October 19, 2000

Federal Aviation Administration
Office of Chief Counsel
Attn: Rules Docket (AGC-200)
800 Independence Ave. S.W.
Washington, D.C. 20591

Public Comment on Regulatory Docket 30109
(Draft Aviation Noise Abatement Policy 2000)

The following comments are submitted via e-mail in response to the FAA's request for public comment issued July 14, 2000 and published in the Federal Register (65 FR 43802).

Comments on the Document as Policy Statement

The draft Noise Abatement Policy (NAP) is laden with discussion of background and history of particular issues, and thus clear statements of policy are difficult to identify. The following changes would sharpen the policy focus of the NAP:

-- Background and historical discussions should be clearly marked "Background" and should be placed at the beginning of each topic (section).

-- Remove Section 3 ("Legal Framework") from the body of NAP and make it a separate document or an appendix to NAP. The law certainly explains policy but it is not itself part of the policy. It is background.

-- Eliminate discussion of implementation of policy as inappropriate to a policy document, or (less preferable) clearly identify such discussions. In this connection, the several citations in NAP to FAA Advisory Circulars in support of policy statements is misleading. Unlike the FARs (Code of Federal Regulations), the guidance in the circulars is not binding on the public (see AC 00-2.13, page i) -- it cannot be enforced -- and therefore cannot be said to represent the policy of the FAA.

-- The NAP should begin with a "Statement of the Problem," like the 1976 NAP. Such a discussion is a fitting and instructive introduction to a policy statement.

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Comments on the Nature of the Policy

The draft NAP (Summary) states that the final document will be written in light of a DOT policy "broadly addressing noise concerns." The noise associated with any economic activity is not a necessary product of the activity, just as the type and level of toxic emissions of a particular economic activity are not a necessary product. The noise resulting from airport operations is permitted; it is the result of a complex regulatory environment that, in part, reflects the lack of institutional interest in the FAA in effective noise abatement.

Indeed, it is the view of many that the FAA sees its principal role as promotion of the aviation industry (see, for ex., the 1997 book "Flying Blind, Flying Safe," by Mary Schiavo, former inspector general for the DOT), and that this role is incompatible with a vigorous defense of the public interest in such matters as airport-related noise. The history of legislation on aviation noise since the early 1970s demonstrates a cycle of legislation, indifferent implementation by the FAA, stronger legislation, indifferent implementation, etc. Thus a noise abatement policy from the FAA is highly suspect at the outset.

The draft NAP does not recognize that the U.S. EPA must have a critical (affirmative) role in aviation noise abatement, and this omission is fatal to an effective policy. The draft NAP suggests that the FAA has a secondary (passive) role in aviation noise abatement, inasmuch as it emphasizes that airport proprietors have almost exclusive liability for noise damages under the law. While this is a correct statement of the law, it does not correctly reflect the real relationship between the FAA and airports embodied in a complex set of regulations that effectively give the FAA veto power over virtually any airport proprietor's decision. (Much of this effective power is derived from the legally enforceable "assurances" an airport proprietor must give in order to receive AIP grants.)

The draft NAP, although titled an "abatement" policy, is for the most part a noise mitigation policy. The distinction is crucial. Mitigation is concerned with reducing the impact of an activity without depriving the activity of its maximum pecuniary benefits (as when the cost of mitigation is borne by those who also bear the burden of the impact). In contrast, abatement rests on a commitment to attain a certain goal that is not subservient to the pecuniary interests of the activity (as when the activity is not permitted during certain times). Although the draft NAP in places addresses noise problems at their source (see e.g., Section 5), the thrust of the policy in the draft NAP, and the present practice of the FAA, is mitigation, not abatement.

The draft NAP (Summary) "reaffirms and incorporates the major tenets of the 1976 [policy]". To the extent that it does, the draft NAP is destined to produce no relief from unreasonable aviation noise for millions of Americans. The 1976 policy is a policy that fundamentally shifts the burden of noise onto the general public in the interests of the economic benefits of aviation, and thus is a mitigation, not an abatement, policy.

Finally, the animus of the policy is found in statements in Section 1 that "the aviation industry is a powerful generator of economic activity" and that "[u]nless aircraft noise is addressed with purpose and vigor, it will likely become a potential impediment to the robust airport and aviation system growth and operation that will be needed as public demand for

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access to aviation services continues to grow." In this statement the FAA betrays its principal concern: that the growing public demand for rational airport planning that respects the public interest may prevent air carriers from unconstrained expansion at urban airports. This amounts to a national industrial policy, not a noise abatement policy.

And what purposeful and vigorous action does the FAA have in mind? "The FAA continues to place great emphasis on reducing the number of persons residing in areas of significant noise exposure around airports." This "affirmation" of the 1976 policy means that, as air cargo and passenger traffic continues to grow at airports throughout the country, more and more communities will be razed -- like Minor Lane Heights outside Louisville International Airport -- in the name of a "robust" aviation industry. In other words, remove the complainers.

Comments on Section 1

The draft NAP states that the 1976 policy has been "highly successful" and bases this statement on "substantial" reductions in aviation noise and its impacts. Apart from the improvements in noise-suppression technology in commercial jet engines, any such reduction is predicated on a reduction in the "number of persons residing in areas of significant noise exposure around airports." As used by the FAA, "areas of significant noise exposure" refers to contours setting the boundaries of an annual-average impacts (the DNL) of 65 A-weighted decibels. As noted previously, the draft NAP states, "The FAA continues to place great emphasis on reducing the number of persons residing in areas of significant noise exposure around airports." (Paragraph 6.)

The FAA's insistence on holding to the 65 dB(A) DNL as the measure of significant noise impacts from aviation is the basic flaw in the FAA's approach to noise abatement, the flaw that not only is responsible for past failures in noise abatement, but will continue to give rise to failure as the traffic in passenger and air cargo service grows explosively. The draft NAP is replete with references to programs to reduce "significant noise impacts", when in fact these impacts are narrowly defined as 65 dB(A) DNL. (More comments on this issue below.)

The statement (paragraph 8) that the Airport Noise and Capacity Act of 1990 (ANCA) "established a national program for review of airport noise and access restriction proposals" is erroneous. ANCA provides for FAA review only for local noise abatement proposals directed at "stage 3" aircraft, on the (proper) grounds that the conversion of the U.S. air fleet to "stage 3" aircraft should not be adversely affected by local actions. ANCA also requires that airport proprietors notify the FAA of noise abatement proposals that do not affect "stage 3" aircraft; it does not require FAA review or approval, and the FAA acknowledges this in several FAA documents.

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Comments on Section 2.3 -- Noise Policy Elements

Policy Element 1: Aircraft Source Noise Reduction

The draft NAP boasts that the "reduction of aircraft noise at its source has provided the greater amount of noise relief to the public" (paragraph 2) and implies that the FAA's noise certification standards have been responsible for this reduction. In fact, these standards, published in 14 CFR Part 36, simply reflect the engine design of manufacturers, and are standards for FAA testing of aircraft engines as part of FAA's airworthiness certification. In recognition that these standards are not intended to serve as noise standards for the public benefit, the FAA has written in 14 CFR section 36.5:

No determination is made, under this part, that these noise levels are or should be acceptable or unacceptable for operation at, into, or out of, any airport.
In other words, the FAA does not have any reason to believe that its noise certification standards are effective in reducing aircraft noise to reasonable levels in the real world, i.e., when planes are flying in and out of airports.

The draft NAP identifies research as an important element of the FAA's program to reduce source noise. However, only jet aircraft are mentioned, and FAA research into jet aircraft noise exists only because of a direct order from Congress. There is no recognition in the draft NAP that propeller-driven general aviation aircraft or helicopters may be a significant source of noise.

Policy Element 2: New Operational Technologies

The technologies described in this portion of the draft NAP -- GPS augementation, automated flight guidance, and free flight -- were not developed, even in part, to reduce noise. They are technologies designed to increase the efficiency of the FAA-controlled airspace, i.e., to accomodate the increase in air traffic that is stressing the FAA control system. The draft NAP does not draw any credible connection between these technologies and noise reduction.

Policy Element 3: Air Traffic Procedures

In the discussion of "noise abatement in the airport environs" the draft NAP states that "the FAA relies on airport proprietors to submit requests for [air traffic] changes." While it is true that, under the existing common law and regulatory framework, airport proprietors must take the initiative in identifying appropriate noise abatement measures, the fact is that the FAA has not approved a single request submitted to it under FAR Part 161. In this context the FAA's credibility is strained.

In its discussion of "airspace changes" the draft NAP states that changes that "have potentially significant noise impacts on communities surrounding an airport require preparation of an environmental assessment or impact statement." Here, again, "significant

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impacts" would be only those impacts defined by the 65 dB(A) DNL, thus excluding from concern the large populations affected by noise from low-flying aircraft outside the immediate airport environs. This exclusion is stated more directly in the discussion of "beyond the airport environs," where the draft NAP cites the "categorical exclusion" of air traffic over 3,000 feet AGL from analysis of noise impacts. The FAA has never offered any scientific evidence or rational basis for this exclusion (see FAA Order 1050.1D).

The discussion of "overflights of noise sensitive areas" represents a complete abandonment of responsibility to maintaining the pristine quality of the parks. The reliance on voluntary cooperation of touring service operators has not resulted in satisfactory elimination of aircraft noise in the national parks and wild areas. The FAA has not supported repeated attempts in the Congress to abate aircraft noise in the national parks.

Policy Element 4: Airport Noise Compatibilty Planning

I looked expectantly for clarity in this discussion, as there is considerable confusion and controversy over the FAA's role in guiding local land use decisions. Regrettably this section does not discuss how the FAA views the function of the land-use compatibility studies authorized under 14 CFR Part 150 beyond their obvious role in obtaining AIP grants.

The draft NAP states that "Part 150 guidelines recognize local discretion to define noise sensitivity." (Para. 8, Policy Element #5.) Nevertheless, far too much of the "advisory guidance" published by the FAA in connection with Part 150 studies has become in effect strict requirement; airports and their consultants are afraid to deviate one iota from the published guidance because in practice "advisory guidance" amounts to rigid rules.

Bureaucratic rigidity is evident in the following from the draft NAP: "For Stage 2 restrictions ... the FAA advises airport proprietors who have integrated a Part 161 analysis into a Part 150 study to await the FAA's determinations under Part 150 before adopting the restriction [requested under Part 161]. FAA's Part 150 determinations may provide valuable insight regarding the proposed restriction's consistency with existing laws and the position of the FAA with respect to the restriction." (Para. 10, emphasis added.) Since FAA approval is not necessary for Part 161 noise measures that do not affect stage-3 aircraft, it appears that the FAA's "guidance" in Part 150 programs is used to reach Part 161 measures.

Policy Element 5: Land Use Planning and Zoning

Most of this discussion -- indeed, most of this policy element -- is inappropriate in a policy statement inasmuch as the FAA has no statutory authority to approve or reject land-use decisions. The role of the FAA in "assisting" airport proprietors (largely cities and counties) in developing land-use policies respecting their airports needs to be better explained in light of the FAA's lack of authority.

Policy Element 6: Areas with Unique Noise Sensitivities

The draft NAP states the FAA "will take into account the specific circumstances of

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locations in national parks and other federally managed areas with unique noise sensitivities." (Para. 1.) Exactly what is meant by "taking into account" needs to be explained. Indeed, within a few sentences from the preceding quotation, the draft NAP states that the "overarching goal is to identify how best to provide access to the airspace over national parks." (Para. 3.) This strong policy statement expresses clearly the FAA's bias in favor of promoting aviation rather than protecting the public interest. It implies that the FAA will fight the growing public pressure to protect the national parks against the intrusiveness of aircraft noise.

Policy Element 7: FAA Financial Programs

The draft NAP states that the "noise mitigation advantages" of relocating a large number of people away from an airport is "obvious". It is not obvious at all that uprooting entire neighborhoods in order to accomodate expansion of urban airports will protect populations affected by future expansion of the same airports. (See Comments on the Nature of the Policy, above.)

Comments on the FAA's Concept of "Significant Noise Impacts"

In the context of the discussion of policy element #6, the draft NAP states that "a primary focus for FAA is to identify the extent to which low-level noise ... may adversely impact areas with unique noise sensitivities. At present, no scientifically verified, predictable criteria have been established." (Para. 4.) This latter statement is shocking -- it can only be understood as a reflection of profound ignorance of the rich scientific investigation currently underway into low-frequency noise or as a deliberate misstatement of the truth.

Almost all research in low-frequency noise is taking place outside the U.S., in no small part because of the FAA's hegemonic position on the definition of noise impacts on humans, a position embodied in the 65 dB(A) annual-average DNL. Many European governments, notably The Netherlands, are sponsoring intensive research in low-frequency noise because those governments are responsive to the concerns of their people over aviation noise.

No issue in aviation in the U.S. today is more important to the public interest than redefining the way in which aviation noise impacts on humans are measured. These impacts are both physiological and psychological. By its choice of noise metric, the FAA seems completely unconcerned with the health impacts of noise. Its present metric, the 65 A-weighted decibel DNL, deliberately avoids measuring annoyance in a realistic manner in that this metric is designed to (1) exclude the lower frequencies of noise that are particularly irritating to humans and (2) average out real noise events into a meaningless annual statistic. The A-weighting must be replaced by a more realistic index, e.g., the C-weighting. In fact, the decibel may not be an adequate or realistic metric of psychological disturbance.

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The choice of a 65 dB(A) threshold has never been scientifically justified by the FAA; indeed, the FAA has not been required in decades to justify continued use of this threshold, despite the evolution of research in the impacts of noise on humans. At a minimum, 55 dB(A) is universally considered (e.g., by the U.S. EPA and other institutions) to be a more appropriate minimum of quiet for normal human activity. Measurements of actual aircraft noise near airports -- either by temporary monitors collecting data for modeling of noise exposure contours or by permanent airport monitor systems -- are always made outdoors and always exclude the lower-frequency noise characteristic of aircraft. These measurements thus do not capture the true effects of aircraft noise on people indoors: the combination of sound and vibration caused by low-frequency noise. Indeed, the 65 dB(A) DNL is useless as a criterion for places requiring more quiet than ususal, in particular hospitals and schools. The federal Architectural and Transportation Barriers Compliance Board acknowledges that an absolute (not average) 30 db(A) is the desirable noise level in unoccupied classrooms (see Federal Register Nov. 8, 1999).

Howard Beckman
Attorney at Law

E-mail hpb@wenet.net

cc: Hon. Pete Stark, U.S. House of Representatives
Sen. Barbara Boxer