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Could the FAA’s Rulemaking Allow for Nighttime Operations?

To date, the FAA has limited Section 333 exemptions for commercial operations of unmanned aircraft systems (UAS) to daytime hours. The FAA’s Notice of Proposed Rulemaking (NPRM) proposes rules that limit small UAS (sUAS) commercial operations to daytime hours. But, the NPRM recognizes that certain conditions and mitigation may be appropriate for the FAA to allow nighttime operations. As manufacturers continue to develop technologies that will address the FAA’s concerns about nighttime operations, operators and manufacturers should take the opportunity to submit comments and demonstrate to the FAA that sufficient nighttime conditions can be as safe as daytime operations and provide substantial safety benefits to many industries.

While the FAA has not yet approved nighttime operations under Section 333 exemptions, in more recent petitions, applicants are strengthening the case for nighttime operations with additional operating limitations, improved technologies, and data on safe nighttime operations. In addition to proposing an illuminated operating area, more recent applications are now requesting nighttime operations with aircraft lighting, infrared cameras, and geo-fencing. The FAA continues to take into consideration whether these technologies, and other additional operating limitations and risk mitigation, achieve an equal or greater level of safety as daytime operations, but to date, has not granted an exemption for nighttime operation.

Addressing sUAS operations that pose “the least amount of risk,” the NPRM’s proposed daytime limitation is based on a set of perceived risks and burdens that the FAA was unwilling to address in a minimal regulatory approach: (1) the small size of the sUAS and the difficulty of seeing the sUAS to avoid other airspace users; (2) reduced ability to see people on the ground and take precautions to ensure that the sUAS does not pose a hazard to those people; (3) potential need for equipage specifications (e.g., lighting system) and airworthiness certification requirements; and (4) the need to have specific lighting for manned aircraft.

But, most importantly, the FAA realized that certain circumstances (e.g., northern latitudes) are too restrictive for daytime sUAS operations and expressed a willingness to consider “reasonable mitigation” that would ensure an equivalent level of safety in low-light operations. The FAA’s rulemaking is a critical opportunity for industry to submit comments regarding safety and possible risk mitigation that would achieve and equivalent level of safety during nighttime operations. Entities that intend to operate during nighttime hours and are interested in submitting comments should contact Pillsbury’s UAS Focus Team.

The FAA continues to have the authority and opportunity to permit nighttime operations before the release of formal regulations. We anticipate that applicants with the appropriate technology, operating conditions, safety benefits may able to demonstrate to the FAA that “reasonable mitigation” is in place to achieve an equivalent level of safety as achieved during daytime operations. In addition, the FAA’s final rules for UAS integration will reflect any nighttime exemption precedent and comments to the rulemaking, highlighting the importance for operators interested in nighttime operations to submit comments to the FAA.