Airport Improvement Program (AIP): Policy Regarding Access to Airports From Residential Property, 54946-54957 [2010-22095]
Download as PDF
54946
Federal Register / Vol. 75, No. 174 / Thursday, September 9, 2010 / Notices
Mr.
Thomas Yager, Chief, Driver and Carrier
Operations Division, Department of
Transportation, Federal Motor Carrier
Safety Administration, West Building
6th Floor, 1200 New Jersey Avenue, SE.,
Washington, DC 20590. Telephone:
202–366–4325; e-mail
tom.yager@dot.gov.
FOR FURTHER INFORMATION CONTACT:
SUPPLEMENTARY INFORMATION:
mstockstill on DSKH9S0YB1PROD with NOTICES
Background
Section 4007(b) of the Motor Carrier
Act of 1991 (Title IV of the Intermodal
Surface Transportation Efficiency Act of
1991 (ISTEA), Pub. L. 102–240, 105 Stat.
1914, 2152; 49 U.S.C. 31307) requires
the Secretary of Transportation to
establish Federal minimum training
requirements for drivers of LCVs. The
responsibility for implementing the
statutory requirement was subsequently
delegated to FMCSA (49 CFR 1.73). The
FMCSA, in a final rule entitled,
‘‘Minimum Training Requirements for
Longer Combination Vehicle (LCV)
Operators and LCV Driver-Instructor
Requirements’’ adopted implementing
regulations for minimum training
requirements for the operators of LCVs
(March 30, 2004; 69 FR 16722).
The 2004 final rule created an
information collection burden
concerning the certification of new,
current and non-grandfathered LCV
drivers. An LCV is any combination of
a truck-tractor and two or more semitrailers or trailers, which operates on the
National System of Interstate and
Defense Highways (as defined in 23 CFR
470.107) and has a gross vehicle weight
greater than 80,000 pounds. The
purpose of this rule is to enhance the
safety of LCV operations on our nation’s
highways.
By regulation, motor carriers cannot
allow a driver to operate an LCV
without ensuring that the driver has
been properly trained in accordance
with the requirements of 49 CFR
380.113. LCV drivers must present their
LCV Driver-Training Certificate to
prospective employers as proof of
qualification to drive LCVs. Motor
carriers must maintain a copy of the
LCV Training Certificate in order to be
able to show Federal, State or local
officials that drivers operating LCVs are
certified to do so.
Title: Training Certification for
Drivers of Longer Combination Vehicles.
OMB Control Number: 2126–0026.
Type of Request: Revision of a
currently-approved information
collection.
Respondents: Drivers who complete
LCV training each year, current LCV
drivers who submit the LCV Driver-
VerDate Mar<15>2010
18:49 Sep 08, 2010
Jkt 220001
Training Certificate to a prospective
employer, and motor carriers receiving
and filing the certificates.
Estimated Number of Respondents:
31,500 drivers and motor carriers (750
new LCV drivers plus 15,000 current
LCV drivers plus 15,750 motor carriers).
Estimated Number of Responses:
31,500 (750 new LCV drivers plus
15,000 current LCV drivers plus 15,750
motor carriers).
Estimated Time per Response: 10
minutes for preparation of LCV DriverTraining Certificate and an additional
10 minutes for the use of the LCV
Driver-Training Certificate during the
hiring process each year.
Expiration Date: February 28, 2011.
Frequency of Response: At various
times during the year.
Estimated Total Annual Burden:
2,750 hours. The total number of drivers
per year for whom this activity will
occur consists of newly-trained LCV
drivers (750) and current LCV drivers
changing employers (15,000), a total of
15,750 drivers. The total annual
information collection burden is
estimated to be 2,750 hours: Preparation
of LCV Driver-Training Certificate [750
newly trained LCV drivers × 10 minutes
÷ 60 minutes], and use of the certificate
during the hiring process [15,750 total
LCV drivers × 10 minutes ÷ 60 minutes]
Definitions: The LCV training
regulations under 49 CFR part 380 are
applicable only to drivers of ‘‘longer
combination vehicles,’’ defined as ‘‘any
combination of a truck-tractor and two
or more trailers or semi-trailers, which
operate[s] on the National System of
Interstate and Defense Highways
(defined in 23 CFR 470.107) with a gross
vehicle weight greater than 80,000
pounds’’ (49 CFR 380.105).
Public Comments Invited: You are
asked to comment on any aspect of this
information collection, including: (1)
Whether the proposed collection is
necessary for FMCSA’s performance; (2)
the accuracy of the estimated burden;
(3) ways for the FMCSA to enhance the
quality, usefulness, and clarity of the
collected information; and (4) ways that
the burden could be minimized without
reducing the quality of the collected
information. The Agency will
summarize or include your comments in
the request for OMB’s clearance of this
information collection.
Issued on: September 2, 2010.
Kelly Leone,
Director, Office of Information Technology.
[FR Doc. 2010–22458 Filed 9–8–10; 8:45 am]
BILLING CODE 4910–EX–P
PO 00000
Frm 00101
Fmt 4703
Sfmt 4703
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
[Docket No. FAA–2010–0831]
Airport Improvement Program (AIP):
Policy Regarding Access to Airports
From Residential Property
Federal Aviation
Administration (FAA).
ACTION: Notice of proposed policy;
notice of proposed amendment to
sponsor grant assurance 5; and request
for public comment.
AGENCY:
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 offairport 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; selfsustaining 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
SUMMARY:
E:\FR\FM\09SEN1.SGM
09SEN1
mstockstill on DSKH9S0YB1PROD with NOTICES
Federal Register / Vol. 75, No. 174 / Thursday, September 9, 2010 / Notices
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 https://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 https://
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
https://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:
randall.fiertz@faa.gov.
SUPPLEMENTARY INFORMATION:
VerDate Mar<15>2010
17:24 Sep 08, 2010
Jkt 220001
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 (https://
www.regulations.gov/search);
(2) Visiting the FAA’s Regulations and
Policies Web page at https://
www.faa.gov/regulations_policies; or
(3) Accessing the Government
Printing Office’s Web page at https://
www.gpoaccess.gov/.
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: https://
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
PO 00000
Frm 00102
Fmt 4703
Sfmt 4703
54947
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 runwaytaxiway 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.
E:\FR\FM\09SEN1.SGM
09SEN1
54948
Federal Register / Vol. 75, No. 174 / Thursday, September 9, 2010 / Notices
mstockstill on DSKH9S0YB1PROD with NOTICES
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-thefence 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 throughthe-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.
VerDate Mar<15>2010
17:24 Sep 08, 2010
Jkt 220001
• 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-thefence 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-thefence 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-thefence access is actually beneficial for an
airport. Some other commenters
recognized potential and actual
PO 00000
Frm 00103
Fmt 4703
Sfmt 4703
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 throughthe-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-thefence 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.
E:\FR\FM\09SEN1.SGM
09SEN1
mstockstill on DSKH9S0YB1PROD with NOTICES
Federal Register / Vol. 75, No. 174 / Thursday, September 9, 2010 / Notices
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-thefence 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
VerDate Mar<15>2010
17:24 Sep 08, 2010
Jkt 220001
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-thefence 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-thefence 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 throughthe-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,
PO 00000
Frm 00104
Fmt 4703
Sfmt 4703
54949
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 throughthe-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-thefence 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 selfsustaining 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-
E:\FR\FM\09SEN1.SGM
09SEN1
mstockstill on DSKH9S0YB1PROD with NOTICES
54950
Federal Register / Vol. 75, No. 174 / Thursday, September 9, 2010 / Notices
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-thefence 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 throughthe-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-thefence access by aircraft owners, the
properties will be bought by non-aircraft
VerDate Mar<15>2010
17:24 Sep 08, 2010
Jkt 220001
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 throughthe-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 throughthe-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 throughthe-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.
PO 00000
Frm 00105
Fmt 4703
Sfmt 4703
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 throughthe-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
E:\FR\FM\09SEN1.SGM
09SEN1
Federal Register / Vol. 75, No. 174 / Thursday, September 9, 2010 / Notices
mstockstill on DSKH9S0YB1PROD with NOTICES
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 throughthe-fence access, and require sponsors
to eliminate existing access.
• Allow States or airport sponsors to
decide, as a matter of State and local
VerDate Mar<15>2010
17:24 Sep 08, 2010
Jkt 220001
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-thefence 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-thefence communities sometimes attempt
to limit ownership to aircraft owners,
there is no very effective way to prevent
sale or lease of these properties to nonaircraft 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
PO 00000
Frm 00106
Fmt 4703
Sfmt 4703
54951
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 throughthe-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 throughthe-fence access expire, the sponsor
would be able to extend the rights for
fixed periods with FAA concurrence
E:\FR\FM\09SEN1.SGM
09SEN1
mstockstill on DSKH9S0YB1PROD with NOTICES
54952
Federal Register / Vol. 75, No. 174 / Thursday, September 9, 2010 / Notices
until there is a reason to terminate or
modify the access.
Once a sponsor’s residential throughthe 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 throughthe-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
VerDate Mar<15>2010
17:24 Sep 08, 2010
Jkt 220001
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 twoprong 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-thefence 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
PO 00000
Frm 00107
Fmt 4703
Sfmt 4703
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-thefence 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
E:\FR\FM\09SEN1.SGM
09SEN1
Federal Register / Vol. 75, No. 174 / Thursday, September 9, 2010 / Notices
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 throughthe-fence access; or
2. Subdivision, development, or sale
as individual lots of a residential
property or property zoned for
residential use with existing throughthe-fence access.
I. Existing Through-the-Fence Access
From Residential Property at Federally
Obligated Airports
mstockstill on DSKH9S0YB1PROD with NOTICES
Status of Existing Residential Throughthe-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.
VerDate Mar<15>2010
17:24 Sep 08, 2010
Jkt 220001
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-thefence 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
PO 00000
Frm 00108
Fmt 4703
Sfmt 4703
54953
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 throughthe-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 offairport 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.
E:\FR\FM\09SEN1.SGM
09SEN1
54954
Federal Register / Vol. 75, No. 174 / Thursday, September 9, 2010 / Notices
mstockstill on DSKH9S0YB1PROD with NOTICES
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-thefence 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-thefence 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-thefence 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
VerDate Mar<15>2010
17:24 Sep 08, 2010
Jkt 220001
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 Throughthe-Fence Access at Airports Covered by
This Policy
Once allowed, residential throughthe-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
PO 00000
Frm 00109
Fmt 4703
Sfmt 4703
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 throughthe-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
E:\FR\FM\09SEN1.SGM
09SEN1
Federal Register / Vol. 75, No. 174 / Thursday, September 9, 2010 / Notices
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
mstockstill on DSKH9S0YB1PROD with NOTICES
A. Existing Residential Through-theFence Access
1. General. The sponsor of an airport
with existing residential through-thefence 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-thefence 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-thefence 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
VerDate Mar<15>2010
17:24 Sep 08, 2010
Jkt 220001
sponsor’s access plan as meeting the
standards to the extent feasible for that
airport. Therefore, a residential throughthe-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 offairport 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
PO 00000
Frm 00110
Fmt 4703
Sfmt 4703
54955
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 nonprimary 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
E:\FR\FM\09SEN1.SGM
09SEN1
mstockstill on DSKH9S0YB1PROD with NOTICES
54956
Federal Register / Vol. 75, No. 174 / Thursday, September 9, 2010 / Notices
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-thefence 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 throughthe-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
VerDate Mar<15>2010
17:24 Sep 08, 2010
Jkt 220001
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-thefence 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 throughthe-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-thefence 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
PO 00000
Frm 00111
Fmt 4703
Sfmt 4703
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 throughthe-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 throughthe-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-thefence 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.
E:\FR\FM\09SEN1.SGM
09SEN1
Federal Register / Vol. 75, No. 174 / Thursday, September 9, 2010 / Notices
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
DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety
Administration
Qualification of Drivers; Exemption
Applications; Vision
Federal Motor Carrier Safety
Administration (FMCSA), DOT.
ACTION: Notice of denials.
AGENCY:
FMCSA announces its denial
of 97 applications from individuals who
requested an exemption from the
Federal vision standard applicable to
interstate truck and bus drivers and the
reasons for the denials. FMCSA has
statutory authority to exempt
individuals from the vision requirement
if the exemptions granted will not
compromise safety. The Agency has
concluded that granting these
exemptions does not provide a level of
safety that will be equivalent to, or
greater than, the level of safety
maintained without the exemptions for
these commercial motor vehicle (CMV)
drivers.
FOR FURTHER INFORMATION CONTACT: Dr.
Mary D. Gunnels, Director Medical
Programs, (202) 366–4001, U.S.
Department of Transportation, FMCSA,
1200 New Jersey Avenue, SE., Room
W64–224, Washington, DC 20590–0001.
Office hours are from 8:30 a.m. to 5 p.m.
Monday through Friday, except Federal
holidays.
SUPPLEMENTARY INFORMATION:
SUMMARY:
mstockstill on DSKH9S0YB1PROD with NOTICES
Background
Under 49 U.S.C. 31136(e) and 31315,
FMCSA may grant an exemption from
the Federal vision standard for a
renewable 2-year period if it finds ‘‘such
an exemption would likely achieve a
level of safety that is equivalent to, or
greater than, the level that would be
achieved absent such an exemption.’’
The procedures for requesting an
exemption are set forth in 49 CFR part
381.
Accordingly, FMCSA evaluated 97
individual exemption requests on their
merit and made a determination that
these applicants do not satisfy the
criteria eligibility or meet the terms and
conditions of the Federal exemption
program. Each applicant has, prior to
this Notice, received a letter of final
VerDate Mar<15>2010
17:24 Sep 08, 2010
Jkt 220001
disposition on his/her exemption
request. Those decision letters fully
outlined the basis for the denial and
constitute final Agency action. The list
published today summarizes the
Agency’s recent denials as required
under 49 U.S.C. 31315(b)(4) by
periodically publishing names and
reasons for denial.
The following 7 applicants lacked
sufficient driving experience during the
3-year period prior to the date of their
application:
Larry Cornelius, William M. Dunn,
Thomas C. Furcht, Michael E. Herrera,
Jr., William Moore, Steve Scriven,
Carey A. Willoughby
The following 15 applicants had no
experience operating a CMV:
Leon Andrews, Clay Burns, Tracy E.
Duke, James R. Gladden, Yi D. Guo,
Eric G. Harmann, Meridith J.
Karppinen, Jackson D. Mason,
Thomas G. Moffett, Kenneth Olsen,
Gabriel A. Oubre, Chris Patton, Carlos
Quezada, Angelina Rayes, David G.
Stringer
The following 27 applicants did not
have 3 years of experience driving a
CMV on public highways with the
vision deficiency:
James R. Bodine, Robert L. Borsh, Larry
E. Carter, Albert M. DiVella, Steven
Gahart, Martin E. Holden, Lee J.
Hollister, Steven M. Keller, Jr., Ray V.
Kuhaneck, Christopher Love, Frank S.
Martinez, William M. Mercer, Ronald
S. Milkowski, Noel V. Munoz, Curtis
A. Norris, John P. O’Day, William
Offord, Paul C. Pallini, Jerry L. Parks,
Douglas L. Peterson, Charles D.
Settles, Raeford W. Sink, William J.
Statts, Robert D. Swaite, Edwin
Treloar, Jr., Ronald Turner, Brent
Wheeler, Jr
The following 12 applicants did not
have 3 years of recent experience
driving a CMV with the vision
deficiency:
Ale Algarra, Lee S. Angelo, Eli J.
Borkholder, Steven Keyes, Scott
Murphy, Dennis R. Overman, Michael
J. Peschong, Harry W. Richards, David
Smith, Jeffrey M. Thorpe, Charles
Watts, Donald Wright
The following 10 applicants did not
have sufficient driving experience
during the past 3 years under normal
highway operating conditions:
Rick A. Ervin, Stephen P. Goodall, John
R. Kelly, Osvaldo R. Maldonado,
Frank G. Merrill, Alberto Mireles, Jr.,
Montie Price, Daniel R. Rosas, David
M. Sims, Stephen W. Verrette
One applicant, Albert D. Agardi, had
more than 2 commercial motor vehicle
PO 00000
Frm 00112
Fmt 4703
Sfmt 9990
54957
violations during the 3-year review
period and/or application process. Each
applicant is only allowed 2 moving
citations.
One applicant, William R. Hammond,
had commercial driver’s license
suspensions during the 3-year review
period for moving violations.
Applicants do not qualify for an
exemption with a suspension during the
3-year period.
One applicant, John L. Broadway, had
2 serious commercial motor vehicle
violations within a 3-year period. Each
applicant is only allowed a total of 2
moving citations, 1, which can be
serious.
One applicant, Kerrie L. Smith, did
not have verifiable proof of commercial
driving experience over the past 3 years
under normal highway operating
conditions that would serve as an
adequate predictor of future safe
performance.
The following 3 applicants did not
hold a license which allowed operation
of vehicles over 10,000 pounds for all or
part of the 3-year period:
Adam O. Carson, Joe H. Saine, Joseph
W. Schmit.
One applicant, James McKnight, did
not have an Optometrist/
Ophthalmologist willing to state that he
is able to operate a commercial vehicle
safely with his vision deficiency.
The following 10 applicants were
denied for miscellaneous/multiple
reasons:
Carl H. Block, Robert D. Fink, Felix M.
Gonzalez, William A. Green, Tina L.
Hernandez, Ramon L. Suarez,
Clarence Taylor, Reginald D. Taylor,
Ricky A. Teel, Jr., Cardell F. Thomas
One applicant, William A. Rochester,
was disqualified for holding 2
commercial driver’s licenses
simultaneously.
One applicant, Soledad R. Martinez,
did not meet the vision standard in his
better eye.
The following 6 applicants met the
current federal vision standards.
Exemptions are not required for these
applicants that meet the current
regulations for vision:
A. B. Brown, Ryan M. Cook, Brian R.
Hastins, Terry A. Jordan, Daniel
Provencio, Keith Snyder.
Issued on: August 28, 2010.
Larry W. Minor,
Associate Administrator for Policy and
Program Development.
[FR Doc. 2010–22538 Filed 9–8–10; 8:45 am]
BILLING CODE 4910–EX–P
E:\FR\FM\09SEN1.SGM
09SEN1
Agencies
[Federal Register Volume 75, Number 174 (Thursday, September 9, 2010)]
[Notices]
[Pages 54946-54957]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-22095]
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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 https://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
https://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
https://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:
randall.fiertz@faa.gov.
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 (https://www.regulations.gov/search);
(2) Visiting the FAA's Regulations and Policies Web page at https://www.faa.gov/regulations_policies; or
(3) Accessing the Government Printing Office's Web page at https://www.gpoaccess.gov/.
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:
https://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 pla