Shari B. Domow Bacsardi ,
Partner,
Womble Bond Dickinson’s Capital Markets Practice Group

The Federal Aviation Administration surprised and challenged the aviation industry in May 2022 by classifying eVTOLs as a “special class” of powered-lift aircraft, like helicopters, under 14 C.F.R. Section 21.17(b). See part one of this series for more on this classification by the FAA and the industry’s response to it.¹ The aviation industry had expected eVTOLs to be certified by the FAA as small planes under 14 C.F.R. Part 23 (Part 23). As a result of this unanticipated pivot by the FAA, the timing of potential certification of eVTOLs (original forecasts for potential certification by the FAA were as early as 2024) was in doubt, as new rules would need to be created and promulgated by the FAA to properly usher eVTOLs through the certification process. The exact timing of these new rules was then, and still partly is, unknown.

As an emerging technology, many different eVTOL models are under development within the aviation industry. With each model featuring unique designs and mechanics, the FAA is, by necessity, working to develop specific regulatory rules that apply to this emerging technology. Such rules are known as Special Federal Aviation Regulations (SFARs). The FAA recently advised Joby Aviation (Joby), a leader in the eVTOL industry, that it does not expect all necessary SFARs to be finalized until late 2024. This delayed timeline has already had measurable consequences. In November 2022, Joby announced

that it would delay the commercial launch of eVTOL services until 2025, in part due to these newly introduced regulatory hurdles.

However, despite the initial concerns expressed by the aviation industry after the FAA’s announcement in May 2022, the eVTOL industry has stabilized in recent months. Recent activity by the FAA has demonstrated that it is working to fulfill its initial promise that the reclassification of eVTOLs will pose minimal disruption to the certification process.

Recent FAA Activity
Notice of Airworthiness Criteria

In November 2022, the FAA released airworthiness criteria for Joby’s “Model JAS4-1” eVTOL, making Joby the first company to receive the long-awaited publication of requirements for eVTOLs under the FAA’s new certification framework. Archer Aviation, another industry leader, became another major company to receive such airworthiness criteria in December 2022 for its own “Model M001” eVTOL.

The two airworthiness criteria issued by the FAA to Joby and Archer, respectively,

demonstrate the vast difference between the eVTOL models under development within the aviation industry. Joby’s Model JAS4-1 uses six tilting electric engines with five-blade propellers attached to a conventional wing and V-tail, meaning it has characteristics of both a helicopter and an airplane. Archer’s Model M001, while sharing similarities with Joby’s model (such as a passenger count of four for a total count of five, including one pilot), uses 12 electric engines for propulsion, six of which have five-blade propellers and are evenly placed on each wing, which can tilt to provide vertical and forward thrust. The other six wings have two-blade propellers on the edge of each wing and are fixed to provide only vertical thrust.

Both models are generally intended to be operated by one pilot on board under Title 14 C.F.R. (Title 14) Part 135 and Part 91 visual flight rules, with both commercial and private applications. There is one additional and important commonality between the two models: Because the FAA has not yet established powered-lift airworthiness standards on a uniform level under Title 14, the FAA’s current eVTOL airworthiness requirements are instead drawn from various existing portions of Title 14, which relate to airworthiness certification requirements for other types of aircraft (including Parts 23, 25, 27, 29, 31, 33 and 25). The FAA has also included more novel airworthiness criteria, which it has deemed necessary to provide a level of safety with respect to eVTOLs equivalent to the standards applied to other types of aircraft. Such airworthiness criteria touch all aspects of each model, including its flight, powerplant (concerning propulsion), structure, engines, propellers and others.

As of December 2022, for Joby, and January 2023, for Archer, the comment windows for both notices have closed. The FAA is now analyzing the variety of comments it received (more than 300 individuals and companies submitted comments to these notices during the comment period). Interestingly, neither Joby nor Archer submitted a comment for their respective notice of airworthiness criteria, perhaps as a strategic move not to slow the FAA down and a clear reliance on the submissions already received by the FAA. However, Archer submitted a short comment requesting that the FAA extend Joby’s comment period to coincide with Archer’s to allow for a more uniform and simultaneous certification process between the two companies. While there is merit to this notion, it is also likely that Archer wishes to catch up to Joby in the eVTOL race (limiting Joby’s ability to sprint ahead post-certification). The industry currently awaits next steps from the FAA, which could take months.

Notice of Proposed Rulemaking

On Dec. 7, 2022, the FAA published an NPRM titled “Update to Air Carrier Definitions” which will, upon finalization, update certain regulatory definitions of air carrier and commercial operations (which currently only refer to airplanes and rotorcraft) by adding “powered-lift” operations. Specifically, the NPRM seeks to update definitions and regulations spanning across 14 C.F.R. Parts 91, 110, 119, 121, 125 and 136 (Parts relating to large-aircraft charter operations, commuter operations, air tours and private aviation, among others) to ensure that powered-lift aircraft — and thus, eVTOLs — are incorporated therein. More broadly, the NPRM seeks to incorporate eVTOL’s “powered-lift” designation into the overarching framework of existing regulations that govern air carrier and commercial air operations, such as airlines and charters. Put simply, this NPRM marks the first of many important steps in integrating and establishing eVTOLs as a viable form of aircraft within the FAA’s regulatory landscape.

The NPRM also introduced a SFAR titled “Integration of Powered-Lift: Pilot Certification and Operations.” This SFAR establishes temporary permission for the eVTOL industry to begin operating powered-lift vehicles while the FAA gathers further data to develop permanent regulations in a future NPRM. Part of this data gathering will come directly from the operations during this interim period.

The comment period for this NPRM closed on Feb. 6. During the comment period, Joby responded with a largely positive and laudatory letter, encouraging the FAA to continue its good work. Joby’s letter had patriotic policy overtones, explaining that the FAA’s continued activity will be essential to the future of U.S. leadership in aviation.

An International Partnership

In January, the FAA announced a partnership with the Korean Office of Civil Aviation on future Advanced Air Mobility (AAM). The purpose of this partnership is to share information, methods, data and results as all nations embark on this new frontier of air travel. The FAA previously announced similar partnerships with other countries, such as Japan, the UK, Canada, Australia and New Zealand. The overarching purpose of these partnerships is to harmonize various certification criteria and AAM-related plans (not only for eVTOLs but also for drones and related infrastructure).

While this international collaboration should prove fruitful in the long run, there are, not unexpectedly, different international approaches to eVTOL certification that may present certain challenges. For instance, the FAA and the European Union Aviation Safety Agency (EASA) have initially taken different approaches toward eVTOL certification. As described herein, the FAA’s current approach is to pull together airworthiness requirements from existing regulations while incorporating specific rules for each eVTOL on a case-by-case basis. In contrast, the EASA is currently focusing on developing a new eVTOL certification framework, only incorporating existing regulations as needed.

The two approaches may eventually come to resemble each other, and these differing regulatory paths may prove to be two different methods of arriving at a common destination. However, even within the comments to the airworthiness criteria described above, fractures have become evident. One current issue is with regard to the theoretical likelihood of a catastrophic failure condition (an event of total failure of the aircraft where recovery is impossible). The EASA wants eVTOL developers to substantiate the likelihood of a catastrophic failure to 10-9 (one in a billion flight hours), the same standard to which commercial jetliners are held. The FAA, however, only has certain eVTOL developers substantiate this likelihood to 10-8 or 10-7 (one in 100 million or one in 10 million flight hours), consistent with small airplanes and helicopters, leading the EASA and European eVTOL developers to submit to the FAA a large number of comments in connection with the FAA’s proposed airworthiness criteria for Joby’s Model JAS4-1. This difference, among many more, will continue to hamper international efforts at certification cohesion, though discussions between these regulatory bodies are ongoing.

Looking Ahead

With the NPRM and airworthiness criteria comment windows now closed, the eVTOL industry awaits the FAA’s next steps, which could either be modified proposals (incorporating new data and addressing comments) or final rules. More SFARs and NPRMs await, with one known SFAR concerning operating and pilot certification rules for powered-lift eVTOLs expected this summer. Although in a regulatory hold, by no means is the eVTOL industry currently idle. Archer announced in November 2022 that its “Maker” eVTOL completed its first full transition flight, and Joby recently expanded its partnership with the U.S. Department of Defense, a strategic relationship designed to implement Joby’s eVTOLs in various military capacities, including personnel relocation, humanitarian assistance and medical evacuation.

While international approaches to eVTOL certification will likely continue to vary, we expect that international stakeholders will continue to work together to collaborate on the development of eVTOL technology, including, without limitation, regulatory certification, safety and technological advancement. Exciting change remains on the horizon, with an eager industry and, based on its recent activity, an eager FAA ready to bring eVTOLs past certification and, soon, into the skies.

¹Domow Bacsardi, Shari et. al., “eVTOLs: Unicorn Emerging Technology in the Aircraft Industry Faces an Uncertain Regulatory Future,” Monitor, Nov/Dec 2022.

ABOUT THE AUTHORS:

Shari B. Domow Bacsardi is a partner in Womble Bond Dickinson’s capital markets practice group. Domow Bacsardi represents lenders and lessors in all aspects of equipment finance transactions with an emphasis on transportation assets, including aircraft (corporate and commercial), rail equipment, locomotives and railcars, vessels (barges and tankers), and specialty assets.

Dillon A. Redding is an associate in Womble Bond Dickinson’s capital markets practice group. Redding also represents lenders and lessors in equipment finance transactions with an emphasis on transportation assets, such as aircraft, rail equipment, vessels and other assets.

Alexander R. Lowitt is an associate at Womble Bond Dickinson. He focuses his practice on commercial finance transactions, including equipment finance transactions.