### SERVED: July 16, 2015

U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, DC

JN THE MATTER 

### OF SKYWEST AIRLINES DOCKET NO. FAA-2012

- 0873 (Civil Penalty Action)

INITIAL DECISION OF ADMINISTRATIVE LAW JUDGE I. Glossary ACARS
A&P ASI Brown C.P.R. CLR CMO COG 

## cos Aircraft Communications Addressing and Reporting System Airframe and Power Plant certificate Aviation Safety Inspector Christopher C. Brown Code ofFederal Regulations Cargo Load Report Certificate Management Office Center ofGravity City ofColorado Springs Municipal Airport, Colorado Springs, Colorado .·, :,. :**~** :**~** ·,-: (_;

. .**~**FAA FAR N755SK/6756 OpSpecs ORD Salamone SkyWest SMS U.S.C. Wallentine W&B Manual II. Introductory Comment Federal Aviation Administration, Complainant Federal Aviation Regulation SkyWest flight from ORD to COS on April 7, 2011 Operations Specifications Chicago O'Hare International Airport, Chicago, Illinois Carl Salamone, SkyWest witness SkyWestAirlines; Inc., Respondent Safety Management System United States Code Michele Wallentine Weight & Balance Operations Part XII SP 4100

This case was consolidated with other cases with similar facts, issues and defenses by consent ofthe parties. 1 This case involved SkyWest flight N755SK operated as Flight 6756 (hereinafter N755SK/6756") from Chicago O'Hare International Airport (hereinafter "ORD"), ' ..**-~-** ',._ .<., Chicago, Illinois, to City ofColorado Springs Municipal Airport (hereinafter "COS"), Colorado Springs, Colorado, on April 7, 2011. III. Procedural History On July 26, 2012, SkyWestAirlines, Inc., (hereinafter "SkyWest") was advised through a FinalNotice ofProposed Civil Penalty that the Federal Aviation

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. 2

,.....'\. Administration (hereinafter "FAA") proposed to assess a civil penalty in the amount of $40,000. OnAugust 8, 2012, SkyWest, throlfgh legal counsel, submitted a written request for a hearing. On August 13, 2012, the FAA filed its Complaint. On September 13, 2012, SkyWest filed its Answer. By Order dated August 21, 2013 we consolidated this case with other cases with similar violations ofthe FARs, similar issues and similar defenses ofSkyWest. IV. Hearing A hearing was held in Salt Lake City, UT., on May 19, 2014 onthe consolidated 1 ' \ cases. The FAA was representedby 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. Posthearing briefs were filed by both parties. The matter is now ready for decision. V. Jurisdiction Sky West was at all times material hereto the holder ofScheduled Air Carrier**·~** l Certificate No. SW1A011A, and conducted its operations pursuant to Part 121 ofthe Federal Aviation Regulations (FAR) and was subjectto those regulations.

3VI. Burden ofProof The FAA was the petitioning party withthe initial burden ofproof(14 

### C. F.R. § 13.224). VII. Allegations A. The FAA'srecitation offacts Section II (FAA's Complaiqt) 1. SkyWestwas at all times material herein the holder ofScheduled Air Carrier Certificate No. SWIAOllA, and conducted its operations, pursuantto Part 121 ofthe Federal Aviation Regulations (hereinafter "FAR"). 2. Paragraph D085 ofSkyWest's Operations Specifications (hereinafter "OpSpecs") authorized SkyWest to use N755SK, a Bombardier CL-600-2Cl0 civil aircraft, in the conduct ofSkyWest's Part 121 operations. 3. Paragraph A098 ofSkyWest's OpSpecs required that aircraft loading for Bombardier**CL-600~2C10** aircraft be accomplished in accordance with SkyWest's Weight & Balance Operations Manual, SP4100, (hereinafter "W&B Manual"), "Part

# XII,**r'e~isio~.-Orig.** of 1 APR 10." 4. SkyWest's W&B Manual containedthe loading schedules and instructions for SkyWest's Bombardier CL-600-2Cl0 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.24 defined "Heavy Checked Bags" as "[a]ny bagthat weighs more than 50 lb. butless than 100 lb."
4 ·} ,.
. ., I '.) •..; 

### "' 7. SkyWest's W&B Manual (Temporary Revision dated 14 FEB 11), Chapter 3, paragraph 2.D.1 stated the "designated CD Ground Operations loading agent evaluates the classification ofall checked baggage (either standard or heavy). The designated loading agent must mark the number ofstandard and heavy checked baggage onthe CLR." 8. SkyWest's W&B Manual (Temporary Revision dated 14 FEB 11), Chapter 3, paragraph 2.1.2 statedthat "[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
... " 9. SkyWest's W&B Manual (Temporary Revision dated 14 FEB 11), Chapter 3,**~** . paragraph 3.B.2 stated the flight deck crewmemberused the information from the CLRto constructthe ACARS load manifest. 10. Sky West'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 appropriate "Standard Checked" block on the CLR. 11. SkyWest's W&B Manual, Chapter4, paragraph 8.10, required the loading agent to write the total number ofPlaneside Valet/Service Items loaded in each cargo bin/pit inthe appropriate "Planeside Valet/ServiceItems" block on the CLR. 12. SkyWest's W&B Manual,

### Ch~pter 4;paragraph 11 -AircraftLoading, containedthe 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 5Section III (FAA's Complaint) 13. On April 7, 2011, at ORD, SkyWest loadedpassengers and baggage onto N755SK/6756, bound for COS.

X J !. '" 14. SkyWest's personnel at ORD 16\ided thirty-three (33)·standard checked bags and two (2) heavy checked bags onto N755SK/6756. 15. The CLRforN755SK/6756listed thirty (30) standard checkedbags and zero (0) heavy checked bags onboard N755SK/6756. 16. The inaccurate data onthe CLRwas used to construct the ACARS load manifest for N755SK/6756. 17. SkyWestthereafter operatedN755SK/6756 from ORD to COS. Section IV (FAA's Complaint) SkyWestpaid civil penalties in eight (8) previous cases involving loading of cargo contrary to approvedprocedures.**·~** ... "\**~·.** 

## . . ,· · .. ;:. ::,.**~** Section V 18. The FAA alleged by reason ofthe foregoing facts and circumstances, Sky Westviolated the following sections ofthe FARs (14 C.F.R.):
a. 14 C.F.R. Section 119.5(g), inthat, as a direct air carrier it operated in violation ofan appropriate operations specification. b. 14 C.F.R. Section 119.5(1), inthat 

### it operated aircraft under Part 121 in violation ofits operations specifications.
c. 14 C.F.R. Section 121. 693(a), inthat it operated flights without a load manifest that accurately reflected the weight of 1he cargo andbaggage.

6ri d. 14 C.F.R. Section 121.693(c), inthat it operated flights whenthe total weight ofthe aircraft was notcomputed under approved procedures.
e. 14 C.F.R. Section 121.693(d), inthat it operated flights when the aircraft
was not loaded according to an approved schedule. In accordance with 49 UnitedStates Code (hereinafter "U.S.C.") Sections 46301(a) and (d) (Transportation), SkyWestwas liable for a civil penalty not to exceed $27,500 for each ofthe violations noted. The FAA alleged under the facts and circumstances ofthis case, a civil penalty of$40,000 was appropriate. B. SkyWest's recitation offacts Answering Section I ofthe Complaint, SkyWest averred: SkyWest admitted that it was advised through a Final Notice 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. SkyWest admitted that it was at all times material hereto, the holder of Scheduled Air Carrier CertificateNo. SWIA011A, and conducted its operations pursuantto**P~rt** 121 ?ftheFARs. 2. Inresponse to Paragraph 2, Sky West admitted that Paragraph D085 of SkyWest's Op Specs authorized SkyWestto use N755SK, a Bombardier CL600-2C10 civil aircraft, in the conduct ofSkyWest's Part 121 operations.

73. In response to Paragraph 3, SkyWest admittedthatParagraph A098 of SkyWest's OpSpecs required that aircraft loading for Bombardier CL-600- 2Cl0 aircraft be accomplished in accordance with SkyWest's W&B Manual, "PartXII, revision Orig. of 1APR**1tQ.~'** 4. Inresponseto Paragraph 4, SkyWest admittedthat its W &B Manual contained the loading schedules and instructions for SkyWest's Bombardier CL-600-2C10 aircraft. 5. In response to Paragraph 5, SkyWest admitted that its W&B Manual, Chapter 2, paragraph 2.A.58 defined "Standard Checked Bag" as a "checked bag weighing 50 lb. or less." 6. Inresponse to Paragraph 6, SkyWest admitted that its W&B Manual, Chapter 2, paragraph 2.A24 defined "Heavy Checked Bags" as "[a]ny bagthat weighs
morethan 50 lb. but less than 100 lb." 7. Inresponse to Paragraph 7, SkyWdhidmittedthat its W&B Manual (Temporary Revision dated 14 FEB 11), Chapter 3, paragraph 2.D.l stated the "designated CS Ground Operations loading agent evaluates the classification ofall checkedbaggage (either standard or heavy). The designated loading agent must markthe number ofstandard andheavy checkedbaggage onthe CLR." 8. Inresponse to Paragraph 8, SkyWest admitted that its 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

8must verify the piece count ofall Standard Checked, Heavy Checked, and Planeside Loaded/Service Item Baggage
..." 9. In response to Paragraph 9, SkyWest admitted that its W&B Manual (Temporary Revision dated 14 FEB 11), Chapter 3, paragraph 3.B.2 stated the flight deck crewmember uses the information from the CLRto constructthe ACARS load manifest. 10. In response to Paragraph 10, SkyWest admitted thatits W &B Manual, Chapter 4, paragraph**8.~,** requi,red tlfe loading agent to write the total number ofstandard checked baggage loaded in each cargo bin/pitinthe appropriate "Standard Checked" block onthe CLR. 11. In response to Paragraph 11, SkyWest admitted that SkyWest's W&B Manual, Chapter4, 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 onthe CLR. 12. Inresponse to Paragraph 12, SkyWest admitted that its W&B Manual, Chapter 4, paragraph 11

- Aircraft Loading, containedthe warning: WARNING- INACCURATE LOADING, REPORTING, OR FAILURE TO REPORT**INFO~TION** COULD CAUSE ISSUES WITH AIRCRAFT PERFORMANCE AND HANDLING, RESULTING IN THE ENDANGERMENT OF HUMAN LIFE Answering Section III ofthe Complaint, SkyWest averred: 13. Inresponse to Paragraph 13, SkyWest admittedthat on April 7, 2011, at ORD, SkyWestloaded passengers and baggage ontoN755SK/6756, bound for COS. 14. Inresponse to Paragraph 14, SkyWest was without sufficient information or knowledge from whichto form a beliefas to the truth ofthe allegation that 9\SkyWest's personnel at ORD loaded thirty-three (33) standard checkedbags and two (2) heavy checked bags onto N755SK/6756, and therefore denied the
same. ·i • '\ ..li'r··:·/·'· 15. Inresponse to Paragraph 15, SkyWest admitted the CLRfor N755SK/6756 listed thirty (30) standard checked bags and zero (0) heavy checked bags on boardN755SK/6756. 16. In response to Paragraph 16, SkyWest was without sufficient information or knowledge from whichto form abeliefas to the truth ofthe allegation that the inaccurate data onthe CLRwas used to construct the ACARS load manifest for N755SK/6756, and therefore denied the same. 17. In response to Paragraph 17, SkyWest admitted it operatedN755SK/6756 from ORD to COS. Answering Section IV ofthe**Complaint~.:SkyWest** averred: ;(, \"l'. :·· Inresponse to Paragraph 18, SkyWest admitted it paidpenalties oneight (8) previous cases involving loading ofcargo contrary to approved procedures. Answering Section V ofthe Complaint, SkyWest averred: SkyWest generally denied all remaining allegations set forth in the Complaint. SkyWest asserted the following Affirmative Defenses: 1. The proposed penalty was excessive and violates FAA orders. 2. SkyWest averred it may have other affirmative defenses not currently known butwhich may become known through discovery. SkyWest reserved the right to allege such affirmative

### d~tehses**~f~** they become knoWn.

10VIII. Issues
Did SkyWestviolate 14 C.P.R. Sections 119.5(g), 119.5(1), 121.693(a), 121.693(c) and/or 121.693(d) by operation ofN755SK/6756 from ORDto COS on April 7,2011. Under the facts and circumstances ofthis case, was a civil penalty of$40,000 appropriate. IX. Summary ofTestimony and**~:yidelil~~!·';'** ;< All admitted testimonial and documentary evidence was reviewed and considered. The testimony is summarized herein. A. FAA's Case Michele Wallentine The FAA called Michele Wallentine (hereinafter "Wallentine") as a witness. Wallentine workedthirty (30) years in for the Air Force Reserves and as a civil servant for the Air Force. Atthe time ofthe hearing she was an Aviation Safety Inspector (hereinafter "ASI") for the FAA in Denver, Colorado.2 On April 7, 2011, Wallentine conducted surveillance at COS to ensure thatthe cargo and baggage count matched the CL:ft11 As'part ofher surveillance she perfonned a baggage count onN755SK/6756 and observed thirty-three (33) standardbags and two (2) heavy bags offloaded from N755SK/6756. 3 She recognizedthe heavy bags because they had orange tags.4

2 Tr. p. 113, I. 1top. 114, I. 5. 3 Witness referred to FAA# C-102 and FAA# C-103 to refresh her recollection. 4 Tr. p. 117, I. 11 top. 119, I. 22. 11**1.~** '. •

### Cross Wallentine testified all the ir,specti;ons:she made on May 5th, April 7th, and July 14, 2011, at COS were for the purpose ofcounting baggage. There were other flights on those days into COS which had no discrepancies. Wallentine believed she observed ten (10) flights on each ofthe days she conductedbag counting surveillance on each ofthe flights. She had notbeen asked to conduct bag surveillance on other air carriers.5 

### Joseph Chavez Joseph Chavez (hereinafter "Chavez") spent twenty (20) years in the Air Force, then worked in a 145 repair station. In 2009 hejoinedthe Certificate Management Office . D 6 

### m enver. OnApril 7, 2011, Chavez was assisting with the surveillance ofSkyWest's weight and balance baggage program at COS.

## D~Ytntih~t surveillance Chavez obtainedthe CLRfrom the air crew and the ACARS load-generated report from SkyWest for N755SK/6756. Chavez identified FAA# C-16 as the CLR and FAA# C-17 as the ACARS load-generated report for N755SK/6756. 7 

### Andrew James Ayers8 

### AndrewJames Ayers (hereinafter "Ayers") was calledbythe FAA as an expert in Weight and Balance and specifically SkyWest's Weight and Balance program. Ayers' testimony was applicable to all ofthe cases inthe consolidated docket. Ayers had worked inthe aviation industry for nineteen (19) years, had been a Pilot in Command (hereinafter "PIC") on EMB-120 and CL-65 aircraft for approximately

5Tr. p. 125, I. 21 top. 128, I. 6. 6 Tr. p. 129, I. 17 top. 130, I. 14. 7 Tr. p. 138, I. 18 top. 143, I. 3. 8 Tr. 179; I. 17 top. 209, I. 19. /.<.**\~.i,,** '(·: ,:l' ·). ''. .f



### 12nine (9) years. He had been withthe FAA approximately six (6) years atthe SkyWest Certificate Management Office (hereinafter "CMO"). He was the "Principle Operations Inspector" (hereinafter "POI") for SkyWest and hadthe overall responsibility for all of the authorizations and approvals for SkyWest's operational needs. He oversaw compliance, authorizations for SkyWestprograms, and scheduled surveillance and follow-up. He had an airline transport pilot 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 inthe field ofaircraft weight and balance. Ayers explained the CLR was a tally worksheet for computing the loads orthe weight ofcargo loaded on the aircraft. A 'standardbag' was a term used for an average bag assigned a weight ofthirty**(30),pound~.** A standard bag was defined as a bag !! • • • weighing from zero (0) upto fifty (50) pounds. A heavy bag wouldbe over fifty (50) up to one hundred (100) pounds. For purposes ofSkyWest's weight and balance program, heavy bags were assigned a weight ofsixty (60) pounds. Plane side loaded valet bags
were assigned a weight ofthirty (30) pounds which included a weightrange do ofzero (0) to fifty (50) pounds.

13

SL1.**~~··** ,·< •.Ayers testified the load manifest'contained the total weights for aircraft flights. 9 Ayers described SkyWest's "Weight and Balance Handbook" as a general book which containedboth background knowledge, scientific information, factual information about weight and balance, as well as suggested policies and procedures for complying with weight and balance when operating aircraft. Italso described hazards associated with improp{(r weight and balance. The FAAproffered evidence ofa prior aircraft accident under Part 121 where weight and balance was a causal factor. We sustained an objection to the testimony and reaffirm our ruling. Ayers' proffer was:

...the accident in question involved an aircraft that was loaded no[t] in compliance with the operato(s aRproveqi_)¥eight and balance program. Incorrect information was providedtd the

### flfgnt'cre~ which allowed them or did not allow them, rather, to accurately complete their load manifest for their flight. That resulted inthem being unable to detect an aft CG
...the aircraft in question stalled shortly after takeoffand crashed, killing 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 andthe objection was sustained. The testimony was not received. Ayers testified the weight listed on the load manifest for N755SK/6756 10 manifest correlated with the weight calculated using the information contained inthe cargo load report (see FAA# C-16 and C-17),

### ~owe~e:t;;**.th~~·oad** manifest was inaccurate and the performance dataused to operate the aircraft was inaccurate.

9 The witness identified FAA# C-6, C-9, C-12, and C-14 as examples ofload manifests. 10 Tr. p. 204, I. 4 to p. 204, I. 19. 

### 14Ayers further testified that in a

### c~uple ofthe cases11 where the load manifest weight matched the CLRthere was still a violation ofthe approved programbecause the program describedprocedures for completion ofthe CLR, and failure to follow those procedures was still a violation. Whether or not the number was correct was not relevant to whetherthose procedures were aytuallyJcillo,Wed. Ayers drew an analogy that, it was ·;· ...,.**~** .. •..
... . not enough to get the right answer, butto show your work to get the answer and that work also hadto be correct. Ayers testified he believed there was an unknown impact on safety posedby these discrepancies, butthat he was not surprised thatthe aircraft were operated withintheir weight and balance envelope. 12 Cross 13 Ayers testified the front side ofthe CLR worksheet was where the math was tallied up while the back side ofthe CLRwas the worksheet to assist the 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

## wh~n~the-iW~pectors counted the offloaded baggage they were counted correctly. Ayers testified that in 2011 SkyWest did nothave a Safety Management System (hereinafter "SMS"). SMS was a series oftools andprograms that allowed SkyWestto identify risks and mitigate those risks withprocesses and procedures in place to identify howthey do that, when they do that, and what the outcomes are. Risks were categorized, with Category I being non-safety related. SkyWest implemented an SMS after the 2011 incidents.

11 Referring to the consolidated docket. 12 Tr. p. 207, I. 19 top. 208, I. 16. 13 Tr. p. 209, I. 21 top. 219, I. 10.Redirect14**'->~~'** \.**~ ~I** **~** Ayers testified both copies ofthe CLR should be updated with any last minute changes. Ifthe load manifest was inaccurate, the process wasn't followed. COMAT was required to be marked on the CLR as COMAT and ballast was required to be marked on the CLR as ballast. Ifa live animal was on board, thatwas required to be reflected onthe CLR. Recross 15 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 notreceived [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 partofthe administrative record. B. SkyWest' Case 

### Carl Salamone The testimony ofCarl Salamone (hereinafter "Salamone") was taken by deposition (SW# 3-3) and introduce.d into the re.c.ord by agreement ofthe parties. t' ' ; ', 1
. Counsel for both parties were present at the deposition. Salamone'stestimony was applicable to all ofthe cases inthe consolidated docket.

14 Tr. p. 219, I. 13 top. 222, I. 1. 15Tr. p. 222, I. 3, top. 223, I. 1. 16Salamonehad 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 CanadairRegional Jets (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

!
..**~** ·:.,l,
.. ground instructor certificate. He was rated in the CRJ 200, 700 and 900 aircraft and had operated all three types ofaircraft. He had 4200 hours offlighthours, ofwhich 3200
were in CRJs. He had a Bachelor ofScience degree in electrical engineering and a Bachelor ofScience degree in aviation human factors, from the University ofIllinois. Aviation human factors was the study ofhuman factors principles in research and psychology as itrelated specifically to aviation in the human elements ofaviation safety, including weight and balance systems. For five (5) years he had been a member ofa special projects group which, among other things, involved analysis ofweight and balance. Salamone estimated he had flown about 3,000 flights. Each flight required a weight and balance calculation priortotha't flight. He had training inweight and balance from his education as well as SkyWest. Salamone was received by the court as an expert inthe field ofcalculation of aircraft weight and balance and the effects ofthat weight and balance on the aircraft performance. Salamone reviewed SW# R-1, a weight and balance analysis covering arecreation ofthe fourteen (14) flights based on the data available to him on weight and balance as calculatedbythe crew and also the alleged weight and balance as it would have been observedby aninspector(s) for each ofthe flight violations. In the analysis of these flights, Salamonetook all information that was available to him, the cargo load**,1~** ' 17reports, the load manifests, electronic, ifavailable, the inspector's statement from the FAA, as far as the alleged weight or items that may have been present and the manufacturer documentation for the Canadair seriesjetsto determine performance and the weight and balance in that respect. He also took into accountrunway length, air temperature and fuel weight. Aircraft takeoffweight was defined as the gross weight ofthe aircraft inthe takeoffconfiguration, as it wouldbegin the takeoffsegment ofthe flight. Itwas the full weight ofthe airplane immediately prior to**beg}~ning** 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 that the plane remained in balance for the manufacturer's specifications throughout that flight. COG
was a single point, a mathematical point. Itwas a single point like a teeter-totter, where that airplane would balance on one particular point where the weight was mathematically
seen onthat location onthe airplane. COGwas importantfor stability reasons, for control reasons, anditwas reallyjusta majorpart ofthe physics offlight, to ensure that the plane will perform as 

### itwas designed to. Other factors considered in Salamone's analysis included runway performance, flight climb performance, andmaximum operating altitude. Those factors meantthatthe airplane would notbe too heavy to meet its performance requirements and performance planning. An airplane was operated at a weight that would ensure that the runway was adequate, that the climbing performance was adequate, and that it wouldbe able to obtain its operating altitude for all phases offlight and complete that flight as planned.

18

### Salamone testified in his opinion, under the weights that the crewhadrecorded and believed thatthey were operating under, none ofthefourteen (14) flights exceeded maximum takeoffweight and none ofthe flights were unsafe in anyway. In Salamone's opinion, taking into accdhrtt the additional weights observed bythe FAA inspectors, none ofthe aircraft exceeded tolerances nor were the flights unsafe. In his opinion, the crews' calculations were accurate 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 perceivedby the FAA inspectors. Taking into accountthree ofthose factors, either as calculatedby 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. Salamone testified the FAA reported that thirty-three (33) standard and two (2) 

### ;-, .**\-~** 

### .**!-~J~ ~**  

### heavy bags were present in the cargo

### comparfm~iit ofN755SK/6756 butthe CLR indicated that thirty (30) standard and zero (0) heavy bags present in the aft cargo compartment. Salamone found that the observed weight would have resulted in an additional 210 pounds located in the aft compartment over what was indicated on the

. CLR. N755SK/6756 was approximately 6,000 pounds below maximum takeoffweight.

The result would have been minimal effect on aircraft performance. N755SK/6756 did not exceed maximum takeoffweight, or operational weight. The COG, as calculated by the flight crewwas located at 22.52 percent mean aerodynamic chord. The additional 21 0 pounds would have shifted the center ofgravity location to a point 23.12 percent

l'
..l,**;~**

## .. 19mean aerodynamic chord, a very, very small shift withinthe envelope. There would have beenno impact onthe safety ofthe aircraft. Fuel planning for all the CJRs involved would have been very close. The additional weight may have caused a slight increase in fuel usage,justbecause it costs
more to fly around the extra weight. However, 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 nothave 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 handling as having to do with the environment around which itis centered. The ramp environment mayhave temperature swings; it may 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 even more difficult. Salamone was not particularly surprised at bag count discrepancies. Cross 16 Salamone testified the reason why he took runway length into account was that a heavier aircraft required a longer distance to takeoff. Heavier aircraft needed to reach a higher speed to become airborne, had a lower rate ofclimb, a lower angle ofclimb, lower service ceiling and slower cruising speed. Additionally, heavier aircraft had a shorter

16 Tr. p. 281, I. 18 top. 291, I. 6. 

### 20range, 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

I. '·· .._, (_i•. CLR is one ofthe documents used to generatethe load manifest. The load manifest was the documentthat containedthe aircraft gross weight and center ofgravity location, which was thenused to determine performance requirements. Christopher C. Brown17 Christopher C. Brown (hereinafter "Brown") was the Director ofAircraft Operations for SkyWest Airlines. His principle duties included oversight, flight standards, fleet management, and program development, process development, manuals, such as weight and balance, ground deicing program, flight operations manual, standard operations procedures, and such. He had been in the aviation industry for thirty (30) years. Hehad an AMP certificate, airline transpprt certificate with the CL-65, a flight**~ ~**  ..... ; ' .:.. ' instructor certificate, an advanced flight instructor or an advanced ground instructor certificate. Brown's testimony was applicable to all ofthe cases inthe consolidated docket.Browntestified about SW# R5-1, which was a letter to the CMO, to Mr. Ayers, requesting consideration for a proposed amendmentto the approved weight and balance program to allow for human factors errors in bag counting. The proposal would artificially add a specific amount ofweightto the basic operating weight ofeach aircraft. In doing so, the performance calculations would be performed as ifthe weight was physically onboard the aircraft, even though, in most cases, the weight would notbe present. The aircraft operating envelope\vouldtte curtailed in such a waythat for small miscounts, the SkyWest weight and balance program would assure thatthe aircraft would
17 Tr. p. 298, I. 20 top. 324, I. 12. 21

### always remain within the manufacturer's operating envelope. Browntestifiedthe proposal was similarto a program implementedby 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.

. 

### ....**~:;; vt·~**  . r 

### C. Credibility determinations We find the testimony ofall witnesses to have been truthful and credible. 

### X. BriefSummary ofEvidence and Testimony On April 7, 2011, at ORD, SkyWest loaded passengers and baggage onto N755SK/6756, bound for COS. SkyWest's personnel at ORD loaded thirty-three (33) standard checked bags and two (2) 

### heavy checked bags onto N755SK/6756. The CLR for N755SK/6756 listed thirty (30) standard checked bags and zero (0) heavy checked bags
on boardN755SK/6756. The inaccurate data on the CLR was used to constructthe ACARS loadmanifest for N755SK/6756. SkyWestthereafter operatedN755SK/6756 from ORD to COS on April 7, 2011: 

### XI. Law A. 

### The FAAhas 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 inFAA cases.
22A person is liable to the United States Government for a civil penalty ofnot more than $25,000 for violating
.. , (B)**aregul~tion** prescribed or order issued under any provisionto 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.F.R. Parts 119 and 121 (Preamble). C. 14 

### C.FR. § 119.5 Certifications, authorizations, and prohibitions. 

### 1. 14 C.FR. 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 orthatperson's representative. 2. 14 C.FR. Section 119.5(1), provides: No person may operate an aircraft under this part, part 121 ofthis chapter, orpart 135 ofthis chapter in violation ofan**aiq~arrier** operating certificate, operating certificate, or appropriate op_erations

### sp~~l:fications issued under this part. · • -<, (, D. 14 C.P.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.P.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.P.R. Section 121.693(d), provides: Evidence thatthe aircraft is loaded according to an approved schedule that insures that the center**ofi(gravity,)~ Wlt.l;lin**  approved limits.
•. \ .. E. FAA Order 2150.3B Chapter 7 and Appendix B, dated October 1, 2007 (Sanction Guidance).

23

### 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: r l'· V..J'j.l \'.'·' ' ' A. 14 C.FR. Sections 119.5(g) and119.50) 

### 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 for flightN755SK/6756, SkyWest's CLR failed to properly reflect in the appropriate blockthe actual count ofthe different classes ofbaggage loaded onto the aircraft. The f<iilure to accurately prepare the CLR, itis concluded, constitutes a.violation of§119.5(g). 

### SkyWest's actions in loading and marking the CLRs for flight N755SK/6756 also constituted a violation ofF AR §119.5

### (!). This section prohibits Part 121 air carriers from operating in violation ofOpSpecs. By failing to set out for each flight accurate information onthe CLRs, SkyWest, a Part 121 air carrier, did not operate in conformance with its OpSpecs. It

### thus violated this section. B. 14 C.F.R. Sections 121.693(a), (c), and (d) Subsection (a) o/§121.693 

### requires a load manifestto containthe weight ofthe cargo and baggage. Subsection (c) compels the use of"approvedprocedures" in

24

### computing the total weight ofthe aircraft.

### ·'Secti~n 121.693(d) 

### requires that the load manifest contain evidence that the aircraft was loaded according to an approved schedule which insures thatthe center ofgravity is within approved limits. Construing these subsections together, as principles ofstatutory construction dictate, indicates that a carrier's load manifest will pass muster ifit has been compiled using approved procedures, and thatthe method used insures that the center ofgravity is within limits. The evidence shows that SkyWest followed these mandates. Salamone testified that for the fourteen (14) flights he reviewed, including N755SK/6756, given the weights that thecrews had recorded and believedthatthey were operating under, none ofthe flights exceeded maximum takeoffweight and none ofthe flights were unsafe in anyway. Th6icrews;

## ~~f~~lations were accurate 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. None of the flights would have been in excess ofthe manufacturer's limitations for takeoffweight, center ofgravity, runway performance, climb performance, or maximum operating altitude. As noted earlier, SkyWest computed its load manifest from its CLRusing its Manual's average weights program. SkyWest's OpSpecs required loading procedures to follow the Manual. The load manifest, then, used approved procedures to compute the weight ofthe baggage. No violation of§§121.693(a) and (c) 

### thus could be proven. Nor ·.(•
. ' 

### was a §121.693(d) 

### violation proven; no

## evidenc~'tended to demonstrate thatthe approved method failed to insure thatthe center ofgravity was within approved limits. Indeed, Salamone'stestimony and accompanying evidence suggestedthat the aircraft weight and

25center ofgravity location fell within manufacturer recommendations and performance envelopes for every flight under review. 18 Accordingly, the FAA, it is concluded, failed to prove that SkyWest violated 14 C.FR. Sections 121.693(a), (c), and (d.) XIII. Conclusions Upon consideration ofthe totality ofevidentiary facts and testimony, by a preponderance ofthe evidence standard, we find:

.A. The FAA proved that SkyWest violated 14 C.FR. Section 119.5(g), and 14 C.FR. Section 119.5(1). 

### B. We find the FAA did not made aprimafacie case with respect to the violations of 14 C.FR. Section 121.693(a),14 C.FR. Section 121.693(c), and/or 14 C.FR. 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 ofi4 C.FR. Section 119.5(g), and 14 C.FR. Section 119.5(1).

We found the FAA failed to make a prima facie case with respect to the violations of 14 C.FR. Section 121.693(a),14 C.FR. Section 121.693(c), and/or 14 C.F.R. Section 121.693(d), inclusive. The FAA argued under the facts and circumstances ofthis case, a civil penalty of$40,000 was appropriate inthis case.

18 See In the Matter ofSkyWestAirlines, 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;

. 26' .'We note in FAA 2011-0485, the FAA sought a civil penalty of$99,000. InFAA 2011-0485, the FAA sought a civil penalty of$33,000. In FAA-2011-0779, the FAA sought a civil penalty of$33,000 SkyWestwas cooperative and responsive to FAA concerns. The FAAhad a cooperative working relationship with SkyWest. Once notified ofthe violations, SkyWest took swift, comprehensive corrective action including implementation ofan SMS after the 2011 incidents as set forth in testimony before the court and SkyWest's Post Hearing Brief. The FAA argued, and SkyWest admittee;l. that SkyWestpaid civil penalties in eight (8) previous cases involving loading ofcargo contrary to approved procedures. While a penalty calculated in accordance withthe FAA's policy guidance should stand, absent a showing ofa respondent's inability to pay, the evidence and testimony did not supportthe penalty requested. While the FAA was entitled to substantial deference in establishing an appropriate civil penalty, we cannot ignore our role to evaluate the testimony and evidence. Significantly, the violations found were technical innature. They had no material effect on weight and balance or on aircraftperformance. SkyWest showed that in no instance was safety offlight at even the slightestrisk (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. Itwas this documentthat was computed by the flight crew and used by themto evaluate howtheir calculations will affect operational safety. The FAAfailed to show for any ofthe flights

27that SkyWest failed to follow the scheme ofits Weight & Balance Manual in deriving its load manifests. In fact the evidence showed that Sky West's load manifest calculations
were in accordance with its OpSpecs and Manual instructions in every instance. In addition, SkyWest implemented a new Safety Management System to address the violations. We find further thatjustone 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(1), are not significantly different. The first prohibits operation as a direct air carrier in violation ofOpSpecs; the second prohibits operating under Part 121 in violation ofOpSpecs. The distinction between the two provisions for the presentpurposes is inconsequential. As such, penalizing SkyWest for both violations would be unjustified. We note that the agency's civil penalty guidelines, FAA Order :if50.3B, 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 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.

28WHEREFORE, evidence and testimony having been heard and considered 

### it be and is hereby ORDERED as follows: 19 1. We reaffirm our ruling and SkyWest's objection to the FAA's proffer of testimony from Ayers for reasons setforth 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 of

### 14 C.F.R. Section 119.5(g). and J.l. 

### C.F.R. Section 119.5(1); and 3. We find the FAA did not made a

### prima[clcie case with respect to the violations of 

### 14 C.F.R. Section 121.693(a),14 C.F.R. Section 12/.693(c), and/or 

### 14 C.FR. Section 121.693(d), inclusive and those violations be and are hereby DISMISSED.

Richard C. Goodwin U.S. Administrative Law Judge
Attachment- Service List·

19 This decision may be appealed to the Administrator ofthe FAA. The notice ofappeal must conform to sections 13.210, 13.211 (e) and 13.233 ofthe Rules ofPractice, which require that a notice ofappeal I) be filed not later than I0 days (plus an additional five days ifmailed) from the service date ofthis decision, and 2) be perfected with a written briefor memorandum not later than 50 days (plus an additional five, if mailed) from the service date ofthis 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 2WI000, or b) delivered personally or via expedited courier service to the Federal Aviation Administration, 600 Independence Avenue, S.W., WiI bur Wright Building-Suite 2WI000, Washington, D.C. 20591, Attn: Hearing Docket Clerk, AGC-430. A copy ofthe notice ofappeal and briefor memorandum also must be sent to agency counsel. Service upon the presidingjudge is optional. 

### 29

### 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

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.spondent '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-2012-0873 (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 Lau'Judge 

### Office ofHearings, M-20 U.S. Department ofTransportation 1200 New Jersey Avenue, S.E. (E11-310) Washington, DC 20590 TEL: 202-366-2139 Attorney-Advisor 202-366-5121 StaffAssistant FAX: 202-366-7536