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 beha lf 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 tra ffic 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 public2

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, Immigrati on 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 Stat es 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.3

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.4

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 thevicinity 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.5

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