Objects Affecting Navigable Airspace

SUMMARY: This supplemental notice proposes to amend the application of

the Federal Aviation Regulations (FAR) part 77 obstruction standards as

proposed in a previous Notice of Proposed Rulemaking (NPRM). NPRM 90-

18, published August 3, 1990 (subsequently corrected to Notice No. 90-

19), stated, in part, that FAA obstruction standards will be applied

with reference to an existing airport facility or use as well as a

planned facility or use, if a proposal for such a facility or use is on

file with the FAA or with the appropriate military service on the date

the Notice of proposed Construction or Alteration is filed. The NPRM

also stated, in part, that FAA obstruction standards apply to the

effect of proposed construction or alteration upon an airport if, at

the time of filing of the notice of construction or alteration, that

airport is a planned or proposed airport under construction that is the

subject of a notice or proposal on file with the FAA. During the fact

finding phase of an aeronautical study of a construction or alteration

proposal, the FAA may solicit comments from all interested persons.

Based on a U.S. Court of Appeals decision (Greater Orlando Aviation

Authority v. F.A.A., 939 F.2d 954 (11th Cir. 1991), hereinafter

``GOAA''), the FAA is proposing to amend the application of its

obstruction standards to include consideration of proposals that are

received before the end of the public comment period of the

aeronautical study.

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

ADDRESSES: Comments on this proposal may be mailed in triplicate to:

Federal Aviation Administration, Office of the Chief Counsel,

Attention: Rules Docket (AGC-200), Docket No. 26305, Notice No. 90-19A,

800 Independence Avenue, SW., Washington, DC 20591; or delivered in

triplicate to: Federal Aviation Administration, Rules Docket, Room 915-

G, 800 Independence Avenue, SW., Washington, DC. Comments delivered

must be marked Docket No. 26305 and Notice No. 90-19A. The official

docket may be examined in the Rules docket weekdays, except Federal

holidays, between 8:30 a.m. and 5:00 p.m.

FOR FURTHER INFORMATION CONTACT: Janet Apple, Air Traffic Rules and

Procedures Branch, Airspace-Rules and Aeronautical Information

Division, Federal Aviation Administration, 800 Independence Avenue,

SW., Washington, DC 20591; telephone (202) 267-8783.

SUPPLEMENTARY INFORMATION:

Comments Invited

Interested persons are invited to participate in the proposed

rulemaking by submitting such written data, views, or arguments as they

may desire. Comments that provide the factual basis supporting the

views and suggestions presented are particularly helpful in developing

reasoned regulatory decisions on the proposals. Comments relating to

the overall regulatory, aeronautical, environmental, energy-related,

federalism, or economic aspects of the proposals contained in this

SNPRM are also invited. Comments should identify the regulatory docket

number and notice number and be submitted in triplicate to the address

listed above. All comments received on or before the specified closing

date for comments will be considered by the administrator before taking

action on the proposed amendments. The proposals contained in this

SNPRM may be changed in light of comments received. All comments

received will be available for examination by interested persons in the

Rule Docket both before and after the closing date for comments. A

report summarizing each substantive public contact with FAA personnel

concerned with this rulemaking will be filed in the docket. Commenter

wishing the FAA to acknowledge receipt of their comments submitted in

response to this SNPRM must include a pre-addressed, stamped postcard

on which the following statement is made: ``Comments to Docket No.

26305.'' The postcard will be date stamped and mailed to the commenter.

Availability of NPRM's

Any person may obtain a copy of this SNPRM by submitting a request

to the Federal Aviation Administration, Office of Public Affairs,

Attention: Public Inquiry Center, APA-230, 800 Independence avenue,

SW., Washington, DC 20591, or by calling (202) 267-3485. Communications

must identify the notice number of this SNPRM.

Persons interested in being placed on a mailing list for future

NPRM's should request from the above office a copy of Advisory Circular

(AC) No. 11-2A, ``Notice of Proposed Rulemaking Distribution System,''

which describes the application procedure.

Background

The authority and requirements of FAR part 77 are derived, in part,

from 49 U.S.C. 44718. Section 44718 pertains to notice of construction

or alteration of any structure that may affect the use of navigable

airspace.

Section 44718 was amended by Public Law 100-223 (The Airport and

Airway Safety and Capacity Expansion Act of 1987). Public Law 100-223

provided for, in part, the consideration of electromagnetic

interference (EMI) effects on air navigation facilities and equipment

or navigable airspace, and the consideration of the cumulative impact

resulting from proposed construction or alteration. Public Law 100-223

emphasized the need to preserve navigable airspace and airport traffic

capacity at public use airports. In response to Public Law 100-223, the

FAA published a notice of proposed rulemaking (NPRM) in the Federal

Register on August 3, 1990, Notice No. 90-18, 55 FR 31722; corrected 55

FR 32999, August 13, 1990; 55FR 35152, August 28, 1990; and 55 FR

37287, September 10, 1990. The proposals contained in Notice No. 90-18,

corrected to an hereafter referred to as 90-19, were based primarily on

the amendments to section 44718 and recommended changes to part 77

developed by a joint government and industry task group.

The FAA received over 60 comments on the proposals presented in

Notice No. 90-19. This SNPRM does not reopen the proposals contained in

Notice No. 90-19 or request further comments on those proposals. The

comments to Notice No. 90-19 will not be discussed in this SNPRM but

will, along with comments to this SNPRM, be considered in any

subsequent final rulemaking action regarding part 77.

Currently, part 77 requires sponsors to submit notice to the FAA at

least 30 days before any proposed construction or alteration that

exceeds certain notice criteria. The FAA studies the construction or

alteration proposal to determine its aeronautical effect on the safe

and efficient use of navigable airspace. The study includes the

consideration of the proposal's aeronautical effect on any existing or

planned public-use or military airports,

[[Page 53681]]

air navigation facilities, procedures, or other proposals ``on file

with the FAA.'' A proposal submitted to the FAA for consideration is

referred to as a plan or notice ``on file with the FAA,'' or ``on file

with an appropriate military service'' if the plan or notice relates to

a military airport.

The United States Court of Appeals for the Eleventh Circuit issued

a decision that affects the longstanding FAA policy and practice

concerning the consideration given to plans on file with the FAA, or on

file with an appropriate military service. Currently, FAA obstruction

standards are applied with reference to an existing airport facility or

use as well as a planned facility or use, if a proposal for such a

facility or use is on file with the FAA or with the appropriate

military service on the date the Notice of Proposed Construction or

Alternation is filed. During the fact finding phase of an aeronautical

study, the FAA may solicit comments from all interested persons. Based

upon the GOAA decision, the FAA is proposing to amend the application

of its obstruction standards to include consideration of any proposal

received before the end of the public comment period of the

aeronautical study for the construction or alternation. Additionally,

this SNPRM addresses those concerns expressed by Guy Gannett Publishing

Co.'s Petition for Rulemaking to Docket No. 26305, Notice No. 90-18,

based on GOAA.

The Proposal

The FAA proposes to amend certain sections of part 77, as proposed

in Notice No. 90-19, by considering the effect that proposals received

before the end of the public comment period of an aeronautical study

for a construction or alteration proposal would have on the subject

proposed. The FAA is also proposing to amend the proposed FAR section

77.2, section 77.15 paragraphs (a)(5)(ii) and (a)(6)(ii), section 77.23

paragraphs (a) and (c)(2), section 77.35 paragraph (a)(2), and section

77.36 paragraph (b)(1), by deleting any references regarding ``notices

or proposals on file with the FAA'' (or appropriate military service).

These proposed changes are in response to GOAA, where the U.S. Court of

Appeals for the Eleventh Circuit held that the FAA must consider any

proposal it receives before the end of the public comment period of an

aeronautical study of a construction or alteration proposal.

Paperwork Reduction Act

Information collection requirements for part 77 have previously

been approved by the Office of Management and Budget (OMB) under the

provisions of the Paperwork Reduction Act of 1980 (Pub. L. 96-511) and

have been assigned OMB Control Number 2120-0001. The FAA has determined

that the proposals contained in this notice, if adopted, would not

significantly affect the information collection reporting requirements

of part 77.

Regulatory Evaluation Summary

Executive Order 12866 established the requirement that, within the

extent permitted by law, a Federal regulatory action may be undertaken

only if the potential benefits to society for the regulation outweigh

the potential costs to society. In response to this requirement, and in

accordance with Department of Transportation policies and procedures,

the FAA has estimated the anticipated benefits and costs of this

rulemaking action. The results are summarized in this section. For more

detailed economic information, see the full regulatory evaluation

contained in the docket.

This evaluation examines the costs and benefits of a Supplemental

Notice of Proposed Rulemaking (SNPRM) to amend FAR part 77--Objects

Affecting Navigable Airspace. Part 77 of the FAR, adopted on December

12, 1962, establishes standards for determining obstructions in

navigable airspace; sets forth the requirements for notice to the

Administrator of certain proposed construction or alteration; and

provides for aeronautical studies of obstructions to air navigation to

determine their effect on the safe and efficient use of airspace.

This proposed rule would amend the application of part 77

obstruction standards to include consideration of any proposal that is

received before the end of the public comment period for an

aeronautical study of a proposed construction or alteration. Presently,

part 77 obstruction standards apply to existing or planned public-use

or military airports, alterations of public-use or military airports,

aeronautical facilities, procedures, and other proposals on file with

the FAA (or with the appropriate military service if the proposal

relates to a military airport) on or before the date the FAA receives

notice of a construction or alteration proposal that is the subject of

an aeronautical study. Therefore, the proposed rule has the potential

for increasing the scope and complexity of certain aeronautical studies

conducted by the agency. However, the proposed rule would not result in

any changes to FAA notice criteria. Consequently, the total number of

notices received by the FAA, pursuant to notice criteria under this

part, would not be affected by this proposed rule.

In the Regulatory Evaluation Summary contained in the preamble of

Notice No. 90-19, and the Draft Regulatory Evaluation, Initial

Regulatory Flexibility Analysis, and Trade Impact Assessment (a copy of

which is available for review under Docket No. 26305), the FAA

determined that the costs associated with the requirements of part 77

are comprised of: (1) the cost to proponents associated with submitting

notice to the FAA on Form 7460-1, Notice of Proposed Construction or

Alteration; and (2) FAA administrative costs associated with evaluating

notices of proposed construction and alteration.

This proposed rule would not impose additional costs on proponents

for submitting notice on Form 7460-1 because part 77 notice criteria

would be unaffected by this proposed rule. In addition, the available

staff resources appear to be sufficient to handle any increase in the

scope and complexity of some studies. The potential increase in

workload would be regarded as routine. Therefore, the FAA has

determined that the costs that can be directly attributed to this

proposed rule would be negligible.

The primary benefit which results from this proposed rule would be

the consideration given to other proposals received during the comment

period of an aeronautical study of proposed construction or alteration.

This should enhance the safe and efficient utilization of the navigable

airspace.

Although the FAA is unable to quantify the benefits and costs of

this proposal, the potential benefits to society are expected to

outweigh the costs.

International Trade Impact Statement

This proposal would not impose a competitive disadvantage to either

U.S. air carriers doing business abroad or foreign air carriers doing

business in the United States because it would have no impact on either

U.S. or foreign air carriers. This proposal would have no effect on the

sale of foreign aviation products or services in the United States, nor

would it affect the sale of United States aviation products or services

in foreign countries.

Federalism Implications

The regulations proposed herein would not have substantial direct

effects on the states, on the relationship between the National

Government and the states, or on the distribution of power and

responsibilities among the

[[Page 53682]]

various levels of government. Therefore, in accordance with Executive

Order 12612, it is determined that this proposal would not have

sufficient federalism implications to warrant the preparation of a

Federalism Assessment.

International Civil Aviation Organization and Joint Aviation

Regulations

In keeping with the U.S. obligations under the Convention on

International Civil Aviation, it is FAA policy to comply with ICAO

Standards and Practices (SARP) to the maximum extent practicable. For

this notice, the FAA has determined that this proposal, if adopted,

would not present any differences.

Conclusion

For the reasons discussed above, the FAA has determined that this

proposed regulation is not a ``significant regulatory action'' under

Executive Order 12866 and is not considered ``significant'' under DOT

Regulatory Policies and Procedures (44 FR 11034; February 26, 1979). In

addition, the FAA certifies that this proposal, if adopted, will not

have a significant economic impact, positive or negative, on a

substantial number of small entities under the criteria of the

Regulatory Flexibility Act. An initial regulatory evaluation of the

proposal, including a Regulatory Flexibility Determination, has been

placed in the docket. A copy may be obtained from the individual listed

under FOR FURTHER INFORMATION CONTACT.

List of Subjects in 14 CFR Part 77

Administrative practice and procedure, Airports, Airspace, Aviation

safety, Federal Aviation Administration, Navigation (air), Reporting

and recordkeeping requirements.

The Proposed Amendment

Accordingly, pursuant to the authority delegated to me, the FAA

proposes to amend part 77 of the Federal Aviation Regulations (14 CFR

part 77) as proposed to be revised in the Federal Register of August 3,

1990 (55 FR 31722) as follows:

PART 77--OBJECTS AFFECTING NAVIGABLE AIRSPACE

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

follows:

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

44718, 46101, 46102, 46104.

2. Proposed Sec. 77.2 is amended by removing the definition of

``Planned or proposed airport for which notice is on file'' and adding

a new definition in alphabetical order to read as follows:

Sec. 77.2 Definition of terms.

* * * * *

Planned or proposed aiport means an airport that is the subject of

any of the following documents received by the FAA--

(1) Airport proposals submitted pursuant to the provisions of part

157 of this chapter;

(2) Airport Improvement Program requests for aid;

(3) Notices of existing airports where prior notice of the airport

construction or alteration was not provided as required by part 157 of

this chapter;

(4) Airport layout plans, including consideration of the effect of

structures which may restrict control tower line-of-sight capability

and effects upon electronic and visual aids to air navigation;

(5) Military proposals for military airports used only by the armed

forces;

(6) Military proposals on joint-use (civil-military) airports;

(7) Proposed designation of precision instrument landing runways;

and

(8) Completed airports site selection feasibility studies and

recommendations.

* * * * *

3. Proposed Sec. 77.15 is amended by revising paragraphs (a)(5)(ii)

introductory text and (a)(6)(ii) to read as follows:

Sec. 77.15 Construction or alteration requiring notice.

* * * * *

(a) * * *

(5) * * *

(ii) An airport under construction, and--

* * * * *

(6) * * *

(ii) When available information indicates the construction or

alteration might exceed a standard of subpart C of this part for an

airport available for public use; or

* * * * *

4. Proposed Sec. 77.23 is amended by revising paragraph (a), the

introductory text of paragraph (c), and paragraph (c)(2) to read as

follows:

Sec. 77.23 Scope.

(a) This subpart establishes standards for determining obstructions

to air navigation relative to the safe and efficient utilization of

navigable airspace by aircraft along with the operation of planned or

existing air navigation facilities to include air navigation aids,

airports, Federal Airways, instrument approach or departure procedures,

and approved off-airway routes. Objects that are identified as

obstructions under the standards described in this subpart are presumed

to be hazards to air navigation unless an aeronautical study, made in

accordance with Subpart D of this part, determines otherwise. Once an

aeronautical study has been initiated, the standards listed in appendix

A of this part, in addition to those listed in this subpart, shall be

used to determine if the object being studied would constitute a hazard

to air navigation. The standards in this subpart apply to existing and

proposed manmade objects as well as to objects of natural growth and

terrain. These standards will be applied with reference to an existing

airport facility or use, and proposals received by the FAA, or the

appropriate military service, before the end of the public comment

period of an aeronautical study of a construction or alteration

proposal.

* * * * *

(c) The standards in this subpart apply to the effect of a

construction or alteration proposal upon an airport (including

heliports, vertiports, and seaplane bases) if, before the end of the

public comment period of an aeronautical study of that proposed

construction or alteration, that airport is:

* * * * *

(2) A planned or proposed airport or an airport under construction,

of which the FAA has received actual notice, and with the exception of

military airports, where there is a clear indication the airport will

be available for public use; or

* * * * *

5. Proposed Sec. 77.35 is amended by revising paragraph (a)(2) to

read as follows:

Sec. 77.35 Evaluating aeronautical effect.

(a) * * *

(2) In reference to the airport capacity of existing public-use

airports and public-use airport development plans received before the

end of the public comment period of an aeronautical study of a

construction or alteration proposal;

* * * * *

6. Proposed Sec. 77.36 is amended by revising paragraph (b)(1) to

read as follows:

Sec. 77.36 Determinations.

* * * * *

(b) * * *

(1) Identify the effects of the proposed structure on VFR/IFR

aeronautical departure/arrival operations, procedures, minimum flight

altitudes,

[[Page 53683]]

and existing or proposed public-use airports, of which the FAA has

received actual notice of, before the end of the public comment period

on an aeronautical study of that proposed construction or alteration,

and the extent of the physical and/or EMI effect on the operation of

existing or proposed air navigation facilities or communication aids,

including an explanation of whether the effect is substantial. The

cumulative adverse effects that would result from the proposed

construction or alteration will be considered in determining whether a

substantial adverse effect is created. A finding of substantial adverse

effect will result in the issuance of a determination of hazard to air

navigation;

* * * * *

Issued in Washington, D.C. on October 6, 1995.

Harold W. Becker,

Acting Program Director, Air Traffic Rules and Procedures.

[FR Doc. 95-25404 Filed 10-13-95; 8:45 am]

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