SERVED: MAY 2, 2013 

UNITED STATES DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

FEDERAL AV~ATION 

ADMINISTRATION, 

Complainant, 

v. 

SKYWEST AIRLINES, INC. 

Respondent. 

WASHINGTON, D.C. 

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FAA Docket Nos. [To Be Assigned] 

(Civil Penalty Action) 

FDMS Nos. FAA-2011-0485 

FAA-2011-0486 

INITIAL DECISION 

0¥ ADMINISTRATIVE LAW JUDGE RICHARD C. GOODWIN 

Found: 1) In Docket FAA-2011-0485: 

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

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

121.693(c), and 121.693(d); and 

c) Re~pondent will be assessed a civil penalty of $750. 

2) In Docket-FAA-2011-0486: 

Respondent will be assessed a civil penalty of $250. 

I. Background ·· 

Respondent Sky West Airlines, Inc. ("Respondent," "Sky West," or "the carrier"), of St. 

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

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

2 

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

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

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

0779") into the others). 1 

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

-0485, Complai!Jant Federal Aviation Administration ("Complainant") charged that Respondent 

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

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

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

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

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

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

according to an1 

approved schedule. Docket -0486 will consider the issue of civil penalty only, 

since the issue of liability has already been determined in favor of Complainant.2 

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

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

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

"Manual"). Exh. C-1 03. 

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

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

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

Heavy Checked Bag ("heavy bag") weighs more than 50 but less than 1 00 pounds. When a 

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

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

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

in the jetway a!ld subsequently placed in the aircraft cargo bin. 

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

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

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

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

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

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

standard, heavy1 and planeside bags. The agent additionally is required to conduct a cargo 

weight count. 

1 The proceeding docketed as FAA-2011-0779 also had been docketed as FAA-2011-0680. I asked the parties to 

brief the consequences of this and related issues. Tr. 7-9; see Complainant's Post-Trial Brief, pp. 3-5; Respondent's 

Brief, p. 10. A separate Decision will be issued in FAA-201 1-0680/0779. 2 "Order Granting in Part Complainant's Motion for Decision in FDMS No. F AA-20 11-0486, Limiting Proceeding 

to Issue of Sanction," served December 2, 20 II . This case deals with one flight Sky West had operated on 

November 17, 2010 from Denver, CO to Yampa Valley Airport, Hayden, CO. See discussion ofpena1ty, Part III 

beginning on p. 7. 
3 

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

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

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

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

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

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

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

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

briefs and the matter now is ready for decision. 

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Respondent denied liability and interposed affirmative defenses in -0485. 

II. Discussion and Findings 

A. -0485 

This proceeding concerns three flights. All were operated with Bombardier CL-600-

2B 19 civil aircraft. Sky West is permitted to operate these aircraft by its paragraph D085 of its 

op specs. 

The flights will be considered chronologically by operation. 

1. First Flight 

The first flight, SkyWest 4659, operated from Billings, MT to Salt Lake City, UT 

("SLC") on November 22,2010. The aircraft had the registration number N410SW. According 

to the Complaint, prior to takeoff Respondent had loaded 38 standard and two heavy bags onto 

the aircraft. The heavy bags could be recognized by their orange tag containing the word 

"heavy" (see e.g., Exh. C-2). 

The CLR, by contrast, listed on board 40 standard and 0 heavy bags (Tr. 66-67, 77, 98-

99). 

2. Second Flight 

The second flight, SkyWest 6692, left Los Angeles ("LAX") on December 14, 2010, and 

operated to its scheduled destination of San Diego. This aircraft holds the registration number 

3 Tr. 51 , 77-79, 91-93, 133-47; Exhs. C-102 and C-1 03. There are also procedures in the event a bag is loaded at 

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

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

ofthe flights undeKeview. 4 Complainant's Post-Trial Briefwill be referred to as "Compl. Br." and Respondent's Brief as "Resp. Br." 

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

Respondent's exhibits will begin with "Exh. R." 
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N984CA. The flight operated as a United Express flight. The Complaint recites that Respondent 

had loaded 19 s~ndard bags and one heavy bag. As in the flight discussed immediately above, 

the heavy bag had the orange "heavy" tag attached. 

The CLR listed on board 20 standard and 5 heavy bags (Exh. C-100; Tr. 45-47, 52). 

3. Third Flight 

The third flight involved in this matter, SkyWest 4800, operated between LAX and San 

Diego on December 15, 2010. This aircraft had the registration number N411SW. SkyWest 

personnel, the Complaint asserts, loaded at LAX 43 standard, four heavy, and 12 planeside bags. 

The heavy bags a?!lin had been marked with the telltale orange tag. 

The CLR listed 59 standard, zero heavy, and zero planeside bags on board (Exh. C-101; 

Tr. 49-50, 58, 1 04). 

Complainant asked for a civil penalty under 49 U.S.C. §46301 of $99,000, or $33,000 per 

flight (Compl. Br., p. 2). 

C. Respondent's Testimony 

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

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

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

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

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

aircraft perform~ce. For the Billings-SLC flight (#4659) in -0485, the uncounted weight of 60 

pounds (as computed under the carrier's average weight program) would have raised the 

aircraft's takeoffweight from the computed 46,358 pounds to 46,418 pounds. The higher figure 

was still well under the aircraft's maximum certified takeoff weight of 53,000 pounds. Mr. 

Salamone further stated that the aircraft weight and center of gravity location fell within 

manufacturer recommendations and performance envelopes for each flight. Safety of flight was 

maintained at all times, the witness asserted (Tr. 93-95, 100-01; Exh. R-3). 

SkyWest's witness testified further that the CLR created for Flight 6692, the second 

operation with which Docket -0485 is concerned, reported that the aircraft actually was heavier 

than it really was. The difference, using the average-weight calculations, was 270 pounds. Mr. 

Salamone concluded that this discrepancy had no effect on aircraft performance or safety. In fact 

the aircraft normally would have performed better in all contexts for not having the extra weight. 

Regarding the final flight in -0485, SkyWest 4800, the witness stated that the discrepancy 

between the weight of the luggage loaded and the CLR report was 120 pounds of additional 

cargo. This difference, he asserted, had no effect on aircraft safety (Tr. 102-05, 111 ; Exh. R-3, p. 

9). 
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Mr. Salamone further defended Sky West's actions in noting that FAA Advisory Circular 

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

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

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

average bag we\ghts. While SkyWest employs the average bag weight method, the witness 

noted that all t1ights charged in case -0485 would have fallen within the permitted margin of 

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

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

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

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

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

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

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

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

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

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

D. Findings and Conclusions 

I find and conclude in -0485 that Complainant proved that Sky West violated PARs 

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

1. Sections 11 9.5(g) and 119.5(1) 

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

SkyWest's op specs obligate the carrier to use the procedures detailed in its Weight & Balance 

Manual for loading and counting baggage. The Manual, among other things, directs the 

carrier's designated loading agent to accurately prepare the flight's CLR. For each of the flights 

encompassed by Docket -0485, SkyWest's CLR failed to properly reflect in the appropriate 

block the actual count ofthe different classes of baggage loaded onto the aircraft. In -0485, the 

evidence showed that: 1) For Flight #4659, SkyWest loading agents counted 38 standard bags 

and 2 heavy bags, but the CLR listed 40 standard bags and zero heavy bags; 2) For Flight #6692, 

carrier agents counted 19 standard bags and one heavy bag; the CLR, by contrast, logged 20 

standard and five heavy bags; and 3) Flight #4800 agents counted 43 standard, four heavy, and 

12 planeside bags, while the CLR reflected a total of 59 standard, zero heavy, and zero planeside 

bags. The failure 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 these four flights also constitute 

a violation ofFAR §11 9.5(1). This section prohibits Part 121 air carriers from operating in 

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

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

violated this section. 
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2. Sections 121.693(a), (c), and (d) 

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

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

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

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

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

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

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

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

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

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

average weights program (see J.D. p. 3). The carrier's op specs require loading procedures to 

follow the Manual (I.D., p. 2). 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 evidence tended to demonstrate that the approved method 

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

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

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

III. Penalty 

A. Factors 

Complainant is obligated to consider the following factors when determining an 

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

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

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

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

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

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

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

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

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

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

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

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

: 
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B. Decision 

I find that a civil penalty of $250 per flight (including the flight with which Docket -0486 

is concerned) is appropriate. v 

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

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

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

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

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

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

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

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

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

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

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

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

disproportiona.te to the offenses. 

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

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

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

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

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

2150.38, take a similar stance: they advise that "[ w]hen a single instance of noncompliance 

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

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

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

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

agency policy directs in fixing the assessment. 

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

discussed are rejected or dismissed as mooted by this Initial Decision.5 

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

served November 2, 20 12, and Order Unsealing Transcript Pages, served January 17, 2013. However, this Initial 

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

and it may be freely disseminated in its entirety. 
8 

SkyWest Airlines, Inc. is hereby assessed a civil penalty of$750 in Docket FAA 2011-

0485 and $250 in Docket FAA 2011-0486 for violations of FAR §§119.5(g) and 119.5(1) as 

discussed herein. The remainder of the charges in Docket F AA-20 11-0485 are dismissed. 6 

Richard C. Goodwin 

Administrative Law Judge 

Attachment - Service List 

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

13.210, l3.2ll(e) and 13.233 ofthe Rules ofPractice, which require that a notice ofappeall) be filed not later than 

10 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 Avenue, S.W., Washington, DC 20591, Attn: Hearing Docket Clerk, AGC-430, 

Wilbur Wright Building- Suite 2Wl000, or b) delivered personally or via expedited courier service to the Federal 

Aviation Administration, 600 Independence Avenue, S.W., Wilbur Wright Building-Suite 2Wl000, 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. 
9 

SERVICE LIST 

ORIGINAL & ONE COPY 

Federal Aviation Administration 

800 Independence A venue, S. W. 

Washington, DC 20591 

Attention: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building- Suite 2W1000 1 

ONE COPY 

Todd C. Emerson, Respondent ·s Representative 

Director - Government and Legal Affairs 

SkyWest Airlines 

444 South River Road 

St. George, UT 84 790 

TEL: 435-634-3530 

FAX: 435-634-3505 

Michael L. Dworkin, Respondent 's Counsel 

465 California Street, Suite 210 

San Francisco, CA 94104 

TEL: 415-421-0250 

FAX: 415-421-2560 

Robert Spitzer, Complainant 's Counsel 

Attorney, Office of the Regional Counsel 

Northwest Mountain Region, ANM-7 

Federal Aviation Administration 

1601 Lind Avenue, S.W. 

Renton, W A 98057 

TEL: 425-227-1417 

FAX: 425-227-1007 

FDMS Nos. FAA-2011-0485 

& FAA-2011-0486, 

(Civil Penalty Actions) 

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- Su ite 2W 1000, Washington, 

DC 2059 1; Attention: Hearing Docket Clerk, AGC-430.