SERVED: MAY 2, 2013 

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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) Respondentviolated 14 C.F.R. §§119.5(g) and 119.5(1); 1: [i_Q

b) Complainantfailed to provethatRespondentviolated 14 C.F.R. §§121.693(a), l21.693(c), and 121.693(d); and c) Respondentwill be assessed a civil penalty of$250. I. PreliminarvIssue


### 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 FDMS1Document was transmitted to "HearingDocket Clerk, AGC-430, Hearing Docket, Federal Aviation Administration,
..." 2 The case was receiptedby 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 ofAssignment ofProceeding."3 OnJuly 19,2011 4 a transmittal ofCase No. 2011NM060033 was sent to the FAA Hearing Docket. The July 19,2011 transmittal was docketed as 2011-0680. CaseNo. 2011NM060033 was thus transmitted to the FAA Hearing Dockettwice and assigned two separate FDMS docket numbers. On October 4, 2011 the ChiefAdministrative LawJudge issued a document captioned ''Notice ofAssignment ofProceeding under other FMDS Docket and Closure ofthis FDMS Docket". The document contained no language 'assigning' the case to an ALJ5• The document identifiedthe duplicitous docketing and stated "
...Accordingly, that docket is herebl closed." The document failed to specify which ofthe three docket numbers was to be closed
. Since the document dated October 4, 2011 inFDMS FAA-2011-0680 was unassigned and the language unclear, we asked the parties to briefthe consequences ofthis 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 withtwo other cases7 and set for hearing. Notices ofAssignment (NOAs) are not required inFAA cases, although they are not prohibited as they fall underthe authority ofan administrative lawjudge to regulate the course of a proceeding8

. Jurisdiction ofan ALJ arises as a consequence ofthe filing ofa Complaintby an FAA attorney, notthe issuance ofanNOA9• All DOT ALJs havejurisdiction over cases where a Complaint has been filed by the Agency. An ALJ may have authority over a case withoutthe issuance ofanNOA10

.
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 regardingthis proceeding shall be served onthe 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' intwoplaces 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 FAA-2011-0680 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 FAA-2011-0680 were administratively closed on 10/04/2011 andhave 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 LightningAircraft Corporation, FAA-2011-1124, "OrderofChiefAdministrative Law Judge Granting Motion to Dismiss Request for Hearing and Assessing A Civil Penalty", served February 17, 2012. Appeal dismissed FAA OrderNo. 2012-7, FDMS No. FAA-2011-1124 served July 9, 2012.3

The document dated October 4, 2011 is unclear. The October4, 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 onthe merits ofdocket 2011NM060033 or a Dismissal of2011NM060033. The language 'closing' the docket was not an adjudication onthe merits and therefore not resjudicata as to the merits ofthe case. The matters will be consolidated. We proceed to consideration ofthemerits oftheunderlying Case No. 2011NM060033, docketed as FAA-2011-0779 and FAA-2011-0680.

II. 

### Background Respondent SkyWest Airlines, Inc. ("Respondent," "SkyWest/' or ''the carrier"), ofSt. George, UT, is a Part 121 regional air carrier. These proceedings all involve charges stemming from the carrier'sbaggage loading methods. It is asserted that those methods resulted in inaccurate counting and weighing inviolation ofcertain 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 eachproceeding the same allegations were lodged against Respondent. InDocket -0779, Complainant Federal Aviation Administration ("Complainant") chargedthat Respondent violated the following FARs (all in 14 CFR): section 119.5(g), for operating as a direct air carrier in violation ofan appropriate operations specification ("op spec"); section 119.5(1), for operating under Part 121 an aircraft in violation ofthe carrier's op specs; section 121.693(a), by operating without a load manifest accurately reflecting the weight ofthe cargo and baggage; section 121.693(c), inflying when the total weight ofthe 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 ofthe 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 ("standardbag") 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 "heavybaggage" tag to it. The tag usually is orange. A Planeside Loaded Bag, or Planeside Va1et ("planeside bag"), is any bag oritem checkedplane-side; such bags are placed at the door or steps ofan aircraft or in thejetway and subsequently placed in the aircraft cargo bin.

11 The proceedings docketed as FAA-2011-0485 and -0486 are the subject ofanother ID.4 SkyWest'sManual 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 ofstandard bags inthe CLR's "Standard Checked" block; the heavy-bag total inthe "Heavy Checked" block; and the total number ofplaneside bags in the "Planeside Valet/Service Items" block. Upon completionofloading, the responsible agent also must verify the piece count ofall standard, heavy, andplaneside bags. The agent additionally is required to conduct a cargo weight count. SkyWest uses the CLRto 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 of30 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 inthe winter. Personal items carried onboard are assigned a weight of 16 pounds. When the CLRis completed it is turned overto the cockpit. The pilots then figure the load manifest from the number ofbagstimes the weight assigned to each by the Manual's average weights program. 12 A hearing was held on October 2, 2012, in SaltLake 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 ofpenalty 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 onFebruary 15, 2011, 14 SkyWest operated Flight 4451 from SLC to Casper, WY. At SLC the carrier loaded one heavy bag- marked with a "heavybag" tag- butthe CLRlisted zero suchbags (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'smain witness. He is a SkyWestpilot who evaluatedthe flights at issue for weight and balance factors. He pointed out that the nature ofthe 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 notbe amended accordingly. Tr. 147-49. No evidence showed that any last-minute loading tookplace on any ofthe flights underreview. 13 Complainant's Post-Trial Briefwillbe referred to as "Compl. Br." and Respondent's Briefas "Resp. Br." Additionally, Complainant's exhibits willbegin will begin with "Exh. C" followed bythe exhibit number; Respondent's exhibits willbegin with "Exh. R." 14 The Complaintrecites the date as February 11, but at the hearing the agency amended itto February 15. Tr. 12.5 weight and balance program- assigning average weights to baggage and to passengers- means that an aircraft's takeoffweight inevitably will not exactly correspond with its actual weight. Yet, he stressed, any discrepancies betweenthe two weight figures wouldnothave affected aircraft performance. Respecting the flight considered in -0779, 

### Mr. Salamone stated thatthe discrepancy claimedwouldhave resulted in a weight difference of30pounds (iftheheavy baghad been counted as a standard bag}or 60 pounds (ifthe heavy bag had not been counted at all). Either situation would nothave affected aircraft performance. The safety offlight would have suffered no compromise at all, he said (Tr. 105-07). 

### Mr. Salamone further defended SkyWest's actions innoting that FAA Advisory Circular ("AC") 120-27Epermits an average-weight program inpreference to an actual-weight program. Itrecognizes thatusing actual weights on an aircraft is impractical, he said. The AC also permits an error ofup to two percent for carriers performing bag surveys inplace ofusing 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.incounting and weighing, and attempts to promote safe operations to the maximum extent feasible, the "sheervolume" ofluggage

-- and "humanlimitation"

-- makes the goal, as a practical matter, impossible (Tr. 124-25, 167; Exh. R-5). Finally, the carrier stressed that ithas taken corrective actions to assure more accurate weighing. It has implemented additional risk controls, it states, andhas placed greater awareness onthis issue intraining. Ithas utilized surveillance onits ramp personnel. Employees falling short ofSkyWest standards have been counseled and re-trained. SkyWest emphasizes that ithas highlightedto 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 Complainantproved that SkyWest violated FARs §§119.5(g) and 119.5(1). Complainant failed to prove anyremaining allegations. i. Sections 119.5(g) and 119.5(1) Section 119.5(g) prohibits an air carrierfrom operating inviolation ofits op specs. SkyWest's op specs obligatethe carrierto use the procedures detailed inits Weight & Balance Manual for loading and countingbaggage. The Manual, among otherthings, directs the carrier's designated loading agent to accuratelyprepare the flight's CLR. Forthe flight encompassed by Docket -0779, SkyWest's CLRfailed to properlyreflect inthe appropriate block the actual count ofthe different classes ofbaggage loaded onto the aircraft. The agents'
· count was one heavybag; the CLR showed zero suchbags (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 ofop specs. By failing to set out for each flight accurate information onthe 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 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 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 ifit 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 ofthese provisions. As noted earlier, SkyWest computes its load manifest from its CLRusing 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 proceduresto 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 that the center ofgravity**wa~** 

### within approved limits. Indeed, the evidence suggested that the aircraft weight and center ofgravity 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 ofthe violation; (2) the extent and gravity ofthe violation; (3) the respondent's degree ofculpability; (4) the respondent's history ofpriorviolations, ifany; {5) the respondent's ability to pay the civil penalty; (6) the effect onthe entity's ability to stay 

### inbusiness; and (7) othermatters asjustice mayrequire. See, e.g., Folsom'sAirService, Inc., 

### FAA OrderNo. 2008-11 (November 6, 2008), 2008 WL 4948488, p. 11. The determination weighs whetherthe violation was inadvertent ordeliberate, the private orpublic character ofthe violation, and the attitude ofthe violator. The agency also considers the respondent's size, particularly indetermining the offender's ability to absorb the

.sanction. The principal elements in this analysis are the nature ofthe respondent's conduct and the totality ofthe circumstances. EasternAir Center, Inc., 

### FAA OrderNo. 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'sAirService, 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 slightestrisk (See

### Tr. 84-85). As Respondent notes, the CLRs are not dispositive (Resp. Br., p. 12). The most important factor inthe weight and balance context unquestionably is the load manifest. It

### is this document that is computed by the flight crew andused by them to evaluate howtheir calculations will affect operational safety. Complainant failed to show for any ofthe flights that Respondent failed to follow the scheme ofits 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 thatjustone civil penalty per flight is appropriate. To assess a civil penalty based onthe 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 ofop specs; the second prohibits operating under Part 121 in violation ofop specs. The distinction betweenthe two provisions for the presentpurposes 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 ofnoncompliance results in multiple violations ofgeneral 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 bothparties 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, itbe and is ORDERED as follow: a. I find and conclude thatNotices ofAssignment (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, servedNovember 2, 2012, and OrderUnsealing Transcript Pages, served January 17, 2013. However, this Initial Decision does not reference any ofthe evidence remaining under seal; as such, no part ofthe I.D. is subjectto seal, and itmay be freely disseminated in its entirety.

### 8

c. FAA Docket 2011NM060033 was docketed as FAA-2011-0680 and FAA-2011- 0779. d. The Order ofthe ChiefAdministrative 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 ofFAR §§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 ofappeal must conform to sections 13.210, 13.211(e) and 13.233 ofthe Rules ofPractice, which require that a notice ofappea11)be filed not laterthan 10 days (plus an additional five days ifmailed) from the service date ofthis decision, and 2) beperfected with a written briefor memorandum not later than 50 days (plus an additional five, ifmailed) from the service date ofthis decision. The notice ofappeal and brieformemorandum 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-Suite2W1000, orb) delivered personally orvia 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 ofthenotice ofappeal and briefor memorandum also mustbe sent to agency counsel. Service upon the presidingjudge is optional.

### 9

SERVICE LIST ORIGINAL & ONE COPY 

### Federal Aviation Administration 800 Independence Avenue, S.W. Washington, DC 20591 Attention: Hearing Docket Clerk, AGC-430 Wilbur Wright Building-Suite 2Wl000 1 ONE COPY 

### Todd C. Emerson, Respondent's Representative Director

- Government and Legal Affairs SkyWest Airlines 444 South River Road St. George, UT 84790 TEL: 435-634-3530 fPC(: 

### 435-634-3505 Robert Spitzer, Complainant's Counsel Attorney, Office ofthe Regional Counsel Northwest Mountain Region, ANM-7 Federal Aviation Administration 1601 Lind Avenue, S.W. Renton, WA 98057 TEL: 425-227-1417 FAX: 425-227-1007 The Honorable Richard C. Goodwin, Administrative LawJudge 

### Office ofHearings, M-20 U.S. Department ofTransportation 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.