SERVED: MAY 2, 2013 li!J] '! - 3 

UNITED STATES DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

FEDERAL AVIATION ADMINISTRATION, 

Complainant, FAA Docket No. [To Be Assigned] 

V. (Civil Penalty Action) 

SKYWEST AIRLINES, INC. 

Respondent. FDMS Nos. FAA-2011-0779 

INITIAL DECISION 

OF ADMINISTRATIVE LAW JUDGE RICHARD C. GOODWIN 

Found: 

a) Respondent violated 14 C.F.R. §§119.5(g) and 119.5(1); 

1: [i_Q 

b) Complainant failed to prove that Respondent violated 14 C.F.R. §§121.693(a), 

l21.693(c), and 121.693(d); and 

c) Respondent will be assessed a civil penalty of $250. 

I. Preliminarv Issue 

a. Background 

On July 28, 2011 the Federal Aviation Administration ("FAA" or "Agency") transmitted 

to the Hearing Docket Clerk1 Case No. 2011NM0600332

. The case was docketed as FDMS1 Document was transmitted to "Hearing Docket Clerk, AGC-430, Hearing Docket, Federal Aviation 

Administration, ... " 2 The case was receipted by Hearing Docket on July 28, 2011. 
2 

2011-0779. On August 29, 2011, case FAA- 2011-0779 was 'assigned' to the undersigned by a 

document captioned "Notice of Assignment ofProceeding."3 

On July 19,20114 a transmittal of Case No. 2011NM060033 was sent to the FAA 

Hearing Docket. The July 19,2011 transmittal was docketed as 2011-0680. 

Case No. 2011NM060033 was thus transmitted to the FAA Hearing Docket twice and 

assigned two separate FDMS docket numbers. 

On October 4, 2011 the Chief Administrative Law Judge issued a document captioned 

''Notice of Assignment of Proceeding under other FMDS Docket and Closure of this FDMS 

Docket". The document contained no language 'assigning' the case to an ALJ5

• The document 

identified the duplicitous docketing and stated " ... Accordingly, that docket is herebl closed." 

The document failed to specify which of the three docket numbers was to be closed . 

Since the document dated October 4, 2011 in FDMS F AA-2011-0680 was unassigned 

and the language unclear, we asked the parties to brief the consequences of this and related 

issues. Tr. 7-9; see Complainant's Post-Trial Brief, pp. 3-5; Respondent's Brief, p. 10. 

b. Discussion 

By Order dated June 20,2012, cases FAA 2011-0779 and FAA-2011-0680 were 

consolidated with two other cases 

7 and set for hearing. 

Notices of Assignment (NOAs) are not required in FAA cases, although they are not 

prohibited as they fall under the authority of an administrative law judge to regulate the course of 

a proceeding8

. Jurisdiction of an ALJ arises as a consequence of the filing of a Complaint by an 

FAA attorney, not the issuance of an NOA9

• All DOT ALJs have jurisdiction over cases where a 

Complaint has been filed by the Agency. An ALJ may have authority over a case without the 

issuance of an NOA 10. 

3 The document reads: "This proceeding (heretofore designated as Case No. 2011NM060033) has been assigned 

to Administrative Law Judge Richard C. Goodwin. All future pleadings and other communications regarding this 

proceeding shall be served on the Judge, the FAA Hearing Docket, and the other persons on the attached Service 

List." 

4 The Facsimile Message coversheet is dated June 19, 2011. The Fax date stamp is '07 /19/2011' in two places 

throughout the eight (8) page document. 5 The document reads: "By notice served August 29, 2011, this proceeding-designated as Case No. 

2011NM060033 and docketed in the Federal Docket Management System (FDMS) as FAA2011-0779-was assigned to Administrative Law Judge Richard C. Goodwin. The same 

proceeding was previously docketed in FDMS as F AA-20 11-0680 but was not transmitted to this 

office. Accordingly, that docket is hereby closed." · 6 According to the Disposition entry in Office ofHearings 'Case Tracking System' both dockets FAA-2011-0779 

and F AA-2011-0680 were administratively closed on 10/04/2011 and have remained closed since that date. 7 SkyWest Airlines FAA 2011-0485 and SkyWest Airlines FAA 2011-0486. 8 14 C.F.R. §13.205. 9 Id and 14 C.F.R. §13.208. 10 See also Lightning Aircraft Corporation, FAA-2011-1124, "Order of Chief Administrative Law Judge Granting 

Motion to Dismiss Request for Hearing and Assessing A Civil Penalty", served February 17, 2012. Appeal 

dismissed FAA Order No. 2012-7, FDMS No. FAA-2011-1124 served July 9, 2012. 
3 

The document dated October 4, 2011 is unclear. The October 4, 2011 document did not 

assign the case to a specific ALJ. There was a duplicate filing of2011NM060033. The October 

4, 2011 document was not an adjudication on the merits of docket 2011NM060033 or a 

Dismissal of2011NM060033. The language 'closing' the docket was not an adjudication on the 

merits and therefore not res judicata as to the merits of the case. The matters will be 

consolidated. 

We proceed to consideration ofthe merits ofthe underlying Case No. 2011NM060033, 

docketed as FAA-2011-0779 and FAA-2011-0680. 

II. Background 

Respondent SkyWest Airlines, Inc. ("Respondent," "SkyWest/' or ''the carrier"), of St. 

George, UT, is a Part 121 regional air carrier. These proceedings all involve charges stemming 

from the carrier's baggage loading methods. It is asserted that those methods resulted in 

inaccurate counting and weighing in violation of certain Federal Aviation Regulations ("F ARs"). 

The matters were consolidated by Orders served July 29,2011 (consolidating FAA-2011-0485 

("-0485") and FAA-2011-0486 ("-0486")) and June 20, 2012 (consolidating FAA-2011-0779 ("-

0779") into the others). 11 

In each proceeding the same allegations were lodged against Respondent. In Docket 

-0779, Complainant Federal Aviation Administration ("Complainant") charged that Respondent 

violated the following FARs (all in 14 CFR): section 119.5(g), for operating as a direct air carrier 

in violation of an appropriate operations specification ("op spec"); section 119.5(1), for operating 

under Part 121 an aircraft in violation of the carrier's op specs; section 121.693(a), by operating 

without a load manifest accurately reflecting the weight of the cargo and baggage; section 

121.693(c), in flying when the total weight of the aircraft had not been computed under approved 

procedures; and section 121.693(d), by operating when the aircraft had not been loaded 

according to an approved schedule. 

SkyWest's aircraft loading procedures are governed by the carrier's ops specs. Paragraph 

A098 of the op specs directs that loading and counting baggage be accomplished in accordance 

with Respondent's Weight & Balance Operations Manual ("Weight & Balance Manual" or 

"Manual"). Exh. C-103. 

The Manual contains an agency-approved Weight & Balance Program ("Program"). The 

Program defines several terms pertinent to these cases. It classifies luggage by weight ranges: a 

Standard Checked Bag ("standard bag") is defined as any bag weighing 50 pounds or less; a 

Heavy Checked Bag ("heavy bag") weighs more than 50 but less than 100 pounds. When a 

heavy bag is checked in, Respondent's customer service agent will attach a "heavy baggage" tag 

to it. The tag usually is orange. A Planeside Loaded Bag, or Planeside V a1et ("planeside bag"), 

is any bag or item checked plane-side; such bags are placed at the door or steps of an aircraft or 

in the jetway and subsequently placed in the aircraft cargo bin. 

11 The proceedings docketed as FAA-2011-0485 and -0486 are the subject of another ID. 
4 

SkyWest's Manual requires its designated loading agent, or a ramp agent assigned to load 

the aircraft ("loading agent"), to prepare a Cargo Load Report ("CLR"). In so doing the loading 

agent manually conducts a baggage count. He or she must write the total number of standard 

bags in the CLR's "Standard Checked" block; the heavy-bag total in the "Heavy Checked" 

block; and the total number of planeside bags in the "Planeside Valet/Service Items" block. 

Upon completion of loading, the responsible agent also must verify the piece count of all 

standard, heavy, and planeside bags. The agent additionally is required to conduct a cargo 

weight count. 

SkyWest uses the CLR to compute its load manifest. Toward this end, its Manual 

employs what is known as an average weights program. The average weights program assigns 

standard bags a weight of 30 pounds; heavy bags, 60 pounds; and planeside bags, 30 pounds. 

Passengers are each assigned a weight of 190 pounds in the summer and 195 pounds in the 

winter. Personal items carried on board are assigned a weight of 16 pounds. When the CLR is 

completed it is turned over to the cockpit. The pilots then figure the load manifest from the 

number ofbags times the weight assigned to each by the Manual's average weights program. 12 

A hearing was held on October 2, 2012, in Salt Lake City, UT. The parties have filed 

briefs and the matter now is ready for decision. 13 

Respondent denied liability arid interposed affirmative defenses in case -0779. The issue 

of penalty will be discussed and determined for all three matters in section III following. 

III. Discussion and Findings 

a. -0779 

This matter involves one flight. The Complaint states that on February 15, 2011,14 

SkyWest operated Flight 4451 from SLC to Casper, WY. At SLC the carrier loaded one heavy 

bag- marked with a "heavy bag" tag- but the CLR listed zero such bags (Tr. 105; Exh. C-1). 

The agency preferred the same five charges as in -0485 (see Initial Decision ("I.D."), p. 

3). It asked for a civil penalty under 49 U.S.C. §46301 of$33,000. 

b. Respondent's Testimony 

Carl Salamone was SkyWest's main witness. He is a SkyWest pilot who evaluated the 

flights at issue for weight and balance factors. He pointed out that the nature of the carrier's 

12 Tr. 51,77-79,91-93, 133-47; Exhs. C-102 and C-103. There are also procedures in the event a bag is loaded at 

the last minute. In that instance, so long as the flight crew assents the bag will be placed on board -- but the CLR 

will not be amended accordingly. Tr. 147-49. No evidence showed that any last-minute loading took place on any 

of the flights under review. 

13 Complainant's Post-Trial Briefwill be referred to as "Compl. Br." and Respondent's Brief as "Resp. Br." 

Additionally, Complainant's exhibits will begin will begin with "Exh. C" followed by the exhibit number; 

Respondent's exhibits will begin with "Exh. R." 

14 The Complaint recites the date as February 11, but at the hearing the agency amended it to February 15. Tr. 12. 
5 

weight and balance program- assigning average weights to baggage and to passengers- means 

that an aircraft's takeoff weight inevitably will not exactly correspond with its actual weight. 

Yet, he stressed, any discrepancies between the two weight figures would not have affected 

aircraft performance. 

Respecting the flight considered in -0779, Mr. Salamone stated that the discrepancy 

claimed would have resulted in a weight difference of30 pounds (if the heavy bag had been 

counted as a standard bag} or 60 pounds (if the heavy bag had not been counted at all). Either 

situation would not have affected aircraft performance. The safety of flight would have suffered 

no compromise at all, he said (Tr. 105-07). 

Mr. Salamone further defended SkyWest's actions in noting that FAA Advisory Circular 

("AC") 120-27E permits an average-weight program in preference to an actual-weight program. 

It recognizes that using actual weights on an aircraft is impractical, he said. The AC also permits 

an error of up to two percent for carriers performing bag surveys in place of using the method of 

average bag weights. While SkyWest employs the average bag weight method, the witness 

noted that all flights charged in case -0779 would have fallen within the permitted margin of 

error (Exh. C-5; Tr. 109-12). 

The witness also stated in SkyWest's defense that, while the carrier seeks absolute 

accuracy. in counting and weighing, and attempts to promote safe operations to the maximum 

extent feasible, the "sheer volume" of luggage -- and "human limitation" -- makes the goal, as a 

practical matter, impossible (Tr. 124-25, 167; Exh. R-5). 

Finally, the carrier stressed that it has taken corrective actions to assure more accurate 

weighing. It has implemented additional risk controls, it states, and has placed greater awareness 

on this issue in training. It has utilized surveillance on its ramp personnel. Employees falling 

short ofSkyWest standards have been counseled and re-trained. SkyWest emphasizes that it has 

highlighted to its employees the importance ofthis issue (see, e.g., Tr. 151-56; Exh. R-15). 

c. Findings and Conclusions 

I find and conclude in -0779 that Complainant proved that SkyWest violated FARs 

§§119.5(g) and 119.5(1). Complainant failed to prove any remaining allegations. 

i. Sections 119 .5(g) and 119 .5(1) 

Section 119.5(g) prohibits an air carrier from operating in violation of its op specs. 

SkyWest's op specs 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. For the flight 

encompassed by Docket -0779, SkyWest's CLR failed to properly reflect in the appropriate 

block the actual count of the different classes of baggage loaded onto the aircraft. The agents' 

· count was one heavy bag; the CLR showed zero such bags (J.D., pp. 3-4). The failure to 

accurately prepare the CLR, it is concluded, constitutes a violation of§ 119.5(g). 
6 

SkyWest's actions in loading and marking the CLRs for these four flights also constitute 

a violation ofF AR § 119 .5(1). This section prohibits Part 121 air carriers from operating in 

violation of op specs. By failing to set out for each flight accurate information on the CLRs, 

Respondent, a Part 121 air carrier, did not operate in conformance with its op specs. It thus 

violated this section. · 

u. Sections 121.693(a), (c), and (d) 

Subsection (a) of §121.693 requires a load manifest to contain the weight of the cargo 

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

weight of the aircraft. Section 121.693(d) requires that the load manifest contain evidence that 

the aircraft was loaded according to an approved schedule which insures that the center of 

gravity is within approved limits. Construing these subsections together, as principles of 

statutory construction dictate, indicates that a carrier's load manifest will pass muster if it has 

been compiled using approved procedures, and that the method used insures that the center of 

gravity is within limits. The evidence shows that SkyWest followed these mandates. 

Complainant, it is concluded, failed to prove that Respondent violated any of these provisions. 

As noted earlier, SkyWest computes its load manifest from its CLR using its Manual's 

average weights program (see I.D. p. 4). The carrier's op specs require loading procedures to 

follow the Manual (I.D., p. 3). The load manifest, then, used approved procedures to compute 

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

a §121.693(d) violation proven; no evidence tended to demonstrate that the approved method 

failed to insure that the center of gravity wa~ within approved limits. Indeed, the evidence 

suggested that the aircraft weight and center of gravity location fell within manufacturer 

recommendations and performance envelopes for every flight under review (I.D., pp. 4, 5). 

IV. Penalty 

a. Factors 

Complainant is obligated to consider the following factors when determining an 

appropriate civil penalty amount: (1) the nature and circumstances of the violation; (2) the extent 

and gravity of the violation; (3) the respondent's degree of culpability; ( 4) the respondent's 

history of prior violations, if any; {5) the respondent's ability to pay the civil penalty; (6) the 

effect on the entity's ability to stay in business; and (7) other matters as justice may require. See, 

e.g., Folsom's Air Service, Inc., FAA Order No. 2008-11 (November 6, 2008), 2008 WL 

4948488, p. 11. The determination weighs whether the violation was inadvertent or deliberate, 

the private or public character of the violation, and the attitude of the violator. The agency also 

considers the respondent's size, particularly in determining the offender's ability to absorb the 

. sanction. The principal elements in this analysis are the nature of the respondent's conduct and 

the totality of the circumstances. Eastern Air Center, Inc., FAA Order No. 2008-3 (January 28, 

2008). Finally, the civil penalty should provide sufficient incentive to deter the respondent and 

similarly-situated entities from future violations. Folsom's Air Service, Inc., Id., p. 20. 
7 

b. Decision 

I find that a civil penalty of $250 per flight is appropriate. 

The violations found were technical in nature. They had no material effect on weight 

and balance or on aircraft performance. Respondent showed that in no instance was safety of 

flight at even the slightest risk (See Tr. 84-85). 

As Respondent notes, the CLRs are not dispositive (Resp. Br., p. 12). The most 

important factor in the weight and balance context unquestionably is the load manifest. It is this 

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

calculations will affect operational safety. Complainant failed to show for any of the flights that 

Respondent failed to follow the scheme of its Weight & Balance Manual in deriving its load 

manifests (See Resp. Br., p. 7). In fact the evidence showed that Respondent's load manifest 

calculations were in accordance with its op specs and Manual instructions in every instance. 

I find further that just one civil penalty per flight is appropriate. To assess a civil penalty 

based on the two violations per flight found is, under the circumstances, unfair, unwarranted, and 

disproportionate to the offenses. 

The two sections violated in each instance, §§119.5(g) and 119.5(1), are not significantly 

different. The first prohibits operation as a direct air carrier in violation of op specs; the second 

prohibits operating under Part 121 in violation of op specs. The distinction between the two 

provisions for the present purposes is inconsequential. As such, penalizing Respondent for both 

violations would be unjustified. I note that the agency's civil penalty guidelines, FAA Order 

2150.3B, take a similar stance: they advise that "[w]hen a single instance of noncompliance 

results in multiple violations of general and specific regulations involving the same or similar 

conduct, the FAA ordinarily does not compound the sanction ... " (Exh. C-6, p. 7-10). Under 

these circumstances, one civil penalty- in a, minimal amount of $250 per violation- suffices. 

In sum, I find that the civil penalty appropriately accounts for the factors the statute and 

agency policy directs in fixing the assessment. 

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

discussed are rejected or dismissed as mooted by this Initial Decision. 15 

V. Wherefore, the above case having come for hearing, testimony having been heard and 

considered, post-hearing Briefs having been considered, it be and is ORDERED as follow: 

a. I find and conclude that Notices of Assignment (NOAs) are not required in FAA 

cases. 

b. The original docket number for this case is FAA Docket 2011NM060033. 

15 Certain evidence in this proceeding has been sealed. See Order Sealing Certain Exhibits and Transcript Portion, 

served November 2, 2012, and Order Unsealing Transcript Pages, served January 17, 2013. However, this Initial 

Decision does not reference any of the evidence remaining under seal; as such, no part of the I.D. is subject to seal, 

and it may be freely disseminated in its entirety. 
8 

c. FAA Docket 2011 NM060033 was docketed as F AA-20 11-0680 and F AA-20 11-

0779. 

d. The Order of the Chief Administrative Law Judge dated October 4, 2011 was not 

an assignment and or/ an adjudication on the merits ofFAA Docket 2011NM060033. 

e. FAA-2011-0680 be and is hereby consolidated and merged with FAA-2011-0779. 

f. SkyWest Airlines, Inc. be and is hereby assessed a civil penalty of$250 in Docket 

FAA-2011-0779 for violations of FAR §§119.5(g) and 119.5(1) as discussed 

hereinabove. 16 . 

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Administrative Law Judge 

Attachment - Service List 

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

13.210, 13.211(e) and 13.233 of the Rules of Practice, which require that a notice ofappea11) be filed not later than 

10 days (plus an additional five days if mailed) from the service date ofthis decision, and 2) be perfected with a 

written brief or memorandum not later than 50 days (plus an additional five, if mailed) from the service date of this 

decision. The notice of appeal and brief or 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 courier service to the Federal 

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

D.C. 20591, Attn: Hearing Docket Clerk, AGC-430. A copy ofthe notice of appeal and brief or memorandum also 

must be sent to agency counsel. Service upon the presiding judge is optional. 
9 

SERVICE LIST 

ORIGINAL & ONE COPY 

Federal Aviation Administration 

800 Independence A venue, S. W. 

Washington, DC 20591 

Attention: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building-Suite 2Wl000 1 

ONE COPY 

Todd C. Emerson, Respondent's Representative 

Director - Government and Legal Affairs 

SkyWest Airlines 

444 South River Road 

St. George, UT 84 790 

TEL: 435-634-3530 

fPC(: 435-634-3505 

Robert Spitzer, Complainant's Counsel 

Attorney, Office of the Regional Counsel 

Northwest Mountain Region, ANM-7 

Federal Aviation Administration 

1601 Lind Avenue, S.W. 

Renton, W A 98057 

TEL: 425-227-1417 

FAX: 425-227-1007 

The Honorable Richard C. Goodwin, Administrative Law Judge 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Avenue, S.E. (Ell-310) 

Washington, DC 20590 

TEL: 202-366-2139 Attorney-Advisor 

202-366-5121 Staff Assistant/Parah~gal 

fPC(: 202-366-7536 

FDMS No. FAA-2011-0779 

(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.