[Federal Register Volume 78, Number 136 (Tuesday, July 16, 2013)]
[Rules and Regulations]
[Pages 42419-42430]
[FR Doc No: 2013-16917]

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Chapter I

[Docket No. FAA-2012-0754]

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

AGENCY: Federal Aviation Administration (FAA).

ACTION: Final Policy Statement.

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

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

FOR FURTHER INFORMATION CONTACT: Randall S. Fiertz, Director, Office of
Airport Compliance and Management Analysis, Federal Aviation
Administration, 800 Independence Avenue SW., Washington, DC 20591,
telephone<PHONE_NUMBER>; facsimile:<PHONE_NUMBER>.

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<PHONE_NUMBER>. 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

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

Aircraft Owners and Pilots Association

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

Experimental Aircraft Association

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

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

Independence Airpark Homeowners Associations

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

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

National Air Transportation Association

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

Oregon Department of Aviation

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

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

Washington Airport Management Association

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

Comments Submitted by Individuals

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

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

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

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

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

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

FAA's Interpretation of the FMRA's Section 136

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

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

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

Applicability

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

to adopt measures to substantially mitigate the potential problems with
residential through-the-fence access to avoid future grant compliance
issues.
    Accordingly, the sponsor of a commercial service airport where
residential through-the-fence access or access rights already exist
will be considered in compliance with its grant assurances if the
airport depicts the access on its ALP, satisfies the terms and
conditions contained in section 136 of Public Law 112-95, and meets
certain standards for safety, efficiency, parity of fees, and
mitigation of potential noncompatible land uses. Those standards are
listed in section II, Standards for compliance at commercial service
airports with existing through-the-fence access. The FAA's review of
those standards will be detailed in a Compliance Guidance Letter which
will be issued concurrently and published on FAA's Web site at
www.faa.gov/airports. An airport sponsor covered by this Final Policy
will be required to seek FAA approval before entering into any
agreement that would extend (including renewal of access) through-the-
fence access. Sponsors are reminded that nearby homeowners possess no
right to taxi aircraft across the airport's property boundary, and no
off-airport property owner will have standing to file a formal
complaint under 14 CFR, part 16 with FAA to challenge the sponsor's
decision not to permit such access.
II. Standards for Compliance at Commercial Service Airports With
Existing Through-the-Fence Access
    The FAA understands that municipally-owned airports have varying
degrees of zoning authority. For example, one sponsor may have
substantial zoning powers, while another may have none. Also, the
nature of existing through-the-fence rights can greatly affect the
sponsor's ability to implement measures to control access. Accordingly,
FAA does not expect every sponsor of an airport with existing
residential through-the-fence access to adopt a uniform set of rules
and measures to mitigate that access. However, FAA does expect each
such sponsor to adopt reasonable rules and implement measures that
accomplish the following standards for compliance and satisfy the law,
to the fullest extent feasible for that sponsor. In general, the
greater the number of residential through-the-fence access points and
users of the airport and the higher the number of aircraft operations,
the more important it is to have formal measures in effect to ensure
the sponsor retains its proprietary powers and mitigates adverse
effects on the airport.
    In order to satisfy the law, the sponsor and the property owner or
an association representing property owners must have a written
agreement that requires the property owner to:
     Pay access charges that the sponsor determines to be
comparable to those fees charged to tenants and operators on-airport
making similar use of the airport;
     Bear the cost of building and maintaining the
infrastructure the sponsor determines is necessary to provide access to
the airfield from property located adjacent to or near the airport;
     Maintain the property for residential, noncommercial use
(FAA interprets this limitation as a prohibition on commercial
aeronautical services only) for the duration of the agreement;
     Prohibit access to the airport from other properties
through the property of the property owner (FAA interprets this
limitation as a prohibition on access to the airport not authorized by
the airport sponsor); and
     Prohibit any aircraft refueling from occurring on the
property (FAA interprets this as a prohibition on the sale of fuel from
residential property).
    The FAA's standards for compliance for any sponsor of a commercial
service airport with existing residential through-the-fence access are
as follows:
    1. General authority for control of airport land and access. The
sponsor has sufficient control of access points and operations across
airport boundaries to maintain safe operations, and to make changes in
airport land use to meet future needs.
    2. Safety of airport operations. By rule, or by agreement with the
sponsor, through-the-fence users are obligated to comply with the
airport's rules and standards.
    3. Parity of access fees. The sponsor can and does collect fees
from through-the-fence users comparable to those charged to airport
tenants.
    4. Protection of airport airspace. Operations at the airport will
not be affected by hangars and residences on the airport boundary, at
present or in the future.
    5. Compatible land uses around the airport. The potential for
noncompatible land use adjacent to or in the immediate vicinity of the
airport is minimized consistent with Grant Assurance 21, Compatible
Land Use.
    These standards will be applied, on a case-by-case basis, in FAA's
evaluation of whether each commercial service airport with existing
residential through-the-fence access meets the above requirements to
the fullest extent feasible for that airport. In situations when access
can be legally transferred from one owner to another without the
sponsor's review, FAA will treat the access as existing. Because the
ability of some sponsors to control access has been compromised as a
result of legal rights previously granted to through-the-fence users,
existing access locations may be evaluated under the alternative
criteria for some standards as indicated below, if applicable to that
airport.
    In some cases, a sponsor may seek to relocate an existing access
point. If the sponsor can demonstrate that this action will improve the
airport's overall safety or better address issues associated with the
sponsor's long-term planning needs, FAA will not consider the access
rights associated with the replacement access point to extend an
access. In order to transfer the terms of the existing access point to
a new access point without a change in compliance status, the former
existing access point must be removed. Such requests should be
coordinated with FAA's ADO or Regional Airports Division and upon FAA
concurrence, clearly depicted on the sponsor's ALP.
III. Standards for Compliance at Commercial Service Airports Proposing
To Extend Through-the-Fence Access
    Once allowed, residential through-the-fence access is very
difficult to change or eliminate in the future. This is because
residential owners, more so than commercial interests, typically expect
that their residential property will remain suitable for residential
use and protected from adverse effects for a long time. Residential
buyers and their mortgage lenders may ensure that the property is
purchased with rights that guarantee no change in the access to the
airport for decades, or indefinitely. Because each additional
residential through-the-fence access location introduces the potential
for problems for the airport in the future, and because this access is
effectively permanent and resistant to change once permitted, FAA will
review extensions of existing residential through-the-fence access at
public use airports carefully.
    The following supplemental standards will be applied to FAA's case-
by-case review of sponsors' proposals to extend residential through-
the-fence access. In situations when the transfer of access from one
owner to another requires the sponsor's concurrence, FAA will treat the
access as an extension. The FAA will not approve requests to extend
access that are inconsistent with the sponsor's grant assurances
(excluding Grant Assurance

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

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

    Issued in Washington, DC on July 9, 2013.
Randall S. Fiertz,
Director, Airport Compliance and Management Analysis.
[FR Doc. 2013-16917 Filed 7-15-13; 8:45 am]
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[Federal Register: November 27, 2007 (Volume 72, Number 227)]
[Notices]
[Page 66163]
[DOCID:fr27no07-72]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

 [Docket No. EL08-7-000]

The Borough of Chambersburg, PA; Notice of Filing

November 19, 2007.
    Take notice that on November 11, 2007, The Borough of Chambersburg,
Pennsylvania (Chambersburg), tendered for filing pursuant to Rule
207(a)(5) of the Commission's Rules of Practice and Procedure a
petition for approval of Chambersburg's annual revenue requirement for
its contribution to the supply of Reactive Power and Voltage Control
from Generation Sources Service under Schedule 2 of the PJM
Interconnection, L.L.C. open access transmission tariff.
    Any person desiring to intervene or to protest this filing must
file in accordance with Rules 211 and 214 of the Commission's Rules of
Practice and Procedure (18 CFR 385.211, 385.214). Protests will be
considered by the Commission in determining the appropriate action to
be taken, but will not serve to make protestants parties to the
proceeding. Any person wishing to become a party must file a notice of
intervention or motion to intervene, as appropriate. Such notices,
motions, or protests must be filed on or before the comment date. On or
before the comment date, it is not necessary to serve motions to
intervene or protests on persons other than the Applicant.
    The Commission encourages electronic submission of protests and
interventions in lieu of paper using the ``eFiling'' link at http://www.ferc.gov.
 Persons unable to file electronically should submit an

original and 14 copies of the protest or intervention to the Federal
Energy Regulatory Commission, 888 First Street, NE., Washington, DC
20426.
    This filing is accessible on-line at http://www.ferc.gov, using the

``eLibrary'' link and is available for review in the Commission's
Public Reference Room in Washington, DC. There is an ``eSubscription''
link on the Web site that enables subscribers to receive e-mail
notification when a document is added to a subscribed docket(s). For
assistance with any FERC Online service, please e-mail
<EMAIL_ADDRESS>or call<PHONE_NUMBER> (toll free). For

TTY, call<PHONE_NUMBER>.
    Comment Date: 5 p.m. Eastern Time on November 27, 2007.

Kimberly D. Bose,
Secretary.
[FR Doc. E7-23037 Filed 11-26-07; 8:45 am]

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