### SERVED: April22,2015 U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, DC IN THE MATTER OF SKYWEST AIRLINES FAA DOCKET NO. [TO BE ASSIGNED] (Civil Penalty Action) FDMS NO. FAA-2012- 0777

INITIAL DECISION OF ADMINISTRATIVE LAW JUDGE 

### I. Glossary AML FAA FAR MEL OpSpecs SkyWest SP II. Introduction AircraftMaintenance Log Federal Aviation Administration, Complainant Federal Aviation ;J3.-egulations Minirimm Equipment List Operations Specifications SkyWest Airlines, Inc., Respondent Standard Practice i:

The parties submitted this matter on cross-motions forjudgment on the pleadings representing there were no genuine factual issues in dispute. The only issue before us is the assessment ofpenalty. III. Procedural History On June 25, 2012, SkyWest Airlines, Inc. (hereinafter "SkyWest") was advised through a Final Notice ofProposed Civil Penaltythat the Federal Aviation Administration (hereinafter "FAA") proposedto assess a civil penalty in the amount of $142,500 for violation ofFederal Aviationregulations. On June 29, 2012, SkyWest, through legal counsel, submitted a written request for a hearing. On July 13,2012, the FAAfiled a Complainant against SkyWest.

1OnAugust 13, 2012, SkyWestfiled its Answer and Affirmative Defenses. On January 30, 2014, the FAAfiled a Motion for Decision. OnMarch 20, 2014, SkyWestfiled its Rebuttal and Motion for Decision. OnMarch 27,2014, the FAA filed its Rebuttal to SkyWest's Motion for Decision. OnApril11, 2014, SkyWestfiled its Rebuttal to the FAA's March 27,2014 Rebuttal. Intheir pleadings, bothparties agreed: There was no genuine dispute as to any material fact onthe question of either liability or sanction; Becausethere was no genuine factual dispute, the case could be decided on cross Motions for Decision. IV. Hearing Theparties agreed to waive a hearing and submit issues on the pleadings. 1 TheFAAwas representedby Jeffrey M, Harper. SkyWest Airlines was represented byTodd C. Emerson. The matter is now ready for decision. V. Jurisdiction SkyWestwas at all times material hereto the holder ofScheduled Air Carrier Certificate No. SW1A011A, and conducted its operations pursuantto Part 121 ofthe Federal AviationRegulations (FAR). 2 VI. Burden ofProof The FAA was the petitioning party with the initial burden ofproof. VII. Allegations The FAA alleged SkyWest violatedthe following sections ofthe Federal Aviation Regulations (hereinafter "FAR"s) (14 C.F.R.):

1FAA "Motion for Decision" dated January 30, 2014; SkyWest "Rebuttal" dated April 11, 2014. 2 FAA "Motion for Decision" dated January 30, 2014; SkyWest "Answer and Affirmative Defenses", August 13, 2014. 2a. Section 119.5

### (g), inthat, as a direct air carrier, it operated in violation ofan appropriate Operations Specification. b. Section 119.5(1), in that it operated an aircraft under Part 121 in violation of its Operations Specifications.

c. Section 121.628(a)(5), in that it took offan airplane with inoperable equipment installed whenthe airplane was not operated under all applicable conditions and limitations contained in the MEL and the operations specifications authorizing use ofthe MEL. d. Section 121.605, in that 

### itdispatched orreleased an airplane that was unairworthy.

e. Section 121.153(a)(2), in that it operated an aircraft that was unairworthy. SkyWest acknowledged violations as set forth in its Answer. VIII. Issue We address only the issue ofthe amount·ofpenalty appropriate to the violations.

'\i • IX. Summary ofEvidence andtestimony No testimony was received. A. Agency's recitation offacts The FAA alleged: Paragraph D085 ofSkyWest's Operations Specifications (OpSpecs) authorized SkyWest to use NS22SK, a Bombardier CL-600-2D24 civil aircraft, in the conduct ofSky West's Part 121 operations. Paragraph D095 ofSky West's OpSpecs allowed SkyWest to use an approved MinimumEquipment List (hereinafter "MEL") to defer maintenance provided certain conditions and limitations were met. SkyWest SP 8175, MEL CL600-2D24 was the approved MEL for SkyWest's Bombardier CL-600-2D24 aircraft. ;:-:. Procedures listed onthe MEL for the discrepancy had to be completed in orderto properly defer the discrepancy.

3On October 18,2010, a flight crewreported an "A PACKFAULT STATUS MSG" as a mechanical irregularity in the Aircraft Maintenance Log (hereinafter "AML") ofN822SK. The "A PACK FAULT STATUS MSG" mechanical irregularity was properly deferred under SkyWest SP 8175, MEL 27-51-4a. The maintenance procedures for MEL 27-51-4arequired maintenance or flight crewpersonnel to "verify operation ofthe pack discharge pressure sensor by interrogating the MDC" once per flight day, and that an entry be made in the AML indicating the actions taken. "FlightDay" was defined in SkyWest's SP 7555, Definitions and Acronyms for Standard Practices, as "a24 hour period (from 3:00a.m. to 3:00a.m.) local time during which at least one flight is initiated for the affected aircraft." The pack discharge pressure sensor was not verified as operable on October 19, 2010 and October 20, 2010. Between October 19,2010, and the completion ofthe check on October 21,2010, SkyWestreleased, dispatched, and operated N822SK in commercial service for seventeen (17) flight cycles. Deferral under MEL 27-51-4a for these flights was not authorized because the prescribed daily maintenance procedures had not been completed. Atthe time ofthe flights on October 19 and October 20, 2010, N728SK did not conform to all applicable conditions anq limitations contained inthe MEL and operations specifications authorizing

### us~"ofthe MEL. · Atthe time ofthe flights on October 19 and October 20, 2010, N728SK was not airworthy. B. Respondent's recitation offacts Inresponse to Paragraph 2, SkyWest admitted that Paragraph D085 ofSkyWest's OpSpecs authorized SkyWestto use N822SK, a Bombardier CL-600- 2D24 civil aircraft, inthe conduct ofSkyWest's Part 121 operations. Inresponse to Paragraph 3, SkyWest admitted that Paragraph D095 ofSkyWest's OpSpecs allowed SkyWest to use an approved MEL to defer maintenance, provided certain conditions and limitations were met. Inresponse to Paragraph 4, SkyWest admitted that SkyWest SP 8175, MEL CL600-2D24 was the approved MEL for SkyWest's Bombardier CL-600-2D24 aircraft. ·4Inresponse to Paragraph 5, SkyWest admitted thatprocedures listed onthe MEL for the discrepancy must be completed in order to properly defer the discrepancy. In response to Paragraph 6, SkyWest admitted that on October 18, 2010, a flight crewreported an "A PACK FAULT STATUS MSG" as a mechanical irregularity in the AML ofN822SK. SkyWest admitted the allegations set forth in response to Paragraphs 7 and 8. In response to Paragraph 9, SkyWest admitted that a "Flight Day" was defined in SkyWest's SP7555, Definitions and Acronyms for Standard Practices, as "a 24 hourperiod (from 3:00a.m. to 3:00a.m.) local time during which at least one flight is initiated for the affected aircraft". SkyWest denied the allegations set forth in response to Paragraph 10, 11, 12, 13 and 14. As an affirmative defense SkyWest**alleg~d** the proposed penalty was excessive and violated FAA policy. C. FAA Rebuttal to SkyWest's Motion The FAA acknowledged it considered the minimal safety risk posed by SkyWest's admitted regulatory violation in selecting a sanction in the minimum range. Responding to SkyWest's arguments on mitigation, the FAA argued a sanction of $142,500 was consistent with boththe facts ofthis case and its published Sanction Guidance. D. SkyWest response to FAARebuttal SkyWest did not agree thatthe missed query on October 19 rendered the previously completed flights unairworthy. The totality ofthe circumstances mitigated for a proportionate penalty to the minor, non-safety lapse. SkyWest's prompt actions should warrant mitigationresulting in a minimal fine. X. Evidence We consider only the evidence set forth in the FAA's "Complaint"; SkyWest's "Answer and Affirmative Defenses"; the FAA's "Motion for Decision"; SkyWest's "Rebuttal and Motion for Decision"; the FAA's "Rebuttal to Respondent's (SkyWest's) 

### 5Motion for Decision" and SkyWest's "Rebuttal" to the FAA's March 27,2014 Rebuttal; "Respondent's (SkyWest's) Response to Complainant's Initial Discovery Request", dated October 17, 2012; and attachments thereto. All documentary evidence was reviewed and considered. XI. Analysis ofEvidence SkyWest held a Scheduled Air Carrier Certificate and operated under Part 121 of the FARs during the time in question. On October 18, 2010, a SkyWest flight crew reported a discrepancy in the AML ofN822SK. SkyWest's OpSpecs, paragraph D085 allowed SkyWestto defer maintenance, provided certain conditions and limitations were met. In this case, the relevant MEL conditions and limitations, found at SkyWest Standard Practice (hereinafter "SP")paragraphs 21-51-4ahadtwo relevant conditions: 1. SkyWest verify operations ofthe "pack discharge pressure sensor" and 2. Make an entry inthe AML.

SkyWest operated N822SK in commercial service on a flight day beginning 3:00 a.m. local time on October 19, 2010, October 20, 2010 and October 21, 2010. N822SK flew seventeen (17) cycles between October 19 and the completion oftheMEL 27-51-4a procedure on October 21, 2010. SkyWest's AML for N822SK contained no entry demonstrating Sky West verified the operation ofthe "pack discharge pressure sensor" on October 19,2010, or October 20,2010. SkyWest admitted there was a failure to accomplishthe required check. The required verifications were performed on October 18 and 21, 2010 SkyWest had operating revenues in excess of$100 million for the year 2011 and employed 1,500 people. While the evidence presented was thatN822SK was flown a total ofseventeen (17) flights on October 19 and 20, 2010, there was no evidence when the seventeen (17) cycles tookplace, i.e. whether the flights all occurred 18, 19 20 and/or 21, 2010 or some other combination ofthose dates. There was evidence the MEL was not completed on one ofthree days, but no evidence whether any ofthe cycles occurred on any ofthose dates. On October 18,2010, a fault message was received on one oftwo redundant air conditionertemperature sensors - operating inmanual mode

- onN822SK. The sensor corresponded to one oftwo air conditioners used for passenger comfort. Those air conditioners did not cool any avionic or flight control systems. The sensor was functional in automatic mode. The aircraft computer couldadjustthe cabintemperate, but the pilots could not do so manually. Upon further investigation, itwas determined the sensor was functioning normally butnot**co~municating** properly withthe aircraft's

. .

# .6computer. The air conditioning was always functioning onN822SK. Ifnot, the computer would have latched a 'fail' message. The sensor fault was a category "C" according to the MEL and could have been deferred up to ten (10) days without receiving attention from maintenance. 3

. The MEL required the N822SK crew interrogate the computer once a day which could occur after all flights for the day had been completed. Entries should have been made inthe AML. The other sensor was working. Sky West acknowledged that a once-daily maintenance check- i.e., interrogation ofthe computer

- that was required to be performed onN822SK as a result ofthe fault message on October 18,2010, was not completed on October 19 and 10,2010 and entries made inthe AML. XII. Law 

### 14 C.

### F.R § 

### 119.5 provides in pertinentpart: (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 may operate as a direct air carrier or as a commercial operator in violation ofany deviation or exemption authority, ifissued to that person or that person's representative. 

### (1) No personmay operate an aircraft under this part, part 121 of this chapter, orpart 135 ofthis chapter in violation ofan air carrier operating certificate, operating certificate, or appropriate operations specifications issued under this part. 

### 14 C.F.R § 121.153(a)(2) provides in pertinent part: (a) Except as provided inparagraph (c) ofthis section, no certificate holder may operate an aircraft unless that aircraft- (2) Is in an airworthy condition and meets the applicable airworthiness requirements ofthis chapter, including those relating to identification and equipment. 

### 14 C.F.R § 

### 121.605 provides in pertinent part: No person may dispatch or release an airplane unless it is

3 SkyWest "Rebuttal and Motion for Decision", Exhibit A 7airworthy and is equipped as prescribed in §121.303.4 14 C.F.R § 121.628 provides in pertinentpart: (a) No personmaytake offan airplane with inoperable instruments or equipment installed unless the fqllowing conditions are met: (5) The airplane is operated under all applicable conditions and limitations contained inthe Minimum Equipment List and the operations specifications authorizing use ofthe Minimum Equipment List. XIII. Findings offact SkyWestheld a Scheduled Air Carrier Certificate and operatedunder Part 121 of the Federal Aviation Regulations (hereinafter "FAR") during the time in question. On October 18,2010, a flight crewreported an "A PACKFAULT STATUS MSG" as a mechanical irregularity inthe Aircraft Maintenance Log (hereinafter "AML") ofN822SK. The "A PACKFAULT STATUS MSG" mechanical irregularity was properly deferredunder SkyWest SP 8175, MEL 27-51-4a. The maintenance procedures

4 14 C.F.R §121.303 provides in pertinent part: (a) Unless otherwise specified, the instrument and equipmentrequirements ofthis subpart applyto all operations under this part. ,,; (b) Instruments and equipment required by §§121.305 through 121.359 and 121.803 must be approved and installed in accordance with the airworthiness requirements applicable to them. (c) Each airspeed indicator mustbe calibrated inknots, and each airspeed limitation and item ofrelated information inthe Airplane Flight Manual and pertinent placards must be expressed inknots. (d) Except as providedin §§121.627(b) and 121.628, no person may take offany airplane unless the following instruments and equipment are in operable condition: (1) Instruments and equipment required to comply with airworthiness requirements under whichthe airplane is type certificated and as requiredby §§121.213 through 121.283 and 121.289. (2) Instruments and equipment specified in §§121.305 through 121.321, 121.359, 121.360, and 121.803 for all operations, and the instruments and equipment specified in §§121.323 through 121.351 for the l<ind of.operation indicated, wherever these items are not already required byparagraph (d)(l) ofthis section.

8for MEL 27-51-4arequired maintenance or flight crewpersonnel to "verify operation of the pack discharge pressure sensor by interrogating the MDC" once per flight day, and make an entry in the AML indicating the actions taken. SkyWest operatedN822SK in commercial service on flight days beginning 3:00a.m. local time on October 19,2010, October 20, 2010 and October 21, 2010. N822SK flew seventeen (17) cycles between October 19 and the completion oftheMEL 27-51-4aprocedure on October 21, 2010. SkyWest's AML for N822SK contained no entry demonstrating SkyWest verified the operation ofthe "pack discharge pressure sensor" on October 19,2010 or October 20, 2010. The required verifications were performed on October 18 and 21,2010. There was no evidence when the seventeen (17) cycles took place, i.e. whether the flights all occurred 18, 19 20 and/or 21, 2010 or some other combination ofthose dates. There was no evidence the equipment was inoperable. 

### In fact, later investigation determined the sensor was functioning normally butnot communicating properly with the aircraft's computer. The air conditioning was always functioning onN822SK. Ifnot, the computer would have latched a 'fail' message. The FAA correctly asserts an applicable condition ofthe MEL, which SkyWest was required to meet and failed to meet in order to operate N822SK, was that SkyWest verify operation ofthe pack discharge pressure sensor onN822SK by interrogating the MDC AND that this verification be done once per flight day with an appropriate AML entry. There was evidence the MEL requirement was not completed on October 19 and/or 20, 2010. XIV. Conclusions 

### 14 C.F.R § 119.5 (g): "No person may operate as a direct air carrier or as a commercial operator without, or in violation of, an appropriate certificate and appropriate operations specifications. No person may operate as a direct air carrier or as a commercial operator inviolation ofany deviation or exemption authority, if issued to thatperson or that person's representative." The FAA, by a preponderance ofthe evidence standard, proved N822SKwas operated as a direct air carrier or as a commercial operator without, orinviolation of, an appropriate certificate and appropriate operations specifications because SkyWestfailed to verify operation ofthe pack discharge pressure sensor onN822SKby interrogating the MDC AND thatthis verification was not done once per flight day with an appropriate AML entry on October 19 and/or 20,2010. 

### 14 C.F.R § 

### 119.5 (l): "No person may operate an aircraft under this part, part 121 ofthis chapter, or part 135 ofthis chapter in violation ofan air

9carrier operating certificate, operating certificate, or appropriate operations specifications issued under this part." The FAA, by a preponderance ofthe

### evid~nce standard, proved N822SK was operated inviolation ofan air carrier operating certificate, operating certificate, or appropriate operations specifications issued under this part because SkyWest failed to verify operation ofthe pack discharge pressure sensor onN822SKby interrogating the MDC AND that this verification was not done once per flight day with an appropriate AML entry on October 19 and/or20, 2010. · 14 C.F.R § 121.153(a)(2): "Exceptas provided inparagraph (c) ofthis section, no certificate holder may operate an aircraft unless that aircraft- (2) Is in an airworthy condition and meets the applicable airworthiness requirements ofthis chapter, including those relating to identification and equipment." The FAA, by a preponderance ofthe evidence standard, provedN822SK was operated an unairworthy condition and failed to meetthe applicable airworthiness requirements by operatingN822SK on seventeen (17) flights without complying with the MEL in violation ofits OpSpecs because SkyWest failed to verify operation ofthe pack discharge pressure sensor on**N822~K** by il)terr6gating the MDC AND that this verification was not done once per flight day with an appropriate AML entry on October 19 and/or 20, 2010. 14 C.F.R § 121.605: ''No personmay dispatch or release an airplane unless it is airworthy and is equipped as prescribed in §121.303." The FAA, by a preponderance ofthe evidence standard, provedN822SK was dispatched orreleased in anunairworthy condition because SkyWest failed to verify operation ofthe pack discharge pressure sensor onN822SK by interrogating the MDC AND thatthis verification was not done once per flight day with an appropriate AML entry on October 19 and/or 20, 2010. · 14 C.F.R § 121.628 (a): "Noperson may take offan airplane with inoperable instruments or equipment installed unless the following conditions are met"

There was no evidence that any instrument or equipmentwas inoperable onN822SK on either October 18, 19,20 and/or 21,2010. The uncontroverted facts were that the sensor was functional in automatic mode but not communicating withthe aircraft computer. The.fAA failed to prove a prima facie case that Sky Westtake offan airplane with'inoperable instruments or equipment installed. 14 C.F.R § 121.628 (5): "The airplane is operated under all applicable

10conditions and limitations contained in the Minimum Equipment List and the operations specifications authorizing use ofthe Minimum Equipment List." The FAA, by a preponderance ofthe evidence standard, proved N822SK was not operated under all applicable conditions and limitations contained in the MEL and the OpSpecs authorizing use ofthe MEL because SkyWest failed to verify operation ofthe pack discharge pressure sensor on N822SKby interrogating the MDC AND thatthis verification was not done once per flight day with an appropriate AML entry on October 19 and/or 20,2010. After consideration and review ofall the evidentiary facts, testimony and evidence herein, by a preponderance ofthe evicl,ence standard, we make the following findings: · ' · · 1. We find the FAA proved aprima facie case that SkyWest committed violations ofthe following provisions of

### 14 C.F.R.:

a. 

### 14 

### C.F.R § 

### 119.5 (g): "No person may operate as a direct air carrier or as a commercial operator without, or in violation of, an appropriate certificate and appropriate operations specifications. No person may operate as a direct air carrier or as a commercial operator in violation ofany deviation or exemption authority, if issued to that person or that person's representative." b. 

### 14 C.F.R § 

### 119.5(1): "No person may operate an aircraft under this part, part 121 ofthis chapter, or part 135 ofthis chapter in violation ofan air carrier operating certificate, operating certificate, or appropriate operations specifications issued under this part." c. 

### 14 C.F.R § 121.153(a)(2): "Except as provided in paragraph (c) of this section, no certificate holder may operate an aircraft unless that aircraft- , . d. 

### 14 C.F.R § 121.605: ''No''person may dispatch or release an airplane unless it is airworthy and is equipped as prescribed in §121.303." (2) Is in an airworthy condition and meets the applicable airworthiness requirements ofthis chapter, including those relating to identification and equipment."

e. We find the FAA failed to carry its burden ofproofthat SkyWest violated 

### 14 C.F.R § 121.628 (a): "No person may take offan airplane with inoperable instruments or equipment installed unless the following conditions are met". Therefore the FAAfailed to prove by a preponderance ofthe evidence that SkyWest violated 

### 14 C.F.R § 

### 121.628 (5): "The airplane is operated under all applicable conditions and

11limitations contained inthe Minimum EquipmentList and the operations specifications authorizing use ofthe MinimumEquipmentList." XV. Penalty andMitigation Considerations SkyWest admitted the allegations as set forth hereinabove. We found the violations as set forth above. The FAA argued this case involved two (2) instances ofSkyWest operating contrary to its OpSpecs (failing to interrogate the MDC andthat this verification was not done onceper flight day with an appropriate AML entry on October 19 and 20, 2010) and the resultant operation ofanunairworthy aircraft seventeen times during the period ofOctober 18 to 21,2010. We agree thatthis case involvedtwo (2) instances of SkyWest operating contraryto its OpSpecs. The FAA alleged Sky West operated seventeen (17) flights during the period of October 18 to 21, 2010. We are leftto speculate onwhich ofthe four days one or more ofthose flights tookplace. We decline to do so. The evidence was that SkyWest's AML\tor N822SK contained no entries demonstrating SkyWestverified the operation ofthe "packdischarge pressure sensor" on October 19,2010 or October 20,2010 as requiredbythe OpSpecs and MEL. Those are the two (2) violations we find. Under49 US.C. § 46301 (a)(J)) "Aperson is liable to the United States Government for a civil penalty ofnot more than $25,000 (or $1,100 ifthe person is an individual or smallbusiness concern) for violating

... (B) a regulation prescribed or order issued under any provisionto which clause (A) ofthis paragraph applies

..." FAA Order 2150.3B, Chapter 7, provides a framework for determining sanctions.



### a. Nature ofviolation Three elements define the nature ofviolations: first, whetherthe violations were operational ornon-operational; second, whether the violations involved careless or reckless conduct; andthird, whether the violations involved any special aggravating or mitigating factors. (FAA Order 2150.3B, Chapter 7, 4 a.). The FAA argued the component was operational and**wa~** a low degree ofhazard. Later investigation determinedthe componentwas operational, butthe sensor was not communicating with the aircraft computer. We find the component was operational butthe sensor failed to communicate withthe aircraft computer. SkyWest failed to make appropriate entries in the AML on October 19 and/or 20,2010. We find the violations were neither careless nor reckless. The find there were no aggravating factors, butfind there were mitigating factors.

12

### b. Whethertheviolation was inadvertent or advertent SkyWest failed to make appropriate entries on the AML on October 19 and 20, 2010 after interrogating the MDC to verify operation ofthepack discharge pressure sensor onN822SK. Itwas later determined the sensor was not communicating with the aircraft computerbutthe equipment was operational. We find the violation was inadvertent inthat it was the result ofboth inattention and lack ofpurposeful choice. We further find the violations were not deliberate.



### c. Certificate Holder'sLevelofExperience The FAA argued thatthe penalty requested of$142,500 was appropriate. It argued a minimum civil penalty was appropriate for operation contrary to OpSpecs

- technical noncompliance. Itthen suggested as a large business Group I air carrier, the range for a minimum sanction was $2,000-$9,999, the midpointbeing $5,999. The FAA argued the affected component was operational, there was a low degree ofhazard, then suggestedthat"

...given Respondent's lengthy experience as an air carrier however, a sanction above the midpoint is warranted". We disagree. The FAA's own analysis argues for a more reasonable civil penalty. There was nothing in the evidence to support a sanction above the midpoint for each ofthe two (2) violations. 

### d. Attitude ofthe Violator SkyWest was cooperative. SkyWest admitted the violations and took swift and immediate corrective action.



### e. Degree ofHazard FAA argued the affected component wa§ operational and there was a low degree ofhazard. Later investigation

### deterkined·r~·sensor was not communicating with the aircraft computer but the equipmentwas operational. The componentwas working in automatic mode butnot in manual mode. We find there was no threatto safety. 

### f. Action Taken byEmployer or OtherAuthority We find consideration ofthis element is notrelevant to the facts ofthis case. 

### g. Use ofa Certificate Air carriers are held to the highest standard ofcare. Likewise, personnel engaged in air transportation are held to the highest safety standard. There was no evidence to suggest SkyWest did not adhere to the highest standard ofcare orthat SkyWestpersonnel did not adhere to the highest safety standard.

13**'·~** . 

### h. Violation History Violationhistory was not argued herein. A violation-free history is the expected norm, notthe exception and, therefore, is not a mitigating factor. 

### i. Ability to Absorb Sanction We find SkyWesthas the ability to absorb any sanction. j. 

### Consistency ofSanction Consistency was not argued and there was no evidence ofconsistency and/or inconsistency ofsanction. 

### k. Corrective Action The FAACOJ:?-Siders corrective action a mitigating factor in determining sanction provided the corrective action exceeds the minimum regulatory or statutory requirements. SkyWestimmediatelyrespondedto the violationbytaking corrective action. The FAAmustjustifyto the lawjudgethe amount ofthe civil penalty it seeks. (SeeIn the Matter of Luxemburg, FAA OrderNo. 1994-18 (June 22, 1994), stating that Complainantbore the burden of justifyingthe amount ofthe civil penalty it sought and citing 14 C.F.R. § 13.224(a), whichprovides that, except in the case ofan affirmative defense, the burden ofproofis onthe agency.) Here, the FAA has failed to explain to the undersigned, eitherthrough witnesses or in its written closing argument, exactly how it used its sanction guidance to arrive at a figure of$142,500. By failing to explain its proposed sanction adequately, the FAA in effect asks the undersigned simply to trust Complainant that its proposed • . 5 sanctiOn was appropnate.

. An appropriate civil penalty must reflect the totality ofthe circumstances surrounding the violations. EasternAir Center, Inc., FAA OrderNo. 2008-3 (January 28, 2008). Finally, the civil penalty should provide sufficient incentive to deterthe respondent and similarly-situated entities from future violations. Folsom'sAirService, Inc., Id., p. 20. 6 The violations were the faih,tre to make entries demonstrating SkyWest crews verified the operation ofthe 'pack discharge pressure sensor on October 19, 2010 and October 20, 2010 for N822SK. While a penalty calculated in accordance withthe FAA's policy guidance should stand, absent a showing ofSkyWest's inability to pay, the evidence testimony does not

5 In the Matter ofWarbelow'sAir Ventures, Inc., FAA OrderNo. 2000-3 at 6 In the Matter ofGoJetAirlines, LLC., FAA-2010-0025- 0190 14support the penaltyrequested. While the FAA was entitled to substantial deference in establishing an appropriate civil penalty, we cannot ignore our role to evaluate the testimony and evidence. When a single instance ofnoncompliance results inmultiple violations of general and specificregulations involving the same or similar conduct, the FAA ordinarily does not compoundthe sanctionto reflect the amount ofsanction recommended inthe table for eachregulatory violation (FAA Order 2150.3B, Chapter 7, 6 c.).

.•.. The FAA arguedthatthe penalty requested of$142,500 was appropriate. It argued a minimum civil penalty was appropriate for operation contrary to OpSpecs

- technical noncompliance. Itthen suggested as a large business Group I air carrier, the range for a minimum sanction was $2,000-$9,999, the midpoint being $5,999. The FAA also arguedthe affected component was operational, there was a low degree of hazard, then suggestedthat "

...given Respondent's lengthy experience as an air carrier however, a sanction above the midpoint is warranted". We disagree. The FAA's own analysis argues for a more reasonable civil penalty. There was nothing inthe evidence to support a sanction above the midpoint for each ofthe two (2) violations. A sanction should not be a mathematical addition ofalleged violations. We find the seventeen (17) flights were residual violations, because they were not independent events; they were dependent onthe original failure to annotate the AML ontwo (2) separated dates, October 19 and 20, 2010. The failure to document the MDC checks in the AML were the underlying violations. The seventeen (17) flights were strictly residual violations. There were no distinguishing factual elements betweenthe AML notationviolations and the seventeen (17) flights. SkyWestimmediately implemented five.'(5) significant measures to prevent recurrence ofthe underlying violations: 1. Creatingthe newposition ofSupervisor ofInternal Compliance; 2. Establishing an electronic aircraft maintenance blocking program; 3. Creating the newposition ofDataAdministrator; 4. Installing enhanced phone system to improve crewto maintenance communications; and 5. Adding sever (7) additional Maintenance Controllers. Theresult was an investmentby SkyWest ofapproximately $622,000 to implement these preventative measures. We find a penalty of$142,500 would be an excessive penalty in the circumstances ofthis case and in effect compounds the sanction. There were two (2) violations. The FAA arguedthe midpoint ofthe minimum sanction was $5,999. We find a civil penalty of$11,998 is a more appropriate civil penalty and more accurately reflects the totality ofthe circumstances surrounding the violations. 

### (In The Matter of Folsom'sAirService, Inc., 2008 WL 4948488 (2008))WHEREFORE, evidence and testimony having beenheard and considered it be and is hereby ORDERED as follows:

a. SkyWestbe and is assessed a civil penalty inthe amount of$11,998.

Richard C. Goodwin U.S. Administrative Law Judge

Attachment

- Service List

16

### SERVICE LIST FDMS NO. FAA-2012-0777 (Civil Penalty Action)



### ORIGINAL & 

### ONE COPY Federal Aviation Administration 800 Independence Avenue, S.W. Washington, DC 20591 Attention: Hearing Docket Clerk, AGC-430 Wilbur Wright Building-Suite 2W1 000 1 ONE COPY Todd C. Emerson, Respondent's Counsel Director, Government and Legal Affairs SkyWest Airlines 444 South River Road St. George, UT 84790 TEL: 435-634-3530 FAX: 435-634-3505 Jeffrey M. Harper, Complainant's Counsel Attorney, Office ofthe Regional Counsel Northwest Mountain Region, ANM-7 Federal Aviation Administration 1601 Lind Avenue, S.W. Renton, W A 98057 TEL: 425-227-2161 FAX: 425-227-1007 The Honorable Richard C. Goodwin,Administrative Law Judge Office ofHearings, M-20 U.S. Department ofTransportation 1200 New Jersey Avenue, S.E. (E 11-31 0) Washington, DC 20590 TEL: 202-366-2139 Attorney-Advisor 202-366-5121 StaffAssistant FAX: 202-366-7536

1 Service was by U.S. Mail. For service in person or by expedited courier, use the following address: Federal Aviation Administration, 600 Independence Avenue, S.W., Wilbur Wright Building--Suite 2W I000, Washington, DC 20591; Attention: Hearing Docket Clerk, AGC-430. 17