[Federal Register Volume 76, Number 53 (Friday, March 18, 2011)]
[Notices]
[Pages 15028-15039]
[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

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<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 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<PHONE_NUMBER>. 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

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

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

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

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.

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

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

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

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

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

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


UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, D. C. 20460 OFFICE OF PREVENTION, PESTICIDES AND TOXIC SUBSTANCES September 21, 2005 MEMORANDUM SUBJECT: Endothall [ PC Codes 038901, 038904, 038905], Acute Mammalian Toxicity Batching Appendix for Endothall RED Document.

FROM: Mark Perry [ sign. M. Perry 9/ 21/ 05] Product Reregistration Branch Special Review and Reregistration Division ( 7508C)

TO: Mika Hunter, CRM Reregistration Branch III Special Review and Reregistration Division ( 7508C)

Attached is the batching appendix for Endothall. Please let me know if you have any questions regarding this document. EPA'S BATCHING OF ENDOTHALL PRODUCTS FOR MEETING ACUTE TOXICITY DATA REQUIREMENTS FOR REREGISTRATION In an effort to reduce the time, resources and number of animals needed to fulfill the acute toxicity data requirements for reregistration of products containing Endothall as the active ingredient, the Agency has batched products which can be considered similar for purposes of acute toxicity. Factors considered in the sorting process include each product's active and inert ingredients ( identity, percent composition and biological activity), type of formulation ( e. g., emulsifiable concentrate, aerosol, wettable powder, granular, etc.), and labeling ( e. g., signal word, use classification, precautionary labeling, etc.). Note that the Agency is not describing batched products as " substantially similar" since some products within a batch may not be considered chemically similar or have identical use patterns.

Using available information, batching has been accomplished by the process described in the preceding paragraph. Notwith standing the batching process, the Agency reserves the right to require, at any time, acute toxicity data for an individual product should the need arise.

Registrants of products within a batch may choose to cooperatively generate, submit or cite a single battery of six acute toxicological studies to represent all the products within that batch. It is the registrants' option to participate in the process with all other registrants, only some of the other registrants, or only their own products within a batch, or to generate all the required acute toxicological studies for each of their own products. If a registrant chooses to generate the data for a batch, he/ she must use one of the products within the batch as the test material. If a registrant chooses to rely upon previously submitted acute toxicity data, he/ she may do so provided that the data base is complete and valid by today's standards ( see acceptance criteria attached), the formulation tested is considered by EPA to be similar for acute toxicity, and the formulation has not been significantly altered since submission and acceptance of the acute toxicity data. Regardless of whether new data is generated or existing data is referenced, registrants must clearly identify the test material by EPA Registration Number. If more than one confidential statement of formula ( CSF) exists for a product, the registrant must indicate the formulation actually tested by identifying the corresponding CSF.

In deciding how to meet the product specific data requirements, registrants must follow the directions given in the Data Call In Notice and its attachments appended to the RED. The DCI Notice contains two response forms which are to be completed and submitted to the Agency within 90 days of receipt. The first form, " Data Call In Response," asks whether the registrant will meet the data requirements for each product. The second form, " Requirements Status and Registrant's Response," lists the product specific data required for each product, including the standard six acute toxicity tests. A registrant who wishes to participate in a batch must decide whether he/ she will provide the data or depend on someone else to do so. If a registrant supplies the data to support a batch of products, he/ she must select one of the following options: Developing Data ( Option 1), Submitting an Existing Study ( Option 4), Upgrading an Existing 3 Study ( Option 5) or Citing an Existing Study ( Option 6). If a registrant depends on another's data, he/ she must choose among: Cost Sharing ( Option 2), Offers to Cost Share ( Option 3) or Citing an Existing Study ( Option 6). If a registrant does not want to participate in a batch, the choices are Options 1, 4, 5 or 6. However, a registrant should know that choosing not to participate in a batch does not preclude other registrants in the batch from citing his/ her studies and offering to cost share ( Option 3) those studies.

Ten products were found which contain Endothall as the active ingredient. These products have been placed into two batches and a no batch group in accordance with the active and inert ingredients and type of formulation.

Batching Instructions:

No Batch: Each product in this Batch should generate their own data. EPA Reg. No. 4581 204 may rely on acute data used to support batch 2.

NOTE: The technical acute toxicity values included in this document are for informational purposes only. The data supporting these values may or may not meet the current acceptance criteria.

Batch # EPA Reg. No. Percent Active Ingredient 1 4581 172 11.2 4581 201 10.1 2 1448 352 53.0 4581 174 53.0 4581 380 53.0 4581 381 53.0 No Batch 4581 204 40.3 4581 257 75 4581 284 15.9 4581 388 63.0