On August 19, 2014, the Federal Aviation Administration (“FAA”) published a proposed rule regarding “Implementation of Legislative Categorical Exclusion for Environmental Review of Performance Based Navigation  Procedures,” 79 Fed.Reg. 49141 (“CATEX Rule”) to implement the Congressional mandate contained in the FAA Modernization and Reform Act of 2012, Pub.L. 112-95 (“FRMA”), § 213, directing FAA “to issue and file a categorical exclusion for any navigation performance or other performance based  navigation (PBN) procedure that would result in measureable reductions in fuel consumption, carbon  dioxide emissions, and noise on a per flight basis as compared to aircraft operations that follow existing instrument flight rule procedures in the same airspace.”  79 Fed.Reg. 41941.

FAA was motivated to request public review of the CATEX Rule by the exceptions in FMRA that limits the change in the environmental review requirements to: (1) PBN procedures (excluding conventional operational procedures and projects involving a mix of both), FMRA § 213(c)(2); and (2) those in which there are measurable reductions in fuel consumption, carbon dioxide emissions and noise on a per flight basis, Id., see also, 79 Fed.Reg. 49142, citing FMRA § 213(c)(1).  In addition, FAA feels it necessary to further explore the consequent recommendations of the industry group appointed to develop a metric to capture the new requirement, the NextGen Advisory Committee (“NAC”), made up of 28 members from the “airlines, airports, manufacturers, aviation associations, consultants, and community interests.”  Id.

Specifically, the NAC recommended the “Net Noise Reduction Method,” which would “[p]rovide[] for the computation of the number of people who would experience a reduction in noise and the number of people who would experience an increase in noise with a proposed PBN procedure as compared with the existing instrument procedure, at noise levels of DNL [average] 45 dB and higher.”  79 Fed. Reg. 49142.  FAA concluded that this proposal needs further evaluation because it “would introduce a new method for assessing noise … that is different in a number of respects from current noise analysis methodologies,” Id., and because it “does not produce a quantity of noise on a per flight basis,” 79 Fed.Reg. 49143, (i.e., a single event, or SENEL basis), as mandated by Congress, but instead “allows for averaging [of] noise impact on a representative basis,” (closer to the DNL or average noise level), 79 Fed.Reg. 49142, fn. 3.  

The FAA is further concerned about the extent “to which the Net Noise Reduction Method’s reliance on a net reduction in the number of people exposed to noise constitutes a net reduction in noise, since the two reductions are not the same.”  79 Fed.Reg. 49143.  Ironically, communities exposed to high levels of airport noise have been making the same objection to the DNL metric, the 24 hour average noise metric, for decades, on the ground that while such average is the conventional method of establishing noise impact, individuals do not hear “averages” but rather experience noise on a per flight basis, as has now been recognized by Congress.  

Finally, and despite FAA’s disclaimer that “[a] CATEX is not an exemption or waiver of NEPA review,” a categorical exemption is exactly what it purports to be: an exclusion from the normally applicable requirement to perform review under the National Environmental Policy Act, 42 U.S.C. § 4321, et seq. (“NEPA”).  Apparently recognizing this, Congress enacted the caveat that a categorical exemption will not apply where “the Administrator determines that extraordinary circumstances exist with respect to the procedure.”  FMRA § 213(c)(1), although what precisely constitutes an “extraordinary circumstance” is not explained in the proposed rule.  

In summary, Congress has now mandated the development of a per flight noise metric for PBN procedures, and FAA will be required to adjust its traditional metric to conform.  FAA is giving the public, including affected communities, their first opportunity to weigh in on this important regulatory distinction by September 18, 2014.  Comments identified by ‘‘Docket Number FAA–2014–0510’’ may be sent either by mail 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 or electronically to the Federal eRulemaking Portal at http://www.regulations.gov.  

Update:  On September 11, 2014, FAA extended the comment period to October 20, 2014 (79 Fed. Reg. 54342).