the aircraft noise rule making power of the FAA. We feel that such veto power may not properly be vested in the EPA Administrator for the following reasons:

(a) The FAA has aircraft technical expertise which enables the Agency to be responsive to the total field of aviation of which noise and the environment constitute only one aspect. The FAA is in the best position to weigh the problem of setting noise standards in balance with the technological feasibility of such standards.

(b) The responsibilities of FAA are already subject to the approval of DOT. The environmental goals of DOT are already subject to the authority of the Council on Environmental Quality. We feel that the placing of aircraft noise regulatory power in the EPA would serve to further dilute the direct responsibility of the FAA without achieving any substantial service or benefit to the environment.

(c) The DOT/FAA is presently responsible for coordinating the United States' position of the International Civil Aviation Organization (ICAO) Committee on Noise (CAN). We feel that the responsibility of DOT/FAA in this area cannot properly be assigned to EPA.

(d) We feel that the EPA has, as a proper role, the function of consulting with DOT/FAA and all other Federal Agencies responsible for regulating noise. Such consultation can, however, be done informally and without the sanction or authority of statute.

For these reasons we recommend that Sec. 6(c)(1) (2) and Sec. 6(c)(3) (b) be deleted from S. 1016. In place of these sections we recommend that Sec. 6 (c) (3) (c) be redesignated as Sec. 6(c) and that this new Sec. 6(c) be reworded to give the Administrator of EPA power to consult informally with the Administrator of FAA both with respect to current and future noise criteria and standards. The new Sec. 6(c) should be rewritten as follows:

6(c). Section 611 of the Federal Aviation Act of 1958 (49 U.S.C. 1431) is amended as follows:

1. In subsection (a) after “with the Secretary of Transportation”, insert "If at any time the Administrator of the Environmental Protection Agency has reason to believe that an existing standard, rule or regulation or any future FAA standard, rule or regulation does not protect the public from aircraft noise or sonic boom to the maximum extent that is consistent with the considerations listed in section (b) of Section 611, the Administrator of the Environmental Protection Agency may request the Administrator of the Federal Aviation Administration to review and report to him on the advisability of revising such standard, rule or regulation. Any such request shall be accompanied by a detailed statement of the information on which it is based."

Sec. 6(c) (4) should be deleted for reason of conformity.

Rather than placing a veto at the end of the regulatory process, this amendment would more appropriately provide for consultation between the FAA and EPA from the very outset. But this amendment would leave final promulgation and administration of aircraft noise regulations to FAA, the Agency charged with flight safety and equipped with aviation technical expertise.

(6). Establish labeling requirements for designated products or classes of products.

Since "products or classes of products" is defined in Sec. 3(c) (i) to exclude "aircraft, aircraft engines, propellers or appliances that are covered by Title IV of the Federal Aviation Act of 1958 (49 U.S.C. 1421-32)," AOCI takes no position with respect to this portion of S. 1016.

7. Promote the coordination of Federal programs relating to the development and publication of noise research and noise control.

Sec. 4 of S. 1016 authorizes the Administrator of EPA to promote coordination of all Federal departments and agencies relating to noise research and noise control. The Administrator is further authorized to publish a report upon the status and progress of Federal activities relating to noise research and noise control. AOCI fully supports this section of the bill, as providing a valuable service as authority for regulating Federal noise programs has been widely scattered throughout the Federal Government. We feel the coordinating efforts of EPA would be valuable in assessing the contributions of the Federal government's overall efforts to control noise.

In summary, AOCI endorses the concept that aircraft noise constitutes a grave national problem which threatens to severely restrict the growth of aviation. We believe that noise requires uniform regulation in many areas. We agree

with the fundamental position of S. 1016 that the consideration of public interest in an environmentally sound aviation system requires the regulation of aircraft noise by the Federal Aviation Administration in consultation and close liaison with the Environmental Protection Agency. We do not, however, feel that EPA should hold a veto power over an area of technology in which EPA does not have adequate technical expertise. Although the FAA has not always moved in the aircraft noise area as rapidly as airport operators would recommend, AOCI would prefer to allow the aircraft noise problem and its regulation to remain under the primary control of the FAA-at least until such future time as they display an inability to regulate in the public interest.

Senator CANNON. The next witness is Mr. John R. Wiley, director of aviation, the Port of New York Authority.

STATEMENT OF JOHN R. WILEY, DIRECTOR OF AVIATION, THE PORT OF NEW YORK AUTHORITY; ACCOMPANIED BY MISS ISOBEL MUIRHEAD, OFFICE OF THE GENERAL COUNSEL

Mr. WILEY. Thank you, Mr. Chairman, and good afternoon. I am accompanied by Miss Isobel Muirhead, who is in the office of the general counsel of the Port of New York Authority.

My name, sir, is John R. Wiley. I am the director of aviation for the Port of New York Authority, which operates Kennedy International, LaGuardia, and Newark Airports, the largest terminal facilities in the United States.

I have submitted a statement of the port authority's position on S. 1566 for your consideration and for the record of these proceedings. I will not take the time of the committee to read the statement. With your permission sir, I would like to make a brief précise on the contents of that statement.

The statement expresses our support for this legislation which we believe would accomplish the urgent purpose Congress intended in Public Law 90-411. This directive to the FAA to provide the public with relief from unnecessary aircraft noise has not been carried out. The FAA's consideration of a retrofit program has been marked by delay. It has already fallen some 15 to 18 months behind the announced schedule. We are convinced that new impetus is needed.

This legislation, we believe, provides this impetus. It presents a reasonable and an achievable timetable for implementing a retrofit program and answers the industry's valid concerns about its funding.

The effectiveness of retrofit has been demonstrated by NASA testing. The noise suppression material which would be used is virtually the same as that used on new aircraft such as the Boeing 747, the DC-10 and the L-1011, and that which is being installed and currently being produced on new models of the advanced 727-200.

For this reason it is difficult to see, with the new advanced stretched models of the 727-200 on the production line coming out with retrofitted nacelles, why there is the necessity for so much further testing and experimental work.

For more than 20 years now aircraft noise has adversely affected the quality of life in communities near hub airports across the country. We firmly believe that these communities should not be denied any longer the relief that today's technology can deliver.

We are convinced that retrofit or, as we heard this morning from the Chairman of the CAB, refitting with a new, quiet engine, is the

most effective and immediate means for alleviating a problem affecting millions.

We support S. 1566 and its companion measure in the House, H.R. 8642, which provide for the prompt implementation of this necessary

program.

With regard to S. 1016, the Noise Control Act of 1971, while the port authority is not taking a position on this bill, I cannot avoid commenting on a proposed amendment to this bill and its companion bill, H.R. 5275, recommended by the Air Transport Association.

In this respect, what I am about to say here after listening to General von Kann's testimony, will serve as an amendment to the paper we had submitted before, because that paper had been based on a different premise. After hearing him explain that it was not ATA's intent to prevent the local airport authority from exercising its proper function in establishing antinoise regulations, I would like to make these comments.

ATA urges that this bill, that is S. 1016, be amended to prevent the States and their subdivisions from prescribing aircraft noise standards. However, this amendment is subject to the interpretation by others that there be complete Federal preemption of the entire field of aircraft noise, even to the point of nullifying the historical right of local airport operators, such as Port of New York Authority, to provide noise limitations on the aircraft which use their facilities. Such an amendment, if so interpreted, would be directly contrary to Congress' intent in adopting the Noise Certification Act of 1968, Public Law 90-411, 49 U.S.C., Sec. 1431.

The Senate Commerce Committee, which recommended this legislation, stated: "... the proposed legislation will not affect the rights of a State or local public agency, as the proprietor of an airport, from issuing regulations or establishing requirements as to the permissible level of noise which can be created by aircraft using the airport. Airport owners acting as proprietors can presently deny the use of their airports to aircraft on the basis of noise considerations so long as such exclusion is nondiscriminatory."

Again I quote: ". . . the Federal Government is in no position to require an airport to accept service by noisier aircraft and, for that purpose to obtain additional noise easements. The issue is the service desired by the airport owner and the steps it is willing to take to obtain the service. In dealing with this issue the Federal Government should not substitute its judgment for that of the States or elements of local government who, for the most part, own and operate our Nation's airports. The proposed legislation is not designed to do this and will not prevent airport proprietors from excluding any aircraft on the basis of noise considerations."

The ATA recommendation, if so interpreted, is thus in direct conflict with Congress's intent in passing the Noise Certification Act. The FAA has itself recognized Congress' intent in this respect when, in issuing noise regulations with regard to the certification of new aircraft is stated:

"Responsibility for determining the permissible noise levels for aircraft using airports remains with the proprietor of that airport." Again I quote: "This limitation on the scope of part 36 is required for consistency with the responsibilities placed upon the airport pro

prietor by the United States Supreme Court in Griggs v. Allegheny County, 369 U.S. 84, (1962).”

The FAA's position in this matter was once again recognized in its Advance Notice of Proposed Rule-Making issued on November 4, 1970, with regard to possible rules concerning the retrofit of existing aircraft for noise purposes.

It is inconceivable to me that Congress can adopt the ATA recommendation with this risk of interpretation present without at the same time placing upon the Federal Government monetary liability for the acquisition of whatever air easements are constitutionally required to accommodate aircraft in the course of their landing and takeoff maneuvers.

To do so would create an impossible situation for airport operators, since in many instances, only by restricting the use of jet aircraft at their airports can such operators avoid monetary liability to property owners aggrieved by aircraft noise.

Unless Congress is willing to go the full way of assuming complete Federal monetary liability and thus reverse the U.S. Supreme Court decision in the Griggs litigation by legislative means, the Congress should not, and most probably cannot, take away the historical right of an airport proprietor to control the noise characteristics of the jet aircraft which use their facilities.

Thank you very much for this opportunity to testify.

Senator CANNON. Thank you.

What is the status of the noise lawsuits that have been filed in New York? Have you had any of them disposed of by the courts?

Miss MUIRHEAD. We do not have any lawsuits asking for monetary relief except one old one that was commenced in 1961 and which has been going on for many years.

We do have a suit brought by the attorney general of the State of New York last year which seeks to mandate the port authority to require the airlines to retrofit-it is also against the airlines to retrofit their aircraft to reduce the noise characteristics. That is still pending. Senator CANNON. Didn't you have a few years ago some suits filed for injunctive relief and damages in the alternative on having noise? Miss MUIRHEAD. That was the old Trippe case. It was a damage action. It was 809 property owners who sued us.

Mr. WILEY. Northeast of the airport.

Senator CANNON. What was the disposition there?

Miss MUIRHEAD. It is dormant. In another action, the PA sued to upset an ordinance by the town of Hempstead, a town bordering JFK, to limit operations at that airport.

Senator CANNON. Certainly we recognize that you airport operators have a problem with all of the complaints that you are getting and have been getting.

I wonder, you have had a lot of experience now with the 747's, have your complaints reduced in light of the 747's coming in?

Mr. WILEY As one of the gentlemen said this morning, Mr. Chairman, you are a good straight man. Thank you very much for asking that question.

Yes; the 747 has helped a great deal, and we think the DC-10 and the 1011 will help even more.

The chairman may recall that the DC-10, having been on demon

stration at the Paris Air Show, came back to Boston and LaGuardia and Kennedy Airports, and was demonstrated to elected officials, community leaders, and the press, all three being present at one time, which is a rather unusual precedent.

I may say the DC-10 established itself immediately as a good neighbor, and I am sure the L-1011 would have done the same thing had it come back for the same demonstration since both aircraft are comparable.

The reaction of the elected officials who are very much concerned with the noise and the environmental issues in the New York area was very positive. They hailed the DC-10 as a great step forward, the community leaders likewise, and I think the reaction of the press was enthusiastic. One reporter described the airplane as being like a tiger with laryngitis.

It was quite a vindication of the work that General Electric, Rolls Rovce, Douglas, and Lockheed have put into developing these new technology airplanes designed to meet the requirement of FAR 36. I think that the public will accept them as great steps forward. They may help to reverse the very bad situation with respect to development of additional airports or expanding present airports as witnessed by the extensive article on this subject in the New York Times last Sunday which indicated on a worldwide basis what we have all known for sometime; namely, that airport development is slowly but surely coming to a grinding halt unless we can deal with these environmental issues.

Senator CANNON. You heard the presentations here this morning. Do you dispute those findings, these two studies, where they point out the time that would be required to achieve retrofit?

Mr. WILEY. I must say that I give great credence to the independent studies that were done by NASA and the Rohr Co., when they were developing the raw facts and data on which could be based a decision for proceeding or not proceeding with retrofit.

I really believe, as I said in the paper that I just referred to, I really believe that the technology exists today, without substantial further research, to equip certain of the aircraft in the fleet with quiter nacelles.

The 727 stretch 200 now in production is being advertised by Boeing and the engine manufacturing company as being capable of meeting FAR 36 requirements, and really that is all we are asking because that would in itself be a big step forward.

Senator CANNON. S. 1566, would require much more in the way of meeting standards than the regulation now requires.

Mr. WILEY. Generally I agree with that, and I understand that, and I think that what is unreasonable and impossible to achieve, obviously we cannot insist on. But I think there must be token steps in that direction, and if the first step in that direction is to achieve 108 EPNdB or the figure appropriately adjusted for the gross weight of the aircraft in accordance with FAR 36, we must go in that direction. It is not the airport operator that is going to say what is going to be accepted at his airport, it is the people that live in the vicinity of those airports speaking through their elected representatives who are going