[Federal Register Volume 81, Number 202 (Wednesday, October 19, 2016)]
[Notices]
[Pages 72145-72147]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-25285]


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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

[Docket No. FAA-2016-9284]


Applicability of National Environmental Policy Act (NEPA) to 
Federal Aviation Administration (FAA) Review of Airport Wildlife Hazard 
Management Plans

AGENCY: Federal Aviation Administration (FAA), DOT

ACTION: Notice and request for comments.

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SUMMARY: The Federal Aviation Administration (FAA) Office of Airports 
is clarifying a program guidance letter issued in 2006 concerning how 
federal environmental laws apply to FAA approval of a new or updated 
airport Wildlife Hazard Management Plan (WHMP). Recent issues and 
questions have arisen that make it necessary to update and clarify the 
guidance. The clarified policy includes circumstances where the FAA 
would approve WHMPs, and delineate which individual measures in a plan 
the airport may implement based upon a categorical exclusion without 
further environmental review or coordination. In contrast, other 
measures might be subject to a higher level of review and interagency 
coordination prior to approval. The FAA is publishing this for notice 
and comment prior to implementation.

DATES: Written comments must be received on or before November 18, 
2016.

ADDRESSES: Send comments identified by docket number FAA-2016-9284 
using any of the following methods:
     Federal eRulemaking Portal: Go to http://www.regulations.gov and follow the online instructions for sending your 
comments electronically.
     Mail: Send comments to Docket Operations, M-30; U.S. 
Department of Transportation (DOT), 1200 New Jersey Avenue SE., Room 
W12-140, West Building Ground Floor, Washington, DC 20590-0001.
     Hand Delivery or Courier: Take comments to Docket 
Operations in Room W12-140 of the West Building Ground Floor at 1200 
New Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m., 
Monday through Friday, except Federal holidays.
     Fax: Fax comments to Docket Operations at 202-493-2251.
    Privacy: The FAA will post all comments it receives, without 
change, to http://www.regulations.gov, including any personal 
information the commenter provides. Using the search function of the 
docket Web site, anyone can find and read the electronic form of all 
comments received into any FAA docket, including the name of the 
individual sending the comment (or signing the comment for an 
association, business, labor union, etc.). DOT's complete Privacy Act 
Statement can be found in the Federal Register published on April 11, 
2000 (65 FR 19477-19478), as well as at http://DocketsInfo.dot.gov.
    Docket: Background documents or comments received may be read at 
http://www.regulations.gov at any time. Follow the online instructions 
for accessing the docket or go to the Docket Operations in Room W12-140 
of the West Building Ground Floor at 1200 New Jersey Avenue SE., 
Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, 
except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Mr. Elliott Black, Director, Office of 
Airport Planning and Programming. Mailing address: Federal Aviation 
Administration, 800 Independence Ave. SW., Washington, DC 20591. 
Telephone: (202) 267-8775. Email address: [email protected].

SUPPLEMENTARY INFORMATION: 
    Authority. 49 United States Code (U.S.C.) Sec.  44706 (``Airport 
operating certificates) and 14 CFR part 139.337 (``Wildlife Hazard 
Management''); and 42 United States Code [U.S.C.] Sec. Sec.  4321-4335 
National Environmental Policy Act (NEPA).
    Title 14 CFR part 139 Sec.  139.337 (``Wildlife hazard 
management'') requires in part that when the FAA determines that a 
wildlife hazard management plan is needed, the certificate holder must 
formulate and implement a plan using the wildlife hazard assessment as 
a basis. The plan must provide measures to reduce or eliminate wildlife 
hazards to air carrier operations, and be submitted to (and approved 
by) the FAA prior to implementation.
    In 2006, the FAA's Office of Airports issued Program and Policy 
Guidance Letter 92 (``Policy 92'') to address questions about the 
applicability of the National Environmental Policy Act (NEPA) to FAA 
approval of WHMPs, and the certificate holder's implementation of those 
plans.\1\ That policy referred in part to Section 209 of FAA Order 
5050.4B, ``National Environmental Policy Act (NEPA) Implementing 
Instructions for Airport Actions'' (April 28, 2006), which addressed 
the applicability of NEPA to

[[Page 72146]]

an approval of a WHMP required under 14 CFR part 139.
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    \1\ Available online at http://www.faa.gov/airports/airport_safety/wildlife/.
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    Recent litigation concerning the snowy owl at an airport in New 
York and coordination with federal resource agencies on plan updates 
has led to closer scrutiny of some of the language contained in Section 
209 of FAA Order 5050.4B. The language may have created some confusion, 
because it may appear to some readers to focus on NEPA requirements 
primarily in the context of Airport Improvement Program (AIP) grants or 
Airport Layout Plan (ALP) approvals. The FAA will similarly explain in 
an upcoming revision of Order 5050.4B that NEPA applies to the federal 
action of approving the WHMP and that this environmental review is 
typically sufficient for any related AIP grant or ALP approvals. The 
approval of the WHMPs is considered to involve sufficient discretion 
that NEPA (and other federal environmental laws) apply.
    In the meantime, the FAA is proposing to revise the 2006 ``Policy 
92'' document (``Applicability of National Environmental Policy Act to 
Federal Aviation Administration Mandated Wildlife Hazard Management 
Plans'') to clarify the process and procedures. The revised policy 
would read as follows:
    Proposed Text of Revised Policy 92. When the FAA requires the 
holder of an Airport Operating Certificate to prepare a new or updated 
\2\ Wildlife Hazard Management Plan (WHMP), the Certificate Holder must 
submit the plan to the FAA for approval before implementation [Sec.  
139.337(e)].
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    \2\ For purposes of this FRN, every reference to ``WHMP'' should 
be read as ``new or updated WHMP,'' because the same provisions 
apply to either circumstance.
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    The FAA's approval of a WHMP is a federal action subject to the 
National Environmental Policy Act (NEPA). In addition, WHMPs may 
include measures that are subject to related federal actions of airport 
layout plan approval and/or federal funding. Section 209 of FAA Order 
5050.4B, ``National Environmental Policy Act (NEPA) Implementing 
Instructions for Airport Actions'' (April 28, 2006), addressed the 
applicability of NEPA to a WHMP required under Part 139. However, 
insofar as that section may have been read by some to focus primarily 
on airport actions implementing WHMPs that involved AIP grant funding 
and/or airport layout plan approval, and to suggest that these actions 
were handled distinctly from plan approval for purposes of NEPA, it may 
have led to some misunderstanding. NEPA applies to the federal action 
of approving WHMPs. This environmental review is typically sufficient 
for any related AIP grant or ALP approvals. As a matter of federal or 
state law, the certificate holder may also be subject to permitting or 
licensing requirements for its actions in implementing discrete WHMP 
measures. FAA considers whether there is a reasonable assurance of 
obtaining these permits and licenses in reviewing approval of the plan 
under NEPA.
    The FAA must consider the existence of extraordinary circumstances 
when determining whether to categorically exclude approval of any or 
all WHMP measures. In our experience, airport certificate holders will 
often be able to implement many, if not all, measures under a WHMP 
based upon a categorical exclusion. The measures in most plans qualify 
for a categorical exclusion because they are not reasonably expected to 
significantly change land use management or cause environmental 
impacts. Most of the measures in a WHMP also have independent utility 
from other measures because they address different safety concerns. 
However, under certain circumstances, an EA or EIS may be required 
prior to FAA approval of a WHMP, and/or prior to the certificate 
holder's implementation of certain measures within an approved WHMP.
    The effect of this clarification will be to set forth in more 
detail how and why the FAA and airport sponsor, consistent with 
independent utility and requirements to consider extraordinary 
circumstances, may delineate certain measures in the Plan for approval 
based upon categorical exclusion while identifying others that trigger 
special purpose environmental laws like ESA Section 7 for further 
environmental review prior to approval. In other words, the measures in 
the plan that do not trigger special purpose laws may be approved by 
the FAA, provided they have independent utility and otherwise qualify 
for categorical exclusion. The FAA may then conditionally approve the 
plan as to the remaining measures pending any further required 
environmental review.

Responsibilities and Procedures

     Certificate Holders. The Certificate Holder is responsible 
for monitoring wildlife hazards and initiating required coordination 
with the FAA early enough to mitigate risks while complying with all 
applicable environmental laws and regulations. The Certificate Holder 
is responsible for identifying any protected environmental resources 
(e.g., threatened and endangered species, wetlands, archeological 
sites) on or near the airport. It is the Certificate Holder's 
responsibility to contact the appropriate FAA Airports Regional Office 
or Airports District Office to provide any information required in 
support of the environmental review process for all measures within the 
WHMP. The Certificate Holder is responsible for implementing measures 
of the WHMP only after they have received the required environmental 
approvals, unless an emergency condition compels the Certificate Holder 
to take immediate steps in order to protect the safety of air 
transportation. In such circumstances, the Certificate Holder must 
immediately alert the FAA of the emergency circumstances so that FAA 
may follow emergency provisions in applicable environmental laws such 
as NEPA and the ESA.\3\ The Certificate Holder is responsible for 
compliance with 14 CFR part 139.337 (``Wildlife Hazard Management'') as 
well as all applicable Federal, state and local environmental laws and 
regulations. For plan components/measures not covered by categorical 
exclusions, certain findings and determinations required under special 
purpose laws, requirements, regulations, or orders may need to be 
completed before FAA can approve them.\4\
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    \3\ FAA's emergency procedures are outlined in section 807 of 
FAA Order 1050.1F.
    \4\ FAA Order 1050.1F Desk Reference describes laws, 
regulations, and orders in addition to NEPA that must be complied 
with before approving a proposed Federal action.
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     Safety Inspectors. The FAA's designated Airport 
Certification Safety Inspector (ACSI) must review all WHMPs that are 
required for compliance with Sec.  139.337(f). The ACSI must coordinate 
approval of the WHMP with the FAA Environmental Protection Specialist 
(EPS), and should involve the EPS as early as possible in the process 
in order to help identify and address potential environmental issues as 
expeditiously as possible. The FAA's approval of new WHMPs and updates 
to WHMPs is normally categorically excluded under FAA Order 1050.1F,\5\ 
paragraph 5-6.2(e),\6\ provided there are no extraordinary 
circumstances. If there is evidence of protected environmental 
resources (e.g., threatened and endangered species, wetlands, 
archeological sites) on or near the airport, an environmental review 
associated with the WHMP must address how the implementation of 
wildlife control measures might impact these resources, and clearly 
identify any

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required mitigation measures and associated regulatory/permit 
requirements.
    The ACSI will coordinate with the FAA's EPS to determine whether 
any measures of the WHMP may require NEPA review beyond a categorical 
exclusion, and to ensure compliance with any other applicable 
environmental law. Approval letters will indicate which measures are 
not yet approved for implementation due to a need for additional FAA 
NEPA or special purpose law compliance, which measures are approved 
with conditions that the Certificate Holder must satisfy prior to 
implementation of the measure, and which measures are approved outright 
and ready for implementation.
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    \5\ ``Environmental Impacts: Policies and Procedures'' (dated 
July 16, 2015).
    \6\ Previously paragraph 308e in FAA Order 1050.1E.
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     Environmental Protection Specialists (EPS's). The EPS will 
coordinate with the ACSI to review all available information to 
determine whether FAA may categorically exclude the approval of any or 
all of the WHMP measures comprising the WHMP in accordance with 
paragraph 5-6.2(e) of FAA Order 1050.1F, or whether any may require 
preparation of an Environmental Assessment (EA) or Environmental Impact 
Statement (EIS). To avoid segmentation, the FAA's EPS will, as part of 
the review of extraordinary circumstances, consider whether any 
measures considered for approval under a categorical exclusion are 
connected to other measures that may require further environmental 
review or interagency coordination. The EPS will provide the ACSI with 
language (for inclusion in the letter to the Certificate Holder) 
explaining which measures and aspects of the Plan are approved, 
approved with conditions (like obtaining a 404 permit) but without 
requiring further FAA action, or disapproved or requiring further 
environmental analysis or consultation by FAA. The EPS will also advise 
the Certificate Holder regarding which agency is responsible for 
coordination with the applicable resource agencies.\7\ If there are 
additional environmental reviews needed before the Certificate Holder 
can implement a specific action, the EPS will help draft conditions 
requiring such coordination and completion of the environmental review 
before implementation of the action is undertaken by the Certificate 
Holder.
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    \7\ The FAA is also reviewing its Policy and Guidance Letter 78 
(dated June 21, 2004), which addresses Section 7 consultation with 
the U.S. Fish & Wildlife Service (USFWS) under the Endangered 
Species Act (ESA). The FAA will either update, revise or rescind 
that policy as appropriate after coordination with the USFWS.
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    Certification Status: Certificate Holders should note that, 
pursuant to Section 139.337(e), FAA's approval of a WHMP satisfies 
their requirements as long as the Certificate Holder implements the 
approved provisions and works to obtain approval of the remaining 
measures. To the extent there are measures that require additional NEPA 
review and/or other interagency coordination, the Certificate Holder 
may not implement those measures unless and until the FAA and/or the 
appropriate resource agency have reached a favorable environmental 
determination. The Certificate Holder must then carry out the approved 
measures to remain in compliance with Part 139 certification 
requirements. This does not relieve the Certificate Holder of their 
responsibility to continue to monitor wildlife hazards and take 
relevant and appropriate measures to minimize the risks, to the extent 
permissible under the WHMP and all applicable environmental laws and 
regulations.
    If the WHMP has no measures that can be implemented immediately, 
the Certificate Holder must consider and document interim mitigation 
measures, in consultation with the FAA's ACSI and EPS. For example, if 
the WHMP calls for certain depredation measures which require approval 
by the U.S. Fish & Wildlife Service, then the Certificate Holder may 
commit to monitoring wildlife numbers and activities, and seek under 
any available emergency provisions to conduct the least invasive 
measure in the interim. In extraordinarily rare circumstances, it may 
be possible for a Certificate Holder to demonstrate that wildlife 
hazards represent such an immediate threat to the safety of the 
traveling public that the emergency provisions of NEPA and the 
Endangered Species Act offer some latitude for interim action. This 
would be rare, however, because the FAA expects Certificate Holders to 
monitor wildlife hazards and initiate required coordination early 
enough to mitigate risks while complying with all applicable 
environmental laws and regulations.
    Applicability to non-139 airports: The FAA encourages all airport 
operators to actively monitor and manage wildlife hazards on and near 
the airport environs. Other airports (such as those that are 
certificated under 14 CFR part 139 but that have not had a triggering 
event that would mandate a WHMP, or for airports not certificated under 
Part 139) are still encouraged to undertake Wildlife Hazard Assessments 
or Wildlife Hazard Site Visits, and to establish and implement WHMPs 
when justified.\8\ However, the FAA would not approve such plans, so 
unless implementation of the WHMP required a change to the ALP, or 
involved federal funding, there would most likely be no Federal action 
from the FAA's perspective. Airport owners and operators would have to 
comply with all applicable Federal environmental laws and regulations 
related to any measures contained within such WHMPs if they have the 
potential to impact threatened and endangered species, wetlands, 
archeological sites or other protected environmental resources. The FAA 
would make its expert wildlife and environmental resources available to 
the airport in such circumstances, and may support interagency 
coordination if necessary depending upon the proposed measures.
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    \8\ The FAA previously issued a Federal Register notice for 
public comment on December 10, 2012 (77 FR 73511). The FRN presented 
a clarification of Grant Assurance #19 (Operation and Maintenance), 
which would have clarified the expectation for all federally-
obligated airports to conduct Wildlife Hazard Site Visits (WHSVs) or 
Wildlife Hazard Assessments (WHAs). Based in part on comments 
received in response to that Federal Register notice, the FAA has 
decided not to proceed with this clarification at this time.
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    Effective date: Once the FAA has received and reviewed any comments 
submitted in response to this Federal Register notice, the FAA will 
publish a final revision of Policy 92, which will be effective as of 
the date of its publication for any new or updated WHMP that has not 
yet been submitted to the FAA for review and approval as of that date. 
However, this does not relieve airport Certificate Holders of their 
responsibilities for additional permitting and interagency coordination 
that may already be required under applicable federal environmental 
laws for implementation of certain measures, even if those measures 
were submitted as part of a WHMP that was previously approved by the 
FAA but not yet implemented.

    Issued in Washington, DC, on October 14, 2016.
Elliott Black,
Director, Office of Airport Planning and Programming.
[FR Doc. 2016-25285 Filed 10-18-16; 8:45 am]
 BILLING CODE 4910-13-P