ii. Exclusion Of Noise From The NAA’s Background And Ambient Noise Level Analysis

The body of literature in the area of ambient noise measurements is extremely limited. A clear understanding of the ambient sound level measured in the study is an essential prerequisite to knowing if the data collection, reduction, and interpretation are correct. The term “residual” used by the NAA in its description of the methodology employed by the NAA is a rarely- used and ambiguous term in reference to the ambient sound level or “background” (this term is used in aircraft certification to account for the margina l reduction of sound system electrical noise). In addition to using ambiguous terminology, the analysis does not clearly state what ambient sound level is actually measured or what types of controls and protocols were used to insure that it was collected properly (e.g., field monitoring or measurement standards, meteorological instrumentation, and acoustic observer or alternative aircraft identification procedures).

Ambient noise is traditionally defined as the composite, all- inclusive sound associated with a given environment, excluding the sound source of interest, which is aircraft noise in this case. It appears that the “residual” noise data collected in this study refers to a very restrictive data set characterizing a low natural ambient sound level, which excludes existing noise from human and mechanical sources, such as roadways, as well as many natural sounds.

The NAA’s incorrect definition and inappropriate use of the L90 descriptor raises the FAA’s concern about how the data analysis was performed. The L90 noise descriptor used by the NAA in its analysis of the ambient noise levels at locations in the DNL 60 dB contour has been rejected by FAA for statistical analysis of monitored ambient data in low-level noise environments. The FAA objects to the use of L90 for several technical reasons. L90 is a statistical measure that represents the quietest 10 percent of data. The quietest 10 percent of data excludes the full range of natural sounds. In effect, the L90 represents a minimum noise level, not an average or prevailing noise level. Moreover, the simple L90 statistical approach to data analysis can result in contamination of the data because it does not distinguish sources of sounds and includes all sounds, including man-made sounds such as aircraft. L90 produces an unreasonably low statistical evaluation of an ambient noise environment.

The NAA’s exclusion of noise that should be included is not reasonable since many, if not most, of the properties at issue in this case are located in areas zoned as “commercial mixed use.” For example, the noise disclosure document issued for the Bayfront Condominium development, in addition to stating that the condominiums are subject to common noises and disturbances created by the airport, also states that:

THE UNITS IN THIS CONDOMINIUM WILL BE LOCATED ABOVE, AND IN CLOSE PROXIMITY TO RESTAURANTS, BARS, RETAIL STORES OR OTHER BUSINESSES WHICH MAY OPERATE AT UNUSUALLY LATE OR EARLY HOURS, UNAVOIDABLY CAUSING NOISE, AND EMITTING STRONG ODORS ASSOCIATED WITH COOKING OR OTHER BUSINESS-RELATED ACTIVITIES. NO ONE TO WHOM A QUIET, SERENE RESIDENTIAL ENVIRONMENT IS IMPORTANT SHOULD CONSIDER PURCHASING A UNIT IN THIS CONDOMINIUM FOR HIS OWN USE AND OCCUPANCE.306

iii. The NAA’s Assertion That The Ambient Noise Within The DNL 60 dB Contour Is Extremely Low

The deficiencies associated with the use of the L90, as discussed above, may explain the discrepancies in the data. Specifically, the NAA states that low ambient noise levels in residential areas within the airport noise study area increase the intrusiveness of aircraft operations, particularly operations by Stage 2 aircraft. In an attempt to establish a baseline noise level within the DNL 60 dB contour, the NAA asserts that ambient noise levels are extremely lo w at most locations, generally between 40 and 50 dB. The NAA argues that these low ambient noise levels support the use of the DNL 60 dB contour, rather than DNL 65 dB contour, to justify the Stage 2 ban. [307]

The reported data suggest, however, that background noise levels in some residential areas are higher than the levels advanced by the NAA. [308] Following are some examples from NAA’s Quarterly Noise Reports. In its October 1, 1999 through December 31, 1999, report, the NAA reports noise observations at Site 6 over a two-day period. According to the NAA, on the first day, the background noise was between 53.0 and 58.0 decibels due to local traffic and construction trucks. On the second day of testing, “45 events occurred,” with 31 of the events attributable to construction trucks. [309] Also, on March 3, 2000, observes noted at Site 6, “constant construction noise” due to road construction background noise was noted between 60.0 and 62.0 dB. [310] Similarly, on March 7, 2000, background noise levels between 53.0 and 59.0 decibels was noted “due to local traffic and construction noise.” [311]

In another instance, observers reported constant construction noise in the background at Site 2 that registered between 55 and 59 dB “nearly constantly.” [312] Finally, at yet another site, Site 3, background noise was recorded at 54.0 decibels with no aircraft noise exceeding the background level. [313]

While these data are inconclusive, they do illustrate that there are residential areas around the airport where the levels of ambient noise are high, or at least typical for a community of this size, due to non-aircraft sources. [314] In many cases, these levels result from surface traffic and construction, both widespread throughout the community and recurrent in many residential locations near and around the airport environment, [315] suggesting that the communities surrounding the airport are typical of urban areas rather than atypical. Essentially, the NAA provides no adequate evidence to demonstrate that Naples is distinguishable from other U.S. communities with a warm climate and outdoor lifestyle.

In summary, 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 of noise compatibility threshold to support an airport restriction. The FAA does not find it reasonable to restrict access to the airport on the basis of Naples’ ambient noise levels.

e. Conclusion On Noncompatible Land Use

For all of the reasons set forth above, we find that the NAA’s Stage 2 ban is not justified by an existing noncompatible land use problem. Therefore, we need not determine whether the Stage 2 ban is effective in addressing the NAA’s stated land use compatibility goal.

2. The NAA’s Failure To Take A Balanced Approach To Addressing Its Stated Land Use Compatibility Goal

Even if the Stage 2 ban were adequately justified by existing non-compatible land uses, it would still be unreasonable because the NAA’s implementation of the ban does not reflect a balanced approach to addressing its stated land use compatibility goal at APF that fairly considers both local and Federal interests. 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,” [316] 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. Instead, it rejected each measure simply because, individually, it would not be as effective as, or would be more costly than, the Stage 2 ban. [317] Furthermore, the NAA unreasonably concluded that the only acceptable mitigation measure for all 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. [318]

The availability of a combination of non-restrictive measures that could achieve adequate noise mitigation and minimize the apparent need for an access restriction goes directly to the reasonableness of a decision to bypass non-restrictive alternatives and instead to rely almost totally on the restriction of airport use. A balanced approach—using a combination of non-restrictive measures and considering use restrictions only as a last resort—is inherently reasonable and is used nationally [319] and internationally. [320]

The FAA’s concern for this lack of a balanced approach is amplified by the fact that the NAA has failed to advocate and/or implement the majority of these non-restrictive measures that the FAA approved for the NAA’s 1997 Part 150 study. The NAA has disregarded several non-restrictive alternatives that it adopted in its earlier Part 150 studies. For example, in its 1997 Part 150 study, the NAA recommended and the FAA approved, among other things, land and easement acquisition in the Rock Creek Campground and Naples Villas and the development of a fair disclosure program to educate potential home buyers. [321] The Rock Creek Campground is in the pre-Stage 2 ban DNL 60 dB contour. As stated in the NAA’s 1997 Part 150 study, the fair disclosure measure “should be extended beyond the boundaries of the 65 Ldn contour so all potential residents who would be located along the flight paths of the runways would be aware of their location.” [322] In its November 2000 Part 150 Noise Exposure Map update, the NAA reported that neither of these measures had been implemented. [323] Certainly, such actions, or rather lack of action, do not support the NAA’s contention that it “has exhausted all reasonably feasible non-restrictive measures to achieve its land use compatibility goal...” [324]

The FAA does not find it reasonable for the NAA to now reject these measures on the basis that they are allegedly more costly or less effective than the Stage 2 ban. As discussed more fully below and supported by information elsewhere in this Determination, the NAA unreasonably concluded that all people residing inside the DNL 60 noise contour needed to be removed from that area of noise exposure, with no complementary past or present local program to achieve such a goal. Furthermore, the NAA’s reliance on its Part 161 benefit-cost analysis to support the reasonableness of the Stage 2 ban is misplaced. In the letter dated October 31, 2001, the FAA did not approve that analysis and in fact identified flaws in the analysis that undermine the NAA’s contention that the Stage 2 ban is far superior to other alternatives. Finally, the NAA failed to give fair consideration to non-restrictive alternatives that would appropriately balance Federal and local interests in both noise abatement and a national airport system open to all users.

a. The NAA’s Conclusion Regarding Mitigation Of All People Residing Inside The DNL 60 dB Contour

The NAA contended, in its Part 161 Study, that the estimated population residing within the DNL 60 dB contour based on the pre-restriction airport operations would be 1,306 people by 2005. According to the NAA’s analysis, this number would be reduced to 370 people as a result of the Stage 2 ban, which results in the removal of 936 people from inside the DNL 60 dB contour. [325] However, some of the 1,306 people included by the NAA reside in properties that are already subject to avigation easements acquired by the NAA. The NAA’s inclusion of these people as impacted in its analysis supporting the Stage 2 ban is unreasonable.

As previously discussed in this determination, Federal guidelines do not classify residential land uses as noncompatible with noise exposure levels below DNL 65 dB; therefore, Federal guidelines do not recommend the removal of residents from such areas. The FAA does support local efforts to establish a noise buffer in areas of moderate noise exposure, i.e., between DNL 60 and 65 dB; and in fact, FAA approved such a buffer in the NAA’s 1997 Part 150 update. [326] However, given that aircraft noise exposure is moderate, rather than significant, between DNL 60 and 65 dB, as a general rule fewer mitigation measures are appropriate and practicable at these noise levels. [327] The FAA endorses this position in laying out the first Federal noise buffer policy in the draft Aviation Noise Abatement Policy 2000, which states,

A combination of methods, comprising a graduated response from the most to the least adversely affected land uses, may serve communities effectively and can prudently balance costs with levels of noise exposure. The FAA strongly encourages the reduction and prevention of noncompatible land uses at noise exposure levels of DNL 65 dB and higher. Mitigation techniques short of reduction and prevention may be more viable in buffer areas. Methods may support each other for the same properties, such as combining sound insulation, an easement, and disclosure. [328]

In adopting an airport use restriction to remove residents from the DNL 60 dB noise contour, the NAA unreasonably and unfairly placed a burden on Federal interests in a publicly funded and maintained national airport system open and available to all users. There has not been, nor is there now, a comparable local goal or burden to remove people from this area; on the contrary, local government has allowed residences to be added to this area. At the time the Stage 2 ban was implemented, neither Collier County nor the city of Naples prohibited residential development within the DNL 60 dB contour. [330]

Moreover, the NAA has failed to offer adequate reasons why residents within the DNL 60 dB contour that have been the beneficiaries of mitigation measures (e.g., avigation easements and noise disclosure), now should be regarded as essentially unmitigated and needing to be removed from that contour. A number of these residents have effectively consented to such noise levels by selling easements to the NAA or buying or renting property after receiving noise warnings. For example, the record reflects that in the case of the Bayfront [331] and Waterfront condominium [332] developments, the NAA had acquired easements prior to the Stage 2 ban. [333] The total estimated population residing at these properties, by the NAA’s own count, exceeded 400 people. [334] The NAA’s inclusion of these properties and their residents in determining the decrease in population within the DNL 60 dB contour as a result of the Stage 2 ban, [335] and in calculating the costs of the non-restrictive alternatives to the ban, is not reasonable.

The NAA chooses to discount the fact that some properties within the DNL 60 dB contour have already been effectively mitigated though measures that are widely used to mitigate noise exposure by other airports around the country.

b. The NAA’s Conclusion That The Stage 2 Ban Is The Most Cost-Effective Alternative

In its Reply to the Notice of Investigation, the NAA argues that the Stage 2 ban is “supported by” the NAA’s Part 161 cost-benefit analysis, as documented in the original Part 161 Study and the Part 161 Supplemental Analysis. [336] According to the NAA, this analysis shows that the Stage 2 ban is “far superior to any other alternative—no other alternative reduced the number of affected residents to the level achieved by the Stage 2 ban, and most other alternatives were more costly by orders of magnitude.” [337]

The results of the NAA’s Part 161 cost-benefit analysis are summarized in Table 1.1 of the Supplemental Analysis. However, Table 1.1 does not provide an appropriate basis for comparing the costs of the alternatives studied. According to Table 1.1, the “incremental cost over 2005 baseline” of the Stage 2 ban ranges from $781,000 to $1.6 million. According to Exhibit 8-2 of the original Part 161 Study, however, this cost includes only the estimated annual cost of the Stage 2 ban in the year 2005, and does not include other estimated costs of the Stage 2 ban, including one-time costs to aircraft owners for aircraft replacement and modification. Nonetheless, in Table 1.1, this 2005 cost was compared to the full estimated costs of other alternatives. As a result, Table 1.1 significantly underestimates the cost of the Stage 2 ban. Indeed, as stated in the FAA’s October 31, 2001, letter commenting on the NAA’s Part 161 Supplemental Analysis, “when the costs are spread over a ten-year period (without discounting), sound insulation and the limited acquisition of Rock Creek Campground appear to have approximately the same cost effectiveness as the proposed restriction of Stage 2 aircraft.” [338] This is reflected in Table 1, “Naples Airport Part 161 Comparative Cost Analysis of Noise Mitigation Alternatives,” below. Thus, contrary to the NAA’s contention, the Stage 2 ban is clearly not less costly than most other alternatives by orders of magnitude.

The FAA’s October 31, 2001, letter also noted that the summary of costs of the alternatives considered by the NAA “as presented in Table 1.1 may not provide an appropriate basis for comparing the costs of alternatives” because “[i]t appears that what the table labels ‘incremental costs’ are a mix of estimates of annual costs and one time capital investments. If this is the case, costs should be discounted and aggregated for a time period that reflects the life span of those alternatives that require capital investments.” [339] The NAA, in its Reply to the Notice of Investigation, asserts that “through its October 31, 2001 approval of the Part 161 Study, the FAA has found the Authority’s cost/benefit analysis to be adequate.” [340] The NAA’s contention that the FAA “approved” the Part 161 study is incorrect. There is no provision in law or regulation for the FAA to approve Stage 2 restrictions under Part 161. As discussed above, the FAA’s October 31, 2001, letter dealt only with the issue of the NAA’s compliance with the requirements of ANCA and Part 161, which the letter noted were “largely procedural,” and did not address whether the NAA’s Part 161 cost-benefit analysis was sufficient to demonstrate the reasonableness of the Stage 2 ban.

Furthermore, because the NAA did not employ a balanced approach when considering the costs and benefits of non-restrictive and less restrictive alternatives, as discussed above, the NAA’s cost-benefit analysis is not a reliable indicator of the reasonableness of the Stage 2 ban in this proceeding. By including, into the costs of land acquisition and sound attenuation, those residences compatible through the acquisition of easements prior to the Stage 2 ban, for example, 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 in the DNL 60 dB, the costs of land acquisition and sound attenuation, for example, may be further overstated.

c. The NAA’s Consideration Of Non-Restrictive Alternatives to the Stage 2 Ban

The NAA’s Part 161 Supplemental Analysis identifies several non-restrictive measures considered by the NAA when it conducted the Part 161 Analysis. [341] Those measures include:

• Land acquisition
• Sound insulation
• Noise Abatement Airport Operating Procedures
• Noise Abatement Aircraft Operating Procedures
• Voluntary Restraint of Stage 2 Operations

• Land acquisition -- The very high cost of land acquisition and the likelihood of strong public opposition to this approach would make it extremely difficult to implement.

• Sound insulation -- Sound insulation is an incomplete substitute, since it addresses only indoor activity; it does not benefit residents outside the 60 dB DNL contour; and it is very unlikely that NAA would be able to find local funds to cover the very high implementation cost.

• Noise Abatement Airport Operating Procedures -- Any significant change to the preferential runway use program would be likely to increase the population within the contours. There are no realistic options for preferential arrival flight paths.

• Noise Abatement Aircraft Operating Procedures – The use of noise abatement departure procedures (NADPs) is strictly voluntary and the NAA cannot mandate the use of NADPs, nor can they determine whether a pilot uses the preferred procedures on any given takeoff. Even assuming 100 percent compliance by Stage 2 aircraft, the reduction of people in the 60 dB DNL is negligible (a reduction of approximately 16 people).

• Voluntary Restraint of Stage 2 Operations – a voluntary ban with either 60 percent or 75 % percent daytime compliance reduces the population within the 60 dB contour by less than 10 percent, compared to the base case. Voluntary ban scenarios do not offers the benefits of a mandatory ban that reduces the population within the 60 dB DNL contour by over 70 percent. [343]

FAA Advisory Circular (AC) 150/5020-1, “Noise Control and Compatibility Planning for Airports,” discusses the importance of exploring a wide range of feasible options and alternatives. The AC states:

Development of reasonable alternatives is the nucleus of the compatibility planning process. The objective is to explore a wide range of feasible options and alternative compostions [sic] of land use patterns, noise control actions, and noise impact patterns, seeking optimum accommodation of both airport users and airport neighbors within acceptable safety, economic, and environmental parameters. . . . It is . . . unlikely that any single option, by itself, will be capable of totally solving the problem(s) without having objectionable impacts of its own. Some options may have little or no value in the situation, especially if used alone. Realistic alternatives, then, will normally consist of combinations of the various options in ways which offer more complete solutions with more acceptable impacts or costs. [345]

The NAA’s Part 161 Study states that “the NAA has exhausted all reasonably feasible nonrestrictive measures to achieve its land use compatibility goal ….” [346] The FAA’s review of the NAA’s analysis of alternatives to the Stage 2 ban reveals, however, that the NAA only considered whether any of the measures listed above, individually, could achieve benefits comparable to those of the Stage 2 ban at a comparable cost. Except for combining sound insulation and the acquisition of Rock Creek Campground, as one alternative, the NAA does not appear to have considered the adoption of a combination of the above measures that might have provided a “reasonably feasible” alternative to the Stage 2 ban. [347] In the absence of such analysis, and for the other reasons discussed below, the FAA concludes that the NAA did not give fair consideration to alternatives to the Stage 2 ban.

i. Acquisition of Land And Interests Therein

The NAA dismisses the alternative of land acquisition based on its high cost. The NAA calculates this cost to be $67.5 million to $101 million based on the cost of acquiring all residences within the DNL 60 dB contour. [348] However, acquiring all of the homes inside the DNL 60 dB contour is not the only alternative for achieving the NAA’s stated land use compatibility goal. Home acquisition might reasonably be used in combination with one or more other mitigation measures, including sound attenuation and/or acquisition of easements. A reasonable approach might include, for example, acquiring property in only the most critical areas, sound insulating homes in others, and perhaps using other mitigation measures to address the remaining areas where some mitigation is an objective. [349] Acquisition in fee simple can be complemented by commonly used landside noise mitigation measures that include easement acquisition, development rights to restrict new noise sensitive development, and real estate disclosure. [350]

The NAA rejected the acquisition of easements that would be far less costly than the purchase of all of the homes in the DNL 60 dB contour. [351] In its 1988 report to Congress on the Part 150 program, the FAA stated that 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. [352] The NAA’s 1996 Revised Noise Compatibility Program includes the following discussion of the benefits of using easements as opposed to sound insulation or land acquisition:

While it is preferable to acquire easements in exchange for sound insulation or other actions which reduce potential incompatibilities, residents can be compensated in exchange for an easement with no restrictions placed on the use of the money. Compensation coupled with an avigation easement provides compensated fair disclosure and constitutes a suitable compatibility measure by federal guidelines.

Compensatory easements are appropriate where residents do not wish to relocate, land acquisition is not feasible, or social costs of relocation are unjustifiably high. For those homeowners who wish to leave, the compensation allows them to sell their home at a marketable price while notifying the future homeowner of airport operations in the vicinity. Compensatory easements typically do not create a degree of community disruption that land acquisition, purchase assurance, or even rezoning can generate. They are usually less expensive than purchase or sound insulation, allowing broader and more rapid implementation for any given funding level. [353]

Additionally, the record appears to indicate that easements could be an extremely cost-effective alternative for the NAA. For example, the record indicates that the NAA acquired easements at a nominal cost of ten dollars ($10) with no recital of other consideration, on property where several hundred residents lived within the pre-restriction DNL 60 dB contour. [355] Even though these easements effectively made those properties compatible, the NAA included the cost of mitigating these residences in the costs associated with other non-restrictive alternatives it compared to the cost of the Stage 2 ban, as discussed more fully below. Inclusion of the costs to mitigate these residences resulted in an overstatement of the cost of these other non-restrictive alternatives.

ii. Sound Insulation

The NAA rejects the use of sound insulation of homes because it contends that sound insulation is an incomplete substitute, since it addresses only indoor activity and does not benefit residents outside the DNL 60 dB contour. [356] However, the NAA’s conclusions are inconsistent with the County’s Ordinance 2000-43, which allows sound- insulated residential construction within the DNL 60 dB contour. [357] Additionally, the NAA’s conclusion indicates that its goal is broader than reducing non-compatible land use within the DNL 60 dB contour since the NAA bases its rejection of sound insulation, at least in part, on residents outside of that contour. However, the NAA has made no claim that local land use compatibility standards justify consideration of mitigation in areas outside the DNL 60 dB contour. The NAA has asserted that it is “respecting the City of Naples and Collier County 60 dB DNL land use criterion.” [358] We find this to be misleading. If the NAA is simply respecting the City and County criterio n, the NAA cannot reasonably conclude, as it has in its Part 161 Analysis, that sound attenuation of existing residences within the DNL 60 dB contour is not a locally acceptable alternative to the Stage 2 ban.

We also note that the Florida Department of Transportation (FDOT) publishes the “Airport Compatible Land Use Guidance for Florida,” which includes recommended sound level reduction construction methods and materials lists to achieve noise reduction levels from 25 to 35 dB. [359] This publication addresses zoning ordinances identifying Noise Zones as areas where no building or structures may be constructed, altered, moved, demolished, or repaired unless construction plans and specifications for the building or structure reflect methods and materials that result in specified sound level reductions. [360] This guidance indicates that sound insulation can be an adequate noise mitigation measure, even in Florida.

In rejecting the use of sound insulation, the NAA has arbitrarily under-represented the benefits of this measure, even if used only on a limited basis. Sound insulation, in combination with other non-restrictive measures (e.g., acquisition of homes and/or easements), could be a reasonable alternative to the Stage 2 ban. [361] Indeed, providing sound insulation to a homeowner in exchange for an easement to the NAA may be a viable alternative when the homeowner does not agree to allow the NAA to purchase the residence. In light of language in the City and County ordinances that residential land use inside the DNL 60 dB contour can be made compatible with sound attenuation, the NAA’s elimination of this option as an alternative is inconsistent with a balanced approach to achieving its stated land use compatibility goal.

iii. Flight Track Alternatives And Noise Abatement Aircraft Operating Procedures

• Flight Track Alternatives

In fact, there is little or no justification for the NAA to reject such a low cost (i.e., for the airport operator) non-restrictive measure, which would result in a 21 percent reduction in the population within the DNL 60 dB. Given the benefit, the FAA would consider this measure to be a very effective noise mitigation measure. It could be used in conjunction with other measures to achieve greater benefits.

• Noise Abatement Departure Procedures

The NAA bases its rejection of the use of NADPs in large part on inconsistencies in the responses of 3 of the 27 pilots who responded to the NAA’s survey seeking information on the use of NADPs at the airport by Stage 2 aircraft operators. [364] However, the use of the survey to reject NADPs is not supported by the NAA with any statistical sampling methodology and does not compare with the use of sample data in other parts of the NAA’s Part 161 Study. In response to the FAA’s request to examine the costs and benefits of a voluntary restraint on Stage 2 operations, the NAA conducted the survey to obtain information regarding pilots’ probable response to a voluntary restriction.

In its Supplemental Analysis, the NAA stated “although such a sample is relatively limited from a statistical basis and may be subject to individual operator biases, it provides an estimate of the anticipated level of voluntary cooperation with the restriction proposal.” [365] The NAA indicates that “[all] the surveyed operators stated that they use a noise abatement departure profile of one type or another, and in some cases several different options.” [366] Despite this reliance on the survey in the analysis of a voluntary Stage 2 restraint, the NAA rejects 100 percent of the responses from pilots regarding their use of NADPs based on inconsistencies in only 11 percent of the responses received. [367] There is no justification for using inconsistencies in 11 percent of the responses, which the NAA refers to as “examples of ambiguity,” as the reason for completely rejecting NADPs. In short, the NAA rejects the use of NAPDs while stating that its sampling methodology provides good data and that pilots do in fact use such procedures at APF.

The NAA’s position regarding the effectiveness of NADPs is not consistent with the NAA’s past Part 150 studies. The NAA’s 1987 and 1997 Part 150 studies and subsequent updates have reaffirmed the value of noise abatement procedures. These include the “Quiet Flying” procedures and NBAA Close-In procedures. [368] In fact, NAA’s Part 161 Study indicates that noise abatement departure procedures “can produce significant noise abatement benefits” and that it “promotes the use of this procedure [noise abatement procedure] aggressively in its noise abatement publicity,” and the use of the NBAA close-in departure procedure as well. [369]

With regard to the NBAA close- in noise abatement procedure, the NAA’s 1996 revised noise compatibility program stated that this procedure would “result in significant noise reduction, ” [370] which can, in the case of a Lear 35, range as high as 6.2 dBA for an average of 3.6 dBA. [371] While every airport situation is different, we note that there have been instances where noise abatement procedures used by Stage 2 aircraft operators have resulted in noise reductions nearly to a level comparable to hushkitting. [372] The NAA’s 1996 validation of noise abatement procedures appears to support this. The NAA’s own Part 150 data show the bene fits of noise abatement procedures. The NAA compared SEL contours for the Lear 35 with and without the NBAA close-in departure for runway 23. The data show that the power cutback resulting from such a procedure reduced the lateral noise impact significantly, starting approximately 2,000 feet from the runway threshold, benefiting noise-sensitive areas in the southwest lobe. [373]

Public comments filed as part of the NAA’s Part 161 study also indicate benefits in noise abatement, particularly with regards to the Gulfstream Quiet Flying procedures. In fact, both the “Minimum EPR” (engine pressure ratio) and “Flex” procedures for the Gulfstream GIIB type aircraft provide significant benefits in terms of noise abatement even close to the airport. [374]

The record also indicates that the NAA valued noise abatement procedures, even by Stage 2 aircraft. The NAA instituted a “Noise Abatement Award Program,” and granted an award to a based Stage 2 aircraft operator in recognition of the operator’s “commitment to comply with the Naples Municipal Airport Noise Abatement Program.” [375]

Even if the NAA’s analysis of the benefits to be achieved by the use of noise abatement procedures by Stage 2 were accurate, the NAA considered only the benefits from the use of NADPs by Stage 2 operators. Stage 2 aircraft operations represent only one percent (1%) of the aircraft operations at APF. Consequently, it is reasonable to assume that NAA could realize additional noise benefits if NADPs were also used by other aircraft operators and types, especially when combined with other non-restrictive alternatives. At the very least, the NAA should have accounted for the benefits of the noise abatement procedures that were already in effect and in use by all users at the airport. [376]

d. Conclusion On Balanced Approach

Even if the Stage 2 ban were adequately justified by existing non-compatible land uses, it would still be unreasonable because it does not reflect a balanced approach that fairly considered 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. Given this important Federal interest, it was not reasonable for the NAA to totally ban an entire class of aircraft from APF 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.

G. Compliance With Grant Assurance 22 -- Unjust Discrimination

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)]

The FAA has determined, and the federal courts have held, that the use of noise control regulations to bar aircraft on a basis unrelated to noise is unjustly discriminatory in violation of grant agreement obligations. [378] For example, in City and County of San Francisco v. FAA, [379] the application of an airport noise regulation resulted in the exclusion from the airport of a retrofitted Boeing Q-707 that met Stage 2 standards, while permitting use of the airport by 15 other models of aircraft emitting as much or more noise than the Q-707. The Ninth Circuit Court of Appeals affirmed the FAA’s determination that the airport noise regulation resulted in unjust discrimination because it allowed planes that were equally noisy or noisier than the aircraft being restricted 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). [380]

In Santa Monica Airport Association v. City of Santa Monica, [381] the Court struck down the airport’s ban on the operation of jet aircraft on the basis of noise under the Commerce and Equal Protection clauses of the U.S. Constitution. The Court found that “… in terms of the quality of the noise produced by modern type fan-jets and its alleged tendency to irritate and annoy, there is absolutely no difference between the noise of such jets and the noise emitted by the louder fixed-wing propeller aircraft which are allowed to use the airport.” [382]

Although the NAA’s Rules and Regulations would appear to prohibit operations by “all aircraft certificated as meeting Stage 2 noise limits identified in 14 CFR Part 36, Appendix C, Section 36.5,” including both Stage 2 jet and propeller-driven aircraft, the record indicates that NAA has implemented the ban only on Stage 2 jet aircraft. For example, NAA published in the Airport Facilities Directory that “Stage 2 Jets” are prohibited from using the airport. [383] In its Reply to our Notice of Investigation, the NAA argues that

The Authority’s decision to permit the continued operation at the Airport of propeller-driven and turbo-prop aircraft is based upon a material difference in the quality of the noise emitted by such aircraft and the attendant community response. [384]

It also appears that NAA continues to allow Stage 1 and Stage 2 propeller-driven and turbo-prop aircraft to use the airport while restricting both Stage 1 and Stage 2 jet aircraft. [386] Additionally, the NAA permits aircraft that are not certificated under 14 CFR Part 36, Appendix C, Subsection 36.5, to continue to operated at the airport. [387] As discussed more fully below, distinguishing non-jets from jet aircraft at APF can result in the unjustly discriminatory treatment of individual aircraft operators.

1. Noise Complaints and the Jet Ban

As discussed above, the NAA states that its “decision to permit the continued operation at the Airport of propeller driven and turbo-prop aircraft is based upon a material difference in the quality of the noise emitted by such aircraft and the attendant community response.” [388]

The question regarding the quality of noise emitted by jet aircraft versus propeller-driven aircraft was specifically addressed in Santa Monica Airport Association v. City of Santa Monica, supra. In holding that a ban of jet aircraft was unjustly discriminatory, the Court noted that “[t]he testimony that we have heard of a scientific nature contending that there are certain components of fan-jet noise that are scientifically differentiated from noise produced by piston planes did not convince [the court].”

In this case, the NAA provides no scientific study that shows that the noise from jet aircraft is objectively different from a similar level of noise emitted from a propeller-driven or turbo-prop aircraft. Instead, the NAA contends in its Reply:

Complaint data reveals that the community has an adverse reaction to Stage 2 aircraft far in excess of its negative reaction to turbo-prop aircraft. For example, the instances of multiple complaints (more than one home submitting a complaint) associated with Stage 2 operations exceeded those associated with propeller-drive n operations by 800 percent. [389]

Even if we were willing to consider the NAA’s complaint data as a justification, arguendo, the NAA provides no detailed comparison to demonstrate that multiple complaints are received more often for jet aircraft operations when compared to operations by propeller-driven aircraft that emit the same or similar levels of noise.

2. The NAA Permits Stage 2 Propeller-Driven Aircraft Noisier Than Stage 2 Jets To Operate at AFP

If complaint data do not justify a ban that applies only to jet aircraft at APF, as we have found above, then the justification for such a discriminatory restriction could only rest on a showing that aircraft banned from using the airport are noisier than aircraft not subject to the ban. The record demonstrates that certain propeller-driven Stage 2 aircraft types noisier than some banned Stage 2 jet aircraft can continue to use APF. Therefore, the ban is unjustly discriminatory.

The NAA has not based its ban on Stage 2 jets upon objective noise data. FAA noise certification levels show that the NAA’s Stage 2 jet ban permits at least one Stage 2 propeller-driven airplane to continue to be allowed to operate at APF even though the propeller-driven airplane generates at least as much cumulative noise (i.e., combined takeoff, side- line, and approach noise measurements) as some of the banned Stage 2 jet aircraft, as shown in Table 2, “Cumulative Noise Levels, AC-36-1H (Appendix 1 and 6).” Table 2 compares the cumulative noise levels (i.e., the sum of takeoff, side- line, and approach noise measurements) for several aircraft listed in AC-36-1H.

3. NAA’s Conclusions Regarding Non-Stage Aircraft

In our Notice of Investigation, we expressed concern that all Stage 2 jets were banned, regardless of noise emissions, while certain aircraft not certificated under 14 CFR Part 36, Appendix C, Section C36.5, with estimated noise levels higher than Stage 2 jets are being permitted to continue to operate at APF. Specifically, the FAA indicated, for example, that the Stage 2 ban would permit a DC-3 aircraft with a noise level at take-off of 85 dBA to utilize the airport, yet bar operations by a Sabreliner 75A with a noise level at take-off of 77.7 dBA. [391]

The NAA provided no analysis in it s Reply to the Notice of Investigation to show that the DC-3 is not as noisy or noisier than the banned Sabreliner 75A. Instead, the NAA argues that it need not restrict aircraft that are not certificated under 14 CFR Part 36 to justify a ban on Stage 2 aircraft as nondiscriminatory. [392] We disagree that the NAA may disregard objective data regarding the noise characteristics and contributions of other types of aircraft operating at the Airport in determining to ban operations by Stage 2 jets.

In support of its contention, the NAA states “Congress and the FAA use stage certification in numerous ways to distinguish and restrict aircraft,” citing 14 CFR Parts 36 and 91. In addition, the NAA contends that courts have found “… it is appropriate to define and base a noise restriction on the stage classifications provided by the FAA in Part 36,” [393] citing Global Int’l Airways Corp. v. American Trans Air, Inc., 727 F.2d at 248, and Arrow Air, Inc. v. Port Authority of New York and New Jersey, 602 F.Supp. 314 (S.D.N.Y. 1985).

Although abatement of aircraft noise is a shared responsibility, airport proprietors have more limited authority than the Federal Government. [394] It is not appropriate for the NAA to replicate the FAA’s use of stage designations because grant assurance obligations and proprietary authority are not analogous to or congruent with the authority of the FAA under 49 USC 44715 and 49 USC 47521, et seq.

In any event, the manner in which the FAA and Congress used Stage designations differs materially from the NAA Stage 2 jet ban. The FAA considered the economic reasonableness and technological feasibility of Stage 2 technology in developing a schedule for the phaseout of operations by Stage 1 turbojet aircraft over a period of 8 years. Similarly, the FAA considered economic impacts on the industry in establishing the interim schedule for compliance with requirements to transition to Stage 3 civil subsonic turbojet aircraft under ANCA over a period of 9 years. In contrast, the NAA adopted a ban effective two months after its enactment, [395] not a phased schedule for transition to quieter aircraft based upon economic impacts on users and the cost and availability of conversion technology.

As a matter of policy, the FAA has advised airport proprietors that the use of Stage classifications to restrict aircraft operations, while not per se unjustly discriminatory, may be unjustly discriminatory depending upon the specific airport situation. [396] Assuming, arguendo, that this policy applies to operations by aircraft weighing 75,000 pounds or less, the airport-specific inquiry is whether the types of aircraft subject to the restriction are as quiet or quieter than those being permitted to continue to operate without limit. This inquiry is consistent with the reasoning in City and County of San Francisco v. FAA, supra, and with congressional intent to protect the rights of operators of small aircraft. [397]

In addition, the FAA’s use of Stage designations under Part 36 and Part 91, and the cases cited by the NAA are not relevant. Both are distinguishable because they apply only to aircraft weighing more than 75,000 pounds.

The NAA contends that ANCA created a scheme by which airport proprietors may restrict aircraft weighing 75,000 pounds or less using the same basis used by the FAA in addressing aircraft weighing more than 75,000 pounds. However, ANCA and its Part 161 implementing regulations established no such scheme. Rather, ANCA and Part 161 set forth the requirements that must be met by an airport proprietor before it implements a restriction on aircraft that affects Stage 2 and/or Stage 3 aircraft. Nowhere in Part 161 does the FAA indicate that an airport proprietor can ignore the noise associated with aircraft not having a stage designation under Part 36, when determining if an operating restriction is warranted.

The NAA argues that the FAA, in its consideration of comments on the Part 161 regulations, specifically rejected a comment proposing that aircraft be restricted on a more specific basis than by stage classification. [398] The NAA contends the FAA concluded that restricting aircraft on bases other than stage classifications would lead to assertions of unjust discrimination. However, the FAA comments cited by the NAA are irrelevant to the NAA’s position that the use of stage designations, alone, cannot be unjustly discriminatory, and do not support that position. The FAA’s policy concerning use of stage designations for airport restrictions is discussed above.

The comments cited involved the FAA’s consideration of options for treatment of Stage 2 aircraft weighing 75,000 pounds or less under Part 161. In this regard, the FAA did not conclude that the use of other than stage designations can lead to assertions of unjust discrimination, as argued by the NAA. Rather, the FAA concluded that ANCA, as it pertains to Stage 2 aircraft, provides protection to all segments of aviation, and that to exclude restrictions on Stage 2 aircraft below 75,000 pounds from the requirements of Part 161 would have the effect of making them vulnerable to local restrictions. The FAA was clearly concerned that a decision to exclude Stage 2 aircraft weighing 75,000 pounds or less from the protections of ANCA and Part 161 could have the effect of earmarking them for a restriction.

The NAA finally argues that the FAA “has steadfastly resisted attempts by airport proprietors or other local governments to assess noise impacts and take actions thereon based on single event or other similar types of individualized noise metrics. Thus, an assertion that an airport proprietor must now base access restrictions on individualized noise levels of specific aircraft operating in specific noise events is wholly inconsistent with the position of the FAA as well as applicable statutes and regulations.” [399]

We agree with NAA that it has generally been the FAA’s position that single event metrics should not be used to “assess noise impacts” on a community, for the reasons discussed in section VI.F.1.c. above. However, the FAA has a long history of supporting the use of FAA certificated or estimated aircraft noise levels as published in FAA Advisory Circulars for determining the noise characteristics of aircraft using an airport. [400]

Finally, we note that NAA’s position would have absurd results. It would essentially permit an airport sponsor to restrict even Stage 3 aircraft, the quietest technology in the industry, without consideration of the noise impacts from noisier aircraft not certificated under FAA procedures. A review of FAA’s Advisory Circular 36-3H, which lists the estimated noise levels of aircraft in A-weighted decibels, [401] reveals that significant numbers of non-stage aircraft may be noisier than Stage 3 aircraft. Under NAA’s position, these noisier non-stage aircraft could continue to operate at an airport even though an airport sponsor has imposed a restriction on quieter Stage 3 aircraft. We decline at this time to further consider the issue of unjust discrimination relative to non-Stage aircraft, as raised in our Notice of Investigation. [402]

VIII. FINDINGS AND CONCLUSIONS

Under the particular circumstances existing at APF and the entire record herein, and upon consideration of the submissions and responses by the party and the applicable law and policy and for the reasons stated above, we conclude that:

A. The NAA’s Stage 2 ban is preempted by Federal law; and

B. The NAA’s Stage 2 ban is not consistent with its statutory and contractual obligation to make its airport available for public use on reasonable terms and without unjust discrimination to all types, kinds, and classes of aeronautical users.

ACCORDINGLY, it is ordered that:

1. Pursuant to 49 U.S.C. § 47106(d), unless and until the Naples Airport Authority (NAA) rescinds or takes formal action to cease enforcement of the ban on the use of the Naples Municipal Airport by Stage 2 aircraft, the FAA hereby withholds approval of any applications submitted by NAA for amounts apportioned under 49 U.S.C. § 47114(c) and (d) and any application by the NAA for discretionary grants authorized under 49 U.S.C. § 47115. 2. All motions not specifically granted herein are denied.

Pursuant to 14 C.F.R. Part 16, the NAA may request a hearing under subpart F of Part 16 within 20 days after service of the Director’s Determination. 14 C.F.R. §§ 16.31(d) and 16.109(c)(1). The NAA may waive a hearing and appeal the Director’s Determination directly to the FAA Associate Administrator. 14 C.F.R. §§ 16.31(c), 16.33, and 16.109(c)(2). Alternatively, the NAA may submit, jointly with FAA counsel, a proposed consent order under §16.243(e). 14 C.F.R. §16.109(c)(4).

This Director’s Determination is an initial agency determination and does not constitute final agency action subject to judicial review under 49 U.S.C. § 46110. See also 14 C.F.R. § 16.247. However, if the NAA elects not to request a hearing or to file an appeal in writing within the time period specified in 14 C.F.R. §16.109(c), the Director’s Determination becomes final. 14 C.F.R. §16.109(d).

_________[signed]____________
David L. Bennett, Director
Office of Airport Safety and Standards

March 10, 2003