### SERVED: July 16, 2015

U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, DC IN THE MATTER OF SKYWEST AIRLINES DOCKETNO. FAA-2012- 0904 (Civil Penalty Action) -. -.;i.}

INITIAL DECISION OF ADMINISTRATIVE LAW JUDGE L Glossary ACARS

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 ofFederal Regulations Cargo Load Report Center ofGravity 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, NVSalamone Carl Salamone, SkyWest witness SkyWest 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 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 N603SK operated as Flight 4781 (hereinafter "N603SK/4781") from Salt Lake City International Airport (hereinafter "SLC"), Salt Lake City, UTto 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 ofProposed Civil Penaltythat 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

1SkyWestAirlines Docket Numbers FAA2012-0617, FAA 2012-0619, FAA2012-0868, FAA2012 -0869, FAA 2012-0872, FAA 2012-0873, FAA 2012-0874 and FAA 2012-0904. 2By 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., onMay 19,2014 onthe consolidated

cases. The FAAwas represented by Jeffrey Harper, Esq., FAA Office ofRegional Counsel, Renton, Washington. :.: I SkyWest was represented by Michael L. Dworkin, Esq., ofDworkin & Associates, San Francisco, California 94104 and Todd C. Emerson, ESQ., General Counsel, SkyWestAirlines,St. George, Utah. Posthearingbriefs were filed byboth parties. The matter is now ready for decision. V. Jurisdiction Sky Westwas 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 is subject to those regulations. 

### VI. Burden ofProof The FAAwas the petitioning party withthe initial burden ofproof(

### 14 C.

### FR. § 

### 13.224). VII. Allegations A. FAA'srecitation offacts The FAA alleged:

3Section II (FAA's Complaint) 1. Sky Westwas at all times material the holder ofScheduled Air Carrier Certificate No. SWIA011A, and conducted its operations pursuantto Part 121 ofthe Federal Aviation Regulations (hereinafter "FAR"). 2. Paragraph D085 ofSkyWest's Operations Specifications (hereinafter "OpSpecs") authorized SkyWestto use N603SK, a Bombardier CL-600-2C10 civil aircraft, inthe conduct ofSkyWest's Part 121 operations. 3. Paragraph A098 ofSky 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. SkyWest'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"ofCOMAT.

48. 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 inthe aircraft. 9. SkyWest's W&.B Manual (Temporary Revision dated 14 FEB 11), Chapter 3, paragraph 3.B.2. statedthe flight deck crewmemberused the information from the CLRto constructthe Aircraft Communications Addressing and Reporting System (hereinafter "AGARS'}lo'-!d1inanifest. 10. Sky West's W&B Manual, Chapter 4, paragraph 8.14, required the loading agent to write the total weight (in pounds) ofCOMAT loaded ineach 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. 

### 516. SkyWestthereafter operated**N603S~4781** from SLC to RNO. Section IV (FAA's Complaint) Sky West paid civil penalties in eight (8) previous cases involving loading ofcargo and baggage·contraryto approved procedures. SectionV (FAA's Complaint) Byreason ofthe foregoing facts and circumstances, the FAA alleged SkyWest violated the following sections ofthe Federal Aviation Regulations (14 C.P.R.):

a. Section 119.5(g), inthat, as a direct air carrier, it operated inviolation of appropriate operations specifications. b. Section 119.5(I), in that itoperated 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 manifestthat accuratelyreflected the weight ofthe 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), inthat it operated flights whenthe aircraft was not loaded according to an approved schedule. In accordance with Title 49 UnitedStates Code (hereinafter "US.C.") Sections 46301 (a) and (d) (Transportation), the FAA alleged SkyWestwas liable for a civil penalty not to exceed $27,500 for each ofthe violations noted. Under the facts and circumstances 6fthis case, the FAA alleged a civil penalty of $40,000 was appropriate.

6B. SkyWest's recitation offacts Answering Section I ofthe Complaint, SkyWest averred: SkyWest admitted that it was advised through a FinalNotice ofProposed Civil Penaltythatthe FAA proposedto 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 ofthe Complaint, SkyWest averred: 1. In response to Paragraph 1, 

### Sky;w**~st~**admitted that was at all times material herein, the holder ofScheduled Air Carrier Certificate No. SWIAO 11A, and conducted its operations pursuantto Part 121 ofthe FAR. 2. Inresponse to Paragraph 2, SkyWest admitted that Paragraph D085 of SkyWest's OpSpecs authorized SkyWestto use N603SK, a Bombardier CL600-2C10 civil aircraft, in the conduct ofSkyWest's Part 121 operations. 3. In response to Paragraph 3, SkyWest admittedthat 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 1 0."

. ; ; .,.•:':.\, l; ,:t.!· 4. Inresponse to Paragrapn4, SkyWest 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 admittedthat its W&B Manual, Chapter 2, paragraph 2.A.14 defined COMAT" as a "Company material such as interoffice correspondence, aircraft supplies, etc."

76. In response to Paragraph 6, SkyWestadmittedthat 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 ofCOMAT. 8. In response to Paragraph 8, Sky West admitted thatits W&B Manual (Temporary Revision dated 14 FEB 11), Chapter 3, paragraph 2.1.2 required the loading agent to verify the actual weight ofCOMAT loaded inthe 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 CLRto constructthe ACARS loadmanifest. 10. Inresponse to Paragraph 10, SkyWest admittedthat 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, containedthe warning: WARNING- INACCURATE LOADING, REPORTING, OR FAlLURE TO REPORT INFORMATION COULD CAUSE ISSUES WITH AIRCRAFT PERFORMANCE AND HANDLING, RESULTING IN THE ENDANGERMENT OF HUMAN LIFE Answering Section III ofthe 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 boundfor RNO.

813. Inresponse to Paragraph 13, SkyWest averred it was without sufficient information orknowledge from which to form a beliefas to the truth ofthe 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, SkyWest admitted the CLRfor N603SK/4781
.: :i·**~"** ··f..i···· .:'' )

. ....... listed 160 pounds ofCOMAT on boardN603SK/4781. 15. Inresponse to Paragraph 15, SkyWest averred it was without sufficient information orknowledge from which to form a beliefas to the truth ofthe allegation thatthe inaccurate data onthe CLRwas. used to construct the ACARS load manifest for N603SK/4781, and therefore denied the same. 16. Inresponse to Paragraph 15, SkyWest admitted it operatedN603SK/4781 from SLC to RNO. Answering Section IV ofthe Complaint, SkyWest averred: Inresponse to Paragraph 17, Sky\Yest admitted it paid civil penalties on eight (8) previous cases involving loading ofcargo contrary to approved 

### t

. .C•!r••
. •.,;. procedures. ' 

### ' Answering SectionV ofthe Complaint, Sky West averred: SkyWest generally denied all remaining allegations setforth inthe 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 knownbut which may become knownthrough 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 N603SK/4781 from SLC to RNO on June 15,2011, according to the facts alleged by the FAA. Underthe facts and circumstances ofthis case, was a civil penalty of$40,000 appropriate.
. IX. Summary ofTestimony and**J;videnc~.** ··tL All admitted testimonial and documentary evidence was reviewed and considered. Only briefhighlights are summarized herein. A. FAA's Case Benjamin Henry Blauer Benjamin Henry Blauer (hereinafter "Blauer") had seventeen 17 years ofaviation experience teaching flight school inboth 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 bythe Federal Aviation Administration atthe SkyWest Certificate Management Office.2

2 Tr. p. 167, I. 19 top. 169, I. 7. 10On June 15,2011, Blauer was at RNO to conduct inspections on SkyWest stations for both United Express, and Delta Connection operations out ofthe RNO. Blauer observedthatN603SK/4781 had two (2) boxes ofcompany 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 ofCOMAT. Blauer obtained a copy q:fline CLR (FAA# C-29) and load manifest report (FAA# C-30) for N603SK/4781. Blauer also took pictures ofthe COMAT (FAA# C-31. The CLR did not reflect the COMAT which was onboard N603SK/4781? Cross Blauer explained he obtained the weights from the tags attachedto the two pieces ofCOMAT. The weight from the two tags did not match the weight onthe 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 ofthe cases in the consolidated docket. Ayers had worked inthe

# 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. Hehadbeen with the FAA approximately six (6) years atthe SkyWest Certificate Management Office. He was the "Principle Operations Inspector" (hereinafter "POI") for SkyWest andhadthe overall responsibility for all ofthe 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. 8top. 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 ofaircraft as well as training specific to the type aircraft at issue in these cases. Ayers was familiar with SkyWest'sWeight 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 was a tally worksheetfor computing the loads orthe weight ofcargo loaded on the aircraft. A 'standardbag' was a term used for an average bag assigned a weight ofthirty (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 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 weightrange do ofzero (0) to fifty (50) pounds
.. Ayers testified the load manifest containedthe total weights for aircraft flights. 6 Ayers described SkyWest's "Weight and Balance Handbook" as a general bookwhich contained bothbackground 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 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 our ruling. Ayers' proffer was:

6 The witness identified FAA# C-6, C-9, C-12, and C-14 as examples ofload manifests. 12...the accident in question involved an aircraft thatwas loaded no[t] in compliance withthe operator's approved weight andbalance program. Incorrect information was provided to the flight crew which allowedthem or did not allow them, rather, to accurately complete their load manifest for their flight. That resulted in thembeing unable to detect an aft CO
...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 andthe objection was sustained. The testimony was notreceived. With respect N603SK/4781,7Ayers testified the weight onthe load manifest reflected the weight as calculated using FAA# C-29, the CLR, however, the CLR and load report were inaccurate, and therefore performance datawere inaccurate. Ayers further testified that in a couple ofthe cases8 where the load manifest weight matched the CLRthere was still a violation ofthe 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 notrelevant to whether those procedures were actually followed. Ayers drew an analogy that, itwas not enoughto get the right answer, but to show your workto getthe answer and that work also had to be correct. Ayers testified he believed there was an unknown impact on safety posedby these discrepancies, butthathe was not surprisedthat 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. 13Cross 10 Ayers testifiedthe front side ofthe CLRworksheet was where the math was tallied up while the back side ofthe CLR was the worksheet to assistthe 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 that when the inspectors 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 inplace 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. Redirect11 Ayers testified both copies ofthe CLR should be updated with any last minute changes. Ifthe load manifestwas inaccurate, the process wasn't followed. COMAT was required to be marked onthe 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 be reflected onthe CLR.

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

14Recross 12 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 inthe consolidated docket set forth above: FAA# Exhibits C-1 through C-36, inclusive; there is no FAA#C-37; FAA# C-38

was notreceived [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. B. SkyWest's' Case Carl Salamone, deposition transcript, 2014050613 The testimony ofCarl Salamone (hereinafter "Salamone") was taken by deposition (SW# 3-3) and introduced into therecord by agreement ofthe parties. Counsel for bothparties were present at the deposition. Salamone'stestimony was applicable to all ofthe cases in the consolidated docket. Salamonehad 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 ofaircraft. He had 4200 flight hours, ofwhich 3200 were in

12 Tr. p. 222, I. 3, top. 223, I. 1. 13 Tr. p. 227, I. 7 top. 281, I. 17. 15CRJs. 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 inthe 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 SkyWest. 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 calculatedbythe crew and also the alleged weight and balance as it would have been observedby an inspector(s) for each ofthe flight violations. Inthe analysis of these flights, Salamone took all informationthat 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 oritems that may have beenpresent and the manufacturer documentation for the Canadair seriesjets to determine performance and the weight and balance in that respect. He also took into account runway length, air temperature and fuel Weight.



### 16Aircrafttakeoffweight was defined as the gross weight ofthe aircraft inthe takeoffconfiguration, as it would beginthe takeoffsegment ofthe flight. Itwas the full weight ofthe airplane immediately priorto beginning takeoff, including passengers, cargo, ballast, et al. AircrafttakeoffCenter ofGravity (hereinafter "COG") wasthe 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

was a single point, a mathematical point. Itwas a single point like a teeter-totter, where that airplane would balance onone particular point where the weight was mathematically

seen onthat location onthe airplane. COG was important for stability reasons, for control reasons, and itwas reallyjust a majorpart ofthe physics offlight, to ensure that the plane will perform as itwas designed to. Other factors considered in Salamone's ;walysis includedrunway performance, ,i \**~.** ·•**d.~** flight climb performance, and maximum operating altitude. Those factors meantthat the airplane would notbe 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, thatthe climbing performance was adequate, and that it wouldbe able to obtain its operating altitude for all phases offlight and complete that flight as planned. Salamonetestifiedthat for the fourteen (14) flights hereviewed, given the weights that the crews hadrecorded and believedthatthey were operatingunder, none of the flights exceededmaximumtakeoffweight and none ofthe flights were unsafe in anyway.

,..

17In Salamone's opinion, taking into accountthe 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 bythe FAA inspectors. Taking into accountthree ofthose factors, either as calculated by the SkyWest crews atthe time or adjusting for the observed variations by FAA inspectors, 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. With respect to N603SK/4781/4 Salamone testified the flight crew calculated takeoffweight for this flight was 11,600 pounds belowthe maximum for that runway. So,

an additional 30 pounds would have been a very small change in maximumtakeoff weight. Mathematically it would have moved the COG apointto one percent ofmean aerodynamic chord, which is a very small shift but, mathematically it does exist. Itdid 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,justbecause it costs

more to fly around the extra weight. However, SkyWesthas a policy ofadding contingency fuel that was above and beyondthe 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 ofaircraft loading and baggage

14 Tr. 266, I. 12 top. 268, 1. 10. 18handling 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. Itcould have light, darkness issues, as well a flurry ofactivity making focus difficult for that particular employee. Itwas a very active area that 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 when you throw in some difficult environmental factors, it makes that task even more difficult. Salamone was notparticularly surprised at bag count discrepancies. Cross 15 Salamone testified the reason why he tookrunway 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

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 ofthe aircraft would affect 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 determine performance requirements. Christopher C. Brown16 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,

15 Tr.p.281,1.18top. 291,1.6. 16 Tr. p. 298, I. 20 top. 324, I. 14. 19such as weight and balance, ground deicing program, flight operations manual, standard operations procedures, and such. He had been inthe 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 certificate. Brown'stestimony was applicable to all ofthe cases in the consolidated docket.Browntestified about SW# R5-1, which was a letterto 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 ofweight to the basic operating weight ofeach aircraft. In doing so, the performance calculations would be performed as ifthe weight was physically onboard the aircraft, even though, in most cases, the weight would 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 withinthe manufacturer's operating envelope. Browntestified the proposal was similar to a program implementedby 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 ofall witnesses to have beentruthful and credible.

20X. BriefSummary ofEvidence and Testimony On June 15,2011, at SLC, SkyWest loaded passengers andbaggage onto N603SKJ4781 bound for RNO. SkyWest's personnel at SLC loaded 190 pounds of COMAT onto N603SKJ4781. The CLRforN603SKJ47811isted 160 pounds ofCOMAT

onhoardN603SKJ4781. The inaccurate data onthe CLRwas used to construct the ACARS load manifest for N603SKJ4781. SkyWestthereafter operatedN603SKJ4781 to RNO. XL Law A. The FAAhas theburden 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. § 13.223. B. 49 US.C. Sections 46301(a) and (d) (Transportation) provide for the imposition

..· \ \·1
.. ').\'•' ofcivil penalties in FAA cases. A person is liable to the United States Government for a civil penalty ofnotmore 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 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. Nopersonmay operate as a direct air carrier or as a commercial operator in violation ofany deviation or exemption authority, ifissued to that person orthatperson's representative.

.**~-** ' ;

212. 14 C.F.R. Section 119.5(1), provides: No person may operate an aircraft under this part, part 121 ofthis chapter, or part 135 ofthis chapter in violation ofan air carrier operating certificate, operating certificate, or appropriate operations specifications issued underthis 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 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.F.R. Section 121.693(d), provides: Evidence that the aircraft is loaded according to an approved schedule that insures that the 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 evidence standard, we make the following findings: A. 14 C.F.R. Sections 119.5(g) and119.5a2 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 22Weight & 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 blockthe actual count ofthe different classes ofbaggage 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 markingthe CLRs for flight N603SK/4781 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 on the CLRs, SkyWest, a Part 121 air carrier, did not operate in conformance with its OpSpecs. Itthus 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 ofthe cargo and baggage. Subsection (c) compels the use of"approved procedures" in computing the total weight ofthe aircraft. Section 121. 693(d) requires that the load manifest contain evidence that the aircraft was loaded according to an approved schedule which insures that the center 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 method used insures that the center ofgravity 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 thatthey were

23operating 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 believedthat they had and the calculations did not exceed the manufacturer's suggested limitations nor as perceived by the FAA inspectors. None of the flights would have been in excess ofthe manufacturer's limitations for takeoffweight, center ofgravity, runway performance, climbperformance, or maximum operating altitude. ·\

. i·· 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 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 ofgravity was within approved limits. Indeed, Salamone's testimony and accompanying evidence suggestedthatthe aircraft weight and center ofgravity 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 ofthe totality ofevidentiary facts and testimony, by a preponderance ofthe evidence standard, we find:

17 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; 

### 24A. 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 of14 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 ofthis case, a civil penalty of$40,000 was appropriate inthis 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 FAAhad a cooperative working relationship with SkyWest. Once notified ofthe violations, SkyWest took 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.

25The FAA argued, and SkyWest admitted, that SkyWestpaid 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 and testimony did not supportthe 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. Theyhad no material effect onweight and balance or on aircraftperformance. SkyWest showedthat in no instance was safety of:flight at even the slightestrisk (See Tr. p. 227, 

### 1. 7 top. 281, 

### 1. 17.). As SkyWest noted, the CLRs were not dispositive. The mostimportant factor in the weight and balance contextunquestionably was the load manifest. It wasthis documentthatwas computedby the flight crew and used bythem to evaluate howtheir calculations will affect operational safety. The FAA failed to show for any ofthe flights that SkyWestfailed to follow the scheme ofits Weight & Balance Manual in deriving its load manifests. Infact 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 thatjust one civil penalty per flight is appropriate. To assess a civil penaltybased on the multiple violations per flight fourid is, underthe circumstances, unfair, unwarranted, and disproportionate to the offenses.



### 26The 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 secondprohibits operating under Part 121 inviolation ofOpSpecs. The distinction betweenthe two provisions for the presentpurposes is inconsequential. As such, penalizing SkyWestfor bothviolations wouldbeunjustified. We note thatthe 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 compoundthe sanction
..." (FAA# C-40, p. 7-10). Underthese circumstances, one civil penalty- in a minimal amount of$250 per violation- suffices. In sum, we find thatthe**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. Thosenot explicitly discussed are rejected or dismissed as mootedbythis Initial Decision. WHEREFORE, evidence andtestimony having beenheard and considered itbe and is hereby ORDERED as follows: 18

18 This decision may be appealed to the Administrator ofthe FAA. The notice ofappeal must conform to sections 13.210, 13.211(e) and 13.233 ofthe Rules ofPractice, which require that a notice ofappeal 1)be filed not laterthan 10 days (plus an additiopal five,**~** ...**aY~.** ip!Uailed) from the service date ofthis decision, and 2) be perfected with a written briefor memorandum not later than 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 WrightBuilding-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 ofthe notice ofappeal and brieformemorandum also must be sent to agency counsel. Service upon the presidingjudge is optional. 271. We reaffirm our ruling and SkyWest's objectionto the FAA's proffer of testimony from Ayers for reasons set forth hereinabove SkyWest's objectionbe and is hereby sustained. Thetestimony was notreceived. 2. SkyWestAirlines, 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 3. We find the FAA did not make a primafacie case with respect to the violations of14 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 84790 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 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 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 Avenue, S.W
.. Wilbur Wright Building-Suite 2WI000, Washington, DC 20591; Attention: Hearing Docket Clerk, AGC-430.The Honorable Richard C. Goodwin,

### Administrative Lavv Judge Office ofHearings, M-20 U.S. Department ofTransportation 1200NewJersey Avenue, S.E. (Ell-310) Washington, DC 20590 TEL: 202-366-2139 Attorney-Advisor 202-366-5121 Legal Assistant FAX: 202-366-7536