738-070-0010
General Information

(1) Senate Bill 47, passed by the 1981 Legislature, became law on November 1, 1981, as Chapter 553, Oregon Laws 1981 and codified as ORS 836.530. This authorizes the Director of the Department to adopt rules defining physical hazards to air navigation within Oregon and determine whether specific types or classes of objects or structures constitute hazards. It further authorizes the establishment of standards for lighting or marking objects or structures that constitute hazards to air navigation in this state.

(2) In accordance with these rules, the Director shall:

(a) Determine whether specific objects or structures constitute a hazard to air navigation;

(b) Issue orders to require that specific objects or structures determined to be hazards to air navigation be marked or lighted;

(c) Determine responsibility for installation and maintenance of lighting or marking of specific objects or structures that constitute hazards to air navigation.

(3) In conformance with the statutory provision, these rules and standards are designed to be no more restrictive than current federal norms, including, but not limited to, regulations and circulars, pertaining to objects affecting navigable airspace.

(4) Any person or entity required to comply with an order issued under these rules may contest the order as provided under ORS 183.310 to 183.500.

(5) Failure to comply with an order issued under this rule is subject to the penalties stated in ORS 837.990.

(6) Under this rule, the Director may make an independent judgment as to whether specific objects or structures constitute a hazard to air navigation in Oregon; determine whether such objects or structures shall be marked or lighted and; determine responsibility for installation and maintenance of such marking and lighting. While the rules and standards adopted herein are "limited to and shall not be more restrictive than current federal norms,..." nothing in the law or these rules shall prohibit the Director from making an independent judgment or decision that may differ from the judgment or decision made by the Federal Aviation Administration on the same object or structure using FAA regulations, circulars or other publications as a basis for such finding.

Statutory/Other Authority: ORS 184, 835 & 836
Statutes/Other Implemented: ORS 836.530
History:
AVIA 4-2002, f. 11-27-02, cert. ef. 12-1-02
1AD 2-1983, f. & ef. 2-14-83

738-070-0020
Scope of Rule

(1) Establishes and adopts standards for determining obstructions in navigable airspace.

(2) Sets forth the requirements for notice to the Director of certain proposed construction or alteration.

(3) Provides for aeronautical studies of obstructions to air navigation, to determine their effect on the safe and efficient use of airspace.

(4) Provides for public hearings on the hazardous effect of proposed construction or alteration on air navigation.

(5) Establishes standards for determining requirements for marking and lighting of obstructions to navigable airspace.

(6) Establishes standard methods of marking and lighting obstructions to navigable airspace.

(7) Establishes standards for determining responsibility for installation and maintenance of marking or lighting specific objects or structures that constitute hazards to air navigation.

(8) Sets forth penalties for failure to comply with an order issued under this rule.

Statutory/Other Authority: ORS 184, 835 & 836
Statutes/Other Implemented: ORS 836.530
History:
AVIA 4-2002, f. 11-27-02, cert. ef. 12-1-02
1AD 2-1983, f. & ef. 2-14-83

738-070-0040
Standards

The standards established in this rule for determining obstructions to air navigation are used by the Director in:

(1) Imposing requirements for notice of the construction or alteration of any structure when such structure can pose a hazard to air navigation in Oregon.

(2) Determining if specific objects or structures constitute a hazard to air navigation.

(3) Determining the need to light and/or mark objects or structures that may derogate safety to air navigation.

(4) Determining responsibility for installation of lighting and/or marking of appropriate objects and structures.

Statutory/Other Authority: ORS 184, 835 & 836
Statutes/Other Implemented: ORS 836.530
History:
AVIA 4-2002, f. 11-27-02, cert. ef. 12-1-02
1AD 2-1983, f. & ef. 2-14-83

738-070-0050
Kind of Objects Affected

This rule applies to:

(1) Any object of natural growth, terrain, or permanent or temporary construction or alteration, including equipment or materials used therein, and apparatus of a permanent or temporary character; and

(2) Alteration of any permanent or temporary existing structure by a change in its height (including appurtenances), or lateral dimensions, including equipment or materials used therein, and apparatus of a permanent or temporary character.

Statutory/Other Authority: ORS 184, 835 & 836
Statutes/Other Implemented: ORS 836.530
History:
1AD 2-1983, f. & ef. 2-14-83

738-070-0060
Notice of Construction or Alteration

(1) This rule requires each person proposing any kind of construction or alteration described in OAR 738-070-0070 to give adequate notice to the Director. It specifies the locations and dimensions of the construction or alteration for which notice is required and prescribes the form and manner of the notice. It also requires supplemental notices 48 hours before the start and upon the completion of certain construction or alteration that was the subject of a notice under OAR 738-070-0070.

(2) Notices received under this rule provide a basis for:

(a) Evaluating the effect of the construction or alteration on operational procedures and proposed operational procedures;

(b) Determinations of the possible hazardous effect of the proposed construction or alteration on air navigation;

(c) Determinations for identifying the construction or alteration to be marked or lighted in accordance with the Federal Aviation Administration Advisory Circular AC 70/7460-1F entitled Obstruction Marking and Lighting and dated September 27, 1978;

(d) Determining other appropriate measures to be applied for continued safety of air navigation; and

(e) Notification to pilots of the construction or alteration.

[Publications: Publications referenced are available from the agency.]

Statutory/Other Authority: ORS 184, 835 & 836
Statutes/Other Implemented: ORS 836.530
History:
AVIA 4-2002, f. 11-27-02, cert. ef. 12-1-02
1AD 2-1983, f. & ef. 2-14-83

738-070-0070
Construction or Alteration Requiring Notice

(1) Each proponent of any of the following construction or alteration shall notify the Director in the form and manner prescribed in OAR 738-070-0080.

(a) Any construction or alteration of more than 200 feet in height above the ground level at its site;

(b) Any construction or alteration of greater height than an imaginary surface extending outward and upward at one of the following slopes:

(A) 100 to 1 for a horizontal distance of 20,000 feet from the nearest point of the nearest runway of each airport specified in subsection (e) of this section with at least one runway more than 3,200 feet in actual length, excluding heliports;

(B) 50 to 1 for a horizontal distance of 10,000 feet from the nearest point of the nearest runway of each airport specified in subsection (e) of this section with its longest runway no more than 3,200 feet in actual length, excluding heliports;

(C) 25 to 1 for a horizontal distance of 5,000 feet from the nearest point of the nearest landing and take-off area of each heliport specified in subsection (e) of this section.

(c) Any highway, railroad, or other traverse way for mobile objects if of greater height than the standards of subsection (a) or (b) of this section after their height has been adjusted upward by one of the following:

(A) 17 feet for an interstate highway that is part of the National System of Military and Interstate Highways;

(B) 15 feet for any other public roadway;

(C) 10 feet or the height of the highest mobile object that would normally traverse the road, whichever is greater, for a private road;

(D) 23 feet for a railroad;

(E) For a waterway or any other traverse way, an amount equal to the height of the highest mobile object that would normally use it.

(d) When requested by the Department, 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 of OAR 738-070-0100;

(e) Any construction or alteration on any of the following airports (including heliports):

(A) An airport that is available for public use and is listed in the airport directory of the current Airman's Information Manual or in the Oregon Aviation System Plan;

(B) An airport under construction, that is the subject of a notice or proposal on file with the Federal Aviation Administration, or the Department, when it is clearly indicated that that airport will be available for public use.

(2) Each proponent of a construction or alteration that is the subject of a notice under section (1) of this rule, and is advised by the Department that a supplemental notice is required, shall submit that supplemental notice on a prescribed form to be received by the Department at least 48 hours before the start of the construction or alteration.

(3) Each proponent who undertakes construction or alteration that is the subject of a notice under section (1) of this rule, shall, within five days after that construction or alteration reaches its greatest height, submit a supplemental notice on a prescribed form to the Department, if:

(a) The construction or alteration is more than 200 feet above the surface level of its site; or

(b) The Department advises the proponent that submission of the form is required.

[Publications: Publications referenced are available from the agency.]

Statutory/Other Authority: ORS 184, 835 & 836
Statutes/Other Implemented: ORS 836.530
History:
AVIA 4-2002, f. 11-27-02, cert. ef. 12-1-02
1AD 2-1983, f. & ef. 2-14-83

738-070-0080
Form and Time of Notice

(1) Each person who is required to notify the Director under OAR 738-070-0060 shall send one executed form set (four copies) of FAA Form 7460-1, Notice of Proposed Construction or Alteration, to the Oregon Department of Aviation. Copies of FAA Form 7460-1 may be obtained from the headquarters of the FAA and its regional offices or the Department.

(2) The notice required under OAR 738-070-0060 must be submitted at least 30 days before the earlier of the following dates:

(a) The date the proposed construction or alteration is to begin;

(b) The date an application for a construction permit is to be filed.

(3) A proposed structure or an alteration to an existing structure that exceeds 2,000 feet in height above the ground will be presumed to be a hazard to air navigation and to result in an inefficient utilization of airspace and the applicant has the burden of overcoming that presumption. Each notice submitted under the pertinent provisions of Federal Aviation Regulation (FAR) Part 77 proposing a structure in excess of 2,000 feet above ground, or an alteration that will make an existing structure exceed that height, must contain a detailed showing, directed to meeting this burden. Only in exceptional cases, where the Department concludes that a clear and compelling showing has been made that it would not result in an inefficient utilization of the airspace and would not result in a hazard to air navigation, will a determination of no hazard be issued.

(4) In the case of an emergency involving essential public services, public health, or public safety, that requires immediate construction or alteration, the 30 day requirement in section (2) of this rule does not apply and the notice may be sent by telephone, telegraph, or other expeditious means, with an executed FAA Form 7460-1 submitted within five days thereafter.

Statutory/Other Authority: ORS 184, 835 & 836
Statutes/Other Implemented: ORS 836.530
History:
AVIA 4-2002, f. 11-27-02, cert. ef. 12-1-02
1AD 2-1983, f. & ef. 2-14-83

738-070-0090
Acknowledgment of Notice

(1) Within 20 working days, the Department will acknowledge receipt in writing of each notice submitted under OAR 738-070-0070.

(2) If the construction or alteration proposed in a notice is one for which lighting or marking standards are prescribed in the FAA Advisory Circular AC 70/7460-1F entitled Obstruction Marking and Lighting, dated September 27, 1978, the acknowledgment will contain a statement to that effect and information on how the structure should be marked and lighted in accordance with the Advisory Circular.

(3) The acknowledgment will state that an initial or preliminary aeronautical study of the proposed construction or alteration has resulted in a determination that the construction or alteration:

(a) Would not exceed any standard of OAR 738-070-0100 and would not be a hazard to air navigation;

(b) Would exceed a standard of OAR 738-070-0100 but would not be a hazard to air navigation; or

(c) Would exceed a standard of OAR 738-070-0100 and further aeronautical study is necessary to determine whether it would be a hazard to air navigation, that the sponsor may request in writing within 30 days such further study, and that, pending completion of any further study, it is presumed the construction or alteration would be a hazard to air navigation.

[Publications: Publications referenced are available from the agency.]

Statutory/Other Authority: ORS 184, 835 & 836
Statutes/Other Implemented: ORS 836.530
History:
1AD 2-1983, f. & ef. 2-14-83

738-070-0100
Obstruction Standards

(1) This rule establishes standards for determining obstructions to air navigation. It applies to existing and proposed manmade objects, objects of natural growth and terrain. The standards apply to the use of navigable airspace by aircraft and to existing air navigation facilities, such as an air navigation aid, airport, federal airway, instrument approach or departure procedure, or approved off-airway route. Additionally, they apply to a planned facility or use, or a change in an existing facility or use, if a proposal therefor is on file with the Federal Aviation Administration or the Oregon Department of Aviation.

(2) At those airports having defined runways with specially prepared hard surfaces, the primary surface for each such runway extends 200 feet beyond each end of the runway. At those airports having defined strips or pathways that are used regularly for the taking-off and landing of aircraft and have been designated by appropriate authority as runways, but do not have specially prepared hard surfaces, each end of the primary surface for each such runway shall coincide with the corresponding end of the runway. At those airports, excluding seaplane bases, having a defined landing and take-off area with no defined pathways for the landing and taking-off of aircraft, a determination shall be made as to which portions of the landing and take-off area are regularly used as landing and takeoff pathways. Those pathways so determined shall be considered runways and an appropriate primary surface as defined in OAR 738-070-0120 will be considered as being longitudinally centered on each runway so determined, and each end of that primary surface shall coincide with the corresponding end of that runway.

(3) The standards in this rule apply to the effect of construction or alteration proposals upon an airport if, at the time of filing of the notice required by OAR 738-070-0060, that airport is:

(a) Available for public use and is listed in the current Federal Airport Directory or included in the State System as shown in the Oregon Aviation System Plan; or

(b) A planned or proposed airport or an airport under construction that is the subject of a notice or proposal on file with the Federal Aviation Administration, and it is clearly indicated that that airport will be available for public use.

Statutory/Other Authority: ORS 184, 835 & 836
Statutes/Other Implemented: ORS 836.530
History:
AVIA 4-2002, f. 11-27-02, cert. ef. 12-1-02
1AD 2-1983, f. & ef. 2-14-83

738-070-0110
Standards for Determining Obstructions

(1) An existing object, including a mobile object, is, and a future object would be, an obstruction to air navigation if it is of greater height than any of the following heights or surfaces:

(a) A height of 500 feet above ground level at the site of the object;

(b) A height that is 200 feet above ground level or above the established airport elevation, whichever is higher, within three nautical miles of the established reference point of an airport, excluding heliports, with its longest runway more than 3,200 feet in actual length, and that height increases in the proportion of 100 feet for each additional nautical mile of distance from the airport up to a maximum of 500 feet;

(c) A height within a terminal obstacle clearance area, including an initial approach segment, a departure area, and a circling approach area, which would result in the vertical distance between any point on the object and an established minimum instrument flight altitude within that area or segment to be less than the required obstacle clearance;

(d) A height within an enroute obstacle clearance area, including turn and termination areas, of a federal airway or approved off-airway route, that would increase the minimum obstacle clearance altitude;

(e) The surface of a take-off and landing area of an airport or any imaginary surface established under OAR 738-070-0120 or 738-070-0130. However, no part of the take-off or landing area itself will be considered an obstruction.

(2) Except for traverse ways on or near an airport with an operative ground traffic control service, furnished by an air traffic control tower or by the airport management and coordinated with the Federal Aviation Administration’s air traffic control service, the standards of section (1) of this rule apply to traverse ways used or to be used for the passage of mobile objects only after the heights of these traverse ways are increased by:

(a) 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;

(b) 15 feet for any other public roadway;

(c) 10 feet or the height of the highest mobile object that would normally traverse the road, whichever is greater, for a private road;

(d) 23 feet for a railroad;

(e) 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.

Statutory/Other Authority: ORS 184, 835 & 836
Statutes/Other Implemented: ORS 836.530
History:
1AD 2-1983, f. & ef. 2-14-83

738-070-0120
Civilian Airport Imaginary Surfaces

The following civil airport imaginary surfaces are established with relation to the airport and to each runway. The size of each such imaginary surface is based on the category of each runway according to the type of approach available or planned for that runway. The slope and dimensions of the approach surface applied to each end of a runway are determined by the most precise approach existing or planned for that runway end:

(1) Horizontal surface:

(a) A horizontal plane 150 feet above the established airport elevation, the perimeter of which is constructed by swinging arcs of specified radii from the center of each end of the primary surface of each runway of each airport and connecting the adjacent arcs by lines tangent to those arcs. The radius of each arc is:

(A) 5,000 feet for all runways designated as utility or visual;

(B) 10,000 feet for all other runways.

(b) The radius of the arc specified for each end of a runway will have the same arithmetical value. That value will be the highest determined for either end of the runway. When a 5,000-foot arc is encompassed by tangents connecting two adjacent 10,000-foot arcs, the 5,000-foot arc shall be disregarded on the construction of the perimeter of the horizontal surface.

(2) Conical surface: A surface extending outward and upward from the periphery of the horizontal surface at a slope of 20 to 1 for a horizontal distance of 4,000 feet.

(3) Primary surface: A surface longitudinally centered on a runway. When the runway has a specially prepared hard surface, the primary surface extends 200 feet beyond each end of that runway; but when the runway has no specially prepared hard surface, or planned hard surface, the primary surface ends at each end of that runway. The elevation of any point on the primary surface is the same as the elevation of the nearest point on the runway centerline. The width of a primary surface is:

(a) 250 feet for utility runways having only visual approaches;

(b) 500 feet for utility runways having nonprecision instrument approaches;

(c) For other than utility runways the width is:

(A) 500 feet for visual runways having only visual approaches;

(B) 500 feet for nonprecision instrument runways having visibility minimums greater than three-fourths statute mile;

(C) 1,000 feet for a nonprecision instrument runway having a nonprecision instrument approach with visibility minimums as low as three-fourths of a statute mile, and for precision instrument runways. The width of the primary surface of a runway will be that width prescribed in this section for the most precise approach existing or planned for either end of that runway.

(4) Approach surface: A surface longitudinally centered on the extended runway centerline and extending outward and upward from each end of the primary surface. An approach surface is applied to each end of each runway based upon the type of approach available or planned for that runway end.

(a) The inner edge of the approach surface is the same width as the primary surface and it expands uniformly to a width of:

(A) 1,250 feet for that end of a utility runway with only visual approaches;

(B) 1,500 feet for that end of a runway other than a utility runway with only visual approaches;

(C) 2,000 feet for that end of a utility runway with a nonprecision instrument approach;

(D) 3,500 feet for that end of a nonprecision instrument runway other than utility, having visibility minimums greater than three-fourths of a statute mile;

(E) 4,000 feet for that end of a nonprecision instrument runway, other than utility, having a nonprecision instrument approach with visibility minimums as low as three-fourths statute mile; and

(F) 16,000 feet for precision instrument runways.

(b) The approach surface extends for a horizontal distance of:

(A) 5,000 feet at a slope of 20 to 1 for all utility and visual runways;

(B) 10,000 feet at a slope of 34 to 1 for all nonprecision instrument runways other than utility; and

(C) 10,000 feet at a slope of 50 to 1 with an additional 40,000 feet at a slope of 40 to 1 for all precision instrument runways.

(c) The outer width of an approach surface to an end of a runway will be that width prescribed in this subsection for the most precise approach existing or planned for that runway end.

(5) Transitional surface: These surfaces extend outward and upward at right angles to the runway centerline and the runway centerline extended at a slope of 7 to 1 from the sides of the primary surface and from the sides of the approach surfaces. Transitional surfaces for those portions of the precision approach surface which project through and beyond the limits of the conical surface, extend a distance of 5,000 feet measured horizontally from the edge of the approach surface and at right angles to the runway centerline.

Statutory/Other Authority: ORS 184, 835 & 836
Statutes/Other Implemented: ORS 836.530
History:
1AD 2-1983, f. & ef. 2-14-83

738-070-0130
Airport Imaginary Surfaces for Heliports

(1) Heliport primary surface: The area of the primary surface coincides in size and shape with the designated take-off and landing area of a heliport. This surface is a horizontal plane at the elevation of the established heliport elevation.

(2) Heliport approach surface: The approach surface begins at each end of the heliport primary surface with the same width as the primary surface, and extends outward and upward for a horizontal distance of 4,000 feet where its width is 500 feet. The slope of the approach surface is 8 to 1 for civil heliports and 10 to 1 for military heliports.

(3) Heliport transitional surfaces: These surfaces extend outward and upward from the lateral boundaries of the heliport primary surface and from the approach surfaces at a slope of 2 to 1 for a distance of 250 feet measured horizontally from the centerline of the primary and approach surfaces.

Statutory/Other Authority: ORS 184, 835 & 836
Statutes/Other Implemented: ORS 836.530
History:
1AD 2-1983, f. & ef. 2-14-83

738-070-0140
Effect of Proposed Construction on Navigable Airspace

Scope:

(1) This rule applies to the conduct of aeronautical studies of the effect of proposed construction or alteration on the use of air navigation facilities or navigable airspace by aircraft. In the aeronautical studies, present and future IFR and VFR aeronautical operations and procedures are reviewed and any possible changes in those operations and procedures and in the construction proposal that would eliminate or alleviate the conflicting demands are ascertained.

(2) The conclusion of a study made under this rule is normally a determination as to whether the specific proposal studied would be a hazard to air navigation.

Statutory/Other Authority: ORS 184, 835 & 836
Statutes/Other Implemented: ORS 836.530
History:
1AD 2-1983, f. & ef. 2-14-83

738-070-0150
Initiation of Studies

An aeronautical study is conducted by the Department:

(1) Upon the request of the sponsor or representative of any construction or alteration, unless that construction or alteration would be located within an antenna farm area as discussed in OAR 738-070-0190 and 738-070-0200; or

(2) Whenever the Department determines it appropriate.

Statutory/Other Authority: ORS 835 & 836
Statutes/Other Implemented: ORS 836.530
History:
AVIA 5-2022, amend filed 08/29/2022, effective 08/29/2022
1AD 2-1983, f. & ef. 2-14-83

738-070-0160
Aeronautical Studies

(1) The Department may conduct an aeronautical study of the effect of the proposal upon the operation of air navigation facilities and the safe and efficient utilization of the navigable airspace. This study may include the physical and electromagnetic radiation effect the proposal may have on the operation of an air navigation facility.

(2) To the extent considered necessary, the Department may take any or all of the following actions:

(a) Solicit comments from all interested persons;

(b) Explore objections to the proposal and attempt to develop recommendations for adjustment of aviation requirements that would accommodate the proposed construction or alteration;

(c) Examine possible revisions of the proposal that would eliminate the exceeding of the standards in OAR 738-070-0100; and

(d) Convene a meeting with all interested persons for the purpose of gathering all facts relevant to the effect of the proposed construction or alteration on the safe and efficient utilization of the navigable airspace.

(3) The Department may require a fee be paid to the Department to perform an aeronautical study or studies. The fee shall be paid by the sponsor or the representative of the construction or alteration if the construction or alteration requires notice to the ODAV per OAR 738-080-0060. As needed, the Department may adjust, reduce or waive the amount of the fee as the Department sees fit to support the operation costs of performing the aeronautical study or studies. The non-refundable fee for the aeronautical study or studies shall be administered as follows:

(a) The sponsor or representative of the construction or alteration shall notify the Department of the construction or alteration in conformance with OAR 738-080-0080 to initiate the aeronautical study or studies.

(b) The fee for the aeronautical study or studies may be required to be paid prior to delivery of the aeronautical determination or determinations by the Department to the sponsor or representative.

(c) Fees are calculated for each separate instance for each sponsor or representative and are based on actual cost of services provided. Each individual aeronautical study shall have a minimum associated fee of $100.

(4) The Department issues a determination as to whether the proposed construction or alteration would be a hazard to air navigation and sends copies to all known interested persons. This determination is final unless a petition for review is granted under OAR 738-070-0170.

(5) If the sponsor revises his proposal to eliminate exceeding of obstruction standards, or withdraws it, the Department terminates the study and notifies all known interested persons.

(6) The FAA Handbook, Procedures for Handling Airspace Matters, may be used in arriving at the determination.

[Publications: Publications referenced are available from the agency.]

Statutory/Other Authority: ORS 835 & 836
Statutes/Other Implemented: ORS 836.530
History:
AVIA 5-2022, amend filed 08/29/2022, effective 08/29/2022
AVIA 4-2002, f. 11-27-02, cert. ef. 12-1-02
1AD 2-1983, f. & ef. 2-14-83

738-070-0170
Administrative Appeal

(1) The proponent of a construction or alteration or any person who stated a substantial aeronautical objection to it in an aeronautical study, or any person who has a substantial aeronautical objection to it but was not given an opportunity to state it, may petition the Director, within 30 days after issuance of the determination under OAR 738-070-0090 or 738-070-0160 or revision or extension of the determination under 738-070-0180, for a review of the determination, revision, or extension. This section does not apply to any acknowledgment issued under 738-070-0090(3)(a) that does not exceed standards and does not constitute a hazard.

(2) The petition must be in triplicate and contain a full statement of the basis upon which it is made.

(3) Except under section (4) of this rule the Director will examine each petition and decide whether a review will be made and, if so, whether it will be:

(a) A review on the basis of written materials, including a study of a report by the Department of the aeronautical study, briefs, and related submissions by any interested party, and other relevant facts. Following such review, the Director may affirm, revise, or reverse the determination issued under the provisions of this rule;

(b) A review on the basis of a hearing, conducted in accordance with the procedures prescribed in the Administrative Procedures Act for contested cases.

(4) If petitioner qualifies under section (1) of this rule and requests a contested case hearing, the review will be conducted as a contested case under the Administrative Procedures Act. (ORS Chapter 183).

Statutory/Other Authority: ORS 184, 835 & 836
Statutes/Other Implemented: ORS 836.530
History:
AVIA 4-2002, f. 11-27-02, cert. ef. 12-1-02
1AD 2-1983, f. & ef. 2-14-83

738-070-0180
Effective Period of Determination of No Hazard

(1) Unless it is otherwise extended, revised, or terminated, each final determination of no hazard made under OAR 738-070-0060, 738-070-0140 or 738-070-0170 expires 18 months after its effective date, regardless of whether the proposed construction or alteration has been started, or on the date the proposed construction or alteration is abandoned, whichever is earlier.

(2) In any case, including a determination to which section (4) of this rule applies, where the proposed construction or alteration has not been started during the applicable period by actual structural work, such as the laying of a foundation, but not including excavation, any interested person may, at least 15 days before the date the final determination expires, petition the Director to:

(a) Revise the determination based on new facts that change the basis on which it was made; or

(b) Extend its effective period.

(3) The Director will review each petition presented under section (2) of this rule and revise, extend, or affirm the determination as indicated by his findings.

(4) In any case in which a final determination made under OAR 738-070-0060 or 738-070-0140 relates to proposed construction or alteration that may not be started unless the Federal Communications Commission (FCC) issues an appropriate construction permit, the effective period of each final determination includes:

(a) The time required to apply to the FCC for a construction permit, but not more than six months after the effective date of the determination; and

(b) The time necessary for the FCC to process the application except in a case where the Director determines a shorter effective period is required by the circumstances.

(5) If the FCC issues a construction permit, the final determination is effective until the date prescribed for completion of the construction. If the FCC refuses to issue a construction permit, the final determination expires on the date of its refusal.

Statutory/Other Authority: ORS 184, 835 & 836
Statutes/Other Implemented: ORS 836.530
History:
AVIA 4-2002, f. 11-27-02, cert. ef. 12-1-02
1AD 2-1983, f. & ef. 2-14-83

738-070-0190
Establishment of Antenna Farm Areas

Scope:

(1) This section establishes antenna farm areas in which antenna structures may be grouped to localize their effect on the use of navigable airspace.

(2) It is the policy of the FAA and the Department to encourage the use of antenna farms and the single structure-multiple antenna concept for radio and television towers whenever possible. In considering proposals for establishing antenna farm areas, both agencies consider, as far as possible, the revision of aeronautical procedures and operations to accommodate antenna structures that will fulfill broadcasting requirements.

Statutory/Other Authority: ORS 184, 835 & 836
Statutes/Other Implemented: ORS 836.530
History:
1AD 2-1983, f. & ef. 2-14-83

738-070-0200
General Provisions of Antenna Farm Area

(1) An antenna farm area consists of a specified geographical location with established dimensions of area and height, where antenna towers with a common impact on aviation may be grouped.

(2) Each proposal for an antenna farm area is evaluated on the basis of its effect on the use of navigable airspace. The views of the Federal Communications Commission are requested on the effect that each establishment of an antenna farm area would have on its statutory responsibilities. Any views submitted by it are fully considered before the antenna farm concerned is established. If the Commission advises that the establishment of any proposed antenna farm area would interfere with its statutory responsibility, the proposed area is not established.

(3) The establishment of an antenna farm area is considered whenever it is proposed by:

(a) The FAA and/or the Department;

(b) The Federal Communications Commission;

(c) The sponsor of a proposed antenna tower; or

(d) Any other person having a substantial interest in a proposed antenna tower.

Statutory/Other Authority: ORS 184, 835 & 836
Statutes/Other Implemented: ORS 836.530
History:
1AD 2-1983, f. & ef. 2-14-83

738-070-0210
Marking and Lighting of Obstructions to Air Navigation

(1) Certain objects and structures must be marked and/or lighted to make them more visible to pilots. ORS 836.530 states that the Director may adopt rules establishing standards for marking or lighting objects and structures that constitute hazards to air navigation.

(2) In accordance with the rules adopted under ORS 836.530, the Director shall:

(a) Issue orders to require that specific objects or structures determined to be hazards to air navigation be marked or lighted in accordance with the rules adopted;

(b) Determine responsibility for installation and maintenance of lighting or marking specific objects or structures that constitute hazards to air navigation.

Statutory/Other Authority: ORS 184, 835 & 836
Statutes/Other Implemented: ORS 836.530
History:
AVIA 4-2002, f. 11-27-02, cert. ef. 12-1-02
1AD 2-1983, f. & ef. 2-14-83

738-070-0220
Standards for Marking and Lighting of Obstructions to Air Navigation

Federal Aviation Administration Advisory Circular 70/7460-1F entitled, Obstruction Marking and Lighting, and dated September 27, 1978, shall be the standard for marking and lighting objects and structures that constitute hazards to air navigation. By reference that advisory circular is made a part of this rule.

[Publications: Publications referenced are available from the agency.]

Statutory/Other Authority: ORS 184, 835 & 836
Statutes/Other Implemented: ORS 836.530
History:
1AD 2-1983, f. & ef. 2-14-83

738-070-0230
Objects and Structures to Be Marked and Lighted

When the Director has determined that an object or structure is a hazard to air navigation, he shall also determine whether such hazard shall be marked and lighted and shall specify the appropriate marking and lighting in accordance with the standards included in this rule. After this determination has been made, the Director shall issue an order specifying who shall be responsible for the installation and maintenance of the marking and lighting of the object or structure and specifying the type and quantity of marking and lighting:

(1) The Director may agree with the recommendations for marking and lighting contained in an FAA airspace determination for a specific object or structure or he may make a separate and different determination for marking and lighting of that object or structure based on his expertise and his knowledge of the situation.

(2) The type and quantity of marking and lighting for an object or structure shall be determined by the following characteristics of the object:

(a) Location;

(b) Size or height;

(c) Shape;

(d) Type (i.e. chimney, pole, tower, bridge, transmission lines, etc.);

(e) Permanence (temporary obstructions shall be marked and lighted when appropriate).

(3) The Director may deviate from the established marking and lighting standards, except that any deviation must not be more restrictive than current federal norms.

Statutory/Other Authority: ORS 184, 835 & 836
Statutes/Other Implemented: ORS 836.530
History:
AVIA 4-2002, f. 11-27-02, cert. ef. 12-1-02
1AD 2-1983, f. & ef. 2-14-83

738-070-0240
Determination of Responsibility for Installation and Maintenance of Marking and Lighting Objects and Structures that Constitute Hazards to Air Navigation

(1) The proponent of an object or structure that is determined to constitute a hazard to air navigation normally shall be responsible, including paying for all costs, for installation and maintenance of the prescribed marking and lighting.

(2) Under certain conditions, parties other than the proponent may be determined to be responsible for the installation and maintenance of marking and lighting, such as:

(a) After construction of an object or structure, conditions, beyond the control of the owner of the object or structure, change which in turn makes the object or structure a hazard to air navigation (i.e. approval of an airport site and subsequent construction of an airport and an object or structure becomes a hazard by virtue of its proximity to the new airport);

(b) Marking and lighting of an object or structure is for the benefit of a few rather than for the benefit of the public (i.e., for benefit of a personal use airport rather than for benefit of the public at a public use airport).

Statutory/Other Authority: ORS 184, 835 & 836
Statutes/Other Implemented: ORS 836.530
History:
1AD 2-1983, f. & ef. 2-14-83

738-070-0250
Penalties

Failure to comply with the provisions of these rules or failure to comply with an order issued under these rules is subject to the penalties under ORS 837.100 and 837.990.

Statutory/Other Authority: ORS 184, 835 & 836
Statutes/Other Implemented: ORS 836.530
History:
1AD 2-1983, f. & ef. 2-14-83

738-070-0260
Rules of Practice for Hearings

All reviews and appeals of the Department’s decisions under these rules will be in accordance with the Model Rules of Procedure applicable to contested cases under the Administrative Procedure Act as authorized by ORS Chapter 183.

[ED. NOTE: The full text of the Attorney General's Model Rules of Procedure is available from the office of the Attorney General or the Department of Aviation.]

Statutory/Other Authority: ORS 183, 184, 835 & 836
Statutes/Other Implemented: ORS 836.530
History:
1AD 2-1983, f. & ef. 2-14-83