[Federal Register Volume 77, Number 146 (Monday, July 30, 2012)]
[Proposed Rules]
[Pages 44515-44522]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-18058]


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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Chapter I

[Docket No. FAA-2012-0754]


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

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Proposed policy; implementation of Section 136; opportunity to 
comment.

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SUMMARY: This action proposes a policy, based on Federal law, 
concerning through-the-fence access to a federally obligated airport 
from an adjacent or nearby property, when that property is used as a 
residence. This proposed policy limits application of the FAA's 
previously published interim policy (76 FR 15028; March 18, 2011) to 
commercial service airports that certified existing residential 
through-the-fence access agreements. In addition, this notice proposes 
to rescind applicability of the interim policy with regard to certain 
general aviation airports consistent with section 136 of Public Law 
112-95 and describes how the FAA will interpret provisions of this law 
pertaining to residential through-the-fence access.
    When the FAA adopted its interim policy on access to airports from 
residential property, the FAA announced its intent to initiate another 
policy review in 2014. This supplemental policy review will no longer 
be necessary.

DATES: Send your comments on or before August 29, 2012. The FAA will 
consider comments on the proposed policy and its proposed 
implementation of Section 136 of Public Law 112-95. Any necessary or 
appropriate revisions 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-2012-
XXX] 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 Management Analysis, Federal Aviation 
Administration, 800 Independence Avenue SW., Washington, DC 20591, 
telephone (202) 267-3085; facsimile: (202) 267-5257.

[[Page 44516]]


SUPPLEMENTARY INFORMATION: 
    Privacy: We will post all comments we receive, without change, to 
http://www.regulations.gov, including any personal information you 
provide. Using the search function of our docket Web site, anyone can 
find and read the comments received into any of our dockets, including 
the name of the individual sending the comment (or signing the comment 
for an association, business, labor union, etc.). You may review DOT's 
complete Privacy Act Statement in the Federal Register published on 
April 11, 2000 (65 FR 19477-78).

Availability of Documents

    You can get an electronic copy of this proposed policy 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 Management 
Analysis, 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

    This notice is published under the authority described in Subtitle 
VII, part B, chapter 471, section 47122 of title 49 United States Code.

Background

    On September 30, 2009, the FAA issued FAA Order 5190.6B, the 
Airport Compliance Manual. This order contains policy guidance for 
agency employees monitoring airport sponsor compliance with the grant 
assurances. Agency guidance that preceded Order 5190.6B discouraged 
through-the-fence access at airports with grant obligations, and Order 
5190.6B contained specific objections to residential through-the-fence 
access based on more recent agency experiences. Order 5190.6B did not 
prescribe any specific actions to be taken by airport sponsors with 
residential through-the-fence access agreements and created ambiguity 
with regard to the future of these arrangements. The FAA accepted 
public comments on FAA Order 5190.6B after it was published. Comments 
received from interested airport sponsors, homeowners, and other 
parties urged the agency to reconsider its views on residential 
through-the-fence agreements.
    In 2010, the FAA's Office of Airport Compliance initiated a policy 
review which included the review of written comments, meetings with 
state aviation officials, visits to airports with residential through-
the-fence access, listening sessions with homeowners and homeowners' 
associations, and discussions with aviation membership associations. 
The FAA published a proposed revision in agency policy on residential 
through-the-fence access for public comment in September 2010 (75 FR 
54946; September 9, 2010).
    In March 2011, the FAA announced the adoption of an interim policy 
Airport Improvement Program (AIP): Interim Policy Regarding Access to 
Airports From Residential Property (76 FR 15028; March 18, 2011). The 
interim policy modified sponsor Grant Assurance 5, Preserving Rights 
and Powers, to prohibit new residential through-the-fence access to a 
federally-obligated airport. The interim policy also required airport 
sponsors to certify their status with regard to the policy, depict 
existing access points on the airport layout plan, and develop access 
plans outlining how the airport sponsor meets certain standards related 
to the sponsor assurances. When the interim policy was adopted, the FAA 
announced its intent to initiate another policy review of residential 
through-the-fence access to federally-obligated airports in 2014.
    Since adopting the interim policy, 125 federally-obligated airport 
sponsors have certified their status as having existing residential 
through-the-fence access agreements. The 125 locations include four 
commercial service airports, seven privately-owned reliever airports, 
and 114 general aviation airports.
    On February 14, 2012, the FAA Modernization and Reform Act of 2012 
(FMRA) was signed into law (Pub. L. 112-95). Section 136 of this law 
permits general aviation airports, as defined by the statute, to enter 
into residential through-the-fence agreements with property owners or 
associations representing property owners. This must be a written 
agreement that requires the property owner to:
     Pay access charges that the sponsor determines to be 
comparable to those fees charged to tenants and operators on-airport 
making similar use of the airport;
     Bear the cost of building and maintaining the 
infrastructure the sponsor determines is necessary to provide access to 
the airfield from property located adjacent to or near the airport;
     Maintain the property for residential, noncommercial use 
for the duration of the agreement;
     Prohibit access to the airport from other properties 
through the property of the property owner; and
     Prohibit any aircraft refueling from occurring on the 
property.
    In order to implement this law, the FAA amended the sponsor 
assurances (77 FR 22376; April 13, 2012). Among the modifications, 
sponsor assurance 5(g) was redrafted to clarify that sponsors of 
commercial service airports are not permitted to enter into residential 
through-the-fence arrangements. However, sponsors of general aviation 
airports may enter into such an arrangement if the airport sponsor 
complies with the requirements of section 136 of Public Law 112-95 and 
the sponsor assurances. In addition, sponsor assurance 29, Airport 
Layout Plan, was amended to require all proposed and existing access 
points used to taxi aircraft across the airport property boundary be 
depicted on the airport layout plan (ALP).
    A complete list of the current grant assurances can be viewed at: 
http://www.faa.gov/airports/aip/grant_assurances/
    The FAA is proposing its interpretation of the FMRA's section 136 
and seeks public comment on this interpretation. In light of the public 
comment period, the FAA's implementing guidance remains in draft form. 
The agency will refrain from finalizing its implementing guidance until 
after a final policy is published in a subsequent public notice. As a 
result, the FAA will not approve any ALPs depicting new residential 
through-the-fence access points until final guidance has been issued. 
The FAA will proceed in a timely manner to address public comments and 
will not unduly delay final agency action with regard to section 136 of 
the FMRA.

FAA's Interpretation of the FMRA's Section 136

Enforcement
    Section 136 permits sponsors of general aviation airports, as 
defined by the statute at 49 U.S.C. 47102(8), to enter into agreements 
granting through-the-fence access to residential users, but includes 
specific terms and conditions. The FAA interprets the inclusion of 
specific terms and conditions as Congress' intent for the FAA to 
enforce the provision accordingly. Therefore,

[[Page 44517]]

the FAA will request sponsors with existing residential through-the-
fence agreements to demonstrate their compliance with the law. 
Additionally, the FAA will also request sponsors of general aviation 
airports proposing to establish new residential through-the-fence 
agreements to demonstrate that their agreements will comply with the 
law. Airport sponsors are encouraged to review the FAA's Compliance 
Guidance Letter on FAA Review of Existing and Proposed Residential 
Through-Fence-Access Agreements, which will be issued in draft form 
concurrently with this notice.
    Although the law became effective on February 14, 2012, the FAA 
will afford airport sponsors a grace period for compliance. Airport 
sponsors with existing residential through-the-fence agreements must 
provide evidence of compliance not later than September 30, 2013. In 
most cases, the FAA will define evidence of compliance as the airport 
sponsor's submission of required documentation. This may include copies 
of access agreements, deeds, covenants, conditions, and restrictions, 
etc.
    Airport sponsors of general aviation airports proposing to 
establish new or add new residential through-the-fence agreements must 
provide evidence of compliance prior to executing an agreement with a 
residential user and/or association representing residential users. The 
establishment of a new residential through-the-fence agreement which 
does not comply with the law or results in a violation of the sponsor's 
commitments with the Federal Government may result in enforcement 
proceedings under 14 Code of Federal Regulations (CFR) part 16.
    The FAA acknowledges that its approach to sponsors with existing 
residential through-the-fence access agreements will be different than 
the posture to be taken with sponsors of general aviation airports 
proposing to establish new or add new residential through-the-fence 
agreements. This is because airport sponsors with existing agreements 
may have ceded important rights and powers through the execution of 
these existing agreements, and their ability to comply with the terms 
and conditions of the law may be severely hampered. The FAA intends to 
address such situations on a case-by-case basis, assist these airport 
sponsors in the development of appropriate mitigations when possible, 
and report these issues to interested Congressional Committees. Going 
forward, the FAA expects sponsors of general aviation airports 
proposing to establish new or add new residential through-the-fence 
agreements to comply with the terms and conditions of the law. The FAA 
will not waive these terms and conditions for new agreements.
Applicability
    Section 136 applies to sponsors of general aviation airports. The 
FMRA adopted a definition of ``general aviation airport'' which is now 
codified at 49 U.S.C. 47102(8). A general aviation airport is defined 
as a public airport that is located in a State that, as determined by 
the Secretary, does not have commercial service or has scheduled 
service with less than 2,500 passenger boardings each year. This 
definition excludes privately-owned reliever airports. In implementing 
section 136, the FAA will grandfather the seven privately-owned 
reliever airports with existing residential through-the-fence access. 
The owners of these airports will be asked to comply with the law and 
be treated in a manner similar to general aviation airports as defined 
in the statute. However going forward, the FAA will apply the statutory 
prohibition on privately-owned reliever airports and disallow these 
airports from entering into such agreements. Publically-owned reliever 
airports are included in the statutory definition of a general aviation 
airport; sponsors of publically-owned reliever airports will be 
permitted to enter into residential through-the-fence agreements that 
comply with the terms and provisions contained in section 136.
    The FAA proposes the policy included in this notice to address 
commercial service airports with existing residential through-the-fence 
agreements. Commercial service airports which do not currently have 
residential through-the-fence agreements continue to be prohibited from 
entering into such agreements by statute.
Terms and Conditions--Commercial Activities
    Section 136 states that residential property owners must maintain 
their property for residential, noncommercial use for the duration of 
the agreement. The FAA interprets this as a prohibition on commercial 
aeronautical services offered by residential through-the-fence users 
that might compete with on-airport aeronautical service providers, 
whether existing or not, or chill the airport sponsor's ability to 
attract new commercial service providers on the airport. Therefore, in 
its review of agreements proposing to establish new residential 
through-the-fence access, the FAA will interpret this condition as a 
prohibition on commercial aeronautical activities only. Agreements 
which limit the scope of this prohibition to only commercial 
aeronautical activities will be acceptable. However, the FAA will not 
concern itself with unrelated commercial activities which may be 
permitted by local regulation.
    The FAA recognizes that some existing residential through-the-fence 
agreements permit the co-location of homes and aeronautical businesses. 
In these cases, the FAA will require airport sponsors to execute two 
separate agreements with the homeowner. One agreement must address the 
duration, rights, and limitations of the homeowner's residential 
through-the-fence access, and the second agreement must address the 
conduct of the commercial aeronautical activity. The second agreement 
must be consistent with the FAA's current policies on commercial 
through-the-fence activities and ensure the off-airport business does 
not result in unjust economic discrimination for on-airport 
aeronautical service providers. The FAA encourages airport sponsors 
with these types of mixed-use arrangements to adopt long-term plans to 
relocate the off-airport commercial aeronautical activity onto the 
airport when feasible and practicable to do so. Going forward, airport 
sponsors proposing to establish a residential through-the-fence 
agreement must meet the statutory terms and conditions, including the 
prohibition on using the residential property for commercial 
aeronautical use. Therefore, agreements which propose the co-location 
or mixed-use of residential and commercial aeronautical activities will 
be not be consistent with the law.
Terms and Conditions--Authorized Access
    Section 136 states that residential property owners must prohibit 
access to the airport from other properties through the property of the 
property owner with access. The FAA interprets this as a prohibition on 
unauthorized access to the airport; this condition does not necessarily 
prescribe a scenario in which all residential through-the-fence users 
must have their own dedicated access point to enter the airport. The 
FAA encourages sponsors of general aviation airports proposing to 
establish new residential through-the-fence agreements to limit the 
number of access points in a manner that is consistent with airport 
planning practices. Compliance with this condition will require access 
agreements stipulate that residential through-the-fence access 
agreement holders are prohibited from permitting unauthorized users 
(any individual not

[[Page 44518]]

party to an access agreement with the airport sponsor) to pass through 
or ``piggy back'' on their access in order to enter the airport. The 
FAA expects airport sponsors to establish their own policies, 
restrictions, and/or requirements to be imposed on fly-in guests who 
taxi from the airport property to visit off-airport residents.
Terms and Conditions--Fueling
    Section 136 states that residential property owners must prohibit 
any aircraft refueling from occurring on the property with access. The 
FAA interprets this as a prohibition on the sale of fuel from 
residential property. The FAA will not concern itself with self-fueling 
activities which may be permitted by local regulation.

Proposed Final Policy on Existing Through-the-Fence Access to 
Commercial Service Airports From a Residential Property

Discussion of Revisions to the Interim Policy

    In light of section 136 of Public Law 112-95, the FAA proposes the 
following revisions to the interim policy published on March 18, 2011 
(76 FR 54946; September 9, 2010).
Proposed Policy
    The law permits sponsors of general aviation airports to enter into 
residential through-the-fence agreements with property owners or 
associations representing property owners; however, the law is silent 
with regard to commercial service airports. The FAA interprets the 
absence of statutory relief as authority to finalize the interim policy 
for commercial service airports.
    Changes: All references to the policy now clarify that it will be a 
final measure.
Applicability
    The law permits publicly-owned general aviation airports, as 
defined by the statute, to enter into residential through-the-fence 
agreements that comply with specific terms and conditions. The FAA's 
proposed policy regarding access to airports from residential property 
will apply only to those commercial service airports with existing 
residential through-the-fence access.
    Changes: The proposed policy now refers only to commercial service 
airports with existing residential through-the-fence access.
Incorporation of the Law
    The proposed policy has been revised to incorporate the terms and 
conditions contained in section 136 of Public Law 112-95, as 
implemented by the FAA. As a result, the FAA will consider the airport 
sponsor's ability to establish parity in fees between on- and off-
airport users as opposed to an airport sponsor's ability to generate 
revenue to recover airport costs. This reflects Congress' intent that 
residential through-the-fence users pay airport access charges that are 
comparable to those tenants and operators on-airport making similar use 
of the airport.
    Changes: Section I, Section II, Section III, and Section IV now 
state that airport sponsors will be required to satisfy the law. 
Section II specifies the terms and conditions contained in the law 
which must also be satisfied by the airport sponsor. References to 
``ability to generate revenue to recover airport costs'' have been 
replaced with ``parity of access fees''.
FAA's Standards for Compliance--Recovery of Costs of Operating the 
Airport
    The law prescribes a single methodology for evaluating fees charged 
to residential through-the-fence users. Therefore, the FAA will not 
propose or consider alternative methodologies. The discussion of these 
methodologies has been replaced with language from the law.
    Changes: References to ``recovery of costs of operating the 
airport'' have been replaced with ``parity of access fees'' in Section 
II. The interim policy's explanation of FAA's standard for compliance, 
which was the requirement for through-the-fence users to bear a fair 
proportion of airport costs, has been deleted.
Standards for Compliance at Commercial Service Airports Proposing To 
Extend Through-the-Fence Access
    Section 136 of Public Law 112-95 prescribes specific terms and 
conditions to be contained in agreements establishing residential 
through-the-fence access. The FAA will require commercial service 
airports proposing to extend or renew their existing agreements to 
fully comply with these terms and conditions as a supplemental standard 
applied by the FAA to review these proposals. In addition, because the 
law requires residential through-the-fence users to pay access charges 
comparable to on-airport tenants and users making similar use of the 
airport, the FAA may no longer entertain alternative financial 
methodologies.
    Changes: A bullet stating ``the new access agreement fully complies 
with the terms and conditions contained in section 136 of Public Law 
112-95'' has been added as a supplemental standard discussed in Section 
III. The bullet discussing access fees which recover airport costs has 
been deleted.
Revision of Description of FAA Compliance Guidance Letter
    The FAA anticipates issuing a draft Compliance Guidance Letter on 
FAA Review of Existing and Proposed Through-the-Fence Access 
Agreements. This title is slightly different than the title of the 
Compliance Guidance Letter previously issued on March 21, 2011.
    Changes: The title ``FAA Implementation and Review of Residential 
Through-the-Fence Access Arrangements'' has been replaced with ``FAA 
Review of Existing and Proposed Through-the-Fence Access Agreements'' 
in Section IV. All references to this Compliance Guidance Letter 
describe this document as a draft.
Additional Time To Establish Evidence of Compliance and Clarification 
of Due Date
    The FAA believes all airport sponsors with existing residential 
through-the-fence access should be afforded additional time to comply 
with the law. Therefore, the FAA is extending the timeframe for 
commercial service airports to establish evidence of compliance. All 
access plans will now be due beginning in Fiscal Year 2014.
    Changes: All references to ``2013'' have been replaced with 
``2014'' in Section IV and Section V. The explanation of the rolling 
due date contained in the interim policy has been deleted.
Incorporation of Amended Sponsor Assurance 29
    On April 13, 2012, the FAA amended sponsor assurance 29 to require 
all proposed and existing access points used to taxi aircraft across 
the airport property boundary be depicted on the ALP (77 FR 22376; 
April 13, 2012). The FAA is incorporating the amended assurance by 
clarifying that failure to depict all residential through-the-fence 
access points is a violation of the sponsor's grant assurances.
    Changes: The phrase ``may be considered an apparent violation of 
the sponsor's grant assurances'' has been replaced with ``is a 
violation of the sponsor's grant assurances'' in Section IV.
Actions Requiring Airport Sponsors To Update the Access Plan
    The FAA believes its description of actions triggering airport 
sponsors to update its access plan can be better refined. In addition, 
the FAA believes that the identification of a safety

[[Page 44519]]

concern should be listed as a new triggering event.
    Changes: The FAA proposes to define the actions requiring a 
commercial service airport sponsor to update its access plan to include 
development of a master plan or an update to an existing master plan, 
revisions to an ALP, requests for Federal participation in land 
acquisition, identification of a safety concern, or substantial changes 
to the access agreement in Section IV.
Airports Currently in Noncompliance
    The interim policy included language discussing the treatment of 
airport sponsors currently in noncompliance due to grant assurance 
violations associated with their residential through-the-fence access 
agreements. No sponsors of commercial service airports are currently in 
noncompliance due to grant assurance violations associated with their 
residential through-the-fence access agreements. Therefore, the FAA 
proposes to eliminate this paragraph from Section IV and renumber the 
subsequent paragraphs.
    Changes: The paragraph titled ``Airports in noncompliance'' and 
designated as paragraph A.5. in Section IV has been deleted. The 
paragraphs which follow have been renumbered accordingly.
Airports That Do Not Meet the Compliance Standards
    In its interim policy, the FAA proposed to analyze the role played 
by airports unable to meet the standard of compliance prior to 
determining the course of action to take. This included determining the 
role played by the airport in the National Plan of Integrated Airport 
Systems (NPIAS). Given the more limited applicability of the proposed 
policy to commercial service airports with existing residential 
through-the fence access, this analysis is no longer required. The role 
played by commercial service airports is defined in statute. Instead, 
the FAA proposes to consider a commercial service airport sponsor's 
inability to comply with the law and/or the standards of compliance as 
a militating factor in the FAA's review of any requests for 
discretionary AIP funding.
    Changes: Subparagraphs (a) and (b) of renumbered Section IV.A.5. 
have been deleted. The last sentence of paragraph (5) proposes that the 
FAA may consider a commercial service airport's inability to comply 
with the law and/or the minimum compliance standards as a militating 
factor in its review of requests for discretionary funding.

Proposed Final Policy on Existing Through-the-Fence Access From a 
Residential Property

    In consideration of the foregoing, the Federal Aviation 
Administration proposes the following Policy on existing through-the-
fence access to federally-obligated commercial service airports from 
residential property:

Proposed Final Policy on Existing Through-the-Fence Access to 
Commercial Service Airports From a Residential Property

Applicability

    This proposed final Policy applies to commercial service airports 
with existing residential through-the-fence access.
    For the purposes of this proposed final Policy:
    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 September 9, 
2010; or
    2. There was development of the property prior to 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 (ALP) or has otherwise been approved by the FAA in writing, 
and the owner of the property has used that access prior to September 
9, 2010.
    ``Extend an access'' is defined as an airport sponsor's consent to 
renew or extend an existing right to access the airport from 
residential property or property zoned for residential use, for a 
specific duration of time, not to exceed 20 years.
    ``Development'' is defined as excavation or grading of land needed 
to construct a residential property; or construction of a residence.
    ``Residential property'' is defined as a piece of real property 
used for single- or multi-family dwellings; duplexes; apartments; 
primary or secondary residences even when co-located with a hangar, 
aeronautical facility, or business; hangars that incorporate living 
quarters for permanent or long-term use; and time-share hangars with 
living quarters for variable occupancy of any term.
    ``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 Commercial Service Airports

    The agency understands that it may not be practical or even 
possible to terminate through-the-fence access at many of those 
commercial service 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 sponsors seeking to terminate this access 
could be exposed to costly lawsuits. Accordingly, the FAA will not 
consider the existence of existing residential through-the-fence access 
by itself to place a sponsor in noncompliance with its grant assurances 
at these commercial service airports.
    In some cases, the FAA has found that through-the-fence access 
rights can interfere with the sponsor's ability to meet its obligations 
as sponsor of a federally assisted public use airport. This is 
discussed in detail at 75 FR 54946, 54948 (Sept. 9, 2010). As a result, 
the FAA believes that sponsors of commercial service airports with 
existing through-the-fence access agreements must adopt measures to 
substantially mitigate the potential problems with residential through-
the-fence access where it exists to avoid future grant compliance 
issues. Therefore, the FAA, as a condition of continuing grants to 
commercial service airports with residential through-the-fence access, 
will require these sponsors adopt measures to substantially mitigate 
the potential problems with residential through-the-fence access to 
avoid future grant compliance issues.
    Accordingly, the sponsor of a commercial service 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 (ALP), satisfies 
the terms and conditions contained in section 136 of Public Law

[[Page 44520]]

112-95, and meets certain standards for safety, efficiency, parity of 
fees, and mitigation of potential noncompatible land uses. Those 
standards are listed in section II, Standards for compliance at 
commercial service airports with existing through-the-fence access. The 
FAA's review of those standards will be detailed in a Compliance 
Guidance Letter which will be issued, in draft form, concurrently and 
published on the FAA's Web site at www.faa.gov/airports. An airport 
sponsor covered by this proposed final Policy would be required to seek 
FAA approval before entering into any agreement that would extend 
(including renewal of access) through-the-fence access. Sponsors are 
reminded that nearby homeowners possess no right to taxi aircraft 
across the airport's property boundary, and no off-airport property 
owner will have standing to file a formal complaint under 14 CFR part 
16 with the FAA to challenge the sponsor's decision not to permit such 
access.

II. Standards for Compliance at Commercial Service Airports With 
Existing Through-the-Fence Access

    The FAA understands that municipally-owned airports have varying 
degrees of zoning authority. For example, one sponsor 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 sponsor of an 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 and satisfy the law, 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.
    In order to satisfy the law, the sponsor and the property owner or 
an association representing property owners must have a written 
agreement that requires the property owner to:
     Pay access charges that the sponsor determines to be 
comparable to those fees charged to tenants and operators on-airport 
making similar use of the airport;
     Bear the cost of building and maintaining the 
infrastructure the sponsor determines is necessary to provide access to 
the airfield from property located adjacent to or near the airport;
     Maintain the property for residential, noncommercial use 
(the FAA interprets this limitation as a prohibition on commercial 
aeronautical services only) for the duration of the agreement;
     Prohibit access to the airport from other properties 
through the property of the property owner (the FAA interprets this 
limitation as a prohibition on access to the airport not authorized by 
the airport sponsor); and
     Prohibit any aircraft refueling from occurring on the 
property (the FAA interprets this as a prohibition on the sale of fuel 
from residential property).
    The FAA's standards for compliance for any sponsor of a commercial 
service airport with existing residential through-the-fence access are 
as follows:
    1. General authority for control of airport land and access. The 
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. Parity of access fees. The sponsor can and does collect fees 
from through-the-fence users comparable to those charged to airport 
tenants.
    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 commercial service 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 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.
    In some cases, a sponsor may seek to relocate an existing access 
point. If the sponsor can demonstrate that this action will improve the 
airport's overall safety or better address issues associated with the 
sponsor's long-term planning needs, the FAA will not consider the 
access rights associated with the replacement access point to extend an 
access. In order to transfer the terms of the existing access point to 
a new access point without a change in compliance status, the former 
existing access point must be removed. Such requests should be 
coordinated with the FAA Airports District Office (ADO) or Regional 
Airports Division and clearly depicted on the sponsor's ALP.

III. Standards for Compliance at Commercial Service Airports Proposing 
To Extend Through-the-Fence Access

    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 
will review extensions of existing residential through-the-fence access 
at public use airports carefully.
    The following supplemental standards will be applied to the FAA's 
case-by-case review of sponsors' proposals to extend residential 
through-the-fence access. In situations when the transfer of access 
from one owner to another requires the sponsor's concurrence, the FAA 
will treat the access as an extension. The FAA will not approve 
requests to extend access that are inconsistent with the sponsor's 
grant assurances (excluding Grant Assurance 5, Preserving Rights and 
Powers, paragraph ``g'' as amended). Furthermore, the sponsor will be 
required to demonstrate the following standards for compliance:
     The new access agreement fully complies with the terms and 
conditions contained in section 136 of Public Law 112-95.
     The term of the access does not exceed 20 years.

[[Page 44521]]

     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 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.
     Through-the-fence residents utilizing this access will 
grant the sponsor a perpetual 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 and that aircraft noise and emissions 
may change over time.
     Through-the-fence residents utilizing this access have 
waived any right to bring an action against the sponsor for existing 
and future operations and activities 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 and complying with 
the FAA's determination related to the review of Form 7460-1.
     The sponsor has a mechanism for ensuring through-the-fence 
residents do not create or permit conditions or engage in practices 
that could result in airport hazards, including wildlife attractants.
     Where available, the 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 measure may not be available to the 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 sponsor as a third-party beneficiary, and may not be cancelled 
without cause by the community association.
     The access agreement is subordinate to the sponsor's 
current and all future grant assurances.
     The sponsor has developed a process for educating through-
the-fence residents about their rights and responsibilities.

IV. Proposed Process and Documentation

A. Existing Residential Through-the-Fence Access

    1. General. The sponsor of a commercial service 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 sponsor complies with the law and meets 
the applicable standards listed above under Standards for compliance at 
commercial service airports with existing residential through-the-fence 
access. The sponsor may demonstrate that it meets these standards by 
providing the ADO or regional division staff 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''). 
Sponsors are encouraged to review the FAA's draft Compliance Guidance 
Letter on FAA Review of Existing and Proposed Residential-Through-Fence 
Access Agreements, which will be issued concurrently with this notice, 
prior to submitting their access plan. This draft guidance letter may 
be found on the FAA's Web site at www.faa.gov/airports. The ADO or 
regional division will review each access plan, on a case-by-case 
basis, to confirm that it addresses how the sponsor complies with the 
law and meets each of these standards at its airport. The ADO or 
regional division will forward recommendations regarding each access 
plan to the Manager of Airport Compliance. Only the Manager of Airport 
Compliance may accept a commercial service airport sponsor's 
residential through-the-fence access plan. In reviewing the access 
plan, the Manager of Airport Compliance 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 the law and each of the basic requirements 
listed under section II of this proposed final Policy.
    2. Residential through-the-fence access plan. The FAA will require 
evidence of compliance before issuing an AIP grant, beginning in Fiscal 
Year 2014. FY 2014 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 sponsor 
until the FAA accepts the sponsor's access plan as meeting the law and 
the standards to the extent feasible for that airport.
    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 sponsor's 
pen and ink change to immediately identify the locations on the airport 
property that serve as points of access for off-airport residents. A 
formal ALP revision that fully depicts the scope of the existing 
residential through-the-fence agreements should be completed the next 
time the sponsor initiates an airport master plan study or update.
    A sponsor's failure to depict all residential through-the-fence 
access points is a 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 determination that the commercial service airport has met the 
law and compliance standards for existing residential through-the-fence 
access for a period not to exceed 20 years. The following actions will 
trigger a commercial service airport sponsor to update its access plan 
prior to its 20-year expiration: Development of a new master plan or an 
update to an existing master plan, significant revisions to an ALP, 
requests for Federal financial participation in land acquisition, 
identification of a safety concern, or substantial changes to the 
access agreement. A commercial service 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. Commercial Service Airports with existing residential through-
the-fence access that do not meet the compliance standards. The FAA 
recognizes that some commercial service airport sponsors may not be 
able to fully comply with the law and 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 sponsors have the capability to adopt measures to 
satisfy the compliance standards but have not done so. The FAA may 
consider a

[[Page 44522]]

commercial service airport sponsor's inability to comply with the law 
and/or the minimum compliance standards as a militating factor in its 
review of requests for discretionary funding.
    6. Commercial service airports that fail to submit an access plan. 
The FAA expects commercial service airport sponsors with existing 
residential through-the-fence access to develop an access plan which 
addresses the law, preserves their proprietary rights and powers, and 
mitigates the inherent challenges posed by this practice. Beginning in 
Fiscal Year 2014, a sponsor's failure to comply with the Policy may 
jeopardize its ability to compete for AIP grant funding.

B. Requests To Extend Residential Through-the-Fence Access at Airports 
Covered by This Proposed Final Policy

    As of the date of the enactment of Public Law 112-95 (February 14, 
2012), a sponsor of a commercial service airport proposing to extend an 
access agreement must submit a current airport master plan and a 
revised residential through-the-fence access plan as detailed below. 
The ADO or regional division will forward its recommendations regarding 
each request to extend access to the Manager of Airport Compliance. 
Only the Manager of Airport Compliance may approve a sponsor's request 
to extend access. In reviewing the proposal, the Manager of Airport 
Compliance may consult with the TSA.
    1. Master Plan. A sponsor of a commercial service airport wishing 
to extend an existing residential through-the-fence access agreement 
must submit a recent airport master plan to the ADO or regional 
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 20 years; sponsors should 
work with ADO or regional division staff to develop an appropriate 
scope of work for these master plans.
    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 proposed final Policy, to reflect how it will meet the 
standards for compliance for the extended access. Once the FAA has 
accepted the revised access plan, the FAA will condition future AIP 
grants upon its ongoing implementation.
    3. Continuing obligations. Once the revised access plan is accepted 
by the FAA, and if required, the revised ALP, is approved by the FAA, 
the sponsor must continue to comply with obligations described in 
section IV.A of this proposed final Policy.

V. Eligibility for AIP Grants

    A. General. Beginning in Fiscal Year 2014, a sponsor of a 
commercial service airport with existing residential through-the-fence 
access will be required to submit their residential through-the-fence 
access plan prior to notifying the FAA of its intent to apply for an 
AIP grant. The sponsor will not lose eligibility for entitlement grants 
on the basis of the through-the-fence access, but the FAA will consider 
the potential constraints on the utility of the airport to be a 
significant factor in future AIP funding decisions.
    B. Public infrastructure and facilities with substantial benefit to 
private through-the-fence users. The FAA may be unable to justify the 
federal investment in a proposed project when private residential 
developments with through-the-fence access will receive substantial 
value from that federally assisted airport infrastructure and/or 
facility.
    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.

    Issued in Washington, DC, on July 18, 2012.
Randall S. Fiertz,
Director, Airport Compliance and Management Analysis.
[FR Doc. 2012-18058 Filed 7-27-12; 8:45 am]
BILLING CODE 4910-13-P