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[Federal Register: July 21, 2010 (Volume 75, Number 139)]
[Rules and Regulations]               
[Page 42296-42308]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr21jy10-3]                         

[[Page 42296]]

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 77

[Docket No. FAA-2006-25002; Amendment No. 77-13]
RIN 2120-AH31

 
Safe, Efficient Use and Preservation of the Navigable Airspace

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Final rule.

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SUMMARY: This action amends the regulations governing objects that may 
affect the navigable airspace. These rules have not been revised in 
several decades, and the FAA has determined it is necessary to update 
the regulations, incorporate case law and legislative action, and 
simplify the rule language. These changes will improve safety and 
promote the efficient use of the National Airspace System.

DATES: This amendment becomes effective January 18, 2011.

FOR FURTHER INFORMATION CONTACT: For technical questions about this 
final rule contact Ellen Crum, Air Traffic Systems Operations, Airspace 
and Rules Group, AJR-33, Federal Aviation Administration, 800 
Independence Ave., SW., Washington, DC 20591; telephone (202) 267-8783, 
facsimile (202) 267-9328. For legal questions about this final rule 
contact Lorelei Peter, Office of the Chief Counsel-Regulations 
Division, Federal Aviation Administration, 800 Independence Ave., SW., 
Washington, DC 20591; telephone (202) 267-3134, facsimile 202-267-7971.

SUPPLEMENTARY INFORMATION:

Authority for This Rulemaking

    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, navigation, protection, and 
identification of aircraft for the protection of persons 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). The Administrator is 
authorized to protect civil aircraft in air commerce (49 U.S.C. 
44070(a)(5)).
    Under Sec.  44701(a)(5), the Administrator promotes safe flight of 
civil aircraft in air commerce by prescribing regulations and minimum 
standards for other practices, methods, and procedures necessary for 
safety in air commerce and national security. Also, Sec.  44718 
provides that under regulations issued by the Administrator, notice to 
the agency 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.

I. Background

A. Summary of the Notice of Proposed Rulemaking (NPRM)

    On June 13, 2006, the FAA published an NPRM that proposed to amend 
the regulations governing objects that may affect the navigable 
airspace (71 FR 34028). The FAA proposed to: Establish notification 
requirements and obstruction standards for transmitting on certain 
frequencies; revise obstruction standards for civil airport imaginary 
surfaces to more closely align these standards with FAA airport design 
and instrument approach procedure (IAP) criteria; revise current 
definitions and include new definitions; require proponents to file 
with the FAA a notice of proposed construction or alteration for 
structures near private use airports that have an FAA-approved IAP; and 
increase the number of days in which a notice must be filed with the 
FAA before beginning construction or alteration. The comment period 
closed on September 11, 2006.

B. Summary of the Final Rule

    The following is a discussion of the major changes contained in the 
final rule. The provisions of the final rule that were modified based 
on comments the FAA received are discussed in the ``Discussion of the 
Final Rule'' section. Most of the amendments implemented by the rule 
are intended to simplify the existing regulations.
    This rule adds Sec.  77.29 to incorporate the specific factors 
listed in P.L. 100-223 for consideration during an aeronautical study. 
The specific factors are listed in Appendix A to this preamble. 
Including this language in part 77 does not add or remove any of the 
factors currently considered in an aeronautical study.
    This rule provides for an FAA Determination of Hazard or 
Determination of No Hazard to become effective 40 days after the date 
of issuance, unless a petition for discretionary review is received by 
the FAA within 30 days of issuance. In addition, the rule stipulates 
that a Determination of No Hazard to air navigation will expire 18 
months after the effective date of the determination, or on the date 
the proposed construction or alteration is abandoned. Also, the rule 
specifies that a Determination of Hazard to Air Navigation does not 
expire.
    This final rule adds information about the processing of petitions 
for discretionary review. It also excludes determinations for temporary 
structures and recommendations for marking and lighting from the 
discretionary review process. Because of the nature of temporary 
structures, it is not possible to apply the lengthy discretionary 
review process to these structures. Also, since marking and lighting 
recommendations are simply recommendations, there is a separate process 
for a waiver of, or deviation from, the recommendations.
    This rule expands the requirements for notice to be sent to the FAA 
for proposed construction or alteration of structures on or near 
private use airports that have an IAP. Accordingly, if a private use 
airport has an FAA-approved IAP, then a construction sponsor must 
notify the FAA of a proposed construction or alteration that exceeds 
the notice criteria in Sec.  77.17. This action will give the FAA 
enough time to adjust the IAP, if needed, and to inform those who use 
the IAP.
    Also, IAPs at private use airports or heliports are not currently 
listed in any aeronautical publication. Sponsors of construction or 
alteration at or near a private use airport or heliport should consult 
the FAA Web site to determine whether an FAA-approved IAP is listed for 
that airport.\1\ If the airport is listed on the Web site, the sponsor 
must file notice with the FAA.
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    \1\ https://oeaaa.faa.gov.
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    Lastly, this rule incorporates minor edits to the regulatory text 
to distinguish

[[Page 42297]]

FAA surveillance systems from communication facilities.

C. Summary of Comments

    The FAA received approximately 115 comments from individuals, 
aviation associations, industry spectrum users, airlines, and other 
aviation businesses. Many commenters, including the Air Transport 
Association, generally supported the NPRM. Commenters supported 
specific proposals concerning evaluating the aeronautical impact of 
proposed construction on IAPs at private use airports; evaluating 
antenna installations that might affect air traffic or navigation; and 
the update and reformat of the regulations. Comments that did not 
support the proposed rule, and suggested changes, are discussed more 
fully in the ``Discussion of the Final Rule'' section.
    The FAA received substantive comments on the following general 
areas of the proposal:
 Frequency notification requirements
 Time requirement to file notice with the FAA
 Civil Airport Imaginary Surfaces \2\
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    \2\ Civil airport imaginary surfaces are established surfaces 
based on the runway that are used to identify objects that may 
impact airport plans or aircraft departure/arrival procedures or 
routes. Section 77.19 describes five types of imaginary surfaces: 
horizontal, conical, primary, approach and transitional.
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 One Engine Inoperative Procedures (OEI)
 Definitions
 Miscellaneous

II. Discussion of the Final Rule

A. Frequency Notification

    The FAA's primary focus during the obstruction evaluation process 
is safety and efficiency of the navigable airspace. It is critical for 
the agency to be notified of pending construction of physical objects 
that may affect the safety of aeronautical operations. (See 49 U.S.C. 
44718.) In today's National Airspace System (NAS), however, 
electromagnetic transmissions can adversely affect on-board flight 
avionics, navigation, communication, and surveillance facilities. The 
FAA has extensive authority to prescribe regulations and minimum 
standards necessary for safety in air commerce. (See 49 U.S.C. Sec.  
44701(a)(5).) In addition, the FAA has broad authority to develop 
policy and plans for the use of the navigable airspace. (See 49 U.S.C. 
40103.) The FAA relied on these authorities in proposing the notice 
requirements for broadcast transmissions in the specified bands. As 
stated in the proposal, broadcast transmission on certain frequencies 
can pose serious safety threats to avionics and ground based 
facilities. At the same time, the FAA recognizes the authority of the 
National Telecommunications and Information Administration (NTIA) and 
the Federal Communications Commission (FCC) to manage use of the radio 
spectrum.
    The FAA concludes that its proposal to require notice for the 
proposed frequency bands was too broad. The proposed frequencies from 
the NPRM are listed in Appendix B to this preamble. The proposed 
frequencies in the shared (Federal and Non-Federal) bands are managed 
by an existing process involving several Federal agencies with an 
interest in spectrum use, which NTIA oversees under the Department of 
Commerce. It is not the FAA's intent to add a duplicative review and 
coordination process to that already stated above. In addition, the FAA 
has determined that some of the proposed frequencies originally listed 
and not in shared bands do not present concern. Therefore, the agency 
withdraws the proposed notice and obstruction standards on the shared 
frequency bands and those frequency bands that, historically, have not 
posed electromagnetic concerns,\3\ when operating under typical 
specifications.
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    \3\ 54-88 MHz; 150-216 MHz; 406-430 MHz; 931-940 MHz; 952-960 
MHz; 1390-1400 MHz; 2500-2700 MHz; 3700-4200 MHz; 5000-5650 MHz; 
5925-6225 MHz; 7450-8550 MHz; 14.2-14.4 GHz.
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    FM broadcast service transmissions operating in the 88.0-107.9 MHz 
frequency band pose the greatest concern to FAA navigation signals. The 
FAA, FCC and NTIA are collaborating on the best way to address this 
issue. A resolution of this issue is expected soon. Therefore, the 
proposals on FM broadcast service transmissions in the 88.0-107.9 MHz 
frequency band remain pending. The FAA will address the comments filed 
in this docket about the proposed frequency notice requirements and 
proposed EMI obstruction standards when a formal and collaborative 
decision is announced.
    This rule does include evaluating electromagnetic effect 
(Sec. Sec.  77.29 and 77.31), and it codifies the agency's current 
practices of studying the effects on aircraft navigation and 
communication facilities. These amendments in no way should be 
construed to affect the authority of NTIA and the FCC.

B. Time Requirement To File Notice With the FAA

    Automation improvements to the FAA's obstruction evaluation program 
allow the public to file notices of proposed construction 
electronically, which facilitates the aeronautical study process and 
has reduced the overall processing time for these cases. The FAA 
proposed to require that notices of proposed construction or 
alterations must be filed with the FAA at least 60 days before 
construction starts or the application filing date for a construction 
permit, whichever is earliest. The current rule requires 30 days, which 
the FAA found inadequate for cases to be processed, particularly if 
additional information, via public comment period, was necessary to 
complete the study. At the time the FAA published the NPRM, the 
automation system was in the early stages, and the full benefits of the 
automation were not yet known. Commenters were split on their support 
of this proposal, depending on their interests. Comments from the 
aviation industry largely supported the extended time period. Comments 
filed by the building industry, however, opposed the extended time 
period, saying it was too long and would cause undue delay.
    The FAA has seen great success with the automation system and 
concludes that requiring notice to be filed 60 days before construction 
or the permit application is not necessary. There are cases where 
circulating the proposal for public comment may be necessary and, 
consequently, these cases may require up to 45 days for processing. 
Therefore, the FAA adopts the requirement that notice must be filed 
with the FAA for proposed construction or alteration at least 45 days 
before either the date that construction begins, or the date of the 
construction permit application, whichever is earliest.
    Because applications are required within 45 days of construction, 
the FAA, Department of Defense, and Department of Homeland Security 
should work together to conduct timely reviews. To that end, the FAA 
will respond to inquiries from applicants regarding the status of 
applications, the reason(s) for any delay, and the projected date of 
completion. As appropriate, the FAA will engage with other Federal 
Agencies such as the Department of Defense, the Department of Homeland 
Security, the Department of Energy, and the Department of Interior to 
expedite any further regulatory modifications and improvements to 14 
CFR Part 77 to ensure there is a predictable, consistent, transparent, 
and timely application process for the wind industry.
    Several commenters recommended separate notice requirements for 
reviewing a temporary structure that might be necessary under 
emergency-type circumstances. An example

[[Page 42298]]

submitted in the comments was a construction crane that was necessary 
to replace air conditioning units on the roof of factories. The 
commenters contend that it is neither logical nor feasible to shut down 
a factory for 30 days while the FAA studies this temporary structure.
    Situations like the one presented by these commenters are not 
uncommon. Regardless of whether the structure is temporary, it remains 
critical for the FAA to have notice of tall structures that can affect 
aeronautical operations. In most cases, the proponent of the structure 
contacts the FAA Obstruction Evaluation (OE) specialist and identifies 
the need for a quick review, for which the agency readily responds. 
While the FAA regrets any past delay in taking quick action on a 
particular case, the agency declines to set-up special procedures to 
address such cases. On the FAA's OE Web site,\4\ the agency lists the 
contact information for the FAA specialist. If a sponsor is concerned 
with the time frame for the FAA's review, the agency encourages the 
sponsor to contact the FAA specialist directly.
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    \4\ https://oeaaa.faa.gov.
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C. Civil Airport Imaginary Surfaces

    The NPRM proposed, for a visual runway used by small aircraft or 
restricted to day-only instrument operations, that the width of the 
imaginary approach surface expand uniformly to 1,250 ft. If the runway 
is a visual runway, used by other than small aircraft or for instrument 
night circling, the surface width expands uniformly from 1,500 ft. to 
3,500 ft. If the runway is a non-precision instrument or precision 
instrument runway, the surface width expands uniformly to 4,000 ft. and 
16,000 ft., respectively. Other changes include removing approach 
surface widths of 1,500 ft. and 2,000 ft., and increasing the width for 
some non-precision runways from 2,000 ft. to 4,000 ft. The NPRM also 
proposed expanding the width of the primary approach surface of a non-
precision instrument runway or precision instrument runway from 500 
feet to 1,000 ft.
    Many commenters opposed the proposed expansion of the primary 
surface. They argued that the proposed expansion would require airport 
operators to remove existing structures that would fall within the 
proposed expanded surface, which would result in a financial burden to 
airport owners and managers. Southwest Airlines, on the other hand, 
supported the proposal and stated the ability to study and review more 
proposed structures is positive for airport safety.
    Several comments stated that the imaginary surfaces in part 77 do 
not comport clearly with the surfaces used for obstacle clearance under 
the United States Standard for Terminal Instrument Procedures (TERPS) 
and, therefore, makes the part 77 surfaces useless as a project 
planning tool for airport development.
    Similarly, another commenter argued that the Required Navigation 
Performance (RNP) lateral protection area is greater than the width of 
the primary surface and the RNP procedures TERPS surface is outside the 
part 77 imaginary surface. The commenter contends that an obstacle can 
adversely impact an RNP procedure, but not be characterized as an 
obstruction. This commenter recommends that the imaginary surfaces be 
expanded to include RNP procedures.
    Several commenters specifically questioned whether current 
obstructions that fall within the newly expanded primary surface could 
impact an instrument procedure and result in the airport losing the 
instrument procedure. One airport authority was concerned about marking 
and lighting recommendations for existing structures that will now fall 
under the expanded primary surface.
    The FAA proposed these changes to more closely align regulatory 
provisions in part 77 with TERPS criteria and airport design standards. 
The inconsistency between IAP criteria, airport design standards, and 
part 77 surfaces has been a source of confusion for both airport 
managers and the FAA. These specific proposals would not have altered 
the notice criteria. Instead, the proposals were meant to identify more 
proposed structures as obstructions that the FAA could study to 
determine if they would adversely affect the NAS.
    However, since publication of the NPRM, the FAA has begun a 
coordinated effort to consolidate all agency requirements for the 
treatment of obstacles in the airport environment. Once completed, the 
new requirements will form the basis for revised civil airport 
imaginary surfaces. Thus, it would not be prudent to codify the 
proposals. Further, amending or expanding any of the civil airport 
imaginary surfaces at this time would not be in the best interest of 
the public. The FAA, therefore, withdraws all proposed modifications to 
the civil airport imaginary surfaces, including the chart format. The 
FAA will keep the civil airport imaginary surfaces rule as it is 
currently described in 14 CFR 77.25.

D. One Engine Inoperative Procedures

    The NPRM specifically states that OEI procedures were not a part of 
the rulemaking. The NPRM further notes that the FAA has tasked the 
Airport Obstruction Standards Committee (AOSC) with examining this 
issue. Comments from the Air Transport Association, individual 
airlines, local airport authorities, and aviation organizations, asked 
the FAA to address OEI procedures. These comments have been forwarded 
to the AOSC for consideration. As appropriate, the FAA will advise the 
aviation industry and other interested persons, through the AOSC, of 
any policy changes.

E. Definitions

    The NPRM proposed replacing the term ``utility runway'' with the 
phrase ``runway used by small aircraft''. In addition, the NPRM 
proposed amending the definitions for precision, non-precision, and 
visual runways, as these definitions were no longer up-to-date with 
industry practices. The term ``utility runway'' is not widely used in 
industry so the NPRM proposed replacing the term. In addition, the NPRM 
proposed amending the definitions for precision and non-precision 
runways to address approaches that use other than ground based 
navigational aids, such as flight management systems (FMS) and global 
navigation satellite systems (GNSS). Because of technological advances, 
the former definitions for precision and non-precision runways are no 
longer accurate.
    By removing the term ``utility runway'', commenters stated the 
portions of the rule that include the term became confusing. They note 
that the runway classifications and corresponding widths for the 
primary and approach surfaces in the tables in Sec.  77.19(d)(e) are 
difficult to understand.
    Several commenters confused the proposed definitions for precision 
and non-precision instrument runways with the definitions for precision 
and non-precision instrument approach procedures.\5\ One commenter 
suggested the non-precision runway definition should exclude a runway 
that has a developed instrument approach procedure with visibility 
minimums of

[[Page 42299]]

one statute mile. This commenter contends that many small, general 
aviation airports have published procedures with one mile visibility 
under the current obstruction criteria of a utility runway. The 
commenter also notes that if the FAA adopts the proposal to limit non-
precision runways to procedures with visibility minimums of one statute 
mile, then these small airports would need to have the more demanding 
primary surfaces and approach criteria. The commenter further says this 
could result in financial hardship for these airports and the airports 
may need to double the designated airspace around the runway. Another 
commenter stated that the new definition for a non-precision runway 
conflicts with FAA Advisory Circular 150/5300-13, Airport Design.
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    \5\ The FAA proposed definitions for the terms ``precision 
instrument runway'' and ``non-precision instrument runway'' to be 
based on the use of visibility minimums, rather than approach 
procedure classification, given that visibility is the critical 
factor during the visual portion of the approach.
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    Commenters also indicated that the new definition and associated 
surfaces would take runways that currently qualify as utility into the 
non-precision category. They say these modifications could result in 
unfunded economic burdens on outlying airports with IAPs to utility 
runways that experience lower traffic densities. Additionally, 
commenters noted that many of these airports are configured with 
minimal infrastructure and could face significant airport expansion to 
obtain IAP services if the runway is categorized as non-precison.
    Several commenters also stated that the proposed definitions of 
precision and non-precision runways try to redefine the current 
precision and non-precision instrument procedures because satellite 
technology could, in the future, enable non-precision approaches to 
become precision approaches.
    Although the FAA proposed to revise these definitions, on further 
review, the agency has determined it should not revise them at this 
time. The definitions were proposed to support implementing satellite-
based navigation. However, as the satellite-based navigation program 
has evolved during development of this rulemaking, the agency has 
learned of unintended consequences of the proposed definitions. For 
example, changing the runway definition creates infrastructure 
requirements that may be needed as the technology evolves. The FAA 
believes a more measured approach is needed before making any changes 
to the definitions. Thus, the agency will not adopt the proposed 
revisions to the definitions in this final rule.

F. Extension to a Determination of No Hazard

    The NPRM proposed a provision for which an extension to the 
expiration date for a Determination of No Hazard may be granted. 
Specifically, it proposed that for structures not subject to FCC 
review, a Determination of No Hazard can be extended for a maximum of 
18 months, if necessary. If more than 18 months is necessary, then a 
new aeronautical study would be initiated. For structures that require 
an FCC construction permit, the NPRM proposed that a Determination of 
No Hazard can be extended for up to 12 months, provided the sponsor 
submits evidence that an application for a construction permit was 
filed within 6 months of the date of issuance. The NPRM also proposed 
that if the FCC extends the original FCC construction completion date, 
the sponsor must request an extension of the FAA's Determination of No 
Hazard.
    Many commenters found that the two time periods (18 and 12 months) 
were confusing. The FAA's review of this matter concluded that it is 
not necessary to continue the distinction between structures subject to 
FCC review from structures that do not need this review, simply to 
extend the expiration date. Therefore, for simplification and 
standardization, the FAA amends the time period for extensions to 
determinations of structures to 18 months, regardless of whether an FCC 
construction permit is necessary.
    In addition, the FAA unintentionally omitted a section of the 
current rule from the NPRM. That section states that if the FCC denies 
a construction permit, the final determination expires on the date of 
the denial. The FAA has reinserted that section in this final rule.

G. Effective Date

    The effective date of this final rule is 180 days from the date the 
rule is published in the Federal Register. The FAA needs this time to 
amend the automation system it uses to evaluate obstructions, amend 
relevant FAA orders, train employees, and educate the public.

H. Miscellaneous

    One commenter said the requirement to file notice should extend to 
structures that would penetrate an imaginary surface relative to a 
planned or proposed airport. Specifically, this commenter seeks to 
incorporate the imaginary surfaces for evaluating obstructions under 
Sec.  77.19(a) in the notice requirements for structures that are on or 
around a planned airport.
    Section 77.9 requires notice for construction on an existing 
airport or an airport under construction. This section specifies an 
imaginary surface extending from the runway (in increments of 20,000 
feet, 10,000 ft., or 5,000 ft., depending on the length of the 
airport's runway or heliport) at a specific slope for which notice is 
required if it would penetrate one of the surfaces for either an 
existing airport or an airport under construction. The above referenced 
surfaces, for which the longest surface would extend approximately 3.78 
miles from the end of the runway, do not apply to a planned airport for 
which construction has yet to begin.
    The effect of this commenter's request would be to require notice 
for up to approximately 3.5 miles (for the longest runway) for any 
construction that penetrates the 100 to 1 surface for a planned or 
proposed airport.
    This comment is outside the scope of the NPRM. The essence of this 
comment would be a new notice requirement for planned or proposed 
airports. To accommodate this comment without providing the public an 
opportunity to comment on its impact would violate the Administrative 
Procedure Act.
    Notwithstanding the above scope issue, to apply the imaginary 
surface from the notice requirements to planned or proposed airports 
would be difficult to implement. A planned or proposed airport can be 
at varying stages of development, with runway(s) location and 
configuration undetermined, navigational aids not sited, and instrument 
approach and departure procedures yet to be developed. It would be 
impossible for the FAA to study (and apply the obstruction standards) 
with any degree of certainty, to a proposed structure when the above 
listed airport issues are not defined. In addition, airport development 
can be subject to environmental laws and lengthy processes with 
alternative plans that must be analyzed. The FAA cannot ``reserve'' 
airspace on such speculative plans. The agency does study the impact of 
structures that are identified as obstructions on planned or proposed 
airports that are on file with the FAA. As the details of a planned 
airport become part of the ``plan on file'' with the FAA or the Airport 
Layout Plan, on which the FAA can rely, the FAA includes those details 
during the study.
    Several commenters questioned the proposed removal of the 
regulatory provisions addressing antenna farms and whether any antenna 
farms currently exist. The FAA has not established any antenna farm 
area. Moreover, the regulations governing structures addresses the FAA 
needs

[[Page 42300]]

here. Thus, this rule removes the provisions governing antenna farms.
    One commenter questioned why an object that is shielded by another 
structure is not subject to the notice requirements. This commenter 
contends that if the structure that shields an unreported structure is 
dismantled, there is no record of the first structure, nor is there any 
requirement to notify the FAA of this structure if the shielding 
structure is dismantled.
    Section 77.15(a) provides that notice is not required for a 
structure if the shielding structure is of a substantial and permanent 
nature and is located in a congested area of a city, town, or 
settlement where the shielded structure will not adversely affect 
safety in air navigation. This exception does not apply in areas where 
there are only one or two other structures. The FAA has not experienced 
a situation like the one described by the commenter that can be 
attributed to this exception. This rule does expand the current 
supplemental notice requirements in Sec.  77.11, and specifies that if 
a construction or alteration is abandoned, dismantled, or destroyed, 
notice must be provided to the FAA within 5 days after the construction 
is abandoned, dismantled, or destroyed. In the rare case where a 
shielding structure is abandoned, dismantled, or destroyed, the 
proponent must notify the FAA so that appropriate actions concerning 
adjacent structures can be initiated.
    Prior to this rule, part 77 provided that a proposed or existing 
structure was an obstruction to air navigation if it was higher than 
500 ft. above ground level (AGL). The minimum altitude to operate an 
aircraft over non-congested areas is 500 feet above the surface.\6\ 
Consequently, an aircraft could be operating at 500 ft. AGL and 
encounter a structure that was 500 ft. AGL that might not have been 
studied by the FAA during the obstacle evaluation process. The FAA 
adopts the proposal that lowers the height of a structure identified as 
an obstruction from above 500 ft. to above 499 ft. Accordingly, all 
structures that are above 499 ft. tall will be obstructions, and the 
FAA will study them to determine their effect on the navigable 
airspace. This will ensure that all usable airspace at and above 500 
ft. AGL is addressed during the aeronautical study and that this 
airspace is protected from obstructions that may create a hazard to air 
navigation.
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    \6\ 14 CFR Section 91.119(c) provides that ``Except when 
necessary for takeoff and landing, no person may operate an aircraft 
below the following altitudes: (b) Over other than congested areas. 
An altitude of 500 feet above the surface except over open water or 
sparely populated areas. In those cases, the aircraft may not be 
operated closer than 500 feet to any person, vessel, vehicle, or 
structure.''
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III. Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires 
that the FAA consider the impact of paperwork and other information 
collection burdens imposed on the public. 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 Office of Management and Budget (OMB) control number. 
As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)), 
the FAA submitted a copy of the new information collection 
requirements(s) discussed below to OMB for its review. Notice of OMB 
approval for this information collection will be published in a future 
Federal Register document.
    Title 49 U.S.C. 44718 states, ``By regulation or by order when 
necessary, the Secretary of Transportation shall require a person to 
give adequate public notice, in the form and way the Secretary 
prescribes, of the construction, alteration, establishment, or 
expansion, of a structure or sanitary landfill when public 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.''

    This final rule implements the requirement for notification by 
requiring that notice be submitted to the FAA for proposed construction 
or alteration of structures on or near private use airports that have 
an IAP. Accordingly, if a private use airport has an FAA-approved IAP, 
then a construction sponsor is required to notify the FAA of a proposed 
construction or alteration that exceeds the notice criteria in Sec.  
77.17. This action will give the FAA adequate time to adjust the IAP, 
if needed, and to inform those who use the IAP. While IAPs at private 
use airports or heliports are not currently listed in any aeronautical 
publication, sponsors of construction or alteration at or near a 
private use airport or heliport can consult the FAA Web site\7\ to 
determine whether an FAA-approved IAP is listed for that airport. If 
the airport is listed on the Web site, the sponsor must file notice 
with the FAA. The intent of these changes is to improve safety and 
promote the efficient use of the National Airspace System.
---------------------------------------------------------------------------

    \7\ https://oeaaa.faa.gov.
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    The FAA estimates that on average, 3,325 Form 7460-1s would be 
filed annually. It is estimated to take 19 minutes, or 0.32 hours, to 
fill out each form. Hence, the estimated hour burden is: 0.32 hours x 
3,325 = 1,064 hours.
    The average cost for a firm to prepare the form itself is 
approximately $40 per form. It is estimated that 20 percent of the 
forms filed would be filed this way. Thus, the estimated average annual 
reporting burden for companies to process this form in-house would be: 
(FAA Form 7460-1) $40 x 665 = $26,600.
    The average cost for a company to outsource this function to a 
contractor is approximately $480 per report. It is estimated that 80 
percent of the forms filed would be filed this way. Thus, the estimated 
average annual reporting burden for companies to outsource this 
function is: (FAA Form 7460-1) $480 x 2,660 = $1,276,800.
    It is estimated that roughly 30 percent of firms filing FAA Form 
7460-1 will need to perform a site survey to complete the form. The 
cost of a site survey is $790. Thus, the estimated annual reporting 
burden for companies who require a site survey would be: (FAA Form 
7460-1) $790 x 998 = $788,420.
    Hence, the total annual cost to firms that fill out FAA Form 7460-1 
is $2,091,820.
    In the proposed rule, the FAA asked for comments on the information 
collection burden. You may view the FAA's specific request in the 
proposed rule.\8\ The FAA received comments from multiple commenters. 
The following is a summary of the comments with the FAA's response:
---------------------------------------------------------------------------

    \8\ 71 FR 34028; June 13, 2006.
---------------------------------------------------------------------------

    Several commenters stated that the FAA underestimated the costs, in 
terms of time and paperwork, associated with preparing a Form 7460-1, 
as well as the costs of filing an OE notice, so the FAA should revise 
its estimates. One commenter surveyed its members and the survey 
indicated that the cost of processing a Form 7460-1 in-house was $406 
and took about 1.6 hours per form. Further, the average hourly labor 
cost was found to be $36 per hour. The commenter also stated that in 
addition to maps, a site survey is needed to complete Form 7460-1, 
which ensures the accuracy of the location and costs an average of 
$768. Another commenter supported the notion of including the cost of a 
site survey in the cost estimation for filing a Form 7460-1. Another 
commenter suggested that the

[[Page 42301]]

FAA increase its estimate for processing a Form 7460-1 in-house to $40.
    The FAA omitted the cost of a site survey in the preliminary 
analysis because a site survey is not required to complete a Form 7460-
1. However, a site survey must be completed if it is requested by the 
FAA's Flight Procedure Office. The agency has revised the cost analysis 
to reflect the wider range of costs as supplied by the commenters. The 
FAA also revised its cost and paperwork analyses to include the cost of 
filing a form in-house, as well as the costs of a site survey.
    A few commenters claimed that the FAA underestimated the time and 
paperwork costs associated with filing additional notices. Another 
commenter believed that the FAA underestimated the paperwork burden 
that will be placed on radio spectrum users.
    The FAA completed a paperwork reduction package for the proposed 
rule, which did show the estimated paperwork costs. The paperwork costs 
were also shown in the initial regulatory evaluation and were available 
for review in the docket. However, the FAA has elected not to adopt the 
radio frequency notice requirements in this final rule. As a result, 
there will be no additional paperwork burden placed on radio spectrum 
users at this time.
    A commenter stated that requiring applicants to provide notice to 
the FAA 60 days in advance could also increase the number of filings 
because of the rule change. Another commenter stated that extending the 
notice period for all proposed projects will cause undue delay in 
securing FAA approval and will delay the ability of utilities to 
develop new sites.
    The FAA has reduced the filing time period from 60 days to 45 days. 
This should mitigate the delay expected by the commenters and allow 
them to continue their operations without much change. Thus, the FAA 
does not expect any delays in construction or operational deficiencies 
resulting from the final rule.

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.

IV. Regulatory Evaluation, Regulatory Flexibility Determination, 
International Trade Impact Assessment, and Unfunded Mandates Assessment

    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 of 1980 (Pub. L. 96-354) requires 
agencies to analyze the economic impact of regulatory changes on small 
entities. Third, the Trade Agreements Act (Pub. L. 96-39) prohibits 
agencies from setting standards that create unnecessary obstacles to 
the foreign commerce of the United States. In developing U.S. 
standards, this Trade Act requires agencies to consider international 
standards and, where appropriate, that they be the basis of U.S. 
standards. Fourth, the Unfunded Mandates Reform Act of 1995 (Pub. L. 
104-4) requires agencies to prepare a written assessment of the costs, 
benefits, and other effects of proposed or final rules that include a 
Federal mandate likely to result in the expenditure by state, local, or 
tribal governments, in the aggregate, or by the private sector, of $100 
million or more annually (adjusted for inflation with base year of 
1995). This portion of the preamble summarizes the FAA's analysis of 
the economic impacts of this final rule. Readers seeking greater detail 
should read the full regulatory evaluation, a copy of which is in the 
docket for this rulemaking.
    In conducting these analyses, the FAA has determined that this 
final rule has benefits that justify its costs and is not economically 
significant under Executive Order 12866; however, it is otherwise 
``significant'' because of concerns raised by the National 
Telecommunications and Information Administration (NTIA) and the 
Federal Communications Commission (FCC) regarding the FAA's evaluation 
of potential electromagnetic effect during aeronautical studies. The 
final rule, if adopted, will not have a significant economic impact on 
a substantial number of small entities, will not create unnecessary 
obstacles to international trade, and will not impose an unfunded 
mandate on state, local, tribal governments, or on the private sector.
    This final rule amends 14 CFR part 77. These amendments refer to 
the rules for obstruction evaluation standards, aeronautical studies, 
and notice provisions about objects that could create hazards to air 
navigation.
    The FAA estimates the cost of this final rule to private industry 
will be approximately $20.9 million ($14.1 million, present value) over 
the next 10 years. The estimated cost of the final rule to the FAA will 
be approximately $18.7 million ($12.6 million, present value) over the 
next 10 years. Therefore, the total cost associated with the final rule 
will be approximately $39.6 million ($26.8 million, present value) over 
the next 10 years.
    The final rule will enhance protection of aircraft approaches from 
unknown obstructions and unknown alteration projects on or near private 
use airports with FAA-approved instrument approach procedures (IAPs). 
The FAA contends that these qualitative benefits justify the costs of 
the final rule.

Final Regulatory Flexibility Analysis

    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.
    While the FAA does not maintain data on the size of businesses that 
file notices, the FAA estimates that approximately 40 percent of the OE 
notices will be filed by small businesses (comprised of business owners 
and private use airport owners) as defined by the Small Business 
Administration. Thus, in 2010 when the rule is expected to take effect, 
the FAA expects approximately 2,400 more OE notices

[[Page 42302]]

will be filed by affected parties. Of those applications filed, 
approximately 960 notices are estimated to be filed by small businesses 
(using 40 percent assumption).
    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 ($480) 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 will cost all small entities approximately $480 per case to meet the 
requirements of part 77.
    It is unlikely that any individual small entity will file more than 
three OE notices in a calendar year. As a result, the FAA estimates 
that in virtually all cases, the cost of this rule to small businesses 
will not exceed $1500 per small entity, a cost the FAA does not 
consider significant. Therefore, as the FAA Administrator, I certify 
that this rule will not have a significant economic impact on a 
substantial number of small entities.

International Trade Impact Assessment

    The Trade Agreements Act of 1979 (Pub. L. 96-39), as amended by the 
Uruguay Round Agreements Act (Pub. L. 103-465), prohibits Federal 
agencies from establishing standards or engaging in related activities 
that create unnecessary obstacles to the foreign commerce of the United 
States. Pursuant to these Acts, the establishment of standards is not 
considered an unnecessary obstacle to the foreign commerce of the 
United States, so long as the standard has a legitimate domestic 
objective, such as the protection of safety, and does not operate in a 
manner that excludes imports that meet this objective. The statute also 
requires consideration of international standards and, where 
appropriate, that they be the basis for U.S. standards. The FAA has 
assessed the potential effect of this final rule and determined that it 
will have only a domestic impact and, therefore, will not create 
unnecessary obstacles to the foreign commerce of the United States.

Unfunded Mandates Assessment

    Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-
4) 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 
(in 1995 dollars) 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 $136.1 million in lieu of $100 
million. This final rule does not contain such a mandate; therefore, 
the requirements of Title II of the Act do not apply.

Executive Order 13132, Federalism

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

Environmental Analysis

    FAA Order 1050.1E identifies FAA actions that are categorically 
excluded from preparation of an environmental assessment or 
environmental impact statement under the National Environmental Policy 
Act in the absence of extraordinary circumstances. The FAA has 
determined this 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 final rule 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.

Availability of Rulemaking Documents

    You can get an electronic copy of rulemaking documents using the 
Internet by--
    1. Searching the Federal eRulemaking Portal (http://www.regulations.gov);
    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.gpoaccess.gov/fr/index.html.
    You can also get a copy by sending 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 amendment number or docket number of this 
rulemaking.
    Anyone is able to search the electronic form of all comments 
received into any of our dockets by the name of the individual 
submitting the comment (or signing the comment, if submitted 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 (Volume 65, Number 70; Pages 19477-78) or you may visit 
http://DocketsInfo.dot.gov.

Small Business Regulatory Enforcement Fairness Act

    The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 
1996 requires FAA to comply with small entity requests for information 
or advice about compliance with statutes and regulations within its 
jurisdiction. If you are a small entity and you have a question 
regarding this document, you may contact your local FAA official, or 
the person listed under the FOR FURTHER INFORMATION CONTACT heading at 
the beginning of the preamble. You can find out more about SBREFA on 
the Internet at http://www.faa.gov/regulations_policies/rulemaking/sbre_act/.

Appendix A to the Preamble

    Under regulations (49 U.S.C. 44718) prescribed by the Secretary, 
if the Secretary decides that constructing or altering a structure 
may result in an obstruction of the navigable airspace or an 
interference with air navigation facilities and equipment or the 
navigable airspace, the Secretary shall conduct an aeronautical 
study to decide the extent of any adverse impact on the safe and 
efficient use of the airspace, facilities, or equipment. In 
conducting the study, the Secretary shall consider factors relevant 
to the efficient and effective use of the navigable airspace, 
including--
    (A) The impact on arrival, departure, and en route procedures 
for aircraft operating under visual flight rules;
    (B) The impact on arrival, departure, and en route procedures 
for aircraft operating under instrument flight rules;
    (C) The impact on existing public use airports and aeronautical 
facilities;
    (D) The impact on planned public use airports and aeronautical 
facilities; and
    (E) The cumulative impact resulting from the proposed 
construction or alteration of a structure when combined with the 
impact of other existing or proposed structures.

Appendix B to the Preamble

    The NPRM proposed that notice must be filed with the FAA for 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 transmissions operating on the following frequencies:

[[Page 42303]]

    (i) 54-108 MHz
    (ii) 150-216 MHz
    (iii) 406-430 MHz
    (iv) 931-940 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

    In addition, the NPRM proposed that any changes or modification 
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;
    (iv) modification of radiating elements, including: (A) Antenna 
mounting locations(s) if increased 100 feet or more irrespective of 
whether the overall height is increased; (B) changes in antenna 
specification (including gain, beam-width, polarization, pattern); 
and (C) change in antenna azimuth/bearing (e.g. point-to-point 
microwave systems).

List of Subjects in 14 CFR Part 77

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

V. The Amendment

0
In consideration of the foregoing, the Federal Aviation Administration 
amends 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:
    (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:
    Non-precision instrument runway means a runway having an existing 
instrument approach procedure utilizing air navigation facilities with 
only horizontal guidance, or area type navigation equipment, for which 
a straight-in non-precision instrument approach procedure has been 
approved, or planned, and for which no precision approach facilities 
are planned, or indicated on an FAA planning document or military 
service military airport planning document.
    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.
    Precision instrument runway means a runway having an existing 
instrument approach procedure utilizing an Instrument Landing System 
(ILS), or a Precision Approach Radar (PAR). It also means a runway for 
which a precision approach system is planned and is so indicated by an 
FAA-approved airport layout plan; a military service approved military 
airport layout plan; any other FAA planning document, or military 
service military airport planning document.
    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.
    Seaplane base is considered to be an airport only if its sea lanes 
are outlined by visual markers.
    Utility runway means a runway that is constructed for and intended 
to be used by propeller driven aircraft of 12,500 pounds maximum gross 
weight and less.
    Visual runway means a runway intended solely for the operation of 
aircraft using visual approach procedures, with no straight-in 
instrument approach procedure and no instrument designation indicated 
on an FAA-approved airport layout plan, a military service approved 
military airport layout plan, or by any planning document submitted to 
the FAA by competent authority.

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; and

[[Page 42304]]

    (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 Internet.
    (b) You must submit this form at least 45 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 that exceeds 2,000 ft. in height above ground level (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 45-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 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 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 highway, railroad, or other traverse way for mobile 
objects, of a height which, if adjusted upward 17 feet for an 
Interstate Highway that is part of the National System of Military and 
Interstate Highways where overcrossings are designed for a minimum of 
17 feet vertical distance, 15 feet for any other public roadway, 10 
feet or the height of the highest mobile object that would normally 
traverse the road, whichever is greater, for a private road, 23 feet 
for a railroad, and for a waterway or any other traverse way not 
previously mentioned, an amount equal to the height of the highest 
mobile object that would normally traverse it, would exceed a standard 
of paragraph (a) or (b) of this section.
    (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) You do not need to file notice for construction or alteration 
of:
    (1) Any object 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

[[Page 42305]]

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 military service, before it issues a final 
determination.
    (d) For airports having defined runways with specially prepared 
hard surfaces, 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) An existing object, including a mobile object, is, and a future 
object would be an obstruction to air navigation if it is of greater 
height than any of the following heights or surfaces:
    (1) A height of 499 feet AGL at the site of the object.
    (2) A height that is 200 feet AGL, or above the established airport 
elevation, whichever is higher, within 3 nautical miles of the 
established reference point of an airport, 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.
    (3) 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.
    (4) A height within an en route obstacle clearance area, including 
turn and termination areas, of a Federal Airway or approved off-airway 
route, that would increase the minimum obstacle clearance altitude.
    (5) The surface of a takeoff and landing area of an airport or any 
imaginary surface established under Sec.  77.19, 77.21, or 77.23. 
However, no part of the takeoff or landing area itself will be 
considered an obstruction.
    (b) 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 air traffic control service, the standards of paragraph (a) of this 
section apply to traverse ways used or to be used for the passage of 
mobile objects only after the heights of these traverse ways are 
increased by:
    (1) 17 feet for an Interstate Highway that is part of the National 
System of Military and Interstate Highways where overcrossings are 
designed for a minimum of 17 feet vertical distance.
    (2) 15 feet for any other public roadway.
    (3) 10 feet or the height of the highest mobile object that would 
normally traverse the road, whichever is greater, for a private road.
    (4) 23 feet for a railroad.
    (5) For a waterway or any other traverse way not previously 
mentioned, an amount equal to the height of the highest mobile object 
that would normally traverse it.

Sec.  77.19  Civil airport imaginary surfaces.

    The following civil airport imaginary surfaces are established with 
relation to the airport and to each runway. The size of each such 
imaginary surface is based on the category of each runway according to 
the type of approach available or planned for that runway. The slope 
and dimensions of the approach surface applied to each end of a runway 
are determined by the most precise approach procedure existing or 
planned for that runway end.
    (a) Horizontal surface. A horizontal plane 150 feet above the 
established airport elevation, the perimeter of which is constructed by 
SW.inging arcs of a specified radii from the center of each end of the 
primary surface of 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 utility or visual;
    (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 shall be disregarded on 
the construction of the perimeter of the horizontal surface.
    (b) Conical surface. A surface extending outward and upward from 
the periphery of the horizontal surface at a slope of 20 to 1 for a 
horizontal distance of 4,000 feet.
    (c) Primary surface. A surface longitudinally centered on a runway. 
When the runway has a specially prepared hard surface, the primary 
surface extends 200 feet beyond each end of that runway; but when the 
runway has no specially prepared hard surface, the primary surface ends 
at each end of that runway. The elevation of any point on the primary 
surface is the same as the elevation of the nearest point on the runway 
centerline. The width of the primary surface is:
    (1) 250 feet for utility runways having only visual approaches.
    (2) 500 feet for utility runways having non-precision instrument 
approaches.
    (3) For other than utility runways, the width is:
    (i) 500 feet for visual runways having only visual approaches.
    (ii) 500 feet for non-precision instrument runways having 
visibility minimums greater than three-fourths statue mile.
    (iii) 1,000 feet for a non-precision instrument runway having a 
non-precision instrument approach with visibility minimums as low as 
three-fourths of a statute mile, and for precision instrument runways.

[[Page 42306]]

    (iv) The width of the primary surface of a runway will be that 
width prescribed in this section for the most precise approach existing 
or planned for either end of that runway.
    (d) 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 it expands uniformly to a width of:
    (i) 1,250 feet for that end of a utility runway with only visual 
approaches;
    (ii) 1,500 feet for that end of a runway other than a utility 
runway with only visual approaches;
    (iii) 2,000 feet for that end of a utility runway with a non-
precision instrument approach;
    (iv) 3,500 feet for that end of a non-precision instrument runway 
other than utility, having visibility minimums greater that three-
fourths of a statute mile;
    (v) 4,000 feet for that end of a non-precision instrument runway, 
other than utility, having a non-precision instrument approach with 
visibility minimums as low as three-fourths statute mile; and
    (vi) 16,000 feet for precision instrument runways.
    (2) The approach surface extends for a horizontal distance of:
    (i) 5,000 feet at a slope of 20 to 1 for all utility and visual 
runways;
    (ii) 10,000 feet at a slope of 34 to 1 for all non-precision 
instrument runways other than utility; and
    (iii) 10,000 feet at a slope of 50 to 1 with an additional 40,000 
feet at a slope of 40 to 1 for all precision instrument runways.
    (3) The outer width of an approach surface to an end of a runway 
will be that width prescribed in this subsection for the most precise 
approach existing or planned for that runway end.
    (e) Transitional surface. These surfaces extend outward and upward 
at right angles to the runway centerline and the runway centerline 
extended 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 the precision approach surface which 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 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.

[[Page 42307]]

Sec.  77.29  Evaluating aeronautical effect.

    (a) The FAA conducts an aeronautical study to determine the impact 
of a proposed structure, an existing structure that has not yet been 
studied by the FAA, or an alteration of an existing structure on 
aeronautical operations, procedures, and the safety of flight. These 
studies include evaluating:
    (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 traffic 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 electromagnetic effects on 
air navigation, communication facilities, and other surveillance 
systems;
    (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 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 electromagnetic effect on the 
operation of existing or proposed air navigation facilities, 
communication aids, or surveillance systems.
    (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 that 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 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 18 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 Obstruction 
Evaluation Service (OES).
    (4) If the Commission refuses to issue a construction permit, the 
final determination expires on the date of its refusal.

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 
of this part.

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

[[Page 42308]]

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 the government is open.
    (d) The FAA will inform the petitioner or sponsor (if other than 
the petitioner) and the FCC (whenever an FCC-related proposal is 
involved) 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. The review may include a request for 
comments and a review of all records from the initial aeronautical 
study.
    (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 July 13, 2010.
J. Randolph Babbitt,
Administrator.
[FR Doc. 2010-17767 Filed 7-20-10; 8:45 am]
BILLING CODE 4910-13-P
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