# .• 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 ACARS
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 ofFederal Regulations Cargo Load Report Certificate Management Office Center ofGravity City ofColorado Springs Municipal Airport, Colorado Springs, ColoradoDEN 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 LAXto LAS on March 8, 2011 SkyWest flight from ORD to COS on March 9, 2011 SkyWest flight from ORD to COS onMarch 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 PartXII SP 4100
2II. Introductory Comment This case was consolidated with other cases with similar facts, issues and defenses by consent ofthe parties. 1 This case involved several SkyWest Airlines, Inc. (hereinafter "Sky West") flights, including: SkyWestN804SK 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.
SkyWestN907SW operated as Flight 6756 (hereinafter "N907SW/6756") from Chicago O'Hare International Airport (hereinafter "ORD") to City ofColorado 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.
SkyWestN679SA 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 DocketNumbers 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. 3III. Procedural History On July 26, 2012, Sky West Airlines, Inc., was advised through a Final Notice of Proposed Civil Penaltythat 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 writtenrequest for hearing. OnAugust 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 ofthe FARs, similar issues and similar defenses ofSkyWest. IV. Hearing A hearing was held in Salt Lake City, UT., on May 19,2014 onthe consolidated
cases. The FAAwas represented by Jeffrey Harper, Esq., FAA Office ofRegional Counsel, Renton, Washington. SkyWest was representedby Michael L. Dworkin, Esq., ofDworkin & Associates, SanFrancisco, California 94104 and Todd C. Emerson, ESQ., General Counsel, SkyWest Airlines, St. George, Utah. Posthearing briefs were filed by both parties. The matter is now ready for decision.

4V. Jurisdiction SkyWest was at all times material hereto the holder ofScheduled Air Carrier Certificate No. SW1A011A, and conducted its operations pursuantto Part 121 ofthe Federal Aviation Regulations (FAR) and was subjectto those regulations. :.i; 

### VI. Burden ofProof The FAA was the petitioningparty withthe initialburden ofproof(14 

### C.FR. 

### § 13.224). VII. Allegations A. The FAA'srecitation offacts The FAA alleged: Section II (F·AA's Complaint) 1. Sky Westwas at all times material the holder ofScheduled Air Carrier Certificate No. SWIA011A and conducted its operations pursuant to Part 121 ofthe Federal Aviation Regulations

**(hereinafte~** "F 

### AI\-:;). 2. Paragraph D085 ofSkyWest's Operations Specifications (hereinafter "OpSpecs") authorized SkyWestto use N679SA, a Bombardier CL-600-2B19 civil aircraft in the conduct ofSkyWest's Part 121 operations. 3. Paragraph D085 ofSkyWest's OpSpecs authorized SkyWestto useN907SW, a Bombardier CL-600-2B19 civil aircraft the conduct ofSky West's Part 121 operations. 4. Paragraph D085 ofSkyWest's OpSpecs authorized SkyWestto useN973SW, a Bombardier CL- 600-2B 19 civil aircraft, in the conduct ofSky West's Part 121 operations.
55. Paragraph D085 ofSkyWest's OpSpecs authorized SkyWestto 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 ofSkyWest'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. SkyWest'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 100 pounds. 11. SkyWest's W&B Manual, Chapter 3, paragraph 2.D.l required the loading agent to mark the number ofstandard 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 agentto verify the piece count ofall '"Standard Checked", 'Heavy Checked" and planeside "Loaded/Service Item Baggage" upon completion ofloading.

6"•13. SkyWest's W&B Manual, Chapter 4, paragraph 8.9 required the loading agentto write the total number ofHeavy Checked Baggage loaded in each cargo bin onthe 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'spersonnel at LAX loaded two (2) Heavy Checked Bags, marked with "Heavy Bag" tags onto N804SK/4464. 17. The CLRfor N804SK/4464listed-zero (0) Heavy Check Bags on board i' .., ., .

**~··** .. N804SK/4464. 18. SkyWestthereafter operatedN804SK/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.
721. The CLR for N907SW/6756 listed zero (0) Heavy Check Bags onboard N907SW/Flight 6756. 22. Sky Westthereafter operatedN907SW/6756 from ORD to COS. SectionV (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 CLRfor N973SW/6991listed zero (0) Heavy Check bags on board N973SW/6991. 26. SkyWest

**therea,fte~** operatedN973SW/6991 from ORD to COS, Section VI (FAA's Complaint) N679SA/6960 onMarch 14,2011 27. On March 14,2011, at DEN, SkyWest loaded passengers andbaggage onto N679SA/6960 bound for FSD. 28. SkyWest's personnel at DEN loaded one (1) Heavy Checked Bag, marked with a "Heavy Bagtag, onto N679SA/6960. 29. The CLRfor N679SA/6960 listed zero (0) Heavy CheckBags onboard N679SA/6960. 30. SkyWestthereafter operatedN679SA/6960 from DEN to FSD. Section VII (FAA's Complaint)

8SkyWesthas paid civil penalties in eight (8) previous cases involving loading of cargo contrary to approved procedures. SectionVIII (FAA's Complaint) Byreason ofthe 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 ofits OpSpecs.
c. 14 C.F.R. Section 121.693(a), in that SkyWest operated flights without a

. load manifest that accurately reflected the weight ofthe cargo and

baggage. d. 14 C.F.R. Section 121.693(c), in that SkyWest operated flights when the total weight ofthe aircraft was not computed under approved. procedures.
e. 14 C.F.R. Section I

**~1.**693 (,d), 

# in that SkyWest operated flights whenthe aircraft was not loaded according to an approved schedule. In accordance with 49 UnitedStates Code (hereinafter "U.S.C.") Sections 46301(a) and (d) (Transportation) SkyWest was liable for a civil penalty notto exceed $27,000 for each ofthe violations noted. The FAA alleged underthe facts and circumstances ofthis case a civil penalty of$160,000 was appropriate. B. SkyWest's recitation offacts Answering Section I ofthe Complaint, SkyWest averred:

..... \.t. 9 '):,.\.• ·":.SkyWest admitted that it was advised through a Final Notice ofProposed Civil Penalty thatthe FAAproposed to assess a civil penalty in the amount of $160,000, and onAugust 8, 2012 SkyWest submitted a writtenrequest for a hearing. Answering Section II ofthe Complaint, SkyWest averred: 1. In response to Paragraph 1, SkyWest admitted that it was at all times material hereto, the holder ofScheduledAir Carrier CertificateNo. SWIA011A, and conducted its operations pursuant to Part 121 oftheFAR. 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 admittedthat Paragraph D085 of SkyWest's OpSpecs authorized SkyWest to use N907SW, a Bombardier CL600-2B 19 civil aircraft, in the conduct ofSky 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 SkyWestto 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-

102Bl9 aircraft be accomplished in accordance with SkyWest's W&B Manual, "SP4100, Part XII, revision Orig. of 1APR 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, "SP4100, Part XII, revision Orig. of 1APR 10". 8. In response to Paragraph 8, SkyWest admitted that its W&B Manual contained the loading schedules and instructions for SkyWest's Bombardier CL-600-2B19 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 admittedthat 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 markthe number ofstandard and heavy bags on the Cargo Load Report (CLR). 12. Inresponse 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 ofall "Standard Checked", "Heavy Checked", and planeside "Loaded/Service Item Baggage" upon completion ofloading.·.·, 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 ofHeavy Checked Baggage loaded in each cargo bin on the CLR inthe "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 orknowledge from which to form a beliefas to the truth ofthe allegation that SkyWest's personnel at LAXloadedtwo (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 operatedN804SK/4464 from LAX to LAS.

12Answering Section IV ofthe Complaint, SkyWest averred: N907SW/6756 onMarch 9, 2011 19. In response to Paragraph 19, SkyWest 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 beliefas to the truth ofthe 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 CLRfor N907SW/6756 listed zero (0) Heavy Check Bags onboard. 22. In response to Paragraph 22, SkyWest admitted that it operated N907SW/6756 from ORD to COS. Answering SectionV ofthe Complaint, SkyWest averred: N973SW/Flight 6991 onMarch 9, 2011 23. Inresponse 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. Inresponse to Paragraph 24, SkyWest averred it was without sufficient information or knowledge from which to form a beliefas to the truth ofthe allegationthat personnel at ORD loaded two Heavy Check Bags, marked with ·"Heavy Bag" tags onto N973SW/Flight 6991, and therefore denied the same.
1325. Inresponse to Paragraph 25, SkyWest admitted that the CLRfor N973SW/Flight 69911isted zero (0) Heavy Check Bags onboard. 26.Inresponse to Paragraph 26, SkyWest admitted that it operated N973SW/Flight 6991 from ORD to COS. Answering Section VI ofthe Complaint, SkyWest averred: N679SA/Flight 6960 on March 14, 2011 27. Inresponse 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 beliefas to the truth ofthe allegationthat Sky West's personnel at DEN loaded one (1) Heavy Checked Bag, marked with a "Heavy Bag" tag onto N679SA/6960, andtherefore denied the same. 29. In response to Paragraph 29, SkyWest admitted that the CLRfor N679SA/6960 listed zero (0) Heavy Check Bags onboard. 30. In response to Paragraph 30, SkyWest admitted that it operatedN679SA/6960 from DEN to FSD. Answering Section VII ofthe Complaint, SkyWest averred: Inresponse to Paragraph 31, Sky West admitted it paid reduced civil penalties on eight (8) previous cases involving loading ofcargo contrary to approved procedures. Answering Section VIII ofthe Complaint, SkyWest averred:
14SkyWest generally denied all remaining allegations set forth inthe 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 offlightsN804SK/4464, N907SW/6756, N973SW/6991 and/orN679SA/6960 according to the facts alleged by the FAA. Underthe facts and circumstances ofthis case, was a civil penalty of$160,000 appropriate. IX. Summary ofTestimony and Bvidencf··· · All admittedtestimonial and documentary evidence was reviewed and considered. Only briefhighlights are summarized herein. A. FAA's Case Steven Harvey Allen Steven Harvey Allen (hereinafter "Allen") had twenty (20) years ofexperience as
a flight instructor and airline pilot inboth 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 hadbeen with the FAA since 2002 and had worked onthe SkyWest certificate for approximately ten (10) years. 2 OnMarch 8, 2011, Allen was performing an Element Performance Inspection (hereinafter "EPI") on inbound flight N804SK/4464 at LAS from LAX. As part ofthe inspection he counted the number ofheavybags coming offN804SK/4464 while standing at the bottom ofthe belt atthe aft cargo area. There were two (2) heavy bags marked with orange tags affixed to the luggage. Allen obtained a copy ofthe CLRfor the inbound PIC which he identified as FAA# C-5. 3 Allenthen identified pictures ofthe tags onthe luggage from inbound N804SK/4464.4 Allen testified the number ofbags he counted on inboundN804SK/4464 were not the same number ofbags reflected onthe CLR for N804SK/4464. The CLR for N804SK/4464 reflected no heavybags.5 Cross Allen testifiedphotograph FAA# C-5 was ofthe crew copy ofthe CLR. The CLR is a two part form, with one copy going with the crew and the other remaining atthe station. Allen did not obtainthe station copy ofthe CLR. Allen did not have the station copy and couldnotrecall what was onthe back side ofthe station copy ofthe 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. ., , '\.

16Redirect 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, McKennaperformed cargo handling surveillance on SkyWest flights at FSD. As part ofthat surveillance he did a baggage count ofbags on N679SA/6960. McKennaidentified one (1) heavy bag whichhad an orange tag on it. McKenna subsequently obtained a copy ofthe CLRfrom the flight crew, but did not get the original from the originating station DEN. McKenna identified FAA# C-13 as a copy ofthe CLR for N679SA/6960. McKenna identified FAA# C-15 as a photograph ofthe bag in question. McKenna

**t~stified** the CLR did notreflect the number ofheavy bags observed onN679SA/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 ofthe 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' .. , 17On March 9, 2011, Benallo performed surveillance at COS including a bag count
onN907SW/6756. Benallo counted one (1) heavy bag identified with an orange tag. He obtained a copy ofthe CLR (FAA# C-8) and ACARS (FAA# C-9) load manifest for N907SW/6756 and tookpictures ofthe heavy bag (FAA# C-10). The baggage count on the CLRfor N907SW/6756 did not match up with the number ofbags counted coming offthe 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 ofthe load manifest for N679SA/6960 on March 14, 2011 (FAA# C-14). 13 Cross Benallo identified FAA# C-8 as the yellow copy ofCLRtaken 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 ofthe backside ofFAA# C-11. The terms 'dispatchrelease', 'flightrelease', the 'loadmanifest' 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. 18Redirect Benallo clarified that the 'flightrelease' flight releases contained the gross takeoff weight ofthe aircraft for the flight in question (Tr. p. 164,_ll. 9-13). Andrew James Ayers15 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 ofthe cases inthe 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 withthe 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 ofthe authorizations and approvals for SkyWest's operational needs. He oversaw compliance, authorizations for SkyWestprograms, and scheduled surveillance and follow-up. He had an airline transport pilot certificate withtype ratings in the EMB-120 and CL-65 series aircraft. He hadtraining as an Aircraft Safety Inspector (hereinafter "ASI"). He received generalized weight andbalance training that was applicable to any pilot flying any sort ofaircraft 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 bythe court as an expert in the field ofaircraft weight and balance. Ayers explainedthe CLR was a tally worksheet for computing the loads or the weight ofcargo 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 ofthirty (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 ofSkyWest weight and balance program, heavy bags were assigned a weight ofsixty (60) pounds. Plane side loaded valetbags
were assigned a weight ofthirty (30) pounds which included a weightrange do ofzero (0) to fifty (50) pounds. Ayers testifiedthe load manifest contained the total weights for aircraft flights. 16 Ayers described SkyWest's "Weight and Balance Handbook" as a general bookwhich containedbothbackground 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. Italso described hazards associated with improper weight and balance. The FAAproffered evidence ofa prior aircraft accident under Part 121 where weight and balance was a causal factor. We sustained an objectionto the testimony and reaffirm ourruling. 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 informationwas 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 inthembeingunable to detect an aft CG ...the aircraft in question stalled shortly after takeoffand

**cra~_hed,.k~lling~~ll** persons aboard... "
.·'-
.... ' The proffer offered no testimony ofthe type aircraft; when or where the accident occurred; weather conditions; flight conditions; what information was incorrectly provided; weight and balance program ofthe 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. 

### 20which would show any relevance to the facts ofthis case. We reaffirm our ruling andthe objection was sustained. The testimony was not received. Ayers testified about exhibits

**asso~tate~;with** specific flights: N804SK/4464 17 Ayers testified the weight ofthe cargo calculated using the CLR, was the same weight as was onthe load manifest for that flight, butthe load manifest was incorrect. If the load manifestwas incorrect, the performance dataused for the flight was also incorrect. N907SW/675618 Ayers testified the weight listed onthe load manifest matched the weight calculatedusing the CLR (FAA# C-8). However, the load manifest was incorrect, so the performance dataused for the flight was also incorrect. N973SW/6991 19 Ayers testified the weight listed on the load manifest matchedthe weight calculated using the CLR (FAA# C-11). However, CLRwas inaccurate and didn't reflect the actual aircraft loading, which inferred the load manifest was incorrect. Therefore, the performance dataused in the conduct ofthe flight was incorrect. N679SA/696020 Ayers testifiedthe weight listed onthe load manifest for this flight, matchedthe weight calculated based on the data contained in the CLR (FAA# C-13). However, CLR
was inaccurate and didn'treflect 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 ofthe examinations. 18 Tr. p. 202, I. 1top. 202, 1. 14. 19 Tr. p. 202, I. 15 top. 203, I. 8. 20 Tr. p. 203, I. 9 top. 204, 1. 3. 21manifest was incorrect. Therefore, the performance dataused inthe conduct ofthe flight
was incorrect. Ayers further testified that in a couple ofthe cases21 where the load manifest weight matched the CLRthere was still a violation ofthe approved programbecause the program described procedures for completion ofthe 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. '·' workalso had to be correct. Ayers testified he believed there was an unknown impact on safety posedbythese discrepancies, butthat he was not surprised thatthe aircraft were operated within their weight and balance envelope?2 Cross23 Ayers testified the front side ofthe CLR worksheet was where the math was tallied up while the back side ofthe CLR was the worksheet to assist the loading agents in counting. Ayers admitted that as part ofthe investigation it would have been beneficial to have copies ofthe backside ofthe CLR. Ayers admittedhis 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 oftools and programs that allowed SkyWestto identify risks and mitigate those risks withprocesses and procedures inplaceto identify howthey 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. 22with

**Cat~gory** I being non-safety related. SkyWest implemented an SMS after the 2011 incidents. Redirect24 Ayers testified both copies ofthe CLR should be updated with any last minute changes. Ifthe 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. Ifa live animal was on board, that was required to bereflected onthe CLR. Recross25 Ayers testified live animals, as baggage, were assigned a weight ofthirty (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 ofFAA# 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 apart ofthe administrative record. B. SkyWest's' Case Carl Salamone, deposition transcript, 2014050626 The testimony ofCarl Salamone (hereinafter "Salamone") was taken by deposition (SW# 3-3) and introduced into the

**re~ord** by agreement ofthe 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. 23Counsel for bothparties were present at the deposition. Salamone's testimony was applicable to all ofthe cases in the consolidated docket. Salamone hadbeen a pilot for SkyWest 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 ofaircraft. He had 4200 flight hours, ofwhich 3200 were in CRJs. He had a Bachelor ofScience degree in electrical engineering and a Bachelor of Science degree in aviation human factors, from the University ofIllinois. Aviation human factors was the study ofhuman factors principles in research and psychology as itrelated specifically to aviation in the human elements ofaviation safety, including weight and balance systems. For five (5) years he had been a member ofa special projects group which, among other things, involved analysis ofweight 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 ofcalculation of aircraft weight and balance and the effects ofthat weight and balance onthe aircraft performance. Salamone reviewed SW# R-1, a weight and balance analysis covering arecreation ofthe fourteen (14) flights based onthe data available to him on weight and balance as calculated by the crew and also the alleged weight and balance as itwould
24have been observedby an inspector(s) for each ofthe 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, ifavailable, 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 seriesjets to determine performance and the weight and balance inthat respect. He also took into accountrunway length, air temperature and fuel weight. Aircrafttakeoffweight was defined as the gross weight ofthe aircraft in the takeoffconfiguration, as it would begin the takeoffsegment ofthe flight. Itwas the full weight ofthe airplane immediately priorto beginning takeoff, including passengers, cargo, ballast, et al. AircrafttakeoffCenter of



## G~avity **(herei~after** "COG") was the location ofthe center ofgravity at a pointon 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. Itwas a single point like a teeter-totter, where that airplane wouldbalance on one particularpoint where the weight was mathematically
seen onthat location onthe airplane. COG was important for stability reasons, for control reasons, and it was reallyjust a major part ofthephysics offlight, 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 meantthat the ;

**~** . ; . . , , I airplane would notbe too heavy to meet its performance requirements and performance planning. An airplane was operated at a weightthatwould ensure thatthe runway was
25adequate, that the climbing performance was adequate, and that 

### itwould be able to obtain its operating altitude for all phases offlight 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 thatthey were operating under, none of the flights exceeded maximum takeoffweight and none ofthe flights were unsafe in anyway. In Salamone's opinion, taking into account the additional weights observed bythe FAA inspectors, none ofthe 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 ofthose factors, either as calculated by the SkyWest crews at the time or adjusting for the observed variations by FAAinspectors, in Salamone's opinion, none ofthe flights would have been in excess ofthe manufacturer's limitations for takeoffweight, center ofgravity, 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 presentinthe cargo compartment, while zero heavy bags were accounted for
on the CLR. Forthis particular flight, he do not have a total piece count. So, itwas not possible to determine ifthese two (2) heavy bags were counted as standard bags on the CLR or hadjustnot been counted at all. The weight discrepancy, depending on whether

27 Tr. p. 252, I. 7 top. 254, I. 2; Tr. p. 273, I. 5top. 275, I. 8. Incorrectly referred to as "March 8, 2011 Flight4461 aircraft tail number N804SK" in the transcript. Tr. p. 252, II. 10-13 andportions ofthe examinations. 

### 26or notthey had been counted as a standard itemor not, the maximum discrepancy here couldhave beenup to 120 pounds additional weight as observed which did not fall outside the acceptable takeoffweight and was well withinthe manufacturer's specified COG envelope. N907SW/675628 AnalyzingN907SW/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 onthe CLR. There was no record ofthe total piece count. Itwas not possible to determine ifthis heavy bag thathad been observed was a part ofthe standard count or not. The total discrepancy would have been either 30 or a maximum of60 pounds deviation from the CLR, which would nothave had a noticeable impact onthe COG or aircraft weight limitations. Salamone assumed the aircraft would operate without any problems and the flight crew wouldhave been unaware ofthe discrepancy. N973SW/6991 29 Salamone saidN973SW/6991, had two (2) heavy bags observed bythe 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 ornot those bags hadbeen included as standard bags. N973SW/6991 wouldnothave movedthe COG out ofthe envelope, exceeded the maximumtakeoffweight, or exceeded limitations set onthe aircraft bythe manufacturer under these



### ~ortditi~.ris. The flight crewwould nothave 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. 27N679SA/696030

-,! Salamone saidthe FAAreportedthat one (1) heavy bag was present in the cargo compartment, while zero heavy bags were accounted for onthe CLR onN679SA/6960. He was unable to tell ifthis 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 whatthe flight crewhad planned onthe load i 1 lA. .::·.·: manifest. This wouldnothave movedthe COG out ofthe acceptable envelope, would nothave impacted maximum takeoffweight, or fuel planning. Fuel planning for all the CJRs involved would have beenvery close. The additional weight may have caused a slight increase in fuel usage,justbecause it costs
more to fly around the extraweight. However, SkyWest has a policy ofadding contingency fuel that was above and beyond the federal required fuel and any nominal increase in bumwouldhave been accounted for andincluded inthat contingency fuel. It would nothave impacted safety. Salamone described the human factors involved in loading an airplane and counting bags. He describedthe most difficult aspect ofaircraft loading and baggage 1 ·-·..... ·r i.,.··, handling as having to do withthe



### e~viro~ent'around which itis centered. The ramp environment mayhave temperature swings; itmayhave noise and vibration. Itcould have light, darkness issues, as well a flurry ofactivity making focus difficult for that particular employee. Itwas a very active areathat could cause, perhaps, a pause in counting orbags arriving at different times from different connecting flights. Salamone described that humans have a difficult time inherently with counting, and whenyou

30 Tr. p. 257, I. 18 top. 259, I. 22. 28throw in some difficult environmental factors, 

### it makes thattask even more difficult. Salamone was notparticularly



### surp~ised atbag 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 speedto become airborne, had a lower rate ofclimb, a lower angle ofclimb, 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 ofthe aircraft would effect performance. The CLRis one ofthe documents used to generate the load manifest. The load manifest was the document that contained the aircraft gross weight and center ofgravity location, '• ,, which was then used to determineperformance requirements. Christopher C. Brown32 Christopher C. Brown (hereinafter "Brown") was the. Director ofAircraft 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 hadbeenin 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'stestimony was·:applfcable

# tb"all ofthe 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. 

### 29Browntestified 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 inbag counting. The proposal would artificially add a specific amount ofweight to the basic operating weight ofeach aircraft. In doing so, the performance calculations wouldbeperformed as ifthe weight was physically onboard the aircraft, eventhough, in most cases, the weightwould 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 withinthe manufacturer's operating envelope. Browntestified the proposal was similar to a program implementedby 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 ofall witnesses to have beentruthful and credible. X. BriefSummary ofEvidence 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 onboard N804SK/4464. SkyWest thereafter operatedN804SK/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 onboard N907SW/Flight 6756. Sky West thereafter operatedN907SW/6756 from ORD to 

## cos. N973SW/6991 onMarch 9, 2011 ' ..'1 .

**·:\~** .._l(· ,.\ t On March 9, 2011, at ORD, SkyWestloadedpassengers 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 Checkbags onboardN973SW/6991. SkyWestthereafter operatedN973SW/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 CLRfor N679SA/6960 listed zero (0) Heavy Check Bags onboard

**~** ' ' N679SA/6960. SkyWest thereafter oJeratedN679SA/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 ofreliable, probative, and substantial evidence 14 C.F.R. § 13.223. B. 49 US.C. Sections 46301(a) and (d) (Transportation) provide for the imposition ofcivil penalties in FAA cases.

. A person is liable to the United States Government for a civil penalty ofnot more than $25,000 for violating
.. , (B) a

**regu~ation** prescribed or order issued under any provision to which clause (A) ofthis 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 ofwhich 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, andprohibitions. 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 inviolation of, an appropriate certificate and appropriate operations specifications. No person may operate as a direct air carrier or as a commercial operator in violation ofany deviation or exemption authority, ifissuedto that person orthatperson's representative. 2. 14 C.F.R. Section 119.5(1), provides: No person may operate an aircraftunder this part, part 121 ofthis chapter, orpart 135 ofthis chapter in violation

### ofan

**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 ofthe airplane at takeofftime: 1. 14 C.F.R. Section 121. 693(a), provides: The weight ofthe 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 thatthe aircraft is loaded according to an approved schedule that insures thatthe center ofgravity 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 ofviolations 

### XII. Findings ofFact After consideration and review ofall the evidentiary facts, testimony and evidence herein, by a preponderance ofthe eviqynce standard, we make the following

**;~** ; ' :. findings: A. N804SK/ 4464 onMarch 8, 2011 1. 14 C.FR. Sections 119.5(g) and 119.50) Section 119.5(g) prohibits an air carrier from operating in violation ofits 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 agentto accurately prepare the flight's CLR. Thetestimony and evidence showed that for flight N804SK/4464, SkyWest's CLR failed to properly reflect inthe appropriate blockthe actual count ofthe different classes ofbaggage loaded onto the aircraft. The:fa,ilure1 'to accurately prepare the CLR, it is concluded, constitutes a violation of§ 119.5(g). SkyWest's actions inloading and marking the CLRs for flight N804SK/4464 also constituted a violationofFAR §119.5(!). This sectionprohibits Part 121 air carriers from operating inviolation ofOpSpecs. By failing to set out for eachflight accurate 33information on the CLRs, SkyWest, a Part 121 air carrier, did not operate in conformance with its OpSpecs. Itthus violatedthis section. 2. 14 C.F.R. Sections 121.693(a), (c), and (d) Subsection (a) of§J21.693requires a load manifestto containthe weight ofthe :!
.... 1

...iJ o-l •.

**:.<~··** cargo and baggage. Subsection (c) compels the use of"approvedprocedures" in computing the total weight ofthe aircraft. Section 121.693(d) requires that the load manifest contain evidence that the aircraftwas loaded according to an approved schedule which insures that the center ofgravity is within approved limits. Construing these subsections together, as principles ofstatutory construction dictate, indicates that a carrier's load manifestwill pass muster ifit has been compiledusing approved procedures, and thatthe method used insures that the center ofgravity 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 hadrecorded and believed thatthey were

. 1,,-.;.: •.•· ... operating under, none ofthe flights exceeded maximum takeoffweight and none ofthe 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 bythe FAAinspectors. None of the flights would have been in excess ofthe manufacturer's limitations for takeoffweight, center ofgravity, runway performance, climb performance, ormaximum operating altitude. As noted earlier, SkyWest computed its loadmanifest from its CLRusing its Manual's average weights program. SkyWest's OpSpecs required loading procedures to 'i

**:,~** i

.. ··'

34follow the Manual. The load manifest, then, used approved proceduresto computethe weight ofthebaggage. No violation of§§121.693(a) and (c) thus couldbe proven. Nor
was a §121.693(d) violation proven; no evidence tended to demonstrate thatthe approved method failed to insure thatthe center ofgravity was within approved limits. Indeed, Salamone's testimony and accompanying evidence suggestedthat the aircraft weight and center ofgravity location fell within manufacturer recommendations and performance envelopes for every flight under review.33 Accordingly, the FAA, it is concluded, failed to prove that SkyWestviolated 14 C.FR. Sections 121.693(a), (c), and (d.)

B. N907SW/6756 onMarch 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 ofits 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 agentto accurately preparethe flight's CLR. The testimony and evidence showedthat for flight N907SW/6756, SkyWest's CLRfailed to properly reflect inthe appropriate blockthe actual countofthe different classes ofbaggage loaded onto the aircraft. Thefailure to accurately prepare the CLR, it is concluded, constitutes a violation of§119.5(g). SkyWest's actions inloading and markingthe CLRs for flight N907SW/6756 also constituted a violation ofFAR §119.5(!). This sectionprohibits Part 121 air carriers from

33 See In the Matter ofSkyWestAirlines, Inc., "Initial Decision ofAdministrative Law Judge" FDMS Nos. FAA-2011-0779, May 2, 2013; In the Matter ofSkyWestAirlines, Inc., "Initial Decision ofAdministrative Law Judge" FAA-2011-0485, FAA-2011-0486, May 2, 2013; 35operating in violation ofOpSpecs. By failing to set out for each flight accurate information on the CLRs, SkyWest, a Part 121 air carrier, did notoperate 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 manifestto containthe weight ofthe cargo and baggage. Subsection (c) compels the use of"approvedprocedures" in computingthe total weight ofthe aircraft. Section 121. 693(d) requires that the load manifest containevidencethatthe aircraft was loaded according to an approved schedule which insures thatthe center ofgravity is within approved limits. Construingthese subsections together, as principles ofstatutory construction dictate, indicates that a carrier's load manifest will pass muster ifit has been compiledusing approved pr?cedures, and thatthe method used insures thatthe center ofgravity is within limits. The evidence shows that SkyWest followed these mandates. Salamonetestified that for the fourteen (14) flights he reviewed, including N907SW/6756, given the weights thatthe

**crew~;had** recorded and believed thatthey
were operatingunder, none ofthe flights exceeded maximumtakeoffweight and none of the flights were unsafe in anyway. The crews' calculations were accurate as pertaining to the cargo and weightthat they believed thatthey had and the calculations did not exceed the manufacturer's suggested limitations nor as perceivedby the FAAinspectors. None ofthe flights would have been in excess ofthe manufacturer's limitations for takeoff weight, center ofgravity, runway performance, climb performance, ormaximum operating altitude.As noted earlier, SkyWest computed its load manifest from its CLRusing 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 couldbe proven. Nor
was a §121. 693(d) violation proven; no evidence tendedto demonstrate thatthe approved method failed to insure thatthe center ofgravity was within approved limits. Indeed, Salamone'stestimony and accompanying evidence suggested thatthe aircraft weight and center ofgravity location fell within manufacturer recommendations and performance envelopes for every flight underreview. 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 onMarch 9, 2011 1. 14 C.FR. Sections 119.5(g) and119.5(1) Section 119.5(g) prohibits an air carrier from operating in violation ofits OpSpecs. SkyWest's OpSpecs obligate the carrier to use theprocedures detailed inits Weight & Balance Manual for loading and countingbaggage. The Manual, among other things, directs the carrier's designated loading agentto accurately prepare the flight's CLR. The testimony and evidence showedthat for flight N973SW/6991, SkyWest's CLRfailed to properlyreflect in the appropriate blockthe actual count ofthe different classes ofbaggage loaded onto the aircraft. The failure to accurately preparethe CLR, it is concluded, constitutes a violation of§ 119.5(g).

34 See In the Matter ofSkyWestAirlines, Inc., "Initial Decision ofAdministrative Law Judge" FDMS Nos. FAA-2011-0779, May 2, 2013; In the Matter ofSkyWestAirlines, Inc., "Initial Decision ofAdministrative Law Judge" FAA-2011-0485, FAA-2011-0486, May 2, 2013; 37SkyWest's actions in loading and marking the CLRs for flightN973SW/6991 also constituted a violation ofF AR §119.5(l). This section prohibits Part 121 air carriers from operating in violation ofOpSpecs. 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. Itthus violatedthis section. 2. 14 C.F.R. Sections 121.693(a), (c), and (d) Subsection (a) of §121.693 requires a load manifest to containthe weight ofthe cargo and baggage. Subsection (c) compels the use of"approvedprocedures" 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 thatthe center ofgravity is within approved limits. Construing these subsections together, as principles ofstatutory construction dictate, indicates that a carrier's load manifestwill pass muster ifit has been compiledusing approved procedures, and that the method



## us~d**in;~res th~\**  **4**the center ofgravity is within limits. The evidence shows that SkyWest followed these mandates. Salamone testified that for the fourteen (14) flights he reviewed, including N973SW/6991, giventhe weights that the crews had recorded andbelieved that they
were operatingunder, none ofthe flights exceeded maximum takeoffweight and none of the flights were unsafe in anyway. The crews' calculations were accurate as pertainingto the cargo and weightthat they believedthat they had andthe calculations did not exceed the manufacturer's suggested limitations nor as perceived bythe FAAinspectors. None ofthe flights wouldhave been in excess ofthe manufacturer's limitations for takeoff

':::

**\~{"...J** ·., 1
.. · 38weight, center ofgravity, runway performance, climb performance, ormaximum operating altitude. As noted earlier, SkyWestcomputed its load manifest from its CLRusing its Manual's average weights program. SkyWest's OpSpecs required loading procedures to follow the Manual. The load manifest, then, used approvedprocedures to compute the weight ofthebaggage. No violation of§§121.693(a) and (c) thus couldbe proven. Nor
was a §121.693(d) violation proven; no evidence tended to demonstrate thatthe approved method failed to insure thatthe center ofg:t:avitywas within approved limits. Indeed, Salamone'stestimony and accompanying evidence suggestedthat the aircraftweight and center ofgravity location fell within manufacturer recommendations andperformance envelopes for every flight under review.35 Accordingly, the FAA, it is concluded, failed to prove that SkyWestviolated 14 C.F.R. Sections 121.693(a), (c), and(d.)

D. N679SA/6960 onMarch 14,2011 1. 14 C.F.R. Sections 119.5(g) andIJ9.5{l) Section 119.5(g) prohibits an air carrier from operating in violation ofits OpSpecs. Sky West's OpSpecs obligate the cartie'r to use the procedures detailed inits Weight & Balance Manual for loading and counting baggage. The Manual, among other things, directs the carrier's designated loading agentto accurately prepare the flight's CLR. The testimony and evidence showed that for flight N679SA/6960, SkyWest's CLR failed to properly reflect inthe appropriate blockthe actual count ofthe different classes

35 See In the Matter ofSkyWestAirlines, Inc., "Initial Decision ofAdministrative Law Judge" FDMS Nos. FAA-2011-0779, May 2, 2013; In the Matter ofSkyWestAirlines, Inc., "Initial Decision ofAdministrative Law Judge" FAA-2011-0485, FAA-2011-0486, May 2, 2013; . 391 I ofbaggage loaded onto the aircraft. The failure to accurately preparethe CLR, it is concluded, constitutes a violation of§119.5(g). SkyWest's actions inloadi;np and

**JP~*ing** the CLRs for flight N679SA/6960 also constituted a violation ofFAR §119.5(!). This sectionprohibits Part 121 air carriers from operating inviolation ofOpSpecs. By failing to set outfor each flight accurate information onthe CLRs, SkyWest, a Part 121.air carrier, did not operate in conformance with its OpSpecs. Itthus violated this section. 2. 14 C.F.R. Sections 121.693(a), (c), and(d) Subsection (a) of §121.693 requires a load manifestto containthe weight ofthe cargo andbaggage. Subsection (c) compels the use of"approvedprocedures" in computingthe total weight ofthe aircraft. Section 121.693(d) requires thatthe 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. Construingthese subsections together, as principles ofstatutory construction dictate, indicates that a carrier's loadmanifestwill pass muster ifithas beencompiledusing approved procedures, andthatthe method used insures thatthe center ofgravity is within limits. The evidence shows that SkyWest followed these mandates. Salamonetestified that for the fourteen (14) flights he reviewed, including N679SA/6960, giventhe weights thatthe crews hadrecorded andbelievedthatthey were operatingunder, none ofthe flights exceededmaximumtakeoffweight and none ofthe flights were unsafe in anyway. The crews' calculations were accurate as pertainingto the cargo and weightthat they believedthatthey had and the calculations did not exceed,the

1t · I '/;;','!'·

**l:~.** ·.{; ·,) manufacturer's suggested limitations nor as perceivedbythe FAA inspectors. None of

40the flights would have been in excess ofthe manufacturer's limitations fortakeoffweight, center ofgravity, runway performance, climb performance, or maximum operating altitude
.

. As noted earlier, SkyWest computed its load manifest from its CLRusing 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 beproven. 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 ofgravity was within approved limits. Indeed, Salamone's testimony and accompanying evidence suggested that the aircraft weight and center ofgravity 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 ofthe totality ofevidentiary facts and testimony, by a { ,' ·, 

## . preponderance ofthe evidence standard, we find: 1. The FAAprovedthat SkyWestviolated 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 ofSkyWestAirlines, Inc., "Initial Decision ofAdministrative Law Judge" FDMS Nos. FAA-2011-0779, May 2, 2013; In the Matter ofSkyWestAirlines, Inc., "Initial Decision ofAdministrative Law Judge" FAA-2011-0485, FAA-2011-0486, May 2, 2013; 412. We find the FAA did not made aprima faCie case withrespectto 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 SkyWest admitted allegations as set forth hereinabove. We found the violations of14 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 primafacie case with respectto the violations of14 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 ofthis case, a civil penalty of $40,000 was appropriate in each violation. We noteinFAA 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.

42Once notified ofthe violations, SkyWesttook swift, comprehensive corrective action including implementation ofan 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 SkyWestpaid civil penalties in eight (8) previous cases involving loading ofcargo contrary to approved procedures. While a penalty calculated in accordance with the FAA's policy guidance should ·;c, stand, absent a showing ofa respondent's inability to pay, the evidence and testimony did not support the penalty requested. While the FAA was entitledto substantial deference in establishing an appropriate civil penalty, we cannot ignore ourrole 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 offlight at eventhe 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 contextunquestionablywas the load manifest. It was this documentthat was computed by the flight



### ere~ **~nd** used by them to evaluate howtheir calculations will affect operational safety. The FAAfailed to show for any ofthe flights that SkyWestfailed to follow the scheme ofits 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 Systemto address the violations.
43We find further thatjustone civil penalty per flight is appropriate. To assess a civil penalty based on the multiple violations

### pet flight found is, underthe 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 inviolation ofOpSpecs; the second prohibits operating under Part 121 in violation ofOpSpecs. The distinction between the two provisions for the presentpurposes 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 ofnoncompliance results inmultiple violations ofgeneral 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 thatthe civil penalty appropriately accounts for the factors the statute and agency policy directs in fixing the assessment. All arguments by bothparties have been carefully considered. Those not explicitly discussed are rejected or dismissed as mooted bythis Initial Decision. WHEREFORE, evidence and testimony having been heard and considered itbe and is hereby ORDERED as follows: 

### 1. We reaffirm our ruling and SkyWest's objectionto the FAA'sproffer of testimony from Ayers for reasons set forth hereinabove SkyWest's objectionbe ' ...: -'i' and is hereby sustained. The



### testim~ny was not received.



### 442. SkyWest 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

45SERVICE LIST ORIGINAL & ONE COPY Federal Aviation Administration 800 Independence Avenue, S.W. Washington, DC 20591 Attention: Hearing Docket Clerk, AGC-430 Wilbur Wright Building-Suite 2W1000 1

Todd C. Emerson, Respondent's Counsel Director
- Government and Legal Affairs SkyWestAirlines 444 South River Road St. George, UT 84790 TEL: 435-634-3530 FAX: 435-634-3505 ONE COPY

Jeffrey M. Harper, Complainant's Counsel Attorney, Office ofRegional Counsel Northwest Mountain Region, ANM-7 Federal Aviation Administration 1601 Lind Avenue, S.W. Renton, WA 98057 TEL: 425-227-2161 FAX: 425-227-1007 The Honorable Richard C. Goodwin,Administrative LawJudge Office ofHearings, M-20 · U.S. Department ofTransportation 1200 NewJersey Avenue, S.E. (Ell-310) Washington, DC 20590 TEL: 202-366-2139 Attorney-Advisor 202-366-5121 StaffAssistant FAX: 202-366-7536 FDMS No. FAA-2012-0872 (Civil Penalty Action)

1 Service was by U.S. Mail. For service in person or by expedited courier, use the following address: Federal Aviation Administration, 600 Independence Avenue, S.W., Wilbur Wright Building--Suite 2W 1000, Washington, DC 20591; Attention: Hearing Docket Clerk, AGC-430.