AJV-16-0011-E

Exemption No. 16614

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION

WASHINGTON, DC 20591

 

In the matter of the petition of 

 

DEPARTMENT OF THE 

AIR FORCE Regulatory Docket No. FAA-2015-7520

 

for an exemption from 

§ 73.19 (a) & (b) 

of Title 14, Code of 

Federal Regulations 

 

GRANT OF EXEMPTION

 By letter dated December 7, 2015, Mr. Edward J. Chupein, Bases, Ranges and Airspace, 

United States Air Force (USAF), 112 Luke Avenue, Suite 340, Joint Base Anacostia-Bolling, 

DC 20032, petitioned the Federal Aviation Administration (FAA) on behalf of USAF for an 

exemption from §§ 73.19(a) and (b) of Title 14, Code of Federal Regulations (14 CFR). The 

proposed exemption, if granted, would provide relief from the requirement to submit an annual 

report to the FAA on the use of each restricted area during the preceding 12-month period, for a 

two-year period, fiscal years 2015 and 2016. 

The petitioner requests relief from the following regulations:

Section 73.19 prescribes, in pertinent part, that:

(a) Each using agency shall prepare a report on the use of each restricted area assigned 

thereto during any part of the preceding 12-month period ended September 30, and 

transmit it by the following January 31 of each year to the Manager, Air Traffic Division 

in the regional office of the Federal Aviation Administration having jurisdiction over the 

area in which the restricted area is located, with a copy to the Program Director for Air 

Traffic Airspace Management, Federal Aviation Administration, Washington, DC 

20591.

(b) In the report under this section the using agency shall:
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(1) State the name and number of the restricted area as published in this part, and the 

period covered by the report.

(2) State the activities (including average daily number of operations if appropriate) 

conducted in the area, and any other pertinent information concerning current and future 

electronic monitoring devices.

(3) State the number of hours daily, the days of the week, and the number of weeks 

during the year that the area was used.

(4) For restricted areas having a joint-use designation, also state the number of hours 

daily, the days of the week, and the number of weeks during the year that the restricted 

area was released to the controlling agency for public use.

(5) State the mean sea level altitudes or flight levels (whichever is appropriate) used in 

aircraft operations and the maximum and average ordinate of surface firing (expressed in 

feet, mean sea level altitude) used on a daily, weekly, and yearly basis.

(6) Include a chart of the area (of optional scale and design) depicting, if used, aircraft 

operating areas, flight patterns, ordnance delivery areas, surface firing points, and target, 

fan, and impact areas. After once submitting an appropriate chart, subsequent annual 

charts are not required unless there is a change in the area, activity or altitude (or flight 

levels) used, which might alter the depiction of the activities originally reported. If no 

change is to be submitted, a statement indicating “no change” shall be included in the 

report.

(7) Include any other information not otherwise required under this part which is 

considered pertinent to activities carried on in the restricted area.

The petitioner supports its request with the following information:

The petitioner states that granting the exemption affords the USAF the necessary time to 

properly introduce the Air Force Center Scheduling Enterprise (CSE) as the airspace and range 

management data collection system. Granting the exemption to reporting requirements for 

calendar years 2015 and 2016 allows proper system development and prevents potentially 

inaccurate data from being presented to the FAA. The end state system will provide more 

accurate data that can be analyzed by the USAF and FAA to determine accurate special use 

airspace utilization rates and will assist in creating new tools to better monitor and report on 

airspace and range management, return of airspace to the National Airspace System (NAS), and 

overall stewardship. Finally, the petitioner states that the USAF is prepared to accept the FAA’s 

airspace utilization reports for calendar years 2015 and 2016. The petitioner states that a level 

of safety equal to that provided by the rule will be met because the USAF is willing to provide 

to the FAA utilization reports for specific locations, and upon request, on a case-by-case basis. 

 A summary of the petition was published in the Federal Register on January 12, 2016 

(81 FR 1466). No comments were received.
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The FAA’s analysis is as follows:

The FAA has fully considered the petitioner’s request and supporting information in the 

petition for an exemption from § 73.19(a) and (b). The FAA finds that a grant of exemption in 

this specific case would be in the public interest and would not adversely affect safety.

The FAA is responsible for efficiently utilizing airspace within the United States and

establishing areas of airspace that pertain to the interest of national defense as well as allow 

maximum use of the navigable airspace by civil aircraft consistent with national security. The 

FAA designates special use airspace, which consists of airspace of defined dimensions 

identified by an area on the surface of the earth wherein activities must be confined because of 

their nature, or wherein limitations are imposed upon aircraft operations that are not a part of 

those activities, or both.1 In order to ensure the efficient utilization of special use airspace 

areas, the FAA has established the joint-use of these areas. Under the joint-use concept, special 

use airspace (e.g., restricted areas, military operations areas (MOAs)) are released to the 

controlling agency (FAA or military Air Traffic facility) by the using agency (military unit

whose activity established the requirement for the special use airspace). Once released, these 

special use airspace areas become available for access by nonparticipating aircraft during 

periods when the airspace is not needed by the using agency for its designated purpose.

2 The 

joint-use of special use airspace is a key component to maintaining a flexible National Airspace 

System (NAS) that allows for maximum use of the airspace by all airspace users. 

Each using agency is required to prepare and submit to the FAA a report detailing the 

use of each restricted area assigned thereto during the 12-month period ending on September 

30.

3 The report must be submitted by January 31 of the following year.4 Section 73.19(b) 

details the data required in the annual report. The annual report assists the FAA in determining 

whether the type and amount of hazardous activity contained therein justifies the continued 

designation of the restricted area. Though it is not the intent of the FAA to regard the annual 

utilization report as the sole determinant for the retention or establishment of restricted areas, 

the report serves as a guide in the continuing review of these areas. The report allows the FAA 

to analyze and assess restricted area usage and to confirm that utilization conforms to the 

purpose and manner for which the restricted area was established by the corresponding Final 

Rule and legal description defined in FAA JO 7400.8, Special Use Airspace. 

The FAA acknowledges the role that proper stewardship of airspace delegated to military 

departments has on the efficient utilization of the NAS. The FAA also acknowledges the 

importance of receiving accurate restricted area utilization data from using agencies and 

recognizes the impact accurate data reporting has on the FAA’s ability to analyze the using 

agency’s stewardship of delegated special use airspace. If inaccurate data is submitted by the 

using agency, the FAA cannot properly assess the efficient utilization of the airspace. 

Therefore, ensuring the FAA receives accurate data, in order to assess proper stewardship of 

 1 14 CFR § 73.3(a)

2 FAA JO 7400.2, Procedures for Handling Airspace Matters, paragraph 21-1-8, Joint Use Policy 3 14 CFR § 73.19(a)

4 The FAA notes that the petitioner requested relief from submitting utilization reports for calendar years 2015 and 

2016. By regulation, utilization reports cover activity during a fiscal year. We have construed the petition as a 

request for relief from FY2015 and FY2016 reporting requirements.
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delegated airspace for the purpose of insuring efficient utilization of the airspace, is in the 

public interest. 

The petitioner states that granting an exemption affords the United States Air Force 

(USAF) the necessary time to properly introduce Air Force Center Scheduling Enterprise 

(CSE) as the airspace and range management data collection system. Additionally, the end 

state system will provide more accurate data to determine utilization rates, and assist in the 

creation of new matrixes to better monitor and report on airspace and range management, return 

of the airspace to the NAS, and overall stewardship of the NAS. The FAA acknowledges that 

accurate tracking and reporting of restricted area utilization data is key to insuring efficient 

utilization of those areas, whereas inaccurate data hinders this effort. Therefore, the FAA 

agrees that allowing the Air Force a period of time to finalize Air Force CSE as the airspace 

and range management data collection system is in the interest of the FAA and in the public

interest. 

In addition to requesting relief from § 73.19(a) and (b), the USAF requested relief from 

the requirement to provide the FAA with annual utilization reports detailing the use of all 

assigned restricted areas and MOAs.5 The FAA acknowledges that the restricted area 

utilization reporting requirement in FAA JO 7400.2 was modeled on the requirement in § 

73.19, but an exemption is not an appropriate avenue for non-regulatory relief. Exemptions 

apply to the CFRs only. As such, the FAA is unable to grant an exemption to a using agency’s 

submission of annual utilization reports detailing the use of all assigned restricted areas and 

MOAs.

6 Your request for relief from FAA JO 7400.2 annual utilization reporting requirements 

will be addressed separately via memorandum. 

To the extent that the petitioner states its willingness to rely on FAA utilization reports 

for the relevant period, such reliance is impracticable as the FAA is not required to track or 

maintain airspace utilization data from sources internal to the FAA. When assessing efficient 

utilization of the airspace, via proper stewardship of airspace delegated to the military 

departments, the FAA relies on the airspace legal description defined in FAA JO 7400.8, 

Special Use Airspace, and the annual utilization reports submitted each year by the using 

agencies. Without the reports to supplement the planned usage determined by the airspace 

legal description, the FAA cannot perform its required annual review.

7 For this reason, it is not 

acceptable for the FAA not to receive any utilization information from the USAF. Though 

meeting an equivalent level of safety to the rule does not apply to this case because the 

utilization reporting requirement pertains to the efficient use of the airspace, and not safety, the 

FAA finds this mitigation acceptable. In addition, the FAA will require notification from the 

USAF that restricted areas are planned to be utilized in accordance with the purpose for which 

they were established by the corresponding final rule that established the restricted airspace, 

and FAA JO 7400.8. The FAA finds these avenues of obtaining utilization data acceptable, for 

a specified period of time. 

 5 FAA JO 7400.2, Chapter 21, Section 7

6 Ibid.

7 FAA JO 7400.2, 21-7-5, Review Requirement
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Based on the analysis outlined above, the FAA recognizes that exempting the USAF 

from restricted area utilization reporting for fiscal years 2015 and 2016, under certain 

conditions and limitations, is in the public interest. 

The FAA’s Decision

 In consideration of the foregoing, I find that a grant of exemption is in the public interest. 

Therefore, pursuant to the authority contained in 49 U.S.C. §§ 106(f), 40109, 40113 and 44701, 

delegated to me by the Administrator, the United States Air Force is granted an exemption from 

14 CFR § 73.19(a) and (b) to the extent necessary to allow the United States Air Force to 

finalize the Air Force CSE as the airspace and range management data collection system, 

subject to the conditions and limitations listed below.

Conditions and Limitations

1. The petitioner shall prepare a report, for each fiscal year, on the planned use of each 

restricted area for the preceding 12-month period ending 30 September, and transmit 

it to the office of the service area director having jurisdiction over the airspace being 

reported. Information required in the report:

a) A statement that all restricted areas are planned to be utilized in accordance with 

the purpose for which they were established, as defined in the corresponding

final rule that established each restricted area, and in accordance with the legal 

description defined in FAA JO 7400.8, Special Use Airspace; 

b) As an attachment, a comprehensive list of all restricted areas (by number) to 

which this exemption applies; and

c) The applicable reporting period (e.g., FY 2015, FY 2016).

2. An information copy of the report will be sent to the Director of Mission Support, 

Airspace Services, Federal Aviation Administration, 800 Independence Avenue, 

SW., Washington, DC 20591.
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3. The USAF must furnish restricted area utilization reports for specific locations, on a 

case-by-case basis, when requested by the FAA. When requested, the reports will 

conform to the requirements set forth in 14 CFR § 73.19 and FAA JO 7400.2, 

Chapter 21, Section 7.

This exemption terminates on March 31, 2017, unless sooner superseded or rescinded.

Issued in Washington, D.C., on April 28, 2016. .

/s/

Gary A. Norek

Director, Airspace Services