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California Aviation Law Attorney


Avialex Announcement

DRONE SERVICES AGREEMENT: A TEMPLATE FOR CONSIDERATION WHEN STARTING COMMERCIAL OPERATIONS

August 2016 – As the DOT's and FAA's final rules for small unmanned aircraft systems ("operational rules") finally went into affect this week, we here at Michael L. Dworkin and Associates thought it would be helpful to publish a Drone Services Agreement template for our clients (and curious drone operators) to review for educational purposes when considering whether to engage UAS/UAV/Drones in commercial operations.

CLICK HERE TO DOWNLOAD THE AVIALEX DRONE SERVICES AGREEMENT TEMPLATE (PDF)

While each drone operation will be different depending on the specific UAS's complexity and capabilities, the needs of the individual or business utilizing the drone services, and the various airspace limitations involved, there are certain contractual areas that you should, at minimum, make sure to address when negotiating with, or contracting as, a drone operator.

One such area where you should show caution before conducting any UAV operations is privacy. The new operational rules do not specifically deal with privacy issues in the use of drones and the FAA does not regulate how UAS gather data on people or property. It is important that you understand the potential liabilities and risks associated with gathering information through remote sensing technology or photography. Unfortunately, the rules and regulations affecting such operations differ state-to-state, county-to-county, even city-to-city.

Some additional considerations that are not in this template but should be addressed on a case-by-case basis include, but are not limited to: witness waivers; proprietary data licensing; pilot/aircraft requirements; operating rules/manuals; airspace limitations; and accident reporting.

If you have any questions or would like to retain counsel to assist in negotiating your next commercial drone services agreement, please do not hesitate to reach out.

By: John T. Van Geffen
john@avialex.com
(415) 421-2500

April 2016 - IATSBA SPRING CONFERENCE - Washington, D.C.

Michael Dworkin and John Van Geffen had the pleasure of attending the International Air Transportation & Safety Bar Association (IATSBA) Spring Conference in Washington, D.C. The Gala Dinner was held at the Hay Adams Hotel with keynote speaker Reginald C. "Reggie" Govan, Chief Counsel, FAA. Mike helped present the IATSBA Lifetime Achievement Award to our friend and colleague John Yodice. The 2016 Joseph T. Nall Safety Award was presented to Nicholas A. Sabatini, Associate Administrator for Aviation Safety. Mike moderated a panel on "Responding to Air Disasters: Best Practices for Reporting and Working with the NTSB, FAA and in the Aftermath of an Accident".

IATSBA SPRING CONFERENCE - Washington, D.C.

February 2016 – AVIALEX TEAM BUILDING EXERCISE

Michael L. Dworkin and Associates has always prioritized team building and company culture. Thus, Mike and John recently headed to Stockton to drive a Ferrari 360 Modena and a Lamborghini Gallardo because… why not?

AVIALEX TEAM BUILDING EXERCISE
AVIALEX TEAM BUILDING EXERCISE

November 2015 – COBALT AIRCRAFT

Our client, Cobalt Aircraft Industries, Inc. just rolled out its Co50 Valkyrie—representing a new generation of high performance general aviation aircraft. We’re happy to have been able to assist Cobalt in obtaining experimental certification​ and with their legal needs. Here’s a photo of Mike Dworkin and John Van Geffen at the November 12, 2015 launch party:

Cobalt Aircraft Industries

“10 years ago, I had a vision to disrupt the aviation industry with an innovative private aircraft, that is not only technologically sound and safe, but also design-centric and luxurious. Today, Cobalt is no longer just a prototype. It’s a world class aircraft, complete with advanced safety, technology, and modern design features for travel-loving consumers and aviation enthusiasts.” ~David Loury, founder and CEO of Cobalt.

September 29, 2015 – Michael L. Dworkin had the honor of presenting at an Aviation Law Conference covering current issues in aviation regulatory law in conjunction with American University Washington College of Law.

In addition to presenting on "Investigations/Accidents/Incidents/Enforcement Actions; Responding to FAA and NTSB", Michael participated in two separate panels. Video is available here:

HILLER AVIATION MUSEUM – 7th ANNUAL INVITATIONAL GOLF TOURNAMENT

Michael L. Dworkin and John T. Van Geffen were happy to attend and sponsor this year's Hiller Aviation Museum Golf Tournament fund raiser at TPC Stonebrae Country Club.

The Hiller Aviation Museum, a Smithsonian Affiliate museum, was opened in 1998 by helicopter designer and inventor Stanley Hiller Jr. and features over 50 aircraft from more than a century of aviation history.

hiller aviation museum golf tournament

2015 VISUAL EFFECTS SOCIETY'S PROFESSIONAL CINEMA DRONE EVENT

On April 30, 2015, Michael L. Dworkin gave a presentation on the rapidly changing regulatory framework for commercial UAS use at the Visual Effects Society's Professional Cinema Drone Event. For more information on this group, please visit https://www.visualeffectssociety.com

2015 Visual Effects Society.

2015 CALIFORNIA AVIATION DAY

John Van Geffen joined the Northern California Business Aviation Association in Sacramento on April 22, 2015 to take part in California Aviation Day and speak with Assemblyman, students, and various organizations in order to help push the message that business aviation is a vital component to California's economic growth.

California Aviation Day 2015

2015 OUTWARD BOUND CALIFORNIA CITY SKYLINE CHALLENGE

We may be attorneys, but we know how important it is to have a little fun, especially when it is for a good cause. We are happy to announce that our very own John Van Geffen, along with another 128 courageous rappellers, descended 23 stories off the side of the Hyatt Regency on March 20, 2015 with Outward Bound California to help raise funds for underserved students in the Bay Area and throughout California.

Outward Bound

ADOPTING DRONES IN THE NATIONAL AIRSPACE SYSTEM

The U.S. drone industry is trying to decide how to proceed in light of last month's Notice of Proposed Rulemaking (NPRM) issued in the anticipated adoption of unmanned aerial vehicles (UAVs)—i.e., drones, in the National Airspace System (NAS) (Docket No.: FAA-2015-0150; Notice No. 15-01).

Currently, FAA regulations prohibit the commercial use of UAVs absent a special airworthiness certificate, exemption, or certificates of waiver or authorization (COA). Obtaining one of these exemptions is a long and costly procedure requiring that you narrow down the anticipated operation to help ensure your petition will be granted. Exemptions are not guaranteed, but at this point there have been numerous exemptions granted so there are templates available out there for companies that want them.

Under the new NPRM, it looks like the practice of applying for special exemptions is about to change for certain types of Unmanned Aerial Systems (UAS) depending on the size of the aircraft.

Apparently, size really does matter.

Luckily for those of you who already obtained the 333 Exemption, the FAA just released an interim policy to speed up airspace authorizations to help "bridge the gap between the past process… and future operations" once the NPRM is finalized. Essentially this grants Exemption holders an automatic COA for flights at or below 200 feet with 55 lb. or smaller UAVs during the day.

The NPRM suggests that the UAV commercial market should be carved out into three classifications based on the physical weight and construction of the aircraft. Under the rapidly evolving UAV regulatory scheme (read: "currently undecided and quickly changing") there will likely be the following classes:

UAV CHART

Moving away from the customer and autonomous technology, how does this affect the early adopter UAV operator who want to earn a living operating a drone? The NPRM explains that each operator will have to pass a test administered at an FAA-approved center, be approved by TSA, obtain an Unmanned Aircraft Operator Certificate, and be at least 17 years of age. The FAA estimates this process will run a little over $200 per person, not including the recurrency test that will be required every 2 years. Micro UAV operators will likely have a greatly reduced initial time investment but the specifics have not yet been ironed out.

What is missing from the NPRM?

For one, it does not suggest a best practice for minimizing risk during loss of control link—i.e. think drunk drone operator crashing a UAV on the White House lawn. This omission may be for the best as it should be up to the industries' top engineers and programmers to figure out the safest and most efficient way to handle inevitable risks.

Also undecided is what should result from an injury or property damage caused by a UAV. The NPRM suggests there should be an insurance requirement (Global Aerospace already advertises an UAS Insurance Policy) and that, at a minimum, operators should file a report within 10 days of any such incident.

Considering that, on average, the most costly damage will not be to bystanders but to the UAV itself, voluntary disclosure may result in non-disclosure. That said, Murphy's law demands that we prepare for the eventuality of a farming UAV veering of course to collide with an aircraft windshield or get sucked into a turbine engine, or a professional athlete suffering a permanent eye injury inflicted by a malfunctioning camera drone.

If you are interested to see how other countries are handling drones, look at the European Aviation Safety Agency (EASA) proposed regulatory framework released earlier this week. Instead of a 'size' approach, European law makers want drones classified as 'open', 'specific' or 'certified', each with its own set of rules. If Europe has its way, drone operations overseas will continue to far outpace those in America.

That said, Americans hate playing catch up so continue to check www.regulations.gov where the FAA is having a lively discussion with the public on how the NPRM will ultimately play out. Comments are encouraged.

SURFAIR OAKLAND LAUNCH EVENT

Mike and John were pleased to attend Surf Air's January 15, 2015 Oakland Launch Event introducing service to Oakland Airport and unveiling their newest Pilatus PC-12 (www.surfair.com)

Also in attendance were several Oakland Port Commissioners including President Alan Yee, and Vice-Presidents Cestra Butner and Earl Hamlin and Oakland Airport's Aviation Director Deborah Ale Flint.

Michael L. Dworkin and Associates is helping ensure that Surf Air's Emergency Response Plan is as outstanding as Surf Air's luxury style service.

John

Mike

AVIATION LAW CONFERENCE – Legal Aspects of Aircraft Mishaps and Disasters

Date: November 10, 2014
Location: American University Washington College of Law

Michael L. Dworkin and Associates will be presenting at this conference aimed at addressing the legal and organizational aspects of dealing with aircraft mishaps and disasters—not only finding causation, but how organizations should prepare for and respond to them.

Michael and John will be presenting the following, respectfully, 'Providing Legal Representation to the Operator after an Aircraft Mishap' and 'Nuts and Bolts of Preparing Emergency Response Plan'.

Who Should Attend: Air carriers; air agencies; manufacturers; aircraft owners and operators; airport proprietors; aircraft insurers; attorneys representing aviation concerns; and plaintiffs' attorneys.

CLE Credits (5 hours) are available for a $275 registration fee. Otherwise, the event is free to attend.

Link: http://www.wcl.american.edu/secle/fall/2014/20141110.cfm

"AIRCRAFT DISASTER RESPONSE: PLANNING, REACTING AND RECOVERING"

Date: May 30, 2014
Location: The Bar Association of San Francisco Conference Center

Michael L. Dworkin and Associates and Robson Forensic, together with AeroPodium and several distinguished aviation industry speakers are putting together a one day workshop on accident investigations, SMS, family assistance, Emergency Response Plans and the numerous legal issues surrounding an aviation catastrophe.

Two speakers who will discuss both the aviation industry and human perspective of living through an aircraft accident will tie the day's presentations together.

The event is taking place May 30, 2014 at the Bar Association of San Francisco Conference Center, located in the former Federal Reserve building. The agenda and sign-up information is available here: http://www.aeropodium.com/adr.html

For more information please do not hesitate to contact us.

This just in – Pirker v. Huerta. On March 6, 2014 NTSB Administrative Law Judge Patrick Geraghty struck down the FAA's ban on the commercial use of small UAVs. Judge Geraghty found the FAA policy notices to be unenforceable because they were not written using a formal rulemaking process.

Judge Geraghty's ruling may open up the use of airspace below 400 feet for entrepreneurs—e.g., farmers, photographers, real estate agents, directors, news stations, etc. It is unknown at this time whether the FAA will appeal the case to the U.S. Court of Appeals for the District of Columbia.

Raphael Pirker was fined $10,000 by the FAA for operating a small Styrofoam 5lb drone "recklessly" over the University of Virginia. The judge's ruling dismisses the FAA's fine.

We are pleased to announce a victory before the U.S. Department of Transportation Office of Hearings.

Background: the FAA had assessed our client, a major air carrier, a civil penalty sanction in the amount of $165,000, alleging violations of 14 CFR Sections 119.5 and 121.693 for failing to comply with the carrier's Operation Specifications (specifically, baggage loading procedures). Our office appealed the Administrator's Order and a hearing was held in late 2012.

On May 6, 2013 the Administrative Law Judge found that the FAA failed to prove 60% of the alleged violations and assessed a penalty of $1,250 (or 0.007% of the sought after penalty).

Also noteworthy, Michael L. Dworkin just returned from giving a presentation on FAA Enforcement Issues at the Regional Air Cargo Carrier Association's Spring Conference in Scottsdale, Arizona. The event was attended by hundreds of industry professionals. RACCA continues to serve as an effective leadership organization for regional cargo airlines and a key advocate throughout North America.

March, 2014

This just in – Pirker v. Huerta. On March 6, 2014 NTSB Administrative Law Judge Patrick Geraghty struck down the FAA's ban on the commercial use of small UAVs. Judge Geraghty found the FAA policy notices to be unenforceable because they were not written using a formal rulemaking process.

Judge Geraghty's ruling may open up the use of airspace below 400 feet for entrepreneurs—e.g., farmers, photographers, real estate agents, directors, news stations, etc. It is unknown at this time whether the FAA will appeal the case to the U.S. Court of Appeals for the District of Columbia.

Raphael Pirker was fined $10,000 by the FAA for operating a small Styrofoam 5lb drone "recklessly" over the University of Virginia. The judge's ruling dismisses the FAA's fine.

February, 2014 – Commercial Use of UAVs, UAS and Drones

On February 12, 2014 Michael L. Dworkin had the honor of giving a presentation on the current legal framework surrounding the commercial use of UAVs/UAS/Drones to Northern California independent filmmakers. The presentation covered not just directors, but real estate agents, photographers, crop surveyors, surveillance, broadcasting, delivery services and many more. The powerpoint presentation has been made available HERE for your review.

November, 2013 – San Francisco's Top Rated Lawyers

We would like to congratulate Michael L. Dworkin for being named as one of San Francisco's Top Rated Lawyers of 2013 according to a publication by ALM Legal Group in conjunction with the San Francisco Chronicle and Martindale-Hubbell.

November, 2013 – Unmanned and Unafraid – Drones in the NAS

We just returned from the International Air & Transportation Safety Bar Association's 2013 Air and Transportation Law Conference in Pensacola Beach, Florida. Attended by the nation's leading aviation legal experts, the presentations and Gala were a huge success.

Michael Dworkin's panel entitled "Unmanned and Unafraid – Drones in the NAS" was extremely enlightening and delved into the legal aspects of commercial UAVs that we can expect to see more of in the upcoming years.

A copy of the presentation compendium is available [here].

November, 2013 – Airplane mode takes off!

Last week the U.S. Department of Transportation's Federal Aviation Administration (FAA) Administrator Michael Huerta announced that the FAA has determined that airlines can safely expand passenger use of Portable Electronic Devices (PEDs) during all phases of flight, and is immediately providing the airlines with implementation guidance.

"We believe today's decision honors both our commitment to safety and consumer's increasing desire to use their electronic devices during all phases of their flights," said Transportation Secretary Anthony Foxx. "These guidelines reflect input from passengers, pilots, manufacturers, and flight attendants, and I look forward to seeing airlines implement these much anticipated guidelines in the near future."

"I commend the dedication and excellent work of all the experts who spent the past year working together to give us a solid report so we can now move forward with a safety-based decision on when passengers can use PEDs on airplanes," said FAA Administrator Michael Huerta.

The FAA's press release can be seen in its entirety [here].

October, 2013

We welcome you to join us at the 2013 Air and Transportation Law Conference in Pensacola Beach, Florida.

Michael Dworkin, current Executive Vice President (previous President) of IATSBA, has the distinct pleasure of moderating a panel entitled "Unmanned and Unafraid – Drones in the NAS" where topics will get into everything commercial drone related, including the FAA's highly anticipated guidelines for commercial operations.

John Van Geffen, current IATSBA Regional VP of the Western-Pacific Region, will be present for the emerging leaders events and encourages everyone to attend.

June, 2013

John Van Geffen was recently published on the UpCounsel Blog. UpCounsel, the fastest growing online workplace for retaining attorneys, solicited John's article entitled How to Draft Non-Disclosure Agreements (published June 17, 2013).

SEE: http://blog.upcounsel.com/how-to-draft-non-disclosure-agreements

May, 2013

We are pleased to announce a victory before the U.S. Department of Transportation Office of Hearings.

Background: the FAA had assessed our client, a major air carrier, a civil penalty sanction in the amount of $165,000, alleging violations of 14 CFR Sections 119.5 and 121.693 for failing to comply with the carrier's Operation Specifications (specifically, baggage loading procedures). Our office appealed the Administrator's Order and a hearing was held in late 2012.

On May 6, 2013 the Administrative Law Judge found that the FAA failed to prove 60% of the alleged violations and assessed a penalty of $1,250 (or 0.007% of the sought after penalty).

Also noteworthy, Michael L. Dworkin just returned from giving a presentation on FAA Enforcement Issues at the Regional Air Cargo Carrier Association's Spring Conference in Scottsdale, Arizona. The event was attended by hundreds of industry professionals. RACCA continues to serve as an effective leadership organization for regional cargo airlines and a key advocate throughout North America.

May, 2013

Mike recently gave a presentation on FAA Enforcement Issues at the Regional Air Cargo Carrier Association's Spring Conference in Scottsdale, Arizona. The event was attended by hundreds of industry professionals. RACCA continues to serve as an effective leadership organization for regional cargo airlines and a key advocate throughout North America.

October, 2012

In the Fall of 2012 Mike was a part of the planning committee for the Annual ABA Forum on Air and Space Law held in New Orleans. Additionally, during the conference Mike spoke on the waiver requirements contained in the U.S. commercial human space flight regulations.

This system requires the operator, crew members, and space flight participants (SFP) to hold harmless and indemnify the US and its entities for loss or damage arising from licensed or permitted activities.

Mike was a panel member, addressing the wavier and reciprocal cross waivers required by the regulations, their scope, the legal relationships between and among the crew, the operator and the SFPs, and what constitutes informed consent.


Avialex Announcement

Where we’ve been and what we’ve been doing…

We are pleased to announce a victory before the U.S. Department of Transportation Office of Hearings.

Background: the FAA had assessed our client, a major air carrier, a civil penalty sanction in the amount of $165,000, alleging violations of 14 CFR Sections 119.5 and 121.693 for failing to comply with the carrier's Operation Specifications (specifically, baggage loading procedures). Our office appealed the Administrator's Order and a hearing was held in late 2012.

On May 6, 2013 the Administrative Law Judge found that the FAA failed to prove 60% of the alleged violations and assessed a penalty of $1,250 (or 0.007% of the sought after penalty).

Also noteworthy, Michael L. Dworkin just returned from giving a presentation on FAA Enforcement Issues at the Regional Air Cargo Carrier Association's Spring Conference in Scottsdale, Arizona. The event was attended by hundreds of industry professionals. RACCA continues to serve as an effective leadership organization for regional cargo airlines and a key advocate throughout North America.

Michael L. Dworkin and Associates is proud to have assisted NaturEner in the issuance of 126 wind turbine FAA Determinations for the construction, use, ownership and operation of wind farms that will bring a 189-megawatt wind power site to Montana capable of powering over 60,000 homes.

Michael L. Dworkin has been re-elected as Executive Vice President of the International Aviation and Transportation Safety Bar Association (formally the National Transportation Safety Board Bar Association).

John T. Van Geffen has been re-elected as the Western-Pacific Regional Vice President of the International Aviation and Transportation Safety Bar Association (formally the National Transportation Safety Board Bar Association) and remains the Newsletter Editor-in-Chief.

John T. Van Geffen has been selected by the Northern California Business Aviation Association to give a presentation on regulatory compliance at NCBAA’s May 8, 2012 luncheon at Hayward, CA. The presentation will be focused on the do’s and don’ts of responding to FAA investigations and enforcement actions.

AVIATION SAFETY REPORTING PROGRAM ADVISORY CIRCULAR REVISED

On December 16, 2011, the FAA released a revised Advisory Circular (00-46E) describing the Aviation Safety Reporting Program (ASRP). ASRP is used by pilots, controllers, flight attendants, maintenance personnel, dispatchers, and other users of the National Airspace System to report actual or potential discrepancies and deficiencies involving the safety of aviation operations. ASRP covers departure, en route, approach, and landing operations and procedures; air traffic control procedures and equipment; crew and ATC communications; aircraft cabin operations; aircraft movement on the airport; near midair collisions; aircraft maintenance and recordkeeping; and airport conditions or services.

While 00-46D (released February 26, 1997) required that ASRP users file a report within ten days of the reported incident, 00-46E provides a little breathing room as you now have ten days from the date on which you became aware or should have become aware of the violation.

INTERNAL REVENUE SERVICE STATES AIRCRAFT MANAGEMENT FEES TAXABLE

On February 15, 2012, the Office of Chief Counsel of the Internal Revenue Service released an internal memorandum to the Excise Tax Program stating that monthly management fees, as well as the separately reimbursed amounts, paid to aircraft management companies are “amounts paid for taxable air transportation” of persons, and thus are taxable under Internal Revenue Code section 4261. This Code section imposes an excise tax on amounts paid for: transportation of persons by air; each domestic segment; the use of international travel facilities; and the right to award free or reduced rate transportation. For more information on section 4261, see the air transportation excise tax audit technique guide located on the IRS website.

Avialex Announcement

Michael L. Dworkin Presents Third Annual Joseph T. Nall Award to William R, Voss, President and CEO of Flight Saftey Foundation.

On November 11, 2011, Michael L. Dworkin, as Executive Vice President of the International Air & Transportation Safety Bar Association (IATSBA, formally the National Transportation Safety Board Bar Association), presented the Third Annual Joseph T. Nall Award to William R. Voss, President and CEO of Flight Safety Foundation.

The Award was formally presented to Mr. Voss at the Bar Association's Gala Dinner at the Naval Air Museum in Pensacola, Florida, in conjunction with the its Aviation Law Conference in Pensacola on November 8-12, 2011.

In presenting the Award, Michael L. Dworkin noted Mr. Voss' efforts in fostering air safety and data sharing and efforts to decriminalize aircraft accidents and mishaps. Mr. Voss has served with Flight Safety Foundation since October, 2006. Between 2004 and 2006, Mr. Voss had been director of the Air Navigation Bureau of the International Civil Aviation Organization (ICAO), overseeing the development of major international safety initiatives. Prior to joining ICAO, Mr. Voss spent 23 years with the Federal Aviation Administration, rising through the ranks to become Director of Air Traffic Systems Development.

IATSBA is a Washington, D.C.-based organization of attorneys and other aviation professionals practicing before the National Transportation Safety Board (NTSB), Federal Aviation Administration (FAA) and Department of Transportation (DOT). Michael L. Dworkin is a founding member of IATSBA and its predecessor organization and has had the distinct pleasure of serving as both President and Executive Vice President in the past.

For more information please visit us at www.avialex.com and www.avialex.aero

Avialex Announcement

J. Lynn Helms, Former FAA Administrator, Dies

J. Lynn Helms, who served as FAA administrator from 1981 to 1984, died on Dec. 11, at his home in Westport, Conn., at age 86. Helms may be best remembered for his role during the 1981 strike by air traffic controllers. According to the Washington Post, Helms advised Reagan administration officials that air traffic safety would not be affected if more than 11,000 union controllers were fired. Helms kept ATC running with non-union workers, managers, members of the military, and new hires. Helms also served as a test pilot in the Navy, and was president of Piper Aircraft in the 1970s.

Helms was the first man to fly 1,000 mph, in a Navy F8U Crusader, in 1955. He had retired from a long career in the military and the private sector when Transportation Secretary Drew Lewis asked him to take on the FAA job. During his tenure, Helms helped initiate a $10 billion plan for modernizing the National Airspace System and helped to install new weather technology in response to several fatal airline accidents.

Avialex Announcement

FAA Administrator Randy Babbitt Resigns

The following release was posted Dec. 6 to the FAA website under the title, "Statement from Randy Babbitt." That statement follows, here, in its entirety:

Today I submitted my resignation to Secretary Ray LaHood and it has been accepted. Serving as FAA Administrator has been an absolute honor and the highlight of my professional career. But I am unwilling to let anything cast a shadow on the outstanding work done 24 hours a day, 7 days a week by my colleagues at the FAA. They run the finest and safest aviation system in the world and I am grateful that I had the opportunity to work alongside them. I am confident in their ability to successfully carry out all of the critical safety initiatives underway and the improvements that the FAA has planned. I also want to thank Secretary LaHood for his leadership and dedication to the safety of the traveling public.

At about 10:30 p.m., Saturday, Babbitt was seen driving on the wrong side of the road and was pulled over. He was taken into custody by Fairfax County police and charged with driving while intoxicated. Babbitt was alone in the car at the time and no accident related to the incident has been reported. After being taken to a local jail, the former administrator was released on a personal recognizance bond. He now faces a Feb. 2 court date. Transportation Secretary Ray LaHood Tuesday expressed disappointment that he'd found out about the event through news reports. Deputy administrator Michael Huerta is now serving as acting administrator of the FAA.

Fairfax City police operate under a general order that forces them to release "any criminal charge or serious traffic charge." Those charges include driving under the influence and reckless driving. The police do not need to release the administrator's blood-alcohol level. Virginia state law defines driving while intoxicated (DWI) as operating a motor vehicle with a blood alcohol concentration of .08 or higher. Babbitt flew 25 years for Eastern Airlines and was sworn in to lead the FAA on June 1, 2009. He was about halfway through his five-year term.

Avialex Announcement

X-Ray Scanners Banned in Europe

This past November marked the end of airport body scanning X-ray machines as the European Commission decided to ban them after studies linked them to a few cancer cases. This decision will affect all airports except those in the U.K. which are being used solely for testing purposes.

Here, TSA uses over 250 of these x-ray machines at the 100 busiest airports and the government has denied any such links to cancer.

According to the U.S. Food and Drug Administration, backscatter machines bring a cancer risk of one in 400 million. Research reported by PBS Newshour/ProPublica states that the risk of developing cancer from the machines is "anywhere from six to 100" passengers per year.

Avialex Announcement

Deaths on U.S. Government Aircraft Exceed Commercial Toll


(Excerpts from November 30, 2011 Bloomberg article)

More people have died in crashes on government aircraft, which are exempt from most U.S. safety regulations, than on commercial airliners over the past five years, the first time that’s happened over a similar span.

Not including flights in war zones, accidents since 2007 have killed 52 people, including a team battling a forest fire, wildlife and forestry workers and citizens that law-enforcement agencies were trying to rescue, according to data compiled by Bloomberg. Fifty people have died on scheduled passenger flights in the same period.

U.S., state and local government agencies operate or hire hundreds of helicopters, single-engine planes and jets, according to National Transportation Safety Board records. These flights aren’t regulated by the Federal Aviation Administration, which oversees commercial and private flights.

“This has always been the black hole of aviation safety,” Jim Hall, a former safety-board chairman, said in an interview. “There is absolutely no reason that the government is not required to adhere to the same standards as everyone else in terms of aviation regulations.”

Government aircraft fly about one-tenth as many hours as each year as commercial airliners, though their relative risk is elevated by the hazardous missions they sometimes undertake. Government aircraft operated an estimated 1.75 million hours in 2009, according to FAA data.

Commercial aviation fatalities have fallen more than 80 percent since the 1990s, according to NTSB data. By comparison, fatalities on government flights, which averaged 11 per year since 2000, have stayed roughly the same.

To see Alan Levin’s full story, please follow the link to Bloomberg Businessweek

Avialex Announcement

District Court Orders U.S. To Pilot’s Next of Kin $4.4 Million

A District Court Judge has ordered the United States to pay $4.4 million to the next of kin of a pilot who died in a 2005 plane crash after finding that the ATC "breached his duty of care" when he failed to provide accurate, complete weather information pertinent to the pilot’s route of flight. He also failed to provide navigational assistance when asked, according to the court (the pilot was heard on frequency by controllers and other pilots screaming for help for two minutes before his radio went silent).

The NTSB's full narrative suggests it may not be that simple. The deceased pilot was flying IFR in a Cessna P337H towards heavy rain when he announced a heading change. The ATC was preoccupied with another aircraft as the deceased pilot flew into a Level 5 storm.

INDUSTRY OVERVIEW

With the economy beginning to rebound, and with the market for used aircraft still depressed, our office has been extremely busy assisting aviation clients in getting the jump on a multitude of great deals.

Additionally, while FAA enforcement actions had slowed somewhat over the past couple of years, we continue to have a steady influx of cases. Considering the importance of these proceedings and the immense consequences they can have on our clients’ continued business operations, our office goes to great lengths to defend these actions.

We have additionally observed an uptick in the number of reexamination/re-inspection/re-qualification cases brought by the FAA under 49 U.S.C. Section 44709.  

PUBLISHED ARTICLES

Associate John T. Van Geffen has been published multiple times since our last Avialex update.  Please click the links below to see the full articles.

FLYCORPORATE MAGAZINE, What You Need to Know When Buying a Pre-Owned Aircraft, Issue 01-2010, fly-corporate.com

Excerpt: Would-be bizjet owners are increasingly dipping their toes back into the market, buying up the vast inventory of used business aircraft currently available. While you will find some of the most attractive prices the industry has seen in years, there are important issues to consider before you sign-up. FlyCorporate turned to industry expert and lawyer, John T. Van Geffen of Michael Dworkin and Associates, for a rundown of the fundamentals of buying used aircraft.

FLYCORPORATE MAGAZINE, Coming to America, A guide for non-US citizens who wish to register a US aircraft, Issue 08-2010, fly-corporate.com

Excerpt: Whether you are thinking of purchasing a Boeing 787-Dreamliner for your company, or you are an individual who just wants to acquire a 1966 Piper Cherokee for your collection, the rules are the same. An aircraft cannot be based in the United States unless its registered here. John Van Geffen offers a guide for non-US citizens who wish to register an aircraft in the US.

[NOTE: The FAA is currently soliciting comments on the current rules and regulations surrounding Non-US Citizen Trusts (NCT). Expect an update from our office as things progress]

SAFETY MANAGEMENT SYSTEMS

Regarding the aviation industry as whole, flying is safe, but it is not perfect.  No aircraft or item of equipment is fail-safe–and there is also the human element. Mike has been extremely busy traveling the country to speak to various aviation groups about Safety Management Systems (“SMS”).

Mike has spoken before the National Transportation Safety Board Bar Association (NTSBBA) in Washington, D.C., the Northern California Business Aviation Association (NCBAA) in Mountain View, California, and the Lawyer Pilots Bar Association (LPBA) in Carlsbad, California.

Attached is a copy of Mike’s LPBA Powerpoint presentation. 

NATIONAL TRANSPORTATION SAFETY BOARD BAR ASSOCIATION

We’ve also been busy volunteering our time and expertise to the National Transportation Safety Board Bar Association (www.ntsbbar.org).  Last year, Mike became the Executive Vice President and John was elected to the position of Western-Pacific Regional Vice President.  John also serves as Editor-In-Chief of the Bar Association’s Newsletter.  As both Mike and John have contributed heavily to these Newsletters, we are posting some excerpts on the AVIALEX website so you can see what we have been up to. 
Please click the links below to read Newsletter excerpts  with articles written by Mike and John. 
If you would like a copy of any of these Newsletters in their entirety, please send an email to johnvangeffen@avialex.com

NTSBBA NEWSLETTERS

- Spring 2010

V.P. Messages

Industry Impacts - The Colgan Air Crash

- Summer 2010

NTSB Aviation Accident Statistics

Disclosing Depression 

Entitlement to Actual/Nonpecuniary Damages for Governmental Violations of the Privacy Act of 1974

Mark K. Turner and Stephen J. Coonan v. NTSB

- 2010 Conference Newsletter

- 2010 Conference Agenda 

- Fall 2010

V.P. Message

Recent Updates

- Winter 2011

- Spring 2011

V.P. Messages

NTSB ANPRM (Mike’s Counterpoint)

Landing on Closed Runway

UPDATE: OPERATION SAFE PILOT

You may remember our office’s prior involvement with U.S. DOT, FAA and SSA v. Stanmore Cawthon Cooper,  Case No. 10-1024(see Avialex Volume 10 – September 2010; Volume 7 – Fall 2006). The last we reported, Mr. Cooper prevailed before the 9th Circuit Court of Appeals, which reversed and remanded the matter for further proceedings. Well, the U.S. Government is up to its old tricks and is seeking review by the Supreme Court of the United States.

The question at stake:

        Whether a plaintiff can establish “actual damages” under the Privacy Act’s civil remedies provision, 5 U.S.C. §§ 552a(g)(1)(C)-(D) and (g)(4), through competent evidence of real and appreciable mental and emotional distress caused by a federal agency’s intentional or willful violation of the act.

Stay tuned to see what happens…

Aviation Law Newsletters

Avialex The Newsletter of Michael L. Dworkin and Associates concentrating on developments in areas in which we are primarily engaged – FAA/NTSB/DOT, certification and enforcement, aircraft and equipment acquisition, sales and leasing, and airport matters. Listed below is a brief topic description and link to past Newsletters. 

Volume 13 - September 2013

Volume 12 - September 2012

Volume 11 - September 2011

  • On December 9, 2011 Michael L. Dworkin gave a presentation on Safety Management Systems at the inaugural meeting of the Northern California Business Aviation Association (NorCalBAA).

Volume 10 - September 2010

  • Where We've Been and What We've Been Doing
  • Aircraft Registration Update
  • Operation Safe Pilot-- Revisited
  • NTSB: Erroneous Responses Deemed False and Fraudulent
  • ...And Watch Those Personal Pronouns

Volume 9 - June 2009

  • Voluntary Disclosure Reporting Program Expanded:
    VDRP Now Includes Anti-Drug and Alcohol Misuse Prevention Programs and Hazmat Violations
  • The Court of Appeals Decides It Is OK to Drop Your Pants

Volume 8 - March 2009

  • Where We've Been and What We've Been Doing
  • Updates
  • MRO's For Africa
  • California Sales and Use Taxes
  • Wage Laws in the Bay Area
  • An Inconvenient Flight
  • Operational Control in a Nutshell
  • You've Got to be Kidding

Volume 7 - Fall 2006

  • Where we've been (and what we've been up to)
  • Operation Safe Pilot
  • Assessing GARA
  • Interesting Moments in Aviation and Legal History

Volume 6 - December 2002

  • Where we'be been (and what we've been up to)
  • Compliance Demonstration - a New "Catch 22"?
  • Corporate Culture and Management Accountability
  • Administrator v. Tortsmore - Fact or Fiction?

Volume 5 - February 2001

  • Recent Developments
  • More on Self Disclosure
  • Enforcement Issues
  • Expunction of Records
  • Releasability of Information
  • SFO Airport Delays

Volume 4 - February 2000

  • "THE PENSACOLA PAPERS"
  • Defending Air Carriers and Air Agencies
  • Hearsay Evidence in Air Safety Proceedings

Volume 3 - July 1995

  • Recodification of the Federal Aviation Act
  • Drug Testing
  • Caveat on Self Disclosure... or Be Careful What You Give the Feds.
  • Regulation By Negotiation

Volume 2 - June 1994

  • NASA Aviation Safety Reporting Program
  • Voluntary Disclosure
  • Responding to the Letter of Investigation
  • Human Factors
  • Service Bulletings vx. STC - Which Controls
  • Attorney-Client Relations

Volume 1 - November 1993

  • A Nuts and Bolts Approach to Handling FAA Enforcement Matters
  • Air Carrier Security Cases - Rights to a Public Hearing
  • ... and So Much for Uniform FAA Policy

Contact Our Aviation Law Attorneys

If you need help from an experienced attorney who is well-versed in aviation law, please call or e-mail our law offices today.

Michael L. Dworkin and Associates
465 California Street, Suite 210
San Francisco, CA 94104
(877) 217-9214 phone
(415) 421-2560 fax

E-mail




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