Summer roundup: Aviation and innovation in Washington

Like many cities, Washington, D.C. can be a quiet place during the month of August.  Congress is in recess, with the Senate set to return on September 5 and the House on September 11.  Federal agencies, including the FAA, continue operations per usual, with a busy season of summer air travel. 

Leadership

This summer saw a number of changes for the FAA.  In June, there were leadership changes in the agency’s top office, with Acting Administrator Billy Nolen stepping down.  Subsequently, the Biden administration named Deputy Secretary of Transportation Polly Trottenberg to lead the agency on an interim bases. The Administration continues to consider contenders for permanent appointment to the FAA’s top position.   

Reauthorization

The FAA’s reauthorization was another hot issue this summer, with discussions now continuing into the fall.  The FAA’s current authorization is set to expire at the end of September 2023, with no final plans for reauthorization.  Prior to its August recess, the House passed its version of the FAA reauthorization bill on a bipartisan basis.  The Senate has not passed its own version of the bill.  Several contested issues appear to be holding up the bill, including pilot retirement age and training time, long distance flights at D.C.’s Ronald Reagan National Airport, and conditions for airport services workers. 

Advanced Air Mobility

One issue that does not appear to be contested in Congress is the importance of aviation innovation and leadership. Indeed, both Congressional versions of the reauthorization bill contain provisions that enhance FAA’s support of aviation innovation. 

For its part, the FAA released in July an implementation plan (“Innovate28” or “I28”) for advanced air mobility (AAM) operations in the near term.  The document envisions AAM operations to be at scale at one or more sites by 2028. 

Although we have previously discussed certification and rulemaking efforts, we take this opportunity to summarize key highlights in I28 as we look towards the next five years in AAM stateside.  We also highlight opportunities for stakeholder input.

FAA’s Innovate 28

 “Version 1.0” of the I28 provides high-level, interim guidance for the multitude of complex issues presented by the development and implementation of AAM, including the following current and future efforts relating to aircraft certification, operations, and infrastructure.

Certification of AAM aircraft:

AAM are expected to be type certificated as a special class under 14 CFR § 21.17(b).  Under the special class process, the FAA will designate or create applicable airworthiness requirements as the certification basis for each aircraft design.  The FAA is using many of the performance-based regulations in 14 CFR Part 23 (Normal Category Airplanes) for the certification basis. 

The FAA Aircraft Certification Service (AIR) is currently engaged with over two dozen manufacturers testing the development of novel aircraft and propulsion technologies that underlie the design and operation of AAM aircraft.  The FAA reports that nearly half of the companies have reached a level of maturity and development to have manufactured flying testbed prototypes.

There are several novel technologies that are anticipated to be key to the future of AAM design and operations, including (1) electric propulsion, (2) large lithium-ion battery arrays, (3) hydrogen fuel system systems for electrical energy supply, (4) distributed propulsion systems with highly integrated flight and propulsion controls, (5) increased automation, and (6) VTOL capabilities for winged aircraft.

Initial Operations:

Initial AAM operations in the 2025-2028 timeframe are expected to primarily use existing airports and heliports (with modification where required to meet FAA’s interim guidance for vertiport design).

No unique airspace structures (e.g., dedicated AAM airspace corridors) or procedures are expected to be implemented by the 2028 timeframe.

For I28 purposes, the expectation is that AAM aircraft will operate from the surface to 4,000 ft. above ground level in urban and metropolitan areas, and in relatively close proximity to or directly on airports.  This means that AAM aircraft will operate predominantly in or around Class B and C airspace.  Charted routes will be the primary routing structure used by AAM aircraft and I28 AAM routes will be designed for use in VFR conditions only, and where possible, use existing or modified low altitude VFR routes and constructs.

There are no expected major changes to ATC automation systems within the 2025 to 2028 timeframe to support I28 operations.

Infrastructure:

For initial AAM operations, existing aviation facility owners and operators should plan for dedicated takeoff and landing areas and support facilitate that address the needs of eVTOL operators, including limited taxi capabilities and charging. 

On September 26, 2022, the Office of Airports (ARP) released EB #105, Vertiport Design which provides interim guidance to airport sponsors, vertiport operators, and infrastructure developers for the design of vertiports for VTOL operations until a performance-based AC is released.  ARP plans to release a performance-based AC on the design of vertiports in 2025.

Construction of on-airport vertiport facilities may require FAA notification under 14 CFR Part 77 (Safety, Efficient Use, and Preservation of Navigable Airspace) and updates to an airport’s FAA approved Airport Layout Plan (for federally obligated airports). 

Importantly, I28 highlights important opportunities for stakeholder input.  In the U.S., aviation rules are implemented through publicly available rulemaking notices.  As part of this process, the FAA welcomes stakeholder comment and input on its proposed rules.  The FAA has an obligation to address all comments, making this an opportunity for feedback to stakeholders as well.  The following rulemakings the FAA believes are necessary to enable AAM operations are open for comment, with closing dates listed below:

• Integration of Powered Lift: Pilot Certification and Operations (published June 14, 2023; comments due by August 14, 2023) (proposes a Special Federal Aviation Regulation for alternate eligibility requirements to certificate initial groups of powered lift pilots and determine which operating rules apply to powered lift aircraft on a temporary basis to ultimately determine the appropriate permanent rulemaking path for novel aircraft).
• Recognition of Pilot in Command Experience in the Military and Air Carrier Operations (final rule published 9/21/22) (allows credit for select military time in a powered lift aircraft flown in horizontal flight towards the 250 hours of airplane time as PIC, or second in command performing the duties of PIC, required for an airline transport pilot certificate).
• Update to Air Carrier Definitions (NPRM published on December 7, 2022; comments due by February 6, 2023) (Proposes to amend the regulatory definitions of certain air carrier and commercial operations.  Adds powered lift to these definitions.  The FAA also proposes to update certain basic requirements that apply to air carrier oversight and proposes to apply the rules of commercial air tours to powered lift).
• Airman Certification Standards and Practical Test Standards for Airmen; Incorporation by Reference (NPRM published on December 12, 2022; comments due by February 10, 2023) (Proposes to incorporate Airman Certification Standards and Practical Test Standards by reference into the certification requirements for pilots, flight instructors, flight engineers, aircraft dispatchers, and parachute riggers.

As a safety entity, the FAA’s publication of rules allowing VTOL certification and operations will be a deliberative process.  The benefit of this process is that it allows ample opportunity for collaboration and involvement with industry.  The FAA encourages outreach by manufacturers and stakeholders while they are still in the deliberative phases of certification and operational planning. 

With FAA rulemaking efforts and reauthorization outstanding, we are gearing up for a busy fall in the aviation industry.