SERVED: MAY 2, 2013

UNITED STATES DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

FEDERAL**AV~ATION** ADMINISTRATIO N, Complainant, v. SKYWEST AIRLINES , INC. Re spondent. WASHINGTO N, D.C. ) ) ) ) ) ) ) ) ) ) ) ) ) FAA Docket No s. [To Be Assigned] (Civil Penalty Action)

FDMS N os . FA A -2011-048 5 FAA-2011-048 6



### 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 SkyW es t Airlines , Inc
. ( " Re spondent," " SkyWe st ," or " the carrier"), of St. George , UT , is
. a Part 12 1 re gional air carrier. These proceedings all involve charges stemming from the carrier 's b ag gage lo ading method s . It i s asserted th at thos e method s r esulted in**'** ·, 2
inaccurate counting and weighing in violation of certain Federa l Aviation Regulations ( " FARs " ). 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 

# an 1 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 , heavy 1 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 briefthe consequences of this and related issues
. Tr. 7-9 ; s ee Complainant ' s Po st-Tria l Brief , pp. 3-5; Respondent ' s Brief, p . 10
. A separate Deci s ion will be is s ued in FAA-201 1-0680 /0779
. 2 "Order Granting in Part Complainant ' s Motion for Deci s ion in FDMS N o. F AA- 2 0 11-0486 , Limiting Proceeding to Issue of Sanction ," served December 2 , 20 II
. This case deals with one flight SkyWest had operated on November 17 , 2010 from Denver, C O to Yampa Valley Airport, Hayden, CO
. See discussion ofpena1ty , Part III beg inning on p . 7
.3 SkyWest uses the CLR to compute its load manifest. Toward this end, its Manual employs what is known a s an average weights program. The average weights program assigns standard bags a we ight 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 pound s in the winter
.**Persop~l** i tem s carried on board are assigned a weight of 16 pounds. When the CLR is completed it i s 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 prog ram . 3 A hearing was held o n October 2, 2012, in Salt Lake City, UT. The parti es have filed briefs and the matter now is read y for decision
. 4 Re spondent denied liability and interposed affirmative defen ses in

- 0485.


### II. Discussion and Findings
A. -0485 This proceeding concerns three flights. A ll were operated with B om bardier C L-600- 2B 19 civil aircraft
. Sky West is permitted to operate these aircraft by its paragraph D085 of its op specs. The flights w ill be c onsidered chronologicall y by operation. 1. First Flight The first flight, SkyWe st 4659 , operated from Billing s , MT to Salt Lake City , UT (" SLC") on November 22,20 1 0. The aircraft had the reg i s trati on number N 4 10SW. According to the Complaint, prior to take off Res ponde nt had loaded 38 standard and two heavy bag s onto the aircraft. The heavy bags could be recognized by their orange tag containing the word "heavy" 

### (see e.g., 

### E xh. C-2). The CLR, b y contrast, li sted on b oard 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 numb er

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 in stan ce , so long as the flight crew assents the bag will be p laced on board

-- but the CLR wi ll not be a me nded accordin gly
. Tr
. 147-49. No evide nce showed that any last-minute l oading took pl ace on any ofthe flights unde Kev iew. 4 Co mplainant ' s Post-Trial Briefwill be referred to as " Compl. Br. " and Re spondent 's Brief a s " Resp. Br
." Additionally, Complainant' s exhibits will begin will begin with " Exh
. C " followed by the exhib i t n umber ; Respondent ' s exhibits will begin with " Exh. R
. "4
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 N 411SW
. 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 ofthe 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)
.

### 5
Mr. Salamone further defended SkyWest ' s action s in noting that FAA Advisory C ircular ("AC") 120-27E permits an average-weight pro gram in preference to an actual-weight program. It recogni zes that u sing actual we ights on an aircraft is impractical , he sa id
. The AC al so permits an error of up to two percent for carri ers performing bag surveys in place of using the method of average bag we\ghts. While SkyWest emplo ys the average bag weight method , the witness noted that all t1i ghts 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 def ense that, while the carrier seeks absolute accuracy in counting and weighing, and attempts to promote safe operations to the m aximum extent feasible, the "s heer vo lume " of luggage -- and " human limitation "

-- makes the go al , as a practical matter, impossible (Tr. 124-25 , 167; Exh. R-5 ). Finall y, the carrier stres sed th at it has taken corrective actions to assure more accura te weighing. It has implemented additional risk controls, it states, and has placed greater awareness on .this i ss ue in training. It h as utili ze d surveillance on its ramp p er so nnel. E mployee s falling short of SkyWest standards have been counseled and re-trained. SkyWest emphasizes that it h as 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 th at Complainant proved that SkyWest v i o lated PAR s 

### §§ 119.5(g) and 1 1 9.5(1)
. Comp lai nant failed to prove the remaining allegation s. 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 deta iled in its Weight & Balance Manual for loading and counting b aggage. The Manual , among other things , directs the carrier 's designated lo ading agent to accurately prepare the fli ght's CLR
. For each of the fli ghts encompassed by Docket -048 5, SkyWest 's CLR failed to properly reflect in the appropriate block the actual count ofthe di ffe rent classes of baggage loaded onto the aircraft. In -0485, the evidenc e showed that: 1) For Flight #4659 , SkyWest l oading agents counted 38 s tandard bags and 2 he avy bags, but the CLR listed 40 standard bags and zero heavy bags ; 2) For Fl ight #6692, carrier agents counted 19 standard bags and one heavy bag; the CLR, b y contrast, lo gged 20 s tandard and fi ve heavy bags; and 3) Flight #4800 agents counted 43 s tandard , four h eavy, and 12 plane side bags , while the CLR r e fl ected a total of 59 standard , zero heavy, and zero planeside bags. The failure to accurately prep are the CLR, it is concluded , constitutes a vio lation of § 119.5 (g). SkyWest's ac tions in lo a ding and marking the CLRs for these fo ur flight s a l so constitute a violation ofFAR § 11 9.5(1). Thi s section prohibits Part 1 2 1 ai r carriers from operating in violation of op specs. B y failing to set out for each flight accurate inf ormation on the CLR s, Respondent, a Part 121 air carrier, did n ot operate in conformance with it s op specs. It thu s violated thi s section
.

### 6

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) require s that the load manifest contain evidence that the aircraft was loaded according to an approved schedule which in sures 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 manife st will pas s 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 i s concluded, failed to pro ve 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 l oad ing procedure s to follow the Manual (I.D
. , p. 2). The load manifest, then, u sed approved proce dures to compute the weight ofthe baggage. No violation of §§121.693(a) and (c) thus could be proven. N or was a § 121.693(d) vio lation proven ; no evidence tended to demonstrate that the approved method failed to insure that the center of grav ity was within approved limits. Indeed , the evidence suggested that the aircraft weight and center of gravity location fell within manufacturer recommendati ons 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 re spondent ' s ability to pay the civil penalty; (6) the effect on the entity'
.s ability to stay in bu siness ; and (7) ot her matters as justice may require
. See , e.g. , Folsom 's Air Service, Inc ., FAA Order No
. 2008 -11 (Novem ber 6, 2008), 2008 WL 4948488 , p. 11. The determination weighs whether the violation wa s inadvertent or deliberate, the private or public character of the violation, and the attitude of the vio lator. The agency also considers the respondent's size, particularly in determining the offender's ability to absorb the sanction. The principal elements in this analysi s are the nature of the respondent's conduct and the totalit y of the circumstances
. Eastern Air Center , Inc
. , FAA Order No. 2008 -3 (Janu ary 28 , 2008). Finally, the civil penalt y should provide s ufficient incentive to deter the respondent and si milarly -situat e d entities from future violations
. Folsom ' s Air Servic e, Inc. , 

### !d. , p. 20.

:7
B. Decision I find that a civil penalty of $250 per flight (including the flight with which Docket -0486 is concerned) is a ppropriate.
v The violations found were technical in nature. They had no material effect on weight and balance or on aircraft performan ce. 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 di spos itive (Resp
. Br. , p. 12)
. The most important factor in the weight and balance context unque stio nabl y i s the load manifest. It is thi s document that is computed by the fli ght 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 manifest s (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 v iolation of op specs; the second prohibits operating under Part 121 in vio lation of op specs. The distinction b etween the two provisions for the present purpo ses i s inc onsequential. As s uch , penalizing Respondent for both violations would be unjustified. I note that the agency's civil pena lty guidelines , FAA Order 2150.38, take a similar stance: they advise that " [w]hen a single instance of noncompliance re s ults 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 vio lation- 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 consi dered. Those not explicitly discussed are rejected or dismissed as mooted by this Initial Decision. 5

5 Certa in evidence
. in this proceeding has been sealed. See Order Sealing Certain Exhibits and Transcript Portion , served November 2 , 20 12 , and Order Un sealin g Transcript Pages, served January 17 , 2013. However , this Initial Decision does not reference any ofthe ev idence 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 vio l ations of FAR §§119.5(g) and 119.5(1) as discussed herein. The remainder of the charges in Docket FAA-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 (p l us an additional five days if mailed) from the service date of this decision , and 2) be perfect e d with a written brief or memorandum not later than 50 day s (plus an additional five, if mailed) from the service date ofthis deci sion . The notice of appeal and brief or memorandum mu st 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 2 Wl000 , or b ) delivered personall y 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 Avenue, S. W. Washington , DC 20591 Attention: Hearing Docket C le rk , AGC-430 Wilbur Wright Building

- Suite 2W1000 1 

### ONE COPY Todd C. Emerson, Respondent ·s Representative Director

- Go vernment and Legal Affairs SkyWest Airlines 444 South River Ro ad St. George, UT 84790 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 Northwe st Mountain Region , ANM-7 Federal Av iatio n Administration 1601 Lind Avenue , S.W. Renton , W A 98057 TEL: 425-227-1417 FAX: 425-227-1007 FDMS Nos
. FAA

- 20 11-0485 & FAA-2011-0486, (Civ il Penalty Actions)

1 Se r v i ce was by U
. S

. Mail. For s ervice in person or b y expedited co uri er , u se th e foll owin g addres s: Federal Aviation Administrat i on , 600 Ind ependence Avenue , S.W

.. Wilbur Wri g ht Building - Su i t e 2W 1000 , Washin g ton , DC 2059 1 ; Attention : H ea rin g Dock e t C lerk , AGC-4 3 0.