U.S. DEPARTMENT OF TRANSPORTATION FEDERAL AVIATION ADMINISTRATION 

# RECEIVED SEP 16 2015 

## HEARING DOCKET FEDERAL AVIATION ADMINISTRATION ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Complainant.

v. DocketNo. 2011NM060073; 2011NM060072; 2011NM060047; 2011NM060063; 2011NM060038; 2011NM060081; 2011NM060095; 2012NM060014 FDMS No. FAA-2012-0868; FAA-2012-0869; FAA-2012-0872; FAA-2012-0873; FAA-2012- 0874; FAA-2012-0904; FAA-2013-0617; FAA-2013-0619
SKYWEST AIRLINES Respondent.

COMPLAINANT'S APPEAL BRIEF Pursuant to section 13.233(d) ofthe Rules ofPractice, 14 C.F.R. § 13.233(d), Complainant files this briefin support ofits appeal ofthe Initial Decision issued by Administrative Law Judge Richard C. Goodwin on July 16, 2015, inthe above-captioned matters. I. STATEMENT OF THE CASE This case arises from eight separate Final Notices ofProposed Civil Penalty issued to Sky West Airlines ("SkyWest" or "Respondent") alleging that it failed to load aircraft in accordance with its Weight and Balance Manual, incorporated into its operations specifications, and to prepare an accurate load manifest in connection with 14 separate flights over the course ofthe eight-month period between March 3, 2011, and November 16, 2011, in violation of 14 C.F.R. §§ 119.5(g) & 

### (1), 121.693(a), (c), & (d). The eight

cases were consolidated by an Order dated August 21, 2013, and a hearingwas held before Administrative Law Judge (ALJ) Richard C. Goodwin on May 19-20, 2014. On July 16, 2015, the ALJ issued eight separate decisions, which collectively found that Respondent violated 14 C.F.R. §§ 119.5(g) & (I) for 13 of the 14 alleged flights (with the exception ofFlight 4540 alleged in FAA-2012-0874) by failing to 1accurately prepare a Cargo Load Report in accordance with its Weight and Balance Manual. The ALJ also found that Complainant failed to make a

### prima.facie case as to the violations of 14 C.F.R. §§ 121.693(a), (c), & (d), which requires, among otherthings, the load manifest to contain the weight ofthe cargo and baggage, the total weight computed under approved procedures, and evidence thatthe aircraft is loaded according to an approved schedule. In consideration ofthese findings, the ALJ assessed a nominal penalty of$250 limitedto the 13 flights for which he found a violation of 14 C.F.R. §§ 119.5(g) & 

### (1), for an aggregate penalty of$3,250. Complainant timely appealed each ofthe ALI's eight decisions, and files this consolidated briefin support ofits appeal. Tl. STATEMENT OF THE FACTS On 14 separate occasions overthe course ofan eight-month period, Respondent failed to load its aircraft in accordance with the requirements ofits Weight and Balance Manual (also known as Standard Practice (SP) 4100) (Ex-R-1-1), which requires the total count ofeach type ofbaggage and other cargo, including standard bags, heavybags, planeside items, ballast, company material, and live animals, to be delineated on the Cargo Load Report (CLR). 1 (See Ex. R-1-1, Page 4-1 0; FAA-2012-0869 Compl.**~** II.9,**Answer~** II.9). The CLR is a two-part form and is the primary document used to communicate weight and balance information from the designated loading agent (who receives the baggage) to the pilot in command (PIC). (Ex. R-1-1, Page 3-8,**~** 4.a). For each ofthese 14 instances, an Aviation Safety Inspector (ASI) testified that the count ofbaggage and cargo he or she observed being unloaded from the aircraft did not matchthe amount ofstandard bags, heavy bags, ballast, company material, and/or live animals listed on each flight's CLR.Z For an illustrative example, on May 5, 2011, Respondent loaded and operated Flight 1160 from Houston to Colorado Springs. (Tr. 114-15). The CLRfor this flight indicated that there were 23

1 This appeal pertains to 14 separate flights pled across eight separate Complaints. In the interest ofbrevity, the evidence and testimonyproviding the basis for the violations that occurred on each ofthe 14 flights are not detailed in this section. A chartprovidingthe testimony and documentary evidence that corresponds to each flight is attached as Appendix A. This Appendix was submitted as a part ofComplainant's Post-Trial Briefand is therefore part ofthe administrative record.
2 See Appendix A. See also Tr. 41-43 for Flight 5840; Tr. 116-17 for Flight 1160; Tr. 23-24 for Flight 4464; Tr. 148 for Flight 6756; Tr. 153 for Flight 6991; Tr. 96 for Flight 6960; Tr. 117-119 for Flight 6756; Tr. 48-50 for Flight 4553; Tr. 55- 56 for Flight4540; Tr. 62 for Flight 4445; Tr. 67forFlight 4613; Tr. 170-71 for Flight 4781; Tr. 120-122 for Flight 1160; Tr. 106 for Flight 5449. 2standard bags and 24 planeside bags loaded onto the aircraft. (Ex. C-3). However, AS! Wallentine, who
was performingroutine surveillance at Colorado Springs airport, testified that she observed 35 standard bags and 24 planeside bags unloaded from the aircraft upon its arrival. (Tr. 116-17). Respondent's operations specifications require that its aircraft be loaded according to Respondent's Weight and Balance Manual, which includes the proper completion ofthe CLR. (See FAA-2012-0869 Compl.

**~~** II.3 & 4, Answer

# nIl.3 & 4). Thus, as the ALI concluded, by failing to accurately list the amount and type of baggage on the CLR, Respondent loaded and operated the aircraft contrary to its operations specifications in violation of 14 C.P.R. §§ 119.5(g) & 

### (1). (See Decision for FAA-2012- 0869 at 23-24) 3 Respondent's Weight and Balance manual also dictates that the PIC prepares the load manifest using information from the CLR. (Ex. R-1-1, Page 4-17,

# n 12.B.l and 12.C.l.).4 The load manifest is the documentthat is required to correctlyreflect the aircraft's loaded weight; it includes fuel, passengers, baggage, and cargo for each flight. (Ex. R-1-1, Page 4-17,

**~~** 12.B.1 and 12.C.1.). Byregulation, the load manifest must contain, among otherthings, the weight ofthe cargo and baggage at the time oftakeoff. 14 C.F.R. § 121.693(a). To calculate this weight, Respondent's Weight and Balance Manual defines each type ofcargo and assigns an average weightto each category. (Ex.R-1-1, Page 3-9). Under this average weights program, a "standard checked bag" is defined as a bag weighing 50 pounds or less; Respondent's manual assigns a standard checked bag a weight of30pounds each. (See, e.g., FAA-2012-0869 Compl.

**~** II.5,

**Answer~** II.5; Ex. R-1-1, Page 3-9; Tr. 378). A "Planeside Valet Bag," "Planeside Loaded Bag," and "Service Item" is also assigned a weight of30 pounds each. (See, e.g., FAA-2012-0869 Compl.

**~~** 1!.6-8,

**Answer~~** !1.6-8; Ex R-1-1, Page 3-9; Tr. 378 -379). A "heavy checkedbag" is a bag weighing
more than 50 pounds, but less than I00 pounds; it is assigned an average weight of60 pounds. (See, e.g., FAA-2012-0872 Compl.

**~** II.I0,

**Answer~** 11.10; Ex. R-1-I, Page 3.9; Tr. 378). Live animals checked as

3 Despite the consolidation ofthese cases for hearing, the ALI issued eight separate initial decisions for these cases. While the ALJ's recitation ofthe facts and witness testimony is distinct in each decision, his conclusions oflaw and rationale for his findings ofviolations, or lack thereof, are verbatim. Therefore, only one ofhis decisions will be cited as a representative source when the proposition applies across all eight decisions. 4 The PIC receives one copy; the departure station retains the other (the "station copy"). (Ex. R-1- I, Page 4-8). 3baggage are assigned a weight of30 pounds each, or 60 pounds each for those meeting heavy baggage criteria. (See, e.g.,. FAA-2012-0874 Compl.

**~II.**I5,

**Answer~** II. 15; Ex. R-1-1, Page 4-3). Andrew Ayers, a Principle Operations Inspector for the FAA who was received by the ALJ as an expert in weight and balance (Tr. I81-82; 184), testified that ifa CLR does not correctly reflect the cargo that is actually loaded onto the aircraft, the weight calculated from this data will be inaccurate. (See Tr. 200). Correspondingly, a cargo and baggage weight listed on a load manifestprepared using such a CLRwould also be incorrect. ld. To continue the previous illustration, the CLR for Flight 1160 stated that 23 standard bags were loaded onto the aircraft. (Ex. C-3). Thirty-five bags were actually loaded. (Tr. 116- 17). Mr. Ayers testified that the cargo weight listed on the load manifest for this flight corresponded to the baggage datalisted on the CLR (e.g., assigning each ofthe bags listed on the CLR the 30-pound weight required byRespondent's Weight and Balance Manual yielded the weight listed on the load manifest). (Tr. 199). Thus, the load manifest for Flight 1160 listing a cargo weight of1410 pounds (Ex. C-4) was incorrect. (Tr. 200), because it failed to account for the additional 12 standard bags loaded on to the aircraft. This is the case for each ofRespondent's 14 flights 5 To counter this evidence, Respondent presented the deposition testimony ofCarl Salamone, who the ALJ accepted as an expert inthe field ofcalculation ofaircraft weight and balance, who opined that
none ofthe flights exceeded the manufacturer's maximum for takeoffweight, center ofgravity, runway performance, climb performance, or maximum operating altitude. (Tr. 241-45). Specificallypertaining to Flight 1160, he testified that the 12 bags not accounted for onthe CLR would have resulted in an additional 360 pounds ofcargo. (Tr. 262). This would have had a "negligible" impact on the aircraft's operation; the aircraft was still belowthe maximum takeoffweight and the additional baggage moved the center of gravity for this flight by approximately one percent. (Tr. 263). Therefore, he concluded that there was no safety impact. (Tr. 263-64).

5In his testimony, Mr. Ayers compares the weight listed on the load manifest for each flight with the weight that would have been calculated from the data onthe CLRusing the method required by Respondent's Weight and Balance Manual. He concludes that the loadmanifest for each flight was derived from incorrect data. (See Tr. 198- 207). 4In his eight decisions, the ALI collectively summarized each witness' testimony and found "the testimony ofall witnesses to have been truthful and credible,'' (See, e.g., Decision for FAA-2012-0869 at 21). For 13 ofthe total14 flights, he found Respondent's failure to accurately prepare a CLR constituted a violation of 14 C.F.R. §§ 119.5(g) & 

### (1). 6 The ALI declined, however, to fmd a violation ofthese subsections for Flight 4540 as alleged in Case No. FAA-2012-0874, because he found that due to a typographical error in the Complaint "the evidence and testimony did not conform to the pleadings." (Decision for F AA-2012-0874 at 43-44). The ALJ also concludedthat Complainant failed to make a

### prima facie case ofviolation of 14 C.F.R. §§ 121.693(a), (c), & (d) for each ofthe 14 flights. (See, e.g., Decision for FAA-2012-0874 at 24). Specifically, he determined that "a carrier's load manifest willpass muster ifit has been compiled using approved procedures, and [] the method used insures thatthe center ofgravity is within limits." !d. As appliedto Respondent's cargo and baggage loading in each ofthe 14 flights, the ALJ found thatthe "evidence shows that [Respondent] followed these mandates." ld. at 24-25. Accordingly, he declinedto find a violation ofthe load manifest provisions as pled inthe Complaints. !d. In assessing a civil penalty for Respondent's 13 violations of 14 C.F.R. §§ 119.5(g) & 

### (1), the ALI concluded that Respondent's failure to prepare an accurate CLR was "technical in nature." Id. at 27. Thus, only a "minimal amount of$250 per violation" was warranted. Id. at 28. The ALJ declined to assess a separate civil penalty for Respondent's violation ofeach subsection of 119.5; instead, he determined that the distinction between 119.5(g) and (I) is "inconsequential" and "just one civil penalty per flight is appropriate." Id. at 27. On these grounds, the ALJ assessed a total penalty of$250 for each ofthe 13 flights for whichhe found a violation ofsubsections 119.5(g) & (1).

6 The ALJ found a violation of 14 C.F.R. §§ 119.5(g) & (I) as alleged for the flights pled in Case Nos. FAA-2012-0868; F

AA-2012-0869; FAA-2012-0872; FAA-2012-0873; FAA-2012-0904; FAA-2013-0617; FAA-2013-0619; and flight numbers 4553, 4445, and 4613 in Case No. FAA-2012-0874.5Ill. STATEMENT OF THE ISSUES A. Whether the ALJErred ByFailingto FindA Violation of 14 C.F.R. §§ 119.5(g) & (!)for Flight4540 As Alleged in FDMS No. FAA-2012-0874. B. Whether the ALJ Erred byFailing to Find a Violation of 14 C.F.R. § 12!.693(a), (c). & (d). C. Whether the ALJ's Imposition ofa $250 Sanction Per Each ofRespondents' 13 Flights is Contrary to Law, Precedent, and Policy. IV. STANDARD OF REVIEW Underthe Rules ofPractice, the Administrator considers on appeal whether the ALJ's findings of fact are supported by a preponderance ofreliable, probative, and substantial evidence. 14 C.F.R. § 13.233(b)(I). The Administrator also considers whether the ALJ's conclusions oflaw are in accordance with applicable law, precedent, andpublic policy. 14 C.F.R. §13.233(b)(2). Finally, the Administrator considers whetherthe ALJ committedprejudicial errors during the hearing orproceedings. 14 C.F.R. § 13.233(b)(3). Complainant bears the burden ofproving the appropriateness ofthe civil penalty, but Respondent bears the burden ofproofofan affirmative defense, such as corrective action. See 14 C.F.R. § 13.224(a); Inthe Matter ofSeven's Paint & Wallpaper Co., FAA Order No. 2001-6 (May 15, 2001). V. ARGUMENT A. The ALJ Erred By Failing to Find A Violation of 14 C.F.R. §§ 119.5(g) & (!)forFlight 4540 As Alleged in FDMS No. FAA-2012-0874. In his eight decisions addressingthe allegations contained in the consolidated Complaints, the ALJ collectively found that Respondent violated 14 C.F.R. §§ 119.5(g) & (l) by failing to accurately prepare a CLR in accordance with the requirements ofRespondent's Weight and Balance Manual (SP 4100), as incorporated into its OpSpecs, for all but one ofthe 14 flights alleged in the Complaints. (See, e.g., Decision for FAA-2012-0868 at 27; Decision for FAA-2012-0874 at 34). Forthis one flight- Flight 4540 alleged in FAA-2012-0874- the ALJ declined to find a violation? His stated rationale for this decision is

7 Complainant does notappeal the ALI's fmdings as they pertainto Case Nos. FAA-2012-0868; FAA-2012-0869; FAA-2012-0872; FAA-2012-0873; FAA-2012-0904; FAA-2013-0617; FAA-2013-0619; and flight numbers 4553,4445, and 4613 in Case No. FAA-2012-0874. Complainant does appeal the ALI's failure to find a violation of 119.5(g) & (l) with respect to Flight 4540 in Case No. FAA-2012-0874). 6grounded in a trivial pleading error. (See Decision for FAA-2012-0874 at 43-44). Specifically, the Complaint for Case No. F AA-2012-0874 pleads, in pertinentpart: 29. On March 3, 2011, at Missoula International Airport (MSO), Missoula, Montana, SkyWest loaded passengers and baggage on to N465SW, to be operated as Flight 4540 bound for SLC. 30. SkyWest's personnel at MSO loaded 250 pounds ofballast and 100 pounds ofCOMAT onboardN465SW. 31. The CLRfor Flight 4540 listed 350 pounds ofCOMAT onboard N614SK. 32. SkyWest thereafter operated N465SW as Flight 4540 to SLC. (FAA-2012-0874 Campi. Section V.

**~29-32).** As illustrated above, paragraph 31 ofthe Complaint inadvertently identifies the aircraft operated on Flight 4540 as "N614SK" instead of"N465SW." The aircraft is correctly identified in the remaining paragraphs 29, 30, and 31. At the hearing, Complainant introduced evidence pertaining to N465SW. Specifically, Complainant introduced the CLR for Flight 4540, which listed the aircraft as N465SW and indicated a COMAT weight of350 pounds. (Ex. C-21). Complainant also introduced the testimony ofAviation Safety Inspector (AS!) Perkins, who testified there was a discrepancy between the actual cargo unloaded from the aircraft and the cargo reported on the CLR; he observed the aircraft upon arrival in SLC and testified that it actually contained 250 pounds ofballast and 100 pounds ofCOMAT. (Tr. 56). ASI Perkins also testified that he photographed the ballast and COMAT carried by aircraft N465SW upon its arrival at SLC. (Ex. C-23; Tr. 60). Respondent's OpSpecs require that aircraft loading be accomplished in accordance with SkyWest's Weight and Balance Manual, SP 4100. (See, e.g, FAA-2013-0617

**Campi.~** 3 &

**Answer~** 3). The relevantportions ofthis manual require the designated loading agent to record the actual weight for baggage and cargo, including COMAT and ballast, on the CLR. (Ex. R-1, SP4100 at 3-6). Accordingly, as found by the AU withrespectto the other 13 flights, Respondent's OpSpecs obligate the carrier to prepare
a CLR for each flight that accurately reflects the weight ofeach category ofcargo. (See, e.g., Decision for FAA-2012-0874 at 40-41). Thus, Respondent's failure to properly reflect on the CLR the actual weight of

7the ballast and COMAT loaded onto N465SW, and the subsequent operation ofN465SW as Flight 4540, constitutes violations ofsections 119.5(g) & 

### (1). Yet, in light ofthe above-referenced typographical error in the Complaint, the ALJ held that "the evidence and testimony did not conform to the pleadings." (Decision for FAA-2012-0874 at 43-44). Essentially, he held that because paragraph 31 ofthe Complaint inadvertently identified the wrong aircraft, he could not find a violation of 14 C.P.R. §§ 1!9.5(g) and (I) for Flight 4540. (Decision for FAA-2012- 0874 at 43-44). This conclusion is in error. The Rules ofPractice in FAA Civil Penalty Actions require onlythat facts and regulations be plead "in sufficient detail to provide notice ofany factual or legal allegation." 14 C.F.R. § 13.208. Similarly, section 554(b)(3) ofthe Administrative Procedure Act provides that "[p ]ersons entitled to notice ofan agency hearing shall be timely informed of
... the matters offact and law asserted. 5 U.S.C. § 554(b)(3). 'Theprincipal purpose ofthe [FAA's] complaint is to put a respondent on notice ofthe charges against him." Administrator v. Cable, 2 NTSB 1967, 1968 (1995). See also L.G. Balfour Company v. FTC, 442 F.2d l, 19 (7th Cir 1971) ('The purpose ofthe Administrative complaint is to give the responding party notice ofthe charges against him."). As such, the allegations in
an administrative complaint "need not be technically precise as long as it generally informs the party charged ofthe nature ofthe alleged violation." George C. Foss Co. v. NLRB, 752 F.2d 1407, 1411 (9'h Cir. 1985). The ultimate question, therefore, is not simply whetherthe pleading was adequate as a formal matter, butrather whetherthe procedure afforded the Respondent was fair. Aloha Airlines, Inc., v. CAB, 59 F.2d 250, 262 (D.C. Cir. 1978). Here, the procedure was. Respondent never claimed thatthe Complaint failed to give it appropriate notice ofthe facts or regulations that would be raised atthe hearing. Given that three out ofthe four relevant paragraphs in the Complaint identified the correct aircraft, there was no reasonable ambiguity as to what flight or what aircraft was at issue. Moreover, each ofthe exhibits offered at the hearing as evidence ofthese allegations pertained to N465SW. (See Ex. C-21, C-22, C-23). These exhibits, identifYing the correct aircraft number,
were tendered to Respondent during discoverywell before the hearing. Respondent did not object to the introduction ofthese exhibits at the hearing, nor to the testimony ofAS! Perkins regarding his inspection 8and observation ofaircraftN465SW. (Tr. 55-58). Infact, in its Answer to the Complaint, Respondent admitted the allegations contained in paragraph 31. (FAA-2012-0874 Answer Section V. ,;31). Accordingly, this factual allegation was not even in dispute before the ALJ. See 14 C.F.R. § 13.209 (an allegation contained in the complaint that is not specifically denied in the answer may be deemed an admission ofthe truth ofthat allegation). A similar issue arose in In the Matter ofPinnacle Airlines, FAA OrderNo. 2012-2 (May 22, 2012). In that case, Complainant incorrectly referenced 49 U.S.C. §4630l(a)(5) as the grounds for its statutory authority for civil penalties, ratherthan citing the correct section 46301 (a)(!) in its Complaint. On appeal, Pinnacle argued that the ALJ erred in assessing a civil penalty under a statute that Complainant did not assert in the complaint. See id. at 9. The Administrator, however, heldthatthe failure by Complainant and the ALJto cite the correct statutory provision as the authority for assessing a civil penalty was harmless error, because the Complaint, although it contained a typographical error, provided Pinnacle with sufficient notice it was subjectto a civil penalty. See id. at 10. Such is the case here. Admittedly, Complainant misidentified one aircraft in one paragraph ofthe Complaint; however, such a technical error did not impact Respondent's notice ofthe charges againsthim in any way, and should not be a basis for dismissal ofthe allegations. See Mkt. St. Ry. Co. v. R.R. Comm'n ofState ofCal., 324 U.S. 548, 562 (1945) ("[D]ue process deals with matters ofsubstance and is not to betrivialized by formal objections that have no substantial bearing on the ultimate rights ofparties."). In light ofthe evidence presented athearing, which demonstrates that Respondent loaded N465SW using an inaccurate CLRand operated subsequently operated N465SW as Flight 4540, the Administrator should find that Respondent violated 14 C.F.R. §§ 119.5(g) & (I) by failing to comply with its Weight and Balance Manual. A civil penalty should thereby be assessed for these violations accordingly, as further discussed below.

9

### B. The ALJ Erred By Failing to Find a Violation of 14 C.F.R. 

### § l2l.693(a),(c), &(d). Section 12!.693 provides, in relevant part: The load manifestmust contain the following information concerning the loading ofthe airplane at takeofftime: (a) The weight ofthe aircraft, fuel and oil, cargo and baggage, passengers and crewmembers. (c) The total weight computed under approved procedures. (d) Evidence that the aircraft is loaded according to an approved schedule that insures that the center ofgravity is within approved limits. 1. Respondent Violated 14 C.P.R.§ 12l.693(a) by Failing to Reflect an Accurate Weight for Cargo and Baggage on the Load Manifest for 13 Flights8 

### The Federal Aviation Regulations (FARs) require thatthe weight ofcargo and baggage be listed on the load manifest at takeoff. 14 C.F.R. § 

### l2l.693(a). The FARs further provide that "[e]ach certificate holder is responsible for the preparation and accuracy 

### ofa load manifest form before each takeoff." I4 C.P.R. §

### 121.665 (emphasis added). Reading these two provisions harmoniously, as traditional cannons ofconstruction dictate,9 

### shows thatto in order to comply with the requirements ofsection 121.693(a), the weight listed on the load manifest must be accurate. This interpretation has been upheld by both the Administrator and the National Transportation Safety Board (NTSB) in the context ofthe comparable provision in Part 135, which similarly requires "thetotal weight ofthe loaded aircraft" to be listed on the load manifest. See 14 C.F.R. 135.63(c). Specifically, the Administrator held in Tn the Matter ofPolynesian Airways, FAA OrderNo. 94-40, at II (Dec. 9, 1994), that Polynesia Airways' use ofan inaccurate aircraft weightto calculate the total weight ofthe loaded aircraft gave rise to a violation ofsection 135.63(c), because a Part 135 operator is "responsible for the accuracy ofthe load manifest." ld. at II (emphasis in

8 Complainant appeals this fmding as it pertains to Case Nos. FAA-2012-0868; FAA-2012-0869; FAA-2012-0872; FAA2012-0873; FAA-2012-0904; FAA-2013-0617; FAA-2013-0619; and flight numbers 4553, 4445, and4613 in Case No. FAA-20 12-0874. Complainant does not appeal this finding as itpertains to Flight4540 in FAA-2012-0874 because the weight listed on the load manifest for that flight was correct.
9 Itis a "fundamental canon ofstatutory construction that the words ofa statute mustbe read in their context and with a view to their place in the overall statutory scheme." Davis v. Michigan Dept. ofTreasury, 489 U.S. 803, 809 (1989). A court must therefore interpret the statute "as a symmetrical and coherent regulatory scheme," Gustafson v. Alloyd Co., 513 U.S. 561, 569 (1995), and "fit, ifpossible, all parts into an harmonious whole," FTC v. Mandel Brothers, Inc., 359 U.S. 385, 389 (1959). SeeFood & Drug Admin. v. Brown & Williamson Tobacco Com., 529 U.S. 120 (2000). 10original). The Administrator further noted that ifthe empty weight ofthe aircraft is incorrect, then "all of the calculations based thereon, such as the weight and balance for a loaded aircraft, likewise will be**wrong."~** The NTSB has taken a similar position, finding that when inaccurate data is used to calculate the weight listed onthe load manifest, the load manifest is incorrect and a violation 121.693(a), or the comparable provision in 135.63(c), may be found. See Administrator v. Rogers, NTSB OrderNo. EA4428, 1995 WL 624468, at*I fn. 4 (Mar. 5 1996) (errors in load manifest gave rise to violation of 135.63(c); specifically, crews weight should have been recorded as 508 pounds, not 330, and actual cargo weight was approximately 520 pounds, not 330 as listed in load manifest); Administrator v. Angstadt, NTSB Order No. EA-5421, 2008 WL 5373647, at *1,7 (Dec. 17, 2008) (ALJ did not err by finding a violation of 121.693(a) when load manifest incorrectly indicated 33 adults and one child, but there were 34 adults and no children on the aircraft). Here, the evidence presented at the hearing demonstrates thatRespondent used inaccurate CLR data to calculate the weight ofthe cargo and baggage, and, thus, Respondent violated section 121.693(a) by failing to reflect the accurate weight for cargo and baggage on the load manifest for 13 tlights. 10 11 Respondent's manual provides that the pilot in command (PIC) prepares the load manifest using the information listed on the "Cargo Load Report" (CLR). (Ex. R-1-1, Page 4-17; Tr. 185). The CLR is the "primary document used to communicate weight and balance information
... to the PIC." (Ex. R-1-1, Page 3-8). Accordingly, ifthe CLR is incorrect, so is the load manifest. For each ofthe 14 flights alleged in the Complaint, an ASI testified that the baggage and cargo unloaded from the aircraft did not match the cargo

1

## °For Flight 4540, an AS! testified thatthe aircraft was loaded with 250 pounds ofballast and 100 pounds ofcompany material, a total of350 pounds. (Tr. 55). The CLR obtained by the AS! ftom the flight crew showed no ballast on board and 350 pounds ofCOMAT, atotal of350 pounds. (Ex. C-23). Inthis instance, the Respondent happened upon the correct actual weight for the cargo andbaggage, though it fortuitously did so given its failure to follow its own procedures. Therefore. Complainant does not appeal the ALJ's failure to fmd a violation of 14 C.F.R.§ 121.693(a) as it pertains to Flight 4550 in Flight FAA-3023-0087 because the weight listed onthe load manifest was technically accurate. As discussed further below. this conduct still gives rise ofa violation of 14 C.F.R.§ 121.693(c) &(d) because Respondent failed to compute the weight ofthe cargo using approved procedures, and failed to the load the aircraft in accordance with the approved schedules in its Weight and Balance Manual.
11 See Tr. 41-43 for Flight 5840; Tr. 116-17 for Flight 1160; Tr. 23-24 for Flight 4464; Tr. 148 for Flight 6756; Tr, 153 for Flight 6991; Tr. 96 for Flight 6960; Tr. 117-119 for Flight 6756; Tr. 48-50 for Flight 4553; Tr. 55-56 for Flight 4540; Tr. 62 for Flight 4445; Tr. 67for Flight 4613; Tr. I70-71 for Flight 4781; Tr. 120-122 for Flight 1160; Tr. 106 for Flight 5449. 11and baggage listed onthe CLR. 12 As the Administrator noted in Polynesian Airways, when the underlying data used to calculate weight is incorrect, the load manifest weight will be incorrect as well. (But for, a fortuitous circumstance ofthe kind described in footnote I0). See FAA OrderNo. 94-40, at 11-12. Andrew Ayers, a Principle Operations Inspector for the FAA and an expert in weight and balance (Tr. 181-82; 184), testified to this effect. He explainedthathe is familiar with Respondent's operational procedures (Tr. 184), and when the information on the CLR does not match the actual cargo loaded onthe aircraft, the load manifest will also be inaccurate. (Tr. 200). This is a particularly critical safety issue, given that ifan aircraft is actually heavierthan itpurports to be, all ofthe performance numbers derived for a particular flight are invalidated. (Tr. !89). To demonstrate the inaccuracy ofeach load manifest, Mr. Ayers calculated a total cargo load weight fi·om the CLR for each flight using the average weights assigned by Respondent's Weight and Balance Manual; he then compared this calculated weight to the weight listed on the load manifestto determine whether the load manifest for each mirrored the incorrect CLR for that flight. (See Tr. 185, 192- 207). Byway ofillustration, the CLRfor Flight 1160 (FAA-2012-0869) listed 23 standard bags and 24 Planeside Valet bags. (Ex. C-3)YRespondent's weight and balance manual assigns these types ofbags an average weight of30 pounds each. (See, e.g., FAA-2012-0869 Compl.

**~** 11.5-8,

**Answer~** II.5-8; Ex. R-1-1, Page 3-9; Tr. 378-79). Assigning a 30-pound weight to each ofthe 47 bags listed on the CLR yields a total weight of 1410 pounds. The load manifest for Flight 1160 lists a total cargo weight of 1410 pounds, mirroring the CLR. (Ex. C-4). Thus, the weight as calculated using the incorrect CLR data matches the cargo weight listed onthe manifest. (Tr. 199). This weight, however, is incorrect. ASI Wallentine observed 35 standard bags- rather than the 23 listed on the CLR- unloaded from the aircraft upon its arrival in SLC. (Tr. 116). Because the CLR did not reflect the accurate cargo loaded onto the aircraft, the cargo and baggage weight listed on the load manifest for Flight 1160, as derived from the inaccurate CLR, is also

12 See Fn. 11.
13 AS! Wallentine, who was performing routine surveillance in Colorado Springs airport, testifiedthat she observed 35 standard bags and 24 p1aneside bags unloaded from the aircraft upon its arrival. (Tr. 116-17). 12incorrect. This analysis holds for 12 ofRespondent's flights- specifically, the flights alleged in Case Nos. FAA-2012-0868; FAA-2012-0869; FAA-2012-0872; FAA-2012-0873; FAA-2012-0904; FAA-2013-0619; and flight numbers 4553, 4445, and 4613 in Case No. FAA-2012-0874. (See Tr. I92-207). 14 An inaccurate weight on a load manifest is contrary to the requirements of 14 C.P.R.§ 121 .693(a); thus, the ALJ erredby failing to find a violation ofthis subsection in connection with the 12 flights enumerated above. For Flight 1160 (FAA-2013-0617), the cargo weight listed on the load manifest does not mirror the inaccurate CLR data. However, this load manifest data is also incorrect. The CLR for this flight indicates a load of36 standard bags, 17 planeside bags, and 308 pounds ofCOMAT. (Ex. C-32). ASI Wallentine testified, however, that instead of36 standard bags, she counted 43 standard bags unloaded from the aircraft. (Tr. 121-22). Assigning the 43 standard bags and 17 planeside bags the 30-pound average weight required by Respondent's Weight and Balance Manual, and accounting for the 308 pounds ofCOMAT, yields a total cargo weight of2108 pounds. However, the load manifest for Flight 1160 incorrectly indicates a cargo weight of2408 pounds. (Ex. C-33). Therefore, the cargo weight listed on the load manifest does not reflect the accurate weight ofthe cargo actually loaded onto (and unloaded from) the aircraft; thus, this is a violation of 14 C.F.R.§ 121.693(a). The AU declined to find a violation for these 13 flights, however, because he credited Mr. Salamone's testimony that "none ofthe flights exceeded maximum takeoffweight." (See. e.g.. Decision for FAA-2012-0868 at 28). While this may be correct, a finding that a flight exceeded a manufacture's maximum weight is not required in order to find a violation of 14 C.F.R.§ 121.693(a). The regulation simply requires the weight listed on the load manifest to be accurate; in each ofthese cases, the weight was not. The ALJ also determined that the "crews' calculations were accurate as pertaining to the cargo and weight they believedtheyhad." Id. (emphasis added). Whether ornot the crew believedthe load manifest to be correct, however, is inconsequential. The regulation does not import a knowledge requirement; it simply requires the cargo and baggage weight to be accurate. See 14 C.P.R.§ 121.665.

14 In the interest ofbrevity, achartproviding citations to the evidence supporting afinding ofviolation in connection with each ofthe 13 flights addressed in this section is attached as Appendix B to this brief. This Appendix was submitted as a part ofComplainant's Post-Trial Briefand is therefore part ofthe administrative record. 13When the total cargo weight listed on the load manifest is incorrect, such as it was here, a preponderance of the evidence sustains a violation of 14 C.F.R.§ 121.693(a). Respondent attempts to circumventthis accuracy requirement by suggestingthatthe use ofits standard average baggage weight program (whereby each category ofbag is assigned a uniform, standardized weight) 15 dispenses with the need to accurately account for the total weight ofcargo loaded on to the aircraft. (See Tr. 381-82; Respt's Post Hearing Reply Briefat 11-12). 16 Complainant concedes that computingtotal cargo weight using the standard average weights method will not typically yield the exact weight ofthe cargo. See Advisory Circular 120-27E at 15 ("differences between the actual weight of passengers and bags and the average weight ofpassengers and bags can occur when using average weights."). But properly accounting for each type ofbag, and applying the standard weight assigned for each type ofbag, will yield an accurate weight relative to the actual loading ofthe aircraft. Only an accurate weight is required by section 121.693(a). Accord Advisory Circular 120-27E at ii ("Accurately calculating an aircraft's weight and CGbefore flight is essential to comply with the certification limits established for the aircraft."). Respondent's use ofa standard average weights program does not absolve it ofits obligation to properly account for and accurately compute the weight ofits cargo. Thus,the ALJ erred by failing to find a violation of 14 C.F.R. § 121.693(a) for these 13 flights, and Complainantrequests that the ALJ's dismissal ofthese violations be reversed. An additional sanction is not requested for these violations, however, as they are based on the same factual conduct underlying the violations ofsection 119.5(g).

15 As provided in Respondent's Weight and Balance Manual and as detailed in Advisory Circular 120-27E (June 10, 2005). 16 Indeed, Respondent argued in its post-hearingreply briefthat Advisory Circular 120-27Epermits a 2% margin oferror when using an average weight program. (Respt's Post-Hearing Briefat 11). The figure "twopercent" ("2%") appears in AC 120-27E inthree places. In each location, the figure appears in the context ofconducting weight surveys to derive nonstandard average weights for use in its weight andbalance program. It does not, as Respondent characterizes, allow for a 2% margin ofweight calculation error per flight. See, e.g., Advisory Circular 120-27E at 33. 142. Respondent Violated 14 C.F.R. § 121.693(c) and (d) by Failing to Compute the Total Weight and Load the Aircraft in Accordance with its Weight and Balance Manual. Respondentmay only operate a flight when the total weight ofthe aircraft has been computedusing approved procedures. 14 C.F.R. § 121.693(c). The aircraft must also be loaded according to an approved schedule. 14 C.F.R. § 121.693(d). It is undisputed thatParagraph A098 ofRespondent's OpSpecs requires that aircraft loading be accomplished in accordance with the approved procedures in its Weight and Balance Operations Manual (SP4100). (See. e.g., FAA-2012-0873 Compl.

**~** II.3,

**Answer~** 11.3). This manual also contains the approved loading schedules and instructions for the loading ofRespondent's aircraft. (See, e.g., FAA-2012-0873 Compl.

**~** 11.4,

**Answer~** 11.4; Ex. R-1-1). Respondent's manual specificallyprovides that the "PIC is responsible for the loading ofthe aircraft in accordance withthe policies andprocedures contained in this manual." (Ex. R-1-1 at Page 3-2). Accordingly, to comply with the regulatory requirements ofsections 121.693(c) and (d), Respondent must compute the weight ofthe loaded cargo and loadthe aircraft in accordance with its Weight and Balance Manual. This did not occur for the 14 flights collectivelypled in these cases. It is undisputed that Respondent operated each flight and loaded cargo and baggage on to each ofthe 14 flights under review. (See, e.g., FAA-2012-0869 Complaint

# n lll.ll, 15,

**Answer~~** lll.ll, 15; Tr. 454)_1' Respondent's Weight and Balance Manual requires the total count ofeach type ofbaggage and other cargo, including standard bags, heavybags, planeside items, ballast, company material, and live animals, to be delineated on the Cargo Load Report (CLR). (See Ex. R-1-1, and Page 3-2 to 3-6, Page 4-10; see, e.g., FAA-2012-0869 Compl.

**~** II.9,

**Answer~** li.9). Yet, testimony and evidence presented atthe hearing demonstrated that for each ofthe 14 flights the CLR did not accurately state the actual count ofstandard bags, heavy bags, ballast, company material, and/or live animals loaded onto the aircraft 18 Because this CLRwas inaccurate, total weight listed on the CLRwas not computed using approved procedures. 19

17 Respondent had operational control over the flights. (See. e.g., Tr. 447).
18 See Appendix A. See also Tr. 41-43 for Flight 5840; Tr. 116-17 for Flight 1160; Tr. 23-24 for Flight 4464; Tr. 148 for Flight 6756; Tr, 153 for Flight 6991; Tr. 96 for Flight 6960; Tr. 117-119 for Flight 6756; Tr, 48-50 for Flight 4553; Tr. 55- 56 for Flight4540; Tr. 62 for Flight 4445; Tr. 67 for Flight 4613; Tr. 170-71 for Flight 4781; Tr. 120-122 for Flight 1160; Tr. 106 for Flight 5449. 15Moreover, given the inaccuracy ofthe CLR, Respondent could not have known the breakdown of baggage and cargo- i.e., the count ofstandard checked bags, heavy checked bags, planeside bags, ballast, live animals, and other cargo- that was actually loaded onto each aircraft for each flight. Thus, Respondent could not have known at the time its operation for each flight, whetherthe aircraft was loaded according to its approved schedule, 

### i.e., the limitations contained in its Weight and Balance Manual. See Advisory Circular l20-27E at 5 ('The loading schedule is used to document compliance with the certificated weight and balance limitations contained in the weight and balance manual.... [i]t provides the operational limits for use with the operator's weight and balance program."). As explained by Mr. Ayers, because the CLRwas inaccurate, Respondent could not have insured thatthe center ofgravity was within approved limits at the time ofoperation ofeach flight. (See Tr. 208-209). Complainant concedes that Respondent's witness, 

### Mr. Salamone, testified that the aircraft weight and center ofgravity location fell within manufacturer recommendations and performance envelopes for every flight under review. (See, e.g., Decision for FAA-2012-0868 at 28). Butthis is not the relevant inquiry. Rather, as explained by 

### Mr. Ayers, part ofRespondent's approved program describes procedures for the propercompletion ofthe CLR. (Tr. 208). The failure to follow these approved procedures is still a violation, even ifby happenstance Respondent arrives atthe correct weight, or fortuitously stays within the manufacturer's recommendations and performance envelopes for each flight. (Tr. 208)?0 Given the inaccuracy ofthe CLR, Respondent could not have known at the time whether each aircraft was operating within its appropriate weight and balance envelope. (Tr. 209). It is insufficient for Respondent to declare now, post hoc, that its failure to follow its ownprocedures was de minimis. Respondent must rely on its approved procedures, not serendipity. Accordingly, the relevant question is whether Respondent's

19 As explained by Mr. Ayers, the failure ofRespondent to accuratelyprepare the CLRin accordance with its manual, and Respondent's subsequent use ofthis CLRto prepare the weight listed on the load manifest for each flight, evidences that Respondent did not comply with its approved procedures. (See Tr. 207-208).
2

## °For example, for Flight4540 the load manifest weight matched the inaccurately prepared cargo load report, but fortuitously, the load manifest reflected the correct cargo weight. This is still a violation of§ 121.693(c) and (d), because Respondent failed to use correctthe procedures to ascertain that information. (See Tr. 207-208). As explainedbyMr. Ayers, "it is not enoughto get the right answer. ..the work also has to be correct." !d. at 208. 16approved procedures and approved loading schedule- i.e., the requirements contained its Weight and Balance Manual- were actually followed for these flights. (Tr. 208). The evidence demonstrates that they
were not; thus, Respondent violated 14 C.F.R. § 121.693( c) and (d) by this conduct. Respondent suggests last-minute changesto the aircraft loading were the cause ofthe variance betweenthe CLR and the actual baggage loaded onto the aircraft. But this is ofno consequence here; as Respondent's own exhibits make clear, Respondent's manual requires any changes to aircraft loadingbe reflected on both copies ofthe CLR

### andon the load manifest. (Tr. 219-220, 291-92, 413-16; Ex. R-1-1 Page 4-8,

**~** 7.B.l.g, Page 4-9,

**~** 7.F; Ex. R-2-1, Page 6,

**~** 4.X.2.c; Exhibit R-8,

**Procedure~** 2.d). Even Respondent's expertwitness agreed that, when a "late arriving" bag is placed on the aircraft, both copies of the CLRandthe load manifest must be revised. (Tr. 291-292). Accordingly, anypurported changes should have been reflected onthe CLR and onthe load manifest pursuant to Respondent's Weight and Balance Manual. As before, because Respondent failed to load the aircraft in accordance with its manual, it has failed to comply with its approved procedures and schedules, as required by 14 C.F.R. 

### § 121.693( c) & (d). Again, although the ALJ erred in not finding a violation ofsections 121.693( c) & (d), Complainant does not request an additional sanction for these violations since they are based onthe same conduct underlying the section 119.5(g) violations. C. The ALJ's Imposition ofa $250 Sanction Per Flight is Contrary to Law, Precedent, and Policy. The ALJ held thatbyfailing to accurately prepare a CLRin accordance with the requirements of Respondent's Weight and Balance Manual, as incorporated into its OpSpecs, Respondent violated I 4 C.P.R. §§ 119.5(g) & (1). 21 However, in assessing a sanction for these violations, the

### ALI assessed only a single, $250 civil penaltyfor each ofthe 13 flights Respondent loaded and operated an aircraft out of compliance with the requirements ofits OpSpecs22 The ALI's explanation for this sanction determination

21 Complainant only appealed these fmdings as applied to the ALJ's failure to find a violation of 119.5(g) & (I) with respect to Flight4540 in Case No. FAA-2012-0874. This argument is addressed in Section V.A. ofthisbrief.
22 The ALJ assessed a $250 civil penalty for 13 ofthe 14 flights plead in the consolidated appeal. The ALJ declined to assess a civil penalty for FlightNo. 4540, in FDMS Case No. FAA-2012-0874. As explained in Section A ofthis brief, the ALl's failure to assess a civil penalty was in error. Therefore, the sanction argument contained in Section V.C. ofthis brief applies to all 14 flights plead in the eight consolidated cases before the ALJ. 17is twofold. First, he explained thatthe distinction between sections 119.5(g) & (I) is "inconsequential" and, therefore, he declined to assess a separate civil penalty for each regulatory violation. (See, e.g, Decision for FAA-2012-0872 at43). Second, the ALJ held thatthe "evidence and testimony did not support the penalty requested" by the FAA. Id. Rather, he characterized Respondent's failure to accurately account for the baggage loaded onto its passenger aircraft as a merely "technical" violation, and assessed what amounts to a nominal penalty of$250 per flight. (See, e.g., Decision for FAA-2012-0872 at43). Case law provides that when an ALJ assesses a civil penalty that is inconsistent with agency sanction policy, the Administrator mayreverse the ALJ's decision. Inthe Matter ofVentura Air Servs, Inc., FAA Order No. 2012-12 (Nov. I, 2012) (citing In the Matter ofFolsom's Air Service, FAA Order 2008-11 at 14 (Nov. 6, 2008)). Indeed, the Administrator has both the authority and duty to impose the agency's policy on appeal. In the Matter ofWarbelow's Air Ventures, Inc., FAA OrderNo. 2000-3 (Feb. 2, 2000). Forthe reasons discussedbelow, the ALJ's assessment ofa $250 civil penalty per flight is contrary to law, precedent, and policy, and should be reversed. I, The ALJ Erred ByFailing to Assess a Separate Sanction for 119.5(g) and 119.5(]). Despite finding that Respondent violated two distinct subsections ofthe FARs, the ALJ declined to
assess a separate civil penalty for Respondent's violation 14 C.F.R. §§ 119.5(g) & (!). (See, e.g., Decision for FAA-2012-0868 at 31).23 Instead, he determined that 119.5(g) and 119.5(1) "are not significantly different" and, thus, "just one civil penalty per flight is appropriate." 1d. To the extent thatthe ALJ found that that sections 119.5(g) and 119.5(1) do not each, independently, warrant the imposition ofa civil penalty, this finding is contrary to law and should be reversed. The test for multiplicity as established bythe U.S. Supreme Court is "whether each provision requires proofofan additional fact which the other does not." Blockburger v. United States, 284 U.S. 299,

23 Specifically: Case Nos. FAA-2012-0868; FAA-2012-0869; FAA-2012-0872; FAA-2012-0873; FAA-2012-0904; FAA2013-0617; F AA-2013-0619; and flight numbers 4553, 4445, and 4613 in Case No. FAA-2012-0874. Complaint does not appeal these findings ofviolation. 18304 (1932). 24 The Administrator has previously applied this multiplicity test to determine whether a separate violation is warranted for sanction purposes. See In the Matter ofFrostad Atelier, FAA Order. No. 2013-5 at 14-15 (Sept. 5, 2013) (citing Ball v. United States, 470 U.S. 856,861 (1995); In the Matter ofCharterAirlines, Inc., FAA OrderNo. 95-8, 1995 WL 853906, at *11-12 (May 9, 1995).25 Here, the plain language ofthe regulatory subsections dictates that a violation of 119.5(g) and 119.5(1) require distinct findings offact. Byway ofillustration, subsection 119.5(g) proscribes operating as
a "direct air carrier
... in violation of
... appropriate operations specifications," and, thereby, encompasses OpSpecs violations that do not involve actual flight. 14 C.F.R. § 119.5(g). In contrast, subsection 119.5(1) proscribes operating "an aircraft
... in violation of
... appropriate operations specifications." 14 C.F.R. 

### § 119.5(1). The critical distinction is that subsection 119.5(g) regulates operations as a direct 

### air carrier, while subsection 1I9.5(1) regulates 

### operation of an

### aircraft. 26 Accordingly, Respondent violated § 119.5(g) atthe point at which it failed to complywith its Weight and Balance Manual, in violation ofits OpSpecs, when preparingthe CLRs for each flight; Respondent subsequently violated subsection II9.5(1) when it operated each aircraft after loading the aircraft contraryto its Weight and Balance Manual, and thus, contrary to its OpSpecs. Cf. Inthe Matter ofUSAir, Inc., FAA Order No. 96-25 (Aug. 12, 1996) (air carrier violated 14 C.F.R. § 43.13(a) when it failed to perform inspection in accordance with its maintenance manual and subsequently violated 14 C.F.R. 

### § 121.153(a)(2) when it operated the aircraft without that inspection). As this illustrates, the finding ofviolation ofsubsection 119.5(1) in this context requires a separate finding offact- specifically, Respondent's operation ofan aircraft on 14 separate occasions

24 In contrast, a "residual violation is one that flows solely from arespondent's violation ofanother, independentregulation" and does not warrant the imposition ofa separate sanction. In the Matter ofRushmore Helicopters, Inc., FAA Order No. 2012-8 (Oct. 11, 2012).
25 While FAA sanction guidance provides thatthe FAA will ordinarily not compound a sanction whenmultiple violations are based ona single instance ofnon-compliance, this does not apply when, as in Biockburger, there is distinct underlying factual conduct supporting each violation. See FAA Order 2150.3B at 7-10.
26 Thepremise that these two violations are distinct is supportedbythe regulatory history of 119.5(g) and (1). Though not a model ofclarity, the regulatory history suggests that 119.5(1) was intended to encompass operations specification violations by employees ofdirect air carriers, and uses, as an example, an actual aircraft operation (i.e., flight) which is a concept distinct from the conductproscribed by 119.5(g), which includes non-operational (i.e., flight) OpSpecs violations. See Operating Requirements: Domestic, Flag, Supplemental, Commuter, and On-Demand Operations: Editorial and Other Changes, 62 Fed. Reg. 5076 (Feb. 3, 1997). In any event, this regulatory history shouldnotbe construed as limiting the plain language ofthe regulation. 19(involving eight cases). A separate violation, andthus a separate sanction, is thereby warranted for each violation. See Inthe Matter ofAlphin Aircraft, Inc., FAA OrderNo. 97-9, 1997 WL 93229, at *5 (Feb. 19, 1997) (finding multiple violations when "there was an additional required fact for each violation the law judge found"). Accordingly, the distinction between these two provisions is not, as the ALJ characterizes, "inconsequential." (See, e.g.. Decision for FAA-2012-0868 at 31). Indeed, construing 119.5(g) and 119.5(1) to encompass the same conduct would render one ofthese subsections superfluous. A standard principle of construction is to construe statutes or regulations in the context ofthe entire statutory scheme and avoid rendering statutory provisions ambiguous, extraneous, orredundant. Matter ofMerchants Grain, Inc. By & Through Mahern, 93 F.3d 1347,1354 (7th Cir. 1996). See also Duncan v. Walker, 533 U.S.167, 174 (2001) ("[A] statute ought, upon the whole, to be so construed that, ifit can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant."); ConnecticutNat. Bankv. Germain, 503 U.S. 249, 253 (1992) ("courts should disfavor interpretations ofstatutes that render language superfluous"); accord Hibbs v. Winn, 542 U.S. 88, 89 (2004) (the '"rule against superfluities' instructs courts to interpret a statute to effectuate all its provisions, so that no part is rendered superfluous
...").27 As applied to Respondent's conduct in this case, subsections 119.5(g) and 119.5(1) should be construedto apply to distinct conduct; one applies to the failure to load the aircraft in accordance with its OpSpecs, while other applies to Respondent's subsequent operation ofthe improperly loaded aircraft. A separate violation should thereby be imposed for Respondent's distinctviolations of 14 C.F.R. §§ 119.5(g) & 

### (1). 2. Under Agency Sanction Guidance, a$40,000 Civil Penalty is Warranted for Each Instance in Which Respondent Improperly Loaded and Subsequently Operated an Improperly Aircraft. Complainant has the burden ofestablishing by a preponderance ofthe evidence that the basis for its proposed civil penalty is appropriate. See 14 C.F.R. 

### § 13.224(a); In the Matter ofLuxemburg, FAA Order No. 94-18 at 6 (June 22, 1994). Complainant may demonstrate the appropriateness ofa proposed civil penalty by introducing testimony as to the nature ofthe violation and through the application ofagency

27 The same rules ofinterpretation are applicable to botb statutes and administrative regulations. Consolidated Flower Shipments, Inc., v. Civil Aeronautics Bd., 205 F.2d 449, 450 (9th Cir. 1953). 20

### sanction guidance in FAA Order 2150.38." 8 

### Cf. In the Matter ofNorthwest Airlines, Inc., FAA OrderNo. 90-37 at 6-9 (Nov. 7, 1990) (Complainant met its burden by introducing relevant portion ofEnforcement Sanction Guidance Table and the corresponding testimony ofa Special Agent as to security risk posed by the alleged violations). Application ofagency sanction guidance to Respondent's regulatory violations here demonstrates that, given the degree ofhazard posed by Respondent's conduct and Respondent's history of factually similar violations, a $20,000 penalty is appropriate for each instance Respondent loaded an aircraft contrary to its Weight and Balance Manual (in violation of 119.5(g) (as well as§ 12!.693(a), (c), and (d)) and, additionally, for each instance Respondent operated an improperly loaded aircraft (in violation of 119.5(1))."9 

### Specifically, a civil penalty for each case is warranted as follows: Penalty Case No. Warranted FAA-2012-0868 $40,000 FAA-2012-0869 $40,000 FAA-2012-0872 $160,000 FAA-2012-0873 $40,000 FAA-2012-0874 $160,000 FAA-2012-0904 $40,000 FAA-2013-0617 $40,000 FAA-2013-0619 

### + $40,000 

### Total: $560,000

28 By way ofbackground, to guide FAA's assessment ofcivil penalties the FAA has promulgated agency sanction guidance which can be found in FAA Order 2150.3B, Chapter 7 and Appendix B. This sanction guidance represents the policy ofthe agency. In the Matter ofNorthwest Airlines Inc., FAA OrderNo. 90-37 at 9 (Nov. 7, 1990). Appendix 8 ofthis guidance contains a "Table ofSanctions," which provides civil penalty tables that establish a specific penalty range for a specific type ofviolation, i.e., each category ofviolation will specify a penalty range. Corresponding numerical values for each of the ranges will depend on the size and operational status ofthe particular violator. This guidance was appliedhere in the manner explained below.
29 The ALJ found Respondent violated two separate regulatory violations- 119.5(g) and (I)- for each ofthe 13 flights for which he assessed a civil penalty. As explained in Section V.A ofthis brief, the ALJ erred by failing to find a separate violation of 119.5(g) and (1) for Flight 4540 in F AA-2012-0874. Therefore, a civil penalty should be assessed that encompasses Respondent's distinct regulatory violations- specifically, the improper loading and subsequent operation of 14 aircraft (as alleged in eight cases). Respondent's violations of§ 121.693(a), (c), and (d), are based on the same factual conduct supporting the 119.5(g) violation, and, therefore, do not warrant a distinct penalty. 21Byway ofillustration, Figure B-l-c(3) ofthe Sanction Guidance Table provides that the "Operation contrary to [operation specifications]" that has a "potential or actual adverse effect on safe operation" corresponds to a "Moderateto Maximum" range penalty. (FAA Order 2150.38, App'x B, Fig. B-l-c(3)). (That the violations here have a potential or actual adverse impact on safety is discussed below). The selection ofthis particular figure in the Sanction Guidance Table reflects the degree ofsafety hazard presentedby Respondent's conduct. (See FAA Order 2150.38, Ch.7,

**~4.h(e);** Inthe Matter ofWarbelow's Air Ventures, Inc., FAA OrderNo. 2000-3 at 16-17, 2000 WL 298578 (Feb. 2, 2000)) 3

# °For a Group I air carrier such as Respondent, this moderate to maximum range indicated by the table corresponds to a civil penalty of$8,750 to $25,000 per violation. (FAA Order 2150.38 at B-7). To determine where a civil penalty should fall within this numerical range, sanction guidance provides that an assessment should begin with an amount in the middle ofthis range. !d. at 7-9. This amount is then adjusted upwards or downwards to account for aggravating and mitigating factors. Id. In this sense, Complainant's sanction determination does not reflect a fixed mathematical determination, but instead reflects an assessment ofthetotality ofthe circwnstances surrounding the violation. See, e.g., In the Matter ofFolsom's Air Service, Inc., FAA Order No. 2008-1 I at 11 (Nov. 6, 2008). Applying this guidance to the case athand provides a mid-range civil penalty of$17,500 per each violation. However, aggravation above this mid-range penalty is warranted due to Respondent's substantial violation history. Agency sanction policyprovides that "aviolation history canjustify imposing a sanction at the higher end ofthe normal range or a sanction beyond the normal range," particularly when the previous violations are factually similar. (See FAA Order 2150.38, Ch.7,

**~4.h(l)).** Respondent has been assessed civil penalties in at least eight previous cases, involving 17 separate flights, relating to its weight

30 In the formulation ofthe Enforcement Sanction Guidance Table contained in the Compliance and Enforcement Program, FAA Order 2150.3B, the FAA considered the nature, circumstances, extent and gravity ofeach general type ofviolation as well as the individual's prior violation history (in that tbe table provides recommendedpenalties for first-time offenders). In the Matter ofSchultz, FAA OrderNo. 89-0005, 1989 WL 550061, at *4 (Nov. 9, 1989). 22and balance program. (See ALJ's Order on Agency's Request for Judicial Notice (May 5, 2015)).31 The conduct giving rise to these violations occurred over a two-year time span- ranging from December 5, 2008, to September 22,2010- and is nearly factually identical to the conduct underlying the violations at issue here; in each ofthe previous cases, Respondent failed to accurately account for the number ofheavy and standard checked bags loaded onto a passenger aircraft in the manner required by its OpSpecs. 1d. This evidences a pattern and practice ofRespondent's failure to comply with its manual. Indeed, Respondent's failure to demonstrate compliance with the FARs in light ofthis violation history dictates that "a substantial and serious civil penalty" is warranted in the interest ofdeterrence. In the Matter ofPinnacle Airlines, DMS No. FAA-2009-0180, 2009 WL 4796753, at *10-12 (Dec. 11, 2009), affd, FAA OrderNo. 2012-2 (May 22, 2012). In Pinnacle, the ALJ held thatRespondent's history of non-compliance evidenced that the company regarded non-compliance with the FARs "simply a cost of doing business, rather than as a duty it owes to the public and to the government that licenses it to carry passengers in air transportation." 2009 WL 4796753 at 10. Thus, it was "time for the agency to ... assess a substantial and serious civil penalty that cannot be treated as merely another cost ofdoing business." Id. at 11. See also In the Matter ofCalifornia Helitech, FAA OrderNo. 2000-18, 2000 WL 33125264, at *5 (Aug, 11, 2000) ("A civil penalty has both deterrent and punitive purposes."). This rationale applies to Respondent's conduct here; Respondent's history offactually similar violations is an aggravating factor under agency sanction guidance and warrants more than the imposition ofa "minimal" civil penalty. Thus,
a $20,000 civil penalty is appropriate for each ofRespondent's violations of 119.5(g) and 119.5(1).32 Despite its foundation in agency sanction guidance, the ALJ declined to assess the agency's requested $20,000 civil penalty (for each violation of§ 119.5(g) and§ 119.5(1)) on the grounds that

31 The ALl tookjudicialnotice ofsix previous Orders Assessing Civil Penalties: ( 1) Order Assessing Civil Penalty dated September 29, 2009, FAA Case No. 2009 NM060023; (2) Order Assessing Civil Penalty dated September 28, 2009, FAA Case No. 2009NM060050; (3) OrderAssessing Civil Penalty dated March 2, 2011, FAA Case Nos. 2009NM060124 & 2010NM060020;(4) Order Assessing Civil Penalty dated March 2, 2011, FAA Case Nos. 2010NM060068 & 2010NM060076; (5) OrderAssessing Civil Penalty dated February 16,2011, FAA Case No. 2010NM060100; (6) Order Assessing Civil Penalty dated March 2, 2010, FAA CaseNo. 2010NM060106.
32 This amounts to a mere $2,500 aggravation above the recommended mid-range penalty and is well within the "moderate to maximum" sanction range providedby FAA Order 2150.3B at B-7. 23Respondent's violations were merely "technical innature" and, thus, did notrise to a degree ofsafety hazard sufficientto warrant the imposition ofa substantial penalty. (See, e.g., Decision for FAA-2012-0872 at 43). This conclusion is in error. Weight and balance control is one ofthe most importantfactors affecting safety offlight. (See FAA Order 8900.1, Vol. 3, Ch. 47, § l, para. 3-3975(A); Aircraft Weight and Balance Handbook, FAA-H-8083-1A at 1-1 (2007) (stating that a vital factor that leads to safe operation ofaircraft is weight and balance control)). Inaccurate weight calculationspose a significant safetyrisk. See In the Matter ofGreen AviationMgmt. Co., LLC, FAA OrderNo. 2012-9, 2012 WL 5378724, at *8 (Oct. II, 2012) (suggestingthe failure to include total weight on load manifests is a violation of 14 C.F.R. § 91.13(a), because it involves operating an aircraft in a careless or reckless manner so as to endangerthe life orproperty ofanother); Administrator v. Rogers, NTSB Order EA-4428 (Feb. 20, 1996) (operating an aircraft with an inaccurate load manifest constituted a residual violation ofsection 91.13(a) for a careless operation). Indeed, Respondent's own Weight and Balance Manual warns that "inaccurate loading, reporting, or failure to report information could cause issues with aircraft performance and handling, resulting in the endangerment ofhuman life." (Ex. R-1; FAA-2012-0869 Complaint '1f TI.l 0 & Answer '1f ILl0). Testimony atthe hearing further corroborates the significant safety hazards that can arise when an aircraft has a miscalculated orunknown weight. For example, a heavier aircraft requires a longer takeoff distance and must reach a higher speed to become airborne. (Tr. 189, 283; see also Aircraft Weight and Balance Handbook, FAA-H-8083-1A at 1-2). A heavier aircraft will also have a lower rate ofclimb, a lower angle ofclimb, and a lower service ceiling. (Tr. 189, 283; see also Aircraft Weight and Balance Handbook, FAA-H-8083-IA at 1-2). Conversely, such an aircraftwould also require a higher landing speed and longer landingroll. (Tr. 284; see also Aircraft Weight and Balance Handbook, FAA-H-8083-IA at 1-2). The weight ofan aircraft also affects its stall speed, rate offuel burn, and the aircraft's ability to maintain cruise altitude and to maneuver. (Tr. 189; see also Aircraft Weight and Balance Handbook, FAAH-8083-1A at 1-2). Essentially, ifan aircraft is actually heavier than itpurports to be, all ofthe performance numbers derived for a particularflight are invalidated. (Tr. 189). 24Despite this evidence as to the potential safety hazards that can arise when an aircraft's weight is miscalculated, the ALJ declined to assess a more stringent civil penalty for want ofevidence ofactual harm; he noted that Respondent's baggage miscalculations in this instance had "no material effect on weight and balance or on aircraft performance" and thus, in "no instance was safety offlight at even the slightestrisk." (See, e.g., Decision for FAA-2012-0872 at 43). Although admittedly, in this particular instance, Respondent did not grossly over-or-under-estimate the baggage weight and remained within each ofthe aircrafts' approvedweight and balance envelope, see Ex. R-3-2, Tr. 263-70, this circumstance is merely fortuitous and does not negate the myriad safety implications that can arise when an aircraft's calculated weight is even slightly inaccurate. For purposes ofillustration, Respondent operated Flight 4540 (FAA-2012-0874) at a weightjust 129 pounds below the maximum takeoffweight. (Ex. R-2-3). Put differently, the margin oferror on this this flight wasjust over two heavy checked bags, standardized at 60 pounds each; this margin is commensurate with the baggage accounting errors at issue in this case?3 Moreover, as Mr. Ayers explained, at the time of operation, Respondent could not have known whether each aircraft was actually operated within each weight and balance envelope because the inaccurate CLR failed to reflect the actual account ofbaggage and cargo loaded on to the aircraft. (Tr. 209). Accordingly, Complainant's assessment ofa moderate to maximum civil penalty in this instance is well-grounded in thepotential adverse effect on safe operation. (See FAA Order 2150.3B, App'x B, Fig. Bl-c(3)). Violations have been found and sanctions have been assessed in many FAA civil penalty cases where there has been proofonly of potentialharm. See. e.g., In the Matter ofWarbelow's Air Ventures, Inc., FAA OrderNo. 2000-3, 2000 WL 298578, at *4 (Feb. 2, 2000) (collecting cases). For a factually analogous example, in In the Matter ofPolynesian Airways, FAA Order No. 1994-40 at 12-14 (December 9, 1994), the Administrator held that even though there was no evidence that weight or center ofgravity limits were exceeded on any ofthe flights in the case, the air carrier's failure to use the most recent figure

33 See, e.g., FDMS No. FAA-2012-0868, Flight 5840 (CLR in error by eight standard and 5planeside loaded bags-390 pounds); FDMS No. FAA-2012-0872, Flights 4464 and 6991 (CLR in error by two heavy bags-120 pounds); FDMS No. FAA-2012-0873, Flight 6756 (CLR in error by 3 standard bags and 2 heavy bags-150 pounds). 25for the weight ofan aircraft when preparing load manifests warranted a "stiffpenalty" given the "potential safety implications from the violations." Such is the case here. The ALJ's characterization ofRespondent's violation as "technical" fails to adequately account for the safety risk inherent in Respondent's failure to properly account for the baggage loaded onto its passenger aircraft. Cf. In the Matter ofMayer, FAA Order No. 1997-12 (Administrator increased ALJ's nominal sanction after finding that ALJ's characterization ofa passenger'sviolation as "technical" gave "too little consideration to the potential safety and security consequences" ofunruly passengers). Thus, the lack ofactual harm is not mitigating. See In the Matter of Texas ArmyNational Guard, FDMS No. FAA-2009-1045, Initial Decision at 5 (May 20, 2011) (failure of hazardous material shipped in violation ofhazardous materials regulations to ignite is "fortuitous" not mitigating) aff'dFAA Order 2012-3 (May 22, 2012); FAA Order 2150.3B, Chapter 7, Paragraph 4.e.l ("And it is not mitigating when a violation does not result in actual harm; that is simply fortuitous."). The ALJ additionallyjustifiedthe imposition ofa $250 perviolation sanction by crediting Respondent with corrective action. This mitigation was in error. Corrective action is an affirmative defense. See, e.g., In the Matter ofM & R Helicopters. LLC, FAA OrderNo. 2013-4 at 21 (Sept. 5, 2013). In order to carry its burden, Respondent mustprovide "sufficient, specific evidence ofswift and comprehensive corrective action." In the Matter ofSeven's Paint & Wallpaper Co., FAA Order No. 2001-6 at 6 (May 16, 2001) (citing In the Matter ofMauna KeaHelicopters, FAA Order 1997-16 at 11 (May 23, 1997). Respondent failed to do so here. Jeremy Barclay, Respondent's Director ofSafety Policy and Security, testified as to the nature and extent ofcorrective action Respondent has taken to address the weight and balance-related violations in this case. (See Tr. 397-410). However, the majority ofwhat Respondent characterizes as corrective actions took place before the violations in this case; as such, these actions cannot be considered corrective, as they failed to prevent the very conduct giving rise to the violations at issue. First, Mr. Barclay testified that Respondent has issued two bulletins aimed at training to reduce discrepancies between actual baggage loads and the information provided to flight deck crews onthe cargo load report. (See Tr. 400-401; Ex. R-7 & 8). The first ofthese bulletins, Respondent's Customer Service Training Bulletin entitled "DesignatedLoading Agent Responsibilities" addressed "recent inaccuracies 26involving total baggage piece counts." (See Ex. R-8). This bulletin was issued on November 9, 2010, predating the earliest violation in this case by almost four months. The second bulletin, a Ground Operations Bulletin entitled "Aircraft Loading Procedures" was issued on April 7, 20II, before nine ofthe violations at issue in this case. (Tr. 401; ExR-7). Additionally, 

### Mr. Barclay testified that Respondent's ExhibitR-6 provided a detailed list ofRespondent's weight and balance corrective actions; this list details workshops, trainings, and focus groups conducted by Respondent beginning as early as 2009. (Tr. 406-7; Ex. R-6). But 14 ofthe 22 actions on this list pre-date all ofthe violations in this case, see Ex. R-6-1, and 19 ofthese actions predate at least one ofthe violations at issue here. Id. 34 There is even evidence that, despite Respondent's repeated training, workshops, and bulletins, weight and balance accounting errors ofthe type found here continue to occur in Respondent's day-to-day operations. (See Tr. 409, 422-24). Because Respondent's purported corrective actions pre-date the majority ofviolations in this case and failed to preventthe very weight and balance violations at issue here, they cannotbe considered comprehensive or corrective; thus, they are not grounds for mitigation. For these reasons, agency sanction guidance supports the imposition ofa $20,000 civil penaltyper violation for each ofRespondent's violations of 14 C.F.R. §§ 119.5(g) and 119.5(1) in connection with the eight cases as delineated in the table at the beginning ofthis section. This penalty amount is consistent and in accordance with agency sanction policy in FAA Order 2150.3B. In contrast, the ALI's assessment ofa $250 civil penalty, perflight, for an aggregate $3500 civil penalty, is not. When an ALJ assesses a civil penaltythat is not consistent with agency sanction policy, the Administrator on appeal mayreverse the ALJ. In the Matter ofVentura Air Servs., Inc., FAA OrderNo. 2012-12 (Nov. I, 2012). The Administrator has both the authority and dutyto impose the agency's policy on appeal. In the Matter ofWarbelow's Air Ventures. Inc., FAA Order No. 2000-3 (Feb. 2, 2000). Here, the ALJ's imposition ofa $3,500 civil penalty is contrary to agency sanction guidance and policy. Accordingly, it should be reversed.

34 The violations at issue in this case are based on Respondent's conduct spanning an 8-month period; the earliest violation occurred on March 3, 2011, the latest occurred on November 16, 2011. 27VI. CONCLUSION For all ofthe foregoing reasons, Complainantrespectfully requests thatthe Administrator reverse the AU's conclusionthat (I) Complainant failed to prove a violation of 14 C.F.R. §§ 119.5(g) & (I) for Flight 4540 as alleged in FDMS No. FAA-2012-0874; and (2) Complainant failed to meet its burden of establishingby a preponderance ofthe evidence that Respondent violated 14 C.F.R. 

### § 121.693(a), (c), & (d) by failing to accurately prepare the load manifest for the 14 alleged flights and load the aircraft in accordance with its approved schedules and procedures. Furthermore, Complainantrequests the Administrator find thatthe ALJ's imposition ofa $250 sanction for each ofRespondent's flights is contrary to law, precedent, andpolicy, and impose a penalty consistent with the sanction argument herein and in accordance with agency sanction guidance.

By:

Dated: September 9, 2015 Respectfully submitted, PeterJ. Lynch

**A~lant** ChiefCounsel for Enforcement



# (



# CUr~

# C CaseyE. G rdne , Attorney Enforcement Di sian, AGC-300 Federal Aviation Administration Office ofthe ChiefCounsel 800 Independence Ave., S.W. Washington, D.C. 20591 Phone:202-267-5964

28CERTIFICATE OF SERVICE


### Ihereby certifythat on this date Ihave sent the foregoing Complainant's Appeal Briefby U.S. certified mail, return receipt requested, postage prepaid, to: Todd Emerson, Esq. SkyWest Airlines, Inc. 444 South River Road St. George, UT 84790 In addition, I certify that Ihave on this date, by U.S. certified mail, return receipt requested, postage prepaid, the original and one copy ofthe foregoing document to: Attention: Hearing Docket Clerk, AGC-430 Wilbur Wright Building- Suite 2WIOOO Federal Aviation Administration 800 Independence Avenue SW Washington, DC 20591

29AppendixATableofViolationsandSupportingEvidenceDMSFlightN2N2AllegedActualLoadingSupportingEvidenceFAA-2012-0868584027StandardTr.""41:19-42:1;(Complaint='III.l6)43:2-5FAA-2012-0868584020PlanesideTr."'41:19--42:1;(Complaine'III.l6)43:6-11FAA-2012-0869116035StandardTr.4116:11-17III.12)FAA-2012-087244642HeavyTr.""23:18-24:6;III.l6)ExhibitC-7FAA-2012-08726756IHeavyTr.""148:1-17;IV.20)ExhibitC-10FAA-2012-087269912HeavyTr.""'153:6-18V.24)FAA-2012-087269601HeavyTr.=>96:2-19;VI.28)ExhibitC-15FAA-2012-0873675633StandardTr.""117:21-118:3;(Complaint=>III.l4)119:6-8FAA-2012-087367562HeavyTr.=>117:21-118:3;III.14)119:9-11Complainant'sPost-TrialBriefIntheMattersofSkyWestAirlines,Inc.DMSNos.FAA-2012-0868/0869/0872/0873/0874/0904,-2013-0617/0619Page33of45CLRReflects19StandardIII.l7)15PlanesideIII.17)23StandardIII.13)0HeavyIII.l7)0HeavyIII.21)OHeavy(Complaint=>III.25)0HeavyIII.29)30StandardIII.l5)0HeavyIII.15)SupportingEvidenceExhibitC-1ExhibitC-1ExhibitC-3ExhibitC-5ExhibitC-8ExhibitC-11ExhibitC-13ExhibitC-25ExhibitC-251EFFREYM.HARPER,fAAATTORNEYTEL:(425)227-2161FAX:(425)227-1007DMS Flight N2

N2 Alleged Actual Loading Supporting Evidence FAA-2012-0874 4553 43 Standard

Tr."" 48:11-15; (Complaint""

-,r III.22) 49:15-17 F AA-2012-0874 4553

3 Heavy

Tr.=> 48:11-15; (Complaintc=>

-,r III.22) 49:20-22; Exhibit C-20 FAA-2012-0874 4553

1 Live Animal
Tr."" 48:11-15; (Complaint""

-,r ill.22) 50:5-7 F AA-2012-0874 4540 250 lbs Ballast
Tr."" 55:5-10; (Complaint""

-,r V.30) 55:20-56:4; Exhibit C- 23 F AA-2012-0874 4540 100 lbs COMAT
Tr."" 55:5-10; 56:5- (Complaint""

-,r V.30)
16; Exhibit C-23 F AA-2012-0874 4445 43 Standard

Tr."" 62:4-15; (Complaint""

-,r IV .26) FAA-2012-0874 4445

3 Heavy

Tr."" 62:4-9; 62:16- (ComplainC

-,r IV.26)
18; Exhibit C-26 FAA-2012-0874 4613

2 Live Animals
Tr."'" 67:1-15 (Complaint""

-,r VI.34) FAA-2012-0904 4781 190 1bs COMAT
Tr."" 170:9-171
:4; (Complaint""

-,r III.13) Exhibit C- 31 Complainant's Post-Trial Brief In the Matters of Sky West Airlines, Inc. DMS Nos. F AA-2012-0868/ 0869/0872/0873/0874/0904, -2013-0617/0619 Page 34 of 45

CLR Reflects 46 Standard (Complaint

-,r ill.23) 0 Heavy (Complaint=>

-,r ill.23) 0 Live Animal (Complaint""

-,r III.23) 0 lbs Ballast (Complaint"""

-,r V.31) 350 lbs COMAT 46 Standard (Complaint'"'

-,r IV.27) 0 Heavy (ComplainC

-,r IV.27) 0 Live Animal (Complaint""

-,r VI.35) 160 lbs COMAT (Complaint""

-,r III.14) Supporting Evidence Exhibit C-18 Exhibit C-18 Exhibit C-18 Exhibit C-21 Exhibit C-21 Exhibit C-24 Exhibit C-24 Exhibit C-27 Exhibit C- 29 JEFFREY M. HARPER, FAA ATTORNEY TEL: (425) 227-2161 FAX: (425) 227-1007DMS Flight N2

N2 Alleged Actual Loading Supporting Evidence FAA-2013-0617
1160 43 Standard

Tr.""' 120:21-121:3; **(Complaint~~** II.l2) 121:21-122:1; Answer

**~** II.12 FAA-2013-0619 5449

I 1 Heavy

Tr."" 106:5-20; **(Complaint""~** II.l2) Exhibit C-36; **Answer~II.12** Complainant's Post-Trial Brief In the Matters ofSkyWest Airlines, Inc. DMS Nos. FAA-2012-0868/ 086910872108731087410904, -2013-061710619 Page 35 of 45

CLR Reflects 36 Standard **(Complaint'"'~** ll.l3) I 0 Heavy **(Complaint""~** II.l3) Supporting Evidence Exhibit C-32 Exhibit C-34 JEfFREY M. HARPER, FAA ATTORNEY TEL: (425) 227-2161 FAX: (425) 227-1007Appendix

B Load Manifest Cargo Weight
v. Cargo Load Report Cargo Weight Cargo Weight Cargo Weight DMS Flight

I Load Manifest Calculated from CLR NQ

NQ F AA-2012-0868 5840

: 1112 lbs

19 Standard
x30 lbs

31 (Exhibit C-2)

15 Plane Side x30 lbs

32 Freight 92lbs (Exhibit C-1) FAA-2012-0869
1160

I 1410 lbs

23 Standard

x 30 lbs (Exhibit C-4)

24 Planeside

x 30 lbs (Exhibit C-3) FAA-2012-0872 4464

I 1980 lbs

(6 + 60) Standard

x 30 lbs (Exhibit C-6) (Exhibit C-5) 31 Standard bags are assigned

a weight of 30 lbs each. Exhibit R-1-1, Page 3-9; Tr."" 378:10-13. 32 Plane Side bags are assigned

a weight of30 lbs each. Exhibit R-1-l, Page 3-9; **Tr.~** 378:21-379:2. Complainant's Post-Trial Brief In the Matters of Sky West Airlines, Inc. DMS Nos. FAA-2012-0868/ 0869/ 0872/0873/0874/0904. -2013-0617/0619 Page 36 of 45

= 570 lbs = 450 lbs = +92lbs Total: 1112 lbs = 990 lbs = +720 lbs Total: 1410 lbs = 1980 lbs JEFFREY M. HARPER, FAA ATTORNEY TEL: (425) 227-2161 FAX: (425) 227-1007Cargo Weight DMS Flight

I Load Manifest N2

N2

1 FAA-2012-0872
6756

• 1412 lbs 1 (Exhibit C-9) FAA-2012-0872
6991 11680 lbs (Exhibit C-12) FAA-2012-0872
6960 11840 lbs (Exhibit C-14) FAA-2012-0873
6756 11530 lbs (Exhibit C-17) Complainant's Post-Trial Brief fn the Matters of Sky West Airlines, Inc. DMS Nos_ FAA-2012-0868/ 0869/0872/0873/0874/
0904, -2013-0617/0619 Page 37 of 45

Cargo Weight Calculated from CLR 21 Standard

x 30 lbs 26 Plane Side

x 30 lbs CO MAT 2lbs (Exhibit C-8) 34 Standard

x 30 lbs 22 Plane Side

x 30 lbs (Exhibit C-11) ----------- 29 Standard

x 30 lbs 24 Plane Side

x 30 lbs Ballast
250 lbs (Exhibit C-13) ------ 30 Standard

x 30 lbs 21 Plane Side

x 30 lbs (Exhibit C-16)

= 630 lbs = 780 lbs = +2lbs Total: 1412lbs = 1020 lbs = +660 lbs Total: 1680 lbs = 870 lbs = 720 lbs = +250 lbs Total: 1840 lbs = 900 lbs = +630 lbs Total: 1530 lbs JEFFREY M. HARPER, FAA ATTORNEY TEL: (425) 227-2161 FAX: (425) 227-1007Cargo Weight Cargo Weight DMS Flight

' Load Manifest Calculated from CLR I N2

N2 F AA-2012-0874 4553 12190 lbs

46 Standard

x 30 lbs (Exhibit C-19)

27 Plane Side

x 30 lbs (Exhibit C-18) ------
11880 lbs F AA-2012-0874 4540

35 Standard

x 30 lbs t (Exhibit C-22)

2 Heavl

3

x 60 lbs 12 Planeside

x 30 lbs CO MAT
350 lbs (Exhibit C-21) FAA-2012-0874 4445 12130 lbs

46 Standard

x 30 lbs (Exhibit C-25)

25 Planeside

x 30 lbs (Exhibit C-24) 33 Heavy bags are assigned

a weight of60 1bs each. Exhibit R-1-1, Page 3.9; Tr.= 378:16-20. Complainant's Post-Trial Brief In the Matters ofSkyWest Airlines, Inc. DMS Nos. FAA-2012-0868/ 0869/0872/0873/0874/0904. -2013-0617/0619 Page 38 of 45

= 1380 lbs = +810lbs Total: 2190 lbs = 1050 lbs = 120 lbs = 360 lbs = +350 lbs Total: 1880 lbs = 1380 lbs = +750 lbs Total: 2130 lbs JEFFREY M. HARPER. FAA ATTORNEY TEL: (425) 227-2161 FAX: (425) 227-1007DMS
Cargo Weight Flight

I Load Manifest N2

N2 FAA-2012-0874 4613 l2010 lbs (Exhibit C-28) F AA-20 12-0904 4781 11180 lbs (Exhibit C-30) Complainant's Post-Trial Brief In the Matters ofSkyWest Airlines, Inc. DMS Nos. FAA-2012-0868/ 0869/0872/0873/0874/0904, -2013-0617/0619 Page 39 of 45

Cargo Weight Calculated from CLR 37 Standard

x 30 1bs 1 Heavy

x 60 lbs (14+ 13) Planeside

x 30 lbs Freight

30 lbs (Exhibit C-27) 18 Standard

x 30 lbs 1 Heavy

x 60 lbs 14 Planeside

x 30 lbs CO MAT
350 lbs (Exhibit C-29)

= 1110 lbs = 60lbs = 810 lbs = +30 lbs Total: 2010 lbs = 540 lbs = 60 lbs = 420 lbs = +160 lbs Total: 1180 lbs JEFFREY M. HARPER, FAA ATTORNEY TEL: (425) 227-2161 PAX: (425) 227-1007DMSCargoWeightFlightILoadManifestN2N2FAA-2013-0617116012408lbs(ExhibitC-33)FAA-2013-06195449I810lbs(ExhibitC-35)Complainant'sPost-TrialBriefIntheMattersofSkyWestAirlines,Inc.DMSNos.FAA-2012-0868/0869/0872/0873/0874/0904,-2013-0617/0619Page40of45CargoWeightCalculatedfromCLRTheCLRshows:36Standardx30lbs=1080lbs17Planesidex30lbs=510lbsCOMAT308lbs=+308lbsTotal:1898lbsASIobserved43Standardbags,anadditionalweightof:(43-36)Standardx30lbs=+210lbsTotal:2108lbs(ExhibitC-32,Tr.""120:21-121:3,121:21-122:1)16Standardx30lbs11Planesidex30lbs(ExhibitC-34)=480lbs=+330lbsTotal:810lbsJEFFREYM.HARPER,FAAATTORNEYTEL:(425)227-2161fAX:(425)227-1007