### 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. FDMS FAA-2012-0874; 0872; 0873; 0869; 0868; 0904 and FAA-2013-0617; and 0619 

### (Consolidated) REQUEST FORJUDICIAL NOTICE 

### Judge: Richard C. Goodwin

To: The Honorable Richard C. Goodwin and to all counsel ofrecord: SKYWEST AIRLINES, INC. hereby makes a Motion pursuant to 14 C.P.R. Section 13.218 and Federal Rule ofEvidence 201 for Judicial Notice ofthe contents ofthe following publications and public records:

### I. FAA Case No. 2011NM060011/DMS No. FAA-2011-0485, FAA Case No. 2011NM060010/DMS No. FAA-2011-0486, and FAA Case No. 2011NM060033/DMS No. FAA-2011-0680 & 

### 0779:

a. Initial Decisions ofFAA-2011-0485/0486 and FAA-2011-0779, both dated May 2, 2013, attached hereto as Attachment Nos. I.a.(!) and l.a.(2);
b. SkyWest Post Trial Brief, dated January 22, 2013 attached hereto as Attachment l.b; and

c. SkyWest Witness Testimony dated October 2, 2012. As the Court and parties are already in possession ofthese transcripts they have not been duplicated or attached.

1. 

### Transcript excerpts (Page 1-4;83-182);
ii. Under Seal Transcript (later opened) excerpts (Pages 1-33);
2. FAA Order 2150.3B, Appendix B, Part Two- Sanction Guidance Tables, attached hereto as Attachment 2; and
3. FAA Order 9550.8A, Human Factors Policy, Revised August 10, 2005, attached hereto as Attachment 3;

FDMS FAA-2012-0874; 0872; 0873; 0869; 0868; 0904 and FAA-2013-0617; and 0619 (Consolidated) REQUEST FORJUDICIAL NOTICE Page 2

### 4. Notice ofthe following documents is additionally requested, however to avoid duplication, these documents are not attached as they were provided in the Complainant's April15, 2014 Motion to Take Judicial Notice:

a. FAA Weight & 

### Balance Handbook, FAA-H-8038-IA, Chapter 1, Pages 1-4 FAA's;
b. Advisory Circular 120-27E, Pages ii, 1,5 and Appendix I, Page I;

c. FAA Order 2150.38, Chapter 7; and
d. FAA Order 2150.38, Appendix B, Pages B-1 to B-3 and B-12.


### D'kd thi" / 

# f(" doy

# ~,J.2014.
'·



### Michael L. Dworkin Co-Counsel for SkyWestAirlines

FDMS FAA-2012-0874; 0872; 0873; 0869; 0868; 0904 and FAA-2013-0617; and 0619 (Consolidated) REQUEST FOR JUDICIAL NOTICE Page 3

### CERTIFICATE OF SERVICE The undersigned hereby certifies that on this 

# \8 th 

### day

## of~\L, 2014, a true and
correct copy ofthe foregoing: 

### REQUEST FORJUDICIAL NOTICE

was served as follows:
The Honorable Richard C. Goodwin Office ofHearings, M-20 1200 New Jersey Avenue, S.E. East Building Ground Floor, Room El2-320 Washington, D.C. 20590 Email: Richard.Goodwin(al,dot.gQy-AndMs. PatriciaMatthews, StaffAssistant Email: Patricia.Matthews@dot.gov {EMAIL and FEDEX} Federal Aviation Administration 800 Independence Avenue SW Washington, DC 20591 Attn: Hearing Docket Clerk, AGC-430 Wilbur Wright Building- Suite 2Wl000 {FEDEX} Jeffrey M. Harper Federal Aviation Administration Northwest Mountain Region, ANM-7 1601 Lind Avenue S.W. Renton, Washington 98057 Fax: (425) 227-1007 Email: Jeffrey.Harper@faa.gov**{EMAIL~V\cJ__** 

### (AA\L

FDMS FAA-2012-0874; 0872; 0873; 0869; 0868; 0904 and FAA-2013-0617; and 0619 (Consolidated) REQUEST FOR JUDICIAL NOTICE Page4

# Attachment l.a.(1)
Initial Decisions ofFAA-2011-0485/0486
Dated May 2, 2013

# Received MAY -5 lED SERVED: MAY 2, 2013 Michael L. Dworkin &**Associate~**

# ~

# ~~ 1;'\)\.\r

# (~0\;_ - UNITED STATES DEPARTMENT OF TRANSPORTATION

### \:.:"~ OFFICE OF HEARINGS WASHINGTON, D.C.

FEDERAL AV.MTION ADMINISTRATION, Complainant,

v. SKYWEST AIR:LINES, INC. Respondent. ) ) 

### ) ) 

### ) FAA Docket Nos. [To Be Assigned] ) 

### ) (Civil Penalty Action) ) 

### ) ) 

### ) FDMS Nos. FAA-2011-0485 ) FAA-2011-0486 )



### INITIAL DECISION OF ADMINISTRATIVE LAWJUDGE RICHARD C. GOODWIN 

### Found: 1) In Docket FAA-2011-0485: a) Respondent violated 14 C.F.R. §§119.5(g) and 119.5(1); b) Complainantfailed to prove that Respondent violated 14 C.F.R. §§121.693(a), 121.693(c), and 121.693(d); and c)**Re~pondent** 

### will 

### be assessed a civil

### penalty of$750. 2) In DocketFAA-2011-0486: Respondent will 

### be assessed a civil penalty of$250.

I. Background· Respondent SkyWestAirlines, Inc. ("Respondent," "SkyWest," or "the carrier"), ofSt. George, UT, is

## .a Part 121 regional air carrier. These proceedings all 

### involve charges stemming from the carrier.'s baggage loading methods. It is asserted thatthose methods resulted in

### 2


### inaccurate counting and weighing in violation ofcertain Federal Aviation Regulations ("FARs"). The matters were consolidated by Orders served July 29,2011 (consolidating FAA-2011-0485 ("-0485") and FAA-2011-0486 ("-0486")) and June 20, 2012 (consolidating FAA-2011-0779 ("- 0779") into the others). 1 In

### each"proceeding the same allegations were lodged against Respondent. InDocket -0485, Complainant Federal Aviation Administration ("Complainant") charged that Respondent violatedthe following FARs (all in 14 CFR): section 119.5(g), for operating as a direct air 

### carrier inviolation ofan appropriate operations specification ("op spec"); section 119.5(1), for operating under Part 121 an aircraft inviolation ofthe carrier's op specs; section 121.693(a), by operating without a load manifest accurately reflecting the weight ofthe cargo and baggage; section 121.693(c), in flying when the total weight ofthe aircraft had notbeen computed under approved procedures;**and~ec.tion** 

### 121.693(d), by operating when the aircraft had notbeen loaded according to

# an1 

### approved schedule. Docket -0486 will consider the issue ofcivil penalty only, since the issue ofliability has already been determined in favor ofComplainant.2 

### SkyWest's aircraft loading procedures are governed by the carrier's ops specs. Paragraph A098 ofthe op specs directs that loading and counting baggage be accomplished in accordance withRespondent's Weight & 

### Balance Operations Manual ("Weight & 

### BalanceManual" or "Manual"). Exh. C-103. The Mafmal contains an agency-approved Weight & 

### Balance Program ("Program"). The Program defines several terms pertinent to these cases. It classifies luggage by weight ranges: a Standard Checked Bag ("standard bag") is defmed as any bag weighing 50pounds or less; a Heavy Checked Bag ("heavy bag") weighs more than 50 but less than 100 pounds. When a heavy bag is checked in, Respondent's customer service agent will attach a "heavybaggage" tag to it. The tag usually is orange. A Planeside Loaded Bag, orPlaneside Valet ("planesidebag"), is any bag·or item checked plane-side; such bags are placed at the door or steps ofan aircraft or inthejetway ;,w.d subsequently placed in the aircraft cargo bin.

r 

### SkyWest's Manual requires its designated loading agent, or a ramp agent assigned to load the aircraft ("loading agent"), to prepare a Cargo Load Report ("CLR"). In so doing the loading agent manually conducts a baggage count. He or she must write the total number ofstandard bags inthe CLR's "Standard Checked" block; the heavy-bagtotal inthe "Heavy Checked" block; and the total number ofplaneside bags inthe "Planeside Valet/Service Items" block. Upon completion of!oading, the responsible agent also must verify the piece count ofall standard, heavy, and planeside bags. The agent additionally is required to conduct a cargo weight count.

1 The proceeding docketed as FAA-2011-0779 also had been docketed as FAA-2011-0680. I askedthe parties to briefthe consequences ofthis andrelated issues. Tr. 7-9; see Complainant's Post-Trial Brief, pp. 3-5; Respondent's Brief, p. 10. A separate Decision will be issued in FAA-2011-0680/0779. 2 "Order Granting in'Part Complainant's Motion for Decision in FDMS No. FAA-201 1-0486, Limiting Proceeding to Issue ofSanction," served December 2, 2011. This case deals with one flight Sky Westbad operated on November 17, 20Hl from Denver, CO to Yampa Valley Airport, Hayden, CO. See discussion ofpenalty, Part III beginning on p. 7.

### 3 SkyWest uses the CLRto compute its load manifest. Toward this end, its Manual employs what is known as an average weights program. The average weightsprogram assigns standardbags a weight of30 pounds; heavybags, 60 pounds; and planeside bags, 30pounds. Passengers are each assigned a weight of 190 pounds in the summer and 195 pounds inthe winter. Persopj!l1terns carried onboard are assigned a weight of 16 pounds. Whenthe CLRis completeditis turned overto the cockpit. Thepilots thenfigure the loadmanifest from the number ofbags times the weight assigned to eachbythe Manual's average weightsprogram? A hearing was held on October 2, 2012, in Salt Lake City, UT. The parties have filed briefs and the matternow is ready for decision. 4 

### Respondent denied liability and interposed affirmative defenses in -0485.

v 

### II. Discussion and Findings
A. -0485 This proceeding concerns three flights. 

### All were operated with Bombardier CL-600- 2Bl9 civil aircraft. Sky Westis permitted to operate these aircraft by its paragraph D085 ofits op specs. The flights will be considered chronologicallyby operation. 1

• 

### First Flight The frrst flight, SkyWest 4659, operated from Billings, MTto Salt Lake City, UT ("SLC") on November 22,2010. The aircraft had the registration number N410SW. According to the Complaint, prior totakeoffRespondenthad loaded 38 standard and two heavy bags onto the aircraft. Theheavybags couldbe recognized bytheir orange tag containingthe word "heavy" 

### (see e.g., 

### Exh. C-2). The CLR, by contrast1 

### listed onboard 40 standard and 0 heavy bags (Tr. 66-67, 77,98- 99). 2. Second Flight The second flight, SkyWest 6692, left Los Angeles ("LAX") onDecember 14, 2010, and operatedto its scheduled destination ofSanDiego. This aircraft holds the registration number

3 Tr. 51, 77-79,91-93, 133-47; Exhs. C-102 and C-103. There are also procedures in the event a bag is loaded at the last minute. inthat instance, so long as the flight crew assents the bag will be placed on board

-- but tbe CLR will notbe amended accordingly. Tr. 147-49. No evidence showedtbat any last-minute loading tookplace on any oftbe flights undei'!'eview. 4 Complainant's Post-Trial Briefwill be referred to as "Compl. Br." and Respondent's Briefas "Resp. Br." Additionally, Complainant's exhibits will begin will begin with "Exh. C" followed bytbe exhibit number; Respondent's exhibits will begin with "Exh. R."

### 4
N984CA. The flight operated as a United Express flight. The Complaintrecites thatRespondent had loaded 19 sta,ndard bags and oneheavy bag. As inthe flight discussed immediately above, the heavy bag hadthe orange "heavy" tag attached. The CLRlisted onboard 20 standard and 5 heavy bags (Exh. C-100; Tr. 45-47, 52). 3. Third Flight Thethird flight involved inthis matter, SkyWest4800, operatedbetween LAX and San Diego on December 15, 2010. This aircraft had the registration numberN411SW. SkyWest personnel, the Complaint asserts, loaded at LAX 43 standard, four heavy, and 12 planeside bags. The heavy bags a¥_ain hadbeen markedwiththe telltale orange tag. The CLR listed 59 standard, zero heavy, and zero planeside bags on board (Exh. C-101; Tr. 49-50, 58, 104). Complainant asked for a civil penalty under 49 U.S.C. §46301 of$99,000, or $33,000 per flight (Compl. Br., p. 2).


### C. R£spondent's Testimony Carl Salamone was SkyWest's main witness. He is a Sky Westpilotwho evaluatedthe flights at issue for weight andbalance factors. He pointed outthat the nature ofthe carrier's weight andbalanceprogram- assigning average weights to baggage andtopassengers - means that an aircraft's takeoffweightinevitably will notexactly correspond with its actual weight. Yet, he stressed, any discrepancies between the two weight figures would not have affected aircraft performance. Forthe Billings-SLC flight (#4659) in -0485, the uncounted weight of60 pounds (as computed under the carrier's average weightprogram) would have raisedthe aircraft's takeoffweight from the computed 46,358 pounds to 46,418 pounds. Thehigher figure was still well underthe aircraft's maximum certified takeoffweight of53,000 pounds. 

### Mr. Salamone further stated that the aircraft weight and center ofgravity locationfell withio manufacturerrecommendations and performance envelopes for each flight. Safety offlight was maintained at all times, the witness asserted (Tr. 93-95, 100-01; Exh. R-3). Sky West's witness testified further thatthe CLR created forFlight 6692, the second operationwithwhichDocket -0485 is concerned, reported thatthe aircraft actually was heavier 

### than itreally was. The difference, using the average-weight calculations, was 270 pounds. 

### Mr. Salamone concluded that this discrepancy had no effect on aircraft performance or safety. In fact the aircraft normally would have performed better in all contexts for nothaving the extraweight. Regarding the final flight in -0485, SkyWest4800, the witness statedthat the discrepancy betweenthe weight ofthe luggage loaded and the CLRreportwas 120 pounds ofadditional cargo. This difference, he asserted, had no effect on aircraft safety (Tr. 102-05, Ill; Exh. R-3, p. 9).

### 5 

### Mr. Salamone further defended SkyWest's actions in noting that FAA Advisory Circular ("AC") 120-27E permits an average-weight program in preference to an actual-weight program. Itrecognizes thatusing actual weights on an aircraft is impractical, he said. The AC also permits an error ofup to two percentfor carriers performing bag surveys inplace ofusing the method of average bag wejghts. While SkyWestemploys the average bag weight method, the witness noted that all flights charged in case -0485 would have fallen within 

### the permitted margin of error (Exh. C-5; Tr. 109-12). The witness also stated 

### in Sky West's defense that, while the carrier seeks absolute accuracy in counting and weighing, and attempts to promote safe operations to themaximum extentfeasible, the "sheervolume" ofluggage

-- and "human limitation" --makes the goal, as a practical matter, impossible (Tr. 124-25, 167; Exh. R-5). Finally,ihe carrier stressedthat ithas taken corrective actions to assure more accurate weighing. Ithas implemented additional riskcontrols, it states, and has placed greater awareness on.this issue 

### intraining. It has utilized surveillance onits ramp personnel. Employees falling short ofSkyWest standards have been counseled andre-trained. SkyWest emphasizesthat ithas highlighted to its employees the importance ofthis issue (see, e.g., 

### Tr. 151-56; Exh. R-15).


### D. Findings and Conclusions I fmd and conclude in -0485 that Complainant proved that SkyWestviolatedFARs 

### §§ !19.5(g) and 

### f 19.5(1). Complainant failed to prove the remaining allegations. 1. 

### Sections 119.5(g) and 119.5(1) Section 119.5(g) prohibits an air carrier from operating in violation ofits op specs. SkyWest's op specs obligate the carrier to use the procedures detailed in its Weight & 

### Balance Manual for loading and counting baggage. The Manual, among otherthings, directs the carrier's desig:ri:itted loading agent to accurately prepare the flight's CLR. For each ofthe flights encompassed byDocket -0485, Sky West's CLRfailed to properly reflect inthe appropriate blockthe actual count ofthe different classes ofbaggage loaded onto the aircraft. 

### In -0485, the evidence showed that: I) ForFlight#4659, Sky West loading agents counted 38 standard bags and 2 heavy bags, but the CLRlisted 40 standard bags and zero heavy bags; 2) For Flight #6692, carrier agents counted 19 standardbags and one heavy bag; the CLR, by contrast, logged 20 standard and five heavy bags; and 3) Flight#4800 agents counted 43 standard, four heavy, and 12 planeside bags, while the CLRreflected a total of59 standard, zero heavy, and zero planeside bags. The failure to accurately prepare the CLR, it is concluded, constitutes a violation of §119.5(g). SkyWest's actions inloading and marking the CLRs for these four flights also constitute a violation ofFAR §119.5(1). This section prohibits Part 121 air carriers from operating in violation ofop specs. Byfailing to set out for each flight accurate information onthe CLRs, Respondent, a Part 121 air carrier, did not operate inconformance with its op specs. Itthus violated this section.

### 7
B. Decision I fmd that a civilpenalty of$250 per flight (including the flight withwhich Docket -0486 is concerned) is 0

### a,ppropriate. Theviolations found weretechnical innature. They hadno material effect onweight and balance or onaircraft performance. Respondent showed that in no instance was safety of flight ateventhe slightestrisk 

### (See Tr. 84-85). As Respondent notes, the CLRs are notdispositive (Resp. Br., p. 12). The most important factor in the weight and balance contextunquestionably is the loadmanifest. 

### Itis this document that is computedbythe flight crew and used bythemto 

### evaluate howtheir calculations will affect operational safety. Complainant failed to show for any ofthe flights that Respondent failed to follow the scheme ofits Weight & 

### Balance Manual in deriving its load manifests 

### (See Resp. Br., p. 7). 

### In fact the evidence showed that Respondent's loadmanifest calculations were in accordance with its op specs and Manual instructions in every instance. I fmd further thatjust one civil penalty per flight is appropriate. To assess a civilpenalty based on the two violations per flight found is, under the circumstances, unfair, unwarranted, and disproportionate to the offenses. The two sections violated ineach instance, §§119.5(g) and 119.5(1), are not significantly different. The first prohibits operation as a direct air carrier in violation ofop specs; the second prohibits operatingunder Part 121 in violation ofop specs. The distinction between the two provisions for the presentpurposes is inconsequential. As such, penalizing Respondent for both violations wouldbeunjustified. I note that the agency's civil penalty guidelines, FAA Order 2150.3B, take a similar stance: they advise that "[w]hen a single instance ofnoncompliance results in multiple violations ofgeneral and specific regulations involving the same or similar conduct, the FAA ordinarily does not compound the sanction

..." (Exh. C-6, p. 7-10). Under these circumstances, one civil penalty -in a minimal amount of$250 per violation

- suffices. In sum, I find that the civil penalty appropriately accounts for the factors the statute and agencypolicy directs in fixing the assessment. All arguments by both parties have been carefully considered. Those notexplicitly discussed arerejected ordismissed as mooted by this Initial Decision.'

5 Certain evidenceinthis proceeding has been sealed. See Order Sealing Certain Exhibits and Transcript Portion, servedNovember 2, 20!2, and Order Unsealing TranscriptPages, served January 17, 2013. However, this Initial Decision does not reference any ofthe evidence remaining under seal; as such, no partofthe J.D. is subject to seal, and it may be freely disseminated in its entirety.

### 8 

### Sky West Airlines, Inc. is hereby assessed a civil penalty of$750 inDocket FAA 2011- 0485 and $250 in Docket FAA 2011-0486 for violations ofF AR §§ 119.5(g) and 119.5(1) as discussed herein. The remainder ofthe charges in Docket FAA-2011-0485 are dismissed.•

Richard C. Goodwin Administrative Law Judge Attachment- Service List

6 This decision may be appealed to the Administrator ofthe FAA. The notice1 ofappeal must conform to sections 13.210, 13.21l(e) and 13.233 ofthe Rules ofPractice, whichrequire that a notice ofappeal!)be filed not laterthan I0 days (plus an additional five days ifmailed) from the service date ofthis decision, and 2) be perfected with a written briefor memorandum not later than 50 days (plus an additional five, ifmailed) from the service date ofthis decision. The notice ofappeal and briefor memorandum must either be a) mailed to the Federal Aviation Administration, 800 Independence Avenue, S.W., Washington, DC 20591, Attn: Hearing Docket Clerk, AGC-430, Wilbur Wright Building-Suite 2Wl000, orb) delivered personally orvia expedited courier service to the Federal Aviation Administration, 600 Independence Avenue, S.W., Wilbur Wright Building-Suite 2WIOOO, Washington, D.C. 20591, Attn: HearingDocket Clerk, AGC-430. A copy ofthe notice ofappeal and brieformemorandum also mustbe sent to agency counsel. Service upon the presidingjudge is optional.

### 9



### SERVICE LIST ORIGINAL & 

### ONE COPY 

### Federal Aviation Administration 800 Independence Avenue, S.W. Washington, DC 20591 Attention: Hearing Docket Clerk, AGC-430 Wilbur Wright Building-Suite 2W1000 1 

### ONE COPY 

### Todd C. Emerson, Respondent'sRepresentative 

### Director

- Government and Legal Affairs SkyWest Airlines 444 South River Road St. George, UT 84790 TEL: 435-634-3530 FAJ(: 435-634-3505 Michael L. Dworkin, Respondent 's Counsel 

### 465 California Street, Suite 210 San Francisco, CA 94104 TEL: 415-421-0250 FAX: 415-421-2560 Robert Spitzer, Complainant's Counsel 

### Attorney, Office ofthe Regional Counsel Northwest Mountain Region, ANM-7 Federal Aviation Administration 1601 Lind Avenue, S.W. Renton, W A 98057 TEL: 425-227-1417 FAX: 425-227-1007 FDMS Nos. FAA-2011-0485 & FAA-2011-0486, (Civil Penalty Actions)

1 Service was by U.S. Mail. For service in person or by expedited courier, use the following address: Federal Aviation Administration, 600 Independence Avenue, S.W., Wilbur Wright Building-Suite 2WIOOO, Washington, DC 20591; Attention: Hearing Docket Clerk, AGC-430.

# Attachment l.a.(2)
Initial Decisions ofFAA-2011-0779,
Dated May 2, 2013

# RECEIVED MAY 0 6 ZOJ;j 

## SKYWEST-LEGAL SERVED: MAY 2, 2013



### UNITED STATES DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, D.C.

FEDERAL AVIATION ADMINISTRATION, Complainant, FAA Docket No. [To Be Assigned]


### v. (Civil Penalty Action) SKYWEST AIRLINES, INC.



### Found; Respondent. FDMS Nos. FAA-2011-0779

INITIAL DECISION OF ADMINISTRATIVE LAWJUDGE RICHARD C. GOODWIN 

### a) Respondentviolated 14 C.F.R. §§ll9.5(g) and 119.5(1); b) Complainant failed to prove that Respondentviolated 14 C.F.R. §§121.693(a), 121.693(c), and 121.693(d); and c) Respondentwill 

### be assessed a civil penalty of$250. I. 

### Preliminary Issue

a. Background On July 28, 2011 the Federal Aviation Administration ("FAA" or "Agency") transmitted to the Hearing Docket Clerk' Case No. 2011NM060033 2• 

### The case was docketed as FDMS1Document was transmitted to "Hearing Docket Clerk, AGC-430, Hearing Docket, Federal Aviation Administration,

..." 2 The case was receiptedby Hearing Docket on July 28, 20II.

### 2
2011-0779. On August 29,2011, case FAA- 2011-0779 was 'assigned' to the undersigned by a document captioned "Notice ofAssignment ofProceeding." 3 

### On July 19, 2011 4 

### a transmittal ofCase No. 2011NM060033 was sent to the FAA Hearing Docket. The July 19, 2011 transmittal was docketed as 2011-0680. Case No. 2011NM060033 was thus transmitted to the FAA Hearing Dockettwice and assigned two separate FDMS docket numbers. On October 4, 2011 the ChiefAdministrative Law Judge issued a document captioned "Notice ofAssignment ofProceeding under other FMDS Docket and Closure ofthis FDMS Docket". The document contained no language 'assigning' the case to anALJ5

. 

### The document identified the duplicitous docketing and stated "

...Accordingly, that docket is herebl closed." The document failed to specifY which ofthe three docketnumbers was to be closed

. Since the document dated October 4, 2011 inFDMS FAA-2011-0680 was unassigned and the language unclear, we asked the parties to briefthe consequences ofthis and related issues. Tr. 7-9; see Complainant's Post-Trial Brief, pp. 3-5; Respondent's Brief, p. 10. b. Discussion By Order dated June 20,2012, cases FAA 2011-0779 and FAA-2011-0680 were consolidated withtwo other cases7 

### and set for hearing. Notices ofAssignment (NOAs) are not required in FAA cases, although they are not prohibited as they fall under the authority ofan administrative lawjudge to regulate the course of a proceeding8

. 

### Jurisdiction ofan ALJ arises as a consequence ofthe filing ofa Complaintby an FAA attorney, not the issuance ofan NOA9

. 

### All DOT ALJs havejurisdiction over cases where a Complaint has been filed bythe Agency. An 

### ALJ may have authority over a case without the issuance ofanNOA10

.
3 The document reads: "This proceeding (heretofore designated as Case No. 2011NM060033) has been assigned to Administrative Law Judge Richard C. Goodwin. All future pleadings and other communications regarding this proceeding shall be served on the Judge, the FAA Hearing Docket, and the other persons on the attached Service List." 4 The Facsimile Message coversheet is datedJune 19, 2011. The Fax date stamp is '07/1912011' intwo places throughout the eight (8)page document. 5 The document reads: "By notice served August 29, 2011, this proceeding-designated as Case No. 2011NM060033 and docketed in the Federal Docket Management System (FDMS) as FAA2011-0779-was assigned to Administrative Law Judge Richard C. Goodwin. The same proceeding was previously docketed in FDMS as FAA-20 11-0680 but was not transmitted to this office. Accordingly, that docket is hereby closed." 6 According to the Disposition entry in Office ofHearings 'Case Tracking System' both dockets FAA-20 11-0779 and FAA-2011-0680 were administratively closed on 10/04/2011 and have remained closed since that date. 7 SkyWest Airlines FAA 2011-0485 and SkyWest Airlines FAA 2011-0486. 8 14 C.F.R. §13.205. 9 Jd and 14 C.F.R. §13.208. 10 See also LightningAircraft Corporation, FAA-2011-1124, "Order ofChiefAdministrative Law Judge Granting Motion to Dismiss Request for Hearing and Assessing A Civil Penalty", served February 17, 2012. Appeal dismissed FAA OrderNo. 2012-7, FDMS No. FAA-2011-1124 served July 9, 2012.3

The document dated October 4, 2011 is unclear. The October 4, 2011 document did not assign the case to a specific ALJ. There was a duplicate filing of20 11NM060033. The October 4, 2011 document was not an adjudication onthe merits ofdocket 2011NM060033 or a Dismissal of2011NM060033. The language 'closing' the docket was not an adjudication on the merits and therefore not 

### resjudicata as to the merits ofthe case. The matters will be consolidated. We proceedto consideration ofthe merits ofthe underlying Case No. 2011NM060033, docketed as FAA-2011-0779 and FAA-2011-0680.



### II. Background Respondent Sky West Airlines, Inc. ("Respondent," "Sky West/' or "the carrier"), ofSt. George, UT, is a Part 121 regional air carrier. These proceedings all involve charges stemming from the carrier's baggage loading methods. Itis asserted that those methods resulted in inaccurate counting and weighing inviolation ofcertain Federal Aviation Regulations ("F ARs"). The matters were consolidated by Orders served July 29, 2011 (consolidating FAA-2011-0485 ("-0485") and FAA-2011-0486 ("-0486")) and June 20, 2012 (consolidating FAA-2011-0779 ("- 0779") into the others). 11 In each proceeding the same allegations were lodged against Respondent. In Docket -0779, ComplainantFederal Aviation Administration ("Complainant") charged that Respondent violated the following PARs (all in 14 CPR): section 119.5(g), for operating as a direct air carrier in violation ofan appropriate operations specification ("op spec"); section 119.5(1), for operating under Part 121 an aircraft in violation ofthe carrier's op specs; section 121.693(a), by operating without a load manifest accurately reflecting the weight ofthe cargo and baggage; section 121.693(c), in flying whenthe total weight ofthe aircraft had not been computed under approved procedures; and section 121.693(d), by operating when the aircrafthad not been loaded according to an approved schedule. SkyWest's aircraft loading procedures are governed by the carrier's ops specs. Paragraph A098 ofthe op specs directs that loading and counting baggage be accomplished in accordance with Respondent's Weight & Balance Operations Manual ("Weight & Balance Manual" or "Manual"). Exh. C-103. The Manual contains an agency-approved Weight & Balance Program ("Program"). The Program defines several terms pertinent to these cases. 

### Itclassifies luggage by weight ranges: a Standard Checked Bag ("standard bag") is defmed as any bag weighing 50 pounds or less; a Heavy Checked Bag ("heavy bag") weighs more than 50 but less than 100 pounds. When a heavy bag is checkedin, Respondent's customer service agent will attach a "heavybaggage" tag to it. The tag usually is orange. A Planeside Loaded Bag, or Planeside Valet ("planesidebag"), is any bag or itemcheckedplane-side; such bags are placed at the door or steps ofan aircraft or in thejetway and subsequently placed in the aircraft cargo bin.

11 The proceedings docketed as FAA-2011-0485 and -0486 are the subject ofanother !D.4 SkyWest's Manualrequires its designated loading agent, or a ramp agent assigned to load the aircraft ("loading agent"), to prepare a Cargo Load Report ("CLR"). In so doing the loading agent manually conducts a baggage count. He or she must write the total number ofstandard bags inthe CLR's "Standard Checked" block; the heavy-bag total in the "Heavy Checked" block; and the total number ofplaneside bags in the "Planeside Valet/Service Items" block. Upon completionofloading, the responsible agent also must verify the piece count ofall standard, heavy, and planeside bags. The agent additionally is required to conduct a cargo weight count. Sky West uses the CLRto compute its load manifest. Toward this end, its Manual employs what is known as an average weights program. The average weights program assigns standard bags a weight of30 pounds; heavy bags, 60 pounds; andplaneside bags, 30 pounds. Passengers are each assigned a weight of 190 pounds in the summer and 195 pounds in the winter. Personal items carried onboard are assigned a weight of 16 pounds. When the CLR is completed it is turned over to the cockpit. The pilots then figure the load manifestfrom the number ofbags times the weight assigned to each by the Manual's average weights program. 12 A hearing was held on October 2, 2012, in Salt Lake City, UT. The parties have filed briefs and the matter nowis ready for decision. 13 Respondent denied liability andinterposed affmnative defenses in case -0779. The issue ofpenalty will be discussed and determined for all three matters in section III following. 

### III. Discussion and Findings


### a. -0779 This matter involves one flight. The Complaint states that on February 15, 2011, 14 Sky West operated Flight4451 from SLC to Casper, WY. At SLC the carrier loaded one heavy bag- marked with a "heavy bag" tag- but the CLR listed zero such bags (Tr. 105; Exh. C-1). The agency preferredthe same five charges as in -0485 

### (see Initial Decision ("l.D."), p. 3). It asked for a civil penalty under 49 U.S.C. §46301 of$33,000. b. 

### Respondent's Testimony Carl Salamone was SkyWest's main witness. He is a SkyWest pilot who evaluatedthe flights at issue for weight and balance factors. He pointed out that the nature ofthe carrier's

12 Tr. 51, 77-79, 91-93, 133-47; Exhs. C-102 and C-103. There are also procedures in the event a bag is loaded at the last minute. In that instance, so long as the flight crew assents the bag will be placed on board

-- but the CLR will notbe amended accordingly. Tr. 147-49. No evidence showed that any last-minute loading took place on any ofthe flights under review. 13 Complainant's Post-Trial Briefwill be referred to as "Compl. Br." and Respondent's Briefas "Resp. Br." Additionally, Complainant's exhibits will begin will begin with "Exh. C" followed by the exhibit number; Respondent's exhibits will begin with "Exh. R." 14 The Complaint recites the date as February 11, but at the hearing the agency amended it to February 15. Tr. 12.

### 5 weight and balance program- assigning average weights to baggage and to passengers - means that an aircraft's takeoffweight inevitably will not exactly correspond with its actual weight. Yet, he stressed, any discrepancies between the two weight figures would nothave affected aircraft performance. Respecting the flight considered in -0779, 

### Mr. Salamone stated that the discrepancy claimed would have resulted ina weight difference of30 pounds (ifthe heavy bag had been counted as a standard bag}or 60 pounds (ifthe heavy bag had not been counted at all). Either situation would not have affected aircraft performance. The safety offlight would have suffered no compromise at all, he said (Tr. 1 05-07). 

### Mr. Salamone further defended SkyWest's actions in noting that FAA Advisory Circular ("AC") 120-27E permits an average-weight program in preference to an actual-weight program. It

### recognizes that using actual weights on an aircraft is impractical, he said. The AC also permits an error ofup to two percent for carriers performing bag surveys in place ofusing the method of average bag weights. While SkyWest employs the average bag weight method, the witness noted that all flights charged in case -0779 would have fallen within the permitted margin of error (Exh. C-5; Tr. 109-12). The witness also stated in SkyWest's defense that, while the carrier seeks absolute accuracy incounting and weighing, and attempts to promote safe operations to the maximum extent feasible, the "sheervolume" ofluggage

-- and "human limitation"

-- makes the goal, as a practical matter, impossible (Tr. 124-25, 167; Exh. R-5). Finally, the carrier stressed that it has taken corrective actions to assure more accurate weighing. It

### has implemented additional risk controls, it states, and has placed greater awareness onthis issue intraining. It

### has utilized surveillance on its ramp personnel. Employees falling short ofSkyWest standards have been counseled and re-trained. SkyWest emphasizes that it has highlighted to its employees the importance ofthis issue 

### (see, e.g., Tr. 151-56; Exh. R-15).



### c. Findings and Conclusions 

### I find and conclude in -0779 that Complainant proved that SkyWest violated FARs §§ 119.5(g) and 119.5(1). Complainant failed to prove any remaining allegations. i. Sections 119.5(g) and 119.5(1) Section 119.S(g) prohibits an air carrier from operating in violation ofits op specs. Sky West's op specs obligate the carrier to use the procedures detailed in its Weight 

### & Balance Manual for loading and counting baggage. The Manual, among other things, directs the carrier's designated loading agent to accuratelyprepare the flight's CLR. Forthe flight encompassedbyDocket -0779, SkyWest's CLR failed to properly reflect inthe appropriate block the actual count ofthe different classes ofbaggage loaded onto the aircraft. The agents' count was one heavy bag; the CLR showed zero suchbags (I.D., pp. 3-4). The failure to accuratelyprepare the CLR, it is concluded, constitutes a violation of §119.5(g).6 SkyWest's actions in loading and marking the CLRs for these four flights also constitute a violation ofFAR§119.5(1). 

### This section prohibits Part 121 air carriers from operating in violation ofop specs. By failing to set outfor each flight accurate information on the CLRs, Respondent, a Part 121 air carrier, did not operate in conformance with its op specs. It thus violated this section. ii. Sections 121.693(a), (c), and (d) Subsection (a) of§121.693 requires a load manifest to contain the weight ofthe cargo and baggage. Subsection (c) compels the use of"approvedprocedures"in computing the total weight ofthe aircraft. Section 121.693(d) requires that the load manifest contain evidence that the aircraft was loaded according to an approved schedule which insures that the center of gravity is within approved limits. Construing these subsections together, as principles of statutory construction dictate, indicates that a carrier's load manifest will pass muster ifithas been compiled using approved procedures, and that the method used insures that the center of gravity is within limits. The evidence shows that Sky West followed these mandates. Complainant, it is concluded, failed to prove that Respondent violated any ofthese provisions. As noted earlier, SkyWest computes its load manifest from its CLRusing its Manual's average weights program 

### (see I.D. p. 4). The carrier's op specs require loading procedures to follow the Manual (LD., p. 3). The load manifest, then, used approved procedures to compute the weight ofthe baggage. No violation of §§121.693(a) and (c) thus could be proven. Nor was a 

### §121.693( d) violation proven; no evidence tended to demonstrate that the approved method failed to insure that the center ofgravity was within approved limits. Indeed, the evidence suggested that the aircraft weight and center ofgravity location fell within manufacturer recommendations and performance envelopes for every flight under review (LD., pp. 4, 5). 

### IV. Penalty

a. Factors Complainant is obligated to consider the following factors when determining an appropriate civil penalty amount: (1) the nature and circumstances ofthe violation; (2) the extent and gravity ofthe violation; (3) the respondent's degree ofculpability; (4) the respondent's history ofprior violations, ifany; (5) the respondent's ability to paythe civil penalty; (6) the effect on the entity's abilityto stay inbusiness; and (7) other matters asjustice mayrequire. 

### See, e.g., Folsom'sAirService, Inc., FAA Order No. 2008-11 (November 6, 2008), 2008 WL 4948488, p. 11. The determination weighs whether the violation was inadvertent or deliberate, the private or public character ofthe violation, and the attitude ofthe violator. The agency also considers the respondent's size, particularly in determining the offender's ability to absorb the sanction. The principal elements in this analysis are the nature ofthe respondent's conduct and the totality ofthe circumstances. 

### EasternAir Center, Inc., FAA OrderNo. 2008-3 (January 28, 2008). Finally, the civil penalty should provide sufficient incentive to deter the respondent and similarly-situated entities from future violations. 

### Folsom'sAirService, Inc., !d., p. 20.

### 7 

### b. Decision I find that a civil penalty of$250 per flight is appropriate. The violations found were technical in nature. Theyhad no material effect on weight and balance or on aircraft performance. Respondent showed that inno instance was safety of flight at even the slightest risk (See 

### Tr. 84-85). As Respondent notes, the CLRs are not dispositive (Resp. Br., p. 12). The most important factor in the weight and balance context unquestionably isthe load manifest. It is this document that is computed by the flight crew and used by them to evaluate howtheir calculations will affect operational safety. Complainant failed to show for any ofthe flights that Respondent failed to follow the scheme ofits Weight & 

### Balance Manual in deriving its load manifests (See 

### Resp. Br., p. 7). In fact the evidence showed that Respondent's load manifest calculations were in accordance with its op specs and Manual instructions in every instance. I fmd further thatjustone civil penalty per flight is appropriate. To assess a civil penalty based on the two violations per flight found is, under the circumstances, unfair, unwarranted, and disproportionate to the offenses. The two sections violated in each instance, §§119.5(g) and 119.5(1), are not significantly different. The first prohibits operation as a direct air carrier inviolation ofop specs; the second prohibits operating under Part 121 inviolation ofop specs. The distinction betweenthe two provisions for the present purposes is inconsequential. As such, penalizing Respondent for both violations would be unjustified. I note thatthe agency's civil penalty guidelines, FAA Order 2150.3B, take a similar stance: they advise that "[w]hen a single instance ofnoncompliance results in multiple violations ofgeneral and specific regulations involving the same or similar conduct, the FAAordinarily does not compound the sanction

..." (Exh. C-6, p. 7-10). Under these circumstances, one civil penalty- in a minimal amount of$250 per violation- suffices. In sum, I fmd that the civil penalty appropriately accounts for the factors the statute and agency policy directs in fixing the assessment. All arguments by both parties have been carefully considered. Those not explicitly discussed are rejected or dismissed as mooted by this Initial Decision. 15 

### V. Wherefore, the above case having come for hearing, testimony having been heard and considered, post-hearing Briefs having been considered, itbe and is ORDERED as follow: a. I fmd and conclude thatNotices ofAssignment (NOAs) are not required in FAA cases. b. The original docket number for this case is FAADocket 2011NM060033.

15 Certain evidence in this proceeding bas been sealed. See Order Sealing Certain Exhibits and Transcript Portion, servedNovember 2, 2012, and OrderUnsea1ing TranscriptPages, served January 17, 2013. However, this Initial Decision does not reference any ofthe evidence remaining under seal; as such, no part ofthe J.D. is subject to seal, and it maybe freely disseminated in its entirety.

### 8

c. FAA Docket 2011NM060033 was docketed as FAA-2011-0680 and FAA-2011- 0779. d. The Order ofthe ChiefAdministrative LawJudge dated October 4, 2011 was not an assignment and or/ an adjudication on the merits ofF AA Docket 2011NM060033. e. FAA-2011-0680 be and is hereby consolidated and merged with FAA-2011-0779. f. Sky West Airlines, Inc. be and is hereby assessed a civil penalty of$250 in Docket FAA-2011-0779 for violations ofFAR §§119.5(g) and 119.5(1) as discussed hereinabove1 6

# ~?"==--~o~..,...i;=-"=-......_·**~+----** Administrative LawJudge Attachment

- Service List

16 This decision may be appealedto the Administrator ofthe FAA. The notice ofappeal must conform to sections 13.210, 13.211(e) and 13.233 ofthe Rules ofPractice, which require that a notice ofappeal I) be filed not later than I0 days (plus an additional five days ifmailed) from the service date ofthis decision, and 2) be perfected with a written briefor memorandum not later than 50 days (plus an additional five, ifmailed) from the service date ofthis decision. The notice ofappeal and brieformemorandum must either be a) mailed to the Federal Aviation Administration, 800 Independence Avenue, S.W., Washington, DC 20591, Attn: Hearing Docket Clerk, AGC-430, Wilbur Wright Building-Suite2WIOOO, orb) delivered personally or via expedited courier service to the Federal Aviation Administration, 600 Independence Avenue, S.W., Wilbur Wright Building-Suite 2WIOOO, Washington, D.C. 20591, Attn: Hearing Docket Clerk, AGC-430. A copy ofthe notice ofappeal and briefor memorandum also must be sent to agency counsel. Service upon the presidingjudge is optional.

### 9

SERVICE LIST ORIGINAL & ONE COPY 

### Federal Aviation Administration 800 Independence Avenue, S.W. Washington, DC 20591 Attention: Hearing Docket Clerk, AGC-430 Wilbur Wright Building-Suite 2Wl000 1 ONE COPY 

### Todd C. Emerson, Respondent's Representative 

### Director- Government and Legal Affairs SkyWest Airlines 444 South River Road St. George, UT 84790 TEL: 435-634-3530 FAJ(: 435-634-3505 Robert Spitzer, Complainant's Counsel 

### Attorney, Office ofthe Regional Counsel Northwest Mountain Region, ANM-7 Federal Aviation Administration 1601 Lind Avenue, S.W. Renton, WA 98057 TEL: 425-227-1417 FAX: 425-227-1007 The Honorable Richard C. Goodwin, Administrative Law Judge 

### Office ofHearings, M-20 U.S. Department ofTransportation 1200 New Jersey Avenue, S.E. (El 1-310) Washington, DC 20590 TEL: 202-366-2139 Attorney-Advisor 202-366-5121 StaffAssistant/Paralegal FAJ(: 202-366-7536 FDMS No. FAA-2011-0779 (CiviIPenalty Action)

1 Service was by U.S. Mail. For service in person or by expedited courier, use the following address: Federal Aviation Administration, 600 Independence Avenue, S.W., Wilbur Wright Building-Suite 2WIOOO, Washington, DC 20591; Attention: Hearing Docket Clerk, AGC-430.

# Attachment l.b SkyWestPost TrialBrief

Dated January 22, 2013Todd 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#64047 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. FAA Case Nos.: 2011NM060010, 2011NM060011, 2011NM060033 (Consolidated) DMS Nos. FAA-2011-0465; -0486; and 0680/0779

POST TRIAL BRIEF
Judge: Richard C. Goodwin

Introduction This consolidated matter concerns five flights over a three-month period from November, 2010 to February, 2011, in whichthe numbers ofbags offloaded from each ofthe respectiveflights did not conform to the numbers ofbagreflected on the flight crewcopies ofthe Cargo Load Report (CLR). Safety offlight was neither affectednor compromised, as any weight discrepancies were nominal and had no effectwhatsoever onthe weight and balance, or performance and handling, ofthe aircraft. Specifically, the FAA has alleged: OnNovember 17, 2010, SkyWest operated Flight 6573 on a flight from Denver, Colorado (DEN) to Hayden, Colorado (HDN), carrying among otherthings, 3 heavy bags, but only counted and/or recorded 1in its Cargo Load Report ("CLR") (FAA Case No. 2011NM060010/DMS No. FAA-2011-0486); OnNovember 22,2010, SkyWest operated Flight 4659 from Billings, Montana (BIL) to Salt Lake City, Utah (SLC) and carried 38 standard bags and 2 heavy bags, but counted and/or recorded 40 standard bags inits CLR (FAA Case No. 2011NM060011/DMS No. FAA-2011- 0485); On December 14,2010, SkyWest operated Flight 6692 from Los Angeles, California (LAX) to San Diego, California (SAN) and carried, among other things, 19 standard bags and I heavy bag, but the CLR listed 20 standard bags and 5 heavy bags (2011NM060011/DMS No. FAA-2011-0485); On December 15, 2010, SkyWest operated Flight4800 from LAXto SAN, loading 43 standard bags, 4 heavy bags and 12 planeside valetbags, but the CLRlisted 59 standard bags (20 11NM060011/DMS No. FAA-2011-0485); and OnFebruary 11,2011, SkyWest operated Flight4451 from SLCto Casper, Wyoming (CPR), and the CLRneglected to list 1 heavy bag (2011NM060033/DMS No. FAA-2011- 0680/0779). Forthese allegedviolations, the FAA contends that SkyWest violated its Operations Specifications (OpSpecs), in violation ofFAR's 119.5(g) 1and (1)2; operated flights without load

1 119.5(g) -No person may operate as a direct air carrier or as a commercial operator without, or in violation of, an appropriate certificate and appropriate operations specifications. No person
FAA Case Nos.: 2011NM060010, 2011NM060011, 2011NM060033 (Consolidated) DMS Nos. FAA-2011-0465; -0486; and 0680/0779 POST TRIAL BRIEF Page2manifests accurately reflecting the weights ofcargo and baggage, in violation ofFAR 121.693(a); operated aircraft when the total weights were not computed under approved procedures, inviolation ofFAR 121.693(c) and operated aircraft which had not been loaded in accordance with an approved schedule, in violation ofFAR 121.693(di and seeks the assessment and imposition of$165,000 in civil penalties (or $33,000 per flight). SkyWest contends thatthe alleged violations have not been proven4 and that even ifsuch is the case, the proposed sanction is excessive, unwarranted and unreasonable. To keep these allegations intheir proper perspective, during this very same period of time, SkyWest operated some 120,000 flights and carried some 5-6 million items ofbaggage, all without incident. As do many US-certificated air carriers, SkyWest utilizes an average weights program to govern the loading and computation ofweight and balance ofits aircraft.' SkyWest's Weight
may operate as a direct air carrier or as a commercial operator in violation ofany deviation or exemption authority, ifissued to that person or that person's representative.
2 119.5(1)- No person may operate an aircraft under this part, part 121 ofthis chapter, orpart 135 ofthis chapter in violation ofan air carrier operating certificate, operating certificate, or appropriate operations specifications issued under this part. 3 121.693

- The load manifest must containthe following information concerning the loading of the 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; and (d) Evidence that the aircraft is loaded according to an approved schedule that insures that the center ofgravity is within approved limits.
4 An Order Granting in Part Complainant's Motion for Decision was issued inFDMS No. FAA2011-0486, as to the issue ofliability in that matter involving SkyWest FlightNo. 6573 on November 17, 2010. That flight was allegedly operated with 3 heavy bags onboard, while only 2 had been recorded on the CLR, the issue ofsanction has not been resolved.
5 Under Paragraph A098 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 planeside-loaded items and standard bags are 30 pounds

FAA Case Nos.: 2011NM060010, 2011NM060011, 2011NM060033 (Consolidated) OMS Nos. FAA-2011-0465; -0486; and 0680/0779 POST TRIAL BRIEF Page 3and Balance (W&B) Manual instructs aircraft loading personnel to write the total number of standard checked bags, heavy bags andplaneside valet bags loaded onto aircraft onthe CLR. SkyWest's W&B Program, upon which the W&B Manual has been based, is incorporated into SkyWest's FAA-issued Operations Specifications (OpSpecs). Complainanthas asserted that ifthe numbers ofbags listed in the flight crews' CLR copies do notmatch the number ofbags unloaded from the aircraft, there is apresumption that SkyWest loaded baggage into the aircraft in violation ofits W&B Program and Manual. Complainant asserts thatthis presumption extends to the preparation and accuracy ofthe load manifests. In other words, ifthe CLR's do not accurately reflect the numbers ofbags loaded into the aircraft, the load manifests are inaccurate and in violation ofthe OpSpecs and applicable FAR's. Sky West disagrees with this presumption, and denies that it violated its OpSpecs or the applicable FAR's. It is the load manifest itselfthat is controlling. SkyWest's OpsSpecs specifically permit lastminute changes to cargo with the concurrence ofthe flight crew. 6 There is no specific requirement thatthe crew copy ofthe CLRbe amended. Itis quite conceivable that crews could have permitted last minute changes and have incorporated those changes in the preparation ofthe

per item and for heavy checked bags, 60 pounds per item. Pursuant to said OpSpecs, SkyWest has published its FAA-Approved Weight & Balance Operations Manual, SP4100 (hereinafter "W&B Manual'). Although assigned a 60-pound average weight, heavy checked bags are defined as luggage heavier weighing over 50 pounds, butless than 100 pounds.
6 Pursuantto SkyWest's Operations Specifications, CLR's are created in duplicate, one copy goes to the flight crew and the originating stationretains one copy. In cases where last minute changes are necessary, the flight crew and loading agents verbally discuss any changes to weight and balance. The Pilot in Command (PIC) will either authorize or refuse the change andthen make the necessary change to the load manifest withoutneeding to change the CLR. The CLR copy maintained by the Station Operationwill be modified. Themodified copy is retained until the end ofthe day. Complainant's Exhibit C-103- Chapter 4, page 16, Standard Procedures 4100, Section 11, Aircraft Loading, (B) Last minute changes. See also, Hearing Transcript 147- 149:1-4.

FAA CaseNos.: 2011NM060010, 2011NM060011, 20llNM060033 (Consolidated) DMS Nos. FAA-2011-0465; -0486; and 0680/0779 POST TRIAL BRIEF Page4load manifests without having amended their copies ofthe CLR's. Absent some evidence that the flight crews used inaccurate information contained in their copies ofthe CLR's to prepare the load manifests, Complainant's case must fail.
CaseNo. 2011NM060011, DMS No. FAA-2011-0485 This case involves three separate flights: Flight 4659 on November 22, 2010, from Billings, Montana to SaltLake City, Utah; Flight 6692 onDecember 14, 2010 from Los Angeles, California to San Diego, California; and Flight 4800 onDecember 15, 2010 from Los Angeles, California to San Diego, California. Flight 4659 contained a CLRthat accounted for two heavy bags as standard bags7

, which inthe worst instance would have created a 60-pound disparity in aircraft weight underthe W&B Program. 8 This would have had no effect on the weight and balance or the performance ofthe CRJ-200 aircraft utilized for that flight. 9 During the course ofits investigation, the FAA did not speak with the flight crew orthe agent(s) who loaded the aircraft nor did it obtain the departing station's copy ofthe CLRor otherwise submit any evidence that the flight crewimproperly calculated the load manifest. 10 The load manifest was not even introduced into evidence.

7 Under SkyWest's W&B Program, standard bags and planeside valetbags are assigned a 30 pound weight and heavy bags (those weighing over 50 pounds and less than 100 pounds are assigned a 60 pound weight.
8 This assumes that the weights reflected in the CLR's were incorporated into the Load Manifests for each ofthese flights. However, Complainant has failed to introduce the Load Manifests and has failed to adduce any evidence that the Load Manifests incorporated the alleged CLR errors or that the Load Manifests were in any way inaccurate.
9 Hearing Transcript 79:12-16;98:2-11;100:15-22;101:10
10 Hearing Transcript 80:11-19- The FAA did not produce any witnesses so Sky West could not determine ifAgents asked the flight crew whetherthere was a last minute passenger change and ifthe PIC gave permission to replace to replace two heavy bags with two standard bags.

FAA Case Nos.: 2011NM060010, 2011NM06001 I, 2011NM060033 (Consolidated) DMS Nos. FAA-2011-0465; -0486; and 0680/0779 

### POST TRIAL BRIEF Page 5Flight 6692 involved a CLRthat listed one standard bag and four heavy bags that were not onthe aircraft. In the worst instance, the aircraft was 270 pounds lighter thanrepresented on the CLR, which iftrue, mighthave marginally improved aircraft performance. 11 The FAA did not speak with the flight crewor obtain the departing station's copy ofthe CLR or otherwise submit any evidence that the flight crewimproperly calculated the load manifest. 12 The load manifest was not introduced into evidence. Flight 4800 involved a CLRlisting 59 standard bags, when 4 should have been listed as heavy bags and 12 should have been listed as planeside/valet. Planeside valet bags are given the
same weight as standard bags, so there was no net change in aircraft weight. Surprisingly, if these very same bags had been kept in the cabin, they would have been assigned an average weight ofonly 16 pounds. 13 reducing aircraft weight by 168 lbs., more than eliminating the 120- pound difference that the FAA alleges was not counted. 14 Again, the FAA did not speak with the flight crew or the personnel who loaded the aircraft, nor did it obtain the departing station's copy ofthe CLR or otherwise submit any evidence that the flight crew improperly calculated the load manifest. 15 The load manifest was not introduced into evidence.
Case No. 2011NM060010, DMS No. FAA-2011-0486 This case involves Flight 6573 onNovember 17,2010 from Denver, Colorado to Yampa Valley, Hayden Colorado. A heavy bag that was offloaded was not listed onthe CLR. The FAA did not produce any evidence as to whetherthis was a recording error orthe product ofa last "Hearing Transcript 102:13-22;103:1;111 :13-22
12 Hearing Transcript 50:8-10;52:8-10;53: 1-22
13 Hearing Transcript 91-93
14 Complainant alleges the load manifest accounted for four heavy bags as standard.
15 Hearing Transcript 55:12-22;56:1-3

FAA CaseNos.: 2011NM060010, 2011NM060011, 2011NM060033 (Consolidated) OMS Nos. FAA-2011-0465; -0486; and 0680/0779 POST TRIAL BRIEF Page 6minute addition thatthe flight crew had allowed. Had it been a last minute change, no change would have beenrequired to have been made onthe crewcopy ofthe CLR. It is unknown whether the alleged heavy bag was counted as a standard bag. Hence the weight discrepancy could have been as low as 30 pounds butnotmore than 60 pounds. Once again, the load manifest was not introduced into evidence.

Case No. 2011NM060033, DMS No. FAA-2011-0680/0779 This case involves Flight 4451 on February 15, 2011, from Salt Lake City, Utah to Casper, Wyoming. The FAA alleges thatthere was one heavy bag onthe flight but none was listed onthe CLR. The FAA did not speak with the flight crew orpersonnel who loaded the aircraft nor did it obtain the departing station's copy ofthe CLRor otherwise submit any evidence as to whether the flight crew allowed the heavy bag to be loaded at the last minute (which would notrequire a modification ofthe CLR). The load manifest was not introduced into evidence. It is unknown whether the alleged heavy bag was counted as a standard bag. Hence the weight discrepancy could have been as low as 30 pounds but not more than 60 pounds. Once again, the load manifest was not introduced into evidence. In none ofthese cases did Complainant offer any evidence thatthe flight crews improperly calculated the load manifests using incorrect CLR's or that the load manifests were otherthan completely correct. 16 As such, Complainant's case fails.

16 Hearing Transcript 36:11-18

FAA Case Nos.: 2011NM060010, 2011NM060011, 2011NM060033 (Consolidated) DMS Nos. FAA-2011-0465; -0486; and 0680/0779 POST TRIAL BRIEF Page7Argument Preface Complainant seeks a total sanction of$165,000 inthe consolidated cases, or $33,000 per flight for something that Complainant concedes does not affect safety offlight and for which Complainant's allegations may be baseless. 17 During the three-month period which this consolidated matter covers, SkyWest operated
some 120,000 flights and carried some 5-6 million items ofbaggage, all without incident. As SkyWest's pilot and expert18 Carl Salamone testified, computation oftakeoffweight under an average weights program, may not exactly correspond to the actual weight ofthe aircraft; 19 aircraft weight and center ofgravity and aircraftperformance for each ofthe five flights fell within manufacturer's recommendations and requirements,20 and evenhadthere been weight discrepancies between the actual bags loaded versus what was listed in the CLR's (and further assuming, solely for the sake ofargument, that the baggage weights accounted for in the CLR's had been incorporated into tbe load manifests (for which the Complainant offered no proof), there would have been no effect on aircraft performance or safety offlight andthe aircraft would have remained within its operating limitations21 Moreover, Under FAAAdvisory Circular 120-27E,Average Weight Programs, which acknowledges that using actual aircraft

17 FAA Inspector McKennatestified that the load manifest could have been correct. (Transcript 35:10-11 and 37:18-22). Also, see Complainant's Post-Trial Briefat p. 12: "Complainant concedes thatthere were no actual safety consequences to Respondent's operation

... Complainant does not allege that some actual harm occurred

... or thatthe operating limitations ofthe aircraft were actually exceeded

...."
18 Hearing Transcript 107:18-108:8
19 Hearing Transcript 93:9-94:2
20 Hearing Transcript 94:3-95:20
21 Hearing Transcript 104:14107:2

FAA Case Nos.: 2011NM060010, 2011NM060011, 2011NM060033 (Consolidated) OMS Nos. FAA-2011-0465; -0486; and 0680/0779 

### POST TRIAL BRIEF Page 8weights are impractical, a 2% tolerance is deemed acceptable. Withthe exception ofFlight 4800 (FDMS No. FAA-2011-0485) all flights were withinthe 2% tolerance. Even with any alleged CLRerrors, and assuming solely for the sake ofargument that any CLRerrors had been incorporated into the aircraft weight calculation inthe load manifest, the aircraft would have nonetheless metthe AC guidance or accepted industry standards.22 Inthe course ofits investigations ofthese matters, the FAA failed to:

- speak with the subject flight crews andthe personnel who loaded the aircraftto determine ifthere were any last minute changes where the flight crew had authorized addition(s)
or removal(s) ofbaggage23 such that a modification ofthe flight crew copies ofthe CLR'swere not necessary 24 ; -inquire whether the originating station had on file the only CLR's required to be amended. While Complainant argues in its Post-Trial Briefthat the "record is devoid ofany evidence that any ofthese [authorized last minute changes] took place on any ofthe flights at issue,"25 the originating stations discard amended CLR's at the end ofthe day,26 which the FAA inspectors could have obtained; and most importantly, -demonstrate any correlation between the baggage count contained inthe flight crew copies ofthe CLR's and the aircraft weights listed in each ofthe load manifests.

22 More specifically discussed, infra. 23 Hearing Transcript 50:8-10;52:8-10;53:1-22 (Flight 6692); 55:12-22;56:1-3 (Flight 4800); 80:11-19 (Flight 4659); 36:11-18 (Flight 4451). The Complainant did not provide any evidence or testimony that the FAA investigated with the flight crews ofFlight 6573 whether there was a last moment baggage change.
24 Complainant's Exhibit C-103- Chapter 4, page 16, Standard Procedures 4100, Section 11, Aircraft Loading, (B) Last minute changes.
25 Complainant Post-Trial Brief, page 8, paragraph 1
26 Hearing Transcript 144:3-22;145:1-10

FAA Case Nos.: 2011NM060010, 2011NM060011, 2011NM060033 (Consolidated) DMS Nos. FAA-2011-0465; -0486; and 0680/0779 

### POST TRIAL BRIEF Page 9Specific Issues before the Court I. Double Docketing ofDMS Nos. 0680 and 0779: On October4, 2012, ChiefAdministrative Law Judge Ronnie Yoder, noting the double-docketing ofFAA Case No. 2011NM060033 under two DMS numbers (0680 & 0779), assigned DMS 0680 to Judge Richard Goodwin and issued an Order apparently "closing" DMS 0779. As Judge Yoder did not assign 0779 to any other Judge, it canbe presumed he assigned it to himself. Had Judge Yoder intended to keep DMS 0779 open, he could have recalled DMS 0680 from Judge Goodwin, combined 0779 and 0680, and then returned bothcases to Judge Goodwin. Instead, Judge Yoder dismissed DMS 0779. Counsel for Respondent was unable to find any case law onpoint. As this is a procedural concern, not one ofsubstance, Respondent submits to the Court's discretion in resolving any outstanding concerns. 2. Complainant Has Failed to Meet its Burden ofProof: Complainant has alleged that SkyWest violated its Operations Specifications (in violation ofFAR's 119.5(g) and(!); operated flights without load manifests accurately reflecting the weights ofcargo and baggage (in violation ofFAR 121.693(a)); operated aircraft when the total weights were not computed under approved procedures (in violation ofFAR 121.693(c)); and operated aircraft which had notbeen loaded in accordance with an approved schedule (in violation ofFAR 121.693(d)27). To prove SkyWest violated the FAR's cited, Complainant must showthat SkyWest loaded bags in a way not authorized bythe W&B program incorporated into its OpsSpecs, resulting in the flight crew incorrectly calculating the aircraft's W&B, and then operating the

27 All pertinent FAR's are cited and quoted supra.

FAA Case Nos.: 2011NM060010, 2011NM060011, 2011NM060033 (Consolidated) DMS Nos. FAA-2011-0465; -0486; and 0680/0779 POST TRIAL BRIEF Page 10flight with anincorrect load manifest. To this end, Complainant has submitted several CLR's that do notreflect the number ofoffloaded bags. Complainant suggests thatbecause the flight crew copies ofthe CLR's did not properly reflectthe baggage in the aircraft cargo area, then it must be presumed thatthe load manifests
were incorrect. Thispresumption is shaky, at best. Itis the load manifest that is controlling as there is no specific requirement that the crew copy ofthe CLR be amended to reflect last minute changes. Absent some evidence that the flight crews used inaccurate information contained intheir copies ofthe CLR's to prepare the load manifests, Complainant's case must fail. Complainant would have the Court believe that the use ofCLR data is the sole means of generating a load manifest. However, Complainant's Exhibit C-102, Sky West's Customer Service Procedures, provides that the CLR is not the only information usedto calculate the load manifest. Complainant did not introduce a single load manifest, testimony on how the flight crew calculated weight and balance, or more importantly, the Station Operations copies ofthe CLR's. Ifthe flight crew allowed for a last minute change, the departing stations' copies ofthe CLR's would have been the only correct CLR's amended per Exhibit C-102. 3. Complainant Failed to Prove that SkyWest Operated Aircraft in Violation ofits Operations Specifications

SkyWest's W&B program is incorporated into its operations specifications. The W&B program requires that SkyWest personnel mark the number ofstandard, heavy and planeside loaded bags inthe appropriate block ofthe CLRand then provide it to the flight crew who, unless there are lastminute changes, use the CLR to calculate the aircraft's W&B and create the load manifest. The program allows for last minute changes-i.e. loading and unloading ofcargo, after the CLRhas been completed, provided the PIC has communicated withthe designated loading agent about the newly requested weight discrepancy and has given authorization for the change. Accordingly, there may be instances in whichthe flight crew copies ofthe CLR's may notreflectthe numbers ofbags, butthe originating stations' will.

FAA Case Nos.: 2011NM060010, 2011NM060011, 2011NM060033 (Consolidated) DMS Nos. FAA-2011-0465; -0486; and 0680/0779 POST TRIAL BRIEF Page 11Complainant's allegations that SkyWest operated in violation ofits OpSpecs is based solely onthe flight crew copies ofthe CLR's. However, this does not meanthat the load manifests were incorrect or that the flights were inviolation ofthe OpSpecs. Again, the best evidence would have been the load manifests and some evidence as to howthe load manifests
were prepared and what information was utilized to compute aircraftweight and balance. Chapter 4, page 16 of SkyWest's Standard Procedures 4100, Section 11, Aircraft Loading, Subsection (B), states that the designated aircraft loading agentmay load orunload baggage after the CLRhas been completed and supplied to the flight creW'8 provided the change in weight is communicated to the PIC who in turn has given his or her approval for the change. This section does not require that the flight crew's copy ofthe CLR be amended, so a last minute change could produce some prima facie discrepancy between the flight crew's copy ofthe CLR and the number ofbags offloaded from the aircraft. 29 While the Ops Specs clearly provide for operating flights with a bag countthat is not represented on the flight crew's CLR, none ofthe FAA inspectors spoke with the SkyWest loading personnel, departing station personnel or the flight crews responsible for computing weight and balance to prepare the load manifests, nor did they review the operation station's copy ofthe CLR copy. The FAA did not ask flight crews how they calculated weight and balance, and specifically, whether they had authorized any last minute changes and calculated weight and balance using a verbally amended CLR, resulting in an accurate load manifest30 As the CLR's submitted by Complainant are not dispositive, the FAAprovided absolutely no evidence to

28 So long as engine one is not operating.
29 Hearing Transcript 147:8-22;148:1-22;149:1-4)
30 Hearing Transcript 37:18-22;36:11-18 (Agent McKenna);50:8-10;52:8-10;53:1-22;55:12- 22;56:1-3;51: 14-19 (Agent Huymh); 78:10-13;80:11-19 (Agent Gehring)

FAA CaseNos.: 2011NM060010, 2011NM060011, 2011NM060033 (Consolidated) DMS Nos. FAA-2011-0465; -0486; and 0680/0779 

### POST TRIAL BRIEF Page 12suggest the load manifests were incorrect. 3 t Infact, Complainant has admitted in its Post-Trial Briefthat the load manifests could have been correct.32 There is no evidence to suggest that the flight crews onthese five flights calculated the load manifests using incorrect weight and balance information, that the aircraft were loaded other than pursuant to authorized procedures set forth in SkyWest's OpsSpecs, that the flight crews did not correctly calculate weight and balance data, or that SkyWest operated aircraft in any manner contrary to its OpsSpecs. Complainant has failed to prove by a preponderance ofthe evidence that there were any violations ofSections ll9.5(g),(l) or Sections 121.693(a), (c), and (d). 4. The Sanction Sought in these Cases is Inappropriate and Unwarranted by the Facts While SkyWest contends that no violations occurred, the sanctions sought by Complainant are unreasonable and should be reduced. Itis important to note that Complainant does not attempt tojustify its proposed penalties by applying evidence to the sanction guidelines. Each flight is simply assigned the same penalty, with no consideration ofthe myriad differences betweenthose flights. Instead, Complainant runs through a rote recitation offamiliar cases and simply expects this court to give it deference inthe penalty ithas selected- without bothering to show the math on how $33,000 per flight was calculated. Itdrops the thirteen factors set forth in Warbelow in a footnote without explaining how any ofthese factors moved the proposed sanction up, or down, by a dollar. No deference need be given to a number so arbitrarily chosen.

Jt Other than testifying that they counted bags and compared their count to the CLR's received from the flight crews, Agents McKenna (Hearing Transcript 37: 18-22),Huymh (Hearing Transcript 54: 14-19;60:19-22;61: 1-11) and Gehring (Hearing Transcript 80: 11-19) did not provide any testimony suggesting that the flight crews used incorrect baggage counts when calculating weight for flight planning purposes. 32 Complainant Post-Trial Brief, page 7, states that corrections to the load manifest mighthave been made to correctly reflect each aircrafts' loading.

FAA Case Nos.: 2011NM060010, 2011NM060011, 2011NM060033 (Consolidated) DMS Nos. FAA-2011-0465; -0486; a.'ld 0680/0779 POST TRIAL BRIEF Page 13Although Complainant is quick to argue that SkyWest has the means to pay its proposed penalty, it does not, and cannot, argue that its demand is remotely proportional to the alleged technical, non-safety, violation. Take a moment to consider that in 2011, Sky West Inc. (Express Jet and SkyWest Airlines) reported a net loss of$27.8 million33 • By itself, SkyWest Airlines operated 602,000 flights with a profit of$58 million- or $96 per flight. Thus, in orderto pay the $165,000 in total penalties for alleged miscounted bags, SkyWest wouldhave to operate I, 719 flights. This penalty, which the FAA readily admits is based onnon-safety and technical violations, is draconian and needs morejustificationthan "we getdeference." No, the FAA has the burden ofshowing that its penalty is fair, reasonably calculated and specifically tied to the underlying facts. It has not done thathere. Instead ithas ignored SkyWest's efforts to mitigate and blown past the maximum allowable penalty by alleging multiple violations, based on the
same set ofunderlying facts.
a. Nature, Circumstance, Gravity and Extent ofthe Alleged Violation SkyWest strives for baggage count and aircraft weight and balance accuracy and its efforts to control risks associated therewith are ongoing and a top priority. However, the aircraft ramp is a very difficult work environment-itis busy, noisy, exposed to the elements and there
are other factors that come into play that can alter and limit human performance.34 Human limitations onthe process ofloading and counting baggage on aircraft can make it impossible to ensure 100% accuracy.35

33 SkyWest respectfully requests thatthe Administrative LawJudge takejudicial notice of SkyWest's Form 10-K, for the year ended December 31, 2011, onfile withthe Securities and Exchange Commission (SEC), and specifically, pages 1-6, 39, 40, 45, 46 and 65 thereof, which are attached hereto as Appendix A to this Post-Trial Brief. Under FederalRules of Evidence ("FRE'') 201, Courts may takejudicial notice ofcontents ofdocuments filed with an administrative agency, FindWhatInvestor Group v. FindWhat.com (11th Cir. 2011), 658 F. 3d 1282, 1297, fu 15.
34 Hearing Transcript 118:2-9
35 Hearing Transcript 124:11-22;125:1

FAA Case Nos.: 2011NM060010, 2011NM060011, 2011NM060033 (Consolidated) DMS Nos. FAA-2011-0465; -0486; and 0680/0779 POST TRIAL BRIEF Page 14True, improper aircraft loading can cause a hazard. But that is simply not the case here. The aircraft weight and balance and performance calculations remained well within FAAapproved manufacturer limits as it had beencalculated for each flight. 36 Safety offlight was never atrisk. Moreover, computation oftakeoffweight under an average weights program does not exactly correspond to the actual weight ofthe aircraft. 37 Complainant has long recognized this and has fully acknowledged that the use ofactual baggage and passenger weights is impractical, which is why the FAA allows for an average weightprograms contemplated in AC120-27E. Under the AC, the FAA has recognized that there is no implicit or automatic danger caused by small discrepancies between the aircraft weight specified 

### inthe load manifest and the actual weight ofthe aircraft. Because using actual weights is impractical, AC120-27E allows for an average weights program wherein a 2% tolerance or 2% error is allowable. 38 Ofthe five flights at issue inthis case, only one was outside ofthe permitted 2%, although notby much. 39 b. Degree ofCulpability SkyWest handles an estimated 23 million bags per year;40 the sheer volume ofmanually handled items makes it impossible to assure absolute accuracy.

SEALED

- Which is presumably why the FAAhas agreed to allow other airlines, DELTA specifically, to have bag counts offby as many as 20 bags on similar aircraft (Sealed Transcript 6:9-21; 7:5-20; 10:7-22:11:1-8)- UNSEALED
36 Hearing Transcript 94:3-16
37 Hearing Transcript 91-94:1-2
38 Hearing Transcript 108:9-17;109:4-22;110:1
39 Hearing Transcript 110;111;112
40 Hearing Transcript 123:19-22;124:1-4

FAA CaseNos.: 2011NM060010, 2011NM060011, 2011NM060033 (Consolidated) OMS Nos. FAA-2011-0465; -0486; and 0680/0779 POST TRIAL BRIEF Page 15Under its Human Factors Policy41 Complainanthas acknowledged that it should consider
error tolerance systems thattake into consideration human limitations, andhas done so for other airlines.42 Unfortunately, the FAAhas refused efforts by SkyWest to amend its approved W&B Programto provide for tolerance or variance for small miscounts innature that result in slight differences betweenthe actual baggage counts, the numbers ofbags reported on the CLR or the weights reported onthe aircraft load manifest.43 SkyWesthad previously requested that the FAA allow it to amend its W&B Program44 to provide for this. Although the FAAhas granted such reliefto at least one other air carrier operating aircraft ofsimilar size to SkyWest's CRJ-900's, the FAA, for no specified reason, declined to do so, evidently preferring to impose civil penalties for technical infractions having
no adverse effect on safety. 45
c. Attitude; Corrective Actions Although Complainant suggests that SkyWest's corrective actions were ineffectual (Complainant's Briefat pp. 12-13), SkyWest has always been an industry leader in compliance

41 FAA Order 9550.8, publically available at http://www.hf.faa.gov/docs!hforder.htm 42 Hearing Transcript 115:4-13, referencing Exhibits 4-6
43 Hearing Transcript 112:19-22;113:1-17 44 Exhibit R-4, Original W&B Program Amendment Proposal, dated March 2, 2011; in person meeting on March 3, 2011; Exhibit R-5, Follow-up letterdated March 5, 2011. Hearing Transcript 123:3-13. SkyWest sent multiple letters, met with the FAA in-person and provided excerpts ofOperations Manuals from other airlines that FAA had already approved forjust such an amendment. SkyWest's request sought a 60lb tolerance for the CRJ-200 and 90lbs for the CRJ-700/900. Hearing Transcript 115: 19-22; 116:18. The tolerance request was within the 2% margin specified inthe advisory circular for the CRJ-200 and very close for the CRJ-700/900. The reason it made sense for the 700/900 is because ofthe approved program already inplace for three bags. Hearing Transcript 118:10-20.
45 SEALED- The FAA granted Delta Airlines a 20-bag tolerance, yet denied SkyWest a 2-bag tolerance. Sealed Transcript 7-8.

- UNSEALED

FAA Case Nos.: 2011NM060010, 2011NM060011, 20!1NM060033 (Consolidated) DMS Nos. FAA-2011-0465; -0486; and 0680/0779 

### POST TRIAL BRIEF Page 16and training. Where SkyWest sees bestpractices used by other airlines, itincorporates those practices where applicable46 (and when allowed bythe FAA). Atthe hearing SkyWest presented extensive evidence ofcorrective actions taken to prevent and/or minimize human error in counting baggage, including, among other things, four years ofweight and balance workshops and conferences, self-audits to ensure compliance, the addition ofimproved online CLRtraining courses; the introduction offocus groups with frontline agents to better understand where the potential for discrepancy and error exists; enhancing basic employee training; follow-up conference calls with contract stations to ensure compliance with newprocedures; and issuance and dissemination oftraining bulletins and ground operations bulletins.47 FAA's Salt Lake City, Utah, Certificate Management Office attended and participated in SkyWest's 2009,2010 and 2011 Customer Service Training conferences focusing on weight and balance issues. There was never any indication from them that SkyWest's training orprocedures
were anything other than adequate.48 SkyWest had monthly teleconferences with the FAA Certificate Management Office and a Principal Operations Inspector to ensure SkyWest's compliance efforts were satisfactory, and again, the FAAnever offered even a hint that SkyWest's actions were in anyway inadequate.49 On page 13 ofits Post-Trial Brief, Complainant cited 21 different measures taken by SkyWest, claiming 14 did not work and 7 arejust a "rehash [of) previous efforts known to be ineffectual". 50 This statement calls into question the nature ofthe FAA's enforcement policy as

46 Hearing Transcript 172:15-22;173: 1-15
47 SEALED Hearing Transcript 14-30
48 SEALED TRANSCRIPT 21:19-22;22:1-2
49 SEALED TRANSCRIPT 26-27
5

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

FAA CaseNos.: 2011NM060010, 2011NM060011, 2011NM060033 (Consolidated) DMS Nos. FAA-2011-0465; -0486; and 0680/0779 POST TRIAL BRIEF Page 17SkyWest took extensive efforts to collaborate withthe FAA to ensure that its W&B Program and baggage loading and accounting procedures were adequate, since the FAAis now suggesting that it was not enough.5 1 Complainant's churlish comments about SkyWest's "ineffectual" attempts 

### at compliance showthe FAA's unrealistic expectations. On multiple occasions SkyWest met and worked with the FAA in formulating many ofthese corrective actions. d. Compounding ofMultiple Violations Simply adding up individual penalties for each violation canresult in compounding a sanction in a disproportionately harsh manner for the conduct involved.52 Wben a single instance ofnoncompliance resulting in multiple violations ofgeneral and specific regulations involving the same or similar conduct, the FAA should not compound the sanction to reflect the amount of sanctionrecommended in the table for each regulatory violation.53 Complainant alleges that Sections 119.5(g) and 119.5(1) are separate violations as each requires proofofa fact the other does not; the critical distinction being that (g) regulators operations as an air carrier and (!) regulates the operation ofan aircraft. Complainant's argument is vacuous. No effort has been made to set forth the different elements of 1!9.5(g) versus 119.5(1) or make any meaningful distinction between the violations. Complainanthas alleged that SkyWest violated section (I) for operating an aircraft in violation of its Ops Specs and section (g) for operating as an air carrier in violation ofits Ops Specs. Complainant has doubled its penalty on a truism: SkyWest cannot operate as an air carrier without operating an aircraft.

51 Transcript Hearing 155:2-22;156:1-7
52 FAA Compliance and EnforcementProgram. 2150.3B(6)(b). General Sanction Guidance
53 FAA Compliance and Enforcement Program. 2150.3B(6)(c). Single Act ofNoncompliance Resulting in Multiple Violations

FAA Case Nos.: 2011NM060010, 2011NM060011, 2011NM060033 (Consolidated) DMS Nos. FAA-2011-0465; -0486; and 0680/0779 POST TRIAL BRIEF Page 18e. Violation History Complainant argues that SkyWest's violation history for incidents relating to miscounted baggage suggests that SkyWest's corrective actions are ineffective and sanctions imposedto date have not had a deterrent effect. This argument is without merit. As elicited above and as set forth in the FAA Human Factors Policy, transporting millions ofbagsevery year will inevitably and unescapably result in a miss-counted bag (and unfortunately a lost bagjustwhenyou need it). The FAAhas attended and participated in SkyWest's annual Customer Service Training conferences and has had monthly teleconferences with SkyWest in effortto minimize any such occurrences. Itis patently unfair for the FAAto tell SkyWest that its training is adequate when conducted, and inadequate when the trained employees make a simple mistake. While the degree ofhazard is de minimis, and the act ofmiscounting cannot be avoided, SkyWest continues to show its attitude ofcompliance by taking steps to control an uncontrollable risk. Ironically, the violation history shows, in the past, Complainanttook a reasonable approach to a miscounted bag, settling for penalties thatwere 67% less than those proposed here. Now Complainant comes with treble penalties and no otherjustification

### than "this has happened before." But Complainant has shownno commonality in the alleged violations. SkyWest has
more than 10,000 employees and is regularly handled by Delta Airlines and United Airlines. Complainant has not alleged that a single employee involved here was also involved in any prior violation. It points to no commonmember ofmanagement. It gives no credit inits penalty calculation for the massive amounts ofenergy and resources that SkyWest has dedicated to achieving a perfect bag count. No matter what measures Sky Westtakes, human error will always exist. But in order to drastically elevate a penalty onviolation history alone, Complainant should at least showthe same humans were involved.

FAA Case Nos.: 2011NM060010, 2011NM060011, 2011NM060033 (Consolidated) DMS Nos. FAA-2011-0465; -0486; and 0680/0779 POST TRIAL BRIEF Page 19f. Due deference Complainantrequests substantial deference in the civil penalty it seeks, however, such deference should no longer be assumed as automatically owed. When Congress passed and the President signed into lawthe Pilot's Bill ofRights (PBR), Public Law 112-153, removed was special statutory deference to the FAA. While specifically, PBRrelates to National Transportation Safety Board reviews ofF AA actions and the instant case is before the Department ofTransportation, generally, the legislative and executive branches have made it clear that there are some limitations to due deference. With the disproportionate and draconian penalties demanded here, SkyWest's only recourse is to petition this court for relief-- and as such, this court should decline Complainant's invitationto cede its power to determine a reasonable penalty.
Conclusion In each ofthese cases, there is no evidence oflack oftraining orproficiency on the part ofSkyWest or its employees. SkyWest has promulgated extensive procedures for the loading and accounting ofbaggage inits aircraft. SkyWest has been an industry leader in training its employees-training ofwhich SkyWest is veryproud and which the FAA attended and participated in. There is also no doubt that the flights were conducted with the utmost levels ofsafety and that there was no compromise in same. Assuming that the baggage counts contained in the crew copies ofthe CLR's were used to compute load and balance and the load manifest (for which the FAAhas produced not one iota ofevidence In all the subject flights there are two possible explanations, either: 1. A violation ofthe FAR's occurredwhen SkyWest loading agents miscounted bags while loading a SkyWest flight and incorrectly filled outthe CLRwhich the flight crew used to calculate the aircraft's W&B, as alleged by Complainant; or

FAA Case Nos.: 2011NM060010, 2011NM060011, 20!1NM060033 (Consolidated) DMS Nos. FAA-2011-0465; -0486; and 0680/0779 POST TRIAL BRIEF Page 202. There was no violation ofFARs because the SkyWest Pilot in Command (PIC) simply authorized a last minute change ofthe cargo loaded onthe aircraft after the CLRhad already been provided to the flight crew. The later situation is not a violation ofthe FAR's as SkyWest's OpsSpecs clearly provide that a modification ofthe flight crew's CLR is not necessary ifthe PIC gives authorization to load or unload bags after verbally communicating any weight and balance changes with designated loading agent.54 Ifnotthe latter situation and the CLR's in fact contained errors, these cases all involve the simple inescapable and undeniable5 5 factor ofhuman error. In conclusion, Complainanthas failed to meet its burden ofproofto show that SkyWest operated in violation ofits OpsSpecs. SkyWest did not violate the cited FAR's and the complaint should be dismissed with prejudice. In the alternative, ifthe Court determines that the presence ofan incorrect CLRin the flight crew's possession creates apresumption ofincorrect load manifests in violation of OpsSpecs, Sky West submits thatthe $33,000 per violation civil penalty is umeasonable and excessive. To the extentthatthese incidents were the productofsimple human error, no civil penalty, small or large, is going to preventrecurrence. Should the Court determine that a sanction is required, Respondent request that it be reduced for those reasons set forth above.

54 Complainant's Exhibit C-103- Chapter4, page 16, Standard Procedures 4100, Section 11, Aircraft Loading, (B) Last minute changes. (Engine one cannot be operating).
55 FAA Order 9550.8, Human Factors Policy

FAA Case Nos.: 2011NM060010, 2011NM060011, 2011NM060033 (Consolidated) DMS Nos. FAA-2011-0465; -0486; and 0680/0779 POST TRIAL BRIEF Page 21DATED this 22nd day ofJanuary, 2013.

Michael L. Dworkin Co-Counsel for SkyWestAirlines

FAACase Nos.: 2011NM060010, 2011NM060011, 2011NM060033 (Consolidated) DMS Nos. FAA-2011-0465; -0486; and 0680/0779 

### POST TRIAL BRIEF Page 22CERTIFICATE OF SERVICE The undersigned hereby certifies that onthis 23'd day ofJanuary, 2013, a true and
correct copy ofthe foregoing: POST-TRIAL BRIEF

was served as follows:
The Honorable Richard C. Goodwin Office ofHearings, M-20 1200 NewJersey Avenue, S.E. East Building Ground Floor, Room E12-320 Washington, D.C. 20590 {FEDEX} Federal Aviation Administration 800 Independence Avenue SW Washington, DC 20591 Attn: Hearing Docket Clerk, AGC-430 Wilbur Wright Building- Suite 2W1000 {FEDEX} Jeffrey M. Harper, Esq. Robert Spitzer, Esq. Federal Aviation Administration Northwest Mountain Region, ANM-7 1601 Lind Avenue S.W. Renton, Washington 98057 Fax: (425) 227-1007 {FEDEX}

CAITLIN M. MILLER Legal Assistant

FAA Case Nos.: 2011NM060010, 2011NM060011, 2011NM060033 (Consolidated) DMS Nos. FAA-2011-0465; -0486; and 0680/0779 POST TRIAL BRIEF Page 23

# Attachment 2
FAA Order 2150.3B, Appendix B, Part Two
Sanction Guidance Tables

### (10) ENGINEERING AND MANUFACTURING VIOLATIONS. Large Business Concern: Maximum $18,750-$25,000 Moderate $10,000-$18,749 Minimum $2,000-$9,999 Small Business Concern or Individual (for violations covered under 49 U.S.C. 

### § 46301(a)(5)(A): Maximum $8,250-$11,000 Moderate $4,400-$8,249 Minimum $1,100-$4,399 Small Business Concern or Individual (for violations covered under 49 U.S.C. § 

### 4630l(a)(l)(A) or (B) but not under 49 U.S.C. § 

### 46301(a)(5)(A): Maximum $850-$1,100 Moderate $650-$849 Minimum $500 $649 d. Pending compliance or corrective action; injunctive relief. For many kinds of violations, there may be circumstances where the FAA should not allow the offending entity to continue to operate or to continue in business. Examples include a certificate holder that does not allow an FAA inspector to inspect the holder's operation or facilities, or an unapproved manufacturer that produces aircraft parts in violation of 14 C.F.R. 

### § 21.303. In that circumstance, suspension ofan entity's certificate or other approval, pending compliance or corrective action, or injunctive reliefagainst an entity that does not hold an FAA approval, would be appropriate. In egregious circumstances revocation ofthe entity's certificate or other approval may be warranted. Such action or reliefmay be considered in addition to the assessment ofa civil penalty as recommended inthe following tables. Furthermore, amendment or modification ofa certificate or approval may be appropriate in the circumstance where a definitive part ofthe offending entity's operation can be safely excluded from the operational approval. An example is an approved aircraft parts manufacturer that makes multiple kinds ofparts, but has quality control problems for only one kind ofpart. Such action may be considered in addition to the assessment ofa civil penalty as recommended in the following tables

.**.-------~** 

### Part Two- Sanction Guidance Tables
Index Printed from Summit Aviation's DigitalAviation Reference Library, 9/18/2012 Page 8I. 

### U.S. Air Carriers, U.S. Commercial Operators, Part 125 Operators, and Part 129 Operators. Fig. B-1-a. Maintenance Manual Fig. B-1-b. A/W Directive Fig. B-1-c. Operations Specifications Fig. B-1-d. Facilities and Equipment Fig. B-1-e. Maintenance and Inspection Organization Fig. B-1-f. Training Program Fig. B-1-g. Maintenance or Aircraft Paperwork Fig. B-1-h. Performance ofMaintenance Fig. B-1-i. SFAR36 Fig. B-1-j. Records and Reports Fig. B-1-k. Dispatch and Flight Release Rules Fig. B-1-1. Operation ofunairworthy aircraft Fig. B-1-m. Provisions specific to passenger-carrying Fig. B-1-n. Provisions specific to flight deck crew Fig. B-1-o. Other provisions Fig. B-1-p. Operations at airports requiring slots 2. Personnel ofAir Carriers, Commercial Operators, and Part 125 Operators. Fig. B-2-a. Maintenance, including inspection Fig. B-2-b. Inspection Fig. B-2-c. Records and Reports Fig. B-2-d. Flight operations Fig. B-2-e. Other provisions applicable to individual certificate holders Fig. B-2-f. Other Air Carrier Personnel 3. Individuals and General Aviation- Owners, Pilots, Repair Stations, Pilot Schools, Maintenance Personnel. Fig. B-3-a. Owners and Operators Other Than Required Crewmembers Fig. B-3-b. Repair Stations Fig. B-3-c. ID Plate Violations Fig. B-3-d. Part 141 Pilot Schools Fig. B-3-e. General Aviation Maintenance Personnel Fig. B-3-f. Student Operations Fig. B-3-g. Flight Instructors Fig. B-3-h. Other Violations Fig. B-3-i. Weather Operations Fig. B-3-j. 14 C.F.R. 91.13(a), Careless or reckless operation so as to endanger (independent violation) Fig. B-3-k. Passenger operations Printed from Summit Aviation's DigitalAviation Reference Library, 9/18/2012 Page 9Fig. B-6-c. Operations 7. Violations ofNoise Provisions. Fig. B-7-a. Aircraft Noise (14 C.P.R. part 91, subpartI) 8. Violations ofPilotRecords Improvement Act (PRIA). Fig. B-8-a. PRIA 9. Engineering and Manufacturing Violations. Fig. B-9-a. APIS Holders, including production under type certificate Fig. B-9-b. Production Certificate Holders Fig. B-9-c. Designees Fig. B-9-d. Technical Standard Order Authorization (TSOA), Letter ofDesign Approval, and Letter ofAcceptance Manufacturers Fig. B-9-e. Replacement or Modification Parts Manufacturers Fig. B-9-f. All Production Approval Holders Fig. B-9-g. TC or STC Holder; Manufacturers and Alteration Entities Fig. B-9-h. All persons, including designees 10. Aircraft Owner/Operator Registration Violations. Fig. B-10. Registration 11. All individuals and entities: Failure to Surrender Certificate, Authorization, or Other Approval. Fig. B-11 1. 

### U.S. AIR CARRIERS, U.S. COMMERCIAL OPERATORS, PART 125 OPERATORS, AND PART 129 OPERATORS. Fig. B-1-a. Maintenance Manual Civil Penalty Certificate Action (1) Failure to maintain current manual Minimum Up to 7-day suspension (2) Failure to provide adequate Moderate to Maximum instructions and procedures in manual (3) Failure to distribute manual to Minimum to Moderate appropriate personnel (4) Release ofaircraft without required Moderate to Maximum Up to 7-day suspension equipment 

### Fig. B-1-b. AIW

### Directive Civil Penalty Certificate Action (1) Failure to comply Moderate to Maximum Printed from Summit Aviation's DigitalAviation Reference Library, 9/!8/20 !2 Page 11

### Fig. B-1-c. Operations Specifications Civil Penalty Certificate Action (1) Exceed inspection or overhaul time Moderate Up to 7-day suspension limitation (2) Operation contrary to ops specs- Minimum technical noncompliance (3) Operation contrary to ops specs - Moderate to Maximum likely potential or actual adverse effect on safe operation 

### Fig. B-1-d. Facilities and Equipment Civil Penalty Certificate Action (1) Failure to provide adequately for Maximum Indefinite Suspension unti proper servicing, maintenance, repair, or proper serv1cmg, inspection offacilities and equipment maintenance, repair and inspection offacilities and equipment is provided to Revocation 

### Fig. B-1-e. Maintenance and Inspection Civil Penalty Certificate Action Organization (1) Failure to provide or maintain a Maximum Indefinite Suspension unti maintenance and inspection organization an appropriate maintenanc and inspection organizatio is provided to Revocation 

### Fig. B-1-f. Training Program Civil Penalty Certificate Action (1) Failure to have training program Maximum Indefinite Suspension unti compliance to Revocation (2) Failure to maintain training program Moderate to Maximum (3) Failure to train personnel adequately Moderate to Maximum 

### Fig. B-1-g. Maintenance or Aircraft Civil Penalty Certificate Action Paperwork (1) Incomplete or unsigned release Minimum to Maximum (2) Failure to revise ale data after repair Moderate to Maximum 

## I Fig. B-1-h. Performance of 

# I Civil Penalty 

# ICertificate Action Printed from Summit Aviation's DigitalAviation Reference Library, 9/18/2012 Page 12

### Maintenance ( 1) By unauthorized person (2) Failure to perform or improper maintenance 

### Fig. B-1-i. SFAR 36 (1) Failure to comply- second offense 

### Fig. B-1-j. Records and Reports (1) Deliberate violation (a) Intentionally false or fraudulent entry, reproduction, or alteration in record or report (b) Other (2) Failure to make accurate mechanical interruption summary report (3) Failure to make available report of major alteration or repair (4) Failure to make accurate mechanical reliability report (5) Failure to make required entry in aircraft I o g (6) Failure to make available pilot record (7) Failure to make available load manifest (8) Failure to monitor and record enroute radio communication 

### Fig. B-1-k. Dispatch and Flight Release Rules (1) Any violation ofsubpart U of 14 CFR part 121 

### Fig. B-1-1. Operation ofunairworthy aircraft Maximum Moderate to Maximum



### Civil Penalty Certificate Action Maximum


### Civil Penalty Certificate Action
Revocation
180-day Suspension to Revocation Moderate to Maximum
Moderate to Maximum Indefinite Suspension to Revocation Moderate to Maximum
Minimum to Maximum
Moderate to Maximum Indefinite Suspension to Revocation Moderate to Maximum Indefinite Suspension to Revocation Moderate to Maximum



### Civil Penalty Certificate Action
Moderate to Maximum



### Civil Penalty Certificate Action

Pnnted from Summ1t Avmtwn's DigitalAviationReference Library, 9/18/2012 Page 13(I) 

### Technical non-conformity to TC; no Minimum likely effect on safe operation (2) Non-conformity to TC that may have, Moderate to Maximum or has, adverse effect on safe operation (3) Release ofaircraft without required Moderate to Maximum Up to 7-day suspension equipment 

### Fig. B-1-m. Provisions specific to Civil Penalty Certificate Action passenger-carrying (I) 

### Boarding, or serving alcoholic Maximum beverage to, a person who appears to be intoxicated (2) Failure to briefpassengers Moderate Maximum to (3) Failure to ensure seat and belt for each Maximum passenger (4) Operation w/o operable public address Maximum system (5) Failure to store baggage properly Moderate 

### Fig. B-1-n. Provisions specific to flight Civil Penalty Certificate Action deck crew (I) 

### Use ofcrewmember with expired Minimum to Moderate medical certificate (2) Failure to make flight deck seat Maximum available to authorized emoute inspector (3) Use ofunqualified crewmember Maximum ( 4) Flight and DutyTime violation Moderate 

### Fig. B-1-o. Other provisions Civil Penalty Certificate Action (I) 

### Improperly Returning Aircraft to Maximum service (2) Illegal carriage ofcontrolled substance Revocation with knowledge ofcarrier, that is, knowledge of, or involvement in, conduct by top management personnel (3) Use ofunqualified personnel other Maximum Printed from Summit Aviation's DigitalAviation Reference Library, 9118/2012 Page 14

### [ than flight deck crewmember 

### Fig. B-1-p. Operations at airports Civil Penalty Certificate Action requiring slots (1) 

### Operation without a reservation from Moderate ATC (2) Operation with a reservation, but at the Moderate wrong time (3) Use ofinternational slot for domestic Moderate flight (4) Use ofaircraft not meeting criteria in Moderate 14 C.F.R. 

### § 93.123(c)(2) in commuter slot


### 2. PERSONNEL OF AIR CARRIERS, COMMERCIAL OPERATORS, AND PART 125 OPERATORS. Fig. B-2-a. Maintenance, including Civil Penalty Certificate Action inspection (1) 

### Performing maintenance without Maximum certificate, rating, or authorization (2) Performing maintenance that exceeds 30- to 45-day Suspension limitations (3) Failure to perform maintenance 30- to 120- day Suspensioj properly 

### Fig. B-2-b. Inspection Civil Penalty Certificate Action (I) Failure to make required inspection 30- to 60-day Suspension (2) Making improper inspection 30- to 120-day Suspensior (3) Improper release ofaircraft to service 30 to 60-day Suspension (4) Releasing aircraft for service without 30 to 60-day Suspension required equipment 

### Fig. B-2-c. Records and Reports Civil Penalty Certificate Action (I) Failure to make entry in aircraft log 15- to 60-day Suspension (2) Failure to make entry in worksheet 15- to 30-day Suspension (3) Failure to make entry in other 15- to 30-day Suspension maintenance record Printed from Summit Aviation's DigitalAviation Reference Library, 9/18/2012 Page 15

# Attachment 3
FAA Order 9550.8A
Human Factors Policy
Revised August 10,2005

## Human Factors Policy FAA Order 9550.8A [Rev: August 10, 2005] I. PURPOSE. This orderestablishes policy, procedures, and responsibilities for incorpornting andcoordinating human fuctors considerations in Federal Aviation Administration (FAA) prog:rams andactivities to enhance aviation safety, capability, efficiency, andproductivity. 

### 2. DISTRIDUTION. This order is distributed to the division level in Washington, regions, andcenters with a limited distributionto all field offices and facilities. 3. 

### CANCELLATIONS. This order supercedes FAA Order9550.8 datedOctober 27, 1993, which is canceled. 4. 

### EXPLANATION OF CHANGES. This orderclarifies the meaning ofhuman fuctors considerations, provides the backgroundfor the humanfactors approach, and establishesbasic policyand responsibilities for incorporatinghuman factors in agency functions. 

### 5. 

### DEFINITlONS. a. Human Factors. Within the FAA, humanfactors entails a multidisciplinary effortto generate and compile information about human capabilities and limitations andapplythat information to equipment, systems, fucilities, procedures,jobs, envirorunents, training, staffing, and personnelmanagementfor safe, comfortable, and effective humanperformance. b. Appendix I, HumanFactors Study Areas, provides a listofelements that further identeythe scope ofhuman fuctors coru1iderntions forstudy, analysis, andresolution.

c. Appendix 2, Definitions, provides descriptions ofotherkey terms used in this order. 

### 6. 

### BACKGROUND. a. Thehuman factor bas been widely recognizedas critical to aviation safetyand effectiveness. Inthe July 1988 reportentitled "Safe Skies for Tomorrow," the U.S. Congress Office ofTechnologyAssessment concludedthat long-term improvements in aviation safety will come primarily from human fuctors solutions. Further, such solutions will be establishedthrough consistent, long-term support for human factors research and development, analysis, and the application ofhuman fuctors information. Subsequentto the Office ofTechnology Assessment report, Congress enacted the Aviation SafetyResearch Actof 1988 (PL !00-591) callingfor the FAAto augment its research effort in human factors and ensurecoordinationwith other agencies performing such research. These assessments and directions resulted in the FAA's emphasizing new and coordinated efforts in the areaofhuman fuctors withthe National Aeronautics and Space Administration, Department ofDefense, and a multitude ofprofessional aviation andtechnical groups whose members include pilot andcontrollerunions, airframe and parts manufucinrers, as well 

### as majorairlines_ One productofsuchefforts includes the "National Plan for Civil Aviation Human Factorsn which outlined a coherentnational agenda aimed atachieving progress toward safety and productivity goals, increasedcoordination, funding, and long-term, hlgh level Page 1management supportin government and industry. Subsequentto establishing the National Plan, the applicationofhuman factors research 

### andengineeringhas gained continued attention andemphasis in aviation certification, regulation, operations, and acquisitions. b. Benefits derived from this systematic approach to human factors research and engineeringinclude: l} Increased personnel efficiency, effectiveness, andproductivity; 2} Improved systemperformance and usability; 3) Reduced operations 

### and maintenance costs; 4) Increased availability ofobjectivedata informulating FAA policies, standards, regulations, and business case and investment decisions; and 5) Enhanced aviation safety. 7. SCOPE: This order establishes a policy to foster an integrated human factors program 

### that meets FAA long and short range needs covering both research and engineering applications. The FAA Human Factors Policy Order" supports regulation and operation ofthe National Airspace System by providing an agenda for the conduct and institutionalization of human factors activities relative to achieving regulatory goals and objectives, executing researcli and development programs, facilitating Capital InvestmentPlanacquisitiOIJS, and respondingto operational mission performancerequirements. 8. OBJECTIVES. The human factors-oriented approach is to: a. Con<luct the planning, reviewing, prioritization, coordination, generation, and updating ofvalid and timely human factors infonnation to supportagency needs; b. Develop and institutionalize formal procedures that systematically incorporate human factors considerations into agencyactivities; and

c. Establish and maintain organizational infrastructure thatprovides the necessary human factors expertiseto agencyprograms and activities. 

### 9. HUMAN FACTORS COORDINATING COMMITTEE. This orderprescribes the organization, composition, fimctioos, and responsibilities ofan intra-FAA committee to coordinate the generation, distribution andapplication ofhuman factors information througha representative Human Factors Coon:iinating Committee as stated in Appendix 3, Human Factors Coordinating Committee. The committeewill serve to enhancethe identification ofhuman fuctors requirements, facilitate the integrationofhuman factors into activities withinthe agency, promote the improvement ofexistingpolicies and processes, and monitorthe efficacy ofhumanfactors efforts within FAA. 

### 10. HUMAN FACTORS POLICY. Human factors shall be systematically integrated into the planning and execution ofthe functions ofall FAA organizationalelements and activities associated with National Airspace System acquisitions and operations. FAA organizations shall emphasize human factors and usability considerations to enhance system performance and capitalize upon the relative strengths of people and machines. These considerations shall be integrated atthe earliestphases ofF AA projects and incorporated within the processes fur fulfilling OMB Exhibit 300 requirements. The FAA's Human Factors Policy 

### Order is Page 2achieved through a human-rentered emphasis in operations, research, applications, and infrastructure support resulting in safe and effective human-system interfaces. Program managers shall employ 

### hlln1aii factors research and engineering best practices to acquire systems that require minimal staffing, provide cost-effective training, allow efficient operation and maintenance, and are operationally suitable within the intended environment Human performance shall be integrated into procedure development, system performance evaluation, rulemaking, system acquisitions (including business and administrative systems), architecture engineering, and otheractivities within the agency. Human factors considerations and human-system performance data shall be an integral element of and incorporated into activities and decisions related to mission analyses and mission need statements, performance baselines and measures, safety risk management analyses, investment analyses and reports, requirements documents, 

### progrnm plans, source selection criteria, design reviews, test and evaluation plans and reports, implement:ation plans, and post-deployment assessmentplans and reviews. FAA organiV!tions shall cause to beavailable for their programs the essential information requiredto integrate human fucto;:s considerations appropriatelyand successfully, interalia:


### •

• • • 

### • • 

### • • • How human fuctors research and engineering is organizedand accomplished (e.g., personnel and funding resources; organization, roles, and relationships; human factors plans orroad map; roles, content, and purpose ofhumao fuctors workinggroups) Quantitativehuman performance measures andcriteria Human factors risks and means/methods to mitigate them Lifecycle costs and benefits including staffing and training Analyticalmethods and technical tools to conduct human factors activities Conventions,guidelines, andstanrlards needed to applyhuman 

### fuctors Measures, databases, and related informationon human-in-the-loop operationalperformance Results fromhuman-in-the-loop analyses, modeling, simulations,demonstrations, and Lessons learned about addressing human factors in FAAprograms (e.g., in requirements, investmentanalysis, research, analysis, design, specifications, statements ofwork, source selection criteria, testand evaluation, post-deployment assessment} 

### fuc researchand engineeringprograms andapplications. 11. RESPONSIBILITIESll.l AU FAA Organization§: To ensurethat human factors are systematically included in FAA endeavors, Assistantand Associate Administrators, Executive Directors, and AirTraffic Organization Vice Presidents shall establish and assign responsibilities to accomplish the policy and objectives cited in Paragraphs 8 (Objectives) and 10 (Human Factors Policy) within their organizationalpurview, to include:
a. Execution. Conductactivities to: Apply human fuctors information and methods to FAA system acquisitions, operations, Page 3certification, andregulatory activities in the promotion ofcivil aviatio!L Ensure 

### operational human performance constraints and 

### enhancements are routinely incorporated in mission analysis and capability/requirements determination 

### processes, life cycle cost and benefit analyses, risk assessments, system operational performance 

### specifiCations, system baseline 

### measurements, solicitation package preparation and soun;e evaluation, system critical operational issues and criteria (as wei! as measures of effectiveness and measures ofperformance), operntionaf test and evaluation plans, program reviews, post-contract activities, 

### program implementation, and post-dep!Dyment assessments. Acquire necessary human performance information bymeans ofthe research, engineering, and development 

### processes. Assess the supportabilityandaffordability ofhuman t'eSOt1r= requiremet1ts (e.g., staffmg 

### and training) to meetplam for the future 

### NAS architecture and systems. Implementerrorprevention and mitigation strategies to emphasizehumanerrorreduction. • fntegrate humanfactors into fault tree analyses and other risk 

### managementtechniques for operation and maintenance activities. Assess and report on usability so as to identify and enableresolution ofhuman factors issues throughouta product's lifecycle, to include coordinating withappropriate authorities on issues related to accessibility and accommodation for people with disabilities and specialneeds. b. Human FactorsCoordinator. Designate a Human Factors Coordinator who will perform, direct, orassist in: Serving

### as the organization's representative to the Human Factors Coordinating Committee Defining human factors risks and mitigation plans during mission analysis, investment analysis, and requirements determination. £dentif'ying human-system interfuces and computer-human interfaces for market surveys, trade studies, and prototypes. Preparing and updating human factors portions ofacquisition and engineering managementplans, procurementpackages, test and evaluationplans, performance measures and criteria, and data collection efforts. Developing and analyzingoperational scenarios, human-system modeling, and humanin-the-loop simulationsfor operators and maintainers. • Reviewingand assessing human factors concepts 

### and designs (e.g., in requirements reviews, systemreviews, productreviews, change proposals). • Coordinating human fuctors engineering efforts and user working group activities. Coordinatinghuman factors in training development, integrated logistics support, safety, configuration management, and other systemengineering functions.

c. System Engineering.Establish mechanisms to incorporate human factors risk considerations in systemengineeringplans, products, functions, and activities at the product, service area, andNational Air.space System architecture leveL d. Safety Management System. fnc!ude human factors considerations in safety management systemplans, programs, projects, functions, activities, and risk assessments. The Page 4necessary components to inco<porate human factors into the definition, development, implementation, and monitoring ofsafety management system risks include: • The scope ofhuman factors areas ofinterest • Tools andtechniques used, and their frequency of

### use • Data and databases used, and their quality and availability • Metrics and measures 

### used, and how theyare scored 

### • Slm:ldards and conventions 

### used, and compliancewith them • Principles and guidelines applied, and how widelythey are followed • Policy and processes implemented, and to whatdegree they are executed • Lessons learned andbestpractices followed, andhowconsistentlytheyare employed

e. Program Performance Measurement. Establish mechanisms 

### by which to 

### continllOUSly improve the human fuctors program across the stakeholders, customers, internal business processes, and learningand growth pcrspectives using program performancemeasures and tools such as the human factors balanced scorecard approach. f.. Processes and Procedures. Establish and apply: • Processes and procedures that systematically identifY the human fuctors expertise essential to applying human flctors to acquisition, operations, certification., and regulatory activities. Mechanisms by which agency long range planning initiatives il1COl]XlGlte forecasts with a human dimension. g. EdUOtlion and Training. Support, participate in, andconduct • Managerial and executive level awareness trainingforhumanfuctors. Program management team and engineering staff technical training for management of human fuctors in acquisition and operations. Operational level human fuctors fumiliarization training. Academic-fndustry-Govemment coordination and technology transfer on the application of human factors. Professional training and education for human fuctors coordinators and support employees ontopics and issues relatedro the human fuctors discipline. 

### h. Staffing, Facilities, and Funding. Plan and conductresource activities to ensure: • Accessibility of human fuctors specialists for analysis, design., evaluation., and implementation activities throughout the agency. • Availability ofhuman factors quality control personnel for oversight, direction, and support. • Adequate funding for humanfuctOIS technical support. Sufficiency of funding for human pert"onnance research, engineering, and 

### data collection projects. • Availability of sufficient research subjects and access to facilities so as to ensure the scientific validityofapprovedresearch and studies. 11.2 Humm Factors Rese:trck 8Jid Engiueering Division. The Human Factors Research and Engineering Division 

### enhances the safetyandefficiency ofthe National Airspace Systemby managinghuman factors aviation research for the agency, coordinating activities for the human fuctors ''community ofpractice" across the agency, and providing human fuctors support to research Page 5and engineering activities within the AirTraffic Organization Operations Planning service area and otherorganizationalelements as appropriate. 

### 1beProgramDirector for HumanFactors serves as 

### the principal advisor onhuman factors research and engineeringto the Administrator, 

### the Air Traffic Organization ChiefOperatingOfficer, and the Federal Acquisition Executive. The functions ofthe Human Factors Research and Engineering Division are organizedas follows: 

### l. Principal advisorand focal pointto the FAAAdministrator, AirTrafficOrganization Chief OperatingOfficer. and the Federal Acquisition Executive

### onhuman factors agency research and air traffic management engineering.

a. Acts as the human factors focal point within and outside the agency for FAAhuman factors research management, human fuctors policy, and broad Air Traffic Organization human factors engineering applicatioru;. b. Provides recommendations and advice on human factors research and engineering to the FAA Administrator, Air Traffic Organization ChiefOperatingOfficer, and FederalAcquisition Executive asrequired

c. Provides human factors guidance, direction, sporu;orship, andrepresentation to internal and external, national and international FAA workgroups, committees, symposia, and conferences. d. Ensures human fuctors are integrated in other FAA organizations' activities as appropriate. IL Manages FAA Human Factors Research.. Engineering, and DevelopmentProgram.

e. Serves as Human Factors Research Program Managerand provides strategic, budgetary, and technical direction for agency resource Research, Engineering, & Developmentplanning and executioa f Performs technical quality assurance for human factors research. g. Ensures coordination and integration between research andapplication areas (i.e., acquisition, certification, regulation, and standards). h. Servesas primary interfuce onhuman fuctors for Research, Engineering, & Developmentairtraffic managementand safetyprograms withdomestic and international agencies suchas Departmentof Defense, National Aeronautical Space Administmrion, and Enrocontrol.

J. Servesas 

### the DesignatedFederal Official for the Research and DevelopmentAdvisory Comnrittee Subcommitteeon Human Factors. Also, provides human fuctors progrannnatic support to Research and DevelopmentAdvisoryCommitteeSubcommittee on AircraftSafety, and SubcommitteeonAir Traffic Services. III. Conducts support activities for the human factors**~community** ofpractice" across the agency. J. Chairs, directs, andorchestrates activities ofthe FAA Human Factors CoordinatingCommittee as setforth under Appendix } (Human Factors CoordinatingCommittee) ofthis order. Page 6k. Coon:linates for theagency the communication, evaluation, advice, and support foc the human facron; community ofprnctice on strategicplanning, risk management, and organizational infrastructure requirements and capabilities for human 

### fuctors activities and expertise. L Supports education, training, and professional development programs to meet the human facton; community ofpractice needs.

m. Advises and provides research and engineeringassistance, consultation, or augmentation 

### to agency programs for human facton; products and services.

n. ForAir Traffic Organization, assesses and supports development ofquantitative measures, analytical methods., conventions and guidelines, 

### technical tools, dataand database availability, human perfO!TI1:lilre criteria, life cyclecosts, human-in-the-loop analyses, and "lessons learned" for human fuctors researchand engineeringapplications.

o. For AirTraffic Organization, serves as clearinghouse, qualityassurance, and document control for human fuctors policy and standards. IV. Provides human factors rese:m:h and engineering support to activities within the Air Traffic Organization OperatimJS Planning (ATO-P) service area and other organizationalelements as appropriate.
p. Serve as a member ofthe ATO-P sponsored SystemEngineering Council to ensure incorporation ofhuman factors considerations in NAS Enterprise Architecture developments and modifications and to enhance human-system integration in other system engineering endeavors. q. Ensures human factors is coordinated and integrated in Air Traffic Organization Operations Planning service area planning, analysis, development, and implementation activities.

r. Provides human factors research and engineering support to Air Traffic Organization Operations Planning activities.

s. Provides human factors leadership and services in support ofother Air Traffic Organizatioru as required. tLJ Checklist for Human Factors Research and Engineering. Appendix 

### 2, Organizational Checklistfor Human Factors Research, Applications, and Infrastructure Support, provides an outline ofkey items for tailoringand review within all FAA organizations. Administrator

Page 7APPENDIX l HUMAN FACTORSSTUDY AREAS I. Allocation ofFunction: Assigningthose roles/functions/tasks for which the human or equipmentperfonns better while enabling the human to maintain awareness ofthe operational situatiO!L 2. Anthropometries and Biomechanics: Accommodatingthe physical attributes ofits user population {e.g., from the Ist through 99thpercentile levels). 3. 

## em(Computer-HuiBliD Interaction): Employing effective and consistentuserdialogues, interfaces, anrl procedures across system functions. 4. Communications andTeamwork: Applying systemdesignconsiderations to enhance required 

### user communications and teamwork. 5. Culture: Addressing the organizational and sociological environment into which any change, including new technologies andprocedures, will 

### be introduced. 6. Displays and Controls: Designing and arranging displays and controlsto 

### be consistent with the operator's and maintainer's tasks and actions. 7. Documentation: Preparing userdocumentation anrl technical manuals in a suitable format of information presentation, atthe appropriate reading level, and with the requireddegree of technical sophistication and clarify. 8. Environment: Accommodating environmental factors (including extremes) to which the system will be subjected and understanding the associated effects on human-system performaoce. 9. Functional Design: Applying human--centered design for usability and compatibility with operational anrl maintenance concepts. !0. Human Error: Examining design and contextual conditions (including supervisory and organizational influences) as causal fuctors contributing to human error, andconsideration of objectives for error-tolerance, errorprevention, anderror correction/recovery. II. Information Presentation: Enhancing operntor and maintainer performance through the use of effective andconsistent labels, symbols, colors, terms, acronyms, abbreviations, formats, and data fields. 12. Information Requirements: Ensuring the availabilityanrl usability ofinformation neededby the operatoranrl maintainer for a specific task when it is needed, and in a form that is directly usable. 13. UO Devices: Selectinginputand output(I/O) methods and devices thatallow operators or maintainers to performtasks, especiallycriticaltasks, quickly and accurately. I4. KSAs (Knowkdge, Skills, Abilities): Measuringthe knowledge, skills, andabilities (KSAs) required to performjob-related tasks, and determining appropriate selection requirements for users. 15. OperationalSuitability: Ensuring that the system appropriately supports the userin performingintended functions while maintaining interoperability and consistency with other systemelements or support systems. 16. Procedures: Designing operation and maintenance procedures for simplicity, coru;istency, and ease ofuse. 

### I7. Safety and Health: Preventing/reducingoperatorand maintainer exposure

### to safety anrl health hazards. 18. Situational Awareness: Enabling operators ormaintainers to perceive and understanrl Page 8elements ofthe current situation, and project them to future operational situations. 19. Special Skills and Tools: Minimizingthe need for special ornnique operaror ormaintainer skills, abilities, tools, orcharacteristics. 20. Staffing: Accommodating constraints and efficiencies for staffing levels and organizational structures. 21. Training: Applying methods to enhanceoperatorormaintainer acquisition ofthe knowledge andskills neededto interfu.ce withthe system, and designing thatsystem so that these skills are easily learned andretained_ 22. Visual! AuditoryAlerts: Designingvisual and auditoryalerts (including error messages) to invokethe necessary operatorand maintainer response. 23. Workload: Assessingthe net 

### demands orimpacts uponthe physical, cognitive, and decisionmaking resources ofan operatO'!" ormaintainerusing objective andsubjective performance measures. 24. Work**Spa~:** Designing adequate work space forpersonnel and their tools orequipment, and providing sufficient space for the movements and actions that personnel perform during operational and maintenance tasks under normal, adverse, and emergencyconditions.



### Page 9

### APPENDIX2 DEFINTIONS

HumanFactors Engineering. Human factors engineering entails the application ofhmnan fuctors considerations concurm:1t with ot!=engineeringdisciplines duringthe analysis, design, development, testing, and fieldingofa system, service, orfucility inwhich human performance is essential in meeting safety andcapability objectives. Human Factors Research. Human fuctors research entails the scientific a£quisition ofinformation abouthumancapabilities and limitations related to 

### hardware, softw.rre, fucilities, procedures,jobs, organizations, environments, training, staffing, errors, situational awareness, workload, personnel management, decision support tools, and otherperfonnance implications in which thehuman is a componentin meetingsafety and capabilityobjectives. Hwnan-Centered. Theronceptand strucinredprocess ofroncept and requirements definition, design, development, andimplementation that identifies the user as the focal point ofthe effort for which procedures, equipment, facilities, and other components serve to support

# numan capabilities andcompensate for human limitatioru;; sometimes also called "user-centered.n Human-SystemIntegration. The ronceptandprocesses associated wiili optimizingtotal system perfonnance via fully incorporating human fuctors considerations (includingmanpower levels, personnel attributes, training, safety andoccupationalhealth, ergonomics and human engineering) inprogram defmition, analysis, design, development, testing, and implementation. OMB Exhibit300 Requirements. The analyses, information, anddocumentationassociated with OMB Circular ll, Part 7, Exhibit 300 requirements and all attaelnncnts necessary to initiate, baseline, develop, and manage a programeffectively and efficiently. System Acquisitions. System acquisitioru; enrompass functions related to all FAA major and nonmajoracquisitions including developmental items, non-devc!opmcntal items, commercial-off-ilieshclfpmcuremcnts, research and technical services, hardware and software acquisitions, and facilities. SvstemOoerations. System operations encompass all functions related to the operation, maintenance, and regulation ofthe National Airspace System underthe purview ofF AA.

Page 1APPENDIX2 ORGANIZATIONAL CHECKLIST FOR HUMAN FACTORS RESEARCH, APPLlCATIONS, AND INFRASTRUCTURE SUPPORT The following checklist items supportilie implementation andcompliance with this order: For Research: Plan, review, and prioritize human factors research which suppo;1S the organization's needs.

•

• Are human factors efforts responsive and synchronized to your organizational needs in a timely basis? Arc you provided with an adequate strategy to conduct human factors efforts at the appropriate location (e.g., contractor, laboratory)? Are human factors efforts cormnunicated and coordinated across other Rese:aoch, Engineering & Developmentefforts and withorgan.i.zations outside the FAA to maximize leveraging? Docs the proper mix existbetween short-tenn vs long-tcnn, in-house 

### vs extra-mural., and contract 

### vs university to 

## satisfY specific human factors requirements? Are mechanisms adequate to transfer and apply information generated from human factors research to organizational functions? For Applications: Develop and institutionalize fonnal mechanisms that systematically incorporate human fuctors considerations into the organization's activities. Arc human resource conslraints and human-system perfotmancc considerations identified early in organization programactivities? Are human resource impactsof the programidentified? Do system operational performance specifications (including system integration requirements) considerhuman fuctors? Is human performance for the prog:rnm/project quantitatively measured? Is human performance and usability an explicit item in contract/vendor evaluation criteria and contractaward? Haveanalyses been done and databeen made available to address human performance? Docs user involvemeut in the program/project follow a structured, performance data-driven strategy? Do critical operational issues and criteria in requirements and testing reflect human performance in operational tenns? • Do lifecycle costs reflecttotal human resourcecommitments? Has the systembeenstressedto its performance limits (includinghuman-in-the-loop analysis)? • Do program/projectdecisions use human performancedata? Are human performance issues and "lessons learned" captured for subsequentapplications? For Infrastructure S!lJ)J)Ort: Establish and maintain the infrastructure that provides the organization with the necessary human 

### fuctors expertiseandcapabilities.

• Are human fuctors experts available and involved? Is there 

### appropriate representationand coordinationoforganizational human fuctors efforts? Is there continuityofhuman fuctors effort? Are there adequate funds for 

### required human

### factors tasks? • Are the appropriate human fuctors tools, techniques, andtechnical capabilities available? Does training providethe proper !eve!ofhumanfuctnrs awareness/understanding? Page 2• Dopolicies, processes, and procedures enhancethe coosideration ofhuman performance? Arejob aids andpmctitionertoolsavailable to supportand apply human 

### fuctocs considerations? 

### For Prognun Reviews: Aresufficienthuman fucrors resources available to ensure theprogram's success? • Is the 

### responsibility for humanfactors centrallydirected forcoordination and efficiency? Is human fuctors el<pC!i:ise integral to the teamdecision makingand processes? • Is 

### human 

### fuctocs integrated intosystemengineering activities? Are human factors issues regularly rnised and resolved in progtamlpmject delibcrations, functions, activities, anddecisions? • Are system requirements, specifications, and evaluations replete with operator 

### and 

### maintainer performanceparameters?

Page 3

### APPENDIX3 HUMAN FACfORS COORDINATING COMMITTEE The Human Factors CoordinatingCommittee shallcontinuein force to facilitate FAA human fuctors endeavors constructively andenhance theuse ofhuman factors infonnatio!L Composition and functions ofthe Human Factors Coordinating Committee are as follows: I. Organization. The committee shall be organized as a steering and coordinating bodythat is facilitated bytemporary orpermanentsubcommittees or working groups as required. 2. Composition. The oommittee shall be sponsored and chaired bythe FAA Human Factors Researchand Engineering Program Director. The composition ofthe Human Factors CoordinatingCommitteewill be as deemed necessary to promote and supportthe execution and implementation ofhuman factors bestpractices within the FAA and to ensure thebest interests ofthe government. Under the provisiQns ofParagraph II (Responsibilities) ofthis order, candidate organizations shalleach designate one member (or more ifnecessary} who shall have the authority torepresent that organization in human factors matters. A recording secretary shall be appointed bythe committee for the purpose ofpreparing minutes ofthe meetings. The Human Factors Coordinating Committee shall encourage participation in its activities byothers with significant human factors responsibilities. Candidateorganizations include:

- Air Tmffic Organization SeiVice Areas -Associate Administratorfor Aviation Safety

- Associate Administrator for Airports

- Associate Administrator for Commercial Space Transportation

- Assistant Administrator for Information Services

- AssistantAdministrator for Region and CenterOperations

- Research Development & Human Factors Laboratory, William I. Hugbes

Technical Center

- Human Resources Research Division, Civil Aeromedical Institute, Office of Aerospace Medicine

- Aeromedical Research Division, Civil Aeromedical Institute, Office of Aerospace Medicine J. Functions. The Human Factors CoordinatingCommittee shall function as an intra-FAA committee to coordinate human fuctors infOrmation, matters, and activities among fue executives, associate administrators, and assistant administrators and their organizations. Specific fimctions ofthe Human Factors Coordinating Committee are to:

a. Enhance the identification ofhuman factors research requirements and tbe coordination ofresearch results; b_ Foster the dissemination andexchange ofhuman factors information amongagency organizations; Page 4c. Facilitatethe integration ofhwnan factors into procedure development, systemperfonnanceevaluation, rulemaking, system acquisitions, and otheractivities within the agency; d. Identity the need for changes to existingpolicies, processes, research programs, regulations, orother human factors-related activities and programs; and

e. Monitor the efficacy ofhuman factors efforts and programs within FAA. 4. Administration., The HFCC shall develop internal operating procedures that define the frequency ofmeetings, the structure andrelationshipofworking groups and subconunittees, and the processes and procedures bywhich its activities are to be carried out. 5

_ Responsibilities.

a. TheChairperson. The chairperson shall be resporu;ible for: (l) Ensuringthat the functions ofthe committee are accomplished; (2) Establishing agenda, schedules, and locations for meetings; (3} Reviewing committee documentationpriorto publication or distribution; and, (4) Ensuringappropriate representation, organization, documentation, and administration to support the committee_ b. Committee Members. Committee members shall be responsible for. (I) Supporting subcommittees, working groups, and othermeans of coordinatinghmnan factors program activities within and across their organizations; (2) Supportingtheirrespective human factors research and engineering programs within titeir organizations; (3) Monitoringtheir respective human factors research requirements development processes within their organizations; (4) Providing information, brief"mgs, and documentation to the committee onhuman factors matters within their organizations; (5) Attending committee meetings or designating an alternate if attendance is notpossib!e; and

Page 5

### (6) Participating 

### in committee and otheractivities such as workshops, seminars, and 

### human factors research andengineering program reviews, as appropriate.

Page 6