Airport Improvement Program (AIP): Policy Regarding Access to Airports From Residential Property, 42419-42430 [2013-16917]

Agencies

• Federal Aviation Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 78, Number 136 (Tuesday, July 16, 2013)]
[Rules and Regulations]
[Pages 42419-42430]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-16917]


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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Chapter I

[Docket No. FAA-2012-0754]


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

AGENCY: Federal Aviation Administration (FAA).

ACTION: Final Policy Statement.

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SUMMARY: This action adopts a Policy Statement, based on Federal law, 
concerning through-the-fence access to a federally-obligated airport 
from an adjacent or nearby property, when that property is used as a 
residence. This Policy Statement replaces FAA's previously published 
Interim Policy (76 FR 15028; March 18, 2011) with regard to commercial 
service airports, and establishes how FAA will implement section 136 of 
Public Law 112-95.

DATES: The effective date of this Final Policy is July 16, 2013.

FOR FURTHER INFORMATION CONTACT: Randall S. Fiertz, Director, Office of 
Airport Compliance and Management Analysis, Federal Aviation 
Administration, 800 Independence Avenue SW., Washington, DC 20591, 
telephone (202) 267-3085; facsimile: (202) 267-5257.

SUPPLEMENTARY INFORMATION:

Availability of Documents

    You can get an electronic copy of this Policy and all other 
documents in this docket using the Internet by:
    (1) Searching the Federal eRulemaking portal (https://www.regulations.gov/search);
    (2) Visiting 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 Management 
Analysis, 800 Independence Avenue SW., Washington, DC 20591, or by 
calling (202) 267-3085. Make sure to identify the docket number, notice 
number, or amendment number of this proceeding.

Authority for the Policy

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

Background

    Detailed background regarding FAA's development of Policy documents 
specific to through-the-fence access to federally obligated airports 
from adjacent or nearby property, when that property is used as a 
residence, is available at:
     75 FR 54946; September 9, 2010;
     76 FR 15028; March 18, 2011; and
     77 FR 44515; July 30, 2012.
    On February 14, 2012, FAA Modernization and Reform Act of 2012 
(FMRA) was signed into law (Pub. L. 112-95). Section 136 of this law 
permits general aviation airports, as defined by the statute, to enter 
into residential through-the-fence agreements with property owners or 
associations representing property owners. This must be a written 
agreement that requires the property owner to:
     Pay access charges that the sponsor determines to be 
comparable to those fees charged to tenants and operators on-airport 
making similar use of the airport;
     Bear the cost of building and maintaining the 
infrastructure the sponsor determines is necessary to

[[Page 42420]]

provide access to the airfield from property located adjacent to or 
near the airport;
     Maintain the property for residential, noncommercial use 
for the duration of the agreement;
     Prohibit access to the airport from other properties 
through the property of the property owner; and
     Prohibit any aircraft refueling from occurring on the 
property.
    In order to implement this law, FAA amended the grant assurances 
(77 FR 22376; April 13, 2012). Among the modifications, paragraph g of 
Grant Assurance 5, Preserving Rights and Powers, was amended to clarify 
that sponsors of commercial service airports are not permitted to enter 
into residential through-the-fence arrangements. However, sponsors of 
general aviation airports may enter into such an arrangement if the 
airport sponsor complies with the requirements of section 136 of P.L. 
112-95 and the grant assurances. In addition, Grant Assurance 29, 
Airport Layout Plan, was amended to require all proposed and existing 
access points used to taxi aircraft across the airport property 
boundary be depicted on the airport layout plan (ALP).
    A complete list of the current grant assurances can be viewed at: 
https://www.faa.gov/airports/aip/grant_assurances/.
    On July 30, 2012, FAA published its interpretation of section 136 
of Public Law 112-95 and its Proposed Policy on Existing Through-the-
Fence Access to Commercial Service Airports From A Residential Property 
(77 FR 44515; July 30, 2012). The FAA invited public comment on both 
the Proposed Policy and its interpretation of the law for 30 days. At 
the request of an aviation membership association, FAA extended this 
comment period for an additional two weeks.

Comments Received on the Notice and Proposed Policy

    The FAA received 84 comments from individuals, including private 
homeowners with current through-the-fence access to an airport, 
industry associations, companies, a state aviation department, a county 
airport manager, and a state legislator. Half of the comments submitted 
expressed generally negative views about FAA's proposed interpretation 
of the law, but were not specific and did not recommend any changes for 
FAA to consider. Instead, these comments discussed what the submitters 
described as benefits of having aircraft owners live near airports. 
Approximately 21 commenters raised objections to what they perceived as 
a 20-year limit on the duration of residential through-the-fence access 
agreements at general aviation airports, and FAA's requirement that 
airport sponsors demonstrate evidence of compliance prior to entering 
into new agreements. Two commenters shared their positive experiences 
as residential through-the-fence users. Two commenters expressed 
support for the interpretations made by FAA, especially with regard to 
self-fueling. The FAA will respond to specific comments submitted by 
organizations and individuals in the discussion below.

Aircraft Owners and Pilots Association

    The Aircraft Owners and Pilots Association (AOPA) appreciated FAA's 
narrow interpretation related to self-fueling and commercial 
aeronautical activities. AOPA recommended maintaining consistency with 
regard to the dates presented in the Compliance Guidance Letter noting 
that FAA alternatives between September 30, 2012 and the phrase 
``beginning in Fiscal Year 2014''. AOPA also recommended sunsetting FAA 
headquarters' review of residential through-the-fence access agreements 
as described in section V of the Compliance Guidance Letter. The 
Experimental Aircraft Association (EAA) expressed similar comments.
    The FAA agrees that it should be consistent with regard to the date 
upon which evidence of compliance will be required and has amended the 
Compliance Guidance Letter to specify ``October 1, 2014'' in all places 
it is referenced.
    AOPA, as well as other commenters, misinterpret the process for 
reviewing existing and new residential through-the-fence access 
agreements as discussed in the Compliance Guidance Letter. Section 
IV.A.3.a states, ``Regional Offices will determine if access agreements 
submitted by sponsors of general aviation airports and privately-owned 
reliever airports effectively address the terms and conditions 
contained in P.L. 112-95.'' The Office of Airport Compliance in 
Washington headquarters will only review a residential through-the-
fence access agreement for a general aviation airport with existing 
access when the Regional Office expresses concern that the agreement 
does not meet the statutory requirements contained in the law. Under 
section V.C, sponsors of general aviation airports proposing to 
establish new residential through-the-fence access agreements may 
request the Office of Airport Compliance to review their proposed 
agreement only in the event that the Regional Office rejects it. The 
FAA recognizes that several readers found this process to be unclear 
and has clarified this language in the Compliance Guidance Letter. In 
most cases of establishing residential through-the-fence access at 
general aviation airports, the role of the Office of Airport Compliance 
will be to monitor this activity.

Experimental Aircraft Association

    Overall, EAA found that the new Policy meets the needs of the 
general aviation community. EAA expressed support for FAA's 
interpretations regarding self-fueling and aeronautical commercial 
activities, but offered a series of recommendations which include:
     Maintaining consistency with regard to the dates presented 
in the Compliance Guidance Letter;
     Clarifying that FAA has not imposed any limitation on the 
duration of access agreements at general aviation airports;
     Allowing AIP funding for specific costs associated with 
relocating a residential through-the-fence access point to facilitate 
safety, security, or long-term planning needs;
     Permitting new residential through-the-fence access 
agreements at commercial service airports and privately-owned reliever 
airports, but requiring more rigid FAA, Transportation Security 
Administration (TSA), and airport sponsor security and safety 
standards;
     Establishing a three-year sunset provision to streamline 
the approval of residential through-the-fence access agreements for 
general aviation airports at the Airports District Office (ADO) level, 
but require Regional Office concurrence for agreements at reliever 
(publically-owned and privately-owned) and commercial service airports;
     Clarifying the terms ``adjacent to'' and ``near the 
airport'';
     Clarifying the ADO, Regional Office, and Office of Airport 
Compliance access plan review timeframes; and
     Recognizing the uniqueness of aviation in Alaska.
    EAA's positions were supported by an individual commenter.
    The FAA agrees that it can be more transparent regarding the fact 
that its Policy Statement does not limit the duration of new 
residential through-the-fence access agreements. An additional 
paragraph has been added under sections III and IV of the Compliance 
Guidance Letter to clarify this issue.
    EAA incorrectly assumes FAA's Policy for commercial service 
airports,

[[Page 42421]]

which permits airport sponsors to relocate existing access points 
without submitting a proposal to extend its existing access, is linked 
to an AIP funding decision. The language in section II of the Final 
Policy On Existing Through-the-Fence Access From A Residential Property 
was a comment received prior to the publication of FAA's Interim 
Policy. (See 76 FR 15028; 15032 (March 18, 2011)) The commenter 
proposed that an airport sponsor should not be required to update its 
access plan or meet supplemental standards if it negotiated with its 
residential through-the-fence users to relocate an already existing 
access point to another location on the airport's boundary in order to 
address a specific need at the airport. The FAA agreed this was a 
reasonable solution and amended the Interim Policy accordingly.
    In addition, FAA notes that any decision to relocate an access 
point would be initiated by the airport sponsor, not FAA. As such, it 
would be up to the airport sponsor to identify an appropriate source of 
funding for the costs associated with the relocation. Costs associated 
with on-airport infrastructure and facilities used exclusively or 
primarily for the accommodation of residential through-the-fence users 
are considered private-use and remain ineligible for AIP funding.
    The FAA disagrees with EAA's recommendation to permit new 
residential through-the-fence access agreements at privately-owned 
reliever airports and commercial service airports. Similar comments 
were submitted by numerous individuals who stated that prohibiting 
privately-owned reliever airports from entering into new residential 
through-the-fence access agreements violates the spirit and intent of 
the law. Some commenters stated that FAA had not identified any 
privately-owned relievers with existing residential through-the-fence 
access agreements at the time the law was written.
    The FAA will respond to all of these comments here. House Report 
112-381 does not provide any explanation regarding Congress' intent of 
this provision. Therefore, FAA must rely on a plain reading of the 
language. The provision is narrowly drafted to apply to ``general 
aviation airports'' only. Prior to the passage of Public Law 112-95, no 
statutory definition for ``general aviation airports'' existed. The 
definition included in this law and now codified at title 49, U.S.C. 
47102(8) excludes privately-owned reliever airports. The FAA raised 
concerns regarding the definition of ``general aviation airports'' with 
the Congressional Committee prior to passage of the law because FAA was 
aware of both privately-owned reliever airports and commercial service 
airports with existing residential through-the-fence access. While FAA 
will grandfather seven privately-owned reliever airports with existing 
residential through-the-fence access agreements under the Policy 
Statement for general aviation airports, FAA will apply the law as it 
is written with regard to new agreements. The FAA has proposed a 
separate Policy for the four commercial service airports with existing 
residential through-the-fence access which is adopted without 
substantive change in this notice.
    The FAA declines to clarify the terms ``adjacent to'' or ``near the 
airport.'' Section 136 of Public Law 112-95 does not define these terms 
and implies it is within the airport sponsor's discretion to determine 
what constitutes a real property ``adjacent to'' or ``near the 
airport'' and requiring access to the airfield.
    EAA notes that the Compliance Guidance Letter encourages ADOs and 
Regional Offices to complete their review of existing residential 
through-the-fence access agreements at general aviation airports within 
60 days, but provides additional time for general aviation airports 
proposing new residential through-the-fence access agreements. The FAA 
believes this is appropriate. The FAA's acceptance of a new residential 
through-the-fence access agreement requires FAA to review an updated 
ALP. It is FAA's experience that approval of an updated ALP is based on 
the scope, detail, and quality of each submission. As such, FAA is not 
inclined to shorten the target review periods as proposed.
    The FAA acknowledges EAA's comments regarding the uniqueness of 
aviation in Alaska. The FAA reiterates its desire to take a more 
flexible approach with existing residential through-the-fence access 
agreements. However, section 136 of Public Law 112-95 does not specify 
a more lenient posture toward Alaskan airports with regard to the terms 
and conditions it requires residential through-the-fence access 
agreements to meet.

Independence Airpark Homeowners Associations

    The Independence Airpark Homeowners Associations submitted separate 
comments and indicated their support for the comments and conclusions 
provided by EAA. The following comments were presented by the 
Independence Airpark Homeowners Associations:
     The intent of Congress was fairly simple, but FAA has 
added significant complexity along with associated opportunities for a 
lot of subjective determination by requiring things in addition to what 
is contained in the law;
     The requirement that new residential through-the-fence 
access agreements be pre-certified is not in the law and is 
unnecessarily wasteful for both Federal and local resources;
     It's unrealistic to exclude future airport improvements 
and changes required by regulations to be excluded from AIP funding; 
and
     The FAA is not taking a pro-active approach in local land 
use planning and zoning activities as a means to protect the national 
airport system and help local economic development offices attract new 
aviation related businesses which may want to be located adjacent to 
existing airports where land was available and appropriately zoned for 
their use.
    The FAA is proposing to interpret section 136 in a manner that 
improves transparency and reduces the potential for severe 
infringements on rights to use private property for self-fueling and 
nonaeronautical commercial services. The tool that airport sponsors and 
FAA employees will use to verify that existing residential through-the-
fence access agreements comply with the law, the Access Agreement 
Review Sheet which is included in FAA's Compliance Guidance Letter as 
Appendix C, is limited to the terms and conditions contained in the 
law.
    Numerous commenters, in addition to the Independence Airpark 
Homeowners Associations, objected to the language in the Policy 
Statement requiring general aviation airport sponsors proposing to 
establish new residential through-the-fence access agreements to 
provide evidence of compliance prior to executing an agreement with a 
residential user and/or homeowners association.
    While the law does not require airport sponsors to demonstrate 
their compliance with the terms and conditions contained in section 136 
prior to entering into the agreement, FAA believes this is an important 
safeguard for both the airport sponsor and the residential through-the-
fence user. If an airport sponsor enters into a residential through-
the-fence access agreement which does not comply with the terms and 
conditions included in the law, and cannot be re-negotiated to comply, 
FAA may be placed in a position where it needs to initiate a compliance 
action against the sponsor. A finding of noncompliance could result in 
the withholding of Federal AIP

[[Page 42422]]

funds from the airport sponsor. This has the potential to 
disproportionately impact residential through-the-fence users who could 
be asked to bear a higher burden of the airport's costs or find the 
value of their residential property linked to an airport struggling to 
address its infrastructure development and maintenance needs.
    The FAA anticipates that most homeowners seeking to establish a 
residential through-the-fence access agreement will desire a lengthy or 
perpetual term. Airport sponsors should insist on strong and effective 
subordination clauses as part of the access agreement as an appropriate 
means to reserve the right to correct any matters of noncompliance 
after the agreement is executed. The FAA seeks to avoid sponsor 
noncompliance and believes the best use of Federal resources would be 
applied to ensuring airport sponsors comply with the law prior to 
executing an agreement. With that said, FAA is amending its 
interpretation of the law to state that airport sponsors of general 
aviation airports proposing to establish new or add new residential 
through-the-fence agreements must provide evidence of compliance prior 
to establishing the access point. This will not preclude a general 
aviation airport sponsor from executing a new residential through-the-
fence agreement with a residential user and/or association representing 
residential users prior to FAA reviewing the proposed agreement and 
approving amendment of the ALP. However, the airport sponsor would do 
so at its own risk and would not be permitted to establish the access 
point until the updated ALP is approved. FAA employees would be 
precluded from approving the ALP until they have verified the agreement 
will comply with the law. The FAA has made corresponding revisions to 
the Compliance Guidance Letter.
    FAA Order 5100.38C, Airport Improvement Program Handbook, contains 
numerous restrictions against using AIP funds for on-airport 
infrastructure that will be used for the exclusive or near exclusive 
use of an air carrier, fixed base operator, or tenant. Limiting future 
airport improvements to projects related to general public demand at 
the airport is not inconsistent with the definition of ``airport 
development'' which is codified at title 49, U.S.C. 47102(3). As noted 
above, the Independence Airpark Homeowners Associations also expressed 
concern that FAA is not taking a pro-active approach in local land use 
planning and zoning activities as a means to protect the national 
airport system and help local economic development offices attract new 
aviation related businesses which may want to be located adjacent to 
existing airports where land was available and appropriately zoned for 
their use. The Federal Government lacks the authority to regulate local 
land use. Land use zoning is the responsibility of state and/or local 
authorities.
    Section 136 of Public Law 112-95 deals solely with agreements that 
grant a person that owns residential real property adjacent to or near 
the airport access to the airfield. See 49 U.S.C. 47107(t)(2)(B)(iii). 
(``An agreement described in paragraph (1) between an airport sponsor 
and a property owner . . . shall require the property owner, at a 
minimum . . . to maintain the property for residential, noncommercial 
use, for the duration of the agreement . . . .'') The FAA lacks 
sufficient information to determine how its implementation could be 
used to facilitate local land use planning and zoning.

National Air Transportation Association

    The National Air Transportation Association (NATA) offered comments 
which generally concurred with FAA's interpretation of section 136 of 
Public Law 112-95. NATA supports FAA's desire to review new residential 
through-the-fence access agreements before they are executed and notes, 
``after-the-fact reviews of signed RTTF agreements present no pathways 
to compliance . . .'' However, NATA felt that FAA's interpretation on 
commercial activities is not specific enough because it could still 
permit the homeowner to allow a third party to offer a commercial 
aeronautical service on their property. NATA requested FAA modify this 
interpretation to indicate that allowing public use of the property to 
receive commercial aeronautical services would be a violation of the 
terms and conditions set forth in the law. Additionally, NATA, like 
AOPA and EAA, also recommended review of new residential through-the-
fence access agreements be transitioned to the ADOs or Regional 
Offices.
    The FAA agrees that it can be more specific regarding its 
interpretation of the limitation on commercial activities. The FAA has 
amended its Policy Statement on section 136 and the Compliance Guidance 
Letter to prohibit the property owner from allowing any third party to 
offer commercial aeronautical services from the residential property 
covered by a residential through-the-fence access agreement.

Oregon Department of Aviation

    A number of commenters, including the Oregon Department of Aviation 
(Department), stated their view that the FAA over-reached the intent of 
Congress and questioned why FAA did not better address security and TSA 
concerns about access to restricted parts of airports. Specifically, 
the Department believes that restrictions imposed by FAA will have a 
chilling effect and states:
     No other grant assurance requires FAA headquarters level 
pre-approval of a signed agreement;
     The change to Grant Assurance 29, Airport Layout Plan, 
should remain permissive;
     Using safety as a triggering event for a sponsor to update 
its access plan is vague, but implies that the very nature of 
residential through-the-fence use may subjectively be the cause of any 
safety issue and might be used as a reasoning to prevent or find fault 
with a residential through-the-fence access agreement; and
     The 20-year limit on reviewing access agreements imposes 
an artificial limit on the access agreement.
    The Department's comments conclude by discussing their positive 
experience with residential through-the-fence agreements and encourage 
FAA to regulate the activity in a pragmatic and reasonable way that 
reflects an understanding that one size does not fit all. Oregon State 
Senator Betsy Johnson submitted a letter in support of the Department's 
comments.
    The FAA disagrees with the sentiment expressed by the Department 
and believes its overall approach provides the flexibility to address 
unique situations at individual airports. The FAA is limiting its 
review of residential through-the-fence access agreements at general 
aviation airports to the criteria specified in section 136 of Public 
Law 112-95. In addition, FAA has clearly defined the scope of its 
review of requirements related to fueling and commercial activities on 
residential property.
    The FAA consulted with TSA during the development of the Interim 
Policy which now forms the basis for the Final Policy On Existing 
Through-the-Fence Access To Commercial Service Airports From A 
Residential Property. Additionally, the Final Policy permits FAA to 
consult with TSA prior to accepting an access plan from a commercial 
service airport. Section 136 of Public Law 112-95 does not include any 
terms or conditions related to security, so FAA will not review 
security related matters when verifying

[[Page 42423]]

that residential through-the-fence agreements comply with the law. 
However, this does not preclude TSA from initiating its own review.
    The FAA published a Federal Register notice announcing revisions to 
the grant assurances and seeking comment on April 13, 2012 (77 FR 22376 
(April 13, 2012)). No comments were received. Grant Assurance 29 was 
clarified to specifically include ``all proposed and existing access 
points used to taxi aircraft across the airport's property boundary'' 
as an item required to be depicted on the sponsor's Airport Layout 
Plan. The Compliance Guidance Letter, at section X.D, states, 
``establishing a new access point not depicted on an FAA-approved ALP 
may result in a violation of Grant Assurance 29 . . .'' The FAA 
believes the Department's concerns regarding Grant Assurance 29 are 
addressed through the language in the Compliance Guidance Letter.
    The FAA disagrees with the Department's assessment regarding the 
inclusion of safety as an event which triggers a commercial service 
airport to update its access plan. Given the limited number of airports 
impacted by the Final Policy, combined with knowledge of safety issues 
associated with the residential through-the-fence access points, FAA 
believes identification of a safety concern should remain a triggering 
event for commercial service airports with existing residential 
through-the-fence access agreements. The FAA notes that the terms and 
conditions contained in section 136 of Public Law 112-95 do not address 
safety concerns, and therefore FAA is not requiring any additional 
safety reviews when reviewing residential through-the-fence access 
agreements for compliance with the law.
    The FAA disagrees with the Department's assessment that 
establishing a 20-year limit on review of residential through-the-fence 
access agreements at general aviation airports effectively imposes an 
artificial limit on the access agreement. Similar comments were 
submitted by the Tuolumne County Airports Manager. Neither the law, nor 
FAA's guidance imposes a limitation on the duration of a residential 
through-the-fence access agreement at a general aviation airport. The 
Department's recommendation that future reviews follow standard airport 
inspection practices is not practical due to the limited number of 
general aviation airports inspected by FAA annually through its land 
use inspection process--less than 20. The twenty-year review 
requirement is consistent with airport planning horizons and is not 
burdensome for the airport sponsor.

Washington Airport Management Association

    The Washington Airport Management Association (WAMA) was generally 
supportive of the Policy and certain elements contained in the law. 
However, WAMA expressed concern that without some limitations on future 
through-the-fence locations or a strong policy position to discourage 
residential growth adjacent to airports that incompatible development 
will continue to erode and impact airport operations as well as degrade 
quality of life. WAMA encouraged provisions be put in place to require 
planning for future public use hangars and tie-down locations on-
airport to avoid unfettered growth of through-the-fence at general 
aviation airports. In addition, WAMA recommended FAA subject existing 
and new residential through-the-fence agreements to standards similar 
to those required of commercial service airports by rule or adoption of 
best management practices, and cautioned that failure to adequately 
address such issues could result in higher future public costs on 
airport expansion.
    While WAMA raises very valid points with regard to airport 
planning, FAA believes the law limits its review of new residential 
through-the-fence agreements to a narrow scope. The FAA will strongly 
encourage airport sponsors contemplating such agreements to engage in 
planning studies to identify potential on-airport needs. However, FAA 
cannot require these sponsors to do so. One of the goals stated in 
FAA's Interim Policy was its desire to use the access plans to identify 
best management practices and recommendations. In light of the adoption 
of Public Law 112-95, FAA's knowledge in this area remains limited.

Comments Submitted by Individuals

    Comment: Two commenters inquired as to what will occur after the 
30-day comment period is over.
    Response: FAA initially established a 30-day comment period in 
order to apprise the public of its plans for implementing section 136 
of Public Law 112-95 and its intent to alter and finalize its 
previously issued Interim Policy. This comment period was extended by 
two weeks at the request of an aviation membership association. The FAA 
sought to balance the opportunity for public comment with the Agency's 
desire to move forward with implementation. The FAA has deferred its 
review of any proposals to establish new residential through-the-fence 
access arrangements pending the completion of this Policy Statement and 
associated guidance. The FAA is now prepared to review these requests 
in a consistent manner.
    Comment: The law does not limit residential through-the-fence 
agreements to 20 years.
    Response: The FAA agrees that the law does not set any time limit 
on the duration of residential through-the-fence access agreements at 
general aviation airports, as defined by the statute. The FAA notes 
that it is not proposing any such limit at these airports. The FAA 
believes these commenters confused either FAA's Proposed Final Policy 
for commercial service airports with its approach to airports covered 
by the statute or the language in the draft Compliance Guidance Letter 
stating that FAA's review of an access agreement is valid for a period 
not to exceed 20 years or until a triggering event occurs. The FAA has 
added a paragraph to section III and a footnote to section IV of the 
Compliance Guidance Letter to clarify this issue.
    Comment: Including the statement, ``going forward, the FAA expects 
sponsors of general aviation airports proposing to establish new or add 
new residential through-the-fence agreements to comply with the terms 
and conditions of the law'' infers that current agreements have been 
illegal. Other commenters referred to this language as ambiguous and 
confusing.
    Response: The FAA did not intend to infer that existing agreements 
have been illegal, nor did it intend to be ambiguous or confuse 
readers. With that said, FAA is aware of existing residential through-
the-fence access agreements which may not presently fulfill the terms 
and conditions included in section 136 of the law. In fact, some 
commenters, such as the Tuolumne County Airports Manager, raised these 
issues in their submissions to the docket. The FAA reiterates its 
desire to address such situations on a case-by-case basis and report 
these issues to interested Congressional Committees.
    Comment: The FAA is adding additional requirements to regulate.
    Response: When reviewing residential through-the-fence access 
agreements for general aviation airports, FAA is only reviewing the 
agreement to ensure it complies with the terms and conditions of the 
law. The Final Policy for commercial service airports includes other 
factors not included in the law, such as safety of airport operations. 
The law is silent with regard to airports not meeting the definition of 
general

[[Page 42424]]

aviation airport, and FAA is finalizing its previously published 
Interim Policy to address commercial service airports.
    Comment: The language requiring residential through-the-fence users 
to bear the cost of building and maintaining the infrastructure the 
sponsor determines necessary to provide access to the airfield from the 
property located adjacent to or near the airport is too open-ended. An 
airport sponsor could dictate that access be via gold lined taxiways.
    Response: This language is taken directly from the law. The FAA 
believes airport sponsors and potential residential through-the-fence 
access users will negotiate this matter reasonably.
    Comment: Language in the Proposed Final Policy On Existing Through-
the-Fence Access To Commercial Service Airports From A Residential 
Property related to supplemental standards for commercial service 
airport sponsors proposing to extend their existing agreements is too 
open-ended. The commenter refers to requiring through-the-fence users 
to acknowledge that their property will be affected by aircraft noise 
and emissions which may change over time and waiving any right to bring 
an action against the sponsor for existing and future operations and 
activities at the airport associated with aircraft noise and emissions. 
The commenter states that such an agreement would allow the use of the 
airport for a nighttime war exercise or permitting all regional flight 
schools to use one airport to conduct intrusive operations. Another 
commenter refers to this language and states that the law does not 
favor a priori waiver of the legal right to sue. Other comments on the 
supplemental standards included objections to enforcing safety and 
operating rules on through-the-fence users identical to on-airport 
users and the sponsor's ability to limit future use and ownership of 
through-the-fence property to aviation-related uses.
    Response: The FAA believes these are prudent commitments to 
memorialize in an agreement proposing to extend residential through-
the-fence access at commercial service airports now covered by this 
Final Policy. The use of broad waivers was recommended to FAA by 
individuals and communities advocating in support of residential 
through-the-fence access agreements during discussions with FAA in 
2010. By statute, commercial service airports with more than 10,000 
annual passenger boardings are apportioned a minimum of $1 million 
annually in AIP funding. The FAA seeks to ensure that extending a 
residential through-the-fence agreement will not limit investments made 
at the airport. It's also important to note that nothing in section 136 
alleviates a federally-obligated airport sponsor's obligation to make 
the airport available for public use on reasonable terms and without 
unjust discrimination to all types, kinds and classes of aeronautical 
activities.
    Comment: It makes no sense to ``save'' unused, available adjoining 
land for imagined airport growth when a through-the-fence development 
is an actual and existing demand for airport use.
    Response: The FAA does not require airport sponsors to ``save'' 
adjoining land; FAA supports planning through the use of master 
planning and forecast demand studies. The FAA encourages airport 
sponsors to address existing demand for airport use on the airport when 
possible. In addition, FAA encourages airport sponsors to ensure that 
adequate areas to accommodate forecasted aeronautical growth be 
identified. An airport sponsor may be limited in its ability to acquire 
additional land needed for commercial aeronautical services if adjacent 
properties are used primarily for residential purposes. Adjacent 
properties used primarily for residential through-the-fence purposes 
are not aeronautical development; FAA's focus is on-airport 
aeronautical development, and the Agency is concerned when off-airport 
development degrades the aeronautical utility of an airport.
    Comment: Requiring residential owners to pay a comparable fee to 
access and maintain the airport is inequitable. The commenter explains 
that his airport currently has no ``airport'' tenants except gliders 
who are not paying a fair lease rate, and that through-the-fence 
commercial owners pay fees. Another commenter objected to the 
``parity'' of costs and claims it would be a taking.
    Response: The law requires residential through-the-fence users to 
pay access charges that the sponsor determines comparable to those fees 
charged to tenants and operators on-airport making similar use of the 
airport. The FAA recognizes that it may need to assist some airport 
sponsors in achieving compliance with the law. The FAA will work 
directly with these airport sponsors as these issues are identified.
    Comment: Three commenters raised concerns related to commercial 
through-the-fence operations. The Aviation Professionals Group 
requested FAA include language stating that past, present, and future 
commercial through-the-fence decisions and rulings will be no more 
adverse to this policy for a commercial property than had it been a 
residential property in compliance with the law. Another commenter 
described the non-residential off-airport hangar he uses and asked FAA 
to modify its Policy to address this use. A third commenter asked FAA 
to consider changing its rules to allow industrial or service/
distribution companies to have similar access.
    Response: The FAA appreciates the opportunity to clarify its views 
on commercial through-the-fence activities which is discussed in FAA 
Order 5190.6B, Airport Compliance Manual, in chapter 12. The grant 
assurances do not prevent an airport sponsor from entering into 
commercial through-the-fence access agreements, and FAA does not 
prohibit such agreements outright. However, FAA strongly cautions 
airport sponsors to research such agreements to ensure they will not 
inadvertently result in a violation of the airport sponsor's Federal 
obligations. In addition, FAA discourages airport sponsors from 
entering into through-the-fence agreements with commercial service 
providers (including aircraft storage) that intend to compete with an 
on-airport service provider.
    The FAA is not proposing to alter or change this guidance with the 
exception of arrangements which currently co-mingle commercial and 
residential activities. Going forward, airport sponsors will need to 
determine if the potential through-the-fence user is proposing a 
commercial activity (including aircraft storage) or a residential use. 
Section 136 of P.L. 112-95 requires residential through-the-fence 
access users to maintain their property for residential, noncommercial 
use for the duration of the agreement, and FAA is interpreting this as 
a limitation on commercial aeronautical activities only.
    Comment: One comment states that ``residential property'' is not 
defined and questions if an empty lot is a residential property.
    Response: The draft Compliance Guidance Letter on FAA Review of 
Existing and Proposed Residential Through-the-Fence Access Agreements 
includes a definition of ``residential property.'' It defines 
residential property as a piece of real property used for single- or 
multi-family dwellings; duplexes; apartments; primary or secondary 
residences even when co-located with a hangar; hangars that incorporate 
living quarters for permanent or long-term use; and time-share hangars 
with living quarters for variable occupancy of any term. An empty lot 
would likely not qualify as

[[Page 42425]]

residential property unless the airport sponsor certified it as 
existing access in response to the definition included in FAA's Interim 
Policy On Existing Through-the-Fence Access From A Residential 
Property. Such a distinction would no longer be relevant to a general 
aviation airport as sponsors of these airports may now enter into new 
residential through-the-fence agreements.
    Comment: The FAA's proposal to use ``appropriate mitigations'' to 
assist some sponsors in complying with the terms and conditions of the 
law needs limitations and definitions consistent with the law.
    Response: Flexibility has been a basic premise reflected in FAA's 
previous Policy documents on residential through-the-fence access. The 
codification of specific terms and conditions on these agreements has 
limited FAA's ability to be more flexible with sponsors whose 
agreements have ceded important rights and powers. The FAA reiterates 
its intent to address these situations on a case-by-case basis and 
report these issues to interested Congressional Committees.
    Comment: The Tuolumne County Airports Manager expressed concerns 
related to the possibility of reducing funding for airports which 
cannot comply with the law, noting that the term ``reduced level of 
funding'' could be open to interpretation by FAA staff in ADOs or 
Regional Offices.
    Response: The FAA Compliance Guidance Letter notes that any 
decisions that might impact future AIP investments will be analyzed on 
a case-by-case basis by the Office of Airport Compliance, the Planning 
and Environmental Division, and the Airports Financial Assistance 
Division who will provide more specific guidance to the local staff.
    Comment: The Tuolumne County Airports Manager also raised concerns 
with the direction contained in Appendix D of the Draft Compliance 
Guidance Letter which states that an ADO should not forward an access 
agreement to the Regional Office if the airport sponsor fails to 
address any statutorily required terms and conditions. This commenter 
also offered other suggestions regarding the wording of paragraphs 
VII.B and VIII.A.
    Response: The FAA expects airport sponsors to address all of the 
terms and conditions contained in the law. If an existing access 
agreement precludes a sponsor from meeting a specific term or condition 
contained in the law, the sponsor should identify the language in the 
agreement which creates the conflict. Such a notation will assist FAA 
staff in determining the appropriate level of review for that specific 
access agreement.
    The FAA declines to replace ``and/'' in paragraph VII.B. with 
``or'' because commercial service airports would be required to submit 
both an agreement and access plan. Although FAA declines to delete ``as 
part of a master plan'' in paragraph VIII.A, FAA has added the phrase 
``or upon completion of an AIP-funded project'' to include these 
scenarios as well.
    Comment: One commenter questioned the restriction on self-fueling 
contained in the law stating it's not fair and doubts it's legal.
    Response: The FAA addresses this concern by interpreting the 
prohibition on fueling to apply only to the sale of fuel. As stated in 
the Federal Register on July 30, 2012, ``the FAA will not concern 
itself with self-fueling activities which may be permitted by local 
regulation.'' (77 FR 44515; 44518 (July 30, 2012))
    Comment: One commenter encouraged FAA to extend this provision to 
inside the fence.
    Response: The FAA is implementing section 136 of Public Law 112-95 
which is specific to through-the-fence access only. FAA Order 5190.6B, 
Airport Compliance Manual, addresses the issue of on-airport residences 
and crew quarters in chapter 20. Certain aeronautical uses such as 
commercial air taxi, charter, and medical evacuation services may have 
a need for limited and short-term flight crew quarters for temporary 
use, including overnight and on-duty times. Some airport sponsors may 
assign living quarters to the airport manager in order to facilitate 
specific management-related duties. However, FAA does not consider 
permanent or long-term living quarters to be an appropriate use of 
federally-obligated airport property.
    Comment: One commenter encouraged FAA to consider the emerging 
field of carplanes and their access needs.
    Response: This Policy Statement is not intended to apply to 
carplanes or any type of aircraft brought to the airport on a trailer. 
Federally-obligated airport sponsors are prohibited from unjustly 
discriminating against or denying access to these types of aircraft. 
This Policy Statement applies to the agreements governing aircraft 
taxied from private, residential properties across the airport's 
property boundary in order to access aviation infrastructure.
    Comment: Two commenters encouraged FAA to extend the protections of 
the grant assurances to off-airport users.
    Response: While the grant assurances have been interpreted to 
convey certain rights to aeronautical users, this is not their primary 
purpose. These assurances are designed to ensure the public's 
investment in the airport will be fully utilized and benefit civil 
aviation. Through-the-fence users base their operations on private 
property, and there is no Federal interest to be protected. With that 
said, FAA recognizes that through-the-fence users negotiate terms of 
access directly with an airport sponsor, and at times may request terms 
which seek to protect their private interest. The FAA expects airport 
sponsors to weigh such requests against their Federal obligations in 
order to benefit the civil aviation system.
    Comment: One commenter encouraged FAA to disallow any new 
residential through-the-fence agreements and dissolve any past 
agreements in the interest of safety.
    Response: Section 136 of Public Law 112-95 specifically permits 
residential through-the-fence agreements at general aviation airports, 
as defined by the statute. This law specifically includes existing and 
new agreements. Although FAA cannot consider this comment in whole, FAA 
notes that Grant Assurance 5 now prohibits commercial service airports 
from entering into new residential through-the-fence agreements, and 
the Final Policy requires commercial service airports with existing 
agreements to address safety concerns in their access plan.

Changes to the FAA's Interpretation of the FMRA's Section 136

Enforcement
    The FAA is amending its interpretation of the law to state that 
airport sponsors of general aviation airports proposing to establish 
new or add new residential through-the-fence agreements must provide 
evidence of compliance prior to establishing an access point. This will 
not preclude a general aviation airport sponsor from executing a new 
residential through-the-fence agreement with a residential user and/or 
association representing residential users prior to FAA reviewing the 
proposed agreement and signing the ALP. However, this action would be 
taken at the airport sponsor's own risk. Establishing a new access 
point not depicted on a FAA-approved ALP may result in a violation of 
Grant Assurance 29, Airport Layout Plan.
    Changes: The third paragraph under Enforcement now states, 
``Airport sponsors of general aviation airports

[[Page 42426]]

proposing to establish new or add new residential through-the-fence 
agreements must provide evidence of compliance prior to establishing 
the access point. The establishment of a new residential through-the-
fence agreement which does not comply with the law or results in a 
violation of the sponsor's commitments with the Federal Government may 
result in enforcement proceedings under 14 Code of Federal Regulations 
(CFR), part 16. Establishing a new access point not depicted on a FAA-
approved ALP may result in a violation of Grant Assurance 29, Airport 
Layout Plan.''
Terms and Conditions--Commercial Activities
    The FAA has inserted references to ``any third party'' in its 
description of this prohibition. This is necessary to ensure that the 
residential through-the-fence user does not permit the residential 
property to be used as a location for a third party to offer commercial 
aeronautical services.
    Changes: The two sentences in the first paragraph of this section 
now contain references to ``any third party.'' The first paragraph now 
reads, ``Section 136 states that residential property owners must 
maintain their property for residential, noncommercial use for the 
duration of the agreement. The FAA interprets this as a prohibition on 
commercial aeronautical services offered by residential through-the-
fence users or any third party that might compete with on-airport 
aeronautical service providers, whether existing or not, or chill the 
airport sponsor's ability to attract new commercial service providers 
on the airport. Therefore, in its review of agreements proposing to 
establish new residential through-the-fence access, FAA will interpret 
this condition as a prohibition on commercial aeronautical activities 
only. Agreements which limit the scope of this prohibition to only 
commercial aeronautical activities offered by the residential through-
the-fence user or any third party will be acceptable. However, FAA will 
not concern itself with unrelated commercial activities which may be 
permitted by local regulation.''

FAA's Interpretation of the FMRA's Section 136

    Section 136 permits sponsors of general aviation airports, as 
defined by the statute at title 49, U.S.C., 47102(8), to enter into 
agreements granting through-the-fence access to residential users, but 
includes specific terms and conditions. The FAA interprets the 
inclusion of specific terms and conditions as Congress' intent for FAA 
to enforce the provision accordingly. Therefore, FAA will request 
sponsors with existing residential through-the-fence agreements to 
demonstrate their compliance with the law. Additionally, FAA will also 
request sponsors of general aviation airports proposing to establish 
new residential through-the-fence agreements to demonstrate that their 
agreements will comply with the law. Airport sponsors are encouraged to 
review FAA's Compliance Guidance Letter on FAA Review of Existing and 
Proposed Residential Through-Fence-Access Agreements, which will be 
issued concurrently with this notice.
    Although the law became effective on February 14, 2012, FAA will 
afford airport sponsors a grace period for compliance. Airport sponsors 
with existing residential through-the-fence agreements must provide 
evidence of compliance not later than October 1, 2014. In most cases, 
FAA will define evidence of compliance as the airport sponsor's 
submission of required documentation. This may include copies of access 
agreements, deeds, covenants, conditions, and restrictions, etc.
    Airport sponsors of general aviation airports proposing to 
establish new or add new residential through-the-fence agreements must 
provide evidence of compliance prior to establishing the access point. 
The establishment of a new residential through-the-fence agreement 
which does not comply with the law or results in a violation of the 
sponsor's commitments with the Federal Government may result in 
enforcement proceedings under 14 CFR, part 16. Establishing a new 
access point not depicted on a FAA-approved ALP may result in a 
violation of Grant Assurance 29, Airport Layout Plan.
    The FAA acknowledges that its approach to sponsors with existing 
residential through-the-fence access agreements will be different than 
the posture to be taken with sponsors of general aviation airports 
proposing to establish new or add new residential through-the-fence 
agreements. This is because airport sponsors with existing agreements 
may have ceded important rights and powers through the execution of 
these existing agreements, and their ability to comply with the terms 
and conditions of the law may be severely hampered. The FAA intends to 
address such situations on a case-by-case basis, assist these airport 
sponsors in the development of appropriate mitigations when possible, 
and report these issues to interested Congressional Committees. Going 
forward, FAA expects sponsors of general aviation airports proposing to 
establish new or add new residential through-the-fence agreements to 
comply with the terms and conditions of the law. The FAA will not waive 
these terms and conditions for new agreements.
Applicability
    Section 136 applies to sponsors of general aviation airports. The 
FMRA adopted a definition of ``general aviation airport'' which is now 
codified at 49 U.S.C., 47102(8). A general aviation airport is defined 
as ``a public airport that is located in a State that, as determined by 
the Secretary- does not have commercial service; or has scheduled 
service with less than 2,500 passenger boardings each year.'' This 
definition excludes privately-owned reliever airports. In implementing 
section 136, FAA will grandfather the seven privately-owned reliever 
airports with existing residential through-the-fence access. The owners 
of these airports will be asked to comply with the law and be treated 
in a manner similar to general aviation airports as defined in the 
statute. However going forward, FAA will apply the statutory 
prohibition on privately-owned reliever airports and disallow these 
airports from entering into such agreements. Publically-owned reliever 
airports are included in the statutory definition of a general aviation 
airport; sponsors of publically-owned reliever airports will be 
permitted to enter into residential through-the-fence agreements that 
comply with the terms and provisions contained in section 136.
    The FAA proposes the Final Policy included in this notice to 
address commercial service airports with existing residential through-
the-fence agreements. Commercial service airports which do not 
currently have residential through-the-fence agreements continue to be 
prohibited from entering into such agreements by statute.
Terms and Conditions--Commercial Activities
    Section 136 states that residential property owners must maintain 
their property for residential, noncommercial use for the duration of 
the agreement. The FAA interprets this as a prohibition on commercial 
aeronautical services offered by residential through-the-fence users or 
any third party that might compete with on-airport aeronautical service 
providers, whether existing or not, or chill the airport sponsor's 
ability to attract new commercial service providers on the airport. 
Therefore, in its review of agreements proposing to establish new 
residential through-the-fence access, FAA will interpret this

[[Page 42427]]

condition as a prohibition on commercial aeronautical activities only. 
Agreements which limit the scope of this prohibition to only commercial 
aeronautical activities offered by the residential through-the-fence 
user or any third party will be acceptable. However, FAA will not 
concern itself with unrelated commercial activities which may be 
permitted by local regulation.
    The FAA recognizes that some existing residential through-the-fence 
agreements permit the co-location of homes and aeronautical businesses. 
In these cases, FAA will require airport sponsors to execute two 
separate agreements with the homeowner. One agreement must address the 
duration, rights, and limitations of the homeowner's residential 
through-the-fence access, and the second agreement must address the 
conduct of the commercial aeronautical activity. The second agreement 
must be consistent with FAA's current policies on commercial through-
the-fence activities and ensure the off-airport business does not 
result in unjust economic discrimination for on-airport aeronautical 
service providers. The FAA encourages airport sponsors with these types 
of mixed-use arrangements to adopt long-term plans to relocate the off-
airport commercial aeronautical activity onto the airport when feasible 
and practicable to do so. Going forward, airport sponsors proposing to 
establish a residential through-the-fence agreement must meet the 
statutory terms and conditions, including the prohibition on using the 
residential property for commercial aeronautical use. Therefore, 
agreements which propose the co-location or mixed-use of residential 
and commercial aeronautical activities will be not be consistent with 
the law.
Terms and Conditions--Authorized Access
    Section 136 states that residential property owners must prohibit 
access to the airport from other properties through the property of the 
property owner with access. The FAA interprets this as a prohibition on 
unauthorized access to the airport; this condition does not necessarily 
prescribe a scenario in which all residential through-the-fence users 
must have their own dedicated access point to enter the airport. The 
FAA encourages sponsors of general aviation airports proposing to 
establish new residential through-the-fence agreements to limit the 
number of access points in a manner that is consistent with airport 
planning practices. Compliance with this condition will require access 
agreements stipulate that residential through-the-fence access 
agreement holders are prohibited from permitting unauthorized users 
(any individual not party to an access agreement with the airport 
sponsor) to pass through or ``piggy back'' on their access in order to 
enter the airport. The FAA expects airport sponsors to establish their 
own policies, restrictions, and/or requirements to be imposed on fly-in 
guests who taxi from the airport property to visit off-airport 
residents.
Terms and Conditions--Fueling
    Section 136 states that residential property owners must prohibit 
any aircraft refueling from occurring on the property with access. The 
FAA interprets this as a prohibition on the sale of fuel from 
residential property. The FAA will not concern itself with self-fueling 
activities which may be permitted by local regulation.

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

Applicability

    This Final Policy applies to commercial service airports with 
existing residential through-the-fence access.
    For the purposes of this Final Policy:
    ``Access'' means:
    1. An access point for taxiing aircraft across the airport 
boundary; or
    2. The right of the owner of a particular off-airport residential 
property to use an airport access point to taxi an aircraft between the 
airport and that property.
    ``Existing access'' through the fence is defined as any through-
the-fence access that meets one or more of the following conditions:
    1. There was a legal right of access from the property to the 
airport (e.g., by easement or contract) in existence as of September 9, 
2010; or
    2. There was development of the property prior to September 9, 
2010, in reliance on the airport sponsor's permission for through-the-
fence aircraft access to the airport; or
    3. The through-the-fence access is shown on an FAA-approved airport 
layout plan (ALP) or has otherwise been approved by FAA in writing, and 
the owner of the property has used that access prior to September 9, 
2010.
    ``Extend an access'' is defined as an airport sponsor's consent to 
renew or extend an existing right to access the airport from 
residential property or property zoned for residential use, for a 
specific duration of time, not to exceed 20 years.
    ``Development'' is defined as excavation or grading of land needed 
to construct a residential property; or construction of a residence.
    ``Residential property'' is defined as a piece of real property 
used for single- or multi-family dwellings; duplexes; apartments; 
primary or secondary residences even when co-located with a hangar, 
aeronautical facility, or business; hangars that incorporate living 
quarters for permanent or long-term use; and time-share hangars with 
living quarters for variable occupancy of any term.
    ``Transfer of access'' through the fence is defined as one of the 
following transactions:
    1. Sale or transfer of a residential property or property zoned for 
residential use with existing through-the-fence access; or
    2. Subdivision, development, or sale as individual lots of a 
residential property or property zoned for residential use with 
existing through-the-fence access.
I. Existing Through-the-Fence Access From Residential Property at 
Federally-Obligated Commercial Service Airports
    The Agency understands that it may not be practical or even 
possible to terminate through-the-fence access at many of those 
commercial service airports where that access already exists. Where 
access could be terminated, property owners have claimed that 
termination could have substantial adverse effects on their property 
value and investment, and sponsors seeking to terminate this access 
could be exposed to costly lawsuits. Accordingly, FAA will not consider 
the existence of existing residential through-the-fence access by 
itself to place a sponsor in noncompliance with its grant assurances at 
these commercial service airports.
    In some cases, FAA has found that through-the-fence access rights 
can interfere with the sponsor's ability to meet its obligations as 
sponsor of a federally assisted public use airport. This is discussed 
in detail at 75 FR 54946, 54948 (Sept. 9, 2010). As a result, FAA 
believes that sponsors of commercial service airports with existing 
through-the-fence access agreements must adopt measures to 
substantially mitigate the potential problems with residential through-
the-fence access where it exists to avoid future grant compliance 
issues. Therefore, FAA, as a condition of continuing grants to 
commercial service airports with residential through-the-fence access, 
will require these sponsors

[[Page 42428]]

to adopt measures to substantially mitigate the potential problems with 
residential through-the-fence access to avoid future grant compliance 
issues.
    Accordingly, the sponsor of a commercial service airport where 
residential through-the-fence access or access rights already exist 
will be considered in compliance with its grant assurances if the 
airport depicts the access on its ALP, satisfies the terms and 
conditions contained in section 136 of Public Law 112-95, and meets 
certain standards for safety, efficiency, parity of fees, and 
mitigation of potential noncompatible land uses. Those standards are 
listed in section II, Standards for compliance at commercial service 
airports with existing through-the-fence access. The FAA's review of 
those standards will be detailed in a Compliance Guidance Letter which 
will be issued concurrently and published on FAA's Web site at 
www.faa.gov/airports. An airport sponsor covered by this Final Policy 
will be required to seek FAA approval before entering into any 
agreement that would extend (including renewal of access) through-the-
fence access. Sponsors are reminded that nearby homeowners possess no 
right to taxi aircraft across the airport's property boundary, and no 
off-airport property owner will have standing to file a formal 
complaint under 14 CFR, part 16 with FAA to challenge the sponsor's 
decision not to permit such access.
II. Standards for Compliance at Commercial Service Airports With 
Existing Through-the-Fence Access
    The FAA understands that municipally-owned airports have varying 
degrees of zoning authority. For example, one sponsor may have 
substantial 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, 
FAA does not expect every sponsor of an airport with existing 
residential through-the-fence access to adopt a uniform set of rules 
and measures to mitigate that access. However, FAA does expect each 
such sponsor to adopt reasonable rules and implement measures that 
accomplish the following standards for compliance and satisfy the law, 
to the fullest extent feasible for that sponsor. In general, the 
greater the number of residential through-the-fence access points and 
users of the airport and the higher the number of aircraft operations, 
the more important it is to have formal measures in effect to ensure 
the sponsor retains its proprietary powers and mitigates adverse 
effects on the airport.
    In order to satisfy the law, the sponsor and the property owner or 
an association representing property owners must have a written 
agreement that requires the property owner to:
     Pay access charges that the sponsor determines to be 
comparable to those fees charged to tenants and operators on-airport 
making similar use of the airport;
     Bear the cost of building and maintaining the 
infrastructure the sponsor determines is necessary to provide access to 
the airfield from property located adjacent to or near the airport;
     Maintain the property for residential, noncommercial use 
(FAA interprets this limitation as a prohibition on commercial 
aeronautical services only) for the duration of the agreement;
     Prohibit access to the airport from other properties 
through the property of the property owner (FAA interprets this 
limitation as a prohibition on access to the airport not authorized by 
the airport sponsor); and
     Prohibit any aircraft refueling from occurring on the 
property (FAA interprets this as a prohibition on the sale of fuel from 
residential property).
    The FAA's standards for compliance for any sponsor of a commercial 
service airport with existing residential through-the-fence access are 
as follows:
    1. General authority for control of airport land and access. The 
sponsor has sufficient control of access points and operations across 
airport boundaries to maintain safe operations, and to make changes in 
airport land use to meet future needs.
    2. Safety of airport operations. By rule, or by agreement with the 
sponsor, through-the-fence users are obligated to comply with the 
airport's rules and standards.
    3. Parity of access fees. The sponsor can and does collect fees 
from through-the-fence users comparable to those charged to airport 
tenants.
    4. Protection of airport airspace. Operations at the airport will 
not be affected by hangars and residences on the airport boundary, at 
present or in the future.
    5. Compatible land uses around the airport. The potential for 
noncompatible land use adjacent to or in the immediate vicinity of the 
airport is minimized consistent with Grant Assurance 21, Compatible 
Land Use.
    These standards will be applied, on a case-by-case basis, in FAA's 
evaluation of whether each commercial service airport with existing 
residential through-the-fence access meets the above requirements to 
the fullest extent feasible for that airport. In situations when access 
can be legally transferred from one owner to another without the 
sponsor's review, FAA will treat the access as existing. Because the 
ability of some sponsors to control access has been compromised as a 
result of legal rights previously granted to through-the-fence users, 
existing access locations may be evaluated under the alternative 
criteria for some standards as indicated below, if applicable to that 
airport.
    In some cases, a sponsor may seek to relocate an existing access 
point. If the sponsor can demonstrate that this action will improve the 
airport's overall safety or better address issues associated with the 
sponsor's long-term planning needs, FAA will not consider the access 
rights associated with the replacement access point to extend an 
access. In order to transfer the terms of the existing access point to 
a new access point without a change in compliance status, the former 
existing access point must be removed. Such requests should be 
coordinated with FAA's ADO or Regional Airports Division and upon FAA 
concurrence, clearly depicted on the sponsor's ALP.
III. Standards for Compliance at Commercial Service Airports Proposing 
To Extend Through-the-Fence Access
    Once allowed, residential through-the-fence access is very 
difficult to change or eliminate in the future. This is because 
residential owners, more so than commercial interests, typically expect 
that their residential property will remain suitable for residential 
use and protected from adverse effects for a long time. Residential 
buyers and their mortgage lenders may ensure that the property is 
purchased with rights that guarantee no change in the access to the 
airport for decades, or indefinitely. Because each additional 
residential through-the-fence access location introduces the potential 
for problems for the airport in the future, and because this access is 
effectively permanent and resistant to change once permitted, FAA will 
review extensions of existing residential through-the-fence access at 
public use airports carefully.
    The following supplemental standards will be applied to FAA's case-
by-case review of sponsors' proposals to extend residential through-
the-fence access. In situations when the transfer of access from one 
owner to another requires the sponsor's concurrence, FAA will treat the 
access as an extension. The FAA will not approve requests to extend 
access that are inconsistent with the sponsor's grant assurances 
(excluding Grant Assurance

[[Page 42429]]

5, Preserving Rights and Powers, paragraph ``g'' as amended). 
Furthermore, the sponsor will be required to demonstrate the following 
standards for compliance:
     The new access agreement fully complies with the terms and 
conditions contained in section 136 of Public Law 112-95.
     The term of the access does not exceed 20 years.
     The sponsor provides a current (developed or revised 
within the last 5 years) airport master plan identifying adequate areas 
for growth that are not affected by the existence of through-the-fence 
access rights, or the sponsor has a process for amending or terminating 
existing through-the-fence access in order to acquire land that may be 
necessary for expansion of the airport in the future.
     The sponsor will impose and enforce safety and operating 
rules on through-the-fence residents utilizing this access while on the 
airport identical to those imposed on airport tenants and transient 
users.
     Through-the-fence residents utilizing this access will 
grant the sponsor a perpetual avigation easement for overflight, 
including unobstructed flight through the airspace necessary for 
takeoff and landing at the airport.
     Through-the-fence residents utilizing this access, by 
avigation easement; deed covenants, conditions or restrictions; or 
other agreement, have acknowledged that the property will be affected 
by aircraft noise and emissions and that aircraft noise and emissions 
may change over time.
     Through-the-fence residents utilizing this access have 
waived any right to bring an action against the sponsor for existing 
and future operations and activities at the airport associated with 
aircraft noise and emissions.
     The sponsor has a mechanism for ensuring through-the-fence 
residents utilizing this access will file FAA Form 7460-1, Notice of 
Proposed Construction or Alteration, if necessary and complying with 
FAA's determination related to the review of Form 7460-1.
     The sponsor has a mechanism for ensuring through-the-fence 
residents do not create or permit conditions or engage in practices 
that could result in airport hazards, including wildlife attractants.
     Where available, the sponsor or other local government has 
in effect measures to limit future use and ownership of the through-
the-fence properties to aviation-related uses (in this case, hangar 
homes), such as through zoning or mandatory deed restrictions. The FAA 
recognizes this measure may not be available to the sponsor in all 
states and jurisdictions.
     If the residential community has adopted restrictions on 
owners for the benefit of the airport (such as a commitment not to 
complain about aircraft noise), those restrictions are enforceable by 
the sponsor as a third-party beneficiary, and may not be cancelled 
without cause by the community association.
     The access agreement is subordinate to the sponsor's 
current and all future grant assurances.
     The sponsor has developed a process for educating through-
the-fence residents about their rights and responsibilities.
IV. Process and Documentation
A. Existing residential through-the-fence access.
    1. General. The sponsor of a commercial service airport with 
existing residential through-the-fence access will be considered in 
compliance with its grant assurances, and eligible for future grants, 
if FAA determines that the sponsor complies with the law and meets the 
applicable standards listed above under Standards for compliance at 
commercial service airports with existing residential through-the-fence 
access. The sponsor may demonstrate that it meets these standards by 
providing the ADO or regional division staff with a written description 
of the sponsor's authority and the controls in effect at the airport 
(``residential through-the-fence access plan'' or ``access plan''). 
Sponsors are encouraged to review FAA's Compliance Guidance Letter on 
FAA Review of Existing and Proposed Residential-Through-Fence Access 
Agreements, which will be issued concurrently with this notice, prior 
to submitting their access plan. This guidance letter may be found on 
FAA's Web site at www.faa.gov/airports. The ADO or regional division 
will review each access plan, on a case-by-case basis, to confirm that 
it addresses how the sponsor complies with the law and meets each of 
these standards at its airport. The ADO or regional division will 
forward recommendations regarding each access plan to the Manager of 
Airport Compliance. Only the Manager of Airport Compliance may accept a 
commercial service airport sponsor's residential through-the-fence 
access plan. In reviewing the access plan, the Manager of Airport 
Compliance may consult with the Transportation Security Administration 
(TSA). The FAA will take into account the powers of local government in 
each state, and other particular circumstances at each airport. In 
every case, however, the access plan must address the law and each of 
the basic requirements listed under section II of this Final Policy.
    2. Residential through-the-fence access plan. The FAA will require 
evidence of compliance before issuing an AIP grant, beginning in Fiscal 
Year 2015. FY 2015 and later grants will include a special grant 
condition requiring the ongoing implementation of these access plans. 
Generally, FAA will not award discretionary grants to the sponsor until 
FAA accepts the sponsor's access plan as meeting the law and the 
standards to the extent feasible for that airport.
    3. Airport Layout Plan (ALP). The FAA will require all residential 
through-the-fence access points to be identified on the airport's ALP. 
A temporary designation may be added through a sponsor's pen and ink 
change to immediately identify the locations on the airport property 
that serve as points of access for off-airport residents. A formal ALP 
revision that fully depicts the scope of the existing residential 
through-the-fence agreements should be completed the next time the 
sponsor initiates an airport master plan study or update.
    A sponsor's failure to depict all residential through-the-fence 
access points is a potential violation of the sponsor's grant 
assurances, and the Agency may consider grant enforcement under 14 CFR 
part 16.
    4. FAA review. The FAA's acceptance of the access plan represents 
an Agency determination that the commercial service airport has met the 
law and compliance standards for existing residential through-the-fence 
access for a period not to exceed 20 years. The following actions will 
trigger a commercial service airport sponsor to update its access plan 
prior to its 20-year expiration: Development of a new master plan or an 
update to an existing master plan, significant revisions to an ALP, 
requests for Federal financial participation in land acquisition, 
identification of a safety concern, or substantial changes to the 
access agreement. A commercial service airport sponsor's failure to 
implement its access plan could result in a violation of the special 
grant condition and potentially lead to a finding of noncompliance.
    5. Commercial service airports with existing residential through-
the-fence access that do not meet the compliance standards. The FAA 
recognizes that some commercial service airport sponsors may not be 
able to fully

[[Page 42430]]

comply with the law and the standards listed above, due to limits on 
the powers of the sponsor and/or other local governments, or on other 
legal limits on the sponsor's discretion to adopt certain measures. 
Other sponsors have the capability to adopt measures to satisfy the 
compliance standards but have not done so. The FAA may consider a 
commercial service airport sponsor's inability to comply with the law 
and/or the minimum compliance standards as a militating factor in its 
review of requests for discretionary funding.
    6. Commercial service airports that fail to submit an access plan. 
The FAA expects commercial service airport sponsors with existing 
residential through-the-fence access to develop an access plan which 
addresses the law, preserves their proprietary rights and powers, and 
mitigates the inherent challenges posed by this practice. Beginning in 
Fiscal Year 2015, a sponsor's failure to comply with the Final Policy 
may jeopardize its ability to compete for discretionary AIP grant 
funding.
B. Requests to extend residential through-the-fence access at airports 
covered by this Final Policy
    As of the date of the enactment of Public Law 112-95 (February 14, 
2012), a sponsor of a commercial service airport proposing to extend an 
access agreement must submit a current airport master plan and a 
revised residential through-the-fence access plan as detailed below. 
The ADO or regional division will forward its recommendations regarding 
each request to extend access to the Manager of Airport Compliance. 
Only the Manager of Airport Compliance may approve a sponsor's request 
to extend access. In reviewing the proposal, the Manager of Airport 
Compliance may consult with TSA.
    1. Master Plan. A sponsor of a commercial service airport wishing 
to extend an existing residential through-the-fence access agreement 
must submit a recent airport master plan to the ADO or regional 
division. The FAA considers a master plan to be recent if it was 
developed or updated within the past 5 years. The master plan should 
explain how the sponsor plans to address future growth, development, 
and use of the airport property over the next 20 years; sponsors should 
work with ADO or regional division staff to develop an appropriate 
scope of work for these master plans.
    2. Residential through-the-fence access plan. The sponsor is 
responsible for revising its access plan, as discussed under section 
III of this Final Policy, to reflect how it will meet the standards for 
compliance for the extended access. Once FAA has accepted the revised 
access plan, FAA will condition future AIP grants upon its ongoing 
implementation.
    3. Continuing obligations. Once the revised access plan is accepted 
by FAA, and if required, the revised ALP, is approved by FAA, the 
sponsor must continue to comply with obligations described in section 
IV.A of this Final Policy.
V. Eligibility for AIP Grants
    A. General. Beginning in Fiscal Year 2015, a sponsor of a 
commercial service airport with existing residential through-the-fence 
access will be required to submit their residential through-the-fence 
access plan prior to notifying FAA of its intent to apply for an AIP 
grant. The sponsor will not lose eligibility for entitlement grants on 
the basis of the through-the-fence access, but FAA will consider the 
potential constraints on the utility of the airport to be a significant 
factor in future AIP funding decisions.
    B. Public infrastructure and facilities with substantial benefit to 
private through-the-fence users. The FAA may be unable to justify the 
Federal investment in a proposed project when private residential 
developments with through-the-fence access will receive substantial 
value from that federally assisted airport infrastructure and/or 
facility.
    C. Exclusive or primary private benefit. On-airport infrastructure 
and facilities used exclusively or primarily for accommodation of 
through-the-fence users are considered private-use and are ineligible 
for AIP grants.

    Issued in Washington, DC on July 9, 2013.
Randall S. Fiertz,
Director, Airport Compliance and Management Analysis.
[FR Doc. 2013-16917 Filed 7-15-13; 8:45 am]
BILLING CODE 4910-13-P