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SERVED: July 16, 2015 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, DC 

IN THE MATTER OF 

SKYWEST AIRLINES 

DOCKET NO. F AA-2012 - 0874 

(Civil Penalty Action) 

INITIAL DECISION OF ADMINISTRATIVE LAW JUDGE 

I. Glossary 

ACARS 

A&P 

Ayers 

Brown 

C.F.R. 

CLR 

COG 

CO MAIL 

COMAT 

FAA 

FAA# 

Aircraft Communications Addressing and 

. Reporting System 

Airframe and Power Plant certificate 

Andrew James Ayers 

Christopher C. Brown 

Code of Federal Regulations 

Cargo Load Report 

Center of Gravity 

Company Mail 

Company Material 

Federal Aviation Administration, Complainant 

Federal Aviation Administration Exhibit 

l 

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FAR Federal Aviation Regulation 

MSO Missoula International Airport, Missoula, MT 

Flight 4540 SkyWest flight MSO to SLC on March 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 OMA to 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 

Sky West 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 41 00 

II. Introductory Comment 

This case was consolidated with other cases with similar facts, issues and 

defenses by consent of the 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: 

SkyWest N800SK operated as Flight 4553 (hereinafter "N800SK/4553") from 

San Diego International Airport (hereinafter "SAN"), San Diego, California 

to Salt Lake City International Airport (hereinafter "SLC"), Salt Lake City, 

Utah, March 3, 2011. 

SkyWest N614SK operated as Flight 4445 (hereinafter "N614SK/4445") from 

Phoenix Sky Harbor International Airport (hereinafter "PHX"), Phoenix, 

Arizona, to SLC, March 3, 2011. 

SkyWest N965SW operated as Flight4540 (hereinafter "Flight 4540") from 

Missoula International Airport (MSO), Missoula, Montana, to SLC, March 3, 

2011. Pleadings describe this flight as flown by both aircraft N965SW and 

N614SK. 

SkyWest N816SK operated as Flight 4613 (hereinafter "N816SK/4613") 

from at Eppley Airfield (hereinafter "OMA"), Omaha, Nebraska, to SLC, 

March 3, 2011. 

III. Procedural History 

On July 26, 2012, SkyWest Airlines, Inc., (hereinafter "SkyWest") was advised 

through a Final Notice of Proposed Civil Penalty that the Federal Aviation 

3 
Administration (hereinafter "FAA") proposed to access a civil penalty in the amount of 

$160,000. 

On August 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 of the F ARs, similar issues and similar defenses of Sky West. 

IV. Hearing 

A hearing was held in Salt Lake City, UT., on May 19, 2014 on the consolidated 

cases. 

The FAA was represented by Jeffrey Harper, Esq., FAA Office of Regional 

Counsel, Renton, Washington. 

SkyWest was represented by Michael L. Dworkin, Esq., of Dworkin & 

Associates, San Francisco, California94104 and Todd C. Emerson, ESQ., General 

Counsel, Sky West Airlines, St. GeJrge, Utah: 'i·~''' 

Post hearing briefs were filed by both parties. 

The matter is now ready for decision. 

V. Jurisdiction 

SkyWest was at all times material hereto the holder of Scheduled Air Carrier 

Certificate No. SW1A011A, and conducted its operations pursuant to Part 121 of the 

Federal Aviation Regulations (FAR) and was subject to those regulations . 

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VI. Burden of Proof 

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

13.224). 

VII. Allegations 

A. FAA's recitation of facts 

· The FAA alleged: 

Section II (FAA's Complaint) 

1. Sky West was at all times material herein the holder of Scheduled 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 SkyWest to use N465SW, a Bombardier CL.-600·2B9 

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

3. Paragraph D085 of Sky West's OpSpecs authorized SkyWest to use N614SK, 

a Bombardier CL-600-2C10 civil aircraft, in the conduct ofSkyWest's Part 

121 operations. 

4. Paragraph D085 ofSkyWest's OpSpecs authorized SkyWest to use N800SK, 

a Bombardier CL-600-2D24 civil aircraft, in the conduct of Sky West's Part 

121 operations. 

5. Paragraph D085 ofSkyWest's OpSpecs authorized SkyWest to use N816SK, 

a Bombardier CL-600-2D24 civil aircraft, in the conduct of SkyWest's Part 

121 operations. 

5 
6. Paragraph A098 of Sky 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, SP41 00, Part XII, revision qrig. of APR 10 with temporary revisions 

dated 18 OCT 10 and 14 FEB 11 (hereinafter "W &B Manual"). 

7. Paragraph A099 ofSkyWest's OpSpecs required that aircraft loading for 

Bombardier CL-600-2D24 aircraft be accomplished in accordance with 

SkyWest's W&B Manual. 

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

SkyWest's Bombardier CL-600-2B19 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 in the cargo bin/pit of the 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 of bags 

;-_ 

6 
, .. 

and to mark the number of standard 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 of all 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/pit upon completion of loading .. , 

.-.,. 

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 of Standard Checked Baggage loaded in each cargo 

bin on the CLR in the "Standard Checked" block. 

17. SkyWest's W&B Manual, Chapter 4, paragraph 8.9 required the loading agent 

to write the total number of Heavy Checked Baggage loaded in each cargo bin 

on the CLR in the "Heavy Checked"' block. 

18. SkyWest's W&B Manual, Chapter 4;,paragraph 8,15 required the loading 

agent to write the total weight of ballast loaded in the aircraft 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 of the 

CLR to indicate a live animal had been loaded on the aircraft. 

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

contained the warning: 

WARNING- INA.CClJRATijLOADING, REPORTING, OR 

F AlLURE 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 on March 3, 2011 

21. On March 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 CLR for NSOOSK/4553 listed "46 Standard Cheeked Bags, 0 Heavy l !'· t~? ,; 

'l ; ~ . • ' . 

Checked Bags, and 0 live anim~1s"\A board NSOOSK/4553. 

24. SkyWest thereafter operated NSOOSK/4553 from SAN to SLC. 

Section IV (FAA's Complaint) 

N614SK/4445 on March 3, 2011 

25. On March 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. CLR for Flight 4445 listed "46.Standard Checked Bags" and zero (0) Heavy ~ ' .. ~ ~. ~ 

Checked Bags" onboard N614SK/4445. 

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28. SkyWest thereafter operated N614SK/4445 from PHX to SLC. 

Section V (FAA's Complai~t) 

Flight 4540 on March 3, 2011 

29. On March 3, 2011, at MSO, SkyWest loaded passengers and baggage onto 

N465SW (sic) to be operated as Flight 4540 bound for SLC. 

30. SkyWest's personnel at MSO loaded 250 pounds ofballast and 100 pounds of 

COMAT onboard N465SW (sic). 

31. The CLR for Flight 4540 listed 350 pounds ofCOMAT onboard N614SK 

(sic). 

32. SkyWest thereafter operated N465S (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 CLR for N816SK/Flt 4613 listed "0 live animals" on board 

N816SK/4613. 

36. SkyWest thereafter operated N816SK/4613 to SLC. 

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Section VII (FAA's Complaint) 

SkyWest paid civil penalties in eight (8) previous cases involving loading of 

cargo contrary to approved procedures. 

Section VIII (FAA's Compl~int) 

By reason ofthe foregoing facts and circumstances, the FAA alleged SkyWest 

violated the following sections of the FARs (14 C.F.R.): 

a. 14 C.F.R. Section 1 ]9.5(g), in that, as a direct air carrier, it operated in 

violation of an appropriate operations specification. 

b. 14 C.F.R. Section 119.5(1), in that it operated aircraft under Part 121 in 

violation of its operations specifications, 

c. 14 C.F.R. Section 121.693 (a), in that it, operated flights without a load 

manifest that accurately reflected the weight of the cargo and baggage. 

d. 14 C.F.R. Section 121.693(c), in that it operated flights when the total 

weight of the aircraft was not cofuputed under approved procedures .. 

e. 14 C.F.R Section 121.93(d), in that it operated flights when the aircraft 

was not loaded according to an approved schedule. 

In accordance with 49 United States Code (hereinafter "U.S.C.") Sections 

46301 (a) and (d) (Transportation), SkyWest was liable for a civil penalty not 

to exceed $27,000 for each of the violations noted. 

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

of$160,000 is appropriate. 

B. SkyWest's recitation of facts 

Answering Section I of the Complaint, SkyWest averred: 

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SkyWest admitted that it was advised through a Final Notice of Proposed Civil 

Penalty that the FAA proposed to assess a civil penalty in the amount of$160,000, 

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

Answering Section II of the Complaint, SkyWest averred: 

1. In response to Paragraph 1, SkyWest admitted that it was at all times material 

hereto, the holder of Scheduled Air Carrier Certificate No. SWIAOllA, and 

conducted its operations pursuant to Part 121 of the FAR. 

2. In response to Paragraph 2, SkyWest admitted that Paragraph D085 ofSkyWest's 

Op Specs authorized SkyWest to use N465SW, a Bombardier CL-600-2B19 civil 

aircraft, in the conduct of SkyWest's Part 121 operations. 

3. In response to Paragraph 3, SkyWest admitted that Paragraph D085 ofSkyWest's 

OpSpecs authorized SkyWest to use N614SK, a Bombardier CL-600-2Cl0 civil 

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

4. In response to Paragraph 4, Sky West admitted that Paragraph D085 of Sky 

West's OpSpecs authorized Sky West to use N800SK, a Bombardier CL-600-

2D24 civil aircraft, in the conduct of SkyWest's Part 121 operations. 

5. In response to Paragraph 5, SkyWest admitted that Paragraph D085 of SkyWest's 

OpSpecs authorized SkyWest to U$,eN816SK, a Bombardier CL-600-2D24 civil 

aircraft, in the conduct of Sky West'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-600-2B 19 and 

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

W&B Manual. 

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7. In response to Paragraph 7, SkyWest admitted that 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 in the cargo 

bin/pit of the aircraft, including baggage, cargo, ballast, company material 

(COMA T) and live animals. 

12. In response to Paragraph 12, SkyWest admitted that 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. In response 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 

evaluate the classification of bags and to mark the number of standard and heavy 

bags on the CLR. 

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14. In response to Paragraph 14, SkyWest admitted that its W&B Manual, Chapter 3, 

paragraph 2.1.2 required the designated loading agent to 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, CO MAT, CO MAIL, and 

all other items loaded in the aircraft cargo bin/pit upon completion of loading. 

15. In response to Paragraph 15, SkyWest denied that its W&B Manual, Chapter 4, 

paragraph 4.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 agent to write the total number of Standard 

Checked Baggage loaded in each cargo bin on the CLR in the "Standard 

Checked" block. 

17. In response to Paragraph 17, SkyWest admitted that its W &B Manual, Chapter 4, 

paragraph 8.9 required the loading agent to write the total number of Heavy 

Checked Baggage loaded in each cargo bin on the CLR in the "Heavy Checked" 

block. 

18. In response 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 of ballast 

loaded in the aircraft on the CLR in the "Ballast" block. 

19. In response to Paragraph 19, SkyWest admitted that its W&B Manual, Chapter 4, 

paragraph 8.26 required the loading agent to circle, FWD or AFT as appropriate 

on the "Live Animal" line of the CLR to indicate a live animal has been loaded on 

the aircraft. 

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20. 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 of the Complaint, SkyWest averred: 

N800SK/4553 on March 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 which to form a belief as to the truth of the allegation that 

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. In response to Paragraph 23, SkyWest admitted the CLR for N800SK/4553 listed 

"46 Standard Checked Bags, 0 Heavy Checked Bags, and 0 live animals" on 

board N800SK/Flt 4553. 

24. In response to Paragraph 24, SkyWest admitted that it operated N800SK/4553 

from SAN to SLC. 

Answering Section IV of the Complaint, Sky West averred: 

N614SK/4445 

25. In response to Paragraph 25}·skyWestfaJ~itted that on March 3, 2011, at PHX, 

SkyWest loaded passengers and baggage onto N614SK/4445, bound for SLC. 

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26. In response to Paragraph 26, SkyWest was without sufficient information or 

knowledge from which to form a belief as to the truth of the 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. In response to Paragraph 27, SkyWest admitted the CLR for 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 operated N614SK/4445 

from PHX to SLC. 

Answering Section III of the Complaint, SkyWest averred: 

Flight 4540 

29. In response to Paragraph 29, SkyWest admitted that on March 3, 2011, at MSO, 

SkyWest loaded passengers and baggage onto N465SW (sic), to be operated as 

Flight 4540 bound for SLC. 

30. In response to Paragraph 30, SkyWest averred was without sufficient information 

or knowledge from which to forrri a beiief as to the truth of the allegation that 

SkyWest's personnel at MSO loaded 250 pounds ofballast and 100 pounds of 

COMAT onboard on board N465SW (sic), and therefore denied the same. 

31. In response to Paragraph 31, Sky West admitted that the CLR for Flight 4540 

listed 350 pounds ofCOMAT onboard N614SK (sic). 

32. In response to Paragraph 32, SkyWest admitted that it operated N465SW (sic) as 

Flight 4540 to SLC. 

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Answering Section VI of the Complaint, SkyWest averred: 

N816SK/4613 

33. In response to Paragraph 33, SkyWest admitted that on March 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 which to form a belief as to .the truth of the allegation that 

· SkyWest's personnel at OMA loaded two (2) live animals onboard N816SK/4613, 

and therefore denied the same. 

35. In response to Paragraph 35, SkyWest admitted that the CLR for N816SK/4613 

listed "0 live animals" onboard N816SK/Flt 4613. 

36. In response to Paragraph 36: SkyWe.st admitted that it operated N816SK/4613 to 

SLC. 

Answering Section VII of the Complaint, SkyWest averred: 

In response to Paragraph 37, SkyWest admitted it paid reduced civil penalties on 

eight (8) previous cases involving loading of cargo contrary to approved 

procedures. 

Answering Section Answering Section III of the Complaint, SkyWest averred: 

SkyWest generally denied all remaining allegations set forth in the Complaint. 

SkyWest asserted the following Affirmative Defenses: 

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

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2. SkyWest may have other affirmative defenses not known but which may 

become known through discovery. SkyWest reserved the right to allege such 

affirmative defenses as they become known. 

VIII. Issues 

Did SkyWest violate 14 C.F.R. Sections 119.5(g), 119.5(!), 121.693(a), 

.. ,. \. 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 of Testimony and Evidence 

All admitted testimonial and documentary evidence was reviewed and considered. 

Only brief highlights are summarized herein. 

A. FAA's Case 

Adam Scott Perkins 

.,_':' ~ ' 

~ . ... ., )1 ' ,· ' 

The FAA called Adam Scott Perkins (hereinafter "Perkins") as a witness. Perkins 

had twelve (12) years of aviation experience from flight instructing to flying cargo. Six 

( 6) years of that was 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. 

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N800SK/4553 

On March 3, 2011, Perkins was undergoing on-the-job training for line station 

operations and part of the training was to observe the weight and balance program for 

SkyWest. As a part of his surveillance Perkins observed the baggage being off-loaded 

from N800SK/4553 inbound from SAN to SLC. Perkins observed forty-three ( 43) 

standard bags onboard N800SK/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 of the 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 of the load manifest from N800SK/4553. Both exhibits were received into 

evidence. Perkins then identified FAA# C-20 as copies of the 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, but the CLR did not accurately reflect 

the cargo on the aircraft. 3 

Cross 

When doing the observations on N800SK/4553, Perkins was receiving on-the-job 

training from Andrew Ayers (hereinafter "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 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 of the 

aircraft and their weight would be accounted for with the weight of the passenger. 

3 . Tr. 47, I. II top. 55, I. 4. 

4 Tr. p. 77, I. 5 top. 78, I. I6. 

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Second, if the animal was accompanied by a passenger, it would be shipped as cargo and 

would receive a weight ofthirty (30) or sixty (60) pounds depending on the size of the 

dog and crate. As an example, Perkins was asked if you have 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, if the animal was shipped unaccompanied it would go as freight and the weight 

would have been recorded as actual weight of the animal plus the actual weight of the 

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 of the inspection Perkins was able to determine there was ballast 

on board the aircraft which consisted of five (5) fifty pound (50) bags for a total of two 

hundred fifty (250) pounds ofballast. There was also one hundred (100) pounds of 

COMAT, consisting of four (4) bundles of magazines. 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 of the magazine bundles and the ballast. Perkins testified the information on 

the CLR did not correctly reflect the cargo that he 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. 

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· •• 1 •• 

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Cross 

All the CLRs were obtained from the flight crews and were copies, with the 

exception of FAA# C-21 which was a station copy from MSO which Perkins obtained 

from SkyWest. There was a difference between the station copy of the MSO-SLC CLR 

which indicated ballast of two hundred-fifty (250) pounds and CO MAT of one hundred 

(1 00) pounds. The station copy of the CLR was in fact the correct CLR in that it 

correctly showed the weights. Perkins believed the ballast was requested after the flight 

was loaded by the pilots. Perkins testified a lot of times the station will make a correction 

to their copy of the CLR and then the pilots will make a correction to their copy as well 

after they have been detached. The total weight .of ballast and CO MAT was three 

hundred fifty (350) pounds and was loaded in the tail section of the aircraft. It was a 

technical issue, a difference between calling it ballast versus COMAT. Perkins was 

shown the station copy of the CLR. 8 Perkins testified the CLR is a two part form, the top 

sheet being like NCR paper, which also had writing on the back of the first page. Perkins 

did not attempt obtain copies of the back side of the first page of the CLR forms. Perkins 

testified the backside of the first page of the CLR was a format to help the "ram per" 

. 9 perform the bag count. 

When doing the observations on Flight 4540, 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 CLR from 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. 

20 
Perkins testified if you 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 of thirty-four (34). There was also ninety-two (92) pounds 

of freight on board. 11 . 1' 

N614SK/4445 

On March 3, 2011, Perkins also had_ the opportunity to inspect N614SK/4445 

from PHX to SLC. As part of his inspection Perkins you counted forty-three (43) 

standard bags were onboard and three (3) heavy bags were onboard N614SK/4445. 

Perkins obtained copies of the 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 of heavy bag tags that he took of baggage 

offloaded from N614SK/4445. 12 

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 obtained the CLR from the crew while I was counting. The load manifests were 

obtained from SkyWest Corporate. 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, ' ( • .". ~ • 

21 
N816SK/4613 

On March 3, 2011, Perkins also had the opportunity to inspect N816SK/4613 

from OMA to SLC. As part of his 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 obtained the CLR from the crew while I was counting. The load manifests were 

obtained from SkyWest CorporateY 

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 of the 

aircraft and their weight would be accounted for with the weight of the passenger. 

Second, if the animal was accompanied by a passenger, it would be shipped as cargo and 

would receive a weight of thirty (30) or sixty (60) pounds depending on the size of the 

dog and crate. As an example, Perkins was asked if you have 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, if the animal was shipped unaccompanied it would go as freight and the weight 

14 Tr. p. 67, I. 1 top. 71, I. 18. 15 Tr. p. 77, I. 5 top. 78, I. 16. 

22 
would have been recorded as actual weight of the animal plus the actual weight of the 

container. Perkins testified the animals were either cargo or freight. 16 

With respect to most of the flights, other airlines loaded the SkyWest flights and 

prepared the CLRs. Perkins did not take into account that a heavy bag tag might be on a 

bag from a prior flight. There was a remote possibility the bags had remained on the 

aircraft from a prior flight. 17 

Andrew James Ayers18 

Ayers was called by the FAA as an expert in Weight and Balance and specifically 

SkyWest's Weight and Balance program. Ayers' testimony was applicable to all of the 

cases in the consolidated docket. 

Ayers had worked in the aviation industry for nineteen (19) years, had been a 

Pilot in Command (hereinafter "PIC") on EMB-120 and CL-65 aircraft for approximately 

nine (9) years. He had been with the FAA approximately six (6) years at the SkyWest 

Certificate Management Office. He was the "Principle Operations Inspector" (hereinafter 

"POI") for SkyWest and had the overall responsibility for all of the authorizations and 

approvals for SkyWest's operational needs:. He oversaw compliance, authorizations for 

SkyWest programs, and scheduled surveillance and follow-up. He had an airline 

transport pilot certificate with type ratings in the EMB-120 and CL-65 series aircraft. He 

had training as an Aircraft Safety Inspector (hereinafter "ASI"). He received generalized 

weight and balance training that was applicable to any pilot flying any sort of aircraft as 

well as training specific to the type aircraft at issue in these cases. Ayers was familiar 

with SkyWest's Weight and Balance program and as SkyWest's POI, it was his 

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 

by the court as an expert in the field of aircraft weight and balance. 

Ayers explained the CLR was a tally worksheet for computing the loads or the 

weight of cargo loaded on the aircraft. A 'standard bag' was a term used for an average 

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

weighing from zero (0) up to fifty (50) pounds. A heavy bag would be over fifty (50) up 

to one hundred (100) pounds. For purposes ofSkyWest weight and balance program, 

heavy bags were assigned a weight of sixty ( 60) pounds. Plane side loaded valet bags 

were assigned a weight ofthirty (30) pounds which included a weight range do of zero 

(0) to fifty (50) pounds. 

Ayers testified the load manifest contained the total weights for aircraft flights. 19 

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

contained both background knowledge, scientific information, factual information about 

weight and balance, as well as suggested policies and procedures for complying with 

weight and balance when operating aircraft. It also described hazards associated with 

improper weight and balance. 

The FAA proffered evidence of a prior aircraft accident under Part 121 where 

weight and balance was a causal factor. We sustained an objection to the testimony and 

reaffirm our ruling. Ayers' proffer was: 

... the accident in question involved an aircraft that was loaded no[t] in 

compliance with the operator's approved weight and balance program. Incorrect 

information was provided to the flight crew which allowed them or did not allow 

them, rather, to accurately complete their load manifest for their flight. That 

resulted in them being unable to detect an aft CG ... the aircraft in question stalled 

shortly after takeoff and crashed, killing all persons aboard ... 

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

24 
The proffer offered no testimony of the type aircraft; when or where the accident 

occurred; weather conditions; flight conditions; what information was incorrectly 

provided; weight and balance program of the aircraft and/or carrier; or any other factors 

which would show any relevance to the facts of this case. We reaffirm our ruling and the 

objection was sustained. The testimony was not received. 

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 showed the same weight. Ayers agreed the CLR 

at FAA# C-21 was incorrect because the COMAT was listed as 350 pounds instead of 

100 pounds ofCOMAT and 250 pounds ofballast. Reviewing SW# R-21, the station 

copy ofthe CLR which was more accurate because it reflected changes in COMAT and 

ballast for the flight. SW# R-21 showed a total weight of 1850. 

!\. 

N800SK/455321 

Ayers testified the weight listed on the load manifest reflected the 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. 

25 
N614SK/444522 

Ayers testified the load manifest and the weight (see FAA# C-24 and C-25) as 

calculated using the cargo load report reflected each other which meant the load manifest 

and performance data were inaccurate. 

Ayers further testified that in a couple of the cases23 where the load manifest 

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

program described procedures for completion of the CLR, and failure to follow those 

procedures was still a violation. Whether or not' the number was correct was not relevant 

to whether those procedures were actu~lly followed. Ayers drew an analogy that, it was 

not enough to get the right answer, but to show your work to get the answer and that 

work also had to be correct. Ayers testified he believed there was an unknown impact on 

safety posed by these discrepancies, but that he was not surprised that the aircraft were 

operated within their weight and balance envelope?4 

Cross25 

Ayers testified the front side of the CLR worksheet was where the math was 

tallied up while the back side of the CLR was the worksheet to assist the loading agents 

in counting. Ayers admitted that as part of the investigation it would have been 

beneficial to have copies of the backside of the CLR. Ayers admitted his testimony was 

predicated upon the assumption that when the inspectors counted the offloaded baggage 

they were counted correctly. 

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. 

26 
Ayers testified that in 2011 SkyWest did not have a Safety Management System 

(hereinafter "SMS'.'). SMS was a series of tools and programs that allowed SkyWest to 

identify risks and mitigate those risks with processes and procedures in place to identify 

how they do that, when they do that~ and w4a:t th: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 of the CLR should be updated with any last minute 

changes. If the load manifest was inaccurate, the process wasn't followed. COMA T was 

required to be marked on the CLR as COMAT and ballast was required to be marked on 

the CLR as ballast. If a live animal was on board, that was required to be reflected on the 

CLR. 

Recross27 

Ayers testified live animals,kas bag~age:i~ere assigned a weight of thirty (30) 

pounds or sixty (60) pounds, including the container. Animals shipped as freight are 

assigned a different weight. 

Evidence 

The following FAA exhibits were admitted in the consolidated docket set forth 

above: FAA# Exhibits C-1 through C-36, inclusive; there is no FAA#C-37; FAA# C-38 

was not received [see SW# 1]; Judicial Notice was taken of FAA# C-39 through C-42, 

inclusive; FAA#C-43 through C-47 were provided for reference; FAA#C-100 through 

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

26 Tr. p. 219, I. 13 to p. 222, I. 1. 27 Tr. p. 222, I. 3, top. 223, I. I. 

~·~ \ ~-·i·· ~ 

;i. 

27 
B. SkyWest's' Case 

Carl Salamone, deposition transcript, 2014050628 

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

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

Counsel for both parties were present at the deposition. Salamone's testimony was 

applicable to all of the cases in the consolidated docket. 

Salamone had been a pilot for SkyWest for seven (7) years and was a member of 

a special projects group for SkyWest. He was a first officer on Canadair Regional Jets 

(hereinafter "CRJ"). He held an airline transport pilot certificate for the CL-65 type 

aircraft, a flight instructor's certificate, an advanced ground instructor and an instrument 

ground instructor certificate. He was rated in the CRJ 200, 700 and 900 aircraft and had 

operated all three types of aircraft. He had 4200 flight hours, of which 3200 were in 

CRJ s. He had a Bachelor of Science degree in electrical engineering and a Bachelor of 

Science degree in aviation human factors, from the University of Illinois. Aviation human 

factors was the study of human factors principles in research and psychology as it related 

specifically to aviation in the human elements of aviation safety, including weight and 

balance systems. For five (5) years he had been a member of a special projects group 

which, among other things, involved analysis of weight and balance. Salamone estimated 

he had flown about 3,000 flights. 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 

Sky West. 

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

28 
Salamone was received by the court as an expert in the field of calculation of 

aircraft weight and balance and the effects of that weight and balance on the aircraft 

performance. ·'· ~·· 

Salamone reviewed SW# R-1, a weight and balance analysis covering arecreation of the fourteen (14) flights based on the data available to him on weight and 

balance as calculated by the crew and also the alleged weight and balance as it would 

have been observed by an inspector(s) for each of the flight violations. In the analysis of 

these flights, Salamone took all information that was available to him, the cargo load 

reports, the load manifests, electronic, if available, the inspector's statement from the 

FAA, as far as the alleged weight or items that may have been present and the 

· manufacturer documentation for the Canadair series jets to determine performance and 

the weight and balance in that respect. He also took into account runway length, air 

temperature and fuel weight. 

Aircraft takeoff weight was defined as the gross weight of the aircraft in the 

takeoff configuration, as it would begin the takeoff segment of the flight. It was the full 

weight of the airplane immediately prior to beginning takeoff, including passengers, 

cargo, ballast, et al. 

Aircraft takeoff Center of Gravity (hereinafter "COG") was the location of the 

center of gravity at a point on the airplane and calculated to ensure that the plane 

remained in balance for the manufacturer's specifications throughout that flight. COG 

was a single point, a mathematical point. It was a single point like a teeter-totter, where 

that airplane would balance on one particular point where the weight was mathematically 

seen on that location on the airplane. COG w~s important for stability reasons, for 

29 
' ;.. 

control reasons, and it was really just a major part of the physics of flight, to ensure that 

the plane will perform as it was designed to. 

Other factors considered in Salamone's analysis included runway performance, 

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

airplane would not be too heavy to meet its performance requirements and performance 

planning. An airplane was operated at a weight that would ensure that the runway was 

adequate, that the climbing performance was adequate, and that it would be able to obtain 

its operating altitude for all phases Of flight and·complete that flight as planned. 

Salamone testified that for the fourteen (14) flights he reviewed, given the 

weights that the crews had recorded and believed that they were operating under, none of 

the flights exceeded maximum takeoff weight and none of the flights were unsafe in 

anyway. 

In Salamone's opinion, taking into account the additional weights observed by the 

FAA inspectors, none of the aircraft exceeded tolerances nor were the flights unsafe. In 

his opinion, the crews' calculations were accurate as pertaining to the cargo and weight 

that they believed that they had and the calculations did not exceed the manufacturer's 

suggested limitations nor as perceived by the FAA inspectors. Taking into account three 

of those factors, either as calculated''by th~ SkyWest crews at the time or adjusting for the 

observed variations by FAA inspectors, in Salamone's opinion, none ofthe flights would 

have been in excess of the manufacturer's limitations for takeoff weight, center of gravity, 

runway performance, climb performance, or maximum operating altitude. 

30 
Testimony as to speCific flights: 

N800SK/455329 

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 weight beyond what was accounted for by the flight crew. This would not 

have caused the airplane to be out of compliance with center of gravity or weight and 

balance. 

N614SK/444530 

Salamone found that the alleged items observed by the FAA inspector would have 

resulted in an additional ninety (90) pounds of cargo onboard above and beyond the 

amount calculated by the flight crew which would have had zero effect on the operation 

of this flight because the additional ninety (90) pounds would have left the aircraft's gross 

weight still well below the maximum gross weight for that runway use and the center of 

gravity was well within the envelope provided by the manufacturer for this aircraft for 

this configuration. As calculated by the flight crew, the takeoff weight was 4,453 

pounds, below the maximum runway takeoff weight. As observed by the inspector, it 

would be less than ninety (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 ••• 

31 
Salamone, was 4,000 pounds of play for that aircraft for power at takeoff, the thrust of 

the engines. The effect of an additional ninety (90) pounds would have been negligible. 

Salamone testified, according to the approved weight and balance program, the 

center of gravity calculation, as it was calculated prior to takeoff, would ensure that the 

center of gravity remained within the manufacturer envelope for the entire duration of 

that flight. 

Salamone explained the COG calculation using N614SK/4445 as an example. •'",·· 

N614SK/4445 was a CRJ-700 series. 31 For N614SK/4445, the calculated and observed or 

alleged takeoff weight would have been very close to 67,000 pounds and the crew 

calculated center of gravity was located at 22.19 percent mean aerodynamic chord. The 

alleged configuration would have shifted that takeoff center of gravity to a location at 

22.46 percent of mean aerodynamic chord, or approximately an inch. For N614SK/4445 

either under the flight crew's calculations or calculating with the observed weight of the 

FAA the center of gravity remained basically the center of the envelope. 

Flight 454032 

In Flight 4540 there was a discrep~J?.,CY be~ween the ballast and COMAT, but the 

total weight remained the same. Salamone testified the flight crew accurately calculated 

the gross weight for this airplane. to take off at 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 CJR 700 Weight and Balance Envelope" 32 Tr. p. 250, I. 4 top. 251, I. 5. 

32 
as planned and the load manifest but for this flight, it would have been 1 00 percent 

accurate. 

N816SK/461333 

The report, FAA report, indicated that the two (2) live animals were loaded on 

this aircraft and not indicated on the CLR. The CLR did not indicate thirty (30) pounds 

of freight, which was the correct location to record this type of shipment. The only 

omission on this CLR was to have circled that live animals were present in the cargo pit. 

This was a flight crew notification and only that a live animal was present on the 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, just because it costs 

more to fly around the extra weight. However, SkyWest has a policy of adding 

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

increase in burn would have been accounted for and included in that contingency fuel. It 

would not have impacted safety. 

Salamone described the human factors involved in loading an airplane and 

counting bags. He described the most difficult aspect of aircraft loading and baggage 

handling as having to do with the environment around which it is centered. The ramp 

environment may have temperature-swings;_it may have noise and vibration. It could 

have light, darkness issues, as well a flurry of activity making focus difficult for that 

particular employee. It was a very active area that could cause, perhaps, a pause in 

33 Tr. p. 251, I. 6 top. 252, I. 6. 

33 
counting or bags arriving at different times from different connecting flights. Salamone 

· described that humans have a difficult time inherently with counting, and when you 

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

Salamone was not particularly surprised at bag count discrepancies. 

Cross34 

Salamone testified the reason why he togk runway length into account was that a . ·: ., '·':-; i(·; I 

heavier aircraft required a longer distance to takeoff. Heavier aircraft needed to reach a 

higher speed to become airborne, had a lower rate of climb, a lower angle of climb, lower 

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 of the aircraft would affect performance. The 

CLR is one of the documents used to generate the load manifest. The load manifest was 

the document that contained the aircraft gross weight and center of gravity location, 

which was then used to determine performance requirements. 

Christopher C. Brown35 

Christopher C. Brown (hereinafter::Bro\v.n") was the Director of Aircraft 

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 with the 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's testimony was applicable to all of the cases in the consolidated 

docket. 

Brown testified about SW# R5-1, which was a letter to the CMO, to Mr. Ayers, 

requesting consideration for a proposed amendment to the approved weight and balance 

program to allow for human factors errors in bag counting. The proposal would 

artificially add a specific amount of weight to the basic operating weight of each aircraft. 

In doing so, the performance calculations would be performed as if the weight was 

physically onboard the aircraft, even though, in most cases, the weight would not be 

present. The aircraft operating envelope would be curtailed in such a way that for small 

miscounts, the SkyWest weight and balance prqg:ram would assure that the aircraft would ~·. . ! ~·-.: 

always remain within the manufacturer's operating envelope. Brown testified the 

proposal was similar to a program implemented by Delta. 

Evidence 

The following SkyWest exhibits were admitted in the consolidated docket set 

forth above: SW# Exhibits R 1-1, 2-1, 3-1, 3-2, 3-3, 4, 5-1, 5-2, 5-3, 5-4, 5-5, 5-6, 5-7, 6-

1, 6-2, 6-3, 7, 8, 9 and 10, inclusive. There are no exhibits SW 11-20, inclusive. SW# R21, was admitted. 

C. Credibility determinations 

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

X. Brief Summary of Evidence and Testimorty 

NSOOSK/4553 on March 3, 2011 

On March 3, 2011, at SAN, SkyWest loaded passengers and baggage onto 

NSOOSK/4553 bound for SLC. SkyWest's personnel at SAN loaded forty-three (43) 

35 
Standard Checked Bags, three (3) Heavy Checked Bags, and one (1) live animal onto 

NSOOSK/4553. The CLR for 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 on March 3, 2011 

On March 3, 2011, at PHX, SkyWest loaded passengers and baggage onto 

N614SK/4445 bound for SLC. SkyWest's personnel at PHX loaded forty-three (43) 

Standard Checked Bags and three (3) Heavy Checked Bags onto N614SK/Flight 4445. 

CLR for Flight 4445 listed "46 Standard Checked Bags" and zero (0) Heavy Checked 

Bags" onboard N614SK/4445. SkyWest thereafter operated N614SK/4445 to SLC. 

Flight 4540 on March 3, 2011 

The allegation was that on March 3, 2011, at MSO, SkyWest loaded passengers 

and baggage N465SW (sic) to be operatedtas Fiiight 4540 bound for SLC. SkyWest's 

personnel at MSO loaded 250 pounds ofballast and 100 pounds ofCOMAT onboard 

N465SW (sic) to be operated as Flight 4540. The CLR for Flight 4540 listed 350 pounds 

ofCOMAT onboard "N614SK" (sic). SkyWest thereafter operated N465SW 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 

On March 3, 2011, at OMA, SkyWest loaded passengers and baggage onto 

N816SK/4613 bound for SLC. SkyWest's personnel at OMA loaded two (2) live animals 

on board N816SK/4613. The CLR for N816SK/Flt 4613 listed "0 live animals" on board 

N816SK/4613. SkyWest thereafter operated N816SK/4613 to SLC. 

XI. Law 

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

13.224(a) and (c). The standard is a preponderance of reliable, 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· · 

of civil penalties in FAA cases. 

A person is liable to the United States Governn1ent for a civil penalty of not more 

than $25,000 for violating ... (B) a regulation prescribed or order issued under any 

provision to which clause (A) of this 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 of which 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 in violation of, an appropriate certificate and appropriate operations 

specifications. No person may operate as a direct air carrier or as a commercial 

operator in violation of any deviation or exemption authority, if issued to that 

person or that person's representative. , .. . ..CJ .• <· ·.. ·1:" 

2. 14 C.FR. Section 119.5(1), provides: 

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

135 of this chapter in violation of an air carrier operating certificate, operating 

certificate, or appropriate operations specifications issued under this part. 

37 
D. 14 C.F.R. § 121.693 Load manifest: All certificate holders 

The load manifest must contain the following information concerning the loading 

of the airplane at takeoff time: 

1. 14 C.F.R. Section 121.693(a), provides: 

The weight of the aircraft, fuel and oil, cargo and baggage, passengers and 

crewmembers. 

2. 14 C.F.R. Section 121.693(c), provides: 

The total weight computed under approved procedures. 

3. 14 C.F.R. Section 121.693(d), provides: 

Evidence that the aircraft is loaded according to an approved schedule that insures 

that the center of gravity is within approved limits. 

E. FAA Order 2150.3B Chapter 7 and Appendix B, dated October 1, 2007 (Sanction 

Guidance). 

The Sanction Guidance contains tables that establish specific penalty ranges for 

different types of violations. 

XII. Findings ofFact 

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

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

findings: 

A. 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 in violation of its. 

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,'' 

38 
1: 

CLR. The testimony and evidence showed that for flight N800SKJ4553, SkyWest's CLR 

failed to properly reflect in the appropriate block the actual count of the different classes 

of baggage loaded onto the aircraft. The failure to accurately prepare the CLR, it is 

concluded, constitutes a violation of §119.5(g). 

SkyWest's actions in loading and marking the CLRs for flight N800SKJ4553also 

constituted a violation of FAR §119.5(1). This section prohibits Part 121 air carriers from 

operating in violation of OpSpecs. By failing to set out for each flight accurate 

information on the CLRs, SkyWest, a Part 121 air carrier, did not operate in conformance 

with its OpSpecs. It thus violated this sect1ori. 

2. 14 C.F.R. Sections 121.693(a), (c), and (d) 

Subsection (a) of §121.693 requires a load manifest to contain the weight of the 

cargo and baggage. Subsection (c) compels the use of "approved procedures" in 

computing the total weight 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 of gravity is within approved limits. Construing these 

subsections together, as principles of statutory construction dictate, indicates that a 

carrier's load manifest will pass muster if it has been compiled using approved 

procedures, and that the method used insures th::tt the center of gravity is within limits. 

The evidence shows that SkyWest followed these mandates. 

Salamone testified that for the fourteen (14) flights he reviewed, including 

N800SKJ4553, given the weights that the crews had recorded and believed that they were 

operating under, none of the flights exceeded maximum takeoff weight and none of the 

flights were unsafe in anyway. The crews' calculations were accurate as pertaining to the 

39 
cargo and weight that they believed that they had and the calculations did not exceed the 

manufacturer's suggested limitations nor as perceived by the FAA inspectors. None of 

the flights would have been in excess of the manufacturer's limitations for takeoff weight, 

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

altitude. 

As noted earlier, SkyWest computed its load manifest from its CLR using its 

Manual's average weights program. SkyWest's OpSpecs required loading procedures to 

follow the Manual. The load manifest, then, used approved procedures to compute the 

weight of the baggage. No violation of §§121.693(a) and (c) thus could be proven. Nor 

was a § 121. 69 3 (d) violation proven; no evidence tended to demonstrate that the approved 

method failed to insure that the center of gravity was within approved limits. Indeed, 

Salamone's testimony and accompanying evidence suggested that the aircraft weight and 

center of gravity location fell within manufacturer recommendations and performance 

envelopes for every flight under 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 in violation of its 

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 ofSkyWest Airlines, Inc., "Initial Decision of Administrative Law Judge" FDMS Nos. 

FAA-2011-0779, May 2, 2013; In the Mat~er ofSkyWesi'Airlines, Inc., "Initial Decision of Administrative 

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 in the appropriate block the actual count of the different classes 

of baggage loaded onto the aircraft. The failure to accurately prepare the CLR, it is 

concluded, constitutes a violation of§ 119.5 (g). 

SkyWest's actions in loading and marking the CLRs for flight N614SK/4445 also 

constituted a violation of FAR §119.5(1). This section prohibits Part 121 air carriers from 

operating in violation of OpSpecs. By failing tp.set out for each flight accurate ... ') ,, 

information on the CLRs, SkyWest, a Part 121 air carrier, did not operate in conformance 

with its OpSpecs. It thus violated this section. 

2. 14 C.F.R. Sections 121.693(a), (c), and (d) 

Subsection (a) of §121. 693 requires a load manifest to contain the weight of the 

cargo and baggage. Subsection (c) compels the use of "approved procedures" in 

computing the total weight of the aircraft. Section 121.693(d) requires that the load 

manifest contain evidence that the aircraft was loaded according to an approved schedule 

which insures that the center of gravity is within approved limits. Construing these 

subsections together, as principles of statutory construction dictate, indicates that a 

carrier's load manifest will pass muster if it has)been compiled using approved 

procedures, and that the method used insures that the center of gravity is within limits. 

The evidence shows that SkyWest followed these mandates. 

Salamone testified that for the fourteen (14) flights he reviewed, including 

N614SK/4445, given the weights that the crews had recorded and believed that they were 

operating under, none ofthe flights exceeded maximum takeoffweight and none of the 

41 
flights were unsafe in anyway. The crews' calculations were accurate as pertaining to the 

cargo and weight that they believed that they had and the calculations did not exceed the 

' ·d ... 

manufacturer's suggested limitation's nor·a~ perc~ived by the FAA inspectors. None of 

the flights would have been in excess of the manufacturer's limitations for takeoff weight, 

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

altitude. 

As noted earlier, SkyWest computed its load manifest from its CLR using its 

Manual's average weights program. SkyWest's OpSpecs required loading procedures to 

follow the Manual. The load manifest, then, used approved procedures to compute the 

weight 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 of gravity was within approved limits. Indeed, 

•t 

Salamone's testimony and accompanying evidence suggested that the aircraft weight and 

center of gravity location fell within manufacturer recommendations and performance 

envelopes for every flight under review.37 

Accordingly, the FAA, it is concluded, failed to prove that Sky West violated 14 

C.F.R. Sections 121.693(a), (c), and (d.) 

C. Flight 4540 on March 3, 2011 

1. 14 C.F.R. Sections IJ9.5(g) and 119.5al 

Section 119.5 (g) prohibits an air carrier from operating in violation of its 

OpSpecs. SkyWest's OpSpecs obligate th~ carr~er to use the procedures detailed in its . ~ '. 1· ' ;. : ' 

37 See In the Matter of Sky West Airlines, Inc., "Initial Decision of Administrative Law Judge" FDMS Nos. 

FAA-2011-0779, May 2, 2013; In the Matter ofSkyWest Airlines, Inc., "Initial Decision of Administrative 

Law Judge" FAA-2011-0485, FAA-2011-0486, May 2, 2013; 

42 
Weight & Balance Manual for loading and counting baggage. The Manual, among other 

things, directs the carrier's designated loading agent to accurately prepare the flight's 

CLR. The testimony and evidence showed that for Flight 4540 was identified as having 

been flown byN965SW and N614SK on March 3, 2011. The failure to accurately 

identify the aircraft cannot constitute 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 and N614SK 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, SkyWestloaded passengers and baggage onto N465SW, to be operated 

as Flight 4540 bound for SLC. 

30. SkyWest's personnel at MSO loaded 250 pounds of ballast and 100 pounds of 

COMAT onboard N465SW. 

31. The CLR for Flight 4540 listed 350 pounds ofCOMAT onboard N614SK 

(sic). 

32. SkyWest thereafter operated N465SW as Flight 4540 to SLC. ,_ .. ,:.,... ~- r I .. , 

SkyWest answered as follows: 39 ' 

29. In response to Paragraph 29, SkyWest admits that on March 3, 2011, at 

Missoula International Airport (MSO), Missoula, Montana, Sky West loaded 

passengers and baggage 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 a belief as to the truth of the allegation that 

SkyWest's personnel at MSO loaded 250 pounds of ballast and 100 pounds of 

COMAT onboard N465SW, and therefore denies the same. 

38 FAA Complaint, page 5, Section V, paragraphs 29 through 32 inclusive. 39 SkyWest Answer, page 6, Section V, paragraphs 29 through 32 inclusive. 

43 
31. In response to .Paragraph 31, Sky West admits that the CLR for Flight 4540 

listed 350 pounds ofCOMAT onboard N614SK. 

32. In response to Paragraph 32, SkyWest admits that it operated N465SW as 

Flight 4540 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 on March 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 manifest to contain the weight of the 

cargo and baggage. Subsection (c) compels the use of "approved procedures" in 

computing the total weight of the aircraft. Section 121. 693(d) requires that the load 

manifest contain evidence that the afrcraft~~a~ .1911ded according to an approved schedule 

which insures that the center of gravity is within approved limits. Construing these 

subsections together, as principles of statutory construction dictate, indicates that a 

carrier's load manifest will pass muster if it has been compiled using approved 

procedures, and that the method used insures that the center of gravity is within limits. 

The evidence shows that SkyWest followed these mandates. 

Salamone testified that for the fourteen (14) flights he reviewed, including Flight 

4540, given the weights that the crews had recorded and believed that they were 

operating under, none ofthe flights exceeded maximum takeoff weight and none of the 

flights were unsafe in anyway. The crews' calculations were accurate as pertaining to the 

cargo and weight that they believed1that they ·hJa~ and the calculations did not exceed. the 

·manufacturer's suggested limitations nor as perceived by the FAA inspectors. None of 

the flights would have been in excess of the manufacturer's limitations for takeoff weight, 

44 
center of gravity, runway performance, climb performance, or maximum operating 

altitude. 

As noted earlier, SkyWest computed its load manifest from its CLR using its 

Manual's average weights program. SkyWest's OpSpecs required loading procedures to 

follow the Manual. The load manifest, then, used approved procedures to compute the 

weight ofthe baggage. No violation of §§121.693(a) and (c) thus could be proven. Nor 

! ? ~ \.{ .· 

was a §121. 693 (d) violation proven; no evi.'dence tended to demonstrate that the approved 

method failed to insure that the center of gravity was within approved limits. Indeed, 

'I 

Salamone's testimony and accompanying evidence suggested that the aircraft weight and 

center of gravity location fell within manufacturer recommendations and performance 

envelopes for every flight under review.40 

The evidence and testimony with respect to Flight 4540 was inconsistent with the 

pleadings. Accordingly, the FAA, it is concluded, failed tb prove that SkyWest violated 

14 C.F.R. Sections 121.693(a), (c), and (d) and because the evidence and testimony did 

not conform to the pleadings. 

N816SK/4613 on March 3, 201 I' .;4

'·'• 'P 

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

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

findings: 

40 See In the Matter of Sky West Airlines, Inc., "Initial Decision ofAdministrative Law Judge" FDMS Nos. 

FAA-2011-0779, May 2, 2013; In the Matter of Sky West Airlines, Inc., "Initial Decision of Administrative 

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 of its 

OpSpecs. SkyWest's OpSpecs obligate the carrier to use the procedures detailed in its 

Weight & Balance Manual for loading and counting baggage. The Manual, among other 

things, directs the carrier's designated loading agent to accurately prepare the flight's 

CLR. The testimony and evidence showed that for flight N816SK/4613, SkyWest's CLR 

failed to properly reflect in the appropriate block the actual count of the different classes 

of baggage loaded onto the aircraft. The failure to accurately prepare the CLR, it is 

concluded, constitutes a violation of §119.5(g). 

SkyWest's actions in loading and marking the CLRs for flight N816SK/4613 also 

constituted a violation of FAR §11i:5(l). 'f:hi~ ~~~tion prohibits Part 121 air carriers from 

operating in violation of OpSpecs. By failing to set out for each flight accurate 

information on the CLRs, SkyWest, a Part 121 air carrier, did not operate in conformance 

with its OpSpecs. It thus violated this section. 

2. 14 C.P.R. Sections 121. 693{a), (c), and (d) 

Subsection (a) of §121.693 requires a load manifest to contain the weight of the 

cargo and baggage. Subsection (c) compels the use of "approved procedures" in 

computing the total weight 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 of gravity is within approved limits. Construing these 

; '· . {,:i·~ ' /; . : j -~ 

subsections together, as principles of statutory construction dictate, indicates that a 

carrier's load manifest will pass muster if it has been compiled using approved 

46 
procedures, and that the method used insures that the center of gravity is within limits. 

The evidence shows that SkyWest followed these mandates. 

Salamone testified that for the fourteen (14) flights he reviewed, including 

N816SK/4613, given the weights that the crews had recorded and believed that they were 

operating under, none of the flights exceeded maximum takeoff weight and none of the 

flights were unsafe in anyway. Th~. crews' calculations were accurate as pertaining to the \,I : ~ . ! 

cargo and weight that they believed that they had and the calculations did not exceed the 

manufacturer's suggested limitations nor as perceived by the FAA inspectors. None of 

the flights would have been in excess of the manufacturer's limitations for takeoff weight, 

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

altitude. 

As noted earlier, SkyWest computed its load manifest from its CLR using its 

Manual's average weights program. SkyWest's OpSpecs required loading procedures to 

. follow the Manual. The load manifest, then, used approved procedures to compute the 

weight ofthe baggage. No violation of §§121.693(a) and (c) thus could be proven. Nor 

was a §121.693(d) violation proven; no eviden~~'tended to demonstrate that the approved 

method failed to insure that the center of gravity was within approved limits. Indeed, 

Salamone's testimony and accompanying evidence suggested that the aircraft weight and 

center of gravity location fell within manufacturer recommendations and performance 

envelopes for every flight under review.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 ofSkyWest Airlines, Inc., "Initial Decision of Administrative Law Judge" FDMS Nos. 

FAA-2011-0779, May 2, 2013; lri the Matter ofSkyWest Airlines, Inc., "Initial Decision of Administrative 

Law Judge" FAA-2011-0485, FAA-2011-0486, May 2, 2013; 

47 
XIII. Conclusions 

Upon consideration of the totality of evidentiary facts and testimony, by a 

preponderance of the evidence standard, we find: 

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

Section 119.5(1) with respect to flights N614SK/4445, N800SK/4553 and 

N816SK/4613, inclusive. 

B. The FAA failed to prove that SkyWest violated '14 C.F.R. Section 119.5(g), and 

14 C.F.R. Section 119.5(1) with respect 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 with respect to the violations of 

14 C.F.R. Section 121.693(a), 14 C.F.R. Section 121.693(c), and/or 14 C.F.R. 

Section 121.693(d), inclusive for flights 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 with respect to the violations of 

14 C.F.R. Section 121.693(a), 14 C.F.R. Section 121.693(c), and/or 14 C.F.R. 

Section 121.693(d), inclusive for Flight 4540, and the evidence and testimony 

with respect to Flight 4540 was inconsistent with the 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). 

48 
We found the FAA failed to prove that SkyWest violated 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 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. ·,·. :~ J II : . • ~ · . 

1 .. i. t\ J 

The FAA argued under the facts and circumstances of this 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 FAA had a cooperative working relationship with SkyWest. 

Once notified of the violations, SkyWest took swift, comprehensive corrective 

action including implementation of an 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 Sky West paid civil penalties in 

eight (8) previous cases involving loading of cargo contrary to approved procedures. 

While a penalty calculated in accordance with the FAA's policy guidance should 

stand, absent a showing of a respondent's inability to pay, the evidence and testimony 

did not support the penalty requested. While the FAA was entitled to substantial 

deference in establishing an appropriate civil 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 on weight and balance or on aircraft performance. SkyWest showed that 

in no instance was safety of flight at even the slightest risk (See Tr. p. 227, 1. 7 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. It was this 

document that was computed by the flight crew and used by them to evaluate how their 

calculations will affect operational safety. The FAA failed to show for any of the flights 

that SkyWest failed to follow the scheme 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, SkyWest implemented a new Safety Management System to address the 

violations. 

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

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

unfair, unwarranted, and disproportionate to the offenses. 

The two sections violated in each instance, 14 C.F.R. §§119.5(g) and 119.5(1), are 

not significantly different. The first prohibits operation as a direct air carrier in violation 

·' . ;\. 

of OpSpecs; the second prohibits operating, under Part 121 in violation of OpSpecs. The 

disthiction between the two provisions for the present purposes is inconsequential. As 

such, penalizing SkyWest for both violations would be unjustified. We note that the 

agency's civil penalty guidelines, FAA Order 2150.3B, take a similar stance: they advise 

that "[w]hen a single instance of noncompliance results in multiple violations of general 

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. ;· · · · 

51 
3. 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 I 19.5(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 2Wl 000 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 of Regional Counsel 

Northwest Mountain Region, ANM-7 

Federal Aviation Administration 

1601 Lind Avenue, S.W. 

Renton, W A 98057 

TEL: 425-227-1417 

FAX: 425-227-1007 

FDMS 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 of Hearings, M-20 

U.S. Department ofTransportation 

1200 New Jersey Avenue, S.E. (Ell-31 0) 

Washington, DC 20590 

TEL: 202-366-2139 Attorney-Advisor 

202-366-5121 Staff Assistant 

FAX: 202-366-7536