FAA Issues Policy Regarding Access to Airports from Residential Property – That Is, “Through-The-Fence” Operations

On Monday, July 30, 2012, the Federal Aviation Administration published its proposal concerning through-the-fence access to a federally obligated airport from an adjacent or nearby property when that property is used as a residence.

The FAA has long expressed its objections to accessing airport from residential property.  In 2009, the FAA issued Order 5190.6B, which contained specific objections to residential through-the-fence access, but failed to prescribe any actions to be taken by airport sponsors.  This created ambiguity with regard to the future of through-the-fence arrangements.  Although the FAA issued a proposed revision to its policy in 2010 (75 Fed.Reg. 54946), in March 2011, the FAA announced the adoption of an interim policy that modified sponsor Grant Assurance 5 Preserving Rights and Powers such that new residential through-the-fence access to a federally-obligated airport was prohibited.  See 76 Fed.Reg. 15028, March 18, 2011.  Then on February 14, 2012, the FAA Modernization and Reform Act of 2012 was signed into law permitting general aviation airports to enter into residential through-the-fence agreements with property owners or associations provided certain conditions are met.  See Section 136 of the Act.  As a result, the FAA amended its sponsor assurances so that commercial service airports are still not permitted to enter into residential through-the-fence arrangements, but general aviation airports are now permitted.  77 Fed.Reg. 22376 April 13, 2012.

The policy issued Monday for public comment is the FAA’s interpretation of FMRA section 136.  Public comments on the proposal are due no later than August 29, 2012.  This policy attempts to sort through the thorny problems – both legal and policy driven – concerning the change in FAA’s policy as a result of FMRA.

First, FAA states that only commercial service airports that have “certified” existing through-the-fence operations may continue with those operations.  The FAA reads FMRA to allow it to prohibit new through-the-fence operations at commercial service airports.

Second, FAA states that its approach with respect to general aviation airports that have existing through-the-fence operations will be different than new through-the-fence operations.  This is because airport sponsors may have, in the past, “ceded important rights and powers through the execution of these existing agreements, and their ability to comply with the terms and conditions of the law may be severely hampered.”

Third, FAA will only allow through-the-fence operations at “general aviation airports” as that term is defined at 49 U.S.C. 47102(8).  Thus, along with commercial service airports, privately-owned reliever airports will no longer be able to enter into through-the-fence agreements (although publically-owned reliever airportsare included in the definition of “general aviation airports).

Fourth, FAA will require that the through-the-fence agreements be valid for residential property only.  It interprets FMRA to allow it to prohibit commercial aeronautical services on the property that is connected to the airport.  The one caveat is that if there is an existing agreement that allows such an arrangement, the “FAA will require airport sponsors to execute two separate agreements with the homeowner” one to address residential access to the airport and one to address the conduct of the commercial aeronautical activity.  The FAA is encouraging sponsors to move these commercial operations away from the residences and “onto the airport when feasible and practicable to do so.”

Fifth, FAA states in its policy that sponsors must limit the number of access points such that airport security is maintained.  It will also require that residential agreements prohibit unauthorized users of the airports to pass through or “piggy back” on their access point in order to enter the airport.

Finally, FAA states that Section 136 prohibits “any aircraft refueling from occurring on the property with access.”  FAA interprets this to mean that property owners cannot sell fuel from their property, but are allowed to self-fuel, if permitted by local regulation.

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