Chapter 7. Determinations

Section 1. Issuing Determinations

7-1-1. POLICY

All known aeronautical facts revealed during the obstruction evaluation must be considered when issuing an official FAA determination. The determination must be a composite of all comments and findings received from interested FAA offices. Should there be a disagreement in the findings, the disagreement must be resolved before issuance of a determination. The basis for all determinations must be on the aeronautical study findings as to the extent of adverse physical or electromagnetic interference effect upon navigable airspace or air navigation facilities. Evidence of adverse effect alone, either physical or electromagnetic, is not sufficient justification for a determination of hazard. However, a finding of a substantial physical or electromagnetic adverse effect normally requires issuance of a determination of hazard.

7-1-2. RESPONSIBILITY

a. Air traffic is responsible for issuing determinations.

b. If any division objects to a structure that does not exceed Part 77, and/or is not found to have a physical or electromagnetic radiation effect on the operation of air navigation facilities, an advisory statement may be submitted to OEG for inclusion in the determination. Examples would be:

1. Objections identifying potential airport hazards based on airport design criteria such as a structure within the runway protection zone (RPZ).

2. Objections identifying potential airport hazards such as structures which may not be above ground level (e.g., landfills, retention ponds, and waste recycling areas) but may create an environment that attracts birds and other wildlife.

7-1-3. DETERMINATIONS

Determinations issued by the FAA receive widespread public distribution and review. Therefore, it is essential that each determination issued is consistent in form and content to the extent practicable. To facilitate this and to achieve economy in clerical handling, automated correspondence is available through the OE/AAA automation program and must be used in lieu of previously approved FAA forms. Determinations must be issued as follows:

a. Issue a “Does Not Exceed" (automated DNE letter) determination if the structure does not exceed obstruction standards, does not have substantial adverse physical or electromagnetic interference effect upon navigable airspace or air navigation facilities, and would not be a hazard to air navigation.

NOTE-
A determination indicating that No Notice is Required (NNR) is no longer authorized.

b. Issue an “Exceeds But Okay" (automated EBO letter) determination if the structure exceeds obstruction standards but does not result in a substantial adverse effect, circularization was not necessary, and meets one of the following conditions:

1. The structure is temporary;

2. The structure is existing; or

3. The structure involves an alteration with no physical increase in height or change of location such as a proposed decrease in height or proposed side mount.

NOTE-
The significant difference between an EBO determination and a “Determination of No Hazard to Air Navigation" (DNH) is that the EBO determination does not allow for petition rights.

c. Issue a “Notice of Presumed Hazard" (automated NPH letter) if the structure exceeds obstruction standards and/or has an adverse effect upon navigable airspace or air navigation facilities and resolution or further study is necessary to fully determine the extent of the adverse effect. The NPH facilitates negotiation and is useful in preserving navigable airspace. Normally, the FAA should not automatically initiate further study (including circularization) without a request to do so by the sponsor. The intent of the NPH is to inform the sponsor of the initial findings and to attempt resolution. If the sponsor fails to contact the FAA after receiving the notice, terminate the case. No further action by the FAA is required unless the sponsor re-files. If negotiation is successful, and resolution is achieved, or further study is completed, an appropriate subsequent determination should be issued.

d. Issue a “Determination of No Hazard" (DNH) if the structure exceeds obstruction standards but does not result in a substantial adverse effect.

e. Issue a “Determination of Hazard" (DOH) if the structure would have or has a substantial adverse effect; negotiations with the sponsor have been unsuccessful in eliminating the substantial adverse effect; and the affected aeronautical operations and/or procedures cannot be adjusted to accommodate the structure without resulting in a substantial adverse effect. The obstruction evaluation may or may not have been circularized.

7-1-4. DETERMINATION CONTENT AND OPTIONS

Use the following items, as appropriate, to ensure that the necessary information is included in each determination:

a. All no hazard determinations must address or include:

1. FULL DESCRIPTION. A full description of the structure, project, etc., including all submitted frequencies and ERP must be included. Use exact information to clearly identify the nature of the project (e.g., microwave antenna tower; FM, AM, or TV antenna tower; suspension bridge; four-stack power plant; etc.).

2. LATITUDE, LONGITUDE, AND HEIGHT. Specify the latitude, longitude, and height(s) of each structure. When an obstruction evaluation study concerns an array of antennas or other multiple-type structures, specific information on each structure should be included.

3. MARKING AND/OR LIGHTING. A marking and/or lighting recommendation must be a condition of the determination when aeronautical study discloses that the marking and/or lighting are necessary for aviation safety.

(a) If the OE notice was for an existing structure with no physical alteration to height or location (e.g., a side mount or an editorial correction to coordinates and/or elevations due to more accurate data), and the structure was previously studied, the recommended marking and/or lighting may be in accordance with the prior study.

(b) If the notice is for a new structure, a physical alteration (height/location) to an existing structure, or an existing structure that did not involve a physical alteration but was not previously studied, the recommended marking and/or lighting must be in accordance with appropriate chapters of the current AC 70/7460-1, Obstruction Marking and Lighting.

(c) If the OE notice was for a change in marking and/or lighting of a prior study whether the structure exists or not yet built, the recommended marking and/or lighting must be in accordance with appropriate chapters of the current AC 70/7460-1.

(1) If it is an existing FCC-licensed structure, and the requested marking and/or lighting change is recommended, notify the sponsor to apply to the FCC for permission to make the change. Use the following specific language: “If the structure is subject to the authority of the Federal Communications Commission, a copy of this letter must be forwarded to them and application should be made to the FCC for permission to change the marking and/or lighting as requested." This language is available in the automated letters.

(2) If the marking and/or lighting change involves high intensity white obstruction lights on an FCC-licensed structure, the sponsor must be notified that the FCC requires an environmental assessment. Use the following specific language: “FCC licensees are required to file an environmental assessment with the Commission when seeking authorization for the use of the high intensity flashing white lighting system on structures located in residential neighborhoods, as defined by the applicable zoning law."

(3) If it is an existing structure and the requested marking and/or lighting change is recommended, the sponsor must be required to notify Aeronautical Navigation Products (AeroNav) directly when the change has been accomplished. Use the following specific language: “So that aeronautical charts and records can be updated, please notify Aeronautical Navigation Products (AeroNav) in writing (with a courtesy copy to the FAA's National Flight Data Center) when the new system is installed and operational. AeroNav notification should be addressed to: National Aeronautical Charting Office, Aeronautical Information Branch, Room 5601 N/ACC113, 1305 East-West Highway, Silver Spring, Maryland 20910."

(d) If it is determined that marking and/or lighting are not necessary for aviation safety, marking and/or lighting may be accomplished on a voluntary basis. However, marking and/or lighting should not be a condition of the determination. Instead, it must be recommended that voluntary marking and/or lighting be installed and maintained in accordance with AC 70/7460-1. Use specific language as follows: “Based on this evaluation, marking and lighting are not necessary for aviation safety. However, if marking and/or lighting are accomplished on a voluntary basis, we recommend it be installed and maintained in accordance with FAA Advisory Circular 70/7460-1."

4. SUPPLEMENTAL NOTICE. FAA Form 7460-2, Notice of Actual Construction or Alteration, Part 2, is the authorized form for sponsors to report the start, completion, or abandonment of construction, and the dismantlement of structures. Furnish this form to each sponsor when supplemental notice is required. Each service area office must take action to ensure that their return address is correct before sending the form to the sponsor.

(a) When deemed necessary, request sponsors to complete and mail Part 1 of FAA Form 7460-2, to be received at least 10 days before the start of construction or alteration, when:

(1) An aeronautical procedure or minimum flight altitude will be affected (supplemental notice earlier than 10 days may be requested to permit adjustments).

(2) The construction will be in progress over an extended period of time.

(3) The structure will exceed 500 feet AGL and will be erected within a relatively short period of time, as in the case of a TV tower.

(b) In addition, submission by the sponsor of FAA Form 7460-2, must be required when the structure is a new construction or involves a proposed physical alteration, and:

(1) Is more than 200 feet above ground level (AGL).

(2) Is less than 200 feet AGL but exceeds obstruction standards, requires a change to an established FAA procedure or flight minimum, requires certified accuracy so as not to exceed minimums.

(3) The FAA deems it necessary for any other reason.

(c) The information submitted on FAA Form 7460-2 is used for:

(1) Charting obstructions to air navigation on aeronautical charts.

(2) Giving notice to airmen, when applicable, of the construction of obstructions.

(3) Changing affected aeronautical procedures and operations.

(4) Revising minimum flight altitudes.

(5) Updating the AeroNav Obstacle Digital File.

(d) Do not require supplemental notice for existing structures that do not involve a proposed physical alteration. Instead, directly communicate the known information to AeroNav and other relevant persons or organizations, as necessary.

5. EXPIRATION DATE. Include an expiration date, if applicable.

(a) Assign an expiration date to all determinations that involve new construction or alterations.

(1) Normally all determinations, whether FCC construction permit related or not, must be assigned an expiration date 18 months from the effective/issued date. In the case of determinations involving petition rights, the expiration must be 18 months from the final date of the determination.

(2) If circumstances warrant, an expiration date not to exceed 18 months should be assigned.

(b) The determination expires on the date prescribed unless:

(1) Extended, revised, or terminated by the issuing office.

(2) The construction is subject to the licensing authority of the FCC and an application for a construction permit has been filed as required by the FCC within six months of the date of the determination. In such case, the determination expires on the date prescribed by the FCC for completion of construction, or the date the FCC denies the application. A request for extension must be postmarked or delivered at least 15 days prior to expiration.

(c) If the date of a final determination is changed because of a petition or review, a new expiration date will be specified as appropriate.

(d) Determinations involving existing structures that do not involve a proposed physical alteration must not contain an expiration date.

6. SPECIAL CONDITIONS. Any condition upon which a no hazard determination is based must be specified in the determination. When FAA Form 7460-2 is requested, a condition of the determination will be for the sponsor to keep the FAA informed of the project's status. Use the following specific language: “As a result of this structure being critical to flight safety, it is required that the FAA be kept informed as to the status of the project. Failure to respond to periodic FAA inquiries could invalidate this determination."

7. SPECIAL STATEMENTS. To help prevent potential problems, all determinations must include the following statements:

(a) “This determination is based, in part, on the foregoing description which includes specific coordinates, heights, frequency(ies) and power. Any change in coordinates, heights, frequency(ies) or use of greater power will void this determination. Any future construction or alteration, including increase in heights, power, or the addition of other transmitters, requires separate notice to the FAA."

(b) “This determination does include temporary construction equipment, such as cranes, derricks, etc., which may be used during the actual construction of the structure. However, this equipment must not exceed the overall heights as indicated above. Equipment which has a height greater than the studied structure requires separate notice to the FAA."

(c) “This determination concerns the effect of this structure on the safe and efficient use of navigable airspace by aircraft and does not relieve the sponsor of compliance responsibilities relating to any law, ordinance, or regulation of any Federal, state, or local government body."

8. ADVISORIES. Determinations may require advisory statements (available in the automated letters) to notify sponsors of potential issues.

(a) Issues pertaining to noise can be addressed as a statement in the determination with the following language: “The structure considered under this study lies in proximity to an airport and occupants may be subjected to noise from aircraft operating to and from the airport."

(b) When requested by the military, issues pertaining to military training areas/routes can be addressed in a determination with the following language: “While the structure does not constitute a hazard to air navigation, it would be located within or near a military training area and/or route."

(c) Issues pertaining to a runway protection zone can be addressed in the determination as follows: “While the structure does not constitute a hazard to air navigation, it would be located within the Runway Protection Zone (RPZ) of the airport/runway. Structures, which will result in the congregation of people within an RPZ, are strongly discouraged in the interest of protecting people and property on the ground. In cases where the airport owner can control the use of the property, such structures are prohibited. In cases where the airport owner exercises no such control, advisory recommendations are issued to inform the sponsor of the inadvisability of the project from the standpoint of safety to personnel and property."

b. In addition to the above items, a DNH must also include or address:

1. Obstruction standards exceeded.

2. Effect on VFR/IFR aeronautical departure/arrival and en route operations, procedures, and minimum flight altitudes.

3. Effect on existing public-use airports and aeronautical facilities.

4. Effect on all planned public-use airports and aeronautical facilities.

5. Cumulative impact resulting from the proposed construction or alteration of a structure when combined with the impact of other existing or proposed structures.

6. Information and comments received as a result of circularization, informal airspace meetings, and negotiations.

7. Reasons and basis for the determination that the structure will not be a hazard to air navigation and any accommodations necessary by aeronautical users or sponsors.

8. Consideration given to any valid aeronautical comments received during the aeronautical study. The official FAA determination must be a composite of the comments and findings received from other interested FAA offices.

9. Conditions of the determination including recommendations for marking and/or lighting of a structure, changes in procedures and/or altitudes that are necessary to accommodate the structure. The “conditions" should include a statement that appropriate action will be taken to amend the effected procedure(s) and/or altitude(s) upon notification to the FAA by the sponsor prior to the start of construction or alteration.

10. Limitations, if any.

11. Petitioning information regardless of whether the structure is proposed or existing using the following specific language: “This determination is subject to review if an interested party files a petition that is received by the FAA (30 days from issued date). In the event a petition for review is filed, it must contain a full statement of the basis upon which it is made and be submitted to the Manager, Airspace Regulations and ATC Procedures Group, Federal Aviation Administration, 800 Independence Ave., SW., Washington, DC 20591. This determination becomes final on [40 days from issued date] unless a petition is timely filed. In which case, this determination will not become final pending disposition of the petition. Interested parties will be notified of the grant of any review."

c. A DOH must include or address:

1. FULL DESCRIPTION. A full description of the structure, project, proposal, etc. including all submitted frequencies and ERP must be included. Use exact information to clearly identify the nature of the project. Use wording, such as microwave antenna tower, FM or AM antenna tower, suspension bridge, TV antenna tower, or four-stack power plant.

3. BASIS FOR THE DETERMINATION. The reasons and basis for the determination must include the adverse effect of the proposal upon the safe and efficient use of the navigable airspace by aircraft and upon air navigation facilities. Also, state the reasons the affected aeronautical operations or the procedure cannot be adjusted to alleviate or eliminate the conflicting demands for the airspace. As a minimum, the determination must address the following:

(a) Obstruction standards exceeded.

(b) The effect on VFR/IFR aeronautical departure/arrival and en route operations, procedures, and the minimum flight altitudes effect on existing public-use airports and aeronautical facilities.

(c) The effect on all planned public-use airports and aeronautical facilities on file with the FAA or for which the FAA has received adequate notice.

(d) The cumulative impact resulting from the proposed construction or alteration of a structure when combined with the impact of other existing or proposed structures.

(e) Information and comments received as a result of circularization, informal airspace meetings and negotiations.

(f) Reasons and basis for the determination as to why the structure would be a hazard to air navigation (e.g., a clear showing of substantial adverse effect).

4. PETITIONING INFORMATION - Include petitioning information regardless of whether the structure is proposed or existing using the following specific language: “This determination is subject to review if an interested party files a petition on or before [30 days from issued date]. In the event a petition for review is filed, it must contain a full statement of the basis upon which it is made and be submitted to the Manager, Airspace Regulations and ATC Procedures Group, Federal Aviation Administration, 800 Independence Ave., SW., Washington, DC 20591. This determination becomes final on [40 days from issued date] unless a petition is timely filed. The determination will not become final pending disposition of the petition. Interested parties will be notified of the grant of any review."

7-1-5. DETERMINATION DATES

a. ISSUED DATE - The issuance date of a determination is the date the determination is distributed.

b. PETITION DEADLINE - For determinations that involve petition rights, the deadline for receipt of petition must be 30 days from the date of issuance.

c. EFFECTIVE DATE -

1. The effective date of determinations that do not involve petition rights must be the date of issuance.

2. The effective date of determinations that involve petition rights, whether for existing or proposed structures, must be 40 days from the date of issuance provided a petition for review is not filed. If a petition for review is filed, the determination will not become final pending disposition of the petition.

NOTE-
The effective date and the issued date may or may not be the same. The effective date may also be referred to as the final date.

7-1-6. EXISTING STRUCTURES

A determination issued as a result of the study of an existing structure may be written in the following forms:

a. As a DOH or DNH.

b. As a formal letter outlining the effects of the structure and perhaps recommending to the sponsor that the structure be marked and/or lighted, specifying that it be reduced in height, or specifying that it be removed.

c. As an informal letter or staff study making an internal FAA recommendation.

d. As a formal letter to the FCC recommending the dismantling of an abandoned tower.

7-1-7. DISTRIBUTION OF DETERMINATIONS

A record of the distribution for each determination whether original, revised, extended, or affirmed must be maintained in the aeronautical study file. When appropriate, a reference to the distribution code, a mailing list, or any other evidence of distribution will be sufficient.

a. Copies of all determinations must be sent to the:

1. Sponsor (with FAA Form 7460-2 as necessary)

2. Sponsor's representative (if any).

3. FCC (if the structure is subject to its licensing authority).

4. AeroNav in lieu of FAA Form 7460-2 (if the structure is existing and does not involve a proposed physical alteration). Copies of the determination must always be accompanied by a copy of the submitted map and, if applicable, a copy of the survey; or if the determination involves a change to marking and/or lighting of an existing structure for which the sponsor has been requested to notify AeroNav directly of the change.

5. Copies of the determination must always be accompanied by a copy of the submitted map and, if applicable, a copy of the surveys.

6. Other persons, offices, or entities as deemed necessary or as requested.

b. In addition to the above distribution, copies of a DNH and DOH must also be sent to:

1. AeroNav.

2. Military representatives.

3. All other interested persons.