Last week, the FAA issued an historic authority to Industrial Skyworks for nighttime commercial UAS operations. The Section 333 exemption, obtained with the help of Kenneth Quinn, Jennifer Trock, and Graham Keithley of Pillsbury Winthrop Shaw Pittman LLP, is the first approval of its kind and demonstrates the FAA’s willingness to permit flights with increased risk as long as the safety case is well demonstrated and maintained.

The FAA exemption will allow Industrial Skyworks to perform thermal inspections of roofs that are improved by the cooler night temperatures. Before this decision, the FAA had prohibited commercial UAS operations after sunset for safety purposes. To support its decision, Industrial Skyworks was required to go through the additional step of submitting a comprehensive safety case that included a hazard and risk assessment and mitigation plan for nighttime operations.

Industrial Skyworks nighttime operations will be subject to heightened safety requirements as part of the approval, including:

  • More stringent pilot requirements: PIC to hold an airline transport, commercial, or private pilot certificate that allows night operations.
  • Pilots must hold medical certificate and cannot operate during medical deficiencies or be color blind.
  • No nighttime operations can be conducted beyond the actual visual capabilities of the visual observer.

Industrial Skyworks’ unique exemption signals that the FAA is open to considering exceptions to the normal Part 333 requirements, provided applicants are willing to perform robust safety and hazard analyses and mitigations. Applicants should be well advised, however, that the process is complex and takes significant additional time and intra-agency coordination for the FAA to evaluate the technical aspects of the proposed operation.