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 Ave nue , 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 exemptio n, 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) E ach 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

trans mit 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 Directo r for Air Traffic Airspace Management, Federal Aviation Administration, Washington, DC

20591.

(b) In the report under this section the using agency shall:2 (1) State the name and number of the restricted area as published in this part, and the period cove red 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 t he 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

fe et, 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 ran ge 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 pr ovide 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 Na tional 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 pr ovided 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.3 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 exe mption 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 Unite d States and

establish ing areas of airspace that pertain to the interest of natio nal defense as well as allow maximum use of the navigable airspace by civil aircraft consistent with national security. T he

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 e nsure the efficient utilization of special use airspace

areas, t he 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 re leased 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 acces s 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.

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

u se 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

u tilization r eport as the sole determinant for the retention or establishment of restricted areas, the report serves as a guide in the c ontinuing review of these areas. The report allows the FAA

to analyz e and assess restricted area u sage and to confirm that utilization conforms to the purpose and manner for which the restricted area was established by the corresponding F inal

R ule 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

. T he 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 d ata is submitted by the using agency , the FAA cannot properly assess the efficient utilization of the airspace

. Therefore, e nsuring 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 FY 2015 and FY2016 reporting requirements.4 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 ra nge 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 inaccurat e data hinders this effort

. Therefore, t he FAA agrees that allowing the Air Force a period of time to finaliz e 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 additi on 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 re liance is impracticable as t he 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 departmen ts , 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 ap ply to this case because the utilization reporting requirement pertains to the efficient use of the airspace, and not safety, t he FAA finds this mitigation acceptable. In addition, t he 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 f inal r ule that established the restricted airspace

, and FAA JO 7400.8. The FAA finds th ese avenue s 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 Requirement5 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 pu blic 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 l isted 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

f inal r ule 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., F Y 2015, F Y 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 20591.6 3. The USAF must furnish restricted area utilization reports for specific location s
, on a

case

- by

- case basis, when requested by the FAA. When requested, t he 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