FAA Docket No. 16 - 01-15

[1] Day-Night Average Sound Level (DNL) is a single number measure of community noise exposure. It is an enhancement of the 24-hour Equivalent Sound Level (Leq) with a 10 decibel (dB) penalty applied to nighttime (10 P.M. to 7 A.M.) sound levels to account for increased annoyance due to noise exposure during these hours. An average sound metric such as DNL takes into account the sound levels of all individual events that occur during a 24 hour period, and the number of times those events occur. The averaging of sound over a 24-hour period does not ignore the louder single events, and it actually tends to emphasize both the sound level and number of those events. The logarithmic nature of the dB unit causes sound levels of the loudest events to control the 24-hour average.

[2] FAA Exhibit 1, item 2, page 11.

[3] FAA Exhibit 1, item 2, page 20.

[4] FAA Exhibit 1, item 2, page 17.

[5] FAA Exhibit 1, item 2, page 15.

[6] FAA Exhibit 1, Item 5 (FAA Form 5010 "Airport Master Record" for APF) Date: 6/18/2002, FAA Exhibit 1, Item 27, NAA General Information.

[7] This was an agreement between the U.S. Government and the airport sponsor under which the sponsor provided the land and the U. S. Government planned and constructed the airport improvements. See FAA Order 5190.6A, Section 2-18.

[8] FAA Exhibit 1, Item 27, NAA General Information. http://flynaples.com/general_info.html.

[9] FAA Exhibit 1, Item 28, National Plan of Integrated Airport Systems (NPIAS), 1998-2002.

[10] FAA Exhibit 1, Item 8 (Chronology of Events, City of Naples), Tab 12. [11] FAA Exhibit 1, Item 27, NAA General Information. http://flynaples.com/general_info.html.

[12] National Plan of Integrated Airport Systems (NPIAS), 1998-2002.

[13] FAA Exhibit 1, Item 5 (FAA Form 5010 "Airport Master Record" for APF) Date: 6/18/2002. [14] FAA Exhibit 1, Item 6 (Airport Sponsor AIP Grant History), Dated 10/11/01. [15] FAA Exhibit 1, Item 2, Attachment 28, p. 5-11. A noise contour is a continuous line on a map of the airport vicinity connecting all points of the same noise exposure level. In the Aviation Safety and Noise Abatement Act of 1979, Congress directed the FAA to “identify land uses normally compatible with various exposures of individuals to noise.” 49 U.S.C. § 47502. The FAA has determined that residential land use is normally compatible with noise levels of less than DNL 65 dB. See 14 C.F.R. Part 150, App. A, Table 1.

[16] See, e.g., FAA Exhibit 1, Item 2, Attachment 28 p. 4-1 (1996 Revised NCP). (“The [noise exposure map] presents the land use information for the geographic area within the 65 Ldn contour and identifies areas of incompatible land uses based on FAA guidelines.”). See also, FAA Exhibit 1, Item 2, Attachment 29, FAA Record of Approval, Revised Noise Compatibility Program 1996 (September 1997).

[17] FAA Exhibit 1, Item 2, Attachment 29, FAA Record of Approval, Revised Noise Compatibility Program 1996 (September 1997), Section 7.3.3.

[18] FAA Exhibit 1, Item 8 (Chronology of Events, City of Naples), Tab 12, p.10, (Question 12).

[19] The 1998 Part 150 update stated that the population within the DNL 65 dB contour would be reduced from 304 residents in 112 dwelling units to 184 residents in 77 dwelling units in 1998, and from 596 residents in 185 dwelling units to 440 residents in 146 dwelling units in 2003. See FAA Exhibit 1, Item 2, Attachment 30, p. 21. The document also stated that a school would be removed from the DNL 60 dB contour, and that the City of Naples and Collier County had “adopted DNL 60 dB for land use planning purposes.” Id. at 13 (emphasis added).

[20] FAA Exhibit 1, Item 2, Attachment 31.

[21] FAA Exhibit 1, Item 2, Attachment 6, p. 14.

[22] FAA Exhibit 1, Item 2, Attachment 6 (History of Noise Compatibility Efforts for Naples Municipal Airport, October 2000), p.14.

[23] FAA Exhibit 1, Item 2, Attachment 3, p. 5.

[24] There are no operations in the continental U.S. by civil subsonic turbojet Stage 2 aircraft weighing more than 75,000 pounds because the Airport Noise and Capacity Act of 1990, required operators to phase-out such operations and operate aircraft that meet Stage 3 noise levels by January 1, 2000.

[25] FAA Exhibit 1, Item 2, Attachment 15, p. 1.

[26] FAA Exhibit 1, Item 2, Attachment 3, Naples Municipal Airport Part 161, June 22, 2000, p. 16.

[27] FAA Exhibit 1, Item 2, Attachment 3, Naples Municipal Airport Part 161, June 22, 2000, p. 16.

[28] FAA Exhibit 1, Item 2, Attachment 3, Naples Municipal Airport Part 161, June 22, 2000, p. 1.

[29] See FAA Exhibit, Item 2, Attachment 29 (1997 Record of Approval Part 150 NCP, Section 7.3.3).

[30] FAA Exhibit 1, Item 19(h).

[31] Id.

[32] FAA Exhibit 1, Item 19(b).

[33] FAA Exhibit 1, Item 2, Attachment 7.

[34] FAA Exhibit 1, Item 22(g).

[35] FAA Exhibit 1, Item 2, Attachment 9.

[36] FAA Exhibit 1, Item 19(j).

[37] FAA Exhibit 1, Item 19(f).

[38] FAA Exhibit 1, Item 22(a).

[39] FAA Exhibit 1, Item 2, Attachment 15.

[40] FAA Exhibit 1, Item 12, Exhibit 1.

[41] FAA Exhibit 1, Item 1(b), Letter from Mr. Paul Galis, Deputy Associate Administrator for Airports, to Mr. Theodore D. Soliday, and topical comments, October 31, 2001.

[42] FAA Exhibit 1, Item 1(a), Letter from Mr. David L. Bennett, Director, Office of Airport Safety and Standards, to Mr. Theodore D. Soliday, including Notice of Investigation.)

[43] FAA Exhibit 1, Item 2, p. 3.

[44] FAA Exhibit 1, Item 2, p. 3. 45 FAA Exhibit 1, Item 12, Exhibit 1.

[46] In the FAA Airport Facility Directory, NAA advises that “Stage 1 and 2 jet” aircraft operations are prohibited from using APF.

[47] We note that approximately 92 percent of aircraft in the United States do not have a Stage designation. Of the approximately 227,000 powered aircraft in the fleet (FY 2000 data), 17,000 (commercial passenger jets, cargo jets, corporate jets, propeller-driven commuters and helicopters) have Stage designations. See FAA Exhibit 1, Item 29 and Item 30.

[48] FAA Exhibit 1, Item 4.

[49] See, e.g., 49 U.S.C. § 40101, 40103(e), 40113, 40114, 46101, 46104, 46105, 46106, 46110, 47104, 47105(d), 47106(d), 47106(e), 47107, 47108, 47111(d), 47122.

[50] City and County of San Francisco v. FAA, 942 F.2d 1391, 1396 (9th Cir. 1991).

[51] FAA Order 5190.6A, Section 4-8 (f).

[52] See, e.g., United States v. County of Westchester, 571 F. Supp. 786 (S.D.N.Y. 1983) (upholding the FAA’s refusal to pay further grant monies to airport operator that imposed a curfew in violation of the grant assurances).

[53] 571 F. Supp. 786 (S.D.N.Y. 1983).

[54] Studies conducted before 1981 did not support the curfew. For example, a 1978 study concluded that an existing voluntary curfew was effective and that “any hard and fast rule would make an insignificant difference in cumulative community noise exposure.” 571 F. Supp. at 792. An earlier study had “rejected imposition of a nighttime curfew, and instead suggested several operational changes to minimize noise impact.” Id. The FAA had advised the County that the curfew was an “action of last resort” that was “appropriate only when all other noise reduction techniques have been found to be inadequate and after an appropriate public hearing process.” Id. at 793. At a meeting with the County, a representative of the FAA also suggested that “action on a nighttime curfew be tabled to allow time to further develop and imp lement less severe but potentially equally effective operational controls.” Id.

Nor was the curfew supported by studies conducted after its enactment. A study conducted in 1982 included a survey of community response to changes in nighttime noise exposure resulting from a temporary reinstitution of nighttime operations at the airport. The results of this survey showed that “the overall pattern of findings did not support an inference of substantial community reaction to the operational changes” at the airport. Id. at 794-95. In addition, FAA noise studies conducted after the curfew was enacted indicated that certain aircraft could operate at the airport at night without causing sleep interference. Id. at 795.

[55] The court ruled that because the County's curfew violated the grant assurances, the FAA had properly refused to pay further grant monies to the County. 571 F. Supp. at 798. The Court also held that the curfew adversely impacted the flow of interstate commerce and represented an unlawful police power regulation. 571 F. Supp. at 797-98.

[56] 571 F. Supp. at 796. The Court also found that “[t]he weight of the credible evidence presented at trial demonstrates that some aircraft can operate into and out of the Airport without producing noise levels which would interfere with the sleep of the residents in communities in the vicinity of the Airport.” Id.

[57] 571 F. Supp. at 797. While Westchester is qualified and distinguished in National Helicopter Corp. v. City of New York, 952 F. Supp. 1011, 1028 (S.D.N.Y. 1997), aff’d, 137 F.3d 81, 89-90 (2d Cir.1998), it is still relevant authority as cited in this Determination. The appellate court in National Helicopter stated that “[t]o the extent that [United States v. State of New York, 552 F. Supp. 255 (N.D.N.Y. 1982), aff'd, 708 F.2d 92 (2d Cir. 1983), cert. denied, 466 U.S. 936 (1984), and Westchester] have stricken curfews for their failure to target the noisiest aircraft or the noisiest times of operation, they have since been overturned by our opinion in Global International Airways v. Port Authority of New York and New Jersey, 727 F.2d 246, 251 (2d Cir. 1984), 731 F.2d 127 (2d Cir. 1984), which permits proprietors to reduce cumulative noise levels, as opposed to only targeting peak noise levels or the noise level produced by an individual aircraft.” National Helicopter, 137 F.3d at 90. According to the district court in National Helicopter, “[t]he better interpretation of Westchester -- the interpretation with continued vitality -- is that a proprietor's noise based regulations, of whatever type, must be reasonably formulated to ameliorate identified noise related problems. From this vantage, the Westchester holding was certainly correct. Because the county had no evidence either of unacceptable noise levels at its airport -- at night or during the day -- or of substantial benefits flowing from the enforcement of the curfew, the county could not proceed with that curfew.” National Helicopter Corp. v. City of New York, 952 F. Supp. 1011, 1028 (S.D.N.Y. 1997). The Westchester curfew, banning all aircraft between the hours of 12:00 midnight and 7:00 a.m., was struck down not because it attempted to regulate cumulative noise levels, but because the County enacted the restriction without considering noise data, the restriction adversely impacted the flow of interstate commerce and represented an unlawful police power regulation, and it violated the County’s grant assurance requirement to make its airport available for public use on fair and reasonable terms and without unjust discrimination.

[58] See FAA Order 5190.6A, Sec. 5-6.

[59] These include: (1) assigning, maintaining, and enhancing safety and security as the highest priorities in air commerce; (2) regulating air commerce in a way that best promotes safety and fulfills national defense requirements; developing civil aeronautics, including new aviation technology; (4) controlling the use of the navigable airspace and regulating civil and military operations in that airspace in the interest of the safety and efficiency of both of those operations; (5) consolidating research and development for air navigation facilities and the installation and operation of those facilities; and (6) developing and operating a common system of air traffic control and navigation for military and civil aircraft.

[60] See 14 C.F.R. Parts 71, 73, 77, 91, 93, 95, and 97.

[61] See 14 C.F.R. Parts 21-43, 61-67, 91, 121 through 147.

[62] 49 U.S.C. § 44715(b)(3), (4).

[63] 34 Fed. Reg. 18355 (1969). [64] 38 Fed. Reg. 29569 (1973).

[65] These criteria include consideration of whether the project is consistent with plans (existing at the time the project is approved) of public agencies authorized by the State in which the airport is located to plan for the development of the area surrounding the airport.

[66] FAA Exhibit 1, Item 35.

[67] ASNA directed FAA to issue regulations which would (1) establish a single system of noise measurement to be uniformly applied in measuring noise at airports and in surrounding areas for which there is a highly reliable relationship between projected noise and surveyed reaction of people to noise; (2) establish a single system for determining the exposure of individuals to noise which results from the operations of an airport; and (3) identify land uses which are normally compatible with various exposures of individuals to noise.

[68] In 1990, Congress amended the Anti-Head Tax Act (codified within the Federal Aviation Act) to authorize FAA to approve collection and use of PFCs by public agencies. Public agencies that control commercial service airports may, subject to FAA approval, receive passenger facility charges collected from enplaning passengers using the airport, and use these charges for airport development or noise abatement projects. PFCs may be used, among other things, to finance remedial measures that would qualify for AIP funding if included in an approved airport noise compatibility program. The PFC program has assumed increasing importance in providing revenue for noise as well as capacity-enhancing projects.

[69] FAA Exhibit 1, Item 37.

[70] FAA Exhibit 1, Item 38, Grant History Report, AIP Noise Projects for the State of Florida.

[71] The Airport Noise and Capacity Act of 1990 (ANCA), 49 U.S.C. § 47521, et seq., required the phase out of Stage 2 civil subsonic turbojet aircraft over 75,000 pounds maximum gross takeoff weight, required a national noise policy to be implemented in consideration of local interests, and required a final rule establishing procedures for reviewing airport noise and access restrictions on operations of Stage 2 and Stage 3 aircraft. The latter requirement was implemented by the FAA at 14 C.F.R. Part 161, and applies to new or amended [66] FAA Exhibit 1, Item 35.

[67] ASNA directed FAA to issue regulations which would (1) establish a single system of noise measurement to be uniformly applied in measuring noise at airports and in surrounding areas for which there is a highly reliable relationship between projected noise and surveyed reaction of people to noise; (2) establish a single system for determining the exposure of individuals to noise which results from the operations of an airport; and (3) identify land uses which are normally compatible with various exposures of individuals to noise.

[68] In 1990, Congress amended the Anti-Head Tax Act (codified within the Federal Aviation Act) to authorize FAA to approve collection and use of PFCs by public agencies. Public agencies that control commercial service airports may, subject to FAA approval, receive passenger facility charges collected from enplaning passengers using the airport, and use these charges for airport development or noise abatement projects. PFCs may be used, among other things, to finance remedial measures that would qualify for AIP funding if included in an approved airport noise compatibility program. The PFC program has assumed increasing importance in providing revenue for noise as well as capacity-enhancing projects.

[69] FAA Exhibit 1, Item 37.

[70] FAA Exhibit 1, Item 38, Grant History Report, AIP Noise Projects for the State of Florida.

[71] The Airport Noise and Capacity Act of 1990 (ANCA), 49 U.S.C. § 47521, et seq., required the phase out of Stage 2 civil subsonic turbojet aircraft over 75,000 pounds maximum gross takeoff weight, required a national noise policy to be implemented in consideration of local interests, and required a final rule establishing procedures for reviewing airport noise and access restrictions on operations of Stage 2 and Stage 3 aircraft. The latter requirement was implemented by the FAA at 14 C.F.R. Part 161, and applies to new or amended noise and access restrictions that affect Stage 2 and Stage 3 aircraft operations. See 49 U.S.C. § 47524(b) and (c); 14 C.F.R. § 161.3(a). Under ANCA, before a restriction that affects Stage 2 aircraft may be found to be in compliance with ANCA by FAA, the airport sponsor proposing it must comply with Subpart C of Part 161. The requirements for a Stage 2 restriction proposal include an extensive consultation and notice process and a study of the proposal and alternatives in a cost-benefit analysis. Either Subpart B or D of Part 161 must be satisfied if the restriction affects Stage 3 aircraft. This includes, for Subpart D, Federal approval of the restriction proposal and completion of any required environmental analysis. The FAA reviews a Stage 2 restriction proposal to determine if the requirements of the analysis and consultation processes were satisfied, for purposes of compliance with ANCA. The FAA is not required to approve the Stage 2 restriction under Part 161; it must approve a Stage 3 restriction before it can be imposed. The penalty for violation of Part 161 is rescission of Federal grants-in-aid and authority to collect passenger facility charges.

[72] The final element of the national noise policy was the provision of another source of funds eligibility (the PFC program) conditioned upon compliance with the national program for review of airport noise and access restrictions on Stage 2 or Stage 3 aircraft.

[73] As directed by ANCA, section 47525, the FAA concluded after careful study that Part 161 should cover operations by all Stage 2 aircraft, including those weighing less than 75,000 pounds that are not subject to the phase out requirement. ANCA, as implemented by Part 161, provides that airports must give 180 days notice and an opportunity for public comment on a cost-benefit analysis concerning proposals to restrict operations by Stage 2 aircraft. Proposals to restrict operations by Stage 3 aircraft must (1) be agreed upon by the airport and all users at the airport or (2) meet specific requirements and be approved by FAA.

[74] 49 U.S.C. § 47502.

[75] 14 C.F.R. § 150.9(b); id., App. A, Table 1. DNL is an energy-averaged A-weighted sound level measured over a 24-hour period. The Federal Interagency Committee on Noise (FICON) — which included representatives from the FAA; EPA; the Departments of Defense, Housing and Urban Development, Veterans Affairs, and Justice; and the Council on Environmental Quality — recommended the continued use of DNL “as the principal means for describing long-term noise exposure for civil and military aircraft operations.” FAA Exhibit 1, Item 21, “Federal Agency Review of Selected Airport Noise Analysis Issues” (FICON, 1992) p.3-1. In support of this recommendation, FICON noted that “no other metrics are of sufficient scientific standing to replace DNL,” and DNL “continues to be the superior metric to account for variations in the noise environment . . . .” Id. The FAA’s identification of residential land use as compatible with noise levels below DNL 65 dB (see 14 C.F.R. Part 150, App. A, Table 1) is based on studies of noise-induced annoyance and is consistent with land-use compatibility recommendations of the Federal Interagency Committee on Urban Noise (FICUN), which consisted of representatives from EPA; the Veterans Administration; and the Departments of Transportation, Housing and Urban Development, and Defense. 46 Fed. Reg. 8316, 8325 (1981) (preamble to Part 150 interim rule); “Guidelines for Considering Noise in Land Use Planning and Control” (FICUN, 1980) at Table 2. For the purpose of compliance with Part 150, all land uses are considered to be compatible with noise levels below DNL 65 dB. 14 C.F.R. App. A, § A150.101(d). Although “[l]ocal needs or values may dictate further delineation,” such delineation must be “based on local requirements or determinations.” Id.

With respect to airport noise and access restrictions, although airport operators have flexibility in defining the “airport noise study area” (ANSA) for purposes of the analysis required by 14 C.F.R. Part 161, extension of the ANSA outside the DNL 65 dB contour must be justified by “reasonable circumstances.” See FAA Exhibit 1, Item 3, Notice and Approval of Airport Noise and Access Restrictions, Final Rule, 14 C.F.R. Part 161, Federal Register Notice, September 25, 1991, 56 Fed. Reg. 48661, 48669-70 (preamble to Part 161 final rule). As the FAA has stated in correspondence with the NAA , “no airport access restriction has previously been approved based solely on the existence of residential areas outside the DNL 65 dB contour.” FAA Exhibit 1, Item 19 (h), p.2.

[76] 49 U.S.C. §§ 47503-47505.

[77] 49 U.S.C. § 47504(a)(2).

[78] 14 C.F.R. Part 150, App. B, § B150.7(b).

[79] 14 C.F.R. Part 150, App. B, § B150.5.

[80] See, e.g., Advisory Circular 150/5020-1, “Noise Control and Compatibility Planning for Airports” (1983), ¶ 1.

[81] 49 Fed. Reg. 49260, 49263-64 (1984). 82 14 C.F.R. § 161.211.

[83] 56 Fed. Reg. 8644, 8650 (February 28, 1991).

[84] 56 Fed. Reg. 48681(1991). See also FAA Exhibit 1, Item 40, Aviation Noise Abatement Policy 2000 (proposed policy document), July 14, 2000, 43802, 43809 (2000) “the FAA encourages [airport proprietors proposing noise and access restrictions] to integrate the required Part 161 analysis into a Part 150 planning process which first analyzes nonrestrictive measures to mitigate noise, and then analyzes the proposed restriction”.

[85] The FAA has decided that it is not necessary to reach this issue in this proceeding.

[86] FAA Exhibit 1, Item 2, p. 11.

[87] FAA Exhibit 1, Item 2, p. 6.

[88] In Chevron, the Supreme Court examined both the language and legislative history of the Clean Air Act to determine congressional intent. Id. at 845.

[89] 49 U.S.C. § 47524(a).

[90] As originally enacted, section 9304(h) stated, in pertinent part, that “[e]xcept to the extent required by the application of the provisions of this section, nothing in this subtitle shall be deemed to eliminate, invalidate, or supersede . . . existing law with respect to airport noise or access restrictions by local authorities . . . . Pub. L. No. 101-508, § 9304(h), 104 Stat. 1388-382 (1990). When Congress recodified Title 49 of the United States Code in 1994, this provision was revised to read as follows: “Except as provided by section 47524 of this title, this subchapter does not affect . . . law in effect on November 5, 1990, on airport noise or access restrictions by local authorities . . . .” 49 U.S.C. § 47533. Congress made clear that it did not intend this revision to have any substantive effect. See Pub. L. No. 103-272, § 6, 108 Stat. 1378-79 (1994).

[91] 49 U.S.C. § 47107(a)(1). This requirement is implemented through Grant Assurance 22.

[92] 56 Fed. Reg. 8644, 8655-56 (1991).

[93] Id. at 48662. See also id. at 8647 (“Determinations and actions by the Administrator under [part 161] would not constitute determinations or actions with respect to an airport’s compliance status under specific grant agreements, or preclude the Administrator from responding to complaints involving grant compliance.”); id. at 8649 (ANCA “maintains the existing authority (and limitations thereon) and discretion of airport operators to restrict the operation of Stage 2 aircraft.”) (emphasis added); id. at 8650 (FAA solicitation of public comment on whether an airport proposing a restriction on Stage 2 aircraft operations should be required to explain explicitly why the restriction is not unreasonable, arbitrary, or discriminatory; an undue burden on interstate or foreign commerce; or an undue burden on the national aviation system, “since these are among the grounds for FAA legal action”). Also pertinent in this regard is a letter dated April 1, 1991, from James Busey, Administrator of the FAA, to Senator Frank Lautenberg in which Mr. Busey stated that “except for the specific responsibilities imposed on airport proprietors by [ANCA], that legislation did not change previous substantive legal requirements affecting the authority of airport proprietors to limit Stage 2 aircraft operations to control noise.” 138 Cong. Rec. S5880 (April 30, 1992). Mr. Busey’s letter also made specific reference to continuing grant obligations, stating that “[t]hese obligations are imposed pursuant to applicable airport grant legislation and are an important aspect of the limitations on an airport sponsor’s authority to control airport access.” Id. The FAA reiterated its interpretation of 49 U.S.C. 47533 in its Proposed Aviation Noise Abatement Policy 2000, 43802, 43814, 43817-18. See FAA Exhibit 1, Item 40.

[94] 49 U.S.C. § 47533.

[95] These grant assurances were originally enacted in 1982. Pub. L. No. 97-248, § 511(a)(1), 96 Stat. 686 (1982).

[96] The requirements in ANCA relating to local noise and access restrictions on operations by Stage 3 aircraft incorporate the applicable grant assurance requirements. See 49 U.S.C. § 47524(c)(2).

[97] The text of section 9304(h) of ANCA as enacted, the predecessor to 49 U.S.C. § 47533(1), compels the same conclusion. Section 9304(h) provided:

Except to the extent required by the application of the provisions of this section, nothing in this subtitle shall be deemed to eliminate, invalidate, or supersede . . . existing law with respect to airport noise or access restrictions by local authorities . . . .

104 Stat. 1388-382 (1990). Section 9304 also contained the new requirements for Stage 2 restrictions that were recodified in 49 U.S.C. § 47524. Nothing in section 9304 or its application required that the provisions of ANCA relating to Stage 2 restrictions be deemed to supersede the grant assurance requirements in 49 U.S.C. § 47107(a).

[98] See 49 U.S.C. § 47521(2) (“community noise concerns have led to uncoordinated and inconsistent restrictions on aviation that could impede the national air transportation system”).

[99] See id.

[100] The FAA recognizes that ANCA effectively supersedes preexisting requirements relating to noise and access restrictions on Stage 3 aircraft, in the sense that these requirements are incorporated into the six conditions for FAA approval in 49 U.S.C.§ 47524(c)(2). This is entirely consistent with Congress’ stated concern in 49 U.S.C. § 47521(2), as it does not remove any preexisting requirements applicable to noise or access restrictions on Stage 3 aircraft.

[101] Pub. L. No. 101-508, Title IX, Subtitle D, 104 Stat. 1388-378 (1990).

[102] See 136 Cong. Rec. S15868 (Oct. 18, 1990).

[103] See id. at S15875 (§ 3202(b) of the H.R. 5835, as amended by the Senate).

[104] Id. (emphasis added).

[105] 136 Cong. Rec. H12534-35 (Oct. 26, 1990).

[106] During the Senate debate on the Conference Report, the following colloquy occurred between Senator Lautenberg and Senator Ford, chairman of the Aviation Subcommittee:

Mr. LAUTENBERG. With regard to the modified proposal, I ask the Senator from Kentucky if he would confirm these points to be true: * * *

Second, that, under this proposal, an airport operator would be allowed to impose restrictions on Stage 2 operations, without the approval of the FAA, and without risking the loss of AIP money.

* * *

Mr. FORD. The Senator is correct on each of those points.

[107] Under the House bill (H.R. 5835), FAA approval of both restrictions on Stage 3 aircraft and restrictions on Stage 2 aircraft under 75,000 pounds was subject to the same conditions as FAA approval of Stage 3 restrictions under ANCA as enacted. See 49 U.S.C. § 47524(c)(2).

[108] In section 9305 of ANCA (recodified at 49 U.S.C. § 47525), Congress directed the FAA to determine by a study the applicability of subsections (a), (b), (c), and (d) of section 9304 of the Act (recodified at 49 U.S.C. § 47524).

[109] In the preamble to the final Part 161 rule, for example, the FAA noted that for restrictions on Stage 2 operations ANCA “only requires that airports provide for notice and comment, and does not mandate an evaluation of, or response to, the comments. However, . . . the FAA will consider these commenters’ opinions in determining whether to consider action against a restriction that is alleged to be unreasonable, an undue burden, or discriminatory.” 56 Fed. Reg. 48,661, 48678 (Sept. 25, 1991).

This works differently in the context of operations by Stage 3 aircraft, where in order to apply the requirements of ANCA, which duplicate the existing criteria under ASNA and other federal laws as part of FAA approval, ANCA does supersede or replace existing law, including the identical requirements under grant assurances. Thus, once the FAA approves a restriction on Stage 3 operations, there is no further AIP grant review.

[110] See 49 Fed. Reg. 49260, 49263 (1984) (“[t]he FAA . . . views Part 150, or a process similar to it (whether or not the process is approved by the FAA), as setting forth the kind of rational decision-making procedure that is appropriate to meet the test of reasonableness . . . .”); Aviation Noise Abatement Policy (1976), p. 59 (“notification of a proprietary use restriction should occur after and be accompanied by a detailed description of the alternative noise reduction techniques the proprietor has considered and the reasons supporting the adoption of the restriction in question instead of any other alternatives”). See also U.S. v. County of Westchester, 571 F.Supp. 786 (S.D.N.Y. 1983) (finding a nighttime curfew unlawful based on lack of supporting analysis).

[111] See Memorandum in Support of Defendant’s Motion for Summary Judgment in NBAA v. City of Naples Airport Authority, Case No. 2:00-CV-572-ftm-29d.

[112] In section 9305 of ANCA (recodified at 49 U.S.C.§ 47525), Congress directed the FAA to determine by a study the applicability of subsections (a), (b), (c), and (d) of section 9304 of the Act.

[113] Study of the Application of Notice and Analysis Requirements to Operating Noise/Access Restrictions on Subsonic Jets Under 75,000 Pounds (FAA Office of Environment and Energy, 1991), p. 11 (emphasis in original).

[114] 49 U.S.C. § 41713(b)(3).

[115] See also 49 U.S.C. §§ 47101(a)(9) (stating the “policy of the United States” that “artificial restrictions on airport capacity . . . should not discriminate unjustly between categories and classes of aircraft”) and 47101(d) (“Each airport and airway program should be carried out consistently with section 40101(a), (b), (d), and (f) of this title to . . . prevent umjust and discriminatory practices, including as the practices may be applied between categories and classes of aircraft.”) Prior to the 1994 recodification of Title 49 of the U.S. Code in Pub. L. No. 103-272, the Airport and Airway Improvement Act of 1982, as amended, provided that “all airport and airway programs should be administered in a manner consistent with the provisions of sections 102 and 103 of the Federal Aviation Act of 1958, with due regard for the goal[] expressed therein of . . . preventing unjust and discriminatory practices, including as they may be applied between category and class of aircraft” and that “artificial restrictions on airport capacity are not in the public interest . . . and should not unjustly discriminate between categories and classes of aircraft . . . .” 49 U.S.C. App. § 2201(a)(5), (13) (Supp. II 1991) (emphasis added). The italicized language was added in the Aviation Safety and Capacity Expansion Act of 1990, which was enacted as a subtitle of the same title of the Omnibus Budget Reconciliation Act of 1990 that included ANCA. See Pub. L. No. 101-508, Title IX, Subtitle V, 104 Stat. 1388, 1388-353 (1990). In explaining this language, the House Committee on Public Works and Transportation stated that it “make[s] clear that it is Congress’ intent that unjust and discriminatory practices are prohibited with respect to all classes of users and that the prohibition is particularly meant to protect the rights of small aircraft users.” H.R. Rep. No. 101-581, at 23 (1990).

[116] FAA Exhibit 1, Item 19(h), (i), (j).

[117] See FAA Exhibit 1, Item 19 (c), (e), (f), (h), (i), and (j).

[118] FAA Exhibit 1, Item 1(b), Letter from Mr. Paul Galis, Deputy Associate Administrator for Airports, to Mr. Theodore D. Soliday, and topical comments, October 31, 2001.

[119] Id.

[120] NBAA’s Web Site, http://www.nbaa.org/aboutnbaa/.

[121] NBAA’s mission is

[t]o promote the aviation interests of corporations, in the United States and its possessions, operating aircraft as an aid to the conduct of their businesses; to foster among them the highest degree of operational efficiency and safety; to bring Members into closer personal and friendly relations with each other; to interchange ideas on operational matters; to advance and maintain an enlightened understanding on the part of government and airport authorities of Member problems; to take such steps as are proper and necessary in order to promote better relations and secure proper advantages from regulatory and other agencies, and by these means to attain wider recognition of the fact that business aviation is of primary importance to the economy of the nation.

[122] The General Aviation Manufacturers Association (GAMA) filed suit along with NBAA. GAMA sued on behalf of suppliers of aircraft services for Stage 2 aircraft at Naples Airport (e.g., fuel, repairs). NBAA v. Naples Airport Authority, 162 F. Supp. 2d 1343, 1345-1346 (M.D. Fla. 2001).

[123] Wright and Miller discuss various decisions in which courts have checked any expansion of the doctrine of virtual representation. In addition to Pollard v. Cockrell, 578 F.2d 1002 (5 th Cir. 1978), “[s]everal other decisions as well have refused to adopt any general rule that a nonparty may be precluded from relitigating issues that have been lost after vigorous advocacy by a party who seems to hold interests identical to the interests of the nonparty.” 18 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 4457 (1981), p. 500.

[124] As indicated in the FAA’s NOI, another issue is whether the NAA has a proprietary interest in reducing noise from aircraft using the airport, such that the Stage 2 ban is not preempted by Federal law. However, NBAA did not make this argument in its litigation.

[125] There is no private right of action under the Airport and Airway Improvement Act of 1982, as amended, 49 U.S.C. §47101 et seq. Arrow Airways, Inc. v. Dade County, 749 F.2d 1489 (11 th Cir. 1985); Four T’s, Inc. v. Little Rock Municipal Airport Commission, 108 F.3d 909 (8 th Cir. 1997).

[126] The FAA, rather than NBAA or GA MA, has a substantial and indisputable interest in ensuring that airports comply with the conditions imposed on them by Federal laws and grant agreements. The FAA alone has a statutory mandate to ensure that airport sponsors comply with the grant assurances. See, 49 U.S.C. 47101, et seq. The FAA’s statutory responsibility to ensure airport compliance with Federal aviation laws and grant assurances and to protect the public interest is independent of the interests of any particular air carrier, airport user, or aviation association. See, New England Legal Foundation v. Massachusetts Port Authority, 883 F.2d 157, 172-173 (1 st Cir. 1989) (discussing FAA’s primary role in administering and ensuring compliance with grant assurances). This federal scheme regulating airport grant compliance is “designed in part to insure the maintenance of conditions essential to an efficient national air transportation system, including access to airports on a reasonable and nondiscriminatory basis.” Arapahoe County Public Airport Authority v. FAA, 242 F.3d 1213 (10 th Cir. 2001), quoting City & County of San Francisco v. FAA, 942 F.2d 1391, 1395 (9 th Cir. 1991), cert. denied, 503 U.S. 983 (1992).

[127] Under principles of comity, courts of one state or jurisdiction will give effect to laws and judicial decisions of another state or jurisdiction, not as a matter of obligation but out of deference and respect. Blacks Law Dictionary 267 (6 th ed. 1990).

[128] In Federal Reserve Bank, because a federal reserve bank had an “unfettered” statutory right to defend in federal court, the district court lacked discretion to remand the case back to state court on the basis of comity.

[129] FAA Exhibit 1, Item 19 (f).

[130] FAA Exhibit 1, Item 2, p. 23.

[131] See 14 C.F.R. Part 16.229 (a) & (b).

[132] 14 C.F.R. 16.229(b).

[133] 14 C.F.R. 16.229(c).

[134] FAA Exhibit 1, Item 2, p. 21-22.

[135] On January 18, 2001, during a NAA public meeting, representatives from the FAA addressed the issue of the relevance of the Stage 1 ban with regards to the grant assurances and the then proposed Stage 2 ban. One of the NAA commissioners asked the following question: “Okay, a question about the concern about grant assurances for Stage 2. It comes to mind was this a consideration for the Stage 1 ban?” In response, Mr. Bennett of the FAA [Director, Office of Airport Safety and Standards] stated:

It was and it is actually kind of helpful to note the differences there because, yes, certainly the airport had the same obligation for access. And we looked at whether this was a reasonable access restriction. But I did take a quick look at the approval of the Stage 1 yesterday. There the airport had no Stage 1 based aircraft. They were only transient. The national fleet of all Stage 1 aircraft was somewhere in the nature of 50, I think. It was a tiny portion. It was a very low probability that any would come through. More importantly, it went to solve compatible use for residential areas above 65 DNL. So it did solve a problem that is already recognized under the longstanding and conventional federal guidelines. And for those reasons, because ANCA doesn’t really protect or regulate Stage 1 aircraft, they are gone from that standpoint. There wasn’t the level of federal preemption there that there is here. And all of those things were considered and a few more. But each one of the things was kind of very carefully analyzed and went into the decision. And all of those things come out differently when you look at the Stage 2. So having it done before is not necessarily precedent for this.

[137] NAA data, FAA Exhibit 1, Item 14, Naples Municipal Airport, FAR Part 150 Noise Exposure Map Update, November 2000, p. 23. FAA estimates also approximate this number, but it is valid for turbojet only. It does not include other Stage 2 aircraft such as turboprop and helicopters.

[138] NAA data estimated the number of Stage 2 jets at 2,000. See FAA Exhibit 1, Item 14, Naples Municipal Airport, FAR Part 150 Noise Exposure Map Update, November 2000, Appendix C, p. 23. FAA estimates also approximate this number. We note that there are approximately 7,000 turbojets in the general aviation and air taxi fleet. NBAA data, Aircraft Owners and Pilots Association 2000 Aviation Fact Card and FAA Aerospace Forecasts, FY 2002-2013, General Aviation and Air Taxi Activity Survey, Calendar Year 2000.

[139] As explained in the next section of this Determination, while it is reasonable to presume an airport proprietor’s potential liability at noise levels above DNL 65 dB, there is no similar basis for this presumption at lower noise levels.

[140] While some airplanes that have not been required to demonstrate compliance with 14 C.F.R. Part 36 can be designated as Stage 1, this does not mean that some of these airplanes would not meet the Stage 2 or 3 standard.

[141] FAA Exhibit 1, Item 2, p. 20.

[142] FAA Exhibit 1, Item 2, p. 9.

[143] FAA Exhibit 1, Item 2, p. 9.

[144] San Diego Unified Port District v. Gianturco, 651 F.2d 1306, 1314 (9 th Cir. 1981), cert. denied sub nom. Department of Transportation v. San Diego Unified Port District, 455 U.S. 1000 (1982), citing S. Rep. No. 1353, 90 th Cong., 2d Sess. 7 (1968), reprinted in 1968 U.S. Code Cong. & Admin. News 2698, 2694. For example, local jurisdictions are not prevented by Federal preemption principles to control the effects of aircraft noise through the exercise of land use planning and zoning powers.

[145] See, e.g., City of Burbank v. Lockheed Air Terminal, 411 U.S. 624 (1973).

[146] See, e.g., Gianturco, 651 F.2d at 1316-17.

[147] See section VI.A of this Determination.

[148] 14 C.F.R. Part 150, Appendix A, Table 1.

[149] 411 U.S. 624 (1973).

[150] The United States Government has exclusive sovereignty over the airspace of the United States. 49 U.S.C. 40103(a). The Congress has provided extensive and plenary authority to the FAA concerning the efficient use and management of the navigable airspace, air traffic control, air navigation facilities, and the safety of aircraft and persons and property on the ground. 49 U.S.C. 40103(b)(1) and (2). In legal terms, the FAA has preempted the areas of airspace use and management, air traffic control, and aviation safety. Congress foresaw that local regulation of airspace use and the sources of aviation noise would severely limit the flexibility of the FAA in controlling air traffic flow and would increase congestion, cause a loss of efficiency, and aggravate the noise problem. Federal law and policy continues to confirm that State and local police power regulation of aircraft noise is Federally preempted when it impinges on airspace management, aircraft flight, or operations.

[151] Other Federal courts, such as the Eleventh Circuit Court of Appeals, have described the Burbank decision as “invalidat[ing] ordinances which placed a curfew on jet flights on the basis that pervasive federal regulation gave the Federal Aviation Administration and the Environmental Protection Agency exclusive responsibility for noise control at airports.” Pirolo v. City of Clearwater, 711 F.2d 1006, 1009 (11 th Cir. 1983), reh’g denied, 720 F.2d 688 (11th Cir. Fla. 1983).

[152] 411 U.S. at 638.

[153] Id. at 639.

[154] 411 U.S. at 635-636, n. 14.

[155] See, e.g., San Diego Unified Port District v. Gianturco, 651 F.2d 1306, 1314 (9 th Cir. 1981), cert. denied sub nom. Department of Transportation v. San Diego Unified Port District, 455 U.S. 1000 (1982); British Airways Board v. Port Authority of New York and New Jersey, 558 F.2d 75, 84 (2d Cir. 1977), aff'd, as modified, 564 F.2d 1002 (2d Cir. 1977).

[156] 369 U.S. 84 (1962).

[157] Gianturco, 651 F.2d at 1316-17.

[158] Gianturco, 651 F.2d at 1319.

[159] E.g., National Helicopter Corp. of America v. City of New York, 137 F.3d 81 (2d Cir. 1998); Santa Monica Airport Association v. City of Santa Monica, 659 F.2d 100, 103 (9th Cir. 1981); British Airways Board v. Port Authority of New York and New Jersey, 558 F.2d 75 (2d Cir. 1977); and Alaska Airlines, Inc. v. City of Long Beach, 951 F.2d 977 (9 th Cir. 1992). See FAA Exhibit 1, Item 2, p. 10.

[160] Aircraft Noise Abatement Regulation: Hearing before the Aviation Subcomm. of the Committee on Commerce, 90 th Cong., 2d Sess. 28 (1968).

[161] Id. at 28-29.

[162] Id. at 29.

[163] S. Rep. No. 1353, 90 th Cong., 2d Sess. 6 (1968), reprinted in 1968 U.S. Code Cong. & Admin. News, pp. 2688, 2393-2694.

[164] Id.

[165] S. Rep. No. 1353, 90 th Cong., 2d Sess. 7 (1968), reprinted in 1968 U.S. Code Cong. & Admin. News, pp. 2688, 2393-2694.

[166] 369 U.S. at 89.

[167] S. Rep. No. 1353, 90 th Cong., 2d Sess. 7 (1968), U.S. Code Cong. & Admin. News 1968, pp. 2688, 2393-2694.

[168] Id.

[169] The Supreme Court held a municipal airport owner liable for a "taking" of private property resulting from overflights of the property by aircraft using the airport. The proprietor, the Court noted, planned the location of the airport and the direction and length of the runways, and had the ability to acquire more land around the airport. From this control flowed the liability, based on the constitutional requirement of just compensation for property taken for a public purpose. The Court concluded: "[r]espondent in designing [the airport] had to acquire some private property. Our conclusion is that by constitutional standards it did not acquire enough." 369 U.S. at 90. The role of the proprietor described by the Court remains the same today. See also Pirolo v. City of Clearwater, 711 F.2d 1006, 1009 (11 th Cir. 1983), reh’g denied, 720 F.2d 688 (11th Cir. Fla. 1983); Santa Monica Airport Association v. City of Santa Monica, 659 F.2d 100, 103 (9th Cir. 1981).

[170] S. Rep. No. 1353, 90 th Cong., 2d Sess. 6, reprinted in 1968 U.S. Code Cong. & Admin. News, p. 2393.

[171] This section prohibits state or local governments from enacting or enforcing a law or regulation “related to a price, route, or service of an air carrier but reserves the state’s authority to carry out its “proprietary powers and rights.” See also Department of Transportation regulation 14 C.F.R. 399.110, “State economic regulation of federally authorized carriers prohibited.” This regulation similarly states that an airport owner’s conduct is not preempted as an exercise of its proprietary powers when such exercise is reasonable, nondiscriminatory, nonburdensome to interstate commerce, and designed to accomplish a legitimate State objective in a manner that does not conflict with the provisions and policies of the aviation provisions of Title 49 of the United States Code. 14 C.F.R. 399.110(f).

[172] 411 U.S. at 634-41.

[173] As discussed in the Background section of this determination, the FAA has determined, consistent with the Aviation Safety and Noise Abatement Act of 1979 (ASNA), that residential land use is normally not compatible with noise levels greater than DNL 65 dB. See 14 C.F.R. Part 150, Appendix A, Table 1. Similarly, the Department of Housing and Urban Development (HUD) has established a “site acceptability standard” of DNL 65 dB. 24 C.F.R. § 51.103.

[174] The DNL 65 dB residential land use compatibility threshold has been acknowledged in several court cases. For example, in City of Bridgeton v. FAA, 212 F.3d 448, 460 (8 th Cir. 2000), reh’g denied, 2000 U.S. App. LEXIS 13701, cert. denied, 531 U.S. 1111 (2001), the Eighth Circuit stated:

The FAA’s guidelines for determining significant noise impact are found in the Part 150 Noise Compatibility Program, 14 C.F.R. §§ 150, et seq. These guidelines were developed to satisfy the mandate that the agency “establish a single system of measuring noise” that can be uniformly applied at airports and surrounding areas. 49 U.S.C. § 47502(1). * * * The land use compatibility table [14 C.F.R. Part 150, Appendix A, Table 1] provides that all the listed categories of use are compatible with [a DNL] below 65 dB “without restrictions.” The “implicit conclusion” is that an average noise level below [DNL] 65 dB would not amount to a “use” of any property whose protected use is fairly encompassed by the compatibility table. Allison v. DOT, 908 F.2d at 1029; accord, City of Grapevine v. Department of Transportation., 17 F.3d 1502, 1507-1508 (D.C. Cir), cert. denied, 513 U.S. 1043 (1994); Communities, Inc. v. Busey, 956 F.2d 619, 623-25 (6 th Cir.), cert. denied, 506 U.S. 953 (1992).

[175] FAA Exhibit 1, Item 2, Attachment 15 (Part 161 Supplemental Analysis), p. 16.

[176] FAA Exhibit 1, Item 2, Attachment 15 (Part 161 Supplemental Analysis), p. 11.

[177] Id.

[178] Id.

[179] FAA Exhibit 1, Item 2, Attachment 6 (History of Noise Compatibility Efforts for Naples Municipal Airport, October 2000), p. 9-10 and Tab 8.

[180] FAA Exhibit 1, Item 2, Attachment 15 (Part 161 Supplemental Analysis), p. 13.

[181] FAA Exhibit 1, Item 2, Attachment 15 (Part 161 Supplemental Analysis), p. 13.

[182] FAA Exhibit 1, Item 2, Attachment 15 (Part 161 Supplemental Analysis), p. 13.

[183] 11 Cl. Ct. 352 (Ct. Cl. 1986).

[184] 34 Fed. Cl. 187 (1995).

[185] 220 Cal. App. 3d 1602 (1990).

[186] 34 Fed. Cl. at 201.

[187] See FAA Exhibit 1, Item 21, Page A-3.

[188] 220 Cal. App. 3d at 1607.

[189] 220 Cal. App. 3d at 1608, n.2.

[190] FAA Exhibit 1, Item 2, Attachment 15 (Part 161 Supplemental Analysis), p. 14.

[191] FAA Exhibit 1, Item 2, Attachment 15 (Part 161 Supplemental Analysis), p. 14.

[192] Fields v. Sarasota-Manatee Airport Authority, 512 So.2d 961, 964 (Fla.App. 1987).

[193] FAA Exhibit 1, Item 2, Attachment 15 (Part 161 Supplemental Analysis), p. 35.

[194] FAA /14/2000, FAA Exhibit 1, Item 2, Attachment 3 (Naples Municipal Airport Part 161 Study), p. 80.

[195] FAA Exhibit 1, Item 2, Attachment 15 (Part 161 Supplemental Analysis), p. 14. [196] St. Lucie County v. Town of St. Lucie Village, 603 So.2d 1289, 1293 (Fla.App. 1992), quoting Brooks v. Patterson, 159 Fla. 263, 31 So.2d 472 (1947).

[197] 166 So.2d 196 (Fla. Dist. Ct. App. 1 st Dist., June 9, 1964; reh’g denied Aug. 5, 1964).

[198] The court stated, in reference to the plaintiff’s airport restaurant,

[i]t appears to be well settled that if one voluntarily elects to live in an industrial area, he cannot complain of noise, noxious odors or any other unpleasant factors that may arise from the normal operation of businesses in the area merely because they may interfere with his personal satisfaction or aesthetic enjoyment. It is said that no one can move into an area given over to foundries and boiler shops and demand the quiet of a farm.

166 So. 2d at 203.

people who establish a business on property adjoining an airport do so with the knowledge that changes and improvements are being, and will long continue to be, made in aircraft using the airport, requiring different flight patterns and different procedures in warm-up, take-off, and landing in the interest of the safety of the human lives aboard the planes; that the national and international airlines serving the airport must, in this highly competitive field, utilize the latest advancements in air transport, including jet aircraft, in order to stay in business and continue to serve the public in the community and throughout the nation. The adjoining landowners, then, may have to make some “compromises” and to be “generally compensated by the advantages incident to living in a civilized state.”

[199] FAA Exhibit, Item 2, Attachment 15 (Part 161 Supplemental Analysis), pp. 15-16.

[200] FAA Exhibit 1, Item 2, p. 9.

[201] Id.

[202] The NAA advises on page 9, footnote 2 of its Reply that it disputes the validity of the term “proprietary exception.” The Authority argues that an airport proprietor’s right to restrict aircraft is “not an exception to anything but rather a right that Congress has engrained in the framework of aviation statutory law.” We disagree. Under the Federal statutory and regulatory framework, “states and localities cannot regulate noise by controlling the flight of aircraft taking off or landing at local airports, for this method of regulating noise control is to be exercised exclusively by the federal government.” Global International Airways v. Port Authority of New York and New Jersey, 727 F.2d 246, 248 (2d Cir. 1984). This is the general rule. As an exception to the general rule, airport proprietors have limited powers to establish requirements as to the level of permissible noise created by aircraft using their airport. As stated in the latest iteration of the DOT Aviation Noise Abatement Policy (an update of the 1976 DOT Aviation Noise Abatement Policy, found at 65 Fed. Reg. 43802),

[w]hile the Federal government’s exclusive statutory responsibility for noise abatement through regulation of flight operations and aircraft design is broad, the noise abatement responsibilities of state and local governments, through exercise of their basic police powers, are circumscribed. The scope of their authority has been most clearly described in negative terms, arising from litigation over their rights to act. The chief restrictions on state and local police powers arise from the exclusive Federal control over the management of airspace” in accordance with 49 U.S.C. 40103(b).

“Subsequent to the Burbank decision, the courts have confirmed that Congress has reserved a limited role for local airport proprietors to regulate noise levels at their airports.” Id. at 43816. Numerous Federal courts refer to the proprietors’ “extremely limited role in the system of aviation regulation,” underscoring the fact that their powers are an exception to the general rule of Federal preemption. See, e.g., American Airlines v. City of Dallas, 202 F.3d 788, 804, 806 (5 th Cir. 2000) (“The ADA includes an express preemption provision, § 41713(b)(1), which generally prohibits states from enacting or enforcing a law or regulation ‘related to a price, route, or service of an air carrier.’ 49 U.S.C. 41713(b)(1). At the same time, the ADA reserves the state's authority to carry out its ‘proprietary powers and rights.’ 49 U.S.C. 41713(b)(3) ….”); San Diego Unified Port District v. Gianturco, 651 F.2d 1306, 1316-17 (9 th Cir. 1981) (referring to the “proprietor exception” and explaining that the “rationale for this exception is clear. Since airport proprietors bear monetary liability for excessive aircraft noise under [Griggs], fairness dictates that they must also have power to insulate themselves from that liability.”)

[203] 883 F.2d 157 (1 st Cir. 1989).

[204] 49 U.S.C. § 40116.

[205] 883 F.2d at 173.

[206] AC 150/5020-1, ¶ 306.

[207] Id.

[208] Id., Figure 2.

[209] Id., ¶ 306.

[210] In addition to the complaint filed by the National Business Aircraft Association, similar complaints were filed by the Aircraft Owners and Pilots Association and the Regional Airline Association. As a result, the Secretary concluded that reasonable grounds existed for commencing a formal investigation and issued an Order of Investigation referring the matter to a DOT administrative law judge.