AVIATION NOISE LAW
In re. Naples Airport Authority
Director's Determination
FAA Docket 16-01-15


UNITED STATES DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
WASHINGTON, DC

IN THE MATTER OF COMPLIANCE
WITH FEDERAL OBLIGATIONS BY THE
NAPLES AIRPORT AUTHORITY,
NAPLES, FLORIDA

FAA Docket No. 16-01-15

DIRECTOR’S DETERMINATION


I . INTRODUCTION AND SUMMARY

II. THE AIRPORT

III. BACKGROUND

IV. APPLICABLE LAW AND POLICY

A. The Airport Improvement Program and the Airport Sponsor Assurances
B. Public Use of the Airport -- Grant Assurance 22
C. The FAA Airport Compliance Program
D. Legal Responsibilities of the Federal Government
E. The Airport Noise Compatibility Planning Program
V. ISSUES UNDER INVESTIGATION

VI. ANALYSIS AND DISCUSSION

A. The Relationship Between ANCA And Grant Assurances
1. Congressional Intent Regarding Preservation Of Preexisting Law Relating To Airport
Noise And Access Restrictions On Operations By Stage 2 Aircraft
2. Implications Of The NAA’s Argument
3. The FAA’s Reservation Of Issues Relating To Grant Compliance In Its Determination
Regarding The NAA’s Compliance With Part 161
B. Effect Of National Business Aviation Association (NBAA) v. City of Naples Airport
Authority, 162 F.Supp.2d 1343 (M.D. Fla. 2001)
1. Claim Preclusion Generally
2. Issue Preclusion Generally
3. Comity
4. Precedent and Intra-Court Comity
C. Burden Of Proof
D. Implications Of The FAA’s Approval Of The Stage 1 Ban At The Airport
E. Federal Preemption
1. Federal Preemption Law Generally
2. Actual Or Potential Griggs Liability Based On Current Conditions At The Airport
3. The NAA’s Other Arguments Regarding Federal Preemption
4. Conclusion On Federal Preemption
F. Compliance With Grant Assurance 22 -- Reasonableness
1. Noncompatible Land Use As A Justification For The Stage 2 Ban
2. The NAA’s Failure To Take A Balanced Approach To Addressing Its Stated Land
Use Compatibility Goal
G. Compliance With Grant Assurance 22 -- Unjust Discrimination
1. Noise Complaints and the Jet Ban
2. The NAA Permits Stage 2 Propeller-Driven Aircraft Noisier Than Stage 2 Jets To
Operate at AFP
3. NAA’s Conclusions Regarding Non-Stage Aircraft
VIII. FINDINGS AND CONCLUSIONS


I. INTRODUCTION AND SUMMARY

This matter is before the Federal Aviation Administration (FAA) based on the Notice of Investigation (NOI) filed by the FAA on October 31, 2001, under FAA Rules of Practice for Federally-Assisted Airport Proceedings, 14 Code of Federal Regulations (C.F.R.) Part 16 (FAA Rules of Practice).

The FAA filed the NOI against the Naples Airport Authority (NAA/Authority/Respondent), thesponsor of the Naples Municipal Airport (APF/ Airport). The FAA issued the NOI in accordance with FAA Rules of Practice for Federally Assisted Airport Proceedings, 14 C.F.R. Part 16, Subpart D.

After reviewing all the information provided by the NAA in support of the adopted Stage 2 ban, including materials generated for the Part 161 process, the FAA continued to have concerns that the NAA's Stage 2 ban is inconsistent with the NAA's grant agreement obligation to make the airport available for public use on reasonable terms and without unjust discrimination to all types, kinds, and classes of aeronautical activities without granting an exclusive right.

Under the particular circumstances existing at the Airport and the evidence of record, as discussed below, we conclude that the Stage 2 ban as currently implemented by the NAA is unreasonable and unjustly discriminatory in violation of 49 U.S.C. § 47107(a) (1) and Grant Assurance 22. We also conclude that the Stage 2 ban is preempted by Federal law.

Our decision in this matter is based on the applicable Federal law and FAA policy, and review of the pleadings and supporting documentation submitted and researched by FAA, which comprise the administrative record reflected in the attached FAA Exhibit 1.

The NAA asserts that the FAA is precluded from addressing the issues raised in the Notice of Investigation as a result of National Business Aviation Association v. City of Naples Airport Authority, 162 F.Supp.2d 1343 (M.D. Fla. 2001) due to the legal doctrines of res judicata, collateral estoppel, issue preclusion, and comity. In NBAA, an aviation trade group alleged that the NAA’s ban violated the Commerce Clause and the Supremacy Clause of the United States Constitution. The court provided summary judgment to the NAA; however, the FAA was not a party to this case. The FAA finds that under Federal law, the agency cannot be bound by a judgment that was entered in litigation to which it was not a party. The FAA also finds that the principles of comity (where courts of one jurisdiction will give effect to laws and judicial decisions of another jurisdiction out of deference and respect) do not bar the FAA’s investigation. In addition, according to the doctrine of intra-court comity, the NBAA decision is neither binding on the FAA nor other district courts in the Eleventh Circuit.

Local governments that operate airports may adopt noise abatement measures that do not impinge on aircraft operations. However, under Federal law, in order for an airport operator to enact a noise abatement measure that restricts aircraft operations, the operator must face actual or potential liability for noise damages. In the absence of liability, as here, the restrictio n is federally preempted and the NAA does not have the right to use its proprietary powers to regulate.

The NAA argues that the Stage 2 ban is not subject to the grant assurance requirements identified in the Notice of Investigation because Congress, in the Airport Noise and Capacity Act of 1990 (ANCA), granted airport proprietors the “express right” to ban Stage 2 aircraft, thus superseding other Federal law, including the statutory grant assurance requirements in 49 U.S.C. § 47107(a). The NAA’s argument, however, is contrary to the language and legislative history of ANCA, as well as the FAA’s long-standing interpretation of the statute, and would lead to a meaningless and illogical distinction between Stage 2 and other operations.

The FAA interprets the requirement in 49 U.S.C. § 47107(a)(1) that a federally- funded airport will be “available for public use on reasonable conditions” as requiring that a regulation restricting airport use for noise purposes: (1) be justified by an existing noncompatible land use problem; (2) be effective in addressing the identified problem; and (3) reflect a balanced approach to addressing the identified problem that fairly considers both local and Federal interests.

The record shows that the Stage 2 ban is not adequately justified by existing non-compatible land uses. Although the NAA bases its use of a DNL 60 decibel (dB) [1] land use compatibility criterion on ordinances and actions of the City of Naples and Collier County, the record shows that at the time the Stage 2 ban was implemented, neither the City nor the County prohibited residential land use within the DNL 60 dB contour. The NAA’s contention that it is faced with credible and identifiable threats of liability from property owners is not supported by the record evidence. The NAA’s use of complaints and Sound Exposure Level (“SEL”) data does not support a finding that the Stage 2 ban is reasonable. Complaints and SEL data are not valid indicators of noncompatible land use, and the specific data presented by the NAA do not justify banning all Stage 2 aircraft from the Naples Airport. The NAA’s analysis of background and ambient noise levels is flawed and does not justify the NAA’s stated land use compatibility goal or the Stage 2 ban. The ambient noise methodology and measurements presented by the NAA do not support the assertion that Naples is an unusually quiet community that justifies a lower noise compatibility threshold to support an airport restriction.

Even if the Stage 2 ban were justified by existing non-compatible land uses, it would still be unreasonable because it does not reflect a balanced approach to addressing the NAA’s stated land use compatibility goal that fairly considers both the local interest in noise mitigation and the Federal interest in maintaining access to Federally- funded airports, as reflected in 49 U.S.C. § 47107(a)(1) and Grant Assurance 22.

Although the NAA’s Part 161 Study states that the NAA “has exhausted all reasonably feasible non-restrictive measures to achieve its land use compatibility goal,” the record in this matter shows that the NAA did not adequately consider the costs and benefits of alternatives to the Stage 2 ban. For example, the NAA failed to consider the costs and benefits of combining non-restrictive measures, and instead rejected each measure simply because, individually, it would not be as effective as, or would be more costly than, the Stage 2 ban. Furthermore, the NAA unreasonably concluded that the only acceptable mitigation measure for people residing inside the DNL 60 dB contour was to remove them from the contour, even though some of these residents had consented to such noise levels by conveying easements to the NAA or had prior knowledge through noise disclosure. The NAA also disregarded non-restrictive measures, including property acquisition and noise disclosure to potential home buyers, that the FAA earlier had approved for the NAA’s 1997 noise compatibility study.

Because the NAA did not employ a balanced approach when considering the costs and benefits of non-restrictive and less restrictive alternatives, the cost-benefit analysis of the Stage 2 ban prepared by the NAA pursuant to 14 C.F.R. Part 161 is not a reliable indicator of the reasonableness of the ban in this proceeding. For example, the NAA included the costs of land acquisition and sound attenuation for those residences that were already made compatible through the acquisition of easements prior to the Stage 2 ban. Consequently, the NAA overstated the costs of land acquisition and sound attenuation. Likewise, to the extent that a change in flight tracks would further reduce the number of noncompatible residences inside the DNL 60 dB noise contour, the costs of land acquisition and sound attenuation, for example, may be further overstated.

The NAA’s conclusion that the Stage 2 ban is the most cost-effective alternative did not take into account all of the costs of the Stage 2 ban on airport users. For example, the NAA did not properly account for the costs to airport users of replacing or modifying their Stage 2 aircraft. When costs are appropriately considered, the analysis does not support the NAA’s conclusion.

Given the important Federal interest in maintaining access to Federally- funded airports, as reflected in 49 U.S.C. § 47107(a)(1) and Grant Assurance 22, it was not reasonable for the NAA to totally ban an entire class of aircraft based on an analysis that: (1) did not fairly consider non-restrictive alternatives for achieving the NAA’s asserted land use compatibility goal; and (2) was flawed in that it did not include the full estimated cost of the Stage 2 ban.

In sum, the NAA position relies substantially on the following arguments:

Based on the discussion of legal authority and factual circumstances discussed below, the FAA does not find these arguments sound.

In evaluating the significance of the restriction implemented by NAA, we are required to consider the degree to which its Stage 2 ban establishes a precedent for future restrictions with significant effects on the national air transportation system. If the action taken by the NAA were considered reasonable, for the reasons offered by the NAA, the effect would not be limited to Stage 2 aircraft or limited to the Naples Municipal Airport. For example, if NAA has full discretion to make its own judgment about the appropriate level of noise in the community and restrict use of the airport to achieve that level, regardless of its actual or potential liability for noise damages, then that same criterion arguably could be cited in support of restrictions on operations by Stage 3 aircraft at Naples and other airports. These and other positions argued by NAA would have potential adverse effects on the national airspace system that have not been seriously considered, much less studied in detail, and have not been raised in any forum in which all affected members of the aviation community could comment.


II. THE AIRPORT

Located on 732 acres, this two-runway airport is a public- use airport owned and operated by Naples Airport Authority, Naples, Florida. [6] In early 1942, the City of Naples and Collier County, which had purchased property for use as an airport, leased the property to the U.S. government for improvements and use as a training facility for the U.S. Army Air Corps. This took place under the auspices of an AP-4 Agreement, [7] under the Development of Landing Areas National Defense (DLAND) Program. In 1948, the Air Force declared the facility to be surplus, cancelled the lease and quitclaim, and the facility was returned to civilian use.

Collier County and the City of Naples jointly operated the airport until the county sold its interests to the city in 1958. [8] In 1969, the Naples City Council asked the Florida Legislature to create an independent authority whose members would be appointed by the City Council. [9] Chapter 69-1326, Laws of Florida, as amended, created the City of Naples Airport Authority as an independent body for the purpose of operating and maintaining the Airport. [10]

The management and operating power of the airport was transferred from the City of Naples to the NAA under lease for 99 years. [11] The facility is a commercial service airport, classified as a primary airport. [12] The Airport is the base of operations for 370 aircraft and accounts for approximately 138,185 operations each year, more than 92,000 of which are itinerant. [13]

FAA records indicate that the planning and development of the airport has been financed, in part, with funds provided by the FAA under the Airport Improvement Program (AIP), authorized by the Airport and Airway Improvement Act of 1982, (AAIA), as amended, 49 U.S.C. § 47101, et seq. Since 1982, the Airport has received a total of $14,617,978 in Federal airport development assistance. [14]


III. BACKGROUND

In 1996, the NAA submitted to the FAA for approval under 14 C.F.R. Part 150 a revision to its noise compatibility program (NCP). The revision included a recommendation for a land use measure that would create a "buffer of compatible land use" around the airport within the DNL 60 dB noise contour. [15] In the 1996 revised NCP, the NAA used the FAA Part 150 guidelines to define the level of noise at which land uses were compatible. [16] In the September 29, 1997, Record of Approval for the 1996 revised NCP, the FAA stated that the “NAA has adopted the DNL 65 dB noise contour as the threshold of incompatibility for residential areas, but for zoning and land use planning this measure recommends that the area within the DNL 60 dB noise contour apply the same standards as part 150 recommends for the DNL 65 dB noise contour as a buffer to ensure that residential and noise sensitive uses are not developed too close to the Airport.” The FAA approved this land use measure, noting that the measure was “within the authority of the local land use planning jurisdictions.” [17]

In November 1997, in a memorandum from the Naples City Attorney to the Mayor, proposed Policy 7-8 directed the NAA, by January 1, 1999, to complete a Part 161 Study to justify additional restrictions with particular emphasis on banning Stage 1 and ultimately Stage 2 aircraft. [18] In 1998, the NAA submitted an update to its Part 150 program that recommended extending to 24 hours the existing curfew on nighttime operations by Stage 1 aircraft at the airport. In explaining how this measure would meet the Part 150 criterion of being “consistent with the goal of reducing noncompatible land use,” the 1998 Part 150 update stated that the measure would significantly reduce the residents and dwelling units within the DNL 65 dB contour. [19] The FAA approved the extension of the Stage 1 restriction in 1999. [20]

Soon after the FAA approved the Stage 1 ban, the Mayor of the City of Naples wrote to the NAA stating that while the Stage 1 ban would be effective in eliminating the noisiest aircraft, the Authority should turn its attention to the newer, but still noisy, Stage 2 aircraft. [21]

In response to noise concerns, the NAA tasked a consultant team in August of 1999 to conduct a Part 161 study to identify operational restrictions authorized by Federal law. [22]

On June 22, 2000, the NAA adopted Resolution 2000-7 setting forth the NAA’s intent to propose ban on Stage 2 aircraft. [23]

On June 30, 2000, the NAA released for public comment the Naples Municipal Airport Part 161 Study (the Part 161 Study). The Part 161 Study proposed a ban on all Stage 2 aircraft weighing less than 75,000 pounds, [24] with limited exceptions. [25] In the Part 161 Study, the NAA stated that it had established a “land use compatibility goal” of “minimizing residential land within [the] 60 dB DNL [contour] to the maximum feasible extent.” [26] The study stated that this goal had been adopted because the City of Naples and Collier County had adopted DNL 60 dB as the limit for land use compatibility and “[a]irports are instructed to adopt compatibility criteria established by local jurisdictions.” [27] Based on complaint data, the NAA also asserted that restricting Stage 2 jets was justified since they are the “principal source of the noise impact that causes community concern.” [28] In conjunction with the FAA’s review of the adequacy of the study under the requirements of ANCA, the FAA also reviewed the proposal for adequacy under federal grant assurance obligations and other Federal law.

On August 21, 2000, the FAA provided comments on the Notice of Proposed Restrictions on Stage 2 Aircraft Operations at Naples Municipal Airport and the accompanying Part 161 Study. In these comments, the FAA stated that "[i]t is not clear that the City of Naples and Collier County have in fact determined that residential use is non-compatible within the DNL 60 dB contour." The FAA also noted that the Part 161 Study "does not indicate whether any of the residential development cited as non-compatible within the DNL 60 dB contour was permitted by the City" after the FAA approved a land use measure in the 1997 revision of the NAA's Noise Compatibility Program. NAA's Noise Compatibility Program would create a "buffer" within the DNL 60 dB contour to ensure that residential and noise sensitive uses are not developed too close to the Airport. [29]

On September 18, 2000, the FAA’s Director of the Office of Airport Safety and Standards provided additional comments to the NAA regarding the proposed Stage 2 ban. This letter stated that on the basis of an initial review, the FAA had identified aspects of the proposed ban that appeared to be, or had the potential to be, inconsistent with the obligation to provide reasonable access to the airport (Grant Assurance 22a). Additionally, the FAA expressed its concerns that not only was the operating restriction based solely on impacts to the DNL 60 dB noise contour (since there were no incompatible land uses within the DNL 65 dB contour), it was also the broadest type of restriction, representing a total ban on a category of operator. [30]

The FAA reiterated its doubts regarding whether the City of Naples or Collier County had in fact determined that residential use is non-compatible within the DNL 60 dB contour and whether the City and County had taken appropriate action to limit development within the DNL 60 dB contour. The FAA also noted that "[w]hile local airport restrictions are generally preempted, the courts have defined a limited exception to this preemption for local airport proprietors, based on their legitimate interest in avoiding liability for excessive noise generated by airports they own." On this last point, the FAA requested information from the NAA on "[a]ny court-ordered action or estimated liability concerns." [31]

In an attempt to understand the NAA’s reliance upon complaint data to support the proposed ban, on October 19, 2000, the FAA requested information regarding the origin of the noise complaints received with respect to the noise contours, the frequency of calls from each complainant, the time of day and date of each complaint and the type of aircraft causing the noise complaint. [32] The NAA’s response, dated October 28, 2000, included noise complaint figures from 1999. [33] On October 24, 2000, counsel for the NAA responded to both the August 21 and September 18, 2000 FAA letters. In response to the FAA’s September 18 letter from the Director of the Office of Airport Safety and Standards, counsel for the NAA stated that the proposed restriction would fully comply with the NAA's obligations under Grant Assurance 22. In the letter to the Director, counsel for the NAA included information regarding the NAA's potential liability concerns, and stated that the City of Naples, Collier County, and the NAA "selected a reasonable threshold of land use compatibility based upon their reasonable assessment of potential liability. [34]

On November 16, 2000, the NAA passed resolution 2000-8, implementing the rule banning operations by Stage 2 aircraft. [35]

Representatives of the NAA and the FAA met on January 4, 2001, and FAA representatives attended a meeting of the NAA Board on January 18, 2001. In a letter dated January 30, 2001, the FAA notified the NAA that the FAA would perform a substantive review of any analysis provided by the NAA, including information provided in connection with the Part 161 process, to determine whether or not the proposed restriction is consistent with the applicable grant assurances. In the letter, the FAA stated that this review would include "a determination whether or not the NAA has reasonably demonstrated a legitimate interest in avoiding liability for excessive noise generated by the airport." The FAA also stated that “our substantive considerations to date are not favorably inclined to find it reasonable to address the particular circumstances at Naples between the DNL 60 and 65 dB noise contours with a total ban on a class of user." [36]

By letter dated February 16, 2001, the FAA gave a "preliminary opinion," based on the information available at the time, that "the ban on Stage 2 is not a reasonable restriction on use of the airport and is not permitted under the assurances in the Authority's grant agreements." The FAA identified several considerations to support this conclusion, including: (1) doubt regarding whether the local communities have in fact determined that residential use between the DNL 65 and 60 dB contours is incompatible; (2) lack of factual or legal support for the NAA’s “concern [about liability] as it relates to the location of residential property between the DNL 65 and 60 dB contours”; and (3) doubt regarding whether the NAA's noise complaint data support a total ban on Stage 2 operations. [37]

In a letter dated March 19, 2001, the NAA notified the FAA that it had decided to proceed with a Supplemental Analysis to the Part 161 Study intended to address unresolved Part 161 issues raised by the FAA. Furthermore, the NAA expressed an interest “in working with the FAA to negotiate a resolution to the grant compliance issues. The Board adopted a motion directing the staff to work and meet informally with the appropriate FAA officials to focus on grant compliance issues and to report back to the Board on those efforts." [38] On June 23, 2001, the NAA submitted to the FAA a draft of the Supplemental Analysis. [39]

On August 16, 2001, the NAA approved starting a new 45-day comment period and 180-day notification period regarding the Part 161 study, including the Supplemental Analysis, and deferred enforcement of the Stage 2 ban until March 1, 2002. [40] The FAA provided comments on the Supplemental Analysis in correspondence dated October 31, 2001. As stated in that correspondence, the Supplemental Analysis did not resolve the FAA's concerns regarding compliance with other Federal law, including sponsor assurances in the NAA's Federal grant agreements. [41]

Also, on October 31, 2001, the FAA issued a NOI in accordance with 14 C.F.R. Part 16, Subpart D, concerning the proposed ban of operations by Stage 2 aircraft at Naples Airport. In the notice, the FAA expressed serious concerns that the ban is contrary to Federal law and related sponsor Federal grant assurance obligations. [42]

On December 3, 2001, the NAA filed a Reply to the NOI. In the Reply, the NAA asserted that the NOI “states no grounds for finding violations of federal law or related grant assurance obligations.” [43] More particularly, the NAA claimed that the NOI: (1) writes requirements into ANCA that do not exist and were intentionally excluded by Congress; (2) demands justifications for the restriction that have no basis in any requirement imposed by statute, regulation, or prior judicial decision; (3) imposes requirements for use restrictions that likely could not be satisfied under any conditions; (4) exceeds the jurisdiction and mandate of the Agency by attempting to elevate the FAA’s application of grant agreement provisions above the clear mandate of Congress as expressed both in ANCA and other federal aviation statutes; (5) allows the FAA not only to ignore the decision of a Federal District Court that is directly on point but also to apply wholly different standards to the same issues; and (6) renders the exhaustive and costly Part 161 process a nullity. [44]

On March 1, 2002, the NAA initiated enforcement of the Stage 2 ban. [45] The NAA permits Stage 1 and Stage 2 propeller-driven aircraft to use the airport while restricting both Stage 1 and Stage 2 jet aircraft. [46] Additionally, the NAA permits aircraft that are not certificated under 14 CFR Part 36, Appendix C Subsection 36.5, to continue to operate at the Airport. [47]

On December 27, 2002, the Naples Daily News quoted NAA officials as stating that NAA is prohibiting all Stage 2 jets from using the airport. [48]


IV. APPLICABLE LAW AND POLICY

A. The Airport Improvement Program and the Airport Sponsor Assurances

Title 49 U.S.C. § 47101, et seq., provides for Federal airport financial assistance for the development of public-use airports under the AIP established by the AAIA as amended. Section 47107, et seq., sets forth assurances to which an airport sponsor agrees as a condition of receiving Federal financial assistance. Upon acceptance of an AIP grant, the assurances become a binding contractual obligation between the airport sponsor and the Federal government.

The FAA has a statutory mandate to ensure that airport owners comply with these sponsor assurances. [49] FAA Order 5190.6A, Airport Compliance Requirements, issued on October 1, 1989, provides the policies and procedures to be followed by the FAA in carrying out its legislatively mandated functions related to federally obligated airport owners' compliance with their sponsor assurances. The Congress mandated conditions such as these on grants to local airport proprietors in part to ensure the maintenance of conditions essential to an efficient national air transportation system. A grant agreement under the AAIA “is not an ordinary contract, but part of a procedure mandated by Congress to assure federal funds are disbursed in accordance with Congress’ will.” [50]


B. Public Use of the Airport -- Grant Assurance 22

The owner of any airport developed with Federal grant assistance is required to operate the airport for the use and benefit of the public and to make it available to all types, kinds, and classes of aeronautical activity on reasonable terms, and without unjust discrimination. Grant Assurance 22, Economic Nondiscrimination, of the prescribed sponsor assurances implements the provisions of 49 U.S.C. § 47107(a)(1) through (6), and requires, in pertinent part, that the sponsor of a federally obligated airport

will make its airport available as an airport for public use on reasonable terms, and without unjust discrimination, to all types, kinds, and classes of aeronautical activities, including commercial aeronautical activities offering services to the public at the airport. [Assurance 22(a)]

* * *

may establish such reasonable and not unjustly discriminatory conditions to be met by all users of the airport as may be necessary for the safe and efficient operation of the airport. [Assurance 22(h)]

The FAA uses the standards for approval of airport noise and access restrictions under the Aviation Safety and Noise Abatement Act (ASNA), 49 U.S.C. § 47501 et seq, as implemented by 14 C.F.R. Part 150, to define the responsibilities under Grant Assurance 22 assumed by the owners of public use airports developed with Federal assistance. Specifically, describing compliance with grant assurances, FAA Order 5190.6A states that noise-related airport use restrictions: (1) must be reasonably consistent with reducing non-compatibility of land uses around the airport; (2) must not create an undue burden on interstate or foreign commerce; (3) must not be unjustly discriminatory; (4) must not derogate safety or adversely affect the safe and efficient use of airspace; (5) meet both local needs and the needs of the national air transportation system to the extent practicable; and (6) must not adversely affect any other powers or responsibilities of the FAA Administrator prescribed by the law or any other program established in accordance with the law. [51]

In addition to constitutional limitations, the contractual obligations under Grant Assurance 22 incurred by airport operators in exchange for Federal grant funds place limitations on the operators’ ability to control aircraft noise, including the enactment of aircraft curfews or bans. [52] In United States v. County of Westchester, [53] the court struck down a 1981 County curfew banning all aircraft between the hours of 12:00 midnight and 7:00 a.m., regardless of noise emission level or degree of noise produced. The County enacted the curfew without supporting noise data and against the FAA’s advice, [54] and was immediately challenged in court. The Court invalidated the curfew because 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. [55]

In addition to the lack of factual support for the curfew, the court also found that “[a]s an alternative to imposing a curfew, there are a number of other means of mitigating and reducing noise from aircraft in and around an airport, including (1) use of reduced power on take-off and landing; (2) preferential runway systems; (3) imposition of noise- level restrictions; (4) altitude restrictions; and (5) designation of arrival and departure routes over less populated areas. [56]

The court found as well that the curfew had an adverse effect on corporate and business aircraft based at the Airport. According to the court, the curfew caused economic harm, delays, disruption in business scheduling, reduced flexibility, and reduction in the corporations' ability to use aircraft as a business tool. These adverse effects pertain not only to large corporate aircraft owners, but to individual businessmen as well. Flights in and out of other airports are not an adequate substitute for the flexibility provided by business and corporate air flights in and out of the Airport. [57]


C. The FAA Airport Compliance Program

The FAA ensures that airport owners comply with their Federal grant obligations through the FAA's Airport Compliance Program. The program is based on the contractual obligations, which an airport owner accepts when receiving Federal grant funds or the transfer of Federal property for airport purposes. These obligations are incorporated in grant agreements and instruments of conveyance in order to protect the public’s interest in civil aviation and to ensure compliance with Federal laws.

The FAA Airport Compliance Program is designed to ensure the availability of a national system of safe and properly maintained public- use airports operated in a manner consistent with the airport owners’ Federal obligations and the public’s investment in civil aviation. The Airport Compliance Program does not control or direct the operation of airports; rather it monitors the administration of the valuable rights pledged by airport sponsors to the people of the United States in exchange for monetary grants and donations of Federal property to ensure that the public interest is being served.

As a general rule, the FAA Compliance Program is designed to achieve voluntary compliance with Federal obligations. In addressing allegations of noncompliance, the FAA will make a determination as to whether an airport sponsor is currently in compliance with the applicable Federal obligations. FAA has to make a judgment of whether the airport sponsor is reasonably meeting the Federal obligations. FAA can also take into consideration any action or program the sponsor has taken or implemented or proposed action or program the sponsor intends to take, which in FAA's judgment, is adequate to reasonably carry out the obligations under the grant assurances. [58] Thus, the FAA can take into consideration reasonable corrective actions by the airport sponsor as measures to resolve alleged or potential violations of applicable Federal obligations, and as measures that could prevent recurrence of noncompliance and ensure compliance in the future.


D. Legal Responsibilities of the Federal Government

Responsibility for the oversight and implementation of aviation laws and programs is assigned to the FAA under the Federal Aviation Act of 1958 (FAA Act), as amended, 49 U.S.C. § 40101 et seq. The basic national policies intended to guide FAA actions under the FAA Act are set forth in 49 U.S.C. § 40101(d), which declares that certain matters are in the public interest. [59]

To achieve these statutory purposes, 49 U.S.C. §§ 40103(b), 44502, and 44721 provide extensive and plenary authority to the FAA concerning use and management of the navigable airspace, air traffic control, and air navigation facilities. The FAA has exercised this authority by promulgating wide-ranging and comprehensive Federal regulations on the use of navigable airspace and air traffic control. [60] Similarly, the FAA has exercised its aviation safety authority, including the certification of airmen, aircraft, air carriers, air agencies, and airports under 49 U.S.C. § 44701 et seq. by extensive Federal regulatory action. [61]

The Federal government, through this exercise of its constitutional and statutory powers, has preempted the areas of airspace use and management, air traffic control and aviation safety. Under the legal doctrine of Federal preemption, which flows from the Supremacy Clause of the Constitution, state and local aut horities do not generally have legal power to act in an area that already is subject to Federal regulation.

Since the late 1950s, noise from aircraft and airport operations has generated controversy with many surrounding communities and has emerged as a constraint on airport development. Although new technology is making aircraft quieter, at some airports growth in air traffic may achieve levels that offset the net reduction in overall noise levels.

Because of the increasing public concern about aircraft noise that accompanied the introduction of turbojet powered aircraft into commercial service in the 1960s, and the constraints such concern posed for the continuing development of civil aeronautics and the air transportation system of the United States, the Federal Government in 1968 sought -- and Congress granted -- broad authority to regulate aircraft for the purpose of noise abatement. This authority, codified at 49 U.S.C. § 44715, constitutes the basic authority for Federal regulation of aircraft noise.

Under section 44715, the FAA is required to consider whether a proposed aircraft noise rule is consistent with the highest degree of safety in air commerce and air transportation, economically reasonable, technologically practicable and appropriate for the particular type of aircraft. [62] On November 18, 1969, the FAA promulgated the first aircraft noise regulations, which were codified at 14 C.F.R. Part 36. [63] The new Part 36 became effective on December 1, 1969, and prescribed noise standards for the type certification of subsonic transport category airplanes and for subsonic turbojet powered airplanes regardless of category.

Part 36 was initially applicable only to new types of aircraft. As soon as the technology had been demonstrated, the standard was to be extended to all newly manufactured aircraft of already certificated types. Ultimately, the preamble indicated, when technology was available the standard would be extended to aircraft already manufactured and in operation. This last step would require modification or replacement of all aircraft in the fleet that did not meet the Part 36 noise levels.

In 1973, the FAA amended Part 36 to extend the applicability of the noise standards to newly produced airplanes irrespective of type certification date. [64] In 1977, the FAA amended Part 36 again to provide for three stages of aircraft noise levels, each with specified limits. This regulation required applicants for new type certificates applied for on or after November 5, 1975, to comply with “Stage 3” noise limits, which were stricter than the noise limits then being applied. Airplanes in operation at the time that did not meet the Stage 3 noise limits were designated either as “Stage 2” or “Stage 1” airplanes. In 1976, the FAA amended the aircraft operating rules in 14 C.F.R. Part 91 to phase out operations in the United States by January 1, 1985, of so-called “Stage 1 aircraft” weighing more than 75,000 pounds. These aircraft were defined as civil subsonic aircraft that did not meet Stage 2 or 3 Part 36 noise standards.

In the Airport Noise and Capacity Act of 1990, as one of three elements in a national aviation noise policy, Congress directed the FAA to adopt regulations to provide for the phase-out of operations by January 1, 2000, of Stage 2 aircraft weighing more than 75,000 pounds. The regulations implementing this requirement were effective on September 25, 1991, and are codified at 14 C.F.R. Part 91, Subpart I. The regulations provided two options to meet the schedule for the transition to 100 percent Stage 3 operations in the contiguous United States by December 31, 1999. One option allowed an operator to meet the compliance schedule by phasing out Stage 2 airplanes. Under this option, an operator could operate no more than 75 percent of its Stage 2 base level after December 31, 1994, 50 percent after December 31, 1996, and 25 percent after December 31, 1998.

The second option allowed an operator to meet the compliance schedule by attaining a fleet composition of not less than 55 percent Stage 3 airplanes after December 31, 1994, 65 percent after December 31, 1996, and 75 percent after December 31, 1998. New entrant operators (those that did not conduct operations on or before November 5, 1990) had to operate a fleet composed of at least 25 percent Stage 3 airplanes after December 31, 1994, 50 percent after December 31, 1996, and 75 percent after December 31, 1998. All operators were required to operate 100 percent Stage 3 fleets after December 31, 1999.

In addition to its regulatory authority over aircraft safety and noise, the FAA has long administered a program of Federal grants-in-aid for airport construction and development. By virtue of its decision- making on whether to fund particular projects, the FAA has been able, to a degree, to ensure that new airports or runways will be selected after evaluating environmental effects including noise impacts. That indirect authority was measurably strengthened when in 1970 the Airport and Airway Development Act expanded and revised the FAA's grant- in-aid program for airport development, and added environmental considerations to project approval criteria. [65]

The 1976 amendments to the 1970 Act increased funding levels and provided new authority to share in the costs of certain noise abatement activities, as part of a pilot program initiated under the 1976 Aviation Noise Abatement Policy. [66] In 1979, Congress enacted the ASNA, 49 U.S.C. § 47501 et seq., to support Federal efforts to reduce no ise and to encourage development of compatible land uses around civil airports in the United States. This was done because residential development adjacent to an airport may greatly restrict the usefulness of Federal funding in aviation due to aircraft noise. In 1981, the FAA adopted 14 C.F.R. Part 150 to implement ASNA. Under ASNA, the FAA is authorized to provide grants to airport sponsors to fund voluntary preparation of noise exposure maps, comprehensive noise compatibility planning, soundproofing, land acquisition, and other projects to carry out noise compatibility programs. Noise compatibility programs are developed in consultation with surrounding communities and airport users. The airport must notify the public and afford an opportunity to comment at a public hearing. [67]

The AAIA established the AIP and first made funds available for noise compatibility planning and to carry out noise compatibility programs authorized under ASNA. The AAIA has been amended several times, and provides the authority for the current Federal AIP program. Applications for airport development projects have consistently exceeded available funding, although the amounts available for obligation under the AIP have ranged from approximately $450 million in Fiscal Year 1982 to a recent high of approximately $3.6 billion in FY 2002.

In addition to the AIP program, the FAA is responsible for the Passenger Facility Charge (PFC) program, which also funds airport capital development projects and noise-related projects. [68] Together, these programs have, as of the year 2000, provided airports with about $3 billion a year; Of that total, about $284 million was targeted in fiscal year 1999 for projects to reduce airport-related noise or mitigate its effects. [69] Between 1982 and 2001, the agency committed over $156 million of Airport Improvement Program funds for compatible land use, noise compatibility planning and noise mitigation projects in Florida. [70]

In 1990, Congress established the basics of a National Aviation Noise Policy in ANCA, 49 U.S.C. § 47521. [71] This Policy included several elements. The first was a program for transition to an all-Stage 3 civil subsonic turbojet aircraft fleet. In 1991, pursuant to ANCA, the FAA amended Part 91 to establish a phased program to require operations by aircraft weighing more than 75,000 pounds to meet Stage 3 noise standards by the year 2000. This phase out requirement applied to all operators of large Stage 2 civil subsonic turbojet aircraft, not just air carriers, operating in the contiguous United States.

The second element was a national program for review of airport noise and access restrictions on operations by Stage 2 and Stage 3 aircraft. [72] ANCA applies to restrictions affecting operations by any Stage 2 aircraft [73] proposed after October 1, 1990, and to restrictions affecting operations by any Stage 3 aircraft if the restriction was not in effect before October 1, 1990. In 1991, as a companion rulemaking to the Part 91 amendment, the FAA adopted Part 161 to implement the requirements under ANCA relating to airport restrictions.


E. The Airport Noise Compatibility Planning Program

In ASNA, Congress directed the FAA to: (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 reactions of people to noise; (2) establish a single system for determining the exposure of individuals to noise from airport operations; and (3) identify land uses that are normally compatible with various exposures of individuals to noise. [74] As stated above, the FAA adopted 14 C.F.R. Part 150 to implement ASNA.

Part 150 established the “day-night average sound level” (DNL) as the noise metric for determining the exposure of individuals to airport noise, and identified residential land use as being normally compatible with noise levels below DNL 65 dB. [75]

ASNA also provided for Federal funding and other incentives for airport operators to voluntarily prepare noise exposure maps and noise compatibility programs. [76] Under ASNA, noise compatibility programs “shall state the measures the [airport] operator has taken or proposes to take to reduce existing noncompatible uses and prevent introducing additional noncompatible uses in the area covered by the [noise exposure] map” submitted by the airport operator. [77]

Consistent with ASNA, Part 150 requires airport operators preparing noise compatibility programs to analyze the following alternative measures: (1) acquisition of land and interests therein, including but not limited to air rights, easements, and development rights; (2) construction of barriers and acoustical shielding, including the soundproofing of public buildings; (3) implementation of a preferential runway system; (4) use of flight procedures to control the operation of aircraft to reduce exposure of individuals or specific noise sensitive areas to noise in the area around the airport; (5) implementation of restrictions on the use of the airport by type or class of aircraft based on the noise characteristics of the aircraft; (6) other actions or combinations of actions which would have a beneficial noise control or abatement impact on the public; and (7) other actions recommended for analysis by the FAA for the specific airport. [78]

Under Part 150, an airport operator “shall evaluate the several alternative noise control actions” and develop a noise compatibility program that: (1) reduces existing noncompatible uses and prevents or reduces the probability of the establishment of additional noncompatible uses; (2) does not impose an undue burden on interstate and foreign commerce; (3) provides for revision as necessary; (4) is not unjustly discriminatory; (5) does not derogate safety or adversely affect the safe and efficient use of airspace; (6) to the extent practicable, meets both local needs and needs of the national air transportation system; and (7) can be implemented in a manner consistent with all of the powers and duties of the Administrator of the FAA. [79]

As a matter of policy, FAA encourages airport proprietors to implement airport noise compatibility programs under Part 150. [80] Where an airport proprietor is considering an airport use restriction, Part 150 provides an effective process for determining whether the proposed restriction is consistent with applicable legal requirements, including the grant assurances in airport development grants. As recognized by the FAA in the preamble to the Part 150 final rule:

[T]he ASNA Act and Part 150 set forth an appropriate means of defining the noise problem, determining the wide range of affected interests, ensuring broad public and aeronautical participation, and, finally, balancing all of these interests in a manner that is needed to assure a reasonable, nonarbitrary, and nondiscriminatory result that is consistent with the airport proprietor’s broad duties under the constitution and its specific duties under applicable airport development grants. [81]
Accordingly, the FAA included in Part 161 an option to use the Part 150 process to provide public notice and opportunity to comment on a proposed Stage 2 restriction. [82] In the proposed Part 161 rule, the FAA encouraged the use of Part 150 for meeting the notice and comment requirements of Part 161, noting that the Part 150 process “is more comprehensive in scope in that it includes compatible land use planning, as well as restrictions on aircraft operation.” [83] The FAA further noted, in the preamble to the Part 161 final rule, that a Part 150 determination “may provide valuable insight to the airport operator regarding the proposed restriction’s consistency with existing laws, and the position of the FAA with respect to the restriction.” [84]


V. ISSUES UNDER INVESTIGATION

The issues under investigation are:


VI. ANALYSIS AND DISCUSSION

A. The Relationship Between ANCA And Grant Assurances

In its Reply, the NAA asserts that the Stage 2 ban “is not subject to the grant assurance requirements identified in the Notice of Investigation, including the requirement to provide public access to the Airport on reasonable terms and without unjust discrimination.” [86] The basis for this assertion appears to be the NAA’s contention that Congress, in 49 U.S.C. § 47524, granted airport proprietors the “express right” to ban Stage 2 aircraft, [87] thus superseding other Federal law, including the statutory grant assurance requirements in 49 U.S.C. § 47107(a). This argument is without merit. As explained below, the language and legislative history of ANCA show that Congress intended to preserve, and add to, preexisting law relating to local noise and access restrictions on Stage 2 aircraft, including the applicable grant assurance requirements in section 47107(a). Moreover, the NAA’s interpretation of ANCA would lead to absurd results.

Under well-established legal principles, the first inquiry in interpreting a statute is whether Congress has “directly spoken” on the subject at issue. Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837, 842 (1984). “If a court, employing traditional tools of statutory construction, ascertains that Congress had an intention on the precise question at issue, that intention is the law and must be given effect.” Id. at 843 n.9. [88] If congressional intent is not clear, an agency may “fill[] the statutory gap ‘in a way that is reasonable in light of the legislature’s revealed design.’” Lopez v. Davis, 531 U.S. 230, 242 (2001). An interpretation of a statute by the agency charged with administering it will be accorded deference, provided the interpretation is “based on a permissible construction of the statute.” Yellow Transportation, Inc. v. Michigan, 123 S. Ct. 371, 377 (2002) (quoting Chevron, supra, 467 U.S. at 843). See also Grand Canyon Air Tour Coalition v. FAA, 154 F.3d 455, 466 (D.C. Cir. 1998) (where Congress is silent or ambiguous on an issue, an agency’s interpretation need only be “reasonable in light of the [statute’s] text, legislative history, and purpose”).

In ANCA, Congress directed the FAA to “establish[] by regulation a national program for reviewing airport noise and access restrictions on the operation of stage 2 and stage 3 aircraft.” [89] The FAA promulgated 14 C.F.R. Part 161 to implement this statutory requirement. In the Part 161 rulemaking, the FAA interpreted section 9304(h) of ANCA, codified as amended at 49 U.S.C. § 47533, [90] as preserving the preexisting grant assurance requirements in 49 U.S.C. § 47107(a), which include the requirement that before approving a grant application for an airport development project the Secretary of Transportation must receive satisfactory written assurance that the airport “will be available for public use on reasonable conditions and without unjust discrimination.” [91] In the preamble to the proposed rule, for example, the FAA stated that “the FAA’s determination that an airport operator or public agency was imposing a noise or access restriction in violation of [Part 161] would be separate from any finding of a violation of the grant assurances required under the Airport and Airway Improvement Act (AAIA).” [92] The FAA further explained its interpretation of ANCA on this issue in the preamble to the final rule:

[ANCA] in no way grants airport operators any authority they did not have prior to the Act. Under section 9304(h), 49 U.S.C. App. 2351(h), preexisting legal limitations on airport operators’ authority are not affected except as required by applying the terms of section 9304. The courts have consistently recognized FAA’s legal authority to challenge airport noise and access restrictions that are discriminatory, unreasonable, or impose an undue burden on interstate commerce. This authority is expressly preserved and recognized by the Act. [93]
The FAA’s interpretation gives effect to the intent of Congress in enacting ANCA, as discussed below.


1. Congressional Intent Regarding Preservation Of Preexisting Law Relating To Airport Noise And Access Restrictions On Operations By Stage 2 Aircraft

Congress has directly spoken to the issue of the effect of ANCA on preexisting law relating to local noise and access restrictions. Section 47533 of the statute includes the following “savings” provision:

Except as provided by section 47524 of this title, this subchapter does not affect—

(1) law in effect on November 5, 1990, on airport noise or access restrictions by local authorities . . . . [94]

The “law in effect on November 5, 1990, on airport noise or access restrictions by local authorities” included the grant assurance requirements in 49 U.S.C. § 47107(a)(1). [95] For Stage 2 aircraft, these grant assurance requirements are still the primary substantive statutory requirements governing access to Federally-funded public-use airports. [96] Section 47533(1) expressly preserves such preexisting law “[e]xcept as provided by section 47524.” With respect to noise or access restrictions on operations by Stage 2 aircraft, section 47524 establishes requirements relating to public notice, opportunity for comment, and analysis prior to the effective date of a restriction. Section 47524 adds to, but does not otherwise affect, preexisting law, including the applicable grant assurance requirements in 49 U.S.C. § 47107(a). Indeed, as discussed below, these statutory provisions must be harmonized so as to give full effect to both. [97]

Congressional intent on this issue is also reflected in one of ANCA’s primary purposes: preventing the uncontrolled proliferation of local airport noise and access restrictions that could impede the national air transportation system. [98] Interpreting the statute as allowing a restriction on Stage 2 aircraft weighing 75,000 pounds or less, regardless of the reasonableness of the restriction or its compliance with other Federal law, is inconsistent with this purpose. It simply defies logic to assume that despite Congress’ stated concern with “uncoordinated and inconsistent” restrictions on aircraft, [99] ANCA was intended to remove preexisting legal requirements governing such restrictions. [100]


Continued in Part Two

FOOTNOTES