FAA Notice Calls for Thoughtful Comments on Proposed Through-the-Fence Policy by August 29, 2012

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

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The FAA Airports Division has had a history of opposition to Through-the-Fence (TTF) operations. Their policy may have reflected a view that there is a basic incompatibility between airport noise and residences or concerns that commercial enterprises with access TTF have an unfair advantage or the basic regulatory worries that the lines of demarcation between on and off airport activities are too difficult to regulate. For whatever reasons, the FAA used the penumbra of its power to deter or defeat TTF options.

A number of aviators, who want to locate their residences proximate to or on airports, resisted the FAA policy. In fact, there were several real estate developers that recognized the potential market for people who could afford expensive aircraft and who also wanted high end houses with TTF privileges. The FAA issued Compliance Guidance Letter 2011-1 – FAA Implementation of Interim Policy Regarding Access to Airports From Residential Property and Review of Access Arrangements that CGL essentially precluded residential TTFs.

The proponents of houses/hangars adjoining airports (125 facilities have such a configuration), all of those land owners would have no problems granting aviation easements to their “incompatible” use within the noise contours, found Congressional representatives and convinced them that the CGL should be reversed. The result of their exercise of the 1st Amendment Rights was Section 136 of FAA Modernization and Reform Act of 2012, signed into law (P.L. 112-95), which reads as follows:

…a sponsor of a general aviation airport shall not be considered to be in violation of this subtitle, or to be in violation of a grant assurance made under this section or under any other provisions of law as a condition for the receipt of Federal financial assistance for airport development, solely because the sponsor enters into an agreement that grants to a person that owns residential real property adjacent to or near the airport access to the airfield of the airport for the following:
(A) Aircraft of the person.
(B) Aircraft authorized by the person.

The FAA has responded with the attached draft policy which proposes to replace the above-cited 2011-1, the rules of which prohibited any new TTFs and restricted the existing TTFs. The draft statement of policy described in the Federal Register notice and an accompanying draft CGL relies on the Airport Layout Plan (ALP) and an Access Plan/Agreement to assure safety and to assure that the rates & charges system, which is the basis for airport financial self-sufficiency. The FAA’s document applies to both General and Commercial Aviation airports, but only allows prospective expansion to new GA facilities.

The draft document is 7 Federal Register pages long and defines in details the policy and procedures which will protect the safety and finances of TTF facilities. Comments are due on August 29, 2012.

The devil is in the details and the FAA staff has defined a comprehensive set of rules to fence the TTF in. As with other agency regulatory schemes, the airport must address numerous issues in its ALP and its access plan. Those papers will define compliance to the FAA. Thus, it is VERY important that the airport carefully and precisely defines the terms against which the FAA will enforce the TTF operation. The staff’s attention to the intricacies of airport planning, for example, is shown FR p, 44521, by the requirement that the area dedicated to TTF residential development must assure that future airport required increased land use be included in the plan and that the aviation use will take preference over the TTF.

It would be exceedingly advisable to assess this proposed policy against the airport’s ALP and its TTF access plan. If the airport does not already have either or both, it should draft, on an expedited basis, both – even though they must ultimately be subjected to locally mandated processes. If need be, it may be possible to request and extension of the comment period. Once adopted, this FAA policy will be etched in stone. Any “rubs” between the airport’s parochial needs and the FAA draft need to be identified by a comparison between specific airport documents and the attached document. Experts can help an airport review this document, draft an APL and a TTF access plan, request an extension (if needed) and submit comments.

The FAA is never happy when the Congress mandates the reversal of policy which Section 136 compelled the staff to do here. It is axiomatic that once a begrudgingly issued final policy is issued, the FAA will rigorously enforce its final rule and will be extraordinarily reluctant to revise the policy in the future.

Now is the time to address any present or future problems with this draft TTF policy.

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