.• 

SERVED: July 16, 2015 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, DC 

----· 

IN THE MATTER OF 

SKYWEST AIRLINES 

DOCKET NO. FAA-2012- 0872 

(Civil Penalty Action) 

INITIAL DECISION OF ADMINISTRATIVE LAW JUDGE 

I. Glossary 

A CARS 

A&P 

Allen 

ASI 

Ayers 

Benallo 

Brown 

C.F.R. 

CLR 

CMO 

COG 

cos 

Aircraft Communications Addressing and 

Reporting System 

Airframe and Power Plant certificate 

Steven Harvey Allen, FAA inspector 

Aviation Safety Inspector 

Andrew James Ayers 

Ronald Benallo, FAA witness 

Christopher C. Brown 

Code of Federal Regulations 

Cargo Load Report 

Certificate Management Office 

Center of Gravity 

City of Colorado Springs Municipal Airport, 

Colorado Springs, Colorado 
DEN 

EPI 

FAA 

FAA# 

FAR 

FSD 

LAS 

LAX 

McKenna 

N679SA/6960 

N804SK/4464 

N907SW/6756 

N973SW/6991 

OpSpecs 

ORD 

PIC 

Salamone 

Sky West 

SMS 

SW# 

u.s.c. 

W&B Manual 

Denver International Airport, Denver, CO 

Element Performance Inspection 

Federal Aviation Administration, Complainant 

Federal Aviation Administration Exhibit 

Federal Aviation Regulation 

Joss Field Airport, Sioux Falls, SD 

McCarran International Airport, Las Vegas, Nevada. 

Las Angeles International Airport, Los Angeles; CA 

James How~~d McKenna, Jr., FAA inspector 

SkyWest flight from DEN to FSD on March 14,2011 

SkyWest flight from LAX to LAS on March 8, 2011 

SkyWest flight from ORD to COS on March 9, 2011 

SkyWest flight from ORD to COS on March 9, 2011 

Operations Specifications 

Chicago O'Hare International Airport, Chicago, Illinois 

Pilot in Command 

Carl Salamone, SkyWest witness 

SkyWest Airlines,Jnc., Respondent 

Safety M~age~e~t System 

SkyWest Exhibit 

United States Code 

Weight & Balance Operations Part XII SP 4100 

2 
II. Introductory Comment 

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

defenses by consent of the parties. 1 

This case involved several Sky West Airlines, Inc. (hereinafter "Sky West") flights, 

including: 

Sky West N804SK operated as Flight 4464 (hereinafter "N804SK/4464") from 

Los Angeles International Airport (hereinafter "LAX"), Los Angeles, CA. to 

McCarran International Airport (hereinafter "LAS"), Las Vegas, Nevada on 

March 8, 2011. 

SkyWest N907SW operated as Flight 6756 (hereinafter "N907SW/6756") from 

Chicago O'Hare International Airport (hereinafter "ORD") to City of Colorado 

Springs Municipal Airport (hereinafter "COS"), Colorado Springs, CO. on March 

9, 2011. 

SkyWest N973SW operated as Flight 6991 (hereinafter "N973SW/6991") from 

ORD to COS on March 9, 2011. 

SkyWest N679SA operated as Flight 6960 (hereinafter "N679SA/6960") from 

Denver International Airport (hereinafter "DEN"), Denver, CO. to Joe Foss Field 

Airport (hereinafter "FSD"), Sioux Falls, SD. on March 14, 2011. 

1 SkyWest Airlines Docket Numbers FAA 2012-0617, FAA 2012-0619, FAA 2012-0868, FAA 2012 

-0869, FAA 2012-0872, FAA 2012-0873, FAA 2012-0874 and FAA 2012'- 0904. 

3 
III. Procedural History 

On July 26, 2012, Sky West Airlines, Inc., was advised through a Final Notice of 

Proposed Civil Penalty that the Federal Aviation Administration (hereinafter "FAA") 

proposed to assess a civil penalty, in the amount of$160,000. 

On August 8, 2012, Sky West Airlines, Inc., through legal counsel submitted a 

written request for hearing. 

On August 10, 2012, the FAA filed its Complaint. 

On September 10, 2012, SkyWest filed its Answer. 

By Order dated August 21, 2013 we consolidated this case with other cases with 

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

IV. Hearing 

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

cases. 

The FAA was represented by Jeffrey Harper, Esq., FAA Office ofRegional 

Counsel, Renton, Washington. 

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

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

Counsel, SkyWest Airlines, St. George, Utah. 

Post hearing briefs were filed by both parties. 

The matter is now ready for decision. 

4 
V. Jurisdiction 

SkyWest was at all times material hereto the holder of Scheduled Air Carrier 

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

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

:.i; 

VI. Burden of Proof 

The FAA was the petitioning party with the initial burden of proof (1 4 C. FR. § 

13.224). 

VII. Allegations 

A. The FAA's recitation of facts 

The FAA alleged: 

Section II (F·AA's Complaint) 

1. Sky West was at all times material the holder of Scheduled Air Carrier Certificate 

No. SWIA011A and conducted its operations pursuant to Part 121 ofthe Federal 

Aviation Regulations (hereinafte~ "F AI\-:;). 

2. Paragraph D085 of Sky West's Operations Specifications (hereinafter "OpSpecs") 

authorized Sky West to use N679SA, a Bombardier CL-600-2B 19 civil aircraft in 

the conduct of SkyWest's Part 121 operations. 

3. Paragraph D085 of Sky West's OpSpecs authorized SkyWest to use N907SW, a 

Bombardier CL-600-2B 19 civil aircraft the conduct of Sky West's Part 121 

operations. 

4. Paragraph D085 ofSkyWest's OpSpecs authorized SkyWest to use N973SW, a 

Bombardier CL- 600-2B 19 civil aircraft, in the conduct of Sky West's Part 121 

operations. 

5 
5. Paragraph D085 of Sky West's OpSpecs authorized SkyWest to use N804SK, a 

Bombardier CL·600-2D24 civil aircraft in the conduct ofSkyWest's Part 121 

operations. 

6. Paragraph A098 ofSkyWest's OpSpecs required that aircraft loading for 

Bombardier CL-600-2B19 aircraft be accomplished in accordance with SkyWest's 

Weight & Balance Operations Manual, "SP4100", Part XII, revision Orig. of 1 

APR 1 0" (hereinafter "W &B Manual"). 

7. Paragraph A099 of Sky West's OpSpecs required that aircraft loading for 

Bombardier CL-600-2D24 aircraft be accomplished in accordance with SkyWest's 

W&B Manual. 

8. SkyWest's W&B Manual contained the loading schedules and instructions for 

SkyWest's Bombardier CL-600-2Bl9 aircraft. 

9. Sky West's W &B Manual contained the loading schedules and instruction for 

SkyWest's Bombardier CL-600-2D24 aircraft. 

10. Sky West's W &B Manual, Chapter~·, p~agraph 2.A.24 defined "Heavy Checked 

Bags" as any bag weighing more than 50 pounds, but less than 1 00 pounds. 

11. SkyWest's W&B Manual, Chapter 3, paragraph 2.D.l required the loading agent 

to mark the number of standard and heavy bags on the Cargo Load Report 

(hereinafter "CLR"). 

12. SkyWest's W&B Manual, Chapter 3, paragraph 2.1.2 required the loading agent to 

verify the piece count of all '"Standard Checked", 'Heavy Checked" and planeside 

"Loaded/Service Item Baggage" upon completion of loading. 

6"• 
13. SkyWest's W&B Manual, Chapter 4, paragraph 8.9 required the loading agent to 

write the total number of Heavy Checked Baggage loaded in each cargo bin on the 

CLR in the "Heavy Checked" block. 

14. SkyWest's W&B Manual, Chapter 4, paragraph 11- Aircraft Loading, contained 

the warning: 

WARNING- INACCURATELOADING, REPORTING, OR 

FAILURE TO REPORT INFORMATION COULD CAUSE ISSUES 

WITH AIRCRAFT PERFORMANCE AND HANDLING, RESULTING 

IN THE ENDANGERMENT OF HUMAN LIFE 

Section III (FAA's Complaint) 

N804SK/ 4464 on March 8, 2011 

15. On March 8, 2011, at LAX, SkyWest loaded passengers and luggage onto 

N804SK/4464 bound for LAS. 

16. SkyWest's personnel at LAX loaded two (2) Heavy Checked Bags, marked with 

"Heavy Bag" tags onto N804SK/4464. 

17. The CLR for N804SK/4464listed -zero (0) Heavy Check Bags on board 

i' .. , ., . ~·· .. 

N804SK/4464. 

18. SkyWest thereafter operated N804SK/4464 from LAX to LAS. 

Section IV (FAA's Complaint) 

N907SW/6756 on March 9, 2011 

19. On March 9, 2011, at ORD, SkyWest loaded passengers and. baggage onto 

N907SW/6756 bound for COS. 

20. SkyWest's personnel at ORD loaded one (1) Heavy Checked Bag marked with a 

Heavy Bag tag onto N907SW/6756. 

7 
21. The CLR for N907SW/6756 listed zero (0) Heavy Check Bags on board 

N907SW/Flight 6756. 

22. Sky West thereafter operated N907SW/6756 from ORD to COS. 

Section V (FAA's Complaint) 

N973SW/6991 on March 9, 2011 

23. On March 9, 2011, at ORD, SkyWest loaded passengers and baggage onto 

N973SW/6991 bound for COS. 

24. SkyWest's personnel at ORD loaded two (2) Heavy Check Bags, marked with 

"Heavy Bag tags onto N973SW/6991. 

25. The CLR for N973SW/6991listed zero (0) Heavy Check bags on board 

N973SW/6991. 

26. SkyWest therea,fte~ operated N973SW/6991 from ORD to COS, 

Section VI (FAA's Complaint) 

N679SA/6960 on March 14,2011 

27. On March 14,2011, at DEN, SkyWest loaded passengers and baggage onto 

N679SA/6960 bound for FSD. 

28. SkyWest's personnel at DEN loaded one (1) Heavy Checked Bag, marked with a 

"Heavy Bag tag, onto N679SA/6960. 

29. The CLR for N679SA/6960 listed zero (0) Heavy Check Bags on board 

N679SA/6960. 

30. SkyWest thereafter operated N679SA/6960 from DEN to FSD. 

Section VII (FAA's Complaint) 

8 
SkyWest has paid civil penalties in eight (8) previous cases involving loading of 

cargo contrary to approved procedures. 

Section VIII (FAA's Complaint) 

By reason of the foregoing facts and circumstances SkyWest violated the 

following sections ofthe PARs (14 C.F.R.): 

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

operated in violation an appropriate OpSpec. 

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

121 in violation of its OpSpecs. 

c. 14 C.F.R. Section 121.693(a), in that SkyWest operated flights without a 

. load manifest that accurately reflected the weight of the cargo and 

baggage. 

d. 14 C.F.R. Section 121.693(c), in that SkyWest operated flights when the 

total weight of the aircraft was not computed under approved. procedures. 

e. 14 C.F.R. Section I ~1. 693 (,d), in that SkyWest operated flights when the 

aircraft was not loaded according to an approved schedule. 

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

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

exceed $27,000 for each ofthe violations noted. 

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

penalty of $160,000 was appropriate. 

B. SkyWest's recitation of facts 

Answering Section I of the Complaint, SkyWest averred: 

..... \.t. 9 '):,.\.• ·":. 
SkyWest admitted that it was advised through a Final Notice of Proposed Civil 

Penalty that the FAA proposed to assess a civil penalty in the amount of 

$160,000, and on August 8, 2012 SkyWest submitted a written request for a 

hearing. 

Answering Section II ofthe Complaint, SkyWest averred: 

1. In response to Paragraph 1, Sky West admitted that it was at all times material 

hereto, the holder of Scheduled Air Carrier Certificate No. SWIA011A, and 

conducted its operations pursuant to Part 121 ofthe FAR. 

2. In response to Paragraph 2, SkyWest admitted that Paragraph D085 of 

SkyWest's OpSpecs authorized;SkyWest to use N679SA, a Bombardier CL600-2B19 civil aircraft, in the conduct ofSkyWest's Part 121 operations. 

3. In response to Paragraph 3, SkyWest admitted that Paragraph D085 of 

SkyWest's OpSpecs authorized SkyWest to use N907SW, a Bombardier CL600-2B 19 civil aircraft, in the conduct of Sky West's Part 121 operations. 

4. In response to Paragraph 4, SkyWest admitted that Paragraph D085 of 

SkyWest's OpSpecs authorized SkyWest to use N973SW, a Bombardier CL600-2B19 civil aircraft, in the conduct ofSkyWest's Part 121 operations. 

5. In response to Paragraph 5, SkyWest admitted that Paragraph D085 of 

SkyWest's OpSpecs authorized SkyWest to use N804SK, a Bombardier CL600-2D24 civil aircraft, ln th~ 6ond~6t·ofSkyWest's Part 121 operations. 

6. In response to Paragraph 6, SkyWest admitted that Paragraph A098 of 

SkyWest's OpSpecs required that aircraft loading for Bombardier CL-600-

10 
2Bl9 aircraft be accomplished in accordance with SkyWest's W&B Manual, 

"SP4100, Part XII, revision Orig. of 1 APR 10". 

7. In response to Paragraph 7, Sky West admitted that Paragraph A099 of 

SkyWest's OpSpecs required that aircraft loading for Bombardier CL-600-

2D24 aircraft be accomP;lishe<Lin ~ccordance with SkyWest's W&B Manual, 

"SP41 00, Part XII, revision Orig. of 1 APR 1 0". 

8. In response to Paragraph 8, SkyWest admitted that its W&B Manual 

contained the loading schedules and instructions for SkyWest's Bombardier 

CL-600-2B 19 aircraft. 

9. In response to Paragraph 9, SkyWest admitted that its W&B Manual 

contained the loading schedules and instructions for SkyWest's Bombardier 

CL-600-2D24 aircraft. 

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

Chapter 2, paragraph 2.A.24 defined "Heavy Checked Bags" as any bag 

) : ' i ''-~" ( l 

weighing more than so· pounds, but fess than 100 pounds. 

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

Manual, Chapter 3, paragraph 2.D.1 required the loading agent to mark the 

number of standard and heavy bags on the Cargo Load Report (CLR). 

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

Chapter 3, paragraph 2.1.2 required the loading agent to verify the piece count 

of all "Standard Checked", "Heavy Checked", and planeside "Loaded/Service 

Item Baggage" upon completion of loading. 
·.·, 

13. In response to Paragraph 13, SkyWest admitted that its W&B Manual, 

Chapter 4, paragraph 8.9 required the loading agent to write the total number 

of Heavy Checked Baggage loaded in each cargo bin on the CLR in the 

"Heavy Checked" block. 

14. In response to Paragraph 14, SkyWest admitted that its.W&B Manual, 

Chapter 4, paragraph 11 -Aircraft Loading, contained the warning: 

WARNING- INACCURATE LOADING, REPORTING, OR 

FAILURE TO REPORT INFORMATION COULD CAUSE ISSUES 

WITH AIRCRAFT PERFORMANCE AND HANDLING, RESULTING 

IN THE ENDANGERMENT OF HUMAN LIFE 

Answering Section III ofth~ Complainti SkyWest averred: -~ . 

N804SK/4464 on March 8, 2011 

15. In response to Paragraph 15, SkyWest admitted that on March 8, 2011, at 

LAX, SkyWest loaded passengers and baggage onto N804SK/4464 bound for 

LAS. 

16. In response to Paragraph 16, SkyWest averred it was without sufficient 

information or knowledge from which to form a belief as to the truth of the 

allegation that SkyWest's personnel at LAX loaded two (2) Heavy Checked 

Bags, marked with "Heavy Bag" tags onto N804SK/4464, and therefore 

denied the same. 

17. In response to Paragraph 17, SkyW~;t; admitted the CLR for N804SK/4464 

listed zero (0) Heavy Check Bags on board. 

18. In response to Paragraph 18, SkyWest admitted that it operated N804SK/4464 

from LAX to LAS. 

12 
Answering Section IV of the Complaint, SkyWest averred: 

N907SW/6756 on March 9, 2011 

19. In response to Paragraph 19, Sky West admitted that on March 9, 2011, at 

ORD, SkyWest loaded passengers and baggage onto N907SW/6756 bound for 

;<'_( .. 

COS. 

20. In response to Paragraph 20, SkyWest averred it was without sufficient 

information or knowledge from which to form a belief as to the truth of the 

allegation that SkyWest's personnel at ORD loaded one (1)Heavy Checked 

Bag, marked with a Heavy Bag tag onto N907SW/6756, and therefore denied 

the same. 

21. In response to Paragraph 21, SkyWest admitted the CLR for N907SW/6756 

listed zero (0) Heavy Check Bags on board. 

22. In response to Paragraph 22, SkyWest admitted that it operated 

N907SW/6756 from ORD to COS. 

Answering Section V of the Complaint, SkyWest averred: 

N973SW/Flight 6991 on March 9, 2011 

23. In response to Paragraph 23, SkyWest admitted that on March 9, 2011, at 

ORD, SkyWest loaded passengers and baggage onto N973SW/Flight 6991 

bound for COS. 

24. In response to Paragraph 24, SkyWest averred it was without sufficient 

information or knowledge from which to form a belief as to the truth of the 

allegation that personnel at ORD loaded two Heavy Check Bags, marked with 

·"Heavy Bag" tags onto N973SW/Flight 6991, and therefore denied the same. 

13 
25. In response to Paragraph 25, SkyWest admitted that the CLR for 

N973SW/Flight 69911isted zero (0) Heavy Check Bags on board. 

26.In response to Paragraph 26, SkyWest admitted that it operated 

N973SW/Flight 6991 from ORD to COS. 

Answering Section VI of the Complaint, SkyWest averred: 

N679SA/Flight 6960 on March 14, 2011 

27. In response to Paragraph 27, SkyWest admitted that on March 14, 2011, at 

DEN, SkyWest loaded passengers and baggage onto N679SA/6960 bound for 

FSD. 

28. In response to Paragraph 28, SkyWest averred it was without sufficient 

information or knowledge from which to form a belief as to the truth of the 

allegation that Sky West's personnel at DEN loaded one (1) Heavy Checked 

Bag, marked with a "Heavy Bag" tag onto N679SA/6960, and therefore 

denied the same. 

29. In response to Paragraph 29, SkyWest admitted that the CLR for 

N679SA/6960 listed zero (0) Heavy Check Bags on board. 

30. In response to Paragraph 30, SkyWest admitted that it operated N679SA/6960 

from DEN to FSD. 

Answering Section VII of the Complaint, SkyWest averred: 

In response to Paragraph 31, Sky West admitted it paid reduced civil penalties on 

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

procedures. 

Answering Section VIII of the Complaint, SkyWest averred: 

14 
SkyWest generally denied all remaining allegations set forth in the Complaint. 

Affirmative Defenses 

SkyWest asserted the following Affirmative Defenses: 

1. The proposed penalty was excessive and violated FAA orders . 

.. I.! . ';···. 1. ., 

2. SkyWest may have other affirmative defenses not currently known but which 

may become known through discovery. SkyWest reserved the right to allege 

such affirmative defenses as they become known. 

VIII. Issues 

Did SkyWest violate 14 C.F.R. Sections 119.5(g), 119.5(!), 121.693(a), 

121.693(c) and/or 121.693(d) by operation offlights N804SK/4464, N907SW/6756, 

N973SW/6991 and/or N679SA/6960 according to the facts alleged by the FAA. 

Under the facts and circumstances of this case, was a civil penalty of $160,000 

appropriate. 

IX. Summary of Testimony and Bvidencf··· · 

All admitted testimonial and documentary evidence was reviewed and considered. 

Only brief highlights are summarized herein. 

A. FAA's Case 

Steven Harvey Allen 

Steven Harvey Allen (hereinafter "Allen") had twenty (20) years of experience as 

a flight instructor and airline pilot in both regional aircraft, international cargo aircraft, 

with about 14,000 hours flight time. Allen held flight instructor ratings, commercial 

instrument and airline transport pilot. He was an Aviation Safety Inspector (hereinafter 

15 
.... ,. ',·: 

"ASI'') who had been with the FAA since 2002 and had worked on the SkyWest 

certificate for approximately ten (10) years.2 

On March 8, 2011, Allen was performing an Element Performance Inspection 

(hereinafter "EPI") on inbound flight N804SK/4464 at LAS from LAX. As part of the 

inspection he counted the number of heavy bags coming offN804SK/4464 while 

standing at the bottom of the belt at the aft cargo area. There were two (2) heavy bags 

marked with orange tags affixed to the luggage. Allen obtained a copy of the CLR for 

the inbound PIC which he identified as FAA# C-5.3 Allen then identified pictures of the 

tags on the luggage from inbound N804SK/4464.4 Allen testified the number of bags he 

counted on inbound N804SK/4464 were not the same number of bags reflected on the 

CLR for N804SK/4464. The CLR for N804SK/4464 reflected no heavy bags. 5 

Cross 

Allen testified photograph FAA# C-5 was of the crew copy of the CLR. The CLR 

is a two part form, with one copy going with the crew and the other remaining at the 

station. Allen did not obtain the station copy of the CLR. Allen did not have the station 

copy and could not recall what was on the back side of the station copy of the CLR. 

Allen testified that Delta does the baggage handling for Delta Connection operated by 

SkyWest at LAS. Delta's rampers prepared the CLR for N804SK/4464 at LAS. 6 

2 Tr. p. 20, I. 8 top. 22, I. 18. 3 Tr. p. 28, 11. 8- 14. 4 FAA# C-7, 1 and 2. 5 Tr. p. 22, I, 19 top. 31, I. 12. 

6 Tr. p. 31, I. 19 to p. 36, I. 6. 

., , '\. 

16 
Redirect 

N804SK/4464, the flight inspected, was operated by SkyWest so SkyWest was 

responsible for the safe operation ofN804SK/4464.7 

James Howard McKenna, Jr. 

j 

James Howard McKenna, Jr. (hereinafter "McKenna") testified he was an FAA 

ASI with a little over twenty-seven (27) years in aviation, four (4) military and seven (7) 

years in FAA surveillance, and another sixteen (16) in commercial maintenance. He had 

held an Airframe and Powerplant Certificate (hereinafter "A&P") that I have had since 

1990.8 

On March 14, 2011, McKenna performed cargo handling surveillance on 

SkyWest flights at FSD. As part of that surveillance he did a baggage count of bags on 

N679SA/6960. McKenna identified one (1) heavy bag which had an orange tag on it. 

McKenna subsequently obtained a copy of the CLR from the flight crew, but did not get 

the original from the originating station DEN. McKenna identified FAA# C-13 as a copy 

of the CLR for N679SA/6960. McKenna identified FAA# C-15 as a photograph of the 

bag in question. McKenna t~stified the CLR did not reflect the number of heavy bags 

observed on N679SA/6960.9 

Ronald Benallo 

Ronald Benallo (hereinafter "Benallo") was a retired airline mechanic. He held 

an A&P certificate. We worked for the FAA Certificate Management Office (hereinafter 

"CMO") in Salt Lake City, UT for seven (7) years at the time of the hearing. 10 

7 Tr. p. 36, I. 8 to 22. 8 Tr. p. 93, I. 12 top. 95, I. 5. 9 Tr. p. 95, I. 6 top. 102, I. 20. 10 Tr. p. 145, I. 16 top. 146, I, 17. '.,t . .F' .. , 

17 
On March 9, 2011, Benallo performed surveillance at COS including a bag count 

on N907SW/6756. Benallo counted one (1) heavy bag identified with an orange tag. He 

obtained a copy of the CLR (FAA# C-8) and A CARS (FAA# C-9) load manifest for 

N907SW/6756 and took pictures of the heavy bag (FAA# C-10). The baggage count on 

the CLR for N907SW/6756 did not match up with the number of bags counted coming 

off the aircraft. 11 

Benallo performed surveillance on N973SW/~991 where he counted two (2) 

heavy bags. He obtained a copy ofthe CLR (FAA# C-11) and load manifest (FAA# C12) for N973SW/6991. 12 

Benallo performed surveillance on N804SK/4464 on March 8, 2011, where he 

obtained a copy ofthe load manifest (FAA# C-6). 

Benallo obtained a copy of the load manifest for N679SA/6960 on March 14, 

2011 (FAA# C-14). 13 

Cross 

Benallo identified FAA# C-8 as the yellow copy of CLR taken from the flight 

crew ofN907SW/6756 when the flight came in. Benallo got CLRs from the departure 

stations for flights N907SW/6756 and N973SW/6991 (FAA# C-11). Benallo did not 

request a copy of the backside ofF AA# C-11. 

The terms 'dispatch release', 'flight release', the 'load manifest' were used 

interchangeably but all mean flight release; they are not the load manifest. 14 

11 Tr. p. 148, 1. 1 top. 153, 1. 5. 12 Tr. p. 153, 1. 6 top. 157, 1. 3. 13 Tr. p. 157, 1. 5 top. 159, I. 22. 14 Tr. p. 159, I. 4 top. 164, 1. 5. 

18 
Redirect 

Benallo clarified that the 'flight release' flight releases contained the gross takeoff 

weight of the aircraft for the flight in question (Tr. p. 164,_ll. 9-13). 

Andrew James Ayers 15 

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

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

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

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

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

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

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

"POI") for SkyWest and had the overall responsibility for all of the authorizations and 

approvals for SkyWest's operational needs. He oversaw compliance, authorizations for 

SkyWest programs, and scheduled surveillance and follow-up. He had an airline 

transport pilot certificate with type ratings in the EMB-120 and CL-65 series aircraft. He 

had training as an Aircraft Safety Inspector (hereinafter "ASI"). He received generalized 

weight and balance training that was applicable to any pilot flying any sort of aircraft as 

well as training specific to the type aircraft at issue in these cases. Ayers was familiar 

with SkyWest's Weight and Balance program and as SkyWest's POI, it was his 

responsibility and authority to grant approval for those procedures. Ayers was received 

by the court as an expert in the field of aircraft weight and balance. 

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

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

15 Tr. 179, I. 17 top. 209, I. 19. 

19 
.. < ..... 

bag assigned a weight of thirty (30) pounds. A standard bag was defined as a bag 

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

to one hundred (100) pounds. For purposes of SkyWest weight and balance program, 

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

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

(0) to fifty (50) pounds. 

Ayers testified the load manifest contained the total weights for aircraft flights. 16 

Ayers described SkyWest's "Weight and Balance Handbook" as a general book which 

contained both background knowle(;ige, scientific information, factual information about 

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

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

improper weight and balance. 

The FAA proffered evidence of a prior aircraft accident under Part 121 where 

weight and balance was a causal factor. We sustained an objection to the testimony and 

reaffirm our ruling. Ayers' proffer was: 

... the accident in question involved an aircraft that was loaded no[t] in 

compliance with the operator's approved weight and balance program. Incorrect 

information was provided to the flight crew which allowed them or did not allow 

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

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

shortly after takeoff and cra~_hed,.k~lling~~ll persons aboard ... " . ·'- .... ' 

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

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

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

16 The witness identified FAA# C-6, C-9, C-12, and C-14 as examples ofload manifests. 

20 
which would show any relevance to the facts of this case. We reaffirm our ruling and the 

objection was sustained. The testimony was not received. 

Ayers testified about exhibits asso~tate~;with specific flights: 

N804SK/446417 

Ayers testified the weight of the cargo calculated using the CLR, was the same 

weight as was on the load manifest for that flight, but the load manifest was incorrect. If 

the load manifest was incorrect, the performance data used for the flight was also 

incorrect. 

N907SW/675618 

Ayers testified the weight listed on the load manifest matched the weight 

calculated using the CLR (FAA# C-8). However, the load manifest was incorrect, so the 

performance data used for the flight was also incorrect. 

N973SW/6991 19 

Ayers testified the weight listed on the load manifest matched the weight 

calculated using the CLR (FAA# C-11 ). However, CLR was inaccurate and didn't reflect 

the actual aircraft loading, which inferred the load manifest was incorrect. Therefore, the 

performance data used in the conduct of the flight was incorrect. 

N679SA/696020 

Ayers testified the weight listed on the load manifest for this flight, matched the 

weight calculated based on the data contained in the CLR (FAA# C-13). However, CLR 

was inaccurate and didn't reflect the actual aircraft loading, which inferred the load 

17 Tr. p. 201, I. 4 top. 201, I. 22. Incorrectly refeiTed to ~~Flight 4461 in portions of the examinations. 18 Tr. p. 202, I. 1 top. 202, 1. 14. 

19 Tr. p. 202, I. 15 top. 203, I. 8. 20 Tr. p. 203, I. 9 top. 204, 1. 3. 

21 
manifest was incorrect. Therefore, the performance data used in the conduct of the flight 

was incorrect. 

Ayers further testified that in a couple ofthe cases21 where the load manifest 

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

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

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

to whether those procedures were actually followed. Ayers drew an analogy that, it was 

not enough to get the right answer, put to sho'Y\your work to get the answer and that ' 1.1. '·' 

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

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

operated within their weight and balance envelope?2 

Cross23 

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

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

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

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

predicated upon the assumption that when the inspectors counted the offloaded baggage 

they were counted correctly. 

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

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

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

how they do that, when they do that, and what the outcomes are. Risks were categorized, 

21 Referring to the consolidated docket. 22 Tr. p. 207, I. 19 top. 208, I. 16. 23 Tr. p. 209, I. 21 top. 219, I. 10. 

22 
with Cat~gory I being non-safety related. SkyWest implemented an SMS after the 2011 

incidents. 

Redirect24 

Ayers testified both copies of the CLR should be updated with any last minute 

changes. If the load manifest was inaccurate, the process wasn't followed. COMAT was 

required to be marked on the CLR as COMAT and ballast was required to be marked on 

the CLR as ballast. If a live animal was on board, that was required to be reflected on the 

CLR. 

Recross25 

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

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

assigned a different weight. 

Evidence 

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

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

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

inclusive; FAA#C-43 through C-47 were provided for reference; FAA#C-100 through 

1 03, were not offered, but are a part of the administrative record. 

B. SkyWest's' Case 

Carl Salamone, deposition transcript, 2014050626 

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

deposition (SW# 3-3) and introduced into the re~ord by agreement of the parties. 

24 Tr. p. 219, I. 13 top. 222, 1. 1. 25 Tr. p. 222, I. 3, top. 223, I. 1. 26 Tr. p. 227, I. 7 top. 281, I. 17. 

23 
Counsel for both parties were present at the deposition. Salamone's testimony was 

applicable to all of the cases in the consolidated docket. 

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

a special projects group for SkyWest. He was a first officer on Canadair Regional Jets 

(hereinafter "CRJ''). He held an airline transport pilot certificate for the CL-65 type 

aircraft, a flight instructor's certificate, an advanced ground instructor and an instrument 

ground instructor certificate. He was rated in the CRJ 200, 700 and 900 aircraft and had ~ ~. 

operated all three types of aircraft. He had 4200 flight hours, of which 3200 were in 

CRJ s. He had a Bachelor of Science degree in electrical engineering and a Bachelor of 

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

factors was the study of human factors principles in research and psychology as it related 

specifically to aviation in the human elements of aviation safety, including weight and 

balance systems. For five (5) years he had been a member of a special projects group 

which, among other things, involved analysis of weight and balance. Salamone estimated 

he had flown about 3,000 flights. Each flight required a weight and balance calculation 

prior to that flight. He had training in weight and balance from his education as well as 

Sky West. 

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

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

performance. 

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

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

24 
have been observed by an inspector(s) for each of the flight violations. In the analysis of 

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

reports, the load manifests, electronic, if available, the inspector's statement from the 

FAA, as far as the alleged weight or items that may have been present and the 

manufacturer documentation for the Canadair series jets to determine performance and 

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

temperature and fuel weight. 

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

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

weight of the airplane immediately prior to beginning takeoff, including passengers, 

cargo, ballast, et al. 

Aircraft takeoff Center of G~avity (herei~after "COG") was the location of the 

center of gravity at a point on the airplane and calculated to ensure that the plane 

remained in balance for the manufacturer's specifications throughout that flight. COG 

was a single point, a mathematical point. It was a single point like a teeter-totter, where 

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

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

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

the plane will perform as it was designed to. 

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

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

airplane would not be too heavy to meet its performance requirements and performance 

planning. An airplane was operated at a weight that would ensure that the runway was 

25 
adequate, that the climbing performance was adequate, and that it would be able to obtain 

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

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

weights that the crews had recorded and believed that they were operating under, none of 

the flights exceeded maximum takeoff weight and none of the flights were unsafe in 

anyway. 

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

FAA inspectors, none of the aircraft exceeded tolerances nor were the flights unsafe. In 

. his opinion, the crews' calculations were accurate as pertaining to the cargo and weight 

that they believed that they had and the calculations did not exceed the manufacturer's 

suggested limitations nor as perceived by the FAA inspectors. Taking into account three 

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

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

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

runway performance, climb performance, or maximum operating altitude. 

As to specific flights, Ayers testified as follows: 

N804SK/446427 

Analyzing that flight, Salamone testified the FAA inspector reported two (2) 

heavy bags present in the cargo compartment, while zero heavy bags were accounted for 

on the CLR. For this particular flight, he do not have a total piece count. So, it was not 

possible to determine if these two (2) heavy bags were counted as standard bags on the 

CLR or had just not been counted at all. The weight discrepancy, depending on whether 

27 Tr. p. 252, I. 7 top. 254, I. 2; Tr. p. 273, I. 5 top. 275, I. 8. Incorrectly referred to as "March 8, 2011 

Flight 4461 aircraft tail number N804SK" in the transcript. Tr. p. 252, II. 10-13 and portions of the 

examinations. 

26 
or not they had been counted as a standard item or not, the maximum discrepancy here 

could have been up to 120 pounds additional weight as observed which did not fall 

outside the acceptable takeoff weight and was well within the manufacturer's specified 

COG envelope. 

N907SW/675628 

Analyzing N907SW/6756, Salamone testified the FAA reported that one (1) 

heavy bag was present in the cargo compartment, while zero (0) heavy bags were 

accounted for on the CLR. There was no record of the total piece count. It was not 

possible to determine if this heavy bag that had been observed was a part of the standard 

count or not. The total discrepancy would have been either 30 or a maximum of 60 

pounds deviation from the CLR, which would not have had a noticeable impact on the 

COG or aircraft weight limitations. Salamone assumed the aircraft would operate 

without any problems and the flight crew would have been unaware of the discrepancy. 

N973SW/699129 

Salamone said N973SW/6991, had two (2) heavy bags observed by the FAA. 

There was no total baggage piece count, so the observed two (2) bags may or may not 

have been included in the standard piece count. The total weight deviation would have 

been either additional 60 or 120 pounds, based on whether or not those bags had been 

included as standard bags. N973SW/6991 would not have moved the COG out of the 

envelope, exceeded the maximum takeoff weight, or exceeded limitations set on the 

aircraft by the manufacturer under these ~ortditi~.ris. The flight crew would not have been 

able to notice or feel any difference in the aircraft's performance. 

28 Tr. p. 275, 1. 9 top. 277, I. 10. 29 Tr. 256, I. 2 top. 257, I. 17. 

27 
N679SA/696030 

-,! Salamone said the FAA reported that one ( 1) heavy bag was present in the cargo 

compartment, while zero heavy bags were accounted for on the CLR on N679SA/6960. 

He was unable to tell if this one (1) heavy bag was documented as a standard bag or was 

not documented at all. The resulting weight deviation would have been either an 

additional 30 pounds or 60 pounds above what the flight crew had planned on the load 

i 1 lA. .::·.·: 

manifest. This would not have moved the COG out of the acceptable envelope, would 

not have impacted maximum takeoff weight, or fuel planning. 

Fuel planning for all the CJRs involved would have been very close. The 

additional weight may have caused a slight increase in fuel usage, just because it costs 

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

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

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

would not have impacted safety. 

Salamone described the human factors involved in loading an airplane and 

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

1 ·-· ..... ·r i.,.··, 

handling as having to do with the e~viro~ent' around which it is centered. The ramp 

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

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

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

counting or bags arriving at different times from different connecting flights. Salamone 

described that humans have a difficult time inherently with counting, and when you 

30 Tr. p. 257, I. 18 top. 259, I. 22. 

28 
throw in some difficult environmental factors, it makes that task even more difficult. 

Salamone was not particularly surp~ised at bag count discrepancies. 

Cross31 

Salamone testified the reason why he took runway length into account was that a 

heavier aircraft required a longer distance to takeoff. Heavier aircraft needed to reach a 

higher speed to become airborne, had a lower rate of climb, a lower angle of climb, lower 

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

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

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

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

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

which was then used to determine performance requirements. 

Christopher C. Brown32 

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

Operations for SkyWest Airlines. His principle duties included oversight, flight 

standards, fleet management, and program development, process development, manuals, 

such as weight and balance, ground deicing program, flight operations manual, standard 

operations procedures, and such. He had been in the aviation industry for thirty (30) 

years. He had an AMP certificate, airline transport certificate with the CL-65, a flight 

instructor certificate, an advanced flight instructor or an advanced ground instructor 

certificate. Brown's testimony was·:applfcable tb"all of the cases in the consolidated 

docket. 

31 Tr. p. 281, I. 18 top. 291, I. 6. 32 Tr. p. 298, I. 20 top. 324, I. 14. 

29 
Brown testified about SW# RS-1, which was a letter to the CMO, to Mr. Ayers, 

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

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

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

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

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

present. The aircraft operating envelope would be curtailed in such a way that for small 

miscounts, the SkyWest weight and balance prograrn·would assure that the aircraft would 

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

proposal was similar to a program implemented by Delta. 

Evidence 

The following SkyWest exhibits were admitted in the consolidated docket set 

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

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

C. Credibility determinations 

~ .. ( \ 

• ~·p I ,~: ';' 

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

X. Brief Summary of Evidence and Testimony 

N804SK/ 4464 on March 8, 2011 

On March 8, 2011, at LAX, SkyWest loaded passengers and luggage onto 

N804SK/4464 bound for LAS. SkyWest's personnel at LAX loaded two (2) 

Heavy Checked Bags, marked with "Heavy Bag" tags onto N804SK/4464. The 

30 \ , .. : 
CLR for N804SK/4464 listed zero (0) Heavy Check Bags on board 

N804SK/4464. SkyWest thereafter operated N804SK/4464 from LAX to LAS. 

N907SW/6756 on March 9, 2011 

On March 9, 2011, at ORD, SkyWest loaded passengers and. baggage onto 

N907SW/6756 bound for COS. SkyWest's personnel at ORD loaded one (1) 

Heavy Checked Bag marked with a Heavy Bag tag onto N907SW/6756. The 

CLR for N907SW/6756 listed zero (0) Heavy Check Bags on board 

N907SW/Flight 6756. Sky West thereafter operated N907SW/6756 from ORD to 

cos. 

N973SW/6991 on March 9, 2011 

' . .'1 . ·:\~ .. _l(· ,.\ t 

On March 9, 2011, at ORD, SkyWestloaded passengers and baggage onto 

N973SW/6991 bound for COS. SkyWest's personnel at ORD loaded two (2) 

Heavy Check Bags, marked with "Heavy Bag tags onto N973SW/6991. The CLR 

for N973SW/6991 listed zero (0) Heavy Check bags on board N973SW/6991. 

SkyWest thereafter operated N973SW/6991 from ORD to COS, 

N679SA/6960 on March 14,2011 

On March 14, 2011, at DEN, SkyWest loaded passengers and baggage onto 

N679SA/6960 bound for FSD. SkyWest's personnel at DEN loaded one (1) 

Heavy Checked Bag, marked with a "Heavy Bag tag, onto N679SA/6960. The 

CLR for N679SA/6960 listed zero (0) Heavy Check Bags on board ~ ' ' 

N679SA/6960. SkyWest thereafter oJerated N679SA/6960 from DEN to FSD. 

XI. Law 

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

31 
§§ 13.224(a) and (c). The standard is a preponderance of reliable, probative, and 

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

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

of civil penalties in FAA cases. 

. 

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

than $25,000 for violating .. , (B) a regu~ation prescribed or order issued under any 

provision to which clause (A) of this paragraph applies." The authority for issuing 

Parts 119 and 121 of 14 C.F.R. includes 49 U.S.C. Chapters 401,441, and 447-

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

Parts 119 and 121 (Preamble). 

C. 14 C.F.R. § 119.5 Certifications, authorizations, and prohibitions. 

1. 14 C.F.R. Section 119.5(g), provides: 

No person may operate as a direct air carrier or as a commercial operator without, 

or in violation of, an appropriate certificate and appropriate operations 

specifications. No person may operate as a direct air carrier or as a commercial 

operator in violation of any deviation or exemption authority, if issued to that 

person or that person's representative. 

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

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

135 ofthis chapter in violation of an air,~arrier operating certificate, operating 

certificate, or appropriate o,Rerations spe~tfications issued under this part. i. J; 

D. 14 C.F.R. § 121.693 Load manifest: All certificate holders 

The load manifest must contain the following information concerning the loading 

of the airplane at takeoff time: 

1. 14 C.F.R. Section 121. 693(a), provides: 

The weight of the aircraft, fuel and oil, cargo and baggage, passengers and 

crewmembers. 

2. 14 C.F.R. Section 121.693(c), provides: 

The total weight computed under approved procedures. 
,, ··.··. 

3. 14 C.FR. Section 121.693(d), provides: 

Evidence that the aircraft is loaded according to an approved schedule that 

insures that the center of gravity is within approved limits. 

E. FAA Order 2150.3B Chapter 7 and Appendix B, dated October 1, 2007 (Sanction 

Guidance). 

The Sanction Guidance contains tables that establish specific penalty ranges for 

different types of violations 

XII. Findings of Fact 

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

evidence herein, by a preponderance of the eviqynce standard, we make the following ;~ ; ' : . 

findings: 

A. N804SK/ 4464 on March 8, 2011 

1. 14 C. FR. Sections 119. 5 (g) and 119.5 0) 

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

OpSpecs. SkyWest's OpSpecs obligate the carrier to use the procedures detailed in its 

Weight & Balance Manual for loading and counting baggage. The Manual, among other 

things, directs the carrier's designated loading agent to accurately prepare the flight's 

CLR. The testimony and evidence showed that for flight N804SK/4464, SkyWest's CLR 

failed to properly reflect in the appropriate block the actual count of the different classes 

of baggage loaded onto the aircraft. The:fa,ilure

1

'to accurately prepare the CLR, it is 

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

SkyWest's actions in loading and marking the CLRs for flight N804SK/4464 also 

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

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

33 
information on the CLRs, SkyWest, a Part 121 air carrier, did not operate in conformance 

with its OpSpecs. It thus violated this section. 

2. 14 C.F.R. Sections 121.693(a), (c), and (d) 

Subsection (a) of§J21.693 requires a load manifest to contain the weight of the :! .... 1 ... iJ o-l •. :.<~·· 

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. 

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

N804SK/4464, given the weights that the qrews had recorded and believed that they were . 1,,-.;.: •.•· ... 

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

flights were unsafe in anyway. The crews' calculations were accurate as pertaining to the 

cargo and weight that they believed that they had and the calculations did not exceed the 

manufacturer's suggested limitations nor as perceived by the FAA inspectors. None of 

the flights would have been in excess ofthe manufacturer's limitations for takeoff weight, 

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

altitude. 

As noted earlier, SkyWest computed its load manifest from its CLR using its 

Manual's average weights program. SkyWest's OpSpecs required loading procedures to 

'i :,~ i 

.. ··' 

34 
follow the Manual. 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, 

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

center of gravity location fell within manufacturer recommendations and performance 

envelopes for every flight under review. 33 

Accordingly, the FAA, it is concluded, failed to prove that SkyWest violated 14 

C.FR. Sections 121.693(a), (c), and (d.) 

B. N907SW/6756 on March 9, 2011 

1. 14 C.FR. Sections IJ9.5(g) and 119.50) 

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

OpSpecs. SkyWest's OpSpecs obligate the carrier to use the procedures detailed in its 

Weight & Balance Manual for loading and counting baggage. The Manual, among other 

things, directs the carrier's designated loading agent to accurately prepare the flight's 

CLR. The testimony and evidence showed that for flight N907SW/6756, SkyWest's 

CLR failed to properly reflect in the appropriate block the actual count of the different 

classes of baggage loaded onto the aircraft. The 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 flight N907SW/6756 also 

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

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

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

Law Judge" FAA-2011-0485, FAA-2011-0486, May 2, 2013; 

35 
operating in violation of OpSpecs. By failing to set out for each flight accurate 

information on the CLRs, SkyWest, a Part 121 air carrier, did not operate in conformance 

with its OpSpecs. It thus violated this section. 

2. 14 C.FR. Sections 121.693(a), (c), and (d) 

Subsection (a) of §121.693 requires a lo.ad 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. 69 3 (d) requires that the load 

manifest containevidence 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 

pr?cedures, and that the method used insures that the center of gravity is within limits. 

The evidence shows that SkyWest followed these mandates. 

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

N907SW/6756, given the weights that the crew~;had recorded and believed that they 

were operating under, none ofthe flights exceeded maximum takeoffweight and none of 

the flights were unsafe in anyway. The crews' calculations were accurate as pertaining to 

the cargo and weight that they believed that they had and the calculations did not exceed 

the manufacturer's suggested limitations nor as perceived by the FAA inspectors. None 

of the flights would have been in excess of the manufacturer's limitations for takeoff 

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

operating altitude. 
As noted earlier, SkyWest computed its load manifest from its CLR using its 

Manual's average weights program. SkyWest's OpSpecs required loading procedures to 

follow the Manual. The load manifest, then, used approved procedures to compute the 

weight of the baggage. No violation of §§121.693(a) and (c) thus could be proven. Nor 

was a §121. 693(d) violation proven; no evidence tended to demonstrate that the approved 

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

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

center of gravity location fell within manufacturer recommendations and performance 

envelopes for every flight under review. 34 

Accordingly, the FAA, it is concluded, failed to prove that Sky West violated 14 

C.F.R. Sections 121.693(a), (c), and (d.) 

C. N973SW/6991 on March 9, 2011 

1. 14 C.FR. Sections 119.5(g) and 119.5(1) 

Section 119. 5 (g) prohibits an air carrier from operating in violation of its 

OpSpecs. SkyWest's OpSpecs obligate the carrier to use the procedures detailed in its 

Weight & Balance Manual for loading and counting baggage. The Manual, among other 

things, directs the carrier's designated loading agent to accurately prepare the flight's 

CLR. The testimony and evidence showed that for flight N973SW/6991, SkyWest's 

CLR failed to properly reflect in the appropriate block the actual count of the different 

classes of baggage loaded onto the aircraft. The failure to accurately prepare the CLR, it 

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

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

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

Law Judge" FAA-2011-0485, FAA-2011-0486, May 2, 2013; 

37 
SkyWest's actions in loading and marking the CLRs for flight N973SW/6991 also 

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

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

information on the CLRs, SkyWest;· a Part-121 :air carrier, did not operate in conformance 

with its OpSpecs. It thus violated this section. 

2. 14 C.F.R. 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 us~d in;~res th~\4 

the center of gravity is within limits. 

The evidence shows that SkyWest followed these mandates. 

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

N973SW/6991, given the weights that the crews had recorded and believed that they 

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

the flights were unsafe in anyway. The crews' calculations were accurate as pertaining to 

the cargo and weight that they believed that they had and the calculations did not exceed 

the manufacturer's suggested limitations nor as perceived by the FAA inspectors. None 

of the flights would have been in excess of the manufacturer's limitations for takeoff 

'::: \~{"...J ·., 1 .. · 

38 
weight, center of gravity, runway performance, climb performance, or maximum 

operating altitude. 

As noted earlier, SkyWest computed its load manifest from its CLR using its 

Manual's average weights program. SkyWest's OpSpecs required loading procedures to 

follow the Manual. The load manifest, then, used approved procedures to compute the 

weight 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 g:t:avitywas within approved limits. Indeed, 

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

center of gravity location fell within manufacturer recommendations and performance 

envelopes for every flight under review. 35 

Accordingly, the FAA, it is concluded, failed to prove that SkyWest violated 14 

C.F.R. Sections 121.693(a), (c), and (d.) 

D. N679SA/6960 on March 14,2011 

1. 14 C.F.R. Sections 119.5(g) and IJ9.5{l) 

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

OpSpecs. Sky West's OpSpecs obligate the cartie'r to use the procedures detailed in its 

Weight & Balance Manual for loading and counting baggage. The Manual, among other 

things, directs the carrier's designated loading agent to accurately prepare the flight's 

CLR. The testimony and evidence showed that for flight N679SA/6960, SkyWest's CLR 

failed to properly reflect in the appropriate block the actual count of the different classes 

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

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

Law Judge" FAA-2011-0485, FAA-2011-0486, May 2, 2013; . 

39 
1 

I 

of baggage loaded onto the aircraft. The failure to accurately prepare the CLR, it is 

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

SkyWest's actions in loadi;np and JP~*ing the CLRs for flight N679SA/6960 also 

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

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

information on the CLRs, SkyWest, a Part 121.air carrier, did not operate in conformance 

with its OpSpecs. It thus violated this section. 

2. 14 C.F.R. 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 ofthe 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 gra~ity i~ ~ithi~ ~pproved limits. Construing these 

subsections together, as principles of statutory construction dictate, indicates that a 

carrier's load manifest will pass muster if it has been compiled using approved 

procedures, and that the method used insures that the center of gravity is within limits. 

The evidence shows that SkyWest followed these mandates. 

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

N679SA/6960, given the weights that the crews had recorded and believed that they were 

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

flights were unsafe in anyway. The crews' calculations were accurate as pertaining to the 

cargo and weight that they believed that they had and the calculations did not exceed,the 

1t · I '/;;','!'· l:~. ·.{; ·,) 

manufacturer's suggested limitations nor as perceived by the FAA inspectors. None of 

40 
the flights would have been in excess of the manufacturer's limitations for takeoff weight, 

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

altitude . 

. As noted earlier, SkyWest computed its load manifest from its CLR using its 

Manual's average weights program. SkyWest's OpSpecs required loading procedures to 

follow the Manual. The load manifest, then, used approved procedures to compute the 

weight of the baggage. No violation of §§121.693(a) and (c) thus could be proven. Nor 

>.: '. 

was a §121. 693(d) violation proven~ no e~!d~h~e tended to demonstrate that the approved 

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

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

center of gravity location fell within manufacturer recommendations and performance 

envelopes for every flight under review. 36 

Accordingly, the FAA, it is concluded; failed to prove that SkyWest violated 14 

C.F.R. Sections 121.693(a), (c), and (d.) 

XIII. Conclusions 

Upon consideration of the totality of evidentiary facts and testimony, by a { ,' 

·, . preponderance of the evidence standard, we find: 

1. The FAA proved that SkyWest violated 14 C.F.R. Section 119.5(g), and 14 C.F.R. 

Section 119.5(1) with respect to flights N679SA/6960, N804SK/4464, 

N907SW/6756 and N973SW/6991, inclusive. 

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

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

Law Judge" FAA-2011-0485, FAA-2011-0486, May 2, 2013; 

41 
2. We find the FAA did not made a prima faCie case with respect to the violations of 

14 C.F.R. Section 121.693(a),14 C.F.R. Section 121.693(c), and/or 14 C.F.R. 

Section 121.693 (d), inclusi~e for flights N679SA/6960, N804SK/4464, 

N907SW/6756 and N973SW/6991, inclusive and those violations will be 

dismissed. 

XIV. Penalty and Mitigation Considerations 

Sky West admitted allegations as set forth hereinabove. 

We found the violations of 14 C.F.R. Section 119.5(g), and 14 C.F.R. Section 

119.5(1) for flights N679SA/6960, N804SK/4464, N907SW/6756 and N973SW/6991, 

inclusive. 

We found the FAA failed to make a prima facie case with respect to the violations 

of 14 C.F.R. Section 121.693(a),14 C.F.R. Sectiqn 121.693(c), and/or 14 C.F.R. Section 

:-

121.693(d), inclusive for flights N679SA/6960, N804SK/4464, N907SW/6756 and 

N973SW/6991, inclusive. 

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

$40,000 was appropriate in each violation. 

We notein FAA 2011-0485, the FAA sought a civil penalty of$99,000. In FAA 

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

sought a civil penalty of $33,000 

SkyWest was cooperative and responsive to FAA concerns. 

The FAA had a cooperative working relationship with Sky West. 

42 
Once notified of the violations, SkyWest took swift, comprehensive corrective 

action including implementation of an SMS after the 2011 incidents as set forth in 

testimony before the court and SkyWest's Post Hearing Brief. 

The FAA argued, and SkyWest admitted, that SkyWest paid civil penalties in 

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

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

·;c, 

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

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

establishing an appropriate civil penalty, we cannot ignore our role to evaluate the 

testimony and evidence. 

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

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

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

1. 17.). 

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

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

document that was computed by the flight ere~ ~nd used by them to evaluate how their 

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

that SkyWest failed to follow the scheme of its Weight & Balance Manual in deriving its 

load manifests. In fact the evidence showed that SkyWest's load manifest calculations 

were in accordance with its OpSpecs and Manual instructions in every instance. In 

addition, SkyWest implemented a new Safety Management System to address the 

violations. 

43 
We find further that just one civil penalty per flight is appropriate. To assess a 

civil penalty based on the multiple violations pet flight found is, under the circumstances, 

unfair, unwarranted, and disproportionate to the offenses. 

The two sections violated in each instance, 14 C.F.R. §§119.5(g) and 119.5(!), are 

not significantly different. The first prohibits operation as a direct air carrier in violation 

ofOpSpecs; the second prohibits operating under Part 121 in violation ofOpSpecs. The 

distinction between the two provisions for the present purposes is inconsequential. As 

such, penalizing SkyWest for both violations would be unjustified. We note that the 

agency's civil penalty guidelines, FAA Order 2150.3B, take a similar stance: they advise 

that "[w]hen a single instance of noncompliance results in multiple violations of general 

and specific regulations involving the same or similar conduct, the FAA ordinarily does 

not compound the sanction ... " (FAA# C~4o,-p.7-10). Under these circumstances, one 

civil penalty- in a minimal amount of $250 per violation- suffices. 

In sum, we find that the civil penalty appropriately accounts for the factors the 

statute and agency policy directs in fixing the assessment. 

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

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

WHEREFORE, evidence and testimony having been heard and considered it be 

and is hereby ORDERED as follows: 

1. We reaffirm our ruling and SkyWest's objection to the FAA's proffer of 

testimony from Ayers for reasons set forth hereinabove SkyWest's objection be 

' ... : -'i' 

and is hereby sustained. The testim~ny was not received. 

44 
2. Sky West Airlines, Inc. be and is hereby assessed a civil penalty of $250.00 tor 

violations of 14 C.F.R. Section 119.5(g), and 14 C'.F.R. Section 119.5(1) for 

flights for flights N679SA/6960, N804SK/4464, N907SW/6756 and 

N973SW/6991, inclusive tor a total of$1,000.00; and 

3. We find the FAA did not made a prima facie case with respect to the violations of 

14 C.F.R. Section 121.693(a),14 C.F.R. Section 121.693(c), and/or 14 C.F.R. 

Section 121. 693(d), inclusive for flights N679SA/6960, N804SK/4464, 

N907SW/6756 and N973SW/6991, inclusive and those violations be and are 

hereby DISMISSED. 

Richard C. Goodwin 

U.S. Administrative Law Judge 

Attachment - Service List 

45 
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 2W10001 

Todd C. Emerson, Respondent's Counsel 

Director - Government and Legal Affairs 

SkyWest Airlines 

444 South River Road 

St. George, UT 84 790 

TEL: 435-634-3530 

FAX: 435-634-3505 

ONE COPY 

Jeffrey M. Harper, Complainant's Counsel 

Attorney, Office of Regional Counsel 

Northwest Mountain Region, ANM-7 

Federal Aviation Administration 

1601 Lind Avenue, S.W. 

Renton, W A 98057 

TEL: 425-227-2161 

FAX: 425-227-1007 

The Honorable Richard C. Goodwin, Administrative Law Judge 

Office of Hearings, M-20 · 

U.S. Department ofTransportation 

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

Washington, DC 20590 

TEL: 202-366-2139 Attorney-Advisor 

202-366-5121 Staff Assistant 

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 2W 1000, Washington, 

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