Part 108 NPRM Lands! FAA Releases Much-Anticipated Commercial Drone Operations Rule

A draft of the much-anticipated Notice of Proposed Rulemaking (NPRM) for 14 C.F.R. Part 108, the Federal Aviation Administration’s (FAA) new rule for Beyond the Visual Line of Sight (BVLOS) commercial drone operations, has been released by FAA.

Part 108 is intended to provide a standardized regulatory framework for enabling BVLOS operations, and will facilitate safe commercial drone operations at scale that will result in substantial public benefits. Prior to this rulemaking, the FAA required operators to obtain waivers through a complex and burdensome process in order to conduct BVLOS operations. These administrative hurdles made entrance to the market difficult and scalability challenging.

Although not yet published in the Federal Register, the NPRM includes:

• Operator authorization pathways.
• Detailed Operator authorizations and requirements, including reporting structure, record keeping, and personnel roles and qualifications.
• Requirements for drones to autonomously detect and avoid conflicting traffic and obstacles.
• Standards for operational performance, considering automation levels and flight management.
• Operator and pilot qualification and certification requirements.
• Operating and right-of-way rules.
• Protocols for networked information exchange, e.g., remote ID, for BVLOS operations.
• Safety measures for manned aircraft, considering maneuverability and technology limits.
• Security and cyber-resilience requirements.

The BVLOS operations supported by the Part 108 framework (in which a drone operates beyond sight of the pilot and observers) will enable a variety of operations, including drone package delivery, at scale. Operations will take place at or below 400 feet above ground level in FAA-approved areas. Operators will be required to rely on FAA-approved automated data service providers (ADSPs), which collect and disseminate data to mitigate risk of conflicts among aircraft. These ADSPs will be regulated by the FAA, and operators could also serve as their own ADSPs. The new rule will also streamline airworthiness approvals by allowing drones weighing up to 1,320 pounds to forego the traditional certification process for receiving airworthiness certificates. Rather, they will be accepted by the FAA through a new process if they conform with industry consensus standards.

In 2021, the FAA tasked industry with developing recommendations for regulations governing BVLOS operations through the BVLOS Aviation Rulemaking Committee (ARC). The ARC issued its final report in 2022, which recommended that the FAA issue BVLOS standards through a new Part 108. While the FAA was considering the ARC’s recommendations and developing the rule, Congress gave the Agency a nudge in the form of the FAA Reauthorization Act of 2024 (Public Law 118-63), which directed the FAA to issue Part 108 by the end of 2024.

The regulatory certainty presented by the long-awaited rulemaking will likely encourage innovation and growth in the drone sector. The NPRM, which encompasses more than 700 pages, will be open for public comment for 60 days after its formal publication in the Federal Register, and all stakeholders and interested parties will have the opportunity to provide input before the rule is finalized.

About Our Author

Tyler Conklin is a leading member of the Adams & Reese Aviation & Aerospace Team. She has substantial experience providing comprehensive legal advice on compliance, risk management, and strategy across diverse aspects of aviation business and operations. Tyler is experienced in risk analysis, contract negotiation, sophisticated internal investigations, legal compliance, HR and Legal policy development, disciplinary actions, and union relations. Prior to joining Adams & Reese, Tyler served as in-house counsel at Atlas Air, Inc., where she was the legal focal for the Flight Operations Department of the leading international cargo airline. Tyler’s in-house experience affords direct insight into complex legal, operational, and commercial issues, which they apply to help clients navigate risks, solve problems, and capitalize on opportunities.