Safe, Efficient Use and Preservation of the Navigable Airspace, 34028-34045 [06-5319]

Agencies

• Federal Aviation Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 71, Number 113 (Tuesday, June 13, 2006)]
[Proposed Rules]
[Pages 34028-34045]
From the Federal Register Online via the Government Printing 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 https://dms.dot.gov and follow 
the instructions for sending your comments electronically.
     Government-wide rulemaking Web site: Go to https://
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 
https://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 
https://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 https://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 (https://dms.dot.gov/search);
    (2) Visiting the FAA's Regulations and Policies Web page at https://
www.faa.gov/regulations_policies/; or
    (3) Accessing the Government Printing Office's Web page at https://
www.access.gpo.gov/fr/.
    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