'( 

### SERVED: July 16, 2015 U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, DC
IN THE MATTER OF SKYWEST AIRLINES DOCKET 

### NO. FAA-2012

- 0868 (Civil Penalty Action) 

### :3 i :

INITIAL DECISION OF ADMINISTRATIVE LAW JUDGE I. Glossary ACARS
A&P ASI Ayers Brown C.F.R. CLR CLT CMO COG ESI FAA Aircraft Communications Addressing and Reporting System Airframe and Power Plant certificate Aviation safety inspector AndrewJanies Ayers Christopher C. Brown Code ofFederal Regulations Cargo Load Report Charlotte/Douglas International Airport, Charlotte, NC Certificate Management Office Center ofGravity Element Performance Inspection Federal Aviation Administration, Complainant : ;: .FAR Federal Aviation Regulation IAH George BushInternational/Houston Airport, Houston, TX N937SW/5840 SkyWest flight from IAHto CLT onJune 2, 2011 OpSpecs Operations Specifications Perkins Adam Scott Perkins, FAA inspector Salamone Carl Salamone, SkyWest witness SkyWest SkyWest Airlines, Inc., Respondent SMS Safety Management System U.S.C. United States Code W&BManual Weight & Balance Operations PartXII SP 4100 II. Introductory Comment This case was consolidatedwith other cases with similar facts, issues and defenses by consent ofthe parties. 1 This case involved SkyWest flight N937SW operated as Flight 5840 (hereinafter ''N937SW/5840") from George BushInternational/Houston Airport (hereinafter "IAH"), Houston, TX to Charlotte/Douglas International Airport (hereinafter "CL T"), Charlotte, NC on June 2, 2011. III. Procedural History On July 26, 2012, Sky West!Airlines,

# inc:, (hereinafter "SkyWest") was advised through a Final Notice ofProposed Civil Penaltythatthe Federal Aviation Administration (hereinafter "FAA")proposed to assess a civil penalty in the amount of $40,000 for violation ofthe Federal Aviation Regulations (hereinafter "FAR").

1 SkyWest 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. 2OnAugust 8, 2012, SkyWest Airlines, Inc., through legal counsel, submitted a written request for a hearing. On August 15, 2012, the FAA filed its Complaint. On September 17,2012, SkyWest filed its Answer. On June 21,2013, SkyWest filed its Amended Answer. By Order dated August 21, 2013 we consolidated this case with other cases with similar violations ofthe FARs, similar issues and similar defenses ofSky West. IV. Hearing A hearing was held in Salt Lake City, UT., on May 19,2014 inthe consolidated
cases. The FAA was represented by Jeffrey Harper, Esq., FAA Office ofRegional Counsel, Renton, Washington. SkyWest was represented by Michael L. Dworkin, Esq., ofDworkin & Associates, San Francisco, California 94104 and Todd C. Emerson, ESQ., General Counsel, SkyWest Airlines, St. George, Utah. Post hearing briefs were filed by bothparties. The matter is nowready for decision. V. Jurisdiction SkyWest was at all times material hereto the holder ofScheduledAir Carrier Certificate No. SW1A011A, and conducted its operations pursuant to Part 121 ofthe Federal Aviation Regulations (FAR) and was subject to those regulations.

3

### VI. Burden ofProof The FAAwas the petitioning party withthe initial burden ofproof(14 

### C.

### F.R. § 13.224). VII. Allegations A. The FAA's recitation offacts The FAA alleged: Section II (FAA's Complaint) 1. SkyWestwas at all times material hereinthe holder ofScheduled Air Carrier CertificateNo. SWIA011A, and conducted its operations pursuantto Part 121 ofthe Federal Aviation Regulations (hereinafter "FAR"). 2. Paragraph D085 ofSkyWest's Operations Specifications (hereinafter "OpSpecs") authorized Sky West to use N937SW, a Bombardier Ct-600-2B19 civil aircraft, inthe conduct ofSkyWest's Part 121 operations. 3. Paragraph A098 ofSkyWest's OpSpecs required that aircraft loading for BombardierCL-600-2B19 aircraft be accomplished in accordance with SkyWest's Weight & Balance Operations Manual, SP4100, (hereinafter "W&B Manual"), "PartXII, revision Orig. of 1 APR 10."

:, 'I' 4. SkyWest's W&B Manual containedthe loading schedules and instructions for SkyWest's Bombardier CL-600-2B19 aircraft. 5. SkyWest's W&B Manual, Chapter 2, paragraph 2.A.58 defined "Standard Checked Bag" as a "checkedbag weighing 50 lb. or less." 6. SkyWest's W&B Manual, Chapter 2, paragraph 2.A.50 defined "Planeside Valet Bag" as "[e]quivalentto a Planeside Limited Bag or Service Item."

47. SkyWest's W&B Manual, Chapter 2, paragraph 2.A.55 defined "Service Item"
as "[ e]quivalent to a Planeside Loaded or Planeside Valet Bag. 11 8. SkyWest's W&B Manual, Chapter 2; paragraph 2.A.49 defined "Planeside Loaded Bag as 11[a]nybag or item that is placed at the door or steps ofan aircraft or inthe passenger loading bridge and subsequently placed in the aircraft cargo bin/pit. Referred to as Planeside Valet/Service Item onthe Cargo Load Report [hereinafter "CLR"]. 11 9. SkyWest's W&B Manual (Temporary Revision dated 14 FEB 11), Chapter 3, paragraph 3.B.2 stated the flight deck crewmember used the information from the CLRto constructthe Aircraft Communications Addressing and Reporting System (hereinafter "ACARS") load manifest. 10. SkyWest's W&B Manual (Temporary Revision dated 14 FEB 11), Chapter 3, paragraph 2.D.l statedthe**11**

## desfgnat~J'cn Ground Operations loading agent evaluates the classification ofall checked baggage (either standard orheavy). The designated loading agent mustmarkthe number ofstandard and heavy checked baggage onthe CLR. 11 11. SkyWest's W&B Manual (Temporary Revision dated 14 FEB 11), Chapter 3, paragraph 2.1.2 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
... 11 12. SkyWest's W&B Manual, Chapter 4, paragraph 8.8, required the loading agent to write the total number ofstandard checked baggage loaded in each ' ,. cargo bin/pit in the

### appr~priate**11**

### St~dard Checked" block onthe CLR.

513. SkyWest's W&B Manual, Chapter 4, paragraph 8.10, required the loading agent to write the total number ofPlaneside Valet/Service Items loaded in each cargo bin/pit in the appropriate "Planeside Valet/Service Items" block on the CLR. 14. SkyWest's W&B Manual, Chapter 4, paragraph 11- Aircraft Loading, containedthe warning: WARNING- INACCURATE·.tOADING, REPORTING, OR FAILURE TO REPORT INFORMATION COULD CAUSE ISSUES WITH AIRCRAFT PERFORMANCE AND HANDLING, RESULTING IN THE ENDANGERMENT OF HUMAN LIFE Section III (FAA's Complaint) 15. On June 2, 2011, at IAH, SkyWest loaded passengers and baggage onto N937SW/5840 bound for CLT. 16. SkyWest's personnel at IAH loaded twenty-seven (27) standard checkedbags and twenty (20) planeside loaded bags onto N937SW/5840. 17. The CLRfor N937SW/5840 listed nineteen (19) standard checked bags and fifteen (15) planeside loaded bags on board N937SW/5840. 18. The inaccurate data on**t~e** CLR,**~~~·used** to prepare the ACARS load manifest forN937SW/5840. 19. SkyWestthereafter operatedN937SW/5840 from IAH to CLT. SectionIV (FAA's Complaint) 20. SkyWestpaid civil penalties in eight (8) previous cases involving loading of cargo and baggage contrary to approved procedures. Section V (FAA's Complaint)

621. Byreason ofthe foregoing facts and circumstances, the FAA alleged SkyWest violatedthe following sections ofthe PARs (14 C.F.R.): ( ·:)i' ,. :.. ! .· a. 14 C.F.R. Section 1i9.5(g), in.that, as a direct air carrier, SkyWest operatedin violation ofan appropriate operations specifications. b. 14 C.F.R. Section 119.5(1), in that SkyWestoperated aircraft under Part 121 in violation ofits operations specifications.
c. 14 C.FR. Section 121.693(a), inthat SkyWest operated flights without a loadmanifestthat accurately reflected the weight ofthe cargo and baggage. d. 14 C.F.R. Section 121.693(c), in that SkyWest operated flights whenthe total weight ofthe aircraft was not computedunder approved procedures.
e. 14 C.FR. Section 121.693(d), inrP-at SkyWest operated flights whenthe

.**:.~** .. aircraftwas not loaded according to an approved schedule. 22. The FAA alleged in accordance with49 UnitedStates Code (hereinafter "U.S.C.") Sections 46301(a) and (d) (Transportation) Sky Westwas liable for
a civilpenalty notto exceed $27,500 for each ofthe violations noted. 23. The FAA alleged underthe facts and circumstances ofthis case, a civil penalty of$40,000 was appropriate. B. SkyWest's recitation offacts Answering SectionI ofthe Complaint, Sky West averred:

I(,

7SkyWest admitted that it was advised through a FinalNotice ofProposed Civil Penalty that the FAA, proposed to assess a civil penalty in the amount of$40,000, and on August 8, 2012, SkyWest submitted a timely written request for a hearing. Answering Section II ofthe Complaint, SkyWest averred: 1. In response to Paragraph 1, SkyWest admitted that itwas at all times material hereto, the holder ofScheduled Air Carrier CertificateNo. SWIA011A, and conducted its operations pursuant to Part 121 ofthe FARs. 2. In Response to Paragraph 2, SkyWest admitted that Paragraph D085 ofits OpSpecs authorized SkyWestto use N937SW, a Bombardier CL-600-2B19 civil aircraft, inthe conduct ofits Part 121 operations. 3. In response to Paragraph 3, SkyWest admitted that Paragraph A098 ofits OpSpecs required that aircraft loading for Bombardier CL-600-2B19 aircraft be accomplished in accordance with SkyWest's W&B Manual, "PartXII, revision Orig. of 1Apr 10". 4. In response to Paragraph 4, SkyWest admitted that its W&B Manual contained the loading schedules and instructions for SkyWest's Bombardier CL-600-2B19 aircraft.'· .:.l::
.., i ·,,

·.'. 5. In response to Paragraph 5, SkyWest admitted that SkyWest's W&B Manual, Chapter 2, paragraph 2.A.58 defined "Standard Checked Bags" as "checked bags weighing 50 pounds or less". 6. Inresponse to Paragraph 6, SkyWest's admitted that its W&B Manual, Chapter 2, paragraph 2.A.50 defined "Planeside Valet Bag" as "[e]quivalent to a Planeside Loaded Bag or Service Item".

8

':,.**,~).**7. In response to Paragraph 7, SkyWest admitted that its W&B Manual, Chapter 2, paragraph 2.A.55 defined "Service Item" as [e]quivalent to Planeside Loaded orPlaneside Valet Bag". 8. In response to Paragraph 8, SkyWest admitted that its W&B Manual, Chapter 2, paragraph 2.A.49 defined "Planeside Loaded Bag" as "[a ]nybag or item that is placed at door or steps ofan aircraft.or the passenger loading bridge and subsequently placed in the aircraft cargo pit/bin". Referred to as Planeside Valet/Service Item onthe CLR. 9. In response to Paragraph 9, SkyWest admitted that SkyWest's W&B Manual (Temporary Revision dated 14 FEB 11), Chapter 3, paragraph 3.B.2 stated the flight crewmember usedthe information from the CLRto constructthe " ACARS load manifest. " .,·**~** '·
. "''
. ' 10. In response to Paragraph 10, SkyWest admitted its W&B Manual (Temporary Revision dated 14 FEB 11), Chapter 3, paragraph 2.D.1 stated "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 checked baggage onthe CLR". 11. In response to Paragraph 11, SkyWest admitted its W&B Manual (Temporary Revision dated 14 FEB 11), Chapter 3, paragraph 2.1.2 stated that "[u]pon completion ofloading ofthe cargo bin/pit, the designated loading agent must verify thepiece count ofall Standard Checked, Heavy Checked, and Planeside Loaded/Service Item Baggage
..."

912. In response to Paragraph 12, SkyWest admitted that its W&B Manual, Chapter 4, paragraph 8.8 required the loading agentto write the total number ofstandard checked baggage loaded on each cargo bin/pit in the appropriate "Standard Checked" block on the CLR. 13. In response to Paragraph 13, SkyWest admitted that its W&B Manual, Chapter 4, paragraph 8.10, requiredthe loading agent to write the total number of"Planeside Valet/Service Items" block onthe CLR. 14. In response to Paragraph 14, SkyWest admitted that its W&B Manual, 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, RESULTlNG IN THE ENDANGERMENT OF HUMAN LIFE Answering Section III ofthe Complaint, SkyWest averred: 15. In response to Paragraph 15, SkyWest admitted onJune 2, 2011, at IAH, SkyWest loaded passengers and baggage onto N937SW/5840 bound for CLT. 16. In response to**Paragrap~** 16,**S~y~er,tstated** it was without sufficient information orknowledge from which to form a beliefas to the truth ofthe allegationthat SkyWestpersonnel at IAH loaded twenty-seven (27) standard checkedbags and twenty (20) planeside loaded bags onto N937SW/5840 and therefore denied the allegation. 17. In response to Paragraph 17, SkyWest admitted the CLR for N937SW/5840 listed nineteen (19) standard checked bags and fifteen (15) planeside loaded bags onboardN937SW/5840.

10

.,.;·,18. In response to Paragraph 18, SkyWest stated it was withoutknowledge or**~·** .., :;\t
. information from which'to**for~'a**beliefas to the truth ofthe allegationthat the inaccurate data onthe CLRwas used to prepare the ACARS load manifest. for N937SW/5840 and therefore denied the same. 19. In response to Paragraph 19, SkyWest admitted operated N937SW/5840 to CLT. Answering Section IV ofthe Complaint, SkyWest averred: 20. In response to Paragraph 20, SkyWest admitted it paid civil penalties on eight (8) previous cases involving loading ofcargo contrary to approved procedures. Answering Section V ofthe Complaint, SkyWest averred: SkyWest generally denied all the rem,aining allegations set forth inthe r.'··. Complaint. Affirmative Defenses in Answer SkyWest asserted the following Affirmative Defenses: 1. The proposed civil penalty was excessive and violated FAA orders. 2. SkyWest may have other affirmative defenses not currently known but which may become known through discovery. SkyWest reserves the right to allege such affirmative defenses as they become known. Affirmative Defenses in Amended Answer 1. First Affirmative Defense The sanction sought by the FAA**w,a$~.tinwarranted** by the facts, safety in commerce and the public interest and was not only excessive, but, far exceeded policy, precedent and FAA's own Sanction Guidance

11Table. Further, the sanction was compounded, in violation ofthe FAA's own Compliance and Enforcement Handbook and Sanction Guidance Table. 2. Second Affirmative Defense The FAA's case, was unwarranted and withoutbasis orjurisdictionin lawor

,.,. '.' r,. fact. 3. Third Affirmative Defense They complained ofaircraft weight differentials, ifany, were nominal atbest and had absolutely no effect on aircraft center ofgravity, performance, performance computations or safety. 4. Fourth Affirmative Defense
a. SkyWestproactively mitigated any and all damage suchthat this action
was unwarranted by policy or the need for safety. Specifically, SkyWest:
1. Counselled all personnel involved in the loading and counting ofthe bags following each ofthe a\leged incidents; I -,**~** :'f '. ii. Issued SkyWest Customer Service Training Bulletin 2010-14 Designated Loading AgentResponsibilities, directed at providing additional training in avoiding bag count discrepancies;
111. Issued SkyWest Customer Service Training Bulletin 2012-04, Aircraft Loading Procedures, directed atproviding additional training in avoiding bag count discrepancies;

12**':~.**'-:; 1v. Updated and revised the aircraft loading procedures set forth inits Station Operations Manual SP 5500 to specifically address said problems and ensure future compliance;
v. Implemented initiatives to ensure all stations are physically staffed to allow one agent to directly account for the aircraft loading process on each SkyWest flight, to ensure accurate physical baggage counts, cargo weights, and weight and balance communication with flight deck crews; v1. Performed internal evaluations ofcargo loading reporting and determining that compliance;.had been achieved. 5. Fifth Affirmative Defense The average weightprograms contemplated by AC120-27E fully acknowledged that the use ofactual baggage and passenger weights are impractical, and by their very nature, permit discrepancies between what is contained in the load manifest and the actual weight ofthe aircraft. 6. SixthAffirmative Defense Any and all discrepancies upon which these actions are based are the product ofsimple human arithmetic error and in no way are indicative ofSkyWest's regulatory compliance disposition as all relevant employees were adequately

## tr~ined

# Jia qualified and have since received additional training and internal audits have since shown that compliance levels have been reached. 7. Seventh Affirmative Defense

13SkyWest took all necessary corrective actions to avoid repeated mishaps such that additional penalties are redundant and will not result in any increase in safety. VIII. Issues Did SkyWest violate 

### 14 C.F(R. Seq(ior,zs;J19.5(g), 119.5(!), 121.693(a),

. . .I 

### 121.693(c) and/or 121.693(d) by operation offlight N937SW/5840 from IAH to CLK on June 2, 2011 accordingto the facts alleged by the FAA. Underthe facts and circumstances ofthis case, was a civil penalty of$40,000 appropriate. IX. BriefSummary ofEvidence and Testimony All admitted testimonial and documentary evidence was reviewed and considered. Only briefhighlights are summarized herein. A. FAA's Case Adam Scott Perkins

•' ,. ,,;, The FAA called Adam Scott Perkii1s

### (h~r~inafter "Perkins") as a witness. Perkins had twelve (12) years ofaviation experience from flight instructingto flying cargo. Six (6) years ofthat was spent at Atlantic Southeast Airlines flying CRJll aircraft and ATR72 aircraft. Perkins had worked at the FAA SkyWest Certificate Management Office (hereinafter "CMO") for approximately three (3) years as an Aviation safety inspector (hereinafter "ASI").Z On June 2, 2011 performed an Element Performance Inspection (hereinafter "EPI") at CL T involving the weight and balance program for SkyWest Airlines. As part

2 Tr. p. 38, 1. 21 top. 40, 1. 13..,: !:,:.,. t· ofthe inspection he observed N937SW/5840 arriving in CLT from IAH. After reviewing
an exhibit, Perkins recalledhe had observed twenty-seven (27) standards bags on arriving N937SW/5840. There were twenty (20) planeside loaded bags. After making the observations, Perkins obtained the copy ofthe crew's CLR3 and load manifest. He did not obtain a copy ofthe IAH station CLR. Perkins also obtained a copy ofthe load manifest.4 Perkins testified the CLR did not correctly reflect the number ofbags on boardN937SW/5840, thoughthe weight listed on the load manifest did match up with the weight calculated on the CLR. That meant the weight listed on the load manifest was incorrect in light ofthe actual loading ofthe aircraft.5

Perkins testified ifyoutake the baggage count on C-1 (CLR) and added it up times 30, times 60, whatever, you would get the exact cargo weight number that is in C-2 (load manifest). There were nineteen (19) standard checked bags and fifteen (15) plane side valet items, atotal ofthirty-four (34). There was also ninety-two (92) pounds of freight on board.6 Andrew James 

### Ayers7 Andrew James Ayers (hereinafter "Ayers") was calledby 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,~n** the consolidated docket. Ayers had worked inthe aviation industry for nineteen (19) years, hadbeen a Pilot in Command (hereinafter "PIC") on EMB-120 and CL-65 aircraft for approximately

3 FAA# C-1. 4 FAA# C-2. 5 Tr. p. 40, I. 14 top. 47, I. 10. 6 Tr. p. 84, I. 14 top. 86, I. 11. 7 Tr. 179, I. 17top. 209, I. 19. 15nine (9) years. He had beenwiththe FAA approximately six (6) years at the SkyWest Certificate Management Office. He was the "Principle Operations Inspector" (hereinafter "POI") for SkyWest and had the overall responsibility for all ofthe authorizations and approvals for SkyWest's operational needs. He oversaw compliance, authorizations for SkyWest programs, and scheduled surveillancenand follow-up. He had an airline transportpilot certificate withtype ratings in the EMB-120 and CL-65 series aircraft. He had training as an Aircraft Safety Inspector (hereinafter "ASI"). He received generalized 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 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 field ofaircraft weight and balance. Ayers explainedthe CLR was a tally worksheet for computing the loads or the weight ofcargo loaded on the aircraft. A 'standardbag' was a term used for an average

•t" ·"" •. ''".:,{t•' bag assigned a weight ofthirty (30}''pounds: 

### A standard bag was defined as a bag weighing from zero (0) up to fifty (50) pounds. A heavy bag wouldbe over fifty (50) up to one hundred (100) pounds. Forpurposes ofSkyWestweight and balance program, heavy bags were assigned a weight ofsixty (60) pounds. Plane side loaded valetbags
were assigned a weight ofthirty (30) pounds which included a weight range do ofzero (0) to fifty (50) pounds. Ayers testified the load manifest contained the total weights for aircraft flights. 8 Ayers described SkyWest's "Weight and Balance Handbook" as a general book which contained both background knowledge, scientific information, factual information about

8 The witness identified FAA# C-6, C-9, C-12, and C-14 as examples ofload manifests. 

## ,,,.**.'':~'16'.** '.'.. ' weight and balance, as well as suggested policies and procedures for complying with weight and balance when operating aircraft. Italso 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 objectionto the testimony and reaffirm ourruling. Ayers proffer was:

...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 thembeing unable to**d~tect** 

### an aft CG
...the aircraft in question stalled shortly aftertakeoffand crashed, killiiig all persons aboard
... The proffer offered no testimony ofthe type aircraft; when or where the 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 our ruling and the objection was sustained. The testimony was notreceived. Withrespect to N937SW/5840,9 Ayers testified a review ofdocumentation showed the weight on the CLR did not correspond withthe weight onthe load manifest. Ayers further testified that in a couple ofthe cases 10 where the load manifest weight matched the CLRthere was still a violation ofthe approved program because the j
. ,**~-** \! ··tl:·>.

.' ! I .' program described procedures for completion ofthe CLR, and failure to follow those procedures was still a violation. Whether or notthe number was correctwas notrelevant to whether those procedures were actually followed. Ayers drew an analogy that, itwas not enoughto getthe right answer, butto showyour workto get the answer and that

9 Tr. 198, I. 7 top. 198, I. 16. 10 Referring to the consolidated docket. 17work also hadto be correct. Ayers testified he believed there was an unknown impact on safety posedbythese discrepancies, butthathe was not surprisedthatthe aircraft were operated withintheir weight and balance envelope. 11 Cross 12 Ayers testifiedthe front side ofthe CLRworksheetwas where the math was tallied up while the back side ofthe CLR was the worksheet to assistthe loading agents in counting. Ayers admitted that as part ofthe investigation it would 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 not have a Safety Management System (hereinafter "SMS"). SMS was a series oftools and programs that allowed SkyWestto identify risks and mitigate those risks with processes and procedures inplace to identify howthey do that, whenthey do that, and whatthe outcomes are. Risks were categorized, with Category I being non-safety related. Sky Westimplemented an SMS after the 2011 incidents. Redirect13 Ayers testified both copies ofthe CLR should be updated with any lastminute changes. Ifthe load manifest was inaccurate, the process wasn't followed. CO MAT was requiredto be marked onthe CLR as COMAT and ballast was required to be marked on the CLR as ballast. Ifa live animal was on board, thatwas required to bereflected onthe CLR.

11 Tr. p. 207, I. 19 top. 208, I. 16. 12 Tr. p. 209, I. 21 top. 219, I. 10. 13 Tr. p. 219, I. 13 top. 222, I. 1. 18Recross 14 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 inthe consolidated docket set forth above: FAA# Exhibits C-1 through C-36, inclusive; there is no FAA#C-37; FAA# C-38
was not received [see SW# 1]; Judicial Notice was taken ofFAA# C-39 through C-42, inclusive; FAA#C-43 through C-47 were provided for reference; FAA#C-100 through 103, were not offered, but are a part ofthe administrative record. B. SkyWest' Case Carl Salamcone, deposition transcript, 2014050615 The testimony ofCarl Salamone (hereinafter "Salamone") was takenby deposition (SW# 3-3) and introduced into the record by agreement ofthe parties. Counsel for both parties were present at the deposition. Salamone's testimony was applicable to all ofthe cases in the consolidated docket. Salamone had been a pilot for SkyWest for seven (7) years andwas a member of
a special projects group for SkyWest. He was a first officer on Canadair Regional Jets 01'
.. _:r,.. (hereinafter "CRJ"). He held an airline transport 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

14 Tr. p. 222, I. 3, top. 223, I. 1. 15 Tr. p. 227, I. 7 top. 281, I. 17. 19CRJs. He had a Bachelor ofScience degree in electrical engineering and a Bachelor of Science degree in aviation human factors, from the University ofIllinois. Aviationhuman factors was the study ofhuman factors principles in research and psychology as it related
:,;; ' \**·~:.** specifically to aviation inthe

### hum~ elements ofaviation safety, including weight and balance systems. 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 prior to that flight. He had training in weight and balance from his education as well as SkyWest. 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**w~ight** and balance analysis covering are-

• -' l" ' creation ofthe fourteen (14) flights based onthe data available to him onweight and balance as calculatedby the crew and also the alleged weight and balance as itwould have been observed by an inspector(s) for each ofthe flight violations. Inthe analysis of these flights, Salamone took all informationthat 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 seriesjets to determine performance and the weight and balance in that respect. He also took into account runway length, air temperature and fuel weight.

\o'**~** ' ,j
20Aircraft takeoffweight was defined as the gross weight ofthe aircraft inthe takeoffconfiguration, as itwould beginthe takeoffsegment ofthe flight. It was the full weight ofthe airplane immediately prior to beginning takeoff, including passengers, cargo, ballast, et al. AircrafttakeoffCenter ofGravity (hereinafter "COG") was the location ofthe center ofgravity at a point onthe airplane and calculated to ensure thatthe plane remained in balance for the manufacturer's specifications throughoutthat flight. COG d: was a single point, a mathematical point. It was'11 single point like a teeter-totter, where that airplane wouldbalance on one particular point where the weightwas mathematically
seen onthat location on the airplane. COGwas important for stability reasons, for control reasons, and it was 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 meantthatthe airplane would notbe too heavy to meet its performance requirements and performance planning. An airplane was operated at a weightthat 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

### ~fflight add complete that flight as planned. Salamonetestified that for the fourteen (14) flights hereviewed, giventhe weights thatthe crews had recorded and believed thatthey were operating under, none of the flights exceeded maximum takeoffweight and none ofthe flights were unsafe in anyway.

21In Salamone's opinion, taking into account the additional weights observed by the FAA inspectors, none ofthe aircraft exceeded tolerances nor were the flights unsafe. In his opinion, the crews' calculations wereaccurate as pertaining to the cargo and weight that they believed that they had and the calculations did not exceed the manufacturer's suggested limitations nor as perceived by the FAA inspectors. Taking into accountthree ofthose 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 ofthe manufacturer's limitations for takeoffweight, center ofgravity, runway performance, climb performance, or maximum operating altitude. Withrespectto N937SW/5840, 16 Salamone testified he found the additional 390 pounds would have not exceeded the maximum takeoffweight ofN937SW/5840 for this runway, nor would ithave exceeded the manufacturer's maximum takeoffweights. The COG would have moved approximately orie and\:me-halfpercent aft or towards ofthe envelope. The weight would not have impacted safety ofN937SW/5840. Fuel planning for all the CJRs involved wouldhave beenvery close. The · additional weightmay have caused a slight increase infuel usage,justbecause it costs
more to fly around the extra weight. However, SkyWest has a policy ofadding contingency fuel that was above and beyond the federal required fuel and any nominal increase in burn would have been accounted for and included inthat contingency fuel. It would not have impacted safety. Salamone described the human factors involved in loading an airplane and counting bags. He described the most difficult aspect ofaircraft loading and baggage

'**~ ~0~**  handling as having to do withthe

### e~viroruri~n~**~~und** which it is centered. The ramp
16 Tr. p. 264, I. 2 top. 266, I. 11. 

### 22environment may have temperature swings; itmay have noise and vibration. Itcould have light, darkness issues, as well a flurry ofactivity making focus difficult for that particular employee. Itwas a very active area that could cause, perhaps, a pause in counting orbags 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 evenmore difficult. Salamone was notparticularly surprised at bag ,qount discrepancies. \ ' !;:
.. , Cross 17 Salamone testified the reason whyhe took runway length into accountwas 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 exceeding the aft or forward limitation ofthe aircraft would affect performance. The CLR is one ofthe documents used to generate the load manifest. The load manifest was the document that containedthe aircraft gross weight and center ofgravity location, which was then used to determine

### p~rform~ce·Fequirements. Christopher C. Brown18 Christopher C. Brown (hereinafter "Brown") was the Director ofAircraft Operations for SkyWestAirlines. 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

17 Tr. p. 281, I. 18 top. 291, I. 6. 18 Tr. p. 298, I. 20 top. 324, I. 14. 23

'··**~~-** .. ,**~ ('_t~**  'I;;:·
...operations procedures, and such. He hadbeen inthe aviation industry for thirty (30) ' years. He had an AMP certificate, airline4ranspdrt certificate with the CL-65, a flight ' instructor certificate, an advanced flight instructor or an advanced ground instructor certificate. Brown'stestimony was applicable to all ofthe cases in the consolidated docket.Browntestified about SW# RS-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 ofweight to the basic operating weight ofeach aircraft. In doing so, the performance calculations would be performed as ifthe weight was physically onboard the aircraft, eventhough, in most cases, the weight would notbe present. The aircraft operating env6lope

## ~guicfbe curtailed in such a way that for small miscounts, the SkyWest weight and balance program would assure thatthe aircraft would always remain within the manufacturer's operating envelope. Browntestifiedthe proposal was similar to a program implemented by Delta. Evidence The following SkyWest exhibits were admitted inthe 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 are no exhibits SW 11-20, inclusive. SW# R21, was admitted. C. Credibility determinations

.**~~** '**~·~.** tl
..**~,·.** We find the testimony ofall witnesses to have beentruthful and credible.

24X. Brief Summary and Analysis On June 2, 2011, at IAH, SkyWest loaded passengers and baggage onto N937SW/5840 bound for CLT. SkyWest's personnel at IAH loadedtwenty-seven (27) standard checked bags and twenty(20) planeside loaded bags onto N937SW/5840. The CLR forN937SW/5840 listed nineteen (19) standard checked bags and fifteen (15) planeside loaded bags on boardN937SW/5840. The inaccurate data onthe CLRwas used to prepare the ACARS load**m~ifest** for N937SW/5840. SkyWestthereafter operatedN937SW/5840 to CLT. 

### 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 person is 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 ofwhich are covered by clause(A); 

## 49 U.S.C. § 46301(a)(1)(A), 14 C.P.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.

25

.....: c. t1 ..•. Y.'·2. 14 C.F.R. Section 119.5(1), provides:

""1-. No person may operate an aircraft underthispart, part 121 ofthis chapter, orpart 135 ofthis chapter in violation ofan 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 containthe 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: The total weight computed under approved procedures. 3. 14 C.F.R. Section 121.693(d), provides: Evidence that the aircraA is

# l~a~~d';~~ording 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, we make the following findings:



### 26A. 14 C.F.R. Sections 119.5(g) and 119.5aJ 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 agent to accurately prepare the flight's CLR. The testimony and evidence ,showed that.Jor flight N937SW/5840, SkyWest's

. '**~** . CLRfailed to properly reflect inthe appropriate block the 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(g). SkyWest's actions in loading and marking the CLRs for flight N937SW/5840 also constituted a violation ofFAR §119.5(!). This section prohibits Part 121 air carriers from operating in violation ofOpSpecs. By failing to set outfor each flight accurate information on the 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 §121. 693

### requir~s•a

# 16aamanifestto containthe weight ofthe cargo and baggage. Subsection (c) compels the use of"approvedprocedures" in computing the total weight ofthe aircraft. Section 121.693(d) requires that the load manifest contain evidence that the aircraft was loaded accordingto 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 manifestwill pass muster ifit has been compiled using approved

27procedures, and thatthe method used insures thatthe center ofgravityis within limits.**~~** .. The evidence shows that SkyWest

### follow~d these mandates. Salamone testifiedthat for the fourteen (14) flights he reviewed, including N937SW/5840, given the. weights that the crews had recorded and believed that they
were operating under, none ofthe flights exceeded maximumtakeoffweight and none of the flights were unsafe in anyway. The crews' calculations were accurate as pertaining to the cargo and weightthat they believedthat they had and the calculations did not exceed the manufacturer's suggested limitations nor as perceivedbythe FAA inspectors. None ofthe flights would have been in excess ofthe manufacturer's limitations for takeoff weight, center ofgravity, runway performance, climb performance, ormaximum operating altitude. _J , ... ' .,/ f 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 be proven. Nor
was a §121.693(d) violation proven; no evidence tended to demonstrate that the approved method failed to insure thatthe center ofgravity was within approved limits. Indeed, Salamone's testimony and accompanying evidence suggested thatthe aircraft weight and center ofgravity location fell within manufacturer recommendations andperformance envelopes for every flight under review. 19 Accordingly, the FAA, it is concluded, f<iiled to prove that SkyWest violated 14 C.F.R. Sections 121.693(a), (c), and (d).

19 See In the Matter of SkyWestAirlines, 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; 

### 28XIII. Conclusions Upon consideration ofthe totality ofevidentiary facts and testimony, by a preponderance ofthe 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). B. We find the FAA did not made

### ~p'ritn~'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.F.R. Section 121.693(d), inclusive and those violations 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 primafacie 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.F.R. Section 121.693(d), inclusive
.

. \ '· f.;t, IJ .; (<I 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 FAA sought 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 SkyWest was cooperative and responsive to FAA concerns. The FAAhad a cooperative working relationship with SkyWest.

29Once notified ofthe violations, SkyWest took swift, comprehensive corrective action including implementation ofan SMS after the 2011 incidents as set forth in its Post Hearing Briefand in testimony before the court. The FAA argued, and SkyWest admitted, that SkyWest paid civil penalties in eight (8) previous cases involving loading ofcargo contrary to approvedprocedures. While a penalty calculatedin accordance withthe 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 FAA was entitled to substantial deference in establishing an appropriate civil penalty, we cannot ignore ourrole to evaluate the testimony and evidence,. Significantly, the violations found were technical in nature. They had no material effect on weight andbalance or on aircraft performance. SkyWest showedthat inno instance was safety offlight at eventhe slightest risk (See Tr. p. 227, 

### 1. 7 top. 281, 

### 1. 17.). As SkyWestnoted, the CLRs were not dispositive. The most important factor in the weight and balance contextunquestionably was the load manifest. It was this documentthatwas computedby the flight crew and used bythem to evaluate howtheir calculations will affect operational safety. The FAA failed to show for any ofthe flights that Sky West failed to follow the scheme ofits 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, SkyWestimplemented a new Safety Management System to address the violations.

30We find further thatjust one civil penalty per flight is appropriate. 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(/), are not significantly different. The first prohibits operation as a direct air carrier in violation

.**~.** ' / l ofOpSpecs; the secondprohibits operating under Part 121 in violation ofOpSpecs. The distinction betweenthe two provisions for the presentpurposes is inconsequential. As such, penalizing SkyWest for bothviolations wouldbe 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). Under these circumstances, one civil penalty- in a minimal amount of$250 per violation- suffices. In sum, we find thatthe civil penalty appropriately accounts for the factors the statute and agency policy directs

### in.~fixirig**the~~~~essment.** All arguments by bothparties have been carefully considered. Those not explicitly discussed are rejected or dismissed as mooted bythis Initial Decision. WHEREFORE, evidence and testimony having beenheard and considered itbe and is hereby ORDERED as follows?0

20 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 ofappeal1)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 laterthan 50 days (plus an additional five, if mailed) from the service date ofthis decision. The notice ofappeal and briefor memorandum must either be a) mailed to the Federal Aviation Administration, 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**~ourier** service to the Federal Aviation Administration, 600 Independence Avenue, S.W., Wilbur Wright Building-Suite 2W1000, Washington, D.C. 20591, Attn: Hearing Docket )' ·.p;_

. ''.i31• ,, .1. We reaffirm our ruling and SkyWest's objectionto the FAA'sproffer of testimony from Ayers for reasons set forth hereinabove SkyWest's objection be and is hereby sustained. The testimony was not received. 2. SkyWest Airlines, Inc. be and is hereby assessed a civil penalty of$250.00 for violations of14 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),14 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 t: ··i,1
..

.;·....

Clerk, AGC-430. A copy ofthe notice ofappeal and briefor memorandum also must be sentto agency counsel. Service upon the presidingjudge is optional. 32SERVICE 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 2Wl000 1

Todd C. Emerson, Respondent's Counsel Director- Government and Legal Affairs SkyWest Airlines 444 South River Road St. George, UT 84790 TEL: 435-634-3530 FAX: 435-634-3505 ONE COPY

Michael L. Dworkin,**Re,~pondent** 's Counsel MICHAEL L. DWORKIN AND ASSOCIATES 465 California Street, Suite 210 San Francisco, CA 94104 TEL: 415-421-2500 FAX: 415-421-2560 EMAIL: law@avialex.com Robert Spitzer, Complainant's Counsel Attorney, Office ofRegional Counsel Northwest Mountain Region, ANM-7 Federal Aviation Administration 1601 Lind Avenue, S.W. Renton, W A 98057 TEL: 425-227-1417 FAX: 425-227-1007 FDMS No. FAA-2012-0868 (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 2WIOOO, Washington, DC 20591; Attention: Hearing Docket Clerk, AGC-430.The Honorable Richard C. Goodwin,

### Administrative L.aw .Judge Office ofHearings, M-20 U.S. Department ofTransportation 1200 New Jersey Avenue, S.E.**(E11~310)** Washington, DC 20590 TEL: 202-366-5121 StaffAssistant FAX: 202-366-7536 FDMS No. FAA-2012-0868 (Civil Penalty Actions)