Opinion: Regulators Should Not Be Able To Shape The AAM Market

Government hand-wringing is frustrating. Regulators make a particular art out of covering their hindquarters with complex and often unfounded demands of the industry. New technologies and tools create yearslong debates over how the “old” rules can meet updated standards rather than using performance-based language that is agnostic about technical specifics. The poetry of 14 CFR Part 43’s “original or properly altered condition” rhymes on a fabric-covered biplane just as it does for a carbon-fiber air taxi.

In June, the FAA published a notice of proposed rulemaking (NPRM) “integrating” powered-lift aircraft operations into the aviation safety rules. The agency provided a mere two months for public comment on thousands of pages of information that, if promulgated into the promised Special Federal Aviation Regulation (SFAR), would directly affect all pilots, examiners, operators, and design and production approval holders—as well as the public. Across those many pages is a fundamentally conflicted view of advancing technologies that illustrates the agency’s general struggle to embrace anything “new.”

To the FAA, powered-lift aircraft are either simple equipment air operations or a complex regulatory burden entering the aviation market. This is the heart of the conflict in the rulemaking, and it raises the question: “Which is it—simple or complex?”

On the one hand, the agency assumes each aircraft will “have complex and unique design, flight and handling characteristics with varying degrees of automation.” On the other, it cites the numerous benefits that will be derived from vehicles that are “easier to design, simpler to construct, less complicated to maneuver, quieter to fly and more economical to operate compared to traditional aircraft.”

This “simplicity side” of the FAA’s argument against itself stems from the U.S. Government Accountability Office’s assertion that the aircraft will be less complicated, quieter to fly and more economical. The agency fails to use this foundational insight to establish basic standards for pilots and operators, to propose appropriate classes of powered-lift aircraft or to simplify pilot certification. Instead, the rulemaking would solidify the type-rating requirements in Part 61 because of the “lack of commonality in the design” and “complicated and distinctive operating characteristics” of the aircraft.

Both assertions cannot be true. To assume the aircraft will be more complicated is belied by the old methods the agency is using to determine the certification basis—the design elements dictate the aircraft usage, which in turn determines the qualifications required to operate it. When used with the appropriate tests required for helicopter and airplane pilots, it would not burden the agency or the industry to provide an alternative path to qualifying pilots until appropriate classes of powered lift are identified. There is no doubt that many advanced air mobility aircraft will not need type ratings to be operated safely.

There is another core problem in the rulemaking: The FAA’s definition of powered-lift aircraft shows how adherence to consistency does not always square with reality. The agency relied on the definition provided by the International Civil Aviation Organization (ICAO): “A heavier-than-air aircraft capable of vertical takeoff, vertical landing and low-speed flight, which depends principally on engine-driven lift devices or engine thrust for the lift during these flight regimes and on nonrotating aerofoil(s) for lift during horizontal flight.”

Relying strictly on the ICAO definition limits the proposed rule’s applicability to aircraft with some kind of fixed wing. The rulemaking preamble embraced this standard—yet vertical-takeoff-and-landing, short-takeoff-and-landing aircraft and those powered by electric or nonconventional engines do not all depend on “nonrotating airfoil(s) for lift during horizontal flight.”

The agency asserts that the rulemaking is meant to cover configurations with thrust vectoring and direct lift schemes that do not depend on nonrotating airfoils, yet the definition chosen would exclude those aircraft from the rule. Practically speaking, the agency should not, after considerable time and investment in developing an SFAR, leave new entrants caught in a loophole.

The lesson, amid exasperation, is to invest focused attention into rulemaking. Despite the short comment period (which can always be extended should the public provide reasonable requests for more time), submitting feedback to an NPRM helps steer the agency and guarantees standing to challenge issues in the final rule. From basic definitions to complexity determinations, the public cannot allow regulators—or a small collection of the industry’s most engaged companies—to shape new markets.

Sarah MacLeod is managing member of Obadal, Filler, MacLeod & Klein and a founder and executive director of the Aeronautical Repair Station Association. She has advocated for individuals and companies on international aviation safety law, policy and compliance issues for more than 30 years.