### I. Glossary A&P ACAR Anderson ASOS Baird Burr FAA FAA# FAR Gibbs Metadata

N426SW NCAR OpSpecs Perkins Perry PIC SW# Rasmussen SGU SkyWest SLC 

## u.s.c. SERVED: May 29, 2015 U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, DC

IN THE MATTEROF SKYWEST AIRLINES FAA DOCKETNO. [TO BE ASSIGNED] (Civil Penalty Action) FDMS.NO. FAA-2013- 0292 INITIAL DECISION OF ADMINISTRATIVE LAW JUDGE

airframe and powerplant ;, · aircraft communication and reporting system Daniel Joseph Anderson, SkyWest pilot, passenger on N426SW Automated Surface Observing Station FAA employee who forwarded R-6 to SkyWest Dennis Burr, N426SW First Officer Federal Aviation Administration, Complainant Federal Aviation Administration exhibits Federal Aviation Regulations Captain Thomas Gibbs, N426SW pilot

. 'metadata' is information that can be stored along withthe file to keep things consistent across different formats

-- differentprograms so they can speak together better. Everything digital has metadata. Metadata in photograph typically includes a file name and creation data and file size Bombardier CL-600-2B19 aircraft National Center for Scientific Research Operations Specifications Aaron Perkins, FAA aviation safety inspectorthe FAA Dr. Kevin D. Perry Pilotin Command SkyWest exhibits Dr. Roy Rasmussen St. George, Utah Municipal Airport SkyWestAirlines, Inc., Respondent Salt Lake International Airport United States Code 1II. Introductory Comment
The Federal AviationAdministration (hereinafter "FAA") charged SkyWestAirlines, Inc. (hereinafter "SkyWest") with violations of14 C.F.R. §§ 119.5(g), 119.5(1), 121.629(b) and 91.13(a).
We find the FAA did not make aprima facie case with respect to the violations as set forth herein.
III. Procedural History OnJune 19, 2013, SkyWestwas advisedthrough a Final Notice ofProposed Civil· Penalty thatthe FAAproposedto assess a civil penalty inthe amount of$55,000 for violations set forth above.
OnJuly 3, 2013, SkyWestAirlines, Inc., through its legal counsel, submitted a request for a hearing.
On July 9, 2013 the FAA filed a Complaint. SkyWest filed its Answer and Affirmative Defenses onAugust 13, 2013. The matterwas heard in Salt Lake City, UT on February 10, 11 and 12, 2014. Posthearing briefs have been submitted. The matter is nowready for decision. IV. Jurisdiction SkyWestwas at all times relevantherein**the~holder** ofFAA issued Scheduled Air Carrier CertificateNo. SWIA011A. 1 At all times relevant herein SkyWest was authorized to conduct operations pursuant to Part 121 ofthe Federal Aviation Regulations. 

### V. Burden ofProof TheFAA was the petitioningparty withthe initial burden ofproof(J4 C.F.R. § 13.224).
VI. Allegations A. Agency's recitation offacts The FAA alleged that paragraph D085 ofSky West's Operations Specifications (hereinafter "OpSpecs") authorized SkyWestto use civil aircraft N426SW, a Bombardier CL600-2B 19 (hereinafter "N426SW"), in the conduct ofSkyWest's Part 121 operations. Paragraph A023 ofSky West's OpSpecs authorized the use ofSkyWest's Ground DeicingProgram Manual

1FAA# -1. 2SP2800 (hereinafter "GDPM SP2800")? GDPM SP2800 prohibited SkyWest aircraft from taking offwhenfrost was present on an aircraft's upper wing surface. On or about December 7, 2011, SkyWest operated N426SW as Flight 7770 (a Part 121 flight) between Salt Lake City (hereinafter "SLC"), Utah and St. George, Utah (hereinafter "SGU''). The FAA allegedN426SW departed Salt Lake City, Utah despite the fact that frost was adhering to-the aircraft's upper wing surfaces. Byreason ofdeparting Salt Lake City, Utah despite the fact that frost was adhering to the aircraft's upper wing surfaces, SkyWest operated as a direct air carrier in violation ofits OpSpecs; operated an aircraft under Part 121 in violation ofits OpSpecs; and operated an aircraft in a careless manner so as to endanger the life or property ofanother. Byreason ofthe foregoing facts and circumstances, the FAA alleged**SkyWe~t** violated the following sections ofthe Federal Aviation Regulations (hereinafter "FAR"s) (14 C.P.R.): a) Section 119.5(g), when it operated as a direct air carrier when it failed to comply with its Operations Specificationconcerning aircraft deicing; b) Section 119.5(1), when itoperatedthe aircraft under Part 121 when it failed to comply with its Operations Specification concerning aircraft deicing; c) Section 121.629(b), when ittook**off~he** airQ.raft with frost on the upper wing surface; and d) Section 91.13(a), when it operatedthe ·aircraft in a careless orreckless manner so as to endanger the life orproperty ofanother in that it operated the aircraft with frost on the upper wing surface. The FAA alleged SkyWestwas liable for a civil penalty not to exceed $27,500 for each violation noted in accordance with 49 UnitedStates Code (hereinafter "U.S.C.") §§ 46301(a) and (d). The FAArequested we enter a civil penalty of$55,000. B. SkyWest's recitation offacts SkyWest admitted it was at all relevanttimes the holder ofFAA Scheduled Air Carrier Certificate SWIAO11A and authorized to conduct operations pursuant to Part 121 ofthe FARs. SkyWest admittedthat at all relevant times, Paragraph D085 ofSkyWest's OpSpecs authorized SkyWestto use civil aircraftN426SW, a Bombardier CL-600-:2B19 in the conduct of SkyWest's Part 121 operations. SkyWest admitted that at all relevant times Paragraph A023 ofSkyWest's OpSpecs authorized the use ofSkyWest's Ground Deicing Program Manual SP2800

. . l SkyWest admitted that at all relevant times the Ground Deicing Program Manual prohibited SkyWest aircraft from taking offwhen frost was present on an aircraft's upper wing surface.

2FAA# -2. 3SkyWest admitted that on or about December 7, 2011, SkyWest operated the aircraft as Flight 7770 between SLC and SGU. SkyWest admitted Flight 7770 departed SLC but denied that frost was adhering to the upper wing surfaces. SkyWest further denied it took offan aircraft when frost was adhering to the wings ofthe aircraft. SkyWestfurther denied that it operated as a direct carrier in violation ofits OpSpecs. SkyWest denied it operated an aircraft in Part 121 operations in violation ofits OpSpecs. Further, SkyWest denied it operated an aircraft in a careless manner so as to endanger the life orproperty ofanother. As Affirmative Defenses, SkyWest asserted: 1. The proposed penalty was excessive and violated FAA sanction guidance in Order 2150.3B. 2. SkyWest faithfully and fully executed its deicing program in complete compliance with its OpSpecs and applicable FARs. 3. The FAA failed to follow FAA Order 2150.3B Chapter 3, Section 3. VII. Issues Whether on or about December 7, 2011, SkyWest operated N426SW as Flight 7770 (a Part 121 flight) between SLC and SGU despite the fact that frost was adhering to-the aircraft's upper wing surfaces in violation of14 C.F.R. §§ 119.5(g), 119.5 (l), 121.629(b) and/or 91.13(a). VII. Summary ofTestimonyand Evidence All admitted testimonial and documentary evidence was reviewed and considered. Only briefhighlights are summarized herein. ·· A. Agency's Case Aaron Perkins Aaron Perkins (hereinafter "Perkins") was an aviation safety inspector for the FAA. He had held thatposition for three years. From 2003 to 2011 he hadbeen a pilot with several airlines. He held an airline transport pilot certificate with a CL65 pilot certificate type rating for the CRJ aircraft. He had about 7,000 flight hours, ofwhichjust over 3,000 were in the CRJ. After being hired by the FAA he received training, including training on icing.3
On December 7, 2011, Perkins traveled to SLC arriving at approximately 0700 hours. The weather was clear, a cold morning, with light winds. Perkins first observed deicing at one of the deicing stations, then drove along the terminal to see ifthere were any SkyWest aircraft getting ready for departure. That's when he noticed a SkyWest aircraft at gate Echo 1. The time was approximately 0741. Perkins parked his carbehind the tail ofthe airplane, and approached the left wing ofthat aircraft, walking maybe 10 feet or so from the car. From thatpoint Perkins

3 Tr. p. 23, I. 13 top, 26, I. 19. 4testified it was very obvious there was frost on the left wing. Perkins got back in his car to move it so he wouldn't interfere with the pushback operation. He moved the car around to the west side ofthe airplane to checkthe right wing to see ifit looked the same as the left wing. He got out ofthe car, approached the right wing to do an inspection, and took a photograph ofthe wing. 4
As part ofhis training as a CRJ pilot and as an FAA inspector he testified he was familiar with proceduresto detect ice on aircraft. The training was to look at pictures ofwhat contamination looked like on an aircraft wing, and other training was to touchthe aircraft, do a tactile inspectionto verify the presence ofany foreign substance. A tactile inspection involved running your hand on the wing or other critical surfaces. The tactile check itselfwas typically for contaminationthat's difficult to see like clear ice. As you ran your hand across the wing, if you did not feel rivet heads, that would be an indication that there was some sort of contamination on the wing. Perkins testified the SkyWest manual stated that you should do a tactile inspection on the wing leading edge, the wing upper surface, and the wing rear surface. Perkins testified he did not touch the forward part ofthe wing, leading edge ofN426SW; hejust did a visual inspection on the part where he saw the frost. He described the ice he observed as looking like a sheet ofpaper, it was at least as thick as a sheet ofpaper, ifnotthicker than a sheet ofpaper.5
Perkins testified frost onthe wing could cause aerodynamic problems including the loss oflift, increase ofdrag and roll instability. The CRJ wing was more fragile than othertypes of aircraft wings because it was a hard wing, meaning that there was no leading edge device so there were no slats on the front, and those types ofwings could be more ofa concern with frozen contamination.6
Afterhe photographedthe wing, Perkins got back in his car to observe deicing ofthe aircraft for whatPerkins believed was contamination on the wing. Perkins observed N426SW taxito Spot 23 rather than to a deicing station. N426SW remained at Spot23 for several minutes before Perkins observed N426SW make a left turn at the taxiway which took them down to the runway for takeoff.7 During his investigation, Perkins obtained weather data for SLC8 on the date ofthe alleged violation; the Tail Audit Report generated by the Aircraft Communication and Reporting System (hereinafter "ACARS");9 and the dispatch release for Flight 7770 or N426SW. 10 ACARS monitored out time and offtimes. The dispatch release showed additional flight information. 11 Perkins identified a photograph allegedly showing frost on the upper surface ofthe wing

4 Tr. p. 27, I. top. 30, I. 17; FAA# -3. 5 Tr. p. 30, I. 18 top. 33, I. 3. 6 Tr. p. 33, I. 14 top. 36, 1. 3. 7 Tr. p. 36, 1. 10 top. 37, 1. 10. 8 FAA# -5. 9 FAA# -6. 1

## °

FAA# -7. 11 Tr. p. 47, I. 14 top. 50, I. 22. 

### 5ofthe aircraft12 and a photograph showing the aircraft registration. 13 Perkins testified he observed additional frost on aircraft surfaces, but did not take pictures ofother portions ofthe aircraft exceptthose exhibits received into evidence. Perkins testified that the area ofthe wing under the alleged frost was where CRJ aircraft had fuel tanks. The tanks started at the wing root (where the wing meets the fuselage) and ran span-wise across the wing, perhaps two-thirds ofthe way out ofthe wing toward the winglet (tip ofthe wing which turns up), arid then the outer ·portionofthe rest ofthe wing, like a honeycomb. 14 Reviewing FAA# -6, Perkins testified he first observedN426SW at 0741 hours and N426SW pushedback at 0752. He testified he last

### ~bserved the alleged frost onthe wing at 0748 hours. After pushback, Perkins was unable to observe N426SW to determine ifthere was frost on the wings. FAA# -6 showedN426SW took offat 0808 hours. 15
Perkins referred to FAA# -4A and# -4B to mark the spot where he first observed N426SW and Spot 23 where N426SW stopped before takeoff. (Pencil marks on lowerright center and right margin; SkyWest's SW# R-1, R-2A and R-2B gave abetter view ofSLC). 16
Perkins testified he interviewed the first officer (Dennis Burr, hereinafter "Burr") of N426SW who told Perkins that he did perform a preflight walk-around. When Burr and Perkins approached N426SW Perkins said Burr did not mention ifhe checked the part ofthe wing represented in the photograph (FAA# -3). Burr did mention that he checked the wing leading edge and the flaps. 17
Cross Examination Perkins finished his deicing training December 2, 2011, five days prior to this violation investigation. Perkins selected December 7, 2011 as the date to inspect for deicing because it was a clear, cold morning which was notoriously prone for frost. 18**~~** . ' The weather data Perkins received from the National Weather Service (FAA# -5) displayed temperatures in hourly increments. He was aware ofno other source ofdata giving temperatures in less than hourly increments. He was not aware where on SLC the temf<erature readings were physically recorded. He did notrequest sunlight or solarradiation data. 9
The first aircraft Perkins observedbeing deiced were at Spots 9 or 10 (left ofcenter on FAA# -4A above Terminal C20). Perkins did not take pictures ofthe deicing operations at Spots

12 FAA# -3. 13 FAA# -9. 14 Tr. p. 51, l. 1top. 56, l. 7. 15 Tr. p. 56, l. 22 top. 59, l. 7. 16 Tr. p. 60, I. 11 top. 64, l. 7. 17 Tr. p. 67, I. 10 top. 68, I. 17. 18 Tr. p. 71, I. 6 top. 73, I. 9. 19 Tr. p. 73, I. 15 top. 75, I. 11. 20 Lookjust left ofcenter,justabove the vertical midpoint and the horizontal midpoint, there's the control tower; drop down about an inch in the gray area, which is obviously apron, you see black circles with white numbers: 7, 8, 9, 10, 12, 13, 15, and 17; those are the deicing spots. 69 or Spot 10. He usedhis iPhone to take the pictures, not an FAA issued camera. Atthe hearing Perkins testifiedhe no longerhad the iPhone; he emailedthe pictureto his computer and downloaded the picture (FAA# -3) onto his computer after visiting SLC; he believed the metadatawas notincluded onthe picture; by looking atjustthe photograph one could not determine the location ofthephotograph and/or whether it depictedN426SW; the picture was not a complete depiction ofthe entire right wing ofN426SW. FAA# -3 was a picture ofthe right wing ofN426SW. Perkins testified the picture depicted frost orpre-frost; Perkins did not recall ifthere was frost onthe panel to the right ofthe area depicted in the photograph; he was not familiar withthe number ofpanels each wing shouldhave; he guessed the panels were 30 inches by 30 inches; guessedthe wing was 30 feet; he knew the three panels in FAA# -3 had frost but was not sure ifthe4th panel had frost; he did not know ifthe front ofthe wing had frost; he did notremember seeing frost outside the panels; he was not sure ifthere was frost on all four panels ofthe left wing; he did not observe frost outside the panels onthe left wing. Perkins took FAA#

. -3 holding an iPhone, looking through the view finder, aiming at approximately 45 degrees; he did not have the metadatato correlate the picture ofthe right wing with the aircraft and did not take a picture ofthe wing and the aircrafttogether to demonstrate in court the aircraft which had frost on its.21
Perkins testified he did not believe the crew was aware ofthe frost when they pushed the plane back; he did not alertthe ground crew orthe aircraft crewthat he had observed frost on N426SW.22
Perkins reiteratedhis testimony about following N426SW from E-1 to observe it taxi and takeoff. Looking at SW# R-1, N426SW left the departure gate E-1 Gust offthe bottom ofthe photo), headed westbound around the "Y" (the terminal complex resembles a "Y"), turned south along the path near theYtoward the fence, turned westbound and held at Spot 23 (marked with an X inside a circle#2); he testified he came abeam ofN426SW at a spot marked with an X inside a circle (with#1 next to the X). FAA# -3 was taken with available light; he believed sunrise was 0738 hours; it appeared the picture ofN426SW was taken while N426SW was in the shadow ofthe terminal; the terminal was two stories; when N426SW was pushed back it immediately came into direct sunlight; he estimated taxi time to takeoffwas eight (8) minutes. 23 Reviewinghis deposition ofJanuary 15th, Perkins confirmed the ACARS report that he relied onin courtwas the one he used to create his investigative report; he used the timelines in the investigative reportbased offACARS and putthat information into his report. Athis deposition Perkins testifiedN426SW was at Spot 23 for approximately six minutes. Common pushbackprocedure was when the ground crew was done pushingthe airplane back from the gate, they asked the captainto setthe brake;**m~anwhile,** ground crewdisconnected the towbar, moved the ground equipment out oftheway; the aircraft crew would startthe engines; then the aircraft crewreleased the brake at 8:00a.m. and started taxiing. Counsel queried "

...it takes them four minutesto move 1 00 feet, butthen in two minutes they trace this trail all the way out to Spot 23

..." Perkins responded "

...I believe that's whatthe

21 Tr. p. 75, I. 16 top. 105, I. 3. 22 Tr. p. 105, I. 4 top. 106, I. 5. 23 Tr. p. 106, I. 13 top. 120, I. 2. 7ACARS are showing us, yes..."24
Further explainingthe procedure, Perkins testified at 8:04 the captain released the brakes; N426SW begantheirtaxi for the runway; at 8:08 they were offthe ground. Perkins believed "outtime" (the time N426SW was pushedback from the gate) happened at 7:52-- or 7:51. 25 Perkins took no notes during his observations. Perkins agreed when N426SW started their final taxi at 8:04 was when Perkins realized thatthey were not intendingto deice;26 Perkins admitted he had no evidence after 7:48 in the morning whethyr there was frost onthe wings ofN426SW or not; a 20 minute gap, ofknowing not knowing whether or not :frost was still there. 27 Perkins interviewed the first officer who said he did apreflight check. Perkins looked at a video tape to verify what the first officertold him, but the tape was inclusive.28
Laterthe day ofthe incidentPerkins interviewed the flight crew. Captain Gibbs (the pilot, hereinafter "Gibbs") said his first officer Burrperformedthe preflight walk-around; Burr did not report frost onthe wings to Gibbs. Burr told Perkins he performed the preflight walkaround; Burr said he performed a tactile test ofthe surfaces ofthe aircraft; Burr said he touched the leading edge and the flaps; Perkins found the Burr's statement to be credible; Perkins believed Burr performed the preflight walk-around; Perkins believed Burr performed the tactile test; Perkins believed the frost formed after the walk-around. 29
Perkins then interviewed Dan Anderson (hereinafter "Anderson"). Anderson was a company pilot and a passenger on N426SW. Anderson had submitted a report to SkyWest's ChiefPilot saying he did not see frost on the wings ofN426SW. Anderson told Perkins he boarded 20 minutes before pushback which would be about 7:31 a.m. Anderson said he was sitting in 6A. From that seathe could see a part ofthe wing; Perkins testified he sawthe part of the wing represented in these photographs. Anderson told Perkins he did not see :frost on the wings. Perkins believed Anderson's statementto be true. 30
Perkins testified the violation occurred when N426SW crewdid not deice its wings; the violation occurred when the airplane lefttheground with frost onits wings; otherwise Perkins believed**th~t** the flight crew complied with the deicing program in SkyWest's operations specifications.31
Redirect Perkins elaborated further on push/movement, referring to FAA# -6. Perkins explained the push/movement was generated by moving ofthe wheel, which was an input for the ACARS system to record the time. A typical pushback procedure entailed the ground crew using a tug or a pushback cart, moving the airplane rearward, typically at a fairly slow speed, out to a

24 Tr. p. 127, II. I to 6. 25 Tr. p. 120, I. 8 top. 128, I. 12; SW# R-5. 26 Tr. p. 131, I. 6 top. 137, I. 16. 27 Tr. p. 154, II. 4 to 7. 28 Tr. p. 154,11. 12 to 18. 29 Tr. p. 157, I. I top. 160, I. 10. 30 Tr. p. 160, I. 11 top. 162, I. 9. 31 Tr. p. 163, I. 8 top. 164, I. 3. 

### 8predetermined location, the length ofpushback could vary by the position ofthe gates. Sometimes the pushbackwas quite far. Sometimes it was close. Sometimes the location ofthe pushback was dictatedby air traffic or ground control controllingthe ramp. The majority of push backs would be the aircraft would start moving for a period oftime, and then stop at the end ofthe push back where ground personnel will ask the aircraft crewto setthe brake. In other instances the ground crewmighthave to stop and restart the pushback. The speed and the push were controlledby the ground tug and the aircraft crew would typically not use their foot brake. Typically when the pushback was complete, the ground personnel asked the captain to set the brakes then the ground crew disconnected the towbar. Perkins believedN426SW was in direct sunlightfor 16 minutes. Ifthey startedtheir pushback at 7:52 local, from that pointthey would be clear ofthe building, from 7:52 to 8:08, 16 minutes. Perkins believed N426SW was in the shade while parked at the gate. 32
Recross Perkins admitted the crew could wait for frost to sublimate. At Spot 23, N426SW would be oriented with the tail pointed east, the nose pointed west, the wings were canibered33 tilted downward more to the east. The wings would be bathed in sunlight for two to six minutes.34
Thomas H. Bond35
Thomas H. Bond, (hereinafter "Bond") was offered as an expert witness in the subject of aircraft icing and specificallythe effects offrost on an aircraft's safety over objection of SkyWest. We accepted Bond as an expert, noting the objectionwould go to the weight given his testimony. Bond was the chiefscientist and technical advisor for flight environmental icing for the FAA. He hadbeen in that position over seven years. He had a degree in mechanical engineering from Penn State and had worked as an airframe and power plant (hereinafter "A&P") mechanic. He worked for NASA starting in 1983, first on intermittent combustion engines, then aircraft icing from 1986 to 2007. Within the FAA his duties were directly related to supporting aircraft certification services and flight standard services in regards to continuing operational safety. He oversaw all the research for the organization and directed it through the FAAtech center. He was responsible for the development ofcloseout ofthe 1997 aircraft icing plan, the generation of the 2012 new aircraft icing plan, and other duties. In the three years priorto the hearing he spent a good portion ofhis time working on ice crystal icing conditions associated with engine damage and air data. Duringhis careerhehad studied ice and frost on aircraft surfaces as well as deicing methodologies. He had worked with a CRJ equivale'nt airfoil section. Bondtestified in his opinion, based on the review ofthe evidence, frost couldhave

32 Tr. p. 166, I. 4 top. 173, I. 4. 33 a slight arching, upward curve, or convexity, as ofthe deck ofa ship; a slightly arching piece oftimber. Aeronautics: the rise ofthe curve ofan airfoil, usually expressed as the ratio ofthe rise to the length ofthe chord of the airfoil. (Dictionary.com) 34 Tr. p. 173, I. 5top. 176, I. 13. 35 Tr. p. 180, I. 8top. 229, I. 17. 9formed on the wing ofN426SW during the period and time in question.36
FAAEvidence FAA#- 1through# -7,FAA#- 9 and#- 11 and FAA#- 12 were offered bythe FAA and admitted into evidence. Consistent withpastpolicy oftQ.is court, wetookJudicial Notice ofFAA#

- 10, FAA Order 2150.38. ' '· There was no FAA#

- 8. SkyWest'sMotionfor Judgment Atthe conclusion ofthe FAA case, SkyWestmoved for Judgment in its favor. We denied SkyWest's motion atthe hearing and affirm our ruling herein. We find the FAA met its initial burden ofproofat that stage in the hearing. B. SkyWest's Case David A. Katsilas David A. Katsilas (hereinafter "Katsilas") was the lead manager for SkyWest hubs including SLC. Atthe time ofthese alleged violations, Katsilas was the General Manager for SkyWest at SLC. Deicing fell under his purview. OnDecember 7, 2011, there were fifteen (15) total SkyWest Aircraft departures ofwhich five (5) received deicing priorto 0900 hours. Ofthe five (5) aircraftreceiving deicing, all five (5) ofthem had overnighted at SLC. Ofthe other ten (10) departures, none ofthem had overnighted·at 

### SLC, i.e., they came inbound in the morning, turned around and departed. In his opinion conditions were conducive for frost formation when aircraft were at SLC for extended periods oftime, butnot for quick turns.37 Captain38 Thomas Gibbs Gibbs was a pilot for SkyWest atthe time ofthe hearing. He had been in that position for eight (8) years and was qualified in CRJ200, 700, 900 aircraft. He had 8,000 hours in the CRJ200 as a first officer and CAPT. Gibbs had also flown the EMB120 for SkyWest as First Officer. He had about 9,500 hours flying at the time ofthe hearing. He attended the University ofMaryland, spenttwenty (20) years in the military and had taught at Unity Aerospace. After active military service Gibbs obtainedhis flight ratings, flight instructed, and then got hired at SkyWest. He received his ATP in 2007 and had never had it revoked or suspended.39

36 Tr. p. 198, I. 6 top. 215, I. 16. 37 Tr. p. 248, I. 19 top. 254, I. 5. 38 In the aviation industry, this is abbreviated as "CAPT" consistent with U.S. Navy abbreviations. U.S. Army uses the abbreviation "CPT". We will use CAPT herein. 39 Tr. p. 254, I. 18 top. 259, I. 13. l' 10Gibbs was the pilot in command (hereinafter "PIC") ofFlight 7770, herein referred to as N426SW. OnDecember 7, 2011, the weather was cold, clear skies, with unlimited visibility. It was cold enoughto perform a tactile test, which was performedbythe First Officer. Gibbs knew the First Officerperformedthe test because he sawBurr's reflection inthe glass ofthe Terminal at Gate Echo 1. The First Officer reported no frost onreturn to the cockpit. The First Officer left the aircraft a second time to checkthe fuel doors, which was aboutfive to ten minutes priorto departure, or approximately 0750 hours. The fuel door was located on the wing; to see the fuel door you would also have to look at the wing. The First Officer reported no frost the second time he exited the cockpit and looked at the wing. Gibbs marked on SW# R- 2B the route N426SW took from the gate.40 Gibbs drew a line from Gate Echo 1to Spot 21, which he marked with a large "X" (the aircraft headed west on the exhibit). Gibbs said they held at Spot 21 for approximately six minutes before going to 34 L (the black line going west then turning left or south, "34L" atthe end ofthe arrow). N426SW taxied on 34Luntil the end, turned north and departed SLC. Gibbs estimatedtotal taxi time was 10 to 12 minutes. Gibbs testified he would nothave taxied to Spot 23 becausethatis an inboundroute. The direction out ofthe south end of E concourse was westthennorth, south on 34L. Based onhis evaluation ofthe ACARS (FAA#- 6) Gibbs estimated it couldhave been 16 to 17 minutes from push backto departure.41

Gibbs was based out ofPhoenix and had flown in and out ofSLC thousands oftimes. Gibbs never observed ice onthe aircraft at any point. Taxi time from the spotthe aircraft was pushedto until when it was airborne was eight minutes.42
Dennis Michael Burr Burr was the First Officerfor SkyWest. He had operated all three variants ofthe CRJ, being 200, 700 and 900. He had a college degree with honors andhadworked as a flight instructor. Hehad never been disciplined nor had his certificate suspended or revoked. He had been trained in SkyWest's deicing program. He had never knowingly operated an aircraft with contaminant on its wings. He was the first officer on Flight 7770/N426SW. He performed the preflight on N426SW on December 7. He performed a cold weather inspection which included looking atthe wings and making sure that there wasn't anything frozen on the airplane. He performed both a visual andtactile inspection ofthe wings on Flight 7770/N426SW. He detected no contaminants. There was sufficient light to perform the inspection. He described the wing spanofthe CRJ 200 as 69 Y2 feet from tip to tip, from wing root to tip abouthalfthat distance. Thepanels depicted inFAA# - 3 were approximately one foot square. Burrtestified theytaxied outto Spot 21. Burrtestifiedthe black line on SW# R-2B (red onthe original) was the taxi routetaken bythe aircraft and the large "X" was the approximate location ofSpot 21. From Spot 21 the aircrafttaxied down the taxiway to the end ofthe runway. Gibbs was taxiing the aircraft. Burrtestified it made no sense to taxi to Spot 23 because that was an inbound taxi

40 Gibbs marked a large version ofthe SLC map with a red marker. SW# R-2B shows a black mark. The photo in evidence was unable to pick up the red color. The marks on R-2B in evidence are the marks the witness made except the exhibit is black, the original exhibit was red. 41 Tr. p. 259, I. 15 top. 273, I. 4. 42 Tr. p. 273, I. 16 top. 295, I. 8. 11route. Itwould not make sense when leaving Gate E-1 to turn left and go south across the ramp. FAA# -3 did notrepresentthe wing which Burr saw during his inspection. Burr saw a clean wing meaning it didn't have any frozen contaminants onit like frost, ice, snow; it was dry with no moisture on it. Burr felt no contaminants when he ran his finger along the wing. The atmospheric conditions on the morningwhen they pushedback from the §ate were a dry and clear, clear sky, no clouds, the sun was up. They taxied in full sunshine.4

Burrbelieved he did the preflight approximately 20 minutes before departure. He performed atactile and visual inspection ofthe wing. He believedthe sun was up when he performed his inspection. The wing ofthe aircraft would have hithim in mid torso. Burr never noticed frost on the wing; he performed a tactile inspection ofthe wing; he performed a tactile inspection ofthe flaps; andperformed atactile inspection ofthe top ofthe wing as far as he could reach, which was two and halfto three feet. He inspected the leading edge ofthe wing and the upper wing surface. The Tactile test was accomplished by dragging his fingers across the surface ofthewing. During the preflight inspection he would have touched every part ofthe surface he could reach to be sure there was no frost on the wing. He touched the majority ofthe wing; he touched the entire surface ofthe flap. 44
Redirect Perkins showedBurr an iPhone/iPad picture ofthe wingpurportedly showing contamination onthe wing. Burrtestifiedthat FAA# -3 was notthe samepicture thathe sawon December 7. The picture Burr saw on December 7was so close to the wing he could not tell what part ofthe wing it was. Burr asked Perkins to showhim the area ofthe wing. Burr and Perkins wentto the wing, Perkins showed Burrthe areapurportedly displayed in FAA# -3. Burr responded he had inspected thatportion' ofthe wing priorto departure and there were no contaminants on the area ofthe wing Perkins pointed to. There was no degraded performance on takeoff.45
Recross Burr confirmed FAA# -3 was not the picture he saw on December 7. The picture he saw that day was so zoomed in Burr could nottell what portion ofthe wing was depicted. Burrtried to move the picture- i.e., scroll up down, move in and out- but could not getthe picture on the iPhone on December 7 to move. That was the reason Burr had Perkins showhim on the wing where it was on the wing he took a picture from. 46
Daniel Joseph Anderson Daniel Anderson (hereinafter "Anderson") was a pilot for SkyWest with the rank of

43 Tr. p. 297, I. 8top. 317, I. 15. 44 Tr. p. 319, I. 17 top. 335, I. 9. 45 Tr. p. 337, I, 14 top. 344, I. 6. 46 Tr. p. 345, I. 6 top. 346, I. 11. 12Captain. He had a little over 5,900 hours inthe CJR as a First Officer, but was at the time ofthe hearing a captain on an Embraer. Hehadperformedmanypreflight inspections. He was a passenger onFlight 7770 orN426SW. When Anderson sat down in his seat, he looked outthe window and observedthe aircraft wing was clean ofice. He was in seat 6B, 6A was empty so he could see the port side wing. He was able to see fromjustoutboard ofthe wing root to the winglet- about 80% ofthe wing. Based on his observations he did not believe the aircraft needed deicing. He acknowledged that FAA# -3 appeared to showthe beginning offrost, buthe did not see that onthe wing ofFlight 7770 orN426SW on December 7, 2011. Anderson testified the wing panels onthe flight were about one foot square with 260 square feet ofwing surface. Duringpushback from Gate E-1, the pushbackwould typically go two parking spaces; the push crewwouldtypicallypushthe aircraftbackwards until the right wing ofthe plane pushed from Echo 1 would be pointing at eitherEcho 9 orEcho 11 (SW# R-1. The green circle is Echo 1, red "X" is wherepushback wouldtypically end, two circles are Gates Echo 9 and 11). Ifthe aircraft was goingto us taxiway 34L, it wouldtypically taxi to Spot 21. Itwould make no sense to taxi to Spot 23 because that is an inbound spot.47

Anderson did not observe Perkins or a government carnearthe aircraft. He observed the port wingbutnotthe starboard wing.48 SpencerHyde Spencer Hyde (hereinafter "Hyde") was called as a rebuttal witness by SkyWest overthe objections ofthe FAA. The FAA's objection to Hyde's testimony was that Hyde's identity had not been disclosed during discovery. SkyWest countered that the photographs which had been introduced into evidence in the FAA's case had been requested several times and SkyWest was told that they were destroyed. Only during the hearing did bothparties learn thatthe photographs still existed. Itwas notuntil Perkins testified and disclosed the iPhone pictures did both parties become aware the pictures existed. The FAA acknowledgedthe first they learned the photographs existed in electronic format was when Perkins was onthe stand atthe hearing. Under 14 CFR 13.225 we allowed Hyde'stestimony as an offer ofproof. Upon consideration of the entirety ofthe evidence and testimony we now change our ruling and will allow Hyde's testimony. Both counsel are familiar to the court and individuals ofhigh integrity. Wetake at face valuethe representations ofthe FAA that they were not aware ofthe existence ofthe electronic photographs until the hearing. We take at face valuethat SkyWestwas prejudiced by their inability to examine the photographs priorto hearing. Bothparties were equally surprised and prejudiced. This is an administrative proceeding, formal rules ofevidence are relaxed. We find the photographs in question are relevant and material to the case. We find bothparties were surprised by the existence ofthephotographs during the hearing. Anyprejudice to the FAA was ofits own making, i.e., it was not until the hearing that the FAA discovered that its own witness had possession ofa photograph which was importantto both parties. The FAA's witness caused

47 Tr. p. 390, I. 16 top. 415, I. 16. 48 Tr. p. 415, I, 10 top. 419, I. 4. 13the prejudice. We will allow Hyde's testimony, the objection will go to the weight given his testimony. Objectionto the testimony ofHyde is overruled; the testimony will be received in evidence. Hyde was an employee ofSkyWest. Hehad a bachelor's degree from the University of Utah with a minor in graphic arts and a graduate degree from Westminster College in communications. He had been a graphic designer for about seven years. Hyde described 'metadata' as informationthat can be stored along with the file to keep things consistent across different formats-- different programs so they can speaktogetherbetter. Everything digital has metadata. Metadatainphotograph typically includes a file name and creation data and file size. Ifa file has beenmodified, the original data should still be in the metadata. He examined the electronic photograph and was able to determine itwas from an iPhone.49 Hydetestified he received an electronic copy ofa photograph (hereinafter "SW# R-6") from Mr. Baird (hereinafter "Baird") at the FAA. The FAA objected to admission ofthe photograph. We overruledthe objection. The chain ofevidence was from the FAA. We find Hyde was qualified to testify on metadata contained in the photograph based on his experience and working with various programs. The FAA failed to produce the photograph prior to the hearing as set forth herein above. The FAA's objection was overruled; SW# R-6 was received in evidence. SW# R-6 was forwarded by Bairdto Verdean Heiner, who worked in the training department at SkyWest. SW# R-6 was a PDF file. The metadata showed the photograph was created on December 19,2011 (SW# R-9). The original format was JPEG. The file was subsequently converted from JPEGto PDF

..**SkyW~.st** had a PDF file whichwas the manner in whichthe photograph was transmitted to SkyWest. Hyde was still able to mine the metadata on the PDF and determine when and howthe SWS# R-6 was taken. Examining the metadata, Hyde was able to determine that original SW# R-6 was taken with

## an iPhone 3GS (SW# R-8) and modified at 8:31 p.m. As a result, from a technical standpoint, the photographprovided SkyWest was not identical to the photographoriginally existing onthe iPhone at the momentthe picture was taken.50

At some pointthe JPEG file onthe phone was converted to PDF. SW# R-9 was originally created 12/7/2011 at 7:53 and 11 seconds a.m. The metadatawas only as accurate as the datathat captured it. 12/7/2011 at 8:31p.m. was the last modified date for the file. Different things couldhappento modify the file. Hyde could not tell what happened to the file, merely that itwas modified.51
Redirect There were two different dates that a PDF was created, December 7, 2011, 8:31:05 p.m.

49 Tr. p. 433, I. 9 top. 442, I. 10. 50 Tr. p. 444, I. 3 top. 454, I. 21. 51 Tr. p. 460, I. 18 top. 477, I. 17. 14and again on 12 --December 19,2011, at 10:18:51.52
Dr. Kevin D. Perry Dr. Kevin D. Perry (hereinafter "Perry") was a professor at the University ofUtah inthe Department ofAtmospheric Sciences. He held dual positions as associate professor and also as chair ofthe Department ofAtmospheric Sciences. Atmospheric sciences are the study ofthe envelope ofgases that surround the planet and all ofthe processes that involve those gases. He had a bachelor ofscience in meteorology from Iowa State University ofScience and Technology, where he graduated with honors, followed by a Ph.D., in Atmospheric Sciences from the University ofWashington in Seattle, and then a post-doctoral experience in air quality working for the National Park Services at the University ofCalifornia at Davis.53 Perry testified about his credentials as set forth in SW# R-3 which was received into evidence. Perrywas accepted as an expertinthe area ofatmospheric science over the objection ofthe FAA. As we stated at the hearing, the objection will go to the weight given Perry's testimony. Perry reviewedthe FAA's evidentiary file, downloaded the official weather data from SLC system operatedbytheNational Weather Service, downloaded information from the Utah Department ofAir Quality, the National Weather Service and did literature review on frost formation. As a result ofhis review ofdatarelevant to the facts ofthis case, Perry generated a report at SW# R-4. Perry testified that as a result ofN426SW's flight from SOU, the fuel in the aircraft wings would become 'cold soaked' 54 and reached the ambient temperature ofthe atmosphere at flight altitude. As the aircraft descended below 14, 500 feet the ambient temperature was actually warmer than the surface temperature and above the frost point. On the otherhand, fuel from the fuel trucks was typically loadedthe prior night inpreparation for operations the next day and would- duringthis period oftime- been exposed to temperatures ofminus 9 degrees Celsius, which was very close to the frost point. As a result, when the fuel was loaded onto the aircraft it would have chilled the wing.55 In his opinion:

· Withoutthe additional cooling mechanism ofthe fuel, the temperature ofthe

airfoil wouldhave beentoo warm for frost to form because the temperature ofthe airfoil wouldhave been greaterthan the frost pointtemperature by evidence ofthe fact thatthere was no frost on the wing from touchdownto taxi to the gate. (Tr. p. 514, 11. 13 to 20). As result ofatmospheric influences, the temperature ofthe wing would adoptthe temperature ofthe fuel put onboard. Once the engines started, fuel would be circulated, some warm fuel returned to the tank and the atmosphere would contribute to wing warming. In his

52 Tr. p. 477, I. 18 top. 482, I. 10. 53 Tr. p. 484, I. 4 top. 496, I. 12. 54 Tr. p. 511, I. 20 top. 512, I. 6. 55 Tr. p. 496, I. 12 top. 514, I. 9. 15opinion:

... the explanationfor why the aircraft did notpickup frost from landingto the taxiway to the gate, because during flight the aircraft fuel had beenheated in flight preventing the cold soak. (Tr. p. 524, 

### 1. 19 top. 525, 

### 1. 1).**".-~** I Perry testified there were sufficient heat sources to remove any frost in eleven (11) minutes, assuming there was frost onthe wing. In Perry's opinion, based on:

...the amount ofenergy that was available and the conservative nature ofthe reportthat was provided-- the conclusion ofthe report is that it's extremely unlikely thl;tt frost would remain from pushback through takeoff.

..based upon the evidence and the calculationsthat Ihave performed, I would saythat the likelihoodthatthe frost had been removed from the surface through these additional heat mechanisms would be 95 percent.56

Perry testified the dewpointtemperature and the frost point temperature were increasing from early in the morning through the time ofthe flight. Ifthe amount ofenergy the aircraft absorbed during thetaxi period was higher than the amount ofenergy required to sublimatethe frost thathad formed on the aircraftthrough his calculations, then there wouldn't have been frost at the time ofthe takeoff. In Perry's opinion any frost was caused by fuel that was at or slightly belowthe frost point temperature. Perry quoted from his report:**-~** . The nature ofthe frost formation process is sufficiently complicated so that it is difficult to predictthe rate offormation and its density at a particulartime. Many ofthe important characteristics ofthe frost depend onhow it was formed. "57
Evidence SkyWest offered exhibits SW# R-1 through R-9, all ofwhich were received into evidence. C. FAArebuttal Dr. Roy Rasmussen58
The FAA called Dr. Roy Rasmussen (hereinafter "Rasmussen") as a witness in rebuttal. He had been an atmospheric scientist at the National Center for Scientific Research in Boulder (hereinafter "NCAR"), CO for twenty-three (23) years. The main focus ofhis workhas been on aircraft icing and deicing, essentially any weather associated with aircraft operations in the**w~nter.** He had extensive research, publications

56 Tr. p. 540, I. 21 top. 541, l. 18. 57 Tr. p. 548, I. 11 top. 583, 1. 1, contains the substantive testimony ofthis witness. 58 Tr. p. 625 1. 22 top. 672, 1. 10. 16and presentations on the subject matter. Prior to the hearing he reviewed Perry's report and the photographs in evidence. Rasmussen disagreed with Perry's calculations and assumptions with respect any frost on the wings ofN426SW. Rasmussen's testimony discussed heating differential between a black surface andthe "silver" surface ofN426SW. The significance was that a silver object will radiate less energy than a black object, which was important to determine whether any frost would have remained on the wing ofN426SW.

When shown a sample segment ofa wing with SkyWest colors Rasmussen admittedthe sample was Silver-Gray. VIII. Analysis ofEvidence and Testimony
A. Agency's case The testimony ofPerkins was that he sawfrost and photographed frost on the wings of N426SW. Perkins did not perform a tactile test on the wing. Perkins testified N426SW left the terminal and traveled to Spot 23. N426SW remained at Spot 23 for several minutes before Perkins observed N426SW make a left turn at the taxiway which took them down to the runway for takeoff.59
Perkins believedthere was frost on the wings ofN426SW. Rasmussen's testimony was predicated on radiation from a polished silver wing and frost was possible. Rasmussentestified it was possible thatN426SW had frost on its wings in violation ofthe regulations. B. SkyWest's case Burr testifiedhe performed a tactile test onthe wings ofthe aircraft and found no frost on any surfaces. Thereafter Burr exitedN426SW immediately prior to departure to check the fuel door. Burr observed no frost on the wings on his second walk aroundN426SW nor while checking the fuel door. Anderson was sitting in a positionto observe the left wing ofN426SW. He observed no frost on any surfaces. Gibbs watched Burrperform part ofthe tactile test by observing his reflection in the terminal window. Gibbs said he taxied from the Gate to Spot 21, that it would make no sense to taxi to Spot 23 because to do so N426SW wouldbe using an inbound taxiway and an inbound spot. Perrytestified that it was unlikely there was any frost on the wing, but ifthere was heat

59 Tr. p. 36, I. 10 top. 37, I. 10. 17from the wing and other conditions would cause 

### itto evaporate. There were inconsistencies between Perkin's testimony and that ofSkyWest witnesses. Perkins testified he observed frost onthe wings butdid not perform atactile test. Burr performed a tactile test and found no frost. An,derson observed no frost on the wings while sitting in a position insideN426SW where he could observe the wing. Perkins testified N426SW departed the gate and traveled on one taxiway to Spot 23. SkyWest witnesses testified it would have beencontraryto SLC traffic flow to travel in the direction Perkins indicatedbecause to do so would be using an inbound taxiway and spot. SkyWest witnesses testified they traveled an outbound taxiway to Spot 21 prior to departure. The FAA's experttestified about N426SW's alleged frost accumulation on the assumption N426SW was silver in color. SkyWest's aircraft colors were silver-gray. According to Rasmussen's owntestimony that would change the radiation emanating from the wing. Thephotographs are oflittle help based on a poor chain ofcustody and documented changes in formatting. We draw no conclusions and make no assumptions other than the format ofthe photographs were changedto the surprise ofall parties. Clearly Perkins believed he observed frost on the wing ofN426SW. The FAA has failed to present any testimony and/or evidence to substantiate Perkins' conclusion. The SkyWest eyewitnesses observed no frost on N426SW. SkyWest witnesses contradict the FAA witnesses onthe path N426SW took from the terminal to the holding spot and thereafter to the runway for departure. · ,: C. Credibility determination(s) We find the testimony ofall witnesses to have beentruthful and credible. The testimony ofthe expert witnesses was informative and instructive, but ultimately rebutted each other. IX. Law 14 C.F.R. provides in part: 14 C.F.R. Section 91.13(a) provides: (a) Aircraft operations for the purpose ofair navigation. No personmay operate an aircraft in a careless orreckless manner so as to endangerthe life or property ofanother.

14 C.F.R. Sections 119.5(g), and 119.5(1), provide:

18(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 mayoperate as a direct air carrier or as a commercial operator in violation ofany deviation or exemption authority, ifissued to that person orthat person's representative. (I) No person may operate an aircraft under this part, part 121 ofthis chapter, or part 135 ofthis chapter inviolation ofan air carrier operating certificate, operating certificate, or appropriate operations specifications issued under this part. I 4 C.F.R. Section 121.629(b) provides: (b) No person may take offan aircraft whenfrost, ice, or snow is adhering to the wings, control surfaces, propellers, engine itl.Iets, or othercritical surfaces ofthe aircraft or whenthe takeoffwould notbe in compliance with paragraph (c) ofthis section. Takeoffs with frost under the wing inthe area ofthe fuel tanks may be authorizedbythe Administrator.

X. Findings ofFact We find that the evidentiary facts, by a preponderance ofthe evidence standard, do not support findings that SkyWest violated either 14 C.F.R. Section 91.13(a), 14 C.F.R. Sections 119.5(g), and 119.5(1), nor 14 C.F.R. Section 121.629(b). We find the FAA failed to make aprimafacie case with respect to the violations as set forth hereinabove. We find the FAAfailed to carry its burden ofproofwith respect to each ofthe violations alleged. XI. Conclusions

'· 0 , il We find the evidentiary facts and testimony, by a preponderance ofthe evidence standard, do not support findings that violations of14 C.F.R. Section 91.13(a), 14 C.F.R. Sections 119.5(g), and 119.5(1), nor 14 C.F.R. Section 121.629(b) occurred. Pursuantto 14 CFR §13.225, "offerofproof'60 the FAA soughtto have Bondtestify whetherN426SWtook offwith frost on its wings. SkyWest objected to the question and we sustained the objection. The FAA then made an offer ofproofas setforth hereinabove. The question posed lacked a proper foundation, specifically: formation ofany alleged contamination, dew point, frost point, ambienttemperature, the amount ofsunlight available. We also find the experience enumerated in Bond's answer was not relevant to the question posed. The question also goes to the ultimate determination ofthis court. Accordingly, our ruling sustaining the objection stands.

60 Tr. p. 221, 1. 12 top. 229, 1. 4. 19Objection to the testimony ofHyde is overruled; the testimony was received in evidence. The FAA's objectedto the admission ofSW# R-#6 was overruled, SW# R-6 was received in evidence. WHEREFORE, evidence and testimony having been heard and considered and taking the totality ofthe evidence and testimony as a whole we find the FAA failed to establish aprima facie case supporting the violations enumerated above, inclusive. Therefore it be and is hereby ORDERED as follows: The Complaint be and is hereby dismissed, withprejudice. 61

Richard C. Goodwin U.S. Administrative LawJudge

Attachment- Service List

61 This decision may be appealed to 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 1) be filed not later than 10 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-Suite2W1000, or b) delivered personally or via expedited courier service to the Federal Aviation Administration, 600 Independence Avenue, S.W., Wilbur Wright Building-Suite2W1000, Washington, D.C. 20591, Attn: Hearing Docket Clerk, AGC-430. A copy ofthe notice ofappeal and briefor memorandum also mustbe sentto agency counsel. Service upon the presidingjudge is optional. 

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