AFS-14-025-E

December 17, 2013

 Exemption No. 10490A

 Regulatory Docket No. FAA-2001-9369

Mr. Richard T. Booth

Director, Domain Operations and Integration

U.S. Customs and Border Protection

Office of Air and Marine

1300 Pennsylvania Avenue, N.W., Suite 6.4A

Washington, DC 20229

Dear Mr. Booth:

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

10490. It explains the basis for our decision and describes its effect.

The Basis for Our Decision

By letter dated October 16, 2013, you petitioned the Federal Aviation Administration (FAA) 

on behalf of U.S. Customs and Border Protection, Office of Air and Marine (CBPAM) for an 

extension of Exemption No. 10490. The exemption provides relief from §§ 91.111(b), 

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 (14 CFR) to allow CBPAM to conduct air operations in support of drug 

law enforcement and drug traffic interdiction.

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. The requested extension of the exemption would not set a precedent, 

and any delay in acting on this petition would be detrimental to CBPAM.

Our Decision

Under the authority contained in 49 U.S.C.§§ 106(f), 40113 and 44701, which the FAA 

Administrator has delegated to me, I hereby grant U.S. Customs and Border Protection, Office 
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of Air and Marine an exemption from 14 CFR §§ 91.111(b), 91.117(a), (b), and (c), 91.119(c), 

91.159(a), and 91.209(a)(1) and (b) to the extent necessary for CBPAM to conduct air 

operations in support of drug law enforcement and drug traffic interdiction, subject to the 

conditions and limitations described below.

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 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, must be used to 

assist the pilot of the interdiction aircraft in detecting 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) 
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and (c), a dedicated observer must be on board the aircraft to watch for, and alert 

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 
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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 

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.

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

The Effect of Our Decision

Our decision extends the termination date of Exemption No. 10490 to April 30, 2016, unless 

sooner superseded or rescinded. 

Sincerely,

/s/

John Barbagallo

Acting Deputy Director, Flight Standards Service