Exem ption No. 10300

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION WASHINGTON, DC 20591

In the matter of the petition of

U.S. CUSTOMS AND BORDER Regulatory Docket No. FAA-2011-0688

PROTECTION

for an exemption from § 91.209(a)(1) and (b) of Title 14, Code of Federal Regulations

GRANT OF EXEMPTION

By letter dated May 23, 2011, Mr. Robin M. Dooley, U.S. Custom s and Border Protection, Office of Air and Marine, (CBPAM), 1300 Pennsylvania Avenue, NW, Suite 6.4A, Washington, DC 20229, petitioned the Federal Aviation Administration (FAA) on behalf of CBPAM for an exemption from § 91.209(a)(1) and (b) of Title 14, Code of Federal Regulations (14 CFR). The proposed exempti on, if granted, would allow CBPAM to conduct air operations in support of drug law enforcement and drug traffic interdiction using unmanned aircraft systems (UAS), without the use of aircraft lights.

The petitioner requests relief from the following regulation:

Section 91.209 prescribes, in pertinent part, that:

(a) During the period from sunset to sunrise (or, in Alaska, during the period a prominent unlighted object cannot be seen from a distance of 3 statute miles or the sun is more than 6 degrees below the horizon)—

(1) Operate an aircraft unless it has lighted position lights;

(b) Operate an aircraft that is equipped with an anticollision light system, unless it has lighted anticollision lights. However, the anticollision lights need not be lighted when

AFS-11-362-E2

the pilot-in-command determines that, because of operating conditions, it would be in the interest of safety to turn the lights off.

The petitioner supports its request with the following information:

The petitioner states they currently hold Exemption No. 9992 allowing “lights out” operation; however that exemption applies only to manned aircraft. The petitioner states they continue to conduct drug law enforcement, drug traffic interdiction missions, and expanded daily Department of Homeland Security/national security missions. The petitioner states these expanded missions include the use of Predator “B” unmanned aircraft. The petitioner notes that, unlike some unmanned aircraft, the Predator “B” is a remotely piloted aircraft operated by an FAA commercial instrument rated pilot at the controls.

The petitioner notes that in April of this year, FAA administrator Babbitt and Customs and Border Protection (CBP) commissioner Bersin met to discuss common topics of interest relating to each other’s agency. One of these topics was the continued integration of unmanned aircraft into the National Airspace System (NAS). According to the petitioner, an issue addressed was the necessity of the Predator “B” pilot to turn off the aircraft’s anticollision and position lights for the same reason granted to CBP for manned aircraft under Exemption No. 9992. The petitioner states that evidence exists to suggest entities engaging in illegal activity along the borders are actively surveilling the night skies for the presence of the Predator “B”, which is clearly visible due to the anticollision lights and position lights. Additionally, the petitioner states that evidence exists that Night Vision Goggles are also being used to detect the Predator

“B”.

CBPAM states that a written request was provided to the FAA Unmanned Aircraft System Program Office (UASPO) in April and May of 2011, requesting CBP’s unmanned aircraft be included in the current exemption to 14 CFR § 91.209(a) (1) and (b). The petitioner states that on May 17, 2011 the FAA UASPO Program Manager advised CBP that FAA’s Operations Law br anch (AGC-220) provided an opinion that the current exemption issued to CBP for manned aircraft does not apply to unmanned

aircraft.

The petitioner states they operate the Predator “B” aircraft under the constraints of a certificate of authorization (COA), in Class A airspace, on an activated IFR flight plan, and under continuous primary and secondary radar coverage. The petitioner asserts that without an exemption for unmanned aircraft, CBP’s vital national security mission will continue to be negatively affected resulting in an unacceptable security risk to the

United States.

The FAA has determined that good cause exists for waiving the requirement for Federal Register publication because of security-sensitive concerns in the exemption, and that any delay in acting on this petition would be detrimental to CBPAM.3

The FAA's analysis is as follows:

The FAA has considered your petition for an exemption from 91.209(a)(1) and (b) and found that the circumstances justify granting the request for UAS operations. The FAA previously granted CBPAM relief from § 91.209(a)(1) and (b) for manned aircraft operations conducting identification, surveillance, and pursuit operations of aircraft, vessels or vehicles that are suspected of smuggling contraband and other illegal activities. While it is in the public interest for CBPAM to be able to conduct these missions, the FAA must consider what safeguards are needed to attain an equivalent level of safety. The circumstances you cite in your request for relief are very similar to those in the CBPAM manned aircraft request. The conditions and limitations listed include the use of radar to assist the pilot in command (PIC) with “see and avoid” requirements of § 91.113, Right-of-way rules: Except water operations, that will enable the interdiction mission to be accomplished safely. Additionally, this exemption is only approved for those UAS operating in Class A controlled airspace on an active instrument flight rules (IFR) flight plan under continuous primary and secondary radar coverage. Since all aircraft must have an activated IFR flight plan, an air traffi c control (ATC) clearance, and an operating mode C or S transponder to enter Class A airspace and are also visible to ATC primary and secondary radars, an equivalent level of safety is attained. This exemption does not relieve CBPAM from compliance with § 91.113 nor require or imply ATC responsibility for operator see-and-avoid requirements.

The FAA’s Decision

In consideration of the foregoing, I find that a grant of exem ption is in the public interest. Therefore, pursuant to the authority contained in 49 U.S.C. §§ 40113 and 44701, delegated to me by the Administrator, U.S. Customs and Bo rder Protection, Office of Air and Marine is granted an exemption from 14 CFR § 91.209(a) (1) and (b) to the extent necessary to allow CBPAM to conduct air operations in support of drug law enforcement and drug traffic interdiction using unmanned aircraft systems (UAS), without the use of aircraft lights, subject

to the conditions and limitations listed below.

Conditions and Limitations

1. The pilot-in-com mand (PIC) of an aircraft engaged in operations authorized hereinis not relieved from the see and avoid requirements of § 91.113, Right-of-wayrules: Except water operations, or any other regulatory requirement not specifically relieved under this exemption.

2. Operations under this exemption are authorized only in Certificate of Waiver or Authorization (COA) approved areas of re sponsibility (AORs) in Class A airspace and only to the extent necessary for the interdiction aircraft to obtain positive identification of and maintain contact with a suspect person(s), aircraft, vessel, or

vehicle.4

3. Operations in noncompliance with § 91.209(a)(1) and (b) are authorized only for those aircraft actively engaged in air interdiction operations and only when continuous primary and secondary radar coverage capable of detecting all aircraft operating within the vicinity of the interdiction aircraft exists.

4. The PIC of the interdiction aircraft must:

a. File and maintain an active IFR flight plan.

b. Establish two-way radio communication with the appropriate air traffic control (ATC) facility before entering the Class A controlled airspace;

c. Maintain two-way radio communication while within the Class A controlled airspace;

d. Comply with all instructions and clearances from ATC, including instructions to terminate lights out activity if necessary; and

e. Ensure continuous primary and secondary radar coverage when operating with lights out under the authority of this exemption.

5. CBPAM must ensure that all pilots-in-command, supplemental pilots, observers and any crewmembers who conduct airborne UAS drug interdiction operations using this authority are thoroughly briefed and have a complete understanding of the conditions and limitations of this exemption.

6. The petitioner must ensure that all UAS used to conduct operations under this exemption are equipped with an operable Mode C or Mode S transponder and that the transponder is operated on the appropriate code or as assigned by ATC.

7. In the event of an in-flight emergency or loss of command and control link, CBPAM must comply with § 91.209(a)(1) and (b).

8. When ATC issues a traffic advisory involving the UAS, if operationally feasible, CBPAM must activate UAS lights (position and anti-collision) until advised by ATC that the previously issued traffic advisory is no longer a factor.

9. CBPAM must comply with all Letters of Procedure between the Department of Defense and the Department of Homeland Security.5

10. All other conditions and limitations of the petitioner’s COAs remain in effect except for aircraft lighting and only when exercising the authority granted under this exemption.

This exemption terminates on June 30, 2013, unless sooner superseded or rescinded.

Issued in Washington, D.C., on June 28, 2011. .

/s/

John W. McGraw Acting Director, Flight Standards

Service