The Beyond Visual Line of Sight (BVLOS) for unmanned aircraft are finally here! After literally years of delay and numerous controversies, the FAA has posted a draft of its Notice of Proposed Rulemaking (NPRM). Weighing in at over 700-pages, there is a lot to unpack in the NPRM. For those of you interested in reading the entire NPRM, it can be found HERE.
The main thrust of the new regulation is the creation of a new Part 108 of the Federal Aviation Regulations. This new section contains the legal framework for conducting operations, limitations on where they can occur, the requirements for acting as a BVLOS pilot, and obtaining authorization to conduct such operations.
The rules are geared towards virtually all types of commercial BVLOS flights, including package delivery, agriculture, aerial surveying, public safety, recreation, and flight testing, but excluding the carriage of passengers. All such operations must be conducted below 400 feet and take-off will be limited to pre-designated and access-controlled locations. In addition, all operators will need FAA approval for the area where they intend to fly. This includes the boundaries of the flights as well as the approximate number of daily operations, as well as takeoff, landing and loading areas.
Operators will have two options for receiving FAA authorization: Permits and Certificates. Permits will be easier to get, and are available for lower-risk operations that are limited in scope. A full operating Certificate will be required for operations that are deemed high-risk due to the aircraft ‘size, weight and speed. These certificates will come with much higher oversight requirements and will require the operator to have a full Safety Management System (SMS).
One of the major concerns with scaling up BVLOS operations has been how to deconflict the aircraft from other UAS and manned aircraft in the absence of a UAS operator with a visual line of sight performing the “see and avoid” function. The FAA’s solution is the creation of entities referred to as Automated Data Service Providers (ADSP) which will perform the deconfliction function. The FAA anticipates approving and regulating these entities and requiring them to conform to “industry consensus standards following vetting and testing.” The FAA has left open the option for large UAS service providers to act as their own ADSPs or to contract with third party vendors. In addition, the FAA will require that all drones be capable of yielding to any manned aircraft equipped with ADS-B.
The proposed regulation also addresses the type of airworthiness certification BVLOS aircraft will have and what restrictions will apply to their size and weights. The current aircraft certification process takes years to complete and has been a major obstacle to the entry of larger and more sophisticated aircraft into the National Airspace System. In response to these issues, the FAA intends to create a new, streamlined certification process that will be based on consensus industry standards that will apply to aircraft with a maximum weight of 1,320 pounds.
There will also be a security component to Part 108 operations, including physical security for facilities and other controlled-access areas and cybersecurity to protect networks, the aircraft, and their communications systems.
Finally, while Part 108 operations will be permitted over people generally, they will be barred from flying over large open-air assemblies of people such as concerts, sporting events, or crowded parks. In order to meet the increasing risks associated with operations over persons, the FAA proposed five categories of operations over people based on the expected population density, each with increasing limitations and required risk mitigation technologies and strategies.
The next step in this process is for the NPRM to be officially printed in the Federal Register. After that, it will be open for public comments for 60 days. The Administrative Procedure Act requires the FAA to review and respond to all comments, and based on that analysis, the FAA may release the rule as final, revise the rule, or withdraw it and start over.
Based on the complexity of the rule, the expected number of comments, and the likely opposition from some entities in the manned aircraft community, it is unlikely that a final rule will be announced in the next 6 months. That having been said, both Congress and the White House have made the rule a priority for the FAA, so perhaps we will see a final rule by Spring 2026.
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