AFS-12-211-E 

March 30, 2012 

 Exemption No. 10490 

 Regulatory Docket No. FAA-2001-9369 

Mr. Robin M. Dooley 

U.S. Customs and Border Protection 

Office of Air and Marine 

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

Washington, DC 20229 

Dear Mr. Dooley: 

This letter is to inform you that we have granted your request for exemption. It transmits our 

decision, explains its basis, and gives you the conditions and limitations of the exemption, 

including the date it ends. 

The Basis for Our Decision 

By letter dated November 28, 2011, received by the FAA on February 3, 2012, 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. 9992. That exemption 

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) allowed CBPAM to conduct air operations in 

support of drug law enforcement and drug traffic interdiction. Please note that your 

exemption has expired, therefore, we will treat your request as a new petition. 

The FAA has determined that good cause exists for not publishing a summary of the petition 

in the Federal Register because the requested exemption would not set a precedent, and any 

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

The FAA has issued grants of exemption in circumstances similar in all material respects to 

those presented in your petition. In Grant of Exemption No. 5504 (copy enclosed), the FAA 

found that drug interdiction and law enforcement air support operations are in the public 
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interest. Also, air safety regulations are similarly in the public interest, as they promote flight 

safety and the protection of life and property. 

In Grant of Exemption No. 9992 (copy enclosed), the FAA found that the circumstances 

justified granting the requested amendment to include § 91.111(b). The FAA previously 

granted the Department of Justice, Immigration and Naturalization 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 suspected of smuggling people or 

contraband. See Exemption No. 1533C (Apr. 10, 1997). The circumstances cited in the 

request for relief were very similar to those in the INS’s request, notably the need for short 

duration operations close to other aircraft to identify aircraft registration numbers, 

descriptions of pilots and passengers, and to ascertain cargo in plain sight. The FAA noted 

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 was required to 

have a dedicated observer on board each operation to assist the pilot with “see and avoid” 

surveillance. 

Having reviewed your reasons for requesting an exemption, I find that— 

 they are similar in all material respects to relief previously requested in the enclosed Grant 

of Exemption Nos. 5504 and 9992; 

 the reasons stated by the FAA for granting the enclosed Grant of Exemption Nos. 5504 

and 9992 also apply to the situation you present; and 

 a grant of exemption is in the public interest. 

Our Decision 

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

has delegated to me, I hereby grant U.S. Customs and Border Protection, Office 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. 
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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 two-way 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) 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. 
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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 twoway 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 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. 
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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. 

This exemption terminates April 30, 2014, unless sooner superseded or rescinded. 

Sincerely, 

/s/ 

John W. McGraw 

Acting Director, Flight Standards 

 Service 

Enclosures