eVTOL Aircraft—Air Taxis and the Changing FAA Regulatory Environment

Electric vertical takeoff and landing vehicles (often referred to as “eVTOL” or “air taxis”), could transform society. As the name implies, these vehicles use electric power to takeoff and land from designated areas much like a helicopter, and are, essentially, drones that can carry passengers. However, an important benefit of these types of aircraft versus helicopters is that eVTOLs are electric and significantly quieter than helicopters. For instance, Archer Aviation (a leading manufacturer) states that their eVTOL craft is “almost 1,000 times quieter than that of a helicopter.”¹ While the concept may sound futuristic, companies have begun the process of testing and certifying their vehicles in numerous countries, including even planning for their use during the upcoming 2024 Olympics in Paris.² In the United States, companies have begun the process of certifying their eVTOL aircraft, with operations expected to commence in 2024 or 2025.³ As countries continue to wrestle with regulations surrounding eVTOLs, Congress is likely to address this topic next year in the reauthorization of the Federal Aviation Administration (FAA) when it expires on September 30, 2023.

In the eVTOL space, FAA has begun to adopt regulatory changes to encourage the safe development of aircraft. While eVTOL certification used to fall under Part 23 of FAA’s statutory code, which typically applies to smaller aircraft that operate as airplanes “with a passenger-seating configuration of 19 or less and a maximum certificated takeoff weight of 19,000 pounds or less,”⁴ FAA recently started certifying eVTOLs under FAA Code 21.17(b),⁵ which is typically used to certify “Very Light Airplanes” and has been recently applied to drone certifications.⁶ In response to an inquiry from Aviation Today, FAA released a statement on the change, stating that “the change is part of the agency’s efforts to safely and efficiently integrate new types of aircraft into the nation’s aerospace system, while providing a simpler pathway for applicants to obtain the necessary FAA approvals.”

At first, this change led to some resistance among industry leaders. The Vertical Flight Society stated, for instance, that

21.17 (b) results in a special product that doesn't fit into operational constructs around the world. It's not internationally recognized, so using it as an airworthiness framework could significantly dampen operations of US certificated aircraft in other countries. The FAA needs to work with the eVTOL community more closely if the agency wants to continue to lead in aviation in the coming decade.⁷

More recently, however, the industry appears to have concluded this change will not affect their general operational plans in bringing their aircraft into commercial service.⁸ Partly as a result, FAA is likely to publish a Special Federal Aviation Regulation (SFAR) clarifying its rules in this space.⁹ Recently, FAA Acting Administrator Billy Nolen addressed these concerns by stating that FAA’s mission regarding eVTOLS is “to constantly advance our outstanding level of safety, without stifling the innovators. We aim to be a gateway, not a hurdle.”¹⁰

Congress has taken a more active role in these issues recently. In 2022, the Senate and the House both passed the Advanced Air Mobility Coordination and Leadership Act, which would create a working group within the Department of Transportation (DOT), to “help advance the maturation of [Advanced Air Mobility] AAM aircraft operations and create recommendations regarding safety, security and federal investments necessary for the development of AAM.”¹¹

Congress also has the opportunity to address these concerns in the next FAA reauthorization, building on its efforts in the FAA Reauthorization Act of 2018, which included numerous advanced policy initiatives related to drones. The next reauthorization of FAA, likely to be completed in 2023, provides a venue for Congress to enact significant policy initiatives related to eVTOLs and the necessary infrastructure needed for their use to expand.

Recent reporting indicates the current Chair and Ranking Member of the House Transportation and Infrastructure Committee, Aviation Subcommittee, Reps. Rick Larsen (D-WA) and Garret Graves (R-LA), will create a “title that is focused on new entrants.”¹² On September 28, 2022, the Senate Commerce Committee’s Subcommittee on Aviation Safety, Operations and Innovation held a hearing titled “FAA Reauthorization: Integrating New Entrants into the National Airspace System” and included numerous mentions related to eVTOLs and other related technologies. At the hearing, several witnesses emphasized the need for the government to have a coordinated strategy on eVTOLs. In particular, Ed Bolen, President and CEO of the National Business Aviation Association (NBAA), testified that “a coordinated, transparent and predictable national strategy is essential to support the emergence of AAM and ensure all Americans can benefit from the economic, environmental, national security, and connectivity benefits it can provide.”¹³

Congress has a unique opportunity to shape this exciting new field as it drafts a new statutory framework to govern the deployment of eVTOLs. Policymakers and industry leaders will need to work together to advance progress in this field. The regulatory landscape for eVTOLs is nascent; stakeholders have a unique opportunity to help shape that space. 

© Arnold & Porter Kaye Scholer LLP 2022 All Rights Reserved. This Advisory is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.