FAA Docket No. 16 - 01-15

[211] FAA Exhibit 1, Item 2, p. 8.

[212] FAA Exhibit 1, Item 2, pp. 1, 15.

[213] 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.

[214] 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.

[215] FAA Exhibit 1, Item 2, p.13.

[216] FAA Exhibit 1, Item 2, p.13.

[217] FAA Exhibit 1, Item 2 pp. 14-20. NAA’s contention, on page 16 of its Part 161 Supplemental Analysis [FAA Exhibit 1, Item 2, Attachment 15], that it is faced with a “credible and identifiable threat of liability from property owners,” and the relationship between liability and the NAA’s authority to impose the Stage 2 ban is addressed in s is addressed in section VI.E.

[218] FAA Order 5190.6A, ¶ 4-8.f. In a report to Congress on the Part 150 program, the FAA addressed these requirements as follows:

The reasonableness of the relationship between the noise problem, the compatible land use goal, and the formulation of the proposed restriction is evaluated by the FAA.

* * *

Part of an undue burden determination relates to having a well substantiated reason to place a burden on air commerce. Under part 150, the reason must be a documented significant noise problem and the contribution to the noise problem of the use proposed to be restricted. There must be a documented noise benefit of the restriction and a showing that the problem, the benefit, and the lack of availability or reasonable applicability of other alternative measures to solve the problem and produce the benefits all justify the burden. The program standard of meeting both local needs and needs of the national air transportation system, to the extent practicable, is also addressed by a balanced comparative analysis of commerce benefits and impacts and noise impacts, benefits, and costs of alternative mitigation.

[219] As stated in the preamble to the final Part 150 rule, the Part 150 process provides an appropriate means to “assure a reasonable, nonarbitrary, and nondiscriminatory result that is consistent with the airport proprietor’s . . . specific duties under applicable airport development grants.” 49 Fed. Reg. 49260, 49264 (1984). See also “Policy on Funding of Combined Part 150 and Part 161 Studies and Analyses,” 61 Fed. Reg. 48727, 48728 (1996) (“The FAA’s part 150 determinations may provide valuable insight to the airport operator regarding the proposed [Stage 2 ] restriction’s consistency with existing laws and the position of the FAA with respect to the restriction.”); 14 CFR Part 161, Notice and Approval of Airport Noise and Access Restrictions, 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, 48681 (same).

[220] 49 U.S.C. § 47502(2), (3).

[221] FAA Exhibit 1, Item 23, codified at 14 C.F.R. Part 150, App. A, Table 1.

[222] “Policy on Funding of Combined Part 150 and Part 161 Studies and Analyses,” 61 Fed. Reg. 48727, 48728 (1996). See also Report to Congress: FAR Part 150, Airport Noise Compatibility Program (November 1988) at 9 (“The program standard of meeting both local needs and needs of the national air transportation system, to the extent practicable, is . . . addressed by a balanced comparative analysis of commerce benefits and impacts and noise impacts, benefits, and costs of alternative mitigation.”); Advisory Circular 150/5020-1 (August 5, 1983), ¶ 3.d.(1) (noting that the noise compatibility program under Part 150 includes a “balanced approach producing realistic and practical solutions fair to both aviation and non aviation interests”).

[223] “Policy on Funding of Combined Part 150 and Part 161 Studies and Analyses,” 61 Fed. Reg. 48727, 48728 (1996). See also FAA Exhibit 1, Item 40, Aviation Noise Abatement Policy 2000 (p roposed policy document), July 14, 2000, 43802, 43809 (2000) (stating that if an airport proprietor proposes a use restriction, “the FAA encourages the proprietor 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”); 14 CFR Part 161, Notice and Approval of Airport Noise and Access Restrictions, 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 (1991) (same); FAA Exhibit 1, Item 24, Report to Congress: FAR Part 150, Airport Noise Compatibility Program (November 1988) at 8-9 (“There must be a documented noise benefit of the restriction and a showing that the problem, the benefit, and the lack of availability or reasonable applicability of other alternative measures to solve the problem and produce the benefits all justify the burden [on commerce].”); FAA Order 1050.11A, “Noise Control Planning,” ¶ 8 (1986) (stating FAA policy under Part 150 that “[a]ll possible measures to reduce noise should be considered before airport restrictions are imposed”); Advisory Circular 150/5020-1, “Noise Control and Compatibility Planning for Airports,” ¶ 326 (1983) (stating that curfews “should be reserved as a strategy of last resort . . . when all other options have been shown to be clearly inadequate”); Aviation Noise Abatement Policy (November 18, 1976) at 59 (airport proprietors should provide a “detailed description” of alternatives considered and reasons supporting adoption of an airport use restriction “instead of any other alternatives”). This approach has also been adopted by the International Civil Aviation Organization (ICAO), of which the United States is a member. See FAA Exhibit 1, Item 20, ICAO Resolution A33-7, adopted at the 33 rd Session of the Assembly, September 25 to October 5, 2001.I (encourages states to “not apply operating restrictions as a first resort”).

The FAA “last resort” policy is also consistent with U.S. Supreme Court precedent regarding local regulations that affect interstate commerce. See Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970) (noting that “the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities”). Although we have not raised the effect of the NAA’s Stage 2 ban on interstate commerce as an issue in this proceeding, we note that “there is no question that a total ban on a category of aircraft in corporate and commercial use throughout the United States has an effect on interstate commerce.” See, FAA Exhibit 1, Item 19 (f), Letter from Paul L. Galis, Deputy Associate Administrator for Airports, to Mr. Eric West, Dated February 16, 2001. Indeed, the record in this proceeding reflects that there were Stage 2 interstate commerce operations into and out of APF at the time the Stage 2 ban was implemented. For example, one of the parties that provided comments to the NAA during the Part 161 comment period was a Stage 2 commercial operator engaged in interstate commerce, FAA Exhibit 1, Item 2, Attachment 8, Tab 2. According to the Naples Daily News, another operator engaged in interstate commerce was fined for landing a Stage 2 jet at Naples Municipal Airport. See, FAA Exhibit 1, Item 4, NY Company Fined For landing Stage 2 at Naples Airport, 04/10/2002.

[224] See, e.g., City and County of San Francisco v. FAA, 942 F.2d 1391, 1395 (9 th Cir. 1991) (“The conditions Congress imposed on the grant to local airport proprietors of money from the Airport and Airway Trust Fund [recodified at 49 U.S.C. § 47107(a)(1)] are designed in part to insure the maintenance of conditions essential to an efficient national air transport system, including access to airports on a reasonable and nondiscriminatory basis.”); British Airways Board v. Port Authority of New Yo rk and New Jersey, 564 F.2d 1002, 1011 (2 d Cir. 1977) (“The maintenance of a fair and efficient system of air commerce, of course, mandates that each airport operator be circumscribed to the issuance of reasonable, nonarbitrary and nondiscriminatory rules defining the permissible level of noise which can be created by aircraft using the airport. We must carefully scrutinize all exercises of local power under this rubric to insure that impermissible parochial considerations do not unconstitutionally burden interstate commerce or inhibit the accomplishment of legitimate national goals.” (Citation omitted.)) In British Airways, the court cited the national goals of “provision of fast, safe, efficient and convenient transportation,” 49 U.S.C. § 1651(a) (recodified at 49 U.S.C. § 101(a)), and “encourag[ing] . . . the development of civil aeronautics and air commerce,” 49 U.S.C. § 1346 (recodified as amended at 49 U.S.C.§ 40101(d)(2), (3)). The latter goal was amended in 1996 to remove the reference to “promoting” civil aeronautics and air commerce. Pub. L. No. 104-264, 110 Stat. 3255 (1996). However, Congress retained the goal of “encouraging and developing civil aeronautics.” 49 U.S.C. § 40101(d)(3). Since 1987, moreover, it has been national policy that “artificial restrictions on airport capacity . . . are not in the public interest….” 49 U.S.C. § 47101(a)(9)(A) (originally enacted in Act of Dec. 30, 1987, Title I, § 102(c), 101 Stat. 1486, 1488).

[225] See 49 U.S.C. §§ 47107(g), 47122(a); FAA Order 5190.6A, ¶¶ 1-1 (“The FAA bears the important responsibility of seeing that these commitments are met.”), 1-5 (“Responsibility to ensure compliance with airport owner obligations is vested in, or imposed on, the FAA by law or through FAA contractual authority.”)

[226] 49 U.S.C. § 47502(2); 14 C.F.R. § 150.9(b).

[227] 14 C.F.R. Part 150, App. A, Table 1.

[228] 49 U.S.C. § 47502(3); 14 C.F.R. Part 150, App. A, Table 1.

[229] As stated in Part 150, “[l]ocal needs or values may dictate further delineation based on local requirements or determinations.” [14 C.F.R. Part 150, App. A, § A150.101(d)].

[230] 14 C.F.R. § 161.5 (definition of “airport noise study area”).

[231] FAA Exhibit 1, Item 3, Notice and Approval of Airport Noise and Access Restrictions, Final Rule, 14 C.F.R. Part 161, Federa l Register Notice, September 25, 1991, 56 Fed. Reg. 48661, 48670.

[232] 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. 48668.

[233] See FAA Exhibit 1, Item 39, Report to Congress: Eligibility of Noise Abatement Proposals for Grants-in-aid under the Airport Improvement Program (January 1989) at 21.

[234] See, e.g., FAA Order 5100.38B, “Airport Improvement Program (AIP) Handbook,” ¶ 704.

[235] FAA Exhibit 1, Item 2, p. 14.

[236] FAA Exhibit 1, Item 2, p. 14.

[237] FAA Exhibit 1, Item 14, Naples Municipal Airport, FAR Part 150 Noise Exposure Map Update, November 2000, p. 19.

[238] FAA Exhibit 1, Item 2, Attachment 3 (Naples Municipal Airport Part 161 Study) p. 16.

[239] On June 5, 2002, nearly 16 months after the NAA adopted the Stage 2 ban, three months after the NAA initiated enforcement of the ban, and seven months after the FAA issued its Notice of Investigation in this matter, the City of Naples adopted Ordinance 02-9648, which established a “Noise Impact Zone D” around APF that approximates the area between the DNL 65 dB and DNL 60 dB contours “based on future aircraft operations.” Id. at 23, See FAA Exhibit 1, Item 15, City of Naples Ordinance 02-9648, June 5, 2002. Within Zone D, the ordinance prohibits certain residential land use but allows “transient lodging” as a “conditional use.” Id. The FAA considers transient lodging to be residential development (see Table 1, Appendix A, 14 CFR Part 150). Evidence in the record suggests that the NAA viewed the prohibition of residential development in the new Zone D as strengthening its legal position in the present proceeding. See, e.g., FAA Exhibit 1, Item 12, Exhibit 11, p. 3 (“It was noted that the concern of the [NAA] is that if [multifamily residential and transient lodging] are permitted [in Zone D], then the FAA will take the position that the airport has not taken all measures to fight inappropriate property development in noise sensitive areas around the airport. That position could negatively impact the airport’s litigation with respect to the Stage 2 aircraft ban.”). In any event, the new ordinance is immaterial to our findings in this case; our determination regarding the reasonableness of the NAA’s adoption and implementation of the Stage 2 ban is based upon conditions existing at that time, and is not affected by post facto actions such as the new ordinance. Moreover, the DNL 60 dB contour used by the NAA to justify the Stage 2 ban is not the same as the DNL 60 dB contour that defines Zone D under the new ordinance. By prohibiting development inside the DNL 60 dB contour only after the contour was contracted by a restriction on operations, the City has minimized any burden on development, at the expense of airport users.

[240] Surprisingly, the NAA makes the following argument in its Reply to the Notice of Investigation:

[T]he actions of the City and County are not a predicate to the Authority taking action to control noise. Stage 2 restrictions need not be based on existing land use regulation by local governments or on the vigor with which these governments enforce their own land use standards. Under the statutory scheme established by Congress, the airport proprietor identifies the area of concern and consideration—it is not imposed upon the proprietor by neighboring local governments.

There is no doubt that an airport proprietor (the Authority included) is guided and informed by local regulations and actions regarding tolerable levels of noise. In the end, however, the airport proprietor has full discretion to make its own judgment about the appropriate level of noise in the community that suffers the impacts of the operations of the airport. In this case, the Authority has made that judgment in large part on the basis of actual numbers of people affected by Stage 2 aircraft within the DNL 60 dB [contour], and not by mere mechanical adherence to a local standard promulgated by a different governmental body.

[241] FAA Exhibit 1, Item 2, Attachment 15, pp. 10-16, 33; and FAA Exhibit 1, Item 2, p. 14.

[242] See FAA Exhibit 1, Item 7 (Chronology of Events, Collier County), Tab 4, Appendix III of Ordinance 2000-43, p. 71 (emphasis added).

[243] FAA Exhibit 1, Item 2, Attachment 15, p. 10.

[244] FAA Exhibit 1, Item 2, Attachment 6, p. 11.

[245] See 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.

[246] FAA Exhibit 1, Item 11, Video Tape of Naples Airport Authority Meeting, November 15, 2001, FAA Exhibit 1, Item 4, Lido Bay Resort Project Revamped After Airport Noise Concerns, Naples Daily News, 01/05/2002.

[247] Ordinance 98-8165 was enacted on January 1, 1998. FAA Exhibit 1, Item 2, Attachment 6, Tab 11.

[248] FAA Exhibit 1, Item 8 (Chronology of Events, City of Naples), Tab 28.

[249] This development was listed as “under construction” as early as March 2000 in FAA Exhibit 1, Item 2, Attachment 3 (Naples Municipal Airport Part 161 Study), Appendix B, 14.

[250] http://www.rlest.com, FAA Exhibit 1, Item 2, Attachment 6 (History of Noise Compatibility Efforts for Naples Municipal Airport, October 2000), Tab 6.

[251] FAR Part 150 Noise Exposure Map Update, November 2000, Appendix F; FAA Exhibit 1, Item 2, Attachment 3 (Naples Municipal Airport Part 161 Study), Appendix B; FAA Exhibit 1, Item 2, Attachment 15 (Part 161 Supplemental Analysis), p. 3.

[252] FAA Exhibit 1, Item 8 (Chronology of Events, City of Naples), Tab 30, (Petition No. 98-R1).

[ 253] FAA Exhibit 1, Item 8 (Chronology of Events, City of Naples), Tab 30, April 1, 1998 City Council Regular Meeting, p. 5. See location, 1332 5 th Avenue S, FAA Exhibit 1, Item 2, Attachment 6 (History of Noise Compatibility Efforts for Naples Municipal Airport, October 2000), Tab. 6.

[254] FAA Exhibit 1, Item 2, Attachment 28, FAA Approval, Revised Compatibility Program 1996, February 1997.

[255] FAA Exhibit 1, Item 2, Attachment 29, FAA Approval, Revised Compatibility Program 1996, September 1997.

[256] FAA Exhibit 1, Item 11, Video Tape of Naples Airport Authority Meeting, November 15, 2001.

[257] FAA Exhibit 1, Item 2, Attachment 6, p. 11. Similarly, in commenting on a draft of the City’s Ordinance 02-9648, adopted on June 5, 2002, which allows “transient lodging” in Zone D as a “conditional use,” the NAA stated its expectation that “conditional uses will be allowed only in the most extraordinary circumstances where the applicant can present a compelling argument that the proposed use in no manner violates the principles of land use compatibility that the City and the Authority have sought to achieve.” FAA Exhibit 1, Item 12, Exhibit 13.

[258] FAA Exhibit 1, Item 2, Attachment 3 (Naples Municipal Airport Part 161 Study), p. 16.

[259] FAA Exhibit 1, Item 7 (Chronology of Events, Collier County), Tab 31, under the heading “Noise Compatibility.”

[260] See FAA Exhibit 1, Item 7 (Chronology of Events, Collier County), Tab 24.

[261] FAA Exhibit 1, Item 7 (Chronology of Events, Collier County), Tab 21, p. 2.

[262] FAA Exhibit 1, Item 7, Volume2, (Chronology of Events, Collier County), Tab 21, p. 46.

[263] FAA Exhibit 1, Item 7 (Chronology of Events, Collier County), Tab 24, p. 72.

[264] See FAA Exhibit 1, Item 7 (Chronology of Events, Collier County), Tab 3-4, Appendix III of Ordinance 2000-43, pp 22-23, -72 (emphasis added).

[265] FAA Exhibit 1, Item 7 (Chronology of Events, Collier County), Tab 19, p. 9, 10.

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

[267] FAA Exhibit 1, Item 14 (Naples Municipal Airport, FAR Part 150 Noise Exposure Map Update, November 2000), p. 19; FAA Exhibit 1, Item 2, Attachment 3 (Part 161 Study), p. 16.

[268] Id. 269 Id.

[270] Id.

[271] FAA Exhibit 1, Item 2, p. 14. 272 Id.

[273] It would appear that the NAA understands this fact, since it used a DNL contour, rather than comp laint data, “as the basis for identifying potentially non-compatible land use” in the vicinity of the airport. FAA Exhibit 1, Item 2, Attachment 3 (Part 161 Study), p. 16.

[274] 49 U.S.C. § 47502.

[275] As noted in the preamble to the Part 150 interim rule, Part 150 “specifies [DNL] as the acoustical measure to be used in assessing compatibility between various land uses and an outdoor noise environment resulting from aircraft operations at, and in the vicinity of, an airport.” 46 Fed. Reg. 8316, 8325 (1981). The preamble explained that

[f]or evaluating the exposure of individuals to noise from airports, the appropriate unit is a cumulative noise measure. While people certainly do respond to the noise of single events (particularly to the loudest single event in a series), the long-range effects of prolonged exposure to noise appear to best correlate with various cumulative measures.

[276] FAA Exhibit 1, Item 2, Attachment 3, p. 27 (emphasis added). It would also appear that the NAA understood the subjective nature of complaint data when it stated that its complaint data provide clear evidence that the subjective annoyance of Stage 2 operations is significantly greater than that caused by Stage 3 operations or non-jet operations. FAA Exhibit 1, Item 2, Attachment 7, Letter from Ted Baldwin, HMMH, to Wayne Heibeck, Manager, Airport Compliance Division, FAA (October 28, 2000) (emphasis added). The limitations on the use of complaint data are evident in this case. For example, while the NAA defined the ban as reasonable because complaints “clearly” identify Stage 2 aircraft as responsible, the NAA acknowledges that banning those aircraft may not bring relief. In the NAA’s Reply to the Notice of Investigation, which states that “[a]lthough the Authority cannot guarantee that complaints will be eliminated, it is eminently reasonable for the Authority to restrict operations of the aircraft that clearly are responsible for the complaints.” FAA Exhibit 1, Item 2, p. 15.

[277] FAA Exhibit 1, Item 2, Attachment 3, p. 27.

[278] FAA Exhibit 1, Item 21 (“Federal Agency Review of Selected Airport Noise Analysis Issues” (FICON, 1992)), Vol. 2, p. 3-6. The FICON report was the product of an interagency working group, initiated by the respective Deputy Administrators of the FAA and EPA, to review the technical and policy issues related to measuring noise impacts around airports. As explained in the FICON report, community annoyance “can exist without complaints and, conversely, complaints may exist without high levels of annoyance.” Id.

[279] FAA Exhibit 1, Item 26 (“Report to Congress on Effects of Airport Noise” (FAA, 1993)), p. 20 (emphasis in original).

[280] Id., p. 1.

[281] FAA Exhibit 1, Item 21 (“Federal Agency Review of Selected Airport Noise Analysis Issues” (FICON, 1992)), Vol. 2, pp. 3-3, 3-4.

[282] FAA Exhibit 1, Item 13, City of Naples Airport Authority Quarterly Noise Report, Number 13 (January 1, 2000 - March 31, 2000).

283 FAA Exhibit 1, Item 13, City of Naples Airport Authority Quarterly Noise Report, Number 12 (October 1,1999 - December 31, 1999) p. 12. There have been statements in the media that in 1998, more than half of the complaints came from one family residing in Port Royal, located in the Southwest quadrant of the airport. (FAA Exhibit 1, Item 4, Naples Daily News, Airport Authority Rejects Noise Disclosure Plan, 06/25/1998).

[284] See FAA Exhibit, Item 7, Volume 2, Tab 31.

[285] See FAA Exhibit, Item 2, Attachment 21, Sanford Fidell, p.22-23.

[286] FAA Exhibit 1, Item 7 (Chronology of Events, Collier County), Tab 19, p. 10-11.

[287] FAA Exhibit 1, Item 13, City of Naples Airport Authority Quarterly Noise Report, Numbers 17-20. The total number of Stage 2 complaints from January 1 to December 31, 2001 was 250 (101+64+22+63); 250 complaints/365 days = 0.68 complaints per day, rounded to 0.7. (October 1, 2001 - December 31, 2001). The Naples Municipal Airport Part 161 Study, provides data related to the total number of operations conducted by certain aircraft types. We note for example, that the 2000 Average Daily Operations Table With No Restrictions, attributes State 2 aircraft with 2.36 daily operations. FAA notes that the number of Stage 2 operations targeted by the NAA is 2.36 Stage 2 operations per day. FAA Exhibit 1, Item 2, Attachment 3 (Naples Municipal Airport Part 161 Study), p. 31.

[288] 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.

[289] FAA Exhibit 1, Item 21, “Federal Agency Review of Selected Airport Noise Analysis Issues” (FICON, 1992), p. 2-4.

[290] See, e.g., “Day Night Average Sound Level (DNL): The Descriptor of Choice for Airport Noise Assessment” (http://www.aee.faa.gov/noise/DNL.htm).

[291] See FAA Exhibit 1, Item 2, Attachment 3, p.46. Comparing number of Stage 2 operations (2.33) with the number of Stage 3 operations (36.46).

[292] Part 161 does not prohibit the appropriate use of supplemental metrics. See 56 Fed. Reg. at 48669-70, 48673 (1991) (preamble to Part 161 final rule). Appropriate uses of SEL include comparing aircraft operating procedures, quantifying the merits of different noise abatement procedures, comparing aircraft types, describing noise exposure at noise-sensitive locations, assessing the impacts of aircraft operations on sleep disturbance, and demonstrating transmission loss and noise level reduction through the use of insulation. See “Aircraft Noise: How We Measure It and Assess Its Impact” (http://www.aee.faa.gov/noise/Aircraft_Noise.htm); FAA Order 1050.1D, “Policies and Procedures for Considering Environmental Impacts”; “Day Night Average Sound Level (DNL): The Descriptor of Choice for Airport Noise Assessment” (http://www.aee.faa.gov/noise/DNL.htm); “Effects of Aviation Noise on Awakenings from Sleep (Federal Interagency Committee on Aviation Noise, June 1997), p. 6.

[293] See, e.g., FAA Exhibit 1, Item 40, Aviation Noise Abatement Policy 2000 (proposed policy document), July 14, 2000, 43802, 43820 (July 14, 2000).

[294] FAA Exhibit, Item 2, Attachment 3 (Part 161 Study), p. 24.

[295] FAA Exhibit 1, Item 21, “Federal Agency Review of Selected Airport Noise Analysis Issues” (FICON, 1992), Vol. 2, p. 2-5. Also see FAA Exhibit 1, Item 40, Aviation Noise Abatement Policy 2000 (proposed policy document), July 14, 2000, 43821. As EPA has so clearly stated in the Levels Document, any contention that single event noise analysis is needed to supplement DNL to describe airport noise impacts runs counter to the fact that annoyance already embodies interference with human activity, which includes sleep and speech. Other recent studies continue to indicate that DNL is the descriptor of choice in representing community reaction to noises of all kinds. A recent study to assess the nighttime weighting factor used in DNL concluded that there is no credible evidence to use anything other than the accepted DNL. "Cumulative Airport Noise Exposure Metrics: An Assessment of the Evidence for Time-of-Day Weightings,” DOT/FAA/EE-86/10.

[296] See, e.g., FAA Exhibit 1, Item 26 (“Report to Congress on Effects of Airport Noise” (FAA, 1993)), p. 11 (“there are no reliable data correlating single event noise levels with impacts on humans”). While “[s]ingle event analysis is sometimes conducted to evaluate sleep disturbances and, less frequently, specific speech interference issues, primarily at locations where the DNL is below 65 dB[,] . . . [t]he DNL methodology includes a 10-dB nighttime penalty wh ich reflects the potential for increased annoyance associated with nighttime noise intrusions due to sleep disturbance, speech interference, and other effects.” FAA Exhibit 1, Item 21, Vol. 2, p. 2-5.

[297] FAA Exhibit 1, Item 2, p. 14 (emphasis added).

[298] Id.

[299] FAA Exhibit 1, Item 2, Attachment 3 (Part 161 Study), pp. 23-24.

[300] Id., p. 28.

[301] FAA Exhibit 1, Item 2, p. 15. Also, the record indicates that the U.S. District Court for the Middle District of Florida relied on the NAA’s assertion regarding complaints in dismissing the NBAA’s complaint. Specifically, the court concluded that

[the NBAA did not] controvert the essential finding of [the Part 161] study – that Stage 2 operations, though relatively minimal, account for a hugely disproportionate share of residents’ noise complaints. However “unscientific” the NBAA might consider such complaints, there is nothing in the record that suggests they are an inappropriate consideration for any entity that is charged with assessing and addressing the noise problem at a particular airport.

As discussed above, the FAA is not bound by the court’s decision, which was based on a factual record much different than that before the FAA in this proceeding.

[302] Indeed, due to the limited scope of the SEL analysis, it does not even support the NAA’s contention that Stage 2 aircraft, as a group, have greater noise impacts than Stage 3 aircraft. Moreover, the FAA disagrees with the NAA’s assumption in its SEL methodology that the Lear 25 is representative of all Stage 2 aircraft. For example, a Lear 25 is not representative of a Stage 2 Falcon 20, a Sabreliner 80, an Hawker Siddeley HS-125-700, or an Lockheed L-1329, all of which have been reported to have operated at APF during the study period. See FAA Exhibit 1, Item 18. [303] FAA Exhibit 1, Item 2, Attachment 15 (Part 161 Supplemental Analysis), p. 30, 33.

[304] FAA Exhibit 1, Item 2, Attachment 15, (Part 161 Supplemental Analysis), p. 33. We note that Collier County’s amended ordinance is directed to reducing interior noise levels only, and therefore does not support NAA’s argument for special consideration for outside noise levels in the Naples area.

[305] FAA Exhibit 1, Item 21, Federal Agency Review of Selected Airport Noise Analysis Issues” (FICON, 1992), p. 2-11.

[306] FAA Exhibit 1, Item 2, Attachment 6, History of Noise Compatibility Efforts for Naples Municipal Airport (October 2000, Tab 13.

[307] FAA Exhibit 1, Item 2, Attachment 15, (Part 161 Supplemental Analysis), p. 33.

[308] FAA Exh ibit 1, Item 2, Attachment 15, (Part 161 Supplemental Analysis), p. 33.

[309] See Site 6, FAA Exhibit 1, Item 13, City of Naples Airport Authority Quarterly Noise Report, Number 12 (October 1, 1999 - December 1999).

[310] FAA Exhibit 1, Item 13, City of Naples Airport Authority Quarterly Noise Report, Number 13 (January 1, 2000 - March 31, 2000).

[311] FAA Exhibit 1, Item 13, See City of Naples Airport Authority Quarterly Noise Report, Number 12 (October 1, 1999 - December 1999).

[312] FAA Exhibit 1, Item 13, See City of Naples Airport Authority Quarterly Noise Report, Number 12 (October 1, 1999 - December 1999).

[313] See FAA Exhibit 1, Item 13, City of Naples Airport Authority Quarterly Noise Report, Number 12 (October 1, 1999 - December 1999).

[314] In fact, the data appears to illustrate that in lower DNL values, the existing non-aircraft noise may mask the aircraft noise and that the non-aircraft noise may begin to dominate aircraft noise at levels below DNL 60 dB. See FAA Exhibit 1, Item 21, Federal Agency Review of Selected Airport Noise Analysis Issues” (FICON, 1992), Section 3-4.

[315] Indeed, compatible land-use designations may be affected if the self-generated noise from that use and/or the ambient noise from other non-aircraft and non-airport uses are equal to or greater than the noise from aircraft and airport sources. 14 C.F.R. Part 150, App. A, Part B, Sec. A150.101(e)(5). “Ambient sound” connotes the ever-present collection of sound of both natural and manmade origin. “Background noise” connotes total acoustic and electrical noise for all sources in the system that interferes with the measurement of the intrusive noise being measured. FAA Exhibit 1, Item 21, Federal Agency Review of Selected Airport Noise Analysis Issues” (FICON, 1992), 2-3-1.

[316] FAA Exhibit 1, Item 2, Attachment 3 (Part 161 Study), p. 4.

[317] FAA Exhibit 1, Item 2, Attachment 15, (Part 161 Supplemental Analysis), pp. 35-70. We note that the NAA’s cost benefit analysis underestimated the cost of the Stage 2 ban.

[318] FAA Exhibit 1, Item 2, Attachment 15, (Part 161 Supplemental Analysis), pp. 19-29.

[319] See, e.g., Advisory Circular 150-5020-1, August 5, 1983 “Noise Control and Compatibility Planning for Airports,” p.2 (Part 150 includes a “balanced approach producing realistic and practical solutions fair to both aviation and non aviation interests”); id., p.32 (curfews ”should be reserved as a strategy of last resort … when all other options have been shown to be clearly inadequate”).

[320] The balanced approach has been adopted by the International Civil Aviation organization (ICAO), of which the United States is a member. See FAA Exhibit 1, Item 20, ICAO Resolution A33-7, adopted at the 33 rd Session of the Assembly, September 25 to October 5, 2001.

[321] FAA Exhibit 1, Item 2, Attachment 28, p. 5-14. 322 FAA Exhibit 1, Item 2, Attachment 28, p. 5-14.

[323] FAA Exhibit 1, Item 14, p. 9. See also FAA Exhibit 1, Item 4, Media and Newspaper articles, Naples Daily News, Airport Authority Rejects Noise Disclosure Plan, 06/25/1998. 324 FAA Exhibit, Item 2, Attachment 3 (Part 161 Study), p. 4.

[325] See FAA Exhibit 1, Item 2, Attachment 15 (Part 161 Supplemental Analysis), p. 3.

[326] FAA Exhibit 1, Item 2, Attachment 29, FAA Approval, Revised Compatibility Program 1996, September 1997.

[327] See FAA Exhibit 1, Item 21, Federal Agency Review of Selected Airport Noise Analysis Issues” (FICON, 1992), Volume 1, Section 3.5.

[328] FAA Exhibit 1, Item 40, Aviation Noise Abatement Policy 2000 (proposed policy document), July 14, 2000, 43810.

[329] See e.g. FAA Exhibit 1, Item 8 (Chronology of Events, City of Naples), Tab 28.

[330] Collier County continues to allow mitigated residential development within the DNL 60 dB contour. See e.g. FAA Exhibit 1, Item 7, Volume2, (Chronology of Events, Collier County), Tab 21, p. 46. Although the city, in its June 2002 ordinance, prohibits most, but not all, residential development within the DNL 60 dB contour, it has no program to remove existing residences that it has allowed. Moreover, the DNL 60 dB contour used by the NAA to justify the Stage 2 ban is not the same as the DNL 60 dB contour that defines Zone D under the City’s June 2002 ordinance. FAA Exhibit 1, Item 15, City of Naples Ordinance 02-9648, June 5, 2002.

[331] FAA Exhibit 1, Item 8 (Chronology of Events, City of Naples), Tab 28, See FAA Exhibit 1, Item 2, Attachment 15 (Part 161 Supplemental Analysis), pp. 23-24.

[332] FAA Exhibit 1, Item 2, Attachment 6 (History of Noise Compatibility Efforts for Naples Municipal Airport, October 2000), p. 9-10, See FAA Exhibit 1, Item 2, Attachment 15 (Part 161 Supplemental Analysis), p. 27.

[333] As stated by the FAA in its 1988 report to Congress on the Part 150 program, the acquisition of easements is considered to render a property compatible because the property owner has granted the airport proprietor the legal right to allow aircraft to make noise flying over the property. See FAA Exhibit 1, Item 24, Report to Congress “FAR, Part 150, Airport Noise Compatibility Program,” November 21, 1988, Section III, Technical and Economic Data Required by FAA to Complete a Part 150 Review, p 4.

[334] 2000 Existing Conditions Population Estimates. Easements: Bayfront (320) and Waterfront (88 See FAA Exhibit 1, Item 2, Attachment 3 (Naples Municipal Airport Part 161 Study), FAA Exhibit 1, Item 2, Attachment 15, pp. 23, 27. Disclosure: Beau Mer (200), for a total of 608. See FAA Exhibit 1, Item 2, Attachment 3 (Naples Municipal Airport Part 161 Study), FAA Exhibit 1, Item 2, Attachment 15, p. 22. We note that the data provided by the NAA does not allow a review of the majority of single -family structures. Population the NAA claims are removed from the DNL 60 dB contour by Stage 2 ban is 936. See FAA Exhibit 1, Item 2, Attachment 15 (Part 161 Supplemental Analysis), p. 3.

[335] See, e.g., [FAA Exhibit 1, Item 2, Attachment 15 (Part 161 Supplemental Analysis), Table 1.1]. 336 FAA Exhibit 1, Item 2, p. 16. 337 FAA Exhibit 1, Item 2, p. 16.

[338] 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. Attachment entitled “Comments On Naples Supplemental Analysis,” p. 3. 339 Id. 340 FAA Exhibit 1, Item 2, p. 16.

[341] FAA Exhibit 1, Item 2, Attachment 15, p. 35.

[342] We note that, as discussed in section VI.G.2.b. of this decision, the NAA’s cost benefit analysis underestimated the cost of the Stage 2 ban.

[343] See FAA Exhibit, Item 2, Attachment 15 (Part 161 Supplemental Analysis), pp. 35-69.

[344] FAA Exhibit 1. Item 2, p. 17.

[345] AC 150/5020-1 at ¶ 306 (emphasis added). The FAA encourages local jurisdictions to (1) establish zoning ordinances or other control measures to preclude new noise sensitive development; acquire existing non-compatible properties and relocate people; implement policies and programs to redevelop noise sensitive areas into more compatible land uses; (2) if noise sensitive development cannot be removed or precluded: acoustically insulate existing structures; establish local building codes for new residential and other noise sensitive construction requiring attenuation of exterior noise levels; purchase noise easements; (3) require formal disclosure of aviation noise exposure levels as a part of real estate transactions for properties located near airports, where authorized by State and local law; provide transaction assistance to noise impacted property owners wishing to sell. See FAA Exhibit 1, Item 40, Aviation Noise Abatement Policy 2000 (proposed policy document), July 14, 2000, 43811. Also see 1976 noise policy.) Land use measures, such as easements, disclosure, sound insulation and property acquis ition are used to minimize incompatible land uses and become very effective when combined.

[346] FAA Exhibit, Item 2, Attachment 3 (Part 161 Study), p.4.

[347] The NAA did combine two measures, sound insulation and the acquisition (Rock Creek Campground), as one alternative. However, the NAA rejected this alternative because of the “inherent” high costs resulting from sound insulating all dwellings in the contour (and not just targeted ones in the most critical noise sensitive areas) and self-imposed limitations of the efficacy of sound insulation. FAA Exhibit 1, Item 2, Attachment 15, (Part 161 Supplemental Analysis), p. 3 and 36-39. The NAA’s categorization of these costs as comparatively high stems from the fact that the Stage 2 ban was underestimated as analyzed in more detail below.

[348] FAA Exhibit 1, Item 2, Attachment 15, p. 35-36.

[349] Targeting specific areas with specific land use measures may have the effect of reducing the number of impacted people substantially. Targeting certain areas for land acquisition or sound insulation appears possible in light of the fact that according to the NAA, there is no residential population within the DNL 60 dB contour within the northeast and northwest contour lobes (although the NAA depicts incompatible land areas in those lobes in its contour maps). The main noise impact area appears to be southwest (and potentially southeast), where mitigation measures could be concentrated. FAA Exhibit 1, Item 2, Attachment 15, (Part 161 Supplemental Analysis), p. 51. The southwest area also contains over 70% percent of the estimated population within the DNL 60 dB contour. Also see FAA Exhibit 1, Item 2, Attachment 15, (Part 161 Supplemental Analysis), (F-3)-(F-4), 930/1306=71%. Targeting certain areas with sound insulation and land acquisition can be combined or supplemented with the potential benefits of flight tracks changes for example.

[350] Final Policy on Part 150 Approval of Noise Mitigation Measures: Effect on the Use of Federal Grants for Noise Mitigation Projects, Notice on Final Policy, 63 Fed Reg. 16409-16414 (1998).

[351] FAA Exhibit 1, Item 2, Attachment 6, p. 10.

[352] See FAA Exhibit 1, Item 24, Report to Congress “FAR, Part 150, Airport Noise Compatibility Program,” November 21, 1988, Section III, Technical and Economic Data Required by FAA to Complete a Part 150 Review, p 4.

[353] FAA Exhibit 1, Item 2, Attachment 28, Revised Noise Compatibility Program 1996, February 1997, 5-8.

[354] FAA Exhibit 1, Item 2, Attachment 6, p.10. The NAA further determined that sound insulation does not provide a feasible approach because many Naples residents keep their windows open and that sound insulation is an incomplete substitute, since it addresses only indoor activity. FAA Exhibit, Item 2, Attachment 15 (Part 161 Supplemental Analysis), p. 39.

[355] See e.g. FAA Exhibit 1, Item 8, Tab.28.

[356] FAA Exhibit 1, Item 2, Attachment 15 (Part 161 Supplemental Analysis), p. 39.

[357] FAA Exhibit 1, Item 7, Volume2, (Chronology of Events, Collier County), Tab 21, p. 46.

[358] FAA Exhibit 1, Item 2, Attachment 3, pp.3, 16.

[359] FAA Exhibit 1, Item 34, Airport Compatible Land Use Guidance for Florida, Florida Department of Transportation (FDOT), Office of Public Transportation, Aviation Office, 1994, Appendix 6.

[360] Id., Appendix 1.

[361] We note that even if all the homes inside the DNL 60 dB contour were sound-insulated—a relatively expensive mitigation measure—the cost to the NAA would still be less than the cost to aircraft operators when properly calculated. See Table 1. Of course, it is unlikely that all homes in the DNL 60 dB contour would need to be sound-insulated, and we are not suggesting that it would be necessary to do so. If, for example, sound insulation were offered on a voluntary basis to those homeowners remaining inside the DNL 60 dB contour after the application of other non-restrictive measures, the number of homes insulated would likely be far less than the 465 residences cited by the NAA in its calculation of costs for this program. FAA Exhibit 1, Item 2, Attachment 15 (Part 161 Supplemental Analysis), p. 36.

[362] FAA Exhibit 1, Item 2, Attachment 15 (Part 161 Supplemental Analysis), p. 53.

[363] FAA Exhibit 1, Item 2, Attachment 15, p. 56-61.

[364] These inconsistencies related to the fact that two of the Gulfstream operators and one of the Falcon operators described procedures that did not involve a cutback until 3,000 feet. FAA Exhibit, Item 2, Attachment 15 (Part 161 Supplemental Analysis), p. 58.

[365] FAA Exhibit 1, Item 2, Attachment 15, (Part 161 Supplemental Analysis), p. 62.

[366] FAA Exhibit 1, Item 2, Attachment 15 (Part 161 Supplemental Analysis), p. 58.

[367] See FAA Exhibit, Item 2, Attachment 15 (Part 161 Supplemental Analysis), p. 57-58.

[368] See FAA Exhibit 1, Item 2, Attachment 8, Naples Municipal Airport Part 161 Study, Response to Comments (November 16, 2000), p.15-16.

[369] FAA Exhibit, Item 2, Attachment 15 (Part 161 Supplemental Analysis), p. 56-57.

[370] FAA Exhibit 1, Item 2, Attachment 28, “Revised Noise Compatibility Program 1996,” p. 3-9.

[371] Id., p. 3-11. A-Weighted Sound Level (dBA) - A sound pressure level, often noted as dBA, which has been frequency-filtered or weighted to quantitatively reduce the effect of the low frequency noise. It was designed to approximate the response of the human ear to sound. See also FAA Exhibit 1, Item 21, Page A-2.

[372] FAA Exhibit 1, Item 41, FAA Comments to the Metropolitan Airports Commission’s proposed nighttime Stage 2 ban, March 24, 1992, p.42-43.

[373] FAA Exhibit 1, Item 2, Attachment 28, “Revised Noise Compatibility Program 1996,” pp. 3-9, 3-11. For example, the data presented in this document indicate benefits as high as 6.0 dBA, and an average of 3.6 dBA, when a Lear 35 jet uses the NBAA close-in noise abatement procedures. See id., Figure 3-3.

[374] See FAA Exhibit 1, Item 2, Attachment 8, Naples Municipal Airport Part 161 Study, Comments by Gulfstream Aerospace Company, August 1, 2000, p.481.

[375] FAA Exhibit 1, Item 42, .

[376] It is appropriate and reasonable for the FAA to expect the NAA to consider the benefits of the forecasted use of NADPs by all aircraft using the airport since the NAA did not consider the use of NADPs in modeling its baseline DNL 60 db contour.

[377] See, FAA Order 5190.6A, Sec. 4-8(f). See also, 49 USC 47101(d), declaring that airport and airway programs, including the airport grant program, “should be carried out consistently with section 40101(a), (b), (d), and (f) of this title to . . . prevent unjust and discriminatory practices, including as the practices may be applied between categories and classes of aircraft.” As a result of litigation regarding increased landing fees at Logan International Airport, Congress became concerned that “some ambiguity may exist concerning the scope of the [Airport and Airway Improvement] Act’s policy against discrimination.” H.R. Rep. No. 101-581, at 23 (1990). In the Aviation Safety and Capacity Expansion Act of 1990, Congress amended the policy declaration of the AAIA to clarify its intent to prohibit unjust discrimination against all classes of users, and that the prohibition is particularly meant to protect the rights of small aircraft users. Id.

[378] In its response to public comments on the Part 161 study, the NAA’s position appeared to be consistent with the above-cited position. Specifically, the NAA states “a noise restriction that bans only one type of aircraft but allows other, equally noisy aircraft to operate at an airport may be unjustly discriminatory because the discrimination among types of aircraft is not based on actual differences among the levels of noise generated by those types.” [FAA Exhibit 1, Item 2, Attachment 8, Naples Municipal Airport Part 161 Study, Response to Comments (November 16, 2000), 13.]

[379] 942 F.2d 1391 (9th Cir. 1991).

[380] The aircraft operator filed a complaint with the FAA alleging that exclusion of its retrofitted Q-707 was unjustly discriminatory in violation of the city's AIP grant assurances. The FAA affirmed the determination of the administrative law judge that the airport's noise regulation allowed aircraft that were equally noisy or noisier than Q-707s to operate at the airport and increase in number without limit, while excluding the Q-707 based on a characteristic that had no bearing on noise (date of type-certification as meeting Stage 2 requirements). Thus, the regulation violated the city's obligation under its federal grant assurances to make the airport available on fair and reasonable terms, without unjust discrimination. The Ninth Circuit Court of Appeals upheld the FAA's interpretation of the statutory and grant assurance requirements as reasonable.

[381] 481 F. Supp. 927 (C.D. Cal. 1979), aff’d, 659 F.2d 100 (9th Cir. 1981).

[382] 481 F. Supp. at 943.

[383] FAA Exhibit 1, Item 25.

[384] FAA Exhibit 1, Item 2, p.18.

[385] FAA Exhibit 1, Item 4.

[386] In the FAA Airport Facility Directory, NAA advises that “Stage 1 and 2 jet” aircraft are prohibited from using APF. FAA Exhibit 1, Item 25.

[387] We note that approximately 92 percent of the entire aircraft fleet in the United States do not have a Stage designation. There are approximately 227,000 powered aircraft in the US (FY 2000 data). Of these, 5,000 commercial passenger jets, 1,000 cargo jets, 7,000 corporate jets, approximately 2,000 (estimated) commuters and 2,700 helicopters have Stage designations. Therefore, approximately 92 percent (209,300/227,000) do not. See FAA Exhibit 1, Item 29, FAA Aerospace Forecasts, Fiscal Year 2002-2013,and FAA APO-02-1, March 2002, and General Aviation Air Taxi Activity Survey, calendar year 2000, FAA APO 110, February 2002 [FAA Exhibit 1, Item 30].

[388] FAA Exhibit 1, Item 2, p. 18.

[389] FAA Exhibit 1, Item 2, p. 18.

[390] 14 CFR B150.7(a)(5)(iv).

[391] 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. The FAA’s comparison of the noise levels of these two aircraft was based on noise levels provided in FAA Advisory Circular 36-3H, “Estimated Airplane Noise Levels in A-Weighted Decibels.” In the past, the FAA has recommended the use of this Advisory Circular for comparing the noise levels of aircraft that were not subject to noise certification rules to those aircraft that are certificated as Stage 1, Stage 2, or Stage 3 under 14 CFR Part 36. For example, in its May 15, 1992, letter to Fort Lauderdale [FAA exhibit 1, Item 32] in response to the sponsor’s request for information regarding a proposed restriction, the FAA suggested the use of AC-36-3 as the means of identifying a decibel noise level as the basis for a decibel-level ord inance. See also, 14 CFR 150.7(a)(5)(iv)].

[392] FAA Exhibit 1, Item 2, p. 17-18.

[393] FAA Exhibit 1, Item 2, p. 17-18.

[394] See FAA Exhibit 1, Item 35, pp. 2, 34. See also FAA Exhibit 1, Item 40, “Aviation Noise Abatement Policy 2000,” 65 Fed. Reg. 43803, 43804, 43818 (2000).

[395] FAA Exhibit 1, Item 2, Attachment 9. While the ordinance indicated that the ban would become effective within two months of when the ordinance was adopted, January 1, 2001 and November 16, 2000, respectively, the NAA delayed its enforcement for several reasons, including to correct deficiencies identified by the FAA with the initial Part 161 submittal.

[396] FAA Exhibit 1, Item 31, Part 150 Newsletter (1987).

[397] See H.R. Rep. No. 101-581, at 23 (1990).

[398] In support of its position, NAA cites 56 Fed. Reg. 48,661, 48,665 (Sept. 25, 1991).

[399] FAA Exhibit 1, Item 2, p. 18.

[400] The FAA used and advised sponsors, Congress and the public of the acceptability of estimated A-Weighted data as a means to compare aircraft. In the formulation of the Metropolitan Washington Airports Policy in 1980, FAA adopted estimated A-Weighted data as per AC-36-3, as the means to established noise limits at National Airport, FAA Exhibit 1, Item 33, “Metropolitan Washington Airports Policy,” (1980). In its 1988 Part 150 Report to Congress, the FAA stated that with regards to airport restrictions, a single-event limit would be expected to apply AC-36-3, FAA Exhibit 1, Item 24, Report to Congress “FAR, Part 150, Airport Noise Compatibility Program,” November 21, 1988. In Study of the Application of Notice and Analysis Requirements to Operating Noise/Access Restrictions on Subsonic Jets Under 75,000 Pounds, (FAA Study pursuant to Section 9305 of the Airport Noise and Capacity Act of 1990; 1991), the FAA used A-weighted data (AC-36-3) and ranked aircraft from the noisiest to the quietest, FAA Exhibit 1, Item 2, Attachment 17, Tab 14. In its May 15, 1992, letter to Fort Lauderdale in response to the sponsor’s request for information regarding a proposed restriction, FAA suggested the use of AC-36-3 as a means of identifying a decibel noise level as the basis for a decibel-level ordinance, FAA Exhibit 1, Item 32. In Part 150, the FAA described the range of airport noise and access restrictions available for study as including landing fees based on FAA certificated or estimated aircraft noise levels. See also 14 C.F.R. § B150.7(b)(5)(iv). [401] A-Weighted Sound Level (dBA) - A sound pressure level, often noted as dBA, which has been frequency filtered or weighted to quantitatively reduce the effect of the low frequency noise. It was designed to approximate the response of the human ear to sound. Also See FAA Exhibit 1, Item 21, Page A-2.

[402] We also note that even in the under-75,000 lb. category, some Stage 2 aircraft types, including types that have operated at Naples Municipal Airport, may have lower noise emissions than some Stage 3 or other aircraft permitted to use Naples Airport. In the absence of a complaining party and a fully developed record, we are not making a finding on unjust discrimination with regard to such aircraft in this Determination. However, we remind NAA that the operator of an aircraft affected by a Stage-based access restriction is not precluded from presenting evidence of unjust discrimination in a complaint under 14 C.F.R. Part 16. If an aircraft type is subject to an airport restriction, and there is evidence that that aircraft type is quieter than some types that are not subject to the restriction, the operator of the restricted aircraft would have the opportunity to bring a complaint for unjust discrimination under Part 16 whether or not the restriction is based on the Stage designation of permitted and/or restricted aircraft.