SERVED: July 16, 2015 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, DC 

IN THE MATTER OF 

SKYWEST AIRLINES, INC. 

DOCKETNO. FAA2013 -0617 

(Civil Penalty Action) 

INITIAL DECISION OF ADMINISTRATIVE LAW JUDGE 

I. Glossary 

A CARS 

ASI 

A&P 

Ayers 

Brown 

C.P.R. 

CLR 

COG 

cos 

FAA 

FAR 

IAH 

Aircraft Communications Addressing and 

Reporting System 

Aviation Safety Inspector 

Airframe and Power Plant certificate 

Andrew James Ayers 

Christopher C. Brown 

Code of Federal Regulations 

Cargo Load Report 

Center of Gravit~ 

City of Colorado Springs Municipal Airport, 

Colorado Springs, Colorado 

Federal Aviation Administration, Complainant 

Federal Aviation Regulation 

George Bush Intercontinental/Houston Airport, 

Houston, Texas 

: ·~ ~-

- ----. ~} 
N742SK/1160 SkyWest Flight IAH to COS on July 14, 2011 

OpSpecs Operations Specifications 

Salamone Carl Salamone, SkyWest witness 

Sky West SkyWest Airlines, Inc., Respondent 

SMS Safety Management System r , ~ ,.:~. 1.·~--.~ 

u.s. c. United States Code 

Wallentine Michele W allentine 

W&BManual Weight & Balance Operations Part XII SP 4100 

II. Introductory Comment 

This case was consolidated with other cases with similar facts, issues and 

defenses by consent of the parties. 1 

This case involved SkyWest flight N742SK operated as Flight 1160 (hereinafter 

"N742SK/1160") from George Bush Intercontinental/Houston Airport (hereinafter 

"IAH"), Houston, Texas to City of Colorado Springs Municipal Airport (hereinafter 

"COS"), Colorado Springs, Colora~o on J~)y 1 ~~~20 11 ~ 

III. Procedural History 

On July 18, 2013, SkyWest Airlines, Inc., (hereinafter "Sky West") was advised 

through a Final Notice of Proposed Civil Penalty that the Federal Aviation 

Administration, (hereinafter "FAA'') proposed to assess a civil penalty in the amount of 

$40,000 for violation of the Federal Aviation Regulations (hereinafter "FARs"). 

On July 23, 2013, SkyWest through its legal counsel, submitted a written request 

for a hearing. 

1 SkyWest Airlines Docket Numbers FAA 2012-0617, FAA 2012-0619, FAA 2012-0868, FAA 2012 

-0869, FAA 2012-0872, FAA 2012-0873, FAA 2012-0874 and FAA 2012-0904. 
~·· '•. :~··. 

,. 

On July 25, 2013, the FAA filed its Complaint. 

On July 31,2013, SkyWest filed its Answer. 

By Order dated August 21, 2013 we consolidated this case with other cases with 

similar violations of the F ARs, similar issues and similar defenses of Sky West. 

IV. Hearing 

A hearip.g was held in Salt Lake City, UT., on May 19, 2014 on the consolidated 

cases. 

The FAA was represented by Jeffrey Harper, Esq., FAA Office ofRegional 

Counsel, Renton, Washington. 

SkyWest was represented by Mich~f.el L~ Bworkin, Esq., of Dworkin & 

Associates, San Francisco, California 94104 and Todd C. Emerson, ESQ., General 

Counsel, SkyWest Airlines, St. George, Utah. 

Post hearing briefs were filed by both parties. 

The matter is now ready for decision. 

V. Jurisdiction 

SkyWest was at all times material hereto the holder of Scheduled Air Carrier 

Certificate No. SW1A011A, and conducted its operations pursuant to Part 121 ofthe 

Federal Aviation Regulations (FAR) and is subject to those regulations. 

VI. Burden of Proof 

~· ,, ·-~ ~;~-- . 

The FAA was the petitioning part§. 'With the initial burden of proof (14 C.F .R. § 

13.224). 

VII. Allegations 

A. FAA's recitation of facts 

3 
The FAA alleged: 

l. Sky West was at all times material herein the holder of Scheduled Air Carrier 

Certificate No. SWIA011A, and conducted its operations pursuant to Part 121 

of the Federal Aviation ~egula~Jpn,s (hereinafter "FAR"). 

2. Paragraph 0085 of Sky West's Operations Specifications (hereinafter 

"OpSpecs") authorized SkyWest to use N742SK, a Bombardier CL-600-2C10 

civil aircraft, in the conduct ofSkyWest's Part 121 operations. 

3. Paragraph A098 ofSkyWest's OpSpecs required that aircraft loading for 

Bombardier CL-600-2C 1 0 aircraft be accomplished in accordance with 

SkyWest's Weight & Balance Operations Part XII SP 4100 (hereinafter 

"W &B Manual"). 

4. SkyWest's W&B Manual contained the loading schedules and instructions for 

SkyWest's Bombardier CL-600-2Cl0 aircraft. 

5. Sky West's W&B Manu~l (0}1gina_;l ~¥vision dated 01 APR 10), Chapter 2, 

paragraph 2.A.58 defined "Standard Checked Bag" as a "checked bag 

weighing 50 lb. or less." 

6. SkyWest's W&B Manual (Temporary Revision 11-4 dated 14 FEB 11), 

Chapter 3, paragraph 2.D.1 stated the "designated CS Ground Operations 

loading agent evaluates the classification of all checked baggage (either 

standard. or heavy). The designated loading agent must mark the number of 

standard and heavy checked baggage on the Cargo Load Report (hereinafter 

"CLR")". 

;. 

,, 

4 
7. SkyWest's W&B Manual (Temporary Revision 11-4 dated 14 FEB 11), 

Chap~er 3, paragraph 21.2 stated that "[u]pon completion of loading the cargo 

bin/pit, the designated loading agent must verify the piece count of all 

Standard Checked, Heavy Checked, and Planeside Loaded/Service Item 

Baggage ... " 

8. SkyWest's W&B Manual (Temporary Revision 10-4 dated 18 OCT 10), 

Chapter 3, paragraph 3.B.2 stated '"the flight deck crewmember uses the 

information from the CLR to construct the A CARS load manifest." 

9. Sky West's W&B Manual (Original revision dated 01 APR 10), Chapter 4, 

paragraph 8.8, required the loading agent to write the total number.of standard 

checked baggage loaded in each cargo bin/pit in the appropriate "Standard 

Checked" block on the CLR. 

10. SkyWest's W&B Manual (Original revision dated 01 APR 10), Chapter 4, 

paragraph 11 - Aircraft Loading, contained the warning: 

WARNING -INACCURATE LOADING, REPORTING, 

OR FAILURE TO REPORT INFORMATION COULD 

CAUSE ISSUES WITH AIRCRAFT PERFORMANCE AND 

HANDLING, RESULTING IN THE ENDANGERMENT OF 

HUMAN LIFE 

11. On July 14, 2011, at IAJt, Sky·;W,~J!t~loaded passengers and baggage onto 

N742SK/1160 bound for COS. 

12. SkyWest's personnel at IAH loaded forty-three (43) standard checked bags 

onto N742SK/1160. 

13. The CLR for N742SK/1160 listed thirty-six (36) standard checked bags on 

board. 

5 
14. The date on the CLR was used to construct the ACARS load manifest for 

N742SK/1160. 

15. SkyWest thereafter oper~ted N742SI.}/1160 from IAH to COS. ~' ~'1'/ I • ~- . 

16. By reason ofthe foregoing facts and circumstance, the FAA alleged SkyWest 

violated the following sections of the FARs (14 C.F.R.): 

a. 14 C.F.R. § 119.5(g), in that, as a direct air carrier, it operated in violation 

of appropriate OpSpecs. 

b. 14 C. F. R. § 119. 5 (l) in that it operated aircraft under Part 121 in violation 

of its OpSpecs. 

c. 14 C.F.R. § 121.693(a) in that it operated flights without a load manifest 

that accurately reflected the weight of the cargo and baggage. 

d. 14 C.F.R. § 121.693(c) in that it operated flights when the total weight of 

the aircraft was not'qomputed ~~er approved procedures. 

e. 14 C.F.R. § 121.693(d) in that it operated flights when the aircraft was not 

loaded according to an approved .schedule. 

In accordance with 49 United States Code (hereinafter "US.C. ") Sections 

46301 (a) and (d) (Transportation) the FAA alleged SkyWest was liable for a civil 

penalty not to exceed $27,500 for each of the violations noted. 

Under the facts and circumstances ofthis case, the FAA alleged a civil penalty 

of $40,000 was appropriate. 

B. SkyWest's recitation of facts 

Answering Section I ofthe Complaint, SkyWest averred: 

6 
Sky West admitted that it was advised through a Final Notice of Proposed 

Civil Penalty on July 18, 2013 that the FAA, proposed to assess a civil penalty in 

the amount of$40,000, and on July 23,2013 Sky West submitted a timely written 

request for a hearing. Except as expressly admitted, SkyWest denied each and 

every, all and singular, allegations contained therein, and each and every part 

thereof, both generally and specifically, conjunctively ancl disjunctively. 

Answering Section II of the Complaint, SkyWest averred: 

1': ~. '/?.; ,\i' .~~··· 

SkyWest averred as to each allegation in the Complaint that except as 

expressly admitted above, Sky West denied each and every, all and singular, 

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

specifically, conjunctively and disjunctively. Thereafter it further answered: 

1. Answering Paragraph 1, SkyWest admitted thatit was at all times material 

hereto, the holder of Scheduled Air Carrier Certificate No. SWIA011A, and 

conducted its operations pursuant to Part 121 ofthe FARs. 

2. Answering Paragraph 2, Sky West admitted that Paragraph D085 of its 

OpSpecs authorized SkyWe.st to use N742SK, a Bombardier CL-600-2C10 

civil aircraft, in the conduct of its PE~;tt 121 operations. SkyWest further ,<\ :.. 

averred that Paragraph DOSS further spoke for itself. 

3. Answering Paragraph 3, SkyWest admitted that Paragraph A098 of its 

OpSpecs required that aircraft loading for Bombardier CL-600-2B 19 aircraft 

be accomplished in accordance with SkyWest's W&B Manual. SkyWest 

further averred that Paragraph A098 and its W &B Manual spoke itself. 

7 
4. Answering Paragraph 4, SkyWest admitted that SkyWest's W&B Manual 

contained, inter alia, the loading schedules and instructions for Sky West's 

;; ·' ·. ·;:r, Bombardier CL-600-2C1 0 airchtft. .,. 

5. Answering Paragraph 5, SkyWest admitted that SkyWest's W&B Manual 

defined "Standard Checked Bags" as checked bags weighing 50 pounds or 

less. 

6. Answering Paragraph 6, SkyWest's averred its W&B Manual stated, in 

pertinent part, "designated CS Ground Operations loading agent evaluates the 

classification of all checked baggage (either standard or heavy). The 

designated loading agent must mark the number of standard and heavy 

checked baggage on the CLR". 

7. Answering Paragraph 7, SkyWest admitted that SkyWest's W&B Manual 

stated, in pertinent part, ;j'[u]po~:~6m;letion of loading the cargo bin/pit, the 

designated loading agent must verity the piece count of all Standard Checked, 

Heavy Checked, and Planeside Loaded/Service Item Baggage ... " 

8. Answering Paragraph 8, SkyWest admitted that SkyWest's W&B Manual 

stated, in pertinent part, that the flight deck crewmember will use the 

information from the CLR to construct the A CARS load manifest. 

9. An.swering Paragraph 9, SkyWest admitted that SkyWest's W&B Manual 

required the loading agent to mark the number of standard checked bags on 

the CargoLoad Report (CLR). 

10. Answering Paragraph 1 SkyW~st admitted that SkyWest's W&B Manual ; 

contained the warning: 

8 
WARNING-INACCURATE LOADING, REPORTING, OR 

F AlLURE TO REPORT INFORMATION COULD CAUSE ISSUES 

WITH AIRCRAFT PERFORMANCE AND HANDLING, RESULTING 

IN THE ENDANGERMENT OF HUMAN LIFE 

11. Answering Paragraph 11, SkyWest admitted that on July 14, 2011, at IAH, 

SkyWest loaded passengers and baggage onto N742SK/1160 bound for COS. 

12. Answering Paragraph 12, SkyWest admitted that forty-three (43) standard 

checked bags were loaded on~oN74&.~K/1160. 

13. Answering Paragraph 13, SkyWest contended it was without information or 

belief sufficient for it to answer Paragraph 13 and, accordingly, denied each 

and every, all and singular, allegation therein. 

14. Answering Paragraph 14, SkyWest admitted that CLR data was generally 

utilized to construct ACARS load manifests, but averred that CLR data was 

but one component of the data utilized to construct such manifests. 

15. Answering Paragraph 15, SkyWest averred N742SK/1160 was operated from 

IAHto COS. 

Answering Section III of the Complaint, SkyWest averred: 

1. Answering Paragraph 1, and suqparagraphs l.a., 1.b., l.c., 1.d. and 1.e, 

SkyWest denied each and every, all and singular, allegations contained 

therein, and each and every part thereof, both generally and specifically, 

conjunctively and disjunctively, and specifically denied that it violated the 

cited sections of the FAR's, or any other provisions of the FAR's. Moreover, 

SkyWest alleged, in FDMS Nos. FAA-2011-0485, -0486 and -0779, which 

pertained to substantially similar facts and issues as the case herein, the 

Administrative Law Judge, in his Initial Decision served on May 2, 2013, held 

9 

:: 
that violations ofFAR 14 C.F:.~. l?lr-,?93(a), 121,693(c) and 121.693(d) had •. 11·1'. ' .. , • 

. not been.established. SkyWest asserted the FAA had not alleged any facts in 

this case that would suggest that this matter be treated any differently. 

2. Answering Paragraph 2, SkyWest averred that Sections 46301 (a) and (d) of 

Title 49 of the United States Code (U.S.C.) (Transportation)(49 U.S.C. 

Sections 4630l(a) and (d)], spoke for themselves. 

3. Answering Paragraph 3, SkyWest denied each and every, all and singular, 

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

and specifically, conjunctively and disjunctively, and specifically denied that 

a civil penalty of $40,000, or in any other amount, is appropriate. 

Affirmative Defenses 

SkyWest asserted the following Affirmative Defenses: 

1. First Affirmative Defense 

The sanction sought by Complainant was unwarranted by the facts, 

safety in commerce and the public interest and was not only excessive, 

but, far exceeded policy, precedent and the FAA's own Sanction 

Guidance Table. Further, the sanction was compounded, in violation of 

the FAA's own Compliance and Enforcement Handbook and Sanction 

Guidance Table. 

2. Second Affirmative Defense 

' ' i ·~i~y:. 

The FAA's case, was unwarranted an.d without basis or jurisdiction in law or 

fact. 

3. Third Affirmative Defense 

10 
They complained of aircraft weight differentials, if any, were nominal 

at best and had absolutely no effect on aircraft center of gravity, 

performance, performance computations or safety. 

4. Fourth Affirmative Defense 

. Sky West proactively mitigated any and all damage such that this 

action was unwarranted by pQlicy or the need for safety.2 

. ' \ 

5. Fifth Affirmative Defense 

The average weight programs contemplated by ACI20-27E fully 

acknowledged that the use of actual baggage and passenger weights 

were impractical, and by their very nature, permitted discrepancies 

between what was contained in the load manifest and the actual weight 

of the aircraft. Moreover, SkyWest attempted to obtain FAA approval 

of a modification to its W &B Program, similar to that which the FAA 

had previously approved for at least one other FAR Part 121 

certificated air carrier, to permit small variances in baggage counts, 

necessitated by operatiopal consider~t~ons. Despite Sky West's having 

demonstrated that at least an equivalent level of safety could be 

maintained, the FAA had arbitrarily and unreasonably refused 

SkyWest's requests, apparently preferring to initiate enforcement 

actions and seek the imposition of exorbitant civil penalties for small 

variances in baggage counts even though there had been no adverse 

effect, whatsoever, on safety. 

6. Sixth Affirmative Defense 

2 Specifics are set forth below in mitigation. 

11 

~ . ~ . n : \.S.t •.. <iH 

' 
'•. 

:' ~ .. t,.~ ... :~r'' : 

Any and all discrepancies upori ·which these actions were based were 

the product of simple human arithmetic error and in no way were 

indicative ofSkyWest's regulatory compliance disposition as all 

relevant employees were adequately trained and qualified and have 

since received additional training and internal audits have since shown 

that compliance levels have been achieved. 

7. Seventh Affirmative Defense 

SkyWest took all necessary corrective actions to avoid repeated 

mishaps such that additional penalties were redundant and would not 

result in any increase in safety. i"· ... ,;: . 

: '), 

8. Eighth Affirmative Defense 

As and for a separate distinct defense, SkyWest alleged: 

In October 2012, The Honorable Richard C. Goodwin, Administrative 

Law Judge, heard multiple cases3 with the same or extremely similar facts where 

Complainant sought a $33,000 penalty per flight and in his Initial Decision served 

on May 2, 2013, Judge Goodwin determined that the proper sanction for each 

case was $250, Complainant did not appeal. Notwithstanding this, Complainant 

now seeks even a more outlandish civil penalty of $40,000 per flight . 

. Further, Judge Goodwin found that Complainant was unable to prove 

violations of FAR Sections 121.69~,(a), (c) and (d) based on the evidence and ;, . 

arguments submitted at trial. Complainant did not appeal. However, Complainant 

has again alleged substantially similar facts and issues and has again alleged the . 

very same violations ofFARSections 121.693(a), (c) and (d). Precedent 

3 FDMS Nos. FAA-2011-0485, -0486 and ·0779. 

12 
established that Complainant cannot prove said violations as alleged in the 

complaint. 

VIII. Issues 

Did SkyWestviolate 14 C.F.R. Sections 119.5(g), IJ9.5(1), 121.693(a), 

121. 693(c) and/or 121.693(d) by operati~hiofdlght N742SK/1160 from IAH to COS, on 

July 14, 2011. 

Under the facts and circumstances of this case, was a civil penalty of $40,000 

appropriate. 

IX. Summary of Testimony and Evidence 

All admitted testimonial and documentary evidence was reviewed and considered. 

Only brief highlights are summarized herein. 

A. Agency's Case 

Michele Wallentine 

The FAA called Michele W allentine (he~einafter "W allentine") as a witness. 

! .. ""·· ;',.; 

. 0 . ' •'.. ' 

Wallentine worked thirty (30) years in for the Afr Force Reserves and as a civil servant 

for the Air Force. At the time of the hearing she was an Aviation Safety Inspector 

(hereinafter "ASI'') for the FAA in Denver, Colorado.4 

On July 14, 2011, Wallentine performed surveillance at COS to ensure that the 

cargo and the baggage loaded on SkyWest aircraft matched the CLR. She inspected 

N742SK/1160 from IAH to COS and observed forty-three (43) standard bags. 5 She 

obtained a copy of the CLR and then the ACARS load manifest from the flight crew. She 

identified FAA# C-32 as a true copy of the CLR and FAA# C-33 as a copy of the load 

4 Tr. p. 113, I. 1 top. 114, I. 5. 5 The witness referred to FAA# C-102 and FAA# C-103 to refresh her recollection. 
{ ... 

. ') . ~· 

manifest from N742SK/1160. Wallentine testified the number of standard bags on the 

CLR did not match up correctly with the number of bags she counted that were onboard 

the flight. 6 

Cross 

Wallentine testified all the inspections she made on May 5th, April 7th, and July 

14, 2011, at COS were for the purpose of counting baggage. There were other flights on 

those days into COS which had no discrepancies. Wallentine believed she observed ten 

(1 0) flights on each of the days she conducted bag counting surveillance on each of the 

flights. She had not been asked to conduct bag St1rveillance on other air carriers. 7 

.·, . 

Andrew James Ayers8 

Andrew James Ayers (hereinafter "Ayers") was called by the FAA as an expert in 

Weight and Balance and specifically SkyWest's Weight and Balance program. Ayers' 

testimony was applicable to all of the cases in the consolidated docket. 

Ayers had worked in the aviation industry for nineteen (19) years, had been a 

Pilot in Command (hereinafter-"PIC") on EMB-120 and CL-65 aircraft for approximately 

nine (9) years. He had been with the FAA approximately six (6) years at the SkyWest 

Certificate Management Office. He was the "Principle Operations Inspector" (hereinafter 

"POI") for SkyWestand had the overall responsibility for all of the authorizations and 

approvals for SkyWest's operational needs. He;~versaw compliance, authorizations for 

SkyWest programs, and scheduled surveillance and follow~up. He had an airline 

transport pilot certificate with type ratings in the EMB-120 and CL-65 series aircraft. He 

had training as an Aircraft Safety Inspector (hereinafter "ASI"). He received generalized 

6 Tr. p. 120, 1. 1 top. 125, 1. 20. 7 Tr. p. 125, I. 21 top. 128, I. 6. 

8 Tr. 179, I. 17 top. 2.09, I. 19. 

14 
weight and balance training that was applicable to any pilot flying any sort of aircraft as 

well as training specific to the type aircraft at issue in these cases. Ayers was familiar 

with SkyWest's Weight and Balance program and as SkyWest's POI, it was his 

responsibility and authority to grant approval for those procedures. Ayers was received 

by the court as an expert in the fietcl of alr~raft \C~ight and balance. 

Ayers explained the CLR was a tally worksheet for computing the loads or the. 

weight of cargo loaded on the aircraft. A 'standard bag' was a term used for an average 

bag assigned a weight of thirty (30) pounds. A standard bag wasdefined as a bag 

weighing from zero (0) up to fifty (50) pounds. A heavy bag would be over fifty (50) up 

to one hundred (100) pounds. For purposes ofSkyWest weight and balance program, 

heavy bags were assigned a weight of sixty ( 60) pounds. Plane side loaded valet bags 

were assigned a weight ofthirty (30) pounds which included a weight range do of zero 

(0) to fifty (50) pounds. 

Ayers testified the load manifest contain,ed the total weights for aircraft flights. 9 

. '•' 

~ ;; ,; .. ·(· \ 

Ayers described SkyWest's "Weight and;Bal~c'~ Handbook" as a general book which 

contained both background knowledge, scientific information, factual information about 

weight and balance, as well as suggested policies and procedures for complying with 

weight and balance when operating aircraft. It also described hazards associated with 

improper weight and balance. 

The FAA proffered evidence of a prior aircraft accident under Part 121 where 

weight and balance was a causal factor. We sustained an objection to the testimony and 

reaffirm our ruling. Ayers' proffer was: 

9 The witness identified FAA# C-6, C-9, Crl2, and C-14 ~~.examples of load manifests. 

; >: . f•. • 

. s ~ 

15 
... the accident in question involved an aircraft that was loaded no[t] in 

compliance with the operator's approved weight and balance program. Incorrect 

information was provided to the flight crew which allowed them or did not allow 

them, rather, to accurately complete their load manifest for their flight. That 

resulted in them being unable to detect an aft CO ... the aircraft in question stalled 

shortly after takeoff and crashed, killing all persons aboard ... 

The proffer offered no testimony of the type aircraft; when or where the accident 

occurred; weather conditions; flight conditions; what information was incorrectly 

provided; weight and balance program of the aircraft and/or carrier; or any other factors 

which would show any relevance to the facts of this case. We reaffirm our ruling and the 

objection was sustained. The testin;10ny was not•received. 

With respect to N742SK/116010Ayers testified the weight of cargo listed on the 

load manifest did not correlate with the cargo weight calculated using the CLR (see 

FAA# C-32 and C-33). 

Ayers further testifi~d that in a couple of the cases 

11 where the load manifest 

weight matched the CLR there was still a violation of the approved program because the 

program described procedures fo~ completion of the CLR, and failure to follow those 

procedures was still a violation. Whether or not the number was correct was not relevant 

to whether those procedures were actually followed. Ayers drew an analogy that, it was 

not enough to get the right answer, but to show your work to get the answer and that 

work also had to. be correct. Ayerslestifl~3-he b;lieved there was an unknown impact on 

safety posed by these discrepancies, but ~hat he was not surprised that the aircraft were 

operated within their weight and balance envelope. 12 

10 Tr. p. 206, I. 16 top. 207, I. 2. N742SK/1160 from IAH to COS on July 14,2011. 11 Referring to the consolidated docket. 12 Tr. p. 207, I. 19 top. 208, I. 16. 

16 
Cross 13 

Ayers testified the front side of the CLR worksheet was where the math was 

tallied up while the back side of the.CLR ~ils.t4e worksheet to assist the loading agents t " . ' 

in counting. Ayers admitted that as part of the investigation it would have been 

beneficial to have copies of the backside of the CLR. Ayers admitted his testimony was 

predicated upon the assumption that when the inspectors counted the offloaded baggage 

they were counted correctly. 

Ayers testified that in 2011 SkyWest did not have a Safety Management System 

(hereinafter "SMS"). SMS was a series of tools and programs that allowed SkyWest to 

identify risks and mitigate those risks with processes and procedures in place to identify 

how they do that, when they do that, and what the outcomes are. Risks were categorized, 

with Category I being non-safety related. SkyWest implemented an SMS after the 2011 

incidents. I" ol. bt '.1 : ,. 

Redirect14 

Ayers testified both copies of the CLR should be updated with any last minute 

changes. If the load manifest was inaccurate, the process wasn't followed. COMAT was 

required to be marked on the CLR as COMA T and ballast was required to be marked on 

the CLR as ballast. If a live animal was on board, that was required to be reflected on the 

CLR. 

Recross 15 

13 Tr. p. 209, 1. 21 top. 219, I. 10. 

14 Tr. p. 219, I. 13 to p. 222, I. 1. 15 Tr. p. 222, 1. 3, top. 223, I. 1. 

17 
Ayers testified live animals, as baggage, were assigned a weight of thirty (30) 

pounds or sixty (60) pounds, including the container. Animals shipped as freight are 

assigned a different weight. 

Evidence 

The following FAA exhibits were admitted in the consolidated docket set forth 

above: FAA# Exhibits C-1 through C-36, inclusive; there was no FAA#C-37; FAA# C38 was not received [see SW# 1); Judicial Notice was taken of FAA# C-39 through C-42, 

inclusive; FAA#C-43 through C-47were provided for reference; FAA#C-100 through 

103, were not offered, but are a part of the administrative record. 

B. SkyWest's Case 

Carl Salamone, deposition transcript, 2014050616 

The testimony of Carl Salamone (hereinafter "Salamone") was taken by 

deposition (SW# 3-3) and introduced into the record by agreement of the parties. 

Counsel for both parties were present at the deposition. Salamone's testimony was 

applicable to all of the cases in the consolidated docket. 

Salamone had been a pilot for SkyWest for seven (7) years and was a member of 

a special projects group for SkyWest. He was a first officer on Canadair Regional Jets 

' eli·' 

(hereinafter "CRJ''). He held an airline tnllisport pilot certificate for the CL-65 type 

aircraft, a flight instructor's certificate, an advanced ground instructor and an instrument 

ground instructor certificate. He was rated in the CRJ 200, 700 and 900 aircraft and had 

operated all three types of aircraft. He had 4200 flight hours, of which 3200 were in 

CRJs. He had a Bachelor of Science degree in electrical engineering and a Bachelor of 

Science degree in aviation human factors, from the University of Illinois. Aviation human 

16 Tr. p. 227, I. 7 top. 281, 1. 17. 

18 
factors was the study of human factors principles in research and psychology as it related 

specifically to aviation in the huma~ eleine.nts.ohwiation safety, including weight and 

balance syst~ms. For five (5) years he had been a member of a special projects group 

which, among other things, involved analysis of weight and balance. Salamone estimated 

he had flown about 3,000 flights. Each flight required a weight and balance calculation 

prior to that flight. He had training in weight and balance from his education as well as 

Sky West. 

Salamone was received by the court as an expert in the field of calculation of 

aircraft weight and balance and the effects of that weight and balance on the aircraft 

performance. 

Salamone reviewed SW# R-1, a weight and balance analysis covering arer . \-:{,i--~ ,_., ·J~~; . 

creation of the fourteen (14) flights based on the·data available to him on weight and 

balance as calculated by the crew and also the alleged weight and balance as it would 

have been observed by an inspector(s) for each of the flight violations. In the analysis of 

these flights, Salamone took all information that was available to him, the cargo load 

reports, the load manifests, electronic, if available, the inspector's statement from the 

FAA, as far as the alleged weight or items that may have been present and the 

manufacturer documentation for the Canadair series jets to determine performance and 

the weight and balance in that respect. He also took into account runway length, air 

temperature and fuel weight. 

Aircraft takeoffweight was defined as tJ.?.e. gross weight of the aircraft in the . r .-, ~., '~i . ···~ 

takeoff configuration, as it would begin the takeoff segment of the flight. It was the full 

19 
weight of the airplane immediately prior to beginning takeoff, including passengers, 

cargo, ballast, et al. 

Aircraft takeoff Center of Gravity (hereinafter "COG") Was the location of the 

center of gravity at a point on the airplane and calculated to ensure that the plane 

remained in balance for the manufacturer's specifications throughout that flight. COG 

was a single point, a mathematical point. It was a single point like a teeter-totter, where 

that airplane would balance on one partictJ,larpOint where the weight was mathematically 

seen on that location on the airplane. COG was important for stability reasons, for 

control reasons, and it was really just a major part of the physics of flight, to ensure that 

the plane will perform as it was designed to. 

Other factors considered in Salamone's analysis included runway performance, 

flight climb performance, and maximum operating altitude. Those factors meant that the 

airplane would not be too heavy to meet its performance requirements and performance 

planning. An airplane was operated at a weight that would ensure that the runway was 

adequate, that the climbing performance was adequate, and that it would be able to obtain 

its operating altitude for all phases of flight and complete that flight as planned. 

Salamone testified that for tlb.e fo~rt6e:nd4) flights he reviewed, given the 

weights that the crews had recorded and believed that they were operating under, none of 

the flights exceeded maximum takeoff weight and none of the flights were unsafe in 

anyway. 

In Salamone's opinion, taking into account the additional weights observed by the 

FAA inspectors, none of the aircraft exceeded tolerances nor were the flights unsafe. In 

his opinion, the crews' calculations were accurate as pertaining to the cargo and weight 

20 
that they believed that they had and the calculatlpns did not exceed the manufacturer's 

l . .-~ .. ·' •' t''.' 

suggested limitations nor as perceived by the FAA inspectors. Taking into account three 

of those factors, either as calculated by the SkyWest crews at the time or adjusting for the 

observed variations by FAA inspectors, in Salamone's opinion, none ofthe flights would 

have been in excess of the manufacturer's limitations for takeoff weight, center of gravity, 

runway performance, climb performance, or maximum operating altitude. 

With respect to N744SK/1160,17 Salamone testified the additional210 pounds 

would not have affected the maximum takeoff weight. The actual gro·ss weight would 

have still been well below the maximum takeoff weight of just over 73,000 pounds. 

N744SK/1160 was still below maximum takeoff weight. The COG gravity would have 

shifted from approximately one-half of on~ p~rcent mean aerodynamic chord, which 

would have still been well within the manufacturer's envelope and been a very small 

change for the flight crew. 

Fuel planning for all the CJRs involved would have been very close. The 

additional weight may have caused a slight increase in fuel usage, just because it costs 

more to fly around the extra weight. However, SkyWest has a policy of adding 

contingency fuel that was above and beyond the federal required fuel and any nominal 

increase in burn would have been accounted for and included in that contingency fuel. It 

would not have impacted safety. 

Salamone described the human factors involved in loading an airplane and ., 

counting bags. H~ described the m6st dif:ti'cult ~~pect of aircraft loading and baggage 

handling as having to do with the environment around which it is centered. The ramp 

environment may have temperature swings; it may have noise and vibration. It could 

17 Tr. p. 268, 1. 11 top. 270, I. 3. N744SK/1160 from IAHto COS on July 14, 2011. 

21 
have light, darkness issues, as well a flurry of activity making focus difficult for that 

particular employee. It was a very active area that could cause, perhaps, a pause in 

counting or bags arriving at different times from different connecting flights. Salamone 

described that humans have a difficult time inherently with counting, and when you 

throw in some difficult environmental factors, it makes that task even more difficult. 

Salamone was not particularly surpt\ised at'bag ;ddunt discrepancies. ·. 

Cross18 

Salamone testified the reason why he took runway length into account was that a 

heavier aircraft required a longer distance to takeoff. Heavier aircraft needed to reach a 

higher speed to become airborne, had a lower rate of climb, a lower angle of climb, lower 

service ceiling and slower cruising speed. Additionally, heavier aircraft had a shorter 

range, higher fuel burn, higher landing speed and longer landing roll. Center for gravity 

exceeding the aft or forward limitation of the aircraft would affect performance. The 

CLR is one of the documents used to generate the load manifest. The load manifest was 

the document that contained the aircraft gross weight and center of gravity location, 

.~ ),,; l" . ' ·..i~~· 

which was then used to determine performaii'db requirements. 

Christopher C. Brown19 

Christopher C. Brown (hereinafter "Brown") was the Director of Aircraft 

Operations for Sky West Airlines. His principle duties included oversight, flight 

standards, fleet management, and program development, process development, manuals, 

such as weight and balance, ground deicing program, flight operations manual, standard 

operations procedures, and such. He had been in the aviation industry for thirty (30) 

18 Tr.p.281, 1.18top. 291,1.6. 

19 Tr. p. 298, l. 20 top. 324, I. 14. 

22 
(;, ·t l 

years. He had an AMP certificate, airline transport certificate with the CL~65, a flight 

instructor certificate, an advanced flight instructor or art advanced ground instructor 

certificate. Brown's testimony was applicable to all of the cases in the consolidated 

docket. 

Brown testified about SW# R5~1, which was a letter.to the CMO, to Mr~ Ayers, 

requesting consideration for a proposed amendment to the approved weight and balance 

program to allow for human factors errors in bag counting. The proposal would 

artificially add a specific amount of weight to the basic operating weight of each aircraft. 

In doing so, the performance calculations would be performed as if the weight was 

physically on board the aircraft, even though, ip. ·most cases, the weight would not be 

present. The aircraft operating envelope would be curtailed-in such a way that for small 

miscounts, the Sky West weight and balance program would assure that the aircraft would 

always remain within the manufacturer's operating envelope. Brown testified the 

proposal was similar to a program implemented by Delta. 

Evidence 

The following SkyWest exhibits were admitted in the consolidated docket set 

forth above: SW# Exhibits R 1~1, 2~1, 3~1, 3~2, 3~3, 4, 5-1, 5-2, 5-3, 5~4, 5-5, 5-6, 5-7, 6~ 

1, 6-2, 6-3, 7, 8, 9 and 10, inclusive. There were no exhibits SW 11-20, inclusive. SW# 

R-21, was admitted. 

t 

C. Credibility determinations 

We find the testimony of all witnesses to have been truthful and credible. 

X. Brief Summary of Evidence and Testimony 

23 
On July 14, 2011, at IAH, SkyWest loaded passengers and baggage onto 

N742SK/1160 bound for COS. SkyWest's personnel at IAH loaded forty-three (43) 

standard checked bags onto N742SK/1160. The CLR for N742SK/1160 listed thirty-six 

(36) standard checked bags on board. The date on the CLR was used to construct the 

ACARS load manifest for N742SK/1160. SkyW~st thereafter operated N742SK/1160. to 

l· .. ,.!. \ ... ' . 

cos. 

XI. Law 

A. The FAA has the burden of proof, except for affirmative defenses 14 C. F. R. 

§§ 13.224(a) and (c). The standard is a preponderance of reliable, probative, and 

substantial evidence 14 C. F. R. § 13.223. 

B. 49 US. C. Sections 46301 (a) and (d) (Transportation) provide for the imposition 

of civil penalties in FAA cases. 

A person is liable to the United States Government for a civil penalty of not more 

than $25,000 for violating ... (B) a regulation prescribed or order issued under any 

provision to which clause (A) of this paragraph applies." The authority for issuing 

Parts 119 and 121 of 14 C.F.R. includes 49 U.S.C. Chapters 401, 441, and 447-

all o(which are covered by.clause.(A)~ 49 U.S.C. § 46301(a)(1)(A), 14 C.F.R. 

Parts 119 and 121 (Preamble). 

C. 14 C.F.R. § 119.5 Certifications, authorizations, and prohibitions. 

1. 14 C.F.R. Section 119.5(g), provides: 

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 of any deviation or exemption authority, if issued to that 

person or that person's representative. 

2. 14 C.F.R. Section 119.5(1); provides: 

No person may operate an aircraft under this part, part 121 of this chapter, or part 

13 5 of this chapter in violation of an air carrier operating certificate, operating 

certificate, or appropriate operations specifications issued under this part. . 
D. 14 C.F.R. § 121.693 Load manifest: All certificate holders 

The load manifest must contain the following information concerning the loading 

of the airplane at takeoff time: · 

1. 14 C.F.R. Section 121.693(a), provides: 

The weight of the aircraft, fuel and oil, cargo and baggage, passengers and 

crewmembers. 

2. 14 C.F.R. Section 121.693(c}, provides: 

The total weight computed under approved procedures. 

3. 14 C.F.R. Section 121.693(d), provides: 

r: ~ 1, t ... ,, 

Evidence that the aircraft is loaded according to an approved schedule that 

insures that the center of gravity is within approved limits. 

E. FAA Order 2150.3B Chapter 7 and Appendix B, dated October 1, 2007 (Sanction 

Guidance). 

The Sanction Guidance contains tables that establish specific ·penalty ranges for 

different types of violations 

XII. Findings of Fact 

After consideration and review of all the evidentiary facts, testimony and 

evidence herein, by a preponderance of the evidence standard, we make the following 

findings: 

" .. ; " 

A. 14 C.F.R. Sections 119.5(gYand Jl9.5W 

Section 119. 5(g) prohibits an air carrier from operating in violation of its 

OpSpecs. SkyWest's OpSpecs obligate the carrier to use the procedures detailed in its 

Weight & Balance Manual for loading and counting baggage. The Manual, among other 

things, directs the carrier's designated loading agent to accurately prepare the flight's 

25 
CLR. The testimony and evidence showed that for flight N742SK/1160, SkyWest's CLR 

failed to properly reflect in the appropriate block the actual count of the different classes 

of baggage loaded onto the aircraft. The failure to accurately prepare the CLR, it is 

concluded, constitutes a violation of §119.5(~. ,:: 

Sky West's actions in loading and marking the CLRs for flight N7 42SKJ1160 also 

constituted a violation of FAR § 119.5 (l). This section prohibits Part 121 air carriers from 

operating in violation of OpSpecs. By failing to set·.out for each flight accurate 

information on the CLRs, SkyWest, a Part 121 air carrier, did not operate in conformance 

with its OpSpecs. It thus violated this section. 

B. 14 C.F.R. Sections 121.693(a). (c), and (d) 

Subsection (a) of§l21.693 requires a load manifest to contain the weight ofthe 

cargo and baggage. Subsection (c) compels the use of "approved procedures" in 

computing the total weight of the aircraft. Section 121.693(d) requires that the load 

manifest contain evidence that the a\rcrafdvas loaded according to an approved schedule 

which insures that the center of gravity is within approved limits. Construing these 

subsections together, as principles of statutory construction dictate, indicates that a 

carrier's load manifest will pass muster if it has been compiled using approved 

procedures, and that the method used insures that the center of gravity is within limits. 

The evidence shows that SkyWest followed these mandates. 

Salamone testified that for the fourteen (14) flights he reviewed, including 

N742SKJ1160, given the weights that the crews had recorded and believed that they were 

operating under, none of the flights exceeded maximum takeoff weight and none of the 

flights were unsafe in anyway. The crews' calculations were accurate as pertaining to the 

f.. •. '! . ' ··:;~... ~;'; 

26 
l, 

,. 

cargo and weight that they believed that they had and the calculations did not exceed the 

manufacturer's suggested limitations nor a8 perceived by the FAA inspectors. None of 

the flights would have been in excess of the manufacturer's limitations for takeoff weight, 

center of gravity, runway performance, climb performance, or maximum operating 

altitude. 

As noted earlier, SkyWest computed its load manifest from its CLR using its 

Manual's average weights program. SkyWest's OpSpecs required loading procedures to 

follow the Manual. The load manifest, then, used approved procedures to compute the 

weight of the baggage. No violation of §§121.693(a) and (c) thus could be proven. Nor 

was a §121. 693(d) violation proven; no evidence tended to demonstrate that the approved 

method failed to insure that the center of gravity was within approved limits. Indeed, 

Salamone's testimony and accompanying evidence suggested that the aircraft weight and 

center of gravity location fell within manufacturer recommendations and performance 

envelopes for every flightunder review?0 

Accordingly, the FAA, it is concluded, failed to prove that SkyWest violated 14 

C.F.R. Sections 121. 693(a), (c), and (d.) 

XIII. Conclusions 

Upon consideration of the totality of evidentiary facts and testimony, by a 

•' 

preponderance of the evidence standard, we find: 

A. The FAA proved that SkyWest violated 14 C.F.R. Section 119.5(g), and 14 C.F.R. 

Section 119.5(1). 

20 See In the Matter of Sky West Airlines, Inc., "Initial Decision of Administrative Law Judge" FDMS Nos. 

FAA~2011-0779, May 2, 2013; In the Matter ofSkyWest Airlines, Inc., "Initial Decision of Administrative 

Law Judge" FAA-2011-0485, FAA-2011-0486, May 2, 2013; 

27 
B. We find the FAA did not made a prima facie case with respect to the violations 

of 14 C.F.R. Section 121.693(a),J4 C.F.R. Section 121.693(c), and/or 14 C.FR. 

Section 121. 693(d), inclusiv.e and those:&iolations will be dismissed. 

XIV. Penalty and Mitigation Considerations 

SkyWest admitted allegations as set forth hereinabove. 

We found the violations of 14 C.F.R. Section 119.5(g), and 14 C.F.R. Section 

119.5(1). 

We found the FAA failed to make a prima facie case with respect to the 

violations of 14 C.F.R. Section 121.693(a),14 C.F.R. Section 121.693(c), and/or 14 

C. FR. Section 121. 693(d), inclusive. 

The FAA argued under the facts and circumstances of this case, a civil penalty 

of $40,000 was appropriate in this case. 

We note in FAA 2011-0485;'the i<'AA ~dtight a civil penalty of$99,000. In FAA 

2011-0485, the FAA sought a civil penalty of$33,000. In FAA-2011-0779, the FAA. 

sought a civil penalty of $33,000 

Sky West was cooperative and responsive to FAA concerns. 

The FAA had a cooperative working relationship with Sky West. 

Once notified of the violations, Sky West took swift, comprehensive corrective 

action including implementation of an SMS after the 2011 incidents, as set forth in 

testimony before the court and SkyWest's Post Hearing Brief. 

The FAA argued, and SkyWest admitted, thatSkyWest paid civil penalties in 

eight (8) previous cases involving loading of cargo contrary to approved procedures . 

. 1 .. \ :,~., • 1- ,., ·r'""'. :' 

28 
While a penalty calculated in accordance with the FAA's policy guidance should 

stand, absent a showing of a respondent's inability to pay, the evidence and testimony 

did not support the penalty requested. 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. 

Significantly, the violations found were technical in nature. They had no 

material effect on weight and balance or on aircraft performance. SkyWest showed that 

in no instance was safety of flight at even the sl{~htest risk (See Tr. p. 227, 1. 7 top. 281, 

1. 17.). 

As Sky West noted, the CLRs were not dispositive. The most important factor in 

the weight and balance context unquestionably was the load manifest. It. was this 

document that was computed by the flight crew and used by them to evaluate how their 

calculations will affect operational safety. The FAA failed to show for any of the flights 

that SkyWest failed to follow the scheme of its Weight & Balance Manual in deriving its 

load manifests. In fact the evidence showed that SkyWest's load manifest calculations 

were in accordance with its OpSpecs and Manual instructions in every instance. In 

addition, SkyWest implemented a new Safety M,.anagement System to address the 

·\ " ... 

violations. 

We find further that just one civil penalty per flight is approprh:ite. To assess a 

civil penalty based on the multiple violations per flight found is, under the circumstances, 

unfair, unwarranted, and disproportionate to the offenses. 

The two sections violated in each instance, 14 C.F.R. §§119.5(g) and 119.5(1), are 

not significantly different. The first prohibits operation as a direct air carrier in violation 

29 
of OpSpecs; the second prohibits operating under Part 121 in violation of OpSpecs. The 

distinction between the two provisions for ~he present purposes is inconsequential. As 

such, penalizing SkyWest for both violations would be unjustified. We note that the 

agency's civil penalty guidelines, FAA Order 2150.3B, take a similar stance: they advise 

that "[ w ]hen a single instance of noncompliance results in multiple violations of general 

and specific regulations involving the same or similar conduct, the FAA ordinarily does 

not compound the sanction ... " (FAA# C-40, p. 7-10). Under these circumstances, one 

civil penalty - in a minimal amount of $250 per violation- suffices. 

In sum, we find that the civil penalty appropriately accounts for the factors the 

statute and agency policy directs in fixing the assessment. 

All arguments by both parties have been carefully considered. Those not 

. . ··, . ,.a;,.~ 

explicitly discussed are rejected or Clismissbd as''mooted by this Initial Decision. 

WHEREFORE, evidence and testimony having been heard and considered it be 

and is hereby ORDERED as follo~s: 21 

1. We reaffirm our ruling and SkyWest's objection to the FAA's proffer of 

testimony from Ayers for reasons set forth hereinabove SkyWest's 

objection be and is hereby sustained. The testimony was not received. 

21 This decision may be appealed to the Administrator of the FAA. The notice of appeal must conform to 

sections 13.210, 13.211(e) and 13.233 ofthe Rules ofPractice, which require that a notice of appeal 1) be 

filed not later than 10 days (plus an additional five days if mailed) from the service date of this decision, 

and 2) be perfected with a written brief or memorandum not later than 50 days (plus an additional five, if 

mailed) from the service date of this decisiQn. The.pqtjc¢t'Qf appeal and brief or memorandum must either 

be a) mailed to the Federal Aviation Admi~istration, 800 Independence Avenue, S.W., Washington, DC 

20591, Attn: Hearing Docket Clerk, AGC-430, Wilbur Wright Building-Suite 2W1000, or b) delivered 

personally or via expedited courier service to the Federal Aviation Administration, 600 Independence 

Avenue, S.W., Wilbur Wright Building-Suite 2W1000, Washington, D.C. 20591, Attn: Hearing Docket 

Clerk, AGC-430. A copy of the notice of appeal and brief or memorandum also must be sent to agency 

counsel. Service upon the presiding judge is optional. 

30 
2. Sky West Airlines, Inc. be and is hereby assessed a civil penalty of 

$250.00 for violations of 14 C.F.R. Section 119.5(g), and 14 C.F.R. 

Section 119.5(1); and 

3. We find the FAA did not made a prima facie case with respect to the 

violations of 14 C.F.R. Section 121.693(a),l4 C.F.R .. Section 121.693(c). 

and/or 14 C.F.R. Section 121.693(d), inclusive and those violations be 

and are hereby DISMISSED. 

Richard C. Goodwin 

U.S. Administrative Law Judge 

Attachment - Service List 

31 
SERVICE LIST 

ORIGINAL & ONE COPY 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington, DC 20591 

Attention: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building-Suite 2W1 000 1 

Robert Spitzer, Complainant's Counsel 

Attorney, Office of the Regional Counsel 

Northwest Mountain Region, ANM-7 

Federal Aviation Administration 

1601 Lind Avenue, S.W. 

Renton, W A 98057 

TEL: 425-227-1847 

FAX: 425-227-1007 

ONE COPY 

Michael L. Dworkin, Respondent's Counsel 

Michael L. Dworkin and Associates 

465 California Street, Suite 210 

San Francisco, CA 94104-1808 

TEL: 415-421-2500 

FAX: 415-421-2560 

Todd C. Emerson, Esq. 

Director- Government and Legal Affairs 

SkyWest Airlines, Respondent 

444 South River Road 

St. George, UT 84 790 

TEL: 435-634-3530 

FAX: 435-634-3505 

FDMS Nos. FAA-20 13-06\7 

& FAA-2013-0619 

(Civil Penalty Action) 

1 Service was by U.S. Mail. For service in person or by expedited courier. use the following address: Federal 

Aviation Administration, 600 Independence Avenue, S.W., Wilbur Wright Building--Suite 2W 1000, Washington, 

DC 20591; Attention: Hearing Docket Clerk, AGC-430. 
The Honorable Richard C. Goodwin, Administrative Law Judge . 

Office of Hearings, M-20, 

U.S. Department of Transportation 

1200 New Jersey Avenue, S.E. (E 11-31 0) · 

Washington, DC 20590 

TEL: 202-366-2139 Attorney-Advisor 

202-366-5121 Legal Assistant 

FAX: 202-366-7536