### 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 ACARS
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 ofFederal Regulations Cargo Load Report Center of**Gravit~** City ofColorado 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 onJuly 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 Wallentine W&BManual Weight & Balance Operations PartXII SP 4100 II. Introductory Comment This case was consolidated with other cases with similar facts, issues and defenses by consent ofthe 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 ofColorado 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 ofProposed Civil Penalty that the Federal Aviation Administration, (hereinafter "FAA'') proposed to assess a civil penalty inthe amount of $40,000 for violation ofthe Federal Aviation Regulations (hereinafter "FARs"). On July 23, 2013, SkyWest through its legal counsel, submitted a written request for a hearing.

1SkyWest Airlines DocketNumbers 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 similarviolations ofthe FARs, similar issues and similar defenses ofSky 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., ofDworkin & Associates, San Francisco, California 94104 and Todd C. Emerson, ESQ., General Counsel, SkyWest Airlines, St. George, Utah. Post hearing briefs were filed byboth parties. The matter is nowready for decision. V. Jurisdiction SkyWest was at all times material hereto the holder ofScheduled 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 ofProof**~·** 

### ,,**·-~ ~;~--**  . The FAA was the petitioningpart§.'With the initial burden ofproof(14 C.F.R. 

### § 13.224). 

### VII. Allegations A. FAA's recitation offacts
3

### The FAA alleged: l. Sky West was at all times material herein the holder ofScheduled Air Carrier CertificateNo. SWIA011A, and conducted its operations pursuantto Part 121 ofthe Federal Aviation**~egula~Jpn,s**(hereinafter "FAR"). 2. Paragraph 0085 ofSkyWest's Operations Specifications (hereinafter "OpSpecs") authorized SkyWestto 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-600-2C1 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 "StandardChecked Bag" as a "checkedbag 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 ofall checked baggage (either standard.or heavy). The designated loading agent mustmarkthe number of standard and heavy checked baggage on the Cargo Load Report (hereinafter "CLR")".

;. ,, 47. SkyWest's W&B Manual (Temporary Revision 11-4 dated 14 FEB 11),**Chap~er** 3, paragraph 21.2 stated that "[u]pon completion ofloading the cargo bin/pit, the designated loading agent must verify the piece count ofall 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 CLRto construct the ACARS 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.ofstandard checked baggage loaded in each cargo bin/pit inthe appropriate "Standard Checked" block onthe CLR. 10. SkyWest's W&B Manual (Original revision dated 01 APR 10), Chapter 4, paragraph 11

- Aircraft Loading, containedthe warning: WARNING -INACCURATE LOADING, REPORTING, ORFAILURE 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 checkedbags onto N742SK/1160. 

### 13. The CLR for N742SK/1160 listed thirty-six (36) standard checkedbags on board. 

### 514. The date on the CLRwas used to constructthe ACARS loadmanifest for N742SK/1160. 15. SkyWestthereafter**oper~ted** N742SI.}/1160 from IAH to COS.**~' ~'1'/**  I •**~-** . 16. By reason ofthe foregoing facts and circumstance, the FAA alleged SkyWest violatedthe following sections ofthe FARs 

### (14 C.F.R.):
a. 14 

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

### C.F.R. 

### § 119. 5(l) in that 

### itoperated aircraft under Part 121 in violation ofits OpSpecs.
c. 14 

### C.F.R. § 121.693(a) in that it operated flights without a load manifest that accurately reflected the weight ofthe cargo and baggage. d. 14 

### C.F.R. § 121.693(c) in that it operated flights whenthe 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 ofthe violations noted. Under the facts and circumstances ofthis case, the FAA alleged a civil penalty of$40,000 was appropriate. B. SkyWest's recitation offacts Answering Section I ofthe Complaint, SkyWest averred:

6Sky West admitted that 

### itwas advised through a FinalNotice ofProposed Civil Penalty onJuly 18, 2013 thatthe 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 ofthe 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 containedtherein, and each and every partthereof, both generally and specifically, conjunctively and disjunctively. Thereafter it further answered: 1. Answering Paragraph 1, SkyWest admitted thatitwas at all times material hereto, the holder ofScheduled Air Carrier Certificate No. SWIA011A, and conducted its operations pursuantto Part 121 ofthe FARs. 2. Answering Paragraph 2, Sky West admitted thatParagraph D085 ofits OpSpecs authorized SkyWe.stto use N742SK, a Bombardier CL-600-2C10 civil aircraft, inthe conduct ofits**PE~;tt** 121 operations. SkyWest further ,<\ :.. averred that Paragraph DOSS further spoke for itself. 3. Answering Paragraph 3, SkyWest admitted that Paragraph A098 ofits OpSpecs requiredthat aircraft loading for Bombardier CL-600-2B19 aircraft be accomplished in accordance with SkyWest's W&B Manual. SkyWest further averred thatParagraph 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-600-2C10 airchtft. .,. 5. Answering Paragraph 5, SkyWest admitted that SkyWest's W&BManual 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 pertinentpart, "designated CS Ground Operations loading agent evaluates the classification ofall checked baggage (either standard orheavy). The designated loading agent must mark the number ofstandard and heavy checkedbaggage on the CLR". 7. Answering Paragraph 7, SkyWest admitted that SkyWest's W&B Manual stated, in pertinent part,

# ;j'[u]po~:~6m;letion ofloading the cargo bin/pit, the designated loading agent must verity the piece count ofall Standard Checked, Heavy Checked, and Planeside Loaded/Service Item Baggage
..." 8. Answering Paragraph 8, SkyWest admitted that SkyWest's W&B Manual stated, in pertinentpart, that the flight deck crewmember will use the information from the CLR to construct the ACARS load manifest. 9. An.swering Paragraph 9, SkyWest admitted that SkyWest's W&B Manual required the loading agent to mark the number ofstandard checked bags on the CargoLoadReport (CLR). 10. Answering Paragraph 1**SkyW~st** 

### admitted that SkyWest's W&B Manual ; 

### contained the warning:
8WARNING-INACCURATE LOADING, REPORTING, OR FAlLURE 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 onJuly 14, 2011, at IAH, SkyWest loaded passengers and baggage onto N742SK/1160 bound for COS. 12. Answering Paragraph 12, SkyWest admittedthat forty-three (43) standard checked bags were loaded**on~oN74&.~K/1160.** 13. Answering Paragraph 13, SkyWest contended it was without information or beliefsufficient for itto 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 ofthe data utilizedto construct suchmanifests. 15. Answering Paragraph 15, SkyWest averredN742SK/1160 was operated from IAHto COS. Answering SectionIII ofthe 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 deniedthat it violated the cited sections ofthe FAR's, or any other provisions ofthe 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, inhis 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 ofthe 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 partthereof, 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 bythe 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:.** TheFAA's case, was unwarranted an.d withoutbasis orjurisdiction in law or fact. 3. Third Affirmative Defense
10They complained ofaircraft weight differentials, ifany, were nominal at best and had absolutely no effect on aircraft center ofgravity, performance, performance computations or safety. 4. Fourth Affirmative Defense

. Sky Westproactively mitigated any and all damage such thatthis action was unwarranted by pQlicy orthe need for safety. 2

. ' \ 5. Fifth Affirmative Defense The average weight programs contemplated by ACI20-27E fully acknowledged that the use ofactual 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 ofthe aircraft. Moreover, SkyWest attempted to obtain FAA approval ofa modification to its W&B Program, similarto that which the FAA had previously approved for at least one other FARPart 121 certificated air carrier, to permit small variances inbaggage counts, necessitatedby operatiopal

### consider~t~ons. Despite Sky West's having demonstrated that at least an equivalent level ofsafety could be maintained, the FAAhad arbitrarily and unreasonably refused SkyWest's requests, apparently preferring to initiate enforcement actions and seekthe imposition ofexorbitant civil penalties for small variances inbaggage counts even though there had beenno 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 ofsimple human arithmetic error and inno way were indicative ofSkyWest'sregulatory 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. SeventhAffirmative 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 LawJudge, heard multiple cases3 with the same or extremely similar facts where Complainant sought a $33,000 penalty per flight and inhis Initial Decision served
onMay 2, 2013, Judge Goodwin determined thatthe proper sanction for each
case was $250, Complainant did not appeal. Notwithstandingthis, 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 ofFARSections**121.69~,(a),** (c) and (d) based onthe 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. 

### 12established 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 ofthis case, was a civil penalty of$40,000 appropriate. IX. Summary ofTestimony andEvidence All admitted testimonial and documentary evidence was reviewed and considered. Only briefhighlights are summarizedherein. A. Agency's Case Michele Wallentine The FAA called Michele Wallentine**(he~einafter** "Wallentine") 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 ofthe 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) standardbags. 5 She obtained a copy ofthe CLR and thenthe ACARS load manifest from the flight crew. She identified FAA# C-32 as a true copy ofthe CLR and FAA# C-33 as a copy ofthe load

4 Tr. p. 113, I. 1top. 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 ofstandardbags onthe CLR did notmatchup correctly with the number ofbags she countedthat 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 ofcounting baggage. There were other flights on those days into COS which had no discrepancies. Wallentine believed she observed ten (10) flights on each ofthe days she conducted bag counting surveillance on each ofthe 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 ofthe cases in the consolidated docket. Ayers had worked in the aviation industry for nineteen (19) years, hadbeen a Pilot in Command (hereinafter-"PIC") on EMB-120 and CL-65 aircraft for approximately nine (9) years. He hadbeen with the FAA approximately six (6) years atthe SkyWest Certificate Management Office. He was the "Principle Operations Inspector" (hereinafter "POI") for SkyWestandhad the overall responsibility for all ofthe 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. 1top. 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 ofaircraft as well as training specific to the type aircraft at issue inthese cases. Ayers was familiar with SkyWest's Weight and Balance program and as SkyWest's POI, 

### itwas 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 orthe. weight ofcargo loaded onthe aircraft. A 'standard bag' was a term used for an average bag assigned a weight ofthirty (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 ofsixty (60) pounds. Plane side loaded valet bags
were assigned a weight ofthirty (30) pounds which included a weight range do ofzero (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 FAAproffered evidence ofa 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** ofload manifests. ; >: . f•. •

. s**~** 15...the accident in question involved an aircraftthat was loaded no[t] in compliance withthe operator's approved weight andbalance 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 takeoffand crashed, killing all persons aboard
... The proffer offered no testimony ofthe type aircraft; when orwherethe accident occurred; weather conditions; flight conditions; what information was incorrectly provided; weight and balance program ofthe aircraft and/or carrier; or any other factors which would show any relevance to the facts ofthis case. We reaffirm ourruling and the objection was sustained. The testin;10ny was not•received. With respect to N742SK/1160 10Ayers testified the weight ofcargo listed onthe load manifest did not correlate withthe cargo weight calculated using the CLR (see FAA# C-32 and C-33). Ayers further

### testifi~d that in a couple ofthe cases11 where the load manifest weight matched the CLRthere was still a violation ofthe approved programbecause the program described procedures

### fo~ completion ofthe CLR, and failure to follow those procedures was still a violation. Whether or notthe number was correct was not relevant to whetherthose procedures were actually followed. Ayers drew an analogy that, it was not enoughto get the right answer, butto show your workto get the answer andthat work also had to.be correct.

## Ayerslestifl~3-he b;lievedthere was an unknown impact on safety posed bythese discrepancies, but**~hat** he was not surprisedthatthe aircraft were operated withintheir 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. 16Cross 13 Ayers testified the front side ofthe CLRworksheet was where the math was tallied up while the back side ofthe.CLR**~ils.t4e** worksheet to assist the loading agents t "
. ' in counting. Ayers admitted that as part ofthe investigation itwould have been beneficial to have copies ofthe backside ofthe CLR. Ayers admitted his testimony was predicated uponthe assumption that when the inspectors counted the offloaded baggage they were counted correctly. Ayers testified that in 2011 SkyWest did nothave a Safety Management System (hereinafter "SMS"). SMS was a series oftools and programs that allowed SkyWest to identify risks and mitigate those risks with processes and procedures inplace to identify howthey 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 afterthe 2011 incidents. I" ol. bt '.1 : ,. Redirect14 Ayers testified both copies ofthe CLR should be updated with any last minute changes. Ifthe load manifest was inaccurate, the process wasn't followed. COMAT was required to be marked onthe CLR as COMA T and ballast was required to be marked on the CLR as ballast. 

### Ifa live animal was onboard, that was required to be reflected onthe 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 ofthirty (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 notreceived [see SW# 1); Judicial Notice was taken ofFAA# 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 ofthe administrative record. B. SkyWest's Case Carl Salamone, deposition transcript, 2014050616 

### The testimony ofCarl Salamone (hereinafter "Salamone") was taken by deposition (SW# 3-3) 

### and introduced into the record by agreement ofthe parties. Counsel for bothparties were present atthe deposition. Salamone's testimony was applicable to all ofthe cases inthe 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 ofaircraft. He had 4200 flight hours, ofwhich 3200 were in CRJs. Hehad a Bachelor ofScience degree in electrical engineering and a Bachelor of Science degree in aviation human factors, from the University ofIllinois. Aviation 

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

### 18factors was the study ofhuman factors principles inresearch and psychology as itrelated specifically to aviation inthe

### huma~ eleine.nts.ohwiation safety, including weight and balance**syst~ms.** For five (5) years he had been a member ofa special projects group which, among otherthings, involved analysis ofweight and balance. Salamone estimated he had flown about 3,000 flights. Each flight required a weight and balance calculation priorto 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 ofcalculation of aircraft weight and balance and the effects ofthat weight and balance on the aircraft performance. Salamone reviewed SW# R-1, a weight and balance analysis covering arer .**\-:{,i--~** ,_.,**·J~~;** . creation ofthe fourteen (14) flights based on the·data available to him onweight and balance as calculated by the crew and also the alleged weight and balance as it would have been observedby an inspector(s) for each ofthe 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, ifavailable, the inspector's statement from the FAA, as far as the alleged weight or items that may have beenpresent and the manufacturer documentation for the Canadair seriesjetsto 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 ofthe aircraft inthe



## . r .-,**~., '~i**  .**···~** takeoffconfiguration, as it wouldbeginthe takeoffsegment ofthe flight. It was the full

19weight ofthe airplane immediatelyprior to beginning takeoff, including passengers, cargo, ballast, et al. Aircraft takeoffCenter ofGravity (hereinafter "COG") Was the location ofthe centerofgravity at a pointonthe airplane and calculated to ensure that the plane remained inbalance for the manufacturer's specifications throughoutthat flight. COG
was a single point, a mathematical point. Itwas a single point like a teeter-totter, where that airplane wouldbalance on one partictJ,larpOint where the weight was mathematically
seen onthat location on the airplane. COGwas important for stability reasons, for control reasons, and 

### itwas reallyjust a major part ofthe physics offlight, 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 meantthat the airplane would notbe 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 wouldbe able to obtain its operating altitude for all phases offlight and complete that flight as planned. Salamonetestifiedthat for tlb.e

## fo~rt6e:nd4) flights hereviewed, giventhe weights that the crews hadrecorded and believedthatthey were operating under, none of the flights exceededmaximumtakeoffweight and none ofthe flights were unsafe in anyway. In Salamone's opinion, taking into account the additional weights observedby the FAA inspectors, none ofthe aircraft exceeded tolerances nor were the flights unsafe. In his opinion, the crews' calculations were accurate as pertainingto 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 ofthose factors, either as calculated by the SkyWest crews at the time or adjusting for the observed variations by FAAinspectors, in Salamone's opinion, none ofthe flights would have beenin excess ofthe manufacturer's limitations for takeoffweight, center ofgravity, 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 takeoffweight. The actual gro·ss weightwould have still been well belowthe maximum takeoffweight of just over 73,000 pounds. N744SK/1160 was still below maximum takeoffweight. The COG gravity would have shifted from approximately one-halfof**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,justbecause it costs
more to fly around the extra weight. However, SkyWesthas a policy ofadding contingency fuel that was above and beyond the federal required fuel and any nominal increase inburnwould have been accounted for and included in that contingency fuel. It 

### would nothave impacted safety. Salamone described the human factors involved inloading an airplane and

., 

### counting bags.

### H~ described the m6st dif:ti'cult

### ~~pect ofaircraft 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. 

### 21have light, darkness issues, as well a flurry ofactivity making focus difficult for that particular employee. Itwas a very active areathat could cause, perhaps, a pause in counting orbags arriving at different times from different connecting flights. Salamone described thathumans 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 testifiedthe 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 ofclimb, a lower angle ofclimb, 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 exceedingthe aft or forward limitation ofthe aircraft would affectperformance. The CLRis one ofthe documents used to generate the load manifest. The load manifest was the documentthat contained the aircraft gross weight and center ofgravity location,**.~** ),,; l"
. '**·..i~~·** which was then used to determine performaii'db requirements. Christopher C. Brown19 Christopher C. Brown (hereinafter "Brown") was the Director ofAircraft Operations for Sky WestAirlines. 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 inthe 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 withthe**CL~65,** a flight instructor certificate, an advanced flight instructor or art advanced ground instructor certificate. Brown's testimony was applicable to all ofthe cases in the consolidated docket.Browntestified about SW#**R5~1,** which was a letter.to the CMO, to**Mr~** Ayers, requesting consideration for a proposed amendmentto the approved weight and balance programto allow for human factors errors in bag counting. The proposal would artificially add a specific amount ofweight to the basic operating weight ofeach aircraft. In doing so, the performance calculations would be performed as ifthe weightwas 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 waythat for small miscounts, the Sky West weight and balance program would assure that the aircraft would always remain within the manufacturer's operating envelope. Browntestified 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 ofall witnesses to have beentruthful and credible. 

### X. Brief Summary ofEvidence 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 checkedbags onboard. The date on the CLR was used to constructthe ACARS load manifest for N742SK/1160.**SkyW~st** 

### thereafter operatedN742SK/1160.to l·
..,.!. \
... ' . 

## cos. XI. Law A. The FAA has the burden ofproof, except for affirmative defenses 14 C.

### F.R. §§ 13.224(a) and (c). 

### The standard is a preponderance ofreliable, probative, and substantial evidence 14 C.

### F.R. § 13.223. 

### B. 49 US.C. Sections 46301(a) and (d) 

### (Transportation) provide for the imposition ofcivil penalties in FAA cases. A personis liable to the United States Government for a civil penalty ofnot more than $25,000 for violating
... (B) a regulation prescribed or order issued under any provision to which clause (A) ofthis 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 ofany deviation or exemption authority, ifissued to that person orthat person's representative. 2. 14 C.F.R. Section 119.5(1); 

### provides: No person may operate an aircraft under this part, part 121 ofthis chapter, orpart 135 ofthis chapter inviolation ofan air carrier operating certificate, operating certificate, or appropriate operations specifications issued under this part. .D. 

### 14 C.F.R. § 

### 121.693 Loadmanifest: All certificate holders The load manifest must contain the following information concerning the loading ofthe airplane at takeofftime: · 1. 

### 14 C.F.R. Section 121.693(a), provides: The weight ofthe aircraft, fuel and oil, cargo and baggage, passengers and crewmembers. 2. 

### 14 C.F.R. Section 121.693(c}, provides: Thetotal 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 ofgravity 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 ofviolations XII. Findings ofFact After consideration and review ofall the evidentiary facts, testimony and evidence herein, by a preponderance ofthe evidence standard, wemake the following findings:

" .. ; 

### " A. 

### 14 C.F.R. Sections 119.5(gYandJl9.5W Section 

### 119.5(g) prohibits an air carrier from operating in violation ofits 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 agentto accurately prepare the flight's

25CLR. The testimony and evidence showed that for flightN742SK/1160, SkyWest's CLR failed to properly reflect in the appropriate blockthe actual count ofthe different classes ofbaggage 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 N742SKJ1160 also constituted a violation ofFAR §119.5(l). This section prohibits Part 121 air carriers from operating in violation ofOpSpecs. By failing to set·.out for each flight accurate information onthe CLRs, SkyWest, a Part 121 air carrier, did not operate in conformance with its OpSpecs. 

### Itthus 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 containthe weight ofthe cargo and baggage. Subsection (c) compels the use of"approvedprocedures" in computing the totalweight ofthe aircraft. Section 121.693(d) requires that the load manifest contain evidence that the a\rcrafdvas loaded according to an approved schedule which insures thatthe center ofgravity is within approved limits. Construing these subsections together, as principles ofstatutory construction dictate, indicates that a carrier's load manifest will pass muster ifit has been compiled using approved procedures, and thatthe method used insures that the center ofgravity is within limits. The evidence shows that SkyWest followed these mandates. Salamonetestified that for the fourteen (14) flights he reviewed, including N742SKJ1160, given the weights that the crews hadrecorded and believedthatthey were operating under, none ofthe flights exceeded maximumtakeoffweight and none ofthe flights were unsafe in anyway. The crews' calculations were accurate as pertaining to the f.. •. '! . '**··:;~... ~;';**  26l, ,.

cargo and weight that they believed thatthey had and the calculations did not exceedthe manufacturer's suggested limitations nor a8 perceived by the FAA inspectors. None of the flights would have been in excess ofthe manufacturer's limitations for takeoffweight, center ofgravity, runway performance, climb performance, or maximum operating altitude. As noted earlier, SkyWest computed its load manifest from its CLRusing 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 ofthe baggage. No violation of§§121.693(a) and (c) thus could beproven. Nor
was a §121. 693(d) violation proven; no evidence tended to demonstrate that the approved method failed to insure that the center ofgravity was within approved limits. Indeed, Salamone's testimony and accompanying evidence suggested that the aircraft weight and center ofgravity location fell within manufacturer recommendations andperformance envelopes for every flightunder review?0 Accordingly, the FAA, 

### itis concluded, failed to provethat SkyWest violated 14 C.F.R. Sections 121. 693(a), (c), and (d.) XIII. Conclusions Upon consideration ofthe totality ofevidentiary facts and testimony, by a
•' preponderance ofthe evidence standard, we find: A. The FAAproved that SkyWestviolated 14 C.F.R. Section 119.5(g), and 14 C.F.R. Section 119.5(1).

20 See In the Matter of SkyWest Airlines, Inc., "Initial Decision ofAdministrative Law Judge" FDMS Nos.**FAA~2011-0779,** May 2, 2013; In the Matter ofSkyWestAirlines, Inc., "Initial Decision ofAdministrative Law Judge" FAA-2011-0485, FAA-2011-0486, May 2, 2013; 

### 27

### B. We find the FAA did not made aprimafacie 

### 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 of14 

### 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 ofthis 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 FAAhad a cooperative working relationship with SkyWest. Once notified ofthe violations, SkyWest took swift, comprehensive corrective action including implementation ofan 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, thatSkyWestpaid civil penalties in eight (8) previous cases involving loading ofcargo contrary to approvedprocedures
.

. 1
..\**:,~.,**

• 1- ,., ·r'""'. :'



### 28

### While a penalty calculated in accordance with the FAA's policy guidance should stand, absent a showing ofa respondent's inability to pay, the evidence and testimony did not support the penalty requested. While the FAAwas 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 aircraftperformance. SkyWest showed that in no instance was safety offlight 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 howtheir calculations will affect operational safety. The FAA 

### failed to show for any ofthe flights that SkyWest failed to follow the scheme ofits Weight & 

### Balance Manual in deriving its load manifests. In fact the evidence showedthat 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 thatjust one civil penalty per flight is approprh:ite. To assess a civil penalty based onthe 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


### 29ofOpSpecs; the secondprohibits operating under Part 121 in violation ofOpSpecs. The distinction betweenthe two provisions for**~he** presentpurposes is inconsequential. As such, penalizing SkyWest for both violations would be unjustified. We note thatthe agency's civil penalty guidelines, FAA Order 2150.3B, take a similar stance: they advise that "[ w]hen a single instance ofnoncompliance results in multiple violations ofgeneral and specific regulations involving the same or similar conduct, the FAA ordinarily does not compound the sanction
..." (FAA# C-40, p. 7-10). Underthese circumstances, one civil penalty

- in a minimal amount of$250 perviolation- 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 bothparties have been carefully considered. Those not

. .··, .**,.a;,.~** explicitly discussed are rejected or Clismissbd as''mooted by this Initial Decision. WHEREFORE, evidence and testimony having beenheard and considered itbe 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 objectionbe and is hereby sustained. The testimony was notreceived.

21 This decision may be appealed to the Administrator ofthe FAA. The notice ofappeal must conform to sections 13.210, 13.211(e) and 13.233 ofthe Rules ofPractice, which require that a notice ofappeal 1) be filed not later than 10 days (plus an additional five days ifmailed) from the service date ofthis decision, and 2) be perfected with a written briefor memorandum not later than 50 days (plus an additional five, if mailed) from the service date ofthis decisiQn. The.pqtjc¢t'Qfappeal and briefor 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, orb) delivered personally or via expedited courier service to the Federal Aviation Administration, 600 Independence Avenue, S.W., Wilbur Wright Building-Suite2W1000, Washington, D.C. 20591, Attn: Hearing Docket Clerk, AGC-430. A copy ofthe notice ofappeal and brieformemorandum also mustbe sent to agency counsel. Service upon the presidingjudge is optional. 302. SkyWest 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 notmade a 

### primafacie 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-Suite2W1 000 1

Robert Spitzer, 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: 425-227-1847 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 84790 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 LawJudge
. Office ofHearings, M-20, U.S. Department ofTransportation 1200 NewJersey Avenue, S.E. (E11-310) · Washington, DC 20590 TEL: 202-366-2139 Attorney-Advisor 202-366-5121 Legal Assistant FAX: 202-366-7536