Safe, Efficient Use and Preservation of the Navigable Airspace

Note: EPA no longer updates this information, but it may be useful as a reference or resource.

[Federal Register: June 13, 2006 (Volume 71, Number 113)]
[Proposed Rules]
[Page 34028-34045]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr13jn06-19]

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DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 77
[Docket No. FAA-2006-25002; Notice No. 06-06]
RIN 2120-AH31

AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: The FAA proposes to amend the regulations governing objects
that may affect the navigable airspace. Specifically, the FAA is
proposing to add notification requirements and obstruction standards
for electromagnetic interference and amend the obstruction standards
for civil airport imaginary surfaces to more closely align these
standards with FAA airport design and instrument approach procedure
criteria. The FAA proposes to require proponents to file with the
agency a notice of proposed construction or alteration of structures
near private use airports that have an FAA approved instrument approach
procedure. This proposal, if adopted, would also increase the number of
days in which a notice must be filed with the FAA before beginning
construction or alteration; add and amend definitions

[[Page 34029]]

for terms commonly used during the aeronautical evaluation process; and
remove the provisions for public hearings and antenna farms. Lastly,
the FAA proposes to retitle the rule and reformat it into sections that
closely reflect the aeronautical study process. These proposals
incorporate case law and legislative action, and simplify the rule
language. The intended effect of these proposed changes is to improve
safety and promote the efficient use of the National Airspace System.

DATES: Send your comments on or before September 11, 2006.

ADDRESSES: You may send comments identified by Docket Number FAA-2006-
25002 using any of the following methods:
? DOT Docket Web site: Go to http://dms.dot.gov and follow
the instructions for sending your comments electronically.
? Government-wide rulemaking Web site: Go to http://www.regulations.gov
and follow the instructions for sending
your comments electronically.
? Mail: Docket Management Facility; U.S. Department of
Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401,
Washington, DC 20590-001.
? Fax: 1-202-493-2251.
? Hand Delivery: Room PL-401 on the plaza level of the
Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9
a.m. and 5 p.m., Monday through Friday, except Federal holidays.
For more information on the rulemaking process, see the
SUPPLEMENTARY INFORMATION section of this document.
Privacy: We will post all comments we receive, without change, to
http://dms.dot.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://dms.dot.gov at any time. You can also go to Room
PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW.,
Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday,
except Federal holidays.

FOR FURTHER INFORMATION CONTACT: For technical issues: Ellen Crum,
Office of Airspace and Rules, ATO-R, Federal Aviation Administration,
800 Independence Avenue, SW., Washington, DC 20591; telephone (202)
267-8783.
For legal issues: Lorelei Peter, Office of Chief Counsel,
Regulations Division, Federal Aviation Administration, 800 Independence
Avenue, SW., Washington, DC 20591; telephone (202) 267-3073.

SUPPLEMENTARY INFORMATION:

Comments Invited

The FAA invites interested people to participate in this rulemaking
by submitting written comments, data, or views. We also invite comments
about the economic, environmental, energy, or federalism impacts that
might result from adopting the proposals in this document. The most
helpful comments reference a specific portion of the proposal, explain
the reason for any recommended change, and include supporting data. We
ask that you send us two copies of written comments.
We will file in the docket all comments we receive, as well as a
report summarizing each substantive public contact with FAA personnel
about this proposed rulemaking. The docket is available for public
inspection before and after the comment closing date. If you wish to
review the docket in person, go to the address in the ADDRESSES section
of this preamble between 9 a.m. and 5 p.m., Monday through Friday,
except Federal holidays. You may also review the docket using the
Internet at the web address in the ADDRESSES section.
Privacy Act: Using the search function of our docket Web site,
anyone can find and read the comments received into any of our dockets.
This includes the name of the individual sending the comment (or
signing the comment on behalf of 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) or you
may visit http://dms.dot.gov .
Before acting on this proposal, we will consider all comments we
receive on or before the closing date for comments. We will consider
comments filed late if it is possible to do so without incurring
expense or delay. We may change this proposal in light of the comments
we receive.
If you want the FAA to acknowledge receipt of your comments on this
proposal, include with your comments a preaddressed, stamped postcard
on which the docket number appears. We will stamp the date on the
postcard and mail it to you.

Proprietary or Confidential Business Information

Do not file in the docket information that you consider to be
proprietary or confidential business information. Send or deliver this
information directly to the person identified in the FOR FURTHER
INFORMATION CONTACT section of this document. You must mark the
information that you consider proprietary or confidential. If you send
the information on a disk or CD-ROM, mark the outside of the disk or
CD-ROM and also identify electronically within the disk or CD-ROM the
specific information that is proprietary or confidential.
Under 14 CFR 11.35(b), when we are aware of proprietary information
filed with a comment, we do not place it in the docket. We hold it in a
separate file to which the public does not have access, and place a
note in the docket that we have received it. If we receive a request to
examine or copy this information, we treat it as any other request
under the Freedom of Information Act (5 U.S.C. 552). We process such a
request under the DOT procedures found in 49 CFR part 7.

Availability of Rulemaking Documents

You can get an electronic copy using the Internet by:
(1) Searching the Department of Transportation's electronic Docket
Management System (DMS) Web page (http://dms.dot.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.access.gpo.gov/fr/index.html.
You can also get a copy by submitting a request to the Federal
Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence
Avenue, SW., Washington, DC 20591, or by calling (202) 267-9680. Make
sure to identify the docket number, notice number, or amendment number
of this rulemaking.

History

National Airspace Review

On June 17, 1978, the FAA published a notice in the Federal
Register (43 FR 26322) announcing a regulatory review of part 77. The
FAA issued this notice in response to comments received to a June 16,
1977, advance notice of proposed rulemaking (ANPRM) (42 FR 30643). In
the ANPRM, the FAA had asked the public to review FAA obstruction
evaluation issues and to recommend changes to part 77. The FAA
addressed comments received in response to the ANPRM in a program
review conference, referred to as the National Airspace Review (NAR).
The NAR was held December 4 through 8, 1978, and included participants
from the FAA, the aviation industry, the Department of Defense, and
State government aviation agencies. These

[[Page 34030]]

participants are identified in this document and NAR reports as ``the
Committee.'' In part, the Committee objective was to conduct a
comprehensive review of airspace use and the procedural aspects of the
air traffic control (ATC) system. On December 4, 1984, the committee
gave 27 recommendations to the FAA to simplify and clarify existing
part 77 regulations.

The Airport and Airway Safety and Capacity Expansion Act of 1987

On December 30, 1987, the Airport and Airway Safety and Capacity
Expansion Act of 1987 (Pub. L. 100-223) (the ``Act''), was signed into
law. The Act amended former section 1101 of the Federal Aviation Act of
1958, now recodified at 49 U.S.C. 44718, with three major provisions.
The major provisions concerned notice of construction, aeronautical
studies, and coordination.
First, before the Act, former section 1101 required notice of
proposed construction or alteration where notice would ``promote safety
in air commerce.'' Under the Act, notice is now required to ``promote
(1) safety in air commerce; and (2) the efficient use and preservation
of the navigational airspace and airport traffic capacity at public-use
airports'' (49 U.S.C. 44718(a)). Since this enactment, agency policy
has been revised to include these considerations into FAA aeronautical
studies to facilitate determination of the potential adverse effects of
a structure.
Second, the Act also requires an aeronautical study if a proposed
structure may constitute ``* * * an obstruction of navigable airspace
or an interference with air navigation facilities and equipment or
navigable airport * * *.'' (49 U.S.C. 41718(b)) The term
``interference'' was not defined in the Act. However, the Conference
Report (House of Representative Report 100-484, December 15, 1987)
states that ``interference'' includes both physical and electromagnetic
effects. While the effects of Electromagnetic Interference (EMI) are
currently studied under the FAA's authority under section 40103 for the
safe operation of the National Airspace System, the Act now requires
consideration of EMI effects on the safe and efficient use of the
airspace. In order to carry out this statutory responsibility and
determine whether EMI would be present, the FAA must expand the current
notice requirements in part 77 to include proposed construction/
alteration that may produce EMI and the corresponding obstruction standards.
The Act also requires that the FAA issue a full report on the
adverse impact to the safe and efficient use of the airspace. This
includes impacts on arrival and departure procedures for aircraft
operating under visual or instrument flight rules, impacts on public-
use airports and aeronautical facilities, and cumulative impacts of a
structure when combined with the impact of other existing or proposed
structures (49 U.S.C. 41718(b)). In accordance with the Act, the FAA is
proposing to include the assessment of cumulative impact, as part of
aeronautical study, in the revised part 77. FAA policy has already
incorporated procedures to assess for cumulative impact during the
aeronautical study.
Third, and with respect to broadcast applications and tower
studies, the Act requires the FAA and the Federal Communications
Commission (FCC) to ``* * * efficiently coordinate the receipt,
considerations of, and action upon, such applications and the
completion of associated aeronautical studies * * * '' Considerable
coordination currently exists between the FAA and FCC since this
enactment. If further coordination procedures are necessary, the
agencies will develop them jointly. We do not believe, however, that
any change to part 77 is appropriate or necessary because of this
statutory provision.

Related Regulatory Actions

Notice of Proposed Rulemaking (NPRM)

On August 3, 1990, the FAA published an NPRM in the Federal
Register proposing to amend part 77 (55 FR 31722). This notice was
later corrected in the following documents: 55 FR 32999, August 13,
1990; 55 FR 35152, August 28, 1990; and 55 FR 37287, September 10, 1990
(1990 NPRM). The 1990 NPRM proposed amendments to the scope, notice
requirements, and standards applicable to aeronautical studies detailed
under part 77. The proposed amendments were triggered by the new
requirements set forth in Public Law 100-223 and the NAR
recommendations previously mentioned. This proposal retains some of the
NAR recommendations that were originally proposed in the 1990 NPRM, and
proposes modifications to or variations of other NAR recommendations.
Certain other NAR recommendations are not being proposed now because of
changed circumstances.

Supplemental Notice of Proposed Rulemaking (SNPRM)

On October 16, 1995, the FAA issued an SNPRM proposing to amend the
application of obstruction standards used in an aeronautical study of
the construction or alteration of objects affecting the navigable
airspace (55 FR 53680). The FAA issued the SNPRM as a result of the
decision in Greater Orlando Aviation Authority v. the FAA, 939 F.2d 954
(11th Cir. 1991) (``GOAA'').
The decision in this case affects long-standing FAA policy and
practice regarding the consideration given to airport plans ``on file''
with the FAA, or ``on file'' with an appropriate military service. In
the SNPRM issued as a result of the GOAA decision, the agency proposed
to amend the application of obstruction standards to include
consideration of any airport proposal received before the end of the
comment period for an aeronautical study. This case and its effect on
the aeronautical study process is discussed later in this Notice.

NPRM/SNPRM Withdrawal

As previously stated, proposed amendments and revisions to part 77
have been under discussion and proposed in the Federal Register several
times over the last two decades. However, each time the agency was
close to issuing a final rule, a significant change, either legislative
or industry-wide, occurred that required rethinking and restructuring
the proposal. The telecommunications industry, with the advent of
personal communications systems, has evolved such that many of the
previous recommendations, proposals and comments are no longer valid.
In addition, Public Law 100-223 and the GOAA decision changed the way
the FAA conducts aeronautical evaluations. Rather than proceed with
previously proposed regulations that no longer completely reflect the
needs of the FAA's obstruction evaluation program or the needs of the
general public, the FAA withdrew the previously issued NPRM and SNPRM
(68 FR 43885; July 24, 2003). We believe the best interests of all
parties were served by this course of action.

FAA Authority

The Administrator has broad authority to regulate the safe and
efficient use of the navigable airspace (49 U.S.C. 40103(a)). The
Administrator is also authorized to issue air traffic rules and
regulations to govern the flight, the navigation, protection, and
identification of aircraft for the

[[Page 34031]]

protection of person and property on the ground, and for the efficient
use of the navigable airspace (49 U.S.C. 40103 (b)). The Administrator
may also conduct investigations and prescribe regulations, standards,
and procedures in carrying out the authority under this part (49 U.S.C.
40113). Moreover, the Administrator is authorized to protect civil
aircraft in air commerce (49 U.S.C. 44070(a)(5)).
Specifically, section 44718 provides that under regulations issued
by the Administrator, notice is required for any construction,
alteration, establishment, or expansion of a structure or sanitary
landfill, when the notice will promote safety in air commerce, and the
efficient use and preservation of the navigable airspace and airport
traffic capacity at public use airports. This statutory provision also
provides that, under regulations issued by the Administrator, the
agency determines whether such construction or alteration is an
obstruction of the navigable airspace or an interference with air
navigation facilities and equipment or the navigable airspace. If a
determination is made that the construction or alteration creates an
obstruction or otherwise interferes, the agency then conducts an
aeronautical study to determine adverse impacts on the safe and
efficient use of the airspace, facilities, or equipment.

One Engine Inoperative (OEI) Procedures

Two-engine aircraft certificated under part 25 and operated under
Parts 121 and 135 of the Federal Aviation Regulations must be able to
takeoff and climb at a gradient roughly equivalent to 1.6% (62.5:10)
with one engine inoperative (OEI), and clear obstacles by at least 35
feet vertically and at least 300 feet horizontally. These procedures
vary widely among airlines, aircraft type, and aircraft configuration.
Because building construction surrounding the nation's airports has
steadily been increasing, the airlines have requested that the affect
to their OEI procedures of proposed structures be considered when the
FAA conducts an aeronautical study.
The agency is researching the matter, and at this time, has not
determined whether or not rulemaking is the appropriate vehicle to
resolve this issue. Consequently, this issue is outside the scope of
this NPRM.
The Airport Obstruction Standards Committee (AOSC) has been tasked
with examining the issue. In September, 2005, the AOSC hosted a meeting
with the users to gather information and discuss this matter. In March,
2006, in response to user requests, the FAA began posting notices of
proposed construction on its OEAAA public Web site (oeaaa.faa.gov). At
the time of publication of this NPRM, many courses of action are under
review. As the Agency continues its analysis, we will make every effort
to seek input, and inform the public of any policy changes.

Discussion of the Proposal

The following is a discussion of the major proposals contained in
this notice. Since one of the changes proposed is the formatting of the
subparts and sections of regulatory text, this discussion will be by
topic, and in most cases does not refer to specific paragraph sections.

Rule Title and Format

The FAA proposes to retitle part 77 from ``Objects Affecting
Navigable Airspace'' to ``Safe, Efficient Use, and Preservation of the
Navigable Airspace.'' Title 49 of the United States Code (U.S.C.),
section 44718, provides for the Secretary of Transportation to
promulgate regulations which require a person to provide public notice
of certain construction or alterations when that notice will promote
safety in air commerce and the efficient use and preservation of the
navigable airspace and of airport traffic capacity at public use
airports. The proposed title would accurately reflect the purpose and
intent of this rule and closely reflects the legislative language.
The FAA also proposes to reformat the rule into subparts entitled,
``General,'' ``Notice Requirements,'' ``Standards for Determining
Obstructions to Air Navigation,'' ``Aeronautical Studies and
Determinations,'' and ``Petitions for Discretionary Review.'' This
proposed format aligns with the process sequence used by the FAA for
the current obstruction evaluation process and would make finding
information easier.

Definitions

The FAA proposes to amend current definitions that are frequently
used in the obstruction evaluation process and to add new terms in
Sec. 77.3. These new definitions are not currently defined in FAA
documents, and some of the existing definitions currently in this
subpart are no longer up-to-date with industry practices. A summary of
these proposed definitions or amendments follows:
Public use airport. This term amends the previously defined term
``airport available for public use.'' The proposed definition
describing the airport would be identical to the defined term ``Public
use'' in 14 CFR part 157.
Electromagnetic effect. This term would define electromagnetic
effect for determining its effect on navigation, communication, or
surveillance signals to or from aircraft.
Nonprecision/precision instrument approach runway. These proposed
definitions include approaches that use other than ground based
navigational aids, such as flight management systems (FMS) and global
navigation satellite systems (GNSS). These approaches provide azimuth
and descent information, but because of equipment limitations, the
visibility approach minimums are higher than approaches using a glide
slope. Historically, nonprecision approaches were defined as approaches
without descent information. Therefore, the FAA is proposing new
definitions that use visibility minimums instead of descent capability.
Because of technological advancements, the former definitions for
nonprecision/precision instrument approach runways are no longer accurate.
Planned or proposed airport. This proposed term would explain which
airports or planned airports the FAA takes into consideration during
the aeronautical study process.
Utility runway. This term would be removed because it is no longer
used and would be replaced with the phrase ``runway used by small
aircraft.'' Small aircraft are defined in title 14 Code of Federal
Regulations part 1 as aircraft with a maximum certificated takeoff
weight of 12,500 pounds or less.
Visual runway. This proposed term would define a runway that is
used by aircraft using visual maneuvers for landing or approach
procedures that bring the pilot to a point where the pilot must
complete the approach visually. Before these technological advances,
pilots made approaches using visual means or by relying on ground based
equipment. Pilots are now able to conduct approaches to airports that
have no ground-based approach equipment by using a combination of
visual references and flight management systems.

Requirement To File Notice With the FAA

Under current regulations, you must file notice with the FAA, via
FAA Form 7460-1, at least 30 days before construction begins or the
date you submit an application for any type of State or local
government construction permit. The FAA is proposing to extend the
period from 30 days to 60 days before either construction begins or the
date that an application is submitted to state or local authorities for
a permit,

[[Page 34032]]

whichever is earliest. The FAA's experience in processing notices and
conducting aeronautical studies indicates that the 30-day period is too
brief, and most notices require more than 30 days for study and processing.
To assess the impact of a proposed structure on the navigable
airspace, the FAA must first determine whether the proposed structure
is an obstruction under the regulations. If the structure is an
obstruction, the FAA then identifies any adverse effects the proposed
structure may have on the navigable airspace. This process often
requires distribution of the proposal to the aviation community and
State/local governments for additional information. If the FAA finds it
necessary to solicit additional information, the agency provides 30
days for notified parties to submit comment. A problem arises for all
concerned parties when the FAA cannot complete the aeronautical study
until after the comment period closes. The 30-day period to provide the
agency with notice of proposed construction or alteration does not
allow the FAA adequate time to consider all comments received during
the circularization process in a timely manner. Therefore, the FAA is
proposing that notice must be filed 60 days before either the date that
construction begins or the date you submit an application for any State
or local government permit, whichever is earliest. This would
facilitate the completion of aeronautical studies in a timely manner.

GOAA Decision

Under current regulations, obstruction standards are applied to an
existing airport facility or a planned or proposed airport facility.
These standards are also applied if a proposal for such an airport is
``on file'' with the FAA or with the appropriate military service on
the date that FAA Form 7460 (for proposed construction/alteration) is
filed with the FAA. If the FAA determines the proposed structure is an
obstruction, we conduct an additional study to determine the proposed
structure's effect on the safe and efficient use of the navigable
airspace. Among other factors, the study includes consideration of the
proposal's aeronautical effect on any existing or planned public use or
military airports, air navigation facilities, procedures, or other
proposal on file with the FAA or on file with an appropriate military
service.
The decision in GOAA affects this long-standing FAA policy and
practice as to the consideration given to plans on file with the FAA or
with the appropriate military service. In the GOAA case, the court held
the FAA must also consider the proposed structure's effect on other
proposals received by the FAA before the end of the comment period of
an aeronautical study of the proposed structure.
In considering this decision, the FAA notes that this case
specifically addressed an aeronautical study that was circulated for
comment. Most aeronautical studies are not circulated for comment
because they do not exceed FAA obstruction standards. In GOAA, the
court stated that ``the only way to determine what is the safest, most
efficient use of airspace is to consider all proposals and comments
received during the comment period.'' (939 F.2d, 954, at 962) The FAA
believes the principle of the court's holding in GOAA should be applied
not only to cases that are circulated for comment, but also to cases
that are not circulated for comment. The FAA proposes to consider the
aeronautical effect of proposed structures on planned or proposed
airports for which the FAA has received actual notice prior to the
issuance of an agency determination for that study.
Currently, in those cases where the agency receives actual notice
of a planned or proposed airport but the comment period has closed, the
agency does not consider the proposed structure in view of the planned
or proposed airport. The FAA's proposed language goes beyond the
decision in GOAA. The FAA believes the statutory mandate to determine
the safest and most efficient use of the airspace should warrant
consideration of any proposal for a planned or proposed airport that is
filed with the FAA up to the date that determination is issued for that
particular case. This latitude provides the FAA with the most up-to-
date information in considering aeronautical effect, which results in
the most accurate determination.

No Notice Required

The FAA proposes to remove Sec. 77.15, Construction or Alteration
Not Requiring Notice, and Sec. 77.19, Acknowledgement of Notice.
Currently Sec. 77.15 notes certain proposed construction or alteration
activities for which notice to the FAA is not required. These same
exceptions to the notice requirement have been incorporated into
proposed Sec. 77.9, which explains those types of construction or
alteration that require notice to be filed with the FAA. This change
would place all information relevant to the filing of notices in one
section of the rule and create easier access to information with less
confusion.
The FAA also proposes removing Sec. 77.19, Acknowledgement of
Notice, from the rule. The information previously contained in this
section would be contained in the new Sec. 77.31.

Evaluating Aeronautical Effects

Subpart D of the current rule contains general provisions about
aeronautical studies, and the relevant factors used in considering the
impact of proposed construction or alteration in the navigable
airspace. The FAA proposes to add a section entitled, Evaluating
Aeronautical Effect, Sec. 77.29, which incorporates the specific
factors listed in Public Law 100-223 for consideration during an
aeronautical study. While this specific language does not appear in the
current regulations, the proposed inclusion of this language does not
add or delete any factors currently considered in an aeronautical
study. This proposal merely incorporates the statutory provisions into
part 77 and provides the public with more specific information about
the factors the FAA considers in determining the effect of a proposed
construction or alteration on the navigable airspace.

EMI Notice Requirements

As previously stated, section 206 of Public Law 100-223 requires
that aeronautical studies under part 77 consider whether proposed
construction or alteration of structures could cause interference to
air navigation, radio communication, and/or surveillance facilities or
equipment, such as radar or an instrument landing system (ILS). It is
evident by the legislative history of this statutory provision that
Congress intended for the FAA to include EMI as a factor during
aeronautical studies. H.R. 2310, which subsequently became Public Law
100-223, was amended in conference. Specifically, the conference
substitute on Issue 54, Tall Towers, stated the following: ``Senate
provisions, modified to clarify that requirements cover structures
which create electromagnetic interference.'' Therefore, the FAA is
proposing to require notice of new construction or alteration that may
result in EMI to air navigation, radio communication, surveillance
services, and facilities.
The FAA proposes to require that notice be filed for the following:
(1) Any construction of a new, or modification of an existing
facility, i.e.--building, antenna structure, or any other man-made
structure, which supports a radiating element(s) for the purpose of
radio frequency transmission operating on the following frequencies:

(i) 54-108 MHz
(ii) 150-216 MHz

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(iii) 406-420 MHz
(iv) 932-935/941 MHz
(v) 952-960 MHz
(vi) 1390-1400 MHz
(vii) 2500-2700 MHz
(viii) 3700-4200 MHz
(ix) 5000-5650 MHz
(x) 5925-6525 MHz
(xi) 7450-8550 MHz
(xii) 14.2-14.4 GHz
(xiii) 21.2-23.6 GHz

(2) Any changes or modifications to a system operating on one of
the previously-mentioned frequencies, when specified in the original
FAA determination, including:
(i) Change in the authorized frequency;
(ii) Addition of new frequencies;
(iii) Increase in effective radiated power (ERP) equal or greater
than 3 decibels (db);
(iv) Modification of radiating elements such as:
(A) Antenna mounting location(s) if increased 100 feet or more,
irrespective of whether the overall height is increased;
(B) Changes in antenna specifications (including gain, beam-width,
polarization, pattern);
(C) Change in antenna azimuth/bearing (e.g.--point-to-point
microwave systems).
Antenna towers that are used for radio broadcast services present a
unique concern. FM band broadcast facilities use frequencies in the 88-
108 MHz band. The FM band is immediately adjacent to the FAA's
navigation/communications band (108-137 MHz) and uses a much greater
transmitting power than the FAA Very High Frequency Omni-directional
Range Station (VOR), ILS, or communications system. When EMI affects a
VOR or ILS, inaccurate navigational guidance may result that is not
apparent to the pilot. The navigational guidance may erroneously show
that an aircraft is on course when in fact, it may be off course. In
air-to-ground communications, EMI can cause pilots or air traffic
controllers to miss vital flight communications transmissions.
Similarly, the VHF-TV bands (54-72 MHz, 76-88 MHz, and 174-216 MHz)
are adjacent to or very close to frequencies used by FAA radio
navigation bands for marker beacons (75 MHz), government land mobile
facilities (162-174 MHz), and bands used for communication with the
military air traffic (225-328.6 MHz). When EMI affects these bands,
critical landing information may be lost, datalink communications of
ground systems may become unreliable, and as stated before, pilots or
air traffic controllers can miss vital flight communications.
Also, private land mobile radio services that use frequencies, 72-
76 MHz, 150-174 MHz, and 406-420 MHz can create EMI. These frequencies
either overlap or are adjacent to current frequencies that the FAA uses
for radio navigation marker beacons (75 MHz), government land mobile
facilities (162-174 MHz), and remote maintenance monitoring facilities
(406.1-420 MHz). Also, public mobile services (e.g.--paging services)
using frequencies in the 152-159 MHz band can affect government land
mobile radio systems operating in 162-174 MHz. Although these services
are not directly adjacent to the FAA's frequency allocations, harmful
EMI can be caused by various spurious emissions and harmonics from the
equipment. If EMI is introduced to these FAA facilities, a pilot may
lose critical landing information, and datalink communications of
ground systems may become unreliable. This could ultimately cause a
facility to stop operating.
Moreover, public fixed radio services using frequencies 2500-2700
MHz operate in a frequency band adjacent to the FAA's authorized
frequency band for terminal and weather radars (2700-3000 MHz). EMI
could reduce the range of the radar to reliably detect targets or
weather. EMI could also produce false targets or weather indications.
Likewise, fixed microwave services operating in frequency bands;
941-944 MHz, 952-960 MHz, 14.2-14.4 GHz, 21.2-23.6 GHz, require
notification to the FAA. Wireless services in these bands operate
frequencies that are either adjacent to or co-channel with the FAA's
facilities operating on 941-944 MHz, 960-1215 MHz, 14.4-15.35 GHz,
21.2-23.6 GHz. EMI could cause degradation in voice or data signals
used by other FAA facilities to communicate or provide navigational aid
to pilots.
Wireless services operating in 1390-1400 MHz are adjacent to the
FAA's radar band. EMI to these FAA facilities could reduce the range of
the radar to reliably detect targets or weather. EMI could also produce
false targets or weather indications.
Because some frequency changes could result in interference, the
FAA proposes to require that notice must be filed for any changes of
the authorized frequency by a proponent whose system operates a
frequency in accordance with the frequencies previously listed in this
section. Any increase in effective radiated power that exceeds 3 db is
measurable and the additional interference generated may be
significant. Thus, the FAA believes it is necessary to require that
notice be filed for this type of change so it may be studied.
The FAA is also proposing to require sponsors of construction or
alteration to notify the FAA when making modifications of radiating
elements that operate a frequency in accordance with Sec. 77.9
(e)(1)(i) through (xiii). Modifications of radiating elements include a
height increase of 100 feet or more and modifications to the antenna
specifications (including gain, beam-width, polarization, and pattern).
Since an increase in the height of an antenna, gain, and beam-width of
an antenna may expand the area of coverage, such a modification may
impact FAA navigation and communication facilities that were not
previously studied. However, it must be noted that under current
regulations, an increase of antenna height, which also increases the
overall height of antenna structure by more than 20 feet, irrespective
of the antenna height increase, requires notice to be filed with the
FAA. These proposed amendments do not change that requirement.
For example, FM antennas are made up of one to 14 sections that are
placed on the tower in various configurations. The FAA has found that
sometimes, when specifying the antenna configuration, EMI is reduced or
eliminated. However, if there is a change to the antenna configuration,
EMI may be created and may compromise critical components of the
National Airspace System. Therefore, the FAA is proposing to require
notice prior to making any change in the type of antenna when the
antenna type has been specified in the original FAA determination.
The FAA requires notice of construction or modification to the
antenna bearings/azimuths, especially those for microwave systems. The
change in bearing/azimuth could potentially impact FAA facilities that
were not considered during the initial study based on the initial
parameters for the particular microwave system.
Although not required, for many years many private industry
entities have been filing notices voluntarily with the FAA when
constructing a new antenna tower. In addition, many companies have been
voluntarily filing notices with the FAA when changing frequencies or
frequency power which had already been studied by the FAA. This
practice has allowed the FAA to study potential EMI effects and avoid
potentially hazardous situations. The FAA does not believe these
proposals would present a significant increase in the number of

[[Page 34034]]

notices filed since most private industry wireless providers already
submit notices to the FAA. These proposals reflect a practice currently
in place and used by most companies. We are proposing to require such
notification for those few companies who have not already adopted this
practice.

EMI--Obstruction Standards

Subpart C of part 77 contains the standards used in an aeronautical
study to determine whether a structure is an obstruction to air
navigation. If a structure exceeds any one of these standards, the FAA
then conducts a further study to determine whether the structure is a
hazard to air navigation. FAA Order 7400.2, Procedures for Handling
Airspace Matters, articulates the primary methods for conducting
aeronautical studies to ensure the safety of air navigation and the
efficient use of the navigable airspace by aircraft. There are many
varied demands placed on the use of navigable airspace. The FAA's
objective is to provide for the efficient use of the national airspace
system and protect air navigation facilities from either electromagnetic
or physical encroachments that would preclude normal operations.
Currently, the FAA assumes a structure that exceeds one or more of
the standards in part 77 is a hazard to air navigation unless the
aeronautical study determines otherwise. An aeronautical study
identifies the effect of the proposal on: (1) Existing and proposed
public-use and military airports or aeronautical facilities; (2)
existing and proposed VFR and IFR departure, arrivals and en route
operations, procedures, and minimum flight altitudes; (3) any physical,
electromagnetic or line-of-sight interference on existing or proposed
air navigation communications, radar and control systems facilities;
(4) airport capacity, as well as the cumulative impact resulting from
the structure when combined with the impact of other existing or
proposed structures; and (5) whether marking or lighting is necessary
on the structure.
The FAA currently studies radiating elements and their effect on
FAA navigational and communication facilities under the agency's
authority in 49 U.S.C. 40103 and 40113. The standards used for
classifying antenna structures as obstructions, as well as the specific
policy on determining EMI, are found in Orders 7400.2, Procedures for
Handling Airspace Matters, and Order 6050.32, Spectrum Management
Regulations and Procedures Manual. The FAA is proposing to codify new
EMI obstruction standards in part 77 along with the obstruction
standards for physical obstructions.
For the same reasons stated in the section describing the
frequencies for which the FAA proposes that notice be filed, the FAA
proposes that any radiating element seeking to transmit in those exact
same frequencies must be studied in order to determine whether
potential interference exists to FAA navaids or communications systems.
Transmitting in these frequencies, as discussed previously, may
interfere with FAA navaids and communication systems that are adjacent
to or very near these frequencies. Thus, the frequencies that would
warrant notification to the FAA under this proposal are the same
frequencies for which the FAA would categorize the transmitting
facility as an obstruction and result in further aeronautical study.
During the aeronautical evaluation, the FAA will apply the policies
and procedures in FAA Orders 7400.2 and 6050.32 to determine adverse
effect. This proposal does not alter or affect any of these policies.
The FAA has applied these policies since the late 1970s and will
continue to do so with this proposal.

FAA-Approved Instrument Approach Procedures

Section 44718 of title 49 of the U.S.C., in part, provides that ``a
person must give adequate public notice * * * when the notice will
promote--(1) safety in air commerce; and (2) the efficient use and
preservation of the navigable airspace and of airport traffic capacity
at public-use airports.'' (49 U.S.C. 44718) Paragraph (b) requires that
the FAA consider numerous ``factors relevant to the efficient and
effective use of the navigable airspace, including * * * the impact on
arrival, departure, and enroute procedures for aircraft operating under
instrument flight rules.''
Certain instrument approach procedures (IAPs) have been developed
and approved by the FAA for limited use by specific users. Often,
specific equipment and training are required to conduct these
approaches, so IAPs are available only to designated users. There has
been an increase in the number of IAPs developed and approved by the
FAA for use at private use airports and at heliports serving medical
facilities. Notice of construction or alteration near a private use
airport is not currently required under part 77. Consequently, the FAA
may not be aware of proposed construction or alteration that may impact
aircraft executing the IAP at that private use airport and could affect
the safety of that operation.
In order for the FAA to properly assess the impact of proposed
construction or alterations on any aircraft conducting an approach
while operating under instrument flight rules (IFR), the FAA must
consider proposed structures that would affect all FAA-approved IAPs,
regardless of whether the procedure is at a public or private use
airport. Therefore, the FAA is proposing to require that notice of
construction or alteration on or near a private use airport or heliport
must be filed with the FAA if that private use airport or heliport has
at least one FAA-approved IAP. It is important to note the FAA is not
requiring notice of proposed construction on or near all private
airports; the FAA is only proposing that notice be filed for
construction or alteration at or near a private use airport that has at
least one FAA-approved IAP.
IAPs at private use airports or heliports are not currently listed
in any aeronautical publication. The FAA proposes to post the private
use airports and heliports with IAPs on the FAA's Obstruction
Evaluation Web site. The FAA solicits comments about whether using the
Web site for distribution of this information would be effective, and
requests information about any other way the agency could distribute
this information. If this proposal is adopted, sponsors of construction
or alteration at or near a private use airport or heliport must consult
the Web site to determine whether an FAA-approved IAP is listed for
that airport. If the airport is listed on the Web site, the sponsor
would be required to file a notice with the FAA.
The regulatory obstruction standards and agency policy for
determining substantial adverse effect on aircraft instrument
operations would apply similarly to proposed structures at or near
private use airports and heliports that have at least one FAA approved
IAP. The FAA notes that usually the number of aircraft operations at
private use airports and heliports is minimal, and most proposed
construction or alteration would not meet the criteria for a hazard
determination. However, knowledge of proposed construction or
alteration that exceeds the obstruction standards in Sec. 77.17, which
has an FAA-approved IAP, would give the FAA adequate time and
opportunity to adjust the IAP, if warranted, and to distribute the
information to those who use the IAP.

Obstruction Standards--Objects

Currently, part 77 states that a proposed or existing structure is
an obstruction to air navigation if it is higher than 500 feet above
ground level (AGL) at the site of the object. Therefore,

[[Page 34035]]

a structure that is proposed at a height of exactly 500 feet is not
included and is not an obstruction.
The FAA is proposing to amend this obstruction standard to identify
a proposed structure as an obstruction if it exceeds 499 feet.
Navigable airspace is defined as the airspace above the minimum
altitudes of flight prescribed by regulation, including airspace needed
to ensure safety in the takeoff and landing of aircraft (49 U.S.C.
40102). FAA regulation governing minimum safe altitudes generally
provides that aircraft may not be operated below 500 feet above the
surface over non-congested areas. The minimum altitude is higher over
congested areas. (See 14 CFR 91.119.) Under this proposed amendment,
all structures that are 500 feet tall or more would be obstructions
under part 77, and would be studied by the FAA to determine their
effect on the navigable airspace. This proposal would ensure that all
usable airspace at and above 500 feet AGL is addressed during the
aeronautical study.

Civil Airport Imaginary Surfaces

The current Sec. 77.25 describes civil airport runway imaginary
surfaces, which are used to determine whether a proposed structure
would be an obstruction to air navigation at civil airports. Presently,
part 77 regulations describe five imaginary surfaces: (1) Horizontal
surfaces; (2) conical surfaces; (3) primary surfaces; (4) approach
surfaces; and (5) transitional surfaces. If a proposed structure
penetrates any one of these imaginary surfaces, then the structure is
an obstruction. The FAA then conducts an aeronautical study to
determine whether the obstruction adversely affects a significant
number of operations and therefore would be a hazard to navigation. The
FAA proposes to amend certain imaginary surfaces, which would broaden
their applicability. Changing these surfaces may result in more
proposed structures being classified as obstructions, if the structure
penetrates the surfaces. At the present time, the lateral dimensions of
the imaginary surfaces do not encompass the same lateral airspace the
FAA uses to establish instrument procedures. Because of this
inconsistency in the dimensions of surface airspace, the FAA finds that
certain structures do not fall within the surface area for an
obstruction. Consequently, the FAA does not study them, but they may
ultimately affect an instrument procedure. Amending the imaginary
surfaces, as proposed here, would more closely align the imaginary
surfaces under part 77 with the obstacle identification surfaces as
defined in FAA Order 8260.3, United States Standard for Terminal
Instrument Procedures (TERPS). While this may result in more structures
classified as obstructions, it does not necessarily mean that more
structures would, in fact, be hazards. These proposed amendments would
provide the FAA with the ability to identify and study more structures
to ensure the integrity of instrument procedures and to maintain
traffic capacity.
Presently, the ``primary surface'' is longitudinally centered on
the runway. The elevation of any point on the primary surface is the
same as the elevation of the nearest point on the runway centerline.
Moreover, if a runway has a specially prepared hard surface (such as
asphalt or concrete), the primary surface extends 200 feet beyond each
end of that runway; if a runway has no specially prepared or planned
hard surface, the primary surface ends at each end of that runway.
Also, the width of the primary surface depends on the type of runway
and the IAP serving the runway.
This action proposes to amend the description of the ``primary
surface'' when there is an instrument approach procedure for that
runway, irrespective of the type of runway surface. The basis for this
proposal is that IAPs for runways that do not have a specially prepared
hard surface are becoming more prevalent in remote areas of the
country, such as parts of the western United States. For these runways,
the FAA believes that it is necessary to amend the description of the
primary surface to include the 200 feet extension beyond the end of the
runway to accommodate the IAP. The FAA believes this amendment would
help to keep the necessary clearance from obstacles at airports that
have IAPs, but do not have specially prepared hard surfaces.
As previously stated, the term ``utility runway'' is no longer
being used by the FAA. Therefore, the FAA is proposing to remove the
term in current Sec. 77.25 and replace it with the phrase, ``runways
used by small aircraft.'' (Small aircraft, as defined in 14 CFR part 1,
are aircraft with a maximum certificated takeoff weight of 12,500
pounds or less.)
In determining the width of the primary surface, the current
regulation specifies different widths for ``utility runways'' and for
``other than utility runways.'' These two runway types are further
categorized as visual approach, instrument approach with distinguishing
flight visibility minimums, and day or night criteria. The FAA is
proposing to remove the term ``utility runway'' and replace it with the
phrase ``runways used by small aircraft.'' In addition, the FAA is
proposing to use the following three categories of runway types in
determining the primary surface width: (1) If the runway is visual,
used by small aircraft, or restricted to day-only instrument
operations, then the width of the primary surface would be 250 feet;
(2) if the runway is visual or used by other than small aircraft during
VFR-only operations or day/night instrument operations, then the
primary surface width would be 500 feet; and (3) if the runway is a
nonprecision or precision instrument runway, then the primary surface
width would be 1,000 feet. By adopting these terms and categories,
which are similar to the terms and categories used by the FAA in
airport design documents, the rule setting forth the primary surface
would be amended from five runway types to three runway types.
Also, the FAA proposes to reformat this section from text to a
chart format. This would help readers find the requirements quickly and
aid understanding. We solicit comments on whether this format clarifies
the imaginary surface obstruction standards.
The FAA also proposes to amend the imaginary approach surface.
Currently, the approach surface is defined as a surface longitudinally
centered on the extended runway centerline and extending outward and
upward from each end of the primary surface. The width of the approach
surface currently ranges from 1,250 feet for utility runways with only
visual approaches, to 16,000 feet for precision instrument runways.
Also, the approach surface extends for a horizontal distance of 5,000
feet at a slope of 20 to 1 for visual runways, to more than 40,000 feet
at a slope of 40 to 1 for all precision instrument runways. This action
proposes to amend the approach surface description by adopting the same
runway type descriptions previously discussed for the primary surfaces.
Therefore, if the runway is a visual runway, or used by small aircraft
during VFR operations, or restricted to day only instrument operations,
the surface width would expand uniformly to 1,250 feet. If the runway
is a visual runway, or used by other than small aircraft during VFR
operations, or for day/night operations the surface width would expand
uniformly to 3,500 feet. If the runway is a nonprecision instrument or
precision instrument runway, the surface width would expand uniformly
to 4,000 feet and 16,000 feet respectively.

[[Page 34036]]

The proposed amendments to runway type descriptions support
instrument approach circle to land maneuvers. Generally, a circling
approach maneuver is conducted when a straight-in landing to a runway
is not possible due to winds, or in those cases when the approach is
designed too steep for straight-in landing. The circling approach
maneuver requires the pilot to visually acquire the airport environment
and continue to the airport using visual references for landing. Pilots
must see and avoid obstacles as they make the transition from relying
on instrument navigation to visually flying the aircraft. This maneuver
may be conducted with minimum flight visibility, which requires the
area where the circling maneuver is conducted to be free from obstructions.
Other specific changes include removing approach surface widths of
1,500 feet (ft.) and 2,000 ft, and increasing the approach surface
width for nonprecision runways from 2,000 ft. to 4,000 ft. These
proposed widths are consistent with the slopes set forth in TERPS and
provide for consistent application for instrument approach procedure
development and obstacle clearance.
The FAA is proposing to amend the primary surface and the approach
surface for several reasons. TERPS has expanded the requirements for
obstruction clearance in the visual area of instrument approach
procedures. This includes a new visual area assessment for runways
where a pilot can circle to land from an instrument approach. The
proposed changes to the airport imaginary surfaces support the more
stringent TERPS requirements for visual area protection. Without these
changes, an obstruction may be built without the benefit of an
aeronautical study being conducted by the FAA to determine the impact
on instrument operations and the navigable airspace.
These proposed changes would more closely align regulatory
provisions in part 77 with TERPS criteria and airport design standards.
The inconsistency between instrument approach procedure criteria,
airport design standards, and part 77 is a source of confusion and
frustration among both airport managers and the FAA. Currently, airport
managers clear obstructions from the existing part 77 imaginary
surfaces to support a flight operation only to find the instrument
procedure criteria is more stringent than the current obstruction
standards. Thus, the proposed IAP may be denied, which can result in
unnecessary cost and delays, and the possible reduction in airport
efficiency and capacity.
The FAA has been working for many years to bring about uniformity
and consistency among criteria for airports, instrument approach
procedures and obstructions. This proposal would amend the applicable
sections of part 77 obstruction standards to more closely align with
the standards that are currently used by the FAA in the airport design
and TERPs for instrument procedures.
These specific proposals about surfaces do not change the notice
requirements for proposed construction or alteration of existing
structures. However, amending the runway imaginary surfaces (primary
and approach surfaces), as discussed previously, may expand the number
of structures that exceed the obstruction standards and require further
study by the FAA to determine whether the structure is a hazard to air
navigation. By studying more proposed obstructions that are in areas
critical to aircraft takeoffs and landings, the FAA will increase its
ability to maintain the integrity and safety of instrument approaches,
as well as airport capacity and efficiency. It is important to note
that exceeding part 77 obstruction standards alone does not necessarily
identify a structure as a hazard until further study is conducted.

Antenna Farms

The current subpart F describes the scope, policy, and general
provisions for the establishment of antenna farms. An antenna farm is
an area in which antenna structures may be grouped to localize their
effect on the use of the navigable airspace. The current regulatory
provision for the establishment of antenna farm areas has never been
used, nor has the need to designate antenna farms been demonstrated.
During this rulemaking action, the FAA consulted with the FCC about
this specific proposal. The FCC, who also has authority to propose an
antenna farm under this part, has no objection to removing this
section. Therefore, the FAA is proposing to delete subpart F.

Extension to a Determination of No Hazard

The current rule provides that the effective period of a
``Determination of No Hazard'' (unless subject to an appropriate
construction permit from the Federal Communications Commission) expires
18 months after its effective date unless it is otherwise extended,
revised, or terminated. The current rule also allows the sponsor of
construction to request an extension of the expiration date from the
FAA official who issued the Determination of No Hazard. The current
rule contains no provision for the period for which an extension may be
granted, and generally it is extended for however long the FAA official
deems appropriate.
The FAA considers the proposed structure when creating or amending
flight procedures or air traffic operations in the area. In effect, the
airspace is reserved for the structure until the FAA is advised
otherwise. Currently, when the FCC grants an extension to a
construction permit, the FAA determination is automatically extended.
However, there have been cases in the past where air traffic operations
or flight procedures have been delayed or adjusted for years to
accommodate a proposed structure that was never actually built. For
this reason, the FAA is proposing to allow, upon request, a one-time
extension of a no-hazard determination for up to 18 months for a
structure that is not subject to FCC review. If a proponent requires a
longer time period, a new Form 7460 (Notice of Proposed Construction or
Alteration) must be submitted to the FAA to restudy the proposed structure.
The FAA believes that for structures not subject to FCC review, the
extension of a Determination of No Hazard should be limited to a
maximum of 18 months. If more than 18 months would be necessary, then a
new aeronautical study would be initiated. We believe that this
proposal would result in more efficient use of airspace and provide the
FAA with more flexibility when adopting new flight procedures or air
traffic operations.
The current rule also provides that if the proposed construction
cannot be started before the FCC issues an appropriate construction
permit, the effective period of a Determination of No Hazard includes:
(1) The time required to apply for a construction permit from the FCC,
but not more than 6 months after the effective date of the
Determination of No Hazard; and (2) the time needed for the FCC to
process the application, except in cases where the FAA determines that
a shorter period is warranted by the circumstances. When the FCC issues
an appropriate construction permit, the Determination of No Hazard is
effective until the date prescribed in the FCC permit for completion of
the construction. If the FCC refuses to issue a permit, the final
determination expires on the date of the FCC's refusal.
The FAA proposes that for structures subject to an appropriate FCC
construction permit, a Determination of No Hazard may be extended for
12 months, provided the sponsor has

[[Page 34037]]

submitted evidence that an application for a construction permit was
filed and that additional time is needed because of FCC requirements.
If the FCC extends the original FCC construction completion date, an
extension of the FAA Determination of No Hazard must be requested by
the sponsor from the issuing FAA regional office.

Effective Period of Determinations

The current rule contains a section that addresses the effective
period of a determination. Information about a determination's
effective date is contained in the actual determination issued to the
sponsor, but this information is not included in the regulations. The
FAA proposes to include a regulatory provision that provides for a
determination to become effective 40 days after the date of issuance,
unless a petition for discretionary review is filed and received by the
FAA within 30 days of the date of issuance. This would provide
information about proposed structures to the general public who may
have an interest in proposed construction or alteration projects.

Petitions for Discretionary Review

Currently, sponsors or persons who have a substantial aeronautical
objection to an issued determination, or persons who were not given an
opportunity to comment during the aeronautical study process, may
petition the FAA for discretionary review. The FAA is proposing to
include information about processing petitions for discretionary review
to simplify and clarify the process. This proposal codifies current
policies and practices but does not alter the petition process. In
addition, the FAA is proposing to clarify that, if the last day of the
30-day filing period falls on a weekend or a day the Federal Government
is closed, the last day of the filing period would be the next business
day that the Federal Government is open.
The current rule excludes from the discretionary review process an
FAA determination that a structure does not exceed obstruction
standards. The FAA proposes to also exclude from the discretionary
review process ``No Hazard determinations'' issued for temporary
structures and recommendations for marking and lighting. Because of the
nature of temporary structures, it is not feasible to apply the
discretionary review process to these structures. Additionally, since
marking and lighting recommendations are simply recommendations, there
is a separate process in Advisory Circular (AC) 70/7460-1J, Obstruction
Marking and Lighting, which provides procedures for a waiver of, or
deviation from, the recommendations. The FAA does not find it necessary
to extend the discretionary review process to these determinations.

Public Hearings

The current subpart E lists the rules of practice for a public
hearing about a proposed construction or alteration of a structure. The
purpose of the public hearing as cited in this section is fact finding
and non-adversarial in nature.
The hearing procedures cited in subpart E have not been used in
recent years since petitioners are given ample opportunity to submit
all the material they believe is necessary to support their positions.
Further, the courts have upheld a review process exclusively based on
the submission of written materials by the petitioner. Therefore, the
FAA is proposing to delete current subpart E in its entirety.

Paperwork Reduction Act

This proposal contains the following new information collection
requirements. As required by the Paperwork Reduction Act of 1995 (44
U.S.C. 3507(d)), the FAA has submitted the information requirements
associated with this proposal to the Office of Management and Budget
for its review.
Title: Safe, Efficient Use and Preservation of the Navigable Airspace.
Summary: The FAA proposes to amend the regulations governing
objects that may affect the navigable airspace. Specifically, the FAA
is proposing to add notification requirements and obstruction standards
for electromagnetic interference and amend the obstruction standards
for civil airport imaginary surfaces to more closely align these
standards with FAA airport design and instrument approach procedure
criteria. The FAA proposes to require proponents to file with the
agency a notice of proposed construction or alteration of structures
near private-use airports that have an FAA approved instrument approach
procedure. This proposal, if adopted, would also increase the number of
days in which a notice must be filed with the FAA before beginning
construction or alteration; add and amend definitions for terms
commonly used during the aeronautical evaluation process; and remove
the provisions for public hearings and antenna farms. Lastly, the FAA
proposes to retitle the rule and reformat it into sections that closely
reflect the aeronautical study process. These proposals incorporate
case law and legislative action, and simplify the rule language. The
intended effect of these proposed changes is to improve safety and
promote the efficient use of the National Airspace System.
Use of: The FAA uses the information collected to determine the
effect the proposed construction or alteration would have on air
navigation by analyzing the physical and/or electromagnetic effect that
the structure would have on air navigation procedures, air navigation
and/or communication facilities. The following factors are considered:
? The impact on arrival, departure, and en route procedures
for aircraft visual and instrument flight rules.
? The impact on existing and planned public-use airports and
aeronautical facilities.
? The cumulative impact resulting from the proposed
construction or alteration of a structure when combined with the impact
of other existing or proposed structures.
Without collection of this information, safety of air navigation
cannot be ensured.
Respondents (including number of): The FAA estimates that there
will be 26,794 respondents to this proposed information requirement.
Respondents include individuals, small businesses, and large corporations.
Frequency: The FAA estimates respondents will file notices on occasion.
Annual Burden Estimate: This proposal would result in an annual
recordkeeping and reporting burden as follows:

----------------------------------------------------------------------------------------------------------------
Forms to be
Requirement filled out Time (hours) Cost
----------------------------------------------------------------------------------------------------------------
FAA Form 7460-1................................................. 3,824 1,223.68 $1,368,905
P.L. 100-23..................................................... 22,970 7,350.40 6,224,870
-----------------------------------------------
Total....................................................... 26,794 8,574.08 7,593,775
----------------------------------------------------------------------------------------------------------------

[[Page 34038]]

The agency is soliciting comments to--
(1) Evaluate whether the proposed information requirement is
necessary for the proper performance of the functions of the agency,
including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden;
(3) Enhance the quality, utility, and clarity of the information to
be collected; and
(4) Minimize the burden of the collection of information on those
who are to respond, including through the use of appropriate automated,
electronic, mechanical, or other technological collection techniques or
other forms of information technology.
Individuals and organizations may submit comments on the
information collection requirement by August 11, 2006, and should
direct them to the address listed in the ADDRESSES section of this
document. Comments also should be submitted to the Office of
Information and Regulatory Affairs, OMB, New Executive Building, Room
10202, 725 17th Street, NW., Washington, DC 20053, Attention: Desk
Officer for FAA.
According to the 1995 amendments to the Paperwork Reduction Act (5
CFR 1320.8(b)(2)(vi)), an agency may not collect or sponsor the
collection of information, nor may it impose an information collection
requirement unless it displays a currently valid OMB control number.
The OMB control number for this information collection will be
published in the Federal Register, after the Office of Management and
Budget approves it.

International Compatibility

In keeping with U.S. obligations under the Convention on
International Civil Aviation, it is FAA policy to comply with
International Civil Aviation Organization (ICAO) Standards and
Recommended Practices to the maximum extent practicable. The FAA has
reviewed the corresponding ICAO Standards and Recommended Practices and
has identified no new differences with these proposed regulations.

Regulatory Evaluation Summary

Changes to Federal regulations must undergo several economic
analyses. First, Executive Order 12866 directs that each Federal agency
shall propose or adopt a regulation only upon a reasoned determination
that the benefits of the intended regulation justify its costs. Second,
the Regulatory Flexibility Act requires agencies to analyze the
economic effect of regulatory changes on small businesses and other
small entities. Third, the Office of Management and Budget directs
agencies to assess the effect of regulatory changes on international
trade. In conducting these analyses, the FAA has determined that this
proposed rule: (1) Would generate benefits that justify its additional
costs and is not a ``significant regulatory action'' as defined in the
Executive Order; (2) is not significant as defined in the Department of
Transportation's Regulatory Policies and Procedures; (3) would not have
a significant impact on a substantial number of small entities; (4)
would not constitute a barrier to international trade; and (5) would
not contain any Federal intergovernmental or private sector mandate.
These analyses are summarized here in the preamble, and the full
Regulatory Evaluation is in the docket.

Total Costs and Benefits of This Rulemaking

The FAA estimates the cost to private industry would be
approximately $13.7 million ($8.8 million, discounted) over the next 10
years. The estimated cost of the proposed rule to the FAA would be
approximately $19.9 million ($12.8 million, discounted) over the next
10 years. Therefore, over the next 10 years, the total cost associated
with the proposed rule would be approximately $33.6 million ($21.5
million, discounted).
There are two main qualitative safety benefits of the proposed
rule. First, this proposal would enhance the protection of air
navigation aids in the vicinity of private use airports with FAA-
approved instrument approach procedures. Second, the proposed rule
would protect the flying public from signal interference from broadcast
sources that could disrupt vital communication or alter the performance
of vital avionics.

Who Is Potentially Affected by This Rulemaking?

This proposed rulemaking affects anyone who is proposing to
construct a transmitting structure, who would construct a transmitting
structure, or who would alter an existing transmitting structure (i.e.
television operators, radio stations, cellular phone providers). This
rulemaking may also affect individuals or corporations proposing
construction because obstruction standards modified by this rule could
result in more structures determined to be obstructions.

Our Cost Assumptions and Sources of Information

Discount rate--7%
Period of Analysis 2006--2015
Monetary values expressed in 2004 dollars
Cost for an individual to file an OE notice or an EMI notice--$10
Cost for a consulting firm to file an OE notice or an EMI notice--$445
Cost for the FAA to review and process an OE notice or an EMI notice--
$520

Initial Regulatory Flexibility Determination

The Regulatory Flexibility Act of 1980 establishes ``as a principle
of regulatory issuance that agencies shall endeavor, consistent with
the objective of the rule and of applicable statutes, to fit regulatory
and informational requirements to the scale of the business,
organizations, and governmental jurisdictions subject to regulation.''
To achieve that principle, the Act requires agencies to solicit and
consider flexible regulatory proposals and to explain the rationale for
their actions. The Act covers a wide-range of small entities, including
small businesses, not-for-profit organizations and small governmental
jurisdictions.
Agencies must perform a review to determine whether a proposed or
final rule will have a significant economic impact on a substantial
number of small entities. If the determination is that it will, the
agency must prepare a regulatory flexibility analysis (RFA) as
described in the Act.
However, if an agency determines that a proposed or final rule is
not expected to have a significant economic impact on a substantial
number of small entities, section 605(b) of the 1980 Act provides that
the head of the agency may so certify and an RFA is not required. The
certification must include a statement providing the factual basis for
this determination, and the reasoning should be clear.
With regards to the impact of the proposed EMI requirements on
small entities, as stated earlier, the FAA is proposing these
requirements in compliance with Public Law 100-223, Section 206.
Accordingly, the cost associated with filing EMI notices would be
attributed to the Act, and not to the proposed rule.
While the FAA does not maintain data on the size of businesses that
file notices, the FAA estimates that approximated forty percent \1\ of
the OE notices would be filed by small business (comprised of business
owners and private-use airport owners) as defined by the Small Business
Administration. Consequently, in 2006 when the rule is expected to take
effect, the FAA expects approximately 3,140 OE notices would

[[Page 34039]]

be filed. Of those applications filed, approximately 1,260 OE notices
are estimated to be filed by small businesses (using 40 percent assumption).
---------------------------------------------------------------------------

\1\ This estimate is based on FAA expert opinion.
---------------------------------------------------------------------------

For those small businesses that are inexperienced in submitting the
necessary paperwork, the FAA believes they would either hire a
consultant or spend as much as the consultant fee ($445) in staff time
to understand, research, complete, and submit the form(s). For the
purpose of this regulatory flexibility assessment, the FAA assumes that
it would cost all small entities approximately $445 per case to meet
the proposed requirements of part 77.
The FAA believes that any individual small business is unlikely to
submit enough OE notices in a calendar year that would cost them more
than $1,500 (three notices including consultant fees would cost
approximately $1,335). The FAA does not consider $1,500 a year a
significant cost. Therefore, the Administrator of the Federal Aviation
Administration certifies that the proposed rule would not have a
significant economic impact on a substantial number of small entities.
The FAA solicits comments from affected entities with respect to this
finding and determination and requests that all comments be accompanied
by clear documentation.

International Trade Impact Assessment

The Trade Agreement Act of 1979 prohibits Federal agencies from
engaging in any standards or related activities that create unnecessary
obstacles to the foreign commerce of the United States. Legitimate
domestic objectives, such as safety, are not considered unnecessary
obstacles. The statute also requires consideration of international
standards and where appropriate, that they be the basis for U.S. standards.
In accordance with the above statute, the FAA has assessed the
potential effect of this proposed rule and has determined that it would
have only a domestic impact and therefore create no obstacles to the
foreign commerce of the United States.

Unfunded Mandates Assessment

The Unfunded Mandates Reform Act of 1995 (the Act) is intended,
among other things, to curb the practice of imposing unfunded Federal
mandates on State, local, and tribal governments. Title II of the Act
requires each Federal agency to prepare a written statement assessing
the effects of any Federal mandate in a proposed or final agency rule
that may result in an expenditure of $100 million or more (adjusted
annually for inflation) in any one year by State, local, and tribal
governments, in the aggregate, or by the private sector; such a mandate
is deemed to be a ``significant regulatory action.'' The FAA currently
uses an inflation-adjusted value of $ 128.1 million in lieu of $100 million.
This proposed rule does not contain such a mandate. The
requirements of Title II do not apply.

Executive Order 13132, Federalism

The FAA has analyzed this proposed rule under the principles and
criteria of Executive Order 13132, Federalism. We determined that this
action would not have a substantial direct effect on the States, on the
relationship between the national Government and the States, or on the
distribution of power and responsibilities among the various levels of
government, and therefore would not have federalism implications.

Plain English

Executive Order 12866 (58 FR 51735, Oct. 4, 1993) requires each
agency to write regulations that are simple and easy to understand. We
invite your comments on how to make these proposed regulations easier
to understand, including answers to questions such as the following:
? Are the requirements in the proposed regulations clearly stated?
? Do the proposed regulations contain unnecessary technical
language or jargon that interferes with their clarity?
? Would the regulations be easier to understand if they were
divided into more (but shorter) sections?
? Is the description in the preamble helpful in
understanding the proposed regulations?
Please send your comments to the address specified in the ADDRESSES
section.

Environmental Analysis

FAA Order 1050.1E identifies FAA actions that are categorically
excluded from preparation of an environmental assessment statement
under the National Environmental Policy Act (NEPA) in the absence of
extraordinary circumstances. The FAA has determined this proposed
rulemaking action qualifies for the categorical exclusion identified in
paragraph 312f and involves no extraordinary circumstances.

Regulations That Significantly Affect Energy Supply, Distribution, or Use

The FAA has analyzed this NPRM under Executive Order 13211, Actions
Concerning Regulations that Significantly Affect Energy Supply,
Distribution, or Use (May 18, 2001). We have determined that it is not
a ``significant energy action'' under the executive order because it is
not a ``significant regulatory action'' under Executive Order 12866,
and it is not likely to have a significant adverse effect on the
supply, distribution, or use of energy.

List of Subjects in 14 CFR Part 77

Administrative practice and procedure, Airports, Airspace, Aviation
safety, Navigation (air), Reporting and recordkeeping requirements.

The Proposed Amendment

In consideration of the foregoing, the Federal Aviation
Administration proposes to amend chapter I of title 14, Code of Federal
Regulations, by revising part 77 to read as follows:

PART 77--SAFE, EFFICIENT USE, AND PRESERVATION OF THE NAVIGABLE AIRSPACE

Subpart A--General
Sec.
77.1 Purpose.
77.3 Definitions.
Subpart B--Notice Requirements
77.5 Applicability.
77.7 Form and time of notice.
77.9 Construction or alteration requiring notice.
77.11 Supplemental notice requirements.
Subpart C--Standards for Determining Obstructions to Air Navigation or
Navigational Aids or Facilities
77.13 Applicability.
77.15 Scope.
77.17 Obstruction standards.
77.19 Civil airport imaginary surfaces.
77.21 Department of Defense (DoD) airport imaginary surfaces.
77.23 Heliport imaginary surfaces.
Subpart D--Aeronautical Studies and Determinations
77.25 Applicability.
77.27 Initiation of studies.
77.29 Evaluating aeronautical effect.
77.31 Determinations.
77.33 Effective period of determinations.
77.35 Extensions, terminations, revisions and corrections.
Subpart E--Petitions for Discretionary Review
77.37 General.
77.39 Contents of a petition.
77.41 Discretionary review results.

Authority: 49 U.S.C. 106(g), 40103, 40113-40114, 44502, 44701,
44718, 46101-46102, 46104.

Subpart A--General

Sec. 77.1 Purpose.

This part establishes:

[[Page 34040]]

(a) The requirements to provide notice to the FAA of certain
proposed construction, or the alteration of existing structures;
(b) The standards used to determine obstructions to air navigation
and navigational and communication facilities;
(c) The process for aeronautical studies of obstructions to air
navigation or navigational facilities to determine the effect on the
safe and efficient use of navigable airspace, air navigation facilities
or equipment; and
(d) The process to petition the FAA for discretionary review of
determinations, revisions, and extensions of determinations.

Sec. 77.3 Definitions.

For the purpose of this part:
(a) Electromagnetic effect is any interference or impediment to the
transmission or quality of navigation or communication signals to or
from aircraft, meteorological equipment, navigation equipment,
communications equipment, or air traffic control facilities caused by a
power source, radio frequency transmitter, or an object or surface that
emits, reflects, or re-radiates an electromagnetic signal or electrical
pulse.
(b) Nonprecision instrument runway is:
(1) Any runway that has an instrument approach procedure that meets
straight-in alignment criteria with visibility minimums of \3/4\ mile,
up to and including one mile; or
(2) Any runway for which an instrument approach procedure is
designated or planned that meets straight-in alignment criteria with
visibility minimums of \3/4\ mile, up to and including one mile. This
runway must be included in an FAA or DoD approved airport layout plan,
or an airport planning document.
(c) Planned or proposed airport is an airport that is the subject
of at least one of the following documents received by the FAA:
(1) Airport proposals submitted under 14 CFR part 157.
(2) Airport Improvement Program requests for aid.
(3) Notices of existing airports where prior notice of the airport
construction or alteration was not provided as required by 14 CFR part 157.
(4) Airport layout plans.
(5) DoD proposals for airports used only by the U.S. Armed Forces.
(6) DoD proposals on joint-use (civil-military) airports.
(7) Completed airport site selection feasibility study.
(d) Precision instrument runway is:
(1) Any runway that has an instrument approach procedure with
visibility minimums of less than \3/4\ mile; or
(2) Any runway for which an instrument approach procedure has been
designated or planned that has visibility minimums of less than \3/4\
mile. This runway must be included in an FAA or DoD approved airport
layout plan, or airport planning document.
(e) Public use airport is an airport available for use by the
general public without a requirement for prior approval of the airport
owner or operator.
(f) Seaplane base is considered to be an airport only if its sea
lanes are outlined by visual markers.
(g) Visual runway is a runway for the operation of aircraft using
visual maneuvers for landing, or with instrument approach procedure
visibility minimums more than one mile (including circling procedures
and those annotated ``proceed visually).'' This does not including
procedures annotated ``proceed VFR'', or with no instrument designation
indicated on an FAA approved airport layout plan, a DoD approved
military airport layout plan, or by any official planning document
submitted to the FAA.

Subpart B--Notice Requirements

Sec. 77.5 Applicability.

(a) If you propose any construction or alteration described in
Sec. 77.9, you must provide adequate notice to the FAA of that
construction or alteration.
(b) If requested by the FAA, you must also file supplemental notice
before the start date and upon completion of certain construction or
alterations that are described in Sec. 77.9.
(c) Notice received by the FAA under this subpart is used to:
(1) Evaluate the effect of the proposed construction or alteration
on safety in air commerce and the efficient use and preservation of the
navigable airspace and of airport traffic capacity at public use airports;
(2) Determine whether the effect of proposed construction or
alteration is a hazard to air navigation;
(3) Determine appropriate marking and lighting recommendations
using FAA Advisory Circular 70/7460-1, Obstruction Marking and Lighting;
(4) Determine other appropriate measures to be applied for
continued safety of air navigation;
(5) Notify the aviation community of the construction or alteration
of objects that affect the navigable airspace, including the revision
of charts, when necessary.

Sec. 77.7 Form and time of notice.

(a) If you are required to file notice under Sec. 77.9, you must
submit to the FAA a completed FAA Form 7460-1, Notice of Proposed
Construction or Alteration. FAA Form 7460-1 is available at FAA
regional offices and on the FAA Web site.
(b) You must submit this form at least 60 days before the start
date of the proposed construction or alteration or the date an
application for a construction permit is filed, whichever is earliest.
(c) If you propose construction or alteration that is also subject
to the licensing requirements of the Federal Communications Commission
(FCC), you must submit notice to the FAA on or before the date that the
application is filed with the FCC.
(d) If you propose construction or alteration to an existing
structure and it exceeds 2,000 ft. in height above the ground (AGL),
the FAA presumes it to be a hazard to air navigation that results in an
inefficient use of airspace. You must include details explaining both
why the proposal would not constitute a hazard to air navigation and
why it would not cause an inefficient use of airspace.
(e) The 60-day advance notice requirement is waived if immediate
construction or alteration is required because of an emergency
involving essential public services, public health, or public safety.
You may provide notice to the FAA by any available expeditious means.
You must file a completed FAA Form 7460-1 within 5 days of the initial
notice to the FAA. Outside normal business hours, the nearest FAA
flight service station will accept emergency notices.

Sec. 77.9 Construction or alteration requiring notice.

If requested by the FAA, or if you propose any of the following
types of construction or alteration, you must file notice with the FAA of:
(a) Any construction or alteration that is more than 200 ft. AGL at
its site.
(b) Any construction or alteration that exceeds an imaginary
surface extending outward and upward at any of the following slopes:
(1) 100 to 1 for a horizontal distance of 20,000 ft. from the
nearest point of the nearest runway of each airport described in
paragraph (d) of this section with its longest runway more than 3,200
ft. in actual length, excluding heliports.
(2) 50 to 1 for a horizontal distance of 10,000 ft. from the
nearest point of the nearest runway of each airport described in
paragraph (d) of this

[[Page 34041]]

section with its longest runway no more than 3,200 ft. in actual
length, excluding heliports.
(3) 25 to 1 for a horizontal distance of 5,000 ft. from the nearest
point of the nearest landing and takeoff area of each heliport
described in paragraph (d) of this section.
(c) Any construction or alteration of a highway, railroad, or other
traverse way for mobile objects, of a height that would exceed a
standard of paragraph (a) or (b) of this section provided the following:

------------------------------------------------------------------------
Then increase the surface
If the traverse way is a(n) . . . height by . . .
------------------------------------------------------------------------
(1) Interstate Highway................. (i) 17 feet.
(2) Other Public Roadway............... (i) 15 feet.
(3) Private Road....................... (i) 10 feet, or height of
highest object which uses the
road.
(4) Waterway, or other traverse way.... (i) The height equal to an
object that uses it.
(5) Railroad........................... (i) 23 feet.
------------------------------------------------------------------------

(d) Any construction or alteration on any of the following airports
and heliports:
(1) A public use airport listed in the Airport/Facility Directory,
Alaska Supplement, or Pacific Chart Supplement of the U.S. Government
Flight Information Publications;
(2) A military airport under construction, or an airport under
construction that will be available for public use;
(3) An airport operated by a Federal agency or the DoD.
(4) An airport or heliport with at least one FAA-approved
instrument approach procedure.
(e) Frequencies.
(1) Any construction of a new facility, or modification of an
existing acility, which supports a radiating element(s) for the purpose
of radio frequency transmission operating on the following frequencies:

(i) 54-108 MHz
(ii) 150-216 MHz
(iii) 406-420 MHz
(iv) 932--935/941 MHz
(v) 952-960 MHz
(vi) 1390-1400 MHz
(vii) 2500-2700 MHz
(viii) 3700-4200 MHz
(ix) 5000-5650 MHz
(x) 5925-6525 MHz
(xi) 7450-8550 MHz
(xii) 14.2-14.4 GHz
(xiii) 21.2-23.6 GHz

(2) Any changes or modifications to a system operating on a
frequency specified in paragraphs (e)(1)(i) through (xiii) of this
section, when specified in the original FAA determination, including:
(i) Change in the authorized frequency;
(ii) Addition of new frequencies;
(iii) Increase in effective radiated power (ERP) equal or greater
than 3 decibels (db);
(iv) Modification of radiating elements, including:
(A) Antenna mounting location(s) if increased 100 feet or more,
irrespective of whether the overall height is increased;
(B) Changes in antenna specifications (including gain, beam-width,
polarization, pattern);
(C) Change in antenna azimuth/bearing (e.g. point-to-point
microwave systems).
(f) You do not need to file notice for construction or alteration of:
(1) Any object, not having potential electromagnetic effect, that
will be shielded by existing structures of a permanent and substantial
nature or by natural terrain or topographic features of equal or
greater height, and will be located in the congested area of a city,
town, or settlement where the shielded structure will not adversely
affect safety in air navigation;
(2) Any air navigation facility, airport visual approach or landing
aid, aircraft arresting device, or meteorological device meeting FAA-
approved siting criteria or an appropriate military service siting
criteria on military airports, the location and height of which are
fixed by its functional purpose;
(3) Any construction or alteration for which notice is required by
any other FAA regulation.
(4) Any antenna structure of 20 feet or less in height, except one
that would increase the height of another antenna structure.

Sec. 77.11 Supplemental notice requirements.

(a) You must file supplemental notice with the FAA when:
(1) The construction or alteration is more than 200 feet in height
AGL at its site; or
(2) Requested by the FAA.
(b) You must file supplemental notice on a prescribed FAA form to
be received within the time limits specified in the FAA determination.
If no time limit has been specified, you must submit supplemental
notice of construction to the FAA within 5 days after the structure
reaches its greatest height.
(c) If you abandon a construction or alteration proposal that
requires supplemental notice, you must submit notice to the FAA within
5 days after the project is abandoned.
(d) If the construction or alteration is dismantled or destroyed,
you must submit notice to the FAA within 5 days after the construction
or alteration is dismantled or destroyed.

Subpart C--Standards for Determining Obstructions to Air Navigation
or Navigational Aids or Facilities

Sec. 77.13 Applicability.

This subpart describes the standards used for determining
obstructions to air navigation, navigational aids, or navigational
facilities. These standards apply to the following:
(a) Any object of natural growth, terrain, or permanent or
temporary construction or alteration, including equipment or materials
used and any permanent or temporary apparatus.
(b) The alteration of any permanent or temporary existing structure
by a change in its height, including appurtenances, or lateral
dimensions, including equipment or material used therein.

Sec. 77.15 Scope.

(a) This subpart describes standards used to determine obstructions
to air navigation that may affect the safe and efficient use of
navigable airspace and the operation of planned or existing air
navigation and communication facilities. Such facilities include air
navigation aids, communication equipment, airports, Federal airways,
instrument approach or departure procedures, and approved off-airway routes.
(b) Objects that are considered obstructions under the standards
described in this subpart are presumed hazards to air navigation unless
further aeronautical study concludes that the object is not a hazard.
Once further aeronautical study has been initiated, the FAA will use
the standards in this subpart, along with FAA policy and guidance
material, to determine if the object is a hazard to air navigation.
(c) The FAA will apply these standards with reference to an
existing airport facility, and airport proposals received by the FAA,
or the appropriate

[[Page 34042]]

military service, before it issues a final determination.
(d) For airports having defined runways with specially prepared
hard surfaces, or runways supporting an approach with visibility less
than one mile, or night instrument operations, the primary surface for
each runway extends 200 feet beyond each end of the runway. For
airports having defined strips or pathways used regularly for aircraft
takeoffs and landings, and designated runways, without specially
prepared hard surfaces, each end of the primary surface for each such
runway shall coincide with the corresponding end of the runway. At
airports, excluding seaplane bases, having a defined landing and
takeoff area with no defined pathways for aircraft takeoffs and
landings, a determination must be made as to which portions of the
landing and takeoff area are regularly used as landing and takeoff
pathways. Those determined pathways must be considered runways, and an
appropriate primary surface as defined in Sec. 77.19 will be
considered as longitudinally centered on each such runway. Each end of
that primary surface must coincide with the corresponding end of that
runway.
(e) The standards in this subpart apply to construction or
alteration proposals on an airport (including heliports and seaplane
bases with marked lanes) if that airport is one of the following before
the issuance of the final determination:
(1) Available for public use and is listed in the Airport/Facility
Directory, Supplement Alaska, or Supplement Pacific of the U.S.
Government Flight Information Publications; or
(2) A planned or proposed airport or an airport under construction
of which the FAA has received actual notice, except DoD airports, where
there is a clear indication the airport will be available for public
use; or,
(3) An airport operated by a Federal agency or the DoD; or,
(4) An airport that has at least one FAA approved instrument approach.

Sec. 77.17 Obstruction standards.

(a) Proposed and Existing Structures
(1) An object, including a mobile object, is an obstruction to air
navigation if it is higher than any of the following heights or
surfaces:
(i) 499 feet AGL at the site of the object.
(ii) 200 feet AGL, or above the established airport elevation (AE),
whichever is higher, within 3 nautical miles of the established airport
reference point, excluding heliports, with its longest runway more than
3,200 feet in actual length, and that height increases in the
proportion of 100 feet for each additional nautical mile from the
airport up to a maximum of 499 feet above AE.
(iii) A height within a terminal obstacle clearance area, including
an initial approach segment, a departure area, and a circling approach
area, which would result in the vertical distance between any point on
the object and an established minimum instrument flight altitude within
that area or segment to be less than the required obstacle clearance.
(iv) A height within an en route obstacle clearance area of a
Federal Airway or approved off-airway route that would require an
increase of an existing or planned minimum obstacle clearance altitude;
or a height that would impact National Airspace System efficiency, such
as raising the minimum instrument altitude;
(v) The surface of a takeoff and landing area of an airport or any
imaginary surface established under Sec. 77.17, 77.19, 77.21, or
77.23. However, no part of the takeoff or landing area itself will be
considered an obstruction.
(2) Except for traverse ways on or near an airport with an
operative ground traffic control service furnished by an airport
traffic control tower or by the airport management and coordinated with
the ATC service, a traverse way used or to be used for the passage of
mobile objects will be considered, for purposes of paragraph (a) of
this section, to be an object of a height equal to the elevation of the
traverse way increased by the following:

------------------------------------------------------------------------
Then increase the surface
If the traverse way is a(n) . . . height by . . .
------------------------------------------------------------------------
(i) Interstate Highway................. (A) 17 feet.
(ii) Other Public Roadway.............. (A) 15 feet.
(iii) Private Road..................... (A) 10 feet, or height of
highest mobile object which
uses the road.
(iv) Waterway, or other traverse way... (A) The height equal to an
object that uses it.
(v) Railroad........................... (A) 23 feet.
------------------------------------------------------------------------

(b) Electromagnetic Interference (EMI)--A proposed radiating
facility is considered an obstruction if it is within the frequency
bands identified in Sec. 77.9(e).

Sec. 77.19 Civil airport imaginary surfaces.

(a) General. The civil airport imaginary surfaces in this section
are established in relation to the airport and to each runway, and used
to identify objects that may affect airport plans and arrival or
departure procedures. In many cases, the imaginary surfaces are lower
than required aircraft operational surfaces to identify obstructions
that are potential hazards to air navigation. The dimension of each
imaginary surface is based on the category of each runway and the type
of approach procedure available or planned for that runway. The slope
and dimensions of the surface are applied to both ends of a runway and
are determined by the most precise approach procedure (existing or
planned) for that runway.
(b) Horizontal surface. A horizontal plane 150 feet above the
established airport elevation, the perimeter of which is constructed by
swinging arcs of a specified radii from the center of each end of the
primary surface for each runway of each airport and connecting the
adjacent arcs by lines tangent to those arcs. The radius of each arc is:
(1) 5,000 feet for all runways designated as visual or serving only
small aircraft.
(2) 10,000 feet for all other runways. The radius of the arc
specified for each end of a runway will have the same arithmetical
value. That value will be the highest determined for either end of the
runway. When a 5,000-foot arc is encompassed by tangents connecting two
adjacent 10,000-foot arcs, the 5,000-foot arc must be disregarded on
the construction of the perimeter of the horizontal surface.
(c) Conical surface. A surface extending outward and upward from
the perimeter of the horizontal surface at a slope of 20 to 1 for a
horizontal distance of 4,000 feet.
(d) Primary surface. A surface longitudinally centered on a runway.
The elevation of any point on the primary surface is the same as the
elevation of the nearest point on the runway centerline. When the
runway has a specially prepared hard surface, or supports an approach
with visibility less than one mile, or night instrument operations, the
primary surface extends 200 feet beyond each end of that runway. When
the runway has no

[[Page 34043]]

specially prepared hard surface or planned hard surface, or has no FAA-
approved Instrument Approach Procedure, or the sea lanes of a seaplane
base are outlined by visual markers, the primary surface ends at each
end of the runway. The width of the primary surface is included in the
following table:

------------------------------------------------------------------------
If the runway is . . . Then the width must be . . .
------------------------------------------------------------------------
(1) Visual, or used only by small (i) 250 feet.
aircraft during VFR operations, or
restricted to day-only instrument
operations.
(2) Visual, or used by other than small (i) 500 feet.
aircraft during VFR-only operations,
or day/night instrument operations.
(3) Nonprecision instrument runway, or (i) 1,000 feet.
precision instrument (i) runway.
------------------------------------------------------------------------

(e) Approach surface. A surface longitudinally centered on the
extended runway centerline and extending outward and upward from each
end of the primary surface. An approach surface is applied to each end
of each runway based upon the type of approach available or planned for
that runway end.
(1) The inner edge of the approach surface is the same width as the
primary surface and:

------------------------------------------------------------------------
The surface width expands
If the runway is . . . uniformly to . . .
------------------------------------------------------------------------
(i) Visual, or used only by small (A) 1,250 feet.
aircraft during VFR operations, or
restricted to day-only instrument
operations.
(ii) Visual, or used by other than (A) 3,500.
small aircraft during VFRfeet.
operations, or day/night instrument
operations.
(iii) Nonprecision Instrument.......... (A) 4,000 feet.
(iv) Precision Instrument.............. (A) 16,000 feet.
------------------------------------------------------------------------

(2) Approach surface horizontal distance:

------------------------------------------------------------------------
Extend the surface
If the runway is . . . distance to . . . At a slope of . .
.
------------------------------------------------------------------------
(i) Visual, or used by small (A) 5,000 feet.... (1) 20:1.
aircraft during VFR operations,
or during day-only instrument
operations.
(ii) Visual, or used by other (A) 10,000 feet... (1) 34:1.
than small aircraft during VFR
operations, or day/night
instrument operations, or
Nonprecision Instrument.
(iii) Precision Instrument...... (A) 10,000 feet, (1) 50:1; at 40:1.
then an
additional 40,000
feet.
------------------------------------------------------------------------

(3) The outer width of the approach surface to an end of a runway
will be the width prescribed in this section for the most precise
procedure existing or planned for that runway end.
(d) Transitional surface. These surfaces extend outward and upward
at right angles to the runway centerline and the extended runway
centerline at a slope of 7 to 1 from the sides of the primary surface
and from the sides of the approach surfaces. Transitional surfaces for
those portions of a precision approach surface that project through and
beyond the limits of the conical surface, extend a distance of 5,000
feet measured horizontally from the edge of the approach surface and at
right angles to the runway centerline.

Sec. 77.21 Department of Defense (DoD) airport imaginary surfaces.

(a) Related to airport reference points. These surfaces apply to
all military airports. For the purposes of this section, a military
airport is any airport operated by the DoD.
(1) Inner horizontal surface. A plane that is oval in shape at a
height of 150 feet above the established airfield elevation. The plane
is constructed by scribing an arc with a radius of 7,500 feet about the
centerline at the end of each runway and interconnecting these arcs
with tangents.
(2) Conical surface. A surface extending from the periphery of the
inner horizontal surface outward and upward at a slope of 20 to 1 for a
horizontal distance of 7,000 feet to a height of 500 feet above the
established airfield elevation.
(3) Outer horizontal surface. A plane, located 500 feet above the
established airfield elevation, extending outward from the outer
periphery of the conical surface for a horizontal distance of 30,000 feet.
(b) Related to runways. These surfaces apply to all military airports.
(1) Primary surface. A surface located on the ground or water
longitudinally centered on each runway with the same length as the
runway. The width of the primary surface for runways is 2,000 feet.
However, at established bases where substantial construction has taken
place in accordance with a previous lateral clearance criteria, the
2,000-foot width may be reduced to the former criteria.
(2) Clear zone surface. A surface located on the ground or water at
each end of the primary surface, with a length of 1,000 feet and the
same width as the primary surface.
(3) Approach clearance surface. An inclined plane, symmetrical
about the runway centerline extended, beginning 200 feet beyond each
end of the primary surface at the centerline elevation of the runway
end and extending for 50,000 feet. The slope of the approach clearance
surface is 50 to 1 along the runway centerline extended until it
reaches an elevation of 500 feet above the established airport
elevation. It then continues horizontally at this elevation to a point
50,000 feet from the point of beginning. The width of this surface at
the runway end is the same as the

[[Page 34044]]

primary surface, it flares uniformly, and the width at 50,000 is 16,000
feet.
(4) Transitional surfaces. These surfaces connect the primary
surfaces, the first 200 feet of the clear zone surfaces, and the
approach clearance surfaces to the inner horizontal surface, conical
surface, outer horizontal surface or other transitional surfaces. The
slope of the transitional surface is 7 to 1 outward and upward at right
angles to the runway centerline.

Sec. 77.23 Heliport imaginary surfaces.

(a) Primary surface. The area of the primary surface coincides in
size and shape with the designated take-off and landing area. This
surface is a horizontal plane at the elevation of the established
heliport elevation.
(b) Approach surface. The approach surface begins at each end of
the heliport primary surface with the same width as the primary
surface, and extends outward and upward for a horizontal distance of
4,000 feet where its width is 500 feet. The slope of the approach
surface is 8 to 1 for civil heliports and 10 to 1 for military heliports.
(c) Transitional surfaces. These surfaces extend outward and upward
from the lateral boundaries of the primary surface and from the
approach surfaces at a slope of 2 to 1 for a distance of 250 feet
measured horizontally from the centerline of the primary and approach
surfaces.

Subpart D--Aeronautical Studies and Determinations

Sec. 77.25 Applicability.

(a) This subpart applies to any aeronautical study of a proposed
construction or alteration for which notice to the FAA is required
under Sec. 77.9.
(b) The purpose of an aeronautical study is to determine whether
the aeronautical effects of the specific proposal and, where
appropriate, the cumulative impact resulting from the proposed
construction or alteration when combined with the effects of other
existing or proposed structures, would constitute a hazard to air
navigation.
(c) The obstruction standards in subpart C of this part are
supplemented by other manuals and directives used in determining the
effect on the navigable airspace of a proposed construction or
alteration. When the FAA needs additional information, it may circulate
a study to interested parties for comment.

Sec. 77.27 Initiation of studies.

The FAA will conduct an aeronautical study when:
(a) Requested by the sponsor of any proposed construction or
alteration for which a notice is submitted; or
(b) The FAA determines a study is necessary.

Sec. 77.29 Evaluating aeronautical effect.

(a) The FAA conducts an aeronautical study to determine the impact
of a proposed or existing structure or alteration on aeronautical
operations, procedures, and the safety of flight. These include an
evaluation of:
(1) The impact on arrival, departure, and en route procedures for
aircraft operating under visual flight rules;
(2) The impact on arrival, departure, and en route procedures for
aircraft operating under instrument flight rules;
(3) The impact on existing and planned public use airports;
(4) Airport capacity of existing public use airports and public use
airport development plans received before the issuance of the final
determination;
(5) Minimum obstacle clearance altitudes, minimum instrument flight
rules altitudes, approved or planned instrument approach procedures,
and departure procedures;
(6) The potential effect on ATC radar, direction finders, ATC tower
line-of-sight visibility, and physical or EMI effects on air navigation
and communication facilities;
(7) The aeronautical effects resulting from the cumulative impact
of a proposed construction or alteration of a structure when combined
with the effects of other existing or proposed structures.
(b) If you withdraw the proposed construction or alteration or
revise it so that it is no longer identified as an obstruction, or if
no further aeronautical study is necessary, the FAA may terminate the study.

Sec. 77.31 Determinations.

(a) The FAA will issue a determination stating whether the proposed
construction or alteration would be a hazard to air navigation, and
will advise all known interested persons.
(b) The FAA will make determinations based on the aeronautical
study findings and will identify the following:
(1) The effects of the proposed or existing structure on VFR/IFR
aeronautical departure/arrival operations, air traffic procedures,
minimum flight altitudes, and existing planned or proposed airports
listed in Sec. 77.15(e) of which the FAA has received actual notice
prior to issuance of a final determination.
(2) The extent of the physical and/or EMI effect on the operation
of existing or proposed air navigation facilities or communication aids.
(c) The FAA will issue a Determination of Hazard to Air Navigation
when the aeronautical study concludes that the proposed construction or
alteration will exceed an obstruction standard and would have a
substantial aeronautical impact.
(d) A Determination of No Hazard to Air Navigation will be issued
when the aeronautical study concludes that the proposed construction or
alteration will exceed an obstruction standard but would not have a
substantial aeronautical impact to air navigation. A Determination of
No Hazard to Air Navigation may include the following:
(1) Conditional provisions of a determination.
(2) Limitations necessary to minimize potential problems, such as
the use of temporary construction equipment.
(3) Supplemental notice requirements, when required.
(4) Marking and lighting recommendations, as appropriate.
(e) The FAA will issue a Determination of No Hazard to Air
Navigation when a proposed structure does not exceed any of the
obstruction standards and would not be a hazard to air navigation.

Sec. 77.33 Effective period of determinations.

(a) A determination issued under this subpart is effective 40 days
after the date of issuance, unless a petition for discretionary review
is received by the FAA within 30 days after issuance. The determination
will not become final pending disposition of a petition for
discretionary review.
(b) Unless extended, revised, or terminated, each Determination of
No Hazard to Air Navigation issued under this subpart expires 18 months
after the effective date of the determination, or on the date the
proposed construction or alteration is abandoned, whichever is earlier.
(c) A Determination of Hazard to Air Navigation has no expiration date.

Sec. 77.35 Extensions, terminations, revisions and corrections.

(a) You may petition the FAA official who issued the Determination
of No Hazard to Air Navigation to revise or reconsider the
determination based on new facts or to extend the effective period of
the determination, provided that:
(1) Actual structural work of the proposed construction or
alteration, such as the laying of a foundation, but not including
excavation, has not been started; and
(2) The petition is submitted at least 15 days before the
expiration date of the

[[Page 34045]]

Determination of No Hazard to Air Navigation.
(b) A Determination of No Hazard to Air Navigation issued for those
construction or alteration proposals not requiring an FCC construction
permit may be extended by the FAA one time for a period not to exceed
18 months.
(c) A Determination of No Hazard to Air Navigation issued for a
proposal requiring an FCC construction permit may be granted extensions
for up to 12 months, provided that:
(1) You submit evidence that an application for a construction
permit/license was filed with the FCC for the associated site within 6
months of issuance of the determination; and
(2) You submit evidence that additional time is warranted because
of FCC requirements; and
(3) Where the FCC issues a construction permit, a final
Determination of No Hazard to Air Navigation is effective until the
date prescribed by the FCC for completion of the construction. If an
extension of the original FCC completion date is needed, an extension
of the FAA determination must be requested from the FAA.

Subpart E--Petitions for Discretionary Review

Sec. 77.37 General.

(a) If you are the sponsor, provided a substantive aeronautical
comment on a proposal in an aeronautical study, or have a substantive
aeronautical comment on the proposal but were not given an opportunity
to state it, you may petition the FAA for a discretionary review of a
determination, revision, or extension of a determination issued by the FAA.
(b) You may not file a petition for discretionary review for a
Determination of No Hazard that is issued for a temporary structure,
marking and lighting recommendation, or when a proposed structure or
alteration does not exceed obstruction standards contained in subpart C.

Sec. 77.39 Contents of a petition.

(a) You must file a petition for discretionary review in writing
and it must be received by the FAA within 30 days after the issuance of
a determination under Sec. 77.31, or a revision or extension of the
determination under Sec. 77.35.
(b) The petition must contain a full statement of the aeronautical
basis on which the petition is made, and must include new information
or facts not previously considered or presented during the aeronautical
study, including valid aeronautical reasons why the determination,
revisions, or extension made by the FAA should be reviewed.
(c) In the event that the last day of the 30-day filing period
falls on a weekend or a day the Federal government is closed, the last
day of the filing period is the next day that is not one of the above-
mentioned days.
(d) The FAA will inform the petitioner or sponsor (if other than
the petitioner) and the FCC (whenever an FCC-related proposal is
involved) shall be informed of the filing of the petition and that the
determination is not final pending disposition of the petition.

Sec. 77.41 Discretionary review results.

(a) If discretionary review is granted, the FAA will inform the
petitioner and the sponsor (if other than the petitioner) of the issues
to be studied and reviewed.
(b) If discretionary review is denied, the FAA will notify the
petitioner and the sponsor (if other than the petitioner), and the FCC,
whenever a FCC-related proposal is involved, of the basis for the
denial along with a statement that the determination is final.
(c) After concluding the discretionary review process, the FAA will
revise, affirm, or reverse the determination.

Issued in Washington, DC, on June 1, 2006.
Nancy B. Kalinowski,
Director of System Operations Airspace and Aeronautical Information
Management.
[FR Doc. 06-5319 Filed 6-12-06; 8:45 am]
BILLING CODE 4910-13-P

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