The FAA did something unusual in the Part 108 rulemaking: after the original comment window closed, it reopened comments for a narrow second pass. Not for the whole BVLOS proposal. Not for another industry wish list. Just for the pieces that decide how crewed aircraft and unmanned aircraft see each other at low altitude.
That matters because the reopened docket was not really about paperwork. It was about operational priority. The FAA asked for more input on electronic conspicuity, ADS-B Out alternatives, detect-and-avoid, and right-of-way. In plain English: if a Part 108 drone and a crewed aircraft are sharing low-altitude airspace, who is expected to broadcast, who is expected to detect, and who gets out of the way?
The reopened comment period has now closed. The policy question has not.
What the FAA Actually Reopened
The original Part 108 NPRM, formally titled “Normalizing Unmanned Aircraft Systems Beyond Visual Line of Sight Operations”, was published on August 7, 2025. The FAA and TSA proposed a new regulatory framework for routine BVLOS operations, including a new Part 108 for operators and a new Part 146 for automated data service providers.
The original comment period closed on October 6, 2025. Then, on January 28, 2026, the FAA reopened the docket for 14 days. The agency made the scope explicit: comments already submitted would still be considered, duplicative comments would not receive extra weight, and comments outside the specific new questions would be treated as out of scope.
The reopened comment window closed February 11, 2026. When an extension was requested, the FAA denied it, explaining that the second window was limited and that stakeholders had already had the original 60-day period to address the broader proposal.
That sequence tells us two things. First, the FAA is trying to keep the Part 108 schedule moving. Second, it saw enough friction around electronic visibility and right-of-way to ask for a more focused record before finalizing the rule.
Why Electronic Conspicuity Became the Center of Gravity
Most people talk about BVLOS as a drone problem. Can the unmanned aircraft detect traffic? Can the operator maintain command and control? Can automation avoid obstacles and stay inside an approved operating volume?
Part 108 forces a harder question: what happens when the other aircraft is not participating electronically?
The NPRM proposed a framework where Part 108 UAS operators could receive presumptive right-of-way over crewed aircraft in some low-altitude scenarios unless the crewed aircraft is broadcasting location data through ADS-B Out or an approved alternate electronic conspicuity device. There are exceptions — Class B and C airspace, takeoff and landing at airports and heliports, and operations over the densest population category — but the policy direction is unmistakable.
The FAA is considering a world where being electronically visible changes the right-of-way picture.
That is why the reopened comments focused on alternate EC devices, ADS-B Out performance, pilot alerting, anonymity, interoperability, and practical timelines. The agency is not merely asking whether drones can see airplanes. It is asking whether the low-altitude system should rely on everyone being electronically visible enough for automation to make safe decisions.
The Right-of-Way Problem Is Not Academic
For commercial drone operators, a predictable right-of-way framework is essential. BVLOS package delivery, utility inspection, public safety support, agricultural operations, and long linear infrastructure work all require repeatable assumptions. If every low-altitude encounter with a non-participating aircraft forces the drone to behave as if it has no reliable traffic picture, scalable BVLOS becomes much harder.
For crewed aviation, especially general aviation, rotorcraft, aerial application, gliders, balloons, and ultralight communities, the concern is just as real. Many aircraft operating low do so legally without ADS-B Out. Some operate where electrical power, equipment weight, antenna placement, and cockpit workload make new equipage difficult. Others object on principle to changing a long-standing see-and-avoid hierarchy so that unmanned systems gain priority when the crewed aircraft is not electronically broadcasting.
This is the policy collision Part 108 has exposed. Drone integration wants machine-readable airspace. Traditional low-altitude aviation was not built around universal machine readability.
Portable EC Sounds Simple Until You Operate It
One likely compromise is acceptance of portable electronic conspicuity devices as an alternative to installed ADS-B Out. On paper, that sounds attractive. A portable device could make more crewed aircraft visible without imposing a full avionics retrofit.
The operational details are where the hard work lives.
A portable EC device has to answer questions the final rule cannot hand-wave away:
- What performance standard does it meet?
- How accurate must position, altitude, velocity, and identity be?
- How often must it transmit?
- How does it behave in poor coverage, poor antenna placement, or cockpit shielding?
- Does it preserve operator anonymity where appropriate?
- Does it create nuisance alerts or unusable cockpit workload?
- Can Part 108 detect-and-avoid systems ingest it reliably enough to change their behavior?
If the device is only advisory, then it may not support a real right-of-way presumption. If it is safety-critical, then it needs standards, maintenance expectations, failure modes, and enforcement logic. That is a much bigger ask than “carry a puck in the cockpit.”
Detect-and-Avoid Still Has to Carry the Safety Case
Electronic conspicuity is attractive because it makes the airspace legible to automation. But it cannot become the only layer.
The proposed Part 108 framework still turns on detect-and-avoid performance. The FAA specifically flagged requirements for UAS operating in Class B, Class C, and over Category 5 population areas to detect and avoid non-cooperative aircraft. That term — non-cooperative — is doing a lot of work. It means aircraft not broadcasting position through ADS-B Out or an approved alternate EC device.
The final rule has to avoid creating a brittle safety case where the drone performs well only when every other aircraft cooperates electronically. Low-altitude airspace is messy. Helicopters, ag aircraft, emergency aircraft, training aircraft, and off-airport operations do not always look like a neat surveillance feed. A credible BVLOS framework needs both electronic participation and independent DAA capability where the risk justifies it.
For operators, that means the equipment conversation is not going away. A Part 108 business plan built around “the FAA will make everyone else broadcast” is not a safety case. It is a hope with a battery.
What Operators Should Do Now
Even though the reopened comment window is closed, the signal is useful for planning.
If you are building or expanding a BVLOS program, treat electronic conspicuity as a core design input, not an accessory. That applies to aircraft selection, route planning, command-and-control architecture, operational procedures, and the vendor stack that will document your compliance.
A practical operator checklist:
- Map your expected routes against nearby low-altitude crewed activity: airports, heliports, ag strips, EMS routes, training areas, and known off-airport operating patterns.
- Identify whether your DAA concept depends on cooperative traffic, non-cooperative sensors, ground-based surveillance, UTM services, procedural deconfliction, or some combination.
- Ask vendors exactly which EC sources they can ingest today, which standards they support, and what happens when those inputs disappear.
- Build procedures for encounters with non-cooperative traffic instead of assuming they will be rare.
- Keep your Part 108 compliance documentation separate from marketing claims. The FAA will care about demonstrated performance, not slideware.
This is also the time to review your own fleet visibility. Remote ID and electronic conspicuity are not the same thing, but the market is moving toward integrated awareness. Operators that can show clean, structured, interoperable traffic data will be in a stronger position than operators treating visibility as a checkbox.
The Industry Split Is the Story
Industry groups have not lined up neatly on this issue. NBAA, for example, said the FAA's reopened period was aimed at more detailed input on electronic conspicuity and right-of-way, and noted member concern about drones receiving presumptive right-of-way over crewed aircraft unless those aircraft are broadcasting through ADS-B Out or similar EC. Aviation-law commentary has also read the reopening as an attempt to strengthen the record around whether broader EC expectations would be a logical outgrowth of the NPRM.
That split is healthy, even if it is uncomfortable. The final Part 108 rule will only work if it is technically credible to drone operators and operationally credible to the people already flying low. A rule that ignores BVLOS scalability will strand the drone industry in waiver land. A rule that ignores low-altitude crewed aviation will create resistance, enforcement fights, and avoidable safety risk.
The UAVHQ Read
The reopened Part 108 comment period was short, narrow, and easy to underestimate. But it likely marks one of the most important parts of the rulemaking record.
The FAA is trying to answer a foundational question before it normalizes BVLOS: can low-altitude airspace become electronically cooperative enough for drones to operate routinely, and if not, how much detect-and-avoid burden stays on the unmanned system?
That question will shape aircraft design, avionics expectations, operator manuals, waiver strategy, UTM services, public safety programs, package delivery networks, and the economics of BVLOS corridors.
The final rule may soften the right-of-way language. It may accept alternate EC devices. It may preserve more conservative DAA requirements than some operators want. Whatever the exact text, the direction is clear: Part 108 is not just a drone rule. It is a low-altitude airspace integration rule.
Operators who understand that now will be better prepared when the final rule lands.
Sources
- FAA Federal Register notice reopening the Part 108 comment period
- FAA Federal Register notice denying an extension of the reopened comment period
- Original FAA/TSA Part 108 BVLOS NPRM
- NBAA summary of the reopened BVLOS comment period
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