[Federal Register Volume 60, Number 199 (Monday, October 16, 1995)]
[Proposed Rules]
[Pages 53680-53683]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-25404]




[[Page 53679]]

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Part III





Department of Transportation





_______________________________________________________________________



Federal Aviation Administration



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14 CFR Part 77



Objects Affecting Navigable Airspace; Proposed Rule

  Federal Register / Vol. 60, No. 199 / Monday October 16, 1995 / 
Proposed Rules  

[[Page 53680]]


DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 77

[Docket No. 26305; Notice No. 90-19A]
RIN 2120-AA09


Objects Affecting Navigable Airspace

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Supplemental notice of proposed rulemaking (SNPRM).

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SUMMARY: This supplemental notice proposes to amend the application of 
the Federal Aviation Regulations (FAR) part 77 obstruction standards as 
proposed in a previous Notice of Proposed Rulemaking (NPRM). NPRM 90-
18, published August 3, 1990 (subsequently corrected to Notice No. 90-
19), stated, in part, that FAA obstruction standards will be applied 
with reference to an existing airport facility or use as well as a 
planned facility or use, if a proposal for such a facility or use is on 
file with the FAA or with the appropriate military service on the date 
the Notice of proposed Construction or Alteration is filed. The NPRM 
also stated, in part, that FAA obstruction standards apply to the 
effect of proposed construction or alteration upon an airport if, at 
the time of filing of the notice of construction or alteration, that 
airport is a planned or proposed airport under construction that is the 
subject of a notice or proposal on file with the FAA. During the fact 
finding phase of an aeronautical study of a construction or alteration 
proposal, the FAA may solicit comments from all interested persons. 
Based on a U.S. Court of Appeals decision (Greater Orlando Aviation 
Authority v. F.A.A., 939 F.2d 954 (11th Cir. 1991), hereinafter 
``GOAA''), the FAA is proposing to amend the application of its 
obstruction standards to include consideration of proposals that are 
received before the end of the public comment period of the 
aeronautical study.

DATES: Comments must be received on or before November 30, 1995.

ADDRESSES: Comments on this proposal may be mailed in triplicate to: 
Federal Aviation Administration, Office of the Chief Counsel, 
Attention: Rules Docket (AGC-200), Docket No. 26305, Notice No. 90-19A, 
800 Independence Avenue, SW., Washington, DC 20591; or delivered in 
triplicate to: Federal Aviation Administration, Rules Docket, Room 915-
G, 800 Independence Avenue, SW., Washington, DC. Comments delivered 
must be marked Docket No. 26305 and Notice No. 90-19A. The official 
docket may be examined in the Rules docket weekdays, except Federal 
holidays, between 8:30 a.m. and 5:00 p.m.

FOR FURTHER INFORMATION CONTACT: Janet Apple, Air Traffic Rules and 
Procedures Branch, Airspace-Rules and Aeronautical Information 
Division, Federal Aviation Administration, 800 Independence Avenue, 
SW., Washington, DC 20591; telephone (202) 267-8783.

SUPPLEMENTARY INFORMATION:

Comments Invited

    Interested persons are invited to participate in the proposed 
rulemaking by submitting such written data, views, or arguments as they 
may desire. Comments that provide the factual basis supporting the 
views and suggestions presented are particularly helpful in developing 
reasoned regulatory decisions on the proposals. Comments relating to 
the overall regulatory, aeronautical, environmental, energy-related, 
federalism, or economic aspects of the proposals contained in this 
SNPRM are also invited. Comments should identify the regulatory docket 
number and notice number and be submitted in triplicate to the address 
listed above. All comments received on or before the specified closing 
date for comments will be considered by the administrator before taking 
action on the proposed amendments. The proposals contained in this 
SNPRM may be changed in light of comments received. All comments 
received will be available for examination by interested persons in the 
Rule Docket both before and after the closing date for comments. A 
report summarizing each substantive public contact with FAA personnel 
concerned with this rulemaking will be filed in the docket. Commenter 
wishing the FAA to acknowledge receipt of their comments submitted in 
response to this SNPRM must include a pre-addressed, stamped postcard 
on which the following statement is made: ``Comments to Docket No. 
26305.'' The postcard will be date stamped and mailed to the commenter.

Availability of NPRM's

    Any person may obtain a copy of this SNPRM by submitting a request 
to the Federal Aviation Administration, Office of Public Affairs, 
Attention: Public Inquiry Center, APA-230, 800 Independence avenue, 
SW., Washington, DC 20591, or by calling (202) 267-3485. Communications 
must identify the notice number of this SNPRM.
    Persons interested in being placed on a mailing list for future 
NPRM's should request from the above office a copy of Advisory Circular 
(AC) No. 11-2A, ``Notice of Proposed Rulemaking Distribution System,'' 
which describes the application procedure.

Background

    The authority and requirements of FAR part 77 are derived, in part, 
from 49 U.S.C. 44718. Section 44718 pertains to notice of construction 
or alteration of any structure that may affect the use of navigable 
airspace.
    Section 44718 was amended by Public Law 100-223 (The Airport and 
Airway Safety and Capacity Expansion Act of 1987). Public Law 100-223 
provided for, in part, the consideration of electromagnetic 
interference (EMI) effects on air navigation facilities and equipment 
or navigable airspace, and the consideration of the cumulative impact 
resulting from proposed construction or alteration. Public Law 100-223 
emphasized the need to preserve navigable airspace and airport traffic 
capacity at public use airports. In response to Public Law 100-223, the 
FAA published a notice of proposed rulemaking (NPRM) in the Federal 
Register on August 3, 1990, Notice No. 90-18, 55 FR 31722; corrected 55 
FR 32999, August 13, 1990; 55FR 35152, August 28, 1990; and 55 FR 
37287, September 10, 1990. The proposals contained in Notice No. 90-18, 
corrected to an hereafter referred to as 90-19, were based primarily on 
the amendments to section 44718 and recommended changes to part 77 
developed by a joint government and industry task group.
    The FAA received over 60 comments on the proposals presented in 
Notice No. 90-19. This SNPRM does not reopen the proposals contained in 
Notice No. 90-19 or request further comments on those proposals. The 
comments to Notice No. 90-19 will not be discussed in this SNPRM but 
will, along with comments to this SNPRM, be considered in any 
subsequent final rulemaking action regarding part 77.
    Currently, part 77 requires sponsors to submit notice to the FAA at 
least 30 days before any proposed construction or alteration that 
exceeds certain notice criteria. The FAA studies the construction or 
alteration proposal to determine its aeronautical effect on the safe 
and efficient use of navigable airspace. The study includes the 
consideration of the proposal's aeronautical effect on any existing or 
planned public-use or military airports, 

[[Page 53681]]
air navigation facilities, procedures, or other proposals ``on file 
with the FAA.'' A proposal submitted to the FAA for consideration is 
referred to as a plan or notice ``on file with the FAA,'' or ``on file 
with an appropriate military service'' if the plan or notice relates to 
a military airport.
    The United States Court of Appeals for the Eleventh Circuit issued 
a decision that affects the longstanding FAA policy and practice 
concerning the consideration given to plans on file with the FAA, or on 
file with an appropriate military service. Currently, FAA obstruction 
standards are applied with reference to an existing airport facility or 
use as well as a planned facility or use, if a proposal for such a 
facility or use is on file with the FAA or with the appropriate 
military service on the date the Notice of Proposed Construction or 
Alternation is filed. During the fact finding phase of an aeronautical 
study, the FAA may solicit comments from all interested persons. Based 
upon the GOAA decision, the FAA is proposing to amend the application 
of its obstruction standards to include consideration of any proposal 
received before the end of the public comment period of the 
aeronautical study for the construction or alternation. Additionally, 
this SNPRM addresses those concerns expressed by Guy Gannett Publishing 
Co.'s Petition for Rulemaking to Docket No. 26305, Notice No. 90-18, 
based on GOAA.

The Proposal

    The FAA proposes to amend certain sections of part 77, as proposed 
in Notice No. 90-19, by considering the effect that proposals received 
before the end of the public comment period of an aeronautical study 
for a construction or alteration proposal would have on the subject 
proposed. The FAA is also proposing to amend the proposed FAR section 
77.2, section 77.15 paragraphs (a)(5)(ii) and (a)(6)(ii), section 77.23 
paragraphs (a) and (c)(2), section 77.35 paragraph (a)(2), and section 
77.36 paragraph (b)(1), by deleting any references regarding ``notices 
or proposals on file with the FAA'' (or appropriate military service). 
These proposed changes are in response to GOAA, where the U.S. Court of 
Appeals for the Eleventh Circuit held that the FAA must consider any 
proposal it receives before the end of the public comment period of an 
aeronautical study of a construction or alteration proposal.

Paperwork Reduction Act

    Information collection requirements for part 77 have previously 
been approved by the Office of Management and Budget (OMB) under the 
provisions of the Paperwork Reduction Act of 1980 (Pub. L. 96-511) and 
have been assigned OMB Control Number 2120-0001. The FAA has determined 
that the proposals contained in this notice, if adopted, would not 
significantly affect the information collection reporting requirements 
of part 77.

Regulatory Evaluation Summary

    Executive Order 12866 established the requirement that, within the 
extent permitted by law, a Federal regulatory action may be undertaken 
only if the potential benefits to society for the regulation outweigh 
the potential costs to society. In response to this requirement, and in 
accordance with Department of Transportation policies and procedures, 
the FAA has estimated the anticipated benefits and costs of this 
rulemaking action. The results are summarized in this section. For more 
detailed economic information, see the full regulatory evaluation 
contained in the docket.
    This evaluation examines the costs and benefits of a Supplemental 
Notice of Proposed Rulemaking (SNPRM) to amend FAR part 77--Objects 
Affecting Navigable Airspace. Part 77 of the FAR, adopted on December 
12, 1962, establishes standards for determining obstructions in 
navigable airspace; sets forth the requirements for notice to the 
Administrator of certain proposed construction or alteration; and 
provides for aeronautical studies of obstructions to air navigation to 
determine their effect on the safe and efficient use of airspace.
    This proposed rule would amend the application of part 77 
obstruction standards to include consideration of any proposal that is 
received before the end of the public comment period for an 
aeronautical study of a proposed construction or alteration. Presently, 
part 77 obstruction standards apply to existing or planned public-use 
or military airports, alterations of public-use or military airports, 
aeronautical facilities, procedures, and other proposals on file with 
the FAA (or with the appropriate military service if the proposal 
relates to a military airport) on or before the date the FAA receives 
notice of a construction or alteration proposal that is the subject of 
an aeronautical study. Therefore, the proposed rule has the potential 
for increasing the scope and complexity of certain aeronautical studies 
conducted by the agency. However, the proposed rule would not result in 
any changes to FAA notice criteria. Consequently, the total number of 
notices received by the FAA, pursuant to notice criteria under this 
part, would not be affected by this proposed rule.
    In the Regulatory Evaluation Summary contained in the preamble of 
Notice No. 90-19, and the Draft Regulatory Evaluation, Initial 
Regulatory Flexibility Analysis, and Trade Impact Assessment (a copy of 
which is available for review under Docket No. 26305), the FAA 
determined that the costs associated with the requirements of part 77 
are comprised of: (1) the cost to proponents associated with submitting 
notice to the FAA on Form 7460-1, Notice of Proposed Construction or 
Alteration; and (2) FAA administrative costs associated with evaluating 
notices of proposed construction and alteration.
    This proposed rule would not impose additional costs on proponents 
for submitting notice on Form 7460-1 because part 77 notice criteria 
would be unaffected by this proposed rule. In addition, the available 
staff resources appear to be sufficient to handle any increase in the 
scope and complexity of some studies. The potential increase in 
workload would be regarded as routine. Therefore, the FAA has 
determined that the costs that can be directly attributed to this 
proposed rule would be negligible.
    The primary benefit which results from this proposed rule would be 
the consideration given to other proposals received during the comment 
period of an aeronautical study of proposed construction or alteration. 
This should enhance the safe and efficient utilization of the navigable 
airspace.
    Although the FAA is unable to quantify the benefits and costs of 
this proposal, the potential benefits to society are expected to 
outweigh the costs.

International Trade Impact Statement

    This proposal would not impose a competitive disadvantage to either 
U.S. air carriers doing business abroad or foreign air carriers doing 
business in the United States because it would have no impact on either 
U.S. or foreign air carriers. This proposal would have no effect on the 
sale of foreign aviation products or services in the United States, nor 
would it affect the sale of United States aviation products or services 
in foreign countries.

Federalism Implications

    The regulations proposed herein would not have substantial direct 
effects on the states, on the relationship between the National 
Government and the states, or on the distribution of power and 
responsibilities among the 

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various levels of government. Therefore, in accordance with Executive 
Order 12612, it is determined that this proposal would not have 
sufficient federalism implications to warrant the preparation of a 
Federalism Assessment.

International Civil Aviation Organization and Joint Aviation 
Regulations

    In keeping with the U.S. obligations under the Convention on 
International Civil Aviation, it is FAA policy to comply with ICAO 
Standards and Practices (SARP) to the maximum extent practicable. For 
this notice, the FAA has determined that this proposal, if adopted, 
would not present any differences.

Conclusion

    For the reasons discussed above, the FAA has determined that this 
proposed regulation is not a ``significant regulatory action'' under 
Executive Order 12866 and is not considered ``significant'' under DOT 
Regulatory Policies and Procedures (44 FR 11034; February 26, 1979). In 
addition, the FAA certifies that this proposal, if adopted, will not 
have a significant economic impact, positive or negative, on a 
substantial number of small entities under the criteria of the 
Regulatory Flexibility Act. An initial regulatory evaluation of the 
proposal, including a Regulatory Flexibility Determination, has been 
placed in the docket. A copy may be obtained from the individual listed 
under FOR FURTHER INFORMATION CONTACT.

List of Subjects in 14 CFR Part 77

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

The Proposed Amendment

    Accordingly, pursuant to the authority delegated to me, the FAA 
proposes to amend part 77 of the Federal Aviation Regulations (14 CFR 
part 77) as proposed to be revised in the Federal Register of August 3, 
1990 (55 FR 31722) as follows:

PART 77--OBJECTS AFFECTING NAVIGABLE AIRSPACE

    1. The authority citation for part 77 is revised to read as 
follows:

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

    2. Proposed Sec. 77.2 is amended by removing the definition of 
``Planned or proposed airport for which notice is on file'' and adding 
a new definition in alphabetical order to read as follows:


Sec. 77.2  Definition of terms.

* * * * *
    Planned or proposed aiport means an airport that is the subject of 
any of the following documents received by the FAA--
    (1) Airport proposals submitted pursuant to the provisions of part 
157 of this chapter;
    (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 part 157 of 
this chapter;
    (4) Airport layout plans, including consideration of the effect of 
structures which may restrict control tower line-of-sight capability 
and effects upon electronic and visual aids to air navigation;
    (5) Military proposals for military airports used only by the armed 
forces;
    (6) Military proposals on joint-use (civil-military) airports;
    (7) Proposed designation of precision instrument landing runways; 
and
    (8) Completed airports site selection feasibility studies and 
recommendations.
* * * * *
    3. Proposed Sec. 77.15 is amended by revising paragraphs (a)(5)(ii) 
introductory text and (a)(6)(ii) to read as follows:


Sec. 77.15  Construction or alteration requiring notice.

* * * * *
    (a) * * *
    (5) * * *
    (ii) An airport under construction, and--
* * * * *
    (6) * * *
    (ii) When available information indicates the construction or 
alteration might exceed a standard of subpart C of this part for an 
airport available for public use; or
* * * * *
    4. Proposed Sec. 77.23 is amended by revising paragraph (a), the 
introductory text of paragraph (c), and paragraph (c)(2) to read as 
follows:


Sec. 77.23  Scope.

    (a) This subpart establishes standards for determining obstructions 
to air navigation relative to the safe and efficient utilization of 
navigable airspace by aircraft along with the operation of planned or 
existing air navigation facilities to include air navigation aids, 
airports, Federal Airways, instrument approach or departure procedures, 
and approved off-airway routes. Objects that are identified as 
obstructions under the standards described in this subpart are presumed 
to be hazards to air navigation unless an aeronautical study, made in 
accordance with Subpart D of this part, determines otherwise. Once an 
aeronautical study has been initiated, the standards listed in appendix 
A of this part, in addition to those listed in this subpart, shall be 
used to determine if the object being studied would constitute a hazard 
to air navigation. The standards in this subpart apply to existing and 
proposed manmade objects as well as to objects of natural growth and 
terrain. These standards will be applied with reference to an existing 
airport facility or use, and proposals received by the FAA, or the 
appropriate military service, before the end of the public comment 
period of an aeronautical study of a construction or alteration 
proposal.
* * * * *
    (c) The standards in this subpart apply to the effect of a 
construction or alteration proposal upon an airport (including 
heliports, vertiports, and seaplane bases) if, before the end of the 
public comment period of an aeronautical study of that proposed 
construction or alteration, that airport is:
* * * * *
    (2) A planned or proposed airport or an airport under construction, 
of which the FAA has received actual notice, and with the exception of 
military airports, where there is a clear indication the airport will 
be available for public use; or
* * * * *
    5. Proposed Sec. 77.35 is amended by revising paragraph (a)(2) to 
read as follows:


Sec. 77.35  Evaluating aeronautical effect.

    (a) * * *
    (2) In reference to the airport capacity of existing public-use 
airports and public-use airport development plans received before the 
end of the public comment period of an aeronautical study of a 
construction or alteration proposal;
* * * * *
    6. Proposed Sec. 77.36 is amended by revising paragraph (b)(1) to 
read as follows:


Sec. 77.36  Determinations.

* * * * *
    (b) * * *
    (1) Identify the effects of the proposed structure on VFR/IFR 
aeronautical departure/arrival operations, procedures, minimum flight 
altitudes, 

[[Page 53683]]
and existing or proposed public-use airports, of which the FAA has 
received actual notice of, before the end of the public comment period 
on an aeronautical study of that proposed construction or alteration, 
and the extent of the physical and/or EMI effect on the operation of 
existing or proposed air navigation facilities or communication aids, 
including an explanation of whether the effect is substantial. The 
cumulative adverse effects that would result from the proposed 
construction or alteration will be considered in determining whether a 
substantial adverse effect is created. A finding of substantial adverse 
effect will result in the issuance of a determination of hazard to air 
navigation;
* * * * *
    Issued in Washington, D.C. on October 6, 1995.
Harold W. Becker,
Acting Program Director, Air Traffic Rules and Procedures.
[FR Doc. 95-25404 Filed 10-13-95; 8:45 am]
BILLING CODE 4910-13-M