Table of Contents of Article
- 1 Section 107.29 Operation at Night.
- 2 My Commentary on Section 107.29 Operation at Night.
- 3 Frequently Asked Questions About 107.29 Operation at Night.
- 3.1 Why would you want to fly your drone at night?
- 3.2 Can a recreational drone fly at night?
- 3.3 What is legally needed to fly a drone at night?
- 3.4 Do I need a drone night waiver after March 16, 2021?
- 3.5 Do I need a visual observer to fly at night?
- 3.6 I want to use a visual observer, does the visual observer need any special night training? Does it need to be documented?
- 3.7 Can any person be a remote pilot or visual observer for a night flight?
- 3.8 What does flash rate sufficient to avoid a collision mean?
- 3.9 My drone has a solid anticollision light on it. Is that good enough?
- 3.10 How do I know my anticollision light can be seen for 3SM? DO I have to go out and test it?
- 3.11 Does my anticollision light have to be a certain color?
- 3.12 Don't we still need position lights in addition to anti-collision lights?
- 4 Advisory Circular 107-2 Section 107.29 Daylight operation.
- 5 FAA’s COMMENTARY FROM THE PREAMBLE OF:
Section 107.29 Operation at Night.
Important Note: Section 107.29 was amended on March 16, 2021.
(a) Except as provided in paragraph (d) of this section, no person may operate a small unmanned aircraft system at night unless—
(1) The remote pilot in command of the small unmanned aircraft has completed an initial knowledge test or training, as applicable, under §107.65 after March 1, 2021; and
(2) The small unmanned aircraft has lighted anti-collision lighting visible for at least 3 statute miles that has a flash rate sufficient to avoid a collision. The remote pilot in command may reduce the intensity of, but may not extinguish, the anti-collision lighting if he or she determines that, because of operating conditions, it would be in the interest of safety to do so.
(b) No person may operate a small unmanned aircraft system during periods of civil twilight unless the small unmanned aircraft has lighted anti-collision lighting visible for at least 3 statute miles that has a flash rate sufficient to avoid a collision. The remote pilot in command may reduce the intensity of, but may not extinguish, the anti-collision lighting if he or she determines that, because of operating conditions, it would be in the interest of safety to do so.
(d) After May 17, 2021, no person may operate a small unmanned aircraft system at night in accordance with a certificate of waiver issued prior to March 16, 2021 under §107.200. The certificates of waiver issued prior to March 16, 2021 under §107.200 that authorize deviation from §107.29 terminate on May 17, 2021.
My Commentary on Section 107.29 Operation at Night.
- Visual Observer is Not Needed. The night waivers that were given out all required a visual observer for the operations. That was annoying. 107.29 removed that.
- A person may still need a night waiver. Yes, I know you may be like, “Aren’t we past that now!?” Subsection (d) says the waivers granted prior to March 16, 2021 are terminated but doesn’t any future ones are not. There are times where you might want a 107.29 waiver such as (1) you don’t have anti-collision lights or cannot mount them (FPV racers), (2) you want to fly without them (cops chasing bad guys), (3) your built in lights cannot be seen for 3 miles, or (4) the lights cannot flash but are solid. If you need help with a 107.29 waiver, please contact me.
- Night Training. The initial knowledge exam will now quiz on night operations. We have a night operations training course here.
- Flashing. The original 107.29 did not have a flashing requirement but this was changed with the amendment to “flash rate sufficient to avoid a collision” which creates problems for people because what does that mean? 14 CFR 101.17 says, “No person may operate a moored balloon or kite, between sunset and sunrise unless the balloon or kite, and its mooring lines, are lighted so as to give a visual warning equal to that required for obstructions to air navigation in the FAA publication Obstruction Marking and Lighting.” That publication references different types of obstructions (wind turbines, towers, etc.) and flashes per minute range between 20-60. See Table A-1 in that publication. See also AC 150/5345-43J Table 3-5. See the aircraft position light and anticollision light installation AC 20-30B Table 3.
- Intensity. The original 107.29 said you could reduce the intensity but never had a lower limit. The FAA changed this with the amendment to say, “The remote pilot in command may reduce the intensity of, but may not extinguish, the anti-collision lighting if he or she determines that, because of operating conditions, it would be in the interest of safety to do so.”
- Anti-Collision Lights. One of the requirements says the drone must have an anti-collision light that is visible for at least 3 statute miles. There are after market anti-collision lights you can attach to your drone if it is not equipped with sufficient lighting. Please check out to see if your lighting is really visible as some lights are not.
- 30 Minute Thing Was Deleted. Alot of people get confused to the different definitions surrounding night. That whole 30 minute thing created weird scenarios with flying in higher latitudes outside of Alaska because the Air Alamac and the 30 minutes were not synced. Let’s clear this all up. The bold emphasis is mine. Pay particular attention to the words and context.
- 14 CFR § 1.1 says, “Night means the time between the end of evening civil twilight and the beginning of morning civil twilight, as published in the Air Almanac, converted to local time.”
- 14 CFR § 61.57(b) says, “Night takeoff and landing experience. (1) Except as provided in paragraph (e) of this section, no person may act as pilot in command of an aircraft carrying passengers during the period beginning 1 hour after sunset and ending 1 hour before sunrise, unless within the preceding 90 days that person has made at least three takeoffs and three landings to a full stop during the period beginning 1 hour after sunset and ending 1 hour before sunrise[.]”
- 14 CFR § 91.209 says, “No person may: (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 the pilot-in-command determines that, because of operating conditions, it would be in the interest of safety to turn the lights off.”
- 14 CFR Section 107.29
- OLD 107.29 (from August 2016 – March 15, 2021) says, “(a) No person may operate a small unmanned aircraft system during night. (b) No person may operate a small unmanned aircraft system during periods of civil twilight unless the small unmanned aircraft has lighted anti-collision lighting visible for at least 3 statute miles. The remote pilot in command may reduce the intensity of the anti-collision lighting if he or she determines that, because of operating conditions, it would be in the interest of safety to do so. (c) For purposes of paragraph (b) of this section, civil twilight refers to the following: (1) Except for Alaska, a period of time that begins 30 minutes before official sunrise and ends at official sunrise; (2) Except for Alaska, a period of time that begins at official sunset and ends 30 minutes after official sunset; and (3) In Alaska, the period of civil twilight as defined in the Air Almanac.”
- NEW 107.29 (March 16,2021 onwards) says,” (a) Except as provided in paragraph (d) of this section, no person may operate a small unmanned aircraft system at night unless— (1) The remote pilot in command of the small unmanned aircraft has completed an initial knowledge test or training, as applicable, under §107.65 after March 1, 2021; and (2) The small unmanned aircraft has lighted anti-collision lighting visible for at least 3 statute miles that has a flash rate sufficient to avoid a collision. The remote pilot in command may reduce the intensity of, but may not extinguish, the anti-collision lighting if he or she determines that, because of operating conditions, it would be in the interest of safety to do so. (b) No person may operate a small unmanned aircraft system during periods of civil twilight unless the small unmanned aircraft has lighted anti-collision lighting visible for at least 3 statute miles that has a flash rate sufficient to avoid a collision. The remote pilot in command may reduce the intensity of, but may not extinguish, the anti-collision lighting if he or she determines that, because of operating conditions, it would be in the interest of safety to do so. (d) After May 17, 2021, no person may operate a small unmanned aircraft system at night in accordance with a certificate of waiver issued prior to March 16, 2021 under §107.200. The certificates of waiver issued prior to March 16, 2021 under §107.200 that authorize deviation from §107.29 terminate on May 17, 2021.
- Summary: The 30 minute thing is gone for 107.29. Notice that different parts of the FARs are cited. Basically, if you are a commercial drone operator, you have the option of operating under Part 107 (complying with 107.29) or under a Section 44807 exemption and all the applicable regulations. Interestingly, 14 CFR § 61.57(b) does NOT apply because you aren’t carrying passengers; however, some of the early section 333 exemptions (now section 44807 exemptions) had a 90-day currency requirement (see Aerial Mob’s exemption at restriction 12) but the 90-day currency situation was done away with as time went on with the exemptions. 14 CFR 91.209(a) is applicable only to those operating at night under Part 91.
Frequently Asked Questions About 107.29 Operation at Night.
Why would you want to fly your drone at night?
There are multiple reasons: real estate photography of the night skyline, wedding or event photography at night, animal population counting using thermal cameras, etc.
Can a recreational drone fly at night?
Yes, there is nothing restricting a non-recreational or recreational person from flying at night. You just comply with either 14 CFR 107.29 or 49 USC 44809.
What is legally needed to fly a drone at night?
The drone must have an anti-collision light that flashes and is visible for at least 3 statute miles. The remote pilot must also have passed an initial knowledge test or training under 107.65 (which will cover night operations among other things).
Do I need a drone night waiver after March 16, 2021?
Maybe? Some operations may need a waiver because their operations may require it (FPV with limited payload, cops chasing bad guys, etc.).
Do I need a visual observer to fly at night?
No. The use of a VO is up to the RPIC. The FAA said in the preamble to night and over people rule, 'The visual line of sight requirement in part 107, combined with other requirements, is sufficient to address the risk associated with night operations'
I want to use a visual observer, does the visual observer need any special night training? Does it need to be documented?
No. The FAA said in the preamble to the night and over people rule, 'this rule does not require a night vision test for remote pilots or visual observers.'
Can any person be a remote pilot or visual observer for a night flight?
No. The FAA said in the preamble to the night and over people rule, 'the FAA prohibits a person from manipulating the flight controls of a small UAS or acting as a remote pilot in command or visual observer if he or she knows or has reason to know that he or she has a physical or mental condition that would interfere with the safe operation of a small UAS.' See 107.17.
What does flash rate sufficient to avoid a collision mean?
It wasn't defined. Read what I said in the commentary section of this article.
My drone has a solid anticollision light on it. Is that good enough?
No. It needs to be flashing. The FAA said in the preamble, 'requiring anti-collision lights for operations during both civil twilight and at night to flash, rather than be static, is appropriate.'
How do I know my anticollision light can be seen for 3SM? DO I have to go out and test it?
The FAA said in the preamble, 'The remote pilot may rely on manufacturer statements indicating the anti-collision lighting is visible for 3 statute miles and has a flash rate that is sufficient to comply with the requirements of this rule. However, the remote pilot ultimately remains responsible for verifying that anti-collision lighting is operational, visible for 3 statute miles, and has a flash rate sufficient to avoid a collision at the operating location.'
Does my anticollision light have to be a certain color?
The FAA said in the preamble, 'Prescriptive color requirements would unnecessarily restrict design. Since August of 2016, the FAA has issued over 4,000 waivers that permit operations at night. While none of these waivers include color or type requirements, many of these small unmanned aircraft utilize white anti-collision lights to meet the 3 statute mile visibility requirement. No commenters explained how a prescriptive color requirement would mitigate the risk of operations at night. Overall, requiring a specific color or type of light is unnecessary. This rule's performance-based requirement is appropriate for the level of risk associated with night operations and allows for flexibility as technology evolves. The NAAA stated some small unmanned aircraft may be equipped with anti-collision lights that are not compatible with the Night Vision Goggles (NVG) that agricultural pilots typically wear. In these cases, the pilot would not see the small unmanned aircraft at night while looking through the NVG. The FAA recognizes the NVG incompatibility with certain lighting may be an issue for agriculture and medical helicopters. Existing operational regulations specific to the use of NVGs for manned pilots limit hazards to manned aircraft, making specific color or design elements for small unmanned aircraft unnecessary. While this rule does not require specific characteristics of the anti-collision lighting, remote pilots remain obligated, before each operation, to consider the environment in which they are operating, particularly in areas that are known to have regular agricultural operations at night.'
Don't we still need position lights in addition to anti-collision lights?
Position lights are the red, green, and white lights used to determine orientation of the aircraft. The FAA said in the preamble, 'Position lighting might assist a remote pilot in meeting the applicable visual line-of-sight requirements in § 107.31(a), such as knowing the unmanned aircraft's location, attitude, altitude, and direction of flight. However, this rule does not require position lighting because it is not the only means by which a remote pilot could meet these requirements. Although position lighting is not necessary for safe operation, a remote pilot may use position lighting if he or she determines it would be the best solution for safe operation.'
FAA’s COMMENTARY FROM THE PREAMBLE OF:
IX. Operations at Night
A. Proposed Requirements and Comments Received
The NPRM proposed to permit routine operations of small UAS at night, subject to specific requirements. The FAA proposed to amend § 107.29 to permit operations at night when: (1) The small unmanned aircraft has an anti-collision light that is visible for 3 statute miles, and (2) the remote pilot in command has completed an updated knowledge test or recurrent training, as applicable, to ensure familiarity with the risks and appropriate mitigations for nighttime operations. Additionally, the FAA proposed adding the anti-collision lighting requirement to the list of regulations subject to waiver in § 107.205.
Many commenters supported the proposal to allow small UAS operations at night without a waiver. Comments in favor of routine night operations significantly outnumbered comments in opposition to the proposed change. Several commenters expressed concern about the risk of midair collisions between manned and unmanned aircraft. Commenters referred to the inherent lack of situational awareness in night operations and stated remote pilots were insufficiently trained to address adequately the complexity of the airspace. After reviewing these concerns about midair collisions and situational awareness, the FAA determined several existing operating requirements of part 107 combined with the requirements of this final rule provide a sufficient level of safety to allow for night operations. Similar to the NPRM, the final rule requires that remote pilots operating at night equip their small unmanned aircraft with an anti-collision light visible for 3 statute miles, but adds the requirement for the anti-collision lights to flash at a rate sufficient to avoid a collision.
Many commenters appeared to misunderstand the purpose of anti-collision lighting. The purpose of anti-collision lighting is not for the remote pilot to maintain visual line of sight and see the orientation of their small unmanned aircraft, but for the awareness of other pilots operating in the same airspace. Section 107.29(b) already requires that anti-collision lighting be visible for 3 statute miles for civil twilight operations to help prevent midair collisions.
AMOA and AAMS, commenting jointly, questioned whether the FAA had examined the available sightings data and confirmed its reliability as its basis for expanding small UAS operations at night. The commenter noted that data collected from 1998-2017 indicates 36% of all helicopter air medical flights were conducted at night and 49% of the accidents from 1998-2017 occurred during night operations, and that routine night operations could put air medical flights at greater risk. The commenter asserted the FAA did not adequately address the potential threats posed by increased small unmanned aircraft activity in the NPRM, particularly to helicopter air medical flights.
The FAA analyzed available data, including thousands of waivers allowing night operations, and determined allowing routine small UAS operations at night, subject to compliance with certain requirements, will be safe. Although the FAA reviews small unmanned aircraft sighting reports, the FAA did not rely on those reports as justification for this rule, because many of those reports are unverifiable due to a lack of detailed information provided by the reporter of a small unmanned aircraft sighting. Because small UAS operations under part 107 are limited to 400ft AGL and below, the effect on helicopters of night operations is minimal. Although the introduction of routine night operations could introduce more complexity to the airspace, compliance with sufficient mitigations will provide for safe operations.
In addition, other risk mitigation measures limiting the risk of midair collisions at night exist: Fewer general aviation aircraft fly at the altitudes in which small unmanned aircraft operate. Manned aircraft have restrictions on minimum safe altitudes, which places the majority of operations well above the 400 ft AGL limit for part 107 operations. Pilots authorized to operate manned aircraft below 400 ft AGL during daylight hours can visually see the terrain and obstacles to navigate the airspace. At night, these visual cues do not exist and many general aviation aircraft that could operate during daylight at lower altitudes lack sophisticated equipment like night vision goggles, a radar altimeter, Forward Looking Infrared, Radar, or a Heads Up Display, typically found on military or emergency service aircraft. Because general aviation aircraft may lack electrical systems such as aircraft lighting, or other necessary safety features, operating such aircraft at night would cause a significant increase in the level of risk of the operation.
NAAA voiced concern about pilot difficulty of spotting a small unmanned aircraft while the pilot is operating at a very low altitude in what is already a high task load environment. They pointed to a 2015 test conducted by the Colorado Agricultural Aviation Association, which determined that it was difficult for pilots who conduct agricultural aviation operations to detect and track a small unmanned aircraft at the same time as maneuvering their aircraft for agricultural operations. Pilots operating manned aircraft at low altitudes would experience difficulty in identifying small unmanned aircraft operating at night, but, as discussed previously, numerous mitigations exist to decrease the likelihood of a midair collision. With regard to the report made by the Colorado Agricultural Aviation Association, while the study provided data, the report only tested four pilots operating during daylight hours. In addition, the Agency disagrees with NAAA’s determination that night operations would be difficult to identify, as operating with an anti-collision light at night would increase the visibility of the small unmanned aircraft.
Several commenters expressed concern about the risk small unmanned aircraft pose for commercial aircraft. The period of flight in which a manned, commercial aircraft is at or below 400 ft AGL is just prior to landing and seconds after takeoff. These phases of flight occur in the immediate vicinity of the runway, an area of airspace in which small UAS operations under part 107 are prohibited from flying without authorization. The requirement for anti-collision lights that are visible for 3 statute miles and that have a flash rate sufficient to avoid a collision, along with the existing requirements to maintain visual line of sight, give way Start Printed Page 4355to manned aircraft, and obtain authorization to operate in controlled airspace are all practical mitigations to address the risks posed by small UAS operations at night.
B. Knowledge Requirements for Remote Pilots Conducting Operations at Night
Only remote pilots who complete an updated aeronautical knowledge test or updated training will meet the remote pilot qualification requirements to act as pilot in command of a small UAS at night. As with all persons who received their remote pilot certificate prior to the enactment of this rule, part 61 pilots previously holding a remote pilot certificate will also need to complete the updated training before acting as pilot in command of a small UAS at night.
The Agency proposed to revise the regulations to require that the remote pilot complete a knowledge test or training concerning small UAS operations at night. This rule finalizes those additions, as proposed. Applicants who are eligible to obtain a remote pilot certificate must complete an updated knowledge test prior to conducting operations at night. This rule also requires existing holders of a part 107 remote pilot certificate to complete updated training prior to operating as a remote pilot at night.
The updated knowledge test and training will assess applicants’ and pilots’ knowledge of risks and situations that are not present during daylight operations. The new testing and training will include questions on anti-collision light requirements, when the anti-collision light is allowed to be dimmed, how to determine aircraft position, obstacle avoidance with lack of visual cues, what aircraft may be conducting low level night operations, night physiology, circadian rhythm effects, and other topics. Through this education, the remote pilot will have the knowledge to operate a small UAS at night safely and implement the appropriate protocols and tools to mitigate risks they have identified for their operation.
The updated testing and recurrent training required to conduct night operations will be made available on the FAA website on March 1, 2021. This date provides a 15 day period for new applicants or current Remote Pilot Certificate holders to complete the updated testing or training, as applicable, for those who seek to conduct night operations on the effective date of this rule.
After the effective date of this rule, remote pilots operating under a waiver received prior to the effective date will be allowed to continue to operate at night under the provisions of that waiver without meeting the updated recurrent training requirement for a period of 60 days. All night waivers issued prior to the effective date of this rule that authorize deviation from § 107.29 Daylight Operation terminate on May 17, 2021. This date provides time for waiver holders to come into compliance with this rule and allow the holder to request a new certificate of waiver, if applicable, prior to the termination date.
Several commenters suggested the night operation testing and training be separate from the general part 107 training. One commenter suggested the FAA offer incentive licensing endorsements, in which a certain minimum score on the night operations section of the part 107 knowledge test would allow the remote pilot to operate a small UAS at night. Some commenters, including Airlines for America (A4A), recommended the FAA impose a nighttime practical training requirement for remote pilot certification, particularly for pilots who do not hold a part 61 certificate or related nighttime endorsement. The inclusion of night operations does not introduce a level of complexity to the operations conducted under part 107 that would necessitate practical training. A single curriculum for both the aeronautical knowledge test and recurrent training will cover all necessary topics for operations under part 107. To operate at night, all remote pilots must either take the updated initial knowledge test or complete the applicable recurrent training that includes the new subject areas on night operations. In this regard, it is necessary to standardize the training and testing; incentive licensing endorsements the FAA issues for other skills are not appropriate for knowledge testing or training. The standardization this rule provides is appropriate for small UAS operations at night.
A few commenters requested the Agency decline to require pilots who have certificates under part 61 to complete recurrent training specific to night operations. The Agency disagrees. Small UAS operations at night have operational needs and safety requirements that differ from manned aircraft operations at night. This rule requires part 61 pilots to take the recurrent training in its entirety, including those sections pertinent to night operations, despite having taken manned-aircraft-specific nighttime training for their part 61 certification. Several commenters made suggestions regarding the content of the test and course material. Some commenters, including AOPA, AMOA, and AAMS, suggested the initial testing, initial training, and recurrent training for night operations emphasize collision avoidance with other unmanned aircraft and manned aircraft. They asked whether the additional testing for night operations will specifically address limited depth perception and difficulty of perceiving reference points during night operations. Under this rule, in addition to the existing testing and training that addresses collision avoidance, additional subject areas will address night physiology, lighting requirements, and night illusions from the perspective of the remote pilot.
One commenter suggested the FAA produce a study guide with subject matter specific to small UAS operations at night. The FAA plans to publish a revised Small Unmanned Aircraft Systems Airman Certification Standard (ACS) and a revised iteration of Advisory Circular (AC) 107-2 to address changes pertaining to the certification of small UAS remote pilots. This AC will also provide updated guidance for conducting small UAS operations in accordance with part 107. In response to the suggestion that the FAA produce a UAS-specific study guide with subject matter relevant to operating at night, the FAA has updated the Remote Pilot—Small Unmanned Aircraft Systems Study Guide (FAA-G-8082-22), and renamed it Small Unmanned Aircraft Systems Operating Handbook (FAA-H-8083-24). Furthermore, applicants may supplement through self-study, which could include taking an industry-offered online training course, an in-person training course, or any combination thereof.
One commenter suggested the Agency require one or more visual observers who have taken the night vision test to participate in operations at night. The visual line of sight requirement in part 107, combined with other requirements, is sufficient to address the risk associated with night operations; therefore, this rule does not require a night vision test for remote pilots or visual observers. One commenter said the proposal would impose more cost on the operator and increase the barriers to UAS night operations. Another stated the additional testing and training requirements would not improve the safety of night operations. This rule establishes the recurrent training process, the completion of which will be free of cost to remote pilots. This rule Start Printed Page 4356does not impose any changes to the costs of the initial knowledge test.
C. Anti-Collision Lighting
The NPRM stated the small size of most small unmanned aircraft (as compared to their manned counterparts), combined with reduced visibility during darkness, favors requiring anti-collision lighting to reduce the risk involved with small UAS operations at night. The Agency stated it anticipated the presence of anti-collision lights would provide other aircraft with awareness of a small unmanned aircraft’s presence. As stated in the NPRM, the anti-collision light is not the sole means of avoiding midair collisions between a manned aircraft and a small unmanned aircraft. Prior to and throughout the operation, this rule requires the remote pilot to ensure the anti-collision lights are operating, are visible for 3 statute miles, and have a flash rate sufficient to avoid a collision at the operating location. The anti-collision light also does not relieve the remote pilot from complying with the remaining requirements of part 107, which include yielding right of way to all other aircraft. Although the risk of a midair collision at night is low due to the altitude and volume of aircraft operating at night, additional risk mitigation measures are appropriate for the safety of other aircraft that may be operating at night. The requirement to have an anti-collision light for night operations is also consistent with the requirements in part 107 for small UAS operations during civil twilight.
1. FLASH RATE
As noted in the proposed rule, the FAA’s requirement for anti-collision lights for twilight operations under the final rule for part 107 was based on the daylight operations requirements for ultralight vehicles. Such vehicles may only operate during civil twilight hours as long as they are equipped with “an operating anti-collision light visible for at least 3 statute miles.”  When promulgating that requirement, the FAA clarified that such anti-collision lights are “any flashing or stroboscopic device that is of sufficient intensity so as to be visible for at least 3 statute miles.”  Given the comments received in response to the NPRM, this rule provides additional clarification concerning the anti-collision light requirement. As demonstrated by the comparison to ultralight anti-collision lights above, requiring anti-collision lights for operations during both civil twilight and at night to flash, rather than be static, is appropriate. This rule requires anti-collision lights used in accordance with § 107.29 to flash at a sufficient rate to avoid a collision.
Many commenters expressed support for the proposed anti-collision lighting requirement, with some commenters recommending changes or additions to the requirement. Some commenters opposed the requirement. Several commenters addressed specific characteristics of the anti-collision lighting, including flash rate.
The Helicopter Association International (HAI), along with A4A, AGC, NAAA, the Experimental Aircraft Association (EAA), and the American Association of Airport Executives (AAAE), stressed the need for standardization in unmanned aircraft anti-collision lighting, with respect to flash rate, signature, visibility requirement, intensity, type of lighting, and configuration. A few commenters recommended the FAA work with industry to develop standards specific to small unmanned aircraft or rely on existing standards for manned aircraft. A commenter recommended clarifying the requirement in the proposed rule.
While the NPRM only proposed small unmanned aircraft have an anti-collision light, the Agency has since determined the anti-collision lights should flash. In addition to the requirement for the light to be visible for 3 statute miles, anti-collision lighting with a sufficient flash rate to avoid a collision will aid in creating awareness to all pilots of the presence of the small unmanned aircraft.
Under this rule, the remote pilot is responsible for ensuring the anti-collision lights are operating, are visible for 3 statute miles, and have a flash rate sufficient to avoid a collision at the operating location, both prior to conducting and during each night operation. The performance-based requirements for anti-collision lighting—with regard to intensity, flash rate, fields of coverage, and other relevant characteristics—will ensure the small unmanned aircraft is sufficiently visible to other aircraft. The remote pilot may rely on manufacturer statements indicating the anti-collision lighting is visible for 3 statute miles and has a flash rate that is sufficient to comply with the requirements of this rule. However, the remote pilot ultimately remains responsible for verifying that anti-collision lighting is operational, visible for 3 statute miles, and has a flash rate sufficient to avoid a collision at the operating location.
The FAA does not require manned aircraft pilots to distinguish between the lights for airplanes and rotorcraft, or antennas and windmills, but only to avoid those obstacles. This requirement, therefore, will result in the small unmanned aircraft becoming more conspicuous to other operators, regardless of whether other operators identify it as a small unmanned aircraft. A manned aircraft pilot would be most likely to distinguish movement of external lighting against a stagnant, dark background rather than specific lighting characteristics.
2. DESIGN OF ANTI-COLLISION LIGHTS
The Agency proposed to require small unmanned aircraft operating at night to have an anti-collision lighting component visible for 3 statute miles, rather than a light that fulfills prescriptive design criteria. The proposed rule requested comments regarding whether a specific color or type requirement should apply to the anti-collision light, as well as an explanation of how a prescriptive standard might ensure safety of the small UAS operations.
The FAA received numerous comments addressing a color requirement for the anti-collision lights. Comments in support of performance-based requirements for anti-collision lights outnumbered those in favor of more prescriptive requirements. Many commenters opposed the idea of specific anti-collision lighting color or type requirements, including Small UAV Coalition, AUVSI, News Media Coalition, the U.S. Chamber of Commerce, APPA, EEI, and NRECA, commenting jointly; the People’s Republic of China; DJI; Skydio; and numerous individuals.
Commenters opposed to a specific color standard generally noted a prescriptive requirement could stifle innovation without providing any safety benefits. A number of individual commenters stated no specific color or type of lighting should be required, as the FAA has not included such a requirement for waivers that permit operations at night. DJI commented that a different, or additional, lighting requirement from those provided in the part 107 waivers would require manufacturers to develop new designs and equipment without apparent benefit. Both DJI and the People’s Republic of China asked for scientific data in the event the Agency requires specific colors for anti-collision lights.
Several commenters explicitly supported requiring some kind of color Start Printed Page 4357or type requirement for anti-collision lights. Some commenters suggested requirements for plain red and white lights would suffice, but emphasized the FAA should not require color definitions as detailed as those codified at § 23.1397. AOPA noted the proposed rule does not identify whether the Agency considers white strobe lights, red beacon lights, or if any color or lighting configuration as sufficient for anti-collision lights that are visible for at least 3 statute miles. Another commenter similarly recommended a red (front) and white (rear) color pattern. Several commenters recommended following the existing practices of manned aviation operators regarding the colors of lights. Other commenters recommended the FAA impose specific colors or color patterns for certain situations, such as when an aircraft descends or experiences an operational system failure. One commenter recommended the FAA consider requiring colors that are compatible with color-blindness. NIOSH stated specifying an anti-collision light color would improve safety, given that color is a significant factor for improving the visibility of an object.
Prescriptive color requirements would unnecessarily restrict design. Since August of 2016, the FAA has issued over 4,000 waivers that permit operations at night. While none of these waivers include color or type requirements, many of these small unmanned aircraft utilize white anti-collision lights to meet the 3 statute mile visibility requirement. No commenters explained how a prescriptive color requirement would mitigate the risk of operations at night. Overall, requiring a specific color or type of light is unnecessary. This rule’s performance-based requirement is appropriate for the level of risk associated with night operations and allows for flexibility as technology evolves.
The NAAA stated some small unmanned aircraft may be equipped with anti-collision lights that are not compatible with the Night Vision Goggles (NVG) that agricultural pilots typically wear. In these cases, the pilot would not see the small unmanned aircraft at night while looking through the NVG. The FAA recognizes the NVG incompatibility with certain lighting may be an issue for agriculture and medical helicopters. Existing operational regulations specific to the use of NVGs for manned pilots limit hazards to manned aircraft, making specific color or design elements for small unmanned aircraft unnecessary. While this rule does not require specific characteristics of the anti-collision lighting, remote pilots remain obligated, before each operation, to consider the environment in which they are operating, particularly in areas that are known to have regular agricultural operations at night.
The NPRM proposed making the anti-collision lighting requirement for small UAS night operations subject to waiver and invited comments on this aspect of the proposal. The Agency stated it would consider granting a certificate of waiver allowing nighttime small unmanned aircraft operations without an anti-collision light visible for 3 statute miles if an applicant demonstrates sufficient measures to mitigate the risk associated with the proposed operation. As discussed later in this section, allowing waivers of the anti-collision lighting requirement will accommodate unique operational circumstances without reducing safety.
EPIC opposed allowing waivers of the anti-collision lighting requirement for small UAS operations at night, noting concerns about security, privacy, and the potential for nefarious use. Neither this rule nor any potential waivers from the anti-collision requirement authorize the use of small unmanned aircraft for criminal activities. All persons requesting a waiver from the anti-collision requirement must include a description of the proposed operation and explain how they will mitigate any risks. The FAA will only issue waivers for operations that can occur safely.
AMOA and AAMS, commenting jointly, asked the Agency to clarify under what conditions it would grant a waiver of the anti-collision lighting requirement. The FAA expects waiver applicants to establish a deviation from the anti-collision lighting requirement would not reduce the level of safety of the operation. The FAA declines to prescribe specific criteria that would apply to all applications for waiver, as doing so would be impractical. In response to comments suggesting the FAA should develop separate processes for law enforcement and first responders, the FAA declines to create a separate process for a particular subset of part 107 operators.
D. Position Lighting Not Required
The proposed rule did not provide a requirement for position lighting. The Agency invited comments from the public, however, on whether it should require position lighting, in addition to the anti-collision lighting.
Several commenters, including AOPA, EPIC, and AMOA and AAMS, commenting jointly, recommended requiring position lighting for night operations. Several of these commenters said the position lighting should be similar to those found on manned aircraft. AOPA noted that night operations are inherently challenging and visual line of sight would be better maintained with lights that aid in determining directional movement of the aircraft. EPIC agreed that small unmanned aircraft position lighting would be important for collision avoidance and to convey the position of the small unmanned aircraft to manned aircraft. The Director of the Autonomous Aerial Systems Office at the University of Montana encouraged the FAA to require position lighting in addition to anti-collision lighting that is consistent with current navigational standards, stating this requirement would improve safety in see-and-avoid situations in addition to improving remote pilots’ situational awareness of aircraft position.
Many commenters supported the FAA’s decision to not require position lighting for small unmanned aircraft. For example, DJI stated position lighting should not be required “because in many circumstances the remote pilot has the ability to determine the position, direction and orientation of the drone in other ways at night.” DJI also noted it might be helpful at times to turn off the position lighting to capture the type of data required for the operation without interference of these lights, which are typically more visible to the on-board camera or sensor than other lights because they are located at the ends of motor arms. Several commenters noted that, although position lighting may provide a visual reference to determine the location of the small unmanned aircraft, it may not provide accurate information about the orientation of the small unmanned aircraft in flight.
Position lighting might assist a remote pilot in meeting the applicable visual line-of-sight requirements in § 107.31(a), such as knowing the unmanned aircraft’s location, attitude, altitude, and direction of flight. However, this rule does not require position lighting because it is not the only means by which a remote pilot could meet these requirements. Although position lighting is not necessary for safe operation, a remote pilot may use position lighting if he or she determines Start Printed Page 4358it would be the best solution for safe operation.
E. Miscellaneous Night Operations Considerations
AMOA and AAMS also noted the NPRM does not discuss testing for the acuity of a remote pilot’s night vision and said they believe remote pilots should be required to attest annually to this visual capability. As discussed in the 2016 final rule, operations under part 107 do not require airman medical certificates, given the low risk associated with small UAS operations, the limited operational range of visual line of sight operations, and the requirement that the remote pilot may operate only within their capabilities. As stated in the part 107 final rule, even with normal vision, a small unmanned aircraft might be so small that the operational space must be reduced to meet the visual line-of-sight requirements of § 107.31. Furthermore, the FAA prohibits a person from manipulating the flight controls of a small UAS or acting as a remote pilot in command or visual observer if he or she knows or has reason to know that he or she has a physical or mental condition that would interfere with the safe operation of a small UAS.
Some commenters requested the rule include additional requirements on the remote pilot, on the small unmanned aircraft, or on the operating environment for operations at night. MAC said regulations allowing night operations must ensure the safety of all aircraft operations in both the airport environment and the NAS. They also said the FAA should establish measures to identify clearly a small unmanned aircraft at similar distances to those that apply to manned aircraft. Exclusions from these requirements could include the use of small UAS for the purposes of airport safety, security, and operation activities, especially in situations of emergency response. A commenter suggested requiring remote pilots perform their intended night operations during the day prior to execution, map out the flight path, and ensure awareness of any obstacles. Commenters requested altitude restrictions, speed restrictions, and distance or operational radius limitations for night operations. A commenter also suggested requiring the remote pilot to have a radio on the appropriate frequency to detect any air traffic in the area. The current regulations under part 107, combined with the requirements in this final rule, contain adequate restrictions for operations at night. As discussed earlier, as of September 2020, the FAA has issued over 4,000 waivers allowing nighttime small UAS operations since August 2016. These operations have been conducted safely and the Agency does not have data indicating that the restrictions in this rule would be inadequate.
A commenter believed the FAA should require that remote pilots operating at night be AMA members, register their small unmanned aircraft with the FAA, and use “tracking” lighting for both day and night operations. The FAA requires registration for all small unmanned aircraft that operate under part 107. This requirement is sufficient for providing the FAA an avenue for oversight. Furthermore, as noted earlier, remote pilots are not prohibited from using position (or “tracking”) lighting to assist in meeting the visual line-of-sight requirement; however, for the reasons stated above, this rule does not require position lighting.
NAAA recommended all small UAS be equipped with “ADS-B In-like” technology. NAAA and an individual commenter both suggested all small UAS operating under part 107 be equipped with technology that would allow them to sense the presence of and avoid manned aircraft. Part 107 requires remote pilots to maintain visual line of sight of the small unmanned aircraft at all times and give the right of way to all aircraft. Manned aircraft are not required to be equipped with ADS-B Out in all classes of airspace. For example, ADS-B Out is not required in Class G airspace. Therefore, requiring ADS-B In for small unmanned aircraft would not be sufficient in all circumstances to aid the remote pilot in detecting manned aircraft. Given this existing requirement, requiring ADS-B In-like technology is not necessary.
NAAA also suggested, to operate safely at night, small unmanned aircraft should have a registered N-number on an indestructible and unmovable plate attached to the small unmanned aircraft and should have an electronic identification and tracking technology so that it can be tracked by law enforcement. The registration and marking requirements as implemented by the Registration and Marking Requirements for Small Unmanned Aircraft rule, and amended by the External Marking Requirements for Small Unmanned Aircraft interim final rule, are sufficient for operations conducted under part 107. The Agency declines to impose additional registration requirements that would apply to operations at night, as no safety benefit would result from such requirements.
F. Effect on Human Activity
The NPRM invited comments on whether characteristics or effects of anti-collision lighting at low altitude could have an effect on normal human activities, and if so, potential mitigations or alternatives the FAA should consider. Some commenters stated anti-collision lighting could affect human activities.
NIOSH stated, “[i]t is reasonable to assume that in some situations anti-collision lights could distract people” who are working and that, depending on their activities, this effect could have significant safety risks. NIOSH said it is not aware of any evidence supporting a mitigation strategy and recommended “exploring potential mitigation methods that follow the hierarchy of controls.” This rule does not require use of the hierarchy of controls for small UAS operations at night because considering every possible scenario or assessing how distracting anti-collision lights may be to non-participants is not possible. Anti-collision lighting in night operations is a critical component in making small unmanned aircraft sufficiently conspicuous when operating under part 107. The safety need for such lighting outweighs the concerns these comments present.
Motorola Solutions stated anti-collision lighting at low altitudes could affect normal human activities associated with lights coming from unidentified sources and with unknown justification. The commenter said operations performed by public safety officers can mitigate the effect of unidentified unmanned aircraft light sources by replacing or augmenting the anti-collision lights with other lights such as those officers use for public safety operations. Requiring specific colors or additional lights for certain types of operations will not reduce the effect on human activity.
Droneport Texas, LLC said anti-collision lighting might startle or distract those engaged in normal human activities. To mitigate such distractions, the commenter recommended a remote pilot be allowed to reduce the intensity of the anti-collision lights that are “observable uniquely from the bottom side” of the aircraft and change them from flashing to a steady display. This rule requires all anti-collision lights to flash at a rate sufficient to avoid a collision. Furthermore, the remote pilot may use their discretion to determine Start Printed Page 4359the circumstances under which they could safely reduce the intensity of, but not extinguish, the anti-collision lighting.
DJI commented that, to mitigate the effects of anti-collision lighting on human activities, the FAA could encourage lights be placed on top of the small unmanned aircraft where it is most visible to manned traffic above and less bothersome to people below; however, DJI said it is unaware of complaints from the public about lighting, so such guidance should not be made a requirement. This rule does not include any prescriptive design criteria for anti-collision lighting. However, no provision of this rule precludes the placement of anti-collision lights on the top of a small unmanned aircraft.
One commenter suggested anti-collision lights could have an effect on the public due to light pollution and visual disturbances caused by the high intensity light and said the strobe effect could distract manned aircraft. Another commenter stated the purpose of the anti-collision lighting requirement is to call attention to the small unmanned aircraft, “in effect to distract the viewer.” The commenter further stated that, depending on the frequency and density of operations, blinking or strobe lights could disturb people engaging in traditional outdoor activities or even normal activities in their homes. The Agency anticipates anti-collision lighting will be no more distracting to individuals engaging in outdoor activities at night than the light from various other artificial sources. Red and white lights are often used at night, on vehicle headlights and taillights, street lights, school bus strobes, and other sources. The benefits of allowing small UAS operations at night in accordance with these requirements outweigh the potential drawback of distracting people on the ground. The FAA has carefully considered these concerns, however, and has prepared a finding of the categorical exclusion that applies to this rule, which assesses light emissions and visual impacts, and is available in the public docket for this rulemaking.
One commenter asked the FAA to consider allowing municipalities to designate certain public, open spaces as night flight zones. One commenter opposed operations at night and the use of anti-collision lighting over parklands and “Dark Sky” communities where municipalities restrict artificial lighting and suggested the FAA follow restrictions on train horns and allow communities to request prohibitions of night operations within the municipality. This commenter further noted the FAA has responsibilities under the Department of Transportation Act, Sec. 4(f), for any lighting if it impairs in any way night skies, vistas, and contemplative recreation in protected areas such as wilderness and parks.
The National Conference of State Legislature and the National Association of Counties stated the importance of State and local authorities’ ability to regulate UAS on a State and county level. One commenter suggested allowing different UAS regulations in different states. Other commenters expressed concerns about local entities placing requirements on the airspace and operating requirements.
States and municipalities may use their police powers, such as those relating to land use, zoning, privacy, anti-voyeurism, trespass, and law enforcement operations, to address small UAS operations in the community. Through their land use and zoning power, municipalities have authority to determine the placement of aircraft takeoff and landing areas within the community. However, municipalities do not have authority to enact operational restrictions on aviation safety or the efficiency of the navigable airspace, including regulation of unmanned aircraft flight altitude, flight paths or operational bans. The applicability of the Department of Transportation Act, Section 4(f), is discussed in the supporting documentation for the categorical exclusion documentation, which is included in the public docket for this rulemaking.
All aircraft operations in the navigable airspace, whether manned or unmanned, and whether during the day or at night, are regulated by the Federal government. Congress has long vested the FAA with authority to regulate the areas of airspace use, management, and efficiency; air traffic control; safety; navigational facilities; and aircraft noise at its source. In addition, a citizen of the United States has a statutory public right of transit through the navigable airspace. The FAA is aware of the International Dark-Sky Association and its work in encouraging communities, parks, and protected areas to preserve and protect dark sites through responsible lighting policies and public education. Designated dark sky communities would be free to request UAS operators minimize nighttime operations, citing their community’s dedication to the preservation of the sky through the implementation and enforcement of outdoor lighting ordinances to promote responsible lighting and dark sky stewardship. However, under the Federal statutory and regulatory framework, communities would not have the authority to prohibit small UAS operations at night or regulate small unmanned aircraft lighting.
On the effective date of this rule, persons are permitted to conduct operations at night, provided they successfully complete the updated initial aeronautical knowledge test, initial training, and recurrent training, as applicable, which addresses the requirements of operating at night and that the small unmanned aircraft has lighted anti-collision lighting visible for at least 3 statute miles that has a flash rate sufficient to avoid a collision. Section IX.B. of this preamble provides a discussion of this requirement. The updated knowledge area on night operations for initial and recurrent training will be available on March 1, 2021, and will be accessible through the FAA website. The initial aeronautical knowledge test will have the updated knowledge area on night operations and will be available on March 1, 2021 at the knowledge testing centers. However, remote pilots without a waiver from § 107.29 will need to wait until March 16, 2021 before operating at night.
Sixty days after the effective date of the rule, no person may operate a small UAS at night in accordance with a certificate of waiver issued prior to the effective date of the rule. Existing waivers from § 107.29 granted prior to the effective date will terminate 60 days after the effective date of the rule. Similarly, on the effective date of this rule, pilots will be subject to the recurrent training requirement finalized in this rule, rather than the recurrent knowledge test. Remote pilots conducting operations in accordance with a current night waiver will need to complete the updated night operations knowledge area either by retaking the initial aeronautical knowledge test or completing the recurrent online training within 60 days from the effective date of this rule. The other amendments described in Section XI will also take effect on the effective date of this rule. The FAA did not receive any comments specific to the effective and compliance dates of this final rule, with the exception of comments that discussed coordination with the Remote Identification final rule, as discussed in the following section.
The final rule enables entities to conduct operations over people and at night using eligible small UAS. Part 107 waiver analysis by AUVSI shows that between June 2016 and March 2020, a total of 4,144 waivers have been granted by the FAA. A vast majority of the waivers granted are for § 107.29, daylight operations (3,813 waivers granted), followed by § 107.39 operations over people (125 waivers granted). These two waiver categories account for 95 percent of the waivers granted to date, and demonstrates the desire among entities to be able to conduct these types of operations. The AUVSI analysis shows a majority of the waivers granted have been for entities with fewer than 10 employees that generate a revenue of under $1 million annually.
Due to the reduced visibility associated with nighttime operations, the NPRM proposed to prohibit the operation of a small UAS outside the hours of official sunrise and sunset. For the reasons discussed below, this rule will maintain the prohibition on nighttime operations but will allow small UAS operations to be conducted during civil twilight if the small unmanned aircraft has lighted anti-collision lighting visible for at least 3 statute miles. The nighttime-operations prohibition in this rule will also be waivable. Approximately 25 commenters generally supported the proposed prohibition on operations outside the hours of official sunrise and sunset. ALPA noted that the prohibition is consistent with the ARC recommendations. The Minneapolis-Saint Paul Metropolitan
Airports Commission (Metropolitan Airports Commission) asserted that nighttime operations introduce a number of visual illusions, and unlike manned-aircraft pilots, small
UAS operators will not be required to complete comprehensive training programs that teach pilots how to deal with these illusions. The City and County of Denver, Colorado noted that allowing operations only in the lightest of conditions will increase the probability of avoidance in the event of a conflict.
Federal Airways provided some conditions and limitations under which they would support nighttime operations of UAS, but ultimately noted that if the goal is to be as least burdensome as possible, limiting operating hours to daylight hours only would eliminate the need for further specification in lighting requirements. The American Association of Airport Executives and Barrick Gold of North America, Inc. concurred with the nighttime operation prohibition, but added that in the future, technological advances may provide the opportunity to allow nighttime operations.
Other commenters objected to the proposed prohibition on nighttime operations. Skycatch, Clayco, AECOM and DPR Construction, commenting jointly, and several individuals, suggested that the proposed prohibition on nighttime operations be entirely eliminated from the final rule. Cherokee Nation Technologies and The Information Technology and Innovation Foundation asserted that nighttime operations can be safer than daytime operations because there is less air traffic and there are fewer people on the ground. EEI and AUVSI suggested that nighttime UAS operations are safer and less disruptive than nighttime manned-aircraft operations such as helicopters circling overhead. Virginia Commonwealth University Honors Students said the proposed ban on nighttime operations ignores the use of other senses, particularly sound, to detect and avoid other aircraft. DJI stated that because manned aircraft operating at night are required to be equipped with lighting, UAS operators would be able to satisfy their see-and-avoid requirements, even when operating at night.
A large number of commenters who opposed the daytime-only restriction of small UAS operations proposed several methods of mitigating hazards. The mitigation strategies were generally related to improving visibility to support see-and-avoid, augmenting seeand-avoid with technology, implementing additional restrictions for operations at night, and requiring additional certification or training. For example, the Airborne Law Enforcement Association, NBAA, and the National Ski Areas Association said nighttime operations of small UAS could be conducted safely if the aircraft is equipped with proper lighting. The National Association of Broadcasters, National Cable & Telecommunications Association and Radio Television Digital News Corporation, commenting jointly, and the Associated General Contractors of America supported nighttime operations in well-lit areas, such as closed sets or sites of sporting events. The Kansas State University UAS Program cited preliminary research that, it argued, indicates that UAS equipped with navigation lights are often easier to see at night than during the day.
Nighttime operations pose a higher safety risk because the reduced visibility makes it more difficult for the person maintaining visual line of sight to see the location of other
aircraft. While the existence of other lighted manned aircraft may be apparent due to their lighting, the distance and movement of small unmanned aircraft relative to the distance and movement of those aircraft is often difficult to judge due to the relative size of the aircraft. In addition, visual autokinesis (the apparent movement of a lighted object) may occur when the person maintaining visual line of sight stares at a single light source for several seconds on a dark night. For this reason, darkness makes it more difficult for that person to perceive reference points that could be used to help understand the position and movement of the lighted manned aircraft, the small unmanned aircraft, or other lighted object.
The lack of reference points at night is problematic for small UAS subject to part 107 because they are not required to have any equipage that would help identify the precise location of the small unmanned aircraft. As such, a remote pilot in command operating under this rule will generally rely on unaided human vision to learn details about the position, attitude, airspeed, and heading of the unmanned aircraft. This ability may become impaired at night due to a lack of reference points because all a remote pilot may see of his or her aircraft (if it is lighted) is a point of light moving somewhere in the air. For example, a lighted small unmanned aircraft flying at night may appear to be close by, but due to a lack of reference points, that aircraft may actually be significantly farther away than the remote pilot perceives. An impairment to the remote pilot’s ability to know the precise testing. Finally, the article concluded by noting that “more analysis is needed.” As a result, the FAA does not
currently have sufficient information to evaluate the research cited in the comment. position, attitude, and altitude of the small unmanned aircraft would significantly increase the risk that the small unmanned aircraft will collide with another aircraft.
In addition to avoiding collision with other aircraft, remote pilots in command must also avoid collision with people on the ground, as well as collision with ground-based structures and obstacles. This is a particular concern for small UAS because they operate at low altitudes. When operating at night, a remote pilot may have difficulty avoiding collision with people or obstacles on the ground which may not be lighted and as a result, may not be visible to the pilot or the visual observer. As such, this rule will not allow small UAS subject to part 107 to operate at night (outside of civil twilight) without a waiver.
The Motion Picture Association of America (MPAA) and several individuals recommended that small UAS operations be permitted between civil dawn and civil dusk. The commenters stated that there is sufficient light during civil twilight to see and avoid ground-based obstacles. One commenter compared UAS to ultralight vehicles, citing precedent in § 103.11(b), which allows ultralight vehicles to be operated during civil twilight, provided the vehicle is equipped with an operating anti-collision light visible for at least 3 statute miles. The Drone User Group Network suggested that with appropriate
lighting, a small UAS would in fact be more visible in low light than during the day, thus enabling the remote pilot to exercise his or her visual-line-of-sight responsibility. Many of the comments cited photography as a type of operation that could be conducted during twilight hours.
Civil twilight is a period of time that, with the exception of Alaska, 84 generally takes place 30 minutes before official sunrise and 30 minutes after official sunset. The
FAA agrees with commenters that operations during civil twilight could be conducted safely under part 107 with additional risk mitigation because the illumination provided
during civil twilight is sufficient for terrestrial objects to be clearly distinguished during clear weather conditions. As a result, many of the safety concerns associated with nighttime operations are mitigated by the lighting that is present during civil twilight. That is why current section 333 exemptions permit twilight UAS operations. Accordingly, this rule will allow a small UAS to be operated during civil twilight.
However, while civil twilight provides more illumination than nighttime, the level of illumination that is provided during civil twilight is less than the illumination provided between sunrise and sunset. To minimize the increased risk of collision associated with reduced lighting and visibility during twilight operations, this rule will require small unmanned aircraft operated during civil twilight to be equipped with anti-collision lights that are visible for at least 3 statute miles.
A remote pilot in command may reduce the intensity of the anti-collision lights if, because of operating conditions, it would be in the interest of safety to do so. For example, the remote pilot in command may reduce the intensity of anti-collision lights to minimize the effects of loss of night vision adaptation. The FAA emphasizes that anti-collision lighting will be required under this rule only for civil twilight operations; a small unmanned aircraft that is flown between sunrise and sunset need not be equipped with anticollision lights.
The FAA acknowledges that current exemptions issued under Public Law 112-95, section 333 allow civil twilight operations without a requirement for anti-collision lighting. However, the section 333 exemptions do not exempt small UAS operations from complying with § 91.209(a), which requires lighted position lights when an aircraft is operated during a 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). As such, UAS currently operating under a section 333 exemption have lighting requirements when operating during civil twilight. However, while current section 333 exemptions rely on position lighting, it would
be impractical for this rule to prescribe specifications for position lighting for civil twilight operations because a wider range of small unmanned aircraft will likely operate under part 107. Position lighting may not be appropriate for some of these aircraft. Thus, instead of position lighting, small unmanned aircraft operating under part 107 will be required to have anti-collision lights when operating during civil twilight.
The FAA also notes that meteorological conditions, such as haze, may sometimes reduce visibility during civil twilight operations. Accordingly, the FAA emphasizes that, as discussed in the following section of this preamble, this rule also requires that the minimum flight visibility, as observed from the location of the ground control station, must be no less than 3 statute miles.
Several commenters, including the Nature Conservancy, MPAA, Commonwealth Edison Company, the American Fuel & Petrochemical Manufacturers, and the Newspaper Association of America, suggested that certain types of operations should be exempt from the proposed nighttime prohibition. These operations include: emergency operations, public service operations, hazardous material response, railroad incident management, public utility inspection and repair, pipeline monitoring, thermal roof inspections using infrared technology, conservation-related operations in sparsely populated areas, ski area operations where people and property can be easily avoided, news-reporting, and filming in controlled, well-lit areas. The American Farm Bureau and several other commenters
claimed that certain UAS operations are best conducted at night. These operations include research and humanitarian operations, crop treatments, wildfire fighting, nocturnal wildlife monitoring, infrastructure monitoring, and operations using infrared and thermal imaging cameras. The Property Drone Consortium stated that a daylight-only requirement would restrict the ability of its members to conduct thermal imaging using small UAS.
Commonwealth Edison stated that the proposed restriction to daylight-only operations would constrain the ability to use small UAS to respond to emergencies that occur outside of daylight hours. Similarly, NRECA stated that the restriction to daylight operations would severely impede its members’ ability to respond to electrical grid emergencies caused by weather. Both Commonwealth Edison and NRECA suggested that the final rule include deviation authority to allow nighttime operations if it can be shown that such operations can be conducted safely. Similarly, Boeing, the University of North Dakota’s John D. Odegard School of Aerospace Sciences, and DJI recommended that the proposed nighttime-operation prohibition be amended to allow waivers to be authorized by the Administrator to accommodate time-critical and emergency operations that may need to be conducted at night if those operations can be conducted safely.
The FAA agrees with commenters that there could be benefits to allowing certain small UAS operations at night, such as search and rescue or firefighting operations when those operations are conducted as civil operations. As such, the nighttime-operation prohibition in this rule will be waivable. The FAA will consider granting a certificate of waiver allowing a nighttime small UAS operation if an applicant can demonstrate sufficient mitigation such that operating at night would not reduce the level of safety of the operation. The American Petroleum Institute recommended an exception for Alaska’s North Slope, an area of significant operations for the oil and gas industry. The commenter noted that there are no daylight hours for approximately 3 months of the year in that area. The same safety concerns exist in northern Alaska as they do anywhere in the United States during periods of darkness. However, as discussed previously, this rule will allow small UAS operations to be conducted during civil twilight. This will add significantly greater flexibility to Alaska operations because for the northernmost portions of Alaska, the sun never rises for as many as 64 days a year. By allowing operations to take place during civil twilight, this rule will allow small UAS operations year round, even in Alaska’s North Slope. In addition, as discussed previously, the FAA will consider granting a certificate of waiver for specific nighttime operations if the applicant can demonstrate that operating at night will not reduce the safety of the operation.
Qualcomm, FLIR Systems, the Drone User Group Network, and several individuals supported operations at night utilizing technology such as night-vision cameras to allow the aircraft to be safety piloted. The Association of American Railroads contended that risks associated with nighttime operations could be mitigated by requiring small unmanned aircraft to be equipped with sense-and-avoid technology approved by the FAA. Kapture Digital Media and another commenter asserted that night-vision-enabled FPV cameras are available that would aid in seeing-and-avoiding other aircraft and hazards at night. The South Dakota Department of Agriculture suggested that the FAA prescribe a performance based standard in lieu of daylight-only restrictions, thus allowing for the integration of new risk-mitigating technologies as they are developed and refined. The Colorado Cattlemen’s Association suggested that risks related to low-light and nighttime operations could be mitigated through technological equipage.
For the reasons discussed earlier in this preamble, existing vision-enhancing devices, such as FPV, do not currently provide a field of vision sufficient for the user to safely see and avoid other aircraft. Current sense-and-avoid technology would also insufficiently mitigate the risk associated with flying at night because this technology is still in its early stages of development. As of this writing, there is no sense-and-avoid technology that has been issued an airworthiness certificate. The FAA will keep monitoring this technology as it develops and may incorporate it, as appropriate, into certificates of waiver, future UAS rules, or possible future revisions to part 107.
Several commenters suggested permitting nighttime operations by further segmenting the small UAS category of aircraft by lesser weights or lower operational altitudes. However, even a relatively light small unmanned aircraft could cause a hazard by colliding with another aircraft in the NAS or an object on the ground. As discussed previously, these safety risks are more prevalent at night due to reduced visibility. While low weight could be one mitigation measure that a person could use to support a waiver application, this factor, by itself, would be unlikely to mitigate the additional risk associated with a nighttime small UAS operation.
Embry-Riddle and the Florida Department of Agriculture, Consumer Services’ UAS Working Group (Florida Department of Agriculture) proposed allowing operators possessing additional certification to fly at night. Textron Systems and several individuals recommended additional training for night operations.
As discussed previously, this initial small UAS rulemaking effort is intended to immediately integrate the lowest risk small UAS operations into the NAS. The FAA plans to address higher risk operations and the mitigations necessary to safely conduct those operations, such as the mitigations suggested by the commenters, in future agency actions. The FAA will consider the commenters’ recommendations as part of future rulemaking efforts to integrate higher-risk UAS operations, such as nighttime operations, into the NAS. AUVSI, Prioria Robotics, and a joint submission from Skycatch, Clayco, AECOM, and DPR Construction pointed to Australia and New Zealand as examples of countries where nighttime operations have been safely conducted in areas with established UAS regulations. In keeping with U.S. obligations under the Convention on International Civil Aviation, it is FAA policy to conform to ICAO SARPs to the maximum extent practicable. However, there are currently no ICAO SARPs that correspond to the nighttime-operation provisions of these regulations. Because the integration of UAS into the NAS is an incremental process, the FAA will continue expanding UAS operations to include those that pose greater amounts of risk, utilizing data gleaned from industry research, the UAS test sites, and international UAS operations.
Matternet and the Mercatus Center at George Mason University cited § 101.17, stating that kites and moored balloons operate safely at night, with specific lighting requirements, even though they are not equipped with the kinds of sense-and-avoid technologies likely included in small UAS systems.
As discussed previously, sense-and-avoid technology does not currently provide sufficient mitigation to enable nighttime operations. In addition, while kites and moored balloons operated under part 101 are permitted to operate at night, § 101.15 requires the kite or moored balloon operator to notify the nearest ATC facility of the details of the operation at least 24 hours prior to each operation. Because kites and moored balloons governed by part 101 operate in a fixed location, this ATC notification allows ATC to disseminate details of the operation to other aircraft in the area. Conversely, with some exceptions, small UAS operating under part 107 in Class G airspace will not be required to communicate with ATC prior to or during the operation.
One commenter suggested that small UAS operations be limited to the period between one half hour after official sunrise and one half hour before official sunset, arguing that it is not uncommon for small unmanned aircraft to have low-visibility color schemes. However, it is not necessary to further reduce operations conducted near sunset or sunrise to mitigate the risk of small UAS operations in low light conditions. As discussed previously, low-light conditions provide sufficient lighting to mitigate many of the safety concerns underlying the prohibition on nighttime operations.