The FAA recently issued a Notice of Proposed Rulemaking (“NPRM”) marking the first of multiple anticipated rulemakings to align regulations with the FAA’s decision earlier this year to change course on the certification of electric vertical take-off and landing (“eVTOL”) aircraft.  Notably, the NPRM incorporates the concept of  “powered-lift” aircraft into the regulatory framework.  The key proposals under the NPRM include the incorporation of the powered-lift category of aircraft in operations definitions and related requirements, air carrier management personnel qualifications, recordkeeping requirements in operations specifications, and the FAA’s plan to publish a Special Federal Aviation Regulation (“SFAR”) with temporary operating and airman certification regulations.  While the NPRM is a necessary step to accommodate the FAA’s new approach to certification and future rules for operations and pilots, eVTOL manufacturers and operators will await the release of the SFAR to learn of more substantive requirements impacting certification and future operations.  Public comments on the NPRM are due by February 6, 2023, and stakeholders should consider commenting on the FAA’s core changes to the regulatory framework to accommodate eVTOLs, including key issues emphasized by the industry such as alignment of FAA regulations with those of other jurisdictions (e.g., the European Union Aviation Safety Agency, “EASA”).

Aircraft and Pilot Certification

The NPRM reflects the FAA’s recent change of direction to develop certification and operational regulations for eVTOLs as powered-lift category aircraft, rather than using existing certification standards and regulations applicable to normal category airplanes.  By way of background, in 1997, to support the development of the civil tilt-rotor aircraft, the FAA created a new “powered-lift” category of aircraft, but only as a new category for pilot certificate ratings in the FAA’s rules for pilot certification in 14 C.F.R. Part 61 and not in any associated operating regulations.  As recently as last year, the FAA intended to “remove reference to the term powered-lift and designate applicability of current airplane operating regulations for aircraft formerly referred to as powered-lift category aircraft.”  However, given considerations relating to pilot certification for eVTOLs, the FAA now intends to retain the powered-lift category and use the “special class” process for aircraft certification in 14 CFR Part 21.17(b) for eVTOLs, which requires the NPRM’s proposed changes, the SFAR, and future rulemaking around powered-lift aircraft.

Incorporating “Powered-Lift”

Outside of Part 61 pilot requirements, current FAA regulations do not contemplate new electric aircraft capable of vertical take-off and landing.  FAA regulations in 14 C.F.R. Part 110 currently define five categories of air carrier operations: domestic, flag, supplemental, commuter, and on-demand operations, but only apply to “airplanes” or “rotorcraft”, which do not include eVTOLs/powered-lift aircraft.  The proposed rule would incorporate powered-lift aircraft into the definition of the existing categories of operations, which would also have the effect of extending the applicability of the associated operating rules to powered-lift aircraft.  The proposed rule would amend the FAA’s regulations for obtaining and maintaining operating certificates in 14 C.F.R. Part 119 to broaden the applicability of Part 119 requirements to powered-lift operations (e.g., Part 121 certificates for domestic, flag or supplemental operations and Part 135 certificates for commuter or on-demand operations).

Air Carrier Personnel Qualifications; Operations Specifications

The proposed rule would amend qualification requirements for certain air carrier management personnel to ensure appropriate experience in powered-lift operations, as well as other revisions including requirements for operations specifications and recordkeeping.  For example, as regulations applicable to air carrier management personnel currently only reference experience with “airplanes,” the FAA would instead use the general term “aircraft.”

Temporary Operating and Airman Certification Regulations

Acknowledging the “multi-step process of updating the regulations” to integrate eVTOL operations, the NRPM also proposes a future SFAR, “Integration of Powered-Lift: Pilot Certification and Operations” (RIN 2120-AL72), which would enable powered-lift operations to begin while the FAA collects data required to establish permanent regulations and the rulemaking proceeds in tandem.  During this period, the FAA plans to use the interim information gathered to develop permanent regulations through a future rulemaking.  While the eVTOL certification process under Part 21.17(b) is already ongoing, including the publication of the first proposed Special Class Airworthiness Criteria for an eVTOL manufacturer last month, the SFAR will be critical for manufacturers and operators to understand the future operational and pilot certification requirements prior to the first type certification of an eVTOL anticipated by 2024.   Once published, stakeholders should closely review the SFAR and offer comments on the proposals for pilot certification and operations requirements, including industry expectations for alignment with existing ICAO guidance and the approach of other regulatory authorities such as EASA.

What’s Next

The FAA is likely to pursue an aggressive timeline to update regulations to incorporate powered-lift operations.  While the NPRM’s proposals are only an initial set of changes, it represents an important step in the FAA’s integration of eVTOLs in the National Airspace System.  Public comments on the NPRM are due on or before February 6, 2023.  The publication of the SFAR and subsequent rulemaking for permanent regulations, including stakeholder feedback in the public comment process, will be the next critical steps in the process of shaping future commercial operations.

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