[Federal Register Volume 75, Number 174 (Thursday, September 9, 2010)]
[Notices]
[Pages 54946-54957]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-22095]


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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

[Docket No. FAA-2010-0831]


Airport Improvement Program (AIP): Policy Regarding Access to 
Airports From Residential Property

AGENCY: Federal Aviation Administration (FAA).

ACTION: Notice of proposed policy; notice of proposed amendment to 
sponsor grant assurance 5; and request for public comment.

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SUMMARY: This action proposes to amend and clarify FAA policy 
concerning through-the-fence access to a Federally obligated airport 
from an adjacent or nearby property, when that property is used as a 
residence and permits continuation of existing access subject to 
certain standards. This action also proposes to modify sponsor grant 
assurance 5, Preserving Rights and Powers, to prohibit new residential 
through-the-fence access to a Federally obligated airport. Current FAA 
policy discourages through-the-fence access to a Federally obligated 
airport from an off-airport residence. Owners of properties used both 
as a residence and for the storage of personal aircraft, sometimes 
called ``hangar homes,'' have urged the agency to permit an exception 
to through-the-fence policy for residents who own aircraft. The FAA 
proposes to modify Airport Improvement Program (AIP) grant assurance 5, 
Preserving Rights and Powers, to clarify that airport sponsors are 
prohibited from permitting new through-the-fence access from 
residential properties. Pursuant to applicable law, the Secretary of 
Transportation is required to provide notice in the Federal Register 
and an opportunity for the public to comment upon proposals to modify 
or add new AIP assurances. The agency recognizes that there are 
airports at which residential through-the-fence access already exists. 
The FAA will not consider sponsors of these airports to be in violation 
of current grant assurances if the airport sponsor meets certain 
standards for control of airport operations and development; self-
sustaining and nondiscriminatory airport rates; and compatible land 
use.
    At present, there are 75 airports in the continental U.S. where 
residential through-the-fence access is known to exist. This represents 
less than 3 percent of the 3,300 airports listed in the FAA's National 
Plan of Integrated Airport Systems (NPIAS) and eligible for Federal 
investment. While the vast majority of airport sponsors do not have

[[Page 54947]]

residential through-the-fence access, due to the increasing number of 
requests to establish such access, particularly at general aviation 
airports, the agency has revisited the policy in order to establish 
clear guidance for the future.

DATES: Send your comments on or before October 25, 2010. The FAA will 
consider comments received on the Proposed Policy and the proposed 
grant assurance modification. Any necessary or appropriate revision to 
the Policy or the grant assurance modification resulting from the 
comments received will be adopted as of the date of a subsequent 
publication in the Federal Register.

ADDRESSES: You may send comments [identified by Docket Number FAA-2010-
0831] using any of the following methods:
     Government-wide rulemaking Web site: Go to http://www.regulations.gov and follow the instructions for sending your 
comments electronically.
     Mail: Docket Operations, U.S. Department of 
Transportation, West Building, Ground Floor, Room W12-140, Routing 
Symbol M-30, 1200 New Jersey Avenue, SE., Washington, DC 20590.
     Fax: 1-202-493-2251.
     Hand Delivery: To Docket Operations, Room W12-140 on the 
ground floor of the West Building, 1200 New Jersey Avenue, SE., 
Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, 
except Federal holidays.
    For more information on the notice and comment process, see the 
SUPPLEMENTARY INFORMATION section of this document.
    Privacy: We will post all comments we receive, without change, to 
http://www.regulations.gov, including any personal information you 
provide. For more information, see the Privacy Act discussion in the 
SUPPLEMENTARY INFORMATION section of this document.
    Docket: To read background documents or comments received, go to 
http://www.regulations.gov at any time or to Room W12-140 on the ground 
floor of the West Building, 1200 New Jersey Avenue, SE., Washington, 
DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal 
holidays.

FOR FURTHER INFORMATION CONTACT: Randall S. Fiertz, Director, Office of 
Airport Compliance and Field Operations, Federal Aviation 
Administration, 800 Independence Avenue, SW., Washington, DC 20591, 
telephone (202) 267-3085; facsimile: (202) 267-5257; e-mail: 
[email protected].

SUPPLEMENTARY INFORMATION:

Availability of Documents

    You can get an electronic copy of this notice and all other 
documents in this docket using the Internet by:
    (1) Searching the Federal eRulemaking portal (http://www.regulations.gov/search);
    (2) Visiting the FAA's Regulations and Policies Web page at http://www.faa.gov/regulations_policies; or
    (3) Accessing the Government Printing Office's Web page at http://www.gpoaccess.gov/index.html.
    You can also get a copy by sending a request to the Federal 
Aviation Administration, Office of Airport Compliance and Field 
Operations, 800 Independence Avenue, SW., Washington, DC 20591, or by 
calling (202) 267-3085. Make sure to identify the docket number, notice 
number, or amendment number of this proceeding.

Authority for the Policy and Grant Assurance Modification

    This notice is published under the authority described in Subtitle 
VII, Part B, Chapter 471, sections 47107 and 47122 of Title 49 United 
States Code.

Background

    Sponsors of airports that accept planning and development grants 
from the FAA under the Airport Improvement Program (AIP), 49 U.S.C. 
47101 et seq., agree to a list of standard conditions, or grant 
assurances. Similar obligations also attach to the transfer of Federal 
surplus property to airport sponsors and are often contained in surplus 
property deeds. These include responsibilities to retain the rights and 
powers necessary to control and operate the airport; to maintain the 
airport in a safe condition; to take reasonable steps to restrict land 
adjacent to the airport to compatible land uses; to allow access to the 
airport on terms that are reasonable, not unjustly discriminatory to 
any category of user; and to maintain a rate structure for airport fees 
that makes the airport as self-sustaining as possible.
    A complete list of the current grant assurances can be viewed at: 
http://www.faa.gov/airports/aip/grant_assurances/.
    Administration of the AIP, including sponsor compliance with grant 
assurances, is the responsibility of the FAA Associate Administrator 
for Airports. The FAA developed internal agency Order 5190, commonly 
referred to as the Airport Compliance Manual, which is used by agency 
employees in the administration of the AIP. On September 30, 2009, the 
agency issued FAA Order 5190.6B, Airport Compliance Manual; it 
superseded Order 5190.6A, which was in effect from 1989 to 2009. The 
new order was updated to reflect new statutory grant assurances and 
other pertinent statutory changes as well as changes in and 
clarifications of agency policy since 1989.
    Typically, through-the-fence access allows an aircraft owner to 
store an aircraft at an off-airport property, and to use the airport by 
way of a taxiway that crosses the airport boundary and connects the 
owner's property or neighborhood to the airport's runway-taxiway 
system. Residential access to airports from residences was only briefly 
mentioned in Order 5190.6A. It defined through-the-fence access as 
where ``an individual or corporation residing or doing business on an 
adjacent tract of land proposes to gain access to the landing area.* * 
*'' Order 5190.6A otherwise only dealt with commercial through-the-
fence access, and stated that when this type of arrangement 
``circumvents the attainment of the public benefit for which the 
airport was developed, the owner of the airport will be notified that 
the airport may be in violation of his agreement with the Government.'' 
Order 5190.6A did not address airparks with multiple residences or the 
sponsor's authority to permit establishment of new residences with 
through-the-fence access. Order 5190.6A stated a general policy 
recommending airport owners refrain from entering into residential 
through-the-fence agreements but did not articulate a policy that such 
access constituted a per se violation of Federal grant assurance 
obligations.
    In the mid-2000s, several issues specifically relating to 
residential use of property on or near several Federally obligated 
general aviation airports came to the FAA's attention. In one case, the 
firm managing the airport established a residential development around 
the airport. In another case, a developer marketed hangar homes on the 
airport itself, next to a taxiway. In these cases and others, the FAA 
advised that the sponsor was precluded by its grant assurance 
obligations from permitting new residential development with through-
the-fence access. In so advising, the agency cited violations of the 
AIP grant assurances relating to the rights and powers of the airport 
sponsor; economic discrimination; safe operation; and compatible land 
use. The FAA did not consider this to reflect any change in policy 
under Order 5190.6A, but rather an interpretation of that guidance and 
underlying grant assurance obligations as it applied to circumstances 
not anticipated in 1989.

[[Page 54948]]

    The revisions to Order 5190.6B reflected the agency's strong policy 
concerns about new trends in residential through-the-fence access, 
which had been expressed in letters to sponsors and developers. Order 
5190.6B stated that the FAA would not support any through-the-fence 
agreement associated with residential use, under any circumstances, 
since that action would be inconsistent with the Federal obligation to 
ensure compatible land use adjacent to the airport. In response to 
requests from numerous airport sponsors, users, and FAA airport 
district office staff, the FAA issued draft Compliance Guidance Letter 
2009-1--Through-the-Fence and On-Airport Residential Access to 
Federally Obligated Airports, on October 13, 2009. The purpose of the 
Compliance Guidance Letter was to reiterate the FAA's policy regarding 
through-the-fence agreements and outline criteria for FAA personnel's 
review of these agreements. This guidance also discussed appropriate 
corrective actions that should be developed to prevent future 
residential through-the-fence access and limit its expansion. The FAA 
circulated the draft Compliance Guidance Letter among aviation user 
groups for comments from October 15, 2009 through December 21, 2009.
    There has been no corresponding need for clarification of the 
agency's policy on commercial through-the-fence access. Commercial 
through-the-fence access has always been discouraged, but is a fact of 
life at some airports and a necessity at others where there is not 
sufficient land on airport for providers of aeronautical services. The 
potential adverse effects of commercial through-the-fence access can be 
mitigated by the measures discussed in Order 5190.6B, and the FAA is 
not proposing any changes to policy on commercial access.

FAA Review of the New Policy Statement and Public Outreach

    In response to informal comments received on these actions, the FAA 
Associate Administrator for Airports directed the Office of Airport 
Compliance and Field Operations to review the policy for residential 
through-the-fence access as stated in Order 5190.6B. The Office of 
Airport Compliance and Field Operations took several steps to obtain 
public views on through-the-fence access as part of its policy review. 
Between July 2009 and March 2010, the Office of Airport Compliance and 
Field Operations:
     Received comments from stakeholders with regard to 
residential through-the-fence access at an aviation membership 
association's convention.
     Accepted comments from interested aviation associations 
and their members on a draft compliance guidance letter on through-the-
fence access.
     Met with aviation membership associations which commented 
on the issue.
     Met with airport representatives from Wittman Regional 
Airport in Oshkosh, Wisconsin, and observed a meeting with 
representatives from Sandpoint Airport in Idaho and the FAA's Northwest 
Mountain Regional Office staff. Both airports have existing residential 
through-the-fence access arrangements.
     Spoke with State aviation officials of States with 
residential through-the-fence access.
     Conducted site visits and met with airport sponsors, local 
tenants, and residents at several other representative airports with 
existing residential through-the-fence access. Locations visited 
included airports in Erie, Colorado; Independence, Oregon; Driggs, 
Idaho; and Oneida, Tennessee.
    Independent of the specific review of through-the-fence policy, the 
Office of Airport Compliance and Field Operations issued new Order 
5190.6B for public review and comment. Any necessary corrections will 
be included in an update of the Order. A notice requesting public 
comment was published in the Federal Register on October 13, 2009 (74 
FR 52524). Comments were due on March 31, 2010. Comments on the 
provisions of the Order related to residential through-the-fence will 
be addressed in finalizing this Policy. We expect to update the Order 
to reflect this Policy. Other comments will be dealt with separately in 
updating the Order.

Comments Received on Residential Through-the-Fence Access, July 2009-
March 2010

    During its policy review, the Office of Airport Compliance and 
Field Operations received comments by written submission, by e-mail, 
and verbally in meetings. Commenters included persons with residential 
through-the-fence access at a Federally obligated airport; State 
aviation officials; airport management; local government officials; 
developers; the Aircraft Owners and Pilots Association (AOPA); the 
American Association of Airport Executives (AAAE); the Experimental 
Aircraft Association (EAA); and the National Air Transportation 
Association (NATA). Many commenters took the position that residential 
through-the-fence access is actually beneficial for an airport. Some 
other commenters recognized potential and actual problems with such 
access, but stated that existing access should be allowed to continue 
even if new access is not allowed. EAA urged that residential through-
the-fence be allowed, and that new requests for access be approved at 
general aviation airports. AOPA would accept a policy against 
establishing new residential through-the-fence access arrangements, but 
believed that existing locations should be permitted to continue. AAAE 
was concerned about requiring sponsors to depict through-the-fence 
access on the airport layout plan because the sponsor would not be able 
to prevent the property owner from splitting the parcel and 
establishing a second access point not depicted on the airport layout 
plan. NATA would support a ban on new residential through-the-fence 
access and the elimination of existing uses.
    Issues raised by one or more commenters can be summarized as 
follows:
    Comment: Residential through-the-fence access provides a supportive 
community that likes aviation, will not complain about airport noise, 
and protects the airport in local politics.
    Response: Owners of residential lots with through-the-fence access 
frequently commented that the airport benefits from such owners, 
because they support the airport and would not oppose aircraft 
operations like other residents. We agree that this is true up to a 
point. We accept that aircraft owners do not object to the presence of 
the airport, or to operations by others with similar aircraft. However, 
when faced with a change in operations at the airport that may affect 
the desirability of a nearby residence, for example operations by 
helicopters or larger aircraft types, a through-the-fence owner is just 
as likely to oppose the change as support it. It is a guiding principle 
of the National Plan of Integrated Airport Systems (NPIAS) that 
``[a]irports should be flexible and expandable, and able to meet 
increased demand and to accommodate new aircraft types.'' The FAA is 
concerned that owners of residential property next to an airport could 
attempt to limit the airport sponsor's flexibility to expand an airport 
or accommodate new aircraft types.
    Secondly, while through-the-fence communities sometimes attempt to 
limit ownership to aircraft owners, there is no effective way to 
prevent turnover of these properties to non-aircraft owners at some 
point. When that happens, the airport may encounter significant local 
opposition from its immediate neighbors.

[[Page 54949]]

    Comment: Hangar homes should be considered an exception to the FAA 
general policy that residences are an incompatible land use, because 
owners of hangar homes accept airport noise. A hangar home should not 
be considered a residential use; the need to locate it near an airport 
taxiway makes it an aeronautical use.
    Response: It is longstanding congressional and FAA policy that 
airports should be operated in a way that minimizes the impact of 
aircraft noise on communities. One of the key means of implementing 
that policy is to limit land uses around airports to uses compatible 
with airport noise and operations. Residential use is not a preferred, 
compatible use for properties adjacent to public-use airports. As such, 
the FAA has awarded several hundred million dollars in AIP grants in 
the past three decades for acquiring noise buffer land, relocating 
homes, and insulating homes to achieve compatible land use. 
Simultaneously adopting a policy that encourages more homes near 
airports is counter to these efforts. Distinguishing between homes 
without hangars and homes with hangars does not eliminate the domestic 
characteristics that present additional challenges, such as the 
proximity of children and pets, to normal airport operations. In 
addition, not all residents are aircraft owners, examples being family 
members and tenants. Furthermore, it is not possible to guarantee that 
a residence owned by an aircraft owner now will continue to be in the 
future. Even aircraft owners may be motivated more as homeowners than 
as aircraft owners, when faced with a proposed expansion of the airport 
or introduction of new aircraft types that might affect living 
conditions or residential property values. Finally, once in place, a 
residential use is difficult to move or eliminate because homeowners 
expect to retain the use and value of their home indefinitely.
    Comment: Residential through-the-fence communities provide valuable 
revenue to the airport operator.
    Response: It is true that some residential through-the-fence users 
pay the airport for access. In a few cases, the airport operator has 
come to depend on that revenue. In cases where residential through-the-
fence access rights already exist, the FAA believes that the airport 
should charge for that access, not only to support the airport but also 
to fairly distribute the recovery of airport operating and capital 
expenses across both tenants and non-tenant users of the airport. So, 
if an owner of land next to an airport has through-the-fence access to 
an airport, the owner should pay for that access. However, the 
potential for additional revenue to the airport does not justify the 
establishment of homes next to an airport. Also, the effect on revenue 
is not always positive. Storage of aircraft at off-airport lots with 
airport access can undermine the market for hangars and tie-downs on 
airport property.
    Comment: Residential through-the-fence owners provide additional 
security at an airport.
    Response: Residence of persons near the airport does not 
automatically translate into full-time surveillance. It is true that 
residents may notice suspicious activity, because they are familiar 
with the airport and are around more than persons who are just using 
the airport when they are flying or working on an aircraft. On the 
other hand, the existence of routine traffic through-the-fence from 
off-airport locations makes such activity less suspicious because it is 
expected. Also, just the existence of additional access points through 
the airport boundary tends to make the airport less secure, not more. 
The FAA consulted with the Transportation Security Administration (TSA) 
of the Department of Homeland Security to obtain TSA's view of this 
particular comment. While TSA does not directly regulate access at 
general aviation airports, that agency took the position that access 
points to an airport should be limited to the number necessary. TSA 
plans to undertake a separate review of this matter and the FAA will 
incorporate any recommendations resulting from that review.
    Comment: The FAA hasn't identified any actual problem associated 
with the residential use aspect of through-the-fence access. Most 
examples of problems cited have been generic through-the-fence issues, 
and are not specific to residential use. The FAA's concern about 
residential use is not justified by information, noise complaints, 
studies or experience.
    Response: It is true that the FAA has cited problems with 
residential through-the-fence access that are common to any type of 
through-the-fence access, including commercial uses. Problems have 
included the sponsor's inability or failure to be reimbursed for the 
access; interference with airport operation because of the location of 
access points; and impeding optimal airport layout and growth. As with 
commercial uses, these problems can be mitigated, and the Policy 
proposed would require such mitigation for existing residential 
through-the-fence access where possible.
    There are concerns that are particular to residential through-the-
fence access, however. As mentioned previously, owners of hangar homes 
are highly tolerant of current aircraft types and operations at the 
airport, but can be resistant to change. Residential through-the-fence 
communities can have substantial influence on decisions of the airport 
sponsor, and over time limit the sponsor's ability to take actions to 
accommodate new aviation demand. Commenters pointed to a lack of noise 
complaints in FAA files as evidence that current hangar home owners 
have not objected to airport operations. Such comments would of course 
be made to the airport sponsor or local government, not the FAA. But we 
would not expect complaints about current operations anyway. The 
problem is complaints about growth and new aircraft types, and 
resistance to the sponsor's accommodation of those changes. At airports 
where the nearby residents have successfully prevented airport 
expansion or access by different aircraft types, e.g. jets or 
helicopters, then there will be no complaints, but there will have been 
a real and adverse effect on the airport's obligations and role in the 
NPIAS.
    Comment: In developing policy toward residential through-the-fence, 
the FAA should not apply the same rules to all airports; airports are 
different, and the policy should reflect the fact that what is a 
problem at one airport will not be at another.
    Response: The FAA agrees that each airport has its own 
circumstances, and conditions can vary widely among different airports. 
Differences might include, for example, the number of operations and 
variety of aircraft types, the number of owners with through-the-fence 
privileges, the number and location of access points across the airport 
boundary, the nature and duration of the owners' access rights, and the 
ability of State and local government to influence land use around the 
airport. Notwithstanding the different circumstances at each airport, 
however, there are common principles that apply to every sponsor of a 
Federally obligated airport. These include the obligations to maintain 
the rights and powers necessary to control operation and development of 
the airport, to treat similarly situated users in a similar manner, and 
to charge airport fees that are nondiscriminatory and that make the 
airport as self-sustaining as possible. The revised Policy proposed by 
the FAA will apply these general principles to the fact situation at 
each airport with existing through-the-fence access.
    Comment: Even if there are potential problems with residential 
through-the-

[[Page 54950]]

fence access, they can be mitigated just like commercial through-the-
fence uses.
    Response: The FAA agrees that many actual and potential problems 
with residential through-the-fence access can be mitigated with the 
adoption of certain measures. Mitigation might help assure that the 
airport sponsor remains in control of airport access, collects 
reasonable fees to cover costs, and operates and maintains the airport 
in a safe manner. The revised Policy proposed in this notice will 
require sponsors of airports with existing through-the-fence access to 
take such measures if they have not already done so.
    However, there are factors with residential use that are different 
from commercial uses and that cannot be entirely resolved by 
mitigation. Residential owners may resist change at the airport in 
order to protect the quality of life in residing next to the airport. 
Also, once in place, a residential use is difficult to move or 
eliminate because homeowners expect to retain the use and value of 
their home indefinitely. Accordingly, while the FAA agrees that there 
are mitigation measures that should apply to existing through-the-fence 
locations, that mitigation cannot resolve all problems.
    Second, some of the mitigation measures mentioned by commenters are 
of limited effect, or may not be available at all airports. For 
example, a local government can zone a hangar home community as joint 
residential-aviation use, but that zoning would not prevent a non-
aircraft owner from purchasing property there. Moreover, many States 
and jurisdictions do not have sufficient zoning power to adopt even 
this limited measure. Another example offered by commenters is a 
covenant not to complain about aircraft noise. Avigation easements and 
covenants can acknowledge the property is subject to airport noise and 
emissions, and effectively prevent the property owner from filing suit 
against the airport for aviation impact. No easement or covenant can 
prevent an owner from taking a position on local policy, however. Even 
the most restrictive covenant would not prevent a through-the-fence 
owner from working against the expansion of the airport or 
accommodation of new aircraft types. While the FAA supports these 
mitigation measures where available, they cannot completely eliminate 
the potential adverse effects of residential through-the-fence access.
    Comment: If the FAA forces the termination of residential through-
the-fence access by aircraft owners, the properties will be bought by 
non-aircraft owners, thereby bringing about the exact result that the 
FAA seeks to avoid: general residential use immediately adjacent to the 
airport.
    Response: The FAA agrees with the comment. The FAA took this into 
consideration in its approach to both existing and new residential 
through-the-fence access. For existing access, the FAA will not require 
termination of existing arrangements, and will encourage mitigation 
measures that keep through-the-fence properties in the hands of 
aircraft owners to the extent possible. However, the same consideration 
argues against the establishment of any new residential through-the-
fence access. This is because every property with such access can 
potentially be acquired in the future by an owner who has no interest 
in airport access, whether or not airport access is available.
    Comment: The FAA changed its policy on residential through-the-
fence access after years of not objecting to residential through-the-
fence uses, and after hundreds of homeowners had already invested in 
hangar home properties. Even a policy that existing leases may not be 
renewed has a substantial adverse effect on the value of the property.
    Response: The FAA would not characterize its approach to 
residential through-the-fence access in recent years as a policy 
change. Rather, the through-the-fence policy addressed an issue that 
was not fully considered in the agency's general compliance policy 
statement in 1989. However, we would acknowledge that the lack of clear 
guidance on this issue before the mid-2000's resulted in the 
inconsistent application of policy in FAA regional offices. Some older 
hangar home developments even had regional FAA approval. In visiting 
locations with residential through-the-fence access and talking to 
property owners, the FAA understands the effect of terminating airport 
access on the value and utility of properties that were acquired and 
developed to take advantage of airport access. For these reasons, the 
FAA is not proposing to require airport sponsors to terminate existing 
residential through-the-fence access at their airports. The FAA 
recognizes that Order 5190.6B and the draft Compliance Guidance Letter 
were not clear on how the FAA expected sponsors to manage existing 
residential through-the-fence arrangements. This Policy proposes clear 
guidance for these sponsors.
    Comment: The FAA should allow not only through-the-fence access for 
hangar homes, but should allow hangar homes on the airport itself.
    Response: The few cases where it may be appropriate to locate a 
residence on airport property are already listed in Order 5190.6B, 
including crew quarters and housing for key airport personnel in 
isolated areas. On-airport homes have the same problems as through-the-
fence uses for airport rights and powers and oftentimes compatible land 
use. In addition, on-airport residences raise the additional concerns 
of personal safety, with pedestrians and vehicles in the vicinity of 
taxiways. In extremely unusual situations such as wilderness areas with 
no permanent road access to the airport and local community, the FAA 
has the authority to consider circumstances on a case-by-case basis. 
Accordingly, the FAA is not proposing any change to its effective 
prohibition on hangar homes on airport property.
    Comment: The grant assurances, and the statute on which they are 
based, have not changed. The FAA previously interpreted this statute to 
allow residential through-the-fence access, and reversed this 
interpretation with no change in the underlying law.
    Response: It is true that the grant assurances that affect through-
the-fence access have not substantially changed since enactment of the 
Airport and Airway Improvement Act of 1982. It is clear from the FAA's 
1989 compliance order, Order 5190.6A, that the agency recommended 
against any new through-the-fence access. The discussion in Order 
5190.6A also indicates that the agency understood through-the-fence 
access to be almost entirely a commercial issue. At the time Order 
5190.6A was issued, the agency was not confronted with a proliferation 
of residential through-the-fence uses or some of the actual problems 
caused by such uses. When those issues did arise, the FAA issued more 
specific policy guidance on through-the-fence access on a case-by-case 
basis. The agency continues to believe that residential through-the-
fence access is not consistent with the characteristics of a Federally 
obligated public-use airport and has the strong potential to create 
grant assurance violations which are often difficult for a sponsor to 
correct. At the same time, however, the agency recognizes that a number 
of residential through-the-fence locations exist. Some of these uses 
could have resulted from the lack of specific guidance in FAA 
compliance documents, although in some cases the access was established 
over the objection of an FAA regional office. In any event the FAA 
proposes to accept the existence of these locations, and find the 
airport sponsor in compliance when the airport sponsor applies certain 
mitigation measures to

[[Page 54951]]

make the access consistent with the sponsor's grant assurances. 
However, with regard to the establishment of new through-the-fence 
arrangements, the FAA proposes amending the sponsor grant assurances to 
prohibit this practice in the future.
    Comment: The FAA's policy is not being evenly applied in all 
regions. In at least one region, airports appear to be subject to a 
zero-tolerance policy on residential through-the-fence access that is 
not being applied in other regions.
    Response: The Proposed Policy and amendment to the sponsor grant 
assurances will provide clear national guidance for all FAA regional 
and field offices and establish a standardized approach to through-the-
fence issues in all regions.
    Comment: The FAA should allow States and local communities to 
decide if residential through-the-fence access is appropriate for their 
airport.
    Response: Airports become eligible for Federal assistance when the 
FAA determines they can provide important benefits to the national 
airport system. In turn, the FAA provides financial investments, 
through AIP grants, for the capital improvement programs of these 
airports. The FAA has a fiduciary responsibility to ensure that capital 
improvements made with AIP grants will serve their intended purpose for 
the useful life of the investment. The FAA believes that impacts 
associated with residential through-the-fence access can compromise the 
longevity of its investments. Allowing individual States and local 
communities to establish a different access policy for each airport 
could decrease the overall utility of the national airport system. 
Moreover, the FAA has a statutory obligation to enforce the terms of 
AIP grants, including the assurances made by airport sponsors.

Discussion of Options Considered

    In reviewing the policy stated in Order 5190.6B, the FAA considered 
a range of possible policy approaches, as recommended in one or more 
public comments received. The agency considered the following four 
general policy approaches, with variations:
     Allow both new and existing residential through-the-fence 
access, on certain conditions.
     Prohibit new residential access, but allow existing access 
to continue under certain conditions on a case-by-case basis.
     Prohibit new residential through-the-fence access, and 
require sponsors to eliminate existing access.
     Allow States or airport sponsors to decide, as a matter of 
State and local law, whether to allow residential through-the-fence 
access at each airport.
    The agency's review of the policy options listed above can be 
summarized as follows:
    Allow both new and existing residential through-the-fence access, 
on certain conditions. The threshold issue for review of this policy is 
whether residential through-the-fence access is a problem for Federally 
obligated airports or not. The FAA has consistently discouraged 
through-the-fence access of any kind. In recent years, the FAA has 
objected to these arrangements as a result of actual and potential 
grant assurance violations. As part of its review, the FAA considered 
the potential problems for airports with residential through-the-fence 
access, but also the comments from property owners and others favoring 
such access for general aviation airports. After carefully balancing 
competing considerations of public policy, we have concluded that this 
access creates significant operational and land use problems for 
airport sponsors and should be banned in the future (at Federally 
obligated airports). Even at locations where off-airport property 
owners are charged a reasonable fee by the sponsor and the access is 
not causing current operational problems for the airport, residential 
through-the-fence access potentially diminishes the sponsor's ability 
to expand and improve the airport to meet current and future demand.
    The FAA remains concerned that owners of residential property next 
to an obligated airport have strong incentives to limit the benefits of 
the Federal investments made at the airport, even if they are aircraft 
owners, if their residential quality of life or property values would 
be adversely affected by proposed airport improvements or increases in 
service. While through-the-fence communities sometimes attempt to limit 
ownership to aircraft owners, there is no very effective way to prevent 
sale or lease of these properties to non-aircraft owners in the future. 
If that happens, the airport may encounter significant local opposition 
from its immediate neighbors. Finally, once established, these access 
rights can be very difficult for a sponsor to change or eliminate.
    No new residential access, but allow existing access to continue on 
certain conditions. Even if no new access from residential properties 
is created, the FAA believes there are approximately 75 airports in the 
continental U.S. with some degree of existing residential through-the-
fence use. As part of this review, FAA staff visited some of these 
airports and spoke with affected property owners and airport sponsors. 
It is clear that through-the-fence access to residential property has 
existed at some locations for many years, and that some property owners 
have relied on permission for airfield access in purchasing their 
property and building hangar homes. Termination of the access at these 
existing locations could substantially reduce the value of the owners' 
properties and interfere with the owners' expected use of these 
properties in the future. In certain cases FAA regional offices were 
notified but took no action to discourage sponsors from permitting such 
access. In other instances, the sponsor granted through-the-fence 
access rights without addressing the FAA's concerns and objections. At 
some airports, access rights are perpetual, while at others the rights 
can be terminated only after expiration of a lease.
    Given the potential for hardship and adverse effect on property 
values, the FAA does not believe a general policy against residential 
through-the-fence access should be applied retroactively to require 
sponsors to terminate existing uses. There are various actions that can 
be taken by airport sponsors and the property owners with access rights 
to help mitigate potential adverse effects. Where access rights could 
legally be terminated, but there is no immediate reason for the sponsor 
to do so, there would be little adverse impact from permitting those 
rights to continue until conditions at the airport change. For these 
reasons, the Policy proposed in this notice permits sponsors to 
continue existing access subject to standards for compliance.
    The agency's acceptance of existing residential through-the-fence 
access does not constitute ``grandfathering'' of access rights at these 
airports. Rather, the Proposed Policy defines standards of compliance 
for an airport sponsor's control of access from residential property. 
Airport sponsors would be required to present the FAA with a plan for 
how the airport meets these standards, as a condition of continuing 
eligibility for future AIP grants and NPIAS status. The agency is aware 
that some sponsors and local governments have more rights and 
governmental authority to control activity around and adjacent to the 
airport than others. Agency staff would take these differences into 
account in reviewing the access plans provided by each sponsor. Where 
legal rights to through-the-fence access expire, the sponsor would be 
able to extend the rights for fixed periods with FAA concurrence

[[Page 54952]]

until there is a reason to terminate or modify the access.
    Once a sponsor's residential through-the fence access plan is 
reviewed and accepted by the FAA, the FAA would consider the sponsor to 
be in compliance with its grant assurances although the airport has 
existing residential through-the-fence access. The FAA would allow 
sponsors a reasonable time to submit and obtain FAA acceptance of 
access plans, and would not initiate grant enforcement based on 
existing residential through-the-fence access per se during the review 
period. As proposed, the FAA would require an airport's access plan 
before the sponsor notifies the FAA of its intent to apply for an AIP 
grant, beginning in Fiscal Year 2013.
    Where an airport sponsor is unable to meet the standards for 
existing access, the FAA would consider the future role of the airport 
in the NPIAS and the type of AIP investment justified. In the unlikely 
event a sponsor refuses to take available actions to meet the basic 
compliance standards, the FAA would consider grant enforcement at that 
time.
    No new residential through-the-fence access, and eliminate existing 
access. For the reasons already discussed, the FAA does not believe 
that it is necessary or warranted to require sponsors to eliminate all 
existing residential through-the-fence access. Instead, the agency 
proposes a Policy that would allow existing access to continue on 
certain terms. In cases where an airport sponsor exercises its 
proprietary authority to limit or terminate its existing residential 
through-the-fence access, the FAA will not consider such action to 
violate Federal law. Residential through-the-fence access is not 
protected by the Federal grant assurances, and off-airport tenants 
would have no recourse under 14 CFR Part 16.
    Allow States or airport sponsors to decide whether to allow 
residential through-the-fence access at each airport. Several 
commenters urged that the FAA take no position at all on residential 
through-the-fence access, at least at airports in the category of 
smaller general aviation airports. Instead, commenters urged that the 
FAA recognize the authority of each airport, or its State or local 
government, to decide as a matter of State and local, rather than 
Federal, law whether to allow residential through-the-fence access at 
the airport.
    The FAA has a statutory obligation to enforce the terms of AIP 
grants, including the assurances made by airport sponsors. The FAA is 
ultimately responsible for interpreting and enforcing compliance with 
AIP grant assurances. Moreover, the Government Accountability Office's 
May 1999 report, General Aviation Airports, Unauthorized Land Use 
Highlights Need for Improved Oversight and Enforcement, recommended the 
FAA exercise greater oversight with regard to monitoring grant 
assurance compliance. Interpreting through-the-fence policy to be a 
matter of State and local, rather than Federal, law would likely result 
in a less consistent application of the policy. Accordingly, the FAA 
will retain responsibility for the establishment and enforcement of 
policy on residential through-the-fence access.

Actions Proposed in This Notice

    The FAA proposes to take a two-prong approach to through-the-fence 
access to obligated airports from residential property:
    1. The sponsor of an airport where residential through-the-fence 
access or access rights already exist will be considered in compliance 
with its grant assurances if the airport meets certain minimum 
standards for safety, efficiency, ability to generate revenue to 
recover airport costs, and minimizes the potential for noncompatible 
land uses consistent with standard sponsor grant assurance 21, 
Compatible Land Use.
    2. The agency proposes to add a new paragraph to standard sponsor 
grant assurance 5, Preserving Rights and Powers, to prohibit a sponsor 
from allowing new through-the-fence access from a residential property.
    In considering policy on through-the-fence access to federally 
obligated airports, the FAA's primary goals are to preserve the safety 
and efficiency of airports, and to ensure continuing public access to 
these airports as part of the national airport system. The viability 
and utility of a federally obligated, public use airport are best 
preserved by measures that:
     Ensure that airport sponsors retain the powers necessary 
to meet their obligations under the grant assurances and are able to 
maintain and develop the airport in the future. Also, while an airport 
operator is not obligated to expand airport facilities or property, it 
is a guiding principle of the National Plan of Integrated Airport 
Systems (NPIAS) that ``[a]irports should be flexible and expandable, 
and able to meet increased demand and to accommodate new aircraft 
types.''
     Ensure that airports have sufficient revenue to be as 
self-sustaining as possible and meet capital and operating 
requirements.
     Minimize encroachment of noncompatible land uses around 
the airport. Noncompatible land uses around an airport can increase the 
possibility of access restrictions, prevent airport improvement and 
expansion in response to aviation demand, and even threaten the 
continuing existence of the airport.
    The FAA considers residential use of airport property or of 
properties within the airport's 65 DNL dB noise contour to be 
incompatible with the operation of a public use airport, whether or not 
the residents are aircraft owners. Ultimately, location of any 
residences near an airport boundary will increase the potential for 
opposition to expansion or increased use of the airport. Also, 
regardless of compatibility, the through-the-fence access itself can 
cause operational and land use problems for the sponsor and other 
airport users.
    At the same time, the FAA recognizes that there are federally 
obligated airports where residential through-the-fence access already 
exists. In many of these cases the owners have legal rights for 
through-the-fence access to the airport.

1. The Proposed Policy on Existing Through-the-Fence Access From a 
Residential Property

    In consideration of the foregoing, the Federal Aviation 
Administration proposes to adopt the following Policy on existing 
through-the-fence access to a federally obligated airport from 
residential property:
Policy on Existing Through-the-Fence Access to Airports From a 
Residential Property
Applicability
    This Policy applies to any federally obligated airport with 
existing residential through-the-fence access.
    For the purposes of this Policy statement:
    In this sense ``access'' means:
    1. An access point for taxiing aircraft across the airport 
boundary; or
    2. The right of the owner of a particular off-airport residential 
property to use an airport access point to taxi an aircraft between the 
airport and that property.
    ``Existing access'' through the fence is defined as any through-
the-fence access that meets one or more of the following conditions:
    1. There was a legal right of access from the property to the 
airport (e.g., by easement or contract) in existence as of the date of 
this notice September 9, 2010; or
    2. There was development of the property prior to the date of this 
notice

[[Page 54953]]

September 9, 2010, in reliance on the airport sponsor's permission for 
through-the-fence aircraft access to the airport; or
    3. The through-the-fence access is shown on an FAA-approved airport 
layout plan or has otherwise been approved by the FAA in writing, and 
the owner of the property has used that access prior to the date of 
this notice September 9, 2010.
    ``Development'' is defined as excavation or grading of land or 
construction of fixed structures.
    ``Additional through-the-fence access'' is defined as:
    1. Establishment of a new access point to the airport for the 
benefit of the holder of a legally enforceable right to access that 
cannot be accommodated by an existing access point; or
    2. Extension or renewal of an existing right to access the airport 
from residential property or property zoned for residential use.
    ``Transfer of access'' through the fence is defined as one of the 
following transactions:
    1. Sale or transfer of a residential property or property zoned for 
residential use with existing through-the-fence access; or
    2. Subdivision, development, or sale as individual lots of a 
residential property or property zoned for residential use with 
existing through-the-fence access.
I. Existing Through-the-Fence Access From Residential Property at 
Federally Obligated Airports
Status of Existing Residential Through-the-Fence Access
    The FAA believes there are approximately 75 airports in the 
continental U.S. in the NPIAS where some form of through-the-fence 
access for taxiing aircraft was permitted prior to the date of this 
notice. The details of this access vary widely from location to 
location. Differences among particular locations include the number of 
persons with access rights; the number of access points across the 
airport boundary; the point at which the through-the-fence taxiway 
connects with the airport runway-taxiway system; the nature of access 
rights, e.g., by easement, contract, or informal permission of the 
sponsor; the amount and type of traffic at the airport; and the 
sponsor's ability to impose operating rules and charge fees related to 
the access. In some locations, the access right is currently held by a 
developer that may intend to transfer the right to airport access to a 
homeowners association or to individual homeowners.
    Many of these through-the-fence uses have been in effect for years, 
sometimes decades. At some locations, property owners have perpetual 
rights of access to the airport under an easement that cannot be 
extinguished by the airport sponsor except possibly through 
condemnation. In other locations, owners have rights of access for a 
term of years under contracts that will expire in the future. In both 
cases, many individual owners have made a substantial investment in 
properties for use jointly as a residence and aircraft hangar. In every 
case that the FAA reviewed, owners had the expectation of continued 
through-the-fence access to the airport both for their personal 
aircraft use and for the maintenance of property values and protection 
of their investment.
    Some sponsors and users have taken measures to mitigate potential 
problems with residential through-the-fence at their airports. These 
measures include:
     Making through-the-fence users subject to airport 
operating rules and standards, by regulation or by agreement;
     Collection of fees by the sponsor for airport access from 
off-airport properties;
     Through-the-fence owners waiver of rights to bring any 
action against the sponsor for aircraft noise and emissions;
     Through-the-fence owners execution of avigation easements 
in favor of the airport;
     Conditions, covenants or restrictions that limit ownership 
of property with through-the-fence access rights to owners or operators 
of aircraft; and
     Zoning that limits the use of properties with through-the-
fence use to a joint aviation-residential use.
    As a result, the actual and potential problems with residential 
through-the-fence access to an airport have been mitigated to a greater 
degree at some airports than at others.
Policy Toward Sponsors With Existing Residential Through-the-Fence 
Access
    The agency understands that it is not practical or even possible to 
terminate through-the-fence access at many of those airports where that 
access already exists. Where access could be terminated, property 
owners have claimed that termination could have substantial adverse 
effects on their property value and investment, and airport sponsors 
seeking to terminate this access could be exposed to costly lawsuits. 
Accordingly, the FAA will not consider the existence of residential 
through-the-fence access by itself to be in noncompliance with the 
airport sponsor's grant assurances.
    However, where through-the-fence access rights are unrestricted, or 
where the airport sponsor has lost powers necessary for the future 
operation and growth of the airport, the existing residential through-
the-fence access can interfere with the sponsor's ability to meet its 
obligations as sponsor of a federally assisted public use airport. As 
discussed above, at some airports the sponsor and through-the-fence 
users have made an effort to implement a series of measures to address 
potential problems with through-the-fence access, by ensuring 
continuing sponsor control of airport access and limiting the effects 
of incompatible land use on the airport boundary. The FAA believes such 
measures can substantially mitigate the potential problems with 
residential through-the-fence access where it exists, and avoid future 
grant compliance issues. It is reasonable, therefore, to require 
sponsors of airports with existing residential through-the-fence 
access, to have certain measures in effect to protect its proprietary 
power and limit adverse effects of the through-the-fence access to 
facilitate compliance with its grant assurance obligations.
    Accordingly, the sponsor of an airport where residential through-
the-fence access or access rights already exist will be considered in 
compliance with its grant assurances if the airport depicts the access 
on its airport layout plan and meets certain standards for safety, 
efficiency, ability to generate revenue to recover airport costs, and 
mitigation of potential noncompatible land uses. Those standards are 
listed in section II, Standards for compliance at airports with 
existing through-the-fence access. An airport sponsor covered by this 
Policy must seek FAA approval before entering into any arrangement 
which would establish additional access through-the-fence. Sponsors are 
reminded that there is no right to aircraft surface access to the 
airport from off-airport locations, and no off-airport property owner 
will have standing to file a formal complaint with the FAA to challenge 
the sponsor's decision not to permit such access.
    The FAA will review future requests for AIP funds to ensure that 
Federal investments are in proportion to the public use of the airport. 
Projects designed to exclusively serve residential through-the-fence 
users will not be eligible for AIP funding.

[[Page 54954]]

II. Standards for Compliance at Airports With Existing Through-the-
Fence Access
    The FAA understands that municipally-owned airports have varying 
degrees of zoning authority. For example, one airport may have strong 
zoning powers, while another may have none. Also, the nature of 
existing through-the-fence rights can greatly affect the sponsor's 
ability to implement measures to control access. Accordingly, the FAA 
does not expect every airport with existing residential through-the-
fence access to adopt a uniform set of rules and measures to mitigate 
that access. However, the FAA does expect each such sponsor to adopt 
reasonable rules and implement measures that accomplish the following 
standards for compliance, to the fullest extent feasible for that 
sponsor. In general, the greater the number of residential through-the-
fence access points and users of the airport and the higher the number 
of aircraft operations, the more important it is to have formal 
measures in effect to ensure the sponsor retains its proprietary powers 
and mitigates adverse effects on the airport.
    The FAA's standards for compliance for any sponsor of an airport 
with existing through-the-fence access are as follows:
    1. General authority for control of airport land and access. The 
airport sponsor has sufficient control of access points and operations 
across airport boundaries to maintain safe operations, and to make 
changes in airport land use to meet future needs.
    2. Safety of airport operations. By rule, or by agreement with the 
sponsor, through-the-fence users are obligated to comply with the 
airport's rules and standards.
    3. Recovery of costs of operating the airport. The airport sponsor 
can and does collect fees from through-the-fence users comparable to 
those charged to airport tenants, so that through-the-fence users bear 
a fair proportion of airport costs.
    4. Protection of airport airspace. Operations at the airport will 
not be affected by hangars and residences on the airport boundary, at 
present or in the future.
    5. Compatible land uses around the airport. The potential for 
noncompatible land use adjacent to the airport boundary is minimized 
consistent with grant assurance 21, Compatible Land Use.
    These standards will be applied, on a case-by-case basis, in the 
FAA's evaluation of whether each airport with existing residential 
through-the-fence access meets the above requirements to the fullest 
extent feasible for that airport. In situations when access can be 
legally transferred from one owner to another without the airport 
sponsor's review, the FAA will treat the access as existing. Because 
the ability of some sponsors to control access has been compromised as 
a result of legal rights previously granted to through-the-fence users, 
existing access locations may be evaluated under the alternative 
criteria for some standards as indicated below, if applicable to that 
airport.
III. Standards for Compliance at Airports Proposing Additional Through-
the-Fence Access at Airports Covered by This Policy
    Once allowed, residential through-the-fence access is very 
difficult to change or eliminate in the future. This is because 
residential owners, more so than commercial interests, typically expect 
that their residential property will remain suitable for residential 
use and protected from adverse effects for a long time. Residential 
buyers and their mortgage lenders may ensure that the property is 
purchased with rights that guarantee no change in the access to the 
airport for decades, or indefinitely. Because each additional 
residential through-the-fence access location introduces the potential 
for problems for the airport in the future, and because this access is 
effectively permanent and resistant to change once permitted, the FAA 
believes that additional residential through-the-fence access at public 
use airports should be carefully scrutinized.
    The following supplemental standards will be applied to the FAA's 
case-by-case review of sponsors proposing additional residential 
through-the-fence access at airports with existing access. In 
situations when the transfer of access from one owner to another 
requires the airport sponsor's concurrence, the FAA will treat the 
access as additional. The FAA will not approve requests for additional 
access that are inconsistent with the sponsor's grant assurances 
(excluding grant assurance 5, Preserving Rights and Powers, paragraph 
``g'' as proposed in this notice). Furthermore, the sponsor will be 
required to demonstrate the following standards for compliance:
     The term of the access does not exceed twenty years.
     The sponsor provides a current (developed or revised 
within the last five years) airport master plan identifying adequate 
areas for growth that are not affected by the existence of through-the-
fence access rights, OR the sponsor has a process for amending or 
terminating existing through-the-fence access in order to acquire land 
that may be necessary for expansion of the airport in the future.
     The location of the new access point does not prevent 
development or changes in use of airport property in the future.
     The location and use of the new access point does not 
cause or hold the potential for operational problems or a reduction in 
efficiency of ground operations at the airport.
     The sponsor will impose and enforce safety and operating 
rules on through-the-fence residents utilizing this access while on the 
airport identical to those imposed on airport tenants and transient 
users.
     The sponsor will charge through-the-fence residents 
utilizing this access fees that recover airport costs and fairly 
distribute the burden of airport fees across all airport users, both 
tenants and through-the-fence. Rates should increase on the same 
schedule as tenant fees. Fees that may be sufficient for this purpose 
include, without limitation:
     Tenant tie-down charges.
     Tenant rates for square footage of off-airport hangars.
     Ground leases for dedicated taxiway connections to off-
airport properties.
     Assessment of capital costs for general infrastructure.
     Through-the-fence residents will bear all the costs of 
infrastructure related to their access.
     Through-the-fence residents utilizing this access will 
grant the sponsor an avigation easement for overflight, including 
unobstructed flight through the airspace necessary for takeoff and 
landing at the airport.
     Through-the-fence residents utilizing this access, by 
avigation easement; deed covenants, conditions or restrictions; or 
other agreement, have acknowledged that the property will be affected 
by aircraft noise and emissions.
     Through-the-fence residents utilizing this access have 
waived any right to bring an action against the airport sponsor for 
operations at the airport associated with aircraft noise and emissions.
     The sponsor has a mechanism for ensuring through-the-fence 
residents utilizing this access will file FAA Form 7460-1, Notice of 
Proposed Construction or Alteration, if necessary.
     Where available, the airport sponsor or other local 
government has in effect measures to limit future use and ownership of 
the through-the-fence properties to aviation-related uses (in this 
case, hangar homes), such as through zoning or mandatory deed 
restrictions. The FAA recognizes this

[[Page 54955]]

measure may not be available to the airport sponsor in all States and 
jurisdictions.
     If the residential community has adopted restrictions on 
owners for the benefit of the airport (such as a commitment not to 
complain about aircraft noise), those restrictions are enforceable by 
the airport sponsor as a third-party beneficiary, and may not be 
cancelled without cause by the community association.
     The additional access is consistent with and depicted on 
the approved or proposed Airport Layout Plan (ALP).
IV. Process and Documentation
A. Existing Residential Through-the-Fence Access
    1. General. The sponsor of an airport with existing residential 
through-the-fence access will be considered in compliance with its 
grant assurances, and eligible for future grants, if the FAA determines 
that the airport meets the applicable standards listed above under 
Standards for compliance at airports with existing residential through-
the-fence access. The sponsor may demonstrate that it meets these 
standards by providing the FAA Airports District Office (ADO) or 
Regional Airports Division with a written description of the sponsor's 
authority and the controls in effect at the airport (``residential 
through-the-fence access plan'' or ``access plan''). The regional 
division or ADO will review each access plan, on a case-by-case basis, 
to confirm that it addresses how the sponsor meets each of these 
standards at its airport. The regional division or ADO will forward its 
recommendations regarding each access plan to the Manager of Airport 
Compliance. Only the Manager may accept an airport sponsor's 
residential through-the-fence access plan. In reviewing the access 
plan, the Manager may consult with the Transportation Security 
Administration (TSA). The FAA will take into account the powers of 
local government in each State, and other particular circumstances at 
each airport. In every case, however, the access plan must address each 
of the basic requirements listed under II of this Policy.
    2. Residential through-the-fence access plan. The FAA will require 
evidence of compliance before issuing an AIP grant, beginning in Fiscal 
Year 2013. FY 2013 and later grants will include a special grant 
condition requiring the ongoing implementation of these access plans. 
Generally the FAA will not award discretionary grants to the airport 
until the FAA accepts the sponsor's access plan as meeting the 
standards to the extent feasible for that airport. Therefore, a 
residential through-the-fence access plan should be provided no later 
than the October 1st of the fiscal year in which the sponsor will 
request an AIP grant (i.e., sponsors that will request an AIP grant in 
Fiscal Year 2013 must submit an access plan no later than October 1, 
2012; sponsors requesting an AIP grant in Fiscal Year 2014 must submit 
no later than October 1, 2013).
    3. Airport Layout Plan. The FAA will require all residential 
through-the-fence access points to be identified on the airport's 
layout plan. A temporary designation may be added through a pen and ink 
change to immediately identify the locations on the airport property 
which serve as points of access for off-airport residents. Airport 
sponsors which are required to submit access plans will have three 
years from the date their access plan is accepted to initiate a formal 
ALP revision to fully depict the scope of their existing residential 
through-the-fence arrangements. The FAA may decline to provide AIP 
funds for costs associated with these formal ALP revisions.
    A sponsor's failure to depict all residential through-the-fence 
access points may be considered an apparent violation of the sponsor's 
grant assurances, and the agency may consider grant enforcement under 
14 CFR Part 16.
    4. FAA review. The FAA's acceptance of the access plan represents 
an agency finding that the airport has met the compliance standards for 
existing residential through-the-fence access. The FAA will review the 
airport sponsor's access plan prior to approving any formal revisions 
to the airport's layout plan. An airport sponsor's failure to implement 
its access plan could result in a violation of the special grant 
condition and potentially lead to a finding of noncompliance.
    5. Airports currently in noncompliance. Airports currently in 
noncompliance due to grant assurance violations related to through-the-
fence access, such as grant assurance 19, Operation and Maintenance, 
will need to continue to work with ADO and regional division staff to 
establish an appropriate corrective action plan. An FAA-approved 
corrective action plan, once accepted by the FAA, will serve as the 
sponsor's access plan. The decision to restore the sponsor's compliance 
status will be made by the Manager of Airport Compliance. In cases 
where the airport's safety and utility have been compromised, the 
Manager may require the sponsor to take definitive steps to address 
those concerns before restoring the sponsor to a compliant status.
    6. Airports with existing residential through-the-fence access that 
do not meet the compliance standards. The FAA recognizes that some 
airport sponsors will not be able to fully comply with the standards 
listed above, due to limits on the powers of the sponsor and/or other 
local governments, or on other legal limits on the sponsor's discretion 
to adopt certain measures. Other airports have the capability to adopt 
measures to satisfy the compliance standards but have not done so. The 
FAA will take the following action with respect to any obligated 
airport with existing residential through-the-fence access that does 
not meet the minimum compliance standards:
    a. Airports that serve a function in the NPIAS but cannot fully 
meet the through-the-fence compliance standards. Where the airport 
still substantially serves its intended function in the NPIAS, but 
residential through-the-fence access at the airport will have an 
adverse effect on the airport's operations, its ability to grow, or its 
ability to accept new kinds of aviation use, the FAA will consider a 
reduced level of future AIP investment in the airport. FAA evaluation 
of investment needs will reflect any impairment in the airport's 
utility due to residential through-the-fence use. The sponsor will not 
lose eligibility for non-primary entitlement grants on the basis of the 
through-the-fence access, but will not be able to depend on receiving 
future discretionary grants for all eligible projects.
    b. Airports that no longer have significant value in the national 
system. Where the residential through-the-fence access cannot be 
controlled by the sponsor, and use of that access adversely affects the 
airport's availability as a public use airport, the FAA will consider 
removal of the airport from the NPIAS consistent with the requirements 
of FAA Order 5090.3C Field Formulation of the National Plan of 
Integrated Airport Systems (NPIAS). The FAA may either take steps to 
recover unamortized grant funds, or may leave grant assurances in 
effect for the life of existing grants but award no new grants.
B. Requests for Additional Residential Through-the-Fence Access at 
Airports Covered by This Policy
    As of the date of this notice September 9, 2010, a sponsor 
proposing additional access must submit a current airport master plan 
and a revised residential through-the-fence access

[[Page 54956]]

plan as detailed below. A sponsor proposing to establish additional 
access points must also submit a revised Airport Layout Plan. The 
regional division or ADO will forward its recommendations regarding 
each request for additional access to the Manager of Airport 
Compliance. Only the Manager may approve an airport sponsor's request 
for additional access. In reviewing the proposal, the Manager may 
consult with TSA.
    1. Master Plan. A sponsor wishing to permit additional (including 
proposals to extend or renew existing access agreements) residential 
through-the-fence access must submit a recent airport master plan to 
the ADO or Regional Airports Division. The FAA considers a master plan 
to be recent if it was developed or updated within the past five years. 
The master plan should explain how the sponsor plans to address future 
growth, development, and use of the airport property over the next 
twenty years.
    2. Residential through-the-fence access plan. The sponsor is 
responsible for revising its access plan, as discussed under section 
IV.A.2 of this Policy, to reflect how it will meet the standards for 
compliance for the additional access. Once accepting the revised access 
plan, the FAA will condition future AIP grants upon its ongoing 
implementation.
    3. Application to approve revised Airport Layout Plan. A sponsor 
wishing to permit additional residential through-the-fence access by 
establishing a new access point must submit a proposed ALP revision to 
the ADO or Regional Airports Division, depicting the point of access 
and associated airport infrastructure required for linking the access 
point to the airport runway/taxiway system. The sponsor should also 
submit information on the aircraft types and number of aircraft 
expected to use the additional access proposed. The FAA will not 
approve any change to the airport's ALP that appears inconsistent with 
the sponsor's grant assurances or that adversely affects the safety, 
efficiency, or utility of the airport. The FAA may decline to provide 
AIP funds for costs associated with these formal ALP revisions.
    A sponsor's failure to depict all residential through-the-fence 
access points may be considered an apparent violation of the sponsor's 
grant assurances, and the agency may consider grant enforcement under 
14 CFR Part 16.
    4. Continuing obligations. Once the revised access plan and if 
required the revised ALP depicting the new access point are accepted by 
the FAA, the additional residential through-the-fence access is 
considered existing residential through-the-fence access, and the 
sponsor must comply with the continuing obligations for sponsors of 
airports with existing residential through-the-fence access, as 
described in section IV.A of this Policy.
V. Eligibility for AIP Grants
    A. General. Beginning in Fiscal Year 2013, a sponsor will be 
required to submit their residential through-the-fence access plans 
prior to notifying the FAA of its intent to apply for an AIP grant. 
However, the FAA will review subsequent grant applications from each 
such sponsor to ensure that the requested grant of AIP funds would 
primarily serve the airport's public function in the national airport 
system. The FAA will limit the Federal investment in airport 
infrastructure and facilities to an amount related to general public 
demand at the airport.
    B. Public infrastructure and facilities with substantial benefit to 
private through-the-fence users. Where private residential developments 
with through-the-fence access receive value from access to Federally 
assisted airport infrastructure and facilities, the FAA will expect the 
private users to share in those capital costs.
    C. Exclusive or primary private benefit. On-airport infrastructure 
and facilities used exclusively or primarily for accommodation of 
through-the-fence users are considered private-use and are ineligible 
for AIP grants.

2. The Proposed Amendment to the Standard AIP Sponsor Assurances

    The FAA considers a sponsor's consent to any new permission for 
through-the-fence access to the airport from a residential property to 
be inconsistent with the sponsor's grant assurances, specifically, the 
obligation to maintain rights and powers to control airport development 
and operation. Permitting such access to the airport may also result in 
violations of the obligation to impose a reasonable, not unjustly rate 
structure that makes the airport as self-sustaining as possible, and 
the obligation to restrict areas adjacent to the airport to compatible 
land uses. While some commenters argued that many existing residential 
through-the-fence uses have not caused apparent problems for the 
airport, the problems for airports and access to the national airport 
system are not always evident or important to the through-the-fence 
users themselves. For example, the interests of commercial and 
transient users may create a demand for expanded use of the airport or 
expansion of airport property, both of which could be adversely 
affected by the existence of residential properties on the airport 
boundary. This is inconsistent with the expectation that Federally 
obligated airports will be able to accommodate new demand.
    Once allowed, residential through-the-fence access is very 
difficult to change or eliminate in the future. This is because 
residential owners, more so than commercial interests, typically expect 
that their residential property will remain suitable for residential 
use and protected from adverse effects for a long time. Residential 
buyers and their mortgage lenders may ensure that the property is 
purchased with rights that guarantee no change in the access to the 
airport for decades, or indefinitely. Because each new residential 
through-the-fence access location introduces the potential for the 
airport sponsor to have problems meeting its obligations under the 
sponsor grant assurances in the future, and because this access is 
effectively permanent and resistant to change once granted, the FAA 
believes that new residential through-the-fence uses at public use 
airports should not be established.
    Accordingly, the FAA will consider a new through-the-fence access 
arrangement from a property used as a residence or zoned for 
residential use to be an apparent violation of the sponsor's grant 
assurances, and the agency may investigate any report of such action 
for possible enforcement under 14 CFR Part 16. Any action taken to 
strengthen, memorialize, or codify existing access in perpetuity beyond 
that described in an FAA approved residential through-the-fence access 
plan at an airport with existing access will also be considered a new 
grant of through-the-fence access. The sponsor will of course have the 
opportunity to present information and arguments to the FAA during the 
Part 16 process.
    In consideration of the above, the FAA proposes to add new 
paragraph g. to standard AIP sponsor assurance 5, to read as follows:

    C. Sponsor Certification. The sponsor hereby assures and 
certifies, with respect to this grant that:
* * * * *
    5. Preserving Rights and Powers.
* * * * *
    g. It will not permit or enter into any arrangement that results 
in permission for the owner or tenant of a property used as a 
residence, or zoned for residential use, to taxi an aircraft between 
that property and any location on airport.



[[Page 54957]]


    Issued in Washington, DC, on August 27, 2010.
Randall Fiertz,
Director, Airport Compliance and Field Operations.
[FR Doc. 2010-22095 Filed 9-8-10; 8:45 am]
BILLING CODE 4910-13-P