Proposed Rule2024-26741
Requirements To File Notice for Meteorological Towers and Other Wind Energy Systems
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Published
November 18, 2024
Issuing agencies
Transportation DepartmentFederal Aviation Administration
Abstract
The FAA is proposing to amend requirements applicable to meteorological towers and permanent wind energy systems. This rule would require any person that owns (sponsor) any proposed, altered, or existing meteorological tower to file notice with the Federal Aviation Administration (FAA) if the highest point of the structure is at least 50 feet above ground level (AGL) up to and including 200 feet AGL at its site. The FAA is also proposing marking requirements for meteorological towers constructed or altered after the effective date of a final rule if the highest point of the structure is at least 50 feet AGL up to and including 200 feet AGL at its site. Additionally, the FAA proposes making certain pertinent information about any meteorological tower with the highest point of the structure at least 50 feet AGL up to and including 200 feet AGL at its site available on the FAA's official database. The FAA expects these changes to lower the collision risk for aircraft during low-altitude operations. Moreover, these requirements would partially address two statutory mandates and two National Transportation Safety Board (NTSB) recommendations.
Full Text
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<title>Federal Register, Volume 89 Issue 222 (Monday, November 18, 2024)</title>
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[Federal Register Volume 89, Number 222 (Monday, November 18, 2024)]
[Proposed Rules]
[Pages 90627-90646]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-26741]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 89, No. 222 / Monday, November 18, 2024 /
Proposed Rules
[[Page 90627]]
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 77
[Docket No. FAA-2024-2574; Notice No. 25-01]
RIN 2120-AK77
Requirements To File Notice for Meteorological Towers and Other
Wind Energy Systems
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Notice of proposed rulemaking (NPRM).
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SUMMARY: The FAA is proposing to amend requirements applicable to
meteorological towers and permanent wind energy systems. This rule
would require any person that owns (sponsor) any proposed, altered, or
existing meteorological tower to file notice with the Federal Aviation
Administration (FAA) if the highest point of the structure is at least
50 feet above ground level (AGL) up to and including 200 feet AGL at
its site. The FAA is also proposing marking requirements for
meteorological towers constructed or altered after the effective date
of a final rule if the highest point of the structure is at least 50
feet AGL up to and including 200 feet AGL at its site. Additionally,
the FAA proposes making certain pertinent information about any
meteorological tower with the highest point of the structure at least
50 feet AGL up to and including 200 feet AGL at its site available on
the FAA's official database. The FAA expects these changes to lower the
collision risk for aircraft during low-altitude operations. Moreover,
these requirements would partially address two statutory mandates and
two National Transportation Safety Board (NTSB) recommendations.
DATES: Send comments on or before January 17, 2025.
ADDRESSES: Send comments identified by docket number FAA-2024-2574
using any of the following methods:
<bullet> Federal eRulemaking Portal: Go to <a href="https://www.regulations.gov">https://www.regulations.gov</a> and follow the online instructions for sending your
comments electronically.
<bullet> Mail: Send comments to Docket Operations, M-30; U.S.
Department of Transportation (DOT), 1200 New Jersey Avenue SE, Room
W12-140, West Building Ground Floor, Washington, DC 20590-0001.
<bullet> Hand Delivery or Courier: Take comments to Docket
Operations in Room W12-140 of the West Building Ground Floor at 1200
New Jersey Avenue SE, Washington, DC, between 9 a.m. and 5 p.m., Monday
through Friday, except Federal holidays.
<bullet> Facsimile: Fax comments to Docket Operations at (202) 493-
2251.
Docket: Background documents or comments received may be read at
<a href="https://www.regulations.gov">https://www.regulations.gov</a> at any time. Follow the online instructions
for accessing the docket or go to the Docket Operations in Room W12-140
of the West Building Ground Floor at 1200 New Jersey Avenue SE,
Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday,
except Federal holidays.
FOR FURTHER INFORMATION CONTACT: Brian Konie, Airspace Rules and
Regulations Team, Air Traffic Organization, AJV-P21, Federal Aviation
Administration, 800 Independence Avenue SW, Washington, DC 20591;
telephone: (202) 267-8783; email: <a href="/cdn-cgi/l/email-protection#e684948f8788c88d89888f83a6808787c8818990"><span class="__cf_email__" data-cfemail="e684948f8788c88d89888f83a6808787c8818990">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: The FAA further proposes amending the notice
requirements for any person that owns (sponsors) a proposed or altered
permanent wind energy system. The FAA is also proposing to extend the
expiration date of the Determination of No Hazard to Air Navigation for
permanent wind energy systems and associated meteorological towers.
The FAA is also proposing to clarify that, except for structures
that have received an FAA Determination of No Hazard to Air Navigation
prior to the effective date of a final rule or any meteorological tower
with the highest point of the structure at least 50 feet AGL up to and
including 200 feet AGL at its site for which construction is complete
prior to the effective date of a final rule, all conditions and
limitations of any Determination of No Hazard to Air Navigation are
mandatory, which includes marking requirements. Finally, the FAA
proposes making several miscellaneous conforming and clarifying
amendments.
List of Abbreviations and Acronyms Frequently Used in This Document
AC--Advisory Circular
AGL--Above Ground Level
ATC--Air Traffic Control
AWES--Airborne Wind Energy System
DOE--Department of Energy
FCC--Federal Communications Commission
GPS--Global positioning system
NAAA--National Agricultural Aviation Association
NAS--National Airspace System
NTSB--National Transportation Safety Board
OE/AAA--Obstruction Evaluation/Airport Airspace Analysis
SIR--Special Investigation Report
VOR--Very High Frequency Omnidirectional Range
I. Executive Summary
A. Overview of Proposed Rule
This proposed rule would amend title 14 Code of Federal Regulations
(14 CFR) part 77, Safe, Efficient Use, and Preservation of the
Navigable Airspace, as it applies to all existing meteorological
towers, as well as proposals to construct or alter a meteorological
tower, with the highest point of the structure at least 50 feet AGL up
to and including 200 feet AGL at its site.
The FAA proposes requiring a sponsor \1\ proposing to construct or
alter a meteorological tower at least 50 feet AGL up to and including
200 feet AGL at its site to file notice under Sec. 77.9 pursuant to
Sec. 77.7(b).
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\1\ The FAA notes that the word ``Sponsor'' is capitalized in
Advisory Circular 70/7460-1. However, for purposes of this
rulemaking, the word is lower case.
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This rule would also require sponsors of existing meteorological
towers with the highest point of the structure at least 50 feet AGL up
to and including 200 feet AGL at its site to file notice with the FAA
within 90 days of the final rule's effective date pursuant to Sec.
77.9.
Additionally, the FAA proposes making certain pertinent information
about any meteorological tower with the highest point of the structure
at least 50 feet AGL up to and including 200 feet AGL at its site
available on the FAA's official database, the Digital Obstacle File
(DOF), available at <a href="https://www.faa.gov/air_traffic/flight_info/aeronav/digital_products/dof">https://www.faa.gov/air_traffic/flight_info/aeronav/digital_products/dof</a>. The FAA expects that collecting via the
notice
[[Page 90628]]
and sharing information on proposed, altered, and existing
meteorological towers in the DOF database will improve situational
awareness for pilots conducting low-altitude operations.
In addition to the changes affecting meteorological towers, this
proposed rule would also add additional requirements addressing
permanent wind energy systems. The FAA needs these changes to properly
handle the unique attributes of wind energy systems. The FAA proposes
the following changes:
<bullet> Require notice of proposed construction or alteration of a
permanent wind energy system at least 90 days before the start date of
the proposed construction or alteration, or the date an application for
a construction permit is filed, whichever is earlier; and,
<bullet> Amend the expiration date of the Determination of No
Hazard to Air Navigation under Sec. 77.33 for permanent wind energy
systems and associated meteorological towers to 36 months after the
effective date of the determination.
Finally, this proposed rule would make the following changes,
clarifying and codifying current agency practice:
<bullet> Add a definition of airborne wind energy system (AWES) to
Sec. 77.3 for consistency with the FAA's final notice of policy; \2\
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\2\ Airborne Wind Energy Systems (AWES) Policy Statement, 87 FR
78849 (Dec. 23, 2022).
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<bullet> Add a definition of meteorological towers to Sec. 77.3
for consistency with the FAA's final notice of policy; \3\
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\3\ Id.
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<bullet> Add a definition of sponsor to Sec. 77.3 to clarify the
scope of applicability;
<bullet> Add a definition of wind energy system to Sec. 77.3 to
clarify the scope of applicability;
<bullet> Amend Sec. 77.7 to update the methods available to
acquire an approved copy of FAA Form 7460-1, Notice of Proposed
Construction or Alteration;
<bullet> Revise the heading of Sec. 77.9, ``Construction or
alteration requiring notice,'' to ``Notice requirements'' to reflect
that existing meteorological towers may need to provide notice to the
FAA;
<bullet> Redesignate Sec. 77.11 as Sec. 77.10, and amend to
identify FAA Form 7460-2, Notice of Actual Construction or Alteration,
as the form sponsors use to provide supplemental notice;
<bullet> Add Sec. 77.11 to require the sponsor to submit
additional information upon request throughout the aeronautical study
process, which includes all actions required pre- and post-
determination;
<bullet> Add Sec. 77.12 to clarify that, except for structures
that have received an FAA Determination of No Hazard to Air Navigation
prior to the effective date of a final rule or any meteorological tower
with the highest point of the structure at least 50 feet AGL up to and
including 200 feet AGL at its site for which construction is complete
prior to the effective date of a final rule, a sponsor must comply with
any conditions and limitations contained in a Determination of No
Hazard to Air Navigation including marking requirements that would be
developed in accordance with the FAA Advisory Circular 70/7460-1,
Obstruction Marking and Lighting, for proposed or altered
meteorological towers with the highest point of the structure at least
50 feet AGL up to and including 200 feet AGL at its site;
<bullet> Amend Sec. 77.27 to clarify when an aeronautical study is
appropriate;
<bullet> Add Sec. 77.32 to clarify how a sponsor may request a
modification or deviation from the marking and lighting requirements
contained in a determination; and,
<bullet> Amend Sec. 77.35 to clarify a sponsor's duty to request
an extension of the effective period of the determination when the
original Federal Communications Commission (FCC) completion date needs
to be extended.
The FAA is proposing to revise references to ``Airport/Facility
Directory, Alaska Supplement, or Pacific Chart Supplement'' to ``Chart
Supplement U.S., Chart Supplement Alaska, or Chart Supplement
Pacific.''
The FAA notes that, as discussed in section IV.D. of this preamble,
the FAA is proposing to revise references to ``you'' to refer to the
sponsor to make clear to whom ``you'' applies.
The FAA also notes that, as discussed in section IV.D of this
preamble, the FAA is proposing to revise references to ``marking and
lighting recommendations'' to ``marking and lighting requirements'' for
consistency with the changes in Sec. 77.12.
The following table summarizes the substantive changes proposed in
this rule.
Table 1--Summary of Proposed Changes
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CFR Sec. Proposed provision
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77.1......................... Establishes the requirement that all
conditions and limitations in the
determination are mandatory, including
the requirement to mark newly
constructed or altered meteorological
towers with the highest point of the
structure at least 50 feet AGL up to and
including 200 feet AGL at its site.
77.3......................... Add definitions for ``airborne wind
energy system (AWES),'' ``meteorological
tower,'' ``sponsor,'' and ``wind energy
system.''
77.5......................... A sponsor of a meteorological tower in
existence before the effective date of a
final rule must provide notice
consistent with Sec. 77.7(d).
A sponsor proposing any construction or
alteration of a meteorological tower
with the highest point of the structure
at least 50 feet up to and including 200
feet AGL at its site must provide
adequate notice to the FAA of that
construction or alteration pursuant to
Sec. 77.7(b).
77.7......................... Require a sponsor to file notice at least
45 days before the start of construction
or alteration or the date of application
for a construction permit for any new
meteorological tower, whichever is
earlier.
A sponsor must submit FAA Form 7460-1 for
any proposed construction or alteration
of a permanent wind energy system and
associated meteorological towers at
least 90 days before the start date of
the proposed construction or alteration,
or the date an application for a
construction permit is filed, whichever
is earlier.
A sponsor of a meteorological tower that
exists prior to the effective date of a
final rule with the highest point of the
structure at least 50 feet AGL up to and
including 200 feet AGL at its site must
submit FAA Form 7460-1 within 90 days of
the effective date of a final rule.
77.9......................... A sponsor must file notice of any
construction or alteration of a
meteorological tower with the highest
point of the structure at least 50 feet
AGL up to and including 200 feet AGL at
its site.
[[Page 90629]]
If a sponsor has an existing
meteorological tower with the highest
point of the structure at least 50 feet
AGL up to and including 200 feet AGL at
its site prior to the effective date of
a final rule, the sponsor must file
notice consistent with Sec. 77.7(d).
77.10........................ Makes clear that a sponsor must file
supplemental notice if otherwise
requested by the FAA.
77.11........................ If the FAA requests additional
information during any part of the
aeronautical study process, pre- or post-
any determination, the sponsor must
provide that information within 30 days.
77.12........................ Except for structures that have received
an FAA Determination of No Hazard to Air
Navigation prior to the effective date
of a final rule or any meteorological
tower with the highest point of the
structure at least 50 feet AGL up to and
including 200 feet AGL at its site for
which construction is complete prior to
the effective date of a final rule,
sponsors must comply with the conditions
and limitations contained in a
Determination of No Hazard to Air
Navigation. This includes requiring
newly constructed or altered
meteorological towers with the highest
point of the structure at least 50 feet
AGL up to and including 200 feet AGL at
its site to mark the tower.
77.27........................ The FAA will conduct an aeronautical
study when: (1) notice required under
Sec. 77.9 has been received, or (2)
the FAA determines a study is necessary.
All other notices filed outside of these
parameters will be screened within the
automated OE/AAA system and provided an
electronic letter response that
indicates that no notice is required for
the said proposal or alteration, and
thus the FAA has no objections to the
proposal.
77.32........................ In order to request a modification or
deviation from the marking and lighting
requirements contained in a
Determination of No Hazard to Air
Navigation, the sponsor must submit FAA
Form 7460-1, Notice of Proposed
Construction or Alteration.
77.33........................ Unless extended, revised, or terminated,
each Determination of No Hazard to Air
Navigation issued under subpart D of
part 77 regarding a proposed permanent
wind energy system, including an
airborne wind energy system, and
associated meteorological towers,
expires 36 months after the effective
date of the determination or on the date
the proposed construction or alteration
is abandoned, whichever is earlier.
------------------------------------------------------------------------
B. Summary of Costs and Benefits
Section 2110 of the FAA Extension, Safety, and Security Act of 2016
(FESSA),\4\ as amended by section 576 of the FAA Reauthorization Act of
2018 (FAARA),\5\ mandates the FAA to require the marking of ``covered
towers'' if they are not included in the database described in section
2110, except for meteorological towers. Section 2110(a)(2) requires
that all meteorological towers be marked and included within a
database. This proposed rule would include meteorological tower
information in a database as well as require compliance with any
marking requirements that are conditions and limitations in a
Determination of No Hazard to Air Navigation for a proposed or altered
meteorological tower. The proposed rule would partially satisfy the
mandate concerning meteorological towers without placing undue
financial burdens on existing towers and partially address two National
Transportation Safety Board (NTSB) recommendations.\6\ This proposal
also includes additional amendments that would allow the FAA more time
to study and determine aeronautical effects and any potential national
airspace system (NAS) impacts from permanent wind energy systems and
associated meteorological towers.
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\4\ Public Law 114-190, sec. 2110; 130 Stat. 623 (Jul. 15,
2016).
\5\ Public Law 115-254, sec. 576; 132 Stat. 3391 (Oct. 5, 2018).
\6\ NTSB Safety Recommendations A-13-16 and A-13-17 (May 2013).
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Section 2110, as amended by section 576 of FAARA, requires the
clear marking of towers and their inclusion in a database no later than
18 months after the date of enactment of the FAA Reauthorization Act of
2018 or the date of availability of the database, whichever is later.
Section 2110(a)(1)(A) requires that towers be clearly marked consistent
with applicable guidance in the advisory circular issued December 4,
2015 (AC 70/7460-1L). Consistent with the direction provided by section
2110, the FAA proposes to add new Sec. 77.12, Conditions and
limitations. This proposal would clarify that sponsors that receive a
Determination of No Hazard to Air Navigation, except for structures
that have received an FAA Determination of No Hazard to Air Navigation
prior to the effective date of a final rule or any meteorological tower
with the highest point of the structure at least 50 feet AGL up to and
including 200 feet AGL at its site for which construction is complete
prior to the effective date of a final rule must comply with the
conditions and limitations therein including, at a minimum, marking
requirements for newly constructed or altered meteorological towers
with the highest point of the structure at least 50 feet AGL up to and
including 200 feet AGL at its site. Those conditions and limitations as
they relate to marking will be derived from the current version of AC
70/7460-1. Existing meteorological towers at least 50 feet AGL and up
to and including 200 feet AGL are required to file notice with the FAA
within 90 days of the effective date of a final rule. The FAA will
study these notices, and the FAA may issue a part 77 determination.
The primary costs of the proposed rule to industry would be the
costs to mark new and altered meteorological towers. The estimated
costs to mark each new or altered tower is about $14,300 and includes
equipment costs for marker balls and sleeves and installing them to new
and altered towers, buying a new pre-painted tower, and dismantling a
tower. This estimated cost also includes the cost to provide FAA
notifications of both existing and dismantling of out-of-service
meteorological towers. The FAA would process notifications of existing
and new meteorological towers, including notifications of dismantled
out-of-service meteorological towers, at a cost of about $41 per
existing notification and about $162 per dismantling notification. The
FAA is also proposing to extend the expiration date of the
Determination of No Hazard to Air Navigation for permanent wind energy
systems and associated meteorological towers. Extending the wind
turbine determination period from 18 months to 36 months would result
in minimal cost savings to industry and the FAA.
The primary benefit of the proposed rule would be enhanced
conspicuity to prevent agricultural pilots from colliding with
meteorological towers with the highest point of the structure
[[Page 90630]]
at least 50 feet AGL up to and including 200 feet AGL at its site.
II. Authority for This Proposed Rulemaking
The FAA's authority to issue rules on aviation safety is found in
title 49 of the United States Code (49 U.S.C.). Subtitle I, section 106
describes the authority of the FAA Administrator. Subtitle VII,
Aviation Programs, describes in more detail the scope of the agency's
authority.
This rulemaking is issued under the authority described in 49
U.S.C. 40103(b), which vests the Administrator with broad authority to
prescribe regulations to ensure the safety of aircraft and the
efficient use of airspace, and 49 U.S.C. 44701(a)(5), which requires
the Administrator to promulgate regulations and minimum standards for
other practices, methods, and procedures necessary for safety in air
commerce and national security. This rulemaking is also consistent
with: (1) the authority in 49 U.S.C. 44718(a), which directs the
Secretary of Transportation to require a person to give adequate public
notice of the construction, alteration, establishment, or expansion, or
the proposed construction, alteration, establishment, or expansion, of
a structure or sanitary landfill in furtherance of safety in air
commerce and the efficient use and preservation of the navigable
airspace and of airport traffic capacity at public-use airports; (2)
section 44718(b), which requires the Secretary to conduct an
aeronautical study to decide the extent of any adverse impact on the
safe and efficient use of the airspace, facilities, or equipment 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; and (3)
section 44718(c), which requires that in carrying out laws related to a
broadcast application and conducting an aeronautical study related to
broadcast towers, the FAA Administrator and the FCC shall take action
necessary to coordinate efficiently the receipt and consideration of,
and action on, the application and the completion of any associated
aeronautical study.
Furthermore, the portions of the proposed rule regarding
meteorological towers are authorized by section 2110 of the 2016 FESSA,
as amended by section 576 of the 2018 FAARA and section 355 of the FAA
Reauthorization Act of 2024 (Pub. L. 118-63), that imposed marking and
informational requirements on covered towers, including meteorological
towers. The following proposed amendments to part 77 are within the
scope of this authority. Publication of this NPRM also satisfies the
requirement in section 355 of the FAA Reauthorization Act of 2024 \7\
that the FAA publish this notice of proposed rulemaking within one year
of the date of enactment of that Act.
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\7\ Public Law 118-63, sec. 355 (May 16, 2024).
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III. Background
A. Current Regulations and Practices
Part 77 contains the regulations governing the safe, efficient use,
and preservation of the navigable airspace. Sponsors proposing to
construct or alter a structure that is more than 200 feet AGL must
provide the FAA notice per Sec. 77.9(a). Sponsors must provide notice
at least 45 days before the start of construction or alteration or the
date an application for a construction permit is filed, whichever is
earlier, per Sec. 77.7(b).
After receiving notice, the FAA's Obstruction Evaluation Group
(OEG) conducts an initial review to verify the information provided
and, if appropriate, enters it into the Obstruction Evaluation/Airport
Airspace Analysis (OE/AAA) system as a verified proposed structure.
Currently, the FAA will conduct an aeronautical study when
requested by the sponsor of any proposed construction or alteration for
which a notice is submitted, or the FAA determines a study is
necessary.\8\ As part of this study, the FAA determines whether the
structure exceeds the heights identified in part 77's obstruction
standards. A structure exceeding one or more of the heights described
in the obstruction standards is presumed a hazard to air navigation
unless an aeronautical study determines otherwise. If the proposed
structure is a presumed hazard, the FAA sends the sponsor a notice of
preliminary findings (which previously was called a Notice of Presumed
Hazard) with 60 days to respond.
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\8\ 14 CFR 77.27.
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Upon receipt of the preliminary findings, the sponsor has the
option to move or lower the proposed structure, request further study
(which may include a public comment period), terminate the proposal, or
request a Determination of Hazard. The FAA and the sponsor may also
discuss hazard mitigation strategies, such as reducing the structure's
height or adjusting the proposed location, prior to the agency's formal
determination. Proper mitigation, if appropriate, may result in a
Determination of No Hazard to Air Navigation that contains conditions
and limitations (e.g., marking, lighting, or supplemental notice filing
constraints). Each Determination of No Hazard to Air Navigation issued
under subpart B of part 77 expires 18 months after the effective date
of the determination, or on the date the proposed construction or
alteration is abandoned, whichever is earlier. If the FAA determines
that a structure does not pose a hazard to air navigation, the FAA will
recommend marking and lighting in the determination, as appropriate, in
accordance with the current AC 70/7460-1 to make the structure more
conspicuous for aircraft operators to see and avoid.
A sponsor may request a modification from the marking and lighting
recommendations contained in a determination by submitting FAA Form
7460-1, Notice of Proposed Construction or Alteration, to the OEG. A
request received after the FAA has issued its determination containing
marking and lighting conditions and limitations may require a new
marking and lighting study and could result in new requirements. If the
FAA issues a modification from the marking or lighting conditions and
limitations prior to the implementation of the changes, the sponsor may
also be required to notify the FCC. Modifications would be based on
whether or not they impact aviation safety.
A sponsor may also request a deviation from the marking and
lighting conditions and limitations contained in the determination
derived from the standards in AC 70/7460-1. Proposed requests to
deviate from current marking and lighting conditions and limitations
derived from the standards in AC 70/7460-1 for research and development
to introduce new technology or improve current standards are generally
submitted by email. The FAA will perform a safety assessment for use in
the NAS and may request additional information if needed. If at any
time the FAA determines the study has created an unsafe condition, the
deviation request may be disapproved. Research and development testing
is independent of the aeronautical study process and generally requires
a more lengthy analysis period for evaluation by the FAA for aviation
safety. When testing is complete and the FAA concludes its review, the
sponsor will be notified of the determination. Examples of deviations
that may be considered include, but are not limited to, alternative
painting schemes, colors/types of lights, basic signals and intensity
of lights, night/day lighting combinations, and flash rate.
[[Page 90631]]
B. NTSB Investigations of Meteorological Tower Accidents
The NTSB is an independent U.S. government agency responsible for
the investigation of civil transportation accidents.\9\ Between 2003
and 2011, the NTSB investigated 3 accidents involving meteorological
towers below 200 feet AGL. A summary of the investigated accidents
follows:
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\9\ See NTSB's Aviation Accidents Database at <a href="https://data.ntsb.gov/carol-main-public/basic-search">https://data.ntsb.gov/carol-main-public/basic-search</a>.
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<bullet> December 15, 2003: During a personal flight from Yakima,
Washington, to Walla Walla, Washington, an Erickson SHA Glasair
collided with an unmarked meteorological tower (164 feet AGL) near
Vansycle, Oregon. The accident resulted in fatalities to the pilot and
passenger.\10\
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\10\ NTSB accident number SEA04LA027.
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<bullet> May 19, 2005: During an aerial application flight, an Air
Tractor AT-602 collided with an unmarked meteorological tower (197 feet
AGL) erected 15 days before the accident near Ralls, Texas. The
accident resulted in a pilot fatality.\11\
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\11\ NTSB accident number DFW05LA126.
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<bullet> January 10, 2011: During an aerial application flight, a
Rockwell International S-2R collided with an unmarked meteorological
tower (198 feet AGL) near Oakley, California. The accident resulted in
a pilot fatality.\12\
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\12\ NTSB accident number WPR11LA094.
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In 2011, the NTSB issued Safety Alert (SA) 016.\13\ The SA warned
operators that ``unmarked towers could interfere with low-flying
aircraft operations, including those involving helicopter emergency
medical services, law enforcement, animal damage control, fish and
wildlife, agriculture, and aerial fire suppression.'' In 2013, the NTSB
published a Safety Recommendation letter \14\ addressed to the FAA
Administrator, containing the following 2 recommendations:
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\13\ NTSB SA-016: The Hazards of Unmarked Towers (March 2011,
revised September 2018).
\14\ NTSB Safety Recommendation A-13-16 and A-13-17 (May 2013).
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<bullet> A-13-16: Amend part 77 to require that all meteorological
towers \15\ are registered, marked, and--where feasible--lighted; and,
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\15\ While the NTSB and others use the terms ``meteorological
evaluation tower'' or ``MET'', the FAA decided to use the term
``meteorological tower''. Meteorological tower is interchangeable
with either.
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<bullet> A-13-17: Create and maintain a publicly accessible
national database for the required registration of all meteorological
towers.
In 2014, the NTSB published a Special Investigation Report (SIR)
concerning the safety of agricultural aircraft operations.\16\ The SIR
focused, in part, on the impact of meteorological towers and guy wires,
which are cables designed for the support of towers or other
structures, on agricultural aircraft operations and reiterated NTSB
recommendations A-13-16 and A-13-17. The NTSB concluded that in some of
the accidents, the pilot was not previously aware of, and did not see,
the obstacle in time to avoid the collision because the obstacle was
not visually conspicuous. The report noted the multiple attention
demands for pilots engaged in agricultural operations. For instance,
pilots must operate the spray application per the instructions of the
particular applied substance while simultaneously maneuvering the
aircraft at low altitude. In other cases, the pilot knew about the
obstacle, having seen it in a previous pass, a survey flight, or during
a previous close call, but nevertheless misjudged the aircraft's
distance from, and collided with, the obstacle.
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\16\ NTSB/SIR-14/01.
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The NTSB concluded that these accidents show that obstacle
collision risk management requires a multi-faceted approach. In
addition to making meteorological towers more visually conspicuous, the
NTSB suggested pre-flight planning that would allow a pilot to learn of
any structures in the area of their planned operations to reduce the
risk of an obstacle collision. Pilots learn of obstacles from many
sources, including local residents, area maps (both paper and
electronic) that depict obstacles, and ground surveys. The SIR
concluded that additional meteorological tower collisions resulting in
loss of life would occur without requiring registration, marking, and
the creation of a publicly accessible national meteorological tower
database.
C. The 2011 Voluntary Meteorological Tower Marking Policy Statement
On January 5, 2011, in response to concerns from agricultural
operators over the safety risk of low-flying operations in remote and
rural areas and a November 16, 2010, meeting with representatives from
the National Agricultural Aviation Association (NAAA) to discuss
safety-specific concerns of the aerial application industry, the FAA
published a proposed policy statement that recommended voluntary
marking of meteorological towers under 200 feet AGL.\17\
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\17\ Marking Meteorological Evaluation Towers Proposed revision
to Advisory Circular; request for comments, 76 FR 490 (Jan. 5,
2011).
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The FAA published the final policy on June 24, 2011,\18\ and
included voluntary marking guidance in AC 70/7460-1L.\19\ The FAA
continues to modify its voluntary marking criteria in AC 70/7460-1.
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\18\ Marking Meteorological Evaluation Towers policy statement,
76 FR 36983 (Jun. 24, 2011).
\19\ AC 70-7460-1L, effective December 4, 2015.
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D. State Requirements Related to Marking of Meteorological Towers
In the absence of a nationwide requirement for marking
meteorological towers, at least sixteen states adopted meteorological
tower marking and notice requirements.\20\ As a result of individual
state requirements, marking and lighting requirements are inconsistent
across states and may conflict with FAA AC 70/7460-1 marking
requirements, which Congress mandated the FAA to adopt for marking
standards.
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\20\ As of January 2022, the FAA identified 16 states with
marking requirements applicable to meteorological towers:
California, Colorado, Idaho, Kansas, Michigan, Minnesota,
Mississippi, Missouri, Montana, Nebraska, North Dakota, Oklahoma,
South Dakota, Texas, Washington, and Wyoming.
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For example, Colorado \21\ requires that certain towers over 50
feet in height be marked and painted or otherwise constructed to be
visible in clean air during daylight hours from a distance of not less
than 2,000 feet. Colorado requires towers be painted in equal
alternating bands of aviation orange and white, beginning with orange
at the top of the tower. Additionally, Colorado also requires the
attachment of one marker ball to the top third of each outside guy wire
and that guy wires have seven-foot-long safety sleeves at each anchor
point that extend from the anchor point along each guy wire attached to
the anchor point.
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\21\ Colorado Revised Statutes 43-10-117.
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Additional states have similar requirements. Wyoming \22\
stipulates that any structure that meets the criteria must be marked in
a manner that makes the tower recognizable in clear air during daylight
hours from a distance of at least 2,000 feet. South Dakota's law \23\
mandates that any meteorological tower of 50 feet or more, including
the tower, guy wires, and accessory facilities, located outside the
boundaries of a municipality must be marked, painted, flagged, or
otherwise constructed to be recognizable in clear air during daylight
hours. While some similarities exist between these requirements, they
are not consistent with FAA AC 70/7460-1 and, considering Colorado's
[[Page 90632]]
requirements, are also inconsistent across three shared state lines.
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\22\ Wyo. Stat. Ann. Sec. 10-4-305.
\23\ SDCL Sec. 50-9-13.
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In addition to inconsistent marking requirements, state laws for
filing notice of existing, new, and dismantled meteorological towers
vary across state lines. Only five states require notice of current
meteorological towers, only nine require notice of planned construction
for new meteorological towers, and only six require notice of
dismantled meteorological towers. The notice requirements directed by
states are inconsistent with what the FAA proposes to standardize.
In response to the inconsistent state marking standards, the FAA
sent the National Association of State Aviation Officials (NASAO) a
letter in 2011.\24\ The letter reminded the association that the
Federal Government occupied the entire field of airspace management and
aviation safety, preempting state and local regulation related to the
marking and lighting of structures for aviation safety purposes. The
FAA is vested with plenary authority to regulate the use of the
airspace as necessary to ensure the safety of aircraft and the
efficient use of airspace.\25\
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\24\ FAA letter to NASAO (October 27, 2011).
\25\ 49 U.S.C. 40103(b) and 44718.
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E. Statutory Mandates
Section 2110 of FESSA, revised by section 576 of FAARA, requires
either the marking of covered towers as defined in section 2110, which
includes meteorological towers, consistent with AC 70/7460-1L or their
inclusion within a database, except for meteorological towers. Section
2110 requires all meteorological towers be marked and included in a
database. Congress also mandated that the database conform to
additional provisions to ensure data security and accuracy.
Section 355 of the FAA Reauthorization Act of 2024 requires that
the FAA publish an NPRM within one year of the date of enactment of the
2024 Act.
F. Industry Engagement
The NAAA expressed concerns to the FAA regarding the visibility of
meteorological towers less than 200 feet AGL not currently subject to
notice requirements, stating that these towers are particularly
hazardous to pilots of low-flying aircraft in remote and rural
areas.\26\ The NAAA referenced its 2019 survey \27\ and reported that
agricultural operators and pilots considered power lines, communication
towers, and meteorological towers as the top three occupational
hazards. Additionally, 52 percent of the respondents encountered a wind
turbine or an unmarked meteorological tower when making aerial
applications.
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\26\ NAAA Fact Sheet on the Dangerous Effects of Towers to Low-
Level Aviators (January 2020) and NAAA Facts About the Aerial
Application Industry (available at <a href="https://www.agaviation.org/industryfacts">https://www.agaviation.org/industryfacts</a>).
\27\ Per NAAA, 550 operators and 305 pilots responded to the
survey, available at <a href="http://www.agaviation.org">www.agaviation.org</a>.
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The NAAA continues to urge the FAA to expand tower marking guidance
to include all guy wire and freestanding towers more than 50 feet in
height. Further, NAAA asked the FAA to require tower marking and
lighting, if feasible.
G. The 2022 Airborne Wind Energy Systems Policy Statement
As noted previously, on December 7, 2011, the FAA published the
Notification for Airborne Wind Energy Systems (AWES) notice of policy
and request for information in the Federal Register.\28\ The 2011
notice established policy related to airborne wind energy systems. The
2011 notice also stated that given the altitudes in which airborne wind
energy systems can operate and their operating characteristics, the FAA
concluded that they should be studied and the potential impacts to the
navigable airspace must be identified and addressed.
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\28\ Notification for Airborne Wind Energy Systems (AWES) notice
of policy and request for information, 76 FR 76333 (Dec. 7, 2011).
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Accordingly, in the 2011 notice the FAA announced that the
provision of part 77 will apply to temporary airborne wind energy
systems proposals for data collection purposes. At that time, the FAA
found that it could apply the provisions of 14 CFR part 77 to these
``structures'' without the need to amend the regulations. The FAA
stated that permanent and operational airborne wind energy systems may
be addressed in the future, once further evaluations and risk
assessments are performed.
To facilitate the timely manner in which airborne wind energy
systems proposals were reviewed, the FAA, in the 2011 proposal,
requested airborne wind energy systems developers and operators to
limit temporary operations to the following:
(1) Airborne operations of airborne wind energy systems should be
temporary in nature for testing and data collection purposes only;
(2) Single airborne wind energy system devices only (e.g., no
``farms'' or multiple simultaneous testing);
(3) Airborne wind energy systems should be limited to a single
fixed location (e.g., no mobile ground facilities);
(4) Testing is confined to heights at or below 499 feet AGL;
(5) Airborne flight testing of airborne wind energy systems will
only occur during daylight hours; and,
(6) Airborne wind energy systems will be made conspicuous to the
flying public.
The FAA sought comments on revising its policy regarding the
application of 14 CFR part 77 to airborne wind energy systems. In
addition, the notice requested information from airborne wind energy
system developers and the public related to these systems so that the
FAA could comprehensively analyze the airborne wind energy systems and
their integration into the NAS.
On December 23, 2022, the FAA published the Airborne Wind Energy
(AWES) Policy Statement in the Federal Register in response to the 2011
statement.\29\ The 2022 policy summarized and discussed the comments
received in response to the 2011 notice. In the 2022 policy statement,
the FAA amended the policy set forth in the 2011 notice and stated it
will consider part 77 applications for all airborne wind energy
systems, including permanent and operational systems. Those entities
proposing construction of an AWES that exceeds the parameters in Sec.
77.9 (e.g., an airborne wind energy system constructed at more than 200
feet AGL at its site) must file advance notice with the FAA.
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\29\ Airborne wind Energy System (AWES) Policy Statement, 87 FR
78849 (Dec. 23, 2022).
---------------------------------------------------------------------------
III. The Proposed Rule
A. Requirements Related to Meteorological Towers
1. Definition of Meteorological Tower (Sec. 77.3)
The FAA proposes to define a meteorological tower in Sec. 77.3 as
``a skeletal or pole-type structure, either freestanding or anchored
with guy wires, configured with components to measure wind speed and
wind direction at different heights above ground level to assess local
wind energy resources.'' The proposed definition incorporates skeletal
or pole-type structures, common elements of meteorological towers.
There are single tower masts, self-supporting antenna towers, guyed
telescopic towers, or telescopic un-guyed towers that can rapidly
deploy to heights more than 100 feet AGL. There are also stand-alone
towers that do not
[[Page 90633]]
use guy wires, all of which are covered by this definition.
The definition encompasses permanent and temporary meteorological
towers, freestanding meteorological towers, and meteorological towers
with guy wires due to the see and avoid safety risks they each pose.
Under this proposed definition, the FAA would identify where these
towers are located, publish the locations in a database, and have them
marked where appropriate in an effort to increase safety at lower
altitudes. Temporary towers can be erected in a matter of hours,
creating an unexpected safety risk for pilots, even for those familiar
with the area. The FAA is including meteorological towers with guy
wires, which are freestanding structures with a tensioned cable
designed to add stability because, depending upon the materials used,
the guy wires may be difficult to see in certain atmospheric
conditions.
2. Notice Requirements for Proposed or Altered Meteorological Towers
With the Highest Point of the Structure at Least 50 Feet AGL Up to and
Including 200 Feet AGL at Its Site (Sec. Sec. 77.7, 77.9(a)(2))
Consistent with current practice, the FAA would require a sponsor
of a meteorological tower with the highest point of the structure at
least 50 feet AGL up to and including 200 feet AGL at its site to file
notice pursuant to Sec. 77.7 before the start of construction or
alteration or the date of application for a construction permit for any
new meteorological tower, whichever is earlier.\30\ Specifically, the
sponsor would be required to electronically complete and submit FAA
Form 7460-1, Notice of Proposed Construction or Alteration, or FAA Form
7460-2, Notice of Actual Construction or Alteration, via the internet
at <a href="https://oeaaa.faa.gov">https://oeaaa.faa.gov</a>. Except under limited circumstances, a sponsor
required to provide notice would be required to submit FAA Form 7460-1
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 earlier.
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\30\ Sec. 77.7(a) and (b).
---------------------------------------------------------------------------
The FAA proposes to add a new paragraph (a)(2) to Sec. 77.9 to
require notice of the construction or alteration of meteorological
towers with the highest point of the structure at least 50 feet AGL up
to and including 200 feet AGL at its site in order to allow for the
tower's inclusion within the FAA's publicly available database;
additional study of the structure pursuant to part 77; and the marking
of those towers.
The FAA would also add a new Sec. 77.5(d) to make clear that a
sponsor proposing any construction or alteration of a meteorological
tower with the highest point of the structure at least 50 feet AGL up
to and including 200 feet AGL at its site must provide adequate notice
to the FAA of that construction or alteration pursuant to Sec.
77.7(b).
If the FAA does not receive a notice, it cannot study the structure
or include it in the FAA's public (DOF) database.\31\ If the FAA does
not include in its DOF database a meteorological tower with the highest
point of the structure at least 50 feet AGL up to and including 200
feet AGL at its site, operators of low-flying aircraft, including
agricultural operators or first responders, may not be aware of the
locations of the same. This proposal would direct sponsors to file
notice and provide detailed information concerning meteorological
towers with the highest point of the structure at least 50 feet AGL up
to and including 200 feet AGL at its site. Filing notice would enable
the FAA to provide this information to the public via a publicly
available database. Pilots of agricultural and other low-flying
aircraft operators (e.g., emergency medical services aircraft,
firefighting aircraft, utility patrol and maintenance aircraft, fish
and wildlife service aircraft, aerial survey aircraft, and military
aircraft) would have the ability to obtain this information for
preflight planning purposes pursuant to Sec. 91.103, which requires
each pilot in command to become familiar with all available information
concerning that flight.
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\31\ The FAA may include some structures or obstacles on
aeronautical charts. In cases where a structure is charted and noted
in the FAA database, pilots are responsible for entering the
relevant location information in their navigation system. Although
Global Positioning System (GPS) equipment is not required by the FAA
for visual flight rules (VFR) flight, the FAA believes that most
agricultural operators equipped their aircraft with GPS, based on a
2019 NAAA industry survey. This survey also showed that 99% of
respondents reported that they use a GPS device for swath guidance.
A GPS display can also show the pilot the aircraft's location when
the spray was turned on or off and can enable the marking of
boundaries, obstacles, and other user-defined inputs.
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While markings are critical features that assist pilots of low-
flying aircraft to see obstacles in their flightpath, the FAA concludes
it is crucial to provide a database of known obstacles for pilots to
use during flight planning to increase pilots' situational awareness.
Given the number of competing elements for pilot attention during low-
altitude flight, whether during routine operations or when experiencing
an in-flight anomaly or emergency with limited time to respond safely,
a database providing the accurate locations of meteorological towers
with the highest point of the structure at least 50 feet AGL up to and
including 200 feet AGL at its site may reduce the risk of collision
accidents to low-flying aircraft. To include meteorological towers in
the database for public and pilot awareness, sponsors must file notice
with the FAA. Therefore, the FAA determined it is appropriate to
propose to amend the current provisions of part 77 to require all
sponsors of newly constructed and altered meteorological towers with
the highest point of the structure at least 50 feet AGL up to and
including 200 feet AGL at its site to file advance notice with the FAA
on a mandatory basis.
Expanding the existing notice requirement to include existing
meteorological towers with the highest point of the structure at least
50 feet AGL up to and including 200 feet AGL at its site would also
enable the FAA to conduct an aeronautical study. The FAA may issue a
part 77 determination. If the FAA issues a determination, pursuant to
Sec. 77.12, the FAA would only issue recommended conditions and
limitations.
The FAA is proposing notice of meteorological towers with the
highest point of the structure at least 50 feet AGL up to and including
200 feet AGL at its site. The FAA considered proposing to require
notice of a meteorological tower at any height but determined that such
a proposal would be unnecessarily broad based on accident data specific
to meteorological towers. The FAA excluded towers under 50 feet AGL
from this rulemaking as the risk of inadvertent collision is minimal
due to the low number of operations that occur at those altitudes.
Outside of takeoff and landing as well as crop dusting, few operations
occur below 50 feet AGL. Finally, from the data provided by the NTSB,
none of the accidents they investigated occurred below 50 feet AGL.
3. Notice Requirements for Existing Meteorological Towers Constructed
With the Highest Point of the Structure at Least 50 Feet AGL Up to and
Including 200 Feet AGL at Its Site (Sec. Sec. 77.7(d) and 77.9(b))
Existing meteorological towers with a height at or below 200 feet
AGL generally do not meet notice criteria in Sec. 77.9 unless they
exceed an imaginary surface or are constructed on an airport under
current Sec. 77.9(b) and (d).\32\ The
[[Page 90634]]
FAA proposes amending Sec. 77.7 by adding paragraph (d) and adding
Sec. 77.9(b), requiring sponsors of existing meteorological towers
with the highest point of the structure at least 50 feet AGL up to and
including 200 feet AGL at its site to file notice with the FAA within
90 days of the effective date of a final rule. As proposed in Sec.
77.7(d), sponsors would be required to complete and submit notice of
existing towers electronically via the internet at <a href="https://oeaaa.faa.gov">https://oeaaa.faa.gov</a> using FAA Form 7460-1.
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\32\ Some sponsors of meteorological towers with a height less
than 200 feet AGL submitted voluntary notifications to the FAA.
Because these structures do not meet or exceed the current
notification requirements in part 77, the FAA issued a Determination
of No Hazard without any marking and/or lighting conditions.
However, the FAA encourages sponsors to voluntarily comply with
marking and lighting standards in FAA AC 70/7460-1.
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The FAA intends to require the sponsors of any existing
meteorological tower, whether in use or not but still standing, to
provide the FAA notice of its existence. The FAA determined that
existing meteorological towers at the same heights will continue to
pose an undue risk to low-flying aircraft unless sponsors file notice
with the FAA or dismantle the tower. Upon receiving a notice as
proposed, the FAA would create a public record of the meteorological
tower in the DOF database, detailing the tower's location, height, and
marking or lighting. This database inclusion would ensure availability
of the most current information available for pilots to use in
preflight planning.
The FAA considers 90 days as a reasonable time for industry to file
notice of existing meteorological towers because it will allow for
sponsors to dismantle any temporary towers and for the sponsors to
gather information. The purpose of requiring existing towers to file is
to ensure inclusion of these towers in the FAA's publicly available
database as soon as practicable.
The proposed amendment would also subject existing meteorological
towers to the provisions in subparts C and D of part 77, such as the
requirement to notify the FAA when the structure is abandoned or
dismantled in accordance with current Sec. 77.11 (proposed Sec.
77.10). Including these subparts would ensure the FAA's ability to
remove the structure from its database when supplemental notice is
received by the FAA, thereby increasing the accuracy of information
provided to the public.
The FAA also proposes to revise Sec. 77.5(e) to make clear that
the FAA would use the notice provided by a sponsor to evaluate the
effect of a meteorological tower in existence before the effective date
of a final rule on safety in air commerce and the efficient use and
preservation of the navigable airspace and of airport traffic capacity
at public use airports. The notice would also be used by the FAA to
determine whether the effect of a meteorological tower in existence
before the effective date of a final rule is a hazard to air
navigation. The FAA will study these notices, and the FAA may issue a
part 77 determination. If the FAA issues a determination, pursuant to
Sec. 77.12, the FAA would only issue recommended conditions and
limitations.
Amending part 77 to require notice from sponsors of existing
meteorological towers constructed at least 50 feet AGL up to and
including 200 feet AGL at their sites, regardless of location, would
reduce the potential collision risk with unmarked meteorological towers
or their guy wires for pilots of low-flying VFR aircraft. If the FAA
adopts the proposed amendment, a pilot or operator would be able to
search the FAA's public database, access meteorological tower pertinent
information for preflight planning purposes, and input the information
into their GPS system (if equipped) to provide additional situational
awareness of the tower while airborne.
With this data, agricultural and other low-flying aircraft
operators could better manage the risk associated with potential
obstacle collisions by exercising pre-flight planning procedures. For
that reason, it is particularly important that pilots engaged in low-
flying aircraft operations routinely check the FAA's public DOF
database for use during pre-flight planning to confirm existing
structures or identify new structures where they plan to operate. The
FAA urges pilots to use GPS systems to track all obstructions contained
in the database. Similarly, the FAA recommends that pilots incorporate
obstacle analysis tasks into preflight planning to identify obstacles
before conducting survey flights of the area. In fact, the NTSB noted
that ``pilots involved in collision accidents in 2013 reported that
they performed survey flights but did not see the obstacles that the
aircraft eventually hit.'' \33\
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\33\ NTSB/SIR-14/01.
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B. Partial Implementation of the FESSA
1. Meteorological Towers
The FAA proposes to partially implement section 2110 of FESSA, as
amended by section 576 of FAARA of 2018. Section 2110 requires the FAA
to have all ``covered towers'' marked consistent with applicable
guidance in the advisory circular of the FAA issued December 4, 2015
(AC 70/7460-IL) or entered into a database (meteorological towers must
be marked and entered into a database). Congress defined a covered
tower as a meteorological tower, self-standing tower, or tower
supported by guy wires and ground anchors with the highest point of the
structure at least 50 feet AGL up to and including 200 feet AGL at its
site that meet certain criteria. The FAA is not proposing to require
all self-standing towers or all towers supported by guy wires and
ground anchors with the highest point of the structure at least 50 feet
AGL up to and including 200 feet AGL at its site to be marked or be
included in a database. The data from the NTSB show that very few
accidents involve self-standing towers or towers supported by wires and
ground anchors with the highest point of the structure at least 50 feet
AGL up to and including 200 feet AGL at its site that do not also
involve a meteorological tower or a tower that supports electric
utility transmission or distribution lines, the latter of which section
2110 excludes. Due to the minimal number of accidents involving towers
not excluded by section 2110, the FAA is proposing to limit the tower
marking and database requirements to meteorological towers.
Section 2110 sets forth criteria that narrows which towers are
considered covered towers. Specifically, Congress stated that a tower
should be captured if it meets the following:
<bullet> Is 10 feet or less in diameter at the above ground base,
excluding concrete footing;
<bullet> Has accessory facilities on which an antenna, sensor,
camera, meteorological instrument, or other equipment is mounted; and,
<bullet> Is located on land that is in a rural area and used for
agricultural purposes or immediately adjacent to such land.
The FAA captures these towers but, because the NTSB data
demonstrated the majority of the incidents involved meteorological
towers regardless of equipment, diameter, or location, expanded its
definition to include meteorological towers of all sizes, equipage, and
location.
Section 2110 also sets forth those towers that are not considered
covered towers. NTSB data demonstrated that the majority of the
incidents involved meteorological towers regardless of equipment,
diameter, or location. As such, in order to improve safety, the FAA is
not proposing to adopt the following exclusions:
<bullet> Is adjacent to a house, barn, electric utility station, or
other building;
<bullet> Is within the curtilage of a farmstead or adjacent to
another building or visible structure; or,
[[Page 90635]]
<bullet> Is located within the right-of-way of a rail carrier,
including within the boundaries of a rail yard, and is used for a
railroad purpose.
The FAA is also proposing to not include the following exclusion
for towers:
<bullet> Has already mitigated any hazard to aviation safety in
accordance with FAA guidance or as otherwise approved by the FAA
Administrator.
Congress mandated that meteorological towers be entered into a
database as well as marked. As supported by NTSB data, the entry into a
database via notice to the FAA would ensure aircraft operators are
aware in advance of the location of the towers. As such, the FAA is not
proposing to exclude these towers if they are independently marked or
if the FAA receives notice of a tower to enable inclusion within the
FAA's database. Moreover, the FAA wants the opportunity to study each
tower and to assess the proper marking and potential lighting
requirements. The FAA also wants to be kept abreast of any changes.
Without covering these meteorological towers, the FAA will not be able
to make an independent assessment about what terms and conditions
should apply to ensure safety and the sponsor would not be subject to
the ongoing obligations to update the FAA.
This proposal also would not implement section 2110's requirement
that sponsors mark meteorological towers that exist at the time of the
final rule's effective date. The FAA would require that sponsors of
existing meteorological towers file notice with the FAA within 90 days
of the effective date of a final rule using FAA Form 7460-1. These
notices would enable the FAA to study those towers. Existing
meteorological towers at least 50 feet AGL up to and including 200 feet
AGL are required to file notice with the FAA within 90 days of the
effective date of a final rule. The FAA will study these notices, and
the FAA may issue a part 77 determination. If the FAA issues a
determination, pursuant to Sec. 77.12, the FAA would only issue
recommended conditions and limitations. If a sponsor alters an existing
tower, the FAA proposes to then impose marking requirements. The FAA is
not proposing to impose retroactive marking requirements as existing
towers would already be in the DOF to alert aircraft operators of their
presence, sponsors will have marking recommendations, and sponsors will
be required to mark a tower if the tower is altered or file notice when
dismantling a tower so the FAA may remove it from the DOF database.
Finally, in the interest of safety, the FAA is not including section
2110's exclusion and waiver provisions in this proposal due to the need
for all meteorological towers at least 50 feet AGL up to and including
200 feet AGL at their sites to be studied and added to the DOF.
The FAA proposes to implement only those provisions of section 2110
applicable to meteorological towers supported by safety data and
aviation accidents involving meteorological towers with the highest
point of the structure below 201 feet AGL. However, this limitation
does not address the risk to the larger population of low-flying
aircraft operators identified by NTSB that the FAA seeks to mitigate
with this proposal, including the risk to helicopter emergency medical
services, law enforcement, animal damage control, fish and wildlife
surveys, and aerial fire suppression.\34\ The FAA agrees with NTSB that
the demonstrated risk to low-flying aviation, as a whole, posed by
unmarked meteorological towers justifies requiring notice of
meteorological towers regardless of location.\35\ The proposal also
partially addresses NTSB's 2013 safety recommendations A-13-16 and A-
13-17, issued in 2013. In sum, it would provide the FAA with
information that will improve the safety of low-flying aircraft.
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\34\ <a href="https://www.ntsb.gov/safety/safety-recs/RecLetters/A-13-016-017.pdf">https://www.ntsb.gov/safety/safety-recs/RecLetters/A-13-016-017.pdf</a>.
\35\ NTSB accident number SEA04LA027 (December 15, 2003):
Accident when an aircraft operating for personal flight collided
with an unmarked meteorological tower (164 feet AGL).
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Newly filed proposed and altered meteorological towers with the
highest point of the structure at least 50 feet AGL up to and including
200 feet AGL at their sites would be subject to the marking
requirement. Meteorological towers can come from the manufacturer
painted, reducing the burden of painting the structure after delivery.
Dismantling an existing tower to paint it would be costly, considering
the average deployment of one to three years. Regardless of marking,
the existing towers would be included in the database.
2. Database
The FAA plans to partially implement section 2110's database
requirement without making regulatory changes beyond those already
discussed. Section 2110 requires the FAA to develop or utilize an
existing database that contains the location and height of covered
towers and to keep the database current to the extent practicable. The
agency also must ensure that any proprietary information in the
database is protected from disclosure in accordance with law. In
addition, the FAA Administrator must ensure that, by virtue of
accessing the database, users agree and acknowledge that information in
the database may only be used for aviation safety purposes and may not
be disclosed for purposes other than aviation safety, regardless of
whether or not the information is marked or labeled as proprietary or
with a similar designation. Further, the section directs the FAA to
ensure that tower information in the database is de-identified and that
the information only includes the location, height, and presence of guy
wires. The FAA must ensure the information in the dataset is encrypted
at rest and in transit and is protected from unauthorized access and
acquisition. Additionally, the FAA must ensure registration of towers,
database inclusion of proposed towers before construction, and database
availability for pilots who intend to conduct low-altitude operations
so they may consult the database before flight operations. Lastly,
section 2110 states that the database must be available for use within
1 year of the effective date of the rule. The FAA plans to use the
existing OE/AAA system to partially implement section 2110's database
requirement. The FAA would include any structure filing notice under
current regulations, those giving notice pursuant to proposed changes
applicable to meteorological towers with the highest point of the
structure at least 50 feet AGL up to and including 200 feet AGL at its
site, and wind turbines in the database.
The existing OE/AAA system meets section 2110's general intent to
make information concerning structures that may pose a hazard to
aviation available to the flying public. The available data includes
structure type, location, latitude, longitude, height, elevation,
marking, lighting, and proximity to the nearest town and airport. The
information available on the OE/AAA website \36\ depicts accurate
information received from filed notices of proposed structures that
require issuance of an FAA determination.\37\
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\36\ <a href="https://oeaaa.faa.gov">https://oeaaa.faa.gov</a>.
\37\ The FAA conducts studies on more than 100,000 structures
annually. However, the database is limited to those structures
located in close proximity to a public-use airport.
---------------------------------------------------------------------------
Although pilots can search for known meteorological towers on the
OE/AAA website without having a user account, any interested party can
register for, and establish, a user account. Once registered, the
interested party can subscribe to receive email notifications
[[Page 90636]]
when the FAA receives a request for obstacle construction or
modification within a geographic area defined by the user. The OE/AAA
website also provides a tool that allows a user to find all obstacles
of notice received within a user-defined radius from a location. Source
information for this tool comes from a combination of the notices of
proposed construction or alteration submitted to the FAA's Obstruction
Evaluation Group and the DOF.\38\
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\38\ <a href="http://www.faa.gov/air_traffic/flight_info/aeronav/digital_products/dof">www.faa.gov/air_traffic/flight_info/aeronav/digital_products/dof</a>.
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Consistent with section 2110, the FAA would update the system to
include meteorological towers and create an ability to search for known
meteorological towers via the FAA's public OE/AAA website. This update
would allow pilots to obtain a list of meteorological towers by
location (e.g., state) from the FAA's database. As proposed, filers
would also be required to notify the FAA if the structure is dismantled
or abandoned \39\ to enable the FAA to update its database. In
addition, the FAA would add disclaimers to the site consistent with
section 2110 to reflect the limits on the use of the available
information for aviation safety purposes, and that the information may
not be disclosed for purposes other than aviation safety, regardless of
whether the information is marked or labeled as proprietary or with a
similar designation. The FAA intends to modify the OE/AAA system to
coincide with the effective date of the final rule.
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\39\ The FAA considers a structure dismantled when it is taken
down and abandoned when a proposed structure is not built.
---------------------------------------------------------------------------
The FAA would maintain and update the existing OE/AAA system to
meet the objectives of section 2110. This would fully address NTSB 2013
safety recommendation A-13-17. Section 2110's requirement to ensure
pilots conducting low-altitude operations consult the relevant parts of
the database is outside the scope of this rulemaking and falls under 14
CFR part 91. The FAA recommends that pilots use the DOF database to
obtain the most up-to-date information prior to flight.
3. Exclusion and Waiver Authorities
Section 2110 authorizes the FAA administrator to exclude a class,
category, or type of tower that is determined to not pose a hazard to
aviation safety after public notice and comment. It also directs the
FAA to establish a process to waive specific towers from marking
requirements if the agency determines the tower does not pose a hazard
to aviation safety. Section 2110 requires the Administrator to consider
specific factors that may mitigate risk and to consider excluding
towers located in a state that has enacted tower marking requirements.
As explained earlier, the FAA is limiting this proposal to those towers
for which it has accident data to support the regulation. In this case,
the proposal applies to meteorological towers with the highest point of
the structure at least 50 feet AGL up to and including 200 feet AGL at
its site. Because the agency determined the expanded definition of a
covered tower would include those that do not pose a hazard to aviation
safety given the FAA has no accident data involving these structures,
the FAA would exclude other structures (a self-standing tower or tower
supported by guy wires and ground anchors) meeting the section 2110
definition of a covered tower.
Section 2110 requires the Administrator to consider specific
factors that may mitigate risk and to consider excluding towers located
in a state that has enacted tower marking requirements. As explained
above, the FAA issued a letter reiterating that the Federal Government
occupies the entire field of airspace management and aviation safety,
preempting state and local regulation related to the marking and
lighting of structures for aviation safety purposes. The FAA is vested
with plenary authority to regulate the use of the airspace as necessary
to ensure the safety of aircraft and the efficient use of airspace.
C. Wind Energy Systems
1. Definition of Wind Energy System and Airborne Wind Energy System
(Sec. 77.3)
The FAA proposes to define a wind energy system in Sec. 77.3 to
mean ``structures that convert kinetic energy in the wind to electrical
energy. A wind energy system may consist of a single structure or a
group of structures.'' This definition is inclusive of all wind energy
systems (e.g., airborne wind energy systems (AWES) or wind turbines
generally composed of a horizontal turbine nacelle, mounted on a fixed
vertical structure or tower or AWES). This definition would provide
additional clarity and context for the proposed changes directed
exclusively at wind energy systems.
Further, the FAA proposes to define ``airborne wind energy system
(AWES)'' in Sec. 77.3, consistent with the FAA's 2022 final notice of
policy.\40\ AWES would mean a structure, which consists of a self-
supported airborne system tethered to a ground station, with an
airborne or ground-mounted drivetrain used to convert kinetic energy in
the wind to mechanical power for the purpose of generating electricity.
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\40\ Airborne Wind Energy Systems (AWES) Policy Statement, 87 FR
78849 (Dec. 23, 2022).
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2. Proposal for 90-Day Advance Notice of Construction or Alteration of
Wind Energy Systems (Sec. 77.7(c))
Currently, a sponsor must submit notice 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 earlier.
The FAA proposes to add Sec. 77.7(c) requiring sponsors to submit
notice of the proposed construction or alteration of a wind energy
system with a proposed height greater than 200 feet AGL at least 90
days before the start date of the proposed construction or alteration,
or the date an application for construction or alteration permit is
filed, whichever is earlier. The FAA would redesignate the provisions
currently codified in Sec. Sec. 77.7(c) and (d) as Sec. Sec.
77.7(b)(1) and (2), respectively. As part of this proposal, the FAA
would clarify that a meteorological tower is associated with a wind
energy system when it is included in a wind energy systems project and
is intended to be permanent. A meteorological tower is permanent when
it is intended to remain in place for the duration of its lifecycle.
Due to the unique physical characteristics of wind energy systems,
specifically wind turbine structures, their potential impact to
communication, air navigation, and surveillance systems as well as the
increasing number of proposals requiring an aeronautical study, the FAA
requires additional time to conduct studies of wind turbines and
determine potential NAS impacts. This proposal would realistically
represent the time it currently takes the FAA to study these complex
structures. Provided with a more realistic representation of the
obstruction evaluation processes duration, sponsors can better plan
their projects.
Wind energy system proposals are significantly more complex than
other traditional structures, such as buildings, and more frequently
require an in-depth study to analyze their potential effects on air
navigation facilities and equipment. The FAA OE/AAA metrics confirm the
duration of aeronautical studies for proposed wind turbines exceeds
those for other structure types due to air traffic, communication, air
navigation, and surveillance (e.g., radar) considerations. While the
FAA has made considerable progress in identifying mitigation solutions
[[Page 90637]]
required to issue a Determination of No Hazard to Air Navigation for
proposed wind turbines, the current 45-day notice requirement in Sec.
77.7(b) does not allow the FAA adequate time to gather the data and
model potential impacts of proposed wind turbine(s) on NAS air
navigation facilities and equipment. Additionally, 45 days does not
adequately represent the time required to work with the sponsor and
identify mitigations necessary to complete the study.
The number of new wind turbine proposals processed by the FAA has
increased substantially since the enactment of the Energy Policy Act of
2005 \41\ that provided the Wind Energy Production Tax Credit to
stimulate investment in wind energy. In 2004, the FAA received and
conducted 3,030 wind turbine aeronautical studies. Since then, the FAA
received an average of 21,148 wind turbine cases per year, with the
highest being 33,396 cases in 2010. According to the Department of
Energy's (DOE) 2015 Wind Vision Report,\42\ which expands upon its 2008
report titled 20% Wind Energy by 2030,\43\ DOE continues to target wind
energy as contributing to 20 percent of the U.S. electrical supply by
2030, compared to more than 4.5 percent at the time of publication. Per
DOE data, wind electricity generation accounts for 8.4 percent of the
total U.S. generation as of 2020.\44\ Hence, the FAA expects the demand
to evaluate proposed construction and altered wind energy systems will
continue and may increase.
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\41\ Public Law 109-58, 119 Stat. 594 (Aug. 8, 2005).
\42\ <a href="https://www.energy.gov/eere/wind/wind-vision">https://www.energy.gov/eere/wind/wind-vision</a>.
\43\ <a href="https://www.energy.gov/eere/wind/20-wind-energy-2030-increasing-wind-energys-contribution-us-electricity-supply">https://www.energy.gov/eere/wind/20-wind-energy-2030-increasing-wind-energys-contribution-us-electricity-supply</a>.
\44\ <a href="https://www.eia.gov/energyexplained/wind/electricity-generation-from-wind.php">https://www.eia.gov/energyexplained/wind/electricity-generation-from-wind.php</a>.
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Furthermore, the proposed timeline would allow the FAA to request
additional information from sponsors as needed for review per the
proposed Sec. 77.11 language. While sponsors of proposed wind turbines
would provide earlier notification prior to construction or alteration,
the FAA expects that the total time for review would remain the same as
it does today. The benefits from potentially reducing any delays in
construction would likely offset any costs associated with the sponsor
providing earlier notification. The FAA also proposes to amend current
Sec. 77.7(c) (proposed to be redesignated as Sec. 77.7(e)) by
clarifying that the 90-day advance notice requirement applicable to
wind turbines is also eligible for a waiver because of an emergency
involving essential public services, public health, or public safety.
3. Proposal for Extended Effectiveness Period for Wind Turbine
Determinations (Sec. 77.33(c))
The FAA proposes to amend Sec. 77.33 by extending the effective
period for a Determination of No Hazard involving wind turbines and any
associated meteorological tower from 18 to 36 months. The FAA would
redesignate the provision currently codified in Sec. 77.33(c) as Sec.
77.33(d).
Wind energy systems developers often file notice with the FAA years
before their target date to begin construction. They file early to
allow time to address environmental and other local land-use
requirements, secure financing, acquire materials, and complete tests
at proposed locations using meteorological towers to validate the
potential benefits of a particular location. As a result, wind turbine
project developers routinely ask the FAA for a one-time 18-month
extension of the Determination of No Hazard to Air Navigation in
accordance with the FAA regulations pursuant to Sec. 77.35(c).
However, even with an 18-month extension, the project may not be built
within that 3-year period, causing the developer to refile notice with
the FAA, essentially starting the process again. Extending the wind
turbine determination period from 18 to 36 months would allow industry
additional time to validate and begin projects.
Under the current Sec. 77.33(b), each Determination of No Hazard
to Air Navigation issued under part 77 expires 18 months after the
effective date of the determination, unless extended, revised, or
terminated. Due to the increasing size of individual wind turbines and
the number of wind turbines needed to accomplish renewable energy
goals, the duration to construct wind turbine farms can take
considerably more time to construct than single structures. The 18-
month effectiveness period is frequently insufficient to allow the
sponsor enough time to complete construction, even with a one-time
extension. In alignment with proposing to extend wind turbine
determination periods, the FAA also proposes to extend determination
periods for meteorological towers associated with a wind energy system
project from 18 to 36 months. A meteorological tower is associated with
a wind energy system when it is included in a wind energy systems
project and is intended to be permanent. A meteorological tower is
permanent when it is intended to remain in place for the duration of
its lifecycle.
D. Other Clarifications Related to the Filing of Notice (Sec. Sec.
77.10, 77.11, 77.27)
The FAA proposes to redesignate Sec. 77.11 as Sec. 77.10 and
amend it to identify the form, FAA Form 7460-2, Notice of Actual
Construction or Alteration, sponsors currently use to provide
supplemental notice. The revision also makes clear that a sponsor must
file supplemental notice if otherwise requested by the FAA.
The FAA proposes to add a new Sec. 77.11 to affirmatively require
that if the FAA requests additional information during any part of the
aeronautical study process, pre- or post- determination, the sponsor
must provide that information within 30 days. The FAA needs this
information to conduct complete aeronautical studies and issue accurate
determinations.
The FAA proposes to revise Sec. 77.27 to clarify when the FAA
would conduct an aeronautical study. Specifically, the FAA will conduct
an aeronautical study when: (1) notice required under Sec. 77.9 has
been received, or (2) the FAA determines a study is necessary. All
other notices filed by the public outside of these parameters, meaning
notice is neither requested by the FAA nor required under Sec. 77.9,
will be screened within the automated OE/AAA system and, if
appropriate, provided an electronic letter response that indicates that
no notice is required for the said proposal or alteration, and thus the
FAA has no objections to the proposal at this time. This process would
reduce the workload burden on the FAA and still provide the public with
documentation for local and state requirements at an accelerated rate.
E. General Changes
The FAA proposes to add Sec. 77.12 to formalize the FAA's
requirement for sponsors of structures, except for structures that have
received an FAA Determination of No Hazard to Air Navigation prior to
the effective date of a final rule or any meteorological tower with the
highest point of the structure at least 50 feet AGL up to and including
200 feet AGL at its site for which construction is complete prior to
the effective date of a final rule, to comply with the conditions and
limitations contained in a Determination of No Hazard to Air
Navigation. The FAA provides conditions and limitations, including
marking, in its determinations. Currently, the FAA recommends that
sponsors conform with the standards in the AC 70/7460-1. In this
rulemaking, the FAA is clarifying that the conditions and
[[Page 90638]]
limitations themselves are mandatory except for structures that have
received an FAA Determination of No Hazard to Air Navigation prior to
the effective date of a final rule or any meteorological tower with the
highest point of the structure at least 50 feet AGL up to and including
200 feet AGL at its site for which construction is complete prior to
the effective date of a final rule. This clarifying amendment is
necessary to eliminate safety risks that were identified as a result of
previous instances of non-compliance. Consistent application of marking
requirements ensures the pilot's ability to properly recognize the
obstructions and mitigate risk.
Each newly constructed or altered meteorological tower with the
highest point of the structure at least 50 feet AGL up to and including
200 feet AGL at its site would receive conditions and limitations that
include, at a minimum, marking requirements based upon AC 70/7460-1.
Under the current part 77, proposed structures that meet notice
criteria are subject to an FAA aeronautical study to assess potential
impacts on the NAS. When the FAA completes an aeronautical study and
issues a determination to the sponsor of a proposed or altered
structure, the determination would contain conditions and limitations
that include, at a minimum, marking requirements for meteorological
towers with the highest point of the structure at least 50 feet AGL up
to and including 200 feet AGL at its site.
Part 77 does not currently require marking unless recommended by an
aeronautical study. Current meteorological towers taller than 200 feet
AGL fall under the current regulatory scheme requiring notice, an
aeronautical study, and implementation of any FAA-specified risk-
mitigation measures. If adopted, the FAA's new rule would require the
marking of all proposed and altered meteorological towers with the
highest point of the structure at least 50 feet AGL up to and including
200 feet AGL at its site in accordance with AC 70/7460-1.
Meteorological towers can be erected in a matter of hours. As such, an
operator who is familiar with the terrain may unexpectedly encounter a
temporary structure. Moreover, depending on the materials used, a
meteorological tower may be difficult to see in certain atmospheric
conditions. The FAA determined that marking, such as painting towers,
adding marker balls or sleeves to guy wires, and, if warranted,
lighting new or altered meteorological towers would enhance their
conspicuity to pilots who operate at low altitudes, such as
agricultural operators, thereby reducing the likelihood of incidents
and accidents.
Moreover, although the states discussed in section III.D of this
preamble have notice and marking requirements similar in some aspects
to this FAA proposal, a NAS-wide application of standards will increase
aviation safety, especially for those pilots operating at lower
altitudes across state lines where meteorological tower standards may
be inconsistent. Consistency may reduce confusion and increase a
pilot's ability to see and avoid obstacles, either visually or with
onboard electronics, regardless of what state they are flying in. The
FAA proposed Sec. 77.32 to codify the existing process contained in
the AC 70/7460-1 for requesting modifications to the marking and
lighting conditions and limitations. The FAA is updating the process
for requesting a deviation by requiring a sponsor to submit FAA Form
7460-1 in the OE/AAA system for processing. The FAA is making this
change to standardize the approval process. The proposed Sec. 77.32
would codify this updated process. This change would be necessary if
the conditions and limitations become requirements as proposed in this
NPRM so that sponsors have a mechanism to seek changes to the
requirements after the issuance of a determination.
The FAA proposes to define ``sponsor'' in Sec. 77.3 as the owner
of a structure for which notice is required under part 77. This would
clarify the person that is required to provide the FAA with notice and
is responsible for meeting the requirements of this proposed rule. A
sponsor may allow a legally designated representative to fulfill the
notice or other part 77 requirements on their behalf; however, the FAA
must receive proper notice on the forms submitted to the FAA.
The FAA proposes to revise references to ``Airport/Facility
Directory, Alaska Supplement, or Pacific Chart Supplement'' to ``Chart
Supplement U.S., Chart Supplement Alaska, or Chart Supplement Pacific''
throughout part 77 for consistency with the publications' current name.
The FAA proposes to change all references throughout part 77 from
``marking and lighting recommendations'' to ``marking and lighting
requirements'' for consistency with proposed Sec. 77.12.
Throughout the sections proposed to be revised in this NPRM
(including Sec. Sec. Sec. 77.29(b), and 77.35(a) and (c)(1) through
(3)), the FAA proposes to change references from ``you'' to ``sponsor''
to clarify to whom ``you'' refers.
F. Proposed Effective Date
The FAA proposes to make these changes effective 30 days after the
final rule is published in the Federal Register. This rule would also
require sponsors of existing meteorological towers with the highest
point of the structure at least 50 feet AGL up to and including 200
feet AGL at its site to file notice within 90 days of the final rule's
effective date pursuant to Sec. 77.9.
IV. Agency Guidance
If this rule is finalized as proposed, the FAA would make changes
to FAA AC 70/7460-1 to reflect that all conditions and limitations in a
Determination of No Hazard to Air Navigation are mandatory pursuant to
Sec. 77.12, including marking requirements for meteorological towers
with the highest point of the structure at least 50 feet AGL up to and
including 200 feet AGL at its site, except for structures that have
received an FAA Determination of No Hazard to Air Navigation prior to
the effective date of a final rule or any meteorological tower with the
highest point of the structure at least 50 feet AGL up to and including
200 feet AGL at its site for which construction is complete prior to
the effective date of a final rule. FAA AC 70/7460-1 marking standards
would continue to be recommendations when not part of a determination.
The revised AC 70/7460-1 would direct sponsors to the most
effective marking standards identified by the agency unless the FAA
accepts an equally effective alternative. Revisions to AC 70/7460-1
would contain the most effective painting and marking approaches
identified by the FAA. For instance, meteorological towers would need
to use spherical markers or cable balls, sleeves, and the identified
painting scheme unless the sponsor presents an equally effective
alternative accepted by the FAA. The AC would direct sponsors of newly
proposed meteorological towers with the highest point of the structure
at least 50 feet AGL up to and including 200 feet AGL at its site to
comply with existing painting standards establishing color and pattern
requirements. The AC would also suggest placing a total of 8 high-
visibility aviation orange spherical markers or cable balls, 4 attached
to guy wires at the top of the tower no further than 15 feet from the
top wire connection and 4 at or below the mid-point of the structure on
the outer guy wires. The AC would also suggest the placement of two
high-visibility sleeves
[[Page 90639]]
on each guy wire, one as close to the anchor point as possible and a
second midway between the lower sleeve and the connection between wire
and tower. The guidance would explain that sponsors may present
alternate marking approaches should the FAA deem them equally
effective. A copy of the proposed revised AC has been placed in the
docket for this rulemaking. The FAA seeks comments on this draft
revised AC.
Finally, the FAA is updating the process for requesting a deviation
from the marking and lighting standards in the AC during this
rulemaking process.
V. Regulatory Notices and Analyses
Federal agencies consider impacts of regulatory actions under a
variety of executive orders and other requirements. First, Executive
Order 12866, Executive Order 13563, and Executive Order 14094
(``Modernizing Regulatory Review'') direct that each Federal agency
propose or adopt a regulation only upon a reasoned determination that
the benefits of the intended regulation justify the 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. 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 that may result in the
expenditure by State, local, and Tribal governments, in the aggregate,
or by the private sector, of $100,000,000 or more (adjusted annually
for inflation) in any one year. The current threshold after adjustment
for inflation is $183 million, using the most current (2023) Implicit
Price Deflator for the Gross Domestic Product. The FAA has provided a
detailed Regulatory Impact Analysis (RIA) in the docket for this
rulemaking. This portion of the preamble summarizes the FAA's analysis
of the economic impacts of this rule.
In conducting these analyses, the FAA has determined that this
rule: is not a ``significant regulatory action'' as defined in section
3(f)(1) of Executive Order 12866 as amended by Executive Order 14094;
may have a significant economic impact on a substantial number of small
entities; will not create unnecessary obstacles to the foreign commerce
of the United States; and will not impose an unfunded mandate on State,
local, or Tribal governments, or on the private sector.
A. Summary of the Regulatory Evaluation
Congress mandated that the FAA issue regulations to require marking
of covered towers and inclusion of covered towers in a public database.
The proposed rule would amend part 77 notice requirements as applicable
to the construction or alteration of meteorological towers and wind
turbines. The proposed rule responds to recommendations from the NTSB
and aerial applicator organizations concerning fatal collisions between
aerial applicators, private aircraft, and meteorological towers. The
proposed rule also includes amendments that would allow the FAA to
better study and determine potential impacts to the NAS from wind
turbines.
Consistent with the direction provided in section 2110 of FESSA,
the FAA proposes to add Sec. 77.12 to require sponsors of new
meteorological towers, constructed with the highest point of the
structure at least 50 feet AGL up to and including 200 feet AGL at its
site, to mark the towers in accordance with the determination except
for structures that have received an FAA Determination of No Hazard to
Air Navigation prior to the effective date of a final rule or any
meteorological tower with the highest point of the structure at least
50 feet AGL up to and including 200 feet AGL at its site for which
construction is complete prior the effective date of a final rule. The
FAA notes that the 2018 FAA Reauthorization Act requires the marking of
meteorological towers constructed within 18 months after the enactment
of the statutory mandate, or when the database is completed, whichever
is first. Therefore, in the proposed Sec. 77.12, the FAA proposes to
make the terms and conditions of a determination mandatory, which would
include, at a minimum, sponsors to mark new or altered towers by the
time construction is complete for meteorological towers with the
highest point of the structure at least 50 feet AGL up to and including
200 feet AGL at its site.
The primary costs of the proposed rule to industry would be the
costs to mark new and altered meteorological towers. The estimated
additional costs to mark new or altered towers is about $14,300. This
cost includes equipment costs for marker balls and sleeves and
installing them to new and altered towers, buying a new pre-painted
tower, and dismantling a tower. This also includes the cost to provide
the FAA notifications of both existing and dismantling of out-of-
service meteorological towers. The FAA would process notifications of
existing and new meteorological towers, including notifications of
dismantled out-of-service meteorological towers. Processing these
notifications would cost the FAA about $41 per existing notification
and about $163 per dismantling notification. The primary benefit of the
proposed rule would be enhanced conspicuity to prevent agricultural
pilots from colliding with meteorological towers with the highest point
of the structure at least 50 feet AGL up to and including 200 feet AGL
at its site.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) of 1980 (5 U.S.C. 601-612), as
amended by the Small Business Regulatory Enforcement Fairness Act of
1996 (Pub. L. 104-121) and the Small Business Jobs Act of 2010 (Pub. L.
111-240), requires Federal agencies to consider the effects of the
regulatory action on small business and other small entities and to
minimize any significant economic impact. The term ``small entities''
comprises small businesses, not-for-profit organizations that are
independently owned and operated and are not dominant in their fields,
and governmental jurisdictions with populations of less than 50,000.
The FAA is publishing this Initial Regulatory Flexibility Analysis
(IRFA) to aid the public in commenting on the potential impacts to
small entities from this proposal. The FAA invites interested parties
to submit data and information regarding the potential economic impact
that would result from the proposal. The FAA will consider comments
when making a determination or when completing a Final Regulatory
Flexibility Analysis.
Under Section 603(b) and (c) of the RFA, an IRFA must contain the
following:
(1) A description of the reasons why the action by the agency is
being considered;
(2) A succinct statement of the objective of, and legal basis for,
the proposed rule;
(3) A description of and, where feasible, an estimate of the number
of small entities to which the proposed rule will apply;
(4) A description of the projected reporting, recordkeeping, and
other compliance requirements of the proposed rule, including an
estimate of the classes of small entities that will be subject to the
requirement and the type
[[Page 90640]]
of professional skills necessary for preparation of the report or
record;
(5) An identification, to the extent practicable, of all relevant
Federal rules that may duplicate, overlap, or conflict with the
proposed rule; and
(6) A description of any significant alternatives to the proposed
rule that accomplish the stated objectives of applicable statutes and
which minimize any significant economic impact of the proposed rule on
small entities.
1. Reasons the Action Is Being Considered
This rulemaking proposes to amend part 77 as it applies to the
proposed construction or alteration of meteorological towers and wind
energy systems. The proposed changes applicable to meteorological
towers address safety recommendations from the NTSB and industry
recommendations.
This proposal also partially implements the statutory requirements
in section 2110 of FESSA. Specifically, the FAA proposes these
amendments applicable to meteorological towers:
<bullet> Extend notice requirements to the proposed construction or
alteration of meteorological towers with the highest point of the
structure at least 50 feet AGL up to and including 200 feet AGL at its
site. Sponsors would be required to file a notice of construction with
the FAA within the current timeframe in Sec. 77.7(b); \45\ and,
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\45\ Notice requirements for meteorological towers are necessary
to give effect to section 2110 that requires inclusion of all
meteorological towers in the FAA's public DOF database.
---------------------------------------------------------------------------
<bullet> Extend notice requirements to existing meteorological
towers at least 50 feet AGL up to and including 200 feet AGL at its
site. Sponsors would be required to file a notice with the FAA within
90 days of the final rule's effective date.
In addition, the FAA proposes the following amendments applicable
to wind energy systems to clarify and accurately reflect circumstances
unique to these structures:
<bullet> Require the earlier filing of notice for the proposed
construction or alteration of wind energy systems. Notice would be due
90 days before, as opposed to the current 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 earlier;
and
<bullet> Increase the duration of a Determination of No Hazard to
Air Navigation with regard to wind energy systems and associated
meteorological towers proposals from the current 18 months to 36
months.
Finally, this proposed rule would make additional non-substantive
changes to clarify agency practice as a result of the proposed
substantive changes. These changes would:
<bullet> Amend purpose in Sec. 77.1 to reflect that part 77 would
include requirements for marking proposed meteorological towers;
<bullet> Define ``airborne wind energy system (AWES)'' in Sec.
77.3 consistent with the FAA's 2022 final notice of policy. AWES would
mean a structure, which consists of a self-supported airborne system
tethered to a ground station, with an airborne or ground-mounted
drivetrain used to convert kinetic energy in the wind to mechanical
power for the purpose of generating electricity;
<bullet> Define ``sponsor'' in Sec. 77.3 as the owner of a
structure for which notice is required under part 77. This would
clarify the person that is required to provide the FAA with notice and
is responsible for meeting the requirements of part 77. A sponsor may
allow a legally designated representative to fulfill the notice or
other part 77 requirements on its behalf; however, the FAA must receive
proper notice on the forms submitted to the FAA.
<bullet> Redesignate Sec. 77.11 as Sec. 77.10 and clarify the
FAA's current practice with regard to supplemental notice. The proposed
amendment also identifies the form (FAA Form 7460-2, Notice of Actual
Construction or Alteration) sponsors currently use to provide
supplemental notice.
<bullet> Add Sec. 77.11 to require the sponsor to provide specific
data to the FAA after filing a notice of construction when the FAA
determines that additional information is necessary to properly
complete an aeronautical study.
<bullet> Add Sec. 77.12 to require all sponsors to comply with the
conditions and limitations contained in their determination except for
structures that have received an FAA Determination of No Hazard to Air
Navigation prior to the effective date of a final rule or any
meteorological tower with the highest point of the structure at least
50 feet AGL up to and including 200 feet AGL at its site for which
construction is complete prior to the effective date of a final rule.
This would require, at a minimum, proposed or altered meteorological
towers with the highest point of the structure at least 50 feet AGL up
to and including 200 feet AGL at its site to mark towers consistent
with the conditions and limitations of the determination.
<bullet> Add Sec. 77.32 to require sponsors to request a
modification from the marking and lighting requirements in a
determination to submit FAA Form 7460-1, Notice of Proposed
Construction or Alteration.
2. Objectives and Legal Basis of the Proposed Rule
The FAA's authority to issue rules on aviation safety is found in
49 U.S.C. Subtitle I, section 106 describes the authority of the FAA
Administrator. Subtitle VII, Aviation Programs, describes in more
detail the scope of the agency's authority.
This rulemaking is issued under the authority described in 49
U.S.C. 40103(b), which vests the administrator with broad authority to
prescribe regulations to ensure the safety of aircraft and the
efficient use of airspace, and 49 U.S.C. 44701(a)(5), which requires
the Administrator to promulgate regulations and minimum standards for
other practices, methods, and procedures necessary for safety in air
commerce and national security. This rulemaking is also consistent
with: the authority in 49 U.S.C. 44718(a), which directs the Secretary
of Transportation to require a person to give adequate public notice of
the construction, alteration, establishment, or expansion, or the
proposed construction, alteration, establishment, or expansion, of a
structure or sanitary landfill in furtherance of safety in air commerce
and the efficient use and preservation of the navigable airspace and of
airport traffic capacity at public-use airports; section 44718(b),
which requires the Secretary to conduct an aeronautical study to decide
the extent of any adverse impact on the safe and efficient use of the
airspace, space navigation facilities, or equipment 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; and
section 44718(c), which requires that in carrying out laws related to a
broadcast application and conducting an aeronautical study related to
broadcast towers, the FAA Administrator and the FCC shall take action
necessary to coordinate efficiently the receipt and consideration of,
and action on, the application; and the completion of any associated
aeronautical study. These proposed amendments to part 77, applicable to
the construction or alteration of meteorological towers and wind energy
systems, are within the scope of this authority.
Authority for this rulemaking is further derived from the FAA
Reauthorization Act of 2018, section 576, which revised section 2110 of
the
[[Page 90641]]
FAA Extension, Safety, and Security Act of 2016. Section 2110 requires
that the FAA issue regulations to require the marking of meteorological
towers. Moreover, section 2110 requires that all covered towers
constructed on or after the date on which such regulations take effect
be marked or included in the database. Further, the section requires
the marking of meteorological towers and their inclusion within an FAA
database. Section 2110 also directs the FAA to ``develop a database
that contains the location and height of each covered tower [including
meteorological towers];'' keep the database current to the extent
practicable; and ensure that any proprietary information in the
database is protected from disclosure in accordance with the law. This
section also requires that by virtue of accessing the database, users
agree and acknowledge that information in the database may only be used
for aviation safety purposes and may not be disclosed for purposes
other than aviation safety, regardless of whether the information is
marked or labeled as proprietary or with a similar designation.
Publication of this NPRM also satisfies the requirements in 355 of the
FAA Reauthorization Act of 2024, which requires the FAA to publish this
notice of proposed rulemaking within one year of the date of enactment
of the 2024 Act.
3. Description and Estimate of the Number of Small Entities
The FAA used the definition of small entities in the RFA for this
analysis. The RFA defines small entities as small businesses, small
governmental jurisdictions, or small organizations. In 5 U.S.C. 601(3),
the RFA defines ``small business'' to have the same meaning as ``small
business concern'' under section 3 of the Small Business Act. The Small
Business Act authorizes the Small Business Administration (SBA) to
define ``small business'' by issuing regulations. SBA (2023) has
established size standards for various types of economic activities or
industries under the North American Industry Classification System
(NAICS).\46\ These size standards generally define small businesses
based on the number of employees or annual receipts. Note that the SBA
definition of a small business applies to the parent company and all
affiliates as a single entity.
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\46\ Small Business Administration (SBA). 2023. Table of Size
Standards. Effective March 17, 2023. <a href="https://www.sba.gov/document/support--table-size-standards">https://www.sba.gov/document/support--table-size-standards</a>.
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To identify small entities, the FAA first identified the primary
NAICS of the parent company and then used data from different sources
(e.g., company annual reports, Bureau of Transportation Statistics,
etc.) to determine whether the parent company meets the applicable size
standard. Businesses affected by this rule are classified using the
2022 NAICS \47\ under NAICS code 221115 ``Wind Electric Power
Generation.'' This industry comprises establishments primarily engaged
in operating wind electric power generation facilities. These
facilities use wind power to drive a turbine and produce electric
energy. The electric energy produced in these establishments is
provided to electric power transmission systems or electric power
distribution systems. The U.S. SBA defines entities in this industry as
``small''--those that employ fewer than 1,150 employees.\48\ With
limited information and incomplete data on employment sizes for each of
the affected meteorological tower operators, the FAA is uncertain as to
how many entities would meet the SBA's small-entity criteria.
Furthermore, the FAA is uncertain as to how the burden associated with
the proposed rule would be distributed across meteorological tower
companies. The FAA requests comments and data on the average annual
sales revenues for the affected small businesses and to what extent the
costs would impact these entities.
---------------------------------------------------------------------------
\47\ North American Industry Classification System (NAICS) U.S.
Census Bureau <a href="https://www.census.gov/naics/?input=221115&year=2022&details=221115">https://www.census.gov/naics/?input=221115&year=2022&details=221115</a>.
\48\ <a href="https://www.sba.gov/sites/default/files/2023-06/Table%20of%20Size%20Standards_Effective%20March%2017%2C%202023%20%282%29.pdf">https://www.sba.gov/sites/default/files/2023-06/Table%20of%20Size%20Standards_Effective%20March%2017%2C%202023%20%282%29.pdf</a>.
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For purposes of this IRFA, the FAA assumes that the private sector
costs of this proposed rule would fall entirely on the sponsors of
meteorological towers. In the absence of data on annual receipts
specific to this industry, the FAA relies on the most recent data
available on average revenues for all businesses classified under NAICS
221115 ``Wind Electric Power Generation'' from the 2017 Census Bureau's
Statistics of U.S. Businesses (SUSB) \49\ to inform the analysis. The
data indicates 98 firms with 611 entities in this NAICS.
---------------------------------------------------------------------------
\49\ Available at: <a href="https://www.census.gov/data/tables/2017/econ/susb/2017-susb-annual.html">https://www.census.gov/data/tables/2017/econ/susb/2017-susb-annual.html</a>, retrieved on April 15, 2023.
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The proposed rule would affect sponsors, or legally designated
representatives, of any proposed meteorological tower, altered
meteorological tower, or existing meteorological tower if the highest
point of the structure is at least 50 feet AGL up to and including 200
feet AGL at its site. From 2021 to 2023, 39 states submitted 391
voluntary new filings for proposed meteorological towers at least 50
feet AGL up to and including 200 feet AGL at its site to the FAA.
In the absence of more financial data from small entities and the
profile of small entities, the FAA is unable to assess the proposed
rule's economic impact on them.
4. Projected Reporting, Recordkeeping, and Other Compliance
Requirements
In absence of more detailed data on small entities, it is difficult
to estimate the number of meteorological towers they own. The FAA
assumes that small entities own about two to five meteorological towers
per entity. The below estimates the paperwork burden cost to file a
notice with the FAA. The FAA estimates a sponsor of a new
meteorological tower would incur $14,301 in additional costs per new
tower due to the proposed rule.
New meteorological towers would have to be painted and marked. It
likely is more economical to purchase a pre-painted meteorological
tower, about an additional $2,800, instead of painting a non-marked
tower. Eight marker balls costing about $2,000 and eight sleeves
costing about $101 would have to be installed as part of the marking
requirements.\50\ The FAA assumes the installation cost per tower for
the marker ball and sleeves to take four hours and cost $390.\51\ Based
on the industry's experience, the FAA expects minimal additional labor
cost for sponsors of new meteorological towers to comply with the
proposed rule's marking requirement, because marker balls and sleeves
could be attached to the guy wires before raising the new
meteorological tower as opposed to incurring costs to lower, mark, and
raise the meteorological tower. The FAA estimates that it would take
two contractors about two hours to attach marker balls and sleeves to
the new meteorological tower. The total hourly compensation per
contractor is $97.62.\52\
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\50\ Cost estimates based on a call with NRG Systems on 4/1/
2023.
\51\ Labor cost to install marker balls/sleeves = (T x W), where
T is the total time it would take for contractors to install marker
balls and sleeves (T=4 hours); and W is the hourly wage rate for a
contractor (W=$97.62).
\52\ The hourly wage rate ($63.50) was provided by National
Association of Tower Erectors (NATE) on 11/1/2017 and updated with
the GDP deflator from 2017 to 2022, 18.8%. U.S. Bureau of Economic
Analysis, ``Table 1.1.7. Percent Change From Preceding Period in
Prices for Gross Domestic Product'' (accessed on 2/7/2024). The
benefit rate of 29.4% was also added to estimate the fully loaded
hourly wage rate. <a href="https://www.bls.gov/news.release/archives/ecec_12152023.pdf">https://www.bls.gov/news.release/archives/ecec_12152023.pdf</a>, accessed on 1/29/2024.
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[[Page 90642]]
The cost to dismantle a meteorological tower is between $5,000 and
$22,500. The FAA estimates the most likely cost would be around
$9,000.\53\ Sponsors of out-of-service meteorological towers would
choose to dismantle them because the recurring costs to comply with the
proposed rule outweigh the costs to dismantle them.
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\53\ Cost estimate based on a conference call with NATE on 11/1/
2017.
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Under Sec. 77.9, the proposed rule would require sponsors of both
existing and proposed construction and altered meteorological towers
with the highest point of the structure at least 50 feet AGL up to and
including 200 feet AGL at its site to file notice with the FAA. In
addition, Sec. 77.11 would also require sponsors to file FAA Form
7460-2 after dismantling meteorological towers.
To comply with these requirements, an office worker would complete
the submission of information required for the FAA aeronautical study,
provided they have all the relevant meteorological tower data and the
management has all the critical data on the meteorological tower(s).
The FAA estimates the fully loaded hourly average wage rate for an
office worker to be $28.34.\54\
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\54\ Fully loaded Hourly Wage Rate = hourly wage rate + (benefit
rate x hourly wage rate). U.S. Bureau of Labor Statistics: Office
and Administrative Support Occupations, $21.90 mean hourly wage
rate, <a href="https://www.bls.gov/oes/2022/may/oes_nat.htm#43-0000">https://www.bls.gov/oes/2022/may/oes_nat.htm#43-0000</a>, accessed
on 4/10/2023. 29.4% benefit rate: <a href="https://www.bls.gov/news.release/archives/ecec_12152023.pdf">https://www.bls.gov/news.release/archives/ecec_12152023.pdf</a>, accessed on 1/29/2024.
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Respondents: The FAA is unable to estimate the number of existing
meteorological towers and the annual number of new meteorological
towers with the highest point of the structure at least 50 feet AGL up
to and including 200 feet AGL at its site due to the lack of federal
regulations governing these meteorological towers.
Frequency: Sponsors of all existing meteorological towers with the
highest point of the structure at least 50 feet AGL up to and including
200 feet AGL at its site would have to file notice to the FAA 90 days
after the effective date of a final rule. In addition, sponsors would
submit another notice to the FAA whenever they propose to construct or
alter meteorological towers. When sponsors decide to dismantle a
meteorological tower, the proposed rule would require them to file FAA
Form 7460-2.
Annual Burden Estimate: The FAA estimates that it would take a
sponsor of a meteorological tower with the highest point of the
structure at least 50 feet AGL up to and including 200 feet AGL at its
site 0.25 hours (or 15 minutes) to file FAA Form 7460-1 electronically.
Similarly, FAA Form 7460-2 would take about 0.1 hours (6 minutes) to
file notice electronically. The FAA estimates that it would cost about
$7 to file Form 7460-1 ($28.34 x 0.25 hours) and $3 to file Form 7460-2
($28.34 x 0.10 hours).
5. All Federal Rules That May Duplicate, Overlap, or Conflict
There are no Federal rules that may duplicate, overlap, or conflict
with the proposed rule.
6. Significant Alternatives Considered
To comply with the proposed rule, the impacted small entities would
have to incur a small cost to file notices with the FAA. The FAA found
no other alternatives that could meet the objectives of the proposed
rule with less burden on these small entities.
C. 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 rule and determined that it will
only have a domestic impact and, therefore, no effect on international
trade.
D. Unfunded Mandates Assessment
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538)
governs the issuance of Federal regulations that require unfunded
mandates. An unfunded mandate is a regulation that requires a State,
local, or tribal government or the private sector to incur direct costs
without the Federal government having first provided the funds to pay
those costs. The FAA determined that the proposed rule will not result
in the expenditure of $183 million or more by State, local, or Tribal
governments, in the aggregate, or the private sector, in any one year.
E. 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.
The FAA routinely renews its ongoing information collection under OMB
Control Number 2120-0001 and intends to continue to collect notice
information via the OMB-approved FAA Forms 7460-1 and 7460-2, which are
the instruments of the information collection.
Under Sec. 77.9, the proposed rule would require owners of both
existing and proposed construction and altered meteorological towers
with the highest point of the structure at least 50 feet AGL up to and
including 200 feet AGL at its site to file notice with the FAA using
Form 7460-1. In addition, Sec. 77.10 would also require owners to file
FAA Form 7460-2 after dismantling meteorological towers.
To comply with these requirements, an office worker would complete
the submission of information required for the FAA aeronautical study,
provided they have all the relevant meteorological tower data and the
management has all the critical data on the meteorological tower(s).
The FAA estimates the fully loaded hourly average wage rate for an
office worker to be $28.34.\55\
---------------------------------------------------------------------------
\55\ Fully loaded Hourly Wage Rate = hourly wage rate + (benefit
rate x hourly wage rate). U.S. Bureau of Labor Statistics: Office
and Administrative Support Occupations, $21.90 mean hourly wage
rate, <a href="https://www.bls.gov/oes/2022/may/oes_nat.htm#43-0000">https://www.bls.gov/oes/2022/may/oes_nat.htm#43-0000</a>, accessed
on 4/10/2023. 29.4% benefit rate: <a href="https://www.bls.gov/news.release/archives/ecec_12152023.pdf">https://www.bls.gov/news.release/archives/ecec_12152023.pdf</a>, accessed on 1/29/2024.
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Respondents: The FAA cannot estimate the additional number of
existing meteorological towers and the annual number of new
meteorological towers with the highest point of the structure at least
50 feet AGL up to and including 200 feet AGL at its site due to the
lack of federal regulations governing these meteorological towers.
Frequency: Sponsors of existing all meteorological towers with the
highest point of the structure at least 50 feet AGL up to and including
200 feet AGL
[[Page 90643]]
at its site would have to file notice to the FAA 90 days after the
effective date of a final rule. In addition, sponsors would submit
another notice to the FAA whenever they propose to construct or alter a
meteorological tower. When sponsors decide to dismantle a
meteorological tower, the proposed rule would require them to file FAA
Form 7460-2.
Annual Burden Estimate: The FAA estimates that it would take a
sponsor of a meteorological tower with the highest point of the
structure at least 50 feet AGL up to and including 200 feet AGL at its
site 0.25 hours (or 15 minutes) to file a notice electronically.
Similarly, FAA Form 7460-2 would take about 0.1 hours (6 minutes) to
file notice electronically. The FAA estimates that it would cost about
$7 to file Form 7460-1 ($28.34 x 0.25 hours) and $3 to file Form 7460-2
($28.34 x 0.10 hours).
The FAA is soliciting comments to--
(1) Evaluate whether the proposed information requirement is
necessary for the proper performance of the functions of the FAA,
including whether the information will have practical utility;
(2) Evaluate the accuracy of the FAA's estimate of the burden;
(3) Enhance the quality, utility, and clarity of the information to
be collected; and
(4) Minimize the burden of collecting information on those who are
to respond, including by using appropriate automated, electronic,
mechanical, or other technological collection techniques or other forms
of information technology.
Individuals and organizations may send comments on the information
collection requirement to the address listed in the ADDRESSES section
at the beginning of this preamble by January 17, 2025. Comments also
should be submitted to the Office of Management and Budget, Office of
Information and Regulatory Affairs, Attention: Desk Officer for FAA,
New Executive Office Building, Room 10202, 725 17th Street NW,
Washington, DC 20053.
F. International Compatibility and Cooperation
In keeping with U.S. obligations under the Convention on
International Civil Aviation, it is FAA policy to conform to
International Civil Aviation Organization (ICAO) Standards and
Recommended Practices to the maximum extent practicable. The FAA
determined that there are no ICAO Standards and Recommended Practices
that correspond to these regulations.
G. Environmental Analysis
FAA Order 1050.1F 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 determined
this rulemaking action qualifies for a categorical exclusion per
paragraph 5-6.6f for regulations and involves no extraordinary
circumstances.
VI. Executive Order Determinations
A. Executive Order 13132, Federalism
The FAA analyzed this proposed rule under the principles and
criteria of Executive Order 13132, Federalism. The agency determined
that this action would 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, would not have Federalism
implications.
B. Executive Order 13211, Regulations That Significantly Affect Energy
Supply, Distribution, or Use
The FAA analyzed this proposed rule under Executive Order 13211,
Actions Concerning Regulations that Significantly Affect Energy Supply,
Distribution, or Use. The agency determined that this action would not
be a ``significant energy action'' under the executive order and would
not be likely to have a significant adverse effect on the supply,
distribution, or use of energy.
C. Executive Order 13609, International Cooperation
Executive Order 13609, Promoting International Regulatory
Cooperation, promotes international regulatory cooperation to meet
shared challenges involving health, safety, labor, security,
environmental, and other issues and to reduce, eliminate, or prevent
unnecessary differences in regulatory requirements. The FAA analyzed
this proposed rule under the policies and agency responsibilities under
the executive order and determined that this action would have no
effect on international regulatory cooperation.
VII. Additional Information
A. Comments Invited
The FAA invites interested persons to participate in this
rulemaking by submitting written comments, data, or views. The FAA also
invites comments relating to the economic, environmental, energy, or
federalism impacts that might result from adopting the proposals in
this document. The most helpful comments reference a specific portion
of the proposal, explain the reason for any recommended change, and
include supporting data. To ensure the docket does not contain
duplicate comments, commenters should submit only one time if comments
are filed electronically, or commenters should send only one copy of
written comments if comments are filed in writing.
The FAA will file in the docket all comments it receives, as well
as a report summarizing each substantive public contact with FAA
personnel concerning this proposed rulemaking. Before acting on this
proposal, the FAA will consider all comments it receives on or before
the closing date for comments. The FAA will consider comments filed
after the comment period has closed if it is possible to do so without
incurring expense or delay. The FAA may change this proposal in light
of the comments it receives.
Privacy: In accordance with 5 U.S.C. 553(c), DOT solicits comments
from the public to better inform its rulemaking process. DOT posts
these comments, without edit, including any personal information the
commenter provides, to <a href="https://www.regulations.gov">https://www.regulations.gov</a>, as described in the
system of records notice (DOT/ALL-14 FDMS), which can be reviewed at
<a href="https://www.dot.gov/privacy">https://www.dot.gov/privacy</a>.
B. Confidential Business Information
Confidential Business Information (CBI) is commercial or financial
information that is both customarily and actually treated as private by
its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552),
CBI is exempt from public disclosure. If your comments responsive to
this NPRM contain commercial or financial information that is
customarily treated as private, that you actually treat as private, and
that is relevant or responsive to this NPRM, it is important that you
clearly designate the submitted comments as CBI. Please mark each page
of your submission containing CBI as ``PROPIN.'' The FAA will treat
such marked submissions as confidential under the FOIA, and they will
not be placed in the public docket of this NPRM. Submissions containing
CBI should be sent to the person in the FOR FURTHER INFORMATION CONTACT
section of this document. Any commentary that the FAA receives that is
not specifically designated as CBI will be placed in the public docket
for this rulemaking.
[[Page 90644]]
C. Electronic Access and Filing
A copy of this NPRM, all comments received, any final rule, and all
background material may be viewed online at <a href="https://www.regulations.gov">https://www.regulations.gov</a>
using the docket number listed above. A copy of this proposed rule will
be placed in the docket. Electronic retrieval help and guidelines are
available on the website. It is available 24 hours each day, 365 days
each year. An electronic copy of this document may also be downloaded
from the Office of the Federal Register's website at <a href="https://www.federalregister.gov">https://www.federalregister.gov</a> and the Government Publishing Office's website
at <a href="https://www.govinfo.gov">https://www.govinfo.gov</a>. A copy may also be found on the FAA's
Regulations and Policies website at <a href="https://www.faa.gov/regulations_policies">https://www.faa.gov/regulations_policies</a>.
Copies may also be obtained 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) 267-9677.
Commenters must identify the docket or notice number of this
rulemaking.
All documents the FAA considered in developing this proposed rule,
including economic analyses and technical reports, may be accessed in
the electronic docket for this rulemaking.
List of Subjects in 14 CFR Part 77
Aeronautical study, Air Navigation, Airspace, Aviation safety,
Construction or Alteration, Determination, Notice, Obstruction,
Reporting and recordkeeping requirements.
The Proposed Amendment
In consideration of the foregoing, the Federal Aviation
Administration proposes to amend chapter I of title 14, Code of Federal
Regulations as follows:
PART 77--SAFE, EFFICIENT USE, AND PRESERVATION OF THE NAVIGABLE
AIRSPACE
0
1. The authority citation for part 77 is revised to read as follows:
Authority: 49 U.S.C. 106(f), 40103, 40113-40114, 44502, 44701,
44718, 46101-46102, 46104; Sec. 2110 of Pub. L. 114-190, 130 Stat.
623 (49 U.S.C. 44718 note); Sec. 576 of Pub. L. 115-254, 132 Stat.
3391 (49 U.S.C. 44718 note); Sec. 355 of Pub. L 118-63.
0
2. Revise Sec. 77.1 to read as follows:
Sec. 77.1 Purpose.
This part establishes:
(a) The requirements to provide notice to the FAA of the proposed
construction, alteration, or existence of certain structures;
(b) The standards used to determine obstructions to air navigation
and navigational and communication facilities or equipment;
(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;
(d) The process to petition the FAA for discretionary review of
determinations, revisions, and extensions of determinations; and
(e) The requirement to comply with the conditions and limitations
contained in a Determination of No Hazard to Air Navigation, including
the requirement to mark newly constructed or altered meteorological
towers with the highest point of the structure at least 50 feet AGL up
to and including 200 feet AGL at its site.
0
3. Amend Sec. 77.3 by adding definitions for ``airborne wind energy
system (AWES),'' ``meteorological tower,'' ``sponsor,'' and ``wind
energy system'' in alphabetical order to read as follows:
Sec. 77.3 Definitions.
* * * * *
Airborne wind energy system (AWES) means a structure, which
consists of a self-supported airborne system tethered to a ground
station, with an airborne or ground-mounted drivetrain used to convert
kinetic energy in the wind to mechanical power for the purpose of
generating electricity.
Meteorological tower means a skeletal or pole-type structure,
either freestanding or anchored with guy wires, configured with
components to measure wind speed and wind direction at different
heights above ground level to assess local wind energy resources.
* * * * *
Sponsor means the owner of a structure for which notice is required
under this part.
* * * * *
Wind energy system means a structure that converts kinetic energy
in the wind to electrical energy. A wind energy system may consist of a
single structure or a group of structures.
0
4. Revise the heading of subpart B to read as follows:
Subpart B--Notice and Determination Requirements
0
5. Revise Sec. 77.5 to read as follows:
Sec. 77.5 Applicability.
(a) A sponsor of a meteorological tower in existence before the
effective date of a final rule must provide notice consistent with
Sec. 77.7(d).
(b) A sponsor proposing any construction or alteration described in
Sec. 77.9 must provide adequate notice to the FAA of that construction
or alteration.
(c) If requested by the FAA, a sponsor must file supplemental
notice before the start date and upon completion of certain
construction or alterations described in Sec. 77.9.
(d) A sponsor proposing any construction or alteration of a
meteorological tower with the highest point of the structure at least
50 feet AGL up to and including 200 feet AGL at its site must provide
adequate notice to the FAA of that construction or alteration pursuant
to Sec. 77.7(b).
(e) 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 requirements using
FAA Advisory Circular 70/7460-1, Obstruction Marking and Lighting.
(4) Determine other appropriate measures required for continued
safety of air navigation;
(5) Notify the aviation community of the construction or alteration
of objects that affect the navigable airspace, including the revision
of charts, when necessary;
(6) Evaluate the effect of a meteorological tower in existence
before the effective date of a final rule on safety in air commerce and
the efficient use and preservation of the navigable airspace and of
airport traffic capacity at public use airports; and
(7) Determine whether the effect of a meteorological tower in
existence before the effective date of a final rule is a hazard to air
navigation.
0
6. Revise Sec. 77.7 to read as follows:
Sec. 77.7 Form and time of notice.
(a) Forms. The sponsor must electronically complete and submit FAA
Form 7460-1, Notice of Proposed Construction or Alteration, or FAA Form
7460-2, Notice of Actual Construction or Alteration, via the internet
at <a href="https://oeaaa.faa.gov">https://oeaaa.faa.gov</a>.
(b) 45-day notice. Except as provided in paragraphs (c), (d), or
(e) of this section, a sponsor required to provide notice under Sec.
77.9 must submit FAA Form 7460-1 at least 45 days before the start date
of the proposed construction or alteration, or the date an application
[[Page 90645]]
for a construction permit is filed, whichever is earlier.
(1) If a sponsor proposes construction or alteration that is also
subject to the licensing requirements of the Federal Communications
Commission (FCC), the sponsor must submit notice to the FAA on or
before the date that the application is filed with the FCC.
(2) If a sponsor proposes construction or alteration to an existing
structure that exceeds 2,000 feet in height AGL, the FAA presumes it to
be a hazard to air navigation that results in an inefficient use of
airspace. The sponsor 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.
(c) Wind energy system notice. A sponsor must submit FAA Form 7460-
1 for any proposed construction or alteration of a permanent wind
energy system and associated meteorological tower at least 90 days
before the start date of the proposed construction or alteration, or
the date an application for a construction permit is filed, whichever
is earlier. A meteorological tower is associated with a wind energy
system when it is included in a wind energy systems project and is
intended to be permanent. A meteorological tower is permanent when it
is intended to remain in place for the duration of its lifecycle.
(d) Existing meteorological tower notice. A sponsor of a
meteorological tower that exists prior to the effective date of a final
rule with the highest point of the structure at least 50 feet AGL up to
and including 200 feet AGL at its site must submit FAA Form 7460-1
within 90 days of the effective date of a final rule.
(e) Waiver. The applicable notice requirement is waived if
immediate construction or alteration is required because of an
emergency involving essential public services, public health, or public
safety. The sponsor may provide notice to the FAA by any available,
expeditious means. The sponsor must file a completed FAA Form 7460-1
within 5 days of the initial notice to the FAA.
0
7. Revise Sec. 77.9 to read as follows:
Sec. 77.9 Notice requirement.
(a) If requested by the FAA, or if the sponsor proposes any of the
following types of construction or alteration, a sponsor must file
notice with the FAA of:
(1) Any construction or alteration of a structure that is more than
200 feet AGL at its site.
(2) Any construction or alteration of a meteorological tower with
the highest point of the structure at least 50 feet AGL up to and
including 200 feet AGL at its site.
(3) Any construction or alteration that exceeds an imaginary
surface extending outward and upward at any of the following slopes:
(i) 100 to 1 for a horizontal distance of 20,000 feet 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
feet in actual length, excluding heliports.
(ii) 50 to 1 for a horizontal distance of 10,000 feet 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 feet in actual length, excluding heliports.
(iii) 25 to 1 for a horizontal distance of 5,000 feet from the
nearest point of the nearest landing and takeoff area of each heliport
described in paragraph (d) of this section.
(4) 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 paragraphs (a)(1)
through (3) of this section.
(5) Any construction or alteration on any of the following airports
and heliports:
(i) A public use airport listed in the Chart Supplement U.S., Chart
Supplement Alaska, or Chart Supplement Pacific of the U.S. Government
Flight Information Publications;
(ii) A military airport under construction, or an airport under
construction that will be available for public use;
(iii) An airport operated by a Federal agency or the DOD; or
(iv) An airport or heliport with at least one FAA-approved
instrument approach procedure.
(b) If a sponsor has an existing meteorological tower with the
highest point of the structure at least 50 feet AGL up to and including
200 feet AGL at its site prior to the effective date of a final rule,
the sponsor must file notice consistent with Sec. 77.7(d).
(c) No notice is required of the 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 [Redesignated as Sec. 77.10]
0
8. Redesignate Sec. 77.11 as Sec. 77.10.
0
9. Revise newly redesignated Sec. 77.10 to read as follows:
Sec. 77.10 Supplemental notice requirements.
(a) A sponsor must file supplemental notice when requested by the
FAA:
(1) Before the start of construction or alteration;
(2) After completing actual construction or alteration;
(3) If the proposed construction or alteration is abandoned within
five days after the project is abandoned;
(4) If the construction or alteration is dismantled or destroyed,
the sponsor must submit notice to the FAA within five days after the
construction or alteration is dismantled or destroyed; or
(5) If otherwise requested by the FAA.
(b) The sponsor must submit the supplemental information using FAA
Form 7460-2, Notice of Actual Construction or Alteration, to be
received within the time limits specified in the FAA determination. If
no time limit has been specified, the sponsor must submit the
supplemental notice of construction to the FAA within five days after
the structure reaches its greatest height.
0
10. Add new Sec. 77.11 to read as follows:
Sec. 77.11 Additional information.
If the FAA requests additional information during any part of the
aeronautical study process, pre- or post-
[[Page 90646]]
any determination, the sponsor must provide that information within 30
days.
0
11. Add Sec. 77.12 to read as follows:
Sec. 77.12 Conditions and limitations requirements.
Except for structures that have received an FAA Determination of No
Hazard to Air Navigation prior to the effective date of a final rule or
any meteorological tower with the highest point of the structure at
least 50 feet AGL up to and including 200 feet AGL at its site for
which construction is complete prior to the effective date of a final
rule, a sponsor must comply with the conditions and limitations
contained in its Determination of No Hazard to Air Navigation.
0
12. Amend Sec. 77.15 by revising paragraph (e)(1) to read as follows:
Sec. 77.15 Scope.
* * * * *
(e) * * *
(1) Available for public use and is listed in the Chart Supplement
U.S., Chart Supplement Alaska, or Chart Supplement Pacific of the U.S.
Government Flight Information Publications; or
* * * * *
0
13. Revise Sec. 77.27 to read as follows:
Sec. 77.27 Initiation of studies.
The FAA will conduct an aeronautical study when:
(a) Notice is required under Sec. 77.9 and has been received; or
(b) The FAA determines a study is necessary. All other Notices
filed by the public outside of these parameters will be screened within
the automated OE/AAA system and, if appropriate, provided an electronic
letter response that indicates that no notice is required for the said
proposal or alteration, and thus the FAA has no objections to the
proposal at this time.
0
14. Amend Sec. 77.29 by revising paragraph (b) to read as follows:
Sec. 77.29 Evaluating aeronautical effect.
* * * * *
(b) If a sponsor withdraws the proposed construction or alteration
or revises 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.
0
15. Amend Sec. 77.31 by revising paragraph (d)(4) to read as follows:
Sec. 77.31 Determinations.
* * * * *
(d) * * *
(4) Marking and lighting requirements, as appropriate.
* * * * *
0
16. Add Sec. 77.32 to read as follows:
Sec. 77.32 Marking and lighting requirements.
A sponsor may request a modification or deviation from the marking
and lighting requirements in a determination by submitting FAA Form
7460-1, Notice of Proposed Construction or Alteration.
0
17. Revise Sec. 77.33 to read as follows:
Sec. 77.33 Effective period of determinations.
(a) The effective date of a determination not subject to
discretionary review under Sec. 77.37(b) is the date of issuance. The
effective date of all other determinations for a proposed or existing
structure is 40 days from the date of issuance, provided a valid
petition for review has not been received by the FAA. If a valid
petition for review is filed, the determination will not become final
pending disposition of the petition.
(b) Except as provided in paragraphs (c) and (d) of this section,
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) Unless extended, revised, or terminated, each Determination of
No Hazard to Air Navigation issued under this subpart regarding a
proposed permanent wind energy system, including an airborne wind
energy system and associated meteorological towers, expires 36 months
after the effective date of the determination or on the date the
proposed construction or alteration is abandoned, whichever is earlier.
A meteorological tower is associated with a wind energy system when it
is included in a wind energy systems project and is intended to be
permanent. A meteorological tower is permanent when it is intended to
remain in place for the duration of its lifecycle.
(d) A Determination of Hazard to Air Navigation has no expiration
date.
0
18. Amend Sec. 77.35 by revising the introductory text of paragraph
(a), and paragraphs (c)(1) through (3) to read as follows:
Sec. 77.35 Extensions, terminations, revisions, and corrections.
(a) A sponsor may petition the FAA to revise or reconsider the
determination based on new facts or to extend the effective period of
the determination, provided that:
* * * * *
(c) * * *
(1) The sponsor submits evidence that an application for a
construction permit/license was filed with the FCC for the associated
site within six months of issuance of the determination; and
(2) The sponsor submits 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 a
sponsor needs to extend the original FCC completion date, they must
also request an extension of the FAA determination.
* * * * *
0
19. Revise Sec. 77.37 to read as follows:
Sec. 77.37 General.
(a) A petition for a discretionary review of a determination,
revision, or extension of a determination issued by the FAA may be made
by:
(1) The sponsor;
(2) Any person that provided a substantive aeronautical comment on
a proposal in an aeronautical study;
(3) Any person that provided a substantive aeronautical comment on
the proposal but was not given an opportunity to state it.
(b) A petition for discretionary review for a Determination of No
Hazard that is issued for a temporary structure, marking and lighting
requirements, or when a proposed structure or alteration does not
exceed obstruction standards contained in subpart C of this part may
not be filed by any person.
Issued under authority provided by 49 U.S.C. 106(f), 44701(a)(5)
and 44718 in Washington, DC.
Alyce Hood-Fleming,
Vice President, Mission Support Services, Air Traffic Organization.
[FR Doc. 2024-26741 Filed 11-15-24; 8:45 am]
BILLING CODE 4910-13-P
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.