[Federal Register Volume 62, Number 102 (Wednesday, May 28, 1997)]
[Proposed Rules]
[Pages 28816-28822]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-13953]
[[Page 28816]]
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DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 150
[Docket No. 28149]
Proposed Final Policy on Part 150 Approval and Funding of Noise
Mitigation Measures
AGENCY: Federal Aviation Administration, DOT.
ACTION: Notice of proposed final policy on part 150 approval and
funding of Noise Mitigation Measures, and request for supplemental
comment on its Impacts on Passenger Facility Charges.
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SUMMARY: The Federal Aviation Administration (FAA) has prepared for
issuance a final policy concerning approval and eligibility for Federal
funding of certain noise mitigation measures. This policy would
increase the incentives for airport operators to prevent the
development of new noncompatible land uses around airports and assure
the most cost-effective use of Federal funds spent on noise mitigation
measures. This would include certain limitations on the eligibility of
airport improvement program (AIP) funds and passenger facility charges
(PFC). The proposed policy was published in the Federal Register on
March 20, 1995 (60 FR 14701), and public comments were received and
considered. This document sets forth the revised policy as proposed for
issuance. However, prior to the issuance of the policy the FAA is
requesting supplemental comment on the impact of its limitations on PFC
eligibility. The FAA will consider any comments on PFC eligibility thus
received and revise the policy as may be appropriate prior to issuing
the final policy. All other issues are considered to have been
adequately covered during the original comment period.
Accordingly and after any revisions resulting from supplemental
comments received on the impacts on PFC eligibility, as of January 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 is allowed to occur in the vicinity of airports after the
effective date of this final policy. As of the same effective date,
eligibility for Airport Improvement Program (AIP) funding under the
noise set-aside will be determined using criteria consistent with this
policy. Specifically, remedial noise mitigation measures for new
noncompatible development that occurs after the effective date of this
final policy will not be eligible for AIP funding under the noise set-
aside, regardless of previous FAA approvals under part 150, the status
of implementation of an individual airport's part 150 program, or the
status of any pending application for AIP funds. This policy also
applies to projects that are eligible for noise set-aside funds without
a part 150 program. This change in AIP eligibility will change in a
similar way the eligibility of noise projects for passenger facility
charge (PFC) funding. That is, the FAA will not approve the use of PFC
funds to remediate noise impacts for new noncompatible development that
occurs after the effective date of this policy.
DATES: Comments are due on or before June 27, 1997. This policy will be
effective January 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: WAlbee@mail.hq.faa.gov;
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.
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 may also 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 measure relating to flight
procedures, is deemed to be an approval under the ASNA. Finally, the
ASNA sets forth broad eligibility criteria, 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. Projects
that are eligible for AIP funding are also eligible to 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. 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.
[[Page 28817]]
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 area 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 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 letter 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 jurisdiction 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 operators'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. Some jurisdictions have not
developed cooperative relationships with the airport operator, which
impedes appropriate land use compatibility planning. Some jurisdictions
are not aware of the effects of aircraft noise and of the desirability
of land use controls. This appears to be caused by a lack of ongoing
education and communication between the airport and the jurisdictions,
and to be worsened by lack of continuity in local government.
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 dimishing the opportunities for tax
revenues.
In some cases, zoning for compatible land use has meet 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, basis zoning doctrine demands that the individual and parcels
be left with viable economic value, i.e., be zoned for a use for which
here 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 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
the expansion of 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--
particularly if they have airport expansion plans. 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 eligible for Federal funding, although it does not guarantee that
Federal funds will be provided.
Similar remedial measures are eligible to be funded with PFC
revenue collected by public agencies pursuant to the provisions of 49
USC 40117 and 14 CFR part 158. Project eligibility for PFC use is
established by the eligibility of such a project under the AIP. While
approval by the FAA for a public agency to use PFC revenue for noise
mitigation purposes does not require an approval part 150 noise
compatibility program, the public agency must demonstrate the existence
of noncompatible land uses around the airport and the efficacy of the
proposed noise project.
The Change in FAA Policy
Beginning January 1, 1998, the FAA will approve under part 150 only
remedial noise mitigation measures for
[[Page 28818]]
existing noncompatible development and only preventive noise mitigation
measures in areas of potential new noncompatiable development and only
preventive noise mitigation measures in areas of potential new
noncompatible development. As of the same date, criteria for
determining AIP eligibility under the noise set-aside and the use of
PFC revenue that are consistent with this policy will be applied by the
FAA. Specifically, after the effective date of this final policy,
remedial noise mitigation measures for new noncompatible development
that occurs from that date forward will not be eligible for AIP funding
under the noise set-aside, regardless of previous FAA approvals under
part 150, the status of implementation of an individual airport's part
150 program, or the status of any pending application for AIP funds.
This policy also applies to projects that are eligible for the noise
set-aside without a part 150 program pursuant to 49 U.S.C. 4704(c).
Additionally, because a project must be eligible under the AIP to be
eligible for PFC funds, this policy will affect the eligibility of
noise mitigation measures for PFC funding. Consequently, after the
effective date of this final policy, the FAA will not approve the use
of PFC funds to implement remedial noise mitigation measures for new
noncompatible development that occurs from that date forward.
Additional Comment Period for Effects on PFC Eligibility
This final policy explicitly includes passenger facility charges
(PFC) within the prohibition of funding for remedial noise measures for
new noncompatible development. However, the proposed policy that was
published in the Federal Register and made available for public comment
was more generic in its discussion of funding and did not specifically
cite PFC eligibility. The public comments on funding that were received
focused almost exclusively on Airport Improvement Program (AIP)
funding. The policy's impact on PFC eligibility is identical to its
impacts on AIP eligibility. Accordingly, a docket is open for a period
of 30 days after the date of publication of this proposed final policy
for public comment upon those issues related to the policy's impacts
upon PFC eligibility. All other issues are considered to have been
adequately covered during the original comment period. After
consideration of any public comments thus received, the FAA may further
refine the policy by revising portions of the policy related to PFC
eligibility. Inasmuch as the FAA anticipates that any such revisions
may be incorporated and the final policy issued within a reasonably
short time, the effective date of this policy will be January 1, 1998.
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 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
development (note that these deliberations occurred prior to the advent
of the PFC program). 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 be
detrimental to its capacity, especially if any expansion of airport
facilities is 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 broad eligibility for project funding 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 reduce
noncompatible development and preventive noise mitigation 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 versus 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
[[Page 28819]]
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, easement acquisition restricting
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 would not be limited
to applying 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 under 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 will be responsible for
making the case for exceptions to the policy guidelines in their part
150 submittals.
It should be noted that noise mitigation would continue to be
eligible for AIP and PFC funds if approved as mitigation measures in an
FAA environmental document for airport development project(s). This
final policy does not affect that eligibility.
Eligibility for Federal funding of noise projects through the noise
set-aside of the AIP will follow the same policy as the FAA's part 150
determinations--remedial projects for existing noncompatible
development and preventive projects for potential new noncompatible
development. The FAA will apply the same eligibility criteria to those
few types of noise projects, such as soundproofing of schools and
health care facilities, that are eligible for AIP funds under the noise
set-aside without an approved part 150 program. The change in AIP
eligibility will cause a like change in the eligibility of noise
projects for PFC funding.
The impact of revising the FAA's policy on part 150 determinations
and funding eligibility will be to preclude the use of the part 150
program and AIP or PFC funds to remediate 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 and PFC funding may be
available to assist airport operators in dealing with new noncompatible
development that is not being successfully controlled by local
jurisdictions, so long as the airport's methods prevent the
noncompatible development rather than mitigating 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 is
balancing a desire to implement a beneficial program change as rapidly
as possible with practical transition considerations 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 typing 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 1997 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.
[[Page 28820]]
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. An unintended and counterproductive
side effect could be the postponement by some airports of updated noise
exposure maps and noise compatibility programs in order to maintain
Federal funding eligibility under the previous policy.
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. A specific date will also eliminate any perceived
advantages in postponing new or updated part 150 programs. 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 previously
approved part 150 programs, recent part 150 submissions, or those
programs or submissions under development.
While the date of issuance of a final policy was considered to have
the advantage of timeliness, this was outweighed by the disadvantage of
too abrupt a transition from one policy to another without giving
airport operators and local communities a chance to react. 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 adequate opportunity to amend
previously completed noise compatibility programs or programs currently
underway, in consultation with local jurisdictions, to emphasize
preventive rather than remedial measures for new development.
Accordingly, the FAA sought comment on how long to extend a transition
period beyond the 180 days noted--to a possible maximum of 1 year from
the date of issuance of the final policy. 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, the effective date of January 1, 1998, is considered to
more than fulfill the 1 year implementation timeframe that was proposed
in the original notice and should provide adequate time to revise or
update noise compatibility programs that are in preparation.
The potential future expenditure of AIP funds for projects to
remediate new noncompatible development during a transition period is
believed to be minimal, based upon the FAA's review of the sample of
airports included in the FAA's recent study and in an independent
study, as well as general program knowledge. Not all airports have a
problem of continuing uncontrolled noncompatible development within the
area covered by noise contours. Among those that do have a problem, few
of them offer to provide remedial financial assistance for the new
development, as shown in their part 150 submissions. Even in those
cases where financial assistance for remediation has been recommended
for new noncompatible development, it has generally been limited in
scope and identified as a lower priority than funding remediation for
existing noncompatible development. Further, funding for such new
noncompatible development tends to be anticipated only in the latter
years of an airport's part 150 program when it may not be needed
because of shrinking noise contours resulting from the national
transition to the use of Stage 3 aircraft.
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. If an
impact is found, each operator can determine whether to immediately
amend its program during the allowed transition period or to wait until
the program is otherwise updated. The FAA will not initiate withdrawals
of any previous part 150 program approvals based on this policy.
However, any remedial noise mitigation measures for noncompatible
development that is allowed to occur within the area of an airport's
noise exposure maps after the effective date of this final policy will
have to be funded locally, since the measures will not be eligible for
AIP assistance from the noise set-aside or for PFC funding. New part
150 approvals after the effective date of this final policy will
conform to this policy.
Discussion of Comments
On March 20, 1995, the FAA issued a notice of proposed policy (60
FR 14701), and solicited comments from the public on the proposed
policy change. The issues raised in the comments are summarized and
addressed below:
Twenty-one individuals and organizations submitted comments on the
proposal. Comments were submitted by airport operators, airport
associations, aviation associations, pilot associations, public
agencies, community civic organizations, and businesses and business
organizations. Of the 21 commenters, all but 8 commented favorably upon
the policy as proposed by the FAA. Those eight commenters expressed
preferences for three of the five alternatives upon which the FAA had
solicited comments: retain the existing policy (alternative Number 1),
retain the existing policy for airport operators that have taken
earnest but unsuccessful steps to prevent new noncompatible development
in jurisdictions outside their control (alternative Number 2), retain
the existing policy for noncompatible land uses within the DNL 65 dB
contour with an all Stage 3 fleet (alternative Number 3), retain
existing policy for part 150 approval, but eliminate Federal funding
eligibility for remedial measures for new noncompatible development
(alternative Number 4), and implement the proposed policy on a airport-
by-basis (alternative Number 5). Three of those commenters expressed a
preference for alternative Number 1; three preferred alternative Number
2; and two preferred alternative Number 4. A discussion of the issues
raised by the commenters follows. Comments were also requested on how
long a transition period beyond the 180 days to allow--to a possible
maximum 1 year total--from the date of issuance of the policy.
Discussion of the comments on the effective date of the policy and the
FAA's response follows the discussion of issues.
[[Page 28821]]
Issues
A review of the comments on the substance of the proposed policy
revealed six general issues or concerns. Each of those issues and the
FAA's response is presented below.
Issue: Airport expansion causing the noncompatibility: Four
commenters expressed concern that airport expansion which increased the
noise exposure of previously compatible development might become
ineligible for Federal noise mitigation funds.
FAA Response: The new policy will continue the eligibility of such
properties. From the discussion of the proposed policy (60 FR 14701,
March 20, 1995), ``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. (An) 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 would be responsible for
making the case for exceptions to the policy guidelines in their part
150 submittals.''
It should be noted that noise mitigation would continue to be
eligible for AIP and PFC funds if approved as mitigation measures in an
FAA environmental document for airport development project(s). This
final policy does not affect that eligibility. Foresighted airport
planning, the programmed phase out of noisy Stage 2 transport type jet
airplanes and the subsequent shrinkage of noise contours for many
airports, plus aggressive noise compatibility planning and
implementation through effective local land use controls and building
codes, can and should largely preclude situations in which airport
expansion causes new noncompatible uses.
Issue: Compatible development on bypassed lots within existing
noise impacted neighborhoods: Several commenters expressed concern
about development of bypassed lots or additions to existing structures
within noise impacted neighborhoods.
FAA Response: Bypassed lots, e.g., vacant or in-fill lots and other
small parcels of vacant land within otherwise developed neighborhoods,
are usually unsuitable for development with uses significantly
different from that of their neighbors. It would be impractical, for
example, to require industrial or commercial development on a vacant
lot within an existing residential neighborhood. Any policy or land use
control that effectively prevents any economically viable development
of such properties raises the specter of public use of private property
without due compensation. The new policy will continue the eligibility
of such properties, although on a case-by-case basis. From the
discussion of the proposed policy (60 FR 14701, March 20, 1995), ``For
example, minor development on vacant lots within an existing
residential neighborhood, which is clearly 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.'' Also from that discussion, ``Airport operators would be
responsible for making the case for exceptions to the policy guidelines
in their part 150 submittals.'' In interpreting this, any such new
structures or additions to existing structures should have the
appropriate sound attenuation measures incorporated as an integral part
of their initial construction rather than planning to have them added
through a subsequent remedial soundproofing program. Those remedial
programs are designed to bring relief to preexisting structures.
Issue: School additions serving population growth in existing noise
impacted neighborhoods: One commenter asked for continued eligibility
for school additions necessary to serve rapidly growing school age
population within existing noise impacted neighborhoods.
FAA Response: Generally, when a school addition or other community
facility is necessary to serve the local neighborhood and relocation
outside the noise impact area is impractical, it should remain eligible
for Federal funding assistance for the additional cost of including the
appropriate sound attenuation in its initial construction. Eligibility
for remedial noise mitigation measures for additions to existing noise
impacted schools or neighborhood service facilities required by
demographic changes within their service areas will be considered by
the FAA on a case-by-case basis.
Issue: Proposed Policy will be more costly and weakens the position
of the airport operator: One or more commenters felt that the proposed
policy is less preferable than the present policy and may be more
costly since it encourages airport operators to acquire land or rights
in land in lieu of negotiations with neighboring communities. Concern
was expressed that it also removes an important negotiating tool--that
of Federal matching grants to mitigate the noise in neighboring
jurisdictions.
FAA Response: Purchase of noise impacted lands by the airport
without their use for an airport purpose, or their lease or resale for
an airport compatible use, is costly both in terms of the acquisition
costs and of the extended costs of maintenance and loss of tax base.
The proposed policy is, in part, designed to give airport operators who
do not exercise land use control jurisdiction an incentive to press
responsible officials into action and to engage in more vigorous
negotiations with land use control jurisdictions that have land
impacted by the airport's noise, but do not have proprietary interest
in the airport. The policy does so by assuring both airport sponsors
and local land use control jurisdictions that no AIP of PFC funds will
be available to mitigate the airport's noise impacts upon the
noncompatible uses that they permit to be developed in the face of and
in full knowledge of the airport's noise.
Issue: Conflicts with state noise compatibility programs: One
commenter expressed concern that the proposed change was not compatible
with its existing state noise compatibility laws.
FAA Response: The state cited, California, has been a leader in the
airport noise compatibility effort and has noise standards in place
that require airport operators to bring noncompatible land uses into
compliance with those standards. However, the airport operator has no
direct control to prevent the introduction of new noncompatible uses.
The new policy is not intended to work counter to such positive noise
compatibility efforts, it is intended to reinforce such efforts. Where
noncompatible uses existed prior to the effective date of this policy,
they are still eligible for AIP or PFC assistance for remedial noise
compatibility measures. The new policy is designed to provide the
airport operator with additional leverage to discourage the
introduction of new noncompatible uses.
Issue: Sharing of responsibilities: One commenter suggested that
the language of the original notice tended to suggest that local
communities that are not the airport's sponsors might not be
predisposed to act in a fully responsible manner to carry through with
noise compatibility programs.
FAA Response: This was certainly not the intent of the notice, nor
is that the FAA's perspective. The FAA recognizes that by and large
most communities act, within their means, in a quite responsible manner
vis-a-vis airport noise compatibility. However, we also recognize that
such communities may be under locally significant economic
[[Page 28822]]
and political pressures to allow noncompatible development. It is the
FAA's view that the active cooperation and coherent efforts of all
parties involved are required to successfully plan and implement an
airport noise compatibility program that meets the community's
economic, political, and aviation needs. That is a central goal of the
part 150 program and the rationale for its extensive consultation and
community involvement elements.
Effective date of the policy
Several commenters made recommendations on dates for the provisions
of the policy to become effective after its publication in the Federal
Register. Their recommended dates ranged from ``as soon as possible,''
to 90 days, to ``no earlier than 18 months.'' In selecting a date to
implement this final policy, the FAA balanced the desire to implement a
beneficial program change as rapidly as possible with the practical
transition considerations of ongoing part 150 programs. In the notice
for public comment, the FAA anticipated a transition period of at least
180 days from the date of issuance of a final policy to avoid
disrupting airport operators' noise compatibility programs that have
already been submitted to the FAA and are undergoing statutory review.
The notice also suggested an additional margin of time to a maximum of
1 year to allow airport operators adequate opportunity to amend
previously completed noise compatibility programs or programs currently
under development, in consultation with local jurisdictions, to
emphasize preventive rather than remedial measures for new development.
Accordingly, and after careful consideration of the public comments on
this issue and the extended time since FAA issued notice of this
proposed policy, the FAA selects a transition period to end December
31, 1997. This should afford airport operators, local land use control
authorities, developers, and others with ample opportunity to revise
their plans, programs, land use controls, and building codes.
Issue: Use of statements from the proposed policy: We note that
statements in the proposed policy (60 FR 14701) have been misread.
FAA Response: These statements recognized the role that state and
local governments play in airport noise compatibility planning. They
did not reach the issue of whether zoning decisions that regulate
airports development and operations within an airport's existing
boundaries may be federally preempted. The statement ``Neither the FAA
nor any agency of the Federal Government has zoning authority'' has
been deleted because it led to some confusion.
Notice of Proposed 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 are within the noise contours as depicted
on an airport's part 150 noise exposure map, 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 proposed final FAA policy concerning future
approval under 14 CFR part 150 and eligibility of AIP and PFC funding
of certain noise mitigation measures.
Proposed Final Policy Statement
Beginning January 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, edibility
for AIP noise set-aside funding and PFC funding will be determined
using criteria that are consistent with this policy. Specifically,
remedial noise mitigation measures for new noncompatible development
occurring after the effective date of this final policy will not be
approved by the FAA under part 150 and will not be eligible for AIP
noise set-aside funding or approved for the use of PFC funding,
regardless of previous FAA approvals of such measures under part 150,
the status of implementation of an individual airport's part 150
program, or the status of any pending application to use AIP funds or
PFC revenue for noise mitigation purposes. This policy also applies to
projects that are eligible under the noise set-aside without a part 150
program. Eligibility for 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 noise mitigation that is included in FAA-
approved environmental documents for airport development projects.
Issued in Washington, DC, on May 20, 1997.
Paul R. Dykeman,
Deputy Director of Environment and Energy.
[FR Doc. 97-13953 Filed 5-27-97; 8:45 am]
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