In an atypical move, aviation regulators will give drone manufacturers and operators, pilots, and other aviation stakeholders a second opportunity to shape a consequential proposal.
Per a notice in the Federal Register published Wednesday, the FAA reopened the comment period for its notice of proposed rulemaking (NPRM) for Part 108, which would greatly expand where and how uncrewed aircraft systems (UAS), or drones, can fly. The move will give stakeholders another chance to provide feedback, though it could result in the final Part 108 rule slipping past the early February timeline dictated by the White House in June.
Per the FAA’s website, the agency has registered more than 480,000 remote drone pilots under its Part 107 rule for small UAS operations, including for compensation. But without a waiver or exemption, they cannot fly beyond the visual line of sight (BVLOS)—meaning humans must keep eyes on the aircraft at all times.
The FAA previously denied two requests to extend the initial NPRM comment period, which closed on October 6. The agency received about 3,100 comments, with pilot-focused organizations such as the Air Line Pilots Association (ALPA) and Aircraft Owners and Pilots Association (AOPA) raising a litany of questions.
Among them is who—uncrewed drones or crewed aircraft—gets right of way, and how. The FAA proposes a change to legacy right-of-way rules that would give Part 108 operators primacy, except in certain circumstances. But the agency has not yet determined what technology equipage will be mandated to deconflict crewed and uncrewed aircraft.
Per Wednesday’s notice, more than half of the submissions during the original comment period “discussed the right-of-way proposal in some capacity.”
The rule looms as drone delivery operators such as Zipline and Wing look to expand their services—which operate in a handful of U.S. cities—nationwide. Drone operators in other sectors, such as agriculture, public safety, and inspection, also stand to benefit from Part 108’s expanded permissions, which could net them more customers.
Drone Integration Challenge
Part 108 aims to tackle the biggest concern with expanded commercial drone operations—safe integration with crewed aircraft.
It would grant Part 108 operators the right of way over crewed aircraft except:
- In Class B and C airspace.
- When the crewed aircraft is broadcasting its position using ADS-B Out or an approved alternate electronic conspicuity (EC) device.
- When the crewed aircraft is arriving at or departing an airport or heliport.
Crewed aircraft would have the right of way over “Category 5” population areas, which the FAA defines as within half a mile of a LandScan USA cell containing at least 2,500 people—think major metropolitan downtown areas. Category 5 would be the most heavily regulated of five such areas proposed, requiring drones to be capable of detecting noncooperative aircraft (i.e. those not broadcasting their position).
“Requiring a [detect and avoid system] capable of detecting all airborne traffic would ensure that persons on the ground would be protected from any potential debris from an airborne collision,” the NPRM reads.
That last component raises questions, not the least being which separation and deconfliction technologies will be used. The FAA considered a mandate for crewed aircraft to broadcast ADS-B Out when flying below 500 feet, but ultimately rejected it due to cost and burden on operators.
However, it plans to create requirements for “low-cost” EC devices as an ADS-B alternative that could be used “solely to retain right-of-way over a part 108 [aircraft].” These requirements would permit battery-powered devices that could be moved between aircraft, allowing resource-strapped operators to cover a fleet with a single device.
Per the NPRM, “this EC device would be usable in any manned aircraft, including fixed-wing, rotorcraft, balloons, and ultralight vehicles, without expensive installations or reliance on onboard electrical systems.”
Request for Comment
The FAA said it is reopening the NPRM’s comment period specifically to seek feedback around the right-of-way and EC provisions.
Per the notice, commenters said the right-of-way proposal would add “unnecessary complexity” to the airspace by creating a latticework of operational zones with different requirements. For example, a pilot could be flying in a Category 5 area one minute and a Category 4 area—where the right of way shifts to UAS—the next.
Respondents were somewhat divided on who should bear the burden of separation and deconfliction. Some expressed concern about the safety and cost of noncooperative DAA technology, but many supported broader mandates for ADS-B or alternative EC devices for crewed operations below 500 feet. Per the notice, a few said mandatory equipage is the “only viable” option to mitigate the risk of collisions.
At the other end of the spectrum, a “smaller subset” of commenters opposed expanded equipage requirements, arguing that the drone industry should bear those costs. But according to the notice, they did not offer “solutions to the practical issues with FAA’s proposal identified by other commenters.”
Other commenters had “practical concerns” about how crewed aircraft would yield to drones.
FAA Administrator Bryan Bedford, Deputy Administrator Chris Rocheleau, and other officials in January held two listening sessions with drone manufacturers and “relevant industry associations,” including ALPA and AOPA. Most of the manufacturers supported mandatory EC requirements for crewed aircraft flying in busy, low-altitude airspace. Some favored EC over ADS-B due to concerns about the latter’s effectiveness in low-altitude and complex operating environments, such as firefighting. A few called for performance-based requirements not tied to any specific technology.
It appears they got the FAA’s ear. The agency said it is seeking further information on the availability of ADS-B alternatives that meet the same performance requirements. It also asked commenters to weigh in on the potential adoption of the Radio Technical Commission for Aeronautics (RTCA) DO-282C standard, which sets minimum performance requirements for EC devices globally.
Pilots Press the Issue
The FAA granted a second opportunity to shape the Part 108 proposal primarily due to questions around right of way and EC. Those are just a few of the concerns pilots have with the rule.
The Pilot Institute, Experimental Aircraft Association (EAA), and National Air Transportation Association (NATA) joined ALPA, AOPA, and five others to issue a joint comment warning of “unintended consequences.”
AOPA contended that crewed aircraft should always have the right of way, even when noncooperative. It said that ADS-B “cannot be installed on the more than 17,000 aircraft in the U.S. that operate without electrical systems” and that EC devices may still be unavailable or unaffordable when the rule takes effect.
AOPA called the proposed EC mandate “stunningly inequitable” and suggested the FAA subsidize those costs. It even went as far as calling for all Part 108 drones to be equipped with ADS-B In so that pilots have better visibility. The group cited an October incident involving two Amazon Prime Air MK30 drones—which crashed into the same crane boom minutes apart—as evidence that DAA systems are not mature as the FAA assumes.
“The fact that two drones crashed within minutes of each other, into the same obstacle, would seem to indicate that a systemic problem exists that must be examined and addressed,” AOPA wrote.
ALPA called for the FAA to prohibit drone ops in controlled airspace and near airports, limiting them to Class G airspace until an adequate risk analysis is conducted. It also rejected the proposal’s call for operators to oversee the training of personnel in lieu of a traditional airman certificate.
“The FAA’s proposed strategy could be considered a conflict of interest if the level of safety is determined merely by corporate responsibility without proper FAA oversight,” ALPA said.
A coalition of 17 state attorneys general in January also raised concerns about the FAA’s handling of a draft programmatic environmental assessment (PEA) for commercial drone package delivery. The group called the PEA a “largely symbolic paper exercise that fails to adequately consider the environmental risks.”