FAA's proposed Part 108 BVLOS Rule: Industry response and key concerns

After years of anticipation, the Federal Aviation Administration (FAA) released its Notice of Proposed Rulemaking (NPRM) for Part 108 on August 7, 2025, revealing the proposed regulatory framework for Beyond Visual Line of Sight (BVLOS) drone operations. The 700+ page proposal represents the most significant development in commercial drone regulation since Part 107 was introduced in 2016.

After a 60-day comment period that closed on October 6, 2025, the FAA received over 3,000 public comments reflecting widespread, but not all positive, perspectives from industry stakeholders.

In this alert, we discuss key industry concerns and responses to the FAA’s NPRM.

Background

As detailed in a previous DLA Piper alert, the proposed framework seeks to replace the current waiver-based system with scalable, performance-based regulations enabling routine BVLOS operations for package delivery, infrastructure inspection, precision agriculture, public safety, and other commercial applications.

While stakeholders broadly support the goal of enabling routine BVLOS operations, the comment period revealed significant concerns shared across multiple industry sectors, which are detailed in the sections below.

Transition from current waiver operations

Industry drone associations emphasized that the NPRM fails to provide a clear mechanism for operators with existing Part 107 BVLOS waivers to transition to Part 108. The proposal would eliminate the ability to obtain new Part 107 BVLOS waivers, which are preferable to those currently operating under such waivers. Industry associations urged the FAA to create a streamlined “grandfathering” pathway recognizing proven operational safety records for operators operating under waivers.

Prohibition on manual pilot control

Industry groups and numerous operators warned that the NPRM’s emphasis on highly automated operations with simplified user interfaces effectively precludes traditional pilot-in-the-loop control. Under the proposed framework, flight coordinators would issue high-level commands through automated systems rather than directly controlling aircraft. Commenters argued that this eliminates the safety backstop of human intervention and would ground existing operations relying on skilled pilots maintaining direct control authority.

Barriers for small operators and public safety agencies

Industry organizations expressed concern that proposed operator requirements, particularly full safety management systems (SMS), certificated personnel, and organizational-level approvals, create disproportionate burdens for smaller entities and resource-limited public safety agencies. Commenters noted that the framework appears designed primarily for large, well-capitalized operators rather than the operators conducting BVLOS operations today.

Population density as sole risk metric

Drone companies and infrastructure operators criticized the NPRM's reliance on population density as the primary risk determinant. Many commercial operations occur at access-controlled sites (eg, construction sites, mines, energy facilities) where effective mitigations (eg, geofencing, site access control, parachute systems) significantly reduce risk regardless of surrounding population density. Commenters advocated for a performance-based approach crediting operational mitigations.

Case-by-case area approvals

A coalition of commercial and recreational operators, including the Drone Service Providers Alliance, argued that requiring FAA review and approval for every operational area "effectively becomes another waiver system, precisely the inefficiency this rulemaking is meant to replace." Commenters urged the FAA to establish clear, objective criteria allowing operators to self-assess compliance without individualized approvals for each area.

Foreign-manufactured aircraft restrictions

Manufacturers and numerous public safety agencies warned that Section 108.700 country-of-origin requirements would exclude the vast majority of drones currently in use. The provision limits airworthiness acceptance to US-manufactured aircraft or those from countries with bilateral airworthiness agreements – agreements that do not currently exist for unmanned aircraft. This would significantly impact public safety agencies, first responders, and commercial operators relying on proven platforms.

Manned aviation safety concerns

Pilot associations, balloon operators, and agricultural aviation groups raised serious objections to proposed right-of-way rules and the prohibition on drones broadcasting automatic dependent surveillance–broadcast out (ADS-B Out). Key concerns include:

• Prohibition on drones transmitting ADS-B Out, making them invisible to equipped manned aircraft,


• Conditional right-of-way for drones over manned aircraft without ADS-B Out or electronic conspicuity equipment, and


• Creation of a “one-way visibility gap” where manned aircraft cannot detect drones while drones may only partially detect manned aircraft.

These groups argued that the provisions create unacceptable collision risks for low-altitude helicopter operations, agricultural spraying, aerial firefighting, and recreational aviation.

One-size-fits-all regulatory approach

Agricultural operators and specialized users noted the NPRM’s uniform requirements may not accommodate operational realities across different industries. For example, agricultural operations in remote areas face regulatory burdens similar to urban package delivery despite having vastly different risk profiles.

Next steps and timeline

The FAA now faces the substantial task of reviewing and responding to the extensive public comments. Under the Executive Order timeline, a final rule should be published by approximately March–April 2026. However, given the volume and substance of the comments received, the complexity of revisions likely required, and the FAA's resource constraints, meeting this deadline may prove challenging.

The Administrative Procedure Act requires the FAA to review all substantive comments and provide reasoned responses to significant concerns. The agency is not permitted to disclose what changes it may be considering during the review process. Stakeholders should anticipate potential modifications to address at least some (but not likely all) of the concerns raised.

Conclusion

Part 108 represents a pivotal moment for the commercial drone industry with potential to unlock significant economic value across multiple sectors. However, the path from proposal to implementation remains uncertain as the FAA balances enabling innovation with ensuring safe integration into the National Airspace System. By staying informed and proactive, operators and manufacturers can position themselves to benefit from this evolving regulatory landscape.

DLA Piper is here to offer support at every stage of this regulatory transition. The firm will continue monitoring developments and provide updates as the FAA moves toward finalizing Part 108. Please contact the authors with any questions about how these proposed rules may affect operations or compliance strategy.