Taxi and runup procedures may be subject to ANCA

"... the owner of ... airport has limited authority under Federal law to restrict access to the airport. It may adopt rules establishing permissible levels of noise at the airport provided those rules are reasonable, nondiscriminatory, and do not impose an undue burden on interstate or foreign commerce. In addition, to maintain eligibility to receive Federal grant funds under the [AIP] or approval to impose and use a passenger facility charge [PFC], airport sponsors are required to propose airport noise and access restrictions in compliance with the [ANCA]. Section 161.7(a) of [Part 161] defines procedures for taxiing and engine run-ups that limit the total numbers or hours of aircraft operations as airport noise or access restrictions that must be adopted in compliance with ANCA."

Letter from Office of the Chief Counsel, Environmental Law Branch, to Director, City of Melbourne Airport Authority, June 16, 1994

"As a matter of policy, the FAA does not consider the use of aircraft stage designations in combination with single event noise limits to be unjustly discriminatory per se. Properly comparing aircraft between stages means comparing aircraft of similar gross takeoff weights and, for a given weight, a Stage 3 aircraft will always be quieter than a Stage 2 aircraft based upon the classifications in the FAA Advisory Circular 36 series."

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

"If your intent is to draft a decibel-level ordinance not subject to 14 CFR Part 161, Subpart D, then you must select a decibel level high enough that no Stage 3 aircraft capable of operating at the airport would be affected. Advisory Circular 36-3F,... provides an assured means of identifying such a decibel level. If your ordinance should propose a decibel-level that would affect operations by both Stage 2 and Stage 3 aircraft, then it must be implemented in accordance with 14 CFR Part 161, Subparts C and D. Subpart D requires thorough economic analysis and [FAA] approval of restrictions on Stage 3 operations. Alternatives would be an ordinance, or preferably a voluntary agreement, which restricts only Stage 2 aircraft. Most lighter than transport category, non-turbojet, general aviation aircraft are not classified as either Stage 1, 2, or 3, and would be exempted, while the Stage 2 turbojets would be restricted. This would still require full compliance with Subpart C of Part 161, including full economic analysis of your restriction."

Letter from Director, Office of Environment and Energy to Assistant City Attorney, Ft. Lauderdale, Florida, May 15, 1992

"Your first concern, how to properly express within the ordinance its intended effect of restricting only Stage 2 aircraft, is clearly warranted. Since the focus of the ordinance would be the reduction of aircraft noise in your community, basing it on a maximum decibel level at the airport rather than on characterizations of aircraft as Stage 2 or Stage 3 would serve this purpose. However, since some Stage 3 aircraft actually emit more sound energy than some Stage 2 aircraft because of weight factors considered in the noise certification process, a caveat in a decibel level based ordinance to exempt Stage 3, regardless of maximum decibel level cited, raises the issue of unjust discrimination. Concerns on the part of aircraft operators that the ordinance was based on non-noise criteria and discriminates against some Stage 2 airplanes, by allowing operation of certain noisier Stage 3 airplanes, could be anticipated. If legal recourse were sought, the ordinance may be overturned as unjustly discriminatory."

Letter from Director, Office of Environment and Energy to Assistant City Attorney, Ft. Lauderdale, Florida, May 15, 1992

FAA internal procedure - early notice

"This is a reminder to advise you that early contact with headquarters is vital whenever an airport noise or access restriction is being proposed or is in question. This early contact includes, for example, inquiries from airport operators about what they must do to comply with Part 161, noise and access restrictions in Part 150 noise compatibility programs, or written complaints from pilots or other airport users that an airport is imposing a noise or access restriction not in compliance with ANCA."

Memorandum from Manager, Community and Environmental Needs Division to all regions, December 3, 1993

"The attached review comments were prepared in conjunction with Airports ...Region and Airports District Office.... The process was very time consuming and laborious, as evidenced by the extensive comments provided to the airport operator. Review Teams consisting of regional representative(s) and ... headquarters offices will be set up to complete the process for each proposal submitted under 14 CFR part 161. Now is not too soon to consider your region's process for that time when your region will be participating on the Part 161 Review Team."

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 lack of a cost/benefit analysis means that the submitted information does not appear to comply with the requirements of Part 161.205 and any restriction adopted on the basis of this work would appear not to be in compliance with the [ANCA]. If such a finding of noncompliance were made, it would affect [the airport operator's] eligibility for PFCs and AIP funding."

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

"Your other concern, whether Subpart C requires adoption of an ordinance to await expiration of the 180-day period, is one of statutory and regulatory interpretation. Section 9304(c) requires an airport operator to publish a proposed noise or access restriction, and prepare and make economic analysis and certain other information available for public comment at least 180 days before the effective date of the restriction. Because Section 9304(c) uses the term proposed restriction and contemplates that the proposed restriction be made available for comment before the restriction takes effect, the Act clearly contemplates that the restriction remain as proposed for 180 days of meaningful comment. The ordinance is not proposed in the truest sense of the word if it has already been adopted by the governing body. We read availability for comment in the Act to require the airport operator to afford the airport community and aircraft operators meaningful opportunities for comment. Meaningful opportunities to comment are clearly undermined if delayed until after the legislative process is completed and the ordinance is adopted."

"Therefore the Act and Section 161.203 ... intend that the airport operators await the end of the 180-day period to adopt and implement ordinances proposed in accordance with [ANCA]."

Letter from Director, Office of Environment and Energy to Assistant City Attorney, Ft. Lauderdale, Florida, May 15, 1992

"We have made and are continuing to make every effort to resolve this matter through informal resolution. We have no current plans to stop payments under previously executed grant agreements. However, we have an obligation to be extremely cautious about issuing new AIP grants which would be in jeopardy of imminent termination if informal resolution is unsuccessful.

"We have previously advised you that the County's temporary suspension of the 1991 Noise Ordinance...is unacceptable pursuant to 161.501(b). Unacceptable for the same reason is the one-year suspension proposed....

"...an acceptable alternative would be a letter authorized by the ... County Board of Supervisors to the FAA committing not to enforce the ordinance as provided in 161.501(b), until advised by the FAA that the County would be in compliance with ANCA and Part 161. This alternative would allow the FAA to proceed with PFC approval and would immediately remove any cloud of doubt over AIP funding.

"After issuing a letter of nonenforcement, ... County would have the leeway to decide whether to prepare a Part 161 analysis and begin that process (with the option of doing the Part 161 analysis within the context of a Part 150 study funded by the FAA), to work towards an FAA determination of substantial compliance with ANCA, to continue efforts to make a case that the ordinance is exempted under ANCA, or to recast the ordinance into a voluntary program of noise abatement. Any of these options may potentially bring the County into compliance with ANCA and Part 161...."

Letter from Acting Assistant Administrator for Airports to Deputy County Counsel, County of Sonoma, January 25, 1993

Stage-2 phaseout and federal preemption issues addressed

"You request that we clarify the statement ...the FAA has serious concerns about the underlying assumptions that the State of Hawaii has authority to implement a local phase out requirement. The statement reflects FAA's concern that a proposal to phase out operations by all Stage 2 airplanes at Kahului Airport using the same deadlines that apply to operations by Stage 2 airplanes in the contiguous United States under the Federal transition schedule, 14 CFR Part 91, would be Federally preempted under 49 USC 47521 et seq. [ANCA], particularly 49 USC 47528(e), and 49 USC 47530. ... Congress decision to exempt and cap the number of Stage 2 aircraft operations that may operate in Hawaii and between Hawaii and areas outside the contiguous United States, in our view, expresses an intent to permit Stage 2 operations to continue in Hawaii beyond the year 2000 because of the unique role aviation plays there (FAA May 1, 1995 letter.)

"A local phase out requirement at Kahului Airport is preempted under the Act because Congress twice clearly considered and rejected the concept of including Hawaii in the national transition schedule. The Act's provisions for phase out of operations by Stage 2 airplanes by the year 2000 and for non-addition of Stage 2 airplanes applies only to the contiguous 48 states."

Letter from Manager, Hawaii Airports District Office, to Airports Administrator, Hawaii DOT, Airports Division, September 22, 1995

"General guidance concerning compliance with Part 161 is set forth in Attachment A to this letter.

"... as a matter of policy we strongly encourage the State of Hawaii, in its capacity as the airport proprietor, to consider the use of voluntary agreements to achieve its noise abatement objectives. Voluntary agreements may be negotiated with aircraft operators to provide noise relief in a way that avoids undue economic burden. In contrast to mandatory restrictions, such arrangements are not subject to Part 161 analysis requirements.

"The plain language of ANCA, as amended in 1991, raises an issue concerning whether Congress intended to permit the State of Hawaii to apply at its airports the schedule for transition to quieter aircraft that currently applies to the contiguous 48 states.

"In 1990, Congress adopted ANCA to require the airlines to phase out operations by the loudest aircraft, Stage 2 civil subsonic turbojet weighing more than 75,000 pounds, by the year 2000. Congress also directed the Secretary of Transportation to issue regulations establishing interim dates for a national transition schedule to quieter Stage 3 aircraft. Congress explicitly provided that Hawaii was exempt and that the phaseout did not apply to Stage 2 aircraft used solely for air transportation outside the 48 contiguous United States (See, 49 USC 46530, formerly Section 9308(d) of ANCA.)

"In 1991, Congress amended ANCA with regard to the State of Hawaii. Congress established a cap, as of November 5, 1990, on the number of Stage 2 aircraft that may be operated within Hawaii and between Hawaii and points outside the contiguous United States (See 49 USC 47528(e), formerly Section 9308(i) of ANCA.) Congress' decision to exempt and cap the number of Stage 2 aircraft operations that may operate in Hawaii and between Hawaii and areas outside of the contiguous United States, in our view, expresses an intent to permit Stage 2 operations to continue in Hawaii beyond the year 2000 because of the unique role aviation plays there. The cost-benefit analysis for any phaseout proposal should address why a local phaseout requirement is not Federally preempted.

"Even if Hawaii's statutory exemption does not preempt a local phaseout schedule, such a proposal must be adopted in compliance with ANCA. Both the plain meaning and the legislative history of ANCA support interpretation of ANCA to require compliance for all restrictions on operations by Stage 2 aircraft proposed after October 1, 1990."

Letter from Manager, Honolulu Airports District Office to Airports Administrator, State of Hawaii, DOT, May 11, 1995