Final Agency Decision
FAA Docket 16-01-15
UNITED STATES DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
IN THE MATTER OF COMPLIANCE
WITH FEDERAL OBLIGATIONS BY THE
NAPLES AIRPORT AUTHORITY,
FAA Order No. 2003-1
(Part 16, Subpart G)
FAA Docket No. 16-01-15; DMS No. FAA-2000-15654
Served: August 25, 2003
FINAL AGENCY DECISION AND ORDER
The City of Naples Airport Authority (NAA) prohibited Stage 2 aircraft flights Naples Airport. After conducting an investigation, FAA's Director of Airport Safety and Standards, David Bennett, issued his determination [n.1] on March 10, 2003, concluding that Federal law preempts the Stage 2 ban at Naples Airport. He determined further that the ban was inconsistent with 49 U.S.C. § 47107(a)(1) [n.2] and Grant Assurance No. 22, [n.3] both of which require that an airport that receives Federal grants be available for public use on reasonable conditions and without unjust discrimination. As a result of the determination, the Director ordered that until NAA rescinds or takes formal action to stop the enforcement of the ban, the FAA would withhold approval of any applications submitted by NAA for funds apportioned under 49 U.S.C. §§ 47114(c) and (d) and any application for discretionary grants authorized under 49 U.S.C. § 47115.
 It is provided in 49 U.S.C. § 47107(a)(1):
 Grant Assurance No. 22, entitled "economic nondiscrimination" implements 49 U.S.C. § 47107(a)(1)-(6), and provides that a Federally-obligated airport sponsor "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 users." (Bennett Direct at 7.)
2. Whether the NAA's ban on Stage 2 aircraft is consistent with its statutory and contractual obligation to make its airport available for public use on reasonable terms to all types, kinds, and classes of aeronautical activities.
3. Whether the NAA's ban on Stage 2 aircraft is consistent with its statutory and contractual obligation to make its airport available for public use without unjust discrimination to all types, kinds, and classes of aeronautical activities.
4. Whether the Airport Noise and Capacity Act of 1990 (ANCA), 49 U.S.C. § 47521, et seq., affects the applicability of the statutory and contractual grant assurance obligations under 49 U.S.C. § 47107(a)(1) and Grant Assurance No. 22 to the NAA's Stage 2 ban.
5. Whether National Business Aviation Association v. City of Naples Airport Authority, 162 F. Supp. 2d 1343 (M.D. Fla. 2001) is binding on the FAA in its administrative adjudication of the issues related to the Stage 2 ban in its Notice of Investigation. [n.4]
 The court held in this case that: 1) NAA could base the ban on Stage 2 aircraft on a noise contour below DNL 65 dB; 2) the Aviation Safety and Noise Abatement Act (ASNA) and the ANCA and their respective implementing regulations (14 C.F.R. Parts 150 and 161) did not preempt NAA's authority to consider noise levels below DNL 65 dB as the basis for the access restriction; and 3) the access restriction did not violate the Commerce Clause. National Business Aviation Ass'n v. Naples Airport Auth., 162 F. Supp. 2d. 1343 (M.D. Fla. 2001).
2. The ban is not consistent with NAA's statutory and contractual obligations under 49 U.S.C. § 47107(a)(1) and Grant Assurance No. 22 respectively to make its airport available for public use on reasonable terms to all types, kinds, and classes of aeronautical activities.
3. The ban is consistent with NAA's statutory and contractual obligations under 49 U.S.C. § 47107(a)(1) and Grant Assurance No. 22 respectively to make its airport available for public use without unjust discrimination to all types, kinds, and classes of aeronautical activities.
4. The ANCA, 49 U.S.C. § 47521, et seq., does not affect the applicability of the statutory and contractual grant assurance obligations under 49 U.S.C. § 47107(a)(1) and Grant Assurance No. 22 to NAA's ban of Stage 2 aircraft.
5. The holding of the court in National Business Aviation Association v. City of Naples Airport Authority, 162 F. Supp. 2d 1343 (M.D. Fla. 2001) is not binding on the FAA in its administrative adjudication of the issues related to the Stage 2 ban raised in the Notice of Investigation.
In its appeal brief, the FAA Office of Airport Safety and Standards (AAS) challenges only the Hearing Officer's determination that the Stage 2 ban was not preempted under the proprietary powers exception. AAS, however, argues in its appeal brief that the Associate Administrator should not reach the preemption issue unless she reverses the Hearing Officer's decision that the Stage 2 ban is unreasonable. [n.6]
2) ANCA does not supercede 49 U.S.C. § 47107(a)(1) and Grant Assurance No. 22 regarding Stage 2 restrictions; and
3) the Stage 2 ban is unreasonable, and therefore contrary to NAA's obligations under 49 U.S.C. § 47107(a)(1) and Grant Assurance No. 22, because it was not proven that noncompatible land uses exist in the DNL 60 dB contour.
I. Aviation Safety and Noise Abatement Act of 1979 (ASNA), P.L. 96-193 (49 U.S.C. App. 2101 et seq., codified at 49 U.S.C. § 47501 et seq.)
In 1979, Congress enacted the Aviation Safety and Noise Abatement Act (ASNA). Congress enacted the ASNA "to support Federal efforts to reduce noise and to encourage compatible land uses around civil airports in the United States because residential development adjacent to an airport may greatly restrict the usefulness of Federal funding at the airport." (Bennett Direct at 9.) Congress directed the FAA to issue regulations to: 1) establish a single system of measuring noise; 2) establish a single system for determining the exposure of individuals to noise; and 3) identify land uses that normally are compatible with various exposures of individuals to noise. 49 U.S.C. § 47502. Under ASNA, any airport operator may submit a noise exposure map showing any noncompatible land uses surrounding the airport on the date of the map's submission, and a noise compatibility program describing the measures that the operator has taken or proposes to take to reduce existing noncompatible uses and to prevent the introduction of additional noncompatible uses. 49 U.S.C. §§ 47503(a) and 47504(a). The ASNA authorized the operators to: (1) implement a preferential runway system; (2) restrict the use of the airport by any type or class of aircraft based on the aircraft's noise characteristics; (3) construct barriers and acoustical shielding, including soundproofing; (4) use flight procedures to control the operation of aircraft to reduce exposure of individuals to noise in the area surrounding the airport; (5) acquire land and interests such as air rights, easements, and development rights, to assure the use of property for purposes compatible with airport operations. 49 U.S.C. § 47504(a)(2). The Administrator must approve a noise compatibility program if, among other things, the proposed plan "is reasonably consistent with achieving the goal of reducing noncompatible uses and preventing the introduction of additional noncompatible uses." 49 U.S.C. § 47504(b)(1)(B).
II. 14 C.F.R. Part 150, "Airport Noise Compatibility Planning"
The FAA issued interim rules at 14 C.F.R. Part 150 in 1981 to implement portions of Title I of the ASNA. 46 Fed. Reg. 8316 (January 26, 1981). Part 150 prescribes requirements for airport operators who choose to develop airport planning compatibility programs and establishes a single system of measuring airport noise and a single system for determining the exposure of individuals to airport noise. [n.8] The final rule was published on December 18, 1984. 49 Fed. Reg. 49260 (December 18, 1984.)
Regarding land use compatibility, the FAA determined for purposes of Part 150 that "all land uses are considered to be compatible with noise levels less than Ldn [n.9] 65 dB" while noting that "local needs or values may dictate further delineation based on local requirements or determinations." [n.10] Part 150, Appendix A, Sec. A150.101(d). In Table 1, the FAA described in greater detail what land uses are compatible or incompatible with various yearly day-night average sound levels. It is stated in Table 1 that residential land uses are compatible with YDNL below 65 and incompatible with YDNL above 65. [n.11] The following statement appears beneath Table 1:
 As stated in the preamble to the interim rules:
 The FAA based this determination upon the findings of the Federal Interagency Committee
on Urban Noise (FICUN), which was formed in 1979 to develop Federal policy and guidance on
noise. In its 1980 report, the FICUN found that standard residential construction was compatible
with noise exposure from all sources up to DNL 65 dB. (Connor Direct at 4.)
 Ldn is the symbol for day-night average sound level (DNL). DNL "means the 24-hour average sound level in decibels, for the period from midnight to midnight, obtained after the addition of ten decibels to sound levels for the period between midnight and 7 a.m. and between 10 p.m. and midnight, local time." 14 C.F.R. § 150.7 (definition of day-night average sound level).
46 Fed. Reg. at 8317.
 As stated in the preamble to the interim rules:
 The FAA based this determination upon the findings of the Federal Interagency Committee on Urban Noise (FICUN), which was formed in 1979 to develop Federal policy and guidance on noise. In its 1980 report, the FICUN found that standard residential construction was compatible with noise exposure from all sources up to DNL 65 dB. (Connor Direct at 4.)
 See also 14 C.F.R. § 150.35(b)(1), which provides that the: "Administrator approves programs under this part if --
III. Airport and Airway Improvement Act of 1982 (AAIA), Title V of P.L. 97-248 (49 U.S.C. App. § 2201 et seq.; codified at 49 U.S.C. § 47101 et seq.)
In 1982, Congress passed the Airport and Airway Improvement Act (AAIA), establishing the Airport Improvement Program and authorizing the FAA to make grants for airport development. Congress provided that the Administrator "may approve a project grant application ... for an airport development project only if the Administrator receives written assurances that (1) the airport will be available for public use on reasonable conditions and without unjust discrimination." 49 U.S.C. § 47107(a)(1). [n.15] [n.16] Grant assurance obligations remain in effect throughout the useful life of the facilities funded with grant money, but not more than 20 years. FAA Order No. 5190.6A, § 2-2a.
 The Director of AAS explained in his determination:
IV. Airport Noise and Capacity Act of 1990 (ANCA), Title IX, Subtitle D of P.L. 101-508 (49 U.S.C. App. § 2151 et seq., codified at 49 U.S.C. § 47521 et seq.)
In 1990, Congress passed the Airport Noise and Capacity Act of 1990 (ANCA). The authors included the following findings as the basis for the ANCA:
(2) community noise concerns have led to uncoordinated and inconsistent restrictions on aviation which could impede the national air transportation system;
(3) a noise policy must be implemented at the national level;
(4) local interest in aviation noise management shall be considered in determining the national interest[.]
 Generally, Stage 1 airplanes are the loudest, Stage 2 airplanes are in the middle, and Stage 3
airplanes are the quietest. See 14 C.F.R. Part 36 for an explanation of the certification criteria for
Stage 1, 2, and 3 aircraft.
 Subsection (c)(2) of Section 47524 requires FAA approval of Stage 3 aircraft restrictions.
Subsection (c)(2)(A) requires that the Administrator shall not approve of any Stage 3 aircraft
access restriction unless he finds that the proposed restriction is, among other things, reasonable,
nonarbitrary and nondiscriminatory and does not create an undue burden on interstate or foreign
commerce. 49 U.S.C. § 47524(c)(2)(A). There is no specific comparable provision in ANCA
for FAA approval of Stage 2 restrictions that are reasonable, nonarbitrary and nondiscriminatory.
 In September 1991, the FAA issued a final rule to phase out operations of Stage 2 aircraft weighing more than 75,000 pounds. 56 Fed. Reg. 48628 (September 25, 1991).
 Generally, Stage 1 airplanes are the loudest, Stage 2 airplanes are in the middle, and Stage 3 airplanes are the quietest. See 14 C.F.R. Part 36 for an explanation of the certification criteria for Stage 1, 2, and 3 aircraft.
 Subsection (c)(2) of Section 47524 requires FAA approval of Stage 3 aircraft restrictions. Subsection (c)(2)(A) requires that the Administrator shall not approve of any Stage 3 aircraft access restriction unless he finds that the proposed restriction is, among other things, reasonable, nonarbitrary and nondiscriminatory and does not create an undue burden on interstate or foreign commerce. 49 U.S.C. § 47524(c)(2)(A). There is no specific comparable provision in ANCA for FAA approval of Stage 2 restrictions that are reasonable, nonarbitrary and nondiscriminatory.
V. 14 C.F.R. Part 161, "Notice and Approval of Airport Noise and Access Restrictions"
The Administrator issued a final rule on September 25, 1991, to implement the ANCA's directive that the FAA develop a program for reviewing airport noise and access restrictions for Stages 2 and 3 aircraft. 56 Fed. Reg. 48661 (September 25, 1991). Part 161 includes "analysis and notice requirements for airport operators proposing Stage 2 aircraft noise and access restrictions." 14 C.F.R. § 161.1(b). Under Section 161.203(a), an airport operator may not implement a Stage 2 restriction unless the operator provides an analysis of the proposed restriction and public notice and opportunity for comment. 14 C.F.R. § 161.203(a).
Naples Municipal Airport (APF), built in 1941, [n.20] is a public-use airport, located about 20 minutes away from the center of the City of Naples, Florida. (DD, Item 2, Attachment 3, at 1.) It is located on 732 acres of land and has two runways. (Vasconcelos Direct at 7.) The airport has over 138,000 operations annually, and prior to the implementation of the Stage 2 ban, there were approximately 900 Stage 2 aircraft operations per year at Naples. (Vasconcelos Direct at 7 and 12.) As a result of the shortness of the runways and the limited runway pavement strength, the airport cannot accommodate large commercial jets. [n.21]
 Large commercial jets and most air carrier service to this area fly in and out of such neighboring airports as Southwest Florida International Airport in Fort Myers, which is about 28 miles away. (Soliday Direct at 3.)
 (Soliday Direct at 2.)
The FAA granted funds to NAA for planning and development under the Airport Improvement Program (AIP). (DD, Item 1 at 2.) Between 1982 and October 2001 (when the FAA issued the Notice of Investigation), the airport received $14,617,978 in Federal airport development assistance. (DD, Item 1 at 2.) When NAA agreed to accept these funds, it gave binding commitments in the form of grant assurances regarding the use, operation and maintenance of the airport. (Bennett Direct at 4.)
In 1996, the City of Naples revised its "Special Overlay District" to include all areas exposed to noise in excess of DNL 60 dB. Proposed development projects within the Special Overlay District are subject to review. (MacKenzie Direct at 6.)
In September, 1997, the FAA approved the Naples Airport's Noise Compatibility Plan Update. [n.24] The FAA approved NAA's adoption of the DNL 65 dB contour "as the threshold of incompatibility for residential areas." The FAA found that it was within the authority of the local land use planning jurisdictions, for zoning and land use planning purposes, to apply to the area within the DNL 60 dB noise contour "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." (DD, Item 2, Attachment 29, section 7.3.3.) [n.25]
 Miguel Vasconcelos, in his written testimony, explained:
 Since that time, "the County has been hugely successful in restricting incompatible land uses within the DNL 60 dB contour as evidenced by the complete absence of residential development in the area." (Soliday Direct at 12.)
 According to the FAA, Stage 2 turbojet aircraft comprise 28% of the general aviation and air taxi jet fleet in the United States. There are approximately 2000 Stage 2 turbojet aircraft. There are also nonjet Stage 2 aircraft. (Vasconcelos Direct at 11-12.)
In compliance with the FAA Part 150 guidance that airport proprietors defer to local authorities in determining land use compatibility criteria, [n.30] the NAA respects the City of Naples and Collier County 60 dB DNL land use compatibility criteria and considers residential land within the 60 dB DNL contour to be incompatible with aircraft noise and has established the goal of minimizing residential land within 60 dB DNL to the maximum feasible extent.
 Regarding this assertion, the Director of Airport Safety and Standards stated, "Part 150 does not 'direct' any such action, and certainly does not relieve the airport operator from the obligation to provide reasonable access under the federal grant assurances." (Bennett Direct at 16-17.)
 The three alternatives examined in the Part 161 study were:
The National Business Aviation Association and the General Aviation's Manufacturers Association filed a lawsuit against NAA in Federal district court, challenging the constitutionality of the Stage 2 ban. The parties filed cross-motions for summary judgment in June 2001. While these motions were pending, NAA passed Resolution 2001-6, extending the deferral of the ban's enforcement. (DD, Item 2, Attachment 14.) NAA noted in the resolution that if the district court ruled in its favor's and upheld the ban, NAA would be authorized to enforce the ban. (Id.)
NAA's consultants completed a draft of the Part 161 Supplemental Analysis on June 23, 2001. The consultants explained that they had prepared this analysis to address concerns presented by the FAA. It was concluded in this supplemental study that the 24-hour restriction of Stage 2 flights would be less expensive and would produce a greater population reduction in the airport noise study area (ANSA)(within the DNL 60 dB contour) than any other alternative.
As they wrote in the earlier study, the consultants explained that in proposing the Stage 2 ban, NAA was deferring simply to the land use determinations made by the local jurisdictions regarding the incompatibility of residential use with noise levels exceeding DNL 60 dB. The consultants explained that Part 150 DNL 65 dB threshold is too high in light of the outdoors-oriented life-styles in Naples. They wrote:
On February 7, 2001, the NAA passed Resolution 2001-8, implementing the Stage 2 ban.
On October 31, 2001, David L. Bennett, the Director of Airport Safety and Standards, issued a Notice of Investigation to the NAA under 14 C.F.R. Part 16, Subpart D, of the Rules of Practice for Federally Assisted Airport Proceedings. With the issuance of this Notice of Investigation, the FAA began its first formal investigation into the reasonableness and discriminatory nature of a noise-based aircraft access restriction since ANCA's enactment. (Bennett Direct at 7.)
The Director noted preliminarily in the Notice of Investigation that NAA had complied with the procedural requirements of Part 161, but that "compliance with the requirements of the grant obligations is a separate matter." (DD, Item 1, NOI at 1). The director noted that while airport access restrictions are subject to the ANCA and Part 161, they are also subject to 49 U.S.C. § 47107(a)(1)'s and Grant Assurance No. 22's requirement that the airport be available for public use on reasonable terms, and without unjust discrimination, to all types, kinds, and classes of aeronautical activities. (DD, Item 1, NOI at 3.) The Director stated that the prohibition against Stage 2 aircraft "may be inconsistent with NAA's obligation to provide reasonable and non-discriminatory access to the airport without granting exclusive rights." (DD, Item 1, NOI at 5.) The Director was also concerned about whether NAA had a proprietary interest in reducing noise from aircraft at the airport such that the Stage 2 ban was not preempted by Federal law. (DD, Item 1, NOI at 8.)
NAA filed its reply to the notice of investigation on December 3, 2001.
On March 10, 2003, the Director of the Office of Airport Safety and Standards issued his 96-page determination in this matter. The Director concluded that the Stage 2 ban conflicted with NAA's obligations under Grant Assurance No. 22 because the prohibition was unreasonable and discriminatory.
NAA requested a hearing on March 31, 2003, and the Deputy Chief Counsel issued a Hearing Order on April 10, 2003, in which he appointed a hearing officer and specified the issues to be resolved. (See supra at 2.)
A hearing was held on June 3-9, 2003. [n.34] The Hearing Officer issued his decision on June 30, 2003. (See supra at 3.)
I. Whether the Federal District Court Decision Upholding the Stage 2 Ban Binds the FAA
In National Business Aviation Association v. Naples Airport Authority, 162 F. Supp. 2d 1343 (M.D. Fla. 2001), two aviation trade groups sued NAA in Federal district court, claiming that the ban on Stage 2 aircraft violated the Supremacy Clause and the Commerce Clause. The FAA was not a party to the suit and did not participate in it. The district court ruled in NAA's favor on a motion for summary judgment.
In the instant case, NAA argued before the Hearing Officer that the district court's decision binds the FAA under the doctrines of res judicata, collateral estoppel, and comity. The Hearing Officer held otherwise, and NAA has appealed this determination. This decision finds that the Hearing Officer's analysis was correct.
As the Hearing Officer found, res judicata or claim preclusion (the barring of claims from a previous case) does not apply because two critical elements are unmet. [n.35] First, the FAA was not a party to the previous case nor was it in privity with any of the parties. Second, the causes of action in the two cases are not the same.
 Privity is present when a nonparty's interests are so closely aligned to a party's interests that the party adequately represented the nonparty and the nonparty can be considered to have had his or her day in court. United States v. Perchitti, 955 F.2d 674, 676 (11th Cir. 1992); Jaffree v. Wallace, 837 F.2d 1461, 1456 (11th Cir. 1988); Ethnic Employees of Library of Congress v. Boorstin, 751 F.2d 1405, 1411 (D.C. Cir. 1985). Sometimes courts refer to this as "virtual representation." Id. Other courts, however, "have refused to adopt any general rule that a nonparty may be precluded from relitigating issues . . . lost after vigorous advocacy by a party who seems to hold interests identical to the interests of the nonparty." WRIGHT & MILLER, supra, § 4457 at 500.
2. issued a notice of investigation under 14 C.F.R. Part 16 shortly after the aviation trade groups withdrew their appeal from the district court's decision.
Regarding whether the private litigants' interests and those of the FAA are aligned closely enough to support a finding of privity, the answer is no.
The FAA's interests are far broader than those of the two aviation trade groups that were plaintiffs in the district court case. The first of these groups, the National Business Aviation's Association, represents business aviation, a subset of general aviation, and said that it was suing on behalf of "at least one member." The General Aviation Manufacturing Association sued on behalf of suppliers of aircraft services for Stage 2 aircraft at Naples Airport. As important as each group is, they are but two of numerous aviation trade groups, and aviation trade groups in turn are only one type of stakeholder whose interests the FAA must consider. Neither of the plaintiffs in the district court case has the overarching responsibility that the FAA does to serve the national public interest. The two aviation trade groups represented their own interests in the district court litigation, but could not have represented the FAA's. Thus, the FAA did not have its day in court when the two groups sued NAA, and the Hearing Officer did not err in finding there was no privity.
Further, the FAA did not have a duty to intervene in the district court case. The courts have said that requiring the government to monitor all lawsuits and intervene would be too onerous a burden. [n.38] NAA could have brought in the FAA through joinder, but it failed to do so. [n.39]
 According to the Supreme Court, the burden is on a party to a lawsuit to bring in additional parties by means of joinder where appropriate, rather than on potential additional parties to intervene. Martin v. Wilks, 490 U.S. 755, 765 (1989).
The other reason that collateral estoppel does not apply is that the FAA, which did not participate in the previous case, obviously did not have a full and fair opportunity tolitigate the issues. [n.41]
 Remington Rand Corp. v. Business Systems, 830 F.2d 1260, 1267 (3rd Cir. 1987).
 When important interests in the adjudicatory body's own jurisdiction are at stake, "comity yields." United States v. Gillock, 445 U.S. 360, 373 (1980), quoted in Federal Reserve Bank of Atlanta v. Thomas, 220 F.3d 1235, 1246 (11th Cir. 2000).