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[Federal Register Volume 76, Number 53 (Friday, March 18, 2011)]
[Notices]
[Pages 15028-15039]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-6346]

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

[Docket No. FAA-2010-0831]

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

AGENCY: Federal Aviation Administration (FAA).

ACTION: Interim policy; amendment to sponsor grant assurance 5.

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SUMMARY: This action adopts an interim policy amending and clarifying 
FAA policy concerning through-the-fence access to a federally-obligated 
airport from an adjacent or nearby property, when that property is used 
as a residence, and permits continuation of existing access subject to 
certain standards. This action also modifies sponsor grant assurance 5, 
Preserving Rights and Powers, to prohibit new residential through-the-
fence access to a federally-obligated airport. Prior FAA policy 
discouraged through-the-fence access to a federally-obligated airport 
from an off-airport residence. Owners of properties used both as a 
residence and for the storage of personal aircraft, sometimes called 
``hangar homes,'' had urged the agency to permit an exception to the 
through-the-fence policy for residents who own aircraft.
    At this time, the FAA is adopting an interim policy. The policy 
review conducted in 2010 highlighted a number of differences among the 
airports identified as having residential through-the-fence 
arrangements. As a result, the FAA believes it will take more time and 
more detailed information to better understand these arrangements and 
how they impact each airport sponsor's ability to comply with its grant 
assurances. However, the agency also acknowledges that interested 
stakeholders have a more immediate need for resolution. The goal of the 
interim policy is to strike a careful balance by accommodating 
residential through-the-fence access where it already exists.
    To date, the FAA has not been able to clearly define the specific 
criteria or

[[Page 15029]]

requirements that would allow airport sponsors to enter into new 
residential through-the-fence arrangements while ensuring ongoing 
compliance with their grant obligations. Therefore, the interim policy 
requires airports with existing residential through-the-fence 
arrangements to develop access plans outlining how the airport sponsor 
meets certain standards for control of airport operations and 
development and for self-sustaining and nondiscriminatory airport 
rates.
    In adopting this interim policy, the FAA is announcing its intent 
to initiate another policy review of residential through-the-fence 
access to federally-obligated airports in 2014. This timeframe will 
give the FAA the experience it needs in reviewing residential through-
the-fence arrangements via the access plans and understanding how to 
mitigate the real and potential adverse effects of these arrangements. 
Additionally, it will allow the agency to complete a separate, ongoing 
general aviation airport study that is analyzing the federally assisted 
general aviation airport system.
    The interim policy adopts the changes proposed to sponsor grant 
assurance 5, Preserving Rights and Powers, to prohibit new residential 
through-the-fence access to a federally-obligated airport. However, it 
is the agency's intent to reconsider this change as part of the policy 
review that will be conducted in 2014. In the interest of obtaining all 
available information relevant to the review, the FAA invites any 
person who would be interested in a specific approval of new 
residential through-the-fence access at a federally-obligated airport 
to contact the FAA Airport Compliance Division to discuss the 
particular circumstances so this can be considered in our 2014 review.

DATES: The effective date of this interim policy and the amendment to 
the grant assurance is March 18, 2011.

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

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

Authority for the Interim Policy and Grant Assurance Modification

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

Background

    Sponsors of airports that accept planning and development grants 
from the FAA under the Airport Improvement Program (AIP), 49 U.S.C. 
47101 et seq., agree to a list of standard conditions, or grant 
assurances. Similar obligations also attach to the transfer of federal 
surplus property to airport sponsors and are often contained in surplus 
property deeds. These include responsibilities to retain the rights and 
powers necessary to control and operate the airport; to maintain the 
airport in a safe condition; to take reasonable steps to restrict land 
adjacent to the airport to compatible land uses; to allow access to the 
airport on terms that are reasonable and not unjustly discriminatory to 
any category of user; and to maintain a rate structure for airport fees 
that makes the airport as self-sustaining as possible.
    A complete list of the current grant assurances can be viewed at: 
http://www.faa.gov/airports/aip/grant_assurances/.
    Administration of the AIP, including sponsor compliance with grant 
assurances, is the responsibility of the FAA Associate Administrator 
for Airports. The Airport Compliance Manual, FAA Order 5190.6B, issued 
on September 30, 2009, contains policy guidance for agency employees 
monitoring sponsor compliance with the grant assurances.
    Agency guidance that preceded Order 5190.6B discouraged through-
the-fence access at airports with grant obligations, and Order 5190.6B 
contained specific objections to residential through-the-fence access 
based on more recent agency experiences. Typically, through-the-fence 
access allows an aircraft owner to store an aircraft at an off-airport 
property, and to use the airport by way of a taxiway that crosses the 
airport boundary and connects the owner's property or neighborhood to 
the airport's runway-taxiway system.

The Notice of Proposed Policy

    Following review of written comments, meetings with state aviation 
officials, visits to airports with residential through-the-fence 
access, listening sessions with homeowners and homeowners' 
associations, and discussions with aviation membership associations, 
the FAA published a proposed revision in agency policy on residential 
through-the-fence access for public comment in September 2010: Airport 
Improvement Program (AIP): Policy Regarding Access to Airports From 
Residential Property (75 FR 54946; September 9, 2010). That notice 
contained a background history of the residential through-the-fence 
access issue, and addressed the comments the agency had received prior 
to issuing the proposed policy.

Comments Received on the Notice

    The agency received more than 75 comments on the proposed policy, 
including comments from members of Congress, state aviation agencies, 
industry associations, and private homeowners with current through-the-
fence access to an airport. Most commenters supported not only the 
continuation of existing residential through-the-fence uses, but also 
the accommodation of new access arrangements in the future. While 
commenters supporting residential through-the-fence access were often 
critical of the FAA's continuing concern about such access, many of 
these commenters also expressed appreciation that the proposed policy 
would allow virtually all existing residential through-the-fence access 
to continue. The National Air Transportation Association commented in 
support of the proposed policy, and described it as striking the right 
balance between future needs of airports and existing residential 
through-the-fence access.
    As a preliminary matter, some commenters apparently assumed that 
the FAA objected to all residential through-the-fence access, at any 
airport. On the contrary, the interim policy relates only to 
residential through-the-fence access at airports that receive taxpayer 
funds through FAA grants. The FAA has no objection whatsoever to the 
development of private airparks, where property owners can manage and 
operate the airport in any manner they like, without federal 
assistance.
    In recent years, the FAA has identified cases in which residential

[[Page 15030]]

through-the-fence access arrangements at federally-obligated airports 
resulted in an airport sponsor's inability to meet specific grant 
assurance obligations. In working with airport sponsors to correct 
their grant assurance violations, the FAA has found these arrangements 
impose long-term limitations on the airport and compromise the 
airport's ability to retain the inherent features expected of public 
use airports.
    The question for the FAA, therefore, is not whether to allow hangar 
homes next to airports, but whether to use public funds to support 
airports with hangar homes. Over time, some of these airports may 
function more as private airparks than as public-use airports available 
to all users as part of a national system of airports. The standards 
for compliance adopted in this interim policy are not regulations; 
rather, they are mitigations needed to address the sponsor's ongoing 
ability to meet its obligations. The FAA considers these mitigations 
necessary to fulfill its obligation to assure that grant funds are used 
for the legal purposes for which these funds are authorized and 
appropriated, and that taxpayer dollars are used in the manner that 
will have the most benefit for the national airport system and its 
users.
    Many of the comments supportive of residential through-the-fence 
access were similar to comments received in the FAA's outreach efforts 
in the past year, and repeated arguments that were summarized and 
addressed in the preamble to the proposed policy published on September 
9, 2010. For example, these comments typically asserted benefits from 
residential through-the-fence access, including the presence of a 
supportive airport community; a source of income and aviation activity 
the airport would not otherwise have; and improved security resulting 
from constant observation of the airport by close neighbors. Some 
commenters argued that residents who own aircraft on adjacent property 
should not be covered by the same policies that apply to residential 
land use generally. Some commenters also reiterated that a decision on 
residential through-the-fence access should be left to the local 
community. The agency believes these particular comments were addressed 
in the notice of proposed policy, and the agency's position remains the 
same on these points.
Approval of New Residential Through-the-Fence Access
    A substantial number of comments criticized the proposed 
prohibition on approval of new residential through-the-fence 
arrangements. The FAA understands that future residential through-the-
fence access could be controlled, to a great extent, by making any 
approval conditional upon the airport operator taking any steps the FAA 
considers necessary to mitigate potential problems with that access. 
Accordingly, we would agree that many of the issues experienced with 
existing locations could be avoided. However, as the FAA stated in the 
notice, the agency has continuing concerns about the existence of 
residential properties on the airport boundary. First, it is virtually 
impossible to assure that these properties will not be used as 
residences by non-aircraft owners at some point. Second, even residents 
who now own aircraft and use the airport may still not be supportive of 
changes in the airport that result in more noise or night operations, 
or changes in airport boundaries. Also, federal law and policy make no 
distinction between residents that own aircraft and those that do not. 
As a result, approval of hangar homes next to an airport makes it more 
difficult for the FAA and airport operators to oppose other residential 
communities near an airport, which are the primary source of 
incompatible land use encroachment at airports nationally. Finally, 
homeowners have an expectation of perpetual title to their homes to 
retain the value of their investment, to obtain financing on a long-
term schedule, and to simply avoid being uprooted from their residence. 
As a result, residential through-the-fence uses are typically very 
difficult for the airport operator to relocate or terminate if the need 
arises. There is no option of allowing new residential through-the-
fence access on a trial basis; if it is allowed, it will probably be 
there as long as the airport. As noted in the summary, the interim 
policy is designed to help the FAA better understand possible ways to 
reconcile these issues.
    The Experimental Aircraft Association (EAA) submitted detailed 
comments supporting approval of new residential through-the-fence 
locations, including several points not raised in earlier comments. EAA 
commented that the FAA does not have the authority to amend the grant 
assurances; however, that authority does exist, at 49 U.S.C. 47107(h), 
and the agency has fully complied with the requirements of that 
statute. EAA also stated that it had done a survey of ten airports in 
Georgia, and found no available hangars. That fact could argue for 
through-the-fence access to off-airport hangars, if there were some 
reason the hangars could not be built on-airport, but it does not 
support the need for hangar homes. Residential use, not the storage of 
aircraft, is the issue. Through-the-fence access to private hangars at 
general aviation airports is not generally a compliance issue, and is 
not the subject of this interim policy.
    EAA offered specific criteria for FAA approval of individual new 
projects, in lieu of the general prohibition proposed in the interim 
policy, similar to the standards proposed in the notice for assuring 
compliance at existing residential through-the-fence locations. The 
criteria suggested by the FAA are intended to mitigate the adverse 
impacts that arise from residential through-the-fence arrangements. 
They may not necessarily allow an airport sponsor to eliminate these 
impacts, and EAA did not identify any new methods to ensure that these 
arrangements do not compromise the public-use features of the airport.
    Accordingly, as an interim measure, the FAA is adopting the 
proposed general policy against approval of new residential through-
the-fence access at this time, and is revising AIP grant assurance 5, 
Preserving Rights and Powers, as proposed. However, the agency also 
accepts that both the agency and airport operators will learn more 
about the effects of residential through-the-fence access at airports 
as airports with existing access develop access plans and FAA staff has 
the opportunity to review and approve a substantial number of those 
plans. The FAA recently initiated a study of general aviation airports 
to better understand how these airports are utilized and the roles they 
serve in the national airport system. EAA, in its comments, recommended 
that the FAA study general aviation airport capacity through a new 
Future Airport Capacity Task (FACT) study. The FAA's current review of 
the public-use general aviation airport system is not technically a 
successor to the most recent FACT study (FACT 2). This study recognizes 
the diversity that exists within the general aviation airport 
community, and it will develop detailed data about the roles, 
operations, and profiles of these facilities to provide more useful 
information about our current airport system. While we believe that the 
majority of airports with existing residential through-the-fence 
arrangements fall within a category of less than 50,000 operations and 
less than 50 based aircraft, other characteristics that may better 
define their role locally and nationally are less transparent. As a 
result of these efforts, the agency expects to have reliable 
information on the utilization of federally assisted general aviation 
airports, and also on the ability of the

[[Page 15031]]

access plans to resolve potential compliance issues at airports with 
residential through-the-fence access. On that basis, it is the agency's 
intent to initiate a review of this interim policy in fiscal year 2014.
Existing Residential Through-the-Fence Locations
    As with comments received before the proposed policy was issued, 
most commenters supported FAA's proposal to allow existing residential 
through-the-fence access to continue, with less restrictions and 
oversight than proposed by the FAA in the notice. Some commenters 
supported the FAA's proposal to allow through-the-fence access where it 
exists, if the airport can meet certain standards, and not allow new 
access. Several commenters opposed allowing even the existing uses to 
continue, and urged the eventual elimination of the residential 
through-the-fence access at federally-obligated airports. For reasons 
discussed in the notice, the FAA believes it is neither feasible nor 
necessary to eliminate existing residential through-the-fence 
arrangements. The FAA's proposed alternative (having these airports 
take certain actions to mitigate the adverse effects of through-the-
fence access) should be adequate to protect the government's investment 
in these airports in most cases and avoids unnecessary hardship on 
current property owners.
    In addition to existing and new residential through-the-fence 
access, many commenters had specific comments on what if anything 
should be required of airport operators and residents at existing 
residential through-the-fence locations, and if new standards do apply, 
what the FAA's approval process should involve. The FAA found these 
comments very useful in developing the interim policy statement.
    Comments not previously addressed in the notice of proposed policy 
can be summarized as follows:
    Comment: The FAA should do a case-by-case review of new requests 
for residential through-the-fence access, rather than prohibit new 
access, because of the different conditions at each airport.
    Response: The interim policy adopted toward existing uses does 
allow agency staff to take full account of the individual conditions at 
each airport. The interim policy provides certain general minimum 
standards of compliance for safety, cost recovery and efficient 
operation of these airports, for evaluation of each airport's 
circumstances. As the FAA explained in the introduction to comments on 
new access in this notice, the agency does not believe that the 
mitigation of existing conditions is a reason to create new through-
the-fence uses, given the inherent problems with residential use next 
to an airport, and the fact that residential use tends to be permanent 
once established. However, the FAA intends to review the issue of 
approval of new residential through-the-fence access in fiscal year 
2014, after experience with individual airport access plans and 
completion of an FAA study on general aviation airports now in 
progress. In the interest of obtaining all available information 
relevant to that review, the FAA invites any person who would be 
interested in a specific approval of new residential through-the-fence 
access at a federally-obligated airport in the future to contact the 
FAA Airport Compliance Division to discuss the particular circumstances 
so it can be considered as part of the FAA's 2014 review.
    Comment: Residential through-the-fence access could be approved at 
new locations if the airport agreed to additional safety regulations, 
such as prohibitions on commercial flights, charter flights, and flight 
training.
    Response: This is exactly the kind of limitation on airport use 
that the interim policy is intended to avoid. An airport that receives 
taxpayer assistance for its role in the national system should not have 
limits on aviation use just so that residences can be located adjacent 
to the airport.
    Comment: EAA proposed, as part of a request that FAA allow new 
residential through-the-fence access, that each airport with that 
access develop a safety management system (SMS).
    Response: The FAA supports the adoption of SMS at airports, and the 
agency has recently issued a notice of proposed rulemaking proposing to 
require SMS at airports with 14 CFR part 139 certification, Safety 
Management System for Certificated Airports (75 FR 62008, October 7, 
2010). However, the agency does not believe that it is necessary or 
appropriate to adopt a special requirement for SMS, as a condition of 
AIP grants, at airports with through-the-fence access. First, although 
safety issues are one of the potential problems with residential 
through-the-fence access, the FAA is not aware of broad evidence that 
such airports are necessarily more prone to specific safety problems. 
Second, the SMS process involves costs for airport sponsors and staff 
time for both sponsors and the FAA. A requirement for an SMS plan at 
all such airports would be an unjustified expense and administrative 
burden on sponsors of many small airports that have no unresolved 
safety issues at this time. The FAA would encourage any general 
aviation operator to consider an SMS program, but is not making SMS a 
condition of approval of residential through-the-fence access at this 
time.
    Comment: All NAS users pay into funds through fuel taxes and should 
not have to pay additional fees. Paying property taxes and airport fees 
is ``double taxation.''
    Response: Grant-assisted airports are required to be as self-
sufficient as possible and develop rate structures that fully support 
the capital and operating expenses of the airport. While fuel taxes go 
to fund AIP grants that assist with capital projects, AIP grants are 
not available to pay for an airport's operating and maintenance 
expenses. Local and state property taxes, even taxes collected on 
hangars built on airports by tenants, go to support general local 
government expenses, and may not contribute anything to the airport. 
Most airports rely almost exclusively on rent and fees from tenants and 
users to cover their operating and maintenance expenses. A through-the-
fence user who does not pay a fee for access may not be contributing 
any revenue to the airport itself, even though the user has special 
access to a valuable asset in the airfield.
    Comment: The owner of a hangar home with through-the-fence access 
should not have to pay the same amount an on-airport hangar tenant pays 
for rent of the hangar, since that rent includes the capital costs of 
providing that hangar.
    Response: While airport sponsors can establish their own rate-
setting methodology for access through the fence, the methodology used 
must be consistent with the sponsor's grant assurance obligations. In 
other words, the methodology should provide for recovery of costs and 
ensure fairness to airport tenants and users. The FAA has included 
several examples of fees that would accomplish the general goals of 
recovering costs and fairly distributing costs among airport users. The 
example related to hangar rent has been revised to make clear the 
amount represents an access fee based on the ground rental rate, and 
not the full rental for lease of an on-airport hangar.
    Comment: The notice used three different references to cost 
recovery, which made it unclear how much airport sponsors are expected 
to recover from through-the-fence users.
    Response: The preamble to the policy summarizes standards for 
through-the-fence access that include recovery of

[[Page 15032]]

airport operating costs. That standard states the airport can collect, 
and does collect, fees from through-the-fence users that are comparable 
to those charged to airport tenants so that all users bear a fair 
proportion of airport costs. That is an accurate statement of the 
agency's general policy goal for through-the-fence charges. The 
specific list of standards the FAA expects to be included in a 
sponsor's access plan includes more specific guidance on various fees 
that could be used to accomplish this goal, but the two statements both 
state the same principles of recovery of airport costs and fairness to 
airport tenants and users. However, nothing in the interim policy 
precludes an airport sponsor from establishing a higher rate for its 
through-the-fence users.
    Comment: The compliance standards stated in the proposed policy 
address situations that are not common at airports with through-the-
fence access. These conditions addressed by the standards are also 
found at airports that do not have through-the-fence access, where they 
have no effect on compliance.
    Response: Each of the standards listed for inclusion in an 
airport's access plan is based on experience with conditions at 
airports with residential through-the-fence access. If the condition 
addressed by a particular standard does not apply at an airport (for 
example, the airport already recovers airport costs from both tenants 
and off-airport users), then the sponsor would be required to do no 
more than document that fact in the access plan.
    Comment: The effective date of the policy should be the date of 
publication of the final policy, and not September 9, 2010.
    Response: The effective date of the interim policy adopted is March 
18, 2011. However, the definition of ``existing access'' retains the 
status date of September 9, 2010, the first date that the public was on 
notice of the FAA's intended policy. Retaining the September 9, 2010 
date in the definition simply prevents an attempt to establish new 
residential through-the-fence access in the brief period between 
publication of the notice and publication of this interim policy.
    Comment: The proposed policy on ``additional'' access provided that 
a change or extension of new access would be effective for 20 years. 
First, that is a disincentive for through-the-fence users to agree to 
changes in access that improve airport operation and safety; if the 
owner's current access rights are longer than 20 years. The developer 
of a through-the-fence residential project at an obligated general 
aviation airport in Sandpoint, Idaho, is willing to agree to relocation 
of its access taxiway to improve airport safety, but only if its 
current perpetual access rights transfer to the new configuration. 
Other commenters noted that the 20-year extension is not enough to 
amortize a standard residential mortgage of 30 years.
    Response: The FAA agrees that the proposed definition of 
``additional access'' and the 20-year limitation would have had some 
unintended effects. The interim policy adopted combines extensions and 
renewals of access into the single definition of ``extend an access.'' 
The interim policy makes clear that a change that serves to improve 
airport safety or implement the sponsor's long-term planning decisions 
will not be considered an ``extend an access.'' In this case, the 20-
year limit on access extensions will not apply, and whatever rights of 
access the owner has in the current access location may transfer to the 
new access location.
    On the second point, the FAA does not believe the 20-year limit on 
extension of access would be a hardship. First, many extensions of 
access would not involve financing or refinancing at all. Second, 
homeowners with significantly shorter access terms, such as one year, 
have obtained financing for construction. This is also a reasonable 
timeframe for airport sponsors as airport planning is typically based 
on a 20-year forecast and planning horizon.
    Comment: Revisions to the airport layout plan (ALP) and access 
plans required by the policy should be eligible for AIP planning 
grants.
    Response: By law, AIP funds may only be used for airport 
development projects, planning associated with airport development, and 
noise, air, and water quality mitigation. As a result, FAA Order 
5100.38C, Airport Improvement Program Handbook, states that AIP grants 
may fund updates to an ALP when the update is done as part of an 
airport's master plan study or update. Airport master plans routinely 
identify adjacent land uses to determine what, if any, constraints they 
might have on an airport's development. Therefore, the work items 
associated with an airport sponsor's implementation of the interim 
policy are directly related to airport master planning which is 
eligible for AIP grant funding. Airport sponsors should work with FAA 
Airports District Office (ADO) and regional division staff to develop 
an appropriate scope of work for their master plan. However, airport 
sponsors that choose to undertake these work items outside of a master 
planning process will need to fund them through local means.
    Comment: Some commenters expressed concern that the definition of 
``existing access'' may be too narrow. For example, how will the FAA 
address a situation in which a property owner develops a lot adjacent 
to an airport, but residential through-the-fence access is not 
currently being used and has not been formally granted by the airport 
sponsor. The policy should permit the airport sponsor to grant those 
property owners residential through-the-fence access.
    Response: Based on the limited information provided, the future 
access through the fence described in the comment would not be 
permitted under the interim policy if the property is used as a 
residence. This scenario does not meet the definition of ``existing 
access''. However, the airport sponsor will have the opportunity to 
demonstrate how its specific situation meets the definition of 
``existing access'' as stated in the interim policy. The FAA notes that 
the interim policy would not prevent the owner from requesting that the 
sponsor permit through-the-fence access for a hangar on the property if 
the property is not being used as a residence. Additionally, this is an 
interim policy and is subject to review. As stated in the introduction 
of the interim policy, FAA invites any person who would be interested 
in a specific approval of new residential through-the-fence access at a 
federally-obligated airport to contact the FAA Airport Compliance 
Division to discuss the particular circumstances so this can be 
considered in our 2014 review.
    Comment: If the FAA considers removing an airport from the National 
Plan of Integrated Airport Systems (NPIAS), that consideration should 
be based on the general criteria for inclusion in the NPIAS, and not 
simply the fact that the airport has not met the special standards 
included in the policy for residential through-the-fence access.
    Response: The FAA agrees with the comment. While failure to meet 
the compliance standards will trigger an FAA review of whether it is 
appropriate to retain an airport in the NPIAS, and possibly a 
compliance action, the final decision on whether to remove an airport 
from the NPIAS will take into account all of the criteria for inclusion 
in the NPIAS.
    Comment: The policy does not address on-airport housing. Existing 
on-airport housing should be subject to the same policy as off-airport 
properties with through-the-fence access, and the FAA should not 
consider the airport in noncompliance if the airport meets the

[[Page 15033]]

listed standards for through-the-fence access.
    Response: Airport property is not a safe or appropriate location 
for a residence. However, the FAA will review individual existing 
situations as necessary, to determine if special circumstances exist 
that make it appropriate to apply the criteria for through-the-fence 
residential use to on-airport housing.
    Comment: The policy should make clear that FAA is not softening its 
position on commercial through-the-fence access.
    Response: The interim policy on residential through-the-fence 
access does not affect the agency's policy on through-the-fence access 
from property used for commercial purposes. Through-the-fence access 
for any reason is generally discouraged, particularly from property 
used to provide aviation services. However, the FAA understands that 
there may be reasons for access to property used for aircraft storage 
or an owner's business, without the potential problems or permanent 
rights associated with residential use. Accordingly, a sponsor's 
permission for through-the-fence access for commercial purposes is not, 
in itself, considered a violation of the grant assurances. The FAA 
cautions that any attempts to convert commercial through-the-fence 
access into a residential arrangement is inconsistent with this interim 
policy and could result in a violation of sponsor assurance 5 as 
amended by this interim policy.
    Comment: It is not necessary for the FAA to consult the 
Transportation Security Administration (TSA) when reviewing access 
plans.
    Response: The FAA lacks the expertise to determine what impact, 
positive or negative, through-the-fence residential access may have on 
airports with regard to security. The TSA did not express any 
preference for residential use of land near the airport in our 
consultation with them in 2010. As noted in the proposed policy, the 
TSA plans to undertake its own review, and the FAA will review and 
consider any recommendations that may follow. In the interim, the FAA 
may consult the TSA as part of its review of the access plans.
    Comment: The proposed policy is inconsistent with Homeland Security 
Presidential Directive 16 and its supporting Domestic Outreach Plan.
    Response: The TSA did not raise any concerns related to this 
specific directive or any others when the FAA consulted with their 
staff in the spring of 2010. However, the FAA will forward these 
concerns to the TSA for further evaluation.

Discussion of FAA Clarifications

Interim Policy

    In reviewing the comments, the FAA determined that it will take 
more time and more detailed information to better understand how 
residential through-the-fence arrangements impact a sponsor's ability 
to comply with its grant assurances and whether or not specific 
criteria can be developed to ensure a sponsor's ongoing compliance with 
its assurances. Therefore, the FAA is adopting an interim policy and 
will initiate a policy review in 2014.
    Changes: All references to the policy now clarify that it is an 
interim measure.

Applicability

    In reviewing the proposed policy, the FAA determined that the scope 
identified for applicability was too narrow. The scope has been 
broadened to include federally-obligated airports where new 
residential-through-the-fence access is proposed. The FAA's 
implementation of the policy will require all federally-obligated 
airports to certify their status with regard to the policy.
    Changes: The interim policy clarifies this statement to read, 
``this interim Policy applies to all federally-obligated airports, 
including those with existing residential through-the-fence access or 
proposing to establish new residential through-the-fence access.'' 
Additionally, the interim policy states that all federally-obligated 
airports will be required to certify their status with regard to the 
policy.
Applicability--``Additional Through-the-Fence Access''
    In reviewing the comments, the FAA recognized the unintentional 
confusion created by the use of this term. The proposed policy defined 
``additional through-the-fence access'' to capture two specific 
circumstances: an airport sponsor's ability to permit a new access 
point and extension or renewal of access agreements at airports with 
existing residential through-the-fence arrangements. Upon further 
review, given the clear, specific conditions used to define ``existing 
access,'' it is not necessary to contemplate new points of entry for 
the residential through-the-fence users covered by the interim policy 
at this time.
    Changes: The interim policy replaces this term with a definition 
for ``extend an access'' and deletes references to the development of 
new access points.
Applicability--``Development''
    In reviewing the comments, the FAA recognized this term was vague. 
The interim policy offers a refined definition to better specify 
residential development.
    Changes: The interim policy amends this definition to specify the 
excavation or grading of land needed to construct a residential 
property or construction of a residence.
Applicability--``Residential Property''
    Some comments noted that the proposed policy lacked a clear 
definition of ``residential property''. The interim policy defines this 
term.
    Changes: The interim policy defines residential property as a piece 
of real property used for single- or multi-family dwellings; duplexes; 
apartments; primary or secondary residences even when co-located with a 
hangar, 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.
Section I. Existing Through-the-Fence Access From Residential Property 
at Federally-Obligated Airports
    In reviewing the proposed policy, the FAA found many of the 
statements in this section to be duplicative of statements made in the 
preamble. The interim policy incorporates these statements by reference 
to the proposed policy.
    Changes: The two subsections have been combined and shortened to 
succinctly summarize the interim policy.
Relocation of Access Points
    One comment noted that holders of through-the-fence access rights 
would be discouraged from relocating their access point if that 
relocation triggered a higher level of review or potentially diminished 
their legal rights. The interim policy adopts the change proposed in 
the comments.
    Changes: Section II of the interim policy allows the relocation of 
through-the-fence access points to be considered as ``existing access'' 
when the access point is relocated to improve the airport's overall 
safety or better address issues associated with the sponsor's long-term 
planning needs. The interim policy clarifies that the first access 
point must be removed, and this provision is not intended to be used to 
create new access points.

[[Page 15034]]

Section III. Standards for Compliance at Airports Proposing Additional 
Through-the-Fence Access at Airports Covered by This Policy
    The title and text of this section has been changed to reflect the 
FAA's decision to replace the term ``additional through-the-fence 
access'' with ``extend an access''. Additionally, some of the language 
has been re-worded to better reflect FAA's intent to review these 
proposals carefully.
    Changes: Section III of the interim policy is now titled, 
``Standards for compliance at airports proposing to extend through-the-
fence access''. Similar changes have been made throughout the text of 
the interim policy, and the requirements applicable to new access 
points have been deleted. This section clearly states the FAA's intent 
to review proposals to extend residential through-the-fence access 
carefully.

Access Fee Methodology

    In reviewing the comments, the FAA found that the phrasing used to 
describe various fee methodologies was confusing. The interim policy 
revises this phrasing to clarify that residential through-the-fence 
access fees should, at a minimum, be equivalent to the ground rental 
rate for on-airport tie-downs and hangars. Additionally, the FAA 
identified two other potential methodologies that could be used to set 
rates for through-the-fence access.
    Changes: Section III has been revised to better specify various 
methodologies that may be used to establish through-the-fence access 
fees, and adds two methodologies not included in the notice of proposed 
policy.
Section III. Standards for Compliance at Airports Proposing To Extend 
Through-the-Fence Access
    In reviewing the proposed policy, the FAA broadened the scope of 
some considerations to better capture the potential for an airport's 
growth and/or the use of new aircraft at that airport over time. Other 
changes were incorporated to better protect the sponsor's rights and 
powers.
    Changes: Section III is revised to better clarify:
     Sponsors should obtain perpetual avigation easements for 
overflight.
     Residential through-the-fence users acknowledge that their 
property will be affected by aircraft noise, emissions, and operations 
that may change over time.
     Residential through-the-fence users waive any right to 
bring an action against the airport sponsor for existing and future 
operations and activities at the airport.
     The airport sponsor has a mechanism for requiring a 
residential through-the-fence user to comply with the FAA's 
determination with regard to FAA Form 7460-1, Notice of Proposed 
Construction or Alteration.
    In reviewing the proposed policy, the FAA identified three 
additional criteria it will consider when an airport sponsor proposes 
to extend existing through-the-fence access. Consistent with other 
changes made to the interim policy, one reference to new access points 
has been deleted.
    Changes: Section III has been revised to delete the reference to 
additional access and include the additional considerations:
     The sponsor has a mechanism for ensuring residents with 
through-the-fence access do not create or permit conditions or engage 
in practices that could result in airport hazards, including wildlife 
attractants.
     The access agreement is subordinate to the sponsor's 
current and all future grant assurances.
     The airport sponsor has developed a process for educating 
residents with through-the-fence access about their rights and 
responsibilities.
Section IV. Process and Documentation
    Some comments questioned the process and timeline for how the FAA 
will review residential through-the-fence access plans. To address 
this, the interim policy now states that the FAA will establish 
implementation guidance in the form of a Compliance Guidance Letter 
available on the FAA's Web site at http://www.faa.gov/airports.
    Changes: Section IV references the forthcoming Compliance Guidance 
Letter on FAA Implementation of Interim Policy on Residential Through-
the-Fence and Review of Access Plans. The interim policy encourages 
airport sponsors to review this Compliance Guidance Letter that will be 
available on the FAA's Web site at www.faa.gov/airports.
    In reviewing the proposed policy, the FAA re-worded some of the 
language in Section IV to better clarify that airport sponsors should 
provide residential through-the-fence access plans.
    Changes: A sentence in Section IV has been re-worded to more 
clearly convey airport sponsors' responsibility to provide residential 
through-the-fence access plans.
    In reviewing the proposed policy, the FAA re-evaluated its proposal 
to require airport sponsors with existing residential through-the-fence 
arrangements to initiate a formal airport layout plan (ALP) revision 
after the FAA accepts their access plan. The FAA believes that the 
sponsor's pen and ink change should be sufficient to provide the 
information needed. Thus, the interim policy provides a more flexible 
approach and allows the airport sponsor to undertake this task on its 
own schedule as part of its planning process.
    Changes: Section IV no longer requires airport sponsors to initiate 
a formal ALP revision within three years from the date their access 
plan is accepted. Instead, the airport sponsor will be expected to 
complete a formal ALP revision that fully depicts the scope of the 
existing residential through-the-fence arrangements the next time the 
sponsor initiates an airport master plan study or update.
    In reviewing the proposed policy, the FAA found it was vague with 
regard to when an airport sponsor would need to re-evaluate its access 
plan. The interim policy clarifies that the FAA's acceptance of an 
access plan represents an agency determination, as opposed to a 
finding, that the airport sponsor has met the compliance standards for 
existing residential through-the-fence access for a period not to 
exceed 20 years.
    Changes: The interim policy notes that the FAA will make a 
determination, which is more consistent with other actions made by the 
FAA Airport Compliance Division. It is also more specific with regard 
to the frequency at which sponsors will need to update their 
residential through-the-fence access plans. The interim policy 
identifies four events which would trigger an update of the access 
plans. Those events include: development of a new master plan, 
significant updates to an ALP, requests for federal participation in 
land acquisition, or any changes to the access agreement.
    In reviewing the proposed policy, the FAA determined that language 
used to describe airports serving a function in the NPIAS, but unable 
to meet the standard of compliance, should be revised. The interim 
policy states that the FAA will consider the constraints placed on the 
utility of the airport to be a significant factor.
    Changes: The interim policy has been revised to state, ``The 
sponsor will not lose eligibility for entitlement grants on the basis 
of through-the-fence access, but the FAA will have to consider the 
constraints on the utility of the airport as a significant factor in 
AIP funding decisions.''
    In reviewing the proposed policy, the FAA revised the language used 
to describe airports that no longer have significant value in the 
national system. The interim policy states the FAA will address cases 
in which the residential

[[Page 15035]]

through-the-fence access cannot be reasonably mitigated through the 
development of an access plan and the use of that access adversely 
affects the airport's public use characteristics.
    Changes: The interim policy has been revised to clarify the FAA 
will consider removing an airport from the NPIAS if residential 
through-the-fence access cannot be reasonably mitigated through 
development of an access plan and the use of that access affects the 
airport's public use characteristics.
    In reviewing the proposed policy, the FAA found it was vague in its 
treatment of airport sponsors with existing residential through-the-
fence access that fail to submit an access plan. The interim policy 
explains that failure to submit an access plan may jeopardize an 
airport sponsor's ability to compete for AIP grant funding beginning in 
Fiscal Year 2013.
    Changes: The interim policy adds paragraph 6.c. to Section IV. This 
paragraph discusses the FAA's expectation that airports with existing 
residential through-the-fence access will develop appropriate access 
plans. Failure to do so may jeopardize an airport sponsor's AIP 
eligibility beginning in Fiscal Year 2013.
    In reviewing this section, the FAA replaced all references to 
requests for ``additional'' residential through-the-fence access to 
``extend'' residential through-the-fence access. The FAA also deleted 
any requirements that would be necessitated by a new access point.
    Changes: Paragraph B of Section IV is titled ``Requests to extend 
residential through-the-fence access at airports covered by this 
interim Policy''. Similar changes have been made throughout this 
section, and references to new access points have been deleted. The 
interim policy also deletes the requirement that sponsors submit a 
revised ALP depicting any new access points.
    In reviewing the requirements for sponsors proposing to extend 
residential through-the-fence access, the FAA refined its intent with 
regard to master plans. The interim policy specifies that airport 
sponsors should work with FAA staff to develop an appropriate scope of 
work for their master plan.
    Changes: The paragraph describing the master plan requirements 
directs airport sponsors to work with the FAA ADO or regional division 
staff to develop an appropriate scope of work for their master plan.
Section V. Eligibility for AIP grants
    In reviewing the proposed policy, the FAA found it was not clear in 
its explanation of future AIP eligibility and how the Agency will 
evaluate requests to fund public infrastructure and facilities that 
provide substantial benefit to private through-the-fence users. The 
proposed policy states the FAA will reduce its investment in such 
projects; however, the FAA will consider the constraints on the utility 
of the airport and determine if the project is sufficiently justified 
before making an investment decision.
    Changes: The interim policy states the FAA will have to consider 
the constraints on the utility of the airport as a significant factor 
in AIP funding decisions. It also more clearly explains that the FAA 
may not be able to justify the federal investment in projects that 
result in substantial benefit to residential through-the-fence users.

Amendment to Grant Assurance 5

    In reviewing the proposed policy, the FAA found many of the 
statements in this section to be duplicative of statements made in the 
preamble. The interim policy deletes these statements.
    Changes: The description of item 2 has been shortened to succinctly 
summarize the interim policy.

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

    In consideration of the foregoing, the Federal Aviation 
Administration adopts the following interim Policy on existing through-
the-fence access to a federally-obligated airport from residential 
property:

Interim Policy on Existing Through-the-Fence Access to Airports from A 
Residential Property

Applicability

    This interim Policy applies to all federally-obligated airports, 
including those with existing residential through-the-fence access or 
proposing to establish new residential through-the-fence access. All 
federally-obligated airports will be required to certify their status 
with regard to this policy.
    For the purposes of this interim Policy statement:
    In this sense ``access'' means:
    1. An access point for taxiing aircraft across the airport 
boundary; or
    2. The right of the owner of a particular off-airport residential 
property to use an airport access point to taxi an aircraft between the 
airport and that property.
    ``Existing access'' through the fence is defined as any through-
the-fence access that meets one or more of the following conditions:
    1. There was a legal right of access from the property to the 
airport (e.g., by easement or contract) in existence as of September 9, 
2010; or
    2. There was development of the property prior to September 9, 
2010, in reliance on the airport sponsor's permission for through-the-
fence aircraft access to the airport; or
    3. The through-the-fence access is shown on an FAA-approved airport 
layout plan (ALP) or has otherwise been approved by the FAA in writing, 
and the owner of the property has used that access prior to September 
9, 2010.
    ``Extend an access'' is defined as an airport sponsor's consent to 
renew or extend an existing right to access the airport from 
residential property or property zoned for residential use, for a 
specific duration of time, not to exceed 20 years.
    ``Development'' is defined as excavation or grading of land needed 
to construct a residential property; or construction of a residence.
    ``Residential property'' is defined as a piece of real property 
used for single- or multi-family dwellings; duplexes; apartments; 
primary or secondary residences even when co-located with a hangar, 
aeronautical facility, or business; hangars that incorporate living 
quarters for permanent or long-term use; and time-share hangars with 
living quarters for variable occupancy of any term.
    ``Transfer of access'' through the fence is defined as one of the 
following transactions:
    1. Sale or transfer of a residential property or property zoned for 
residential use with existing through-the-fence access; or
    2. Subdivision, development, or sale as individual lots of a 
residential property or property zoned for residential use with 
existing through-the-fence access.
I. Existing Through-the-Fence Access From Residential Property at 
Federally-Obligated airports
    The agency understands that it may not be practical or even 
possible to terminate through-the-fence access at many of those 
airports where that access already exists. Where access could be 
terminated, property owners have claimed that termination could have 
substantial adverse effects on their property value and investment, and 
airport sponsors seeking to terminate this access could be exposed to 
costly lawsuits. Accordingly, the FAA will not consider the existence 
of existing residential through-the-fence access by itself to be in 
noncompliance with the airport sponsor's grant assurances.
    In some cases, the FAA has found that through-the-fence access 
rights can

[[Page 15036]]

interfere with the sponsor's ability to meet its obligations as sponsor 
of a federally assisted public use airport. This is discussed in detail 
at 75 FR 54946, 54948 (Sept. 9, 2010). As a result, the FAA believes 
that sponsors with existing through-the-fence access arrangements must 
adopt measures to substantially mitigate the potential problems with 
residential through-the-fence access where it exists to avoid future 
grant compliance issues. Therefore, the FAA, as a condition of 
continuing grants to airports with residential through-the-fence 
access, will require that sponsors adopt the measures to substantially 
mitigate the potential problems with residential through-the-fence 
access to avoid future grant compliance issues.
    Accordingly, the sponsor of an airport where residential through-
the-fence access or access rights already exist will be considered in 
compliance with its grant assurances if the airport depicts the access 
on its airport layout plan (ALP) and meets certain standards for 
safety, efficiency, ability to generate revenue to recover airport 
costs, and mitigation of potential noncompatible land uses. Those 
standards are listed in section II, Standards for compliance at 
airports with existing through-the-fence access. The FAA's review of 
those standards will be detailed in a Compliance Guidance Letter which 
will be issued concurrently and published on the FAA's Web site at 
www.faa.gov/airports. An airport sponsor covered by this interim Policy 
must seek FAA approval before entering into any arrangement that would 
extend (including renewal of access) through-the-fence access. Sponsors 
are reminded that nearby homeowners possess no right to taxi aircraft 
across the airport's property boundary, and no off-airport property 
owner will have standing to file a formal complaint under 14 CFR Part 
16 with the FAA to challenge the sponsor's decision not to permit such 
access.
II. Standards for Compliance at Airports with Existing Through-the-
Fence Access
    The FAA understands that municipally-owned airports have varying 
degrees of zoning authority. For example, one airport sponsor may have 
strong zoning powers, while another may have none. Also, the nature of 
existing through-the-fence rights can greatly affect the sponsor's 
ability to implement measures to control access. Accordingly, the FAA 
does not expect every airport with existing residential through-the-
fence access to adopt a uniform set of rules and measures to mitigate 
that access. However, the FAA does expect each such sponsor to adopt 
reasonable rules and implement measures that accomplish the following 
standards for compliance, to the fullest extent feasible for that 
sponsor. In general, the greater the number of residential through-the-
fence access points and users of the airport and the higher the number 
of aircraft operations, the more important it is to have formal 
measures in effect to ensure the sponsor retains its proprietary powers 
and mitigates adverse effects on the airport.
    The FAA's standards for compliance for any sponsor of an airport 
with existing residential through-the-fence access are as follows:
    1. General authority for control of airport land and access. The 
airport sponsor has sufficient control of access points and operations 
across airport boundaries to maintain safe operations, and to make 
changes in airport land use to meet future needs.
    2. Safety of airport operations. By rule, or by agreement with the 
sponsor, through-the-fence users are obligated to comply with the 
airport's rules and standards.
    3. Recovery of costs of operating the airport. The airport sponsor 
can and does collect fees from through-the-fence users comparable to 
those charged to airport tenants, so that through-the-fence users bear 
a fair proportion of airport costs.
    4. Protection of airport airspace. Operations at the airport will 
not be affected by hangars and residences on the airport boundary, at 
present or in the future.
    5. Compatible land uses around the airport. The potential for 
noncompatible land use adjacent to the airport boundary is minimized 
consistent with grant assurance 21, Compatible Land Use.
    These standards will be applied, on a case-by-case basis, in the 
FAA's evaluation of whether each airport with existing residential 
through-the-fence access meets the above requirements to the fullest 
extent feasible for that airport. In situations when access can be 
legally transferred from one owner to another without the airport 
sponsor's review, the FAA will treat the access as existing. Because 
the ability of some sponsors to control access has been compromised as 
a result of legal rights previously granted to through-the-fence users, 
existing access locations may be evaluated under the alternative 
criteria for some standards as indicated below, if applicable to that 
airport.
    In some cases, an airport sponsor may seek to relocate an existing 
access point. If the sponsor can demonstrate that this action will 
improve the airport's overall safety or better address issues 
associated with the sponsor's long-term planning needs, the FAA will 
not consider the access rights associated with the replacement access 
point to extend an access. In order to transfer the terms of the 
existing access point to a new access point without a change in 
compliance status, the former existing access point must be removed. 
Such requests should be coordinated with the FAA Airports District 
Office (ADO) or Regional Airports Division and clearly depicted on the 
sponsor's ALP.
III. Standards for Compliance at Airports Proposing to Extend Through-
the-Fence Access
    Once allowed, residential through-the-fence access is very 
difficult to change or eliminate in the future. This is because 
residential owners, more so than commercial interests, typically expect 
that their residential property will remain suitable for residential 
use and protected from adverse effects for a long time. Residential 
buyers and their mortgage lenders may ensure that the property is 
purchased with rights that guarantee no change in the access to the 
airport for decades, or indefinitely. Because each additional 
residential through-the-fence access location introduces the potential 
for problems for the airport in the future, and because this access is 
effectively permanent and resistant to change once permitted, the FAA 
will review extensions of existing residential through-the-fence access 
at public use airports carefully.
    The following supplemental standards will be applied to the FAA's 
case-by-case review of sponsors' proposals to extend residential 
through-the-fence access. In situations when the transfer of access 
from one owner to another requires the airport sponsor's concurrence, 
the FAA will treat the access as an extension. The FAA will not approve 
requests to extend access that are inconsistent with the sponsor's 
grant assurances (excluding grant assurance 5, Preserving Rights and 
Powers, paragraph ``g'' as amended by this notice). Furthermore, the 
sponsor will be required to demonstrate the following standards for 
compliance:
     The term of the access does not exceed 20 years.
     The sponsor provides a current (developed or revised 
within the last five years) airport master plan identifying adequate 
areas for growth that are not affected by the existence of through-the-
fence access rights, or the sponsor has a process for amending or 
terminating existing through-the-fence access in order to acquire land 
that may

[[Page 15037]]

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.
     The sponsor will charge through-the-fence residents 
utilizing this access fees that recover airport costs and fairly 
distribute the burden of airport fees across all airport users, to both 
tenants and through-the-fence users. Rates should increase on the same 
schedule as tenant fees. Fees that may be sufficient for this purpose 
include, without limitation:
     [cir] Fees equal to tenant tie-down charges.
     [cir] A fee that is based on the methodology used to establish 
tenant rates for land rental on the airport, e.g., 25 cents per square 
foot.
     [cir] Ground leases for dedicated taxiway connections to off-
airport properties.
     [cir] Assessment of capital costs for general infrastructure.
     [cir] A local tax assessment or levy on off-airport aircraft 
owners that is dedicated to airport's account.
     [cir] Any methodology that reflects the high value of through-the-
fence access.
     Through-the-fence residents will bear all the costs of 
infrastructure, including snow removal and maintenance, related to this 
access.
     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 airport sponsor for 
existing and future operations and activities at the airport associated 
with aircraft noise and emissions.
     The sponsor has a mechanism for ensuring through-the-fence 
residents utilizing this access will file FAA Form 7460-1, Notice of 
Proposed Construction or Alteration, if necessary and complying with 
the FAA's determination related to the review of Form 7460-1.
     The sponsor has a mechanism for ensuring through-the-fence 
residents do not create or permit conditions or engage in practices 
that could result in airport hazards, including wildlife attractants.
     Where available, the airport sponsor or other local 
government has in effect measures to limit future use and ownership of 
the through-the-fence properties to aviation-related uses (in this 
case, hangar homes), such as through zoning or mandatory deed 
restrictions. The FAA recognizes this measure may not be available to 
the airport sponsor in all states and jurisdictions.
     If the residential community has adopted restrictions on 
owners for the benefit of the airport (such as a commitment not to 
complain about aircraft noise), those restrictions are enforceable by 
the airport sponsor as a third-party beneficiary, and may not be 
cancelled without cause by the community association.
     The access agreement is subordinate to the sponsor's 
current and all future grant assurances.
     The airport 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 an airport with existing residential 
through-the-fence access will be considered in compliance with its 
grant assurances, and eligible for future grants, if the FAA determines 
that the airport meets the applicable standards listed above under 
Standards for compliance at airports with existing residential through-
the-fence access. The sponsor may demonstrate that it meets these 
standards by providing the 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''). Airport sponsors are encouraged to review the FAA's 
Compliance Guidance Letter on FAA Implementation and Review of 
Residential-Through-Fence Access Arrangements, which will be issued 
concurrently, prior to submitting their access plan. This guidance 
letter will be published on the FAA's Web site at http://www.faa.gov/airports. The ADO or regional division will review each access plan, on 
a case-by-case basis, to confirm that it addresses how the sponsor 
meets each of these standards at its airport. The ADO or regional 
division will forward its recommendations regarding each access plan to 
the Manager of Airport Compliance. Only the Manager may accept an 
airport sponsor's residential through-the-fence access plan. In 
reviewing the access plan, the Manager may consult with the 
Transportation Security Administration (TSA). The FAA will take into 
account the powers of local government in each state, and other 
particular circumstances at each airport. In every case, however, the 
access plan must address each of the basic requirements listed under 
section II of this interim Policy.
    2. Residential through-the-fence access plan. The FAA will require 
evidence of compliance before issuing an AIP grant, beginning in Fiscal 
Year 2013. FY 2013 and later grants will include a special grant 
condition requiring the ongoing implementation of these access plans. 
Generally, the FAA will not award discretionary grants to the airport 
until the FAA accepts the sponsor's access plan as meeting the 
standards to the extent feasible for that airport. Therefore, airport 
sponsors should provide a residential through-the-fence access plan no 
later than the October 1st of the fiscal year in which the sponsor will 
request an AIP grant (i.e., sponsors that will request an AIP grant in 
Fiscal Year 2013 must submit an access plan no later than October 1, 
2012; sponsors requesting an AIP grant in Fiscal Year 2014 must submit 
no later than October 1, 2013).
    3. Airport Layout Plan. The FAA will require all residential 
through-the-fence access points to be identified on the airport's 
layout plan. A temporary designation may be added through a 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 arrangements should be completed the next 
time the airport sponsor initiates an airport master plan study or 
update.
    A sponsor's failure to depict all residential through-the-fence 
access points may be considered an apparent violation of the sponsor's 
grant assurances, and the agency may consider grant enforcement under 
14 CFR part 16.
    4. FAA review. The FAA's acceptance of the access plan represents 
an agency determination that the airport has met the compliance 
standards for existing residential through-the-fence access for a 
period not to exceed 20 years. The following actions will require an 
airport sponsor to update its access plan prior to its 20-year 
expiration: development of a new master plan, significant updates

[[Page 15038]]

to an ALP, requests for federal financial participation in land 
acquisition, or any changes to the access agreement. An airport 
sponsor's failure to implement its access plan could result in a 
violation of the special grant condition and potentially lead to a 
finding of noncompliance.
    5. Airports currently in noncompliance. Airports currently in 
noncompliance due to grant assurance violations related to through-the-
fence access, such as grant assurance 19, Operation and Maintenance, 
will need to continue to work with ADO and regional division staff to 
establish an appropriate corrective action plan. An FAA-approved 
corrective action plan, once accepted by the FAA, will serve as the 
sponsor's access plan. The decision to restore the sponsor's compliance 
status will be made by the Manager of Airport Compliance. In cases 
where the airport's safety and utility have been compromised, the 
Manager may require the sponsor to take definitive steps to address 
those concerns before restoring the sponsor to a compliant status.
    6. Airports with existing residential through-the-fence access that 
do not meet the compliance standards. The FAA recognizes that some 
airport sponsors will not be able to fully comply with the standards 
listed above, due to limits on the powers of the sponsor and/or other 
local governments, or on other legal limits on the sponsor's discretion 
to adopt certain measures. Other airports have the capability to adopt 
measures to satisfy the compliance standards but have not done so. The 
FAA will take the following action with respect to any obligated 
airport with existing residential through-the-fence access that does 
not meet the minimum compliance standards:
    a. Airports that serve a function in the National Plan of 
Integrated Airport Systems (NPIAS) but cannot fully meet the through-
the-fence compliance standards. Where the airport still substantially 
serves its intended function in the NPIAS, but residential through-the-
fence access at the airport will have an adverse effect on the 
airport's operations, its ability to grow, or its ability to accept new 
kinds of aviation use, the FAA will consider a reduced level of future 
AIP investment in the airport. FAA evaluation of investment needs will 
reflect any impairment in the airport's utility due to residential 
through-the-fence use. The sponsor will not lose eligibility for 
entitlement grants on the basis of the through-the-fence access, but 
the FAA will have to consider the constraints on the utility of the 
airport to be a significant factor in AIP funding decisions.
    b. Airports that no longer have significant value in the national 
system. Where the residential through-the-fence access cannot be 
reasonably mitigated through the development of an access plan, and use 
of that access adversely affects the airport's public use 
characteristics, the FAA will consider removal of the airport from the 
NPIAS consistent with the requirements of FAA Order 5090.3C Field 
Formulation of the National Plan of Integrated Airport Systems (NPIAS). 
The FAA may either take steps to recover unamortized grant funds, or 
may leave grant assurances in effect for the life of existing grants 
but award no new grants.
    c. Airports that fail to submit an access plan. The FAA expects 
airport sponsors with existing residential through-the-fence access to 
develop an access plan which preserves their proprietary rights and 
powers and mitigates the inherent challenges posed by this practice. 
Beginning in Fiscal Year 2013, a sponsor's failure to comply with the 
interim policy may jeopardize its ability to compete for AIP grant 
funding.
    B. Requests to extend residential through-the-fence access at 
airports covered by this interim Policy
    As of the date of this notice March 18, 2011, a sponsor proposing 
to extend an access arrangement 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 (Manager). Only the Manager may approve an 
airport sponsor's request to extend access. In reviewing the proposal, 
the Manager may consult with the TSA.
    1. Master Plan. A sponsor wishing to extend an existing residential 
through-the-fence access arrangement must submit a recent airport 
master plan to the ADO or regional division. The FAA considers a master 
plan to be recent if it was developed or updated within the past five 
years. The master plan should explain how the sponsor plans to address 
future growth, development, and use of the airport property over the 
next 20 years; airport sponsors should work with ADO or regional 
division staff to develop an appropriate scope of work for these master 
plans.
    2. Residential through-the-fence access plan. The sponsor is 
responsible for revising its access plan, as discussed under section 
IV.A.2 of this interim Policy, to reflect how it will meet the 
standards for compliance for the extended access. Once accepting the 
revised access plan, the FAA will condition future AIP grants upon its 
ongoing implementation.
    3. Continuing obligations. Once the revised access plan is accepted 
by the FAA, and if required, the revised ALP, is approved by the FAA, 
the sponsor must continue to comply with obligations described in 
section IV.A of this interim Policy.
V. Eligibility for AIP grants
    A. General. Beginning in Fiscal Year 2013, a sponsor will be 
required to submit their residential through-the-fence access plans 
prior to notifying the FAA of its intent to apply for an AIP grant. The 
sponsor will not lose eligibility for entitlement grants on the basis 
of the through-the-fence access, but the FAA will have to consider the 
constraints on the utility of the airport to be a significant factor in 
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.

2. The Proposed Amendment to the Standard AIP Sponsor Assurances

    At this time, the FAA considers a sponsor's consent to any 
permission for through-the-fence access to the airport from a 
residential property that does not meet the definition of ``existing 
access'' in this interim policy to be inconsistent with the sponsor's 
grant assurances, specifically, the obligation to maintain rights and 
powers to control airport development and operation. Permitting such 
access to the airport may also result in violations of the obligation 
to impose a reasonable, not unjustly discriminatory rate structure that 
makes the airport as self-sustaining as possible, and the obligation to 
restrict areas adjacent to the airport to compatible land uses.
    Accordingly, the FAA will consider a new through-the-fence access 
arrangement from a property used as a residence or zoned for 
residential use to be an apparent violation of the sponsor's grant 
assurances, and the agency may investigate any report of such action 
for

[[Page 15039]]

possible enforcement under 14 CFR part 16. Any action taken to 
strengthen, memorialize, or codify existing access in perpetuity beyond 
that described in an FAA approved residential through-the-fence access 
plan at an airport with existing access will also be considered a new 
grant of through-the-fence access. The sponsor will, of course, have 
the opportunity to present information and arguments to the FAA during 
the Part 16 process.
    In consideration of the above, the FAA adds new paragraph g. to 
standard AIP sponsor assurance 5, to read as follows:

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

    Issued in Washington, DC on March 14, 2011.
Randall S. Fiertz,
Director, Airport Compliance and Field Operations.
[FR Doc. 2011-6346 Filed 3-17-11; 8:45 am]
BILLING CODE 4910-13-P
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