05/07/2014 09:45 4252271007 

RoBERT SPITZER 

FAA OFFICE Of REGJONAL COUNSEL 

)60) LlNDAVE., SW 

RENION, W ASl!!NGTON 98057 

TELEPHONE: (425) 227-!417 

FACSIMILE: ( 425) 227-] 007 

ANM7 

UNITED STATES OF AMERICA 

DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

In the Matter of: 

Sky West Airlines, Inc. 

Factual Background 

FAA Case No. 2012NM060025 

FDMS No. FAA-2013-0292 

Judge Richard Goodwin 

ADMINISTRATOR'S POST TRIAL BRIEF 

PAGE 02/07 

This case arose out a of routine visit to the Salt Lake City Airport by Aviation Safety 

Inspector Aaron Perkins to conduct surveillance of Sky West's deicing procedures on 

December 7, 2011. (Tr. 26-27) During Inspector Perkin's visit, he observed frost on the upper 

wing surfaces of a Bombardier CL-600-2B 19 aircraft, identification number N426SW 

(Exhibit A-9) which was preparing to push ba.ck from the gate as Flight 7770 (Tr. 28-31). 

Inspector Perkins observed the aircraft push back from the gate, and taxi out to the runway 

without being deiced. The aircraft subsequently took off without receiving an application of 

deicing fluid (Tr. 34-3 7). Sky West's Operations Specifications, through its Ground Deicing 

Program, prohibited Sky West from taking off an airplane with frost present on the aircraft's 

upper wing surface (Ans. 2). 

Sky West airlines operated flight 7770 on December 7, 2011, without ddcing the 

aircraft. 

It is uncontested (Ans. 2) that Respondent operated the aircraft on the subject flight. Inspector 

Perkins testified that the aircraft did not deice befOre taking off (Tr. 34-38), and none of 

Sky West's witnesses testified the aircraft was deiced prior to departure. 

Inspector Perkins testified that prior to the aircraft pushing back from the gate, at 

approximately 7:41 AM, he observed that the subject aircraft had a coating of frost on the 

upper wing surfaces. (Tr. 29) He first observed the frost on the aircraft's wing while walking 

from his car parked behind the aircraft to the aircraft's left wing. (Tr. 29) Inspector Perkins 
05/07/2014 09:45 4252271007 ANH7 PAGE 03/07 

then moved his car behind the aircraft's !1ght wing where he also observed frost on the upper 

wing surface. (Tr. 30) He touched the frost on the aircraft's right upper wing surface (Tr. 30, 

32), which was slightly thicker than a sheet of paper. (Tr. 32-33) Inspector Perkins took a 

photograph of the frost on the aircraft's wing with his phone (Tr. 34, ExhibitA-3). 

None of Respondent's witnesses looked at the wing between the time Inspector Perkins 

noticed the wings were iced and the flight's departure. The flight's captain never left the 

cockpit while the aircraft was on the ground in Salt Lake City (Tr. 282) and was not able to 

see the wings from the cockpit (Tr. 285-286). The flight's copilot did not see frost on the 

wings (Tr. 326); he only left the aircraft twice- once to perform the preflight, and a second 

time to check that the fuel door in front of the wings was closed (Tr. 332-333). 

Inspector Perkins was in the best position to see the accmnulated frost on the wings. The 

captain never left the cockpit and could not see the wings from there. (Tr. 282-286) The 

copilot .left the cockpit twice, both times before Inspector Perkins discovered th.e frost. The 

copilot's preflight inspection did not involve running his hands along the entire upper surface 

of the aircraft's wings, where the frost was actually located (Tr. 330-331 ). Both pilots also 

testified that they wouldn't have been able to see the upper wing surfaces during a routine 

check of the aircraft's fuel door. Respondent also called a Sky West pilot who was flying as a 

passenger on the subject flight. While tbat pilot testified he never observed frost on the 

aircraft's wings, he was either engaged in conversation with the flight crew in the cockpit of 

the aircraft (Tr. 397-401), or seated in an aisle seat, with au additional seat between him and 

the window (Tr. 398). This witness did not testifY that he observed the wings of the aircraft 

from after the point that Inspector Perkins photographed the frost (Tr. 3 97-401 ). 

Inspector Perkins' observations and photographs of frost on the wings ofN426SW are 

unrebutted by Sky West. Sky West was not able to call a single witness who observed the 

aircraft's wings at the same time or after Inspector Perkins observed the frost ou the wings. 

Respondent claims the frost must have melted in the sunlight. This argument fails for two 

reasons: 1) Even if the sun had melted the frost on the wings, the pilots would have needed to 

have confirmed that the frost melted in the sun by conducting another preflight walk around 

and 2) the Respondent's e1<pert's fmdings are simply not credible. 

Respondents' expert witness, Dr. Perry, has never given any professional talks or any 

presentations involving aviation meteorology, and has not conducted any research into 

aviation meteorology since he was a graduate student (Tr. 491A92). Additionally, Dr. Perry 

has not published a single publication on formation of frost or sublimation offrost nor has he 

conducted any research on frost formation or sublimation (Tr. 492-493). Simply put, his 

expertise in the relevant fi.elds of frost fonn.ation or aviation metrology is non-existent. 

Dr. Perry's expert report, Exhibit R-4, details why he believed the frost on the aircraft's wings 

would have sublimated in the time between when Inspector Perkins observed the frost and 

the time whcm the aircraft took off. He testified his expert report compared the ammmt of 

Administrator's Post Trial Brief 

F M v. Sky West Airlines, Inc. 

l' M Case No. 20 .12NM06004l . 

.Page 2 of6 

ROEERT SPITZER, FAA ATTORNEY 

TEL: (425) :1:27-.1417; !'AX: (425) 227-1007 
05/07/2014 09:45 4252271007 ANH7 PAGE 04/07 

energy necessary to sublimate an assumed amount offrost on the wings \\lith th.e arn.ount of 

energy available from solar heating and atmospheric radia11on (Tr. 549-550). 

The report relies upon a number of calculations which depend on several dubious 

assumptions. First: Dr. Perry calculated the amount of energy that the \\ling would have 

observed by assuming the aircraft was in direct sunlight for 17 minutes. (Exhibit R-4, page 7) 

On cross examination he testified that if the time was Jess than he assumed in his report, the 

aircraft would have absorbed less heat from the sun .. (Tr- 554) The cross-examination 

testimony of Captain Gibbs, using the A CARS data in Exhibit A-6, indicates that the aircraft 

only started taxing at 1500 Zulu or 8:00Aivf, and began its takeoff at 1508 or 8:08AM, 

indicating a taxi time of only eight minutes, Jess than half the time assumed in the expert 

report. (Tr. 287-291) 

Dr. Perry's energy calculation assumes the frost was half the thickness of a piece of paper 

(Tr. 559-60). He admitted that if the frost were thicker than his assumption the frost would 

have required more energy to sublimate. (Tr. 562-563). However, Inspector Perkins, the only 

witness to see and touch the frost, established the frost was at least the thickness of a sheet of 

paper if not thicker, at least twice the thickness assumed by Dr. Perry in his report. (Tr. 32-33) 

Dr. Perry's calculation of the amount of energy necessary to sublimate the frost is el(cessively 

low, as a result of his assumption that the frost was thinner than the f;ost actually observed by 

Inspector Perkins. 

In his rebuttal case the Administrator called Dr. Roy Rasmussen, who, unlike the 

Respondent's expert, is well-qualified in the field of frost formation and sublimation on 

aircraft wings. Dr. Rasmussen is an atmospheric scientist at the National Center for 

Atmospheri<:: Research in. Boulder Colorado (Tr. 626) He holds a Ph.D. in atmospheric 

science from the University of California, Los Angeles (Tr. 627), where he specialized i.n 

cloud physics and the formation and melting of hail. (Tr. 627) Unlike the Respondent's expert 

\Vitness, Dr. Rasmussen has spent the past 18 years at the National Center for Atmospheric 

Research studying aircraft icing and de-icing and weather ~ssociat<:d \\lith aircraft winter 

operations (Tr. 628). Dr. Rasmussen has done substantial research on frost and its effects on 

aircraft operations, and has published repons and given presentations on the subject of 

aircraft frost formation. (Tr. 629) Given Dr. Rasmussen's much greater experience a11d 

education concerning aviation weather and aircraft icing, his opinions about the frost on the 

subject aircraft are substantially more credible than Dr. Perry. 

Dr. Rasmussen testified that the fact the frost could be seen on the aircraft's wing indicated 

that Respondent's expert's estimate ofthi<::kness as half the thickness of a sheet of paper was 

inaccurate1 (Tr. 641). He stated that the frost observed on the subject aircraft's wing was 

likely double the amount assumed by the Respondent's expert \Vitness. (Tr. 641-642) 

Doubling the thickness of the frost would have the result of doubling tl1e amount of energy 

1 Doubling the amount of frost to the thickness of a sheet of paper is consistent with Inspector Perkins 

observatio.ns. (Tr. 32-33) 

Administrator's Post Trial Brid 

FAA v. Sky West Airlines, lnc. 

FAA Case No. 2012NMD60041 

Page 3 of6 

ROBERT SPITZER, .fAA ATTORNEY 

TEL: (425) 227-1417: FAX: (425)227-1007 
05/07/2014 09:45 4252271007 ANM7 

needed to sublimate the frost (Tr. 642). Doubling Dr. Perry's oWil calculations means the 

wing would require 28,500 Jolll.es per square meter (J/m2

) to sublinlate the observed frost. 

(Exhibit R-4 Page 7) Respondent's expert calculated there was 21,318 Jim" of energy 

available from tbe Sllll. and radiation energy to sublimate the frost on the wing using his 

generous estimate of time available, meaning there was not enough energy, even using 

Respondent's generous energy calculations and time estimates to sublimate the frost. 

PAGE 05/07 

If the errors described above aren.'t enougb to eviscerate Respondent's theory of the case, Dr. 

Rasmussen also identified substantial errors in the Respondent's expert's calculations 

regarding the portions of his energy calculation concerning radiation energy. Respondent's 

expert calculated the energy absorbed by the wing as the sum of the energy absorbed from the 

sun and the energy absorbed by atmospheric radiation reduced by the energy that the wing 

itself radiated. Dr. Perry calculated that the win~ would have received 284.5 W/m2 from 

atmospheric radiation and have lost 271.9 W lm from its own ~adiation of energy (Exhibit R4 pg. 7). Respondent's calculation of 284.5 W/m2 

was excessively high, beca.use Dr. Perry 

faikd to account for the fact the majority of gases in the atmosphere do not radiate infrared 

radiation in his calculations (Tr. 649). Dr. Rasmussen concluded that the wing wollld have 

actually radi.ated more energy than it received from the atmosphere, resulting in a net cooling 

of the wing, not a heating of the wing as assumed by Dr. Perry (fr. 650-652). The conclusion 

is inescapable; rather than disprove the Administrator's case, the calculations of Respondent's 

expert, when corrected for their numerous errors, actually prove the aircraft departed with the 

frost observed by Inspector Perkins still on the wings. 

The Administrator's proposed sanction of $55,000 is appropriate 

The Administrator has proposed a sanction of $55,000 which consists of a $27,500 sanction 

for a violation of 14 C.F.R § 121.629(b) concurrent with a violation of 14 C.P.R. §119.5(1) and 

a $27,500 sanction for a 14 C.P.R. §119.5(g) violation. 

In this case, Sky West violated 14 C.F.R. §121.629(b) by taking off: the aircraft when frost was 

adhe.ring to the upper surface of the wings of the aircraft. The FAA has assessed a concurrent 

sanction for the takeoff: w:i.tb frost on th.e upper wing surface, which resulted in a violation of 

14 C.F.R §§119.5(1), 91.13, and 12J.629(b). Sky West also violated 14 C.P.R. §119.5(g) when 

it failed to have the frost removed frorn tbe aircraft as required by their operations 

specifications (Exhibit 2, Tr. 66-67), as well as when the copilot faiJ.ed to detect the frost on 

the wings as also required by their operations specifications (Exhibit 2). Th.is is a separate 

violation from the 14 C.F.R. §119.5(1) violation and merits a separate sanction. 

FAA Order 2150.3B's sanction guidance table specifies a Moderate to Maximum sanction for 

a violation of 14 C.F.R. §12L629(b) (Sanction Guidance table Figure B-1-k), and for a 

violation of 14 C.F.R. §119.5(g) and(!) (Sanction Guidance Table Figure B-1-c-(3)). The 

Administrator's Post Trial Brief 

FAA v. Sky West Ai.rlines, Inc. 

FAA Case No. 20l2NM06004l 

Page 4 of6 

ROBERT SPITZER.. FAA AITORNJ!Y 

TEL: (425) 227-1417; FAX: (425) 22H007 
05/07/2014 09:45 4252271007 ANH7 

"moderate" range for large business concerns is $10,000-$18,749, and the "maximum" range 

for large business concerns is $18,750-$27,500.2 

In this case the high end of the Maximum range is appropriate due to the high degree of 

h.v..ard posed by Sky West's operation ofthe aircraft with frost on the wings. The FAA's icing 

expert, Thomas Bond testified that frost on a wing of an aircraft could result in perfonnance 

and handling changes in the aircraft, and that the Bombardier CRJ is particularly sensitive to 

frost on the wings. (Tr. 207-209) Frost, even on the trailing edge of the wing, could reduce 

the aircraft's ability to maintain flight. (Tr. 210-215) Mr. Bond also testified that there were 

two Bmnbardier CRJ hull-loss accidents caused by frost on the wings, one of which resulted 

in fatalities for all aboard (Tr. 215-217). 

Even Respondent's own witness, Pilot Burr testified that the Sky West Deicing Program was 

created for safety reasons, and that flying with frost on the wings as they appear in Exhibit 3, 

Inspector Perkins' photo, would be unsafe an,d dangerous for the passengers onboard the 

aircraft. (Tr. 299-300 and 316) 

Due to the extreme hazard presented by Sky West's operation of the aircraft with frost on. the 

wings, and the fa.ct that such an operation represented a substantial disregard for safety, a 

maximum civil penalty is appropriate. 

Accordingly, the Administrator respectfully requests that the Honorable Judge Goodwin 

uphold his sanction of $55,000 against Sky West Airlines. 

Respectfully submitted this 7til day of May 2014. 

DW1GBT WILLIAM:S 

Regional Counsel 

By: 

Robert Spitzer 

Attorney 

Office of the Regional Counsel (AMN-7) 

Federal Aviation Administration 

1601 Lind Avenue, SW 

Renton, W A 98057 

Phone: (404) 227"1417 

Fax: (404) 227"1007 

E-mail Address: robert.spitzer@faa.gov 

'As amended by 14 C.I'.R. § ]3.305 

PAGE 05/07 

Administrator's Post Trial Brief 

FAJ\. v. SkyWestAirlincs, Inc. 

FAA Case No. 20J2NM060041 

PageS cf6 

ROBERT SPrtZER, J' AA ATTORNEY 

TEL: (425) 227-1417; PAX: (425) 227-1007 
05/07/2014 09:45 4252271007 ANM7 

CERTIFICATE OF SERVICE 

I hereby certifY that the foregoing Administrator's Post Trial Brief has been served via 

facsimile and certified mail - Return Receipt Requested this date, to the following: 

Federal Aviation Administration (Original and one copy) 

Attn: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building- Suite 2W1000 

800 Independence Avenue SW 

Washington, D.C. 20591 

Fax: (202) 493-5142 

Todd Emerson, Esq. 

Sky West Airlines, Inc. 

444 South River Road 

St. George, UT 84 790 

TEL: (435) 634-3530 

FPC<: (435)634-3505 

Dated this 7'h day ofMay 2014. 

Terr· Kirk ! 

Offi e of Regional Counsel (ANM-7) 

Federal Aviation Administration 

1601 Lh1d Ave. SW 

Renton, W A 98057 

(425) 227-2160 

PAGE 07/07 

Administrator~s Post Tria.t Brief 

.FAA. v. Sky West Alrlinest Inc. 

FAA Case No. 2012NM060041 

Page 6 of6 

ROBERT SPITZER, FAA A HORNEY 

TEL: (425) 227·!4!7; FAX: (425) 227·1007