Exemption 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. Customs 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 exemption, 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-E 
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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 branch (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. 
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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 traffic 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 exemption 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 Border 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-command (PIC) of an aircraft engaged in operations authorized herein 

is 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 responsibility (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. 
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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. 
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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