05/07/2014 09:45 4252271007

RoBERT SPITZER FAAOFFICE OfREGJONALCOUNSEL )60) LlNDAVE., SW RENION, WASl!!NGTON 98057 TELEPHONE: (425) 227-!417 FACSIMILE: (425) 227-] 007 ANM7



## UNITED STATES OF AMERICA DEPARTMENT OF TRANSPORTATION 

## OFFICE OF HEARINGS

WASHINGTON, D.C.

Inthe Matter of: SkyWest Airlines, Inc.

FactualBackground 

### 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 ofroutine visit to the Salt Lake CityAirport

### by Aviation Safety InspectorAaron Perkins to conduct surveillance ofSkyWest's deicing procedures on December 7, 

### 2011. (Tr. 26-27) During InspectorPerkin's visit, he observed frost on the upper wing surfaces ofa Bombardier 

### CL-600-2B 19 aircraft, identification number 

### N426SW (Exhibit

### A-9) which was preparing to pushba.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 offwithout receiving an application of deicing fluid (Tr. 34-37). SkyWest's Operations Specifications, through its Ground Deicing Program, prohibited SkyWest from taking offan airplane with frost present on the aircraft's upper wing surface (Ans. 2). 

### SkyWest 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 SkyWest's witnesses testified the aircraft was deiced priorto departure. Inspector Perkins testified that priorto the aircraft pushing back from the gate, at approximately 7:41 AM, he observed that the subject aircraft had a coating offrost on the upper wing surfaces. (Tr. 29) He first observedthe frost on the aircraft's wing while walking from his car parked behind the aircraft to the aircraft's left wing. (Tr. 

### 29) Inspector Perkins05/07/2014 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 ofpaper. (Tr. 32-33) Inspector Perkins took a photograph ofthe frost on the aircraft's wing with his phone (Tr. 34, ExhibitA-3).
None ofRespondent'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 onthe 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 onthe wings (Tr. 326); he only left the aircraft twice- once to perform the preflight, and a second time to check thatthe fuel door in front ofthe wings was closed (Tr. 332-333). Inspector Perkins was in the bestposition 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 ofthe 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 ofthe aircraft's fuel door. Respondent also called a SkyWest 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 ofthe aircraft from after the point that InspectorPerkins photographed the frost (Tr. 

### 397-401 ). Inspector Perkins' observations and photographs offrost on the wings ofN426SW are unrebutted by Sky West. SkyWest was not able to call a single witness who observed the aircraft's wings at the same 

### time or after InspectorPerkins 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' expertwitness, 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 notpublished a single publication on formation offrost or sublimation offrostnor has 

### he conducted any research on frost formation or sublimation (Tr. 492-493). Simply put, his expertise inthe relevant fi.elds offrost 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 inthe 

### time between when Inspector Perkins observed the frost and the time 

### whcm the aircrafttook off. He testifiedhis expert report

### compared the ammmt of

Administrator's Post Trial Brief F

M v. SkyWest Airlines, Inc. l'

M Case No. 20.12NM06004l

. .Page 2 of6 ROEERT SPITZER, FAAATTORNEY TEL: (425) :1:27-.1417; !'AX: (425) 227-100705/07/2014 09:45 4252271007 ANH7 PAGE 04/07

energy necessary to sublimate an assumed amount offrost onthe wings \\lith th.e arn.ount of energy available from solar heating and atmospheric radia11on (Tr. 549-550).
The report relies upon a number ofcalculations which depend on several dubious assumptions. First: Dr. Perry calculated the amount ofenergy that the \\ling would have observed by assuming the aircraft was in direct sunlight for 17 minutes. (Exhibit R-4, page 7) On cross examinationhe testified that ifthe time was Jess than he assumed in his report, the aircraftwould have absorbed less heat from the sun

.. (Tr- 554) The cross-examination testimony ofCaptain Gibbs, using theACARS data in ExhibitA-6, indicates that the aircraft only started taxing at 1500 Zulu or 8:00Aivf, and began its takeoffat 1508 or 8:08AM, indicating a taxi time ofonly eight minutes, Jess than halfthe time assumed inthe expert report. (Tr. 287-291)

Dr. Perry's energy calculation assumes the frost was halfthe thickness ofa piece ofpaper (Tr. 559-60). He admitted that ifthe frost were thickerthan his assumption the frost would have required more energy to sublimate. (Tr. 562-563). However, Inspector Perkins, the only witnessto see and touch the frost, established the frost was at leastthe thickness ofa sheet of paperifnot thicker, at leasttwice the thickness assumed by Dr. Perry in his report. (Tr. 32-33) Dr. Perry's calculation ofthe amount ofenergy necessary to sublimate the frost is el(cessively low, as a result ofhis assumption that the frost was thinner than the f;ost actually observed by InspectorPerkins.

Inhis rebuttal case theAdministrator called Dr. Roy Rasmussen, who, unlike the Respondent's expert, is well-qualified inthe field offrost 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 ofCalifornia, LosAngeles (Tr. 627), where he specialized i.n cloud physics and the formation and melting ofhail. (Tr. 627) Unlike the Respondent's expert \Vitness, Dr. Rasmussen has spentthe past 18 years at the National Center forAtmospheric Research studying aircraft icing and de-icing and weather**~ssociat<:d** \\lith aircraft winter operations (Tr. 628). Dr. Rasmussen has done substantial researchonfrost and its effects on aircraft operations, and has published repons and given presentations onthe subject of aircraft frost formation. (Tr. 629) Given Dr. Rasmussen's much greater experience a11d education concerning aviation weather and aircraft icing, his opinions aboutthe frost onthe 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 thatRespondent's expert's estimate ofthi<::kness as halfthe thickness ofa sheet ofpaperwas 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 ofthe frost would have the result ofdoubling 

### tl1e amount ofenergy

1Doubling the amount offrost to the thickness ofa sheet ofpaper is consistent with Inspector Perkins observatio.ns. (Tr. 32-33)

Administrator's Post Trial Brid FAAv. SkyWest Airlines, lnc. FAA Case No. 2012NMD60041 Page 3 of6 ROBERT SPITZER, .fAAATTORNEY TEL: (425) 227-1417: FAX: (425)227-100705/07/2014 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 observedfrost. (Exhibit R-4 Page 7) Respondent's expert calculatedthere was 21,318 

### Jim" ofenergy available from tbe Sllll. andradiation energy to sublimate the frost on the wing using his generous estimate oftime available, meaning there was notenough energy, even using Respondent's generous energycalculations and time estimates to sublimate the frost. PAGE 05/07

Ifthe errors described above aren.'t enougb to eviscerate Respondent's theory ofthe case, Dr. Rasmussen also identified substantial errors in the Respondent's expert's calculations regardingthe portions ofhis energy calculation concerning radiation energy. Respondent's expert calculated the energy absorbedbythe wing as the sum ofthe energy absorbed from the
sun andthe energy absorbed by atmospheric radiation reduced by the energy that the wing itselfradiated. Dr. Perry calculatedthatthe**win~** wouldhave received 284.5 W/m2 from atmospheric radiation and have lost 271.9 Wlm from its own**~adiation** ofenergy (ExhibitR4 pg. 7). Respondent's calculation of284.5 W/m2 was excessively high, beca.use Dr. Perry faikd to account for the fact the majority ofgases inthe atmosphere do not radiate infrared radiation in his calculations (Tr. 649). Dr. Rasmussen concluded 

### that the wing wollldhave actuallyradi.ated more energythanitreceived from the atmosphere, resulting in a net 

### cooling ofthe wing, not a heating ofthe wing as assumed by Dr. Perry (fr. 650-652). The conclusion is inescapable; rather than disprove theAdministrator's case, the calculations ofRespondent's expert, when corrected for their numerous errors, actually prove the aircraftdeparted withthe frost observed byInspector Perkins still onthe wings.

The Administrator's proposed sanction of$55,000 is appropriate
TheAdministratorhas proposed a sanction of$55,000 which consists ofa $27,500 sanction for a violation of 14 C.F.R 

### §121.629(b) concurrentwith 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, SkyWest violated 14 C.F.R. §121.629(b) by taking off: the aircraft when frost was adhe.ring 

### to the upper surface ofthe wings ofthe aircraft. The FAAhas assessed a concurrent sanction for the takeoff:w:i.tb frost on th.e upperwing surface, which resulted 

### in a violationof 14 C.F.R §§119.5(1), 91.13, and 12J.629(b). SkyWest also violated 14 C.P.R. §119.5(g) when 

### itfailed to have the frost removed frorn tbe aircraft as required bytheir operations specifications (Exhibit 2, Tr. 66-67), as well as whenthe copilot 

### faiJ.ed to detect the frost on the wings as also required by their operations specifications (Exhibit 2). Th.is is a separate violationfrom the 14 C.F.R. §119.5(1) violation and merits a separate sanction.

FAAOrder 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 FAAv. SkyWestAi.rlines, Inc. FAACase No. 20l2NM06004l Page 4 of6 ROBERT SPITZER.. FAA AITORNJ!Y TEL: (425) 227-1417; FAX: (425) 22H00705/07/2014 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 ofthe Maximum range is appropriate due to the high degree of h.v..ard posed by 

### SkyWest's operation ofthe aircraft with frost on the wings. The FAA's icing expert, Thomas Bond testified that frost on a wing ofan aircraft could result inperfonnance and handling changes in the aircraft, and that the Bombardier CRJ is particularly sensitive to frost on the wings. (Tr. 

### 207-209) Frost, even onthe trailing edge ofthe 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 ofwhich resulted in fatalities for all aboard (Tr. 

### 215-217).

Even Respondent's 

### own witness, Pilot Burr testified that the SkyWest 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 onboardthe aircraft. (Tr. 299-300 and 316)

Dueto the extreme hazard presented by Sky

### West's operation ofthe 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 SkyWest Airlines. Respectfully submitted this 

### 7til day ofMay 

### 2014.

DW1GBT WILLIAM:S Regional Counsel

By: Robert Spitzer Attorney Office ofthe 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 amendedby 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'AAATTORNEY TEL: (425) 227-1417; PAX: (425) 227-100705/07/2014 09:45 4252271007 ANM7



### CERTIFICATE OF SERVICE

I hereby certifY that the foregoingAdministrator's Post Trial Briefhas 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 WrightBuilding- Suite 2W1000 800 Independence Avenue 

### SW Washington, D.C. 20591 Fax: (202) 493-5142

Todd Emerson, 

### Esq. SkyWest Airlines, Inc. 444 

### South River Road St. George, UT 84790 TEL: (435) 634-3530 

## FPC<: (435)634-3505

Dated this 7'h day ofMay 2014.

Terr· Kirk 

## ! Offi e ofRegional Counsel (ANM-7) 

### Federal Aviation Administration 1601 

### Lh1d Ave. 

### SW Renton, W A 98057 (425) 227-2160 PAGE 07/07**Administrator~s**PostTria.t Brief .FAA. v. SkyWest Alrlinest Inc. FAA Case No. 2012NM060041 Page 6 of6 ROBERT SPITZER, FAAAHORNEY TEL: (425) 227·!4!7; FAX: (425) 227·1007