Part 108 Update: FAA Reopens Comment Period for 14 Days

On January 27, 2026, the Federal Aviation Administration (FAA) put a notice on public inspection reopening the comment period for the Normalizing Unmanned Aircraft System Operations Beyond Visual Line-of-Sight Notice of Proposed Rulemaking (“NPRM”) to solicit responses to seven questions specifically related to Automatic Dependent Surveillance-Broadcast (“ADS-B”) Out, electronic conspicuity (“EC”), and detect-and-avoid (“DAA”).[1] The FAA is reopening the comment period to obtain responses to its seven questions for 14 days as of anticipated publication of the Notice on January 28, 2026, which means that interested parties must submit comments on or before February 11, 2026.

To recap the NPRM proposal on these topics, it included changes to legacy right-of-way rules through provisions proposed in Title 14 of the Code of Federal Regulations (CFR) § 108.195(a)(2) and proposed aligning amendments to § 91.113.[2] The proposed right-of-way changes would give part 108 drone operators presumptive right-of-way over manned aircraft except: when the manned aircraft is broadcasting location data with ADS-B Out or an EC device alternate to ADS-B Out; in Class B or C airspace; when the manned aircraft is taking off or landing at an airport or heliport; or over Category 5 population areas.

Proposed §§ 108.180(b) and 108.185(d)(5)(ii) would also require that drones operating in Class B and Class C airspace or over Category 5 populations areas be able to detect-and-avoid non-cooperative aircraft.[3] The preamble to the NPRM described non-cooperative aircraft as aircraft that are not actively broadcasting their location using ADS-B Out or an approved alternate EC device. The FAA explained in the preamble that it had considered mandating ADS-B Out for manned operations below 500 feet but had not proposed it due to concerns about the cost and burden. The FAA also solicited comment on whether the FAA should consider an equipage requirement in relation to EC devices for manned aircraft.

The FAA states in Section IV of today’s Notice that it is reopening the comment period because of “the substantial interest in, and [prior] comment on, FAA’s proposed policies for ADS-B Out, EC, and detect-and-avoid…FAA wants to ensure that it fully understands these comments and the relevant policy implications.” In summarizing the comments received so far on the NPRM, the FAA notes in Section II that many oppose to changes to the right-of-way rules, that there is significant support for mandatory ADS-B out or EC equipage for manned operators in low altitude airspace, and, of particular interest, states:

[A] smaller subset of commenters opposed expanded equipage requirements for manned aircraft, suggesting that unmanned aircraft should bear more of the integration costs. These commenters preferred detect-and-avoid requirements for part 108 operations, without offering solutions to the practical issues with FAA’s proposal identified by other commenters.

The information provided in and tone of this summary, read together with the specific questions to which the FAA is seeking responses, could signal an effort to obtain additional supportive data for a potential universal EC requirement for manned aircraft to be imposed in the final rule. It could also be an effort to bolster the FAA’s legal basis that a universal EC requirement would be a logical outgrowth of the NPRM.[4]

The questions in the Notice are focused on what EC devices are currently available, their cost and market readiness, performance standards for such devices, the possible anonymity of such devices, and alternative technologies that may be available besides EC and ADS-B out. Notably, the FAA also asks multiple times about indicators that an EC device may not be working properly. The FAA also states explicitly in Section IV of the Notice that only responses to the seven questions will be considered and that questions on other topics will be considered out of scope.

Interested parties should ensure to provide comments responsive to the questions in the Notice on the FAA’s regulatory docket for the rule and reach out to aviation counsel for assistance with documenting particular issues in advance of the closure of the comment period on February 11.

About Our Author

Courtney Freeman is a leading member of the Adams & Reese Aviation and Aerospace Team. Prior to joining Adams & Reese, Courtney was a senior member of the Office of the Chief Counsel at the FAA, where she led the teams that provided the legal architecture for emerging aviation technologies, including drone operations, Advanced Air Mobility (AAM), and other initiatives. Courtney’s prior 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.

[1] Normalizing Unmanned Aircraft Systems Beyond Visual Line of Sight Operations; Reopening of Comment Period, (on public inspection January 27, 2026), available at https://www.federalregister.gov/public-inspection/2026-01644/normalizing-unmanned-aircraft-systems-beyond-visual-line-of-sight-operations-reopening-of-comments (The NPRM was published at 90 Fed. Reg. 38,212 (Aug. 7, 2025).

[2] Id. at 38,244 (discussion regarding proposed § 108.195(a)(2) that would require that UA operating under part 108 yield to all manned aircraft broadcasting their position using ADS-B or EC equipment).

[3] Id. at 38,238 (discussion on proposed § 108.180(b) that would require that UAS operators in Class B and C airspace be equipped to detect and avoid non-cooperative aircraft).

[4] 5 U.S.C. § 553(b)(3).