X 

ToddC. Emerson. #8175 

444 South River Road 

Si. George- Utah, 84790 

Telephone; (435)634-3530 

Facsimile: (435)634-3505 

Email: tQmerson@sky\vest.eom 

- and -

Michael L. Dworkin//64047 

465 California Street, Suite 210 

San Francisco, Calilbrnia 94104 

Telephone: (415)421-02500 

Facsimile: (415)421-2560 

Email: la\v@aviale\.com 

Aitornevs for SkvWest Airlines. Inc. 

RECEIVED 

OCT 12 2011 

HEARING DOCKET 

UNITED STATES OF AMERICA 

DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

cr 

V 

m-^r n 

t:75 

[n the Matter of: 

SKYWCST AIRLINES. INC. 

FAA Case Nos.: 201INM0600I0 and 

20llNM0600il 

SKYWEST AIRLINES, INC.\S 

FIRST AMENDED ANSWER 

.ludae: The llonorable Richard C. Goodwin 

SkyWest Airlines, Inc. ("SKYWEST"), by its counsel, hereby llles its First Amended 

Answer, pursuant to Rule 213 ofthe Rules ofPractice, (14 CFR § 13.213),and stales as follows: 
FAA Case No. 201INM0600I0 

I. 

SKYWEST admits that it was advised through a Final Notice of Proposed Civil Penalty, 

F.AA Case No. 2011NM060010, thai the Complainant proposed lo assess a civil penally in ihe 

amount of $33,000, and that SKYWEST submitted a written request for a hearing on June 1, 2011. 

II. 

1. In response to Paragraph I, SKYWEST admits that it is now and ai all times material 

hereto, the holder of Scheduled Air Carrier Certificate No. SWIAOI1 A, and conducts its 

operations per FAR Part 121. 

2. In response to Paragraph 2, SKYWEST admits that Paragraph D085 of SKYWEST"s 

OpSpecs authorizes SKYWEST to use N702SK, a Bombardier CL-600-2C10 civil aircraft, 

in the conduct of SKYWEST's Part 121 operations. 

3. In response to Paragraph 3, SKYWEST admits that Paragraph A098 of SKYWEST's 

OpSpecs requires that aircraft loading for Bombardier CL-600-2CI0 aircraft be 

accomplished in accordance with SKYWEST's Weight & Balance Operations Manual, 

SP4100. Pan XII, revision Orig of I APR 10 (W&B Manual) 

4. In response to Paragraph 4, SKYWEST admits that SKYWEST's W&B Manual contains 

the loading schedules and instructions for SKYWEST's Bombardier CE-600-2CI0 aircral't. 

FAA Case Nos.: 2011NM06UU10 and 2011NM060UI1 

SKVWEST AIRLI^t*s, I^C/ S FIRST AMENDED ANSWER 
5. In response to Paragraph 5, SKYWEST admits that SKYWEST's W&B Manual, Chapter 

2, paragraph 2.A.24 defines '"Heavy Cheeked Bags" as any bag weighing more than 50 

pounds, but less ihan 100 pounds. 

6. In response to Paragraph 6, SKYWEST admits that SKYWEST's W&B Manual, SP4100, 

Part Xii , Chapter 3, paragraph 2.D. 1 requires the loading agent to mark the number of 

standard and heavy bags on the Cargo Load Report (CLR). 

7. in response to Paragraph 7, SKVWEST admits that SKYWEST's W&B Manual, SP4i00, 

Part Xll . Chapter 3, paragraph 2.1.2 requires the loading agent to verify the piece count of 

all Standard Checked, lleavy Checked, and planeside loaded/Service Item Baggage upon 

completion of loading. 

8. In response to Paragraph 8, SKYWEST admits that SKYWEST's W&B Manual, SP4100. 

Part Xll , Chapter 4. paragraph 8.9 requires the loading agent to write the total number of 

heavy checked baggage loaded in each cargo bin on the CLR in the "lleavy Checked" 

block. 

9. in response to Paragraph 9. SKYWEST admits that SKYWEST's W&B Manual, Chapter 

4, paragraph 11 - Aircraft Loading, contains the warning: 

A WARNING • INACCURATE LOADING, REPORTING, OR 

FAILURE TO REPORT INFORMATION COULD CAUSE ISSUES 

WITH AIRCRAFT PERFORMANCE AND HANDLING, RESULTING 

IN THE ENDANGERMENT OF HUMAN LIFE. 

FAA CaseNos.:20llNM060010and 201INM060011 

SKYWEST AIRLINES, INC.'S FIRST AMENDED ANSWER 
10. In response to Paragraph 10, SKYWEST admits that on November 17, 2010, at Denver 

International Airport (DEN), Denver, Colorado, SKYWEST loaded passengers and 

baggage onto N702SK, to be operated as Flight 6573 bound for Yampa Valley Airport 

{!-IDN),Hayden Colorado. 

11. In response to Paragraph 11, SKYWEST admits that SKYWEST's personnel at DEN 

loaded three (3) heavy checked bags, marked with a heavy bag tag, onto the aircraft, but 

did not account for two (2) of them on the CLR for Flight 6573. 

2. In response to Paragraph 12. SKYWEST admits that SKYWEST thereafter operated 

N702SK as Flight 6573 10 HDN. 

3. In response to Paragraph 13, SKYWEST is without sufficient information or knowledge 

from which to form a belief as to the truth of the allegation and therefore denies each and 

every, all and singular, allegations contained therein, and each and ever}' part thereof, both 

generally and specifically, conjunctively and disjunctively. 

!4. in response to Section iii, paragraphs 1 (a) - (e), 2 and 3, SK YWES r denies each and 

ever>', all and singular, allegations contained therein, and each and ever>' part thereof, both 

generally and specifically, conjunctively and disjunctively. 

5. in response to Section iii, paragraph 2, SKYWEST denies each and every, ail and singular, 

allegations contained therein, and each and every part thereof, both generally and 

specifically, conjunctively and disjunctively. 

FAA Case Nos.; 201INM06UU10 and 2011 NM0600n 

SKYWEST AIRLINES, INC.'S FIRST AMENDED ANSWER 
16. In response to Section 111, paragraph 3, SKYWEST denies each and every', all and singular, 

allegations contained therein, and each and every part thereof, both generally and 

specifically, conjunctively and disjunctively. 

FAA Case No. 2011NM060011 

I. 

SKYWEST admits that it was advised through a Final Notice of Proposed Civil Penalty, 

FAA Case No. 201 ]NM0600i 1. tiial tiie Compiainani propo.sed to assess a civil penalty in the 

amount of $99,000, and on May 31, 20II SKYWEST submitted a uTiiten request for a hearing. 

11. 

1. In response to Paragraph 1, SKYWEST admits that it is now and was at all limes material 

hereto, the holder of Scheduled Air Carrier Certificate No. SWIAOI 1 A, and conducts its 

operations pursuant lo Part 121 ofthe Federal Aviation Regulations (FAR). 

2. In response to Paragraph 2, SKYWEST admits that Paragraph D085 of SKYWEST's 

Operations Specifications (Op Specs) authorizes SKYWEST to use N410SW, a 

Bombardier CL-600-2B19 civil aircraft, in the conduct of SKYWEST's Part 121 

operations. 

FAA Case Nos.: 201INMU600IO and 2UI1NM060UM 

SKYWEST AIRLINES, INC.'S FIRST AMENDED ANSWER 
3. In response to Paragraph 3, SKYWEST admits that Paragraph D085 of SKYWEST's 

OpSpecs authorizes SKYWEST to use N984CA. a Bombardier CL-600-2B19 civil 

aircraft, in the conduct of SKYWEST's Part 121 operations. 

4. In response; to Paragraph 4, SKYWEST admits that Paragraph D085 of SKYWES'F's 

OpSpecs authorizes SKYWEST to use N41ISW, a Bombardier CL-600-2B19 civil 

aircraft, in the conduct of SKYWEST's Part 121 operations. 

5. In responst; to Paragraph 5, SKYWES'F admits that Paragraph A098 of SKYWEST's 

OpSpecs rt.'quire that aircraft loading for Bombardier CL-600-2B19 aircraft be 

accomplished in accordance wjib SKYWEST's Weight <t J3a)ance Operations Mainial, 

SP4100, Piirt Xll, revision Orig of 1 APR 10 (W&B Manual). 

6. In responst^ to Paragraph 6, SKYWEST admits that SKYWEST's W&B Manual contains 

the loading schedules and instructions for SKYWEST's Bombardier CL-600^2B19 

aircraft. 

7. In response lo Paragraph 7, SKYWEST admits that SKYWEST's W&B Manual, Chapter 

2, paragraph 58 defines "Standard Cheeked Bags"' as any bag weighing 50 pounds or less. 

8. In response; to Paragraph 8, SKYWEST's W&B Manual, Chapter 2, paragraph 50 defines 

"Planeside Valet" as equivalent to a Planeside Loaded Bag or Service Item. 

9. In response; lo Paragraph 9, SKYWEST admits that SKYWEST's W&B Manual, Chapter 

2, paragraph 49 defines "Piancside Loaded Bag" as any bag or ffcm ihai is placed af (h^ 

FAA Ciise Nos.: 201INM06UUI0 and 2011NM060011 

SKYWEST AIRLINES. INC.'S FIRST AMENDED ANSWER 
door or steps of an aircraft or in the passenger loading bridge and subsequently placed in 

the aircraft cargo bin/pit. 

10. In response to Paragraph 10, SKYWEST admits that SKYWEST's W&B Manual, 

Chapter 2, paragraph 2.A.24 defines "Heavy Checked Bags" as any bag weighing more 

than 50 pounds, but less than 100 pounds. 

11. In response to Paragraph 1 I, SKYWEST admits that SKYWEST's W&B Manual, 

Chapter 3, paragraph 2.D. i requires the loading agent to maric the number ofstandard 

and heavy bags on the Cargo Load Report (CLR). 

12. In response lo Paragraph 12. SKYWEST admits that SKYWESTs W&B Manual, 

Chapter 3. paragraph 2.1.2 requires the loading agent to verify the piece count of all 

Standard Cheeked, lleavy Checked, and planeside Loaded/Service Item Baggage upon 

complefion of loading. 

13. In response to Paragraph 13, SKYWEST admits that SKYWEST's W&B Manual, 

Chapter 4, paragraph 8.8 requires the loading agent to uTite the total number of Standard 

Cheeked Baggage loaded in each cargo bin on the CLR in the "Standard Cheeked" block. 

14. In response lo Paragraph 14, SKYWEST admits thai SKYWEST's W&B Manual, 

Chapter 4, paragraph 8.9 requires the loading agent lo write the total number of Heavy 

Checked Baggage loaded in each cargo bin on the CLR in the "Heavy Checked*' block. 

5. In response to Paragraph 15, SKYWEST admits that SKYWESPs W&B Manual, 

Chapter 4, paragraph 8.10 requires the loading agent to write the loial number of 

FAA Case Nos.: 201INM0600IO and 2011 NMU600II 

SKYWEST AIRLINES, INC.'S FIRST AMENDED ANSWER 
planeside valet baggage loaded in each cargo bin on ihe CLR in the "Planeside 

Valet/Service Items" block. 

16. in response to Paragraph 16, SKYWEST admits that SKYWEST's W&B Manual 

Chapter 4, paragraph 1 1 - Aircraft Loading, contains the warning: 

/ 3 WARNING - INACCURATE LOADING, REPORTING, OR 

FAILURE TO REPORT INFORMATION COULD CAUSE ISSUES 

WITH AIRCRAFT PERFORMANCE AND HANDLING. RESULTING 

IN THE ENDANGERMENT OF HUMAN LIFE. 

7. In response lo Paragraph 17. SKYWEST admits that on November 22, 2010. at Billings 

Logan International Airport (BIL). Billings. Montana, SKYWEST loaded passengers and 

baggage onto N410SW, to be operated as Flight 4659 bound for Salt Lake City 

International Airport (SLC), Salt Lake City, Utah. 

8. In response to i*aragraph 18, SKYWEST is without sufficient information or knowledge 

from which to form a belief as to the truth ofthe allegation that SKYWEST's personnel 

at BIL loaded 38 Standard Checked Bags, and two Heavy Checked Bags marked with a 

Heavy Bag Tag, onto N4I0SW and therefore denies each and every, all and singular, 

allegations contained therein, and each and every part thereof, both generally and 

specitleally, conjunctively and disjunctively. 

FAA Case Nos.: 2011NMU600IO and 20IINM0600II 

SKYWEST AIRLINES, INC.'S FIRST AMENDED ANSWER 
19. In response to Paragraph 19, SKYWEST admits that the CLR for Plight 4659 listed "40 

Standard Checked Bags" and "0 Heavy Checked Bags on board N410SW" 

20. In response to Paragraph 20, SKYWEST admits that it operated N410SW as Flight 4659 

lo SLC. 

IV. 

21. In response to Paragraph 21, SKYWEST admits thai on December 14, 2010, at Los 

Angeles International Airport (LAX), Los Angeles, California, SKYWES'F loaded 

passengers and baggage onto N984CA, lo be operated as Flight 6692 bound for San 

Diego Inlernational Airport (SAN), San Diego, California. * 

22. In response to Paragraph 22, SKYWES'F is without sufficient informaiion or knowledge 

irom which lo form a beiiel'as lo ihe irulh ofthe allegation that SKYWEST's personnel 

at LAX loaded 19 Standard Cheeked Bags, and one Heavy Checked Bag marked with a 

Heavy Bag Tag, onto N984CA, and therefore denies each and every, all and singular, 

allegations contained therein, and each and every part thereof, both generally and 

specifically, conjunctively and disjunctively. 

23. In response to Paragraph 23, SKYWEST admits that the CLR for Flight 6692 listed "20 

Standard Bags" and "'5 Heavy Bags" on board. 

24. In response to Paragraph 24, SKYWEST admits that it operated N984CA as Flight 6692 

to SAN. 

V. 

FAA Case Nos.: 201INM0600I0 and 20IINM06001I 

SKYWEST AIRLINES, INC.'S FIRST AMENDED ANSWER 
25. In response to Paragraph 25, SKYWEST admits that on December 15, 2010. at LAX, 

SKYWES'f loaded passengers and baggage onto N41 ISW. to be operated as Flight 4800 

bound for SAN. 

26. In response to Paragraph 26, SKYWEST is without sufncienl information or knowledge 

from which to I'onn a belief as to the truth ofthe allegation that SKYWES I's personnel 

at LAX loaded 43 Standard Checked Bags, for Heavy Checked Bags marked with a 

Heavy Bag Tag. and 12 planeside valet bags onto N4I ISW and therefore denies each and 

ever>', all and singular, allegations contained therein, and each and every part thereof, 

both generally and specifically, conjunctively and disjunctively. 

27. In response lo Paragraph 27, SKYWES'f admits that the CLR for Flight 4800 listed '-59 

Standard Checked Bags", "0 Heavy Checked Bags", and ''0'" planeside valet bags on 

board''. 

28. In response to Paragraph 28, SKYWEST admits that it operated N41 1SW as Flight 4800 

to SAN. 

VI. 

29. In response lo Section VL paragraphs 1 (a) - (e), 2 and 3, SKYWEST denies each and 

ever>', all and singular, allegations contained therein, and each and ever}' part thereof, 

both generally and specifically, conjunctively and disjunctively. 

FAA Case Nos.: 201INM060UI0 and 2OI1NM06U011 

SKYWEST AIRLINES, INC.'S FIRST AMENDED ANSWER 

10 
30. In response lo Section VI, paragraph 2, SKYWEST denies each and ever>'. all and 

singular, allegations contained therein, and each and every part thereof, both generally 

and specifically, conjunctively and disjunctively. 

31. In response to Section VI, paragraph 3, SKYWES'l" denies each and every, all and 

singular, allegations contained therein, and each and every part thereof, both generally 

and specifically, conjunctively and disjunctively. 

AFFIRMATIVE DEFENSES 

FAA Case Nos. 20nNM060010 and 20nNM060011 

FIRST AFFIRMATIVE DEFENSE 

As and for a separate and distinct defense. SKYWEST alleges: 

1. 

'Fhe sanction sought by Complainant is unwarranted by the facts, safety in commerce and the 

public interest and is not only excessive, but, far exceeds policy, precedent and Complainant's 

own Sanction Guidance Table. Further, the sanction is compounded, in violation ofthe 

Complainant's own Sanction Guidance Table. 

SECOND AFFIRMATIVE DEFENSE 

As and for a separate distinct defense, SKYWEST alleges: 

FAA Case Nos.: 2UII NM060UI0 and 2011NM06U0II 

SKYWEST AIRLINES, INC.'S FIRST AMENDED ANSWER 

II 
The Complainant's ease, is unwarranted and without basis or jurisdiction in law or fact. 

THIRD AFFIRMATIVE DEFENSE 

As and for a separate distinct defense, SKYWEST alleges: 

I. 

Fhe complained of aircraft weight differentials, if any, were nominal at best and had 

absolutely no effect on aircrafi center of gravity, performance, performance computations or 

safety. 

FOURTH AFFIRMATIVE DEFENSE 

As and for a separate distinct defense, SKYWEST alleges: 

I. 

SKYWES'f has proactively mitigated any and all damage such that this action is 

unwaiTanted by policy or the need for safety. Specifically, SKYWEST has: 

i. Counseled all personnel involved in the loading and counting ofthe bags following 

each ofthe alleged incidents; 

ii. Issued SKYWEST Customer Service Training Bulletin 2010-14. Designated Loading 

Agent Responsibilities, directed al providing additional training in avoiding bag count 

discrepancies; 

iii. Issued SKYWEST Customer Ser\'ice Training Bulletin 2010-04, Aircraft Loading 

Procedures, directed at providing additional training in avoiding bag count 

discrepancies; 

iv. Updated and revised the aircraft loading procedures set forth in its Station Operations 

FAA Case Nos.: 2011NM0600IU and 201INM0600II 

SKYWEST AIRLINES, INC.'S FIRST AMENDED ANSWER 

12 
Manual SP 5500 to specifically address said problems and ensure future compliance; 

V. Implemented initiatives lo ensure all stations are physically staffed to allow one agent 

to directly account for the aircrafi loading process on each SKYWEST Might, to 

ensure accurate physical baggage counts, cargo weights, and weight and balance 

communication with fiight deck crews; 

vi. Performed internal evaluations of cargo load reporting and determined that 

compliance had been achieved. 

FIFTH AFFIRMATIVE DEFENSE 

As and ibr a separate distinct defense, SKYWES'F alleges: 

I. 

The average weight programs contemplated by AC120-27E fully acknowledges that the 

use of actual baggage and passenger weights are impractical, and by their ver>' nature, permit 

discrepancies between what is contained in the load manifest and the actual weight ofthe 

aircrafi. 

SIXl H AFFIRMATIVE DEFENSE 

As and for a separate distinct defense, SKYWES'F alleges: 

L 

Any and all discrepancies upon which these actions are based are the product of simple 

fuiman arithmetic error and in no way are indicative of SKYWEST's regulatory compliance 

disposition as all relevant employees were adequately trained and qualified and have since 

received additional training and internal audits have shown adequate compliance levels has been 

FAA Case Nos.: 201INM060010 and 2011NM06U0II 

SKYWEST AIRLINES, INC.'S FIRST AMENDED ANSWER 

13 
reached. 

SEVENTH AFFIRMATIVE DEFENSE 

As and for a separate distinct defense. SKYWEST alleges: 

1. 

SKYWEST has taken all necessary corrective actions to avoid repeated mishaps such that 

additional penalties are redundant and will not result in any increase in safety. 

WHEREFORE, it is prayed that the Administrative Law Judge not enter an order that 

SKYWEST be assessed civil penalties in the amount of $33,000.00 and $99,000.00, respeeiively. 

Or in any other amount; that the Complaints be dismissed with prejudice; and for such other and 

further relief as may be deemed appropriate. 

DATE D this l l"' dav of October. 2011. 

lael L. Dworkii 

Co-Counsel for SKYWEST Airlines 

FAA Case Nos.: 201INM0600I0 and 20I1NM060011 

SKYWEST AIRLINES. INC.'S FIRS1 AMENDED ANSWER 

14 
CERTIFICATE OF SERVICE 

'Fhe undersigned hereby certifies that on this 11'^ day of October, 201 I, a true and correct 

copy ofthe foregoing SKYWEST'S FIRST AMENDED ANSWER AND AFFIRMATIVE 

DEFENSES was served as follows: 

The Flonorable Richard C. Goodwin Jeffrey M. Harper 

Office of Hearings, M-20 Federal Aviation Administration 

1200 New Jersey Avenue, S.E. Northwest Mountain Region. ANM-7 

East Building Ground Floor, Room EI2- 1601 Lind Avenue S.W. 

320 Renton, Washington 98057 

Washington, D.C. 20590 FAX (425) 227-1007 

J hederal Lxpress) (HicslfHi/e and Federal Express} 

Federal Aviation Administration 

800 Independence Avenue SW 

Washington, DC 20591 

.^ttn: Hearing Docket Clerk. AGC-430 

Wilbur Wright Building-Suite 2W1000 

{Federal Express] 

Sheri L. Becker 

FAA Case Nos.: 201INM0600I0 and 201INM060011 

SKVWEST AIRLINES, INC.'S FIRST AMENDED ANSWER 

15