Todd C. Emerson, #8175 SKYWEST AIRLINES, INC. 444 South River Road St. George, Utah, 84790 Telephone: (435) 634-3530 Facsimile: (435) 634-3505-andMichael L. Dworkin #64070 MICHAEL L. DWORKIN AND ASSOCIATES 465 California Street, Suite 210 San Francisco, California 94118 Telephone: (415) 421-2500 Facsimile: (415) 421-2560
UNITED STATES OF AMERICA DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, D.C.
IN THE MATTER OF SKYWEST AIRLINES, INC (Civil PenaltyAction)

-CONSOLIDATED

# RECEIVED AUG -6 2014 

## HEARING DOCKET

FAA CASE NO. 2011NM060038 

## I FDMS FAA-2012-0874 FAA CASE NO. 2011NM060047 

## I FDMS FAA-2012-0872 FAA CASE NO. 2011NM060063 

### I FDMS FAA-2012-0873 FAA CASE NO. 2011NM060072 

## I FDMS FAA-2012-0869 FAA CASE NO. 2011NM060073 

### I FDMS FAA-2012-0868 FAA CASE NO. 2011NM060081 

## I FDMS FAA-2012-0904 FAA CASE NO. 2011NM060095 

## I FDMS FAA-2013-0617 FAA CASE NO. 2012NM060014 

### I FDMS FAA-2013-0619
SKYWEST AIRLINES, INC.'s POST-TRIAL BRIEFTABLE OF CONTENTS
I. INTRODUCTION 3 II. BACKGROUND 5 III. SKYWEST'S WEIGHT &BALANCE PROGRAM 11 IV. BAGGAGE COUNT DISCREPANCIES DID NOT ADVERSELY AFFECT AIRCRAFT WEIGHT AND BALANCE, CENTER OF GRAVITY OR AIRCRAFT PERFORMANCE 14 A The Discrepancies Were De Minimus 14 B. Case-by-Case Analysis 

### 18 

## v. SKYWEST'S PROPOSED W&B MANUAL REVISION 

### 29 VI. SKYWEST'S CORRECTIVE ACTIONS 

### 31 VII. CONCLUSION--CASES INVOLVING SIMPLE INNOCENT HUMAN ERROR DO NOT MERIT THE SEVERE SANCTION THAT COMPLAINANT SEEKS 41

FAA Case Nos.: 2011NM060038 

### I FDMS FAA-2012-0874; 2011NM060047 

### I FDMS FAA-2012-0872; 2011NM060063 

### I FDMS FAA-2012-0873; 2011NM060072 

### I FDMS FAA-2012-0869; 2011NM060073



### I FDMS FAA-2012-0868; 2011NM060081 

### I FDMS FAA-2012-0904; 2011NM060095 

### I FDMS FAA2013-0617; and 2012NM060014 

### I FDMS FAA-2013-0619 (Consolidated) SKYWEST AIRLINES, INC.'S POST TRIAL BRIEF Page2I. INTRODUCTION "It's like deja vu, all overagain" -Berra, Y. 

### After patiently sittingthrough a second hearing, with many ofthe same witnesses, and wadingthrough a mountain ofduplicative evidence, perhaps the Courtwonders whyithas been asked to answer the same questions 

### it previously answered, quite clearly, on May 2, 2013. Includingthe first hearing, theAL) has now examined evidence ofnineteen flights, all ofwhich could have been examined at the first hearing in Salt Lake City in October 2012. But in the interest ofclarity and judicial economy, SkyWest and the FAA 

### agreed to consolidate five ofthe nineteen flights and bringtwo bellwether cases. In the first case, SkyWest contested liability. In the second case, SkyWest contested onlythe size ofthe proposed penalty. This waythe parties could get answers aboutliability and sanction from a neutral and authoritative arbiter- and then resolve the remaining, identical, cases without burdening the courtwith repetitive and cumbersome litigation. At leastthatwas the plan. Unfortunately, the FAA 

### has utterlyrejected this Court's prior decisions. Notably itdid notappeal 

### either decision, butpreferred to reprocess its arguments and take the proverbial "second bite atthe apple" in the hope this Court will reverse

FAA Case Nos.: 2011NM060038 

### I FDMS FAA-2012-0874; 2011NM060047 

### I FDMS FAA-2012-0872; 2011NM060063 

### I FDMS FAA-2012-0873; 2011NM060072 

### I FDMS FAA-2012-0869; 2011NM060073



### I FDMS FAA-2012-0868; 2011NM060081 

### I FDMS FAA-2012-0904; 2011NM060095 

### I FDMS FAA2013-0617; and 2012NM060014 

### I FDMS FAA-2013-0619 (Consolidated] SKYWEST AIRLINES, INC.'S POST TRIAL BRIEF 

### Page 3itself. As it recycles through its arguments, the FAA looks to 17 cases for supportbut ignores the two Initial Decisions that are directly on point: In the Matters of SkyWest Airlines, consolidated cases FAA-2011-0485, FAA-2011-0486 and FAA-2011-0779. Indeed, the FAA does notdeign to acknowledge the existence ofthese cases, not even in a footnote. Itis as ifwe stand before this Court for theveryfirst time on fresh matters. Complainanthas such little regard for the previous rulings thatithas increased its sanction demand to an amount 160 times greater than the May 2, 2013, sanction, arguingthatthe increased penaltyisjustified because SkyWest did not learn its lesson- but only days separate the flights from the first consolidated cases to the instant cases now pending, and again, everyflight predated the firsthearing. As always, Complainant demands thatthis Court give "due deference" to its proposed penalty, but Complainant gives absolutely none to the Court's previous Initial Decisions. The Courtwould notbe burdened now ifComplainanthad proposed a penalty in line, or even in the same galaxy, as the prior Initial Decisions butthe Complainant remains unregenerate. SkyWest comes again to askrelieffrom the draconian penalties meted out on technical, non-safetyviolations.

FAA Case Nos.: 2011NM060038 

### I FDMS FAA-2012-0874; 2011NM060047 

### I FDMS FAA-2012-0872; 2011NM060063 j FDMS FAA-2012-0873; 2011NM060072 

### I FDMS FAA-2012-0869; 2011NM060073



### I FDMS FAA-2012-0868; 2011NM060081 

### I FDMS FAA-2012-0904; 2011NM060095 

### I FDMS FAA2013-0617; and 2012NM060014 

### I FDMS FAA-2013-0619 (Consolidated) SKYWEST AIRLINES, INC.'S POST TRIAL BRIEF Page 4

### II. BACKGROUND These consolidated matters arise from SkyWest's aircraftloading procedures, specifically, the counting and/or placement ofitems ofbaggage (including ballast, COMAT and live animals) and recording ofthe numbers ofsuch items onthe Cargo Load Reports (CLR's) on fourteen (14) flights over an eight and one-half (8Yz) month period in 2011. From the testimonies ofthe FAA inspectors who observed the offloading ofbaggage on these flights, there is no dispute thatthe amounts ofbaggage offloaded from each ofthese flights differed from whatwas recorded on the flight crews' copies ofthe Cargo Load Reports (CLR). However, SkyWest submits thatthese discrepancies were the product of human error1 

### as the rampers followed approved procedures- butmade mistakes.

1 

### Compounding inherenthuman errors in counting is the ramp environment itself-i.e., multiple activities involving multiple aircraftthat are arriving, departing and being serviced, weather and environmental conditions, exposureto the elements, differing conditions oflight and darkness and noise, which witnesses described as hostile or chaotic (For example, please see testimony ofSkyWest Manager ofGround Operations Training, jayChristensen, Tr. 428:22-429:20, among several ofthe SkyWestwitnesses to testified to same). Complainant did not contest or rebutthis extensive testimony. In fact, SkyWest's expert, Carl Salamone (who holds a degree in 

### Aviation Human Factors [Tr. 232]), testified thathe was not surprised to seebaggage countdiscrepancies when humans are loading aircraft (Tr. 

### 280:19-281:15).

FAA Case Nos.: 2011NM060038 

### I FDMS FAA-2012-0874; 2011NM060047 

### I FDMS FAA-2012-0872; 2011NM060063/ FDMS FAA-2012-0873; 2011NM060072 

### I FDMS FAA-2012-0869; 2011NM060073



### I FDMS FAA-2012-0868; 2011NM060081 

### I FDMS FAA-2012-0904; 2011NM060095 

### I FDMS FAA2013-0617; and 2012NM060014 

### I FDMS FAA-2013-0619 (Consolidated) SKYWEST AIRLINES, INC.'S POST TRIAL BRIEF 

### Page 5

### This is where Complainant continues to argue the fiction that failed before: Massive penalties should be imposed because SkyWest "did notknowthe weight and balance ofthe aircraftbefore departure." (Complainant's PostTrial Briefat '1[1). Ofcourse SkyWest did not "know" the weight ofits aircraft prior to departure because SkyWest, like most carriers, utilizes an average weights program, as reflected in SkyWest's Weight &Balance Operations Manual, Special Procedure [SP] 4100 (Exhibit R-1-1; hereinafter, "the W&B Manual") to govern the loading and computation ofweight and balance ofits aircraft. 2 

### SkyWest can

2 

### Under ParagraphA098 ofits Operations Specifications ("OpSpecs") SkyWest is authorized to utilize average weights for passengers, carry-on personal items, planeside loaded items and checked baggage. Average weights for baggage are as follows:

- planeside-loaded items and standard bags: 30 pounds per item. (It should be noted thatwhile carry-on items [including items placed in the overhead bins] have zero weight, ifthose items [for any reason] are removed from the overhead bins and placed in the cargo hold, theythen are given a 30-pound weight. Likewise a carry-on item thatwould fit in the overhead bin ofone ofSkyWest's regionaljets and given a zero weightwould be given a 30-pound weight onthe EMB-120 Brasilia as the overhead bins onthe Brasilia are considerably smaller. See Tr. 378:21-380:6); -heavy checked bags: Although heavybags are defined as anybagweighing more than 50 pounds, butless than 100 pounds, they are accorded a weight of60 pounds per item; and -live animals: 30-60 pounds per animal. (However, as SkyWest's Jeremy Barclay testified, ifthe live animal is carried on board the passenger compartment, it is accorded zero weight and ifthe animal is shipped as cargo, it and its kennel or container, are assigned actual weight (Tr. 380:17-381:14]).

FAA Case Nos.: 2011NM060038 

### I FDMS FAA-2012-0874; 2011NM060047 

### I FDMS FAA-2012-0872; 2011NM060063 

### I FDMS FAA-2012-0873; 2011NM060072 

### I FDMS FAA-2012-0869; 2011NM060073



### I FDMS FAA-2012-0868; 2011NM060081 

### I FDMS FAA-2012-0904; 2011NM060095 

### I FDMS FAA2013-0617; and 2012NM060014 

### I FDMS FAA-2013-0619 (Consolidated) SKYWEST AIRLINES, INC.'S POST TRIAL BRIEF 

### Page 6

### follow this program to a ''T" 

### and still notknow the actual weight ofthe aircraft, because the program relies on estimates. For example, the program presumes that Complainant's counsel, Mr. Harper, and SkyWest's co-counsel, Mr. Emerson, weigh the same amount, when clearly there is more than two checked bags worth ofvariance between them. Taking it to the extreme, a 90-pound ballerina and a 300-pound linebacker weigh the same! Instead of actual weights (which would involve weighing passengers, resulting in a second American revolution) the FAA has allowed the airlines to develop an average weight program where,
as here, massive buffers are in place to ensure thatoperational limitations ofthe aircraft are
never exceeded. Thanks to these buffers, the aircraft is always heavier on paperthan it is in reality, and as the FAA admits, none ofthe alleged discrepancies resulted in an overweight
or out-of-balance operation. The incongruity arises when the FAA reads precision into an estimated program and demands $40,000 for a 

### zero pound discrepancy (Flight 4540).

Average weights for passengers are as follows: -adult: 195 pounds (winter); 190 pounds (summer). In other words a ballerina and a linebacker are accorded the same weight; and -child: 87 pounds (winter) and 82 pounds (summer). In otherwords, for weight and balance purposes, a three-year old and a 12-year old are treatedthe same.

FAA Case Nos.: 2011NM0600381 FDMS FAA-2012-0874; 2011NM060047 

### I FDMS FAA-2012-0872; 2011NM0600631 FDMS FAA-2012-0873; 2011NM0600721 FDMS FAA-2012-0869; 2011NM060073



### I FDMS FAA-2012-0868; 2011NM0600811 FDMS FAA-2012-0904; 2011NM0600951 FDMS FAA2013-0617; and 2012NM0600141 FDMS FAA-2013-0619 (Consolidated) SKYWEST AIRLINES, INC.'S POST TRIAL BRIEF Page 7As noted above, each ofthe subject flights predate the October 2, 2012 hearing and the Initial Decisions ofMay 2, 2013 in FDMS Dockets Nos. FAA-2011-0485, FAA-2011-0486, and FAA-2011-0680 & 0779 3, where the FAA lodged the same alleged violations (Federal Aviation Regulations [FAR] Sections 119.5(g) 4, 119.5(1) 5, 121.693(a), 121.693(c) and 121.693(d) 6 7) for similar facts and identical issues and sought civil penalties in the amount of$33,000.00 per flight.

3 By Order served May 5, 2014, the Administrative Law Judge granted SkyWest's Requestfor Judicial Notice dated April18, 2014, which included the Initial Decisions (Item 1.a.).
4 119.5(g)- No person may operate as a direct air carrier or as a commercial operatorwithout, or in violation of, an appropriate certificate and appropriate operations specifications. No person may operate as a direct air carrier or as a commercial operator in violation ofanydeviation or exemption authority, ifissued to thatperson or thatperson's representative.
5 119.5(1) -No person mayoperate an aircraftunder this part, part 121 ofthis chapter, or part 135 ofthis chapter in violation ofan air carrier operating certificate, operating certificate, or appropriate operations specifications issued under this part.
6 121.693 -The load manifest must contain the following information concerningthe loading ofthe airplane attakeofftime: 

### (a) Theweight ofthe aircraft, fuel and oil, cargo and baggage, passengers and crewmembers; (c) The total weight computed under approved procedures; and (d) Evidence thatthe aircraftis loaded accordingto an approved schedule thatinsures thatthe center ofgravityis within approved limits.

FAA Case Nos.: 2011NM060038 

### I FDMS FAA-2012-0874; 2011NM060047 

### I FDMS FAA-2012-0872; 2011NM060063 

### I FDMS FAA-2012-0873; 2011NM060072 

### I FDMS FAA-2012-0869; 2011NM060073



### I FDMS FAA-2012-0868; 2011NM060081 

### I FDMS FAA-2012-0904: 2011NM060095 

### I FDMS FAA2013-0617; and 2012NM060014 

### I FDMS FAA-2013-0619 (Consolidated) SKYWEST AIRLINES, INC.'S POST TRIAL BRIEF Page 8In the Initial Decisions in these prior cases, theAdministrative Lawjudge: (1) dismissed all ofthe FAR 121.693 charges, finding thatthe load manifests had been compiled in accordance with SkyWest's Operations Specifications and its Weight &Balance ["W&B"] Manual to ensure that the aircraftweights and centers ofgravitywere within limits; (2) concluded thatthe distinction between Sections 119.5(g) and 119.5(I) was "inconsequential" and "as [sic] such penalizing
...[SkyWest] for both violations would be unjustified";S (3) found thatthe violations were technical in nature, as theyhad no material effect on weight and balance or on aircraftperformance. In no instance was safetyofflight at even the slightest risk;

7 With respectto Complainant's allegation ofviolation ofSection 121.693(d), cited in footnote 4 above, Complainant adduced absolutely no testimony or evidence as to "an approved schedule". What, ifanything, this schedule maybe or how SkyWest allegedly failed to use ithas notbeen shown by Complainant and as such, this allegation ofviolation should be summarilydismissed. 8 Ignoring the Administrative Lawjudge's findings, Complainant again asserts that Sections 119.S(g) and 119.5(1) are separate violations as each requires proofofa fact the other does not; the critical distinction being that (g) regulates operations as an air carrier and (I) regulates the operation ofan aircraft. In other words, Complainant has alleged that SkyWest violated section (I) for operating an air carrier aircraft in violation ofits Ops Specs and section (g) for operatingan air carrier aircraft in violation ofOps Specs. Obviously, SkyWest cannot operate an air carrier aircraftwithout operating an aircraft. This is a distinction without a difference. What it comes down to is a renewed attemptby Complainantto stack and multiply penalties for the same act.

FAA Case Nos.: 2011NM060038 

### I FDMS FAA-2012-0874; 2011NM060047 

### I FDMS FAA-2012-0872; 2011NM060063 

### I FDMS FAA-2012-0873; 2011NM060072 

### I FDMS FAA-2012-0869; 2011NM060073



### I FDMS FAA-2012-0868; 2011NM060081 

### I FDMS FAA-2012-0904; 2011NM060095 

### I FDMS FAA2013-0617; and 2012NM060014 

### I FDMS FAA-2013-0619 (Consolidated) SKYWEST AIRLINES, INC.'S POST TRIAL BRIEF Page 9

### (4) determined that Complainant's seeking multiple penalties for multiple violations from a single instance ofnoncompliance was akin to compoundingthe violation, contraryto the prohibitions contained in FAA Order 2150.38, pp.7-10; and (5) found that one civil penaltyin a minimal amount of$250 perviolation suffices, reducing the civil penalties from $33,000 per flight to $250 per flight. Although Complainant did not appeal the Initial Decisions, it now seeks even greater penalties for substantiallyidentical cases that arose contemporaneouslywiththe prior ones, totally ignoring the Judge's findings. In the prior cases, Complainant sought penalties of$33,000 per flight, which the Judge reduced to $250 per flight. Now, Complainant seeks penalties of$40,000.00 per flight, for a total penalty of$560,000.00. Deference to the Court, or perhaps humility, might have given Complainant some pause before itdemanded
a penalty 160 times greater per flight than this Court ordered on May 2, 2013, but Complainantproceeds as ifthose decisions neverhappened.
As in the prior cases, safety offlight was neither affected nor compromised--any weightdiscrepancies caused bythe inadvertentmiscounting ofbags were nominal and had
no effect on the weight and balance, or performance and handling ofthe aircraft. There is absolutely nothing that distinguishes the instant cases from the prior ones. These cases do not arise from a culture ofnoncompliance. Rather, they are the productofinescapable

FAA Case Nos.: 2011NM060038 

### I FDMS FAA-2012-0874; 2011NM060047 

### I FDMS FAA-2012-0872; 2011NM060063 

### I FDMS FAA-2012-0873; 2011NM060072 

### I FDMS FAA-2012-0869; 2011NM060073



### I FDMS FAA-2012-0868; 2011NM060081 

### I FDMS FAA-2012-0904; 2011NM060095 

### I FDMS FAA2013-0617; and 2012NM060014 

### I FDMS FAA-2013-0619 (Consolidated) SKYWEST AIRLINES, INC.'S POST TRIAL BRIEF 

### Page 10

### humanfactors-here simple human errors in counting and arithmetic. As long as humans
are involved, therewill be counting errors, no matter howmuch you trainthem or how much technologyyou putin theirhands. The only question is how much should it cost when itinevitablyhappens? This Court has already answered that question. These cases should be disposed of with minimal civil penalties for inadvertenttechnical noncompliance.

III. SKYWEST'S WEIGHT & BALANCE PROGRAM 

### The FAA has long recognized thatthe use ofactual baggage and passengerweights is impractical, which is whythe FAA AC120-27E, Average Weight Programs 

### permits average weightprograms.9 In essence, in publishing this Advisory Circular, which permits a 2% margin oferror, and in approving air carrier average weights programs, the FAA has acknowledged thatthere is no automatic danger caused by small discrepancies between the load manifest and actual aircraftweight. Under these average weightprograms, itis

9The Court, in its Order dated May 5, 2014 has given AC120-27E judicial notice.

FAA Case Nos.: 2011NM060038 I FDMS FAA-2012-0874; 2011NM060047 I FDMS FAA-2012-0872; 2011NM060063 

### I FDMS FAA-2012-0873; 2011NM060072 

### I FDMS FAA-2012-0869; 2011NM060073

I FDMS FAA-2012-0868; 2011NM060081 I FDMS FAA-2012-0904; 2011NM060095 I FDMS FAA2013-0617; and 2012NM060014 

### I FDMS FAA-2013-0619 (Consolidated) SKYWEST AIRLINES, INC.'S POST TRIAL BRIEF 

### Page II

### implicitly understood thatthe load manifest may not reflect actual aircraft weight. 10 

### Here,
none ofthe flights at issue exceeded the 2% margin specified in the Advisory Circular. SkyWest's Weight &Balance ("W&B") Manual instructs loading personnel to write the total number ofstandard checked, heavy checked and planeside valet bags, live animals and other items such as COMAT, ballast and freight loaded onto the aircraft on the CLR. This is a manual process and ground personnel are encouraged to use the tally stroke sheet
on the reverse side ofthe CLR (Tr. 395:4-10). 

### Scanners, originally designed to track movement ofbaggage through the system are also used (depending upon which codesharing carrier is actually performingthe aircraftloading and baggage count (Tr. 395:16-396:1)). 

### While the CLR (which is prepared in duplicate, i.e., originating station copy and flight crewcopy) is supposed to reflect the baggage and cargo loaded onto the aircraft, there are provisions for lastminute changes afterthe CLR has been prepared and

to 

### SkyWest's Director ofSafety Policy and Security, Jeremy Barclay, testified thatthe weight reflected in a load manifest (even ifcorrectlyprepared) reflects the average weights and may not correspond to the actual weight ofthe aircraft. Tr. 381:22-382:10. 

### As such, Complainant's statement: "As a regulatory minimum, the load manifest mustreflect the aircraft's actual loading
...." (Complainant's Post-Trial Briefat 6) 

### is incorrect.

FAA Case Nos.: 2011NM060038 

### I FDMS FAA-2012-0874: 2011NM060047 

### I FDMS FAA-2012-0872; 2011NM060063 

### I FDMS FAA-2012-0873; 2011NM060072 

### I FDMS FAA-2012-0869: 2011NM060073



### I FDMS FAA-2012-0868; 2011NM060081 

### I FDMS FAA-2012-0904; 2011NM060095 

### I FDMS FAA2013-0617; and 2012NM060014 

### I FDMS FAA-2013-0619 [Consolidated] SKYWEST AIRLINES, INC.'S POST TRIAL BRIEF 

### Page 12

### no modification or amendment ofthe CLR is required ifverbally authorized bythe flight
crew. 11 

### In all buttwo instances (Flights 6756 and 6991 in FAA-2012-0872/2011NM060047) the CLR's utilized bythe FAA are the flight crew copies. With these two exceptions, the FAA did notrequestthe preservation ofthe originating stations' CLR's and, as such, the station copies ofthe CLR's were destroyed in the ordinarycourse ofbusiness, as they are required to be retained for only one day. Station copies ofthe CLR's would mostlikely have reflected anymodifications or amendments and the reverse sides ofthe station copies would have had the tally sheets showinghowloaded items had been counted. 12

11 

### SP4100, Chapter 4, page 16, Section 11, Aircraft Loading, (B) Last minute changes. 12 

### FAA Inspector Steven Allen did notthinkthat it was necessaryto obtain the station copies (TR. 33:20). When asked whatwas on the reverse side ofthe station copy ofthe CLR, InspectorAdam Perkins testified thatthere was a "formatto help the ramper countthe bags" (Tr. 76:12), because "it would be easyto lose track in yourhead. It gives him a waymanually to keep track ofbags as theygo on the airplane" (Tr. 76:5-8). Even SkyWest FAA Principal Operations InspectorAndrew Ayers testified that itwould have beenbeneficial for the FAA to have obtained the station copies ofthe CLR's, with the tally sheets, to see howthe loading personnel came up with their count (Tr. 210:4-211:4). Yet, only one FAA inspector, investigating two flights, obtained the station copies ofthe CLR, and in one ofthose cases, it showed thattherewas no violation (See Exhibit R-21).

FAA Case Nos.: 2011NM060038 / FDMS FAA-2012-0874; 2011NM060047 

### I FDMS FAA-2012-0872; 2011NM060063 

### I FDMS FAA-2012-0873; 2011NM060072 

### I FDMS FAA-2012-0869; 2011NM060073



### I FDMS FAA-2012-0868; 2011NM060081 

### I FDMS FAA-2012-0904; 2011NM060095 

### I FDMS FAA2013-0617; and 2012NM060014 

### I FDMS FAA-2013-0619 (Consolidated) SKYWEST AIRLINES, INC.'S POST TRIAL BRIEF Page 13

### With the exception ofthose two instances, FAA Inspectors assigned to counting offloaded baggage did notinquire as to whetherthe originating station(s) had modified the CLR's 13 

### as permitted under SkyWest's Operations Specifications, nor did they askthe personnel atthe originating stations howtheycounted the baggage and completed the CLR's or askthe flight crews howthey had completed the aircraft weight and balance or load manifests. Likewise, they did notinquire as to whether there had been anylast minute changes to the baggage loads after the CLR's and load manifests had been prepared. And in one case, FAA inspectors even pulled a "load manifest" from the trash. As SkyWest's Director ofAircraft Operations, Christopher Brown, testified, a crew could have three or four manifests before theyhave their final manifest-"so you could have several printed copies thathave gone to the trash
...that are quite irrelevant." (Tr. 319:7-13).

1). IV. BAGGAGE COUNT DISCREPANCIES DID NOT ADVERSELYAFFECT AIRCRAFT WEIGHT AND BALANCE. CENTER OF GRAVITY OR AIRCRAFT PERFORMANCE. 

### A. The Discrepancies Were De Minimus:

13 

### SP 4100, Section 11, Aircraft Loading, (B) Last minute changes (Exhibit R-1-

FAA Case Nos.: 2011NM060038 

### I FDMS FAA-2012-0874; 2011NM060047 

### I FDMS FAA-2012-0872; 2011NM060063 

### I FDMS FAA-2012-0873; 2011NM060072 

### I FDMS FAA-2012-0869; 2011NM060073



### I FDMS FAA-2012-0868; 2011NM060081 

### I FDMS FAA-2012-0904; 2011NM060095 

### I FDMS FAA2013-0617; and 2012NM060014 

### I FDMS FAA-2013-0619 (Consolidated] SKYWEST AIRLINES, INC.'S POST TRIAL BRIEF 

### Page 14

### Yes, therewere discrepancies between the FAA inspectors' counts ofoffloaded items and what had been recorded on 12 ofthe 14 CLR's. On one CLR, there was also
one simple 30-pound arithmetic error in computation ofCOMAT weight. However, for each ofthe 14 flights, the weight discrepancies were de minimus. 

### As in the prior cases, there was no adverse effect on aircraftweight and balance or performance. The aircraft remained well within their performance envelopes. There was no degradation or compromise to safety.
The aircraft utilized on the alleged flights were certainlylarge enough and operated at considerablyless thantheir maximum certificated takeoffweights, where minor baggage count and weight discrepancies would have had absolutely no effect. These aircraft included: -Bombardier CL-600-2D24, also known as a CR) 900, a 76-passenger twinengine regional jet having a maximum gross takeoffweight of84,500 pounds; --Bombardier CL-600-2C10, also known as a CRJ700, a 70-passengertwinengine regional jethaving a maximum gross takeoffweight of75,000 pounds; -Bombardier CL-600-2B19, also known as a CRJ200, a 50-passenger twinengine regionaljethaving a maximum gross takeoffweight of53,000 pounds; and

FAA Case Nos.: 2011NM060038 

### I FDMS FAA-2012-0874; 2011NM060047 

### I FDMS FAA-2012-0872; 2011NM060063 

### I FDMS FAA-2012-0873; 2011NM060072 

### I FDMS FAA-2012-0869; 2011NM060073



### I FDMS FAA-2012-0868; 2011NM060081 

### I FDMS FAA-2012-0904; 2011NM060095 

### I FDMS FAA2013-0617; and 2012NM060014 

### I FDMS FAA-2013-0619 (Consolidated] SKYWEST AIRLINES, INC.'S POST TRIAL BRIEF 

### Page 15-Embraer EMB-120 Brasilia, a 30-passengertwin turboprop having a maximum gross takeoffweight of26,400 pounds. The weight discrepancies between whatwas recorded onthe CLR's and whatthe FAA inspectors computed ranged from 0 to 390 pounds (with thevastmajoritybeing in the 30-120 pound range), having no effectwhatsoever on aircraft center ofgravity
or performance. The following testimonywas unrefuted: Q Mr. Salamone, you performed an aircrafttakeoffweight analysis for the 14 flights in question in these cases in yourreport. 14 Under the weights that the crewhad recorded and believed thattheywere operating under, in any of those 14 flights, did the aircrafttakeoffweight exceed the maximums? A No, they did not.

14 Mr. Salamone testified as to his methodology:

...1 took all information thatwas available to me, the cargo load reports, the load manifests, electronic, ifavailable, the inspector's statementfrom the FAA, as far as the alleged weight or items thatmayhave been present. And also then, the manufacturer documentation for the Canadair seriesjets to determine performance and the weight and balance inthatrespect. (Tr. 237:10-19). Mr. Salamone also considered runwaylengths (TR. 237:20-22), air temperature (Tr. 238:1-2), fuel and fuel weights (TR. 238:3-4), passengerweight (Tr: 238:20-22), cargo, luggage, ballast and the actual weight ofthe aircraft itself (Tr. 239:1-16).

FAA Case Nos.: 2011NM060038 

### I FDMS FAA-2012-0874; 2011NM060047 

### I FDMS FAA-2012-0872; 2011NM060063 

### I FDMS FAA-2012·0873; 2011NM060072 

### I FDMS FAA-2012·0869; 2011NM060073



### I FDMS FAA-2012·0868; 2011NM060081 

### I FDMS FAA-2012-0904; 2011NM060095 

### I FDMS FAA2013·0617; and 2012NM060014 

### I FDMS FAA-2013·0619 (Consolidated) SKYWEST AIRLINES, INC.'S POST TRIAL BRIEF Page 16Q Were theyunsafe in anyway? A I don'tbelieve so. Q Okay, buthow about as observed bythe FAA inspector, adding additional weightfor bags and subtractingweight for bags, orthe ballast or cargo thatmay nothave been accounted for bythe crew? Adding those and subtractingthose, did you find thatthe aircraft weight exceeded tolerances? A I did not. Q Or was unsafe in any way? A No, I did not. Q How aboutfor an aircrafttakeoffcenter ofgravity? Again two parts, as calculated bythe crewonthose 14 flights, did you find any ofthose 14flights where the center ofgravityleftthe manufacturer's suggested limits? A I did not. Q How about as perceived bythe FAA inspector? A I did not. 

### Q Then the lastfactor for aircraft runwayperformance and climb performance and maximum operating altitude. In your calculations, were the crew calculations accurate as pertainingto the cargo and weighttheybelieved thattheyhad? A Yes. Q And did those calculations exceed the manufacturer's suggested limitations? A. It did not.

FAA Case Nos.: 2011NM0600381 FDMS FAA-2012-0874; 2011NM060047 

### I FDMS FAA-2012-0872; 2011NM060063I FDMS FAA-2012-0873; 2011NM0600721 FDMS FAA-2012-0869; 2011NM060073



### I FDMS FAA-2012-0868; 2011NM060081I FDMS FAA-2012-0904; 2011NM060095 

### I FDMS FAA2013-0617; and 2012NM060014I FDMS FAA-2013-0619 (Consolidated) SKYWEST AIRLINES, INC.'S POST TRIAL BRIEF Page 17Q How about as perceived bythe FAA inspectors? A No, they did not. Q So in all three ofthose factors, either as calculated bythe SkyWest crews atthe time or adjusting for the observed variations by FAA inspectors, none ofthe flights would have been in excess ofthe manufacturer's limitations for takeoffweight, center ofgravity, runwayperformance, climb performance, ormaximum operating altitude? A Thatis correct. None ofthese flights would have had any exceedance. (Tr. 241:11-243:20; Exhibits R-3-1 and R-3-3).

B. Case-by-Case Analysis: FAA-2012-0874 I2011NM060038: On March 3, 2011, at San Diego International Airport (SAN), SkyWest operated NSOOSK, a CRJ 900, as Flight 4553 to Salt Lake City, Utah (SLC). FAA inspectors at SLC observed 43 Standard Checked Bags, three Heavy Checked Bags, and one live animal being offloaded. The CLR listed 46 Standard Checked Bags, 0 Heavy Checked Bags, and no live animals.15 However, the total bag count (comparing
15 According to Exhibit R-9, the aircraft was loaded and the CLR was prepared by Delta Air Lines personnel.

FAA Case Nos.: 2011NM060038I FDMS FAA-2012-0874; 2011NM060047 

### I FDMS FAA-2012-0872; 2011NM060063I FDMS FAA-2012-0873; 2011NM0600721 FDMS FAA-2012-0869; 2011NM060073



### I FDMS FAA-2012-0868; 2011NM0600811 FDMS FAA-2012-0904; 2011NM0600951 FDMS FAA· 2013-0617; and 2012NM0600141 FDMS FAA-2013-0619 (Consolidated) SKYWEST AIRLINES, INC.'S POST TRIAL BRIEF Page 18the CLR and the FAA Inspector's counts) was the same. The total CLR weight difference, with the 3 heavybags and one live animal would have been somewhere between 120-150 pounds, dependingupon the size and weight ofthe animal. However, as CLR clearly shows that "live animals"16 were loaded in the aft cargo section, and presumably counted inthe preparation ofthe load manifestweight, the CLR weight difference could have been as low as 90 pounds. Be that as itmay, as Mr. Salamone testified, the aircraftremained within center ofgravity and weight and balance (Tr. 244:19-245:1). Additionally, the aircraftwas still6,238 pounds below its maximum takeoffweight (Salamone Report, Exhibit R-3-2, p. 4).
On March 3, 2011, at Phoenix Sky HarborAirport (PHX), SkyWest operated N614SK, a CR) 700, as Flight 4445 to SLC. FAA inspectors at SLC observed 43 standard checked bags and threeheavy checked bags being offloaded. However, the CLR listed 46 standard bags and no heavy bags. 1 7However, the total bag count (comparingthe CLR and the FAA Inspector's counts) was the same. Thetotal weight 16 Exactly what were the "live animals" on Flights 4557 and 4613? None ofthe FAA inspectors seemed to recall what theywere or whethertheywere checked as baggage or shipped as freight (Tr. 79:2-8; TR. 84:1-4). 17 According to Exhibit R-9, the aircraft was loaded and the CLR was prepared by Delta Air Lines personnel.

FAA Case Nos.: 2011NM060038 

### I FDMS FAA-2012-0874; 2011NM060047 

### I FDMS FAA-2012-0872; 2011NM060063 

### I FDMS FAA-2012-0873; 2011NM060072 

### I FDMS FAA-2012-0869; 2011NM060073



### I FDMS FAA-2012-0868; 2011NM060081 

### I FDMS FAA-2012-0904; 2011NM060095 

### I FDMS FAA2013-0617; and 2012NM060014 

### I FDMS FAA-2013-0619 (Consolidated) SKYWEST AIRLINES, INC.'S POST TRIAL BRIEF Page 19difference would have been 90 pounds, which as Mr. Salamone testified would have had no effect onthe operation ofthe aircraft, as the aircraftwas some 4,363 pounds below its maximum gross takeoffweightfor that runway (Tr. 245:11-250:3; Exhibit R-3-2, p. 5).
On March 3, 2011, atMissoula InternationalAirport (MSO) SkyWest operated N465SW, a CRJ 200, as Flight 4540 to SLC. At SLC FAA inspectors observed 250 pounds ofballastand 100 pounds COMAT being offloaded. The FAA has alleged that the CLR listed 350 pounds ofCOMAT. 18 However, the total weight ofthe COMAT and ballast were exactlythe same, with absolutely no change in aircraft performance (Tr. 250:4-251:5; Exhibit R-3-2, p.6). Moreover, as subsequentlyproduced documents from the FAA indicate, there
was a second CLR (i.e., the corrected station copy) which reflects an update bythe departing station, correctlylisting 250 pounds ofballast and 100 pounds ofCOMAT (Exhibit R-21). This CLR was correct and the weights on the load manifest corresponded to the CLR. So where is the violation?

1 8 According to Exhibit R-9, the aircraft was loaded and the CLR was prepared byRegional Elite Airline Services, a Delta Air Lines subsidiary.

FAA Case Nos.: 2011NM060038 

### I FDMS FAA-2012-0874: 2011NM060047 

### I FDMS FAA-2012-0872; 2011NM060063 

### I FDMS FAA-2012-0873; 2011NM060072 

### I FDMS FAA-2012-0869; 2011NM060073



### I FDMS FAA-2012-0868; 2011NM060081 

### I FDMS FAA-2012-0904; 2011NM060095 

### I FDMS FAA2013-0617; and 2012NM060014 

### I FDMS FAA-2013-0619 (Consolidated) SKYWEST AIRLINES, INC.'S POST TRIAL BRIEF Page 20On March 3, 2011, at Omaha (OMA), SkyWest operated N816SK, a CRJ 900, as Flight 4613 to SLC. FAA inspectors at SLC observed two live animals being offloaded, but the CLR for Flight 4613listed "0 live animals". However, that CLR shows 30 pounds offreight, which likelyreflected the weight ofthe animals.19 Otherthan the omission ofthe description ofthe freight as "live animals", the load manifestwas 100% accurate (Tr. 251:6-252:6; Exhibit R-3-2, p. 7).

FAA-2012-0872 

### I 2011NM060047: On March 8, 2011 atLos Angeles International Airport (LAX), SkyWest operated N804SK, a CRJ 900, as Flight 4464 to Las Vegas, Nevada (LAS). FAA inspectors at LAS observed two heavy checked bags being offloaded. However the CLR listed no heavy checked bags. 20 However, it is not possible to determine ifthe heavybags were included in the standard bag piece count, or not counted at all. If the heavybags had been included in the total piece count, the CLR weight differential
19 According to Exhibit R-9, the aircraftwas loaded and the CLR was prepared by Regional Elite Airlines Services, a Delta Air Lines subsidiary.
zo According to Exhibit R-9, aircraftloading and the CLR was prepared by DeltaAir Lines. In fact, FAA Inspector Steven Allen conceded thatbefore he contacted SkyWest, he contacted Delta, which loadedthe aircraft (Tr. 34:19-36:5).

FAA Case Nos.: 2011NM060038 

### I FDMS FAA-2012-0874; 2011NM060047 

### I FDMS FAA-2012-0872; 2011NM060063 

### I FDMS FAA-2012-0873; 2011NM060072 

### I FDMS FAA-2012-0869; 2011NM060073



### I FDMS FAA-2012-0868; 2011NM060081 

### I FDMS FAA-2012-0904; 2011NM060095 

### I FDMS FAA· 2013-0617; and 2012NM060014 

### I FDMS FAA-2013-0619 (Consolidated) SKYWEST AIRLINES, INC.'S POST TRIAL BRIEF Page 21would have been 60 pounds. Ifthetwo heavybags were notincluded in the total piece count, theweight differential would have been 120 pounds. Either way, Mr. Salamone testified thatthere would have had no effect on the operation ofthe aircraft, as the aircraft was some 6,647 pounds below its maximum gross takeoff weightfor thatrunway (Tr. 252:18-254:2 and Exhibit R-3-2, p. 8).
On March 9, 2011 at Chicago O'Hare International Airport (ORD), Chicago, Illinois, SkyWest operated N907SW, a CRJ 200, as Flight 6756 to Colorado Springs (COS). FAA inspectors at COS observed one heavy checked bag being offloaded. However, the CLR listed no heavychecked bags. 21 The FAA did not determine whetherthe observed heavybag had been included in the standard bag piece count,
or notcounted at alL As Mr. Salamone testified, ifthe total piece countwas correct, the CLR weightdifferential would have been 30 pounds.22 Whether or notthe heavy

21 According to Exhibit R-9, all aircraftloading and CLR preparation at ORD was handled byUnited Airlines. 22 FAA Inspector Michelle Wallentine was positioned at COS on three different dates (April 7, May 5 and July 14, 2011) to countbaggage as part ofthe FAA's special emphasis inspection ofSkyWest. She observed and participated in the baggage counts for some 30 flights over those three days and with the exception the three cases in which she is involved, she saw no irregularities or baggage miscounts (Tr. 125:22-127:14).

FAA Case Nos.: 2011NM0600381 FDMS FAA-2012-0874; 2011NM060047 

### I FDMS FAA-2012-0872; 2011NM0600631 FDMS FAA-2012-0873; 2011NM0600721 FDMS FAA-2012-0869; 2011NM060073



### I FDMS FAA-2012-0868; 2011NM0600811 FDMS FAA-2012-0904; 2011NM0600951 FDMS FAA2013-0617; and 2012NM060014I FDMS FAA-2013-0619 (Consolidated) SKYWEST AIRLINES, INC.'S POST TRIAL BRIEF Page 22bag had been included in the total piece count, there would have been no effect on aircraftweight and balance, center ofgravity or performance as the aircraft was 2,686 pounds below its maximum takeoffweight limit (Tr. 255:5-256:1; Exhibit R-3- 2, p, 9.)
On March 9, 2011, at ORO, SkyWest operated N973SW, a CR) 200, as Flight 6991 bound for COS. FAA inspectors at COS observed two heavybags being offloaded. However, the CLR listed no heavybags. The FAA inspectors did not determine whether the observed heavybags were included in the standard bag piece count, or not counted at alL As Mr. Salamonetestified, ifthe total piece countwas correct, the CLR weight differential would have been 60 pounds. Ifthe heavybags had notbeen included in the piece count, theweight differential would have been 120 pounds. Either way, there would have been no effect on aircraftweight and balance, center ofgravity or performance as the aircraftwas 2,523 pounds below its maximum takeoffweightlimit (Tr. 256:2-257:17; Exhibit R-3-2, p. 10).
On March 14, 2011, at Denver International Airport (DEN), SkyWest operated N679SA, a CR) 200, as Flight 6960 to Sioux Falls Regional Airport (FSD), Sioux Falls,

FAA Case Nos.: 2011NM060038 

### I FDMS FAA-2012-0874; 2011NM060047 

### I FDMS FAA-2012-0872; 2011NM060063 

### I FDMS FAA-2012-0873; 2011NM060072 

### I FDMS FAA-2012-0869; 2011NM060073



### I FDMS FAA-2012-0868; 2011NM060081 

### I FDMS FAA-2012-0904; 2011NM060095 

### I FDMS FAA2013-0617; and 2012NM060014 

### I FDMS FAA-2013-0619 (Consolidated] SKYWEST AIRLINES, INC.'S POST TRIAL BRIEF Page 23

### South Dakota. SkyWest personnel at DEN23 

### loaded one heavy checked bag, butthe CLR listed no heavy bags. The FAA did not determine whetherthe observed heavy bagwas included in the standardbag piece count, ornotcounted at all. Ifthe total piece countwas correct, the CLR weight differential would have been 30 pounds. Either way, there would have been no effect on aircraftweight and balance, center of gravity or performance as the aircraft was 970 pounds belowits maximum takeoff weightlimit (Tr. 257:18-259:4; Exhibit R-3-2, p. 11).
FAA-2012-0873 I2011NM060063: On April 7, 2011, at ORD, SkyWest operated N755SK, a C) 

### 700, as Flight 6756 to COS. FAA Inspectors who had been dispatched to COS, solely for the purpose of counting offloaded bags from SkyWest aircraft observed 33 standard checked bags and 2 heavy checked bags coming offthe aircraft. 24 

### The CLR for Flight 6756listed 30

23 

### Ofthe 14 flights alleged, this flight and Flight 4559 (DEN-RKS; Case FAA2013-061/2012NM060014) were the only flights in which SkyWest personnel loaded the aircraft and prepared the CLR's. All other flights were handled by SkyWest's codeshare major partners, United Airlines, Delta Air Lines and Continental Airlines, who loaded the aircraft and prepared the CLR's.
24 

### Denver-based FAA Inspector Michelle Wallentine was dispatched to COS on three occasions solely for the purpose ofcounting bags coming offofSkyWest aircraft. She performed no surveillance for any other air carrier. While she observed three flights with baggage countdiscrepancies (Flight 6756 and Flights 1160 on May

FAA Case Nos.: 2011NM0600381 FDMS FAA-2012-0874; 2011NM060047 

### I FDMS FAA-2012-0872; 2011NM0600631 FDMS FAA-2012-0873; 2011NM0600721 FDMS FAA-2012-0869; 2011NM060073



### I FDMS FAA-2012-0868; 2011NM0600811 FDMS FAA-2012-0904; 2011NM060095 

### I FDMS FAA2013-0617; and 2012NM060014I FDMS FAA-2013-0619 (Consolidated) SKYWEST AIRLINES, INC.'S POST TRIAL BRIEF 

### Page 24standard checked bags and no heavy checked bags. With the 3 standard bags and 2 heavybags, the CLR weightdifferential would have been 210 pounds. Therewould have been no effect on aircraft weight and balance, center ofgravity or performance
as the aircraftwas 5,993 pounds below its maximum takeoffweight limit (Tr. 260:1- 262:2; Exhibit R-3-2, p. 12).
FAA-2012-08691 2011NM060072: On May 5, 2011, at George Bush Intercontinental Airport (IAH), Houston, Texas SkyWest operated N744SK, a CRJ 700, as Flight 1160 to COS. At COS, FAA inspectors observed 35 standard checked bags being offloaded N744SK However, the CLR for Flight 116025 listed 23 standard checked bags. With the additional12 standard bags, the CLR weight differential would have been 360 pounds. There would have been no effect on aircraftweight and balance, center ofgravity or performance as the aircraftwas 5,488 pounds below its maximumtakeoffweight limit (Tr. 262:2-264:1; Exhibit R-3-2, p. 13).
5 andjuly 14, 2011), over thethree visits, she inspected and counted bags from some thirty SkyWestflights and with the exception ofthe three flights, there were no discrepancies (Tr. 126:6-21).
25 All aircraft loading and CLR preparation at IAH was handled by Continental Airlines.

FAA Case Nos.: 2011NM060038 

### I FDMS FAA-2012-0874: 2011NM060047 

### I FDMS FAA-2012-0872: 2011NM060063 

### I FDMS FAA-2012-0873; 2011NM060072 

### I FDMS FAA-2012-0869; 2011NM060073



### I FDMS FAA-2012-0868; 2011NM060081 

### I FDMS FAA-2012-0904; 2011NM060095 

### I FDMS FAA2013-0617; and 2012NM060014 

### I FDMS FAA-2013-0619 (Consolidated) SKYWEST AIRLINES, INC.'S POST TRIAL BRIEF Page 25FAA-2012-0868 

### I 2011NM060073: On june 2, 2011 at IAH, SkyWest operated N937SW, a CRJ 200, as Flight 5840 to Charlotte, North Carolina (CLT). At CLT, FAA inspectors observed 27 standard bags and 20 planeside loaded bags being offloaded. However the CLR listed 19 standard checked bags and 15 planeside loaded bags. With the additional 8 standard and 5 planeside bags, the CLR weight differential would have been 390 pounds. Therewould have been no effect on aircraft weight and balance, center ofgravity or performance as the aircraftwas 2,914 pounds below its maximum takeoffweight limit (Tr. 264:2-266:11: Exhibit R-3-2, p. 14).
FAA-2012-0904 

### I 2011NM060081: On June 15, 2011, atSLC, SkyWest operated N603SK, a CRJ 700, as Flight 4781, to Reno-Tahoe International Airport, Nevada (RNO). At RNO, FAA inspectors observed 190 pounds ofCOMAT, consisting oftwo items, a 130-poundcable and a 60-pound boxbeing offloaded. This seems to have been a simple arithmetic error and the CLR weight differential was 30 pounds. As FAA Inspector Benjamin Blauer testified: Q So basically, whoever prepared the CLR showing 160 pounds probablycouldn't add right.

FAA Case Nos.: 2011NM060038 

### I FDMS FAA-2012-0874; 2011NM060047 

### I FDMS FAA-2012-0872; 2011NM060063 

### I FDMS FAA-2012-0873; 2011NM060072 

### I FDMS FAA-2012-0869; 2011NM060073



### I FDMS FAA-2012-0868; 2011NM060081 

### I FDMS FAA-2012-0904; 2011NM060095 

### I FDMS FAA2013-0617; and 2012NM060014 

### I FDMS FAA-2013-0619 [Consolidated] SKYWEST AIRLINES, INC.'S POST TRIAL BRIEF Page 26A Iwould have to saythat, yes. Q Do you have nay other explanation for whythe CLR would have had this incorrectweight? A Ido not. (Tr.176:3-10). Be that as itmay, there was no effect on aircraft weight and balance, center of gravity or performance as the aircraft was 11,623 pounds below its maximum takeoff weight limit (Tr. 266:12-268:10; Exhibit R-3-2, p. 15).

FAA-2013-0617 12011NM060095: On july 14, 2011, at IAH SkyWest operated N742SK, a CRJ 700, as Flight 1160 to COS. At COS, FAA inspectors observed 43 standard checked bags being offloaded. The CLR for Flight 1160 listed 36 standard checked bags. With the additional 7 standard bags, the CLR weight differential would have been 210 pounds. There would have been no effect on aircraftweight and balance, center ofgravity or performance as the aircraftwas 4,384 pounds below its maximum takeoffweight limit (Tr. 268:11-270:3; Exhibit R-3-2, p.16). In fact, CG would have changed "no
morethan perhaps the width ofa pencil dot onthe chart." (Tr. 269:19-270:3).

FAA Case Nos.: 2011NM0600381 FDMS FAA-2012-0874; 2011NM060047 

### I FDMS FAA-2012-0872; 2011NM060063I FDMS FAA-2012-0873; 2011NM0600721 FDMS FAA-2012-0869; 2011NM060073



### I FDMS FAA-2012-0868; 2011NM0600811 FDMS FAA-2012-0904; 2011NM0600951 FDMS FAA2013-0617; and 2012NM0600141 FDMS FAA-2013-0619 (Consolidated] SKYWEST AIRLINES, INC.'S POST TRIAL BRIEF Page 27FAA-2013-0619 

### I 2012NM060014: On November 16, 2011 at DEN, SkyWest operated N236SW, an Embraer EMB120-ER, as Flight 5449 to Rock Springs, Wyoming (RKS). SkyWest personnel at DEN loaded one heavychecked bag onto N236SW. Although the CLR listed no heavy checked bags, the FAA observed a heavybagbeing offloaded. The weight differential
was 60 pounds and there was no effect on aircraftweight and balance, center of gravity or performance (Tr. 270:4-272:5; Exhibit R-3-2, p. 17). Despite the evidentiary-lackinghorrifies with which Complainant attempts to buttress its case26, Mr. Salamone's testimony and his written report (Exhibit R-3-2)

26 i.e., that SkyWest operated aircraft withoutknowingwhatwas aboard thereby endangeringthe lives ofsome 750 people (Complainant's Post-Trial Briefat 2), ignoring potential safetyhazards affecting aircraft performance (Complainant's Post-Trial Briefat 13-14); that SkyWest's operations were tantamountto "test flight"(s) (Complainant's Post-Trial Briefat 14); that SkyWest continues to operate aircraftwithoutknowing their correctweight and balance (Complainant's Post-Trial Briefat 15); and that "violations are occurring even now (Complainant's Post-Trial Briefat 18). In supportofthese lasttwo outlandish assertions, Complainantcites SkyWest's Jeremy Barclay's testimony atTr. 422:19-423:6. Mr. Barclay's testimony says nothing ofthe sort: Q Now, Mr. Barclay, one ofthe things you testified that

... [SkyWest] is doing in an effort to get ahead ofthis problem is you are continuingto conduct audits ofthe Weight and Balance Program. Isn'tittrue thatthose audits showthatthere is still an issue with weight and balance, these sorts ofissues on ... [SkyWest] today?

FAA Case Nos.: 2011NM060038 

### I FDMS FAA-2012-0874; 2011NM060047 

### I FDMS FAA-2012-0872; 2011NM060063 

### I FDMS FAA-2012-0873; 2011NM060072 

### I FDMS FAA-2012-0869; 2011NM060073



### I FDMS FAA-2012-0868; 2011NM060081 

### I FDMS FAA-2012-0904; 2011NM060095 

### I FDMS FAA2013-0617; and 2012NM060014 

### I FDMS FAA-2013-0619 (Consolidated) SKYWEST AIRLINES, INC.'S POST TRIAL BRIEF Page 28remain uncontroverted. There is no evidence thatthe aircraft were loaded or operated unsafely; there is no evidence that aircraftweight and balancewere in any way adversely affected; and there is no evidence that aircraftperformancewas in anyway adversely affected.
V. SKYWEST'S PROPOSED W&B MANUAL REVISION In an effortto address and minimize the interplay ofhuman factors in the baggage loading and counting process and renderthe issues atbar moot, SkyWest attempted to obtain FAA approval ofa modification to its W&B Program, similarto thatwhich the FAA has previously approved for others 27, to permit small variances in baggage counts, necessitated by operational considerations. 28 Despite SkyWest's showing ofan equivalentlevel ofsafety, the FAA declined to grantthis, apparently

A There are errors that do occur, that's correct. Mr. Barclay explained that although SkyWesthas addressed the issue, absolute human perfection is impossible to achieve (Tr. 424: 16-17).

27 Exhibit R-4.
2s Please see Exhibits R-5-1 through R-5-7.

FAA Case Nos.: 2011NM060038 

### I FDMS FAA-2012-0874; 2011NM060047 

### I FDMS FAA-2012-0872; 2011NM060063 

### I FDMS FAA-2012-0873; 2011NM060072 

### I FDMS FAA-2012-0869: 2011NM060073



### I FDMS FAA-2012-0868; 2011NM060081 

### I FDMS FAA-2012-0904; 2011NM060095 

### I FDMS FAA2013-0617; and 2012NM060014 

### I FDMS FAA-2013-0619 (Consolidated) SKYWEST AIRLINES, INC.'S POST TRIAL BRIEF Page 29preferring instead to initiate enforcement actions and seek exorbitant civil penalties for small variances in baggage counts. Complainant, erroneously characterizes SkyWest's communications with the FAA as a requestfor exemption under FAR Part 11 (Complainant's Post-Trial Briefat 22-23), which itwas not. All thatwas requested was a revision to itW&B Program to address human factors. As SkyWest's Director ofAircraft Operations, Christopher Brown, testified:

...it is recognizing thathuman factors play a key role inthe proper completion and counting ofa bag-proper completion ofthe CLR and counting ofbags.29

...We're notmaking excuses for those errors. We arejust accepting the fact thatthere is risk in the environmentthatthese ground agents areworking in. Thatthere is a riskthattheycould miscount a bag or not putthe right number on a cargo load report, that, in turn, would lead to a load manifestthatwas in error.3o

29 Tr. 304:5-8.
30 Tr. 304:15-22.

FAA Case Nos.: 2011NM060038 

### I FDMS FAA-2012-0874; 2011NM060047 

### I FDMS FAA-2012-0872; 2011NM060063 

### I FDMS FAA-2012-0873; 2011NM060072 

### I FDMS FAA-2012-0869; 2011NM060073



### I FDMS FAA-2012-0868; 2011NM060081 

### I FDMS FAA-2012-0904; 2011NM060095 

### I FDMS FAA2013-0617; and 2012NM060014 

### I FDMS FAA-2013-0619 (Consolidated) SKYWEST AIRLINES, INC.'S POST TRIAL BRIEF Page 30SkyWestwas requesting something considerably more restrictive thanwhat the FAA had provided to atleast one other carrier.3 1 In orderto have obtained this relief, a petition for exemption under FAR Part 11 was not andwould not have been required. Complainant also suggests that SkyWest could have resubmitted its proposal to add a specified amount ofweightto the basic operatingweight ofeach aircraft. This suggestion is meaningless as Complainant states that even this would nothave excused itfrom baggage miscountviolations. Complainant also ignores tbe fact that in each ofthe 14flights, the aircrafttakeoffweights (even with the FAA's corrected bagloads) remained substantiallybelowthe maximum gross takeoffweights, so even ifSkyWest followed Complainant's suggestion and added something to the basic operatingweight ofeach oftbe aircraft, this would have achieved nothing as baggage countviolations, in Complainant's eyes, are inexcusable.

VI. SKYWEST'S CORRECTIVE ACTIONS:

3

1 As Exhibit R-4 reflects, that carrier has a 20-bag/600-pound "cushion". As Mr. Brown testified, the reliefthat SkyWest was seeking was but a fraction oftbat (Tr. 107).

FAA Case Nos.: 2011NM060038 

### I FDMS FAA-2012-0874; 2011NM060047 

### I FDMS FAA-2012-0872; 2011NM060063 / FDMS FAA-2012-0873; 2011NM060072 

### I FDMS FAA-2012-0869; 2011NM060073



### I FDMS FAA-2012-0868; 2011NM060081 

### I FDMS FAA-2012-0904; 2011NM060095 

### I FDMS FAA2013-0617; and 2012NM060014 

### I FDMS FAA-2013-0619 (Consolidated] SKYWEST AIRLINES, INC.'S POST TRIAL BRIEF Page 31

### As stated in its several affirmative defenses averred in its Answer to Complaint: SkyWest proactivelymitigated anyneed for enforcement action, in that ithas: i. Counseled all personnel involved in the loading and counting ofthe bags following each ofthe alleged incidents; ii. Issued numerous Customer Service Training Bulletins directed at providing additional trainingin avoiding bag count discrepancies, iii. Updated and revised the aircraft loading procedures, including, but not limited to, those setforth in its Station Operations Manual and W&B Manual to specifically address said problems and ensure future compliance; iv. Updated and revised the aircraft loading procedures setforth in its Station Operations Manual SP 5500 to specifically address said problems and
ensure future compliance;
v. Implemented initiatives to ensure all stations are physically staffed to allow one agentto directly account for the aircraft loading process on each flight, to ensure accurate physical baggage counts, cargo weights, and weight and balance communication with flight deck crews;

FAA Case Nos.: 2011NM060038 

### I FDMS FAA-2012-0874; 2011NM060047 

### I FDMS FAA-2012-0872; 2011NM060063 

### I FDMS FAA-2012-0873; 2011NM060072 

### I FDMS FAA-2012-0869; 2011NM060073



### I FDMS FAA-2012-0868; 2011NM060081 

### I FDMS FAA-2012-0904; 2011NM060095 

### I FDMS FAA2013-0617; and 2012NM060014 

### I FDMS FAA-2013-0619 (Consolidated) SKYWEST AIRLINES, INC.'S POST TRIAL BRIEF 

### Page 32

### vi. Performed ongoing and continuinginternal evaluations ofcargo load reportingto ensure thatcompliance is being achieved; and vii. Taken other corrective actions to prevent recurrence.32 Any and all discrepancies upon which these actions are based are the product ofsimple human arithmetic error and in no way are indicative ofSkyWest's regulatory compliance disposition as all relevant employees were adequatelytrained and qualified and have since received additional training and internal audits have shownthatcompliance has been achieved. 33 

### SkyWest has taken all necessary corrective actions to avoid repeated mishaps such that additional penalties are redundant and will notresult in any decrease in safety. 34 

### SkyWest's corrective actions taken since 2009 (when the baggage count problems first surfaced) and to date have amounted to some $560,000 (Tr. 408:12- 16; Exhibits 6-1,6-2 and 6-3). These corrective actions were fully substantiated in

32 

### SkyWest's Answer to Complaint, FourthAffirmative Defense.
33 

### SkyWest's Answer to Complaint, Sixth Affirmative Defense. Ofcourse this is subject to consideration ofthe interplayofhuman factors, which as substantial evidence has shown, makes it impossible to ensure 100% accuracy.
34 

### SkyWest's Answer to Complaint, Seventh Affirmative Defense.

FAA Case Nos.: 2011NM060038/ FDMS FAA-2012-0874; 2011NM060047 

### I FDMS FAA-2012-0872; 2011NM060063 

### I FDMS FAA-2012-0873; 2011NM060072/ FDMS FAA-2012-0869; 2011NM060073



### I FDMS FAA-2012-0868; 2011NM060081/ FDMS FAA-2012-0904; 2011NM060095 

### I FDMS FAA2013-0617; and 2012NM060014/ FDMS FAA-2013-0619 (Consolidated] SKYWEST AIRLINES, INC.'S POST TRIAL BRIEF 

### Page 33

### the testimonies ofSkyWest's Jeremy Barclay, Director ofSafety Policy and Security, Jay Christensen, Manager ofCustomer Service Ground Operations Training, and Maggi Aiken, Director ofCustomer Service Training and Standards. Their testimonies have corroborated each other and remain uncontroverted.
As Mr. Barclay testified:
A
...we have tried to identify every point ofinfluence possible with this process, which includes developing and enhancing standard procedures, disseminating training to front-line employees through our Certified Station Trainer Program, partneringwith otherregional carriers in partner standardization groups. We have conducted numerous load audits. We've enhanced the process thatwe previously used to kind ofknow where we are with outload counts. I'm sure there's a lot ofotherthings thatwe've done, butthose are probablythe big ones.35 Yet, Complainant now asserts thatSkyWest merely "pays lip service to regulatory compliance while remaining focused on the bottom line" (Complainant's Post-Trial Briefat 24); that ithas "failed to take several actions which would be

35 

### Tr. 397:19-398:11. 

### Mr. Barclay also testified that SkyWest has not only included representatives ofUnited and Delta in its training, buthas attempted to standardize procedures for otherregional carriers serving United and Delta (Tr. 398:18-399:4).

FAA Case Nos.: 2011NM060038 

### I FDMS FAA-2012-0874; 2011NM060047 

### I FDMS FAA-2012-0872; 2011NM060063 

### I FDMS FAA-2012-0873; 2011NM060072 

### I FDMS FAA-2012-0869; 2011NM060073



### I FDMS FAA-2012-0868; 2011NM060081 

### I FDMS FAA-2012-0904; 2011NM060095 

### I FDMS FAA2013-0617; and 2012NM060014 

### I FDMS FAA-2013-0619 (Consolidated) SKYWEST AIRLINES, INC.'S POST TRIAL BRIEF 

### Page 34reasonable from a safety standpoint" (Id.)36 and that SkyWest has corrected nothing (Id. at 25). Not only are Complainant's assertions spurious, buttheyignore the FAA's substantial participation and involvementin SkyWest's corrective actions. As Mr. Barclay testified: Q In connection with these corrective actions, did

... [SkyWest] invite FAA participation? A We did. Specificallywith our Certified StationTrainer Conference, which we held annually during Q2 or Q3 ofeach year, where theywere invited to come and participate, and even attimes presenttheir findings and surveillance. Q And, did theyparticipate and present? A. They did. 36 Complainant's counsel has suggested that SkyWest should consider "delaying departures" (Complainant's Post-Trial Briefat 23) and provide "incentives" (albeitundefined) for its ramp personnel (!d. at 24) and that because SkyWest has nottaken these steps, ithas not done everythingthat itcould do to remedythe situation. Suffice itto saythere is no evidence thatthe measures proposed by Complainant's learned counsel would be either feasible or effective. In fact, Complainant's counsel's suggestion that departures should be delayed reflects a substantial lack ofawareness oftoday's airline operating environment. As SkyWest's Maggi Aiken testified, when she started with SkyWest approximately 33 years ago (tr. 439:16), SkyWest personnel handled 100 percent ofSkyWest's ground operations, where as today SkyWest onlyhandles 20-30 percent ofits operations (Tr. 444:22-445:3]. This is also reflected in Exhibit R-9, which shows thatthe vast majority ofground operations, including aircraftloading and weight and balance, are handled bySkyWest's major codeshare partners who have contracted with SkyWest to provide regional air service ontheir behalfattheir stations.

FAA Case Nos.: 2011NM060038 

### I FDMS FAA-2012-0874; 2011NM060047 

### I FDMS FAA-2012-0872; 2011NM060063 

### I FDMS FAA-2012-0873; 2011NM060072 

### I FDMS FAA-2012-0869; 2011NM060073



### I FDMS FAA-2012-0868; 2011NM060081 

### I FDMS FAA-2012-0904; 2011NM060095 

### I FDMS FAA2013-0617; and 2012NM060014 

### I FDMS FAA-2013-0619 (Consolidated) SKYWEST AIRLINES, INC.'S POST TRIAL BRIEF Page 35Q 

### With respectto SkyWest's corrective actions, have you ever received any FAA feedback as to the quality, the presentation, or the completeness ofthe presentation, or the comprehensiveness ofthe presentation? A They, obviously,would communicate concern for the process. When they attended the conferences, mostofthe feedback that we received was always positive
.... in general it was verypositive feedback. Q 

### And when we saythe FAA, are we talking aboutwhat, the CMO? A Correct, theywould send either an inspector or supervisor to attend. At times our principal operations inspectorwould
... as well. Q 

### Did the FAA ever communicate to you orto anybody

...that
...efforts were notenough, or insufficient, or defective? A Again primarily,just concern for, you know, the alleged violations athand. But for the most part, we had monthlytelecons. Ifmemory serves me correctly, we had monthlytelecons with them, explaining what our corrective actions were in order, made attempts to beverytransparent, and during those conversations we didn'treceive any negative feedback
...P 

### Complainant's briefis the first notice SkyWest has received that its six-year effort to reduce bag count errors is insufficient. The criticism would carry more weightifithad been elicited, on the stand, from the various members ofthe CMO who monitored and participated in the programs. Instead itrings as a lawyer's argument, based on an opinion formed far away from the actual operation.
37 

### Tr. 403:13-405:12

FAA Case Nos.: 2011NM0600381 FDMS FAA-2012-0874; 2011NM060047 

### I FDMS FAA-2012-0872; 2011NM060063I FDMS FAA-2012-0873; 2011NM0600721 FDMS FAA-2012-0869; 2011NM060073



### I FDMS FAA-2012-0868; 2011NM0600811 FDMS FAA-2012-0904; 2011NM0600951 FDMS FAA2013-0617; and 2012NM0600141 FDMS FAA-2013-0619 (Consolidated) SKYWEST AIRLINES, INC.'S POST TRIAL BRIEF 

### Page 36

### Even though perfection is unobtainable when thousands ofpeople handle millions ofbags, SkyWest continues to revise procedures and policies whenever improvementcan be gained. As Jay Christensen testified, SkyWest is "
...constantly revising our procedures and trying to make them better."3B Specifically, with respect to weight and balance training, Mr. Christensen testified:

...that's prettymuch been a constant improvement, prettymuch from the time we started to hear ofthese cases, knowing thattherewere issues outthere in the station, and some ofthese alleged violations.

We expanded our training curriculum substantially. We started about45 of training back earlywhen Iwas in the Department, which prettymuch included howto fill outa CLR
.... We expanded that [initial training] to two hours, then expanded it to four hours.39 In addition to initial training enhancements, SkyWest has enhanced recurrent training and revised their SP's 4100 and 5500 to prescribe bestpractices.40 

### When asked ifthere is anything else SkyWest could possibly do to eradicate the alleged miscounts, Mr. Christensen stated:

38 Tr. 433:6-7. 

### 39 TR. 433:13-434:7. 40 Tr. 434:7-435:18.

FAA Case Nos.: 2011NM060038 

### I FDMS FAA-2012-0874; 2011NM060047 

### I FDMS FAA-2012-0872; 2011NM060063 

### I FDMS FAA-2012-0873; 2011NM060072 

### I FDMS FAA-2012-0869; 2011NM060073



### I FDMS FAA-2012-0868; 2011NM060081 

### I FDMS FAA-2012-0904; 2011NM060095 

### I FDMS FAA2013-0617; and 2012NM060014 

### I FDMS FAA-2013-0619 (Consolidated) SKYWEST AIRLINES, INC.'S POST TRIAL BRIEF 

### Page 37A Ithink we are constantly strivingto getbetter, and Ithink we've done, in my mind to this point, we've done everythingwe possibly can do, and, you know, we'll continue to strive to getbetter, but I don't think so. Q. Because ofthe human factor? A Exactly.41
The fact that small errors will always occur does not mean SkyWest is not following its programs or attemptingto achieve perfection. Even the CMO admitted it

41 Tr. 436:1-8.

FAA Case Nos.: 2011NM060038I FDMS FAA-2012-0874; 2011NM060047 

### I FDMS FAA-2012-0872; 2011NM0600631 FDMS FAA-2012-0873; 2011NM0600721 FDMS FAA-2012-0869; 2011NM060073



### I FDMS FAA-2012-0868; 2011NM0600811 FDMS FAA-2012-0904; 2011NM060095 

### I FDMS FAA2013-0617; and 2012NM0600141 FDMS FAA-2013-0619 (Consolidated) SKYWEST AIRLINES, INC.'S POST TRIAL BRIEF Page 38had difficulty counting bags accurately during its inspections42 and Complainant's counsel was even momentarilynonplussed bythe numbers in this case.4 3 SkyWest's Director ofCustomer Service Training and Standards, Maggi Aiken, summed up SkyWest's corporate philosophywith respectto regulatory compliance:

...as an airline, as an operator, wewantto be compliantwith policy, procedure and the regulations. We interface with our CMO, and theyhave requested-theymade a statementto us thattheywill hold us to veryhigh standards as a regional carrier, because we are a verylarge carrier.

42 (Tr. 451 :20). See also the testimony ofFAA Principal Operations Inspector Andrew Ayers: 

### Q And sometimes counting correctly can be a challenge. A. Itcan. Q Whether it is marbles, poker chips, money, bags. Itis normal human behavior to miscount or forget where you were. A Sure. Q Have you ever miscounted something? A I have. (Tr. 211:11-20). 43 "Perhaps itproves the point that SkyWest has been making thatthe numbers get confusing." Complainant's counsel at hearing (Tr. 194:21-195:1).

FAA Case Nos.: 2011NM060038 

### I FDMS FAA-2012-0874; 2011NM060047 

### I FDMS FAA-2012-0872; 2011NM060063 

### I FDMS FAA-2012-0873; 2011NM060072 

### I FDMS FAA-2012-0869; 2011NM060073



### I FDMS FAA-2012-0868; 2011NM060081 

### I FDMS FAA-2012-0904; 2011NM060095 

### I FDMS FAA2013-0617; and 2012NM060014 

### I FDMS FAA-2013-0619 (Consolidated) SKYWEST AIRLINES, INC.'S POST TRIAL BRIEF Page 39And so, I wantto be compliant. I wantto be held to a high standard. I wantto be the bestin the industry, so I tryto reflect that downthrough my group intrainingto be compliant.44 Describing SkyWest's corporate philosophyregarding FAR compliance, Ms. Aiken summed itup as follows: "It's non-negotiable" (Tr. 444: 10-11). SkyWest's corporate philosophyregardingtraining, according to Ms. Aiken is "one ofthe best in the industry" (Tr. 443:2-3):
We have a very qualitytrainingprogram, and have had people come from other airlines andtell us so, thatwe go above and beyond in a lot ofthetraining, compared to whattheyhad received at other carriers.45 The goal ofthis training is: To teach our people howto load the aircraft, and to ensure we run a safe operation, to teach them howto be the best agents.

To minimize the human factors, certainly. Due to the number of people handling our aircraft, we do, with our own people, the best that we can do in ourtrainingto minimize that, becausewe know it's

44 Tr. 442:10-21. 45 Tr. 443:15-19.

FAA Case Nos.: 2011NM060038 

### I FDMS FAA-2012-0874; 2011NM060047 

### I FDMS FAA-2012-0872; 2011NM060063 

### I FDMS FAA-2012-0873; 2011NM060072 

### I FDMS FAA-2012-0869; 2011NM060073



### I FDMS FAA-2012-0868; 2011NM060081 

### I FDMS FAA-2012-0904; 2011NM060095 

### I FDMS FAA2013-0617; and 2012NM060014 

### I FDMS FAA-2013-0619 (Consolidated) SKYWEST AIRLINES, INC.'S POST TRIAL BRIEF Page 40going to happen, we teach them the right wayto handle and load the aircraft.46 SkyWest has trained other air carriers, including its code share partners, United and Delta (Tr. 444:1-6). But a lingering problem is the lack ofstandardization among carriers, i.e., every airline has a differentweight and balance program, with its own procedures and forms. According to Ms. Aiken, SkyWest has been a leader in standardizing the process (TR. 450:3- 451:5) to reduce the potential for human error. Amiscountis notnecessarily the result oflack oftraining, butis rather the productofhuman factors and the ramp environment (Tr. 451:9-15). As SkyWest expert Carl Salamone testified:
Ithink that the most difficult aspect ofaircraftloading and baggage handling has to do withthe environmentaround which it is centered. The ramp environment it may have temperature swings
...noise and vibration
.. .light, darkness issues, as well as a flurry ofactivity making focus difficult
....

...humans
...have a difficult time inherentlywith counting, and whenyou throw in some difficult environmental factors, it makes thattask even more difficult. And it is reallythe effects ofthe environmenton human performance that could have negative implications
....
46 Tr. 449:7-19.

FAA Case Nos.: 2011NM060038 

### I FDMS FAA-2012-0874; 2011NM060047 

### I FDMS FAA-2012-0872; 2011NM060063 

### I FDMS FAA-2012-0873; 2011NM060072 

### I FDMS FAA-2012-0869; 2011NM060073



### I FDMS FAA-2012-0868; 2011NM060081 

### I FDMS FAA-2012-0904; 2011NM060095 

### I FDMS FAA2013-0617; and 2012NM060014 

### I FDMS FAA-2013-0619 (Consolidated) SKYWEST AIRLINES, INC.'S POST TRIAL BRIEF Page 41...! 

### thinkthat it is reasonable to strive for perfectionbut unreasonable to expectperfection with the sheervolume ofbags thatis handled
....47
VII. CONCLUSION--CASES INVOLVING SIMPLE INNOCENT HUMAN ERROR DO NOT MERIT THE SEVERE SANCTION THAT COMPLAINANT SEEKS: 

### These cases all involve human error-which the FAA has long recognized as being "inescapable and undeniable". 48 

### The aircraft ramp presents a challenging environment--noise, vibration, temperature swings, distractions, psychological, social, biological and other factors that come into playthat can alter and limit human performance.49 

### Human limitation on the process ofloading and counting baggage on aircraft makes itpractically impossible to ensure 100% accuracy.so

47 

### Testimony ofSkyWest's expert, Carl Salamone (Tr. 280:11-281:15).
48 

### FAA Order 9550.8, Human Factors Policy
49 

### Aside from Messrs. Salamone's, Brown's, Barclay's and Christensen's and Ms. Aiken's testimonies in the instant matter, see FDMS Nos. FAA-2011-0485/0486 and FAA-2011-0779 Hearing Transcript 118:2-9
so 

### !d. at 124:11-22;125:1

FAA Case Nos.: 2011NM060038 

### I FDMS FAA-2012-0874; 2011NM060047 

### I FDMS FAA-2012-0872; 2011NM060063 

### I FDMS FAA-2012-0873; 2011NM060072 

### I FDMS FAA-2012-0869; 2011NM060073



### I FDMS FAA-2012-0868; 2011NM060081 

### I FDMS FAA-2012-0904; 2011NM060095 

### I FDMS FAA2013-0617; and 2012NM060014 

### I FDMS FAA-2013-0619 (Consolidated) SKYWEST AIRLINES, INC.'S POST TRIAL BRIEF 

### Page 42

### Despite thebaggage miscounts on 14 ofsome 440,000 flights, there was no compromiseto safety. All flights fell well within both manufacturers' recommendations and within performance ranges calculated byeach flight crew. Moreover, there is no indication, whatsoever, ofany Company-wide noncompliance mindset. Quite to the contrary, as SkyWest's witnesses testified, SkyWesttakes regulatory compliance very seriously. Regulatory compliance as SkyWest's Maggi Aiken is "not negotiable." SkyWest's policytowards FAA compliance is to put compliance first, to follow the regulations, and to seta good example. Training is intended to be proactive and to be the best in the industry. Where SkyWest sees best practices used byother airlines, it incorporatesthose practices where applicable51 

### (and when allowed by the FAA). Complainant seeks a total penaltyof$560,000, or $40,000 per flight for simple human counting and arithmetic errors--matters in which theAdministrative Law judge in the prior cases clearly concluded were technical in nature and did not affect

Sl 

### In additionto Mr. Barclay's, Mr. Christensen's and Ms. Aiken's testimony in the instantcase, see FDMS Nos. 2011-0485/0486 and FAA 2011-0779 Hearing Transcript at 172:15-22;173:1-15

FAA Case Nos.: 2011NM0600381 FDMS FAA-2012-0874; 2011NM060047 

### I FDMS FAA-2012·0872; 2011NM0600631 FDMS FAA-2012·0873; 2011NM0600721 FDMS FAA-2012-0869; 2011NM060073



### I FDMS FAA-2012-0868; 2011NM0600811 FDMS FAA-2012-0904; 2011NM060095 

### I FDMS FAA2013-0617; and 2012NM060014I FDMS FAA-2013-0619 (Consolidated] SKYWEST AIRLINES, INC.'S POST TRIAL BRIEF Page 43safety offlight,52 and which Complainant did not appeal. Again, what, ifanything, has changed in the instant cases that compels anydifferentresult? Complainant's proposed sanction in these cases is excessive, unreasonable, inappropriate and unwarranted bythe facts. Any penaltyimposed should be substantiallyreduced in line with the prior identical cases.53 Complainanthas accused SkyWest ofmerely paying "lip service" to training. However, while Complainant acknowledges thatit should consider errortolerance systems thattake into considerationhuman limitations (FAA Order 9550.8, Human Factors Policy), and has done so for other airlines, ithas merely given "lip service" to human factors in SkyWest's case-refusingto permitSkyWestto amend its W&B Program to address human performance issues54 --while wasting agency resources,

52 Initial Decisions in FDMS FAA-2011-0779 and FAA-201100485/0486: The violations found were technical in nature. Theyhad no material effect onweight and balance or on aircraftperformance. Respondent showed thatin no instance was safety offlight ateven the slightest risk. (Initial Decisions at 7). 53 Again, these "prior cases" arose contemporaneouslywith the instant cases. Theywere merelylitigated 1 

### 'h years earlier. 54 FDMS Nos. 2011-0485/0486 and FAA 2011-0779 HearingTranscript 112:19-22;113:1-17

FAA Case Nos.: 2011NM060038 

### I FDMS FAA-2012-0874; 2011NM060047 

### I FDMS FAA-2012-0872; 2011NM060063 

### I FDMS FAA-2012-0873; 2011NM060072 

### I FDMS FAA-2012-0869; 2011NM060073



### I FDMS FAA-2012-0868; 2011NM060081 

### I FDMS FAA-2012-0904; 2011NM060095 

### I FDMS FAA2013-0617; and 2012NM060014 

### I FDMS FAA-2013-0619 (Consolidated) SKYWEST AIRLINES, INC.'S POST TRIAL BRIEF Page 44

### positioning qualified aviation inspectors atvarious airports throughoutthe country to sit and waitfor arrivals ofSkyWest aircraft and countbaggage. Complainant could better deploy its otherwise valuable resources. There has been extensive evidence ofthe substantial corrective actions that SkyWest has takento preventhuman error in countingbaggage, including, among otherthings, enhanced initial and recurrenttraining, annual W&B Workshop Conferences, selfaudits to ensure compliance, online CLR training courses; focus groups conducted with frontline agents to better understand where potentials for
error exist; better coordination with contract stations and code-sharing carriers handling SkyWest's aircraft loading; manual, policy and procedure revisions; and workingwith other carriers and the FAA55 

### to design industry-leadingtraining and standardization ofground operations-all with the intended objective ofimproving accuracy and reducing the likelihood ofhuman error.

55 

### The FAA's Salt Lake City Certificate Management Office (CMO) participated in SkyWest's efforts. Representatives ofthe CMO attended and participated in SkyWest's W&B training and never stated that it was insufficient or ineffective. SkyWest had periodic teleconferences with its CMO to ensure SkyWest's compliance efforts were satisfactory, and again, the FAA never offered even a hintthatSkyWest's actions were in anyway inadequate or "ineffectual".

FAA Case Nos.: 2011NM060038 

### I FDMS FAA-2012-0874; 2011NM060047 

### I FDMS FAA-2012-0872; 2011NM060063 

### I FDMS FAA-2012-0873; 2011NM060072 

### I FDMS FAA-2012-0869; 2011NM060073



### I FDMS FAA-2012-0868; 2011NM060081 

### I FDMS FAA-2012-0904; 2011NM060095 

### I FDMS FAA2013-0617; and 2012NM060014 

### I FDMS FAA-2013-0619 (Consolidated) SKYWEST AIRLINES, INC.'S POST TRIAL BRIEF 

### Page 45

### Interestingly, in the prior cases, Complainant lodged substantially similar criticisms ofSkyWest's corrective actions. In its Post-Trial Briefin the prior cases, Complainant cited the 21 different measures taken by SkyWest, claiming that 14 did notwork and 7 arejusta "rehash [of] previous efforts known to be ineffectuai".S6 This statement calls into question the nature ofthe FAA's enforcementpolicy as SkyWest took extensive efforts to collaborate with the FAA to ensure its W&B program and baggage/cargo loading procedureswere adequate and the FAA is now, with apparent 20-20 hindsight, saying itwas not enough. On multiple occasions SkyWest met andworked with the FAA in formulating many ofits corrective actions. The fact is, there is no magic silver bulletthat is absolutely guaranteed to prevent human error 100 percent ofthe time. And to the extentthatthese matters arose as a result ofsimple human error, no civil penalty, large or small, is going to prevent
recurrence. Complainant additionally attempts to justifythe proposed penaltyon the grounds thatSkyWest can afford it, citing SkyWest's 2013 Annual Report which

56 

### Complainant's Post-Trial Brief, page 12-13

FAA Case Nos.: 2011NM0600381 FDMS FAA-2012-0874; 2011NM060047 

### I FDMS FAA-2012-0872; 2011NM060063I FDMS FAA-2012-0873; 2011NM0600721 FDMS FAA-2012-0869; 2011NM060073



### I FDMS FAA-2012-0868; 2011NM0600811 FDMS FAA-2012-0904; 2011NM0600951 FDMS FAA2013-0617; and 2012NM060014I FDMS FAA-2013-0619 (Consolidated) SKYWEST AIRLINES, INC.'S POST TRIAL BRIEF 

### Page 46shows a net profitfor thatyear of$135,519,000.57 SkyWest operated 620,500 flights in 2013, which means it made $218.40 per flight. At the proposed $40,000 penalty, SkyWest would have to operate 184 flights to payfor a single miscounted bag! Ability to pay should notin and ofitselfjustify a sanctionwhich is unreasonable, excessive and unwarranted.
In conclusion, should theAdministrative Law judge determine that a sanction is required, SkyWestrequests that itbe reduced for the reasons set forth above.
DATED this 4'h day ofAugust, 2014.

Michael L. Dworkin Co-Counsel for SlzyWestAirlines

57 Complainant's Post-Trial Briefat 20. However, SkyWest's Annual Report is notin evidence, nor has Complainantrequestedjudicial notice ofsame. Moreover, theAnnual Report is for 2013, butthese cases arose in 2011. In 2011, according to SkyWest's Annual Report for thatyear, ithad a netloss of$27.8 million.

FAA Case Nos.: 2011NM0600381 FDMS FAA-2012-0874; 2011NM060047 

### I FDMS FAA-2012-0872; 2011NM0600631 FDMS FAA-2012-0873; 2011NM0600721 FDMS FAA-2012-0869; 2011NM060073



### I FDMS FAA-2012-0868; 2011NM0600811 FDMS FAA-2012-0904; 2011NM0600951 FDMS FAA2013-0617; and 2012NM060014I FDMS FAA-2013-0619 (Consolidated] SKYWEST AIRLINES, INC.'S POST TRIAL BRIEF Page 47CERTIFICATE OF SERVICE The undersigned hereby certifies that onthis 4th day ofAugust, 2014, a true and correct copy ofthe foregoing: POST-TRIAL BRIEF
was served as follows: The Honorable Richard C. Goodwin Office ofHearings, M-20 1200 NewjerseyAvenue, S.E. East Building Ground Floor, Room E12-320 Washington, D.C. 20590 Email: richard.goodwin@dot.gov {FEDEX and Email} Federal Aviation Administration 800 IndependenceAvenue SW Washington, DC 20591 Attn: Hearing Docket Clerk, AGC-430 WilburWright Building- Suite 2W1000 {FEDEX} jeffreyM. Harper Federal Aviation Administration Northwest Mountain Region, ANM-7 1601 Lind Avenue S.W. Renton, Washington 98057 Fax: (425) 227-1007 Email: Jeffrey.harper@.l?-a.gov {FEDEX, FAX and Email}


# (}tAltiiU t11;JJ!uz ) CAITLIN M. MILLER

FAA Case Nos.: 2011NM060038 

### I FDMS FAA-2012-0874; 2011NM060047 

### I FDMS FAA-2012-0872; 2011NM060063 

### I FDMS FAA-2012-0873; 2011NM060072 

### I FDMS FAA-2012-0869; 2011NM060073



### I FDMS FAA-2012-0868; 2011NM060081 

### I FDMS FAA-2012-0904; 2011NM060095 

### I FDMS FAA2013-0617; and 2012NM060014 

### I FDMS FAA-2013-0619 (Consolidated) SKYWEST AIRLINES, INC.'S POST TRIAL BRIEF Page 48