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### SERVED: July 16, 2015

U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

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

- 0874 (Civil Penalty Action)

INITIAL DECISION OF ADMINISTRATIVE LAW JUDGE I. Glossary ACARS
A&P Ayers Brown C.F.R. CLR COG COMAIL COMAT FAA FAA# 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 Mail Company Material Federal Aviation Administration, Complainant Federal Aviation Administration Exhibit
l '·· ,FAR Federal Aviation Regulation MSO Missoula InternationalAirport, Missoula, MT Flight 4540 SkyWest flight MSO to SLC onMarch 3, 2011 N614SKJ4445 SkyWest flight PHX to SLC on March 3, 2011 N800SKJ4553 SkyWest flight SAN to SLC on March 3. 2011 N816SKJ4613 SkyWest flight OMAto SLC on March 3, 2011 OMA Eppley Airfield, Omaha, NE OpSpecs Operations Specifications Perkins Adam Scott Perkins PHX Phoenix Sky Harbor International Airport, Phoenix, AZ Salamone Carl Salamone, SkyWest witness SAN San Diego International Airport, San Diego, CA SkyWest SkyWest Airlines, Inc., Respondent SLC Salt Lake City International Airport, Salt Lake City, UT SMS . . i
. 'h. Safety**Man~gement** System 

# sw SkyWest Exhibit U.S.C. United States Code W&B Manual 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 ofthe parties. 1

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.This case involved four (4)**~kyW t;~~**  flights occurring on March 3, 2011 including: SkyWestN800SK operated as Flight 4553 (hereinafter "N800SK/4553") from San Diego International Airport (hereinafter "SAN"), SanDiego, California to Salt Lake City International Airport (hereinafter "SLC"), SaltLake City, Utah, March 3, 2011.
SkyWestN614SK operated as Flight 4445 (hereinafter "N614SK/4445") from Phoenix Sky Harbor International Airport (hereinafter "PHX"), Phoenix, Arizona, to SLC, March 3, 2011.
SkyWestN965SW operated as Flight4540 (hereinafter "Flight 4540") from Missoula International Airport (MSO), Missoula, Montana, to SLC, March 3, 2011. Pleadings describe this flight as flown byboth aircraftN965SW and N614SK.
SkyWestN816SK operated as Flight 4613 (hereinafter "N816SK/4613") from at Eppley Airfield (hereinafter "OMA"), Omaha, Nebraska, to SLC, March 3, 2011. III. Procedural History OnJuly 26, 2012, SkyWestAirlines, Inc., (hereinafter "SkyWest") was advised through a Final Notice ofProposed Civil Penalty thatthe Federal Aviation

3Administration (hereinafter "FAA") proposedto access a civil penalty in the amount of $160,000. OnAugust 8, 2012, SkyWest Airlines, through legal counsel, submitted a written for a hearing. On September 10,2012, SkyWesUiled**i~s** Answer. ByOrder dated August 21, 2013 we consolidated this case with other cases with similar violations ofthe FARs, similar issues and similar defenses ofSkyWest. IV. Hearing A hearing was held in Salt Lake City, UT., on May 19, 2014 onthe consolidated
cases. The FAAwas represented by Jeffrey Harper, Esq., FAA Office ofRegional Counsel, Renton, Washington. SkyWest was represented by Michael L. Dworkin, Esq., ofDworkin & Associates, SanFrancisco, California94104 and Todd C. Emerson, ESQ., General Counsel, Sky West Airlines, St. GeJrge, Utah:

## 'i·~''' Posthearing briefs were filed byboth parties. The matter is nowready for decision. V. Jurisdiction SkyWestwas at all times material hereto the holder ofScheduled Air Carrier Certificate No. SW1A011A, and conducted its operations pursuantto Part 121 ofthe Federal Aviation Regulations (FAR) and was subjectto those regulations
.

. ,!t ;;i<

' ··'4VI. Burden ofProof The FAAwas the petitioning party withthe initial burden ofproof(

### 14 C.

### FR. § 

### 13.224). VII. Allegations A. FAA's recitation offacts

· The FAA alleged:

Section II (FAA's Complaint) 1. Sky Westwas at all times material herein the holder ofScheduled Air Carrier Certificate No. SWIA011A, and con,,<;Iucted its operations pursuant to Part 121 ofthe Federal Aviation Regulations (hereinafter "FAR"). 2. Paragraph D085 ofSkyWest's Operations Specifications (hereinafter "OpSpecs") authorized SkyWestto use N465SW, a Bombardier CL.-600·2B9 civil aircraft, in the conduct ofSkyWest's Part 121 operations. 3. Paragraph D085 ofSky West's OpSpecs authorized SkyWestto use N614SK,
a Bombardier CL-600-2C10 civil aircraft, inthe conduct ofSkyWest's Part 121 operations. 4. Paragraph D085 ofSkyWest's OpSpecs authorized SkyWestto use N800SK,
a Bombardier CL-600-2D24 civil aircraft, inthe conduct ofSky West's Part 121 operations. 5. Paragraph D085 ofSkyWest's OpSpecs authorized SkyWestto use N816SK,
a Bombardier CL-600-2D24 civil aircraft, in the conduct ofSkyWest's Part 121 operations.



### 56. Paragraph A098 ofSky West's OpSpecs required that aircraft loading for Bombardier CL-600-2B19 and Bombardier CL-600-2C10 aircraft be accomplished in accordance with SkyWest's Weight & Balance Operations Manual, SP4100, Part XII, revision qrig. ofAPR 10 withtemporary revisions dated 18 OCT 10 and 14 FEB 11 (hereinafter "W&B Manual"). 7. ParagraphA099 ofSkyWest's OpSpecs required that aircraft loading for Bombardier CL-600-2D24 aircraft be accomplished in accordance with SkyWest's W&B Manual. 8. SkyWest's W&B Manual contained the loading schedules and instructions for SkyWest's Bombardier CL-600-2B19 aircraft. 9. SkyWest's W&B Manual contained the loading schedules and instructions for SkyWest's Bombardier CL-600-2C10 aircraft. 10. SkyWest's W&B Manual contains the loading schedules and instructions for Sky West's Bombardier

### CL-600-2D2~'aircraft. 11. SkyWest's W&B Manual, Chapter. 2, paragraph 2.A.6 defined "Cargo" as everything carried inthe cargo bin/pit ofthe aircraft, including baggage, cargo, ballast, "company material" (hereinafter "COMAT") and live animals. 12. SkyWest's W&B Manual, Chapter 2, paragraph 2.A.24 defined "Heavy Checked Bags" as any bag weighing more than 50 pounds, but less than 100 pounds. 13. Sky West's W&B Manual, Chapter 3, paragraph 2.0.1 required a "designated CS Ground Operations loading agent" to evaluate the classification ofbags

;-_6

## , ..

and to mark the number ofstandard and heavy bags on the Cargo Load Report (hereinafter "CLR"). 14. SkyWest's W&S Manual, Chapter 3, paragraph 2.1.2 required the designated loading agent to verify the piece count ofall Standard Checked Heavy Checked and planeside Loaded/Service Item Baggage, and to verify the actual weight for all cargo, Company Material (hereinafter "COMAT"), Company Mail (hereinafter "COMAIL"), and all other items loaded in the aircraft cargo bin/pitupon completion ofloading
.. , 

## .-.,. 15. SkyWest's W&B Manual, Chapter 41 paragraph 4.A.2, assigned live animals checked as baggage a 30 pound weight, or 60 pounds for those meeting heavy baggage criteria. 16. SkyWest's W&B Manual, Chapter 4, paragraph 8.8 required the loading agent to write the total number ofStandard Checked Baggage loaded in each cargo bin onthe CLR inthe "Standard Checked" block. 17. SkyWest's W&B Manual, Chapter 4, paragraph 8.9 required the loading agent to write the total number ofHeavy Checked Baggage loaded in each cargo bin
onthe CLRinthe "Heavy Checked"' block. 18. SkyWest's W&B Manual, Chapter 4;,paragraph 8,15 required the loading agent to write the total weight ofballast loaded in theaircraft on the CLR in the "Ballast" block. 19. SkyWest's W&B Manual, Chapter 4, paragraph 8.26 required the loading agent to circle FWD or AFT as appropriate on the "Live Animal" line ofthe CLRto indicate a live animal had been loaded on the aircraft.



### 720. SkyWest's W&B Manual, Chapter 4, paragraph 11-AircraftLoading, containedthe warning: WARNING- INA.CClJRATijLOADING, REPORTING, OR FAlLURE TO REPORT INFORMATION COULD CAUSE ISSUES WITH AIRCRAFT PERFORMANCE AND HANDLING, RESULTING IN THE ENDANGERMENT OF HUMAN LIFE Section III (FAA's Complaint)

N800SK/4553 onMarch 3, 2011 21. OnMarch 3, 2011, at SAN, SkyWest loaded passengers and baggage onto N800SK/Flt 4553 bound for SLC. 22. SkyWest's personnel at SAN loaded forty-three (43) Standard Checked Bags, three (3) Heavy Checked Bags, and one (1) live animal ontoN800SK/4553. 23. The CLRfor NSOOSK/4553 listed 

### "46 Standard Cheeked Bags, 0 Heavy
l !'·**t~?** ,; 'l ;**~** . •'
. Checked Bags, and 0 live

### anim~1s"\A boardNSOOSK/4553. 24. SkyWestthereafter operatedNSOOSK/4553 from SAN to SLC.

Section IV (FAA's Complaint) N614SK/4445 on March 3, 2011 25. OnMarch 3, 2011, at PHX, SkyWest loaded passengers and baggage onto N614SK/4445 bound for SLC. 26. SkyWest's personnel at PHX loaded forty-three (43) Standard Checked Bags and three (3) Heavy Checked Bags onto N614SK/4445. 27. CLRfor Flight 4445 listed "46.Standard Checked Bags" and zero (0) Heavy**~** '

## ..**~ ~.** **~** Checked Bags" onboard N614SK/4445. 828. SkyWest thereafter operated N614SK/4445 from PHXto SLC.

Section V (FAA's**Complai~t)** Flight 4540 on March 3, 2011 29. OnMarch 3, 2011, at MSO, SkyWest loaded passengers and baggage onto N465SW (sic) to be operated as Flight 4540 bound for SLC. 30. SkyWest'spersonnel at MSO loaded 250 pounds ofballastand 100 pounds of COMAT onboardN465SW (sic). 31. The CLRfor Flight 4540 listed 350 pounds ofCOMAT onboardN614SK (sic). 32. SkyWestthereafter operatedN465S (sic) as Flight 4540 from MSO to SLC.

Section VI (FAA's Comphtint) · . N816SK/4613 on March 3, 2011**~~L.**..·'

33. On March 3, 2011, at OMA, SkyWest loaded passengers and baggage onto N816SK/4613 bound for SLC. 34. SkyWest's personnel at OMA loaded two (2) live animals on board N816SK/4613. 35. The CLRfor N816SK/Flt 4613 listed "0 live animals" onboard N816SK/4613. 36. SkyWestthereafter operatedN816SK/4613 to SLC.



### 9Section VII (FAA's Complaint) SkyWestpaid civil penalties in eight (8) previous cases involving loading of cargo contrary to approvedprocedures. SectionVIII (FAA's**Compl~int)** Byreason ofthe foregoing facts and circumstances, the FAA alleged SkyWest violated the following sections ofthe FARs (14 C.F.R.):
a. 14 C.F.R. Section 1]9.5(g), inthat, as a direct air carrier, it operatedin violation ofan appropriate operations specification. b. 14 C.F.R. Section 119.5(1), in thatitoperated aircraftunder Part 121 in violation ofits operations specifications,
c. 14 C.F.R. Section 121.693 (a), inthat it, operated flights without a load manifestthat accurately reflected the weight ofthe cargo and baggage. d. 14 C.F.R. Section 121.693(c), in that it operated flights when the total weight ofthe aircraftwas not cofuputed under approved procedures
.. e. 14 C.F.R Section 121.93(d), inthat it operatedflights when the aircraft
was not loaded according to an approved schedule. In accordance with 49 UnitedStates Code (hereinafter "U.S.C.") Sections 46301(a) and (d) (Transportation), SkyWestwas liable for a civil penalty not to exceed $27,000 for each ofthe violations noted. TheFAA allegedunder the facts and circumstances ofthis case a civilpenalty of$160,000 is appropriate. B. SkyWest'srecitation offacts Answering Section I ofthe Complaint, SkyWest averred:

10SkyWest admitted that it was advised through a Final Notice ofProposed Civil Penalty thatthe FAA proposed to assess a civil penalty in the amount of$160,000, and onAugust 8, 2012 SkyWest submitted a written request for a hearing. Answering Section II ofthe Complaint, SkyWest averred: 1. In response to Paragraph 1, SkyWest admitted that it was at all times material hereto, the holder ofScheduled Air Carrier Certificate No. SWIAOllA, and conducted its operations pursuantto Part 121 ofthe FAR. 2. Inresponse to Paragraph 2, SkyWest admitted that Paragraph D085 ofSkyWest's Op Specs authorized SkyWestto use N465SW, a Bombardier CL-600-2B19 civil aircraft, in the conduct ofSkyWest's Part 121 operations. 3. In response to Paragraph 3, SkyWest admitted that Paragraph D085 ofSkyWest's OpSpecs authorized SkyWestto use N614SK, a Bombardier CL-600-2Cl0 civil aircraft, inthe conduct ofSky West's Part 121 operations. 4. In response to Paragraph 4, Sky West admitted that Paragraph D085 ofSky West's OpSpecs authorized SkyWest to use N800SK, a Bombardier CL-600- 2D24 civil aircraft, in the conduct ofSkyWest's Part 121 operations. 5. In response to Paragraph 5, SkyWest admitted that Paragraph D085 ofSkyWest's OpSpecs authorized SkyWestto U$,eN816SK, a Bombardier CL-600-2D24 civil aircraft, inthe conduct ofSkyWest's Part 121 operations. 6. In response to Paragraph 6, SkyWest admitted that Paragraph A098 ofSkyWest's OpSpecs required that aircraft loading for Bombardier CL-600-2B19 and Bombardier CL-600-2C10 aircraft be accomplished in accordance with SkyWest's W&B Manual.

117. Inresponse to Paragraph 7, SkyWest admittedthat Paragraph A099 ofSkyWest's OpSpecs required that aircraft loading for Bombardier CL-600-2D24 aircraft be accomplished in accordance with Sky West's W&B Manual. .: ,, r'· b.J 8. In response to Paragraph 8, SkyWest admitted that its W&B Manual contained the loading schedules and instructions for SkyWest's Bombardier CL-600-2Bl9 aircraft. 9. In response to Paragraph 9, SkyWest admitted that its W &B Manual contained the loading schedul.es and instructions for SkyWest's Bombardier CL-600-2Cl0 aircraft. 10. In response to Paragraph 10, SkyWest admitted that its W&B Manual contained the loading schedules and instructions for SkyWest's Bombardier CL-600-2D24 aircraft. 11. In response to Paragraph 11,; SkyWest adltnitted that Sky West's W&B Manual, Chapter 2, paragraph 2.A.6 defined "Cargo" as everything carried inthe cargo bin/pit ofthe aircraft, including baggage, cargo, ballast, company material (COMA 

### T) and live animals. 12. In response to Paragraph 12, SkyWest admittedthat**it~** W&B Manual, Chapter 2, paragraph 2.A.24 defined "Heavy Checked Bags" as any bag weighing more than 50 pounds, but less than 100 pounds. 13. Inresponse to Paragraph 13, SkyWest admitted that its W&B Manual, Chapter 3, paragraph 2.D.l required a "designated CS Ground Operations loading agent" to evaluatethe classification ofbags and to markthe number ofstandard and heavy bags on the CLR.

1214. In response to Paragraph 14, SkyWest admitted that its W&B Manual, Chapter 3, paragraph 2.1.2 required the designated loading agentto verify the piece count of all Standard Checked, Heavy Checked, and planeside Loaded/Service Item Baggage, and to verify the actual weight for all cargo, COMAT, COMAIL, and all other items loaded inthe aircraft cargo bin/pit upon completion ofloading. 15. Inresponse to Paragraph 15, SkyWest denied that its W&B Manual, Chapter 4, paragraph4.A.2 assigned live animals checked as baggage a 30 pound weight, or
i', ,, 60 pounds for those meeting heavy baggage criteria. 16. In response to Paragraph 16, SkyWest admitted that its W&B Manual, Chapter 4, paragraph 8.8 required the loading agentto write the total number ofStandard Checked Baggage loaded in each cargo bin on the CLRinthe "Standard Checked" block. 17. Inresponse to Paragraph 17, SkyWest admitted that its W &B Manual, Chapter 4, paragraph 8.9 required the loading agent to write the total number ofHeavy Checked Baggage loaded in each cargo bin onthe CLRinthe "Heavy Checked" block. 18. Inresponse to Paragraph 18, SkyWest**aq~itted** that its W&B Manual, Chapter 4,

,- '. .:,;,f paragraph 8.15 required the 'loading agent to write the total weight ofballast loaded inthe aircraft onthe CLR in the "Ballast" block. 19. Inresponse to Paragraph 19, SkyWest admitted thatits W&B Manual, Chapter 4, paragraph 8.26 required the loading agent to circle,FWD or AFT as appropriate
onthe "Live Animal" line ofthe CLRto indicate a live animal has been loaded on the aircraft.
1320. In response to Paragraph 20, SkyWest admitted that SkyWest's W&B Manual, Chapter 4, paragraph 11

- Aircraft Loading, contained the warning: WARNING- INACCURATE'.LOADING, REPORTING, OR FAILURE TO REPORT INFORMATION COULD CAUSE ISSUES WITH AIRCRAFT PERFORMANCE AND HANDLING, RESULTING IN THE ENDANGERMENT OF HUMAN LIFE Answering Section III ofthe Complaint, SkyWest averred: N800SK/4553 onMarch 3, 2011 21. In response to Paragraph 21, SkyWest admitted that on March 3, 2011, at SAN, SkyWest loaded passengers and baggage onto N800SK/4553 bound for SLC. 22. In response to Paragraph 22, SkyWest was without sufficient information or knowledge from whichto form a beliefas to the truth ofthe allegationthat SkyWest's personnel at SAN loaded forty-three (43) Standard Checked Bags, three (3) Heavy Checked B'\gs, and<;rqe.:'(l) live animal onto N800SK/4553, and therefore denied the same. 23. Inresponse to Paragraph 23, SkyWest admitted the CLRfor N800SK/4553 listed "46 Standard Checked Bags, 0 Heavy Checked Bags, and 0 live animals" on boardN800SK/Flt 4553. 24. Inresponse to Paragraph 24, SkyWest admitted that it operatedN800SK/4553 from SAN to SLC.
Answering Section IV ofthe Complaint, Sky West averred: N614SK/4445 25. In response to Paragraph

## 25}·skyWestfaJ~itted that onMarch 3, 2011, at PHX, SkyWest loaded passengers and baggage onto N614SK/4445, bound for SLC. 1426. In response to Paragraph 26, SkyWest was without sufficient information or knowledge from which to form abeliefas to the truth ofthe allegation that SkyWest's personnel at PHX loaded 43 Standard Checked Bags, and three Heavy Checked Bags onto N614SK/4445, and therefore denied the same. 27. Inresponse to Paragraph 27, SkyWest admitted the CLRfor N614SK/4445 listed "46 Standard Checked Bags" and "0 Heavy Checked Bags" onboard N614SK/4445. ·.r\ I < ·•· \..: 28. In response to Paragraph 28, SkyWest admitted that it operatedN614SK/4445 from PHXto SLC.
Answering Section III ofthe Complaint, SkyWest averred: Flight 4540 29. Inresponse to Paragraph 29, SkyWest admitted that onMarch 3, 2011, at MSO, SkyWest loaded passengers and baggage onto N465SW (sic), to be operated as Flight 4540 bound for SLC. 30. Inresponse to Paragraph 30, SkyWest averred was without sufficient information
or knowledge from whichto forrri abeiiefas to the truth ofthe allegationthat SkyWest's personnel at MSO loaded 250 pounds ofballast and 100 pounds of COMAT onboard onboardN465SW (sic), and therefore deniedthe same. 31. In response to Paragraph 31, SkyWest admitted that the CLRfor Flight 4540 listed 350 pounds ofCOMAT onboard N614SK (sic). 32. Inresponse to Paragraph 32, SkyWest admitted that it operatedN465SW (sic) as Flight 4540 to SLC.
15Answering Section VI ofthe Complaint, SkyWest averred: N816SK/4613 33. In response to Paragraph 33, SkyWest admitted that onMarch 3, 2011, at OMA, SkyWest loaded passengers and baggage onto N816SK/4613, bound for SLC. 34. In response to Paragraph 34, SkyWest was without sufficient information or knowledge from whichto form a beliefas to.the truth ofthe allegationthat

· SkyWest's personnel at OMA loaded two (2) live animals onboardN816SK/4613,

and therefore denied the same. 35. In response to Paragraph 35, SkyWest admitted that the CLRfor N816SK/4613 listed "0 live animals" onboard N816SK/Flt 4613. 36. In response to Paragraph 36: SkyWe.st admitted that it operatedN816SK/4613 to SLC. Answering Section VII ofthe Complaint, SkyWest averred: In response to Paragraph 37, SkyWest admitted itpaidreduced civil penalties on eight (8) previous cases involving loading ofcargo contrary to approved procedures. Answering Section Answering Section III ofthe Complaint, SkyWest averred: SkyWest generally denied all remaining allegations set forth inthe Complaint. SkyWest asserted the following Affirmative Defenses: 1. The proposed penalty was excessive and violated FAA orders. 

### ' \.

162. SkyWest may have other affirmative defenses notknown but which may become known through discovery. SkyWestreserved the rightto allege such affirmative defenses as they become known. VIII. Issues Did SkyWestviolate 14 C.F.R. Sections 119.5(g), 119.5(!), 121.693(a),

.. ,. \. jq 121.693(c) and/or 121.693(d) by operation ofthe following flights on March 3, 2011: N800SK/Flt 4553 from SAN to SLC; N614SK/4445 from PHX to SLC; Flight 4540 from MSO to SLC; andlorN816SK/4613 from OMA to SLC. Under the facts and circumstances ofthis case, was a civil penalty of$160,000 appropriate. IX. Summary ofTestimony and Evidence All admitted testimonial and documentary evidence was reviewed and considered. Onlybriefhighlights are summarized herein. A. FAA's Case Adam ScottPerkins .,_':'**~** '**~** . ... ., )1 ' ,· ' The FAA called Adam Scott Perkins (hereinafter "Perkins") as a witness. Perkins had twelve (12) years ofaviation experience from flight instructing to flying cargo. Six (6) years ofthatwas spent at Atlantic Southeast Airlines flying CRJ11 aircraft and ATR72 aircraft. Perkins had worked at the FAA SkyWest Certificate Management Office (hereinafter "CMO") for approximately three (3) years as an Aviation safety inspector (hereinafter "ASI'')?

2 Tr. p. 38, I. 21 top. 40, I. 13. 17N800SK/4553 OnMarch 3, 2011, Perkins was undergoing on-the-job training for line station operations and part ofthe training was to observe the weight and balance program for SkyWest. As a part ofhis surveillance Perkins observedthe baggage being off-loaded from N800SK/4553 inbound from SAN to SLC. Perkins observed forty-three (43) standard bags onboardN800SK/4553 and thirty (30) heavy bags. The heavy bags were identified with a large orange tag. Additionally, there was one (1) live checked animal on board. Perkins obtained 

### a copy ofthe CLR and load manifest for the flight. Perkins identified FAA# C-18 as a copy ofthe CLR obtained from SkyWest and FAA# C-19 as a copy ofthe load manifest from N800SK/4553. Both exhibits were received into evidence. Perkins then identified FAA# C-20 as copies ofthe heavy bag tags for N800SK/4553. Perkins testified the weight on the load manifest was correctly calculated
. based on the weight on the CLR for N800SK/4553, butthe CLR did not accurately reflect the cargo onthe aircraft.3 Cross When doing the observations onN800SK/4553, Perkins was receiving on-the-job training from AndrewAyers (hereinafter "Ayers"). Perkins believed he was the one counting bags and Ayers was the one that obtained the CLRfrom the crew while I was counting. The load manifests were obtained from SkyWest Corporate.4 Perkins agreed there were three ways to bring an animal on board and aircraft. First, service animals would accompany their oWner into the passenger portion ofthe aircraft and their weight would be accounted for withthe weight ofthe passenger.

3
.

Tr. 47, I. II top. 55, I. 4. 4 Tr. p. 77, I. 5 top. 78, I. I6. 18Second, ifthe animal was accompanied by a passenger, it wouldbe shipped as cargo and would receive a weight ofthirty (30) or sixty (60) pounds depending on the size ofthe dog and crate. As an example, Perkins was asked ifyou have a seventy (70) pound dog with atwenty (20) pound kennel, that was ninety 90 pounds and treated as baggage, but recorded as sixty (60) pounds, which was perfectly legal ofSkyWest's W&B Manual. Third, ifthe animal was shipped unaccompanied it would go as freight and the weight would have beenrecorded as actual weight ofthe animal plus the actual weight ofthe container. Perkins testified the animals were either cargo or freight.5
Flight 45406 On March 3, 2011, Perkins also had the opportunity to inspect Flight 4540 from MSO to SLC. As a part ofthe inspection Perkins was able to determine there was ballast
on board the aircraft which consisted offive (5) fifty pound (50) bags for a total oftwo hundred fifty (250) pounds ofballast. There was also one hundred (100) pounds of COMAT, consisting offour (4) bundles ofmagazines. Perkins obtained copies ofthe CLR and load manifest for Flight 4540.

### 'f>-erkiri~**1**identified FAA# C-21 and C-22 as the CLR and load manifest respectfully for Flight 4540. Perkins also identified FAA# C-23
as a picture ofthe magazine bundles and the ballast. Perkins testified the information on the CLRdid not correctly reflect the cargo thathe observed being offloaded from Flight 4540 on March 3, 2011. 7

5 Tr. p. 79, 1. 9 top. 84, 1. 13. 6 Tr. p. 55, 1. 5 top. 62, I. 3; FAA# C-21, FAA# C-22, FAA# C-23. 7 Tr. p. 55, I. 5 top. 62, I. 3. 19

· ••1 ••

.**(~I** t i (: 'Cross All the CLRs were obtained from the flight crews and were copies, with the exception ofFAA# C-21 which was a station copy from MSO which Perkins obtained from SkyWest. There was a difference betweenthe station copy ofthe MSO-SLC CLR which indicated ballast oftwo hundred-fifty (250) pounds and COMAT ofone hundred (100) pounds. The station copy ofthe CLR was in fact the correct CLRin that it correctly showed the weights. Perkins believed the ballastwas requested after the flight
was loaded bythe pilots. Perkins testified a lot oftimes the stationwill make a correction to their copy ofthe CLR and then the pilots will make a correctionto their copy as well after they have been detached. Thetotal weight.ofballast and COMAT was three hundred fifty (350) pounds and was loaded in the tail section ofthe aircraft. Itwas a technical issue, a difference between calling 

### itballastversus COMAT. Perkins was shown the station copy ofthe CLR.8 Perkins testified the CLRis a two part form, the top sheetbeing like NCRpaper, which also had writing onthe back ofthe first page. Perkins did not attempt obtain copies ofthe back side ofthe first page ofthe CLR forms. Perkins testified the backside ofthe first page ofthe CLR was a format to help the "ram per"

. 9 perform the bag count. When doing the observations on Flight4540, Perkins was receiving on-the-job training from Andrew Ayers (hereinafter "Ayers"). Perkins believed he was the one counting bags and Ayers was the**on~** that obtaitied the CLRfrom the crew while I was counting. The load manifests were obtained from SkyWest Corporate. 10

8 SW# R-21 9 Tr. p, 71, I. I top. 76, I. 8. 10 Tr. p. 77, I. 5 top. 78, I. 16. 20Perkins testified ifyou took the baggage count on C-18 (CLR) and added it up times 30, times 60, whatever, you would get the exact cargo weight number that is inC19 (load manifest). There were nineteen (19) standard checked bags and fifteen (15) plane side valet items, a total ofthirty-four (34). There was also ninety-two (92) pounds offreight on board. 11 . 1'

N614SK/4445 On March 3, 2011, Perkins also had_the opportunity to inspectN614SK/4445 from PHX to SLC. As part ofhis inspection Perkins you counted forty-three (43) standard bags were onboard and three (3) heavy bags were onboard N614SK/4445. Perkins obtained copies ofthe CLR and load manifest from N614SK/4445. Perkins identified FAA# C-24 and C-25 as the CLR and load manifest for N614SK/4445 respectively and FAA# C-26 as photographs ofheavy bag tags that he took ofbaggage offloaded from N614SK/4445. 12 Cross When doing the observations onN800SK/4553, Perkins was receiving on-the-job training from Ayers. Perkins believed he was the one counting bags and Ayers was the
. one that obtained the CLR from the crew while I was counting. The load manifests were obtained from SkyWestCorporate. 13

11 Tr. p. 86, I. 10 top. 86, l. 19. 12 Tr. p. 62, I. 4 top. 66, I. 21. 13 Tr. p. 77, I. 5 top. 78, I. 16. I, ' ( • .".**~** • 21N816SK/4613 On March 3, 2011, Perkins also had the opportunity to inspectN816SK/4613 from OMA to SLC. As part ofhis inspection Perkins observed two (2) live animals offloaded from N816SK/4613. Perkins obtaine,d copies ofthe CLR and load manifest from N816SK/4613. Perkins identified FAA# C-27 and C-28 as the CLR and load manifest for N816SK/4613 respectively. 14 Cross When doing the observations on N800SK/4553, Perkins was receiving on-the:-job training from Ayers. Perkins believed he was the one counting bags and Ayers was the
one that obtainedthe CLRfrom the crew while I was counting. The load manifests were obtained from SkyWest CorporateY Perkins agreed there were three ways to bring an animal onboard and aircraft. First, service animals would accompany their owner into the passenger portion ofthe aircraft and their weight would be accounted for withthe weight ofthe passenger. Second, ifthe animal was accompanied by a passenger, it would be shipped as cargo and would receive a weight ofthirty (30) or sixty (60) pounds depending onthe size ofthe dog and crate. As an example, Perkins was asked ifyouhave a seventy (70) pound dog with a twenty (20) pound kennel, that was ninety 90 pounds and treated as baggage, but recorded as sixty (60) pounds, which was perfectly legal ofSkyWest's W&B Manual. Third, ifthe animal was shipped unaccompanied it would go as freight and the weight

14 Tr. p. 67, I. 1top. 71, I. 18. 15 Tr. p. 77, I. 5top. 78, I. 16. 22would have been recorded as actual weight ofthe animal plus the actual weight ofthe container. Perkins testifiedthe animals were either cargo or freight. 16 With respectto most ofthe flights, other airlines loaded the SkyWestflights and preparedthe CLRs. Perkins did not take into accountthat a heavy bag tag mightbe on a bag from a priorflight. There was a remote possibilitythe bags had remained onthe aircraft from a prior flight. 17 Andrew James Ayers 18 Ayers was called bythe FAA as an expert in Weight and Balance and specifically SkyWest's Weight and Balance program. Ayers' testimony was applicable to all ofthe
cases inthe consolidated docket. Ayers had worked inthe aviation industry for nineteen (19) years, hadbeen 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 hadthe overall responsibility for all ofthe authorizations and approvals for SkyWest's operational needs:. He oversaw compliance, authorizations for SkyWestprograms, and scheduled surveillance and follow-up. He had an airline transport pilot certificate withtype ratings inthe EMB-120 and CL-65 series aircraft. He had training as an Aircraft Safety Inspector (hereinafter "ASI"). He received generalized weight andbalance training that was applicable to any pilotflying 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, itwas his

16 Tr. p. 79, 1. 9 top. 84, 1. 13. 17 Tr. p. 86, 1. 10 top. 89, 1. 13. 18 Tr. 179, 1. 17 top. 209, 1. 19. 23

\, ·-'responsibility and authority to grant approval for those procedures. Ayers was received bythe court as an expert inthe field ofaircraft weight and balance. Ayers explained the CLR was a tally worksheet for computing the loads orthe weight ofcargo loaded onthe aircraft. A 'standardbag' was a termused 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) 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 valetbags
were assigned a weight ofthirty (30) pounds which included a weight range do ofzero (0) to fifty (50) pounds. Ayers testified the load manifest containedthe total weights for aircraft flights. 19 Ayers described SkyWest's "Weight and Balance Handbook" as a general book which contained bothbackground knowledge, scientific information, factual information about weight and balance, as well as suggested policies and procedures for complying with weight andbalance when operating aircraft. It also described hazards associated with improper weight and balance. The FAAproffered evidence ofa prior aircraft accidentunder Part 121 where weight andbalance was a causal factor. We sustained an objection to the testimony and reaffirm ourruling. Ayers' proffer was:

...the accident in question involved an aircraft thatwas loaded no[t] in compliance withthe 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 inthembeing unable to detect an aft CG
...the aircraft in question stalled shortly aftertakeoffand crashed, killing all persons aboard
...

19 The witness identified FAA# C-6, C-9, C-12, and C-14 as examples ofload manifests. 24The 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 whichwould show any relevance to the facts ofthis case. We reaffirm ourruling and the objection was sustained. The testimony was notreceived. Ayers testified about exhibits associated with specific flights:
Flight 454020 Reviewing FAA# C-22, Ayers testified 

### it showed cargo weight at 1880 pounds meaning the CLR and the load manifest showedthe same weight. Ayers agreed the CLR at FAA# C-21 was incorrectbecause the COMAT was listed as 350 pounds instead of 100 pounds ofCOMAT and 250 pounds ofballast. Reviewing SW# R-21, the station copy ofthe CLRwhich was more accurate because it reflected changes in COMAT and ballast for the flight. SW# R-21 showed a total weight of 1850. !\. N800SK/4553 21 Ayers testified the weight listed on the load manifestreflectedthe weight calculated using the cargo load report data (see FAA# C-18 and C-19) which meant mean the load manifest and performance data were incorrect.

20 Tr. p. 192, l. 9 top. 198, l. 6. 21 Tr. p. 204, I. 20 top. 205, I. 11. 

### 25N614SK/444522 Ayers testifiedthe load manifest and the weight (see FAA# C-24 and C-25) as calculated using the cargo load report reflected each other which meantthe load manifest and performance data were inaccurate. Ayers further testified that in a couple ofthe cases23 where the load manifest weight matched the CLRthere was still a violation ofthe approvedprogram because the program describedproceduresfor completion ofthe CLR, and failure to follow those procedures was still a violation. Whether ornot'the number was correctwas notrelevant to whether those procedures were**actu~lly** followed. Ayers drew an analogy that, it was not enough to get the right answer, butto show your work to get the answer and that work also had to be correct. Ayers testified he believed there was anunknown impact on safety posedbythese discrepancies, butthat he was not surprised thatthe aircraft were operated within their weight and balance envelope?4 Cross25 Ayers testifiedthe front side ofthe CLRworksheet was where the mathwas talliedup while the back side ofthe CLR was the worksheetto assist the loading agents in counting. Ayers admittedthat as part ofthe investigation it wouldhave 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.

22 Tr. p. 205, I. 12 top. 206, I. 1. 23 Referring to the consolidated docket. 24 Tr. p. 207, I. 19 top. 208, 1. 16. 25 Tr. p. 209, I. 21 top. 219, 1. 10. 26Ayers testified that in 2011 SkyWest did not have a Safety Management System (hereinafter "SMS'.'). SMS was a series oftools and programs that allowed SkyWest to identify risks and mitigate those risks with processes and procedures in place to identify howthey do that, when they do**that~** and

## w4a:tth:e outcomes are. Risks were categorized, with Category I being non-safety related. SkyWest implemented an SMS after the 2011 incidents. Redirect26 Ayers testified both copies ofthe CLR should be updated with any last minute changes. Ifthe load manifest was inaccurate, the process wasn't followed. COMAT was required to be marked onthe CLR as COMAT and ballast was required to be marked on the CLR as ballast. Ifa live animal was onboard, that was requiredto bereflected onthe CLR. Recross27 Ayers testified live animals,kas

## bag~age:i~ere 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 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.

26 Tr. p. 219, I. 13 to p. 222, I. 1. 27 Tr. p. 222, I. 3, top. 223, I. I.**~·~** \**~-·i·· ~**  ;i. 27B. SkyWest's' Case Carl Salamone, deposition transcript, 2014050628 Thetestimony ofCarl Salamone (hereinafter "Salamone") was taken by deposition (SW# 3-3) and introduced into the record by agreement ofthe parties. Counsel for bothparties were present at the deposition. Salamone's testimony was applicable to all ofthe cases inthe 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 ofaircraft. He had 4200 flight hours, ofwhich 3200 were in CRJs. He had a Bachelor ofScience degree in electrical engineering and a Bachelor of Science degree in aviation human factors, from the University ofIllinois. Aviation human factors was the study ofhuman factors principles in research and psychology as itrelated specifically to aviation in the human elements ofaviation safety, including weight and balance systems. For five (5) years he had been a member ofa special projects group which, among other things, involved analysis ofweight and balance. Salamone estimated he had flown about 3,000 flights. Elch

# flig£f**;e~~ired** a weight and balance calculation prior to that flight. He had training in weight and balance from his education as well as SkyWest.

28 Tr. p. 227, I. 7 top. 281, 1. 17. 

### 28Salamone was received by the court as an expert in the field ofcalculation of aircraft weight andbalance 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 calculatedby the crew and also the alleged weight and balance as it would have been observed by an inspector(s) for each ofthe flight violations. In the analysis of these flights, Salamone took all information that was available to him, the cargo load reports, the load manifests, electronic, ifavailable, the inspector's statement from the FAA, as far as the alleged weight or items that may have 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. Aircraft takeoffweight was defined as the gross weight ofthe aircraft inthe takeoffconfiguration, as it would beginthe takeoffsegment ofthe flight. Itwas the full weight ofthe airplane immediately prior to beginning takeoff, including passengers, cargo, ballast, et al. Aircraft takeoffCenter ofGravity (hereinafter "COG") was the location ofthe center ofgravity at a point onthe airplane and calculated to ensure that the plane remained in balance for the manufacturer's specifications throughoutthat flight. COG
was a single point, a mathematicalpoint. Itwas a single pointlike a teeter-totter, where that airplane would balance on one particular point where the weightwas mathematically
seen on that location on the airplane. COG

### w~simportant for stability reasons, for


### 29' ;..

control reasons, and it was reallyjust a majorpart ofthe physics offlight, to ensure that the plane will perform as itwas designed to. Other factors considered in Salamone's analysis included runway performance, flight climb performance, and maximum operating altitude. Those factors meantthat the airplane would notbetoo heavy to meet its performance requirements and performance planning. An airplane was operated at a weightthat would ensure that the runway was adequate, thatthe climbing performance was adequate, and that itwould be able to obtain its operating altitude for all phases 

### Offlight and·complete that flight as planned. Salamonetestified that for the fourteen (14) flights he reviewed, giventhe weights that the crews hadrecorded and believed thatthey were operating under, none of the flights exceeded maximum takeoffweight and none ofthe flights were unsafe in anyway. In Salamone's opinion, taking into account the additional weights observed by the FAA inspectors, none ofthe aircraft exceeded tolerances nor were the flights unsafe. In his opinion, the crews' calculations were accurate as pertaining to the cargo and weight that they believedthatthey had andthe calculationsdidnotexceed the manufacturer's suggested limitations nor as perceivedbythe FAA inspectors. Taking into accountthree ofthose factors, either as calculated''by

### th~**SkyWest** crews atthe time or adjusting for the observedvariations by FAA inspectors, in Salamone's opinion, none oftheflights would have been in excess ofthe manufacturer's limitations for takeoffweight, center ofgravity, runway performance, climb performance, or maximum operating altitude.

30Testimony as to speCific flights:

N800SK/4553 29 For this flight, Salamone analyzed the CLR as well as the alleged baggage loading
as observed by the FAA inspector and found the total weight adjustment, as alleged by the FAA inspector, would have been somewhere between 120 and 150 pounds of additional weightbeyond what was accounted for by the flight crew. This would not have causedthe airplane to be out ofcompliance with center ofgravity or weight and balance.

N614SK/4445 30 Salamone found that the alleged items observed by the FAA inspector wouldhave resulted in an additional ninety (90) pounds ofcargo onboard above and beyond the amount calculatedby the flight crewwhich would have had zero effect onthe operation ofthis flight because the additional ninety (90) pounds would have left the aircraft's gross weight still well belowthe maximum gross weight for that runway use and the center of gravity was well withinthe envelope provided by the manufacturer for this aircraft for this configuration. As calculatedby the flight crew, the takeoffweight was 4,453 pounds, below the maximum runway takeoffweight. As observed bythe inspector, it wouldbe less thanninety (90) pounds, about 4,363 pounds. The runway limitation was 71,000 pounds. The aircraft came in at about 67,000 pounds. The result, according to

29 Tr. 243, I. 21 top. 245, I. 1. 30 Tr. p. 245, I, 2 top. 250, I. 3. , 1 •••

31Salamone, was 4,000 pounds ofplay for that aircraft for power at takeoff, the thrust of the engines. The effect ofan additional ninety (90) pounds would have been negligible. Salamone testified, according to the approved weight and balance program, the center ofgravity calculation, as itwas calculated priorto takeoff, would ensure that the center ofgravity remained within the manufacturer envelope for the entire duration of that flight. Salamone explainedthe COG calculation usingN614SK/4445 as an example. •'",·· N614SK/4445 was a CRJ-700 series. 31 For N614SK/4445, the calculated and observed or alleged takeoffweight would have been very close to 67,000 pounds and the crew calculated center ofgravity was located at 22.19 percent mean aerodynamic chord. The alleged configurationwould have shifted that takeoffcenter ofgravity to a location at 22.46 percent ofmean aerodynamic chord, or approximately an inch. For N614SK/4445 either under the flight crew's calculations or calculating with the observed weight ofthe FAA the center ofgravity remained basically the center ofthe envelope.
Flight454032 In Flight 4540 there was a**discrep~J?.,CY be~ween**  the ballast and COMAT, butthe total weight remainedthe same. Salamone testified the flight crew accurately calculated the gross weight for this airplane.to take offat 49,863 pounds along with a center of gravity location located at 10.10 percent mean aerodynamic chord. The observed configuration resulted in no change to that weight. The airplane would have performed

31 SW# R 3-2, p. 19, Figure 2 "Bombardier CJR700 Weight and Balance Envelope" 32 Tr. p. 250, I. 4 top. 251, I. 5. 32as planned and the load manifest but for this flight, it would have been 100 percent accurate.

N816SK/4613 33 The report, FAA report, indicated that the two (2) live animals were loaded on this aircraft and notindicated onthe CLR. The CLR did not indicate thirty (30) pounds offreight, which was the correct location to record this type ofshipment. The only omission onthis CLRwas to have circled that live animals were present in the cargo pit. This was a flight crewnotification and only that a live animal was present onthe aircraft. The load manifest for this flight also was 1 00 percent accurate and there was no change in weight or COG.

·-- 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, SkyWest has a policy ofadding contingency fuel thatwas 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 describedthe human factors involved in loading an airplane and counting bags. He described the most difficult aspect ofaircraft loading and baggage handling as having to do withthe environment around which it is centered. The ramp environmentmayhave 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 area that could cause, perhaps, a pause in

33 Tr. p. 251, I. 6top. 252, I. 6. 33counting 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 thattask even more difficult. Salamone was not particularly surprised atbag count discrepancies. Cross34 Salamone testified the reason why he togkrunway length into account was that a

. ·: ., '·':-; i(·; I heavier aircraftrequired a longer distance to takeoff. Heavier aircraftneeded 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 affectperformance. The CLR is one ofthe documents usedto generate the load manifest. The load manifest was the documentthat contained the aircraft gross weight and center ofgravity location, which was then used to determine performance requirements. Christopher C. Brown35 Christopher C. Brown (hereinafter::Bro\v.n") 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

34 Tr. p. 281, 1. 18 top. 291, 1. 6. 35 Tr. p. 298, 1. 20 top. 324, 1. 14.

·t 34 \N"certificate. Brown'stestimony was applicable to all ofthe cases inthe consolidated docket.Browntestified 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 ofweightto 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 prqg:ram would assure that the aircraft would**~·.** . !**~·-.:** always remain within the manufacturer's operating envelope. Browntestified the proposal was similarto a program implemented by Delta. Evidence The following SkyWest exhibits were admitted inthe 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. X. BriefSummary ofEvidence and Testimorty NSOOSK/4553 on March 3, 2011 OnMarch 3, 2011, at SAN, SkyWest loaded passengers and baggage onto NSOOSK/4553 bound for SLC. SkyWest's personnel at SAN loaded forty-three (43)

35Standard Checked Bags, three (3) Heavy Checked Bags, and one (1) live animal onto NSOOSK/4553. The CLRfor NSOOSK/4553 listed "46 Standard Cheeked Bags, 0 Heavy Checked Bags, and 0 live animals" on board NSOOSK/4553. SkyWest thereafter operated NSOOSK/4553 to SLC.

I ·\.L
... .**·~** N614SK/4445 onMarch 3, 2011 OnMarch 3, 2011, at PHX, SkyWest loaded passengers and baggage onto N614SK/4445 boundfor SLC. SkyWest's personnel at PHX loaded forty-three (43) Standard Checked Bags and three (3) Heavy Checked Bags onto N614SK/Flight 4445. CLRfor Flight 4445 listed "46 Standard Checked Bags" and zero (0) Heavy Checked Bags" onboardN614SK/4445. SkyWestthereafter operatedN614SK/4445 to SLC.
Flight 4540 onMarch 3, 2011 The allegation was that on March 3, 2011, at MSO, SkyWest loaded passengers and baggageN465SW (sic) to be operatedtas Fiiight 4540 bound for SLC. SkyWest's personnel at MSO loaded 250 pounds ofballast and 100 pounds ofCOMATonboard N465SW (sic) to be operated as Flight 4540. The CLRfor Flight 4540 listed 350 pounds ofCOMAT onboard "N614SK" (sic). SkyWestthereafter operatedN465SW operated as Flight 4540 to SLC. The pleadings allege two djfferent aircraft were identified as Flight 4540 March 3, 2011.h .,;**~'' ~** **:~l"'~** N816SK/4613 on March 3, 2011 OnMarch 3, 2011, at OMA, SkyWestloaded passengers andbaggage onto N816SK/4613 bound for SLC. SkyWest's personnel at OMA loaded two (2) live animals
onboardN816SK/4613. The CLRfor N816SK/Flt 4613 listed "0 live animals" onboard N816SK/4613. SkyWestthereafter operatedN816SK/4613 to SLC. XI. Law A. The FAA has the burden ofproof, except for affirmative defenses 14 

### C.FR. § § 13.224(a) and (c). The standard is a preponderance ofreliable, probative, and substantial evidence 14 C.FR. § 13.223. B. 49 US.

### C. Sections 46301(a), and (d) (T:qp1sportation) provide for the imposition

· ·· t' r· · ofcivil penalties in FAA cases. A person is liable to the United States Governn1ent for a civil penalty ofnot 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.FR. Section 119.5(g), provides: No person may operate as a direct air carrier or as a commercial operator without, or inviolation of, an appropriate certificate and appropriate operations specifications. No person may operate as a direct air carrier or as a commercial operator inviolation ofany deviation or exemption authority, ifissued to that person orthatperson's representative. , ..

. ..CJ.• <· ·.. ·1:" 2. 14 C.FR. Section 119.5(1), provides: No personmay operate an aircraft under this part, part 121 ofthis chapter, orpart 135 ofthis chapter inviolation ofan air carrier operating certificate, operating certificate, or appropriate operations specifications issuedunderthis part.

37D. 14 C.F.R. § 121.693 Load manifest: All certificate holders The load manifest must contain the following information concerningthe loading ofthe airplane attakeofftime: 

### 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 thatthe center ofgravity is within approved limits. E. FAA Order 2150.3B Chapter 7 and Appendix B, dated October 1, 2007 (Sanction Guidance). The Sanction Guidance contains tables that establish specific penalty ranges for different types ofviolations. 

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

A. N800SKJ4553 on March 3, 2011 1. 14 C.F.R. Sections 119.5(g) and 119.5a2 Section 119.5(g) prohibits an air carrier from operating inviolation 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**a~ent** to accurately prepare the flight's

I,'' 381:

CLR. The testimony and evidence showed that for flight N800SKJ4553, SkyWest's CLR failed to properly reflect inthe 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 marking the CLRs for flight N800SKJ4553also constituted a violation ofFAR §119.5(1). This sectionprohibits Part 121 air carriers from operating in violation ofOpSpecs. By failing to set outfor eachflight accurate information onthe CLRs, SkyWest, a Part 121 air carrier, did not operate in conformance with its OpSpecs. Itthus violated this sect1ori. 2. 14 C.F.R. Sections 121.693(a), (c), and (d) Subsection (a) of §121.693 requires a load manifestto containthe weight ofthe cargo and baggage. Subsection (c) compels the use of"approvedprocedures" in computing the total weight ofthe aircraft. Section 121.693(d) requires thatthe load manifest contain evidence thatthe 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 th::tt the center ofgravity is within limits. The evidence shows that SkyWest followed these mandates. Salamonetestifiedthatfor the fourteen (14) flights he reviewed, including N800SKJ4553, given the weights thatthe crews hadrecorded and believedthatthey were operating under, none ofthe flights exceeded maximum takeoffweight and none ofthe flights were unsafe in anyway. The crews' calculations were accurate as pertaining to the

39cargo and weightthat they believedthat they had and the calculations did not exceedthe manufacturer's suggested limitations nor as perceived bythe FAAinspectors. None of the flights wouldhave been in excess ofthe manufacturer's limitations for takeoffweight, center ofgravity, runway performance, climb performance, ormaximum operating altitude. As noted earlier, SkyWest computed its load manifest from its CLRusing its Manual's average weights program. SkyWest's OpSpecs required loading procedures to follow the Manual. The load manifest, then, used approved procedures to compute the weight ofthe baggage. No violation of§§121.693(a) and (c) thus could beproven. 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 suggested thatthe aircraft weight and center ofgravity location fell within manufacturer recommendations and performance envelopes for every flight under rev,iew. 36 Accordingly, the FAA, it is concluded, failed to prove that SkyWest violated 14 C.F.R. Sections 121.693(a), (c), and (d)

B. N614SK/4445 on March 3, 2011 1. 14 

### C.

### F.R. Sections 119.5(g) and 119.5(l) Section 119.5(g) prohibits an air carrier from operating inviolation 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

36 See In the Matter ofSkyWestAirlines, Inc., "Initial Decision ofAdministrative Law Judge" FDMS Nos. FAA-2011-0779, May 2, 2013; In the**Mat~er** ofSkyWesi'Airlines, Inc., "Initial Decision ofAdministrative Law Judge" FAA-2011-0485, FAA-2011-0486, May 2, 2013; 40. "' '. ',> )
things, directs the carrier's designated loading agent to accurately prepare the flight's CLR. The testimony and evidence showed that for flight N614SK/4445, SkyWest's CLR failed to properly reflect inthe 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 marking the CLRs for flight N614SK/4445 also constituted a violation ofFAR §119.5(1). This sectionprohibits Part 121 air carriers from operating in violation ofOpSpecs. By failing tp.set outfor each flight accurate

... ') ,, information onthe CLRs, SkyWest, a Part 121 air carrier, did not operate in conformance with its OpSpecs. Itthus violatedthis section. 

### 2. 14 C.F.R. Sections 121.693(a), (c), and (d) Subsection (a) of §121.693 requires a load manifestto contain the weight ofthe cargo and baggage. Subsection (c) compels the use of"approvedprocedures" in computing the total weight ofthe aircraft. Section 121.693(d) requires that the load manifest contain evidence that the aircraft was loaded according to an approved schedule which insures 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 compiledusing approved procedures, and that the method used insures that the center ofgravity is within limits. The evidence shows that SkyWestfollowed these mandates. Salamone testified that for the fourteen (14) flights he reviewed, including N614SK/4445, giventhe weights that the crews had recorded and believed thatthey were operating under, none ofthe flights exceeded maximum takeoffweight and none ofthe

41flights were unsafe in anyway. The crews' calculations were accurate as pertaining tothe cargo and weight thatthey believed that they had andthe calculations did notexceed the ' ·d
... manufacturer's suggested limitation's

### nor·a~**perc~ived** bythe FAA inspectors. None of the flights wouldhave beeninexcess ofthe manufacturer's limitations for takeoffweight, center ofgravity, runway performance, climb performance, ormaximum operating altitude. As noted earlier, SkyWest computed its load manifest from its CLRusing its Manual's average weights program. SkyWest's OpSpecs required loading procedures to follow the Manual. The load manifest, then, used approved procedures to compute the weight ofthebaggage. No violation of§§121.693(a) and (c) thus couldbe proven. Nor
was a §121.693(d) violation proven; no evidence tended to demonstrate thatthe approved method failed to insure that the center ofgravity was within approved limits. Indeed, •t Salamone's testimony and accompanying evidence suggested that the aircraft weight and center ofgravity location fell withinmanufacturer recommendations and performance envelopes for every flight under review. 37 Accordingly, the FAA, it is concluded, failed to prove that SkyWest violated 14 C.F.R. Sections 121.693(a), (c), and (d.)

C. Flight 4540 onMarch 3, 2011 1. 14 C.F.R. Sections IJ9.5(g) and 119.5al Section 119.5(g) prohibits an air carrier from operating inviolation ofits OpSpecs. SkyWest's OpSpecs obligate**th~ carr~er**  to use the procedures detailed in its

.**~** '.1· ' ;. : '
37 See In the Matter of SkyWestAirlines, 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; 42Weight & 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 showedthat for Flight 4540 was identified as having been flown byN965SWand N614SK on March 3, 2011. The failure to accurately identify the aircraft cannotconstitute a violation of§119. 5 (g). SkyWest's actions in loading and marking the CLRs for Flight 4540 did not constitute a violation ofF AR § 119. 5 

### (!) because two different aircraft were identified as

: <; •• ,·, •**!'\~.** having flown the route on March 3,'2011. ;The·testimony and evidence showed that Flight 4540 was identified as having been flown by N965SW andN614SK on March 3, 2011. Failure to properly identify the aircraft operated cannot constitute a violation. The Complaine8 alleged as follows: 29. On March 3, 2011, at Missoula International Airport (MSO), Missoula, Montana, SkyWestloadedpassengers and baggage onto N465SW, to be operated as Flight4540 bound for SLC. 30. SkyWest's personnel at MSO loaded 250 pounds ofballast and 100 pounds of COMAT onboardN465SW. 31. The CLRfor Flight 4540 listed 350 pounds ofCOMAT onboardN614SK (sic). 32. SkyWestthereafter operatedN465SW as Flight 4540 to SLC.

,_ .. ,:.,...**~-** r I
.. , SkyWest answered as follows: 39 ' 29. In response to Paragraph 29, SkyWest admits that onMarch 3, 2011, at Missoula International Airport (MSO), Missoula, Montana, Sky Westloaded passengers andbaggage onto N465SW, to be operated as Flight 4540 bound for SLC. 30. In response to Paragraph 30, SkyWest is without sufficient information or knowledge from which to form abeliefas to the truth ofthe allegationthat SkyWest'spersonnel at MSO loaded 250 pounds ofballast and 100 pounds of COMAT onboardN465SW, and therefore deniesthe same.
38 FAA Complaint, page 5, Section V, paragraphs 29 through 32 inclusive. 39 SkyWestAnswer, page 6, Section V, paragraphs 29 through 32 inclusive. 4331. Inresponse to .Paragraph 31, SkyWest admitsthatthe CLRfor Flight 4540 listed 350 pounds ofCOMAT onboardN614SK. 32. Inresponse to Paragraph 32, SkyWest admits that it operatedN465SW as Flight4540 to SLC. , The evidence and testimony with respect to Flight 4540 was inconsistent with the pleadings. Accordingly, the FAA, it is concluded, failed to prove that SkyWest violated 14 C.F.R. Sections 119.5(g) and 119.5(l) forFlight4540 onMarch 3, 2011, because the evidence and testimony did not conform to the pleadings. 2. 14 C.F.R. Sections 121.693(aJ, (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. Section 121.693(d) requires thatthe load manifest contain evidence that the**afrcraft~~a~** .1911ded 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 method used insures that the center ofgravity is within limits. The evidence shows that SkyWest followed these mandates. Salamonetestifiedthat for the fourteen (14) flights hereviewed, including Flight 4540, 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 crews' calculations were accurate as pertaining to the cargo and weightthatthey believed1that they

## ·hJa~and the calculations did not exceed.the ·manufacturer's suggested limitations nor as perceivedbythe FAA inspectors. None of the flights would have been in excess ofthe manufacturer's limitations for takeoffweight, 44center ofgravity, runway performance, climb performance, or maximum operating altitude. As noted earlier, SkyWest computed its load manifest from its CLRusing its Manual's average weights program. SkyWest's OpSpecs required loading procedures to follow the Manual. The load manifest, then, used approved procedures to compute the weight ofthebaggage. No violation of§§121.693(a) and (c) thus could be proven. Nor

! ?**~** \.{.· was a §121.693(d) violation proven; no evi.'dence tendedto demonstrate thatthe approved method failed to insure thatthe center ofgravity was within approved limits. Indeed, 'I Salamone'stestimony and accompanying evidence suggested thatthe aircraft weight and center ofgravity location fell within manufacturer recommendations andperformance envelopes for every flight under review.40 The evidence andtestimony with respectto Flight4540 was inconsistent withthe pleadings. Accordingly, the FAA, it is concluded, failed tb prove that SkyWestviolated 14 C.F.R. Sections 121.693(a), (c), and(d) andbecause the evidence and testimony did not conform to thepleadings.

N816SK/4613 onMarch 3,

# 201 I' .;4 '·'• 'P After consideration andreview ofall the evidentiary facts, testimony and evidence herein, by a preponderance ofthe evidence standard, we make the following findings:

40 See In the Matter of SkyWestAirlines, 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; 45

;\,:,

.
..**,).,~**

.... r: .:···1. 14 C.P.R. Sections 119.5(g) and1J9:5aJ 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 forloading 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 N816SK/4613, SkyWest's CLR failed to properly reflect in the appropriate block the 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 marking the CLRs for flight N816SK/4613 also constituted a violation ofFAR §11i:5(l).

## 'f:hi~**~~~tion** 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 its OpSpecs. Itthus violatedthis section. 2. 14 C.P.R. 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"approved procedures" in computing the total weight ofthe aircraft. Section 121.693(d) requires that the load manifest contain evidence thatthe aircraft was loaded according to an approved schedule which insures thatthe center ofgravity is within approved limits. Construing these ; '·
.**{,:i·~** ' /;
.: j**-~** subsections together, as principles ofstatutory construction dictate, indicates that a carrier's load manifest will pass muster if

### ithas been compiled using approved

46procedures, and thatthe method used insures that the center ofgravity is within limits. The evidence shows that SkyWest followed these mandates. Salamone testified that for the fourteen (14) flights he reviewed, including N816SK/4613, giventhe weights that the crews had recorded and believed that they were operating under, none ofthe flights exceeded maximum takeoffweight and none ofthe flights were unsafe in anyway.**Th~.** crews' calculations were accurate as pertaining to the \,I :**~** . ! cargo and weight that they believed that they had andthe 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, climb performance, or maximum operating altitude. As noted earlier, SkyWest computed its load manifest from its CLRusing its Manual's average weights program. SkyWest's OpSpecs required loading procedures to

.follow the Manual. The load manifest, then, used approved procedures to compute the weight ofthebaggage. No violation of§§121.693(a) and (c) thus could beproven. Nor
was a §121.693(d) violation proven; no

### eviden~~'tended to demonstrate that the approved method failed to insure that the center ofgravity was within approved limits. Indeed, Salamone's testimony and accompanying evidence suggested that the aircraft weight and center ofgravity location fell within manufacturer recommendations and performance envelopes for every flight under review.41 Accordingly, the FAA, it is concluded, failed to prove that SkyWest violated 14 C.F.R. Sections 121.693(a), (c), and (d.)

41 See In the Matter ofSkyWestAirlines, Inc., "Initial Decision ofAdministrative Law Judge" FDMS Nos. FAA-2011-0779, May 2, 2013; lri the Matter ofSkyWestAirlines, Inc., "Initial Decision ofAdministrative Law Judge" FAA-2011-0485, FAA-2011-0486, May 2, 2013; 47XIII. Conclusions Upon consideration ofthe totality ofevidentiary facts and testimony, by a preponderance ofthe evidence standard, we find: A. The FAAprovedthat SkyWest violated 14 C.F.R. Section 119.5(g), and 14 C.F.R. Section 119.5(1) withrespect to flights N614SK/4445, N800SK/4553 and N816SK/4613, inclusive. B. The FAA failed to prove that SkyWestviolated '14 C.F.R. Section 119.5(g), and 14 C.F.R. Section 119.5(1) withrespect to Flight 4540 because the evidence and testimony did not conform to the pleadings. C. We find the FAA did not**m~de** a prim,a facie case withrespectto the violations of 14 C.F.R. Section 121.693(a), 14 C.F.R. Section 121.693(c), and/or 14 C.F.R. Section 121.693(d), inclusive for flights N614SK/4445, N800SK/4553 and/or N816SK/4613 inclusive and those violations will be dismissed. D. We find the FAA did not made a prima facie case withrespectto the violations of 14 C.F.R. Section 121.693(a), 14 C.F.R. Section 121.693(c), and/or 14 C.F.R. Section 121.693(d), inclusive for Flight 4540, and the evidence and testimony with respectto Flight 4540 was inconsistent withthe pleadings. Accordingly, those violations will be dismissed. XIV. Penalty and Mitigation Considerations SkyWest admitted allegatioJs as sei'fdrth'hereinabove. We found the violations of 14 C.F.R. Section 119.5(g), and 14 C.F.R. Section 119.5(1).

48We found the FAA failed to prove that SkyWestviolated 14 C.F.R. Section 119.5(g), and 14 C.F.R. Section 119.5(1) with respect to Flight 4540. We found the FAA failed to make aprima facie case with respectto 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. ·,·.**:~** JII : . •**~** · . 1
.. i
. t\ J The FAA argued under the facts and circumstances ofthis case, a civil penalty of$40,000 was appropriate in each 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, SkyWesttook swift, comprehensive corrective action including implementation ofan SMS after the2011 incidents as set forth in testimony before the court and**SkyWest's)~o~t** flearing Brief. ' •' \\ The FAA argued, and SkyWest admitted, that SkyWestpaidcivil 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 penalty, we cannot ignore our role to evaluate the testimony and evidence.

· ,49 

### 'fH:..i. Significantly, the violations found were technical in nature. They had no material effect onweight and balance or on aircraft 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 SkyWest noted, 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 SkyWestfailed to follow the scheme 9fits 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, SkyWestimplemented a new Safety Management System to address the violations. We find further thatjustone civil penalty per flight is appropriate. To assess a civil penalty based onthe multiple violations per flight found is, under the circumstances, unfair, unwarranted, and disproportionate to the offenses. Thetwo 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 in violation ·'

. ;\. ofOpSpecs; the second prohibits operating,under Part 121 in violation ofOpSpecs. The disthictionbetweenthe two provisions for the presentpurposes is inconsequential. As such, penalizing SkyWest for both violations would be unjustified. We note that the agency's civil penalty guidelines, FAA Order 2150.3B, take a similar stance: they advise that "[w]hen a single instance ofnoncompliance results in multiple violations ofgeneral
50: 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 civil penalty apP,ropriately 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: 42 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. Sky West Airlines, Inc. be and is hereby assessed a civil penalty of $250.00 for violations of 14 C.FR.**S,~ction,l,J?,}:(g),** and 14 C.FR. Section 119.5(1) for flights N614SKJ4445, N800SKJ4553 and N816SKJ4613, inclusive, for a total of $750.00; and 42 This decision may be appealed to the Administrator ofthe FAA. The notice of appeal must conform to sections 13.210, 13.211(e) and 13.233 ofthe Rules of Practice, which require 'hat a notice of appeal 1) be filed not later than 10 days (plus an additional five days if mailed) 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 2W1 000, or b) 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 of the notice**of~ppeal.an?** bri1;9r memorandum also must be sent to agency counsel. Service upon the presiding judge is optional. ;· · · · 513. We find the FAA failed to prove that SkyWest violated f./. C.F.R. S'ection 119.5(g), and 14 C.F.R. Section I19.5(1) with respect to Flight 4540; and those violations be and are hereby DISMISSED; and 4. 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),l4 C.F.R. Section 121.693(c}, and/or 14 C.F.R. Section 121.693(d), inclusive for flights N614SK/4445, N800SK/4553 and N816SK/4613, inclusive and those violations be and arc hereby DISMISSED.

Richard C. Goodwin U.S. Administrative Law Judge
Attachment- Service List

52

### 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 2Wl000 1

Todd C. Emerson, Respondent'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 ONE COPY

Michael L. Dworkin, Respondent 's Counsel MICHAEL L. DWORKIN AND ASSOCIATES 465 California Street, Suite 210 San Francisco, CA 94104 TEL: 415-421-2500 FAX: 415-421-2560 EMAIL: law@avialex.com 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 No. FAA-2012-0874 (Civil Penalty Action)

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

# I
I The Honorable Richard C. Goodwin, Administrative Law Judge Office ofHearings, M-20 U.S. Department ofTransportation 1200 New Jersey Avenue, S.E. (Ell-310) Washington, DC 20590 TEL: 202-366-2139 Attorney-Advisor 202-366-5121 StaffAssistant FAX: 202-366-7536