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UNITED STATES DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

FEDERAL AVIATION ADMINISTRATION, 

Complainant, 

V. 

SKYWEST AIRLINES, INC. 

Respondent. 

FAA DOCKET No. CP09NM0012 

(Civil Penalty Action) 

DMS No. FAA-2009-0979 

INITIAL DECISION 

OF ADMINISTRATIVE LAW JUDGE RICHARD C. GOODWIN 

Found; 1) Respondent violated 14 CFR §§119.5(g) and 119.5(1); and 

2) Respondent did not violate 14 CFR §121.629(c); 

3) Respondent is hereby assessed a civil penalty of $40,000. 

I. Background 

Respondent SkyWest Airlines, Inc. ("Respondent" or "SkyWest") is a Part 

121 air carrier. It is one of the largest regional air carriers in the country (Tr. 15). 

The instant matter originated with surveillance of the carrier's deicing and 

anti-icing operations at the Salt Lake City International Airport ("SLC") on 

February 17, 2009. Inspectors Jason Grain and Benjamin Blauer of the Federal 

Aviation Administration ("FAA," "agency," or "Complainant") observed the 

operations. Their surveillance showed, according to Complainant, that 

Respondent in several instances conducted operations in violation of its 

operations specifications ("op specs"). 

The Complaint, as amended, charges that Respondent violated the 

following FARs (all in 14 CFR) in seven instances: section 119.5(g), for violating 

an op spec; section 119.5(1), for operating an aircraft in violation of an op spec; 

and section 121.629(c), for releasing and operating an aircraft without complying 

with its approved deice/anti-ice program when conditions were such that frost. 
2 

ice, or sllowwere reasonably expected to adhere to the aircraft. The agEHlcy 

seeks a total civil penalty of $84,000. 

Respondent denied liability and interposed affirmative defenses. 

A hearing was held on December 1 and 2, 2010, in Salt Lake City, UT. 

The parties have filed briefs and the matter now is ready for decision. 

(Complainant's Brief'" "Campi. Br."; Respondent's Brief = "Resp. Br."; 

Complainant's Rebuttal Brief'" "Campi. Rebut.") 

I find and conclude that Respondent violated §§119.5(g) and 119.5(1). 

do not find violations of §121.629(c), and I dismiss the allegations based on that 

regulation. I further hold that the facts and circumstances warrant an 

assessment against Respondent of $40,000. 

II. Discussion and Findings 

Inspectors Crain and Blauer, who worked for the agency's Salt Lake City 

Certificate Management Office ("CMO"), were Complainant's witnesses. I found 

each to be credible. They were sincere and their testimony trustworthy. When 

Crain's or Blauer's testimony was inconsistent with testimony offered by another 

witness, I generally credited the inspector's accounts. 

Inspector Crain was SkyWest's assistant principal operations inspector 

(Tr. 13-14). He testified that he and inspector Blauer were attending a meeting at 

the CMO office at SLC when they realized that the weather that morning created 

an opportunity to inspect the carrier's deicing and anti-icing procedures. Crain 

described the weather conditions as intermittent light snow mixed with rain, and a 

temperature of 33 to 36 degrees Fahrenheit. Inspector Blauer also called the 

snowfall "light" (Tr. 234). The inspectors agreed that it was a day in which frost, 

snow, and ice might reasonably be expected to adhere to aircraft.' 

SkyWest's approved ground deicing and anti-icing procedures are 

contained in a manual known as Standard Practice ("SP") 2800. SP 2800, which 

is rather extensive - perhaps 250 pages -- is applicable to Respondent through 

the carrier's op specs. Carriers are required to follow their op specs (Exhs. C-2 

and C-7; Tr. 22, 59, 69-70, 74). 

Deicing and anti-icing procedures are particular to the type and model of 

aircraft. SP 2800 obligates ground crews working on the Canadair Regional Jet 

I Tr. 18-21,218,234,406. I reject SkyWest witness Tylor Lewis' characterization of the precipitation as 

"a significant amount of snow full." Not only was it inconsistent with the inspectors' credible testimony, 

but Mr. Lewis' testimony also was self-serving -- he directed the deicing/anti-icing crews (Tr. 65-66; Exh. 

C-I3) -- and responded to a leading question (Q. "But there was a heavy accumulation that day, was 

there?"). See Tr. 303. 
("GRJ") and Embraer aircraft at issue in this case to begin application of deicing 

and anti-icing fluid at the left wing tip. They may then work their way around the 

aircraft until reaching the starting point. Application of fluids to flight control 

surfaces must proceed from the leading to the trailing edge and from wing and 

elevator tips toward the fuselage. Those are the default procedures. They may 

be overridden when circumstances so dictate. But application always must begin 

at the left wing and from wing tips unless countermanded by the pilot-incommand ("PIC") (Tr. 44-47, 72-73; Exh. C-2; Exh. C-8, p. 4). 

SP 2800's procedures are designed to minimize risks to safe flight in 

conditions conducive to icing. On these aircraft the wing tip is higher than the 

wing root. Application of the fluids beginning at the wing tip allows contaminants 

to flow downward before being washed off the aircraft surface. Applying fluids 

starting at the root, by contrast, would allow contaminants to flow backward and 

return to critical surfaces of the aircraft (Tr. 34-35). If those fluids were to then 

freeze, safety would be imperiled. Removal from the top down also reduces 

stress on aircraft components.^ 

The inspectors drove to an area near the E concourse known as Spot 21. 

SkyWest deicing operations customarily proceeded there in five bays, marked by 

the letters A through E (Exhs. C-1, C-10; Tr. 29-31, 219). The officials brought 

with them a copy of the agency's Element Performance Inspection ("EPI") 3.1.7. 

EPI 3.1.7 instructs inspectors in what to observe under conditions conducive to 

aircraft icing (Exh. C-4). Additionally, they carried an excerpt from the thencurrent version of SP 2800. They also brought a hand-held radio (Exh. C-8, C10; Tr. 29-31, 36, 71-72). The purpose of the radio was to monitor 

communications between the ground crew and other participants in the 

deicing/anti-icing process such as supervisors and the PIC (Tr. 34; Exh. C-2, p. 

1). 

The inspectors watched the operations proceed on a portion of a bank of 

aircraft. They explained that deicing and anti-icing solutions have different 

compositions and are utilized for different purposes. Deicing fluid removes 

contaminants. Anti-icing fluid, which is applied after deicing is completed, is 

designed (like antifreeze) to inhibit contaminant for a period of time following 

application (Tr. 47). Not all aircraft had required anti-icing (Tr. 193 (Grain); Tr. 

237 (Blauer)). 

Following completion of that bank, the inspectors left for an area close to 

the A concourse known as Spot 3. They watched one airplane undergo deicing 

there. Just short of an hour later, they returned to Spot 21 and evaluated the 

deicing/anti-icing techniques perfomried on a second bank of aircraft that had 

^ Tr. 35, 54. Respondent witnesses insisted that the requirement to apply fluids starting at the wing tip is 

designed simply to conserve fluid. Tr. 274 (Katsalis) and 307 (Lewis). Inspector Grain's explanation 

demonstrates that this view is mistaken. 
arrived at Spot 21 in the meantime (Tr. 32, 48-50, 62-64, 141-42, 219, 230-31; 

Exh. C-1). Inspectors Grain and Blauer evaluated procedures for eleven 

SkyWest airplanes in total (Tr. 42). 

The inspectors found that on seven aircraft - all observed at Spot 21 -

ground crews failed to follow SP 2800's deicing/anti-icing procedures. They 

observed what inspector Blauer characterized as "irregular spray patterns and 

start locations" (Exh. G-10; Tr. 229). Ground service personnel, tlie inspectors 

said, violated protocol in applying deicing fluid beginning at the wing root and 

spraying upward toward the wing tip instead of the other way around. Crews 

also commenced spraying of deicing and anti-icing fluid on the right wing instead 

of the left. At no time, the inspectors emphasized, did any flight crew authorize a 

deviation from standard procedures (Exhs. G-4, G-5, and G-10; Tr. 42-55, 58, 73, 

89, 223-25, 235-36; see also Exh. G-2). 

The inspectors both stressed that SkyWest personnel removed any 

contaminants adhering to the aircraft. They had observed SkyWest ground 

crews perform a "tactile check" - physically touching the wing - which, they 

testified, eliminated any traces of contaminant. Each aircraft took off clean, they 

said (Tr. 44, 61, 75, 192-93, 244, 253-54; Exh. C-11). 

The inspectors took no action just yet. They "very cleariy [had] 

understood" that SkyWest had not followed instructions contained in the SP 2800 

excerpt they had carried with them (Tr. 59). But they were not certain that they 

had witnessed FAR violations. Inspector Grain testified that he needed to return 

to his office to look at the complete, 250-page manual, and possibly examine the 

contents of other manuals. He also needed to further assess what he had 

observed. Only then would he determine whether he had witnessed potential 

violations. Flight safety was not implicated by his deliberation, he said. 

Precipitation had been "minimal at best" (Tr. 60), and even with the "improper 

techniques" used, each aircraft ultimately had been cleaned of contaminants 

prior to flight (Tr. 59-62, 130, 144). 

Inspector Grain's evaluation led him to conclude that he had witnessed 

possible FAR violations. At that point he contacted SkyWest officials. He told 

them that he had observed deicing/anti-icing techniques which were contrary to 

the carrier's approved program. He informed them that the agency would 

proceed with a Letter of Investigation, the first step in enforcement action (Tr. 74, 

80, 195; Exh. G-9). 

SkyWest has attacked the basis for the inspectors' conclusions. The 

carrier showed that inspector Grain's notes, which he used in reaching his 

conclusions, lacked independently meaningful descriptions of his observations. 

Indeed, the notes are cryptic. They contain disjointed phrases. Clearly they are 

difficult for a disinterested observer to interpret (see Exh. C-4). Grain himself 

referred to them as "chicken scratches" (Tr. 44, 139). In sum, the conclusions 
inspector Grain drew were not objectively verifiable from his notes (see Resp. 

Br., pps. 2-6). 

In a related argument. Respondent also faulted inspector Grain's 

acknowledged failure to always document SkyWest's alleged violations on a peraircraft basis. Grain's conclusions in certain instances could not be sourced to a 

particular aircraft.^ SkyWest also criticized inspector Blauer's notes. The carrier 

explained that Blauer's notes did not specify de-icing violations he assertedly had 

found (Tr. 229; Exh. G-6; Resp. Br., pp. 5-6). Respondent concluded that 

Complainant's proof must fail because its witnesses could not provide an 

evidentiary chain demonstrating SkyWest's responsibility for the purported 

violations. Complainant failed to show all elements of the violations alleged, the 

carrier argues (Tr. 261-63). 

I reject Respondent's arguments. 

Inspector Grain acknowledged that he did not have an independent 

recollection of the purported irregularities he wrote up. But he expressed 

confidence in his ability to correctly interpret his notes after reviewing them and in 

examining them in conjunction with other documents. And he felt sure that, as 

notes contemporaneously written, they contained an accurate record of his 

observations (Tr. 107-12, 139). 

While inspector Grain was unable to remember specifics, his notes 

enabled him to determine the circumstances. He testified to several examples of 

this. For example, he testified that the word "no" in parentheses on the line just 

below the reference to airship 913 meant that SkyWest had not been in 

compliance with correct deicing procedure (Tr. 137; see Exh. G-4; see also Tr. 

115 (".. . there's two little notches [on the page], meaning 'wing.' It's shorthand, 

meaning that the de-ice was - was started on the right wing, which is not 

correct.")). In another instance he was unable to recall whether SkyWest had 

employed one truck or two to apply the fiuids, but his notes suggested the 

answer (Tr. 117-20). In sfill another, he could confidently conclude that the PIG 

did not override the ground crews' procedure because his notes said nothing 

about the PIG (Tr. 120). Similarly, inspector Blauer - who also acknowledged 

that he did not independently recollect his observations ~ testified that, while he 

was unable to remember whether he had heard any instructions from the PIC, he 

concluded that he had not because of the absence of such a statement in his 

notes (Tr. 235-36; see also Tr. 238-40). 

Respondent's contenfion essentially is one which questions the credibility 

of Complainant's witnesses. As such it fails. I have found that inspectors Grain 

and Blauer each were credible (I.D., p. 2). Their evidence was trustworthy both 

^ See Tr. 98-99, 103, 108-10. Inspector Blauer's notes noted violations by aircraft tail number. Exh. C-6; 

Tr. 220-25. 
in the sense that I found them each to be sincere and truthful, and in the sense 

that I find that they could, and did, draw logical and credible conclusions from 

their notes. The ability of a third party to decipher and draw independent 

conclusions from Grain's "chicken scratches" or from Blauer's notes is irrelevant 

to the reliability of the inspectors' conclusions. What is germane is that the 

makers of the notes could decipher them, and did so. The fact that Grain 

somefimes could not make sense of his notes without referring to other 

documentation also has no bearing on the trustworthiness of his conclusions. 

Grain in particular, moreover, has had a great deal of experience in evaluating 

deicing/anti-icing operations; he testified that he had "an extensive background" 

in that area. He has performed this type of exercise many tinies. He was the goto expert within the GMO (Tr. 146-48). Grain's experience lends further support 

to the trustworthiness of his conclusions. 

In these circumstances, I credit the inspectors' conclusions. The 

preponderance of the reliable and probative evidence showed, I conclude, that 

SkyWest violated its procedures respecfing seven aircraft in the manner testified 

to by Complainant's witnesses. 

In view of the foregoing, I find and conclude that SkyWest failed to follow 

its deicing/anti-icing manual, SP 2800, on seven occasions. By so doing, the 

carrier did not honor its op specs. Such conduct constitutes a violation of FAR 

section 119.5(g) (see I.D., p. 1). I further find and conclude that Respondent also 

violated FAR section 119.5(1) in operating each of these aircraft in violation of an 

op spec (see Tr. 75). Complainant also asserted that SkyWest violated FAR 

§121.629(c), but I decline to make that finding. This provision, which bars the 

release and operation of an aircraft which is out of compliance with the carrier's 

deice/anti-ice program, prohibits essentially the same behavior as §119.5(1). 

Finding multiple violafions originating in the same transgressive conduct 

generally should be avoided. See Paul A. Carr, FAA Order No. 98-2 (March 12, 

1998). I see no reason to make an exception to that principle in this case. As 

such, I find seven violations of §119.5(g) and seven of §119.5(1) only."* 

Respondent nonetheless stressed that, even if Complainant showed that 

ground personnel sprayed deicing and anfi-icing fiuids in the manner alleged, the 

agency failed to prove the charges. Methods used other than those specified in 

SP 2800 did not necessarily amount to FAR violations, the carrier pointed out. 

Ground personnel (as has been seen) had some discrefion to deviate from 

regular spray patterns. SP 2800 allowed crews to spray upward, or root to tip, in 

certain circumstances (Exh. C-8, p. 4,1|B.14; Tr. 121-22, 253). Respondent was 

able to postulate situations in which SkyWest would have conducted operations 

I note also that the agency determined its penalty recommendation based on two violations and not on the 

three charged. See I.D., p. 9. 
consistent with inspector Grain's notes suggesting a violation, yet would have 

proceeded correctly.^ 

But inspector Grain countered that the manual applicable to these aircraft 

require crews in all situafions to start at the wing tip, unless countermanded by 

the PIG (Tr. 182-83, 185; I.D., p. 3). Crews "don't have discretion just to go start 

at the root" (Tr. 188). Permissible deviafions from this technique would have 

occurred only after initial de- and anti-icing. And SkyWest's root-to-tip violations 

involved initial spraying. In any event Grain did not observe any situation which 

might have prompted deviation. One such situafion which might have justified 

deviation, for example, could have been a snow event in which precipitation blew 

contaminants from the left wing to the right. That would have warranted spraying 

on the right wing before applying fluid to the left. Another scenario might have 

involved contaminants penetrating the cavities by the root area. That would have 

required fluid application at the root before the tip, the opposite of the manual's 

command. But inspector Grain did not observe any such situation. Precipitafion 

simply had been too light for any such scenario to occur (Tr. 122-31, 188-89, 

407-08). 

Respondent also interposed an affirmative defense. In failing to inform the 

carrier at an eariier practicable moment that agency inspectors had seen 

possible violations of SP 2800, agency inspectors had violated provisions of 

Order 2150.3B, Respondent charged. The inspectors had observed the second 

bank of flights out of Spot 21 about an hour after the end of the first bank and still 

had not contacted SkyWest. They had compiled four charges at the second goaround - charges which earlier notification might have avoided. SkyWest 

pointed out that Order 2150.3B directs FAA enforcement personnel to inform 

responsible air carrier officials of a potenfial ongoing violation. The policy is 

designed to prevent the violation from continuing and to forestall the unwarranted 

accumulation of additional penalfies. Agency delays also may de-emphasize the 

seriousness of a violation. Failing to follow its own procedures and allowing 

SkyWest to amass additional potential violations before notification amounts to 

arbitrary and capricious behavior warranting foreclosure of enforcement action, 

Respondent asserted (Tr. 267-68). 

Inspector Grain countered that, following his observation of the first bank, 

the question of potential SkyWest violations had not been clear-cut: he believed it 

necessary to return to his office and review the situation after completing all of 

his surveillance in order to be sure. As he put it, "we sfill had some homework to 

do" (Tr. 62; see I.D., p. 4). The inspectors had planned to consult not only the 

complete SP 2800 manual, but others used by the carrier, such as the relevant 

' Resp. Br., pp. 6-7. SkyWest showed that in instances in which inspector Cram had indicated that the 

carrier had unlawflilly sprayed root to tip, it was possible that crews had started de-icing on the left, correct, 

side of the airplane, and after snow and ice had accumulated on the ftiselage, needed to spray root to tip on 

the right side because precipitation had gotten trapped in a notch behind the engine. This pattern of 

spraying would have constituted correct procedure under those circumstances. Tr. 136; see also Tr. 234. 
GRJ and Embraer manuals. Grain testified that, once he determined that the 

deviations from procedure he had observed possibly amounted to FAR 

violations, he notified carrier officials. He insisted that he informed SkyWest 

officials of the carrier's potential violations in a fimely manner (Tr. 61-62, 68, 151-

72, 241-49). 

Inspector Blauer's testimony was to similar effect. He agreed that a 

carrier should be notified of potential violations promptly (Tr. 249). He conceded 

that perhaps eariier notification in this matter would have been wiser "with 

twenty/twenty hindsight" (Tr. 247; see also Tr. 249). But "[w]e weren't absolutely 

sure what we had. We wanted to be sure... And once we had got back to the 

office and realized what we had," Blauer testified, SkyWest personnel were 

notified (Tr. 249-50). 

Inspector Grain also defended his actions by nofing that, without safety 

issues - and none were present ~ he did not want to chance freezing SkyWest 

operations. The carrier might have reacted to notification of a possible problem 

following the first bank of flights by halfing its operafions completely in order to 

deal with the situation (Tr. 208-09). Grain pointed out that the sanction guidance 

handbook (Order 2150.3B) instructs FAA personnel to analyze the evidence 

gathered before deciding whether it proves a violation (Tr. 211-12; Exh. C-12). 

Inspector Blauer testified also that agency inspectors do not want to divert 

attention away from other critical acfivities that a carrier might be undertaking (Tr. 

243). 

I find that the acfions of inspectors Grain and Blauer were reasonable 

under the circumstances. The behavior of the inspectors neither individually nor 

in tandem warrants the conclusion that they behaved in an arbitrary and 

capricious manner or in any other fashion which would warrant dismissal of 

Complainant's charges. Respondent's affirmative defense must fail. 

The inspectors in fact followed the instructions and policies of Order 

2150.3B. They had wanted to be sure that they had witnessed potentially 

violative conduct before informing SkyWest. They were conducting their review 

against the background that a premature warning might have worked a 

significant, and needless, disruption to the carrier's operations. Hindsight 

suggests that the inspectors might have notified SkyWest prior to their second 

tour at Spot 21, and thus might have observed fewer potential FAR violations -

but matters cannot be fairiy evaluated in hindsight. As matters actually unfolded, 

such a course might have seemed rash. The inspectors' behavior, I find, was 

characterized by care and prudence. It amounted to no more than carrying out 

the handbook's instruction to carefully evaluate the evidence before reaching 

conclusions. 

There is no issue concerning the effect of the inspectors' failure to follow 

their instructions, because the premise of the argument is incorrect. The 
inspectors acted in accordance with their guidelines. I conclude that the actions 

of the inspectors do not warrant overturning or negating their findings. 

Respondent's affirmative defense is rejected. 

All other arguments made have been considered and are rejected without 

comment as lacking merit.^ Respondent's motion for relief to file a rebuttal in 

support of its affirmative defenses also is denied. 

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 of the 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 Sen/ice, Inc., Id., p. 20. 

The Administrator has provided policy guidance for agency employees to 

follow when recommending an appropriate civil penalty. It has published penalty 

guidelines. The guidelines, contained in FAA Order 2150.3B, and excerpted in 

Exhibit G-12, assess all relevant statutory criteria, including mitigating and 

aggravating circumstances. The guidelines aid Complainant's penalty 

determination through a sanction guidance matrix. The matrix sets out specific 

penalty ranges for each input, cross-referencing such factors as the nature of the 

* Just one week prior to the surveillance at issue, another agency inspector, Joan Peterson, had observed 

SkyWest's deicing and anti-icing operations and also had noted possible violations. Inspector Peterson's 

findings were unknown to inspectors Grain and Blauer and to SkyWest at the time of the inspectors' 

evaluation. Tr. 213,250. Her observations became part of an enforcement matter in which the agency and 

SkyWest reached a settlement. Respondent contended that these circumstances constitute additional 

evidence that the agency unfairly failed to notify it of possible violative behavior at an earlier juncture. I 

reject this argument. The evidence shows that no one in the agency was in a position to disclose inspector 

Peterson's findings prior to the surveillance under review. See Tr. 319-20. Since SkyWest had been 

unaware of inspector Peterson's findings at that point, I have not considered the matter in my penalty 

determination. 
respondent and the nature and extent of the harm produced. Complainant's 

sanction determination nevertheless does not merely reflect a fixed mathematical 

computation. Nor is the number of FAR violations of themselves an important 

consideration. Deriving an assessment simply by multiplying the number of 

violations times the penalty recommended per sanction could result in a fine 

disproportionately severe. Warbelow's Air Ventures, Inc., FAA Order No. 2000-3 

(February 3, 2000), pp. 20-21, pet. forreconsid. den.. Order No. 2000-14 (June 

8, 2000); see also Tr. 177. The sanction guidance matrix is intended to indicate 

the Administrator's "general views" about the civil penalty ranges appropriate for 

different types of violations. Folsom's Air Service, Inc., p. 13. Nor are the 

guidelines binding. Each situation, being dependent on so many variables, is 

unique. "Evaluation of the case," the FAA has emphasized, "is based on the 

totality of the facts and circumstances."^ 

An administrative law judge ("ALJ") is not required to follow these 

guidelines. They are intended for agency personnel, and ALJs are not agency 

personnel. ALJs make decisions independently, and the ALJ determines 

(subject to agency review) whether a civil penalty is to be assessed, and if so, in 

what amount. The guidelines nonetheless must be respected as an expression 

of agency sanction policy. They represent an effort to produce consistent results 

in similar cases. The Administrator has asserted the power to impose the 

agency's sanction policy on appeal if an ALJ assesses a civil penalty that is not 

consistent with the policy. Warbelow's Air Ventures, Inc., FAA Order No. 2000-3 

(February 3, 2000), p. 20; Northwest Airlines, FAA Order No. 1990-37 

(November 7, 1990), pp. 8-10. 

B. Complainant's Position 

Complainant has asked for a levy of $84,000. It bears the burden of 

proving the appropriateness of this amount by a preponderance of the evidence. 

While the Complainant charged Respondent with three FAR violations, its 

sanction recommendation is based on two (Tr. 90; see discussion in I.D., p. 6). 

Inspector Grain testified that SkyWest, as a Part 121 carrier with annual 

operating revenues greater than $100 million, is classified under the agency's 

guidelines as a large business concern (Tr. 85-86; Exh. C-12, p. 4). The agency 

considered the op spec violations as "technical noncompliance," placing the 

suggested civil penalty in the "minimum" category - at least $2,000 but no 

greater than $9,999 per infraction. The midpoint of that range is $6,000 (Exh. C12, p. 4; Tr. 87-88). The recommended assessment for violators of dispatch and 

flight release rules is "moderate to maximum" - translating to $10,000-$25,000 

for a large business concern (Exh. C-12, pp. 4, 6; Tr. 88-89). 

^ The guidelines. Appendix C to FAA Order 2150.3B, may be found at the FAA's web site, www.faa.gov. 

or, more specifically, at www.faa.gov/documentLibrarv/media/Order/ND/2150.3B.pdf 
11 

The agency derived its proposed civil penalty by multiplying the total 

number of violations it has asserted for penalty purposes, fourteen (seven 

violative aircraft times two violations per aircraft), times the amount in the middle 

of the "minimum" category range of large business concerns of $6,000. It 

determined that aggravating circumstances were present because the infractions 

were operational and the violative procedures were "careless." Additional 

aggravating factors were that the flights were carrying passengers; the agency 

discovered the infractions, not the carrier; and SkyWest had had eariier de-icing 

violations (Tr. 91-94). On the other hand, mitigation was suggested by the fact 

that the precipitation that day had been "very light" (Tr. 92). The resulting 

recommendation of $84,000 in effect balanced aggravating and mitigating factors 

(Tr. 90-91). The penalty suggested works out to $12,000 per airplane (Tr. 174-

75). 

C. Respondent's Position 

SkyWest, in mitigation of penalty, stated that its officials, once notified, 

responded immediately and comprehensively (Tr. 272-73, 293). It asserted that 

its crews have followed the manual's instructions without fail since then (Tr. 292). 

Respondent also pointed out that one of the historical violations cited by 

Complainant in its penalty calculation was for using an untrained person. As 

such, it was unlike the present matter. Complainant may not therefore fairiy 

suggest that an aggravating factor in the determination of an appropriate 

assessment is the carrier's violation history (Tr. 199-202). 

Further, as noted eariier. Respondent contends that the proposed penalty 

results at least in part from adding in violations which could have been disclosed 

to the carrier eariier. As such, it argues, the proposed penalty is unfair and 

offends due process (Tr. 315; Resp. Br., p. 11). 

Finally, the carrier asserts that, even if proven, these violations warrant a 

lesser penalty because they were "highly technical." They had no impact on 

safety (Tr. 268). 

D. Decision 

I will assess a civil penalty of $40,000. 

By habitually accomplishing its deicing and anti-icing operations at 

variance with proper procedure, SkyWest courted peril. Fortunately precipitation 

that day had been light and contaminants were able to be completely removed 

with relative ease. Had precipitation been heavier or more continuous, the 

carrier's methods could have exposed passengers and crew to unthinkable 

danger. Improper deicing as a direct cause of aircraft accidents has been well 
12 

documented.^ In these circumstances. Respondent's conduct warrants a 

significant penalty. 

On the other hand, the evidence showed that each of the aircraft took off 

clean. Never was any actual danger present. Additionally, while the agency's 

failure to notify the carrier of its apparently violative behavior at eariier 

opportunities does not bar enforcement action or a civil penalty, I find that it is a 

circumstance justifying mitigation. The carrier corrected the problem following 

notification and has not been cited since (Tr. 207). The evidence suggests that it 

likely would have rectified its improper procedures whenever warned - so it 

would have avoided the citations it received resulting from the inspectors' second 

observation at Spot 21. Complainant's penalty calculus did not account for this 

circumstance. Additional mitigation also is suggested by the fact that 

Respondent showed that its eariier violative behavior cited by Complainant as an 

aggravating circumstance actually was of a different character than the 

infractions which concern us today. 

In weighing the all the facts and circumstances, I conclude that 

Complainant's proposed assessment simply is not warranted. It is excessive. I 

have determined that a civil penalty of $40,000 is fitting. This amount 

appropriately reflects the nature and extent of the risk to air transportation safety 

put in motion by the SkyWest, while giving proper weight to other salient factors. 

The assessment also is designed to achieve deterrence and promote compliance 

with the HMRs. It will help persuade the carrier to continue to achieve 

compliance specifically with deicing and anti-icing procedures. I find that the civil 

penalty appropriately accounts for the factors the statute and agency policy 

directs in fixing the assessment. 

' To cite one of many examples that could be given, the National Transportation Safety Board blamed the 

crash shortly after takeoff of a Continental Airlines Denver-Boise flight on November 15, 1987, which 

resulted in 28 fatalities, on "the captain's failure to have the airplane deiced a second time after a delay 

before takeoff that led to upper wing surface contamination and a loss of control during rapid takeoff 

rotation by the first officer." See NTSB Number AAR-88/09 at vyvyw.ntsb.gov. 
13 

SkyWest Airiines, Inc. is hereby assessed a civil penalty of $40,000 for 

violations of FAR §§119.5(g) and 119.5(1) as discussed herein. The remainder of 

the Complaint is dismissed.' 

Cichard C. Goodwin 

Administrative Law Judge 

Attachment - Service List 

' 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 1) 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, Atta: Hearing Docket Clerk, AGC-430, Wilbur Wright Building—Suite 2W1000, or b) delivered 

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

Avenue, S.W., Wilbur Wright Building—Suite 2W1000, 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. 
FAA Docket No. CP09NM0012 

(Civil Penalty Action) 

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' 

ONE COPY 

Todd C. Emerson, Respondent '5 Counsel 

Director, Government and Legal Affairs 

SkyWest Airlines 

444 South River Road 

Lit. George, UT 84790 

TEL: 435-634-3530 

FAX: 435-634-3505 

Scott R. Morris, Complainant's Counsel 

Attorney, Office of the Regional Counsel 

Northwest Mountain Region, ANM-7 

Federal Aviation Adminisj;ration 

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 of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Avenue, S.E. 

East Building Ground Floor, Room El2-320 

Washington, DC 20590 

TEL: 202-366-2139 Attorney-Advisor 

202-366-5121 Legal Assistant 

FAX: 202-366-7536 

' 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 

2 W1000, Washington, DC 20591; Attention: Hearing Docket Clerk. AGC-430.