As a rapidly developing new technology at the convergence of innovation, sustainability, and evolving transportation needs, electric vertical take-off and landing (eVTOL) aircraft are poised to revolutionize the aviation industry. This new type of lightweight aircraft utilizes electric power to take off, hover, and land vertically, and has emerged as a critical component in addressing modern transportation needs in and around cities. eVTOLs offer a sustainable transportation solution for moving passengers and cargo in urban areas, up to 200 miles, alleviating ground transportation congestion and reducing carbon emissions. Commercially-operating eVTOLs are anticipated as soon as 2022 or 2023. This alert summarizes the applicable legal and regulatory requirements for eVTOLs, with a particular focus on certification, as well as a preview of the broader issues that will need to be addressed to bring eVTOLs from concept to reality.
In more detail
While eVTOL technology has existed in concept for over a decade, technological development and investment in the sector has increased significantly in the last few years. Advances in electric battery technology and growing demand for sustainability in transportation have driven interest in eVTOLs across sectors, from aviation and automotive companies to technology start-ups and early stage investors. The increased opportunities in eVTOLs are part of the transportation sector’s focus on advanced air mobility (AAM), which aims to modernize and streamline the transportation of people and cargo in regional and urban networks. Within AAM, eVTOLs are expected to play an important role in urban air mobility (UAM), the emerging framework for air transportation at lower altitudes within and between cities. The eVTOL market is rapidly developing, with many companies undertaking joint venture transactions, including for new eVTOL designs and infrastructure such as vertiports, in a race toward commercial use applications.
Given the surging interest in eVTOLs around the globe, jurisdictions are faced with adopting and implementing regulatory frameworks to govern their use within their borders. Below we summarize the regulatory landscape relevant to taking eVTOLs into commercial use, including the regulatory frameworks of the US Department of Transportation (DOT), US Federal Aviation Administration (FAA), and the European Union Aviation Safety Agency (EASA), with a focus on the evolving type certification process for eVTOL designs.
Regulatory Landscape for eVTOLs
For eVTOLs to be deployed commercially at scale, three core aviation regulatory approvals will be required in most jurisdictions: type certification, production certification, and operational authorities. Type certifications are the regulatory approval of the airworthiness of a particular manufacturing design (type design), and are the first step for commercialization of any eVTOL. Many companies are currently in this phase of their business plans, as they design their eVTOL aircraft and pursue a type certificate. Production certification will allow mass production of a particular eVTOL and is granted when a manufacturer can demonstrate that it can produce aircraft that will meet the standards of a type certificate. Finally, to operate eVTOLs commercially by transporting passengers or cargo, additional operational requirements and authorizations for commercial operations are required.
These government approvals align with requirements for traditional commercial aircraft used in passenger and cargo operations. However, civil aviation authorities worldwide are in the process of adapting regulatory frameworks to account for fundamental differences in eVTOL technology and operations as compared to traditional aircraft. Future eVTOL applications will include autonomous operations, without pilots, which present many of the same regulatory challenges that unmanned aircraft systems (UAS or “drones”) have been grappling with in recent years.
The FAA is working to adapt existing aviation regulations to accommodate this new technology.
The first step in obtaining a type certificate for an eVTOL involves airworthiness approval of the aircraft and its components according to its type design.1 To address eVTOL type certification, the FAA applies one of two existing certification processes in 14 C.F.R. Part 21.17(a) and (b). Part 21.17 (a) involves the designation of applicable airworthiness standards when the aircraft closely matches the characteristics of a particular airplane or rotorcraft class, along with special conditions to address any differences. Part 21.17(b) is used for special classes of aircraft, and the FAA will apply airworthiness requirements derived from other regulations as appropriate, in addition to other airworthiness criteria that the FAA may find to provide an equivalent level of safety to existing airworthiness requirements.
The FAA is currently working on draft policy and guidance for eVTOL type certification and has indicated that it is deciding whether the process under Part 21.17(a), using the airworthiness standards for Normal Category Airplanes under 14 C.F.R. Part 23, or the process under Part 21.17(b) will apply to eVTOLs.2 Going forward, Part 21.17(a) may offer eVTOL companies more certainty with the FAA using existing airworthiness standards if the eVTOL design closely matches the characteristics a particular airplane or rotorcraft class (e.g., Normal Category Airplanes). The FAA has also updated the airworthiness standards in Part 23 to provide for a performance-based approach, which will offer some flexibility in the special conditions applied to eVTOLs under the Part 21.17(a) process.3 Part 21.17(a) may also expedite certification transferability across jurisdictions as compared to the special class process under Part 21.17(b).
Given the unique designs of eVTOL concepts, however, type certification under Part 21.17(b) may offer eVTOL companies a greater degree of flexibility. Many current eVTOL concepts differ in significant ways from available certification requirements, and future concepts are expected to require further changes to the type certification process (e.g., automation). Some examples include unique aircraft configurations, electric distributed propulsion, energy storage and distribution systems, high voltage architecture, fly-by-wire flight control systems, advanced or automated systems, crashworthiness requirements, and noise standards. In connection with the process under Part 21.17(b), these additional certification considerations are dealt with on a case-by-case basis or through Issue Papers4 to provide the FAA with detailed system descriptions and an understanding of what specific systems do and what other systems they are connected with, allowing the FAA to develop the requisite standards.
Once a type certificate is issued, eVTOL manufacturers will need to obtain a production certificate, which requires that a manufacturer demonstrate its ability to produce the aircraft to the same standards. Companies wishing to operate eVTOLs commercially must also obtain an Air Carrier Certificate from the FAA under 14 C.F.R. Part 135,5 which carries additional safety, maintenance, performance, and operational requirements. eVTOL operators must also obtain economic authority from the DOT to operate commercially and will be subject to associated US ownership and control requirements. Given varying requirements based on aircraft type, the FAA’s decisions around eVTOL type certification will be critical in determining the applicability of specific rules to future regulatory issues such as operations, pilots, and infrastructure, or whether new rules will be required.
In contrast to the approach adopted by the FAA in relying on existing regulations, EASA is developing draft regulations and a new eVTOL certification framework through a series of key building blocks. The result will be a new set of rules, with incorporation of existing regulations where possible.
The first building block to EASA’s approach to certification was its July 2019 proposed special condition for Small-Category VTOL Aircraft (SVTOL).6 In May 2020, EASA published its first set of means of compliance for the SVTOL.7 In May 2021, EASA published phase two of the SVTOL,8 and phase three is expected by the end of this year or early next year.
EASA’s SVTOL means of compliance are intended to provide clarity to eVTOL manufacturers and investors on the airworthiness standards for issuing eVTOL type certificates and how EASA will address the unique characteristics these aircraft. Like the FAA, safety remains the top concern for EASA. With its draft regulations, EASA aims to develop a “one size fits all” approach to ensure that all eVTOL designs accomplish a comparable safety level. While EASA is still developing the SVTOL, eVTOL companies are already proceeding in obtaining their certification basis under SVTOL. Similar to FAA Issue Papers, this process is being conducted through Certification Review Items, which are a formal administrative means for EASA to record certification subjects and interpretations throughout a certification project.9
Similar to the FAA, EASA also requires companies manufacturing type certificated products to obtain a Production Organization Approval.10 eVTOL operators must obtain an Air Operator Certificate, which outlines EASA’s technical requirements and administrative procedures for airline certification. However, current EASA AOC requirements are tailored to existing types of aircraft and eVTOLs. Additionally, operational authorizations are currently handled by each EU Member State. EASA is therefore conducting a rulemaking process11 to address the integration of eVTOLs into European airspace. The first regulatory proposal, a Notice of Proposed Amendment, is expected to be published by EASA in the first quarter of 2022 and will follow the standard EU rulemaking process.
Similar to the FAA’s decisions on eVTOL type certification, EASA’s decisions around the SVTOL will be an important factor in determining the rules that will ultimately apply to other regulatory issues critical to the commercial deployment of eVTOLs, such as operations, pilots, and infrastructure.
While rapid advancements in technology and the growing global demand for sustainable transportation have led to substantial growth in eVTOLs, regulatory and other hurdles must be overcome before these aircraft will be deployed in commercial operations at scale. DOT, FAA, EASA, and civil aviation authorities in other jurisdictions will need to continue to develop and streamline the foundational aviation regulatory processes necessary for eVTOL commercialization discussed above: design, production, and operational certification. Regulators and companies alike will face new challenges during this process, particularly with autonomous eVTOLs on the near horizon, and decisions on aircraft design certification will have a significant impact on the regulatory issues involved in operations. Going forward, in addition to the aviation-specific regulatory frameworks for eVTOLs, infrastructure, technological advancements, standards development, investment, and the development of broader regulatory frameworks will each be critical to the commercialization of eVTOLs and progress in advanced air mobility.
- See FAA Order 8110.4C.
- See FAA Small Airplanes Issue List (SAIL), Q1 FY 2022 Release, at 3280.
- See 83 FR 21850.
- See FAA Order 8110.112A.
- 14 CFR Part 135 Air Carrier and Operator Certification
- Special condition – Vertical Take-Off and Landing (VTOL) Aircraft
- Proposed Means of Compliance with the Special Condition VTOL
- Means of Compliance with the Special Condition VTOL
- CRI and CAI writing and management
- Production Organisations Approvals
- See RMT.0230 at 15.