### SERVED: July 

### 16, 2015

U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, 

### DC
IN THE MATTER OF SKYWEST AIRLINES DOCKETNO. FAA-2012

- 0869 (Civil Penalty Action)
INITIAL DECISION OF ADMINISTRATIVE LAW JUDGE I. Glossary ACARS
A&P ASI Brown C.F.R. Chavez CLR 

### CMO COG 

## cos
FAA Aircraft Communications Addressing and Reporting System Airframe and Power Plant certificate Aviation Safety Inspector Christopher C. Brown Code ofFederal Regulations Joseph Chavez Cargo Load Report Cetiificate Management Office Center ofGravity City ofColorado Springs Municipal Airport, Colorado Springs, CO Federal Aviation Administration, Complainant . :'

..-:-

....

/FAR Federal Aviation Regulation. IAH George Bush International/Houston Airport, Houston, TX N744SK/1160 SkyWest flight from IAH to COS onMay 5, 2011 OpSpecs Operations Specifications Salamone Carl Salamone, SkyWest witness SkyWest SkyWest Airlines, Inc., Respondent SMS Safety Management System 

## u.s.c. United States Code Wallentine Michele Wallentine, FAA inspector W&B Manual Weight & Balance Operations PartXII SP 4100 II. Introductory Comment This case was consolidated with other cases with similar facts, issues and defenses by consent ofthe parties. 1 This case involved SkyWest flight N744SK operated as Flight 1160 (hereinafter "N744SK/1160") from George Bush International/Houston Airport (hereinafter "IAH"), Houston TX, to City ofColorado Springs Municipal Airport (hereinafter "COS"), Colorado Springs, CO., on May 5, 2011. III. Procedural History OnJuly 26, 2012, SkyWest Airlines,

### In~:~ (hereinafter "SkyWest") was advised through a Final Notice ofProposed Civil Penalty thatthe Federal Aviation Administration (hereinafter "FAA'') proposed to assess a civil penalty in the amount of $40,000 for violation ofthe Federal Aviation Regulations (hereinafter "FAR").

1 SkyWest Airlines Docket Numbers FAA 2012-0617, FAA 2012-0619, FAA 2012-0868, FAA 2012 -0869, FAA 2012-0872, FAA 2012-0873, FAA 2012-0874 and FAA 2012-0904. 2On August 8, 2012, SkyWestAirlines, through legal counsel, submitted a written request for a hearing. OnAugust 14, 2012, the FAA filed its Complaint. On September 14, 2012, SkyWest·filed
. .hsAnswer. By Order dated August21, 2013 we consolidated this case with other cases with similar violations ofthe FARs, similar issues and similar defenses ofSky West. IV. Hearing A hearing was held in Salt Lake City, UT., onMay 19, 2014 onthe consolidated
cases. The FAA was represented by Jeffrey Harper, Esq., FAA Office ofRegional Counsel, Renton, Washington. SkyWestwas represented by Michael L. Dworkin, Esq., ofDworkin & Associates, San Francisco, California 94104 and Todd C. Emerson, Esq., General

. "\' 'ii.•.**~** .i' Counsel, SkyWestAirlines, St. Gedrge, Utah. Posthearingbriefs were filed by bothparties. The matter is nowready for decision. V. Jurisdiction SkyWestwas at all times material hereto the holder ofScheduled Air Carrier CertificateNo. SW1A011A, and conducted its operations pursuantto Part 121 ofthe Federal Aviation Regulations (FAR) and was subjectto those regulations. 

### VI. Burden ofProof The FAA was the petitioning party withthe initial burden ofproof(14 C.F.R. § 13.224).

3.·:··,,

VII. Allegations A. The FAA'srecitation offacts Section II (FAA's Complaint) 1. SkyWest was at all times material herein the holder ofScheduledAir Carrier CertificateNo. SWIA011A, and conducted its operations pursuant to Part 121 ofthe FARs. 2. ParagraphD085 ofSkyWest's Operations Specifications (hereinafter "OpSpecs") authorized SkyWestto use N744SK, a Bombardier CL-600-2Cl0 civil aircraft, inthe conduct ofSkyWest's Part 121 operations. 3. Paragraph A098 ofSkyWest's OpSpecs required that aircraft loading for Bombardier CL-600-2Cl0 aircraft be accomplished in accordance with SkyWest's Weight & Balance Operations Manual, SP4100, (hereinafter "W&B Manual"), "PartXII, revision Orig. ofl APR 10." 4. SkyWest's W&B Manual containedthe loading schedules and instructions for SkyWest's Bombardier CL-600-2C10 aircraft. 5. SkyWest's W&B Manual, Chapter 2, paragraph 2.A.58 defined "Standard Checked Bag" as a "checked bag weighing 50 lb. or less." 6. SkyWest's W&B Manual (Temporary Revision dated 14 FEB 11), Chapter 3, paragraph 2.D.l statedthe

## "desi~n~t~d CD Ground Operations loading agent evaluates the classification ofall checked baggage (either standard orheavy). The designated loading agent must mark the number ofstandard and heavy checked baggage onthe Cargo Loading Report (hereinafter "CLR")".

47. SkyWest's W&B Manual (Temporary Revision dated 14 FEB 11). Chapter 3, paragraph 2.1.2 stated that "[u]pon completion ofloading the cargo bin/pit, the designated loading agent mustverify the piece count ofall Standard Checked, Heavy Checked, and Planeside Loaded/Service Item Baggage
..." 8. SkyWest's W&B Manual (Temporary Revision dated 14 FEB 11), Chapter 3, paragraph 3.B.2 stated the flight deck crewmember usedthe information from the CLRto constructthe Aircraft Communications Addressing and Reporting System (hereinafter "ACARS") load manifest. 9. SkyWest's W&B Manual, Chapter 4, paragraph 8.8, required the loading agent to write the total number ofstandard checkedbaggage loaded ineach cargo bin/pit inthe appropriate "Standard Checked" block onthe CLR. 10. SkyWest's W&B Manual, Chapter4, paragraph 11- Aircraft Loading, containedthe warning; 1 V· •! , . WARNING- INACCURATE LOADING, REPORTING, OR FAILURE TO REPORT INFORMATION COULD CAUSE ISSUES WITH AIRCRAFT PERFORMANCE AND HANDLING, RESULTING IN THEENDANGERMENT OF HUMAN LIFE Section III (FAA's Complaint) 11. On May 5, 2011, at IAH, SkyWest loadedpassengers and baggage onto N744SK/1160 bound for COS. 12. SkyWest's personnel atIAH loaded thirty-five (35) standard checkedbags onto N744SK/1160. 13. The CLRfor N744SK/FHght 1160 listed twenty-five (23) standard checked bags onboardN744SK/1160. i. J '



### 514. The inaccurate data on the CLRwas used to construct the ACARS load manifest for N744SKJ1160. 15. SkyWestthereafter operatedN744SKJ1160 from IAH to COS. Section IV (FAA's Complaint) 16. SkyWesthas paid civil penalties in eight (8) previous cases involving loading ofcargo and baggage contrary to approved procedures. Section V (FAA's Complaint) 17. By reason ofthe foregoing facts and circumstances, SkyWest violated the following sections FARs (I4 C.FR.):
a. 14 C.P.R. Section 119.5(g), in that, as a direct air carrier, it operated in violation ofan appropriate operations specification. b. 14 C.P.R. Section 119.5(1), in that it operated aircraft under Part 121 in violation ofits operations specifications.
c. 14 C.P.R. Section 121.693(a), in that it operated flights without a load manifestthat accurately reflected the weight ofthe cargo and baggage. d. 14 C.FR. Section 121. 693(c), in that it operated flights whenthetotal weight ofthe aircraft was not computed under approved procedures.
e. 14C.

### F.R. Section 12J.693(d), in' that it operated flights when the, aircraft
was not loaded according to an approved schedule. 18. The FAA alleged in accordance with 49 UnitedStates Code (hereinafter "U.S.C.") Sections 46301(a) and (d) (Transportation), SkyWest was liable for 

# a

civil penalty not to exceed $27,500 for each ofthe violations noted.

619. The FAA alleged under the facts and circumstances ofthe case, a civil penalty of$40,000 was appropriate. .J•' B. SkyWest's recitation offacts Answering Section I ofthe Complaint, SkyWest averred: SkyWest admitted that it was advised through a Final Notice ofProposed 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 writtenrequest for a hearing. Answering Section II ofthe Complaint, SkyWest averred: 1. Inresponse to Paragraph 1, SkyWest admittedthat it was at all times material herein, the holder ofScheduled Air Carrier Certificate No. SWIA011A, and conducted its operations pursuant to Part 121 ofthe FARs. 2. In response to Paragraph 2, SkyWest admitted that Paragraph D085 of

r ;.:/. '**~** (' SkyWest's OpSpecs authorized SkyWestto use N744SK, a Bombardier CL600-2C10 civil aircraft, in the conduct ofSky 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 1APR 10". 4. In response to Paragraph 4, SkyWest admitted that its W &B Manual contained the loading schedules and instructions for SkyWest's Bombardier CL-600-2C10 aircraft.

75. In response to Paragraph 5, SkyWest admitted that its W&B Manual, Chapter 2, paragraph2.A.58 defined "Standard Checked Bag" as a "checked bag weighing 50 lb. or less." 6. In response to Paragraph 6, SkyWest admitted that it's W&B Manual, (Temporary Revision dated 14 FEB 11), Chapter 3, paragraph 2.D.l stated the "designated CS Ground Operations loading agent evaluates the classification

.. ·,1

',.<!;. ofall checkedbaggage (either standard orheavy). The designated loading agent must mark the number ofstandard andheavy checked baggage onthe CLR." 7. In response to Paragraph 7, SkyWest admitted that its W&B Manual (Temporary Revision dated 14 FEB 11), Chapter 3, paragraph 2.1.2 stated that "[ u]poncompletion ofloading the

### carg~ bin/pit, the designated loading agent must verify the piece count ofall Standard Checked, Heavy Checked, and Planeside Loaded/Service Item Baggage
..." 8. In response to Paragraph 8, SkyWest admitted that it's W &B Manual (Temporary Revision dated 14 ,FEBll), Chapter 3, paragraph 3.B.2 statedthe flight deck crewmember used the information from the CLRto construct the ACARS load manifest. 9. In response to Paragraph 9, SkyWest admitted that its W&B Manual, Chapter 4, paragraph 8.8, required the loading agentto write the total number of standard checked baggage loaded in each cargo bin/pit inthe appropriate "Standard Checked" block on the CLR.

8

. ..**~**10. In response to Paragraph 10, SkyWest admitted that its W &B Manual, Chapter 4, paragraph 11

- Ahcr'aft LMding, contained the warning: WARNING- INACCURATE LOADING, REPORTING, OR FAILURE TO REPORT INFORMATION COULD CAUSE ISSUES WITH AIRCRAFT PERFORMANCE AND HANDLING, RESULTlNG IN THE ENDANGERMENT OF HUMAN LIFE Answering Section III ofthe Complaint, SkyWest averred: 11. In response to Paragraph 11, SkyWest admitted that onMay 5, 2011, at IAH, SkyWest loaded passengers and baggage onto N744SK/1160 bound for (COS). 12. In response to Paragraph 12, SkyWest averred it was without sufficient information or knowledge from which to form a beliefas to the truth ofthe allegationthat SkyWest's persq,¥,Uel**~UAH** loaded thirty-five (35) standard checkedbags onto N744SK/1160, and therefore denied the same. 13. In response to Paragraph 13, SkyWest admitted the CLRfor N744SK/1160 listed twenty-three (23) standard checked bags on boardN744SK/1160. 14. In response to Paragraph 14, SkyWest averred it was without sufficient information or knowledge from which to form a beliefas to the truth ofthe allegation that the inaccurate data onthe CLR was used to constructthe ACARS load manifest for N744k/1160, and therefore denied the same. 15. In response to Paragraph 15, SkyWest admitted it operatedN744SK/1160 from IAH to COS.



### 9Answering Section IV ofthe Complaint, SkyWest averred: 16. In response to Paragraph 16, SkyWest admitted itpaid civil penalties on eight (8) previous cases involving loading ofcargo contrary to approved procedures. Answering Section V ofthe Complaint, SkyWest averred:

. ,; '**~-l** f••• SkyWest generally denied all rem({ihing allegations set forth inthe Complaint. SkyWest asserted the following Affirmative Defenses: The proposedpenalty was excessive and violated FAA orders. 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(1), 121.693(a), 121.693(c) and/or 121.693(d) by operation offlight N744SK/1160 IAHto COS, on May 5, 2011.

Under the facts and circumsbces oftiuicase, was a civil penalty of$40,000 appropriate. IX. Summary ofTestimony and Evidence All admitted testimonial and documentary evidence was reviewed and considered. Only briefhighlights are summarized herein. A. FAA's Case Michele Wallentine

10I**~** . .. . . The FAA called Michele Wallentine (hereinafter "Wallentine") as a witness. Wallentine workedthirty (30) years in for the Air Force Reserves and as a civil servant for the Air Force. At the time ofthe hearing she was an Aviation Safety Inspector (hereinafter "ASI'') for the FAA in Denver, Colorado? On May 5, 2011, Wallentine was assisting the SkyWest Certificate Management Office (hereinafter "CMO'') in doing surveillance on SkyWest at COS to ensure that the amount ofcargo andbaggage unloaded on the aircraftmatchedthe CLR. One ofthe flights she surveilled was N744SKJ1160 from IAH. Wallentine counted thirty-five (35) standard bags and twenty-four (24) valet bags? 4 Cross Wallentine testified all the inspections she made on May 5th, April 7th, and July 14, 2011, at COS were for the purpose ofcounting baggage. There were other flights on those days into COS which had no discrepancies. Wallentine believed she observed ten (10) flights on each ofthe days she conducted bag counting surveillance on each ofthe flights. She had not been asked to conduct bag surveillance on other air carriers.5 Joseph Chavez Joseph Chavez (hereinafter "Chavez") spent twenty (20) years inthe Air Force, then worked in a 145 repair station. In 2009 hejoinedthe CMO in Denver. 6 On May 5, 2011, Chavez was assisting with the surveillance on SkyWest's weight and balance baggage program at COS. Chavez obtained some documents related to N744SKJ1160. He obtained some documents from IAH, the flight origination point, and

2 Tr. p. 113, 1. 1to p. 114, 1. 5. 3 Witness referred to FAA# C-102 and FAA# C-103 to refresh her recollection. 4 Tr. p. 114, 1. 6 top. 119, 1. 22. 5 Tr. p. 125, 1. 21 top. 128, 1. 6. 6 Tr. p. 129, I. 17 top. 130, 1. 14. 11some from the flight crew. Chavez obtained the load manifest from a trashbag onthe jetway. He identified FAA# C-3 as the CLR and FAA# C-4 as the load manifest for N744SKJ1160. 7 Cross Chavez testifiedhe obtained FAA# C-4 from the Jetway and did not know ifit
was the actual ACARS load manifest printout or ifit was superseded by something else,

., all he knewwas thatthe document

## ~as found.

# in'the trash. 8 Evidence The following FAA exhibits were admitted in the consolidated docket set forth above: FAA# Exhibits C-1 through C-36, inclusive; there was no FAA#C-37; FAA# C38 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 ofthe administrative record. Andrew James Ayers9 Andrew James Ayers (hereinafter "Ayers") was called by the FAA as an expert in Weight and Balance and specifically SkyWest's'Weight and Balanceprogram. 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 atthe SkyWest Certificate Management Office. He was the "Principle Operations Inspector" (hereinafter "POI") for SkyWest and had the overall responsibility for all ofthe authorizations and

7 Tr. p. 130, I. 15 top. 134, I. 19. 8 Tr. p. 135, I. 1top. 137, I. 21. 9 Tr. 179, I. 17top. 209, I. 19. 12approvals for SkyWest's operational needs. He oversaw compliance, authorizations for SkyWest programs, and scheduled surveillance and follow-up. Hehad an airline transport pilot certificate with type ratings in the EMB-120 and CL-65 series aircraft. He had training as an Aircraft Safety Inspector (hereinafter "ASI"). He received generalized weight and balance training that was applicable to any pilot flying any sort ofaircraft as well as training specific to the type aircraft at issue inthese 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 ofaircraft weight and balance. Ayers explained the CLR**w~s** a tally worksheet for computing the loads or the weight ofcargo loaded on the aircraft. A 'standardbag' was a term used for an average bag assigned a weight ofthirty (30) pounds. A standardbag 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 ofSkyWestweight and balance program, heavy bags were assigned a weight ofsixty (60) pounds. Plane side loaded valet bags
were assigned a weight ofthirty (30) pounds which included a weight range do ofzero (0) to fifty (50) pounds. Ayers testified the load manifest contained the total weights for aircraft flights. 10 Ayers described SkyWest's "Weight and Balance Handbook" as a general book which
;l**I~** \• ,**~ ~**  '' 1 contained bothbackgroundknowledge, 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.
10 The witness identified FAA# C-6, C-9, C-12, and C-14 as examples ofload manifests. 13The FAAproffered evidence ofa prior aircraft accident under Part 121 where weight and balance was a causal factor. We sustained an objection to the testimony and reaffirm our ruling. Ayers' proffer was:

...the accident in question involved an aircraft that was loaded no[t] in compliance withthe operatqr's**appr,~wec;l**weight and balance program. Incorrect information was provided to'the flighfcrew which allowed them or did not allow them, rather,to accurately complete their load manifest for their flight. That resulted inthem being unable to detect an aft CG
...the aircraft in question stalled shortly after takeoffand crashed, killing all 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 which would show any relevance to the facts ofthis case. We reaffirm ourruling and the

. objection was sustained. The testimony was not received. According to Ayers, a review ofdocumentation offlight N744SK/1160 11 From IAH to COS on May 5, 2012, showedthe weight on the CLR did not correspond with the weight onthe load

## manif~Sj:. A#ts

## t~~~~'fied ifthe cargo load report did not match what was onthe aircraft then the load manifest was also incorrect. Ifthe load manifest was incorrect, then the performance data calculated for the flight was incorrect. Ayers further testified that in a couple ofthe cases 12 where the load manifest weight matchedthe 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 notthe number was correctwas notrelevant to whether those procedures were actually followed. Ayers drew an analogy that, itwas not enough to get the right answer, butto showyour workto get the answer and that

11 Tr. p. 198, 1. 20 top. 201, 1. 3. 12 Referring to the consolidated docket. ;j ·i**~t·\'1** ·':,**.:~.'** •, 14·\
work also had to be correct. Ayers testified he believed there was an unknown impact on safety posed bythese discrepancies, but that he was not surprised that the aircraft were operated within their weight and balance envelope. 13 Cross 14 Ayers testifiedthe front side ofthe CLRworksheet was where the math was tallied up while the back side ofthe CLRwas the worksheetto 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 admitted his testimony was predicated uponthe assumption thatwhenthe i!lspectors countedthe 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 with processes and procedures in place to identify howthey do that, whenthey do that, and whatthe outcomes are. Risks were categorized, with Category I being non-safety related. SkyWest implemented an SMS afterthe 2011 incidents. Redirect15 Ayers testified both copies ofthe CLR should be updated with any last minute**~** '\ t**'~'** changes. Ifthe load manifest was'inaccurate, the process wasn't followed. CO MATwas required to be marked on the CLR as COMAT and ballastwas requiredto be marked on the CLR as ballast. Ifa live animal was on board, that was required to bereflected onthe CLR.

13 Tr. p. 207, I. 19 top. 208, I. 16. 14 Tr. p. 209, I. 21 top. 219, I. 10. 15 Tr. p. 219, l. 13 top. 222, I. 1. 15Recross 16 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.

.. '**~** .. B. SkyWest's Case Carl Salamone, deposition transcript, 2014050617 The testimony ofCarl Salamone (hereinafter "Salamone") was takenby deposition (SW# 3-3) and introduced into the record by agreement ofthe parties. Counsel for both parties were present at the deposition. Salamone's testimony was applicable to all ofthe 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 certific'}te, an adv:anced 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 BachelorofScience degree in electrical engineering and a Bachelor of Science degree in aviationhuman factors, from the University ofIllinois. Aviation human factors was the study ofhuman factors principles inresearch 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

16 Tr. p. 222, 1. 3, top. 223, 1. 1. 17 Tr. p. 227, I. 7 top. 281, I. 17. 16hehad flown about 3,000 flights. Each flight required a weight and balance calculation prior to that flight. He hadtraining 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 andbalance onthe aircraft performance. Salamone reviewed SW# R-1, a weight andbalance analysis covering arecreation ofthe fourteen (14)**flights~based** bnthe data available to him onweight and balance as calculatedbythe crew and also the alleged weight andbalance as 

### itwould have been observedby an inspector(s) for each ofthe flight violations. Inthe 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 statementfrom the FAA, as far as the alleged weight or items that may have beenpresent and the manufacturer documentation for the Canadair seriesjetsto determine performance and the weight and balance inthat respect. He also took into account runway length, air temperature and fuel weight. Aircrafttakeoffweightwas defined as the gross weight ofthe aircraft inthe

.**:~**l .,..;("· ,;.\., takeoffconfiguration, as it would beginthe·takeoffsegment ofthe flight. Itwas the full weight ofthe airplane immediately priorto beginningtakeoff, including passengers, cargo, ballast, et al. AircrafttakeoffCenter ofGravity (hereinafter "COG") was the location ofthe center ofgravity at a point onthe airplane and calculated to ensure thatthe plane remained inbalance for the manufacturer's specifications throughoutthat flight. COG

17was a single point, a mathematical point. Itwas a single point like a teeter-totter, where that airplane would balance on one particularpoint where the weight was mathematically
seen onthat location onthe airplane. COG was important for stabilityreasons, for

. ·•.·· control reasons, and it was reallyjust a major part ofthe physics 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 meant thatthe airplane would not be too heavy to meet its performance requirements and performance planning. An airplane was operated at a weight that would ensure thatthe runway was adequate, that the climbing performance was adequate, and that it would 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 hiliev6d'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 observedby the FAA inspectors, none ofthe aircraft exceededtolerances 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 bythe SkyWest crews at the time or adjusting for the observed variations by FAA inspectors, in Salamone's opinion, none ofthe flights would

18have been in excess ofthe manufacturer's limitations for takeoffweight, center ofgravity, runway performance, climb performance, or maximum operating altitude. With respect to N744SK/1160, 18 Salamone testified the FAA reported thatthirtyfive (35) standard bags were present in the cargo compartment ofN744SK/1160, while the CLRindicated twenty-three (23) standard and zero (0) heavy bags present inthe aft cargo compartment. According to Salamone, the observed configuration would have resulted in an additional 360 pounds over

### what~as indicated on the CLR. The additional 360 pounds would have had a negligible impact onN744SK/1160. N744SK/1160 was well belowmaximumtakeoffweight, would have moved the COG approximately one percent. Itwould have had no impact on safety ofN744SK/1160. Fuel planning for all the CJRs involved would have been very close. The additional weight may have caused a slight increase in fuel usage,justbecause it costs
more to fly around the extra weight. However, SkyWesthas a policy ofadding 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.**~ ~.**  ,:,.... 1' .-•'
. Salamone described the human factors involved in loading an airplane and counting bags. He described the most difficult aspect ofaircraft loading andbaggage handling as havingto 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 ofactivity making focus difficult for that particular employee. Itwas a very active areathat could cause, perhaps, a pause in counting or bags arriving at differenttimes from different connecting flights. Salamone

18 Tr. p. 262, I. 3top. 264, I. 1. N744SK/1160, from IAH to COS on May 5, 2011. 19described that humans have a difficult time inherently with counting, and when you throw in some difficult environmental factqrs, itmakes thattask evenmore difficult.**~** '**~.** :! Salamone was not particularly surprised at bag count discrepancies. Cross 19 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 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 effectperformance. The CLRis one ofthe documents used to generate the load manifest. The load manifest was the document that containedthe airdraft· grdss

### J~ight and center ofgravity location, which was thenused to determine performance requirements. Christopher C. Brown20 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 had been in the aviation industry for thirty (30) years. ·He had an AMP certificate, airline transport certificate withthe CL-65, a flight instructor certificate, an advanced flight instructor or an advanced ground instructor

19 Tr. p. 281, I. 18 top. 291, I. 6. 20 Tr. p. 298, I. 20 top. 324, I. 14. .**·~**



### 20 

# . ' .certificate. Brown'stestimony was applicable to all ofthe cases inthe consolidated docket.Browntestified about SW# R5-1, which was a letterto the CMO, to Mr. Ayers, requesting consideration for aproposed 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 ofweight to the basic operating weight ofeach aircraft. In doing so, the performance calculations Would.be performed as ifthe weightwas physically onboard the aircraft, eventhough, in most cases, the weight would notbe present. The aircraft operating envelope would be curtailed in such a way that for small miscounts, the SkyWest weight and balance program would assure thatthe aircraft would always remain within the manufacturds operating envelope. Browntestifiedthe proposal was similar to a program implemented by Delta. Evidence The following SkyWest exhibits were admitted in the consolidated docket set forth above: SW# Exhibits R 1-1,2-1, 3-1,3-2, 3-3, 4, 5-1, 5-2, 5-3, 5-4, 5-5, 5-6, 5-7, 6- 1, 6-2, 6-3, 7, 8, 9 and 10, inclusive. There are no exhibits SW 11-20, inclusive. SW# R21, was admitted. X. Credibility determinations We find thetestimony ofall witnesses to have been truthful and credible. XI. BriefSummary ofEvidence and Testimony On May 5, 2011, SkyWest loaded passengers and baggage onto N744SK/1160 bound for COS. The CLRfor N744SK/1160 listed twenty-three (23) standard checked bags onboardN744SK/1160. Inaccurate data onthe CLRwas used to constructthe

21ACARS load manifest for N744k/1160. SkyWest operatedN744SK/1160 from IAHto COS onMay 5, 2011. XII. Law A. The FAA has the burden ofproof, except for affirmative defenses 14 C.F.R. §§ 13.224(a) and (c). The standard is a preponderance ofreliable, probative, and substantial evidence 14 C.F.R. § 13.2 23. 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 regulation prescribed or order issuedunder any provisionto 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**~latise** (A). 

## 4,9 U.S.C. § 46301(a)(1)(A), 14 C.F.R. Parts 119 and 121**(Preamb1~).** · · 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 inviolation 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 aircraft under this part, part 121 ofthis chapter, orpart 135 ofthis chapter in violation ofan air carrier operating certificate, operating certificate, or appropriate operations specifications issued underthis part. D. 14 C.F.R. § 121.693 Load**~anif~st:** AlLgertificate holders The load manifestmust contain the following information concerning the loading ofthe airplane attakeofftime:

221. 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.F.R. Section 121.693(d), provi4es: Evidence that the 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 

### XIII. Findings ofFact After consideration and review ofall the evidentiary facts, testimony and evidence herein, by a preponderance ofthe evidence standard, we make the following findings:**~** J:. A. 14 C.F.R. 119.5(g) and 119.5(!) 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 agent to accurately prepare the flight's CLR. Thetestimony and evidence showed that for flight N744SKJ1160, SkyWest's CLR failed to properly reflect in the appropriate block the actual count ofthe different classes

23 , ..ofbaggage loaded onto the aircraft.· The failure;to accurately prepare the CLR, it is concluded, constitutes a violation of§119.5(g). ( Sky West's actions in loading and marking the CLRs for flight N744SKJ1160 also constituted a violation ofFAR §119.5(!). This section prohibits Part 121 air carriers from operating in violation ofOpSpecs. By failing to set out for each flight accurate information onthe CLRs, SkyWest, a Part 121 air carrier, did not operate in conformance with itsOpSpecs. Itthus violated this section. B. Sections 121.693(a), (c), and (d) Subsection (a) of§121.693 requires a load manifestto contain the weight ofthe cargo and baggage. Subsection (c) compels the use of"approvedprocedures" in computing the total weight ofthe

# aircraft.'i;~ecti~~ 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 manifest will pass muster ifit has been compiled using approved procedures, and that the methodused insures that the center ofgravity is within limits. The evidence shows that SkyWest followed these mandates. Salamonetestified that for the fourteen (14) flights he reviewed, including N744SKJ1160, given the weights that the crews had recorded and believed thatthey were operating under, none ofthe flights exceeded maximum takeoffweight and none ofthe**~: ~-.,**  :

.**:~** . ' ' flights were unsafe in anyway. The 1 crews' calculations were accurate as pertaining to the cargo and weight thatthey believed that they had and the calculations did not exceed the manufacturer's suggested limitations nor as perceivedby the FAA inspectors. None of

24the flights would have been in excess ofthe manufacturer's limitations for takeoffweight, 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'~** OpSpecs required loading procedures to

... ;_....**·~** I follow the Manual. The load manifest, then, used approved procedures to compute the weight ofthe baggage. No violation of§§121.693(a) and(c) thus could be proven. Nor
was a §121.693(d) violation proven; no evidence tended to demonstrate thatthe 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 underreview? 1 Accordingly, the FAA, it is concluded, failed to prove that SkyWestviolated 14 C.F.R. Sections 121.693(a), (c), and (d). XIV. Conclusions Upon consideration ofthe totality ofevidentiary facts and testimony, by a preponderance ofthe evidence standard, we find: A. The FAAproved 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.

21 See In the Matter ofSkyWestAirlines, Inc., "Initial Decision ofAdministrative Law Judge" FDMS Nos. FAA-2011-0779, May 2, 2013; In the Matter of SkyWestAirlines, Inc., "Initial Decision ofAdministrative Law Judge" FAA-2011-0485, FAA-2011-0486, May 2, 2013;
. 25XV. 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 

### primafacie 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 ofthis case, a civil penalty of$40,000 was appropriate in this case. We note inFAA 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, 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 aamitted,Llhat SkyWest paid civil penalties in eight (8) previous cases involving loading ofcargo contraryto approved procedures. While a penalty calculated in accordance withthe FAA's policy guidance should stand, absent a showing ofa respondent's inability to pay, the evidence andtestimony did not supportthepenalty requested. While the FAA was entitled to substantial


### 26deference in establishing an appropriate civil penalty, we cannot ignore our role to evaluate the testimony and evidence. Significantly, the violations found were technical in nature. They had no material effect onweight and balance or,op aircpaft performance. SkyWest showed that :,} ..**~** :,, ' ' in no instance was safety offlight at even the slightest risk (See Tr. p. 227, 

### 1. 7 to p. 281, 

### 1. 17.). As SkyWestnoted, the CLRs were not dispositive. The most important factor in the weight and balance context unquestionably was the load manifest. Itwas this document that was computed by the flight crew and used by them to evaluate howtheir calculations will affect operational safety. The FAA failed to show for any ofthe flights that SkyWest failed 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:n'ew Safety<raanagement System to address the violations. We find further thatjustone civil penalty per flight is appropriate. To assess a civil penalty based on the multiple violations per flight found is, under the circumstances, unfair, unwarranted, and disproportionate to the offenses. The two sections violated in each instance, 14 C.F.R. §§119.5(g) and 119.5(1), 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 betweenthe two provisions for the presentpurposes is inconsequential. As such, penalizing SkyWest for both violations would be unjustified. We note that the .tC 27i C; '. agency's civil penalty guidelines, FAA Order 2150.3B, take a similar stance: they advise that"[w]hen a single instance ofnoncompliance results in multiple violations ofgeneral 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 thatthe civil penalty appropriately accounts for the factors the statute and agency policy directs in fixing the assessment. All arguments bybothparties have been carefully considered. Those not explicitly discussed are rejected or**dismissedas~niooted** by this Initial Decision. WHEREFORE, evidence and testimony having been heard and considered it be and is hereby ORDERED as follows?2 1. We reaffirm our ruling and SkyWest's objection to the FAA'sproffer of testimony from Ayers for reasons set forth hereinabove SkyWest's objection be and is hereby sustained. The testimony was notreceived. 2. SkyWest Airlines, Inc. be and is hereby assessed a civil penalty of$250.00 for violations of14 C.F.R. Section 119.5(g), and 14 C.F.R. Section 119.5(1); and


### J ., "- ·•**~--** .
22 This decision may be appealed to the Administrator ofthe FAA. The notice ofappeal must conform to sections 13.210, 13.2ll(e) and 13.233 ofthe Rules ofPractice, which require that a notice ofappeal!)be filed not later than 10 days (plus an additional five days ifmailed) from the service date ofthis decision, and 2) be perfected with a written briefor memorandum not laterthan 50 days (plus an additional five, if mailed) from the service date ofthis decision. The notice ofappeal and briefor 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, orb) delivered personally or via expedited courier service to the Federal Aviation Administration, 600 Independence Avenue, S.W., Wilbur Wright Building-Suite 2WIOOO, Washington, D.C. 20591, Attn: Hearing Docket Clerk, AGC-430. A copy ofthe notice ofappeal and briefor memorandum also must be sent to agency counsel. Service upon the presidingjudge is optional. 28

### 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 121.6Q3(d), 

### inclusive and those violations be and are

·' • '.**~~. ~'**  j • • 

### hereby DISMISSED.

Richard C. Goodwin U.S. Administrative Law Judge
Attachment

- Service List

1.,. •.:,:· ..



### 29

### 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 2W1 000 1

Todd C. Emerson, Re,)pondent 's Counsel Director- Government and Legal Affairs SkyWest Airlines 444 South River Road St. George, UT 84790 TEL: 435-634-3530 FAX: 435-634-3505 Robert Spitzer, Complainant's Counsel Attorney, Office ofRegional 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 ONE COPY

The Honorable Richard C. Goodwin, Administrative Law Judge Office ofHearings, M-20 U.S. Department ofTransportation 1200 New Jersey Avenue, S.E. (E11-310) Washington, DC 20590 TEL: 202-366-2139 Attorney-Advisor 202-366-5121 StaffAssistant FAX: 202-366-7536 FDMS No. FAA-2012-0869 (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 2WI000, Washington, DC 20591; Attention: Hearing Docket Clerk, AGC-430.