### SERVED: APRIL 19, 2013

UNITED STATES DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, D.C.

) FEDERAL AVIATION ADMINISTRATION, ) ) Complainant, ) FAA Docket No. [To Be Assigned] ) v. ) (Civil Penalty Action) ) SKYWEST AIRLINES, INC. ) ) Respondent. ) FDMS Nos. FAA-2011-0782 )

INITIAL DECISION OF ADMINISTRATIVE LAW JUDGE RICHARD C. GOODWIN

Found: The charges were not proven. The Complaint is dismissed.

I. Background Respondent SkyWestAirlines, Inc. ("Respondent," "SkyWest," or "the carrier"), is a Part 121 regional air carrier whose operations specifications ("op specs") require it to maintain its aircraft in accordance with the carrier's Continuous Airworthiness Maintenance Program ("CAMP"). This case turns on the question ofwhether SkyWestfollowed its CAMP by the manner in which ithandled a discrepancy.
The underlying facts are undisputed. Complainant Federal Aviation Administration ("Complainant," "FAA," or "the agency") and SkyWest agree that on May 30, 2010, the carrier's flight #6140, operatedby a Bombardier CR}200 regionaljet, model CL,600,2B19 (registration · N948SW), was preparingfor takeofffrom San Francisco ("SFO") when the cockpitreceived a display warning concerningpressure in the right air conditioning "pack." Sky West treated the ,.,. problem and returned the aircraft to service based atleast inpart on the pilot's Quick**Referen~e** ..-· Handbook ("QRH"). The QRH is an operations manual.2

The agency contends thatusing the QRH was improper and violated the carrier's CAMP. As such, the next eightflights SkyWest operated with this aircraft, Complainant continues,
were unairworthy. Sky West counters that it was permitted to use the QRH to address the discrepancy. It violated no Federal AviationRegulation ("FAR"), it maintains 

### (see, e.g., Tr.**11~**12; seeTr. 55; Exh.**C~7).**

. The FAA charged that Respondent violated the following FARs 

### (all in 14 CFR): section ll9.5(g), which prohibits a direct air carrierfrom operating in violation ofan appropriate certificate and operations specifications; ll9.5(1), whichprohibits a Part 121 air carrierfrom operating in violation ofits operating certificate or operations specifications; §121.153(a)(2), which requires an aircraft to operate in an airworthy condition; §121.709(b )(2)(i ), requiring that
an airworthiness release orlog entrypermitting aircraft operation after maintenance or alterations bepreparedin accordance with procedures set out in appropriate manuals; and §121.605, proscribing the dispatch ofan airplane unless itis airworthy. The Complaint asks for a total assessment in the amount of$68,500.


### An oral evidentiary hearing tookplace on October 1and 2, 2012, in Salt Lake City, UT. The parties have nowfiled briefs and the matter is ready for decision. 1



### II. Discussion and Findings
After careful consideration ofall the evidence, I find and conclude that Complainanthas not carried its burden ofproof. The charges will be dismissed.
A. The Occurrence Flight 6140 displayed a caution message during takeoff. The pilot's maintenance log entry notes an "overpress [overpressure] condition display" in the right air conditioningpack Complainantwitness Wendell "Skeeter" Gehring, an aviation safety inspector employed at the carrier's Certificate Management Office ("CMO") at the Salt Lake CityAirport and a pilot who holds an airframe andpowerplant ("A & P") rating, explained. He testified that the message meant that the aircraft lacked the ability to regulate high pressure into the pack. The pilot could notpressurize the airplane. The left packhadbeen deferredper the Minimum Equipment Ust ("MEL") earlier that day, so the right pack hadbeen the only source providing air conditioning andpressurizationfor the aircraft. The system shut off. After consulting the maintenance controller the pilot aborted the flight andreturned to the gate**(Tr.17~20, 27~31,**  61; Exh.**C~2).** A SkyWestmechanic thenundertook corrective action. Coordinating with the maintenance controller, he reset the pack using the pilot's QRH and tested. The mechanic demonstrated to the cockpit that advancing the throttle slowly would avoid a spike inpressure. The log entry states that the mechanic "[r]eset Rt/Pack as neededper QRH. System op checks good at this time. Static throttle with no overpress [overpressure] message displayed." The aircraft was given an airworthiness release. It proceeded to its next destination (Exh.**C~2;** Exh.**c~s,** pp. 2, 4, 8; Tr.**31~32,** 43,**47~49,** 84, 205).

1 "Compl. Br." =Complainant's Brief; "Resp. Br." =Respondent's Post Trial Brief; and "Compl. Reply Br." = Complainant's Reply Brief.

### 3

OnJune 1, 2010, following a complete system failure on approach to SFO, SkyWest mechanics replaced the right packpressure regulating and shutoffvalve. 2 

### This was accomplished in accordance with the carrier's General Maintenance Manual ("GMM"). The aircraft hadbeen operatedeight times since the May 30, 2010 occurrence (Exh**C~7,** 

### pps. 1, 10, and 17; Tr.**55~58,** 

### 150).

B. Complainant's Position


### I find that Complainant's witnesses were credible. Inspector Gehring testified that Sky Westhadfailed to follow correct procedures for handling the occurrence. In using the QRH, an operations manual, Respondent hadfailed to address what he characterized as a "mechanical irregularity." Using the CAMP, which is manufacturer's data for maintenance, was the proper course. The QRH, by contrast, is "manufacturer's datafor flight." It is not part ofthe CAMP, Gehring stated (Tr. 27, 33, 61, 102; Com pl. Br., p. 4). Complainant witnesses testified further about the nature ofthe QRH andits appropriate role. A pilot manual kept in the cockpit, it gives pilots a checklist ofhow to operate the aircraft in an "abnormal" event during flight (Tr.**32~**

### 33). Andrew Ayers, SkyWest's principal operations inspector and Complainant's secondwitness, elaborated that the QRHis "essentially an extract" from the manufacturer's Airplane Flight Manual ("AFM") which allows the airplane to continue flight while having irregularities or abnormalities addressed. Itis an operational document and, Ayers stressed, not meantfor "corrective action ofmechanical irregularities." 3


### Mechanics attempting to operate some system on the aircraft must follow the CAMP, inspector Gehring continued. The CAMP stems from other SkyWest maintenance manuals, including provisions ofthe carrier's GMM- inwhich SkyWest's CAMP is described- plus its Fault Isolation Manual ("FIM") 

### (Exh.**C~3)** 

### andAircraft Maintenance Manual ("AMM") (Exh.**C~4**

### ). And every maintenance taskis addressedin the CAMP, he insisted: it 

### willinclude "all the relevant instructions for maintenance personnel to do their work

..." (Tr. 107). The witness maintained that mechanics may not consult an operations manual under any conditions. Inspector Gehring asserted that the AMM shouldhave beenusedto address the occurrence. The AMM contains a**three~part** 

### operational test ofthe air conditioning system. This test is not in the QRH. Gehring also cited the FIM as a useful guide (Tr.**25~**

### 26,**32~41,** 

### 54,**61~63,** 

### 96, 106, 126, 129,**258~60).** 

### Inspector Gehring concluded that using a QRH procedure rendered the aircraft unairworthy. The packfollowing the purported fix was unable to handle**high~pressure** 

### air, he

2 The Aircraft Maintenance Log entry, at paragraph #3, CorrectiveAction, reads, "Replaced Rt A/C Pack PROSOV IAW AMM 21-51-43 ." That is, the mechanic replaced the right air conditioning pack pressure regulating and shutoffvalve in accordance with Aircraft Maintenance Manual21-51-43. Exhs. C-2 and R-1, p. I (which consist of the same documents); see Tr. 55-56, Ill, 116, 125-26, 198. The entry goes on to say, "ops check good." 3 Tr. 140-41; Exh. C-10; Compl. Br., p. 5. The witness mistakenly referenced an "Aircraft Flight Manual" (Tr. 139) but it is clear that he meant the Airplane Flight Manual. See Exh. C-1 0.

# ' 4

testified; as such, it didnot meet its type design.4 Further, because maintenance had notbeen properlyperformed, the aircraft's safety was unknown. As such the aircraft had to be consideredunsafe (Tr.**66~68).** C. Respondent's Position
I find that Respondent's witnesses were credible as well. Respondent asserted that SkyWest's response to the occurrence violated no FAR. Its use ofthe QRH was proper. Maintenance personnel may consult operational manuals such as the QRH in appropriate circumstances in determining the nature of a problem andin fashioning a solution, SkyWest states- and these were such circumstances. Respondent contended that the**CRJ~**200 was known to experience an overpressure situation in a**one~pack** setting when the throttle was accelerated too quickly. Darrell Cook, Sky West's director ofquality and a licensedA &: P mechanic whohas performedmaintenance
on the make andmodel of aircraft involved in this matter, testified that this condition has been recognized among line mechanics andmaintenance controllers for atleast fifteen years. Neither

.the GMM nor theAMM addresses this situation, he contended, but asserted that the MEL

appendix does: itinstructs the pilot to perform a "Normal Static

... takeoffprocedure" and to "[a]dvance the thrust levers slowly to prevent an overpressure ofthe operating pack." 

### (Exh.**R~**2;**Tr.l57~6I).** - Thepilots simplyhadfailed to follow this protocol, said Respondent's witness Craig Fabian, an attorney and a licensedA &: P mechanic who has worked on the flight line and as a maintenance controller. It was then appropriate, he said, to reset the system- per the QRH**~~** and attempt another takeoff. A reset procedure is not maintenance, Mr. Fabian asserted. But it enabled the ops check, which does constitute maintenance, to take place. The corrective action noted in SkyWest's aircraft maintenance log, which set out the reset and the ops check, was a mixture ofnonmaintenance and maintenance, he concluded (Tr.l72, 206; Exh.**C~2;** 

### see Initial Decision ("I.D."), p. 2).
Mr. Fabian believed that the aircraft was airworthy when itwas subsequently dispatched. In his view, application ofthe MEL hadreturned it to its properly altered condition. Thatitflew without fault for eight legs also demonstrates its airworthiness, he stated (Tr.**192~** 93).
D. Decision
I find and conclude that Complainantfailed to show that Respondent's actions violated any FARs. The carrier's reliance on the QRH was appropriate. The fix SkyWestperformedhad operational elements sufficient to deny Complainant its proof. The aircraft was airworthy following SkyWest's actions addressing the discrepancy.

4 To be airworthy an aircraft must conform to its type design and be in a condition for safe operation. See, e.g., Husted andHustedAir Charter, Inc., FAA Order No. 2010-9 (June 16, 2010), p. 13.

### 5

Mr. Fabian's explanation ofthe matter was pithy and persuasive. The left air conditioning packfor this aircraft had been deferred per the MEL The MEL appendix instructs pilots in a single pack configuration to "advance the thrustlevers slowly" to prevent overpressure (Exh.**R~**

### 2). The cockpit either was unaware oforignored the protocol, and did not follow it. The pilots received a display warning ofoverpressure. 5 

### Following consultation with maintenance, the cockpit reset the system- an operational**procedure~~** 

### per the QRH. 

### An ops check, a maintenanceprocedure, was successfully accomplished**(Tr.183~84,** 

### 192). The pilots then advanced the throttle relatively slowly per the MEL instructions. This time, no display warning appeared. The aircraft hadbeen returned to its properly altered condition (Tr. 192). Itwas airworthy andready to go (Tr. 193). These events had violated no FAR.
Once the pilot wrote up the discrepancy, maintenance indeed was triggered under SkyWest's GMM (Tr. 205). Yet ithadbeen unnecessary to have maintenance review the occurrence in the first place. Signing offon the discrepancy andformally returning the aircraft to 

### service was done out ofan abundance ofcaution. The reset had addressed the situation adequately and correctly. The maintenance controller couldhave allowed the pilot to continue flight rather than return to the**gate~~** 

### and the agency wouldnever have become involved (Tr.**47~** 

### 48,**172~73,** 

### I78; Resp. Br., pp. 2, 5; 

### see Exh.**C~5,** 

### p. 8 (maintenance controller statedto interviewers that "I couldhave hadthem [the flight crew] reset itthere, but thought itwas better to have maintenance check it out

...")). No maintenance necessary to render the aircraft airworthy, then, had been performed, I conclude. In this light, Complainant could showno violations.
This decision also relies on the idea that maintenance technicians in appropriate circumstances may employ operational methods andtechniques to fashion solutions to discrepancies. SkyWest documents themselves, I find, endorse this mixture of**maintenance~** 

### and**operation~based** 

### approaches. Standard Procedure ("SP") 8600 is a SkyWest maintenance document andpart ofthe carrier's GMM. Yet it references the QRH as containing the procedure the pilot woulduse for a known condition after leaving the gate butprior to actually taking off-justlike the scenario under review. Itpermits the maintenance controller to instruct the crew to reset and go (Exh.**R~4;** 

### Tr. 50,**176~78,** 

### 261). Additionally, SP 7555, also part ofthe GMM, references the Airplane Flight Manual- which is the source document ofthe QRH (Exh.**R~5;** 

### Tr. 50, 198, 207).
As a corollary to the above principle, I do not find itinappropriate, as Complainant contends, for a mechanic to refer to an operational manual not specifically includedip the GMM or the CAMP (Tr.179). I agree with Mr. Fabian's assertion that mechanics sometimes need

. operatingmanuals to determine how a system should operate or to perform certain functions. 

### An operatingmanual can help a mechanic determine ifa problem exists that would require maintenance (Tr.186). This is a "common" scenario, Fabian said (Tr.182). Inhis own experience he noted thathe was not always able to find a remedy by referring to 

### a

5 Exh. C-2. Inspector Gehring suggested that the crew initially had performed a "normal static takeoff'' perthe MEL, and that this should not have led to spiking the system. Tr. 77, 83. He insisted that the resulting overpressure display was not a known condition. Tr. 75-76,81-85, 130; see Resp. Reply Br., pp. 8-9. The weight ofthe evidence, however, particularly the testimony ofMr. Cook, shows otherwise. Complainant's arguments in this regard are thus rejected. I note that Mr. Gehring, in contrast to Mr. Cook, has never performed maintenance on a CRJ. Tr. 73.

### 6

manufacturer's manual 

### (Tr.**H~~)~ ~onversely,**  I 

### d.o'not endorse Complainant's argument that a mechanic mustbe limited to following documents found under the maintenance umbrella. Respondent showed that it is contrary to years ofindustrypractice to suppose that such materials would cover every situation a mechanic will face (see Resp. Br., pp. 3, 7). In this case, neither ofthe maintenance manuals specifically citedby Complainant witnesses, the AMM and the FIM, offered a solution. There mustbe room for adaptation to the myriad circumstances maintenance personnel observe. Indeed, the statement in SkyWest's GMM- a maintenance manual, ofcourse**~~that** 

### "[q]uali.fiedmechanics

... can determine or develop the method, technique, orpractice to return the component or aircraftto its originally orproperly altered condition" signals such a flexible approach, I find**(Tr.l80~82, 206~07;**  

### Exh.**C~l,** 

### p. 4, 9I.2(a); 

### see Resp. Br., p.IO). Nothing statedin the GMM or in the regulations in any event limits mechanics to maintenance manuals in discerning the nature of a problem orformulating a proper solution**(seeTr.l85~86, 190~91).**  

### Itis the substance ofany document usedby a maintenance person and not its title which shouldbe the properfocus ofan investigation and repair, I find (see Tr.l95). Finally, the fact that the airplane flew an additional eight legs until a subsequent system failure grounded the aircraft again neither proves nor disproves that it hadbeen airworthy following the fix examined here. Complainant statedthat these circumstances showed that each operation following the occurrence and release hadbeen unairworthy; Respondent asserted that the breakdown following the eighth flight demonstrated that a "more persistent" fault had existed (seeTr.l94). The repair ofJune I, I find, proves nothing about the condition of the aircraft when Sky Westhadreleased it on May 30. Neither party demonstrated sufficiently probative causative factors. 6


### All arguments bybothparties have been carefully considered. Those not explicitly discussed are rejected. 7

6 See also Tr. 122-24; Resp. Br., p. 1I. No proofwas adduced that, as inspector Gehring maintained, the aircraft following the fix could not handle high pressure air. See Tr. 66-68. 7 One additional matter will be addressed here. I find there is insufficient evidence to show, as Complainant contends, that the static throttle run failed to pressurize the system to the level necessary to test the system. Tr. 20I02; see, e.g., Compl. Br., p. 3.7

I find and conclude that the agency failed to prove that Respondent SkyWestAirlines violated any ofthe FARs withwhich it is charged. The Complaint is dismissed. 8

Attachment

- Service List

8 This decision may be appealed to the Administrator ofthe FAA. The notice ofappeal must conform to sections 13.210, 13.2Il(e) and 13.233 ofthe Rules ofPractice, which require that a notice ofappeal 1) be filed not later than 10 days (plus an additional five days ifmailed) from the service date ofthis decision, and 2) be perfected with a written briefor memorandum not later than 50 days (plus an additional five, ifmailed) 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 2WIOOO, or b) delivered personally or via expedited courier service to the Federal Aviation Administration, 600 Independence Avenue, S.W., Wilbur Wright Building-Suite 2WIOOO, Washington,

· D.C. 20591, Attn: Hearing Docket Clerk, AGC-430. A copy ofthe notice ofappeal and briefor memorandum also must be sent to agency counsel. Service upon the presidingjudge is optional.

# __________________

# .........

8

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 2W1000 1
.ONE COPY


### 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
Robert Spitzer, Complainant's Counsel 

### Attorney, Office ofRegional Counsel

.Northwest Mountain Region, ANM-7 Federal Aviation Administration 1601 Lind Avenue, S.W. Renton, WA 98057 TEL: 425-227-1417 FAX: 425-227-1007
The Honorable Richard C. Goodwin,Administrative Law 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 FDMS No. FAA-2012-0872 (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.