AFS-10-234-E

Jul 16 2010

Exemp tion No. 9992A Regul atory 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, exp lains its basis, and gives you the conditions and limitations of the exemption, includ ing the date it ends.

The Basis for Our Decision

By letter dated December 12, 2008, you petitioned t he Federal Aviation Administration (FAA) on behalf of Department of Homeland Security, Customs and Border Protection, Office of Air and Marine (CBPAM) for an amendment t o 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), 91.1 31(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 th e basis for granting the original exemption.

The FAA has determined that good cause exists for n ot publishing a summary of the petition in the Federal Register

because the requested amendment to the exemption w ould not set a precedent, and any delay in acting on this petition would be detrimental to CBPAM.2

Our Decision

The FAA has fully considered your petition for an e xemption from § 91.111(a). The FAA has determined that the circumstances you present do no t justify granting the requested amendment. You have not shown that operating an a ircraft 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 o n the surface. Although air operations in support of law enforcement are in the public int erest, CBPAM has not established that the risks imposed by this type of operation can be suff iciently mitigated to establish an equivalent level of safety. Accordingly, the request for exem ption from § 91.111(a) is denied.

The FAA has also considered your petition for an ex emption from § 91.111(b) and found that the circumstances justify granting the requested am endment. The FAA previously granted the Department of Justice, Immigration and Naturalizati on 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 suspec ted of smuggling people or contraband. See Exemption No. 1533(c) (Apr. 10, 1997). The circums tances you cite in your request for relief are very similar to those in the INS’s request, not ably the need for short duration operations close to other aircraft to identify aircraft regist ration 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 req uired 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 transp onders turned off. These exemptions were applicable to only certain military aircraft operat ed above 10,000 feet mean sea level in specifically designated airspace defined as the “tr ansponder-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) transpond ers 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 pe tition for an exemption from § 91.215(b) and (c) is denied. Similarly, your request for rel ief from §§ 91.131(d) and 91.135(c) and (d) include some of the busiest airspaces in the countr y. There are provisions in these regulations that allow partial relief by advance coordination w ith ATC which would permit operations for short periods of time with safety oversight from AT C. The FAA has determined that the present circumstances do not justify granting the r equested 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 reques ts for relief from §§ 91.131(d) and 91.135(c) and (d) are denied.3

Under the authority contained in 49 U.S.C. §§ 40113 and 44701, which the FAA Administrator has delegated to me, I hereby partial ly amend your petition to Exemption No. 9992 to include § 91.111(b). The conditions an d limitations of Exemption No. 9992, as amended, remain the same.

Conditions and Limitations

1. The pilot of an aircraft engaged in operations auth orized herein is not relieved from the see and avoid requirements of § 91.113, Ri ght-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 identifica tion of, and maintain visual contact with, a suspect aircraft, vessel, or vehicle.

3. When operating in noncompliance with the regulation s under this exemption, the pilot must ensure that a dedicated observer, in add ition to the pilot, is onboard the interdiction aircraft. The observer’s responsibili ty 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 aircra ft configuration, the use of primary radar equipment that is capable of detecting all ai rcraft operating in the vicinity of the interdiction aircraft, or a dedicated spotter a ircraft with a qualified observer on board, may be used to assist the pilot of the inter diction aircraft in seeing and avoiding another aircraft. Spotter aircraft or air craft having onboard primary radar equipment for the purpose of detecting other aircra ft must maintain two-way radio

communications with the interdiction aircraft with advisories regarding the relative positions of other aircraft in the area. Spotter a ircraft 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 in terdiction operation.

4. Relief from the provisions of § 91.117(a) and (c) m ay be granted provided a dedicated observer having the sole responsibility t o assist the pilot in detecting and avoiding other aircraft is onboard the aircraft. F urther, 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 A TCT’s airspace, complies with any instructions or clearances from the ATCT c ontroller, and maintains twoway radio communication with the appropriate ATCT b efore entering the affected ATCT’s airspace and for the duration of the operati ons within the ATCT’s airspace. Additionally, as in the case of relief f rom the provisions of § 91.117(a) and (c), a dedicated observer must be on board the aircraft to watch for, and alert4

the pilot to, other aircraft. The use of ATC traff ic advisory service, when available, is highly recommended. This grant of ex emption, however, should not be construed as obligating any ATC facility to prov ide traffic advisory service, and the receipt of ATC traffic advisory does not reliev e the CBPAM pilot from the responsibility to see and avoid other aircraft.

5. The FAA is authorizing CBPAM to operate its aircraf t at altitudes in noncompliance with § 91.119(c):

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

b. Provided the CBPAM aircraft may be operated as clos e as 200 feet from the suspect but no closer than 500 feet from other pers ons, vehicles, vessels, or

structures.

6. The FAA is authorizing CBPAM to operate its aircraf t at altitudes in noncompliance with § 91.159(a):

a. Only to the extent necessary to obtain positive ide ntification of a suspect

aircraft and to maintain visual contact with that a ircraft; and

b. Provided a dedicated onboard observer will assist t he pilot in seeing and avoiding other aircraft. A pilot of the CBPAM airc raft may not operate at an altitude in noncompliance with § 91.159(a) within A TCT 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 report ing capability (Mode C) that is replying on the appropriate code assigned b y ATC.

7. Operations in noncompliance with § 91.209(a)(1) and (b) are authorized only for those aircraft engaged in air interdiction operatio ns and only when one of the following alternative means of deriving air traffic information is used:

a. Primary radar equipment capable of detecting all ai rcraft operating within the vicinity of the interdiction aircraft; or

b. Spotter aircraft operating in a position to visuall y detect other aircraft in the vicinity of the interdiction aircraft. Interdictio n aircraft must maintain two-way radio communications with the spotter aircraft for the purpose of receiving air traffic information regarding other aircraft operat ing 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 airc raft must be operated in compliance with § 91.209(a)(1) and (b). Interdicti on aircraft must operate the aircraft’s position lights to the maximum extent pr acticable and may only5

operate without lights when necessary to avoid dete ction by elements engaged in illegal drug activities.

8. The pilot of the interdiction aircraft must:

a. Establish two-way radio communication with the appr opriate ATCT before entering the ATCT’s airspace area;

b. Maintain two-way radio communication while within t he affected ATCT’s airspace area;

c. Comply with all instructions and clearances from th e ATCT; and

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

9. CBPAM must ensure that all pilots and crewmembers w ho 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 t o conduct operations under this exemption are equipped with a Mode C transponder an d 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 amen ded, remains January 31, 2012, unless sooner superseded or rescinded.

Sincerely,

/s/ Bradley D. Pearson Acting Director, Flight Standards

Service