[Federal Register Volume 64, Number 53 (Friday, March 19, 1999)]
[Notices]
[Pages 13625-13627]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-6738]


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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration


Approval of Noise Compatibility Program Revision; Naples 
Municipal Airport, Naples, FL

AGENCY: Federal Aviation Administration, DOT.

ACTION: Notice.

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SUMMARY: The Federal Aviation Administration (FAA) announces its 
findings on the noise compatibility program revision submitted by the 
City of Naples under the provisions of Title I of the Aviation Safety 
and Noise Abatement Act of 1979 (Pub. L. 96-193) and 14 CFR part 150. 
These findings are made in recognition of the description of Federal 
and nonfederal responsibilities in Senate Report No. 96-52 (1980). On 
September 3, 1998, the FAA determined that the noise exposure maps 
submitted by the City of Naples under part 150 were in compliance with 
applicable requirements. On March 2, 1999, the Administrator approved a 
revision to the Naples Municipal Airport noise compatibility program. 
The program measure in this revision was fully approved.

EFFECTIVE DATE: The effective date of the FAA's approval of the Naples 
Municipal Airport noise compatibility program revision is March 2, 
1999.

FOR FURTHER INFORMATION CONTACT: Mr. Tommy J. Pickering, P.E., Federal 
Aviation Administration, Orlando Airports District Office, 5950 
Hazeltine National Drive, Suite 400, Orlando, Florida 32822, (407) 812-
6331, Extension 29, Documents reflecting this AFF action may be 
reviewed at this same location.

SUPPLEMENTARY INFORMATION: This notice announces that the FAA has given 
its overall approval to the noise compatibility program revision for 
Naples Municipal Airport, effective March 2, 1999.
    Under section 104(a) of the Aviation Safety and Noise Abatement Act 
of 1979 (hereinafter referred to as ``the Act''), an airport operator 
who has previously submitted a noise exposure may submit to as the FAA 
a noise compatibility program which sets forth the measures taken or 
proposed by the airport operator for the reduction of existing 
noncompatible land uses and prevention of additional noncompatible land 
uses within the area covered by the noise exposure maps. The Act 
requires such programs to be developed in consultation with interested 
and affected parties including local communities, government agencies, 
airport users, and FAA personnel.
    Each airport noise compatibility program developed in accordance 
with Federal Aviation Regulations (FAR) part 150 is a local program, 
not a Federal program. The AFF does not substitute its judgment for 
that of the airport proprietor with respect to which measure should be 
recommended for action. The FAA's approval or disapproval of FAR part 
150 program recommendations is measured according to the standards 
expressed in part 150 and the Act, and is limited to the following 
determinations:
    a. The noise compatibility program was developed in accordance with 
the provisions and procedures of FAR part 150;
    b. Program measures are reasonably consistent with achieving the 
goals of reducing existing noncompatible land uses around the airport 
and preventing the introduction of additional noncompatible land uses;
    c. Program measures would not create an undue burden on interstate 
or foreign commerce, unjustly discriminate against types or classes of 
aeronautical users, violate the terms of airport grant agreements, or 
intrude into areas preempted by the Federal government; and
    d. Program measures relating to the use of flight procedures can be 
implemented within the period covered by the program without derogating 
safety, adversely affecting the efficient use and management of the 
navigable airspace and air traffic control systems, or adversely 
affecting other powers and responsibilities of the Administrator 
prescribed by law.
    Specific limitations with respect to FAA's approval of an airport 
noise compatibility program are delineated in FAR part 150, Sec. 150.5. 
Approval is not a determination concerning the acceptability of land 
uses under Federal, state, or local law. Approval does not by itself 
constitute an FAA implementing action. A request for Federal action or 
approval to implement specific noise compatibility measures may be 
required, and an AFF decision on the request may require an 
environmental assessment of the proposed action. Approval does not 
constitute a commitment by the FAA to financially assist in the 
implementation of the program nor a determination that all measures 
covered by the program are eligible for grant-in-aid funding from the 
FAA. Where Federal funding is sought, requests for project grants must 
be submitted to the FAA Airports District Office in Orlando, Florida.
    The City of Naples submitted to the FAA on March 6, 1998, revised 
noise exposure maps, descriptions, and other documentation produced 
during the noise compatibility planning study update conducted from 
October 23, 1997 through February 27, 1998. The Naples Municipal 
Airport revised noise exposure maps were determined by FAA to be in 
compliance with applicable requirements on September 3, 1998. Notice of 
this determination was published in the Federal Register.
    The Naples Municipal Airport study contains a proposed noise 
compatibility program revision comprised of an action designed for 
implementation by airport management between the date of approval and 
the year 2003. It was requested that FAA evaluate and approve this 
material as a noise compatibility program revision as described in 
section 104(b) of the Act. The FAA began its review of the program 
revision on September 3, 1998, and we required by a provision of the 
Act to approve or disapprove the program within 180-days (other than 
the use of new flight procedures for noise control). Failure to approve 
or disapprove such program within the 180-day period shall be deemed to 
be an approval of such program.
    The submitted program revision contained one (1) proposed action 
for noise mitigation on and off the airport. The FAA completed its 
review and determined that the procedural and substantive requirements 
of the Act and FAR part 150 have been satisfied. The overall program 
revision, therefore, was approved by the Administrator effective March 
2, 1999.
    Out right approval was granted for the one (1) specific program 
measure. The approval action was for the following program control:

[[Page 13626]]

Background

    In February 1997, the Naples Airport Authority (NAA) submitted to 
the FAA an Update to the Part 150 Noise Compatibility Program (NCP) for 
Naples Municipal Airport (APF). The Update consisted of 15 measures, 
one of which would allow operations by Stage I aircraft (weighing less 
than 75,000) only between the hours of 7 a.m. to 10 p.m. The FAA 
approved the nighttime curfew and most of the other measures submitted 
by the airport sponsor. In March of 1998, the NAA submitted a second 
Update to its part 150 NCP. In that Update, the NAA proposed extending 
the current Stage I curfew to a full, 24-hour ban, thereby prohibiting 
the operation of any Stage I aircraft weighing less than 75,000 pounds 
at APF.
    On September 18, 1998, the FAA published a notice in the Federal 
Register announcing that it would be reviewing the NCP submitted by 
Naples and requesting comments. 63 FR 49942. The FAA received one 
letter, from the National Business Aviation Association (NBAA), dated 
March 27, 1998. That letter indicated that it supplemented its earlier 
May 28, 1997, comments on the 1997 NCP for Naples, objecting to 
restrictions on Stage I aircraft operations. The March 27 letter 
summarized NBAA's earlier comments, objecting to the Stage I ban. As 
grounds for its objection, the NBAA argues that: (1) The terms of the 
24-hour ban deprives public access on unfair and unreasonable terms, 
(2) the terms of the ban are unjustly discriminatory, and (3) the ban 
is preempted by federal law. in July of 1998, the NAA provided 
additional clarification through its consultant, Harris Miller Miller 
and Hanson, Inc. (HMMH), in response to issues raised during FAA's 
preliminary review. The analysis and July supplement include evidence 
of the noise benefit that will accrue to neighboring communities as a 
result of the ban, statistics on the number of Stage I aircraft 
operating nationally as well as the number operating at Naples, and 
information about the existence of other nearby airports available for 
use by Stage I operators.

Operational Measures

1. Extend Existing Nighttime Stage I Use Restrictions to 24 Hours

    The Naples Airport Authority (NAA) requests that the FAA approve 
extension of the existing nighttime curfew on operations by Stage I 
aircraft (10 p.m. to 7 a.m.) to a 24 hour ban. ``Emergency, medical, or 
government flights or other flights which are for the benefit of public 
health, safety, and welfare would be exempt from the ban.'' (NCP 
Update, February 1998; Amendment to NEM and NCP prepared by HMMH, 
Report 295500, July 24, 1998).
    Approved. The NCP demonstrates that the recommended Stage I ban 
provides a noise benefit both in the short term and in the five year 
planning timeframes. in 1998, the Stage I ban is predicted to reduce 
the number of residential dwelling units within the 65 dB DNL from 184 
to 77 dwelling units, and to remove 120 individuals from the 65 dB DNL 
contour. In 2003, the number of residences significantly impacted by 
noise would be reduced from 185 to 146, and the number of individuals 
impacted would be reduced by 156. In addition, the ban is reasonable 
because there are no Stage I aircraft based at the Airport and less 
than two operations per day are affected by the ban. There are seven 
companies operating Stage I aircraft at APF; two companies use the 
aircraft primarily for ambulance services, two other companies have 
alternate non Stage I aircraft they can utilize, two companies 
operating only Stage I aircraft offered no objection to the ban, and 
only one company indicated that the ban would impose an inconvenience 
but not a financial hardship. For those who do not own alternative 
aircraft, the impact will be minimal because there are two other 
airports located within 30 miles of the city of Naples that can 
accommodate the affected aircraft.
    As a matter of policy, FAA does not consider the use of aircraft 
stage designations to be unjustly discriminatory per se. Moreover, the 
ban is not unjustly discriminatory because Stage I aircraft are the 
loudest type of aircraft operating at Naples.
    The exemptions to further public health, safety, and welfare, which 
were applied in 1997 to the Stage I nighttime curfew, are being 
extended to this 24-hour ban. The FAA commented in September 1997 that 
the exception of emergency medical flights is a justifiable exception.
    The ban on operations by Stage I aircraft weighing less than 75,000 
pounds is not federally preempted because the scheme of federal 
regulation of Stage I aircraft is not so pervasive as to make 
reasonable the inference that FAA left no room for airport proprietors 
to supplement it. The FAA's interest in Stage I aircraft is not so 
dominant that the federal system should be assumed to preclude 
enforcement of local rules on the same subject, and because the goals 
of FAA regulation and obligations imposed by FAA do not reveal any 
purpose to preclude the exercise of State authority. See Rice versus 
Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947). See Pacific Gas & 
Electric Co. versus State Energy Resources Conservation and Development 
Comm'n, 461 U.S. 190, 203-204 (1983).
    By stating its intent to conduct further study and actions as may 
be appropriate when it required the gradual elimination of operations 
by Stage I aircraft weighing more than 75,000 pounds, FAA did not 
intend or ordain complete preemption of regulations of operations by 
all Stage I aircraft. In the preamble of the final rule that phased out 
operations by Stage I aircraft weighing more than 75,000 pounds, FAA 
stated ``. . . operating noise limits for turbojet airplanes weighing 
75,000 pounds or less cannot be adopted in a manner consistent with the 
constraints in . . . the Act. However, the FAA is expanding is 
comprehensive analysis of the public impact of aircraft noise. As the 
results of this study become available over the next two years, FAA 
will undertake such actions as may be appropriate.'' 41 FR 56055 
(December 23, 1976). Since 1976, the FAA has not conducted the 
contemplated study and has not undertaken further action, with the 
result that the use of such aircraft is being gradually eliminated 
through attrition. Although FAA Advisory Circular 150-5020-1, Airport 
Noise Compatibility Planning, dated August 5, 1983, and the 1976 
Department of Transportation Aviation Noise Abatement Policy warn about 
conflicts between local airport rules and the federal scheme concerning 
deadlines for retrofit or replacement of Stage I aircraft, when these 
statements are read in context it is clear that the FAA is speaking 
only about Stage I aircraft weighing more than 75,000 pounds. These 
guidance documents are silent about Stage I aircraft weighing less than 
75,000 pounds. Neither document clearly manifests FAA intent to 
supersede the exercise of proprietary power.
    Given FAA's exercise of a detailed and supervisory role over Stage 
I aircraft weighing more than 75,000 pounds, FAA's silence in these 
circumstances should not be presumed to be or construed as a barrier to 
action by Naples Airport Authority to establish requirements as to the 
permissible level of noise created by Stage I aircraft weighing less 
than 75,000 pounds using its airport. Based upon the small number of 
such aircraft left in the total U.S. fleet, estimated by NAA's reported 
research as less than 50, FAA has determined that further action is not 
appropriate because there are no federal

[[Page 13627]]

concerns requiring national regulation. There do not appear to be any 
appreciable risks of disruption in traffic to and from airports or 
economic distress among carriers that require a federal policy to 
balance the goal of noise reduction with economic and technological 
difficulties.
    Additionally, this is not a case where preemption results from 
actual conflict between state and federal law. As there is no federal 
requirement concerning the pace of elimination of operations by Stage I 
aircraft weighing less than 75,000 pounds, aircraft operators may 
comply with this local ban on such operations. Based upon the record 
before us, it does not appear that the Stage I ban at Naples Airport 
would stand as an obstacle to the accomplishment and execution of 
purposes and objectives of Congress and the FAA. The small number of 
such aircraft, the fact that none are based at or used by air carriers 
at the airport, and the role of Naples Airport indicate that the ban 
would impose a minimal burden on interstate commerce. Should impacts on 
air commerce occur which are unforeseeable at the time of this 
approval, or should the FAA receive significant new information such as 
that the exemptions are granted in an unjust manner, the FAA will 
reevaluate this determination upon receipt of new information to 
ascertain whether it still meets the standards for Part 150 approval.
    This determination is set forth in detail in a Record of Approval 
endorsed by the Administrator on March 2, 1999. The Record of Approval, 
as well as other evaluation materials and the documents comprising the 
submittal, are available for review at the FAA office listed above and 
at the administrative office of the City of Naples.

    Issued in Orlando, Florida on March 4, 1999.
W. Dean Stringer,
Manager, Orlando Airports District Office.
[FR Doc. 99-6738 Filed 3-18-99; 8:45 am]
BILLING CODE 4910-13-M