Federal Register / Vol. 78, No. 136 / Tuesday, July 16, 2013 / Rules and Regulations 42419 

(e) Reason 

This AD was prompted by mandatory 

continuing airworthiness information (MCAI) 

issued by the aviation authority of another 

country to identify and correct an unsafe 

condition on an aviation product. The MCAI 

describes the unsafe condition as faulty rivets 

installed in the airframes during production 

could reduce the structural integrity of the 

airplane. We are issuing this AD to ensure 

the structural integrity of the airplane. 

(f) Actions and Compliance 

Unless already done, do the following 

actions in paragraphs (f)(1) and (f)(2) of this 

AD. 

(1) Before further flight after August 5, 

2013 (the effective date of this AD), contact 

Pilatus Aircraft Ltd. at the address specified 

in paragraph (j)(3) of this AD to obtain FAAapproved inspection procedures approved 

specifically for compliance with this AD for 

inspecting the airplane for loose rivets and 

for places where rivets are missing, and do 

the inspection. 

(2) If any rivet deficiencies are found 

during the inspection required in paragraph 

(f)(1) of this AD, before further fight, contact 

PILATUS Aircraft Ltd. at the address 

specified in paragraph (j)(3) of this AD to 

obtain an FAA-approved repair scheme 

approved specifically for compliance with 

this AD and incorporate the repair. 

(g) Other FAA AD Provisions 

The following provisions also apply to this 

AD: 

(1) Alternative Methods of Compliance 

(AMOCs): The Manager, Standards Office, 

FAA, has the authority to approve AMOCs 

for this AD, if requested using the procedures 

found in 14 CFR 39.19. Send information to 

ATTN: Doug Rudolph, Aerospace Engineer, 

FAA, Small Airplane Directorate, 901 Locust, 

Room 301, Kansas City, Missouri 64106; 

telephone: (816) 329–4059; fax: (816) 329– 

4090; email: doug.rudolph@faa.gov. Before 

using any approved AMOC on any airplane 

to which the AMOC applies, notify your 

appropriate principal inspector (PI) in the 

FAA Flight Standards District Office (FSDO), 

or lacking a PI, your local FSDO. 

(2) Airworthy Product: For any requirement 

in this AD to obtain corrective actions from 

a manufacturer or other source, use these 

actions if they are FAA-approved. Corrective 

actions are considered FAA-approved if they 

are approved by the State of Design Authority 

(or their delegated agent). You are required 

to assure the product is airworthy before it 

is returned to service. 

(h) Special Flight Permit 

Special flight permits are permitted with 

the following limitation: A pre-flight 

inspection must be done following the 

procedures specified in paragraph 2.2 of 

Pilatus Technical Memo TM–06–000004, 

Issue 01, dated May 16, 2013. 

(i) Related Information 

European Aviation Safety Agency (EASA) 

AD No. 2013–0115–E, dated May 28, 2013, 

for related information, which can be found 

in the AD docket on the Internet at http:// 

www.regulations.gov. 

(j) Material Incorporated by Reference 

(1) The Director of the Federal Register 

approved the incorporation by reference 

(IBR) of the service information listed in this 

paragraph under 5 U.S.C. 552(a) and 1 CFR 

part 51. 

(2) You must use this service information 

as applicable to do the actions required by 

this AD, unless the AD specifies otherwise. 

(i) Pilatus Technical Memo TM–06– 

000004, Issue 01, dated May 16, 2013. 

(ii) Reserved. 

(3) For Pilatus Aircraft Ltd service 

information identified in this AD, contact 

Pilatus Aircraft Ltd., Customer Liaison 

Manager, P.O. Box 992, CH–6371 STANS, 

Switzerland; telephone: +41 (0)41 619 65 80; 

fax: +41 (0)41 619 65 76; Internet: http:// 

www.pilatus-aircraft.com or email: 

fodermatt@pilatus-aircraft.com. 

(4) You may view this service information 

at the FAA, Small Airplane Directorate, 901 

Locust, Kansas City, Missouri 64106. For 

information on the availability of this 

material at the FAA, call (816) 329–4148. 

(5) You may view this service information 

that is incorporated by reference at the 

National Archives and Records 

Administration (NARA). For information on 

the availability of this material at NARA, call 

202–741–6030, or go to: http:// 

www.archives.gov/federal-register/cfr/ibrlocations.html. 

Issued in Kansas City, Missouri on June 28, 

2013. 

Earl Lawrence, 

Manager, Small Airplane Directorate, Aircraft 

Certification Service. 

[FR Doc. 2013–16332 Filed 7–15–13; 8:45 am] 

BILLING CODE 4910–13–P 

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. 

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 (http:// 

www.regulations.gov/search); 

(2) Visiting FAA’s Regulations and 

Policies Web page at http:// 

www.faa.gov/regulations_policies; or 

(3) Accessing the Government 

Printing Office’s Web page at http:// 

www.gpoaccess.gov/index.html. 

You can also get a copy by sending a 

request to the Federal Aviation 

Administration, Office of Airport 

Compliance and Management Analysis, 

800 Independence Avenue SW., 

Washington, DC 20591, or by calling 

(202) 267–3085. Make sure to identify 

the docket number, notice number, or 

amendment number of this proceeding. 

Authority for the Policy 

This notice is published under the 

authority described in Subtitle VII, part 

B, chapter 471, section 47122 of title 49 

United States Code. 

Background 

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 

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42420 Federal Register / Vol. 78, No. 136 / Tuesday, July 16, 2013 / Rules and Regulations 

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: http:// 

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-thefence 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-thefence 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-thefence users. Two commenters expressed 

support for the interpretations made by 

FAA, especially with regard to selffueling. 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 selffueling 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 throughthe-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 privatelyowned 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 throughthe-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-thefence 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, 

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Federal Register / Vol. 78, No. 136 / Tuesday, July 16, 2013 / Rules and Regulations 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 throughthe-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 throughthe-fence users are considered privateuse 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 privatelyowned 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-thefence 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 throughthe-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-thefence 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 

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42422 Federal Register / Vol. 78, No. 136 / Tuesday, July 16, 2013 / Rules and Regulations 

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-thefence 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 

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Federal Register / Vol. 78, No. 136 / Tuesday, July 16, 2013 / Rules and Regulations 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-thefence 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-thefence 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 

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42424 Federal Register / Vol. 78, No. 136 / Tuesday, July 16, 2013 / Rules and Regulations 

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-theFence 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 throughthe-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 offairport 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 onairport 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 throughthe-fence operations. The Aviation 

Professionals Group requested FAA 

include language stating that past, 

present, and future commercial throughthe-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-thefence 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 onairport service provider. 

The FAA is not proposing to alter or 

change this guidance with the exception 

of arrangements which currently comingle 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-thefence 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 colocated with a hangar; hangars that 

incorporate living quarters for 

permanent or long-term use; and timeshare hangars with living quarters for 

variable occupancy of any term. An 

empty lot would likely not qualify as 

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Federal Register / Vol. 78, No. 136 / Tuesday, July 16, 2013 / Rules and Regulations 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 caseby-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 AIPfunded 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-thefence 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 

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42426 Federal Register / Vol. 78, No. 136 / Tuesday, July 16, 2013 / Rules and Regulations 

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-thefence 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-thefence 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-thefence agreements to demonstrate their 

compliance with the law. Additionally, 

FAA will also request sponsors of 

general aviation airports proposing to 

establish new residential through-thefence 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-FenceAccess 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-thefence 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-thefence access, FAA will interpret this 

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Federal Register / Vol. 78, No. 136 / Tuesday, July 16, 2013 / Rules and Regulations 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-thefence 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-theFence 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 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 FederallyObligated 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-thefence 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-thefence access, will require these sponsors 

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42428 Federal Register / Vol. 78, No. 136 / Tuesday, July 16, 2013 / Rules and Regulations 

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 throughthe-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-thefence 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 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, 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 caseby-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 

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Federal Register / Vol. 78, No. 136 / Tuesday, July 16, 2013 / Rules and Regulations 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-thefence 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 thirdparty 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-bycase 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 throughthe-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 

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42430 Federal Register / Vol. 78, No. 136 / Tuesday, July 16, 2013 / Rules and Regulations 

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 throughthe-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 

DEPARTMENT OF COMMERCE 

Bureau of Industry and Security 

15 CFR Parts 740, 772 and 774 

[Docket No. 130104008–3008–01] 

RIN 0694–AF81 

Revisions to the Export Administration 

Regulations Based on the 2012 Missile 

Technology Control Regime Plenary 

Agreements 

AGENCY: Bureau of Industry and 

Security, Commerce. 

ACTION: Final rule. 

SUMMARY: The Bureau of Industry and 

Security (BIS) is amending the Export 

Administration Regulations (EAR) to 

reflect changes to the Missile 

Technology Control Regime (MTCR) 

Annex that were agreed to by MTCR 

member countries at the October 2012 

Plenary in Berlin, Germany, and at the 

MTCR Reinforced Point of Contact 

(RPOC) meeting in Paris, France, in 

December 2011. This final rule revises 

six Export Control Classification 

Numbers (ECCNs) (1C011, 1C111, 

1C116, 9A101, 9B105 and 9E101) and 

one defined term (the definition of 

‘‘payload’’) to implement the changes 

that were agreed to at the meetings. This 

final rule also revises ECCNs 7E004 and 

9D004 to better align the Commerce 

Control List (CCL) with the MTCR 

Annex and past MTCR agreements. 

DATES: This rule is effective: July 16, 

2013. 

FOR FURTHER INFORMATION CONTACT: 

Sharon Bragonje, Nuclear and Missile 

Technology Controls Division, Bureau 

of Industry and Security, Phone: (202) 

482–0434; Email: 

sharon.bragonje@bis.doc.gov 

SUPPLEMENTARY INFORMATION: 

Background 

The Missile Technology Control 

Regime (MTCR) is an export control 

arrangement among 34 nations, 

including most of the world’s advanced 

suppliers of missiles and missile-related 

equipment, materials, software and 

technology. The regime establishes a 

common list of controlled items (the 

Annex) and a common export control 

policy (the Guidelines) that member 

countries implement in accordance with 

their national export controls. The 

MTCR seeks to limit the risk of 

proliferation of weapons of mass 

destruction by controlling exports of 

goods and technologies that could make 

a contribution to delivery systems (other 

than manned aircraft) for such weapons. 

In 1992, the MTCR’s original focus on 

missiles for nuclear weapons delivery 

was extended to a focus on the 

proliferation of missiles for the delivery 

of all types of weapons of mass 

destruction (WMD), i.e., nuclear, 

chemical and biological weapons. Such 

proliferation has been identified as a 

threat to international peace and 

security. One way to counter this threat 

is to maintain vigilance over the transfer 

of missile equipment, material, and 

related technologies usable for systems 

capable of delivering WMD. MTCR 

members voluntarily pledge to adopt the 

regime’s export Guidelines and to 

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