SERVED: July 16, 2015 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, DC 

JN THE MATTER OF 

SKYWEST AIRLINES 

DOCKET NO. F AA-2012 - 0873 

(Civil Penalty Action) 

INITIAL DECISION OF ADMINISTRATIVE LAW JUDGE 

I. Glossary 

A CARS 

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 of Federal Regulations 

Cargo Load Report 

Certificate Management Office 

Center of Gravity 

City of Colorado Springs Municipal Airport, 

Colorado Springs, Colorado 

.·, :,. : 

~ : ~ ·,-: (_; . . ~ 
FAA 

FAR 

N755SK/6756 

OpSpecs 

ORD 

Salamone 

Sky West 

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 

Sky West Airlines; Inc., Respondent 

Safety Management System 

United States Code 

Michele Wallentine 

Weight & Balance Operations Part XII SP 41 00 

This case was consolidated with other cases with similar facts, issues and 

defenses by consent of the parties. 1 

This case involved Sky West flight N755SK operated as Flight 6756 (hereinafter 

N755SK/6756") from Chicago O'Hare International Airport (hereinafter "ORD"), ' .. -~- ',._ .<., 

Chicago, Illinois, to City of Colorado Springs Municipal Airport (hereinafter "COS"), 

Colorado Springs, Colorado, on April 7, 2011. 

III. Procedural History 

On July 26, 2012, SkyWest Airlines, Inc., (hereinafter "SkyWest") was advised 

through a Final Notice of Proposed Civil Penalty that the Federal Aviation 

1 SkyWest Airlines Docket Numbers 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. 

On August 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 of the F ARs, similar issues and similar defenses of Sky West. 

IV. Hearing 

A hearing was held in Salt Lake City, UT., on May 19, 2014 on the consolidated 

1 ' \ 

cases. 

The FAA was represented by Jeffrey Harper, Esq., FAA Office of Regional 

Counsel, Renton, Washington. 

SkyWest was represented by Michael L. Dworkin, Esq., of Dworkin & 

Associates, San Francisco, California 94104 and Todd C. Emerson, ESQ., General 

Counsel, SkyWest Airlines, St. George, Utah. 

Post hearing 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 of Scheduled Air Carrier ·~ l 

Certificate No. SW1A011A, and conducted its operations pursuant to Part 121 of the 

Federal Aviation Regulations (FAR) and was subject to those regulations. 

3 
VI. Burden of Proof 

The FAA was the petitioning party with the initial burden of proof ( 14 C. F. R. § 

13.224). 

VII. Allegations 

A. The FAA's recitation of facts 

Section II (FAA's Complaiqt) 

1. SkyWest was at all times material herein the holder of Scheduled Air Carrier 

Certificate No. SWIAOllA, and conducted its operations, pursuant to Part 

121 ofthe Federal Aviation Regulations (hereinafter "FAR"). 

2. Paragraph D085 of SkyWest's Operations Specifications (hereinafter 

"OpSpecs") authorized SkyWest to use N755SK, a Bombardier CL-600-2Cl0 

civil aircraft, in the conduct of Sky West's Part 121 operations. 

3. Paragraph A098 of Sky West'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 contained the 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 "checked bag weighing 50 lb. or less." 

6. SkyWest's W&B Manual, chapter 2, paragraph 2.A.24 defined "Heavy 

Checked Bags" as "[a]ny bag that weighs more than 50 lb. but less 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 of all checked baggage (either standard or heavy). 

The designated loading agent must mark the number of standard and heavy 

checked baggage on the CLR." 

8. SkyWest's W&B Manual (Temporary Revision dated 14 FEB 11), Chapter 3, 

paragraph 2.1.2 stated that "[ u ]pon completion ofloading the cargo bin/pit, the 

designated loading agent must verify the piece count of all 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 crewmember used the information from 

the CLR to construct the ACARS load manifest. 

10. Sky West's W &B Manual, Chapter 4, paragraph 8.8, required the loading 

agent to write the total number of standard checked baggage loaded in each 

cargo bin/pit in the appropriate "Standard Checked" block on the CLR. 

11. SkyWest's W&B Manual, Chapter 4, paragraph 8.10, required the loading 

agent to write the total number of Planes ide Valet/Service Items loaded in 

each cargo bin/pit in the appropriate "Planeside Valet/Service Items" block on 

the CLR. 

12. SkyWest's W&B Manual, Ch~pter 4;paragraph 11 -Aircraft Loading, 

contained the warning: 

WARNING- INACCURATE LOADING, REPORTING, OR 

FAILURE TO REPORT INFORMATION COULD CAUSE ISSUES 

WITH AIRCRAFT PERFORMANCE AND HANDLING, RESUL TlNG 

IN THE ENDANGERMENT OF HUMAN LIFE 

5 
Section III (FAA's Complaint) 

13. On April 7, 2011, at ORD, SkyWest loaded passengers 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 CLR forN755SK/6756listed thirty (30) standard checked bags and zero 

(0) heavy checked bags on board N755SK/6756. 

16. The inaccurate data on the CLR was used to construct the ACARS load 

manifest for N755SK/6756. 

17. SkyWest thereafter operated N755SK/6756 from ORD to COS. 

Section IV (FAA's Complaint) 

Sky West paid civil penalties in eight (8) previous cases involving loading of 

cargo contrary to approved procedures. ·~ ... "\ ~·. . . ,· · .. 

; :. : :,. ~ 

Section V 

18. The FAA alleged by reason ofthe foregoing facts and circumstances, 

Sky West violated the following sections ofthe FARs (14 C.F.R.): 

a. 14 C.F.R. Section 119.5(g), in that, as a direct air carrier it operated in 

violation of an appropriate operations specification. 

b. 14 C.F.R. Section 119.5(1), in that it operated aircraft under Part 121 in 

violation of its operations specifications. 

c. 14 C.F.R. Section 121. 693(a), in that it operated flights without a load 

manifest that accurately reflected the weight of 1he cargo and baggage. 

6 
ri 

d. 14 C.F.R. Section 121. 693(c), in that it operated flights when the total 

weight of the aircraft was not computed under approved procedures. 

e. 14 C.F.R. Section 121.693(d), in that it operated flights when the aircraft 

was not loaded according to an approved schedule. 

In accordance with 49 United States Code (hereinafter "U.S.C.") Sections 

46301 (a) and (d) (Transportation), SkyWest was liable for a civil penalty not 

to exceed $27,500 for each of the violations noted. 

The FAA alleged under the facts and circumstances of this case, a civil 

penalty of$40,000 was appropriate. 

B. SkyWest's recitation of facts 

Answering Section I of the Complaint, SkyWest averred: 

SkyWest admitted that it was advised through a Final Notice of Proposed 

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 of the Complaint, SkyWest averred: 

1. SkyWest admitted that it was at all times material hereto, the holder of 

Scheduled Air Carrier Certificate No. SWIA011A, and conducted its 

operations pursuant to P~rt 121 ?fthe FARs. 

2. In response to Paragraph 2, Sky West admitted that Paragraph D085 of 

SkyWest's Op Specs authorized SkyWest to use N755SK, a Bombardier CL600-2C10 civil aircraft, in the conduct ofSkyWest's Part 121 operations. 

7 
3. In response to Paragraph 3, SkyWest admitted that Paragraph 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, 

"Part XII, revision Orig. of 1 APR 1tQ.~' 

4. In response to Paragraph 4, SkyWest admitted that its W &B Manual 

contained the loading schedules and instructions for SkyWest's Bombardier 

CL-600-2C10 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. In response to Paragraph 6, SkyWest admitted that its W&B Manual, Chapter 

2, paragraph 2.A24 defined "Heavy Checked Bags" as "[a]ny bag that weighs 

more than 50 lb. but less than 100 lb." 

7. In response to Paragraph 7, SkyWdhidmitted that 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 

of all checked baggage (either standard or heavy). The designated loading 

agent must mark the number of standard and heavy checked baggage on the 

CLR." 

8. In response 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 of loading the cargo bin/pit, the designated loading agent 

8 
must verify the piece count of all Standard Checked, Heavy Checked, and 

Planes ide 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 CLR to construct the 

A CARS load manifest. 

10. In response to Paragraph 10, SkyWest admitted that its W &B Manual, 

Chapter 4, paragraph 8.~, requi,red tlfe loading agent to write the total number 

of standard checked baggage loaded in each cargo bin/pit in the appropriate 

"Standard Checked" block on the CLR. 

11. In response to Paragraph 11, SkyWest admitted that SkyWest's W&B Manual, 

Chapter 4, paragraph 8.10 required the loading agent to write the total number 

of Plane side Valet/Service Items loaded in each cargo bin/pit in the 

appropriate "Planeside Valet/Service Items" block on the CLR. 

12. In response to Paragraph 12, SkyWest admitted that its W&B Manual, 

Chapter 4, paragraph 11 - Aircraft Loading, contained the 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 of the Complaint, SkyWest averred: 

13. In response to Paragraph 13, SkyWest admitted that on April 7, 2011, at ORD, 

SkyWest loaded passengers and baggage onto N755SK/6756, bound for COS. 

14. In response to Paragraph 14, SkyWest was without sufficient information or 

knowledge from which to form a belief as to the truth of the allegation that 

9 

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SkyWest's personnel at ORD loaded thirty-three (33) standard checked bags 

and two (2) heavy checked bags onto N755SK/6756, and therefore denied the 

same. ·i • 

'\ ..li'r··:·/·'· 

15. In response to Paragraph 15, SkyWest admitted the CLR for N755SK/6756 

listed thirty (30) standard checked bags and zero (0) heavy checked bags on 

board N755SK/6756. 

16. In response to Paragraph 16, SkyWest was without sufficient information or 

knowledge from which to form a belief as to the truth of the allegation that the 

inaccurate data on the CLR was used to construct the ACARS load manifest 

for N755SK/6756, and therefore denied the same. 

17. In response to Paragraph 17, SkyWest admitted it operated N755SK/6756 

from ORD to COS. 

Answering Section IV of the Complaint~.:SkyWest averred: ;(, \"l'. :·· 

In response to Paragraph 18, SkyWest admitted it paid penalties on eight 

(8) previous cases involving loading of cargo contrary to approved procedures. 

Answering Section V of the 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 but which may become known through discovery. SkyWest reserved the 

right to allege such affirmative d~tehses ~f~ they become knoWn. 

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VIII. 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 ORD to COS on April 

7,2011. 

Under the facts and circumstances of this case, was a civil penalty of $40,000 

appropriate. 

IX. Summary of Testimony 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 worked thirty (30) years in for the Air Force Reserves and as a civil servant 

for the Air Force. At the time of the 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 that the 

cargo and baggage count matched the CL:ft11 As' part of her surveillance she perfonned a 

baggage count on N755SK/6756 and observed thirty-three (33) standard bags and two (2) 

heavy bags offloaded from N755SK/6756. 3 She recognized the heavy bags because they 

had orange tags. 4 

2 Tr. p. 113, I. 1 top. 114, I. 5. 3 Witness referred to FAA# C-1 02 and FAA# C-1 03 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 of counting baggage. There were other flights on 

those days into COS which had no discrepancies. Wallentine believed she observed ten 

(10) flights on each of the days she conducted bag counting surveillance on each of the 

flights. She had not been 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 he joined the Certificate Management Office 

m . D 6 enver. 

On April 7, 2011, Chavez was assisting with the surveillance of Sky West's weight 

and balance baggage program at COS. D~Ytntih~t surveillance Chavez obtained the 

CLR from 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 

Andrew James Ayers (hereinafter "Ayers") was called by the FAA as an expert in 

Weight and Balance and specifically SkyWest's Weight and Balance program. Ayers' 

testimony was applicable to all of the cases in the consolidated docket. 

Ayers had worked in the aviation industry for nineteen (19) years, had been a 

Pilot in Command (hereinafter "PIC") on EMB-120 and CL-65 aircraft for approximately 

5 Tr. 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 

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nine (9) years. He had been with the FAA approximately six (6) years at the SkyWest 

Certificate Management Office (hereinafter "CMO"). He was the "Principle Operations 

Inspector" (hereinafter "POI") for SkyWest and had the overall responsibility for all of 

the authorizations and approvals for SkyWest's operational needs. He oversaw 

compliance, authorizations for SkyWest programs, and scheduled surveillance and 

follow-up. He had an airline transport pilot certificate with type ratings in the EMB-120 

~· ,, 

and CL-65 series aircraft. He had training as ·an·Aircraft Safety Inspector (hereinafter 

"ASI"). He received generalized weight and balance training that was applicable to any 

pilot flying any sort of aircraft as well as training specific to the type aircraft at issue in 

these cases. Ayers was familiar with SkyWest's Weight and Balance program and as 

SkyWest's POI, it was his responsibility and authority to grant approval for those 

procedures. Ayers was received by the court as an expert in the field of aircraft weight 

and balance. 

Ayers explained the CLR was a tally worksheet for computing the loads or the 

weight of cargo loaded on the aircraft. A 'standard bag' was a term used for an average 

bag assigned a weight of thirty (30),pound~. A standard bag was defined as a bag !! • • • 

weighing from zero (0) up to fifty (50) pounds. A heavy bag would be over fifty (50) up 

to one hundred (100) pounds. For purposes ofSkyWest's weight and balance program, 

heavy bags were assigned a weight of sixty ( 60) pounds. Plane side loaded valet bags 

were assigned a weight of thirty (30) pounds which included a weight range do of zero 

(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 

contained both background knowledge, scientific information, factual information about 

weight and balance, as well as suggested policies and procedures for complying with 

weight and balance when operating aircraft. It also described hazards associated with 

improp{(r weight and balance. 

The FAA proffered evidence of a 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 provided td the flfgnt'cre~ which allowed them or did not allow 

them, rather, to accurately complete their load manifest for their flight. That 

resulted in them being unable to detect an aft CG ... the aircraft in question stalled 

shortly after takeoff and crashed, killing all persons aboard ... 

The proffer offered no testimony of the type aircraft; when or where the accident 

occurred; weather conditions; flight conditions; what information was incorrectly 

provided; weight and balance program of the aircraft and/or carrier; or any other factors 

which would show any relevance to the facts of this case. We reaffirm our ruling and the 

objection was sustained. The testimony was not received. 

Ayers testified the weight listed on the load manifest for N755SK/675610 manifest 

correlated with the weight calculated using the information contained in the cargo load 

report (see FAA# C-16 and C-17), ~owe~e:t;; .th~~·oad manifest was inaccurate and the 

performance data used 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. 

14 
Ayers further testified that in a c~uple of the cases 11 where the load manifest 

weight matched the CLR there was still a violation of the approved program because the 

program described procedures for completion of the CLR, and failure to follow those 

procedures was still a violation. Whether or not the number was correct was not relevant 

to whether those procedures were aytuallyJcillo,Wed. Ayers drew an analogy that, it was 

·;· ...,. ~ .. •.. ... . 

not enough to get the right answer, but to show your work to get the answer and that 

work also had to be correct. Ayers testified he believed there was an unknown impact on 

safety posed by these discrepancies, but that he was not surprised that the aircraft were 

operated within their weight and balance envelope. 12 

Cross 13 

Ayers testified the front side of the CLR worksheet was where the math was 

tallied up while the back side of the CLR was the worksheet to assist the loading agents 

in counting. Ayers admitted that as part of the investigation it would have been 

beneficial to have copies of the backside of the CLR. Ayers admitted his testimony was 

predicated upon the assumption that wh~n~the-iW~pectors counted the offloaded baggage 

they were counted correctly. 

Ayers testified that in 2011 SkyWest did not have a Safety Management System 

(hereinafter "SMS"). SMS was a series of tools andprograms that allowed SkyWest to 

identify risks and mitigate those risks with processes and procedures in place to identify 

how they 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 of the CLR should be updated with any last minute 

changes. If the 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. If a live animal was on board, that was required to be reflected on the 

CLR. 

Recross 15 

Ayers testified live animals, as baggage, were assigned a weight of thirty (30) 

pounds or sixty (60) pounds, including the container. Animals shipped as freight are 

assigned a different weight. 

Evidence 

The following FAA exhibits were admitted in the consolidated docket set forth 

above: FAA# Exhibits C-1 through C-36, inclusive; there is no FAA#C-37; FAA# C-38 

was not received [see SW# 1]; Judicial Notice was taken of FAA# C-39 through C-42, 

inclusive; F AA#C-43 through C-4 7 were provided for reference; F AA#C-1 00 through 

103, were not offered, but are a part of the administrative record. 

B. SkyWest' Case 

Carl Salamone 

The testimony of Carl Salamone (hereinafter "Salamone") was taken by 

deposition (SW# 3-3) and introduce.d into the re.c.ord by agreement of the parties. 

t' ' ; ', 1 . 

Counsel for both parties were present at the deposition. Salamone's testimony was 

applicable to all of the cases in the consolidated docket. 

14 Tr. p. 219, I. 13 top. 222, I. 1. 

15Tr. p. 222, I. 3, top. 223, I. 1. 

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Salamone had been a pilot for SkyW est for seven (7) years and was a member of 

a special projects group for SkyWest. He was a first officer on Canadair Regional 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 of aircraft. He had 4200 hours offlight hours, of which 3200 

were in CRJs. He had a Bachelor of Science degree in electrical engineering and a 

Bachelor of Science degree in aviation human factors, from the University of Illinois. 

Aviation human factors was the study of human factors principles in research and 

psychology as it related specifically to aviation in the human elements of aviation safety, 

including weight and balance systems. For five (5) years he had been a member of a 

special projects group which, among other things, involved analysis of weight and 

balance. Salamone estimated he had flown about 3,000 flights. Each flight required a 

weight and balance calculation prior to tha't flight. He had training in weight and balance 

from his education as well as SkyWest. 

Salamone was received by the court as an expert in the field of calculation of 

aircraft weight and balance and the effects of that weight and balance on the aircraft 

performance. 

Salamone reviewed SW# R-1, a weight and balance analysis covering arecreation of the fourteen (14) flights based on the data available to him on weight and 

balance as calculated by the crew and also the alleged weight and balance as it would 

have been observed by an inspector(s) for each of the flight violations. In the analysis of 

these flights, Salamone took all information that was available to him, the cargo load 

,1~ ' 

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reports, the load manifests, electronic, if available, 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 series jets to determine performance and 

the weight and balance in that respect. He also took into account runway length, air 

temperature and fuel weight. 

Aircraft takeoff weight was defined as the gross weight of the aircraft in the 

takeoff configuration, as it would begin the takeoff segment of the flight. It was the full 

weight of the airplane immediately prior to beg}~ning takeoff, including passengers, 

cargo, ballast, et al. 

Aircraft takeoff Center of Gravity (hereinafter "COG") was the location of the 

center of gravity at a point on the 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. It was a single point like a teeter-totter, where 

that airplane would balance on one particular point where the weight was mathematically 

seen on that location on the airplane. COG was important for stability reasons, for 

control reasons, and it was really just a major part of the physics of flight, to ensure that 

the plane will perform as it was designed to. 

Other factors considered in Salamone's analysis included runway performance, 

flight climb performance, and maximum operating altitude. Those factors meant that the 

airplane would not be 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 would be able to obtain 

its operating altitude for all phases of flight and complete that flight as planned. 

18 
Salamone testified in his opinion, under the weights that the crew had recorded 

and believed that they were operating under, none ofthe fourteen (14) flights exceeded 

maximum takeoff weight and none of the flights were unsafe in anyway. 

In Salamone's opinion, taking into accdhrtt the additional weights observed by the 

FAA inspectors, none of the 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 perceived by the FAA inspectors. Taking into account three 

of those factors, either as calculated by the SkyWest crews at the time or adjusting for the 

observed variations by FAA inspectors, in Salamone's opinion, none ofthe flights would 

have been in excess of the manufacturer's limitations for takeoff weight, center of gravity, 

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 but the 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 21 0 pounds located in the aft compartment over what was indicated on the 

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

The result would have been minimal effect on aircraft performance. N755SK/6756 did 

not exceed maximum takeoff weight, or operational weight. The COG, as calculated by 

the flight crew was located at 22.52 percent mean aerodynamic chord. The additional 

21 0 pounds would have shifted the center of gravity location to a point 23.12 percent 

l' .. l, 

;~ .. 

19 
mean aerodynamic chord, a very, very small shift within the envelope. There would have 

been no impact on the safety of the 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, just because it costs 

more to fly around the extra weight. However, SkyWest has a policy of adding 

contingency fuel that was above and beyond the federal required fuel and any nominal 

increase in burn would have been accounted for and included in that contingency fuel. It 

would not have impacted safety. 

.. Salamone described the human factors involved in loading an airplane and 

counting bags. He described the most difficult aspect of aircraft loading and baggage 

handling as having to do with the environment around which it is centered. The ramp 

environment may have temperature swings; it may have noise and vibration. It could 

have light, darkness issues, as well a flurry of activity making focus difficult for that 

particular employee. It was a very active area that could cause, perhaps, a pause in 

counting or bags 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. 

Cross16 

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 of climb, a lower angle of climb, lower 

service ceiling and slower cruising speed. Additionally, heavier aircraft had a shorter 

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

20 
range, higher fuel burn, higher landing speed and longer landing roll. Center for gravity 

exceeding the aft or forward limitation of the aircraft would affect performance. The 

I. '·· .._, (_i•. 

CLR is one of the documents used to generate the load manifest. The load manifest was 

the document that contained the aircraft gross weight and center of gravity location, 

which was then used to determine performance requirements. 

Christopher C. Brown17 

Christopher C. Brown (hereinafter "Brown") was the Director of Aircraft 

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. He had 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 of the cases in the consolidated 

docket. 

Brown testified about SW# R5-1, which was a letter to the CMO, to Mr. Ayers, 

requesting consideration for a proposed amendment to the approved weight and balance 

program to allow for human factors errors in bag counting. The proposal would 

artificially add a specific amount of weight to the basic operating weight of each aircraft. 

In doing so, the performance calculations would be performed as if the weight was 

physically onboard the aircraft, even though, in most cases, the weight would not be 

present. The aircraft operating envelope \vouldtte curtailed in such a way that for small 

miscounts, the SkyWest weight and balance program would assure that the aircraft would 

17 Tr. p. 298, I. 20 top. 324, I. 12. 

21 
always remain within the manufacturer's operating envelope. Brown testified the 

proposal was similar to a program implemented by Delta. 

Evidence 

The following SkyWest exhibits were admitted in the consolidated docket set 

forth above: SW# Exhibits R 1-1,2-1, 3-1,3-2,3-3, 4, 5-1, 5-2, 5-3, 5-4, 5-5, 5-6, 5-7, 6-

1, 6-2, 6-3, 7, 8; 9 and 10, inclusive. There are no exhibits SW 11-20, inclusive. SW# R21, was admitted. 

. 

.... ~:;; vt·~ . r 

C. Credibility determinations 

We find the testimony of all witnesses to have been truthful and credible. 

X. Brief Summary of Evidence 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 board N755SK/6756. The inaccurate data on the CLR was used to construct the 

ACARS load manifest for N755SK/6756. SkyWest thereafter operated N755SK/6756 

from ORD to COS on April 7, 2011: 

XI. Law 

A. The FAA has the burden of proof, except for affirmative defenses 14 C. F. R. 

· §§ 13.224(a) and (c). The standard is a preponderance of reliable, probative, and 

substantial evidence 14 C.F.R. § 13.223. 

B. 49 US. C. Sections 46301 (a) and (d) (Transportation) provide for the imposition 

of civil penalties in FAA cases. 

22 
A person is liable to the United States Government for a civil penalty of not more 

than $25,000 for violating .. , (B) aregul~tion prescribed or order issued under any 

provision to which clause (A) of this 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 of which are covered by clause (A). 49 U.S.C. § 46301(a)(1)(A), 14 C.F.R. 

Parts 119 and 121 (Preamble). 

C. 14 C. 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 of any deviation or exemption authority, if issued to that 

person or that person's representative. 

2. 14 C.FR. Section 119.5(1), provides: 

No person may operate an aircraft under this part, part 121 of this chapter, or part 

135 ofthis chapter in violation of an 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 contain the following information concerning the loading 

of the airplane at takeoff time: 

1. 14 C.P.R. Section 121.693(a), provides: 

The weight of the 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 that the 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 of violations 

XII. Findings of Fact 

After consideration and review of all the evidentiary facts, testimony and 

evidence herein, by a preponderance of the evidence standard, we make the following 

findings: r l'· V..J'j.l \'.'·' ' 

' 

A. 14 C.FR. Sections 119.5(g) and 119.50) 

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

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 block the actual count of the different classes 

of baggage loaded onto the aircraft. The f<iilure to accurately prepare the CLR, it is 

concluded, constitutes a.violation of §119.5(g). 

SkyWest's actions in loading and marking the CLRs for flight N755SK/6756 also 

constituted a violation ofF AR § 119.5 (!). This section prohibits Part 121 air carriers from 

operating in violation of OpSpecs. By failing to set out for each flight accurate 

information on the 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 manifest to contain the weight ofthe 

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

24 
computing the total weight of the 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 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. 

Salamone testified that for the fourteen (14) flights he reviewed, including 

N755SK/6756, given the weights that the crews had recorded and believed that they were 

operating under, none of the flights exceeded maximum takeoff weight and none of the 

flights were unsafe in anyway. Th6i crews; ~~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 of the manufacturer's limitations for takeoff weight, 

center of gravity, runway performance, climb performance, or maximum operating 

altitude. 

As noted earlier, SkyWest computed its load manifest from its CLR using 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 of the 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 that the approved 

method failed to insure that the center of gravity was within approved limits. Indeed, 

Salamone's testimony and accompanying evidence suggested that the aircraft weight and 

25 
center of gravity 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 of the totality of evidentiary facts and testimony, by a 

preponderance of the 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 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.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 of i4 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 of this case, a civil penalty 

of $40,000 was appropriate in this case. 

18 See In the Matter ofSkyWest Airlines, Inc., "Initial Decision of Administrative Law Judge" FDMS Nos. 

FAA-2011-0779, May 2, 2013; In the Matter ofSkyWest Airlines, Inc., "Initial Decision of Administrative 

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. In FAA 

2011-0485, the FAA sought a civil penalty of$33,000. In FAA-2011-0779, the FAA 

sought a civil penalty of $33,000 

SkyWest was cooperative and responsive to FAA concerns. 

The FAA had a cooperative working relationship with Sky West. 

Once notified of the violations, SkyWest took swift, comprehensive corrective 

action including implementation of an 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 SkyWest paid civil penalties in 

eight (8) previous cases involving loading of cargo contrary to approved procedures. 

While a penalty calculated in accordance with the FAA's policy guidance should 

stand, absent a showing of a respondent's inability to pay, the evidence and testimony 

did not support the penalty requested. While the FAA was entitled to substantial 

deference in establishing an appropriate civil penalty, we cannot ignore our role to 

evaluate the testimony and evidence. 

Significantly, the violations found were technical in nature. They had no 

material effect on weight and balance or on aircraft performance. Sky West showed that 

in no instance was safety of flight at even the slightest risk (See Tr. p. 227, 1. 7 top. 281, 

1. 17.). 

As SkyWest noted, the CLRs were not dispositive. The most important factor in 

the weight and balance context unquestionably was the load manifest. It was this 

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

calculations will affect operational safety. The FAA failed to show for any of the flights 

27 
that Sky West failed to follow the scheme of its 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 that just one civil penalty per flight is appropriate. To assess a 

civil penalty based on the 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 present purposes 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 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 ... " (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. 

28 
WHEREFORE, 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 set forth hereinabove SkyWest's objection be 

and is hereby sustained. The testimony was not received. 

2. SkyWest Airlines, Inc. be and is hereby assessed a civil penalty of$250.00 for 

violations 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 of the 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 of appeal I) be 

filed not later than I 0 days (plus an additional five days if mailed) from the service date of this 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 A venue, S. W ., Washington, DC 

20591, Attn: Hearing Docket Clerk, AGC-430, Wilbur Wright Building-Suite 2W I 000, or b) delivered 

personally or via expedited courier service to the Federal Aviation Administration, 600 Independence 

Avenue, S. W., Wi I bur Wright Building-Suite 2W I 000, Washington, D.C. 20591, Attn: Hearing Docket 

Clerk, AGC-430. A copy of the notice of appeal and brief or memorandum also must be sent to agency 

counsel. Service upon the presiding judge 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 2Wl0001 

Todd C. Emerson, Respondent's Counsel 

Director- Government and Legal Affairs 

SkyWest Airlines 

444 South River Road 

St. George, UT 84 790 

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 of 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 

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 of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Avenue, S.E. (E11-310) 

Washington, DC 20590 

TEL: 202-366-2139 Attorney-Advisor 

202-366-5121 Staff Assistant 

FAX: 202-366-7536