California Aviation Law Attorney

Avialex Announcement

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

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…