A slice of the FAA layer cake
Memorising sections of a religious text, if not all of it, is a way for followers to preserve and protect those teachings.
A similar code of practice would benefit the advanced aircraft industry if applied to the FAA’s regulatory text. The agency’s certification regulations are five volumes thick – a layer cake of operating rules so detailed and thorough that those who have dedicated their lives to understanding it still need to triple-check the rulebook. Their complexity goes some way to explaining why ex-FAA execs keep popping up at AAM startups.
Earl Lawrence, chief compliance and quality officer at Xwing tells us there is a lot of misunderstanding of FAA regulations and how they apply. This misunderstanding, both within the agency and industry, has led to the delay in the fielding of recent new technologies, he says. So when a company does attain an exemption, approval and sometime soon a type certificate that achievement should be appreciated, says Lawrence, who spent 12 years at the FAA prior to joining Xwing.
The FAA understood when it wrote the general operating rules they wouldn’t always apply. It also had a list of ideas for when those occasions arose. Take Part 91 type-certified people-carrying aircraft: there is regulation (14 CFR § 91.905) that is just a list of other regulations that may be waived. It was put in to accommodate activities like air shows. Other rules, such as Part 107 relating to small UAS, also have subparts allowing for waivers.
Lawrence explains: “In fact most of the Part 91 regulations have a companion guidance set. If you go to a listed regulation some of them say: ‘Unless otherwise authorised by ATC.’ That can give the controller the authority to authorise.” Alternatively, it could give the administrator authority. Regardless, every comment and guidance was written in to be waived or adjusted for any operation someone may envision in the future. Lots of waivers are given every day by the agency with varying degrees of difficulty to attain.
Without the ability to quantum leap, the FAA did a pretty good job of covering all bases on future operations, but it didn’t get everything. Taking out the pilot, as a number of autonomous aviation firms, including Xwing, are doing, is one of those areas. The barrier specifically involves all regulations that use the word “see”. This is because it was determined that “see” only applies to a human being. It was done to make sure that a new regulation had to be written or someone has to apply for an exemption to create a sensor – autonomous flight was a mystery back then.
Most rules are also eligible for exemptions. The exemption process is much broader, allowing for unique or unusual operations to occur contrary to an existing rule, provided there is appropriate oversight and risk mitigation. The FAA’s mandate for approving an exemption is that it must be 1) in the public interest and 2) maintaining an equivalent level of safety to a rule. “So, it can’t only be ‘it is going to make me money or it is good for my business,’” says Lawrence. “In addition to being safe you also have to have a reason that it would be in the interest of the general public to allow you to do that operation. That is a higher bar than a waiver. Waivers were built into the rules, exemptions have that double standard.”
“The public interest side is where people seem to spend the least amount of time in applying,” adds Lawrence, who recommends applicants dedicate much more time to that section.
So where do approvals fit in along the line? “Approval” is a specific term that applies to some rules and not others. Generally, it is used in the aircraft certification world, so in that context an aircraft may be given an exemption from a particular rule that it cannot comply with given the nature of the aircraft. Tom Charpentier, government relations director at the Experimental Aircraft Association (EAA), says: “Depending on how the exemption is structured, the applicant might still hold an approval from the FAA. Waivers and exemptions give applicants relief from rules that are not applicable to a unique operation.
“Exemptions, waivers and aircraft certification categories such as Experimental do much to accelerate and facilitate innovation,” Charpentier tells us. “The FAA aircraft certification rules are designed to keep a careful balance of safety and innovation, but in times of rapid change it is difficult to write good rules that are applicable to all foreseeable cases.” The FAA confirmed to us it accommodates industry innovations through the waiver process.
In some instances both exemptions and waivers become layered together to get an operation flying. According to Lawrence, this is true of the four recent commercial operations BVLOS exemptions for Phoenix Air Unmanned, Zipline, UPS Flight Forward and uAvionix – the first ever issued by the FAA. Lawrence says: “Often an applicant will want to wrap everything up into one application to the FAA and so there is a habit of talking about things interchangeably, but in practice you may need a waiver from air traffic control which would be separate from your exemption that would authorise you to do BVLOS operations.
“With those type of operations, the big question is: How do you see and avoid? And the word ‘see’ has to be a human, but you can’t have anybody standing there because it’s beyond your sight. So how are you doing that? How are you assuring the intent of that regulation? The regulation is not a requirement that you see, it is there to stop two aircraft colliding in midair. Those four all managed to do that.”
An FAA spokesperson told Revolution.Aero: “The FAA recently issued exemptions to four companies to conduct BVLOS drone operations at or below 400ft. Data collected from these operations will inform the FAA’s ongoing policy and rule-making activities.”
Charpentier agrees. “An example in our ‘warbird’ community is a new rule for flight training in antique former military aircraft that is based on existing exemptions held by operators,” he explains.
Whilst it may not feel like it, the FAA is working at breakneck speed in terms of developing rule-making to accommodate changes in aviation. Pretty much all of the exemption requests that can be proven to be both safe and in the public interest are granted – it just takes a while.
“The reason why it takes so long is because there are so many layers to that cake so to speak,” concludes Lawrence. “You have to bake all of the layers before you can conclude and launch a good product. Really it is an integration project because there are so many different pieces of the regulation to deal with that affect different organisations and need different types of approvals.”
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