*MEMORANDUM* *To: Officers, Directors and Vice Directors* *Copy: Sean Kutzko; Rick Lindquist* *From: Chris Imlay, W3KD* *Re: FAA Reauthorization Act, H.R. 636; Painting and Lighting of Short Towers* *Date: July 19, 2016* _____________________________________________________________________________ Greetings. Briefly at the Board meeting I reported the recent passage of H.R. 636, the FAA Reauthorization Act. We were blindsided by the provision in this Bill instructing FAA to enact rules similar to statutory provisions that we have been dealing with at the State level which we collectively refer to as “crop duster” statutes. States, principally western States, have in the past few years enacted statutes attempting to protect meteorological evaluation towers. These are between 50 and 200 feet. They are typically located in rural agricultural areas and they tend to be very low-profile towers, hard for crop dusting aircraft to see in certain circumstances. We had been of the view that these statutes were preempted by FAA’s exclusive authority over aviation safety, even though, in areas not near airports or heliports, FAA did not typically regulate towers less than 200 feet in height. We have made some efforts with the help of TKG to ask FAA to clarify its jurisdictional intent but they have been reluctant to do so. Now, they don’t have to, because Congress has instructed FAA to develop regulations to protect these towers. This is good and bad at once; it is good because this will stem the tide of State cropduster statutes, some of which exempt Amateur antennas and some of which do not. Some of the State statutes are more onerous than what Congress has just enacted. On the downside, this legislation does not exempt Amateur Radio. Had we heard about it earlier, we might well have been able to influence an Amateur Radio exemption through contacts on the Hill that TKG, and *especially* good contacts that Frank McCarthy has in this area. It is unclear why our legislative monitoring key word service, which ARRL HQ deploys, did not tip us off to this earlier. That said, however, the legislation is not that bad as regards application to Amateur antennas, and we will also have an opportunity to influence the final FAA rules by participating in the rulemaking process. We will soon have meetings with FAA which will help clarify their intentions and bring our concerns to FAA ahead of time. The following is a summary of the Bill’s provisions regarding tower marking: 1. Within 1 year after the date of enactment of the Act (i.e. by next July), FAA must issue regulations to require the marking of the towers covered by the legislation. 2. The marking required will be painting and lighting in accordance with current FAA guidelines (i.e. the Advisory Circular issued December 4, 2015). 3. The new rules cover towers constructed on or after the effective date of the rules, and towers constructed before the effective date of the new rules will have to come into compliance within a year after the date of the new rules. 4. Covered towers are those which are “self-standing or supported by guy wires and ground anchors”; which are 10 feet or less in diameter at the above-ground base, excluding concrete footings; are between 50 feet above ground level at the highest point and not more than 200 feet above ground level; which has accessory facilities on which an antenna, sensor, camera, meteorological instrument, or other equipment is mounted; and is located outside the boundaries of an incorporated city or town; or on land that is undeveloped; or used for agricultural purposes. 5. Towers that are excluded are those: (a) “adjacent” to a house, barn, electric utility station, or other building; (b) within the curtilage of a farmstead; (c) which support electric utility transmission or distribution lines; (d) wind-powered electrical generators with a rotor blade radius that exceeds 6 feet; or (e) street lights erected or maintained by a Federal, State, local, or tribal entity. 6. The term “undeveloped” land means a defined geographic area where the FAA determines low-flying aircraft are operated on a routine basis, such as low-lying forested areas with predominant tree cover under 200 feet and pasture and range land. 7. FAA will develop a database that contains the location and height of each covered tower which can be used only for aviation safety purposes. It may not be disclosed for purposes other than aviation safety. While it is a fair concern that exemption language such as the meaning of the word “adjacent” to residences and buildings is undefined, the Bill says that the FAA will provide a definition. We do not anticipate that a large number of Amateur towers will be subject to these rules but there is a good deal of concern about it. We also have an NTSB document isolating the problem calling for a solution as being limited to meteorological evaluation towers. We will provide a briefing memo for inquiries you receive in the near term. Until then feel free to use the above summary of the Bill as material for any response you need to provide. Also, feel free to refer inquiries to Dan Henderson. 73, Chris W3KD -- Christopher D. Imlay Booth, Freret & Imlay, LLC 14356 Cape May Road Silver Spring, Maryland 20904-6011 (301) 384-5525 telephone (301) 384-6384 facsimile W3KD@ARRL.ORG