FAA Misses Its Own Part 108 Deadline as a Fight Over Drone Right-of-Way Stalls the BVLOS Rule
A February 1, 2026 deadline set by a White House executive order has passed with no final Part 108 rule, as a proposal granting drones presumptive right-of-way over manned aircraft draws heavy pushback.
Overview
The federal rule that the commercial drone industry has spent years waiting for has slipped past its own deadline. A final version of Part 108, the Federal Aviation Administration’s framework for routine flights beyond a pilot’s visual line of sight, was due on February 1, 2026 under a White House executive order, but that date has come and gone with no final rule issued, according to DroneXL. The hold-up centers on one of the proposal’s most contested provisions: a plan to give drones priority over crewed aircraft in low-altitude airspace.
What We Know
Part 108 is meant to replace today’s slow, case-by-case approval system for beyond-visual-line-of-sight (BVLOS) flights with a standing regulatory pathway. According to a client alert from the law firm Crowell & Moring, the proposed rule “moves away from a reliance on waivers and exemptions and creates a regulatory pathway for routine low-altitude BVLOS drone operations.” The same alert describes a two-tier structure in which the FAA would issue permits for lower-risk operations such as package delivery, agriculture, training and recreation, while higher-risk activities would require certificates carrying “more thorough FAA review and oversight.” Operators would seek approval for an area of intended flight rather than filing a waiver for each mission.
The timeline driving the rule comes from the executive order “Unleashing American Drone Dominance,” signed June 6, 2025, according to The White House. The order directed the Secretary of Transportation, acting through the FAA, to “issue a proposed rule enabling routine Beyond Visual Line of Sight (BVLOS) operations” within 30 days, and specified that “a final rule shall be published within 240 days of the date of this order.” That 240-day window set the February 1, 2026 final-rule target that the agency has now missed, as reported by DroneXL.
The FAA did publish its proposed rule on schedule. The notice of proposed rulemaking appeared in the Federal Register on August 7, 2025, with the original comment window closing on October 6, according to AVweb. But the proposal drew enough objections that the agency reopened the record. The FAA published a reopening notice on January 28, 2026, setting a 14-day window focused on collision avoidance and electronic conspicuity, with comments due by February 11, 2026 under docket FAA-2025-1908, according to Inside Unmanned Systems.
The Right-of-Way Dispute
The single most divisive element is how drones and crewed aircraft should share the sky below 400 feet. The proposal would, in the words of DroneXL, give Part 108 drone operators “presumptive right-of-way over manned aircraft” in specific cases. The mechanism, per Inside Unmanned Systems, would come through “new right-of-way provisions in §108.195(a)(2), with aligned amendments to §91.113,” the legacy rules that govern which aircraft must yield.
That priority would not be absolute. According to Inside Unmanned Systems, the drone’s right-of-way would not apply when a crewed aircraft is broadcasting its position via ADS-B Out or an approved alternate electronic conspicuity device, when operating in Class B or C airspace, or over Category 5 population areas. In other words, a manned aircraft that makes itself electronically visible keeps its priority; one that does not could be expected to yield.
That trade-off is what split the comment record. According to AVweb, “more than half of comments submitted during the original comment period addressed the right-of-way provisions,” and FAA-hosted listening sessions “highlighted differing views on how unmanned and manned aircraft should share airspace below 400 feet AGL.” General aviation groups, experimental aircraft owners and airline pilot associations pushed back hard, according to DroneXL. At the same time, the same report notes that the drone-advocacy group Pilot Institute warned that removing the existing waiver pathway without a non-autonomous alternative would ground operators who have flown BVLOS safely for years.
What We Don’t Know
The FAA has not committed to a new publication date for the final rule. DroneXL notes that if the agency narrows the right-of-way provision in response to the objections, “the timeline likely stretches further as it reworks the deconfliction model.” It is also unclear how the reopened comments filed by the February 11 deadline will reshape the equipage expectations the FAA places on low-flying manned aircraft, or whether the agency will preserve a manual waiver route for operators that do not fit the new permit-and-certificate structure.
Analysis
The delay is less a bureaucratic stumble than a sign of how hard the underlying problem is. Part 108 promises to convert drone delivery, agricultural spraying and infrastructure inspection from a permission-slip business into a licensed one, the kind of shift that lets fleets scale. But it can only do that by writing rules for a layer of airspace that crop dusters, helicopters and recreational pilots already use, often without broadcasting their position electronically. The presumptive right-of-way provision is the FAA’s attempt to make automated detect-and-avoid systems workable, since a drone cannot reliably yield to an aircraft it cannot see. The pushback reflects the reverse concern: that the burden of being seen is being shifted onto human pilots. Resolving that tension, rather than meeting any single deadline, is what will determine when the rule finally lands.