[Federal Register Volume 63, Number 64 (Friday, April 3, 1998)]
[Rules and Regulations]
[Pages 16409-16414]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-8835]



[[Page 16409]]

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 150

[Docket No. 28149]


Final Policy on Part 150 Approval of Noise Mitigation Measures: 
Effect on the Use of Federal Grants for Noise Mitigation Projects

AGENCY: Federal Aviation Administration, DOT.

ACTION: Notice of final policy.

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SUMMARY: This final policy establishes a distinction between remedial 
and preventive noise mitigation measures proposed by airport operators 
and submitted for approval by the Federal Aviation Administration (FAA) 
under applicable noise compatibility planning regulations. 
Implementation of this policy also results in certain new limitations 
on the use of Airport Improvement Program (AIP) funds for remedial 
noise mitigation projects. The proposed policy was published in the 
Federal Register on March 20, 1995 (60 FR 14701), and public comments 
were received and considered. On May 28, 1997, the revised policy as 
proposed for issuance was published in the Federal Register. However, 
prior to the issuance of the policy the FAA requested supplemental 
comment on the impact of its limitations on PFC eligibility. The FAA 
considered the comments on PFC eligibility thus received and has 
revised the final policy. All other issues were considered to have been 
adequately covered during the original comment period.
    Accordingly, as of October 1, 1998, the FAA will approve under 14 
CFR part 150 (part 150) only remedial noise mitigation measures for 
existing noncompatible development and only preventive noise mitigation 
measures in areas of potential new noncompatible development. The FAA 
will not approve remedial noise mitigation measures for new 
noncompatible development that occurs in the vicinity of airports after 
the effective date of this final policy.
    As of the same effective date, the use of AIP funds will be 
affected to the extent that such use depends on approval under part 
150. Since this policy only affects part 150 approvals, it does not 
apply to projects that can be financed with AIP funds without a part 
150 program. The bulk of noise projects receive AIP funding pursuant to 
their approval under part 150.
    After review and consideration of comments received, FAA has 
determined that this policy need not affect financing noise projects 
with passenger facility charge (PFC) revenue because part 150 approval 
is not required for such projects.

DATES: Effective October 1, 1998.

FOR FURTHER INFORMATION CONTACT: Mr. William W. Albee, Policy and 
Regulatory Division (AEE-300), Office of Environment and Energy, FAA, 
800 Independence Avenue, SW., Washington, DC 20591; telephone (202) 
267-3553, facsimile (202) 267-5594; Internet: [email protected] 
or [email protected]; or Mr. Ellis Ohnstad, Manager, 
Airports Financial Assistance Division (APP-500), Office of Airport 
Planning and Programming, FAA, 800 Independence Avenue, SW., 
Washington, DC 20591; telephone (202) 267-3831, facsimile (202) 267-
5302; Internet: [email protected] or 
[email protected].

SUPPLEMENTARY INFORMATION:

Background

    The Airport Noise Compatibility Planning Program (14 CFR part 150, 
hereinafter referred to as part 150 or the part 150 program) was 
established under the Aviation Safety and Noise Abatement Act of 1979 
(49 U.S.C. 47501 through 47509, hereinafter referred to as ASNA). The 
part 150 program allows airport operators to submit noise exposure maps 
and noise compatibility programs to the FAA voluntarily. According to 
the ASNA, a noise compatibility program sets forth the measures that an 
airport operator has taken or has proposed for the reduction of 
existing noncompatible land uses and the prevention of additional 
noncompatible land uses within the area covered by noise exposure maps.
    The ASNA embodies strong concepts of local initiative and 
flexibility. The submission of noise exposure maps and noise 
compatibility programs is left to the discretion of local airport 
operators. Airport operators also may choose to submit noise exposure 
maps without preparing and submitting a noise compatibility program. 
The types of measures that airport operators may include in a noise 
compatibility program are not limited by the ASNA, allowing airport 
operators substantial latitude to submit a broad array of measures--
including innovative measures--that respond to local needs and 
circumstances.
    The criteria for approval or disapproval of measures submitted in a 
part 150 program are set forth in the ASNA. The ASNA directs the 
Federal approval of a noise compatibility program, except for measures 
relating to flight procedures: (1) If the program measures do not 
create an undue burden on interstate or foreign commerce; (2) if the 
program measures are reasonably consistent with the goal of reducing 
existing noncompatible land uses and preventing the introduction of 
additional noncompatible land uses; and (3) if the program provides for 
its revision if necessitated by the submission of a revised noise 
exposure map. Failure to approve or disapprove a noise compatibility 
program within 180 days, except for measures relating to flight 
procedures, is deemed to be an approval under the ASNA. Finally, the 
ASNA sets forth criteria under which grants may be made to carry out 
noise compatibility projects, consistent with the ASNA's overall 
deference to local initiative and flexibility.
    The FAA is authorized, but not obligated, to fund projects via the 
Airport Improvement Program (AIP) to carry out measures in a noise 
compatibility program that are not disapproved by the FAA. Such 
projects also may be funded with local PFC revenue upon the FAA's 
approval of an application filed by a public agency that owns or 
operates a commercial service airport, although the use of PFC revenue 
for such projects does not require an approved noise compatibility 
program under part 150.
    In establishing the airport noise compatibility planning program, 
which became embodied in FAR part 150, the ASNA did not change the 
legal authority of state and local governments to control the uses of 
land within their jurisdictions. Public controls on the use of land are 
commonly exercised by zoning. Zoning is a power reserved to the states 
under the U. S. Constitution. It is an exercise of the police powers of 
the states that designates the uses permitted on each parcel of land. 
This power is usually delegated in state enabling legislation to local 
levels of government.
    Many local land use control authorities (cities, counties, etc.) 
have not adopted zoning ordinances or other controls to prevent 
noncompatible development (primarily residential) within the noise 
impact areas of airports. An airport's noise impact area, identified 
within noise contours on a noise exposure map, may extend over a number 
of different local jurisdictions that individually control land uses. 
For example, at five airports recently studied, noise contours overlaid 
portions of 2 to 25 different jurisdictions.
    While airport operators have included measures in noise 
compatibility

[[Page 16410]]

programs submitted under part 150 to prevent the development of new 
noncompatible land uses through zoning and other controls under the 
authorities of appropriate local jurisdictions, success in implementing 
these measures has been mixed. A study performed under contract to the 
FAA, completed in January 1994, evaluated 16 airports having approved 
part 150 programs for the implementation of land use control measures. 
This study found that of the 16 airports, 6 locations had implemented 
the recommended zoning measures, 7 locations had not implemented the 
recommended zoning measures, and 3 were in the process of 
implementation.
    Another independent study evaluated 10 airports that have FAA 
approved part 150 programs in place and found that 4 locations had 
prevented new noncompatible development and 6 locations had not 
prevented such new development. At the latter 6 locations, the study 
reported that 26 nonairport sponsor jurisdictions had approved new 
noncompatible development and 28 nonairport sponsor jurisdictions and 1 
airport sponsor jurisdiction had vacant land that is zoned to allow 
future noncompatible development.
    The independent study identified the primary problem of allowing 
new noncompatible land uses near airports to be in jurisdictions that 
are different from the airport sponsor's jurisdiction. This is 
consistent with observations by the FAA and with a previous General 
Accounting Office report which observed that the ability of airport 
operators to solve their noise problems is limited by their lack of 
control over the land surrounding the airports and the operator's 
dependence on local communities and states to cooperate in implementing 
land use control measures, such as zoning for compatible uses.
    The FAA's January 1994 study explored factors that contribute to 
the failure to implement land use controls for noise purposes. A major 
factor is the multiplicity of jurisdictions with land use control 
authority within airport noise impact areas. The greater the number of 
different jurisdictions, the greater the probability that at least some 
of them will not implement controls. In some locations, local land use 
control jurisdictions and airport operators have not developed 
cooperative relationships, the lack of which impedes appropriate land 
use compatibility planning. Further, some local jurisdictions are not 
fully aware of the effects of aircraft noise and of the desirability of 
land use controls. This appears to be worsened by the normal turnover 
of leadership in local government. These conditions could be improved 
through greater efforts by all involved parties to communicate and 
inform each other about the nature of aviation noise and of the 
effective preventive and remedial actions available to local 
jurisdictions to assure long term compatible land use.
    Some jurisdictions do not perceive land use controls as a priority 
because the amount of vacant land available for noncompatible 
development within the airport noise impact area is small, perhaps 
constituting only minor development on dispersed vacant lots, or 
because the current demand for residential construction near the 
airport is low to nonexistent. In such areas, land use control changes 
are not considered to have the ability to change substantially the 
number of residents affected by noise. Jurisdictions may also give 
noise a low priority compared to the economic advantages of developing 
more residential land or the need for additional housing stock within a 
community. A zoning change from residential to industrial or commercial 
may not make economic sense if little demand exists for this type of 
development. Therefore, a zoning change is viewed as limiting 
development opportunities and diminishing the opportunities for tax 
revenues.
    In some cases, zoning for compatible land use has met with 
organized public opposition by property owners arguing that the 
proposed zoning is a threat to private property rights, and that they 
deserve monetary compensation for any potential property devaluation. 
Further, basic zoning doctrine demands that the individual land parcels 
be left with viable economic value, i.e., be zoned for a use for which 
there is reasonable demand and economic return. Otherwise, the courts 
may determine a zoning change for compatibility to be a ``taking'' of 
private property for public use under the Fifth Amendment to the U. S. 
Constitution, requiring just compensation.
    One or more of the factors hindering effective land use controls 
may be of sufficient importance to preclude some jurisdictions from 
following through on the land use recommendations of an airport's part 
150 noise compatibility program. When either an airport sponsor's or a 
nonairport sponsor's jurisdiction allows additional noncompatible 
development within the airport's noise impact area, it can result in 
noise problems for the people who move into the area. This can, in 
turn, result in noise problems for the airport operator in the form of 
inverse condemnation or noise nuisance lawsuits, public opposition to 
proposals by the airport operator to expand the airport's capacity, and 
local political pressure for airport operational and capacity 
limitations to reduce noise. Some airport operators have taken the 
position that they will not provide any financial assistance to 
mitigate aviation noise for new noncompatible development. Other 
airport operators have determined that it is a practical necessity for 
them to include at least some new residential areas within their noise 
assistance programs to mitigate noise impacts that they were unable to 
prevent in the first place. Over a relatively short period of time, the 
distinctions blur between what is ``new'' and what is ``existing'' 
residential development with respect to airport noise issues.
    Airport operators currently may include new noncompatible land 
uses, as well as existing noncompatible land uses, within their part 
150 noise compatibility programs and recommend that remedial noise 
mitigation measures--usually either property acquisition or noise 
insulation--be applied to both situations. These measures have been 
considered to qualify for approval by the FAA under 49 USC 47504 and 14 
CFR part 150. The part 150 approval enables noise mitigation measures 
to be considered for Federal funding under the AIP, although it does 
not guarantee that Federal funds will be provided.

The Change in FAA Policy

    Beginning October 1, 1998, the FAA will approve under part 150 only 
remedial noise mitigation measures for existing noncompatible 
development and only preventive noise mitigation measures in areas of 
potential new noncompatible development. As of the same date, the 
ability to use AIP grants to carry out such measures will be affected 
to the extent that such remedial measures may not be approved under 
part 150. This policy is not retroactive and does not affect part 150 
approvals made before the effective date of the policy or AIP funding 
consistent with previous approvals. PFC funding will only be affected 
to the extent that an airport operator chooses to rely on an approved 
part 150 program for FAA's approval to use PFC funds.

Discussion

    The continuing development of noncompatible land uses around 
airports is not a new problem. The FAA, airport operators, and the 
aviation community as a whole have for some years expended a great deal 
of effort to

[[Page 16411]]

deal with the noise problems that are precipitated by such development.
    With respect to the part 150 program and Airport Improvement 
Program (AIP) noise grants, the FAA considered in the 1989-1990 
timeframe whether to disallow Federal assistance for new noncompatible 
land uses. The choice posed at that time was either (1) allow Federal 
funding for airport operator recommendations in part 150 programs that 
included new noncompatible land uses within the parameters of noise 
mitigation measures targeted for financial assistance from the airport 
(e.g., acquisition, noise insulation), or (2) disallow all Federal 
funding for new noncompatible development that local jurisdictions fail 
to control through zoning or other land use controls. No other 
alternatives were considered.
    The FAA selected the first option--to continue to allow Federal 
funds to be used to mitigate new noncompatible development as well as 
existing noncompatible development if the airport operator so chose. 
Several factors supported this decision. One factor was lack of 
authority by airport operators to prevent new noncompatible development 
in nonairport sponsor jurisdictions, although airport sponsors bear the 
brunt of noise lawsuits. Intense local opposition to an airport can 
adversely affect its ability to accommodate operations within its 
existing capacity, or to expand its facilities when needed. The FAA 
also considered the plight of local citizens living with a noise impact 
that they may not have fully understood at the time of home purchase. 
Land use noise mitigation measures, funded by the airport either with 
or without Federal assistance, may be the only practical tool an 
airport operator has to mitigate noise impacts in a community. The FAA 
was hesitant to deny airport operators and the affected public Federal 
help in this regard. In addition, the FAA gave deference to the local 
initiative, the flexibility, and the ability to fund a broad range of 
measures approved under the ASNA.
    Since this review in 1989-1990, the FAA has given extensive 
additional consideration to the subject of noncompatible land uses 
around airports. The change in FAA policy presented here involves a 
more measured and multifaceted approach than the proposal considered in 
1989-1990.
    A primary criterion in the ASNA for the FAA's approval of measures 
in an airport's part 150 noise compatibility program is that the 
measures must be reasonably consistent with obtaining the goal of 
reducing existing noncompatible land uses and preventing the 
introduction of additional noncompatible land uses. Until now, the FAA 
has applied this criterion as a whole when issuing determinations under 
part 150; that is, if a measure either reduces or prevents 
noncompatible development, no matter when that development occurs, it 
may be approved as being reasonably consistent. No distinction has been 
made by the FAA between remedial noise mitigation measures that address 
preexisting noncompatible development and measures that prevent new 
noncompatible development. Airport operators may, therefore, recommend 
and receive FAA approval under part 150 for remedial acquisition or 
soundproofing of new residential development.
    The FAA now believes that it would be more prudent to distinguish 
between (1) noise mitigation measures that are reasonably consistent 
with the goal of reducing existing noncompatible land uses (i.e., 
remedial measures) and (2) noise mitigation measures that are 
reasonably consistent with the goal of preventing the introduction of 
additional noncompatible land uses (i.e., preventive measures). Using 
such a distinction, airport operators would need to identify clearly 
within the area covered by noise exposure maps the location of existing 
noncompatible land uses as well as the location of potentially new 
noncompatible land uses. Many airport operators currently record this 
distinction in their noise exposure map submissions, when identifying 
noncompatible land uses. Potentially new noncompatible land uses could 
include (1) areas currently undergoing residential or other 
noncompatible construction; (2) areas zoned for residential or other 
noncompatible development where construction has not begun; and (3) 
areas currently compatible but in danger of being developed 
noncompatibly within the timeframe covered by the airport's noise 
compatibility program.
    The purpose of distinguishing between existing and potential new 
noncompatible development is for airport operators to restrict their 
consideration of remedial noise mitigation measures to existing 
noncompatible development and to focus preventive noise mitigation 
measures on potentially new noncompatible development. The most 
commonly used remedial noise mitigation measures are land acquisition 
and relocation, noise insulation, easement acquisition, purchase 
assurance, and transaction assistance. The most commonly used 
preventive noise mitigation measures are comprehensive planning, 
zoning, subdivision regulations, acquisition of easements or 
development rights to restrict noncompatible development, revised 
building codes for noise insulation, and real estate disclosure. 
Acquisition of vacant land may also be a preventive noise mitigation 
measure with supporting evidence in the airport operator's part 150 
submission that acquisition is necessary to prevent new noncompatible 
development because noncompatible development on the vacant land is 
highly likely and local land use controls will not prevent such 
development. Often, combinations of these measures are applied to 
ensure the maximum compatibility.
    Under this final FAA policy, airport operators can continue to 
apply the most commonly used noise mitigation measures in their noise 
compatibility programs. Local flexibility to recommend other measures, 
including innovative measures, under part 150 would be retained. 
However, all noise mitigation measures applied to existing 
noncompatible development must clearly be remedial and serve the goal 
of reducing existing noncompatible land uses. Similarly, all noise 
mitigation measures applied to potential new noncompatible development 
must clearly be preventive and serve the goal of preventing the 
introduction of additional noncompatible land uses.
    Any future FAA determinations issued under part 150 will be 
consistent with this policy. The FAA's approval of remedial noise 
mitigation measures will be limited to existing noncompatible 
development. The FAA's approval of preventive noise mitigation measures 
will be applied to potential new noncompatible development.
    The FAA recognizes that there will be gray areas which will have to 
be addressed on a case-by-case basis within these policy guidelines. 
For example, minor development on vacant lots within an existing 
residential neighborhood, which clearly is not extensive new 
noncompatible development, may for practical purposes need to be 
treated with the same remedial measure applied to the rest of the 
neighborhood. Another example would be a remedial situation in which 
noise from an airport's operation has significantly increased, 
resulting in new areas that were compatible with initial conditions 
becoming noncompatible. Airport operators must provide adequate 
justification in their part 150 submittals for such exceptions to the 
policy guidelines.

[[Page 16412]]

    It should be noted that AIP (as well as PFC) funds can continue to 
be used for projects approved as mitigation measures in an FAA 
environmental document for airport development. This final policy does 
not affect funding for such projects.
    The use of Federal AIP funds for noise projects will be affected to 
the extent that funding for such projects relies on a part 150 
approval; that is, remedial projects for existing noncompatible 
development and preventive projects for potential new noncompatible 
development when part 150 approval is a prerequisite for the use of AIP 
funds. This is the consequence of the policy decision not to approve 
remedial mitigation measures for new noncompatible development in a 
part 150 program.
    This policy will not affect AIP funding for those few types of 
noise projects, such as soundproofing of schools and health care 
facilities, that are eligible for AIP funds without an approved part 
150 program. Additionally, after review and consideration of comments 
noting that part 150 approval is not a requirement for using PFC funds, 
FAA has determined that this policy does not affect the use of PFC 
funds for noise projects. It would only affect PFC funding to the 
extent that an airport operator chooses to rely solely on an approved 
part 150 program to obtain approval to use PFC funds. That is the 
airport operator's choice.
    The impact of revising the FAA's policy on part 150 noise 
determinations will be to preclude the use of the part 150 program and 
AIP funds dependent on part 150 program approval to remedy new 
noncompatible development within the noise contours of an airport after 
the effective date of this final policy. By precluding this option 
while at the same time emphasizing the array of preventive noise 
mitigation measures that may be applied to potential new noncompatible 
development, the FAA seeks to focus airport operators and local 
governments more clearly on using these Federal programs to the maximum 
extent to prevent noncompatible development around airports, rather 
than attempting to mitigate noise in such development after the fact. 
The FAA has determined that such a policy will better serve the public 
interest. Unlike the FAA's previous consideration of this issue in 
1989-1990, AIP funding may be available to assist airport operators in 
dealing with prospective new noncompatible development that is not 
being successfully controlled by local jurisdictions, so long as the 
airport's methods are designed to prevent the noncompatible development 
rather than to mitigate it after development has occurred. This should 
be a more cost-effective use of available funds since remedial noise 
mitigation measures generally cost more for a given unit than 
preventive measures.
    In selecting a date to implement this final policy, the FAA has 
weighed the benefits of implementing it as rapidly as possible against 
those of a longer transition period in consideration of ongoing part 
150 programs. One approach considered was to implement it on an 
airport-by-airport basis, selecting either the date of the FAA's 
acceptance of an airport's noise exposure maps or the date of the FAA's 
approval of an airport's noise compatibility program under part 150.
    This approach would have the advantage of directly tying this 
policy to a point in time for which an airport operator has defined, in 
a public process, the size of the airport's noise impact area and has 
consulted with local jurisdictions on measures to reduce and prevent 
noncompatible land uses. There are, however, disadvantages to this 
approach. More than 200 airports have participated in the part 150 
program, beginning in the early 1980's. Thus, selecting either the 
noise exposure map's acceptance date or the noise compatibility 
program's approval date for these airports, which includes the great 
majority of commercial service airports with noise problems, would 
entail either applying this final policy retroactively or applying it 
prospectively at some future date as such airports update their maps 
and programs.
    The selection of an airport-by-airport retroactive date would have 
required the FAA and airport operators to review previous part 150 maps 
and programs, historically reconstructing which land use development 
was ``existing'' at that time and which development is ``new'' since 
then, potentially to withdraw previous FAA part 150 determinations 
approving remedial measures for ``new'' development, and not issue new 
AIP grants for any ``new'' development (which by this date may have 
already been built and in place for a number of years and be regarded 
locally as an integral part of the airport's mitigation program for 
existing development). There was the further practical consideration of 
benefits to be achieved. It may now be too late to apply preventive 
noise mitigation measures to noncompatible land uses that have been 
developed since an airport's noise exposure maps have been accepted or 
noise compatibility program has been approved. If remedial noise 
mitigation measures were now determined not to be applicable to such 
areas, the areas would be left in limbo, having had no advance warning 
of a change in Federal policy.
    There would also be disadvantages to applying this final policy 
prospectively on an airport-by-airport basis as an airport either 
updates a previous part 150 program or completes a first-time part 150 
submission. The major disadvantages would be in the timeliness of 
implementing this final policy and the universality of its coverage. 
Since part 150 is a voluntary program, airport operators may select 
their timing of entry into the program and the timing of updates to 
previous noise exposure maps and noise compatibility programs. The 
result would be a patchwork implementation, with some airports 
operating under the new policy regarding part 150 noise mitigation 
measures and funding and other airports operating under the old policy 
for an unspecified number of years.
    The FAA has determined that its preferred option is to select one 
prospective date nationwide as the effective date for this final policy 
rather than to implement it based on an individual airport's part 150 
activities, either maps or program. A specific date will ensure 
nationwide application on a uniform basis and provide a more timely 
implementation than prospective airport-by-airport implementation 
dates. The FAA considered two options with respect to the selection of 
a specific date: (1) the date of issuance of a final policy following 
the evaluation of comments received on its proposal or (2) a future 
date, 180 days to a year after publication of a final policy to allow 
transition time for airport operators to accommodate part 150 programs 
currently in preparation and those programs completed and submitted to 
FAA, but still under its review.
    The FAA anticipated in its notice of this change in policy that 
there would be a transition period from the date of issuance of a final 
policy of at least 180 days to avoid disrupting airport operators' 
noise compatibility programs that have already been submitted to the 
FAA and are undergoing statutory review. The FAA also announced in its 
notice that provision for this period plus an additional margin of time 
beyond 180 days would allow airport operators additional opportunity to 
amend programs currently in preparation, in consultation with local 
jurisdictions, to emphasize preventive rather than remedial measures 
for new development. Accordingly, the FAA

[[Page 16413]]

sought comment on how long the transition period should be.
    In view of the extended time period since publication of the 
original notice, plus the opportunity for supplemental comment on the 
impacts of the policy on PFC eligibility, and the changes made in the 
policy to accommodate the concerns raised, the effective date of 
October 1, 1998, which provides a 180-day transition period, is 
regarded as more than adequate.
    Since part 150 is a voluntary program, each airport operator has 
the discretion to make its own determinations regarding the impact of 
this final policy on existing noise compatibility programs. The FAA 
will not initiate withdrawals of any previous part 150 program 
approvals based on this policy. New part 150 approvals after the 
effective date of this final policy will conform to this policy. Any 
remedial noise mitigation measures for noncompatible development that 
occurs within the area of an airport's noise exposure maps after the 
effective date of this final policy may have to be funded locally, 
since the measures will not be approvable under part 150.

Discussion of Comments to the May 28, 1997, Notice

    Please note that FAA responded in full in the Federal Register on 
May 28, 1997 (62 FR 28816) to the comments received to the Notice of 
Proposed Policy, as published in the Federal Register on March 20, 1995 
(60 FR 14701).
    On May 28, 1997, the FAA issued a notice of a revised proposed 
policy (62 FR 28816), and solicited additional comments from the public 
on the proposed policy's impacts on Passenger Facility Charges. Four 
organizations and one Federal agency submitted comments on the 
proposal. The organizations included two airport operators, an airport 
association, and an organization representing noise impacted 
communities. The issues raised in the comments are summarized and 
addressed below:
    Issue: Linkage of PFC funding to AIP funding. The airport 
association, one airport operator, and the Federal agency objected to 
linking limitations on PFC funding to limitations on AIP funding, 
generally indicating that the two funding procedures are fundamentally 
different. They further indicated that PFC funding is basically locally 
generated and expended under local priorities within general FAA 
guidelines, whereas AIP funding is nationally generated and disbursed 
under national funding priorities, and therefore lacks the flexibility 
required to address local problems in a timely manner. They also 
indicated that such a limitation on PFC funding would seriously impair 
airport operators' ability to respond to specific local problems.
    FAA Response: FAA has addressed this issue by establishing a 
distinction between remedial and preventive noise mitigation measures 
under part 150, and by announcing that on and after the effective date 
of this policy the FAA will not approve remedial measures for new 
noncompatible land uses. This indirectly affects the use of AIP funds 
for measures which, henceforth, will not be approved by the FAA an 
airport operator's part 150 program, but does not affect funding from 
any source that does not rely on the FAA's approval of a part 150 
program.
    Issue: Retroactive nature of the funding limitations. The 
organization representing noise impacted communities objected to the 
``retroactive'' nature of the proposed limitations on PFC funding (as 
well as the proposed limitations on AIP funding), indicating that in 
many airport noise impacted communities, it was impossible for local 
zoning authorities to cope with expanding operations and noise at 
nearby airports, and that the proposed funding limitations would 
seriously compound the airport operators' ability to work with local 
communities to mitigate such problems.
    FAA Response: This final policy will not affect the use of PFC 
funds for noise mitigation projects. Additionally, the final policy has 
clarified that there is no retroactive AIP funding limitation.
    Issue: Court ordered noise remediation measures. One airport 
operator, while finding no general objection to the proposed 
limitations on PFC funding, pointed out an important exception that FAA 
had previously overlooked in its proposed policy: ``the ability of the 
airport operator to utilize either AIP or PFC funding for noise 
remediation measures ordered or approved by a court or administrative 
agency.''
    FAA Response: FAA recognizes that an airport operator ordered by a 
court of competent jurisdiction, or under a court supervised approval 
procedure would have no choice but to proceed regardless of funding 
limitations. With the continued ability to use PFC funds, the operator 
will still have funding flexibility. The airport operator also may 
request an exemption to the policy for part 150 approval and thereby 
obtain approval to use AIP funds.
    Issue: Published guidelines needed for FAA decisions on the 
``gray'' areas. The Federal agency recommended that FAA develop and 
publish policy guidelines for approving mitigation measures for the so 
called ``gray areas.'' Approval in this area is presently addressed on 
a case-by-case basis subject to regional FAA interpretation. A single 
national policy is needed in order to treat similar situations 
consistently and eliminate subjective decisions.
    FAA Response: FAA recognizes the necessity for national consistency 
in the treatment of similar situations, while maintaining the ability 
to respond adequately to unique local compatibility problems. FAA 
intends to develop supplemental guidelines to accomplish these ends.
    Issue: Disclosure requirements. The Federal agency recommended that 
FAA examine means of placing information relative to the use of Federal 
funding for noise mitigation (soundproofing, et al.) in the deeds to 
such properties.
    FAA Response: FAA recognizes disclosure of aviation noise as a very 
important tool for state and local governments in informing and 
forewarning prospective buyers or tenants about the expected impacts of 
aviation noise on properties within noise impact areas. An aviation 
noise disclosure statement, somewhat similar to a flood plain 
disclosure statement, attached to property deeds is highly desirable. 
Avigation easements granting the right of overflight and the generation 
of associated noise are also encouraged, especially in conjunction with 
use of AIP funds for noise mitigation. FAA will continue its current 
policy of strongly encouraging all levels of government possessing such 
authority to require both formal aviation noise disclosure statements 
attached to deeds and avigation/noise easements also attached to 
property deeds.

Notice of Final FAA Policy

    Accordingly, by this publication the FAA is formally notifying 
airport operators and sponsors, airport users, the officials of all 
public agencies and planning agencies whose area, or any portion of 
whose area, of jurisdiction is within an airport's Day-Night Average 
Sound Level 65 dB noise contours, as developed in accordance with FAA 
approved methodologies, and all persons owning property within, 
considering acquisition of property within, considering moving into 
such areas, or having other interests in such areas, of the following 
final FAA policy concerning future approval under part 150 and the use 
of AIP funds for certain noise mitigation measures.

[[Page 16414]]

Final Policy

    Beginning October 1, 1998, the FAA will approve remedial noise 
mitigation measures under part 150 only for noncompatible development 
which exists as of that date. Noncompatible development that 
potentially may occur on or after October 1, 1998, may only be 
addressed in part 150 programs with preventive noise mitigation 
measures. This policy will affect the use of AIP funds to the extent 
that such funding is dependent on approval under part 150. Approval of 
remedial noise mitigation measures for bypassed lots or additions to 
existing structures within noise impacted neighborhoods, additions to 
existing noise impacted schools or other community facilities required 
by demographic changes within their service areas, and formerly noise 
compatible uses that have been rendered noncompatible as a result of 
airport expansion or changes in airport operations, and other 
reasonable exceptions to this policy on similar grounds must be 
justified by airport operators in submittals to the FAA and will be 
considered by the FAA on a case-by-case basis. This policy does not 
affect AIP funding for noise mitigation projects that do not require 
part 150 approval, that can be funded with PFC revenue, or that are 
included in FAA-approved environmental documents for airport 
development.

    Issued in Washington, DC, on March 27, 1998.
John R. Hancock,
Acting Assistant Administrator for Policy Planning, and International 
Aviation.
[FR Doc. 98-8835 Filed 4-2-98; 8:45 am]
BILLING CODE 4910-13-M