funds by 
statutory apportionment (49 U.S.C 47114(d)), but furthering NEPA 
purposes through contractual commitments to meet NEPA 
requirements.'' Comments on Order 5050.4B Preamble, personnel 
communication from Edward A. Boling, Council on Environmental 
Quality to Edward Melisky, FAA, dated April 9, 2006.
---------------------------------------------------------------------------

    Concerning paragraph 502.e(1), another commenter sought clearer 
instructions on ARP's role when it awards discretionary funding for an 
airport action under the SBGP. ARP's Response: Comment noted. Paragraph 
213.a of the final Order addresses this situation. In this case, ARP, 
not the participating state, is responsible for completing the NEPA 
process. This is because ARP uses its discretion when reviewing 
requests for discretionary money for a specific SBGP action at a 
particular airport. Since ARP exercises discretion over a portion of 
the funds for the action, it must meet NEPA requirements.
    Concerning paragraph 504, a commenter questioned the awareness of 
other FAA organization responsibilities for actions connected to SBGP 
airport actions. A commenter from an SBGP state notes the Order 
references the need for an airport sponsor to provide information to 
and consult with FAA for airport projects, but it doesn't discuss these 
issues relative to the SBGP. The commenter notes the Order should more 
clearly address how the sponsor should relate to SBGP agencies. The 
same commenter also wishes to know if SBGP participants will have 
access to the Desk Reference. ARP's Response: ARP discusses the 
concerns of the commenter in item k of this Preamble and in comments 
addressing paragraphs 203.a and 307.f of the draft Order. Readers 
should review those responses for information on the FAA organization's 
duties and SBGP projects. Additionally, ARP wants readers to know that 
it has coordinated the requirements of paragraph 213 (addressing FAA 
Actions connected to SBGP projects) with other FAA organizations who 
retain authority for actions connected to SBGP projects. Those 
organizations are aware of their continued involvement in these 
projects.
    In addressing the comment about airport sponsor coordination for 
SBGP actions, paragraph 212.a of the final Order addresses this. It 
clearly states that participating SBGP State agencies should substitute 
the words, ``SBGP agency personnel'' when reviewing instructions their 
Federal counterparts would normally meet. This wording informs the 
reader that the State, not FAA, is taking an action or making a finding 
or decision regarding a particular airport action under the SBGP.
    Regarding Desk Reference availability, ARP directs the commenter to 
the General Comments section of this Preamble discussing the Desk 
Reference.
    Responding to a comment about paragraph 505, a reviewer objects to 
ALP approvals occurring without formally involving communities 
adjoining an airport. Three other commenters seek added text to show 
that ARP may conditionally and unconditionally approve an ALP. ARP's 
Response: ARP notes the comment addressing public involvement. ARP 
informs the commenter that NEPA and many of the special purpose laws 
applicable to airport projects require

[[Page 29038]]

public involvement. ARP cannot unconditionally approve an ALP or other 
Federal actions without meeting the requirements of these laws, 
including their public involvement provisions. Addressing the comments 
about issuing both types of approvals for an ALP, ARP agrees. To more 
clearly emphasize this, ARP has discussed those approvals in paragraph 
202.c of the final Order. The paragraph notes the approving FAA 
official may not conditionally approve an ALP depicting a new airport, 
a new runway, or a major runway extension, when an EA or EIS is being 
prepared for any of these facilities and actions connected to them. 
Instead, the approving FAA official may unconditionally approve an ALP 
depicting those facilities and their connected actions only if FAA has 
issued a FONSI or ROD that is based on an EA or EIS, respectively, that 
addresses those airport actions.
    Concerning paragraph 505.b(2), two commenters suggest noting that 
conditional ALP approvals apply to actions FAA deems ``not ripe'' for a 
decision (i.e., tiering). ARP's Response: Agree. Paragraph 202.c of the 
final Order discusses how conditional, unconditional, and ``mixed'' 
approvals relate to tiering.
    Regarding paragraph 505.b(3), a commenter objects to the limit on 
conditional airport layout plan (ALP) approvals. The commenter objects 
because ALPs often include actions, ``that do not require any type of 
federal approval.'' The limits proposed could jeopardize and delay 
projects not requiring that approval. Another commenter states this 
paragraph discourages sponsors from beginning the NEPA process early in 
project planning. A third commenter suggested adding the words, ``and 
not shown on an unconditionally approved ALP'' after the phrase, 
``[t]he approving FAA official may not issue a conditional approval to 
a sponsor who has begun preparing an EA or if FAA has begun preparing 
an EIS addressing [an]action depicted on proposed ALPs.'' The same 
commenter also suggested adding text discussing ALP features that 
provide safe, efficient airport operations or airport use. ARP's 
Response: Agree in part. ARP has revised the wording in paragraph 
202.c.(3)(a) of the Order to more clearly describe the limits on ALP 
approvals. The new text limits this provision to three types of 
projects'a new airport in a Metropolitan Standard Area, a new runway, 
and a major runway extension and any of their connected actions 
(paragraph 202.c(4)). FAA officials may not conditionally approve any 
ALP for any of those projects when the projects are subjects of EAs or 
EISs being prepared and the approving FAA officials have not yet issued 
a Finding of No Significant Impact (FONSI) or Record of Decision (ROD), 
respectively. This new text better reflects the instructions ARP issued 
to its staff in November 2003. ARP issued that guidance to address 
concerns that it was approving certain major Federal actions before it 
completed the NEPA process. ARP decided that guidance was needed to 
counter arguments that it was prejudging certain actions before it 
completed the NEPA process.
    ARP declines to add the suggested wording addressing unconditional 
ALP approvals. ARP sees no value in doing so since an airport sponsor 
could not construct the project if it were not on an unconditionally 
approved ALP. To unconditionally approve an ALP, ARP must have 
completed the NEPA process for that project (paragraph 202.c(2)(b) of 
the final Order). However, it accepts the suggested text discussing ALP 
features that provide safe, efficient airport operations or airport 
use. That language is useful to airport sponsors because it helps them 
develop plans in a timely manner.
    Regarding the comment on changing ALPs without FAA approval, ARP is 
unsure of the types of actions the commenter mentions. ARP reminds 
airport sponsors that changes to an ALP that would involve a Federal 
action (as defined in paragraph 9.g of the final Order) require FAA to 
complete the NEPA process for those actions. Upon completing that 
process, the approving FAA official may unconditionally approve the ALP 
depicting the actions. After FAA issues that approval, the sponsor may 
begin the projects depicted on that ALP.
    Finally, addressing the comment that this ALP approval limit would 
discourage sponsor start-up of the NEPA process early in project 
planning, ARP understands the commenter's concern. To clarify this 
point, ARP urges readers to review Chapter 5 in Advisory Circular 150/
5070-6, Airport Master Plans. That information discusses considering 
environmental issues during project planning before the NEPA process 
begins. ARP prepared this guidance to address the commenter's concern 
among other reasons. Chapter 5 of the final Order also discusses 
airport planning and the NEPA process.
    Regarding paragraph 505.d, a commenter noted the purpose of the 
paragraph was unclear and did not relate to the rest of the text 
following it. The information on cumulative impacts was not considered 
useful. The commenter also sought some information on actions having 
independent utility. ARP's Response: Agree. ARP has deleted the 
paragraph. Paragraph 1007.i of this Order contains information on 
cumulative effects. (See item x, discussions of Surface Transportation 
and Cumulative Impacts, and responses to comments on paragraph 407 for 
more information).
    Addressing comments on paragraph 507.a, three commenters stated the 
information in this paragraph simply repeats the unclear guidance that 
Order 5050.4A, paragraph 33 provided. As a result the final Order will 
continue the uncertainties that exist in Order 5050.4A. Two commenters 
requested clearer information on situations: (1) Where a sponsor does 
not use AIP or Passenger Facility Charge (PFC) charges to buy land and 
that does not change the use of the purchased tracts; (2) on land 
purchases done for land-banking purposes, even if the lands do not 
border an airport; and (3) to buy land that special purpose agencies or 
courts require for mitigation or remediation. Another commenter seeks 
information to address an airport sponsor's purchase of land for future 
airport development while using money from an unknown source or while 
using AIP funding to do so. ARP's Response: ARP notes the comment on 
Order 5050.4A. Regarding the actions noted above, ARP has addressed 
circumstances similar to the three of the four noted above in paragraph 
204 of the final Order. The Order does not address the item on buying 
land other agencies or the court requires for mitigation or 
remediation.
    Regarding purchases of land for reasons other than mitigation or 
remediation, paragraph 204.a of the Order references 40 CFR 1506.1. 
That regulation notes that, until a Federal agency issues its Record of 
Decision, neither the agency (40 CFR 1506.1(a)) or the applicant (40 
CFR 1506.1(b)) may take action concerning any proposal that would 
adversely affect environmental resources or limit the agency's choice 
of reasonable alternatives. Paragraph 204.b of the Order discusses ARP 
responsibilities when it learns about a sponsor who is about to buy 
land before ARP completes the NEPA process. The approving FAA official 
will tell the sponsor that the sponsor's action could prejudice or 
preclude favorable ARP decisions addressing uses of the land. The 
official will also tell the sponsor that ARP will take appropriate 
actions to comply with NEPA and any other applicable Federal laws. 
Before FAA approves future actions involving the property, ARP will 
consider the manner in which the property was acquired,

[[Page 29039]]

paying particular attention to DOT Section 4(f) responsibilities and 
other special purpose laws applicable to the situation. The official 
will also carefully consider if the land acquisition would have adverse 
environmental effects or limit the choice of reasonable alternatives, 
based on the manner in which the sponsor obtained the property before 
ARP issued a decision for future FAA actions involving the property 
(paragraph 204.b(2)(a)). Finally, paragraph 204.c requires the sponsor 
to show to the approving FAA official that the purchase was consistent 
with this Order, and that the purchase did not prejudice ARP's 
objective analysis of alternatives or limited implementation of the 
preferred alternative.
    Turning to the situation on buying land that other agencies or the 
courts require, the Order does not address this situation because ARP 
does not see that it has an action in these cases, unless the land 
borders an existing airport. In that case, as in the above situations, 
ARP would need to unconditionally approve the airport layout plan (ALP) 
under 49 U.S.C. 47107, if the airport would include the purchased land, 
even if the sponsor acquires the land with its own money. That approval 
is needed to show the land has been added to the airport. Paragraph 204 
would also apply in this case. If no change to an ALP is needed or no 
Airport Improvement Program or Passenger Facility Charge funding is 
involved, the sponsor would buy the land to meet requirements of 
another Federal agency or the courts. Therefore, those purchases would 
occur outside FAA's purview.
    Addressing comments on paragraph 507.b, a commenter seeks 
information on specific situations that would preclude ARP from 
reimbursing a sponsor. The commenter also seeks guidance on how ARP 
would determine if the purchase met the requirements of this Order and 
the NEPA process. The commenter also seeks information on the need for 
an Environmental Due Diligence Audit (EDDA). ARP's Response: Please see 
the response for paragraph 507.a, particularly the information 
regarding paragraphs 204.b and 204.c of the Order. ARP would reimburse 
a sponsor only if ARP could meet the requirements noted in those 
paragraphs. Turning to the comment on the need for an EDDA, ARP notes 
that the need for an EDDA depends on the land's present or prior uses. 
Actions involving lands having or that had commercial or industrial 
uses are good candidates for EDDAs. FAA's Order 1050.19, Environmental 
Due Diligence Audits in the Conduct of FAA Real Property Transactions, 
addresses the need for EDDAs when FAA will purchase land. Information 
in that Order is also useful to airport sponsors.
    Concerning paragraph 507.b(1)(c), a commenter states the paragraph 
mistakenly describes and greatly expands the scope of Section 4(f). 
Countryside beauty is not mandated in Section 4(f). ARP's Response: 
Disagree. In highlighting the countryside, ARP was conveying 
Congressional policy regarding the resources Section 4(f) protects. 49 
U.S.C. 303(a) clearly states: ``It is the policy of the United States 
Government that special effort should be made to preserve the natural 
beauty of the countryside and public park and recreational lands, 
wildlife and waterfowl refuges, and historic sites.'' By including that 
statement, ARP emphasized the philosophical as well as procedural 
requirements of 49 U.S.C. 303.
    Concerning paragraph 512, an SBGP participating state sought 
information on how an SBGP participant is to consult with Federally-
recognized Tribes. ARP's Response: Paragraph 212.e of the final Order 
clarifies SBGP and Tribal consultation. The paragraph states if an FAA 
organization is involved in an action connected to an SBGP airport 
action, the responsible FAA organization will conduct the Tribal 
consultation. Regional and district ARP personnel are available to 
assist the FAA organization if requested. If there is no FAA 
involvement, the SBGP agency should follow instructions in paragraph 
303 of the Order. That paragraph notes that regional and district ARP 
personnel are available to assist the SBGP agency if requested. That 
paragraph and other paragraphs in Chapter 3 (Agency and Tribal 
Coordination) of the final Order discuss how FAA personnel (and SBGP 
personnel when appropriate) are to conduct Tribal consultation 
according to FAA Order 1210.20, American Indian and Alaska Native 
Tribal Consultation and Policy and Procedures. Paragraph 212.e notes 
that Order 1210.20 applies solely to FAA personnel, but urges SBGP 
agencies to use those instructions as a guide for conducting 
respectful, meaningful Tribal consultation when there are no FAA 
actions connected to an SBGP airport action.
    Regarding paragraph 513, a commenter noted that extraordinary 
circumstances did not include consideration of Federally-listed 
endangered or threatened species. Therefore, the commenter noted that 
ARP's review of a wildlife hazard management plan (WHMP) might 
accidentally omit the need to comply with the Endangered Species Act 
(ESA). The commenter also urged ARP to include flexibility in its is 
NEPA procedures to allow it to CATEX WHMP approvals if Section 7 
consultation under the ESA shows the WHMP would not affect or not 
jeopardize a Federally-listed endangered or threatened species. ARP's 
Response: The commenter is incorrect in stating that extraordinary 
circumstances do not include consideration of Federally-listed 
endangered or threatened species. In any event, paragraph 209.a 
clarifies that a grant to fund the development of wildlife hazard 
management plans (WHMPs) or the approval of those plans is 
categorically excluded under Order 1050.1E paragraphs 308e. Paragraph 
209.b states that airport layout plan approvals and/or approvals of 
grants for Federal funding to carry out FAA approved WHMPs include 
items: (1) That may be categorically excluded; or (2) that may require 
preparation of an environmental assessment or an environmental impact 
statement. When reviewing airport sponsor requests for Federal funding 
to implement the WHMP or changing an Airport Layout Plan to depict 
approved WHMP projects, FAA must consider extraordinary circumstances, 
such as biotic communities and endangered species.
    Chapter 6 Comments: ARP did not receive any general comments on 
this chapter. Addressing paragraph 600, two commenters noted that some 
FAA regions have prescribed formats for CATEXs. The commenters 
suggested that a standardized format would allow sponsors and their 
consultants to more easily provide needed information and 
documentation. A state block grant participant asks if SBGP 
participants must use regional or district Airport office-issued forms. 
Another commenter states, ``* * * it is completely wrong that no 
prescribed documentation or memorandum is required to support a 
categorical exclusion.'' ARP's Response: Disagree. ARP does not require 
standard forms for CATEXs. Turning to the comment that prescribed 
documentation should be required, ARP notes that: ``CEQ strongly 
discourages procedures that would require the preparation of paperwork 
to document that an activity has been categorically excluded'' (CEQ 
Memorandum: Guidance Regarding NEPA Regulations, 48 FR 34268, July 28, 
1983). However, ARP requires documentation to verify compliance with 
any special purpose laws outside NEPA that apply to a proposed CATEX. 
Order 1050.1E, paragraph 304 requires this documentation and ARP 
reflects

[[Page 29040]]

that requirement in paragraph 607 of this Order. Therefore, case files 
for CATEXs must contain the documentation that applicable special 
purpose laws require. This procedure verifies that ARP has made the 
appropriate CATEX determinations for NEPA purposes and complied with 
applicable special purpose laws.
    For information purposes, readers should note that paragraph 607.c 
addresses optional documentation. That paragraph states that if the 
categorical exclusion does not require documentation to address any 
special purpose laws, the responsible FAA official may choose to 
include information in the project file for reference or legal 
challenges that may occur. A note to that paragraph also states that 
ARP leaves the decision to include contractual requirements for SBGP 
participants to use forms to the discretion of Airports Division 
managers for the respective regions having participants in the SBGP. 
Readers should also note that paragraph 608 requires the responsible 
FAA official to notify an airport sponsor by letter or dated e-mail 
that ARP has categorically excluded an action. ARP requires this 
notice, not for NEPA purposes, but to ensure airport sponsors know that 
FAA has or has not categorically excluded proposed airport actions. ARP 
institutes this requirement to avoid misunderstandings that airport 
sponsors have had about ARP's environmental reviews of categorically 
excluded actions.
    Concerning paragraph 601.a, one commenter states the sponsor should 
send a copy of the information it filed with FAA to the community 
adjoining the airport. ARP's Response. Comment noted. NEPA does not 
require documenting or sharing any information to support a CATEX. If 
an airport sponsor wishes to distribute information it may do so, but 
only after conferring with the responsible FAA official. This step 
ensures the information a sponsor distributes accurately reflects FAA 
policy and concerns. This is a step for EAs and EISs and is good 
management policy for CATEXs. The commenter should note that if a CATEX 
has an extraordinary circumstance that involves a special purpose law, 
distribution of information is likely. This is because some of those 
laws require public involvement. Therefore, the sponsor or the 
responsible FAA official, as appropriate, must distribute or inform the 
public according to the regulations implementing any special purpose 
law applicable to the proposed action (paragraph 607.b). This approach 
is reasonable, since CATEXs not involving special purpose laws or 
extraordinary circumstances typically have no or minimal adverse 
environmental effects.
    Regarding paragraph 601.b, many commenters objected to the 30-day 
period the paragraph required. The draft Order proposed this time to 
enable the airport sponsor to obtain information from agencies to 
support a CATEX. One commenter noted 30 days may not be sufficient time 
for agencies to reply due to their respective workloads, while another 
commenter stated 15 days was sufficient time for an agency response. 
Two commenters noted the past practice allowing airport sponsors to 
provide documentation they have to support a CATEX should continue. One 
commenter noted that this information includes the documentation the 
sponsor believes it needs to meet an applicable special purpose law. 
Sometimes, agency consultation is not needed. Typically sponsors 
consult with the responsible FAA official to determine the needed 
documentation. ARP's Response: Agree in part. ARP has removed timelines 
for agency replies. Instead, paragraph 606.brequires the sponsor or 
FAA, as appropriate, to comply with the requirements of the special 
purpose law that applies to the proposed action. For example, if an 
applicable special purpose law has a 30-day review period, that is the 
time the responsible FAA official or sponsor must provide for the 
agency to reply. Paragraph 606.b(4) notes that the sponsor, if it is 
attempting to collect information from the agency, should immediately 
contact the responsible FAA official. That official should immediately 
contact the resource agency via telephone or e-mail to determine when 
the information will be arriving or to discuss alternative steps to 
meet the applicable law. The official should keep a record of that 
contact. If this step produces no information, the official should 
immediately contact the approving FAA official for a decision. The 
approving FAA official then decides if FAA should CATEX the action or 
require an EA or EIS. ARP believes this process will show it has made a 
good faith effort to comply with all applicable laws. To help ARP 
accomplish its duties and meet sponsor schedules, paragraph 603 urges 
airport sponsors or their consultants to develop realistic schedules. 
The schedules should consider the time needed to collect information 
needed to review a CATEX and any extraordinary circumstances it 
involves. The schedule should provide sufficient time for the 
responsible FAA official to review the proposed action. The intent of 
this instruction is to allow ARP to meet the requirements of special 
purpose laws that would apply to an action without infringing on the 
sponsor's desired schedule. Therefore, airport sponsors should consult 
responsible FAA officials as needed to determine the timelines and 
documents the official will need to determine if ARP may categorically 
exclude the action. If sponsors do not provide the information noted 
above, the responsible FAA official will have to collect it before the 
approving FAA official can make a decision on the project.
    Another commenter on paragraph 605.b suggested adding some other 
resources to the list the paragraph notes. Two commenters also note 
that FAA may CATEX an action even it adversely affects a property on or 
eligible for the National Register of Historic Places. Another 
commenter stated that affected resource considerations for a CATEX 
should include national parks. A third commenter stated the Order 
should not require agency consultation if it is obvious that an action 
would not affect a resource. Requiring agency consultation would only 
delay the action. ARP's Response: Regarding the first comment, ARP 
disagrees. The paragraph listed the resources for illustrative purposes 
only. The final Order at paragraph 9.t defines the special purpose 
laws, while Table 1-1 lists those special purpose laws that apply most 
often to airport actions.
    Addressing adverse effects on historic properties and CATEXs, ARP 
agrees. If the responsible FAA official meets the requirements of 36 
CFR part 800 et seq. regarding adverse effects and the official decides 
an EA or EIS is not needed, the approving FAA official may CATEX the 
action.
    Regarding the need to include national parks in a CATEX analysis, 
ARP agrees. The analysis would consider parks and other Section 4(f)-
protected resources if they occur in a project's affected area. Table 
6-3 listing extraordinary circumstances includes parks and other 
Section 4(f)-protected resources.
    Addressing the last comment regarding agency consultation, ARP 
agrees in part. Agency consultation is not needed if the responsible 
FAA official decides it is obvious no extraordinary circumstance 
applies to the proposed action. However, those decisions are not always 
``obvious.'' In these instances, the responsible FAA official should 
review any information about the action the sponsor provides 
information. Based on that information, the official should use his or 
her

[[Page 29041]]

discretion to decide if agency consultation is needed.
    Concerning paragraph 605.b.(1)(e), a commenter states that this 
paragraph would require formal coastal zone consistency for each 
project in the coastal zone or affecting that zone. Most state agencies 
responsible for deciding if an action meets coastal zone standards 
require a formal review process, which according to the regulations 
could last 6 months. ARP's Response: Agree. To comply with Order 
1050.1E, paragraph 304j (the likelihood an action is consistent with 
any Federal, State, or local law relating to the environmental aspects 
of a proposed action) would require a coastal zone consistency opinion 
from the appropriate State agency. However, ARP notes that state 
coastal zone management plans (CZMPs) list the specific Federal 
licensing, permitting, or approval actions to which that plans apply. 
ARP urges sponsors and responsible FAA officials to consult their 
respective CZMPs to facilitate overall airport development. As an 
alternative, sponsors should contact the CZMP agency early in project 
planning to determine if the agency lists any Federal actions in 
paragraph 9.g as actions the CZMP agency wants to review. Also, readers 
should note that if the CZMP does not list any of those actions, the 
State coastal zone agency must notify the sponsor and FAA that the 
State agency intends to review the proposed activity. That agency must 
make this decision within 30 days of receiving notice of the action. 
So, it is critical that the sponsor or its consultant contact the 
appropriate State agency early in project planning to ensure coastal 
zone requirements do not delay ARP's evaluation of the proposed action 
or the sponsor's intended schedule.
    Discussing paragraph 603, a commenter states ARP notice to sponsors 
about the fate of a CATEX should be mandatory, not discretionary. ARP's 
Response: Agree. Paragraph 608 of the final Order requires the 
responsible FAA official to inform the airport sponsor via dated letter 
or e-mail. ARP includes this instruction to its personnel to ensure the 
airport sponsor knows that FAA has categorically excluded or has denied 
a CATEX for a proposed airport action. ARP makes this a formal step in 
its NEPA implementing instructions for CATEXs to address 
misunderstandings that have occurred regarding ARP environmental 
reviews of certain categorically excluded airport actions.
    Chapter 7 Comments: Beginning general comments. A commenter noted 
the chapter does not provide information on public reviews of draft 
EAs. ARP's Response: Agree in part. Paragraph 307.c(3) of the draft 
Order required a 30-day public review of a draft EA if a public hearing 
would occur. However, the draft did not define any review period for 
other situations. ARP has corrected that oversight. Paragraphs 404.a(4) 
and 708 of the final Order discuss public availability and review of 
draft EAs for public hearings.
    Regarding paragraph 700, a commenter from a state participating in 
the SBGP requests clearer procedures for processing EAs. The commenter 
asks what happens if the state decides an EIS is needed, but FAA does 
not agree. Will FAA prepare an EIS or will it issue a FONSI? ARP's 
Response: Regarding procedures for processing EAs, ARP refers the 
reader to paragraph 710 of the Order. Although this and other 
information throughout the Order refers to ARP personnel, the commenter 
should note paragraph 212.d. That paragraph tells SBGP participants to 
alter text and instructions regarding responsible FAA official and 
approving FAA official responsibilities as needed.
    Addressing the comment about EIS preparation, as noted earlier, 
financing airport actions under the SBGP is not a Federal action, so 
NEPA does not apply. However, ARP notes the participating state signed 
a contractual agreement that makes the State responsible for completing 
an environmental evaluation of the airport action that will receive 
SBGP funding (paragraph 211 of the final Order). According to that 
contract, the evaluation must be similar to the interdisciplinary 
analysis ARP would have done had it retained responsibility for the 
action that is now the SBGP participant's responsibility. Therefore, 
FAA would not have any decision on a state's decision to prepare a 
document similar to an EIS, unless an FAA organization has authority 
over an action connected to the action under the SBGP. Paragraph 214 of 
the final Order discusses this situation. It notes although regional 
and district Airports offices are not responsible for preparing the 
EIS-like document, they have experience that may aid the SBGP agency in 
its document preparation. We recommend that readers seeking more 
information on the SBGP portion of the comment review item j of this 
Preamble and the sections addressing paragraphs 203.a; 307.f; 500; 502; 
and 504.
    Regarding paragraph 701, a commenter states the 15-page limit noted 
here should be a recommendation. The most important thing is that the 
document provide information the responsible FAA official needs to 
independently review the proposed action. A few other commenters stated 
that although it's a good idea, a 15-page EA is unrealistic. They 
request a new paragraph suggesting ways to make an EA concise to help 
``temper'' FAA requirements for more analyses and data, while another 
commenter suggests dropping the statement. ARP's Response: The Order 
retains CEQ's 15-page recommendation. The Order does not require that 
page length, but it notes the recommendation to convey information in 
question 36a of CEQ's Forty Most Asked Questions (46 FR 18026, March 
23, 1981). ARP stresses that the page limit recommendation is for the 
EA itself. That page recommendation does not: Include proof of required 
consultation; material or data supporting the EA, or other information 
supporting statements the EA contains. Instead, appendices to the EA 
should present that information while the EA should cite the page 
numbers of the particular appendix supporting the conclusions the EA 
provides. Citing those pages in the EA facilitates reader review, while 
keeping the EA concise and focused on the most important information in 
the appendices pertaining to the potential environmental impacts. It is 
the information in the EA that the approving FAA official will likely 
use to determine the severities and contexts of environmental effects. 
Airport sponsors or their consultants should contact the responsible 
FAA Official to determine if the regional Airports office has developed 
EA examples. Although ARP includes this recommended page limit, the 
critical factor is ensuring the EA properly addresses potential 
impacts.
    Addressing paragraph 701, a commenter seeks more information on the 
term, ``reasonable alternative.'' Paragraph 706.d.(5) notes that these 
are alternatives that may be achieved when one considers the technical, 
economic, and environmental factors associated with each alternative. 
Paragraphs 1007.e(4)(a) and (b) of the final Order also discusses the 
``prudent and possible/(feasible)'' aspects of these alternatives.
    Concerning paragraph 701.d, a commenter seeks clearer information 
on conflicts by suggesting the conflict be ``substantially grounded.'' 
ARP's Response: Section 102(E) of NEPA requires Federal agencies to 
study appropriate alternatives in any proposal involving unresolved 
conflicts concerning alternative uses of available resources. Paragraph 
706.d(5)(a) of the final Order conveys this requirement and conforms 
5050.4B with FAA Order 1050.1E. ARP agrees that there needs to be some 
evidence of various uses of an

[[Page 29042]]

environmental resource to show an unresolved conflict or resources. 
This ensures the responsible FAA official and others interested in the 
project do not spend time and effort resolving a conflict that has no 
basis.
    Addressing 701.f, two commenters seek more explanation of the term, 
``conceptual mitigation.'' One commenter notes 40 CFR 1502.14(a) and 
1502.16(h) suggest the need for some level of detail for mitigation. 
The same commenter states language in 701.f is not consistent with 
Order 1050.1E, paragraph 405.g. ARP's Response: Comment noted. 
Paragraph 706.g explains this term and borrows some wording from Order 
1050.1E. The paragraph describes the term as a preliminary, qualitative 
description of each mitigation measure's elements. The description 
should also allow the reader to understand the mitigation's benefits 
and how the mitigation would prevent or reduce expected adverse 
environmental effects.
    Addressing paragraph 702, a state block grant participant 
recommends adding a note about preparing EAs. The commenter suggests 
the note direct Order users to realize that references to FAA in the 
chapter should also be construed to mean states under the SBGP. ARP's 
Response: Agree. New paragraph 211 of the final Order clarifies that 
for SBGP actions, the participating state agency assumes the roles a 
responsible FAA official or approving FAA official would normally 
fulfill, unless Order 5050.4B specifies differently.
    Concerning paragraph 703, a commenter requests information on FAA's 
role in determining an adequate Purpose and Need. The commenter 
recommends including the requirement that the Purpose and Need meet 
accepted FAA airport design and planning standards. Another commenter 
states the responsible FAA official should seek local community input 
during EA preparation. ARP Response: Agree in part. Revised paragraph 
707.a retains original text acknowledging FAA's role in reviewing the 
EA for adequacy under NEPA. We believe this clearly includes 
determining adequate purpose and believe no further guidance is needed. 
ARP has added to this paragraph the statement that the agency often 
helps the airport sponsor define Purpose and Need.
    Turning to the recommendation to define purpose and need to include 
airport design and planning standards, ARP disagrees. Paragraph 502 of 
the Order states that ARP airport planners are responsible for 
reviewing proposed actions and reasonable alternatives for consistency 
with FAA's airport planning and design standards. ARP only approves 
projects meeting those standards, unless planners determine 
modifications to those standards are necessary to meet local conditions 
and that the modifications provide acceptable safety levels. Therefore, 
the responsible FAA official is assured that the proposed action and 
the reasonable alternatives that would achieve the purpose and need and 
that are analyzed in a NEPA document meet those standards or have 
qualified for modifications to those standards.
    Regarding public input and EA preparation, paragraphs 301 and 704 
emphasize that there shall be public involvement to the extent 
practicable in preparation of EAs, citing 40 CFR 1501.4. In addition, 
special purpose laws addressed as part of an EA may require public 
involvement. The responsible FAA official will ensure the required 
public involvement occurs as he/she complies with this final Order.
    Addressing paragraph 703.b.(5), a state block grant commenter is 
unclear on an SBGP agency certifying that an EA is a Federal document 
and wants to know if the agency should forward the EA to FAA for 
signature. ARP's Response: As stated earlier in the responses to SBGP 
issues (item j; paragraphs 203a; 307f; 500; 502; 504; and 700), the 
document an SBGP participant prepares is not a Federal document because 
there is no Federal action, unless an FAA organization has authority 
for a connected action. Then, the document would be a joint Federal-
State document. Therefore, SBGP agency should revise the adequacy 
statement in paragraph 707.f as noted in paragraph 212.d of the final 
Order.
    Concerning paragraph 703.c, two commenters ask when a public 
hearing would be needed for a CATEX. ARP's Response: Paragraph 606.b(1) 
of the final Order addresses this point. Some special purpose laws such 
as Section 106 of the National Historic Preservation Act, or Executive 
Orders on floodplains and wetlands require public review. In some 
situations, the responsible FAA official may decide a public hearing is 
the most efficient way to get public review to comply with these 
special purpose laws.
    Regarding paragraph 704, a commenter states the information on 
format and content does not match the information in Order 1050.1E. The 
commenter believes the intent to produce 10 to 15-page EAs and the 
``substantially abbreviated description of the contents of an EA'' will 
lead to improperly prepared EAs. The commenter recommends including 
information similar to that in Order 5050.4A, paragraph 47. The 
commenter lists a number of items from that Order it believes Order 
5050.4B should contain. Another commenter requests a better explanation 
of how the Desk Reference will link to the NEPA process and other 
processes such as those for general conformity and wetland permitting. 
A few commenters noted that the draft Order did not list Affected 
Environment as one of the EA sections. They asked if EAs no longer need 
that section. ARP's Response: Earlier sections of this preamble (item 
a, the Desk Reference, FAA Order 5050.4B; and Instructions on ``NEPA-
like States'') discuss the Desk Reference. ARP refers the reader to 
those sections. Regarding the omission of the Affected Environment 
section, ARP notes that was an oversight. Paragraph 706.e of the Order 
provides information on this important EA section.
    Addressing paragraph 704.a, a commenter asks if the EA cover sheet 
should list sub-consultants as well the prime consultant responsible 
for preparing the EA. ARP's Response: Sub-consultant names should not 
be on the cover sheet. A footnote to paragraph 706.a of the final Order 
states the List of EA Preparers should identify those people, including 
sub-consultants, who have prepared the EA and substantial background 
material used in to prepare the EA. The List will identify the person, 
the material he or she prepared, and his or her employer.
    Concerning paragraph 704.b, a commenter noted that regulations 
implementing Section 106 of the National Historic Preservation Act 
allow agencies to withhold confidential information. The comment also 
notes that this paragraph states the reference material used to prepare 
the Purpose and Need must be available to anyone wishing to review it. 
ARP's Response: Agree. Paragraph 700.b of the final Order addresses 
this. It states all appendices and references must be available to 
anyone wishing to review them, unless another law prohibits disclosure 
of certain information or contains confidentiality provisions.
    Regarding paragraph 704.c, a commenter states the discussion, 
``splits the concept of purpose and need into two, distinct aspects.'' 
This could cause preparers to discuss this issue in two different EA 
sections. By focusing on the purpose, the commenter states NEPA 
documents could appear to be pre-decisional, rather than a document 
that takes a hard look at the proposed action an its alternatives. 
Another commenter suggests wording regarding the need to compare 
airport sponsor

[[Page 29043]]

forecasts to forecasts available from other sources. The section should 
discuss a reasonable range of deviation to support Purpose and Need and 
environmental analyses. ARP's Response: Regarding the Purpose and Need 
Statement, ARP agrees. Paragraph 706.b(2) of the final Order indicates 
this is one statement and should be one to two paragraphs long per 
CEQ's May 12, 2003, memorandum on Purpose and Need statements. ARP 
included the information to answer many questions it has received on 
this NEPA term since publishing Order 5050.4A.
    Addressing the comment on comparing forecasts, ARP agrees. 
Paragraph 706.b(3) discusses the guidance ARP's Director of Airport 
Planning and Programming issued on this topic on December 23, 2004. 
That guidance lists acceptable forecast deviations between the 
sponsor's forecasts and FAA's Terminal Area Forecasts (i.e., 10-percent 
and 15-percent discrepancy limits for 5 and 10-year forecasts, 
respectively).
    Regarding paragraph 704.e(2), a commenter suggests revising the 
paragraph to emphasize integrating information special purpose law 
requirements into the EA to avoid duplicating information in a separate 
section of the EA discussing those laws. ARP's Response: Agree. The 
draft discussed this, but paragraph 706.f(2) provides further 
information on integrating these requirements. ARP notes combining NEPA 
and non-NEPA requirements helps the responsible FAA official determine 
impact significance for NEPA purposes and streamline other 
environmental reviews for airport actions.
    Concerning paragraph 704.e(4), a commenter requested a definition 
of the term, ``Environmental Management System'' (EMS) and a statement 
about how an EMS would be helpful. ARP's Response: Agree. Paragraph 9.e 
of the final Order provides the definition. An EMS is a set of 
processes and practices designed to provide an organization with 
information about environmental impacts of its operations. An EMS is a 
tool to monitor and report on an organization's environmental practices 
and tracks measures used to mitigate environmental impacts due to 
organizational actions. For example, an environmental management system 
(EMS) may provide valuable information about airport facility designs 
and mitigation measures that have helped prevent or minimize 
significant environmental impacts. An EMS is also useful in tracking 
the status of environmental activities and to highlight those 
activities that may require change. Paragraph 706.g(4) discusses EMS 
use. It notes that reviewing other airport EMSs for similar actions 
could provide information on the effectiveness of various measures in 
minimizing environmental impacts due to airport construction and 
operation.
    Concerning paragraph 705, a commenter states that public review of 
an EA is not mandatory, but it should be. ARP's Response: See the 
Response to the comment above regarding former paragraph 703 and public 
input and preparation of EAs. Various parts of the final Order discuss 
public involvement in EA preparation.
    Addressing paragraph 705.b, a commenter requests information on 
NEPA compliance if a sponsor has completed a project but then decides 
to seek ARP funding for it. Another commenter states the approval of an 
ALP is normally a CATEX, so why does this discussion on EAs address 
that issue. ARP's Response: First, addressing the request for post 
project funding, the Order defines Federal actions to include ALP 
approvals . NEPA must be met before FAA issues an unconditional ALP 
approval. An airport sponsor operating a public-use airport under FAA's 
purview should not build a project unless and until FAA has 
unconditionally approved the ALP depicting the proposed facility (see 
paragraph 202.c of the final Order). In addition, this Order provides 
for compliance with NEPA and environmental requirements under the 
airport funding statute so that the agency may proceed to process a 
grant application. ARP reminds airport sponsors that NEPA applies to 
actions that would involve first time or altered ALPs, even if the 
actions will not receive AIP funding.
    Addressing the comment about categorically excluding revised ALPs, 
ARP notes that approvals of some actions depicted on ALPs may be 
CATEXs, while others may be the subjects of EAs or EISs. It is the 
proposed action and the severity of its impacts that determine the NEPA 
process, not the review of the ALP. Certainly, actions depicted on an 
ALP may be categorically excluded if they are listed in Order 1050.1E, 
paragraph 307 thru 312 (Tables 6-1 and 6-2 of the final Order), and the 
responsible FAA official determines extraordinary circumstances do not 
warrant preparation of an EA or EIS. However, other actions that have 
more substantive adverse effects require more intensive NEPA 
processing. Paragraphs 702.a-j and 903.a and b, list actions depicted 
on an ALP that are normally subjects of EAs or EISs, respectively.
    Regarding paragraph 706.g, two commenters state proposed conceptual 
mitigation must be coordinated with agencies having jurisdiction for an 
affected resource and those agencies must concur with the mitigation. 
ARP's Response: Agree in part. FAA as the lead Federal agency has 
ultimate discretion in deciding the mitigation needed for an action. To 
require that outside agencies must concur in the mitigation lessens 
FAA's authority as the agency responsible for the action. However, 
paragraph 706.g of the final Order notes the sponsor should work 
closely with the responsible FAA official and expertise or 
jurisdictional agencies. This allows the sponsor to use the agencies' 
expertise and try to ensure the mitigation meets the recommendations of 
the agencies. If substantial disagreement about mitigation or other 
issues exists between the sponsor or FAA and an expertise agency, the 
responsible FAA official should contact APP-400 as noted in paragraph 
707.d. This will allow APP-400 to understand the issues and assist the 
responsible FAA official as needed to complete the EA process.
    Chapter 8 Comments: ARP received no general comments on this 
chapter. Beginning paragraph 800 comments. A commenter suggests a 
comprehensive definition of the term, ``special purpose laws'' and 
deleting the partial list the paragraph presented. Another commenter 
from a state block grant agency recommends adding a note to provide 
state block grant participants an alternative approval process. The 
note should state references to FAA should refer to SBGP participants. 
ARP's Response: Concerning the comment on special purpose laws, ARP 
agrees. Paragraph 9.t of the final Order defines the term and provides 
a list of special purpose laws that apply most often to airport 
actions. The Desk Reference mentioned earlier in this Preamble will 
provide instructions on applying those laws to airport actions. Until 
ARP publishes it, readers should use Order 1050.1E, Appendix A for 
information on those laws. Paragraph 800 of the final Order no longer 
discusses special purpose laws.
    Addressing the SBGP issue, paragraph 211 of the final Order notes 
that for SBGP actions, the participating state agency assumes the roles 
a responsible FAA official or approving FAA official would normally 
fulfill, unless Order 5050.4B specifies differently.
    Concerning paragraph 801, a commenter states public health impacts 
need to be evaluated, but notes that Appendix A of Order 1050.1E 
contains the impact categories where this would

[[Page 29044]]

occur. Should ARP use this information? Also, a commenter states the 
paragraph should specifically require impact intensity determinations 
for national parks. ARP's Response: Addressing the comment on public 
health impacts, ARP generally agrees that Order 1050.1E, Appendix A, 
provides good information on assessing various impact categories that 
could affect public health. Users of this Order should use Order 
1050.1E, Appendix A until ARP issues the Desk Reference. Readers should 
note that Appendix A of Order 1050.1E provides the information 
available on the seven criteria pollutants. At present, there is no 
reliable and scientifically-approved methodology available to conduct 
health risk assessments for air toxics (i.e., hazardous air 
pollutants). In addition, EPA has not established standards or 
thresholds for evaluating air toxics. Regarding the comment on national 
parks, ARP requires the analysis to consider impacts on parks and other 
Section 4(f)-protected resources if they occur in a project's affected 
area.
    Concerning paragraph 801.b, a commenter urges ARP to include the 
airport sponsor in discussions about mitigation because the sponsor is 
responsible for possible mitigation and project design. Two commenters 
recommend including a statement that expertise agencies should 
determine the adequacy of mitigation. Another commenter stated that the 
first two sentence of the paragraph conflict. ARP's Response: Disagree. 
Paragraph 801.c of the draft Order included the airport sponsor in 
discussions about mitigation. Paragraph 800.b of the final Order 
slightly revised the wording, but makes the sponsor a critical part of 
mitigation and design decisions.
    Regarding expertise agency concurrence on mitigation, ARP 
disagrees. FAA, as the lead Federal agency for most airport actions, 
has ultimate discretion in deciding the mitigation the FONSI will 
require. To allow an outside agencies to determine that mitigation 
lessens FAA's authority as the lead Federal agency responsible for the 
airport action. However, paragraph 706.g of the final Order notes the 
sponsor, when developing mitigation, should coordinate with FAA and 
expertise or jurisdictional agencies. This allows the sponsor and FAA 
to use the jurisdictional agency's experience and expertise when 
developing mitigation that a FONSI would likely contain.
    Addressing the final comment, ARP disagrees. The intent of the 
paragraph in the draft was to alert readers that the responsible FAA 
official will make an extra attempt to determine if any mitigation or 
project design change would reduce impacts below significant 
thresholds. To better clarify this point, ARP revised paragraph 800.b 
to note that this effort should occur before the responsible FAA 
official recommends preparing an EIS. The official does so in 
consultation with expertise agencies and the airport sponsor.
    Addressing paragraph 802 comments, a commenter states public 
involvement should be compulsory and the process for it should be 
disclosed. The same commenter states the FONSI should be valid for only 
3 years. ARP's Response: Addressing public involvement, ARP agrees in 
part. We have responded to this concern in responses to comments on 
various paragraphs (e.g., 205; 303; 703). ARP stresses that 40 CFR 
1501.4 requires public involvement to the extent practicable during EA 
preparation. In 1050.1E, paragraph 406.e(1) and paragraph 804 of this 
Order FAA has also adopted procedures for making FONSIs available for 
public review for 30 days before the agency makes its final 
determination on the severities of project impacts . These instructions 
provide multiple opportunities for mandatory and optional public 
involvement.
    Regarding FONSI longevity, ARP agrees. ARP addresses this issue in 
paragraphs 1401 and 1402 of the Order, which discuss special 
instructions and re-evaluating and supplementing NEPA documents, 
respectively. Paragraph 809.c mentions when FAA may need to amend a 
FONSI.
    Paragraph 802.i, a commenter requested an explanation of the term, 
``mitigated FONSI.'' ARP's Response: ARP has added a footnote to the 
``boilerplate statement'' in paragraph 802.g of the final Order. It 
states a ``mitigated FONSI'' is one conditioned upon mitigation 
measures that avoid or reduce otherwise significant effects below 
applicable threshold levels. Paragraph 805a of this Order recommends 
preparation of a FONSI /Record of Decision (FONSI/ROD) to provide the 
approving FAA official's reasoning in support of the FONSI in these 
instances.
    Discussing paragraph 804.a comments, one commenter suggests 
clarifying that the Regional Administrator would sign a FONSI when ARP 
and at least one other FAA organization are involved in a proposed 
action. Another commenter states firm guidelines are needed for 
reviewing findings at each reviewing level. Another commenter notes 
that ARP cannot require other FAA organization to review FONSIs. 
Instead, ARP should provide the opportunity for that review. The same 
commenter notes that in a particular region, Airports Division managers 
have FONSI approval authority. The commenter recommends the paragraph 
allow re-delegation of the Regional Administrator's approval. ARP's 
Response: ARP agrees with the comment regarding clarification that the 
Regional Administrator signs the FONSI when the proposed actions 
involve more than one organization within the FAA. Paragraph 803.c of 
the final Order clearly states under FAA Order 1100.154A, Delegation of 
Authority, the Regional Administrator overseeing the FAA regional 
office responsible for the EA will issue the FONSI.
    Regarding firm deadlines, ARP disagrees. It cannot set review 
schedules for other FAA organizations. ARP will discuss project 
importance with the reviewing organizations and urge them to review 
projects within 30 days of receiving the document.
    Addressing the comment that this Order should re-delegate signature 
authority, ARP disagrees. FAA Order 1100.154A, Delegation of Authority, 
clearly describes the approval authority when more than one FAA 
organization is involved in an action. Order 5050.4B cannot modify the 
requirements of Order 1100.154A.
    Concerning paragraph 804.b, a commenter states the Order does not 
require Regional Counsel review when special purpose laws beyond 
Section 106 and Section 4(f) are involved in an action. A state block 
grant participant states the Order should provide alternative review 
procedures or remove the internal coordination for SBGP actions. 
Another commenter states FAA Regional Counsel should not review 
actions, ``where the SHPO has issued a determination of no effect, a 
determination of no adverse effect, or a conditional determination of 
no adverse effect.'' ARP's Response: Paragraph 803.a of the Order 
discusses the internal review process. Required legal review occurs 
when actions involve: (1) Opposition by a Federal, State, or local 
agency or a Tribe on environmental grounds or a substantial number of 
people affected by the project; (2) resources protected under Section 
106 of the National Historic Preservation Act; or (3) a determination 
of use of resources protected under Section 4(f) of the Department of 
Transportation Act (recodified at 49 U.S.C. 303c). In addition, the 
responsible FAA official may use his or her discretion for actions that 
affect other resources when deciding if Regional Counsel review is 
needed (paragraph 802.a(2)).

[[Page 29045]]

    Addressing the SBGP issue, coordination within FAA would depend on 
the SBGP and its connected actions as discussed in item j. of this 
Preamble and responses to comments on paragraph 703.b(5). If there is 
no FAA organization involved, the action does not require FAA Regional 
Counsel review as noted in Order 1050.1E paragraphs 404e and 406c. 
However, ARP urges SBGP participants to contact their own State 
attorneys for legal reviews of those SBGP actions. Addressing the last 
commenter's statement, ARP wishes to alert the commenter that the SHPO 
is not responsible for making these determinations. According to 36 CFR 
800.2(a) FAA is responsible for doing so. ARP has found Regional 
Counsel review of these determinations is helpful. ARP chooses to 
retain that review.
    Concerning paragraph 805, a commenter objects to providing a 30-day 
review for a proposed FONSI in certain situations. ARP's Response: 
Comment noted. Paragraph 804.b of the final Order reflects agency-wide 
requirements in Order 1050.1E paragraphs 406e.(1)(a) and (b) and 
406.2(2).
    Addressing paragraphs 805.c and d, a commenter objects to the 30-
day period for projects that include mitigation reducing an action's 
potential significant impacts or if the action is highly controversial. 
ARP's Response: Agree. We have deleted the 30-day review period. 
Paragraph 805.c discussing FONSI/ROD availability addresses this issue.
    Regarding paragraph 808, a commenter requested guidance on when 
approved FONSIs would be available to the public. The commenter asks if 
FONSI/ROD availability should be similar to notice of a ROD prepared 
for an EIS. ARP's Response: Agree. Paragraph 805.c of the final Order 
refers the reader to paragraph 1402.b. Although information in that 
paragraph refers to EISs, it is appropriate for FONSIs and their 
accompanying EAs as well. That information will help ensure approving 
FAA officials use the most current environmental information in their 
decisions.
    Concerning paragraph 810, a commenter suggests adding information 
saying when ARP would need to revise a FONSI. ARP's Response: Paragraph 
809 addresses that issue.
    Chapter 9 Comments: ARP received no general comments on this 
chapter. Regarding paragraph 900, a commenter requests that the state 
agency having Department-wide responsibilities for developing airport 
projects be able to prepare an EIS under FAA's direction. Another 
commenter suggests adding a sentence noting the importance of setting 
realistic milestones for completing EIS tasks, with milestones based on 
project complexity. ARP's Response: Addressing the first comment, ARP 
agrees. When a state or agency subject to NEPA-like laws is involved, 
it would prepare the equivalent of an EIS. In those instances, the 
State or agency will have expertise in complying with applicable mini-
NEPA laws. In other instances where an EIS is called for, although ARP 
isn't responsible for preparing the document addressing the SBGP 
action, regional or district Airports office personnel are ready to 
answer questions and provide guidance to the SBGP agency. If there is a 
connected action remaining under the purview of an FAA organization, 
FAA would be a joint-lead agency, helping the SBGP prepare the EIS. 
Paragraph 214 of the final Order has been revised to include this new 
information.
    Regarding the discussion of realistic milestones, ARP agrees. 
Paragraph 902.c discusses factors critical to establishing realistic 
schedules to complete EISs.
    Addressing paragraph 901 comments, a commenter noted an EIS should 
address environmental impacts and should not be expanded by discussing 
other public concerns outside of environmental effects. ARP's Response: 
Agree. The intent of the paragraph as drafted was to include factors 
that had environmental connections. ARP has revised the discussion, 
which is now in paragraph 902.a of the final Order. The text states the 
EIS should properly analyze and disclose potential significant 
individual and cumulative environmental impacts a proposed airport 
action and its reasonable alternatives would cause. Paragraph 902.b 
notes that information must be clearly written so the public 
understands it.
    Concerning paragraph 903, three commenters state a scoping meeting 
is not necessary for every EIS. ARP's Response: Agree. ARP has revised 
paragraph 906 in the final Order to clarify that scoping meetings are 
optional. ARP has removed text that confused the commenter.
    Addressing paragraph 903.b, a commenter noted the paragraph 
discusses duties that should occur during master planning or 
feasibility engineering, both of which precede the EIS. ARP's Response: 
Agree. ARP has urged airport sponsors to complete most or all airport 
planning before ARP begins preparing its EIS. Experience has shown that 
when planning is delayed, EIS schedules are normally delayed. This 
``domino effect'' occurs because FAA and other interested parties do 
not have the planning information that is critical to efficiently 
determine an EIS's scope and the analyses needed to address that scope.
    To help airport sponsors complete airport planning with NEPA in 
mind, ARP has prepared a new Chapter 5 for this Order. That chapter 
outlines the connection between airport planning and how it affects 
timely NEPA processing. Chapter 5 of the Order incorporates information 
from Chapter 5 of ARP's recent advisory circular on airport planning 
(150/5070-6) and ARP's, Best Practices Web site. Readers may wish to 
review those documents for more information.
    In addition, paragraph 904.b of the final Order discusses the 
timing of the start of an EIS. That paragraph states that FAA will 
start an EIS when it receives a proposed for an airport action that 
contains sufficient planning data or information to meaningfully 
evaluate alternatives and their potential environmental effects (40 CFR 
1508.23). Paragraph 904.b provides this information because during the 
past decade, ARP has found that a lack of well-conceived and well-
developed airport planning information or a failure to resolve planning 
issues have caused substantial delays in the NEPA process. Many times 
these delays were not NEPA-related, but were due to a lack of good 
planning data. ARP found that this lack of data severely hampered its 
ability to meaningfully evaluate project impacts and prepare the EIS.
    Regarding paragraph 903.c(6), a commenter stated delay is a big 
problem for airport development projects, with the EIS process being a 
major reason for that delay. The commenter states its perception is 
that FAA and other agencies do not appreciate the urgency that airport 
sponsors, airlines, and the public feel. FAA should commit to a fixed, 
ambitious deadline to substantially improve its performance and reduce 
its tendency to over analyze and conduct long-term reviews. The 
commenter states FAA should work in parallel with other agencies, not 
sequentially or separately. The draft does not reflect the need to 
reduce time needed for EIS preparation. The draft should include ways 
to oversee and coordinate EIS processes to avoid unnecessary delays. 
ARP's Response: ARP respectfully disagrees that its personnel do not 
appreciate the urgency the sponsor and industry feel. See the response 
above under General Comments, Saving Time During NEPA Process, relating 
to the recommendation that the Order include instructions for

[[Page 29046]]

milestones, deadlines, and schedules. ARP has a well-established track 
record of conducting concurrent reviews under NEPA and other applicable 
environmental laws to make the environmental review process efficient 
and effective. ARP notes that it will continue to work to improve the 
efficiency and effectiveness of the NEPA process.
    Addressing paragraph 903.d, a commenter states FAA should rely on 
valid information sources regardless of the information's age. The same 
commenter states that ARP should consult with the airport sponsor 
before deleting an alternative. ARP's Response: Regarding the validity 
of information, ARP disagrees. The draft paragraph noted the 
responsible FAA official should consider whether a document's age 
affects its validity for NEPA purposes. ARP highlights this, not 
because information is of poor quality, but because due to its age, the 
document may no longer accurately reflect existing environmental 
conditions critical to FAA's decisions. Paragraph 906.d of the final 
Order deletes the word, ``caution'' and cites paragraph 1401. Paragraph 
1401 discusses the need to re-evaluate EAs and EISs. Regarding 
consulting the sponsor about deleting an alternative, ARP agrees in 
part. Paragraph 906.d(1) has been revised to recommend that FAA notify 
the sponsor when the agency determines that an alternative studied in 
detail in the EA will be briefly discussed in the EIS and then 
dismissed from further consideration.
    Concerning paragraph 904, a commenter notes that a substantial 
amount of ``scoping'' takes place before the decision to prepare an EIS 
occurs or before an agency publishes a Notice of Intent (NOI). The 
commenter suggests the Order explain how ARP should consider scoping 
conducted before the NOI. ARP's Response: Comment noted. According to 
40 CFR 1501.7, scoping shall follow the publishing of the NOI. ARP 
recognizes substantial, good work often occurs before the NOI, but that 
would be consultation and does not fulfill EIS scoping requirements. 
The information gleaned from the pre-NOI work is often valuable and is 
frequently used in preparing for scoping. Instructions that were in 
paragraph 904 of the draft Order, now appear in paragraph 907 of the 
final Order but remain unchanged.
    Addressing paragraph 906.b comments, a commenter suggests adding 
text urging the preparation of a Memorandum of Agreement (MOA) with 
cooperating agencies. The MOA is a very useful tool in defining roles 
and commitments to FAA's schedule. The commenter notes this is a good 
practice and almost always improves the process and reduces delays. 
Another commenter objects to the need to invite agencies having 
permitting or approval authorities to be cooperating agencies during 
EIS preparation. The commenter believes cooperating agencies should be 
limited to those agencies that propose to implement or approve an 
action. The commenter states ARP should invite only agencies having 
discretionary approval to be cooperating agencies. The commenter 
further states that agencies providing funding or exercising authority 
over affected resources should not be cooperating agencies. A third 
commenter states that municipalities adjoining an airport should be 
cooperating agencies. A fourth commenter suggests contacting local land 
use agencies regarding future land uses in the airport vicinity. ARP's 
Response: Regarding the MOA with cooperating agencies, ARP agrees. 
Paragraph 906.a(5) of the final Order discusses a similar a document, 
the Memorandum of Understanding (MOU). We have revised the paragraph to 
encourage ARP personnel to consider the utility of entering into a 
formal agreement with cooperating agencies. ARP notes that a ``one-size 
fits all'' approach is not appropriate.
    Turning to the comments on cooperating agency status, ARP disagrees 
with the first commenter and agrees, in part with the second one. As 
lead Federal agency, ARP is required to invite agencies having 
permitting or approval authority for the proposed action to be 
cooperating agencies (40 CFR 1501.6 and 1508.5). In addition, in 
January 2002, CEQ urged all Federal agencies to improve their 
cooperating agencies efforts by inviting participation by Federal and 
non-Federal entities as cooperating agencies. Following that date, ARP 
notified its personnel that agencies having authority for a component 
of a project should be a cooperating agency during EIS preparations. 
Paragraph 910.c of the final Order reflects those instructions. To 
enhance EIS preparation, the responsible FAA official may also decide 
to invite agencies with expertise to be cooperating agencies. This may 
be helpful because those agencies often have information and knowledge 
that aids in properly scoping and analyzing an action's environmental 
effects or mitigating expected environmental impacts. It may also 
foster good relations and facilitate early resolution of environmental 
concerns.
    Turning to the comment that municipalities adjoining an airport 
should be invited to participate as cooperating agencies, ARP believes 
that this it has to make decisions on cooperating agencies on a case-
by-case basis. Among other things, ARP considers the potential benefits 
extending an invitation may offer. These considerations may include: 
The existence of municipal data and information that are not publicly 
available; the history of the relationship between the airport sponsor 
and the municipalities; or approval authority the municipality may have 
regarding an aspect of the proposed project.
    Regarding the comment on recognizing local land use agencies as 
cooperating agencies, ARP disagrees. Paragraph 910.a recommends 
contacting and involving local agencies participate as ``interested 
parties'' because these agencies can provide valuable information about 
land uses in the airport area that may be noise sensitive or otherwise 
incompatible with airport operations (e.g., attracting wildlife that 
are known hazards to aviation). The responsible FAA official should 
consider the role that the local land use agency plays and the history 
of its relationship with the airport in determining whether it makes 
sense to invite their participation as cooperating agencies. Involving 
hostile local agencies would jeopardize ARP's ability to establish a 
functional working group and complete an effective and efficient NEPA 
process.
    Regarding paragraph 906.j, two commenters question the information 
about a cooperating agency's failure to provide comments during 
scoping. A commenter seeks information on the requirement, while 
another states this is an, ``empty threat.'' ARP's Response: Comment 
noted. ARP retains the text because it is not an, ``empty threat.'' CEQ 
has addressed this situation and paragraph 910.i of the final Order 
recognizes CEQ's position on it. Those interested in that position 
should review Question 14.d of the Forty Most Asked Questions (46 FR 
18026, March 23, 1981).
    Chapter 10 Comments: Beginning General Chapter 10 comments. A 
commenter notes that the Order or FAA's Web site should provide copies 
of all FAA and DOT documents and orders cited in FAA Orders 1050.1E and 
5050.4B or that are often used during the NEPA process. ARP's Response: 
Comment noted. ARP chooses not to include the material in Order 
5050.4B. Since this information is available from other sources, ARP 
suggests that interested parties use web-based ``search engines'' to 
find the material. Regarding additions to Order 1050.1E, the commenter 
should contact FAA's Office

[[Page 29047]]

of Environment and Energy, the FAA office responsible for the content 
of that document.
    Regarding paragraph 1001.e, a commenter states that the EIS should 
also identify the airport sponsor's ``preferred alternative.'' Another 
commenter noted the text stated the airport sponsor decides if it will 
complete proposed action, but was questioning the statement about the 
conditions that would lead to a preferred alternative that is different 
than a sponsor's proposed action. ARP's Response: Addressing the use of 
``preferred alternative'' to identify a sponsor's action, ARP 
disagrees. For NEPA purposes, the term, ``preferred alternative'' has a 
specific meaning. According to Question 4a of the Forty Most Asked 
Questions document noted in response to comment 906.j, this is the 
alternative that, ``* * * the agency [emphasis added] believes would 
fulfill its statutory mission and responsibilities, giving 
consideration to economic, environmental, technical and other 
factors.''
    Regarding the comment about preferred alternative differing from a 
proposed action, ARP notes the comment. ARP alerts the commenter that 
simply selecting a proposed action because that is what the sponsor 
wishes is ``rubber stamping'' an airport plan without considering its 
economic, environmental, and technical effects. That is not NEPA's 
intent, nor is that the way ARP makes its decisions. After completing 
its NEPA process, ARP has occasionally selected a preferred alternative 
that differed from a sponsor's proposed actions. As noted in the first 
part of this response, ARP's independent analyses and the approving FAA 
official's consideration of economic, environmental, and technical 
factors can lead to a decision differing from the airport sponsor's.
    Addressing comments on paragraph 1003, a commenter states, although 
it recognizes FAA's final discretion in deciding an EIS's adequacy, the 
paragraph unduly limits airport sponsor participation in the EIS 
process. The comment further notes that airport sponsors play necessary 
and appropriate roles in EIS preparation, especially when State 
documents have been prepared for actions. The commenter wants ARP to 
revise the paragraph to allow more active sponsor participation. 
Another commenter seeks instructions allowing the airport sponsor to 
review consultant work to decide if it has been performed competently 
and completely per the contract the sponsor finances. A third commenter 
objects to excluding everyone except FAA in getting, managing, or using 
raw data. The commenter suggests that local citizen advisory committees 
provide input to the consultant's selection. FAA's approach concerns 
the commenter because it may allow the agency to conclude the process 
without a thorough review of analytical procedures. ARP's Response: 
Regarding sponsors participating in EIS processing, please see the 
response to comment in this Preamble's Consultation with airport 
sponsors section.
    Regarding the comment on the sponsor's review of consultant work 
for contract purposes, under 40 CFR 1506.6(c) FAA, not the sponsor, has 
exclusive oversight and authority to direct the EIS consultant's work. 
This impliedly includes the authority to assure that consultant EIS 
work is fully and competently performed. In overseeing and directing 
the work of EIS consultants, FAA decides if the contractor's work is 
meeting quality and timeliness requirements under the contract. When 
FAA becomes concerned that the consultant (contractor) is in default, 
then the sponsor will be given sufficient access to information to 
allow it make its own determination. EIS contracts are exceptions to 
ordinary contracts because Section 1506.6(c) overrides competing state 
and local procurement and contract management practices.
    Turning to concerns about cost control, the current process 
contains ample safeguards to assure that the work is performed at 
reasonable costs. The sponsor has access to sufficient information, 
including the cost estimates in the Statement of Work, consultant 
invoices, and the EIS schedule, to determine whether costs are being 
reasonably incurred. If sponsors have concerns that the costs of the 
work being performed are not reasonably incurred then sponsors present 
those concerns to FAA and they are normally resolved.
    ARP appreciates the sponsor's desire for greater access to 
information during the NEPA process. As discussed above in detail in 
response to the general comment, section, Consultation with airport 
sponsors, FAA meets with sponsors to discuss and reach agreement upon 
the access to be provided. As far as access to verify costs, the 
current process strikes the right balance between cost considerations 
and conserving the integrity of the NEPA process. FAA is aware that 
there have been rare, but regrettable occasions when sponsors have 
terminated EIS contracts due to objections to cost. On one occasion 
this occurred, when in FAA's opinion, the contractor was performing 
work fully and competently. However, the sponsor felt the contractor's 
estimate for continuing work was too costly and desired not to continue 
to work with the contractor.
    These past instances suggest additional sponsor review could have 
the unintended effect of making cost control a higher priority than 
meeting NEPA requirements. The reviews proposed would also require the 
agency to release contractor drafts under FOIA. This would potentially 
cause public confusion, a chilling effect upon agency deliberations, 
and diversion of agency resources from the NEPA process. It is 
unnecessary to expose the NEPA process to such a review with these 
potential consequences when there are other ample, less intrusive means 
available for controlling costs. Therefore, ARP does not agree that 
sponsors should be allowed to review consultant's work for adequacy and 
reasonableness of cost prior to authorizing payment.
    Addressing the comment recommending citizen advisory board input in 
selecting EIS consultants, ARP disagrees. Federal agencies must comply 
with the Federal Advisory Committee Act to obtain consensus 
recommendations from the public. Given the time, effort, and money 
involved, ARP does not believe that it is practical for the FAA to 
convene Federal advisory committees to represent the various groups 
that might want to provide input to assist FAA with the very limited 
task of selecting airport EIS consultants.
    Concerning paragraph 1004.a, three commenters objected to the 
statement that sponsors may develop conceptual plans or designs that 
depict about 20 percent of the specifications needed to build or 
perform other work. One of these commenters noted there is no legal 
authority for this change in policy or intrusion into the sponsor's 
affairs. The commenter notes that limiting design and engineering 
imposes delays in improvements, which are already, in the view of the 
commenter, delayed by a process that takes too long. Also, extensive 
design and other information may be needed to finance a project, 
develop mitigation, and engage the community. Section 1506.1(d) does 
not prevent applicants from developing plans or designs or performing 
work necessary to apply for licenses, permits, and assistance. Another 
commenter observed that this statement would appear to limit the amount 
of engineering/design work that an airport sponsor can undertake in 
anticipation of completion of the NEPA process. This

[[Page 29048]]

commenter recommends replacing ``may develop'' with ``often develops.'' 
A third commenter asks if a sponsor goes beyond the 20-percent 
provision, what is the responsible FAA official to do? ARP's Response: 
ARP agrees in part. Paragraph 1004.c. of the final Order (``Plans and 
Designs for the NEPA process'') replaces the term ``may develop'' with 
the phrase ``[n]ormally, this analysis requires * * *.'' Paragraphs 
1004.c (2)-(4) explain that ARP discourages sponsors from developing 
substantially more than 25 percent of the detailed plans, except in 
certain cases where a sponsor is applying for a permit or monetary 
assistance. Paragraph 1004.c also notes that going beyond stated design 
development risks prompting legal challenges. It also lists the steps 
that responsible FAA official shall take to assure the integrity of the 
EIS process. These revisions clarify that FAA is establishing an 
approximate level of project design for its own use. It is doing this 
to assure that the actions it takes during the EIS, including approval 
of grant funds to prepare the EIS itself, meet the letter and spirit of 
NEPA. Section 1004.c. in the final Order also now states that 
completing final project design may raise issues of compliance under 
Section 1506.1 and is at the sponsor's own risk. This reflects the 
dearth of case law concerning the responsibilities of Federal agencies 
and applicants when an applicant is completing final project design 
before the EIS process has been completed. See, CEQ's Forty Most Asked 
Questions, Question 11 (46 FR 18026 March 23, 1981).
    Turning to the comment that extensive design and engineering may be 
needed for matters within the sponsors' prerogatives such as project 
financing, we note that Section 1506.1(d) permits applicants to develop 
plans and designs needed to apply for permits, licenses, and 
assistance. It is unclear under the case law whether such matters 
otherwise lie within the sponsors' prerogatives during completion of an 
EIS. ARP has added a new subsection d to Section 1004 that acknowledges 
the exception for certain plans and designs and recommends that 
sponsors consult FAA in these circumstances to determine the level of 
planning needed. It also clarifies that FAA does not discourage 
preparation of more detailed plans in the circumstances discussed 
there. As noted in paragraph 1004.c.(2) and discussed above, 
preparation of detailed plans before the EIS is completed may engage 
the community in ways that are not helpful. It has not been ARP's 
experience that a greater level of detail than 25% is normally needed 
to develop mitigation, however, if data become available to support 
this statement then we will change this guidance as appropriate.
    Responding to the comment about responsible FAA official duties if 
a sponsor exceeds the 30-percent design level, ARP does not have 
jurisdiction by law to halt completion of final project design by 
sponsors.\10\ Section 1004 clarifies that responsible FAA officials 
should normally limit AIP and PFC funding for the design work in an EIS 
to the 25% level. See, Village of Bensenville v. FAA, (376 F.3d 1114 
(D.C. Circuit, 2004). Responsible FAA officials also must also warn 
sponsors in writing about the possible risks of not complying with 
1506.1, as described in detail in new subsections (2), (3), and (4) of 
section 1004.c. ARP also added a new subparagraph b to Section 1004 to 
remind personnel about their responsibilities under related provisions 
concerning ALP approvals and land acquisition.
---------------------------------------------------------------------------

    \10\ Under 49 U.S.C. 47172, enacted in 2003 as part of Vision 
100, ARP may approve design-build contracts.
---------------------------------------------------------------------------

    Regarding paragraph 1005.e, a commenter requests revisions to allow 
adoption of material other than NEPA documents. ARP's Response: ARP has 
added a note to paragraph 1005.d addressing this issue. The note states 
that the responsible FAA official may use information not in NEPA 
documents to prepare EISs for FAA actions. However, before doing so, 
the official must independently review the information and accept 
responsibility for it. This is the same process those officials use to 
adopt NEPA documents that other agencies prepare.
    Addressing paragraph 1007, one commenter recommended that the Order 
provide guidance on addressing cumulative impacts. The commenter 
suggested using one of these methods: as a separate impact category in 
the Environmental Consequences section; within each of the other impact 
categories; or as a separate chapter. ARP's Response: 1007.i of this 
Order provides a summary of cumulative impacts. ARP will provide more 
detail on this topic in the Desk Reference it will prepare. Until ARP 
issues that information, document preparers and reviewers should use 
paragraph 1007.i, Order 1050.1E, paragraph 500c, and CEQ's guidance on 
assessing cumulative impacts, Considering Cumulative Effects Under the 
National Environmental Policy Act (http://ceq.eh.doe.gov/nepa/ccenepa/ccenepa.htm). Concerning the presentation of cumulative impacts, EIS 
preparers may use any of the three presentation methods mentioned above 
in the comment summary.
    Addressing paragraph 1007.d, a commenter states the Purpose and 
Need information is not consistent with Order 1050.1E, paragraph 405.c. 
Another commenter states FAA should have one clear statement of Purpose 
and Need. Two commenters highlight the need to consider airport design 
and aviation concerns in the Purpose and Need. They discuss several 
planning issues like load factors and airside design criteria. ARP's 
Response: Agree in part regarding consistency with 1050.1E. ARP used 
information from Order 1050.1E, paragraph 405c and 506d in preparing 
purpose and need instructions in 5050.4B. However, ARP notes that many 
other FAA organizations build facilities. In contrast, as paragraph 
706.b notes, an airport sponsor, not FAA, initiates proposed 
development projects at an airport. Sponsors apply to FAA for approval 
to amend airport layout plans to depict their projects and for 
financial assistance for construction. The instructions in 1050.1E 
primarily address purpose and need statements for direct Federal 
actions that FAA itself undertakes (e.g., constructing radar 
facilities, installing aids to navigation, NAVAIDS). ARP personnel 
require supplemental instructions because case law continues to evolve 
concerning the definition of purpose and need and the obligation to 
evaluate alternatives to a proposed action developed by an applicant 
for a license or permit.
    ARP has revised paragraph 706.b to delete the statement formerly in 
paragraph 1007 ``Since airport sponsors, not the FAA, propose airport 
projects, the responsible FAA official's role is to review the 
sponsor's proposal to determine if it meets the purpose and need.'' 
(Paragraph 1007.d now refers the reader to paragraph 706.b.) ARP has 
deleted this sentence because it is somewhat inconsistent with 
instructions in 1050.1e paragraph 506d \11\ and the CEQ guidance 
underlying it.\12\ ARP has replaced the

[[Page 29049]]

sentence with the following statement in paragraph 706.b(1): ``The 
purpose and need should be defined considering the statutory objectives 
of the proposed Federal actions as well as the sponsor's goals and 
objectives.'' The new text is consistent with Citizens Against 
Burlington Inc. v. Busey, 938 F.2d, 190 (D.C. Cir. 1991). It is also 
consistent with prior CEQ guidance that the applicant's goals and 
objectives may be considered along with other common sense realities; 
CEQ Guidance on NEPA Regulations, Selection of Alternatives in 
Licensing and Permitting Situations (48 FR 34263 July 28, 1983).
---------------------------------------------------------------------------

    \11\ Paragraph 506d of 1050.1E states: ``[The purpose and need] 
distinguishes between the need for the proposed action and the 
desires or preferences of the agency or applicant * * *''
    \12\ Question 2a of the Memorandum: Forty Most Asked Questions 
(46 FR 18026-18038, March 23, 1981). Question 2 indicates: ``In 
determining the scope of alternatives to be considered, the emphasis 
is on what is ``reasonable'', rather than on whether the proponent 
or applicant likes or is itself capable of carrying out a particular 
alternative. Reasonable alternatives include those that are 
practical or feasible from the technical or economic standpoint and 
using common sense, rather than simply desirable from the standpoint 
of the applicant.''
---------------------------------------------------------------------------

    Section 1007.d(1) summarizes 49 U.S.C. section 47171(j), which 
establishes a process for notice, comment, and deference to FAA Purpose 
and Need statements for actions at congested airports. Order 5050.4B 
must also supplement the instructions in Order 1050.1E relating to 
purpose and need statements because different legal requirements apply.
    In response to the comments on airport planning, ARP agrees in 
part. Paragraph 706.b of the final Order mentions planning concerns in 
general, but does not provide much information because the purpose of 
the Order is to use planning input to complete the NEPA process. In 
preparing its advisory circular on airport master planning (AC 150/
5070-6), ARP notes it is the sponsor's duty to adequately plan an 
airport project before ARP starts preparing an EIS. ARP has provided 
information on that planning process in Chapter 5 of that AC and in 
paragraph 904.b of the final Order. Chapter 5 of this Order also 
summarizes the important link between the NEPA process and airport 
planning.
    Concerning another comment on paragraph 1007.d, a commenter 
suggested adding a ninth subparagraph to discuss the need for accurate 
forecast data and a reasonable range among data to develop supportable 
Purpose and Need statements and conduct good environmental analyses. 
Another commenter states that using the 2001 benchmarking study to 
determine project that ARP would streamline to meet Vision 100 would 
essentially ``lock'' ARP to those capacity data. ARP's Response: 
Regarding the first comment, ARP agrees. The final Order discusses the 
need for reasonable consistency between between a sponsor's forecasts 
and FAA's Terminal Area Forecast (TAF) to ensure proper environmental 
analyses in EAs and EISs. Paragraph 706.b(3) provides guidelines for 
judging reasonable consistency.
    Addressing the comment on benchmark data, ARP declines to interpret 
this provision for the first time in the final Order. The plain 
language of 49 U.S.C. 47175(2) defines the term ``congested airport'' 
with reference to airports listed in Table 1 of the FAA's 2001 Airport 
Capacity Benchmark Report. There is sparse legislative history on this 
topic. Section 47175 also provides that a congested airport must be 
``an airport that accounted for at least 1% of all delayed aircraft 
operations in the United States in the most recent data available to 
the FAA Administrator. In the context of delay, Congress explicitly 
provided for use of the most recent data available. The final Order 
includes a footnote to paragraph 1007.d. stating that congested 
airports are those accounting for 1% of all delayed aircraft operations 
in the U.S. using data in FAA's 2001 Airport Capacity Benchmark Report 
(49 U.S.C. 40129(e)). The footnote further states that ARP's Planning 
and Environmental Division should be contacted for more information if 
needed. Notably, the FAA's 2004 Airport Capacity Benchmark Report added 
only 4 airports to the list (Cleveland-Hopkins, Fort Lauderdale-
Hollywood, and Portland International Airports, and Chicago-Midway 
Airport). We intend to seek clarification of Congress' intent as part 
of the reauthorization of the agency's enabling legislation. Addressing 
paragraph 1007.e, a commenter requests including valuable information 
from paragraph Order 5050.4A for the term ``prudent and feasible'' 
alternative due to the requirements of section 509(b)(5) of the 1982 
Airport Act (recodified at 49 U.S.C. 47106(c)(1)(B)) and section 4(f) 
of the Dept. of Transportation Act (recodified at 49 U.S.C. 303(c)). 
Also, a number of commenters discuss the term ``reasonable'' and 
request further guidance on it. One commenter indicated that ``and 
achievable'' should be deleted. They also stated the draft's discussion 
of the terms ``reasonable'' and ``possible/feasible and prudent'' 
appeared to be inconsistent. ARP's Response: Regarding definitions for 
the term ``feasible and prudent,'' ARP agrees. ARP has revised 
paragraphs 1007.e(4) and (5) of the final Order to clarify that the 
phrase ``feasible and prudent'' is used in both statutes. ARP has also 
provided additional guidance regarding the term ``prudent'' to reflect 
recently updated (March 2005) FHWA guidance on the ``feasible and 
prudent'' standard under Department of Transportation Act Section 4(f), 
(recodified at 49 U.S.C. 303).\13\ For example, based on the new 
guidance ``prudent'' means an alternative that must achieve the 
Project's purpose and need. We have also noted in this paragraph that 
Section 509(b)(5) addresses alternatives to the project while 
alternatives to the use are involved under DOT Section 4(f).''
---------------------------------------------------------------------------

    \13\ See, Section 4(f) Policy Paper, dated March 1, 2005. Review 
the paper's ``Section 4(f) Evaluation'' section focusing on Examples 
of Alternative Selection Process. http://environment.fhwa.dot.gov/projdev/4fpolicy.asp#alternatives.
---------------------------------------------------------------------------

    Addressing the comment regarding consistent terminology, ARP 
disagrees. Although the terms are used throughout the Order, the 
appropriate term was used depending upon the applicable legal context, 
that is, the NEPA document being prepared and the applicable special 
purpose law. When discussing EAs, the term ``reasonable'' is used 
(paragraph 706.d), but when discussing EISs addressing new airports, 
new runways, or major runway extensions, the terms ``possible and 
prudent'' are also used. Here, EISs addressing these actions must 
include the terms ``possible and prudent alternative'' to meet the 
requirements of 49 U.S.C. 47106(c)(1)(B). In this case, the Secretary 
of Transportation (Secretary) may approve a project grant application 
for those airport facilities having significant adverse effects only 
after finding that no possible and prudent alternative exists 
(paragraph 1007.e(4) of the final Order). Also, the term ``feasible and 
prudent'' must appear in EISs addressing any transportation action that 
would use section 4(f) resources as noted in paragraph 1007.e(5) of the 
final Order. Section 4(f) provides that the Secretary may approve a 
project that would use a 4(f)-protected resource only if there is no 
prudent and feasible alternative to using the protected resource and 
the approved project includes all possible planning to minimize harm to 
the resource. Finally, projects involving wetlands and floodplains 
require the analysis of ``practicable'' alternatives (paragraph 
1007.e(6)).
    Addressing the improper use of the word, ``achievable'' and Section 
4(f) requirements, ARP agrees that was a typographical error. ARP has 
corrected the text in paragraph 1007.e(4) of the Order. It now repeats 
the requirements in 49 U.S.C. 303(c)(1) regarding, ``* * * all possible 
planning to minimize harm.''
    Concerning paragraph 1007.f, a commenter states the information on 
Affected Environment is vague. ARP's Response: Disagree. The Order 
provides the same information in Order 1050.1E,

[[Page 29050]]

paragraphs 405e and 506.f. Paragraph 706.e discusses what an EA's 
Affected Environment should contain. Paragraph 1007.f discusses the 
information an EIS's Affected Environment section would need and 
incorporating information from an EA in that EIS section.
    Addressing paragraph 1007.g, a commenter recommends including 
Appendix A from 1050.1E. Another commenter sought information on the 
sequence in which EISs should discuss environmental consequences. ARP's 
Response: Regarding Appendix A, ARP notes the comment. ARP has 
addressed this issue in various parts of this preamble (item a, 
Instructions to ``NEPA-like'' states, Desk Reference). To summarize, 
ARP will issue the Desk Reference after it issues this Order. Until 
then, ARP staff and other interested parties must use Appendix A of 
Order 1050.1E for information on assessing resources outside NEPA. When 
ARP issues the Desk Reference, all parties may use the Desk Reference 
to analyze airport actions.
    Concerning the sequence of consequences, paragraph 1007.g(2) does 
not require alphabetical presentations in NEPA documents. Document 
preparers should present the information in the most informative, 
``easiest-to-understand'' way. Readers should note that in preparing 
Appendix A for Order 1050.1E, the authors simply presented the 
resources in alphabetical order for easier document and reference use. 
That sequence does not dictate the presentation of impacts in 
alphabetical order.
    Regarding paragraph 1007.j, a few commenters suggested 
electronically distributing NEPA documents to reduce costs.  ARP's 
Response: The responsible FAA official may use CDs or a Web sites to 
distribute EISs. ARP realizes that not all interested parties have 
access to electronic documents, so the final Order also mentions hard 
copy availability. Like other FAA organizations, ARP encourages 
electronic distribution to reduce costs, delivery time, and 
environmental concerns (waste, transportation, etc.) associated with 
hard copies.
    Concerning paragraph 1007.n, a commenter notes the instructions 
here repeated information in paragraph 1007.m and caused some 
confusion. ARP's Response: Agree. Paragraph 1007.n incorporates and re-
arranges information on using and distributing EIS appendices and 
reference material. Paragraph 1007.o now presents information about 
incomplete or unavailable information formerly in paragraph 1007.n(3).
    Chapter 11 Comments: ARP received no general comments on this 
chapter. Turning to paragraph 1100, two commenters note the Order 
should state sponsors should be able to review preliminary draft EISs 
and other information used to prepare it.
    ARP's Response: Comment noted. ARP refers readers this Preamble's 
Consultation with Airport Sponsors section.
    Regarding paragraph 1101.a, a commenter states local municipalities 
adjoining the airport should review draft EISs. The commenter also 
states the National Park Service (NPS) should review those documents. 
Another commenter notes some entities should receive copies of draft 
EIS (metropolitan planning organizations, local governments), while 
others need not review the document (asbestos regulators). ARP's 
Response: Comments noted. The draft Order reflects the requirements 
under 40 CFR 1503.1. FAA obtains comments from the entities named in 
these comments in the circumstances identified. Paragraph 1101.a(1)-(5) 
as revised clarifies that FAA requests comments from various entities. 
These include municipalities or state transportation departments that 
do not qualify under 1503.1(a)(2) or the public under 40 CFR 
1503.1(a)(4) when either entity has an interest in the proposed project 
or may be affected by it.
    Addressing paragraph 1101.b, a number of commenters stated 
electronic distribution should be an option. ARP's Response: Agree. 
Paragraph 1101.b contains this instruction. Also, see response to 
comment for paragraph 1007.j.
    Concerning paragraph 1101.(d), a commenter states there is no need 
to publish a press release to announce draft EIS availability. ARP's 
Response: Agree. Regulations at 40 CFR 1506.6(b)(3)(iv) provide that 
Federal agencies shall: ``* * * (b) provide public notice of * * * the 
availability of environmental documents so as to inform those persons 
and agencies who may be interested or affected * * *. (3) In the case 
of an action with effects primarily of local concern the notice may 
include: * * * (iii) Publication in local newspapers * * * (v) Notice 
through other local media.'' Paragraph 1101.b(3) clarifies that the 
responsible FAA official must provide notice of the draft EIS's 
availability to the public. The paragraph further states that the 
responsible FAA official may do so by sending a press release to local 
media serving the project area. ARP believes press releases are 
excellent ideas, since many people in an affected area read local 
newspapers.
    Concerning paragraph 1102.b, a commenter states this paragraph 
should include action-forcing deadlines and procedures to increase the 
likelihood or require timely reviews. ARP's Response: See the Response 
to the general comment, Saving time during the NEPA process and 
streamlining the NEPA process. In addition, readers should note that 
paragraphs 1102.b(1) and (2) of the final Order now discuss altering 
the prescribed DEIS review periods to reflect requirements in 40 CFR 
1506.10.(d).
    Regarding paragraph 1104, a commenter notes that other agencies 
should not have discretion on when a draft EIS is ruled inadequate. FAA 
should have the final discretion regarding document re-circulation. 
ARP's Response: Agree. Paragraph 1104 of the final Order clarifies this 
is the responsible FAA official's decision.
    Chapter 12 Comments: ARP received no general comments on this 
chapter. Addressing paragraph 1200, a commenter states airport sponsors 
should be consulted on all comment responses and have reasonable 
opportunity to review all proposed responses. The commenter notes this 
is needed because issues may be raised for the first time during the 
comment period, and this will trigger the first response to a 
substantive issue. ARP Response: ARP has revised this paragraph to 
indicate that the responsible FAA official must consult the airport 
sponsor before finalizing a response to a comment that would commit the 
sponsor to change the proposed project, change the operation of the 
airport or change proposed mitigation measures. See the response to the 
general comment, Consultation with airport sponsors, for further 
explanation.
    Regarding paragraphs 1203.c and 1203.e, a commenter states the 
requirements concerning Section 4(f) and wetlands, respectively, could 
conflict and prevent a project from moving forward. The commenter 
suggests including information to address this situation. ARP's 
Response: Agree in part. ARP has revised paragraph 1204.a of the final 
Order advising the responsible FAA official to watch for this 
situation. It states that if there is an alternative under 
consideration to comply with another special purpose law, and it 
conflicts with the alternative that would avoid Section 4(f) use or 
minimize effects on a 4(f)-protected resources, the official must 
carefully evaluate both alternatives and balance the harm the 
alternatives

[[Page 29051]]

would cause. This balance should be in consultation with pertinent 
resource agencies. The official must recommend the alternative avoiding 
Section 4(f) use or reducing impacts on a 4(f) resource if it meets 
purpose and need. However, there are times where important non-4(f) 
resource impacts must be weighed to determine the most prudent 
alternative.\14\ Therefore, ARP does not agree with the commenter that 
such conflicts prevent FAA from making decision to move forward with 
airport actions. Before making a decision, the approving official 
should discuss this with the airport sponsor to alert the sponsor to 
the situation.
---------------------------------------------------------------------------

    \14\ See, Section 4(f) Policy Paper, dated March 1, 2005. Review 
the paper's ``Section 4(f) Evaluation'' section focusing on Examples 
of Alternative Selection Process. http://environment.fhwa.dot.gov/projdev/4fpolicy.asp#examples.
---------------------------------------------------------------------------

    Addressing paragraph 1202, a commenter states ARP should quickly 
alert a sponsor to the fact that its preferred alternative is not the 
sponsor's proposed action. ARP's Response: Agree. Paragraph 1202 of the 
final Order tells the approving FAA to notify the sponsor about this as 
early as possible and follow the process outlined in paragraph 801.
    Concerning paragraph 1203, a commenter states the information 
discussed should not be in the final EIS. Instead, it should be in the 
action's administrative record. Addressing paragraph 1203.b(1), a 
commenter questions the provision noting sponsor certification for a 
public hearing and placing that information in an EIS. ARP's Response: 
Disagree as to the information being placed in the administrative 
record.
    Addressing paragraph 1203.b(1), a commenter questions the provision 
noting sponsor certification for a public hearing and placing that 
information in an EIS. ARP's Response: Disagree as to the information 
being placed in the administrative record. ARP has revised the title of 
the paragraph to clarify that it relates to AIP-eligible airport 
projects and has revised the text to specify that this integrates 
environmental requirements under 49 U.S.C. 47106 and 47107(a). Notably, 
the review and finding under 47106(c)(1)(B)(1)(ii) must be a matter of 
public record. The approving FAA official needs this evidence to make 
the necessary determinations in findings in the Record of Decision 
(ROD) concerning these AIP environmental requirements. As to the 
hearing, FAA and the sponsor typically provide this opportunity for a 
hearing during the NEPA process. This is the most appropriate time for 
a hearing concerning a proposed airport project's economic, social, and 
environmental effects and its consistency with local or state planning 
objectives. For these reasons, it is appropriate for FAA to integrate 
this certification requirement into its NEPA procedures.
    Concerning paragraph 1203.g(1), a commenter asks why getting 
permits cannot occur as a grant assurance, since sponsors can get other 
permits such as section 404 permits after FAA completes its NEPA 
process. ARP's Response: The approach the commenter suggested would not 
be consistent with NEPA or recent initiatives to streamline NEPA 
reviews. Various paragraphs in Chapter 12 reflect requirements under 40 
CFR 1500.5(g). That regulation provides that Federal agencies: ``* * * 
shall [emphasis added] reduce delays* * * by integrating NEPA 
requirements with other environmental review and consultation 
requirements.'' For example, paragraph 1208 addresses coastal zone 
consistency requirements that ARP addresses during the NEPA process. 
ARP requires this because during NEPA, it must analyze and disclose 
potential impacts on resources (in this case, coastal resources) as 
part of the NEPA process. Also, FAA, as the lead agency, must ensure 
compliance with the Coastal Zone Management Act before it may take 
final agency action to approve an airport development project (see 15 
CFR subparts C and D, part 930).
    Admittedly, FAA has had some difficulty integrating compliance with 
section 404 Clean Water Act permitting requirements into some of its 
NEPA analyses. As a result, for projects such as the third runway at 
Seattle International Airport, the Corps prepared a supplemental NEPA 
document after FAA completed its EIS and issued its ROD. In the past, 
sponsors have been somewhat reluctant to invest in the additional 
design and engineering work needed for a permit before FAA completes 
its environmental review. As part of ARP's renewed efforts to reduce 
delays and streamline its environmental reviews, ARP is improving its 
performance in this area.
    Regarding 1205.b, two commenters asked clarification on extending 
final EIS review periods. ARP's Response: Agree. Readers should note 
that paragraph 1211.b of the final Order clarifies 40 CFR 1503.1(b). 
That regulation states that FAA may request comments on an FEIS.
    Regarding paragraph 1206, two commenters noted a mistake about the 
time to refer a final EIS to CEQ. ARP's Response: Agree. The draft 
contained a typographical error addressing the timing of a referral. 
Paragraph 1212.a(2) states that a Federal agency may refer a proposed 
major Federal action to CEQ no later than 25 days after the final EIS 
has been made available to the public, commenting agencies, and the 
EPA.
    Chapter 13 Comments: ARP received no general comments on this 
chapter. Concerning paragraph 1301.a, a commenter states the draft 
Order implies the Record of Decision (ROD) identifies, ``* * * material 
representations in the FEIS.'' The commenter states this is important 
because as the proposed action's details change sponsors need to know 
if a written re-evaluation of an EIS is needed. The commenter suggests 
that the ROD incorporate by reference information in the final EIS. 
ARP's Response: Disagree. Approving FAA officials provide rationales 
for their decisions in RODs. ARP has developed a format to do so, and 
the instructions in the draft and final Orders provide that 
information. Instructions in paragraph 1401 of the final Order discuss 
circumstances that may require a re-evaluation. In summary, not all 
changes warrant a re-evaluation. The responsible FAA official may use 
discretion in deciding the need for that. In doing so, the official 
would determine if changes to the proposed action or other factors 
regarding the affected environment would cause environmental effects 
not previously analyzed or worsen those already studied.
    Concerning paragraph 1301.c(2), a commenter asks why an approving 
FAA official would choose a preferred alternative different from one, 
``* * * described in the FEIS he/she has just approved'? ARP's 
Response: Comments on the final EIS (paragraph 1211.b) or new 
information or technology may lead the decision maker to select an 
alternative that differs from the agency preferred alternative 
identified in the final EIS. The decision maker may determine that 
another alternative is superior when balancing all relevant factors or 
that an applicable special purpose law requires selection of another 
alternative. ARP includes instructions on this rarely used, but 
possible situation to ensure its staff has instructions on the process 
it must follow in this situation.
    Addressing paragraph 1301.g(4), a commenter objects to the 
paragraph. Zoning and compatible land use decisions are local 
responsibilities, not FAA's. Therefore, FAA cannot or should not impose 
more requirements on a sponsor to ensure the airport is compatible with 
surrounding areas. ARP's Response: Paragraph 1301.g(4) uses language in 
paragraph 99.b(4) of 5050.4A to clarify language that was in

[[Page 29052]]

the draft Order. The paragraph indicates that this is one guideline for 
environmental assurances in grant agreements and other documents. The 
special commitment would relate to the noise effects of the proposed 
airport project. For example, a runway extension might require zoning 
an area for industrial use. This guideline is consistent with the 
obligation sponsor's of federally funded airports assume under 49 
U.S.C. 47107(a)(10). That section requires the sponsor, to the extent 
reasonable, to take appropriate action to restrict land uses next to or 
near the airport to uses that are compatible with normal airport 
operations.
    Concerning paragraph 1302.e, a commenter suggests adding text to 
the ROD to address mitigation and the need to include all practicable 
means to minimize environmental harm the preferred alternative would 
cause. Conversely, if that mitigation is not in the ROD, the official 
provides rationale for not including it. The commenter notes 40 CFR 
1502.2(c) states this provision. ARP's Response: Agree. The draft 
inadvertently omitted this. Paragraph 1301.e of the final Order 
includes this information.
    Paragraph 1303 of the final Order discusses issuance of the Record 
of Decision (ROD). Paragraph 1303 states that the approving FAA 
official cannot issue a ROD until 30 days have elapsed from the date 
EPA publishes the Notice of an FEIS's availability in the Federal 
Register. The paragraph also notes EPA may reduce the 30-day ``wait 
period,'' if FAA shows compelling reasons of national policy to do so 
(40 CFR 1506.10(d)). Conversely, EPA may extend the 30-day ``wait 
period,'' if a Federal agency provides compelling reasons of national 
policy supporting that extension. However, EPA may do so only after 
consulting with FAA. EPA may not extend the ``wait period'' more than 
addition 30 days, if FAA does not agree with a longer extension (40 CFR 
1506.10(d)).
    Chapter 14 Comments: ARP received no general comments on this 
chapter. Addressing paragraph 1401, two commenters express concern 
about the 3-year longevite instruction. One commenter notes that CEQ 
guidance does not define document longevite but, instead, uses various 
tests to determine a document's adequacy and reliability. The commenter 
seeks information on how the time limit was set and instances where it 
may not apply. The other commenter notes that Question No. 32 in CEQ's 
Forty Most Asked Questions (46 FR 18026, March 23, 1981) uses a 5-year 
`` rule of thumb.'' The commenter argues that FAA must not use the 
shelf life as a reason for not preparing EIS for phased projects. 
Another commenter seeks information on when the shelf life begins. 
ARP's Response: FAA must follow requirements in DOT Order 5610.1C, 
paragraph 19d, and Order 1050.1E, paragraph 514. Besides meeting DOT 
and Order 1050.1E requirements, ARP includes this information in 
paragraphs 1401.b and c to address the many questions it has received 
on this topic since publishing FAA Order 5050.4A in 1985.
    In response to the phasing comment, ARP does not use the 3-year 
shelf life to avoid EISs (or EAs) for phased projects. In fact, 
paragraph 1402.c(3) of the final Order discusses this issue.
    Finally, responding to the question on the start of the 3-year 
period, paragraphs 1401.b and c provide that information. For draft 
EISs (and EAs), that period begins when the responsible FAA official 
completes FAA's review of the draft document. For final EAs, the time 
stars when the responsible FAA official accepts the airport sponsor's 
final EA as a Federal document. FEIS ``start time'' is the date the 
approving FAA official signs the EIS approval declaration.
    Concerning paragraph 1402, a commenter states a supplement should 
be required every 5 years and a supplement should be triggered if new 
information is available. ARP's Response: Agree in part. ARP disagrees 
a supplement is needed every 5 years. Re-evaluations address this 
issue. If there is no substantial change in the project and on 
significant new information bearing upon environmental impacts becomes 
available in that period, there is no need to supplement. While not all 
new information requires a supplement, a supplement is needed in if new 
information is available as the commenter noted. Paragraph 1402 of the 
final Order discusses this.
    For paragraph 1402.b(2), a commenter notes that changes in the 
affected environment may require more evaluation. ARP's Response: 
Agree. The draft paragraph noted that, ``significant new changes, 
circumstances, or information'' may become available. To ensure users 
understand this phrase includes affected environment, paragraph 
1402.b(2) now specifies that factor.
    Addressing paragraph 1402.d notes that a new FONSI may be needed if 
an EA is supplemented. ARP's Response: Agree. Paragraph 1402.d(3) of 
the final Order includes this provision.
    Concerning paragraph 1404, a commenter states emergencies should be 
CATEXs. ARP's Response: Disagree. Regulations at 40 CFR 1506.11 address 
emergencies when an EIS is normally required. CEQ does not designate 
the NEPA process for these situations. Instead regulations require 
agencies, in consultation with CEQ, to set up alternative arrangements 
to control the emergency's immediate impacts. Paragraph 1404 addresses 
emergency situations.
    Chapter 15 Comments: Beginning General Chapter 15 comments. A 
commenter states this chapter repeats information in Order 1050.1E, 
Appendix D. The chapter should focus on issues that the Appendix does 
not address.  ARP's Response: Disagree The commenter is correct that 
much of Chapter 15 includes information from Appendix D, but ARP 
includes this information to complete the Order's instructions and 
minimize reliance on 1050.1E.
    Addressing paragraph 1504.b(2), a commenter states the need to 
relieve airport congestion is not an emergency situation. ARP's 
Response: Agree. ARP has not and does not intend to use NEPA's 
emergency provisions to address airport congestion.
    Concerning paragraph 1505.k, a commenter states that FAA should not 
have the ability to force another agency to issue approvals or 
authorizations according to a rigid timetable. It states that reporting 
missed deadlines, ``has the appearance of a veiled threat * * * 
contrary to U.S. government edicts to streamline procedures and reduce 
paperwork.'' The commenter recommends that FAA use a constructive, less 
``heavy-handed approach'' because the stated instructions will cause, 
``an unbelievably large amount of manpower and wasted taxes.'' ARP's 
Response: Comment noted. The instructions in this paragraph and the 
final Order reflect Congress' requirements (see Title III of Vision 
100--The Century of Aviation Re-Authorization Act of 2003, section 
47171). They are not FAA's attempt to use a ``heavy-handed approach.''
    Appendix A Comments: A commenter suggests deleting the example of a 
``short-form'' EA because it is a poor example. ARP's Response: Agree. 
The Desk Reference will provide a revised example of a short-form'' EA 
for guidance and information.

Comments Addressing Table 1 (Now Table 6-1 of the Final Order)

    Avigation easements. A commenter suggested adding these easements 
to the list of categorical exclusions. ARP's Response: Avigation 
easements qualify for categorical exclusion under

[[Page 29053]]

paragraph 307d of FAA Order 1050.1E when carried an airport sponsor 
carries them out as parts of an FAA-approved noise compatibility 
program under 14 CFR part 150. They also qualify for categorical 
exclusion under paragraph 310z of FAA Order 1050.1E when related to 
topping or trimming trees to meet standards for removing obstructions 
to navigable airspace under 14 CFR part 77. FAA invites the commenter 
to specify other circumstances, if any, in which a categorical 
exclusion should be available for avigation easements. ARP will 
consider this information in determining whether to recommend such a 
change to Order 1050.1E.
    Snow equipment. A commenter noted the table does not include snow 
equipment. Please add it per Order 1050.1E. ARP's Response: Agree. 
Table 6-1 of the final Order includes this under ``Safety equipment for 
airport certification.''
    Wildlife Hazard Management Plan (WHMP). A commenter stated the 
relationship between NEPA and WHMP approval is not very clear. What is 
the status of Part 139 certification during an extended NEPA review of 
a WHMP? ARP's Response: Paragraph 209 of the final Order has been 
revised to provide clearer instructions concerning application of NEPA 
to WHMP approval and implementation. The sponsor's filing of a WHMP for 
approval under 14 CFR 139.337(d)(1) satisfies the sponsor's Part 139 
certification requirements. Because FAA approval of a WHMP normally 
qualifies for categorical exclusion under Paragraph 308e of Order 
1050.1E, extended NEPA review for WHMP approvals will be unusual.

Comments Addressing Table 2 (Now Table 6-2 of the Final Order)

    Airfield improvements, aircraft parking area. A commenter suggested 
adding taxiways. ARP's Response: Agree. ARP includes taxiways in the 
table. It is included in Order 1050.1E, paragraph 310.e.
    Airfield improvements, roads. A commenter suggested inserting the 
word, ``permanently'' regarding change in Level of Service. ARP's 
Response: Agree. ARP made the change.
    Cargo building. The commenter notes the annotation isn't clear. The 
statement, ``similar in size'' doesn't address large buildings covering 
many acres. Please clarify the annotation to ensure it states, ``within 
the same footprint as the existing [building].'' Without that 
information there is a chance to categorically exclude large facilities 
having substantial impacts. ARP's Response: Agree in part. ARP is not 
authorized to change the text or intent of Order 1050.1E, paragraph 
310h. Therefore, we cannot add the suggested wording. However, ARP 
agrees there is a need to provide some way of determining if an action 
``would substantially expand a passenger handling or cargo building.'' 
Footnote 2 in Table 6-2 provides information on determining if a 
terminal or cargo facility would be substantially expanded. That 
information focuses on potential noise and air quality issues, since 
most expansions typically involve those issues.
    Conveying airport land. A commenter stated this should refer to 
only Federally-owned land to meet Order 1050.1E. ARP's Response: Agree. 
ARP changed the text. We unintentionally omitted the qualifying words, 
``federally-owned.''
    Deicing/anti-icing facility. A commenter asks if this facility 
includes stormwater collection, diversion, conveyance and treatment or 
recycling facilities? ARP's Response: Yes. All of these items are 
included because they help prevent significant water quality effects 
due to de-icing/anti-icing activities. Of course, if building or 
operating any of these items would involve extraordinary circumstances, 
the responsible FAA official would need to determine if an EA or EIS is 
needed.
    Low emission technology equipment. The commenter is unclear on how 
Order 1050.1E, paragraphs 309g, 310n, and 310u apply to this equipment. 
ARP's Response: ARP states the disturbances to build infrastructure 
within airport boundaries needed for this equipment cause many of the 
same effects the cited paragraphs address. In addition, the 
environmental benefits due to operating this equipment help to improve 
airport-related air quality. Paragraph 309.g of Order 1050.1E addresses 
upgrading power and control cables for existing facilities and 
equipment noted in Order 6850.2, Visual Guidance Lighting Systems. 
Since the low emission equipment requires electrically powered charging 
stations and other electrical power supply, upgrading existing power 
and control cables to service low emission equipment has impacts like 
those activities paragraph 309.g addresses. Paragraph 310n of Order 
1050.1E addresses minor facility expansion not requiring additional 
land. ARP believes this paragraph applies because low emission 
equipment service facilities often are built near aircraft operating 
areas or other disturbed areas that paragraph 310n addresses. Finally, 
ARP believes Paragraph 310u of Order 1050.1E addresses closing and 
removing above ground or underground storage tanks (AST/USTs) at an FAA 
facility. Although the public-use airports ARP oversees are not FAA 
facilities, using the same AST/UST removal instructions as those FAA 
facilities would use (FAA Order 1050.15A, Fuel Storage Tanks at FAA 
Facilities), and following EPA regulations (40 CFR 280, 281, and 112) 
would prevent significant impacts due to removing AST/USTs. This 
removal often accompanies low emission technology equipment purchase 
and use at an airport.
    Non-U.S. waters, including wetlands and categorically excluded 
actions. A commenter objected to considering these resources because 
the Corps' regulations do not address them. ARP's Response: Disagree. 
NEPA, and special purpose laws like the Fish and Wildlife Coordination 
Act, and Executive Order 11990, Wetlands, do not differentiate between 
jurisdictional and non-jurisdictional wetlands. Designation as a 
``navigable waterway'' does not minimize a resource's ecological value. 
Including this information also reflects information in Order 1050.1E, 
Appendix A, section 18 addressing wetlands. ARP also provides 
information on this issue to address a number of questions it has 
received about these non-jurisdictional waters and wetlands. Table 6-2 
includes a new categorical exclusion addressing categorically excluded 
actions in non-jurisdictional wetlands. ARP proposed that categorical 
exclusion in its December 16, 2004, Notice of Availability of draft 
Order 5050.4B. Based on comments received, ARP has inserted information 
to address non-jurisdictional wetlands in Table 6-2.
    On-airport obstruction treatment. A commenter requests not limiting 
actions to tree trimming or vegetation clearing. The commenter suggests 
including any non-mechanized land clearing. ARP's Response: Disagree. 
The annotation as written and paragraphs 310l or 310z of Order 1050.1E 
focus on addressing obstruction to air navigation. Paragraphs 3101 and 
310z do not limit actions to non-mechanized methods. Therefore, the 
recommended change is not needed. Reviewers must consider any 
extraordinary circumstances related to obstruction removal actions to 
determine if the action is a CATEX or if it requires an EA or EIS.
    Ownership change by purchase or transfer. A commenter asks why 
transfer by purchase is not included. ARP's Response: Agree. We have 
revised the text to include this action to better reflect Order 
1050.1E, paragraph 307m.
    Releasing airport land. A commenter requests changing the 
annotation to

[[Page 29054]]

clarify if an environmental analysis is needed for short-term leases 
(i.e., less than or equal to 5 years). ARP's Response: Agree. ARP has 
revised the text for this action to better reflect the intent of Order 
1050.1E, paragraph 307b. The responsible FAA official must consider the 
environmental effects associated with airport land releases, regardless 
of the duration of the release.
    U.S. Waters, including wetlands and categorically excluded actions. 
A commenter strongly objected to limiting categorical exclusions to 
those that qualify for General Permits. The commenter states 
involvement of U.S. waters or wetlands should not disqualify a CATEX. 
In Alaska, it is a rare event that an action does not involve waters of 
the U.S. The reason for qualifying for a CATEX should depend on the 
impact, not a regulatory authority. Another commenter suggests that FAA 
work with the Corps of Engineers to develop a category of actions that 
Nationwide Permit No. 23 would cover. This would address many actions 
having minor impacts on U.S. waters, including wetlands. Commenters 
from the State of Alaska argue this is needed to address the number of 
actions in that state involving waters and wetlands and to 
``streamline'' the NEPA process. Another commenter sought guidance on 
the need for sponsors to create new wetlands to replace those lost. 
This mitigation may be needed under the Federal government's ``no net 
loss policy.'' Several commenters stated the annotation should not 
reference the Corps' General Permit Program, but instead, use the 
words, ``Corps of Engineers Nationwide Permit'' or ``Corps of Engineers 
Regional Permit.'' Another commenter states this and other CATEX omit 
state water permitting and Coastal Zone Management Act (CZMA) Federal 
consistency requirements. ARP's Response: Disagree. Tables 6-1 and 6-2 
summarize those sections of the CATEXs in FAA Order 1050.1E, paragraphs 
307-312 specific to airports. The Office of Environment and Energy 
(AEE) is responsible for coordinating substantial, agency-wide changes 
such as this one to Order 1050.1E (see Order 1050.1E, paragraph 10.0). 
In addition, actions falling under General Permits are those that do 
not normally cause significant environmental impacts. That is why they 
are CATEXs in Order 1050.1E. Therefore, when preparing Order 1050.1E, 
it seemed appropriate for FAA to develop CATEXs based on General 
Permits to compliment the Corps' General Permit Program.
    Addressing the suggestion about Nationwide Permit No. 23, readers 
should review the above response. ARP informs the commenter that FAA 
developed CATEX paragraph 310k in Order 1050.1E to address, ``actions 
having minor impacts on U.S. waters and wetlands.'' FAA did this to 
help streamline its NEPA process. Earlier versions of Orders 1050.1 and 
5050.4 required EAs for all FAA actions affecting U.S. waters or 
wetlands, regardless of the type of project or amount of wetland 
affected.
    Concerning the comment on ``no net loss,'' ARP believes required 
consultation with expertise agencies addressing wetland impacts would 
address the extent of required mitigation.
    Regarding the comments that the Order's annotation should not 
reference the Corps' General Permit Program, but instead, use the 
words, ``Corps of Engineers Nationwide Permit'' or ``Corps of Engineers 
Regional Permit,'' ARP disagrees. ARP sees no need to change the 
annotation. The term, ``General Permit'' includes Nationwide, Regional, 
and Programmatic Permit Programs (61 FR 241 65874).
    Concerning, coastal zone consistency, we agree. Readers should note 
the extraordinary circumstance evaluation in Table 6-3 includes the 
need to examine potential project impacts on coastal zone resources.

Comments Addressing Table 3 (Now Table 6-3 of the Final Order

    General Comment: A number of commenters noted the table did not 
include information addressing federally-listed endangered/threatened 
species, Section 4(f), Section 106, prime/unique farmlands, and some 
other resources. Another commenter notes confusion may occur about the 
expertise agency having jurisdiction over resources involving certain 
extraordinary circumstances. The commenter suggested the table provide 
information about the agency(ies) with whom the sponsor or FAA would 
consult. A commenter noted that the table did not address inconsistency 
with Federal, State, local, or Tribal laws. The commenter requested 
adding this text from Order 1050.1E, paragraph 304j. ARP's Response: 
Agree. Table 6-3 includes the important information the commenters 
noted.
    Air Quality. Some commenters are troubled by FAA-wide guidance. 
Now, that guidance states that if an action causes air pollutants to 
exceed respective National Air Quality Standard (NAAQSA) thresholds, 
costly, time-consuming air quality modeling using dispersion analysis 
is needed. The commenter requests that FAA provide guidance to clarify 
this issue, perhaps by recognizing General Conformity's applicability 
analysis. If this analysis shows emissions would be below NAAQS 
thresholds, further analysis is not needed. The commenter suggests that 
dispersion analysis is needed only for non-attainment pollutants at 
airports in non-attainment areas. ARP's Response: See the Response to 
the Comment on paragraph 408.b(1), above.
    Community disruption. A commenter suggests using the term, 
``compatible land use'' when deciding if land use is compatible with 
aviation. Using community disruption does not apply to noise 
compatibility, so delete it. ARP's Response: Disagree. Table 6-3 
includes community disruption because Order 1050.1E, paragraph 304d 
includes that term. Noise impacts on noise-sensitive areas are 
addressed in Order 1050.1E, paragraph 304f, and are also included in 
Table 6-3 of this Order.
    Cumulative impacts. Two commenters urge ARP and FAA to provide 
guidance on cumulative impact analysis. The commenter notes Order 
1050.1E does not provide sufficient guidance on that important topic. 
The commenters argue the information is too important for a desk 
reference that, ``has not undergone the proper vetting within the 
airport community.'' ARP's Response: Agree in part. ARP agrees added 
information on this topic is helpful. Readers should note that ARP's 
Desk Reference will address this issue with more guidance than Order 
1050.1E presents because so many of its analysts and sponsors sought 
that information. However, ARP notes that Order 1050.1E at paragraph 
500.c provide some information on this topic and references various 
portions of the CEQ regulations that discuss it. In addition, paragraph 
1007.i of this Order provides helpful information from Order 5050.4A. 
CEQ has issued detailed guidance in a special publication that is 
useful for all Federal actions, not just airport actions (http://ceq.eh.doe.gov/nepa/ccenepa/ccenepa.htm).
    Regarding publishing this information in a desk reference that has 
not received public vetting, ARP disagrees. As the Desk Reference 
merely summarizes existing legal requirements, and contains no policy 
guidance implementing NEPA, ARP sees little value in affording an 
opportunity for public review and comment in advance. Nevertheless, 
before issuing the Desk Reference later this year, ARP has decided to 
distribute selected chapters of the Desk Reference for public 
information purposes only (see this

[[Page 29055]]

Preamble's Desk Reference section for other information).
    Floodplains. Two commenters request adding information from Order 
1050.1E, Appendix A, paragraphs 9.2b and 9.2f to Table 6-3. ARP's 
Response: Disagree. Like other extraordinary circumstances Table 6-3 
discusses, this entry reflects information from Order 1050.1E, 
paragraph 304, particularly paragraph 304.d. That paragraph does not 
incorporate information from Appendix A discussing how to assess 
extraordinary circumstances. As noted in responses to Air Quality, 
Table 6-3 is a tool to alert analysts that a resource could present an 
extraordinary circumstance warranting further study. Order 1050.1E, 
Appendix A provides information on conducting the analysis for each 
extraordinary circumstance addressing requirements outside NEPA. (ARP's 
Desk Reference will do likewise for airport actions). To alert 
reviewers that this circumstance would apply only to actions affecting 
the floodplain, we have added the words, ``that an action in the 100-
year floodplain would cause.'' This matches the note referring to the 
Corps of Engineers or the Federal Emergency Management Agency and 
should help analysts screen a proposed action for floodplain impacts.
    Highly controversial action. Two commenters suggested using 
information from Order 1050.1E, paragraph 304i to better describe this 
circumstance. ARP's Response: Agree. Table 6-3 refers to paragraph 9.i 
of the final Order. That paragraph incorporates the information from 
Order 1050.1E, paragraph 304.i.
    Noise. Two commenters suggest focusing the extraordinary 
circumstance on noise increases within the DNL 65-dB contour to avoid 
confusion about using supplemental noise metrics. They suggest using 
language in Order 1050.1E, Appendix A, section 11.b(8). ARP's Response: 
Agree. The table refers the reader to the noise information in 
paragraph 9.n of the Order. That paragraph reflects the information in 
Order 1050.1E.
    Water quality. Two commenters state the text is confusing. They 
suggest using text from Order 5050.4A. ARP's Response: Disagree. Like 
other extraordinary circumstances Table 6-3 discusses, this entry 
reflects information in Order 1050.1E, paragraph 304, particularly 
paragraph 304h, which supersedes Order 5050.4A.

    Dated: May 5, 2006.
Dennis E. Roberts,
Director, Office of Airport, Planning and Programming, APP-1.
[FR Doc. 06-4527 Filed 5-17-06; 8:45 am]
BILLING CODE 4910-13-P