FAA Blew Past Its Own Part 108 Deadline, and the Fight Over Who Yields in the Sky Is Why

The headline you keep reading is that drone pilots will fly beyond visual line of sight “within a year or so.” That framing is already out of date. The deadline for a final Part 108 rule was February 1, 2026, set by President Trump’s June 2025 executive order, and that date came and went months ago with no final rule. The reason is not bureaucratic drift. The single most contested provision in the proposal would flip a foundational rule of the air, deciding which aircraft yields when a drone and a crewed plane occupy the same low-altitude space.

I have covered every step of this rulemaking since the Federal Aviation Administration published the proposal in August 2025, and the gap between the optimistic explainer version of this story and the docket reality is wide. The FAA reopened its comment period twice, the second time specifically to take more input on the contested right-of-way provisions, with the window closing February 11, 2026. By the FAA’s own count, more than half of the roughly 3,100 substantive comments on the proposal addressed the right-of-way question alone. That is not a rule about to ship. That is a rule the agency is still fighting to settle.

Here is what the “drones could deliver your burrito soon” coverage leaves out, and why working pilots should care about the timeline slipping.

Part 108 Replaces the Waiver System That Defined the Last Decade

Part 108 is the FAA’s proposed framework to make routine BVLOS flight legal without a case-by-case waiver. Today, commercial operators fly under Part 107, which caps drones at 55 pounds and requires the pilot to keep the aircraft in sight. Anything past that needs a waiver the FAA grants one mission at a time.

The new rule scraps that model. It covers aircraft up to 1,320 pounds (600 kg), creates two approval tiers instead of per-flight waivers, sorts operations into five categories based on how many people live under the flight path, and shifts compliance responsibility from the individual pilot to the operating company. There is no individual BVLOS pilot certificate in the proposal. A company trains and documents its own people, and the FAA audits the program rather than testing each operator.

This is the change that unlocks the applications everyone talks about: package delivery, power-line and rail inspection over long corridors, agricultural spraying across full fields, and wide-area search and rescue. All of it happens at or below 400 feet, launching from access-controlled sites the FAA approves in advance. The economic upside is real. I have covered the first new FAA test sites in nearly a decade, and the Choctaw Nation of Oklahoma already runs the largest BVLOS waiver in America at 377 square miles. The proof of concept exists. The rule to scale it does not yet.

The Right-of-Way Reversal Is the Real Reason for the Delay

Buried in proposed sections 108.195(a)(2) and 91.113 is a change that rewrites a basic assumption of American aviation. For the entire history of the National Airspace System, crewed aircraft have held absolute right of way. In its own reopening notice, the FAA writes that the proposed changes would give Part 108 drone operators “presumptive right-of-way over manned aircraft” in specific cases. That is the agency’s own phrasing, not a critic’s gloss.

Read that again, because it is the crux of the fight. Under the proposal, a crewed aircraft that is not broadcasting its position electronically would have to yield to an uncrewed aircraft flying BVLOS. The exceptions matter: the drone does not get priority when the manned aircraft is broadcasting via ADS-B Out or an approved electronic conspicuity device, when the aircraft is in Class B or Class C airspace, when it is taking off or landing at an airport or heliport, or when it is over the most densely populated areas. Outside those carve-outs, the burden flips to the pilot in the cockpit.

That is why the FAA reopened comments specifically on electronic conspicuity in January 2026. General aviation groups, experimental aircraft owners, and airline pilot associations pushed back hard. The FAA’s own reopening notice states that more than half of the roughly 3,100 comments on the proposal touched the right-of-way issue. Many older and recreational aircraft do not carry ADS-B Out, and the proposal effectively tells those pilots to equip up or surrender priority to a delivery drone. The agency held listening sessions with manufacturers in early January, heard sharply divided opinions, and gave itself another two weeks of comments. An agency confident in its rule does not reopen the docket twice.

The Rule Could Ground the Drones Most Pilots Actually Fly

The second fault line is who gets left out. As written, the proposal leans heavily toward highly automated operations with simplified interfaces, the model favored by well-capitalized delivery companies. DJI warned that the rule, as drafted, would exclude non-U.S.-manufactured drones and sideline pilots who fly under direct manual control.

The bigger structural problem is the elimination of Part 107 BVLOS waivers entirely. Thousands of operators built businesses on those waivers. Pilot Institute warned in its comment that removing the waiver pathway without a non-autonomous alternative would ground operators who have flown BVLOS safely for years, forcing a march toward full autonomy that smaller businesses cannot afford. A coalition of commercial and recreational operators proposed a low-risk, non-autonomous BVLOS pathway modeled on how the FAA codified night flight and flight over people. The agency has not signaled whether it will adopt it.

Journalism gets hit too. A News Media Coalition challenge warned the rules would lump newsgathering into the “aerial surveying” bucket and restrict it to lower-density areas, effectively banning BVLOS journalism in the cities where news happens. That is a press-freedom problem dressed as a population-density rule.

The U.S. Is Catching Up, Not Leading

China, the European Union, and Japan already have expanded rules for autonomous and BVLOS operations on the books. The “within a year” framing makes the United States sound like it is racing ahead. It is closing a gap. The executive order that forced this rulemaking explicitly tied BVLOS to national competitiveness and counter-drone security ahead of events like the 2026 FIFA World Cup. The urgency is policy-driven, and the deadline pressure it created has now collided with the technical reality that you cannot rewrite right-of-way rules for the entire airspace in 240 days.

As of early 2026, the drone industry association AUVSI counted more than one million UAS registrations across roughly 40,000 organizations. That is the installed base waiting on this rule. Most of those operators fly in uncontrolled airspace, below 400 feet, with no air traffic control services. Part 108 is the bridge between that reality and a sky where drones and crewed aircraft share the same low-altitude lanes safely.

DroneXL’s Take

The “drones within a year” story has been running on a loop since the NPRM dropped, and it keeps making the same mistake: treating a contested rulemaking as a countdown clock. It is not. When the FAA named the Choctaw Nation and Indiana as new test sites in January, I wrote that the data those sites generate would not arrive in time to inform the February 1 deadline. That deadline is now four-plus months in the rearview mirror, and there is still no final rule. The test-site call held up. The deadline call held up.

The right-of-way provision is the tell. You do not reopen a federal comment period twice on the same narrow issue if the rule is finished. The FAA’s own senior air traffic official told the room at XPONENTIAL Detroit in May that the agency now treats drone operators as pilots and uncrewed aircraft as aircraft. That cultural shift is real, but it runs straight into a general aviation community that does not want to be the side that yields. Both things are true at once, and that tension is what the reopened docket is fighting over.

Watch the spring and summer 2026 rulemaking docket for whether the FAA keeps the presumptive-right-of-way language or walks it back toward universal electronic conspicuity, the approach Pilot Institute and several aviation groups asked for. If the agency narrows that provision, the timeline likely stretches further as it reworks the deconfliction model. The larger question the executive order created and did not answer is whether you can legislate a 240-day path to routine BVLOS when the underlying problem, mixing fast-moving uncrewed traffic with crewed aircraft that may not be broadcasting their position, is a physics and equipage problem, not a paperwork one. The deadline assumed paperwork. The docket says otherwise.

Sources: Fast Company / The Conversation, Federal Register (Notice 25-07B, reopening of comment period), White House Executive Order 14307, FAA Part 108 NPRM.

DroneXL uses automated tools to support research and source retrieval. All reporting and editorial perspectives are by Haye Kesteloo.