ANM7



### FACSIMILE MESSAGE 

### KyleE. Lomazow FED.ERAL AVIATION ADMINISTRATION OFFICE OF REGIONAL COUNSEL ANM-7 1601 LIND AVENUE S.W. RENTON, WASaJNGTON 98057 PAGE 01/12



### The infom1ation contained inthis facsimile message .is legally privileged and confidential information and is intended only :for the use ofthe individual named onthis cover sheet. Ifthe readero:fthis message is not the intended recipient, you are hereby notified that any use, dissemination, distribution, or copy ofthis facsimile is strictly prohibited. If**yo~l** 

### have received this facsimile in error, please immediately notify us 

### by telephone at 425-227-2007.



## DATE:
TO:


## FAXNO.: PHONE NO.:



## RE: March 14, 2013
Federal 

## Aviation Administration 

## 202-493-5142

SKYWEST AIRLlNES DMS No. FAA-2011-0782 FAA 2010NM060081 

# Complainant's Reply Brief NO. PAGES: 

## FROM:
FAX NO.: PHONE NO.: EMAIL: 

## 12 including cover 

## Kyle E. Lomazow. 425-227-1007 425-227-1847 Kyle.lomazow@faa.gov03/14/2013 08:15 4252271007 ANM7

1 Kyle E. Lomazow 2 FAA Office ofRegional Counsel 3 

### 1601 Li.nd Ave., SW • Renton, Washington 98057 s Telephone: (425) 227-1847 

### e Facsimile: (425) 227-1007 7 B 9 10 11 12 13 14 15 

### UNITED STATES OF AMERICA 

### FEDERAL AVIATION ADMINISTRATlON OFFICE OF HEARINGS

WASHINGTON, D.C.

16 Inthe Matter of 17 DMS NO. FAA-20ll-0782 1s SKYWEST AIRLINES, INC. FAA Case No. 2010NM060081 19 20 21 12 23 24 25 26 27 

### a 29 30 31 32 33 34 35 36 37 36 39 40 41 42 

# ,, 4'1: COMPLAINANT'S REPLY BRIEF



### INTRODUCl'lON SkyWest Airlines has attempted to mislead the court with false, mislcadi.ng and contradictory statements. They have also attempted to impugn the Federal .Aviation
Administration's (FAA) reporting inspector, insinuating that he alone perceived a violation,
and then acted unilaterally in proccssi.ng the enforcement action.

What led to this enforcement action i.s SkyWest'sattempt to find a creative way to
clear a system/component fault 

### indication without employing the time consuming, troubleshooting processes outlined 

### by Bombardier and incorporated into the Sky West

45 maintenanceprogram. Each flight conducted under such practices is an experiment ofsorts, 46 4 7 with unsuspectingpassengers on board the subject aircraft. 48 49 so 51**5~** 53 COMPLAWlVJT' S REPLY Hl?J\.RING**P..RT~l? fiT~Y"Wi!.ST**  .AIP.LINl\.0::- lff.lMS WO Fi\i\-20:i,l-075!2 FAA CnsE No. 2010NM060081 Page J. of ll TEL:**(4~5)227-1847i** FAX1 (425)227-1007PAGE 02/1203/14/2013 08:15 4252271007**AN~17**

1 2 3 4 5 The facts in this case are relatively straightforward:

6 L A fully qualified and competentpilot, trained under the SkyWest Airlines pilot
7 8 9 10 ll J.2 13 14 training program aborted the takeoffbecause ofa fault indication. SkyWest has
asserted that the pilot's action.s were the re<mlt ofincompetence orbadjudgment. We vehemently disagree.

' 5 2. The pilot made an entry in the aircraft maintenance log describing the observed 16 17 18 19 20 21 22 23 24 25 26 27 28

30 31 32 3J 34 35 36 37 38**3~** 40 4). 42 43 44 45 46 47 <8 49 50 Sl 52 53 mechanical irregularity, as required by 14 C.F.R., 

### l'art I21.563 and SkyWest's flight oper,ations procedures. Again, SkyWest insists the pilot's entry was an error, driven by the pilot's incompetence and lack of judgment,
3. Given the aborted takeoffand maintenance log entry by the pilot, SkyWest was obligated by regulation, operations specifications and their maintenance program to effectively isolated and cm1·ect the cause ofthe indicated fa11it. Sky West asserts their
maintenance program merely represents their core maintenance procedures and that they arc notbinding.
4. SkyWest Airlines argues that q11allfied mechanics and maintenance controllers have
the artistic license to create new maintenance procedures on an ad hoc basis as a particular maintenance scenario may dictate. We disagree.
5. SkyWestAirlines argues that excerpts from the ai'1Jlane flight manual (QRH) are perfectly suited to the performance ofmain.ten.anoe because they were produced by
Bombardier. It is the FAA's position thatthe QRH was not developed or intended to**COM?L~lNhNt'S REPL~** **HEAR~NG D~T~F**  S!<YWSST**ATRT..!N"R.~-** FDMS No**F'AA~2011** .. 0782 'S-AP. D\SE No, 2010NM06003], P.a.ge 2 ot 1,**~-** /{)'f.,P. F:. LDlM.ZCW 1 FF/>.A ATTORNEY

TEJ..<: (112!;;)227-11::41;**~AX:** (425)2?.7-JOO? PAGE 03/1203/14/2013 08:15 4252271007 ANH7

1 

# , 3 ! 0 6 7 8 9 ), 0 11 12 13 ], 1.\ 15 16 11 18 19 be used "in lieu" ofmaintenance or for the expeditious elimination offault
indications.
6. SkyWest Airlines insists the subject aircraft was not unairworthy. It is the FAA's position that the aircraft was indeed operated in an unairworthy condition boca11se it
did not conform to its type design with inoperative systems/components, even ifthe
failures were, initially, intermittent The FAA also cites US Air vs. FAA in which the
ALJ found that an aircraft subject to a legally required inspection (fault isolation procedures) is "unairworthy" when operated withoutthebenefit ofthe inspection.**~o** 7, SkyWe$t**Airline~** suggests the fact that the subject aircraft required extensive 21 22 23 24 25 

### zo 27 2S 29 30 31 32 33 34 3S 36 37 38 39 40 41 42 43 H 45**~6** 47 48 <9 50 51 52 maintenance to finally return tho aircraft to service was merely a coi.ucidence.ltis the
FAA's positionthatthe failures were the cause ofthe original aborted takeoffand
aircraft maintenance record eotry by thepilot
8. SkyWest claims the FAA failed to prove noncompliance with 14 C,F.R., Part 43.l3(a), Wenote the FAA's case docs not allege noncompliance with .1 4 C.F.R., Part 43, 13(a). To SkyWest's "point" about failing to showtheir actions "in lieu" of
maintenance were not "unacceptable"; we find their assertion moot. The primary
violation is SkyWest's failu'e to perform maintenance in accordance with their
maintenance**progr~m** and associated operations specifications. By their own admission, they did not perform maintenance, whi.ch lead to the violations oftheir operations specifications and operation ofan 1mairworthy aircraft. 9, Pinally, unable to challenge the FAA's case onthe facts, SkyWest Airlines' erroneously stated this enforcement action 

### is theresult ofthe actions ofa lone and

COMI?Lli.INANT 1s REPLY .tlflARING B:<IE:.f' Sr<YWF;51' 1\rR'LINES
- FDt1S NO FAA-20J.l-07f.l).: FAA CMt:; No. 2010NM060081 Page J of 11**'1'E:J,.~** (1'125)227-1947; ?P.X: (42.5)?,?,7-1007 PAGE 04/1203/14/2013 08:15 4252271007 ANM7 PAGE 05/12

1 2 3 4 s 

# ' 7 8 9 10 11 l:?. l3 14 15 16 uninformed FAA safety inspector (Gerhing). Forthe record, the FAA notes this
enforcement action was subject to same due process and scrutiny as any other, That being the case, no fewer than 

### 1 0 managers, supervisors, technical experts and attorneys concurs with the reporting inspector's allegations in this case.



### ARGUM.ENT

17 

### DISCREPANCYvs. MALFUNCTION 18 19 co 21 22 23 24 25 26 27 28 29 30 The catalyst for maintenance action by 

### SkyWest should havebeen the aborted takeoff, the mechani.cal inegularity entered in the aircraft**maintcnanc~** log by the flight crew, the
fundamental requirements ofthe SkyWest maintenance program (their CAMP) and federal regulations. The semantics of"discrepancy" vs. "malfunction" serve no purpose in this
discussion. However, ifSkyWesthad taken the aircraft out ofservice in response to the

31 aborted take-offand maintenance log cntly by the Sk-yWest flight crew, they would have 32 33 34 35 36 37 

# " 39 40 41 42 43 44 discovered and corrected the system/component failures as they eventually did when tl1ey
realized the QRH "reset" was ineffective.
The system/component failures and associated corrective actions that occurred the following day are indisputable evidence that the subject aircraft was experienci.ng problems (mechanical irregularities) as observed, and reported by the flight crewpreviously. The flight

45 crew was properly certificated, rated, trained and qualified to fly this aircraft, and they did 46 47 as 49 exactly what they were supposed to do, given their training. Pilots are required to report what

50 they have observed, heard, felt, etc., in the maintenan.ce log ofthe aircraft. They are not 51 52 53 COMPLAINANT'S**R~PL¥ H~A~INQ** **B~~F.F** SKYWRS:r' 7\J:RT.:!I:'l!i!.S:- PTJMS NO F'A'A-201l-0'791 PAA Cl>.!flil No. 2010NM060081 !?age 4 of 11 KYL-E El. t..Oli'I.!\ZOW 1 FAA ATTORNEY**TBL~ (<;i-25)227-~.947;**  FAX: (<\?.5)2/,7-100703/14/2013 08:15 4252271007 ANH7

1 2 3 4 5 required to diagnose the problem (once on the ground) or to sort various mechanical irregularities into categories (some requiring action

...somc not). They simply observe (lnd

6 report. Onthe other hand, maintenance personnel have the responsibility notto train pilots
7 B 

# ' 10 ll 12 13 14 over the telephone, but to follow prescribed (operations specifications) maintenance and inspection processes to determine the cause ofthe reported mechanical irregularity. Once the

nature ofa reported failure or malfunction is verified, maintenance personnel must either

15 correct the problem orproperly defer maintenance via MEL prior to approving the aircraft for 16 17 18 19 20 return to service or issuing a dispatch release.



### n OPERATIONAL MANUALS ARE NOT MEANT FORMAINTENANCE 22 23 14 25 26 27 28 29 30 Jl 

### n J3 SkyWest is authorized to conduct operations under 14 C.F.R, Part 121 ifthey
maintain their aircraft is accordance with their CAMP. There is no provision for avoiding
maintenance by using flight operation manuals. Complainant has no objection to use ofthe QRH in the appropriate context. However, Complainru1t does not condonethe use ofthe

34 QRH in lieu ofmaintenance simply to avoid flight delays. TI1e Complaintbrought in this case 35 36 

### :l7 

# " 39 40 is not about what WAS done, but what was NOT done. Maintenance was required and it was
not performed. The aircraftwas flown 8times with passengers on board while the QRH

41 experiment was in process. This experiment failed the following day lca.ving SkyWest no

50 5J. 5?, 53 option, but to invoke the maintenance program, and replace the defective components. SkyWest further argues that a manufacturer's maintenance manual cannot envision
every malfunction or scenario that will occur to the aircraft during operation. The problem
with that line ofthinldng is that Bombardier did in tact envision the mechanical problem

CQMPLAINANT 1 S ReFLY HEARING BRISt S!C(WEST' AJ;Rt.;m;:s - F'DM$ No**F.A!-\.~2011·"0782** FA.Il,. C11.St: No. 2010NM060081 Page 5 of 11 TEL: (425)227·1847;**P.~:** (425)227-1007PAGE 05/1203/14/2013 08:15 425227W07 ANH7

1 reported by SkyWest's flight crew and Bombardier did provide maintenance instructions



# , 4 5 6 7 necessary to detect and correct the system/component failures.' SkyWest also makes the extremely false argumentthatthe QRH is in fact part oftheir

a CAMP by referencing Standard l'ractice l'orrn 8600. 2 However, as SkyWest is fully aware, 9 10 :u, 12 13 Standard Practice 8600 allows for the use ofthe QRH in flight as indicatedby the language,
''Once the QRH procedure, ifapplicable, 

### is accomplished, the PIC (Pilot in Command) refers

15 to the MELICDL/NEF to make the following decision:" One ofthose options is "retur!l for 16 l.7 18 19 ?.0 21 22 

### n 24 25 26 27 28 29 30 31 

### n 33 34 35 36 37 maintcnan.cc," which is exactly what the Captain ofthis :Bight did. Inother words, Standard
Practi.ce 8600 allows a pilotto reference the QRHfor in,flight issues, which is exactlywhat Complainanthas argued aU along, To arguethat Standard Practice 8600 authorizes the QRH
for maintenance as well reads into the document what is absolutely notthere.



### USE OF THE ORH TO PERFORM MAINTENANCE

Themethods, techniques and practices set forth in 

### SkyWest's CAMP are indeed those
tbe FAA deems "acceptable." SkyWestis required to adhere to their maintenan.ce program in
accordance with 14 C.F.R., Part l19.5(g). The notion that line mechanics, maintenance
38 3

### ~ 

## lcontrollers or anyone else can dream up othermethods, techniques an.d practices for a given 10 n 42 43 H 45 maintenance scenario is not only incorrect, but dangerous. SkyWest, as it knows, may at their discreti.on, specify alternative procedures, however, those procedures mustbe included in

,. maintenance program documents and incorporated into operations specifications, paragraph 47 48 49 50 51**~** See Exhibits C-3 a.nd C-r:t 5:2**::~** R@.apondent.'s Brief,**pa~e** G. 53 COM'PT.,Jl.!N]l.liT' S RZPL.Y HRARIN13**B~tlElF** SKYWRST**AIRLINE~** - E'LiMS No FAA..**2011~** 0782 P.M C.!J.,SE No. 20l0N!'-10(.'IQ09;L**P~ge** (I of 11 TEL: (425)227-1847; FAX: (425)227-10{)7 PAGE 07/1203/14/2013 08:15 4252271007 ANM7

1 D072. In other words, SkyWest maintenance workers cannot simply make it up as they go

3 4 aloog.

6 THE AIRCRAFT WAS NOT AIRWORTHY BETWEEN MAY 30 AND JUNE 1, 2010. 7 a Ironically, SkyWest seems to be makingComplainant's point in their Brief Tf 

# , 10 11 J.2 SkyWest would have followed the requirements oftheir CAMP whenthe mechanical

13**irrcgul~rity** was li.rst reported 

### by the Sb:yWest flight crew, the solution would/should have 14 1s been found and executed without subjecting unsuspecting passengers to what amounted to 16 17 18 19 test flights. To suggest the preceding failures and aborted take-offwere coincidental in the

20 context ofthe eventual resolution ofthc failed system/components is unsupportable. 21 22 23 24 25 26 

### on 28 29 30 

### o1 32 33 34 35 36 37 38 39 40 41 42

44 45 46 In support ofthis argument in their hearing**briet~** SkyWest included part ofthe transcript on Page 82-83, but ended with Inspecto; Gehring answering "No," on page 83. However, what SkyWest failed to include is the .rest ofInspector Gehrings testimony, which
follows:


### Q: Exactly. Becauseit's a known condition ofthe aircraft that will happen if you. advance the throttle too quickly. Isn'tthat true?
A: No. You advance tbe throttle slowly. You don't spike the system. Tbe system is still supposed to operate. Now the flight crew did a- - they told everybody, according to the interviews, that they did a normal openbleed takeoff, so 

### it should work. And it gives them a message, ittells them what to do ifthey do that But this pilot had one pack iu op and the other pack shut down on him. And the flight crew made the command decisionthat the airplane was needed to stop so they aborted that takeoff. 3

47 Here is further testimony from the same line ofquestioning: 48 49 50 5J. S'- 3 Tr at 82-84, l.;l.ne:s 12

- 6. 

# ,,**COM~LAINANT'S** REPLY HEAR!NG BRIEF $l{VWR!=:T AIRLIN<:S

- FDMS NO "f,?,AA-/,Oll-Cl'?8:2 FAA CADE No. 2010NM060081 P.8ge 7 of 11**TEJ.,~ {425)'2.~7-1347;**  FAX: (4/,l:i) 22.7-lOC?PAGE 08/1203/14/2013 08:15 4252271007 ANM7

1 

# , 3 4 5 0 7 8 9 l,Q 11 l2 j_J 14 15 16 17 18**1~** 20 21 22 23 2< 2S Q: But it's your testimony that not in the MEL or GMM or any other awroved or accepted document is it akDow:n condition ofthis aircraft that ifyou accelerated too**qui~kly** with one air conditioning pack deferred it will spike the pressure, latch a fault, That's not a known condition? A: It's not aknown condition, Nowhere in the manuals does it say that this is a known condition, SkyWest offered no evidence inthe form ofmanuals indicating this is a knovm
condition or any testimony from their mechanics to support this belief. In essence, SkyWest's argument is thatthis is a knowncondition because SkyWest says it is.

1SKYWEST'S CAMP ADDRESSES THE DISCREPANCY JN DETAlL

The Fault Isolation Manual (FIM) is part ofSkyWest's camp and 

### they are arguing in

essence that they shouldn't have to follow their CAMP under the vague assertion 

### that it is not
detailed enough, SkyWest cannot allow their maintenance workers to conclude on their own

27 that a maintenance manual is not detailed enough for obvious reasons, IfSkyWest was 28 ?,9 30 31. )2 33 J4 35 36 37 38 19 40 41 <2 <'l 44 45 46 47 48 49 

### so 51 52 allowed such leeway then there would be no usefor a CAMP at all,


### lN THE l'r.lA

### TTER OF 

### USAIR IS APPLICABLE Comrary to what SkyWest would like to believe, In the Matter ofUSAJR, INC., 

### J996 I. WL 509037, Docket No, CP94EA0045 is applicable for the reasons stated in Complaimmt's
initial Briefand the reasons stated below, The USAir case is not only applicable, butvery similarto the fact pattern here. Just as SkyWest argues that they did not need to follow the
Fault ]solation Manual because it was not detailed enough, the Respondent in USAir made a similar argument in. ordertojustifY not Llsing the maintenance manual in that case, However,
the Administrator disagreed, stating that: "Although USAir may disagree with Boeing, the alrplanc manufacturer, about whether the melting ofa wheel fuse plug is a good indicator ofwhether

COMPL.r'\IN,\Nf'-S REPLY**Hl?.~~I~O** fiiRIEF SKYWEST :?\l;IH.TN"I?.."J - FDMS No FAA-2011-07!32 FAA CASE: hlo. 2010N1-l06008l. !?age 9 of 11 KYL..E E, LOI•lJi.ZOt.<, fi'{l\}:j. .i\TTOI'.NEY

TEL:**(1125)227~1847;** FAX: (tJ?,5)2:a7-100703/14/2013 08:15 4252271007 ANH7

1 2 3 4 5 6 7 a high energy condition has occurred; USAir is bound to follow che manufacturer's manuaL

......USAir'sbriefsuggests thatthe manual needs to provide certainty as to whether heat damage has occurred, but the argument makes no sense. The purpose ofthe inspection is to determine whetherheat dan:tage has occurred."**l,f.~ir** at 

### 4.

s Similarto our case here, the purpose ofthe Fault Isolation Manual and the Aircraft 9 10 :u 12 13 

### u :L5 16 17 ).8 19 20 n 22 23 24 ?.5 26 27 ?.8 29 30 31 32 33 .34 35 36 37 38 39 40 H 42 0 44 45 46 

# '" 48 49 50 51 .S?. 53 Maintenance Manual is to isolate the component that 

### is failing and provide a remedy.
USAir held that "an aircraft thathas flown withoutrequiredinspections is not 'airworthy' withinthe meaning ofthe Federal Aviation Act, as amended, simply because it is
later found to he undamaged." That rationale applies here as well. Considering the problems
withthe aircraft that resulted afterwards and the major maintenance that wa.s 'equiredto repair the aircraft, the difference between the present case and the USAir case is that SkyWest's aircraft was in fact arguably damaged as a result o.ffailing to perform maintenance

as per theirCAMP.



### CONCLUSION
SkyWestused a flight operations manual in lieu offollowing their CAMP and as a result they operated an aircraft 8times in an unairworthy condition. That is what this case is
about and that is what Complainant has proven. Air cardershave a GMM for a reason and they cannotbe allowed to come with excuses for notfollowing their maintenance program whenever it suitsthem. That is what SkyWest did here and that is why they must be held

COMPT,,AINAN'T 1 $ Rr:.?r..Y H::MING BIUCTI" SK'!WEsT A.rRLrN:::s- FDNS No FAA ·2011-0782 !fAA Cl\St No. :2010NM060081. P.age '.1 of 11 !<HE r::. LOM.'\ZOW I fAA**A'l''l'OR~18Y**

TeL, (425)227-1847; FAX' (425)227-1007 PAGE 10/1203/14/2013 08:15 4252271007 ANM7



## ,, 2 responsible fo1· violations of 14 C.FK, Parts 119.5(g), 119.5(1), 12l.l53(a)(2),

4 5 6 7 8 9 10 ll 121.709(b)(2)(i), and 121.605. As 

### SkyWest htis not conl:qted the sanction Complainant's request for the imposition of$68,500 should be afllrmed.



### '·" RESPECTFULLY SUBMITTED this 14'h 

### day ofMarch 2013. 13 I 14 >5 16 0 18 19 20 21 22 23 24 2S ::?.6 27 28 29 30 3), 32 30 34 35 30 37 38 39 40 4l 42 43 H 45 06 47 48 49 so S,1. / 

### ' 

### Kyle E. 

### Lomazow FAA A ttorncy**""'''"'"-.·~** '•

COMPLJ:dNI\N't"' S R.EI:l,\'.,)1**HI~A.RING** BRIBF**Sr<.Y[1Fll~·:· .Anu,w~.S-**  J;DMS N(\ FAJ"\-20ll-DI82 F;>.A C'h.<;r.: N().**2010NM0~0081.** Page 10 of 11 'T'E.L: (425}227-1847: FAX: (47.5):{.:;!7-1007 PAGE 11/1203/14/2013 08:15 4252271007 ANM7

l 2 3 

### CEETIJTICATE OF SERVICE

, I hereby certify that the 

### foregoing Complainant's Brief, has been served via Facsimile and s Certified Mallthis date, to the following: 6 7 B 

# ' 10 1.1 t2 :L:.l H ].5 16 17 18 19 20 :n 22 23 24 25 26 ?. '/ 28 29 30 31 32 33 :";.4 35 36 37 38**3~** 40 4**~.** 42 43 44 45 46 47 48 49 50 5:\, 52 53 The Honomble Richard C. Goodwin Office ofhearings, M,20 1200 New Jersey Avenue, S.E. East Bu.ilding Ground Floor, RmE12-320 Washington, D.C. 20590 FAX: (202) 366-7536

Fedeml Aviation Administration Attn: Hearing Docket Clerk, AGC-430 800 Independence AveSW Wllbu•· Wright**Bldg.~** Suite 2\V!OOO Washington, D.C. 20591 FAX: (202) 493·51.42 Todd C. Emerson SkyWest Airlines 444 S. River Road St George, Utah 84790 FAX: (435) 634·3505

Dated this 14111 day ofMarch, 2013.

COMF'LlltNJ\N1'' 8 RI\PT,Y HJ::?-i<ma f:'lln'S!' 

# -1n Mary A Smith Office o ·Regional Counsel 

### (ANM· 7) federal Aviation Administration 1601 Lind Ave. SW Renton, WA 98057 TEL: (425) 227-2925 fA.,'{: (425) 227-1007

SKY'I'IES"!' AI:l.LINL'i$
- FDMS No**FAA-20U.~078?.** PAA CJ\S£ NO, ?.OJ.QNMl.l60081 Page 11 o.C lJ,, TBI.t: (4::25):227-1847: F.I\X: (12S)227,.1007PAGE 12/12