[Federal Register Volume 71, Number 113 (Tuesday, June 13, 2006)]
[Proposed Rules]
[Pages 34028-34045]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-5319]


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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


Safe, Efficient Use and Preservation of the Navigable Airspace

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