January 2011 News

Beginning January 18, 2011 the changes to FAR Part 77 will become effective. These changes vary from minor to significant.

New FAR Part 77 Discussion and Airspace OMS Changes

January’s data and software release has incorporated several new advancements in the Airspace^® software. Below you will find our discussion of the new changes to FAR Part 77 and the new advancements incorporated into the Airspace^® software.

Previous Notice Criteria were established under paragraph 77.13.This paragraph has been deleted and replaced with 77.9. It is essentially the same except for the deletion of the requirements under 77.13(a)(4) which stated:

“When requested by the FAA, any construction or alteration that would be in an instrument approach area (defined in the FAA standards governing instrument approach procedures) and available information indicates it might exceed a standard if subpart C of this part.”

This was designed for the sponsor or representative to call the FAA and provide information on where the project would be built, and the FAA would then respond as to whether notice would be required or not. With the advent of “on-line” filing and automation, this area gravitated to a new notice trapezoid that resembled a RNAV (GPS) procedure area. There was no accommodation for offset procedures such as a VOR or NDB approach. The current Notice Criteria Tool (NCT) (as of 12/31/2010) seems to require notice at extreme range from an airport and an above ground level of only 1 foot.

The new Notice Criteria found under FAR Part 77.9 has changed significantly. The first sentence states: “If requested by the FAA, or if you propose any of the following types of construction or alteration, you must file notice with the FAA of:” The first 5 words, “If requested by the FAA” would appear to be, and are, more stringent. Several months ago, FA&A wrote a FOIA requesting the exact requirements of the FAA’s NCT. The reply we received said the FAA would need more time to respond. In the meantime we have researched the NCT and have determined that if your location is within 2 nautical miles of a VOR, VOR/DME, VORTAC or TACAN, any height over 1 foot AGL will require notice. In our opinion, this response is excessive as the max heights can be easily calculated. At other locations, the results from the NCT appear to be erratic.

We have rewritten our Airspace^® and TERPS^® software to reflect the changes in Title 14 CFR Part 77. We have added siting requirements for encroachment upon electronic air navigation facilities and have developed an accurate method to determine if a proposed location is within an offset instrument approach procedure area that is established by a VOR, VOR/DME, VORTAC, TACAN or NDB type air navigation facility. Our criteria is based upon actual instrument procedures and the area they cover. This method is only available in Airspace. Later versions of TERPS will graphically display these areas.

Other than the omission of 77.13(a)(4) requirements and the paragraph numbers, there are no other significant changes to the Notice Requirements between the old Part 77.13 and the new Part 77.9.

Obstruction Standards have moved from 77.23 to 77.17. Whereas the limit of 77.23(a)(1) and 77.23(a)(2) was 500 feet, the new limit is 499 feet. While 77.23(a)(2) extended 6 nautical miles from the center of the airport, the new distance in 77.17(a)(2) is 5.99 nautical miles. Heights within a terminal obstacle clearance area are still covered in 77.17(a)(3) and en route area are covered in 77.17(a)(4). Airspace^® will identify if you are located within these areas. The information is displayed in the Summary Report under Notice Requirements and Air Navigation Electronic Facilities. The criteria specified in 77.19, 77.21 and 77.23 are the same as 77.25, 77.28 and 77.29 in the previous document.

During the planning phases of a project, it is neither necessary nor advisable to visit the FAA’s OE/AAA website (http://oeaaa.faa.gov) and to enter site details in the Notice Criteria Tool (NCT) interface. This tool has known data inaccuracies and omissions, oftentimes requiring that notice of proposed construction or alteration (Form 7460-1) be filed with the FAA when, in fact, notice is not required, thereby delaying construction projects unnecessarily. Structures greater than 200’ AGL require filing per Title 14 CFR Part 77.13(a)(1) (which will become 77.9(a) beginning 18 January 2011).

It is very important to note that “Notice Criteria Surfaces” are not to be confused with “Obstruction Surfaces.” Under the current, expiring Part 77, 77.13(a)(4) required that Notice be filed with the FAA in the event that a proposed project was located within an “instrument approach area.” This area has been applied as a specific, calculable trapezoid extending from the end of all qualifying runways. As of 18 January 2011, however, this requirement will be removed from the language of Title 14 CFR Part 77.

The notice requirement previously encompassed by 77.13(a)(4) will be grouped with other unknown criteria under the provision of 77.9, which requires notice “when requested by the FAA.” The presence of this blanket statement in the new Part 77 is the primary reason that the NCT should not be employed to determine notice requirements for any structure. Once the NCT is engaged to evaluate a given set of coordinates for construction to a certain height AGL, the user is technically under the guidance of the FAA. As a software program with known errors and omissions, the NCT cannot be considered a singular and infallible method of determining FAA Notice Criteria.

Ambiguities in the reason for notice being required leave the developer open to unnecessary procedural delays. For sites at which filing requirements seem vague, it is best to perform an Airspace Point Study rather than to refer to the erroneous NCT. It is always advisable to review developments in the vicinity of a proposed project as a way to appraise trends in FAA determinations in the area. In instances in which FAA determinations seem inconsistent or calculations cannot be provided to substantiate determinations, comparative analysis of aeronautical studies in the surrounding area can aid in interpolating the airspace that the FAA is protecting.

A copy of the Federal Register/Vol. 75, No 139/Wednesday, July 21, 2010/Rules and Regulations is included with this information.

A PDF copy of Official FA&A’s 2011.1 Press Release can be downloaded here.

If you have any questions or concerns, please give our office a call at (321) 777-1266, or send us an email, airspace@airspaceusa.com, we would be happy to assist you.