05-24132. Environmental Impacts: Policies and Procedures

AGENCY:

Federal Aviation Administration, DOT.

ACTION:

Notice; request for comment.

SUMMARY:

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

DATES:

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

ADDRESSES:

Comments should be mailed, in triplicate, to the Federal Aviation Administration (FAA) Office of the Chief Counsel, Attn: Rules Docket (AGC-200), Docket No. FAA 2005 22020, 800 Independence Avenue, SW., Room 915G, Washington, DC 20591. Comments may be inspected in Room 915G between 8:30 a.m. and 5 p.m., weekdays except Federal Holidays.

Commenters who wish the FAA to acknowledge the receipt of their comments must submit with their comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA 2005 22020.” The postcard will be dated-stamped by the FAA and returned to the commenter.

SUPPLEMENTARY INFORMATION:

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

Request for Comment

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

Synopsis of Proposed Changes

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

Chapter 3. Advisory and Emergency Actions and Categorical Exclusions

(1) Ch. 3, Para 301c: Change for clarification. The category of “warning areas” has been added to the list of advisory actions. FAA regulations define “warning area” as airspace of defined dimensions, extending from 3 nautical miles outward from the coast of the United States, that contain activity that may be hazardous to nonparticipating aircraft. (see 14 CFR § 1.1). The purpose of a warning area is to warn nonparticipating pilots of the potential danger. Designation of a warning area is not necessary for the hazardous activity to occur. Therefore, the FAA is proposing to classify designation of warning areas, like designation of alert areas, as an advisory action.

301c. Designation of alerts areas and warning areas under FAA Order 7400.2, Procedures for Handling Airspace Matters.

(2) Ch. 3, Para. 304c: Change for clarification. The paragraph was revised to include coastal zones in the list of examples of a natural, ecological, or scenic resource.

304c. An impact on natural, ecological (e.g., invasive species), or scenic resources of Federal, Tribal, State, or local significance (for example: Federally listed or proposed endangered, threatened, or candidate species or designated or proposed critical habitat under the Endangered Species Act); resources protected by the Fish and Wildlife Coordination Act; wetlands; floodplains; coastal zones; prime, unique, State or locally important farmlands; energy supply and natural resources; and wild and scenic rivers, including study or eligible river segments and solid waste management.

(3) Ch. 3, Para. 309c: Editorial Change. The word “system” was removed following the word “ILS” in line 11. The word was removed because it was duplicative. The sentence now reads “* * * (establishment or relocation of an ILS is not included * * *”.

309c. Federal financial assistance for, or ALP approval of, or FAA installation or upgrade of facilities and equipment, other than radars, on designated airport or FAA property or launch facility. Facilities and equipment means FAA communications, navigation, surveillance and weather systems. Weather systems include hygrothermometers, Automated Weather Observing System (AWOS), Automatic Surface Observation System (ASOS), Stand Alone Weather Sensors (SAWS), Runway Visual Range (RVR), other essentially similar facilities and equipment that provides for modernization or enhancement of the service provided by these facilities. Navigational aids include Very High Frequency Omnidirectional Range (VOR), VOR Test facility (VOT), co-located VOR's and Tactical Aircraft Control and Navigation (TACAN) (VORTAC), Low Power TACAN, Instrument Landing System (ILS) equipment or components of ILS equipment (establishment or relocation of an ILS is not included; an EA is normally required; see paragraph 401i), Wide Area Augmentation System (WAAS), Local Area Augmentation System (LAAS), other essentially similar facilities and equipment, and equipment that provides for modernization or enhancement of the service provided by that facility, such as conversion of VOR to VORTAC or conversion to Doppler VOR (DVOR), or conversion of ILS to category II or III standards. FAA Order 6820.10 “VOR, VOR/DME, and TACAN Siting Criteria” governs the installation of VOR/VOT/VORTAC-type equipment. These facilities are typically located within a 150 ft. × 150 ft parcel, with a total structure height reaching approximately 50-ft in height. (ATO, APP, AST)

(4) Ch. 3, Para. 311f: Addition of Categorical Exclusion (CATEX) 311f., Establishment or modification of prohibited areas. In its initial notice concerning Order 1050.1E, the FAA proposed a CATEX for the “[e]stablishment or modification of Special Use Airspace (SUA), (e.g., restricted areas, warning areas), and military training routes for subsonic operations that have a base altitude of 3,000 feet above ground level (AGL), or higher.” In the preamble to the final Order 1050.1E, the FAA announced that it was removing this CATEX for further study. For the reasons given below, the FAA is now proposing a separate CATEX for prohibited areas, a type of SUA.

Prohibited areas are airspace designated under 14 CFR part 73 within which no person may operate an aircraft without permission of the using agency (see 14 CFR 1.1). The FAA establishes prohibited areas when necessary to prohibit flight over an area on the surface in the interest of national security or welfare. It is possible that the establishment or modification of a prohibited area could necessitate a revision of air traffic control procedures. However, such a revision generally would only affect aircraft operating under instrument flight rules over 3,000 feet AGL unless they are arriving or departing within an airport environment. Prohibited areas are not normally established within the airport environment. Revised air traffic control procedures at 3,000 feet or more AGL are already covered by the CATEX in paragraph 311i of Order 1050.1E, as are procedures below 3,000 feet AGL that do not cause air traffic to be routinely routed over noise sensitive areas. The proposed CATEX below incorporates relevant language from the existing CATEX in paragraph 311i.

311f. Establishment or modification of prohibited areas, unless the establishment or modification would affect instrument procedures conducted below 3,000 feet AGL that cause air traffic to be routinely routed over noise sensitive areas. (ATO)

(5) Ch. 4, Para 401p: Change for clarification. Text was added to the paragraph to clarify the types of SUA actions that are subject to environmental review.

401p. Special Use Airspace (unless otherwise explicitly listed as an advisory action or categorically excluded under Chapter 3 of this Order). This airspace shall not be designated, established, or modified until:

(6) Ch. 4, Para 401p.(5): Change for clarification. Text was added to the paragraph to differentiate between temporary and permanent changes to SUA and to be consistent with categorical exclusion 307e. Permanent changes to SUA normally require an EA. Temporary changes (e.g., temporary military operations area (MOA)) are established by issuing a Notice to Airman (NOTAM). NOTAMs are categorically excluded actions under Paragraph 307e.

(5) The provisions of p(1)-(4) of this paragraph are not applicable to special use airspace actions if minor adjustments are made such as raising the altitudes; if a change is made in the designation of the controlling or using agency; or if the special use airspace action is temporary in nature and does not exceed 90 days (e.g., temporary military operations area (MOA)).

(7) Ch. 4, Para 404e: Change for consistency. Two sentences would be revised to change “should” to “shall” and “coordinated” to “reviewed” to be consistent with Para. 406c. The sentences now read “For projects that originate in or are approved at FAA headquarters, the EA and FONSI should be coordinated with AGC for legal sufficiency. For projects that originate in and are approved by the regions, the EA and FONSI should be reviewed by Regional Counsel”.

404e. Internal review of the EA is conducted by potentially affected FAA program offices having an interest in the proposed action to assure that all FAA concerns have been addressed technically, and with AGC or Regional Counsel to assure that the EA is legally sufficient. For projects that originate in or are approved at FAA headquarters, the EA and FONSI shall be reviewed by AGC for legal sufficiency. For projects that originate in and are approved by the regions, the EA and FONSI shall be reviewed by Regional Counsel. The responsible FAA official should contact the program offices to determine appropriate levels of coordination. The responsible FAA official should consult with AEE (AEE-200) for general advice on compliance with NEPA and other applicable environmental laws, regulations, and executive orders, especially for actions of national importance or which are highly controversial.

(8) Ch. 5, Para 506b: Change for consistency with CEQ regulations. As written, the text appears to require that the environmentally preferred alternative be identified in the EIS's Executive Summary. CEQ regulations encourage, but do not require identification of the environmentally preferred alternative until the ROD is prepared. The words “identifies any environmentally preferred” have been removed from line 6 and the underlined text had been added.

506b. Executive Summary. An executive summary will be included to adequately and accurately summarize the EIS. The summary describes the proposed action, stresses the major conclusions, areas of controversy (including issues raised by agencies and the public), and the issues to be resolved (including the choice among alternatives). It also discusses major environmental considerations and how these have been addressed; summarizes the analysis of alternatives; and agency preferred and sponsor preferred alternatives. If the agency has identified an environmentally preferred alternative, it may also be included. It discusses mitigation measures, including planning and design to avoid or minimize impacts. It identifies interested agencies, lists permits, licenses, and other approvals that must be obtained, and reflects compliance with other applicable environmental laws, regulations and executive orders.

(9) Ch. 5, Para 506e: Change for consistency with CEQ regulations. Two sentences were removed and two sentences were modified to be consistent with CEQ regulation, 40 CFR 1505.2(b) regarding the timing of the identification of the environmentally preferred alternative. This paragraph now requires that the environmentally preferred alternative be identified in the EIS. However, federal agencies are not required under the CEQ regulations to discuss the environmentally preferred alternative until the record of decision. If an environmentally preferred alternative is known to the agency before the ROD, it can be disclosed at that time.

506e. This section is the heart of the EIS (see 40 CFR 1502.14; see also 40 CFR 1502.10(e) and 40 CFR 1505.2 for more information on alternatives). It presents a comparative analysis of the no action alternative, the proposed action and other reasonable alternatives to fulfill the purpose and need for the action. Although CEQ encourages Federal agencies to identify the environmentally preferred alternatives in the EIS (see CEQs “40 Most Asked Questions,” number 6), CEQ regulations do not require that discussion until the ROD. Reasonable alternatives not within the jurisdiction of the lead agency should be considered (see 40 CFR 1502.14(c)). The FAA may include alternatives proposed by the public or another agency. However, they must meet the basic criteria for any alternative: It must be reasonable, feasible, and achieve the project's purpose. The extent of active participation in the NEPA process by the proponent of the alternative also bears on the extent to which a proffered alternative deserves consideration. To provide a clear basis of choice amongst the alternatives, graphic or tabular presentation of the comparative impact is recommended. This section also presents a brief discussion of alternatives that were not considered reasonable due to their inadequacy in meeting the purpose and need for the proposed action. The FEIS must specifically and individually identify the preferred alternative. Criteria other than those included in the affected environment and environmental consequences section of the EIS may be applied to identify the preferred alternative.

(10) Ch. 5, Para 512: Change for consistency CEQ regulations. A phrase was inserted indicating that the ROD must identify all alternatives considered, including the environmentally preferred alternative.

5.12. Following the time periods described in 40 CFR 1506.10 (i.e., 90 days from DEIS Notice of Availability (NOA) issuance and 30 day waiting period for FEIS NOA issuance), the agency's decisionmaker may make a decision on the Federal action. The ROD presents the agency's decision on the actions, identifies all alternatives considered by the agency, specifying which alternatives were considered to be environmentally preferable, identifies applicable mitigation and monitoring actions required, and as necessary, can be used to clarify and respond to issues raised on the FEIS. The ROD may discuss preferences among alternatives based on relevant factors including economic and technical considerations and agency statutory missions. The ROD shall identify and discuss all factors including any essential consideration and national policies that were balanced by the agency in making its decision and state how those considerations entered into the decision. The ROD shall state whether all practicable means to avoid or minimize environmental harm from the alternatives selected have been adopted, and if not adopted, why they were not adopted. The draft ROD should accompany the proposed FEIS during the internal review prior to approval only when headquarters' concurrence is required. The decisionmaker must obtain concurrence before approving the ROD. After approving the ROD, the decisionmaker may begin implementing the selected action. Figure 5-4, Record of Decision Overview, presents an overview of the components of a ROD.

(11) Ch. 5, text box on page 5-16: Change for clarification. The phrase “for the first time” was inserted.

FAA encourages all interested parties to provide comments concerning the scope and content of the Draft EIS. Comments should be as specific as possible and address the analysis of potential environmental impacts and the adequacy of the proposed action or merits of alternatives and the mitigation being considered. Reviewers should organize their participation so that it is meaningful and makes the agency aware of the viewer's interests and concerns using quotations and other specific references to the text of the Draft EIS and related documents. Matters that could have been raised with specifically during the comment period on the Draft EIS may not be considered if they are raised for the first time later in the decision process. This commenting procedure is intended to ensure that substantive comments and concerns are made available to the FAA in a timely manner so that the FAA has an opportunity to address them.

(12) Ch. 5, Para. 509a.(1) and (4): Change for consistency with AEE policy. Both paragraphs indicate that an FEIS originating in Headquarters (1) and regions (4) should be forwarded to the Office of Environment and Energy (AEE) for review and concurrence. As a matter of policy, AEE does not review FEISs, most of which are sent to AEE for information only. AEE does not review and concur unless AEE is specifically requested to review and concur on a document for a specific purpose. Both paragraphs have been revised to reflect this policy.

509a. Internal review is coordinated as follows:

(1) FEIS's originating in headquarters. The office or service director shall send a copy of the FEIS to AGC to review for legal sufficiency and concurrence. The responsible office or service director will send a copy of the FEIS to AEE for information unless review and concurrence are specifically requested. After the office or service director approves the FEIS, the responsible FAA official will file it with EPA (see paragraphs 509a(6) and 512).

(4) FEIS's originating in regions or centers, but where authority to approve the FEIS is retained in headquarters. The applicable division manager or center shall send the proposed FEIS to the appropriate headquarters' office or service director. The office or service will provide the FEIS to AGC for review. The office or service director will provide the FEIS to AEE for information unless review is specifically requested. Following approval, the FEIS will be filed with EPA. Presently, approval for these types of FEIS's is being delegated, if comments on the DEIS have been incorporated. (See paragraph 507.)

(13) Appendix A, Section 3. Coastal Resources: Change for correction. Paragraph 3.2b.(2) was revised to clarify what should be included concerning coastal zone consistency in an EA or EIS for a direct Federal action, e.g. an activity that the FAA itself is undertaking such as establishment of a navigational aid. Title 16 U.S.C. 1456(e)(2), states that the CZMA shall not be construed to supersede laws applicable to Federal agencies. Title 15 CFR 930.32(a) further provides that a Federal agency may determine that full consistency with the policies of a management program is prohibited by existing law applicable to the agency.

3.2b. CZMA. When a proposed action affects (changes the manner of use or quality of land, water or other coastal resources, or limits the range of their uses) the coastal zone in a State with an approved coastal zone management (CZM) program, the EA or EIS shall include the following:

(2) For activities that the FAA itself undertakes, the EA or EIS should include the same information listed above for federally assisted activities. If the State or local agency that administers the CZM program objects to the consistency determination, then the FAA may proceed with the federal activity only if the FAA determines that full consistency is prohibited by existing laws specifically applicable to the agency, such as aviation laws. In such a case, the EA or EIS should further state that the FAA provided the State or local agency with a written statement clearly describing the statutory provisions, legislative history, or other legal authority that limits the FAA's discretion to be fully consistent with the enforceable policies of the CZM program.

(14) Appendix A, Section 6. Department of Transportation Act, Section 4(f): Change for correction. Paragraph 6.1a. is being revised to correct a misstatement regarding the legislative history of 49 U.S.C. 303(c). Section 4(f) was not recodified and renumbered as part of the 1994 recodification of aviation statutes.

6.1a. The Federal statute that governs impacts in this category is commonly known as the Department of Transportation (DOT) Act, section 4(f) provisions. Section 4(f) of the DOT Act, which is codified and numbered as section 303(c) of 49 U.S.C., provides that the Secretary of Transportation will not approve any program or project that requires the use of any publicly owned land from a public park, recreation area, or wildlife and waterfowl refuge of national, State, or local significance or land from a historic site of national, State, or local significance as determined by the officials having jurisdiction thereof, unless there is no feasible and prudent alternative to the use of such land and such program, and the project includes all possible planning to minimize harm resulting from the use. This order continues to refer to section 4(f) because it would create needless confusion to do otherwise; the policies section 4(f) engendered are widely referred to as “section 4(f)” matters.

(15) Appendix A, Section 9. Floodplains: Change for clarification. Currently paragraphs 9.2c and 9.2g contain the same extensive notification requirements for both encroachments and significant encroachments. DOT Order 5650.2 paragraph 7 makes a distinction between notification requirements for encroachments and significant encroachments. Paragraph 9.2c is being revised to clarify the distinction between the notification requirements for encroachments and significant encroachments.

9.2c. If the agency finds that the only practicable alternative requires siting in the base floodplain, a floodplain encroachment would occur and further environmental analysis is needed. The FAA shall, prior to taking the action, design or modify the proposed action to minimize potential harm to natural floodplain values or within the base floodplain. The action is to be consistent with regulations issued according to section 2(d) of E.O. 11988. The FAA shall also provide the public with an opportunity to review the encroachment through its public involvement process and any public hearing presentations shall include identification of encroachments.

(16) Appendix A, Section 10. Hazardous Material, Pollution Prevention, and Solid Waste: Change for correction and consistency. Paragraph 10.1d (2). The definition of hazardous waste under the Resource Conservation and Recovery Act (RCRA) is slightly different than that in EPA regulation 40 CFR 261.1. Paragraph 10.1d(2) referenced both definitions. FAA uses the EPA regulatory definition for purposes of NEPA compliance so we propose to delete the reference to the RCRA definition.

(2) Hazardous Waste—a waste is considered hazardous if it is listed in, or meets the characteristics described in 40 CFR part 261, including ignitability, corrosivity, reactivity, or toxicity.

(17) Appendix A, Section 11. Historical, Architectural, Archeological, and Cultural Resources: Change for clarification. Paragraph 11.2b. was revised to remove contradictory language. The beginning of the sentence indicated that identifying the area of potential effect (APE) was only required if the undertaking may have an adverse effect. The beginning of the sentence, “If an undertaking may have an adverse effect,” has been deleted.

11.2b. Determination of Undertaking. The responsible FAA official determines whether the proposed action is an “undertaking,” as defined in 36 CFR 800.16(y) (and not an undertaking that is merely subject to State or local regulation administered pursuant to a delegation or approval by a Federal agency), and whether it is a type of activity that has the potential to cause adverse effects on historic properties eligible for or listed on the NRHP. If the agency determines, and the SHPO/THPO does not object, that an undertaking does not have the potential to have an effect on historic properties, a historical or cultural resource survey is not necessary and the FAA may issue a determination that the action has no effect. The first step is to identify the area of potential effect (APE) and the historical or cultural resources within it (see Secretary's Standards and Guidelines for Identification).

(18) Appendix C, Figure 3. Related Memoranda and Guidance: Change for correction. The date of the Memorandum of Understanding between the FAA and the Department of Defense was updated. The description of the Memorandum was also revised to more accurately describe the document.

Memoranda & guidance	Description
Memorandum of Understanding (MOU) between the FAA and the Department of Defense, October 4, 2005	Addresses environmental review of special use airspace actions.

Issued in, Washington, DC December 12, 2005.

Carl E. Burleson,

Federal Aviation Administration, Director, Office of Environment and Energy.