AIP: Policy Regarding Access to Airports From Residential Property

SUMMARY: This action proposes a policy, 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 proposed policy limits application of the FAA's previously published interim policy (76 FR 15028; March 18, 2011) to commercial service airports that certified existing residential through-the-fence access agreements. In addition, this notice proposes to rescind applicability of the interim policy with regard to certain general aviation airports consistent with section 136 of Public Law 112-95 and describes how the FAA will interpret provisions of this law pertaining to residential through-the-fence access.

When the FAA adopted its interim policy on access to airports from residential property, the FAA announced its intent to initiate another policy review in 2014. This supplemental policy review will no longer be necessary.

DATES: Send your comments on or before August 29, 2012. The FAA will consider comments on the proposed policy and its proposed implementation of Section 136 of Public Law 112-95. Any necessary or appropriate revisions resulting from the comments received will be adopted as of the date of a subsequent publication in the Federal Register .

ADDRESSES: You may send comments [identified by Docket Number FAA-2012-XXX] using any of the following methods:

* Government-wide rulemaking Web site: Go to http://www.regulations.gov and follow the instructions for sending your comments electronically.

* Mail: Docket Operations, U.S. Department of Transportation, West Building, Ground Floor, Room W12-140, Routing Symbol M-30, 1200 New Jersey Avenue SE., Washington, DC 20590.

* Fax: 1-202-493-2251.

* Hand Delivery: To Docket Operations, Room W12-140 on the ground floor of the West Building, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

For more information on the notice and comment process, see the SUPPLEMENTARY INFORMATION section of this document.

Privacy: We will post all comments we receive, without change, to http://www.regulations.gov, including any personal information you provide. For more information, see the Privacy Act discussion in the SUPPLEMENTARY INFORMATION section of this document.

Docket: To read background documents or comments received, go to http://www.regulations.gov at any time or to Room W12-140 on the ground floor of the West Building, 1200 New Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

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

SUPPLEMENTARY INFORMATION:

Privacy: We will post all comments we receive, without change, to http://www.regulations.gov, including any personal information you provide. Using the search function of our docket Web site, anyone can find and read the comments received into any of our dockets, including the name of the individual sending the comment (or signing the comment for an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477-78).

Availability of Documents

You can get an electronic copy of this proposed 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 Management Analysis, 800 Independence Avenue SW., Washington, DC 20591, or by calling (202) 267-3085. Make sure to identify the docket number, notice number, or amendment number of this proceeding.

Authority for the Policy

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

Background

On September 30, 2009, the FAA issued FAA Order 5190.6B, the Airport Compliance Manual. This order contains policy guidance for agency employees monitoring airport 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. Order 5190.6B did not prescribe any specific actions to be taken by airport sponsors with residential through-the-fence access agreements and created ambiguity with regard to the future of these arrangements. The FAA accepted public comments on FAA Order 5190.6B after it was published. Comments received from interested airport sponsors, homeowners, and other parties urged the agency to reconsider its views on residential through-the-fence agreements.

In 2010, the FAA's Office of Airport Compliance initiated a policy review which included the 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 (75 FR 54946; September 9, 2010).

In March 2011, the FAA announced the adoption of an interim policy Airport Improvement Program (AIP): Interim Policy Regarding Access to Airports From Residential Property (76 FR 15028; March 18, 2011). The interim policy modified sponsor Grant Assurance 5, Preserving Rights and Powers, to prohibit new residential through-the-fence access to a federally-obligated airport. The interim policy also required airport sponsors to certify their status with regard to the policy, depict existing access points on the airport layout plan, and develop access plans outlining how the airport sponsor meets certain standards related to the sponsor assurances. When the interim policy was adopted, the FAA announced its intent to initiate another policy review of residential through-the-fence access to federally-obligated airports in 2014.

Since adopting the interim policy, 125 federally-obligated airport sponsors have certified their status as having existing residential through-the-fence access agreements. The 125 locations include four commercial service airports, seven privately-owned reliever airports, and 114 general aviation airports.

On February 14, 2012, the 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, the FAA amended the sponsor assurances (77 FR 22376; April 13, 2012). Among the modifications, sponsor assurance 5(g) was redrafted 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 Public Law 112-95 and the sponsor assurances. In addition, sponsor 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/

The FAA is proposing its interpretation of the FMRA's section 136 and seeks public comment on this interpretation. In light of the public comment period, the FAA's implementing guidance remains in draft form. The agency will refrain from finalizing its implementing guidance until after a final policy is published in a subsequent public notice. As a result, the FAA will not approve any ALPs depicting new residential through-the-fence access points until final guidance has been issued. The FAA will proceed in a timely manner to address public comments and will not unduly delay final agency action with regard to section 136 of the FMRA.

FAA's Interpretation of the FMRA's Section 136

Enforcement

--This is a summary of a Federal Register article originally published on the page number listed below--

Proposed policy; implementation of Section 136; opportunity to comment.

CFR Part: "14 CFR Chapter I"

Citation: "77 FR 44515"

Document Number: "Docket No. FAA-2012-0754"

Federal Register Page Number: "44515"

"Proposed Rules"

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