National Environmental Policy Act (NEPA) Implementing Instructions for Airport Actions, 29014-29055 [06-4527]

Agencies

• Federal Aviation Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 71, Number 96 (Thursday, May 18, 2006)]
[Notices]
[Pages 29014-29055]
From the Federal Register Online via the Government Printing 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, https://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 
(edward.melisky@faa.gov), 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\ https://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\ (https://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\ https://enironment.fhwa.gov/dot/projdev/4fpolicy.asp.
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    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 (https://
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.
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    \5\ https://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 s