SERVED: July 16, 2015 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, DC 

IN THE MATTER OF 

SKYWEST AIRLINES 

DOCKET NO. FAA-2012- 0904 

(Civil Penalty Action) 

-. -.;i.} 

INITIAL DECISION OF ADMINISTRATIVE LAW JUDGE 

L Glossary 

A CARS 

A&P 

Ayers 

Brown 

C.P.R. 

CLR 

COG 

COMAT 

FAA 

FAR 

N603SK/4781 

OpSpecs 

RNO 

Aircraft Communications Addressing and 

Reporting System 

Airframe and Power Plant certificate 

Andrew James Ayers 

Christopher C. Brown 

Code of Federal Regulations 

Cargo Load Report 

Center of Gravity 

Company material, i.e., inter-otl-ice correspondence, 

aircraft supplies, etc. 

Federal Aviation Administration, Complainant 

Federal Aviation Regulation 

SkyWest flight SLC to RNO on June 15, 2011 

Operations Specifications 

Reno/Tahoe International Airport, Reno, NV 
Salamone Carl Salamone, SkyWest witness 

Sky West SkyWest A~r,lineS,j>Inc., Respondent 

'!. ' ' c I~ • 

SLC Salt Lake City International Airport, Salt Lake City, UT 

SMS Safety Management System 

u.s.c. United States Code 

W&BManual Weight & Balance Operations Part XII SP 4100 

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 SkyWest flight N603SK operated as Flight 4781 (hereinafter 

"N603SK/4781") from Salt Lake City International Airport (hereinafter "SLC"), Salt 

Lake City, UT to Reno/Tahoe Inte!1lational:Airl;8rt (hereinafter "RNO"), Reno, NV, on 

June 15, 2011. 

III. Procedural History 

On July 26, 2012, Sky West Airlines, Inc., (hereinafter "SkyWest") 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 

$40,000. 

On August 8, 2012, SkyWest, through legal counsel, submitted a written request 

for a hearing. 

On September 17,2012, SkyWest filed its Answer. 

lJ 

1 SkyWestAirlines Docket Numbers FAA2012-0617, FAA 2012-0619, FAA2012-0868, FAA2012 

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

2 
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 of Regional 

Counsel, Renton, Washington. :.: 

I 

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. 

V. Jurisdiction 

Sky West 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 is subject to those regulations. 

VI. Burden ofProof 

The FAA was the petitioning party with the initial burden of proof ( 14 C. FR. § 

13.224). 

VII. Allegations 

A. FAA's recitation of facts 

The FAA alleged: 

3 
Section II (FAA'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 

of the Federal Aviation Regulations (hereinafter "FAR"). 

2. Paragraph D085 of SkyWest's Operations Specifications (hereinafter 

"OpSpecs") authorized SkyWest to use N603SK, a Bombardier CL-600-2C10 

civil aircraft, in the conduct of Sky West's Part 121 operations. 

3. Paragraph A098 of Sky West's OpSpecs required that aircraft loading for 

Bombardier CL-600-2C10 aircraft be accomplished in accordance with 

SkyWest's Weight & Balance Operations Manual, SP4100, (hereinafter 

"W &B Manual"), "Part :XII, reyision Orig. of 1 APR 10." 

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

SkyWest's Bombardier CL-600-2Cl0 aircraft. 

5. Sky West's W &B Manual, Chapter 2, paragraph 2.A.14 defined "Company 

material such as inter-office correspondence, aircraft supplies,, etc." 

(hereinafter "COMAT"). 

6. SkyWest's W&B Manual, Chapter 2, paragraph 2.A.6 defined "Cargo" as 

including COMAT. 

7. SkyWest's W&B Manual (Temporary Revision dated 14 FEB 11), Chapter 3, 

paragraph 2.I.l required the loading agent to record on the Cargo Load Report . 

(hereinafter "CLR") the actu~i' weiglit"of CO MAT. 

4 
8. Sky West's W&B Manual (Temporary Revision dated 14 FEB 11), Chapter 3, 

paragraph 2.1.2 required the loading agent to verify the actual weight of 

COMAT loaded in the aircraft. 

9. SkyWest's W&.B Manual (Temporary Revision dated 14 FEB 11), Chapter 3, 

paragraph 3.B.2. stated the flight deck crewmember used the information from 

the CLR to construct the Aircraft Communications Addressing and Reporting 

System (hereinafter "AGARS'}lo'-!d1

inanifest. 

10. Sky West's W &B Manual, Chapter 4, paragraph 8.14, required the loading 

agent to write the total weight (in pounds) of CO MAT loaded in each cargo 

bin/pit on the CLR. 

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

contained the 4B 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 

Section III (FAA's Complaint) 

12. On June 15,2011, at SLC, SkyWesMoaded passengers and baggage onto . . J,,,l,.•'l•: 

N603SK/4781 bound for RNO. 

13. SkyWest's personnel at SLC loaded 190 pounds ofCOMAT onto 

N603SK/4781. 

14. The CLR for N603SK/4781listed 160 pounds ofCOMAT on hoard 

N603SK/4781. 

15. The inaccurate data on the CLR was used to construct the ACARS load 

manifest for N603SK/4781. 

5 
16. SkyWest thereafter operated N603S~4781 from SLC to RNO. 

Section IV (FAA's Complaint) 

Sky West paid civil penalties in eight (8) previous cases involving loading of cargo 

and baggage· contrary to approved procedures. 

Section V (FAA's Complaint) 

By reason of the foregoing facts and circumstances, the FAA alleged Sky West 

violated the following sections of the Federal Aviation Regulations (14 C.P.R.): 

a. Section 119.5(g), in that, as a direct air carrier, it operated in violation of 

appropriate operations specifications. 

b. Section 119.5 (I), in that it operated aircraft under Part 121 in violation of 

its operations specifi.cations:. 1 . 

c. Section 121. 693(a),' in that it operated flights without a load manifest that 

accurately reflected the weight of the cargo and baggage. 

d. Section 121 .693(c), in that it operated flights when the total weight ofthe 

aircraft was not computed under approved procedures. 

e. Section 121 .693(d), in that it operated flights when the aircraft was not 

loaded according to an approved schedule. 

In accordance with Title 49 United States Code (hereinafter "US. C.") Sections 

46301 (a) and (d) (Transportation), the FAA alleged SkyWest was liable for a civil 

penalty not to exceed $27,500 for each of the violations noted. 

Under the facts and circumstances 6f this case, the FAA alleged a civil penalty of 

$40,000 was appropriate. 

6 
B. SkyWest's recitation of facts 

Answering Section I of the Complaint, SkyWest averred: 

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 $40,000, 

and on August 8, 2012 SkyWest submitted a written request for a hearing. 

Answering Section II of the Complaint, SkyWest averred: 

1. In response to Paragraph 1, Sky;w ~st~ admitted that was at all times material 

herein, the holder of Scheduled Air Carrier Certificate No. SWIAO 11 A, and 

conducted its operations pursuant to Part 121 of the FAR. 

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

SkyWest's OpSpecs authorized SkyWest to use N603SK, a Bombardier CL600-2C 10 civil aircraft, in the conduct of Sky West's Part 121 operations. 

3. In response to Paragraph 3, SkyWest admitted that Paragraph A098 of 

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

2C10 aircraft be accomplished in accordance with SkyWest's W&B Manual, 

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

. ; ; .,.•:':.\, l; ,:t.!· 

4. In response to Paragrapn 4, SkyW est a.dmitted that its W &B Manual 

contained the loading schedules and instructions for SkyWest's Bombardier 

CL-600-2Cl0 aircraft. 

5. In response to Paragraph 5, SkyWest admitted that its W&B Manual, Chapter 

2, paragraph 2.A.14 defined COMAT" as a "Company material such as interoffice correspondence, aircraft supplies, etc." 

7 
6. In response to Paragraph 6, SkyWestadmitted that its W&B Manual, Chapter I, I ·1 !J,;. 

2, paragraph 2.A.6 defined "Cargo" as including COMAT. 

7. In response to Paragraph 7, Sky West admitted that its W &B Manual 

(Temporary Revision dated 14 FEB 11 ), Chapter 3, paragraph 2.1.1 required 

the loading agent to record on the CLR the actual weight of CO MAT. 

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

(Temporary Revision dated 14 FEB 11 ), Chapter 3, paragraph 2.1.2 required 

the loading agent to verify the actual weight of CO MAT loaded in the aircraft. 

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

(Temporary Revision dated 14 FEB 11), Chapter 3, paragraph 3.B.2 stated the 

flight deck crewmemberfused.\iie infb'hnation from the CLR to construct the 

A CARS load manifest. 

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

Chapter 4, paragraph 8.14, required the loading agent to write the total weight 

(in pounds) ofCOMAT loaded in each cargo bin/pit on the CLR. 

11. In response to Paragraph 11, Sky West admitted that its W &B Manual, 

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

WARNING- INACCURATE LOADING, REPORTING, OR 

F AlLURE TO REPORT INFORMATION COULD CAUSE ISSUES 

WITH AIRCRAFT PERFORMANCE AND HANDLING, RESULTING 

IN THE ENDANGERMENT OF HUMAN LIFE 

Answering Section III of the Compl<:tiJ1tl>SkyWest averred: 

12. In response to Paragraph 12, SkyWest admitted that on June 15, 2011, at SLC, 

SkyWest loaded passengers and baggage onto N603SK/4781 bound for RNO. 

8 
13. In response to Paragraph 13, 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 SLC loaded 190 pounds ofCOMAT 

onto N603SK/4781, and therefore denied the same. 

14. In response to Paragraph 14, Sky West admitted the CLR for N603SK/4781 

.: :i· ~" ··f..i···· .:'' ) . ....... 

listed 160 pounds ofCOMAT on board N603SK/4781. 

15. In response to Paragraph 15, SkyWest averred it was without sufficient 

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

allegation that the inaccurate data on the CLR was. used to construct the 

ACARS load manifest for N603SK/4781, and therefore denied the same. 

16. In response to Paragraph 15, SkyWest admitted it operated N603SK/4781 

from SLC to RNO. 

Answering Section IV of the Complaint, SkyWest averred: 

In response to Paragraph 17, Sky\Yest admitted it paid civil penalties on 

eight (8) previous cases involving loading of cargo contrary to approved t . . C•!r•• . •.,;. 

procedures. ' ' 

Answering Section V of the Complaint, Sky West averred: 

SkyWest generally denied all remaining allegations set forth in the 

Complaint. 

SkyWest asserted the following Affirmative Defenses: 

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

9 '\ 
2. SkyWest may hav~ othe_r affiri:native 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(1), 121.693(a), 

121. 693(c) and/or 121.693(d) by operation of flight N603SK/4781 from SLC to RNO on 

June 15,2011, according to the facts alleged by the FAA. 

Under the facts and circumstances of this case, was a civil penalty of $40,000 

appropriate. . 

IX. Summary of Testimony and J;videnc~. ··tL 

All admitted testimonial and documentary evidence was reviewed and considered. 

Only brief highlights are summarized herein. 

A. FAA's Case 

Benjamin Henry Blauer 

Benjamin Henry Blauer (hereinafter "Blauer") had seventeen 17 years of aviation 

experience teaching flight school in both flight and ground instruction, seven (7) years of 

airline experience, and nearly seven (7) years with the Federal Aviation Administration. 

He held a flight instructor certificate, advanced ground instructor and instrument ground 

instructor certificates as well as an airline transport pilot certificate. He was type rated in 

' -· · ..,~ 

Embraer 145 and Canada Air CL-666. He1'was ~~ployed by the Federal Aviation 

Administration at the SkyWest Certificate Management Office.2 

2 Tr. p. 167, I. 19 top. 169, I. 7. 

10 
On June 15,2011, Blauer was at RNO to conduct inspections on SkyWest stations 

for both United Express, and Delta Connection operations out of the RNO. Blauer 

observed that N603 SK/4 781 had two (2) boxes of company material on board the airplane. 

One box was listed as 130 pounds; the other was listed as 60 pounds for a total of 190 

pounds of CO MAT. Blauer obtained a copy q:fline CLR (FAA# C-29) and load manifest 

report (FAA# C-30) for N603SK/4781. Blauer also took pictures of the COMAT (FAA# 

C-31. The CLR did not reflect the COMAT which was on board N603SK/4781? 

Cross 

Blauer explained he obtained the weights from the tags attached to the two pieces 

ofCOMAT. The weight from the two tags did not match the weight on the CLR. 4 

Andrew James Ayers5 

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 avihtion'igdus~~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 

3 Tr. p. 169, I. 8 top. 175, I. 2 4 Tr. p. 175, I. 5 top. 176, I. 12. 5 Tr. 179, I. 17 top. 209, I. 19. 

. ·' "{ 
'• ;"; ~ .. ',· 

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 

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

weighing from zero (0) up to fifty (50) po11;nds. 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 of sixty (60) pounds. Plane side loaded valet bags 

were assigned a weight of thirty (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. 6 

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

contained both background knowledge, 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: 

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

12 
... 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 CO ... the aircraft in question stalled 

shortly after takeoff and crashed, killing all 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 

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. 

With respect N603SK/4781,7 Ayers testified the weight on the load manifest 

reflected the weight as calculated using FAA# C-29, the CLR, however, the CLR and 

load report were inaccurate, and therefore performance data were inaccurate. 

Ayers further testified that in a couple of the cases8 where the load manifest 

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

·~ ; : v·;/• :::' .,. ~ 

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, but to show your work to get the answer and that 

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. 9 

7 Tr. p. 206, I. 3 top. 206, I. 15. 8 Referring to the consolidated docket. 9 Tr. p. 207, I. 19 top. 208, I. 16. 

13 
Cross10 

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 testimony was 

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, 

with Category I being non-safety related. SkyWest implemented an SMS after the 2011 

incidents. 

Redirect 11 

Ayers testified both copies of the 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. If a live animal was on board, that was required to be reflected on the 

CLR. 

10 Tr. p. 209, I. 21 top. 219, I. 10. 11 Tr. p. 219, I. 13 top. 222, I. 1. 

,, 

14 
Recross12 

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 

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

B. SkyWest's' Case 

Carl Salamone, deposition transcript, 2014050613 

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

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

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 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 of aircraft. He had 4200 flight hours, of which 3200 were in 

12 Tr. p. 222, I. 3, top. 223, I. 1. 13 Tr. p. 227, I. 7 top. 281, I. 17. 

15 
CRJs. 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 

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, ifavailab1·e, 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. 

16 
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 Gravity (hereinafter "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 of the physics of flight, to ensure that 

the plane will perform as it was designed to. 

Other factors considered in Salamone's ;walysis included runway performance, ,i \ ~. ·• d.~ 

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

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 

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. 

, .. 

17 
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 Sky West 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. 

With respect to N603SK/4781/ 4 Salamone testified the flight crew calculated 

takeoff weight for this flight was 11,600 pounds below the maximum for that runway. So, 

an additional 30 pounds would have been a very small change in maximum takeoff 

weight. Mathematically it would have moved the COG a point to one percent of mean 

aerodynamic chord, which is a very small shift but, mathematically it does exist. It did 

not impact safety. 

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, SkyWest has a policy of adding 

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

increase in burn 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 

14 Tr. 266, I. 12 top. 268, 1. 10. 

18 
handling as having to do with the environment 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 

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

Salamone was not particularly surprised at bag count discrepancies. 

Cross15 

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 

H ·'.;:, 

service ceiling and slower cruising Speed ... " Addtiibnally, 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 affect 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. Brown16 

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, 

15 Tr.p.281,1.18top. 291,1.6. 16 Tr. p. 298, I. 20 top. 324, I. 14. 

19 
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 applicable to all of the cases in the consolidated 

docket. 

Brown testified about SW# R5-1, 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 if the 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 program 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 . ~ ... ' :· .:~ . 

·i , 

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 

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

20 
X. Brief Summary ofEvidence and Testimony 

On June 15,2011, at SLC, SkyWest loaded passengers and baggage onto 

N603SKJ4781 bound for RNO. SkyWest's personnel at SLC loaded 190 pounds of 

COMAT onto N603SKJ4781. The CLR forN603SKJ47811isted 160 pounds ofCOMAT 

on hoard N603SKJ4781. The inaccurate data on the CLR was used to construct the 

ACARS load manifest for N603SKJ4781. SkyWest thereafter operated N603SKJ4781 to 

RNO. 

XL Law 

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

§§ 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 

.. · \ \·1 .. ').\'•' 

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 regulation 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, 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. 

. ~- ' ; 

21 
2. 14 C.F.R. Section 119.5(1), provides: 

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

13 5 of this chapter in violation of an air carrier operating certificate, operating 

certificate, or appropriate operations specifications issued under this part. 

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

I 

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.F.R. 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 ofFact 

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

evidence herein, by a preponderance of the evidence standard, we make the following 

findings: 

A. 14 C.F.R. Sections 119.5(g) and 119.5a2 

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 

22 
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 N603SK/4781, 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 N603SK/4781 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. 

B. 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 used insures that the center of gravity is within limits. 

The evidence shows that SkyWest followed these mandates. 

Salamone testified that for the fo~mefi -{i4) flights he reviewed, including 

N603SK/4781, given the weights that the crews had recorded and believed that they were 

23 
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 weight, 

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

altitude. 

·\ . 

i·· 

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. 17 

.: .. 

Accordingly, the FAA, it is ~oncludeci, failed to prove that Sky West 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 ofthe evidence standard, we find: 

17 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; 

24 
A. The FAA proved that SkyWest violated 14 C.F.R. Section 119.5(g), and 14 C.F.R. 

Section 119.5(1). 

B. We find the FAA did not made aprimafacie 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 and those violations will be dismissed. 

XIV. Penalty and Mitigation Considerations 

SkyWest 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). 

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. Section 121.693(c), and/or 14 

C.F.R. Section 121.693(d), inclusive. 

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

of $40,000 was appropriate in this case. 

We note in 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 SkyWest. 

Once notified ofthe 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. 

25 
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 

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 peiialty, 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 SkyW est 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 crew and 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 evidencJ' sh(n~~~vd.th~~ 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. 

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

civil penalty based on the multiple violations per flight fourid is, under the circumstances, 

unfair, unwarranted, and disproportionate to the offenses. 

26 
The two sections violated in each instance, 14 C.F.R. §§119.5(g) and 119.5(!), are 

t ''\'' i: . ~.J 

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-40, p. 7-10). Under these circumstances, one 

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

In sum, we find that the civi~ 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: 18 

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

sections 13.210, 13.211( e) and 13.233 of the Rules of Practice, which require that a notice of appeal 1) be 

filed not later than 10 days (plus an additiopal five, ~ ... aY~. ip!Uailed) from the service date of this decision, 

and 2) be perfected with a written brief or memorandum not later than 50 days (plus an additional five, if 

mailed) from the service date of this decision. The notice of appeal and brief or memorandum must either 

be a) mailed to the Federal Aviation Administration, 800 Independence Avenue, S.W., Washington, DC 

20591, Attn: Hearing Docket Clerk, AGC-430, Wilbur Wright Building-Suite 2W1000, or b) delivered 

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

Avenue, S.W., Wilbur Wright Building-Suite 2Wl000, Washington, D.C. 20591, Attn: Hearing Docket 

Clerk, AGC-430. A copy of the notice of appeal and brief or memorandum also must be sent to agency 

counsel. Service upon the presiding judge is optional. 

27 
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 and is hereby sustained. The testimony was not received. 

2. SkyWest Airlines, Inc. be and is hereby assessed a civil penalty of 

$250.00 for violations of 14 C.F.R. Section 119.5(g), and 14 C.F.R. 

Section 119.5(1); and 

3. We find the FAA did not make 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 and those violations be 

and are hereby DISMISSED. 

Richard C. Goodwin 

U.S. Administrative Law Judge 

Attachment - Service List 

·~ ·~·;! / 

c 

28 
SERVICE LIST 

ORIGINAL & ONE COPY 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington, DC 20591 

Attention: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building-Suite 2W1000 1 

ONE COPY 

Todd C. Emerson, Re.spondent 's Representative 

Director- Government and Legal Affairs 

SkyWest Airlines 

444 South River Road 

St. George, UT 84 790 

TEL: 435-634-3530 

FAX: 435-634-3505 

Michael L. Dworkin, Respondent's Counsel 

MICHAEL L. DWORKIN AND ASSOCIATES 

465 California Street, Suite 21 0 

San Francisco, CA 941 04 

TEL: 415-421-2500 

FAX: 415-421-2560 

EMAIL: law@avialex.corn 

Robert Spitzer, 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: 425-227-1417 

FAX: 425-227-1007 

FDMS Nos. FAA~2012-0904 

(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 A venue, S. W .. Wilbur Wright Building-Suite 2W I 000, Washington, 

DC 20591; Attention: Hearing Docket Clerk, AGC-430. 
The Honorable Richard C. Goodwin, Administrative Lavv Judge 

Office of Hearings, M-20 

U.S. Department of Transportation 

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

Washington, DC 20590 

TEL: 202-366-2139 Attorney-Advisor 

202-366-5121 Legal Assistant 

FAX: 202-366-7536