Leases with regulatory terms may be subject to ANCA and Part 161

"The FAA is concerned about the interpretation of section 161.101(d)... Simply including the restrictions in operating leases does not remove such restrictions from FAA review or insulate restrictions from the statutory and regulatory requirements. The definition of noise or access restriction expressly includes provisions in leases that affect the operations of Stage 2 or Stage 3 aircraft. 14 CFR section 161.5. Both the 1990 Act and part 161 would permit the City and individual aircraft operators to enter into separate, voluntary agreements that would restrict aircraft operations at the...Airport. Part 161, Subpart B. In order to impose such restrictions, the City would be required to follow the procedures in Subpart B (agreements), Subpart C (Stage 2 restrictions) or Subpart D (Stage 3 restrictions) of Part 161, or negotiate individual agreements that would bind only the aircraft operators that have entered into such agreement with the City."

Letter from FAA Chief Counsel, to City Attorney, South Lake Tahoe, California, August 21, 1992

"The ANCA applies to airports eligible to receive Federal funds and passenger facility charges. The ANCA (section 9304(e)) states that Sponsors of facilities operating under airport aircraft noise or access restrictions on Stage 3 aircraft operations that first became effective after October 1, 1990, shall not be eligible to impose a passenger facility charge under section 1113(e) of the Federal Aviation Act of 1958 and shall not be eligible for grants authorized by section 505 of the Airport and Airway Improvement Act of 1982...unless such restrictions have been agreed to by the airport proprietor and aircraft operators or the Secretary has approved the restrictions...or the restrictions have been rescinded.

"We recommend advising the airport operator that imposition of restrictions subject to ANCA without complying with Part 161 would affect the airport's eligibility to receive Federal funds and passenger facility charges indefinitely, unless restrictions imposed in violation of ANCA are rescinded."

Memorandum from Manager Community and Environmental Needs Division to Southern Region Airports Division, July 15, 1994

"ANCA does not apply to restrictions on operations by propeller driven aircraft weighing 12,500 pounds or less because none of these aircraft are classified as Stage 2 or 3, and ANCA governs restrictions on operations by Stage 2 and 3 aircraft.

Letter from Assistant Administrator for Airports, to Director, Hawaii Department of Transportation, July 6, 1992

"This is in response to your [request for] an interpretation of the scope of applicability of [FAR] Part 161. You specifically asked if ... the 161 process is not involved in establishing noise restrictions or curfews on airports for aircraft of 75,000 pounds or lighter.

"[This is] not correct. The [ANCA] required that after December 31, 1999, no person may operate ... in the United States any civil subsonic turbojet aircraft with a maximum weight of more than 75,000 pounds unless such aircraft complies with the Stage 3 noise levels... In a separate section of the Act, the Congress also required that there be established by regulation a national program for reviewing airport noise and access restrictions on operations of Stage 2 and Stage 3 aircraft. In the latter requirement for a national program to review restrictions, the Congress did not make a distinction based on aircraft weight. The ... part 161, ... applies to an airport imposing a noise or access restriction on any Stage 2 or Stage 3 aircraft. "... Both the Act and part 161 afford aircraft less than 75,000 pounds the same protection under ANCA as aircraft greater than 75,000 pounds. For proposed restrictions on Stage 2 aircraft, separate detail with respect to the restriction's effect on aircraft less than 75,000 pounds is required, if the restriction applies to that class. For proposed restrictions on Stage 3 aircraft, this distinction is made by the term aviation user class as defined in section 161.5."

Letter from Manager, Policy and Regulatory Division, Office of Environment and Energy to manager, Falcon Field Airport, December 3, 1993

"ANCA applies to airports imposing restrictions on Stage 2 aircraft operations proposed after October 1, 1990. This includes airports enacting amendments to restrictions adopted prior to October 1, 1990, where the amendments are proposed after that date and limit or restrict operations or safety. ... The [Noise Compatibility Program (NCP)] states that the nighttime restrictions proposed -- and -- adopted on August 17, 1988, were voluntary. ... Since the mandatory measures in the NCP were not proposed before October 1, 1990, the NCP measures are not grandfathered under ANCA.

"... Once the restrictions were adopted and implemented as voluntary, no proposed mandatory restrictions remained that could form a basis for grandfathering subsequent restrictions. ... Amendment of the current restrictions to convert them into mandatory requirements will clearly limit or restrict aircraft operations because it will tighten the current restrictions. See 14 C.F.R. 161.201(a)(2)."

Letter from Manager, Orlando Airports District Office to Manager, Aviation Technical Services, Greater Orlando Aviation Authority, September 9, 1992

"The previously-adopted EPNdB limits need not undergo the process established under the [ANCA]. The factors relevant to our determination on West Maui include:

"(1) the airport is currently privately-owned and private use, (2) the restriction was adopted well before the transfer of ownership and does not appear to have been put into effect with the intent of circumventing ANCA, and (3), in these circumstances, the transfer of ownership will make the airport available for public use for the first time. A major purpose of ANCA is to prevent the proliferation of uncoordinated and inconsistent restrictions on aviation that could impede the national air transportation system. The relaxation of existing restrictions and improvement of the availability of airports for public use is consistent with this purpose. In these circumstances, it would not serve the purpose of ANCA to interpret ANCA to apply because the transfer, even with the existing restriction in place, represents an overall improvement in airport access. We do not here address the applicability of ANCA to use restrictions under other circumstances."

Letter from Assistant Administrator for Airports, to Director, Hawaii Department of Transportation, July 6, 1992

"[W]e are aware of the unique role that the court has defined for TRPA in the Tahoe Basin. ..Nevertheless, the fact that TRPA environmental thresholds may form the basis of actions taken by the City to implement those thresholds does not remove those actions from the scope of the 1990 Act and Part 161. Because the City implements airport restrictions as the airport owner and operator, the City is subject to the 1990 Act and Part 161. Regardless of TRPA's input and role, the City would be required to comply with the 1990 Act and Part 161 before imposing airport noise or access restrictions. However, as a result of express statutory exemptions in the 1990 Act, certain actions by the City that otherwise would be subject to the 1990 Act and Part 161 are specifically excluded."

Letter from FAA Chief Counsel, to City Attorney, South Lake Tahoe, California, August 21, 1992

No FAA listing of pre-ANCA restrictions is available

"...you requested information on those airports that had noise restrictions in force before Part 161 became effective. The [FAA] maintains no such listing. As advised in a recent telephone conversation ..., you may wish to contact airport aviation interest groups such as the National Business Aircraft Association or the Aircraft Owners and Pilots Association which have gathered this type of data for their use."

Letter from Manager, Policy and Regulatory Division, Office of Environment and Energy to manager, Falcon Field Airport, August 2, 1993

"We also wish to point out that, if the State proposes to implement new restrictions or to tighten existing ones, it will be required to comply with ANCA and 14 CFR Part 161."

Letter from Assistant Administrator for Airports, to Director, Hawaii Department of Transportation, July 6, 1992

"[certain] noise abatement measures are proposals that would further reduce access to the airport beyond that already established in the Special Use Agreement. Thus, each would be subject to the former Airport Noise and Capacity Act of 1990 (recodified at P.L. 103-272), 49 USC 47521 (hereinafter referred to as ANCA), as implemented by 14 CFR Part 161. Although the Special Use Agreement is grandfathered because it was in effect prior to the enactment of ANCA, any amendments to the use agreement that further reduce airport access would require the airport operator to comply with Part 161 prior to implementation. (14 CFR 161.3 This part also applies to airports enacting amendments to airport noise and access restrictions in effect on October 1, 1990, but amended after that date, where the amendment reduces or limits aircraft operations or affects aircraft safety.) The proposed access restriction measures do not qualify for grandfathering or exemption under the intergovernmental agreement provision of ANCA and 14 CFR Part 161.

Letter from Northwest Mountain Regional Administrator to President of Jackson Hole Airport Board, January 19, 1996

"If the City of Los Angeles approves the proposed Non-Addition Rule that is presently under consideration, can the City, then, approve amendments to the rule at a later date that would further restrict aircraft activity at the Van Nuys Airport, assuming that the future amendments would not surpass the restrictions that the original, grandfathered ordinance included? ANCA and the FAA regulations implementing it (14 CFR Part 161) would not apply to such 'future amendments' provided they were not more restrictive than the original pre-ANCA proposal.

Letter from Chief Counsel to Congressman Brad Sherman, January 18, 2000

"The noise ordinance, proposed prior to the effective date of the [ANCA] would affect both Stage 2 and Stage 3 aircraft operations (determined through cross checking AC's 36-3 and 36-1 with the list of aircraft in Table B-1 of the NCP). Section 161.3, Applicability, of 14 CFR Part 161...states that:

'This part applies to airports imposing restrictions on Stage 2 aircraft operations proposed after October 1, 1990, and to airports imposing restrictions on Stage 3 aircraft operations that became effective after October 1, 1990.'

"Based on the dates provided in the ordinance data submitted...the provisions of Part 161 apply to the restriction insofar as it affects the operation of Stage 3 aircraft. ... The required analysis of the noise and access restriction (section 161.305) must satisfy [the six statutory] conditions, as specified in the attached Part 161. If the airport operator and aviation users cannot reach agreement consistent with the provisions of Subpart B of Part 161, the above criteria must be satisfied and the proposal submitted to the FAA for review and approval in accordance with provisions of Subpart D of Part 161. The cost and benefit analysis must consider the restriction's impacts in light of the national transition schedule set forth in Part 91. The Part 161 process must be complied with in addition to the provisions contained in Part 150; however, the Part 150 process may be used to satisfy public comment provisions as specified in section 161.321 of Subpart D, and the Part 161 analysis may be developed during the Part 150 process, as long as it meets approval requirements of both rules."

Memorandum from Manager Community and Environmental Needs to Airports Division, May 13, 1992

FAA role in reviewing proposed stage-2 restrictions

"FAA's role in providing these comments is two-fold.  The FAA's primary role under Part 161, section 161.205, is oversight of the regulation, which includes ensuring that procedural requirements for the proposed airport noise and access restrictions fully comply with the regulatory requirements.  Our secondary role as a commenting party includes detailed review of the substance of the proposal for compliance with other Federal requirements."

Letter from Associate Administrator for Airports to Metropolitan Airports Commission, June 9, 1999

"Although FAA has no approval authority for Stage 2 proposed noise and access restrictions, we have the responsibility both under existing law and as a commenting agency under Part 161 to provide the airport operator with FAA's views and policy regarding the proposal and its supporting documentation. In the case of [this airport], the documentation lacked economic analysis required by the [ANCA], as explained in substantial detail in the FAAs comments to the airport operator."

Memorandum from Manager Community and Environmental Needs Division to all regions and letter dated March 24, 1992, from Assistant Administrator for Airports to Executive Director, Metropolitan Airports Commission, April 21, 1992

"The plain statutory language of ANCA, Part 161, and other relevant data support applicability of ANCA and part 161 to helicopters.  An operator of an "airport," defined in section 161.5 to include heliports, that proposes noise or access restrictions which affect Stage 2 aircraft operations is required to comply with Subpart C of Part 161....'Stage 2 aircraft' is defined in 14 CFR Part 36, Appendices H and J, and includes helicopters.  A "Stage 2" aircraft is defined in Section 161.5, and includes helicopters.  The airport or heliport operator must provide separate detail in its cost-benefit analysis, required by Subpart C, on the effects of the restriction on various user classes, including Stage 2 aircraft weighing less than 75,000 pounds when the restriction applies to that class.  Section 161.5 defines "aviation user class" to include "other carriers operating under parts 127 and 135," which cover helicopter operations."

Letter from Director of Environment and Energy to Helicopter Association International, July 7, 1997

Statutory exemption applies to restrictions effective as of Nov. 5, 1990

"Particularly, the City may not adopt restrictions that prohibit airport operations in effect as of November 5, 1990. See 49 U.S.C. App. section 2153(a)(2)(C)(v)(II). Restrictions that do not reinstate previous restrictions or limitations, replace a disallowed restriction, or that impose restrictions or reduce aircraft operations below those permitted on November 5, 1990, would not be covered by the statutory exemption. The City would be required to comply with the 1990 Act and Part 161 before imposing any non-exempt restriction."

Letter from FAA Chief Counsel, to City Attorney, South Lake Tahoe, California, August 21, 1992

"Title 49 U.S.C. 47533(2) applies, 'Except to the extent required by section 47524.' Title 49 U.S.C. 47524(c) requires notice, analysis, and FAA approval of restrictions on operations by Stage 3 aircraft that were not in effect before October 1, 1990.  Reading these provisions together, so as to give meaning to each provision, the city must comply with 49 U.S.C. 47524(c), to impose the extended curfew departure period upon operations by Stage 3 aircraft."

Letter from Associate Administrator for Airports to City Attorney, Los Angeles, California, August 28, 1997

"[T]he 1990 Act contains narrow and specific exemptions that limit application of the procedural and substantive requirements in the statute. Specifically, sections 2153(a)(2)(C)(v)(I) and (II) provide an exemption where noise or access restrictions have been suspended as the result of litigation. Sections 161.7(b)(5) and (6) of the implementing regulations repeat the statutory exemption."

Letter from FAA Chief Counsel, to City Attorney, South Lake Tahoe, California, August 21, 1992

Procedures for evaluating grandfathered restrictions in a Part 150 study

"FAA should advise sponsors undertaking a Part 150 study that restrictions which were proposed or in effect prior to the dates set forth in ANCA are not required to be presented in the airport operator's recommendation section for FAA approval. At a minimum, pre-existing restrictions must pass two tests: The airport operator must provide evidence that the restriction passes the grandfather tests set forth in Part 161, and the airport-land use incompatibility conditions which led to the imposition of the restriction must be presented in the Part 150 studys discussion of existing airport conditions. In the development of the maps, the restriction must be presented as an existing condition. Existing restrictions which are presented in this manner should not be carried over into the airport operators recommendations section of the Noise Compatibility Program.

"On the other hand, the airport operator should be made aware of the benefits of evaluating pre-existing noise and access restrictions. If a restriction has been in effect for a long period of time, the airport operator may wish to use the Part 150 forum to evaluate its continued effectiveness in light of the passage of time, in light of other options which may not have been examined prior to implementing the restriction, and in light of the mandatory phase out of Stage 2 aircraft by the year 2000. Analysis and submittal in a Part 150 document would also provide the airport operator the advantage of FAA views with regard to laws which predated the [ANCA]. If the airport operator wishes to submit the pre-existing conditions for FAA approval, it should be carried over into the recommendations section of the NCP. The NCP must include a thorough analysis of any measure, whether it is a pre-existing use restriction or a newly proposed measure, in order for the FAA to determine that the measure complies with the analysis and approval requirements of 14 CFR Part 150."

Memorandum from Manager Community and Environmental Needs Division to All Regions, June 23, 1992

"If a grandfathered restriction is proposed to be modified in the Part 150, that restriction is considered to be a new restriction and must satisfy part 161 requirements. FAA headquarters and regional staff will evaluate the modification to determine if it is a relaxation of an existing restriction, in which case Part 161 would not apply."

Memorandum from Manager Community and Environmental Needs Division to All Regions, June 23, 1992

"Regardless of whether the airport operator wishes FAA approval of a long-standing use restriction, the airport operator's documentation still must provide evidence that the restriction is grandfathered under ANCA. Evidence that a restriction is grandfathered could be presented in the form of a restriction which was proposed in an ordinance before a governing body which was empowered to act on that ordinance (Stage 2), or an existing ordinance which was in place prior to ANCA applicability dates, or a restriction which was included in executed airport use agreements and leases which were in effect prior to passage of ANCA (Stage 3). Being discussed or analyzed in a planning document prior to the ANCA dates is not sufficient to demonstrate that the restriction was proposed or in effect prior to ANCA."

Memorandum from Manager Community and Environmental Needs Division to All Regions, June 23, 1992

"We believe Part 161 studies must be tied to Federal Aviation Regulation Part 150 to be eligible for AIP [Airport Improvement Program funding]. This can be done in two ways:

"(1) The Part 161 study is part of the scope of work of a Part 150 study and funded as airport noise compatibility planning; or,

"(2) The Part 161 study is a recommended measure in a Part 150 program and approved by the Federal Aviation Administration (FAA) as a noise project."

Letter from Associate Administrator for Airports to McNeill & Taylor, December 14, 1995

Reader: Also see preamble to 14 CFR Part 161 at 56 FR 48680, column 3: The FAA has decided to retain the Part 150 process as an optional process. To make it mandatory would overstep statutory authority. For those airport operators that dislike this option, it need not be used for compliance with Part 161. However, the Part 150 option does make federal financial assistance available to airport operators to analyze a proposed restriction.

"The Authority also maintains that even if ANCA applies, these restrictions were adopted in compliance with 14 C.F.R. Part 161 because the Authority included them in an NCP prepared pursuant to 14 C.F.R. Part 150. This is not correct because, while there is some overlap between Part 161 and Part 150, the former has distinct notice and analysis requirements. Due to the overlap, the Authority will be able to use and supplement much of the notice and analysis prepared in the NCP to satisfy Part 161 (see 161.211)."

Letter from Manager, Orlando Airports District Office to Manager, Aviation Technical Services, Greater Orlando Aviation Authority, September 9, 1992

"The Authority appears to believe that it proposed the mandatory restrictions within the meaning of ANCA by including them as recommendations in the NCP. This is based on a misunderstanding of NCPs. The NCP is a planning document similar to a master plan study. The NCP is not a means for legally proposing noise and access restrictions. To comply with ANCA, the FAA requires evidence of a proposed restriction within draft ordinances or other draft regulatory documents."

Letter from Manager, Orlando Airports District Office to Manager, Aviation Technical Services, Greater Orlando Aviation Authority, September 9, 1992