AFS-10-234-E 

Jul 16 2010 

 Exemption No. 9992A 

 Regulatory Docket No. FAA-2001-9369 

Mr. Robin M. Dooley 

Customs and Border Protection 

Office of Air & Marine 

1300 Pennsylvania Avenue, NW., Suite 6.4A 

Washington, DC 20229 

Dear Mr. Dooley: 

This letter is to inform you that we have partially granted your request for an amendment to 

Exemption No. 9992. It transmits our decision, explains its basis, and gives you the 

conditions and limitations of the exemption, including the date it ends. 

The Basis for Our Decision 

By letter dated December 12, 2008, you petitioned the Federal Aviation Administration 

(FAA) on behalf of Department of Homeland Security, Customs and Border Protection, 

Office of Air and Marine (CBPAM) for an amendment to Exemption No. 9992. That 

exemption from §§ 91.117(a), (b), and (c), 91.119(c), 91.159(a), and 91.209(a)(1) and (b) of 

Title 14, Code of Federal Regulations allows CBPAM to conduct air operations in support of 

drug law enforcement and drug traffic interdiction. The amendment you request, if granted, 

would permit relief from §§ 91.111(a) and (b), 91.131(d), 91.135(c) and (d), and 91.215(b) 

and (c). 

In your petition, you indicate that there has been no change in the conditions and reasons 

relative to public interest and safety that were the basis for granting the original exemption. 

The FAA has determined that good cause exists for not publishing a summary of the petition 

in the Federal Register because the requested amendment to the exemption would not set a 

precedent, and any delay in acting on this petition would be detrimental to CBPAM. 
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Our Decision 

The FAA has fully considered your petition for an exemption from § 91.111(a). The FAA has 

determined that the circumstances you present do not justify granting the requested 

amendment. You have not shown that operating an aircraft so close to another aircraft as to 

create a collision hazard can be conducted with an equivalent level of safety for the aircraft, 

crewmembers, passengers, and persons and property on the surface. Although air operations 

in support of law enforcement are in the public interest, CBPAM has not established that the 

risks imposed by this type of operation can be sufficiently mitigated to establish an equivalent 

level of safety. Accordingly, the request for exemption from § 91.111(a) is denied. 

The FAA has also considered your petition for an exemption from § 91.111(b) and found that 

the circumstances justify granting the requested amendment. The FAA previously granted the 

Department of Justice, Immigration and Naturalization Service (INS), relief from § 91.111(b) 

to permit INS to conduct in-flight identification, surveillance, and pursuit operations of 

aircraft entering the United States that are suspected of smuggling people or contraband. See

Exemption No. 1533(c) (Apr. 10, 1997). The circumstances you cite in your request for relief 

are very similar to those in the INS’s request, notably the need for short duration operations 

close to other aircraft to identify aircraft registration numbers, descriptions of pilots and 

passengers, and to ascertain cargo in plain sight. We note that an exemption from this 

provision does not relieve the pilot from the “see and avoid” requirements of § 91.113. Under 

the conditions of this exemption, CBPAM will be required to have a dedicated observer on 

board each operation to assist the pilot with “see and avoid” surveillance. 

The FAA has also carefully considered your request for relief from §§ 91.131(d), 91.135(c) 

and (d), and 91.215(b) and (c). The FAA notes that it previously granted the Department of 

the Air Force and the Department of the Navy relief from portions of § 91.215 to permit them 

to conduct air combat training with operable transponders turned off. These exemptions were 

applicable to only certain military aircraft operated above 10,000 feet mean sea level in 

specifically designated airspace defined as the “transponder-off area.” See Exemption 

No. 6741 (Mar. 31, 2001); Exemption No. 4633F (Dec. 31, 1996). Your request to conduct 

operations with air traffic control (ATC) transponders off is not confined to specifically 

defined airspace. The FAA finds that granting the amendment you request would pose 

unacceptable hazards and risks. Therefore, your petition for an exemption from § 91.215(b) 

and (c) is denied. Similarly, your request for relief from §§ 91.131(d) and 91.135(c) and (d) 

include some of the busiest airspaces in the country. There are provisions in these regulations 

that allow partial relief by advance coordination with ATC which would permit operations for 

short periods of time with safety oversight from ATC. The FAA has determined that the 

present circumstances do not justify granting the requested amendments. You have not shown 

how the requested amendment would be in the public interest or how it would maintain an 

equivalent level of safety. Therefore, your requests for relief from §§ 91.131(d) and 91.135(c) 

and (d) are denied. 
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Under the authority contained in 49 U.S.C. §§ 40113 and 44701, which the FAA 

Administrator has delegated to me, I hereby partially amend your petition to Exemption 

No. 9992 to include § 91.111(b). The conditions and limitations of Exemption No. 9992, as 

amended, remain the same. 

Conditions and Limitations 

1. The pilot of an aircraft engaged in operations authorized herein is not relieved 

from the see and avoid requirements of § 91.113, Right-way-rules: Except water 

operations, or any other regulatory requirement not specifically relieved under this 

exemption. 

2. Operations under this exemption are authorized only to the extent necessary for the 

interdiction aircraft to obtain positive identification of, and maintain visual contact 

with, a suspect aircraft, vessel, or vehicle. 

3. When operating in noncompliance with the regulations under this exemption, the 

pilot must ensure that a dedicated observer, in addition to the pilot, is onboard the 

interdiction aircraft. The observer’s responsibility must be to assist the pilot in 

seeing and avoiding other aircraft. When use of a dedicated observer in the 

interdiction aircraft is not possible due to aircraft configuration, the use of primary 

radar equipment that is capable of detecting all aircraft operating in the vicinity of 

the interdiction aircraft, or a dedicated spotter aircraft with a qualified observer on 

board, may be used to assist the pilot of the interdiction aircraft in seeing and 

avoiding another aircraft. Spotter aircraft or aircraft having onboard primary radar 

equipment for the purpose of detecting other aircraft must maintain two-way radio 

communications with the interdiction aircraft with advisories regarding the relative 

positions of other aircraft in the area. Spotter aircraft and primary radar 

surveillance aircraft must be operated for the sole purpose of detecting other 

aircraft in the vicinity and advising the pilot of the interdiction aircraft of potential 

collision hazards and must not be engaged in the interdiction operation. 

4. Relief from the provisions of § 91.117(a) and (c) may be granted provided a 

dedicated observer having the sole responsibility to assist the pilot in detecting and 

avoiding other aircraft is onboard the aircraft. Further, the FAA has determined 

that relief from the provisions of § 91.117(b) may be granted provided the CBPAM 

pilot establishes two-way radio communication with the appropriate air traffic 

control tower (ATCT) controller, maintains two-way radio communication with 

the appropriate ATCT before entering the affected ATCT’s airspace, complies 

with any instructions or clearances from the ATCT controller, and maintains twoway radio communication with the appropriate ATCT before entering the affected 

ATCT’s airspace and for the duration of the operations within the ATCT’s 

airspace. Additionally, as in the case of relief from the provisions of § 91.117(a) 

and (c), a dedicated observer must be on board the aircraft to watch for, and alert 
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the pilot to, other aircraft. The use of ATC traffic advisory service, when 

available, is highly recommended. This grant of exemption, however, should not 

be construed as obligating any ATC facility to provide traffic advisory service, and 

the receipt of ATC traffic advisory does not relieve the CBPAM pilot from the 

responsibility to see and avoid other aircraft. 

5. The FAA is authorizing CBPAM to operate its aircraft at altitudes in 

noncompliance with § 91.119(c): 

a. Only for law enforcement or drug interdiction operations in a missioncompromised situation; and 

b. Provided the CBPAM aircraft may be operated as close as 200 feet from the 

suspect but no closer than 500 feet from other persons, vehicles, vessels, or 

structures. 

6. The FAA is authorizing CBPAM to operate its aircraft at altitudes in 

noncompliance with § 91.159(a): 

a. Only to the extent necessary to obtain positive identification of a suspect 

aircraft and to maintain visual contact with that aircraft; and 

b. Provided a dedicated onboard observer will assist the pilot in seeing and 

avoiding other aircraft. A pilot of the CBPAM aircraft may not operate at an 

altitude in noncompliance with § 91.159(a) within ATCT controlled airspace 

unless specifically authorized by the ATC facility having jurisdiction over that 

airspace. Additionally, the CBPAM aircraft must be equipped with an 

operable transponder with automatic altitude reporting capability (Mode C) 

that is replying on the appropriate code assigned by ATC. 

7. Operations in noncompliance with § 91.209(a)(1) and (b) are authorized only for 

those aircraft engaged in air interdiction operations and only when one of the 

following alternative means of deriving air traffic information is used: 

a. Primary radar equipment capable of detecting all aircraft operating within the 

vicinity of the interdiction aircraft; or 

b. Spotter aircraft operating in a position to visually detect other aircraft in the 

vicinity of the interdiction aircraft. Interdiction aircraft must maintain two-way 

radio communications with the spotter aircraft for the purpose of receiving air 

traffic information regarding other aircraft operating in the vicinity and for 

advising the pilot of the interdiction aircraft of potential collision hazards. 

Only CBPAM interdiction aircraft are authorized to operate without lighted 

position/anti-collision lights. Any other aircraft used by the petitioner as 

spotter aircraft or primary radar surveillance aircraft must be operated in 

compliance with § 91.209(a)(1) and (b). Interdiction aircraft must operate the 

aircraft’s position lights to the maximum extent practicable and may only 
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operate without lights when necessary to avoid detection by elements engaged 

in illegal drug activities. 

8. The pilot of the interdiction aircraft must: 

a. Establish two-way radio communication with the appropriate ATCT before 

entering the ATCT’s airspace area; 

b. Maintain two-way radio communication while within the affected ATCT’s 

airspace area; 

c. Comply with all instructions and clearances from the ATCT; and 

d. If available, should receive ATC advisory service from the ATCT. 

9. CBPAM must ensure that all pilots and crewmembers who will conduct airborne 

drug interdiction are thoroughly briefed and have a complete understanding of the 

conditions and limitations of this exemption. 

10. The petitioner must ensure that all aircraft used to conduct operations under this 

exemption are equipped with a Mode C transponder and that the transponder is 

operated on the appropriate code or as assigned by ATC. 

The Effect of Our Decision 

The termination date of Exemption No. 9992, as amended, remains January 31, 2012, unless 

sooner superseded or rescinded. 

Sincerely, 

/s/ 

Bradley D. Pearson 

Acting Director, Flight Standards 

 Service