AFS-14-517-E

April 30, 2015

 

 Exemption No. 8028E

 Regulatory Docket No. FAA-2002-14119

Colonel R. J. Gomez

Director, USMC Safety Division

2 Navy Annex

Washington, DC 20380-1775

Dear Colonel Gomez:

This letter is to inform you that we have granted your petition to extend Exemption No. 8028, 

as amended. It explains the basis for our decision, describes its effect, and lists the new and 

amended conditions and limitations.

The Basis for Our Decision

By letter dated September 15, 2014, you petitioned the Federal Aviation Administration 

(FAA) on behalf of Department of the Navy (DON) for an extension of Exemption No. 8028, 

as amended. That exemption from §§ 91.209(a)(1) and (2) of Title 14, Code of Federal 

Regulations allows the DON to conduct U.S. Marine Corps (USMC) rotorcraft, which include 

rotary-wing and tilt rotor aircraft, night-vision goggle (NVG) flight training operations 

without lighted position lights. In addition, you requested a 3-year extension period.

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 extension of the exemption would not set a 

precedent, and any delay in acting on this petition would be detrimental to DON.

The FAA also finds that DON use of NVGs can provide an added level of safety because of 

the user’s ability to detect conventional lighting at extended distances. The FAA believes, 

that despite this increased visibility during hours of darkness, NVGs effectively limit the 

user’s peripheral vision and that using the NVG system during maneuvering may limit the 

user’s vision to only the target or object in view. 
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The FAA believes that this reduced field of view during the use of NVGs may lead to a lack 

of see-and-avoid capability. Therefore, the FAA finds that it is imperative that flightcrews 

using NVGs operate in monitored airspace or, when not operating in monitored airspace, 

operate in airspace within a prescribed area that is identified in a Notice to Airmen (NOTAM) 

that must be issued at least 48 hours before the lights-out operations are to begin. The 

NOTAM must be made available to the civil aviation community and must be capable of 

being disseminated among civil users of the National Airspace System. The FAA also finds 

that persons monitoring flight operations activity must make pilots of participating aircraft 

aware of the presence of nonparticipating traffic. The monitoring of flight operations may be 

performed by military personnel not participating in NVG training activities (i.e., air traffic 

controllers, military radar unit personnel, airborne radar unit personnel, or pilots of 

nonparticipating aircraft observing the NVG training).

Therefore, the FAA has addedand amended multiple conditions and limitationsto (1) maintain

an acceptable level of safety while operating under this exemption and (2) align the conditions 

and limitations with other petitioners similarly situated. When compared to exemption 

number 8028D, this exemption adds conditions and limitations numbers 5 and 11; and 

amends the language of conditions and limitations numbered 4, 6.d, 6.e. and 7. It is important 

that all persons involved with the exercise of this exemption be familiar with the changes that 

have been incorporated in this revision. 

Our Decision

The FAA has determined that the justification for the issuance of Exemption No. 8028, as 

amended, remains valid with respect to this exemption and is in the public interest. Under the 

authority contained in 49 U.S.C. 40113 and 44701, which the FAA Administrator has 

delegated to me, I hereby grant the Department of the Navy an exemption from 

14 CFR §§ 91.209(a)(1) and (2) to the extent necessary to allow the DON to conduct USMC 

aircraft night-vision goggle flight training operations utilizing rotary-wing and tilt rotor 

aircraft without lighted position lights, subject to the conditions and limitations below.

Conditions and Limitations

1. Operations conducted under this exemption are limited to NVG flight training in USMC 

aircraft.

2. The USMC must conduct its airborne training operations—

a. In a flight of two or more aircraft with a dedicated observer on duty aboard each 

aircraft, the flight must be conducted in a manner that enables the observers 

collectively to survey fully about the entire flight for nonparticipating aircraft; or

b. While escorted by a properly lighted aircraft serving as an observation platform 

dedicated to surveillance for nonparticipating traffic. 
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3. The observers must provide the training flight with timely traffic notifications that relate 

the position and speed of the observed nonparticipating traffic.

4. When nonparticipating traffic is determined to pose a threat of conflict or collision risk, 

all participating aircraft will immediately suspend their operations, return to normal 

lighting conditions, and alter course as necessary to ensure the safety of the 

nonparticipating aircraft. 

5. All NVG flight training operations conducted under this exemption must be contained 

within a prescribed area that is identified in a Notice to Airmen (NOTAM) that must be 

issued at least 48 hours before the lights-out operations are to begin. In other words, no 

person may operate an aircraft under this exemption unless a NOTAM concerning the 

lights-out operation was issued at least 48 hours before the lights-out operation. The

NOTAM must be made available to the civil aviation community and must be capable 

of being disseminated among civil users of the National Airspace System.

6. The USMC must conduct its airborne training operations at or below 500 feet above the 

surface and must contain the operations within a prescribed and publicized area that—

a. Is simply defined (for example, the radius area of a point or location);

b. Is established in an area of low traffic density;

c. Is not within 4 nautical miles of any public use airport;

d. Has been coordinated with the appropriate FAA Service Center Operations Support 

Group (OSG) and Flight Standards District Office.

e. Has been coordinated with the appropriate geographically responsible FAA air

traffic control (ATC) facility.

7. During training in an urban environment that may require an altitude greater than 

500 feet above the surface, the USMC must coordinate further with the appropriate 

FAA Service Center OSG, Flight Standards District Office, and geographically 

responsible FAA air traffic control (ATC) facility.

8. The USMC may conduct ground operations in noncompliance with § 91.209(a)(2) at an 

airport or staging area where only USMC aircraft are involved and suitable alternative 

measures for collision avoidance are instituted.

9. Each pilot who participates in operations conducted under this exemption must be 

thoroughly familiar with its provisions.
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10. The USMC must disclose each approved training area to operators at all airports within 

50 nautical miles of the area for 60 days before the area’s initial use.

11. Failure to comply with all of the provisions of this grant of exemption may result in a 

revocation or cancellation of this grant of exemption.

12. This exemption is not valid for operations outside of the United States.

The Effect of Our Decision

Our decision extends the termination date of Exemption No. 8028, as amended, to 

April 30, 2018, unless sooner superseded or rescinded. This letter must be attached to, and is 

a part of, Exemption No. 8028.

Sincerely,

//s//

John Barbagallo

Deputy Director, Flight Standards Service