[Code of Federal Regulations]
[Title 23, Volume 1]
[Revised as of April 1, 2002]
From the U.S. Government Printing Office via GPO Access
[CITE: 23CFR710.405]

[Page 341-342]
 
                           TITLE 23--HIGHWAYS
 
 CHAPTER I--FEDERAL HIGHWAY ADMINISTRATION, DEPARTMENT OF TRANSPORTATION
 
PART 710--RIGHT-OF-WAY AND REAL ESTATE--Table of Contents
 
                   Subpart D--Real Property Management
 
Sec. 710.405  Air rights on the Interstate.

    (a) The FHWA policies relating to management of airspace on the 
Interstate for non-highway purposes are included in this section. 
Although this section deals specifically with approval actions on the 
Interstate, any use of airspace contemplated by a STD must assure that 
such occupancy, use, or reservation is in the public interest and does 
not impair the highway or interfere with the free and safe flow of 
traffic as provided in 23 CFR 1.23.
    (1) This subpart applies to Interstate facilities which received 
title 23 of the United States Code assistance in any way.
    (2) This subpart does not apply to the following:
    (i) Non-Interstate highways.
    (ii) Railroads and public utilities which cross or otherwise occupy 
Federal-aid highway right-of-way.
    (iii) Relocations of railroads or utilities for which reimbursement 
is claimed under 23 CFR part 140, subparts E and H.
    (iv) Bikeways and pedestrian walkways as covered in 23 CFR part 652.

[[Page 342]]

    (b) A STD may grant rights for temporary or permanent occupancy or 
use of Interstate system airspace if the STD has acquired sufficient 
legal right, title, and interest in the right-of-way of a federally 
assisted highway to permit the use of certain airspace for non-highway 
purposes; and where such airspace is not required presently or in the 
foreseeable future for the safe and proper operation and maintenance of 
the highway facility. The STD must obtain prior FHWA approval, except 
for paragraph (c) of this section.
    (c) An STD may make lands and rights-of-way available without charge 
to a publicly owned mass transit authority for public transit purposes 
whenever the public interest will be served, and where this can be 
accomplished without impairing automotive safety or future highway 
improvements
    (d) An individual, company, organization, or public agency desiring 
to use airspace shall submit a written request to the STD. If the STD 
recommends approval, it shall forward an application together with its 
recommendation and any necessary supplemental information including the 
proposed airspace agreement to the FHWA. The submission shall 
affirmatively provide for adherence to all policy requirements contained 
in this subpart and conform to the provisions in the FHWA's Airspace 
Guidelines at: http://www.fhwa.dot.gov/realestate/index.htm.