Mr. Mark J. Ryan
Metropolitan Airports Commission
2901 Metro Drive, Suite 525
Bloomington, MN 55425
Dear Mr. Ryan:
This letter is being submitted in response to your invitation for comments, under Code of Federal Regulations (CFR) Federal Aviation Regulations (FAR) Part 161, on proposed restrictions at the Flying Cloud Airport (FCM). These proposals include prohibiting operations by jet aircraft not meeting Stage III certification requirement under the FAR Part 36 between the nighttime hours of 2200 and 0600 local time.
The Aircraft Owners and Pilots Association (AOPA) represents the general aviation interests of more than 360,000 individual pilots and aircraft owners in the United States, more than 7,200 of whom reside in the state of Minnesota. AOPA represents that section of the aviation industry defined as general aviation and provides advocacy for the preservation of the general aviation industry including access to public airports.
AOPA strongly opposes the proposed restrictions because we believe they fail to meet the requirements of FAR Part 161 and are unjustly discriminatory aircraft access restrictions to a federally funded airport.
The prepared Part 161 Study for Flying Cloud Airport has not been conducted in accordance with the requirements set forth in FAR Part 161.205(a). FAR Part 161.205(a) [as codified in 49 U.S.C. § 47524(b)] lists the following requirements: (1) An analysis of the anticipated or actual costs and benefits of the proposed noise or access restriction, (2) a description of alternative restrictions, and (3) a description of the alternative measures considered that do not involve aircraft restrictions, and a comparison of the costs and benefits of such alternative measures to costs and benefits of the proposed noise or access restriction.
All three of these important requirements have not been complied with in the document circulated for public comment. Compliance with 161.205 (a) (1), which is the requirement to provide the cost versus benefit of the restrictions, is not adequate. The information presented does not satisfy both the statutory and regulatory requirements as it is not presented using currently accepted economic methodology and does not provide adequate detail on the cost and benefits of the restriction.
The information presented is simplistic and incomplete at best. Furthermore, the most important factor is that the methodology is fundamentally flawed. For example, the study lists in Section 3.2, page 9, that the present cost of a Stage II restriction is $0.00 (zero) on the grounds that there are no "current based or transient" Stage II aircraft! However, that present 0 cost is then compared to future benefits such as the future cost of the acquisition of "undeveloped land" and the future "loss" of surrounding property values.
There is a fundamental disconnect between the sponsors stated needs for the restriction and the actual noise problem. In simple words and as stated in section 3.1, the noise problem is one that is being forecasted and does now not exist. It is not a quantifiable noise problem.
It is illogical to propose noise access restrictions on certain aircraft and activity levels that do not exist, may not exist or may be insignificant. In addition, the information stated in section 3.1 is insufficient to demonstrate compliance with Part 161.205. Merely stating that "All other available remedies have been explored—including preferential runway use and departure profiles, planning and zoning, and land acquisition" does not constitute compliance with the regulation and more importantly, the statute. The purpose of a Part 161 study is to compare actual costs and benefits of both restrictive and not restrictive alternatives and not to merely present unsubstantiated findings.
Access restrictions are the last step in mitigating noise. This is illustrated by FAA’s 1996 "Policy on Funding of Combined Part 150 and Part 161 Studies and Analyses." The policy stated that:
"The FAA has continuously, consistently, and actively encouraged a balanced approach to address noise problems and discouraged unreasonable and unwarranted airport use restrictions. That policy remains unchanged. A restriction should be considered only as a last resort when all other mitigation measures are inadequate to satisfactorily address the problem and a restriction is the only remaining option that could provide noise relief."
Ordinance 51, adopted in 1978, provides the base for the restrictions being proposed. It prohibits jet aircraft over 20,000 lb. from using the airport. While as stated on page 1 of the Part 161, Ordinance 51 predates the Airport Noise and Capacity Act of 1990 (ANCA) by 12 years, we believe nevertheless that it is in violation of the Federal Aviation Administration (FAA) Airport Improvement Program (AIP) grant assurances.
The Metropolitan Airports Commission (MAC) is the sponsor of the Flying Cloud Airport and has received over $3.2 million in AIP grants between 1994 and 1999. Furthermore, MAC is sponsor of an additional six airports with a combined level of AIP grants totaling over $220 million as well as surplus property agreements at several of those airports. As a condition to receiving AIP grants, the sponsor has executed sponsor assurance agreements pursuant to 49 U.S.C § 47107 (and its predecessor statutes) that require the sponsor to keep the airport open to the public on fair and reasonable terms and without unjust discrimination. Specifically, AOPA argues that MAC violated Assurance 22 "Economic Nondiscrimination," of the prescribed sponsor assurances implementing the provisions of 49 U.S.C § 47107 (a), which are in part:
Existing restrictions on access to the Flying Cloud Airport constitute a violation of the grant assurances executed between the airport sponsor and the FAA because it discriminates for noise purposes against certain aircraft and aircraft operators without proper noise-related justification and therefore, it is unreasonable and unjustly discriminatory.
We believe the weight-based restriction is a mandatory action thereby plainly and substantially discriminating against operators and users at the airport by preventing public access to a federally obligated airport.
Furthermore, aside from keeping the airport open on reasonable terms and without unjust discrimination, the airport sponsor’s restrictions "must not adversely affect any other powers or responsibilities of the FAA Administrator prescribed by the law or any other program established in accordance with the law."
The weight-based restriction under Ordinance 51 clearly constitutes a noise-related access restriction to a federally funded public-use airport. The Airport Facility Directory (AFD) and other publications specifically state that the airport is closed to jet aircraft not meeting FAR 36, jet training and jet aircraft over 20,000 lbs. Furthermore, adherence to Ordinance 51 is an integral component of the "Noise Mitigation Plan for Flying Cloud Airport (FCM)."
Viewed as a measure to reduce noise, the measure must be related to actual aircraft noise and not arbitrarily related to aircraft weight. For example, a Cessna 500 Jet, with a MTOW of 11,800 lbs., generates a noise level in EPNdB at take-off of 78.0 while a Learjet 60, with a MTOW of 23,100 lbs., generates 70.8 EPNdB. When using Estimated Maximum A-Weighted Sound Levels, the LearJet 60 generates 60.9 dBA at take-off while the Cessna 500 generates 67.0 dBA. In this scenario, the quieter Learjet 60 would not be allowed to use the airport while the lighter but noisier Cessna 500 would be allowed to use the airport. Such significant differences between aircraft, ranging from 7.2 EPNdB and 6.1 dBA are very significant indeed.
There is no reasonable rationale in limiting aircraft weight if the purpose is to limit aircraft noise impacts. While aircraft weight and noise are correlated components in determining FAR Part 36 compliance, restricting aircraft based on weight does not provide sufficient justification as an effective means to reduce aircraft noise impacts. Therefore, it becomes very difficult if not impossible to ascertain that MAC has in place a system that alleviates noise for the surrounding communities. This constitutes in our views a clear case of unjust discrimination, in violation of federal statutes, regulations and policies.
Therefore, AOPA requests that MAC modify Ordinance 51 in order to comply with the applicable federal obligations before proposing access restrictions. Additionally, we ask that a new and complete Part 161 study be prepared and submitted for public comment. Should you require any additional information on this or any other related issue, please feel free to contact me at (301) 695-2206.
Director of Airports
August 16, 2000