Yesterday, FAA released the long-awaited Notice of Proposed Rulemaking (NPRM), Normalizing Unmanned Aircraft Systems Beyond Visual Line of Sight (BVLOS) Operations. The proposed rule is the next step in the FAA’s integration of Unmanned Aircraft Systems (UAS) into the national airspace and is intended to establish a predictable pathway for safe, routine, and scalable UAS operations, including package delivery, agriculture, aerial surveying, recreation, flight testing, civic interests, and other applications.

The rule would establish a regulatory pathway for both recreational and commercial use of large UAS (up to 1,320 lbs.) that meets performance-based airworthiness standards to operate beyond the operator’s visual line of sight. To-date, the FAA has allowed only limited BVLOS or large UAS operations through individualized exemptions and waivers to existing regulations.

Among other proposed flight parameters, UAS operating BVLOS would be required to:

• Fly at or below 400 feet
• Avoid large open-air gatherings (but operations over people are permitted with different requirements based on the overflown population density)
• Obtain FAA approval for the areas where UAS are intend to fly, based on identified operating boundaries, number of daily operations, and specified takeoff, landing, and loading areas
• Obtain a permit or certificate, based on the nature of operations

The proposed rule, jointly issued with TSA, would also impose security measures to mitigate potential risks: (1) ensure certain individuals involved in BVLOS operations undergo a security threat assessment; (2) require package delivery operators to obtain a limited security program from TSA; and, (3) require operators to develop and implement physical security and cybersecurity policies and processes. Notably, certain BVLOS operations would be permitted to carry hazardous materials.

Comments on the proposed rule are due by October 6, 2025. While the proposed rule is a very significant step forward in routinely integrating complex UAS operations into the national airspace, it is important to recognize that the proposed rule, once adopted, would still be followed by a lengthy implementation period that allows stakeholders to develop methods to meet the rule’s performance-based requirements. For example, the rule proposes a new framework for determining airworthiness of UAS, which would require aircraft to satisfy performance-based design, production, and airworthiness requirements through consensus standards accepted or approved by the FAA, including “Detect and Avoid” capability for certain UAS operations. The proposed rule would also establish a framework for the FAA’s regulation of Automated Data Service Providers (ADSPs), which would aggregate and provide air traffic and other information in support of managing UAS operations within the national airspace. 

Impact to State and Local Governments, Transportation, and Critical Infrastructure

The proposed expansion of operations would bring a host of opportunities, as well as potential concerns, for cities, transportation hubs, and critical infrastructure. The FAA anticipates significant safety, societal, and economic benefits, and anticipates that UAS may supplement or replace activities currently accomplished by higher-risk crewed aircraft, surface transportation, or individuals. As the scope and frequency of UAS operations increase, however, communities may also have concerns regarding land use compatibility, noise and other environmental impacts, and other quality of life issues.

Additionally, as UAS use increases across the country, state and local governments, airports, surface transportation hubs, and critical infrastructure owners and operators continue to have unresolved concerns over maintaining the safety, security, and wellbeing of their communities and facilities, as well as their authority to manage UAS flights around certain locations and take action against improper UAS activity.

For example:

• Section 2209 Rulemaking Restricting UAS Flights Around Critical Infrastructure. We are still waiting on the FAA to publish the statutorily-mandated “Section 2209” rule, which would establish procedures for restricting UAS operations near critical infrastructure. Pursuant to the FAA Extension, Safety, and Security Act of 2016, FAA was required to establish procedures for applicants to petition the FAA to prohibit or restrict the operation of UAS in close proximity to certain fixed site faculties, to include: (1) critical infrastructure, such as energy production, transmission, and distribution facilities and equipment; (2) oil refineries and chemical facilities; (3) amusement parks; and (4) other locations that warrant such restrictions. Without this rule, UAS operations (including proposed BVLOS operations) are generally permitted around these locations. Under the Act, the procedures were supposed to have been published by January 2017, and the Trump Administration’s Executive Order, Restoring American Airspace Sovereignty (June 6, 2025) adds pressure on the agency to promptly publish a proposed Section 2209 rule.
• UAS Detection and Law Enforcement Response. The proposed rule adds to an existing complex legal framework surrounding UAS operations, including parameters for detection and addressing unauthorized and illicit UAS activity. Note that only certain Federal agencies have authority to conduct counter-UAS activities, which remains unchanged by the proposed rule. Law enforcement, airport sponsors, and transit facility owners and operators should consult federal guidance regarding the laws and regulations that apply to their use of UAS detection and mitigation equipment.

Existing tools available to Federal, state, and local entities will continue to be available for BVLOS operations. For example, UAS flown under the BVLOS rule will be subject to Remote ID requirements, meaning that they must broadcast their location and identification in real time (law enforcement agencies can work with the FAA to correlate Remote ID information with UAS registration information). However, state and local law enforcement authority to address an errant or malicious UAS remains limited. Also, while the FAA poses exclusive authority to regulate aviation safety, airspace management, and air traffic control (including UAS operations), state and local governments retain authority over land use planning, zoning, privacy, and law enforcement operations. For example, state and local governments retain authority to regulate the property that UAS may use for take-off or landing areas. 

Kaplan Kirsch attorneys have significant Federal experience and familiarity with UAS matters, including the draft BVLOS rule, and are available to support entities considering the impact of the proposed rule. In particular, John Putnam and Subash Iyer headed the Office of General Counsel at U.S. DOT, and Laura Kilgarriff was an Assistant Chief Counsel at TSA, where, among other matters, she advised on legal issues related to UAS and Counter-UAS. For additional information, please reach out to John Putnam, Subash Iyer, Laura Kilgarriff, Steve Osit, or any other Firm attorney with whom you normally work.