### U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS WASHINGTON, DC 

# RECEIVED SEP 19 2013 

# HEARING DOCKET

In the Matter ofAero Micronesia, FAA Docket No.:**Unassigne~~** 

### FDMS No.: FAA-2012-0469'--' Respondent. ,...., r.' 

## -,J FAA Region: Western-Pacific) Judge: Richard C. 

### Goodwin _.l 

# ·o COMPLAINANT'S MOTION FOR DECISION r:..; en C..) ...-**1~.** , : \" I

# ~~~ r-?:1 ::;:\-;--;

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### To: Honorable Richard C. Goodwin, Administrative Law Judge, and Respondent, Aero Micronesia: COMES NOW, Complainant, Federal Aviation Administration (FAA), WesternPacific Region, by counsel, and files this Motion for Decision pursuant to sections 13.218(a) and (f)(5) ofTitle 14 ofthe Code ofFederal Regulations, on the grounds that Complainant is entitled to a decision as a matter oflaw because there is no genuine issue ofmaterial fact disputed by the parties. Respondent has admitted to all ofthe alleged facts, and only argues that it did not violate the cited regulation. Thus, as resolution ofthis case is limited to a question oflaw, it is appropriate for disposition by this motion.

that: I. FACTS On June 25, 2012, Complainant filed the Amended Complaint in this action, alleging

1. 

### Aero Micronesia, Inc. d/b/a Asia Pacific Airlines ("Aero Micronesia") is now, and at all times mentioned herein was, the holder ofAir Carrier Certificate No. I5PA400I, authorized to conduct flight operations, cargo only, under part 121 of the Federal Aviation Regulations ("FARs").

### 2


### 2. On or about December 8, 2010, the current versions ofAero Micronesia's "Flight Operations Training Manual" and "General Operations Manual," contained up through revision 9, and revision 22, respectively. 3. Mr. Richard Gaza was the manager ofAero Micronesia's flight crewmember training at Sanford International Airport, Sanford, Florida. 4. Mr. Richard Gaza was furnished with copies ofAero Micronesia's "Flight Operations Training Manual" and "General Operations Manual", revision 9, and revision 22, respectively. 5. On or about December 8, 2010, the latest revisions contained in Mr. Gaza's Aero Micronesia's "Flight Operations Training Manual" and "General Operations Manual", were revision 5, and revision 21, respectively. By virtue ofthe foregoing, Complainant alleged that Respondent had violated the following Federal Aviation Regulation, and proposed to assess ofcivil penalty of$6,600:
14 C.F.R. §121.137(a), which states that "[e]ach certificate holder shall furnish copies ofthe manual ... (and the changes and additions thereto) or appropriate parts ofthe manual to-its appropriate ground operations and maintenance personnel. .." On July 18, 2012, Respondent filed an Answer, in which Respondent admitted allegations 1 - 5 above, adding some clarifications regarding allegations 3 and 5. See 

### Respondent's "Motion to Strike and Answer to Amended Complaint" ("Answer"). Respondent clarified its admission to allegation 3 by providing the correct spelling ofMr. Gazda's name, and stating that Mr. Gazda was an independent vendor providing training services to Aero Micronesia, rather than an Aero Micronesia employee. Respondent also clarified its admission to allegation 5, stating that although the manuals themselves were not updated, Mr. Gazda was in possession ofall the revisions for both manuals, and that no training was being conducted at the time ofthe FAA inspection. Respondent's clarifications

### regarding its admissions to allegations 3 and 5, do not alter the fact that Respondent has admitted to all alleges facts, including allegations 3 and 5.



### II. LEGAL STANDARD. Title 14 ofthe Code ofRegulations, section 13.218(£)(5) states:

A party may make a motion for decision, regarding all or any part ofthe proceedings, at any time before the administrative lawjudge has issued an initial decision in the proceedings. The administrative lawjudge shall grant a party's motion for decision ifthe pleadings, depositions, answers to interrogatories, admissions, matters that the administrative lawjudge has officially noticed, or evidence introduced during the hearing show that there is no genuine issue ofmaterial fact and that the party making the motion is entitled to a decision as a matter oflaw. The party making the motion for decision has the burden ofshowing thatthere is no genuine issue ofmaterial fact disputed by the parties. 14 C.F.R. 

### § 13.218(£)(5).


### III. ARUGUMENT. As indicated above, Respondent has admitted to allegations 1 - 5 ofthe Complaint. 

### 3

Thus, Respondent only contests that it violated the cited regulation, 14 C.F.R. 

### § 121.137(a), and the amount ofthe proposed civil penalty ($6,600). We will start by addressing Respondent's claim that it did not violate 14 C.F.R. § 121.137(a).



### a. Respondent Violated 14 C.F.R. § 

### 121.137(a). Respondent denies that it violated 14 C.F.R. § 121.137(a), stating that it "did furnish the manual and all changes and additions.thereto to 

### Mr. Gazda," and that "[t]hese revisions were provided by Aero Micronesia to 

### Mr. Gazda at the time they were issued pursuant to the

### 4 Respondent's established distribution procedures." See 

### Respondent's "Motionto Strike and Answer to Amended Complaint" ("Answer"). The certificate holder's responsibility, however, goes beyond merely supplying the manual updates to its personnel. "A certificate holder may utilize a variety ofmethods to supply its manual to crewrnembers provided that 'ithas clearly-established procedures describing the method to be used, the method for keeping the manual current and the method for verifying that the manual is current before each flight (including which crewrnember(s) is responsible for the verification). See 

### Letter to Robert Sweet from Rebecca MacPherson (November 7, 2011), citing Interpretation 1988- 7 (Mar. 10, 1988). Exhibit No. 

### 1. Mr. Richard Gazda, hadboth an outdated flight operations training manual (four revisions behind) and general operations manual (one revision behind). Thus, Respondent failed to implement any "clearly-establishedprocedures" to maintain and verify the currency ofits manuals. In

### fact, in each case, the manuals were nearly two years out ofdate. Respondent has admitted that, as ofDecember 8, 2010, the latestrevision in 

### Mr. Gazda's Flight Operations Training Manual was revision 5, whereas the current version at the time was revision 9. See 

### Respondent's Answer. Thus, Mr. Gazda's Flight Operations Training Manual was missing revisions 6, 7, 8, and 9. Revision 6 was dated approximately February, 2009. See 

### Kanae Declaration, Exhibit A. 1 

### Thus, at the time ofthe FAA inspection on December 8, 2010, revision 6 had been in effect for about 22 months, yet Mr. Gazda's Flight Operations Training Manual had not been updated withthe revision (nor had itbeen updated with Revisions 7, 8 or 9). Respondent also admitted that, as ofDecember 8, 2010, the latestrevision in

### Mr. Gazda's General Operations Manual was revision 21, whereas the current version at the time was revision 22. Revision 22 was issued February, 2009. See 

### Exhibit 2, p. 5 (Notice of

1 Exhibit A to the Declaration ofFAA Inspector Kanae, is theFAA's "Record ofRevisions" for Asia Pacific's Flight Operations Training Manual. It shows revision 6 inserted on 2/13/09, indicating that the revision must have been issued in February 2009, or earlier.

### 5
Manual Distribution" attached to Respondent's August 3, 2011 letter). Thus, at the time of the FAA inspection on December 8, 2010, Revision 22 had been in effect for approximately 22 months, yet Mr. Gazda's General Operations Manual had notbeen updated with the reVISIOn. Respondent's untimely distribution ofmanual updates shows similar neglect. As indicated above, Revision 22 ofthe General Operations Manual (GOM) was issued in February, 2009. 

### !d. However, it was not distributed to Mr. Gazda until October 13, 2010 (22 months later), and receipt ofthe revision was not acknowledged by Mr. Gazda until January 21, 2011 (an additional 3 months). 

### !d. 

### IV. SANCTION. Respondent has admitted that its training manager had both an outdated Flight Operations Training Manual (four revisions behind) and General Operations Manual (one revision behind). The manuals were not updated with revisions for nearly two years. As demonstrated above, this is a violation of 14 C.F.R. § 

### 121.137(a). Pursuant to 49 U.S.C. § 46301, Respondent is subject to a civil penalty not to exceed $27,500 for each violation. However, for this case, Respondent simply seeks a civil penalty of$6,600. This is an appropriate amount for a single violation of 14 C.F.R. § 121.137(a). Respondent had two separate manuals which were not properly updated, which could warrant a civil penalty ofdouble this amount ($13,200). A civil penalty of$6,600 for a single violation of 14 C.F.R. § 121.137(a) is consistent with the FAA's sanction guidance. The FAA's publicly available sanction

### 6 guidance table is contained inAppendix B ofFAA Order 2150.3B. 2 

### The sanction guidance recommends a minimum civil penalty for failure to maintain a current manual. 3 

### As Respondent is a Group II large business4
, 

### the minimum civil penalty range is $2,035- 9,624. 5 

### FAA Order 2150.3B, Chapter 7, Subparagraph 5-b(3) instructs to "begin with an amount in the middle ofthe range, and increase that amount toward the higher end ofthe range for aggravating factors or decrease that amount toward the lower end ofthe range for mitigating factors." The middle ofthe range between $2,035 and $9,624 is $5,829; that would be the penalty for a single violation, absent any aggravating or mitigating factors. We note that there were actually two violations, rather than a single violation. Additional aggravating and mitigating factors were considered. Although aggravating factors exceeded any mitigating factors, and a significant increase in the civil penalty would have been justified, the penalty was increased only slightly, to $6,600. Respondent in its Answer, claims thatthe penalty is excessive and that the Respondent is entitled to mitigation ofthe penalty. See 

### Complainant's "Motionto Strike and Answer to Amended Complaint," Second and Third Affirmative Defenses. Additional information regarding Respondents claim that mitigation is warranted is contained in Respondents August 3, 20111etter. See 

### Exhibit 2.

2 FAA Order 2150.3B can be found at http://www.faa. gov/regulations policies/orders notices/index.cfm/go/document.information/documentiD/1721 3. 3 See FAA Order 2150.3B, Appendix B, Figure B-1-a(l). 4 "In determining the concern's size, SBA counts the receipts, employees, or other measure ofsize ofthe concern whose size is at issue and all ofits domestic and foreign affiliates, regardless ofwhether the affiliates are organized for profit." 14 C.F.R § 121.103. Asia Pacific Airlines is an affiliate ofTan Holdings. See http://www.tanholdings.com/index.php/sbu/. "Tan Holdings Corporation employs more than 4,000 people in the Western Pacific Region." See http://www.tanholdings.com/index.php/ourpeople/under "Commitment." The maximum number ofemployees for an air transportation freight company to be considered a small business is 1,500 employees. See FAA Order 2150.3B, Appendix B, subparagraph 3-b. Thus, Respondent is considered a large business concern. 5 See FAA Order 2150.3B, Appendix B, Subparagraph 3-c(l). The amounts shown above are the amounts provided in FAA Order 2150.3B, as adjusted for inflation. See 75 FR 72935 (October 29, 2010) and 14 C.P.R. 13.305.

### First, Respondent claims that the penalty should be mitigated due to the death of Respondent's VP ofOperations shortly before the FAA inspectors visit to Respondent's training facility. Although Complainant is sympathetic to the death ofRespondent's employee, the loss (by death or by quitting, retiring, etc.) ofan employee is a key reason why an operator should maintain current manuals. In the event ofsuch a loss, other employees may not even be aware that a manual is not updated, and proceed with using an outdated manual. 7

Secondly, Respondent claims that the penalty should be mitigated because it had to temporarily move out ofthe training facility at the time, and move the manuals to Mr. Gazda's home. Respondent claims that since the FAA inspector didn't warn Respondent that he wanted to inspect the manuals, they were not immediately available. Respondent appears to contend that the FAA should have warned Respondent ahead oftime, each and every aspect ofwhat Respondent intended to inspect. Mr. Gazda had an associate retrieve the manuals from his home. The associate, apparently unaware that the manuals were not up to date, did not bring the updates which Respondent claims were at Mr. Gazda's home. Again, the manuals must be kept up to date to avoid the potential use ofoutdated manuals, which could have occurred in this case. Respondent also appears to start to argue for mitigation based onthe fact that Mr. Gazda wasn't an employee ofRespondent. Exhibit 2,**~** 

### 4. Butthen Respondent goes on to admit that Mr. Gazda "is required to have appropriate manuals and they should be up to date...". 

### !d. We also note that 14 C.P.R. §

### 121.137(a) is not phrased in terms of"direct employees" or similar language.

### 8 Finally, Respondent states that no training was going on atthe time ofthe FAA inspection. However, 14 C.F.R. §121.137(a), doesn't limitthe requirement to furnish updated manuals to when training is being conducted. As discussed above, keeping outdated manuals increases the likelihood that outdated manuals might be used. The danger ofusing outdated manual is that certificate holders may be trained on outdated procedures, with potentially serious consequences, including an aircraft accident. See Clarence Kanae Declaration. As indicated above, aggravating factors exceeded any mitigating factors. These aggravating factors could have been used, in addition to the fact that 

### two manuals were out ofdate, to significantly increase inthe civil penalty. However, the civil penalty was increased only slightly from the midpoint ofthe recommendedrange for a single violation ($5,829), to $6,600. One ofthe factors that can be considered in setting the penalty amount is the degree ofhazard imposed by a Respondent's action. "[A]n increase inthe degree ofhazard may form the basis for

## exce~ding the sanctionranges." 6 

### Respondent argues that no training was going on at the time. However, the manuals had not been updated for nearly two years. Certainly, Respondenthad conducted training withinthe two years prior to the FAA inspection. The sanction also could have been further aggravated bythe fact that Respondent is
an air 

### carrier, and "[a]ir carriers are held to the highest standard ofcare."7 

### Having manuals

6 FAA Order 2150.3B, Chapter 7, Subparagraph 4-e(2). 7 FAA Order 2150.3B, Chapter 7, Subparagraph 4-g.

### 9 which are nearly two years out ofdate is hardly the actions ofan air carrier exhibiting the highest standard ofcare. In summary, although Complainant could have significantly increased the sanction due to the fact Respondent had two violations, Complainant did not do so. Although Complainant could have also used aggravating factors to significantly increase the amount ofthe penalty, Complainant did not do so. The sanction sought of$6,600 is only slightly above the midpoint ($5,829) ofthe recommended range for a single violati011. Accordingly, Complainant's selected civil penalty of$6,600 is well within the range indicated in the sanction guidance table, and is not arbitrary, capricious, or otherwise not according to law.


### V. CONCLUSION.

Based on the foregoing, Complainant is entitled to a decision in its favor that Respondent committed the violations charged and should be assessed a civil penalty of $6,600. Respectfully submitted, NAOMI TSUDA
By: Don Bobertz Attorney Dated: September 

### 13, 2013

### CERTIFICATE OF SERVICE I hereby certify that onthis date I have placed in the United States mail, postage prepaid, the MOTION FORDECISION, addressed as follows:

And a copy to: Federal Aviation Administration 800 Independence Avenue, SW Washington, DC 20591 Attn: Hearing Docket Clerk, AGC-430 Wilbur Wright Building-Suite 2W1000 The Honorable Richard C. Goodwin Administrative Law Judge Office ofHearings, M-20 U.S. Dept ofTransportation 1200 New Jersey Avenue, SE (E11-310) Washington, D.C. 20590 I further certify that on this date I have placed in the United States mail, postage prepaid, certified mail

- return receipt requested, a true copy ofthe above, addressed as follows: David Kirstein, Esq. Kirstein & 

### Young PLLC 1750 K Street, NW, Suite 200 Washington, D.C. 20006 Mr. Michael Quinn, President . Asia Pacific Airlines 156 Diablo Road, Suite 203 Danville, CA 94526

Dated: September 13, 2013

# Agq~~ Legal Technician Office ofthe Regional Counsel Federal Aviation Administration Western-Pacific Region Hawthorne, California 10

# RECEIVED

.U.S. Department of Transportation 

## SEP 1 9 2013 

# HEARING DOCKET
Federal Aviation Administration



## NOV 

## -1 

# 20t1 Robert Sweet 95-1003 Wikao Street· Mililani, HI 96789 Dear Mr. Sweet: This is in response to your July 23, 2008 request for a legalinterpretation. The answer to your question has taken longer than anticipated due to the need to clarify internal safety poliCies surrounding this issue. In your letter, yourequested a clarification of 14 C.P.R. § 121.137 which requires that certificate holders furnish a copy ofthe general operations·manual to .crewmembers. You first question whether providing the manual in a .pdfformat complies with; the regulation. Then you ask who is responsible for providing the means to viewthe .pdffile and bear the costs ofprinting the manual: the certificate holder or the crewmember. Section 121.137(a) states, in relevant part, that each certificate holder shall furnish a copy ofthe appropriate sections ofthe rrianual required by section 121.133 (and any changes or additions thereto) to ground operations and maintenance personnel, crewmembers, and . representatives ofthe Administrator assigned to the certificate**holde~.** Section 121.137(b)states, in relevant part, that each person to whoma manual is issued shall keep it up-to-date with changes and additions and shru.l have· appropriate sections ofthe manual accessible while performing assigned duties. An electronic version ofthe manual is sufficientand satisfactoryprovided that there is a means to .view it quring the performance ofassigned duties.. Also, an up-to-date paper versionmust be available when necessary. A certificate holder may utilize a variety of methods to supply its manmil to crewinembers provided that "it has clearly-established

. procedures describing the method to be used, the method for keeping the manmil current.

.iiDd the method for verifYing that the manual is·currentbefore each flight (including ' which crewmember(s) is responsible for the verification) see, Interpretation 1988-7 (Mar.

10, 1988) (approving use ofmanual copies in "ship's library" provided in lieu ofpersonal manual copies);· · Additionally, the use ofan electronic manual requires operational approval through the issuance ofOperations Specification A061 by the certificate holder's PrinCipal Operations Inspector (POI) for Class I, II and III Electronic Flight Bags (EFB). See generally,



## . l**~X,** 1 I 

## f'·• AC 25.1581-1, Airplane Flight Manual (Jul.14,'1997)(providing guidance on the use ofelectronic airplane flight manuals); • AC 120-78, Acceptance and Use ofElectronic Signatures, Electronic Recordkeeping Systems, and Electronic Manuals (Nov. 29, 2002)(providing guidance on the requirements and approval process for electronic manuals);
· • AC 120-76A, Guidelines for the Certification, Airworthiness and Operational Approval ofElectronic Flight Bag Computing Devices (Mar. 1·7, 2003)(providing guidance on the use ofan electronic flight bag, including the use ofelectronic manuals), and • AC 91-78: Use ofClass 1andClass 2 Electronic Flight Bag (EFB) (July 7, 2007) (providing guidance on the use 

### ofelectronic flight bags in part 91 operations). Non-EFB Portable Electronic Devices (PED) may be used to view electronic manuals. 14 CFR § 91.21, § 121.306, § 125.204, and§ 135.144 place restrictions onthe in-flight · use ofPEDs. In addition, when using PEDs to view·electronic manuals, the Certificate

.Holder must outline the requirements ofthe regulations.intheir manuals;procedures etc. There is no Operations Specification paragraph tied to aPED. See generally,
• AC No: 91-2l.1B- Use ofPortable Electronic Devices • InFO 10009
- Portable Electronic Devices Regarding your second question, the certificate holder must provide sufficient technological resources to crewmembers to allow them "to revieweffectively the applicable portions ofthe manual while performing their duties." Letter to Gregory Winton, from Rebecca B. MacPherson (Mar. 6, 2008). This means that ifthe manual is provided in an electronic format, the certificate holder must provide the means to view that manual during the crewmember's performance ofassigned duties. As discussed above, the certificate holder must have clearly-established procedures regarding the use ofelectronic manuals, including procedures to update all paper and electronic copies of the manual to ensure consistency. This response was preparedby Robert Hawks, an Attorney in the Regulations Division of the Office ofChiefCounsel and Robert 

### H. Frenzel,**Man~ger,** Operations Law Branch in the Regulations Division and coordinated with the Air Carrier Operations Branch ofF AA Flight Standards Service. We hope this response has been helpful to you. Ifyou have · additiOI).al questions regarding this matter, please contact US at your convenience at (202)**.267~3073.** . . Sincerely,

# ~p,A-JIIfwl?. 

# __. Rebecca B. JacPherson Assistant ChiefCounsel for Regulations, AGC-200. J , r·' /**~"l'·····** I. • ' J 

# /,. /-' 

# c7Jsinf'Jncific c7Jirlioes !56 Diablo Road, Suite 203 Danville, CA 94526 Tel: 9.25-362-4430, Fax: 925-362-4432 August 3, 2011
Federal Aviation Administration Western-Pacific Region Attn: Mr. Don Bobertz, AWP-7 P.O.Box 92007 Los Angeles, CA 90009-2007 RE: 

### Case.No. 2011\VP350005 Dear Mr. Bobertz: 

# RECEIVED SEP 1 9 2013 

# HEARING DOCKET

I am receipt ofyour letter dated July 6, 20-11. Attached to this letter is the Reply to Notice Form with Box 2 checked. I have also attached copies oft-vvo ofour company forms indicating that the appropriate revisions to the 2 manuals in question v;ere distributed 

### by the company to Mr. Gazda in a timely fashion and well before the DecemberS, 2010 date ofMr. Kanae's inspection. And l have attached a note dated March 12, 2010, retrieved ii·om our VP ofOperations computer, that supports the company's Notice ofManual Distribution \Vith respect to Revisions 8 and 9 to the Flight Operations Training Manual. The "Dick" addressee in this note is Mr. Richard Gazda who manages our flight crewmer'nber training in Sanford. We believe the company did all that was necessary with respect to manual distributions as required by fAR 121.137(a). Some ofthe above information was not included in our February 18, 2011 reply to Mr. Kanae's original December 28,2010 LOI. But sil1ce there were no subsequent discussions verbally or in -vvriting on this subject between Mr. Kanae and anyone at our company over the next several months, well beyond the normal 75 days allocated for LOI resolution, we assumed that ti1e LOI had been closed with no further action. In addition, there are a few significant mitigating factors to· this case. Mr. Kanae's visit to our training facility occurredjust one week after ourVP ofOperations had suddenly and unexpectedly passed a\:vay. Manuals and Revisions \vere this person's responsibility and as a former FAA

.inspector himself, he would not have allowed Mr. Kanae to find out ofdate ti1anuals during that visit. Moreover, our company, during the 4th quarter of2010, was also still in the process 

### cif transitioning our training from a Part 142 school to ai1 in house. program under the oversight ofMr. · Gazda. This necessitated his having to temporarily move out ofthe training facility in Sanford, Florida in which he had been previously located. He moved all the APA manuals to his personal home about 40 miles away. When**~vir.** Kanae met with Mr. Gazda in December, it was at the Sanford facility, but since he had not mentioned to Mr. Gazda or the company that he wished to see APA's manuals at that time, they were not immediately available. Mr. Gazdahad an associate retrieve them from his home and bring them to the facility later in the clay which is when Mr. Kanae discovered that they were out ofdate. !v1r. Gazda actuall)' had the revisions at his home, but had notMr. Bobertz Letter August 3. 20 II Page 2 installed them in the respective manuals. He installed them the following day, however, Mr. Kanae ·had already left town. Mr. Gazda was not then and is not now an employee ofAsia Pacific Airlines. He is a vendor providing 

### an FAA approved training service to our company. As such, he is required to have appropriate manuals and they should be up to date. but under the circumstances described, \\'e .believe it to be entirely inappropriate for the 

### HNL CMO to 

### bring this action against our airli11e. You 

### also allege 

### in your letter that 

### the manuals in question were "in use at our training site at Sanford International Airport." This is incorrect as there was no tn:i.ining going on at the time. The manuals were not at the site until Mr. Kanae requc?ted them .. And at no time, were the out ofdate manuals ever used for training. And finally, we would sugge$t that it was a tremendous waste ofFAA resources andtaxpayer dollars for Mt. Kanae, an inspector assigned exclusively to Asia Pacific Airlines and based in Honolulu, Hawaii to be in Sanford, Florida for a few hours when no Asia Pacific training was occurring. \Vc believe this additional information is sufficient for the proposed penalty to. be withdravm.

'Michael R. Quinn President
Attachments:·REPLY TO NOTICE OF PROPOSED CIVIL PENALTY For Companies, Security Cases, and Individuals: Other than those acting in the capacity of a pilot, mechanic, flight engineer or repairman Regional Counsel for the Western-Pacific Region Federal AviationAdministration, AWP-7. P.O. Box 92007 -Los Angeles, CA 90009-2007 · Subject: Notice of_ Proposed Civil Penalty In reply 

### to your Notic:e of Proposed Civil Penalty, I elect to proceed as indicated by my check mark beside the numbered paragraph(s) below: · 1. [ ] · I hereby submit the amount of the proposed civil penalty with the understanding that an order assessing civil penalty will be issued in the amount without further notice. and that 

### I waive my right to a hearing. _,,.-' 

### /'

. . 

### 2. [ 

## I ] I hereby submit evidence and information, demonstrating that a violation of the regulations did not occur or that the amount ofthe penalty is not warranted by the circumstances. 3. [ ] I hereby submit information and records showing that I am finanCially unable to pay the proposed civil penalty, orthat payment ofthe penaltywould prevent me from continuing in business. · 4. [ ] I hereby request that a civil penalty be assessed in the amount of$
___ _ and 

### I submit the reasons for the reduction of the proposed amount. My request constitutes my agreement that 

### if this offer is accepted by the FAA, an Order Assessing Civil Penalty in that amount may be issued without further notice and 

### I waive my right to a hearing.

. . 5. [ ] I

# h~reby re.quest an informal conference that will be held atthe Office

# ~f the Regional Counsel, Hmvthorne; Ca(ifornia, or . . · · . · . (a mutually convenient location) in orderto discussthis matter with the attorney in charge of this case and-to present evidence and information on my behalf.

. . 6. { · ]I hereby requestthat the FAAimpose a civil penalty without making the findings of violations, and submit my reasons. 

## MY request constitutes my agreementthat ifthis offer is accepted, a Compromise Order will be. issued in that amount and 

### I waive my right to a hearing. AWP-7 FORM 2150-25 {12/06 Edition)

# ~§:itPJ 

# Plllfdfle**~lrdlo;les'-------+** NOTICE OF MANUAL DISTRIBUTION
.**~** 

## . MA."JUALNAME:

## 7A.::rli:~~**~~** ' . . u . 

# 0 'MANUAL NUMBER: · 

## j-
. . - · . REVISIONNUMBER 

# q + '1
· 0\ . :. r_ 

## P-L._ ASSIGNED TO:**F:J~ /~** **~** 0 ISSUE DAlF_: .

### ~- Is--I D DISTRIBUTION DATE:. 

## 3- {;)__- J 

### D 

### ·The Manual holder maintains responsibility fur the currency and condition of their assigned manuals at e3U**ti~.** Mar,ua!**Revis~~** shall be**j:~ed imm~'diately**  upon receipt
. \ Federal Aviation Regukrtion 121.137 requires manual holders to keep their assigned manual "up-**t~e** with the changes and additions." · · ·**····~··············································~·····················** 

## TRANSMITi AL REPORT. I have received and reviewed the contents of1his Revision.

/
. SIGNATURE

# ~/?.Ro ·s·

# ~/'12£/4. PRIN"J:NAME

## ·wL~/" PLEASE FAX OR SCAN THIS TRANSJWIITTA.L PAGE'TO: \lice President ofOperations Asia Pacific Airlines 156 Diablo Road, Suite 203. Oanville, CA 94526. 

# (925) 362-4432

Manual Distnbution 3112/2010

03/24/10 01 :03 PM ASIA PAC AIRLIN Page 2

# ~si~

# JfJPJeifie**~ifi'l~'-------+** NOTICE OF MANUAL DISTRIBUTION MANUALNAME:

# -~~=0~.~~--------------------------- MANUALNUMBER: 

# 51 REVISIONNUMBER: Z... "2- ASSIGNEDTO:

# {)£Ck~·**d<;:;~** ISSUEDATE: 

# c:J.-d_ou 

# f DISTRIBUTION DATE: / () - I 

## 3- / 0 The Manual holder maintains respo:,sibility for the currency and condition of their assigned manuals at all times. · Manual Revisions shall be posted immediately :;pon receipt.

. . Federal Aviation Regulation 121.137 requires manual holders to keep their assigned manual"upto-date with the changesand additions." ·**··············~······················~·····~·····························** 

## TRANSMITTAL REPORT I have received and reviewed the contents of this Revision. I have posted the Revision in the assigned ma:1ual, removed ouidated fJ!aterials and recorded the date of posting on

### ~a Revision

### Page/<**~** 

# ._c:L
7

# ·-SK;~

/ · D PLEASE FAX OR SCAN THJS TRANSMilTAL PAGE TO:

, Vice President

## of Operations

Asia Pacific Airlines
. 1_56 Diablo Road, Suite 203 Danville, CA 94526 

# (925) 362-4432

Manual Distribution ·3/i2/2010March 12, 2010 Dick and Joe: I have enclosed Revisions 8 and 9 for your FOTM. I have enclosed two copies for Dick since you indicated that you had two FOTMs. l have enclosed only the LOEP for Revision 9 since it is the latest, Note that Revision 9 removes all pages in Chapter 4 after Page 10. Theses are the outdated LOFTs. Wording has been added to Page 10 which indicates that ·the LOFTs are maintained in Sanford. ·

Revision 9 removes Appendices F and G since these courses are taught outside Flight Operations as part of other FAA approved programs. 

### ·1 have enclosed an Appendix K for Joe since he indicated that he did not have one. The LOEP 

# is accurate. It is exactly what the FAA has in their copy. Please reconcile any differences with your manual. Thanks. BOB

### 2 3 

### 4 5 

### 6 7- UNITED STATES OF AMERICA DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS WASHINGTON, DC 

# RECEIVED SEP 1 9 2013 

# HEARING DOCKET

In the Matter ofAERO MICRONESIA, FAA Docket No.: unassigned FDMS No.: FAA-2012-0468 Respondent. FAA Region: Western-Pacific Judge: Richard C. Goodwin 8 . DECLARATIONOF CLARENCE K. KANAE 

### 9 I, Clarence K. Kanae, hereby declare and state: 10 I. 

### I 

### a:m over 18 years ofage and the following is within my own personal 11 knowledge. Ifcalled as a witness, I could and would competently testify thereto. 12 2. I have been employed by the Federal Aviation Administration since August 20, 13 1995. My current position is an Aviation Safety Inspector. More specifically,I'm an Air Cartier 

### 14 Principal Operations Inspector in the Honolulu Certificate Management Office. In that capacity, 15 my duties include oversight for the operation ofAero Micronesia Inc. (also known as Asia 16 Pacific). Oversight ofAero Micronesia and other operators includes evaluation ofairmen, 17 training programs, equipment (aircraft) and facilities. I also conduct investigations ofincidents 18 and accidents for potential violations ofthe Federal Aviation Regulations. 19 3. Prior to working for the FAA, I spent time as a first officer for a part 121 air

· 20 carrier, and as president/CEO and owner ofa h\!liC()pter company (accredited for part 135, part

21 

### 141, and part 61 operatiqns). I have over-41 years ofmilitary service. 22: 4
.. 

### I have air transport pilot ratings for fixed wing

### multi-engi~e land airplanes and 23 rotocnift. I am a certified flight instructor for multi-engine and single-engine airplanes and 24 rotocraft. I am type rated in the B-727, SD-3, SK-1, and S-70 aircraft. I am a certified flight 25 engineer for turbojet. I have a total ofapproximately 16,200 pilot hours. Ofthese, 1,500 are 26**multi~engine** 

### airplane, 2,700 are single-engine airplane, and 12,000 are helicopter, including 27 5,000 hours in military helicopters, 500 ofwhich were combat flight hours in Iraq. 28 FDMS No. FAA-2012-0469: DECLARATION OF CLARENCE KANAE

### I 5. As the FAA's Principle Operations Inspector over Aero Micronesia (a.k.a. Asia 2 Pacific Airlines), I maintain copies ofthe Aero Micronesia manuals and the updates to the 3 manuals as provided by Aero Micronesia. 

### 4 

### 6. Attached hereto as Exhibit A is a current, true, and correct copy ofthe "Record of 5 Revisions" for the Aero Micronesia Flight Operations Training Manual. 6 

### 7. Maintaining outdated manuals can have an adverse impact on safety. Instructors 7 and Check Airmen may disseminate outdated aircraft data, policies and procedures to company 8 flight crew members during initial, recurrent, or re-qualification training. Flight crew members 9 may use the outdated aircraft data, policies and procedures during their daily Hight activities. 10 This.could result in an crew members executing improper procedures during flight, whiCh in 11 severe cases, could result in an aircraft accident, and/orinjl.lfy or death. 12 13 I declare under penalty ofperjury that the foregoing is trueto the 

### best ofmy knowledge 14 and that this declaration was executed at Honolulu, Hawaii (city, state) on September 12, 2013. 15 16 

### 17 18 19 

### 20 21 22 23 24 25 

### 26 

### 27 .28 CLARENCE K. KANAE

·2 FDMS No. FAA-2012-0469: DECLARATION OF CLARENCE KANAE

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### U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS WASHINGTON, DC 

# RECEIVED SEP 19 2013 

# HEARING DOCKET
In the Matter ofAero Micronesia, FAA Docket No.: Unassigned FDMS No.: FAA-2012-0468 Respondent. FAA Region: Western-Pacific Judge: Richard C. Goodwin COMPLAINANT'S MOTION FORDECISION To: Honorable Richard C. Goodwin, Administrative LawJudge, and Respondent, Aero Micronesia: Complainant, Federal Aviation Administration (FAA), Western-Pacific Region, by counsel, files this Motion for Decision pursuant to sections 13.218(a) and (f)(5) ofTitle 14 ofthe Code ofFederal Regulations, in that Complainant is entitled to a decision as a matter oflaw because there is no genuine issue ofmaterial fact disputed by the parties. I. FACTS On May 11, 2012, Complainant filed the Complaint inthis action. The Complaint alleged: 1. 

### Aero Micronesia, Inc. d/b/a Asia Pacific Airlines ("Aero Micronesia") is now, and at all times mentioned herein was, the holder ofAir Carrier Certificate No. I5PA400I, authorized to conduct flight operations, cargo only, under part 121 of the Federal Aviation Regulations ("FARs"). 2. On or about March 25, 2011, Aero Micronesia operated a Boeing 727-200 aircraft, Civil Registration No. N319NE, on a cargo carrying flight from Majuro Atoll to Honolulu International Airport. 3. Incident to the above operation, N319NE carried an item of cargo, which included an aircraft engine in zone 8.

### 4. The "Load Planner- Weight Manifest" for the above flight showed that the weight ofthe cargo indicated in no. 3 above was distributed across zones 7, 8, and 9. 2



### 5. The weight ofthe cargo indicated in no. 3 above was not distributed across zones 7, 8, and 9, but was instead limited to zone 8. 6. As a result ofallegations 3 - 5 above, the "Load Planner- Weight Manifest" was not accurate. 7. The maximum allowable weight in zone 8 ofN319NE was 10,000 pounds. 8. N319NE contained a placard indicating that the maximum allowable weight for zone 8 was 10,000 pounds. 9. The weight ofthe cargo indicated in no. 3 above exceeded 10,000 pounds. 10. Alternatively, ifit is found that the cargo indicated in no. 3 above did not exceed 10,000 pounds, then the "Load Planner- Weight Manifest" showing the total weight ofsaid cargo did exceed 10,000 pounds is not accurate. By virtue ofthe foregoing, Complainant alleged that Respondent had violated the following Federal Aviation Regulations, and proposed to assess ofcivil penalty of$19,250: (a) 14 C.F.R. 

### § 91.9(a), which states"...no person may operate a civil aircraft without complying with the operating limitations specified in the approved Airplane or Rotocraft Flight Manual,**mar~ing,** 

### and placards..." (b) 14 C.F.R. § 121.665, which states "[e]ach certificate holder is responsible for the preparation and accuracy ofa load manifest form before each takeoff. .." On June 15, 2012, Respondent filed an Answer, in which Respondent admitted allegations 1 -8 above. Respondent's Answer, page 1,**~** 1. 

### That leaves allegations 9 and 10, and violations (a) and (b) as contested. However, Respondent has separately admitted to allegation 10 (and violation of(b), inaccurate manifest), leaving allegation 9 (and violation (a), overweight engine cargo) as the only truly contested matters.

### II. LEGAL STANDARDS. Title 14 ofthe Code ofFederal Regulations, section 13.218(£)(5) states:

A party may make a motion for decision, regarding all or any part ofthe proceedings, at any time before the administrative lawjudge has issued an initial decision inthe proceedings. The administrative lawjudge shall grant a party's motion for decision ifthe pleadings, depositions, answers to interrogatories, admissions, matters that the administrative lawjudge has officially noticed, or evidence introduced during the hearing show that there is no genuine issue ofmaterial fact and that the party making the motion is entitled to a decision as a matter oflaw. The party making the motion for decision has the burden ofshowing that there is no genuine issue ofmaterial fact disputed by the parties. 14 C.F.R. § 13.218(£)(5).



### III. ARGUMENT. As indicated above, the only allegations ofthe Complaint not admitted in Respondent's Answer are allegations 9 and 10- and the only truly contested allegation is allegation 9 (the overweight engine cargo), since Respondent has actually admitted to 3

allegation 10 (the inaccurate manifest). We will start by addressing Respondent's admission to the inaccurate manifest violation.



### a. The Manifest was Inaccurate (14 C.F.R. § 

### 121.665). There are two issues regarding the inaccurate load manifest. One involves a violation for the load manifest showing an inaccurate distribution ofthe cargo (allegations 4

### 4 -6 ofthe Complaint), to which Respondent has admitted. 1 

### Thus, a violation of 121.665 is not contested in that regard. The second issue regarding the load manifest is in regards to the engine cargo weight indicated on the load manifest (allegation 10 ofthe Complaint). Complainant will show later in this motion that the weight ofthe engine cargo did actually exceed 10,000 pounds, as depicted on the load manifest (and thus there is no second violation of 14 C.P.R. § 121.665). However, Respondent asserts that the engine cargo did not exceed 10,000 pounds- that instead "the load manifest had an inaccurate weight for the engine." Respondent's Answer, p. 1,**~** 

### 3. Thus, Respondent has admitted to allegation 10 ofthe Complaint. Respondent is essentially arguing that it committed a second 14 C.P.R. 

### § 121.665 violation (manifest error) rather than a 14 C.P.R. § 91.9(a) violation (overweight engine cargo). Thus, in an abundance ofcaution, Complaint alleged a second 14 C.P.R. § 121.665 violation. Respondent denies allegation 10 in its Answer simply based on the fact that this charge was "not mentioned in [Complainant's] original LOI [Letter ofInvestigation] or proposed civil penalty." Respondent's Answer, page 1,**~** 

### 1. Allegation 10 was included, however, in Complainant's AmendedNotice ofProposed Civil Penalty (NPCP) dated March 1, 2012, Final NPCP dated April24, 2012, and Complaint, dated May 11, 2012. See Exhibit 1, Amended NPCP, and Exhibit 2, Final NPCP. See also Complaint. Thus, Respondent has had ample notice ofthe inaccurate load manifest allegations. . Respondent further claims that the "the technical inaccuracy contained in the 'Load Planner-Weight Manifest' [doesn't constitute] a material violation." See Answer, page 1,**~** 

### 2. Such contention does not vitiate the violation, but is only relevant in determining the

1 Respondent admits that the manifest showed the engine cargo distributed across three zones, when it was actually limited to a single zone (allegations 4-6 ofComplaint). See Respondent's Answer, p. 1,**~** 1, admitting allegations 1-8.

### 5 

### appropriate sanction. See 

### FAA Order 2150.3B. The uncontested facts showthat Respondent violated 14 C.F.R. § 121.665 (manifest error) in at least one instance by showing an inaccurate distribution ofthe cargo, and either violated 14 C.F.R. § 121.665 a second time by showing an inaccurate weight on the manifest, or instead violated 14 C.F.R. § 91.9(a), by carrying overweight engine cargo?


### b. The Engine Cargo Exceeded 10,000 Pounds (14 C.F.R. § 

### 91.9(a)) Respondent denies that the weight ofthe engine cargo exceeded 10,000 pounds, preferring to admit solely to errors in the manifest. However, the evidence shows that the engine cargo, which Respondent was shipping for Continental Airlines, did exceed 10,000 pounds. First, Respondent's own "Load Planner- Weight Manifest" shows that the engine cargo exceeded 10,000 pounds. See 

### Kanae Declaration Exhibit G. Respondent's "Load Planner- Weight Manifest" shows a weight of9450 pounds in zone 8, and 546 pounds in both zones 7 and 9. The total for these weights is 10,542 pounds. Respondent has admitted that "because the support for the engine was in zone 8 all ofthe engine weight was in zone 8." Respondent's Answer, p. 1,**~** 

### 4. Thus, according to the load manifest, the weight in
zone 8 was 10,542 pounds, well in excess of 10,000 pounds. Second, Continental Airlines shipping documents show that the engine cargo exceeded 10,000 pounds. See 

### Declaration ofCatherine Flores, Declaration ofClarence Kanae, and Exhibits to the declarations, which also support a weight of 10,542 for the

2 See also Respondent's Answer, p. 1, para. 3, wherein Respondent states"...the error in the subject load manifest was inadvertent and immaterial...". See also Respondent's Answer, p. 1, para. 4, wherein Respondent states "[t]he personnel who createdthe load manifest had an inaccurate weight for the engine," and it "contained some technical inaccuracies."6 

### engine as shipped. As indicated inMs. Flores's Declaration, Exhibit C (Continental Airlines "Air Waybill" for the flight) shows a total weight for the engine (in 3 pieces) of 10,400 lbs. Exhibit D (Asia Pacific's "Cargo Manifest") for the flight shows that the 3 pieces were split into two pallets for shipping, pallet PAG72083CO and PAG72217CO. Exhibit E (Continental Airline's "Unit Load Device I.D. Tag and Dispatch Record" for pallet "PAG 72217") shows 316lbs were placed onpallet PAG72217CO with some other items, for a total weight of517 lbs. With 316 lbs removed from the original!0,400 lbs, the remaining engine cargo weight would have been 10,084 lbs. This remaining 10,084 lbs was placed on pallet PAG72083CO, with some other items, for a total weight of 10,542lbs. See 

### Exhibit F (Continental Airline's "Unit Load Device I.D. Tag and Dispatch Record" for pallet "PAG 72083"). Thus, the Continental Airlines shipping documents also support the fact that the weight ofthe engine cargo as shipped exceeded 10,000 pounds. Respondent contends that the weights shown on the above documents were in error. In suppmi ofits contention, Respondent provided a letter dated April20, 2011, along with
some documents. See 

### Kanae Declaration Exhibit H. Although the documents provided by Respondent showthe weight for a typical 

### CFM56-7 engine (the type ofengine inthis case)
as shipped, rather thanthe particular engine in this case, they are worth examining. Page 3 ofKanae Declaration Exhibit H, is an April 15, 2011 email from Ms. Lois Santos of Continental Airlines, showing the weight for a CFM56-7 in the shipping stand to be 9800 pounds. Page 5 ofExhibit H shows the dry weight for a CFM56-7 is 5,216 pounds, and page 6 ofExhibit H shows the weight ofCFM-56-7B engine stand to be 4,620 pounds. When added together, the weight provided for the typical engine and typical engine stand is 5,216lbs. 

### + 4,620 lbs. = 

### 9,836 pounds, which is relatively close to the 9800 pounds

### provided in the Lois Santos email. At first glance, these documents appear to support Respondent's contention that the engine cargo did not exceed 10,000 pounds. However, as stated above, these documents provide weights for a 

### typical engine as shipped, not the engine in this case. 7

The engine as shipped in the case at hand was different than the typical engine as shipped discussed above. As indicated in the Declaration ofMs. Catherine Flores of Continental Airlines, she witnessed the weighing ofa typical CFM56-7 prepared for shipping, and it weighed 9,812 pounds. This figure is relatively close to the 9800 pounds provided in the Lois Santos email, and the 9,836 pounds provided in the other documents with Respondent's April20, 2011, letter discussed above. However, in viewing the photo of the engine in the case at hand, Ms. Flores noticed a key difference. She noticed that the engine in the case at hand had something extrathat the typical engine she weighed did not. The engine in the case at hand still had the casters (wheels) attached to the shipping stand, whereas the engine she weighed did not. Declaration ofMs. Catherine Flores, at 2:8-13. The casters weigh a total of680 pounds. 

### !d. When added to the weight ofthe typical CFM56-7 prepared for shipping, the total weight ofthe shipped engine would be 9,812lbs. 

### + 680 lbs. = 

### 10,492 pounds. 

### !d. Thus, the 

### typical CFM56-7 engine as shipped with the casters (wheels) would have weighed approximately 10,500 pounds. This is relatively close to the 10,542 provided in Respondent's own manifest, and the Continental Airlines documents. Thus, not only do the actual shipping documents show that the engine shipment inthis case exceeded 10,000 pounds, the typical engine as shipped with casters (like the engine in this case) also exceeds 10,000 pounds. Thus, Respondent violated 14 C.P.R. § 

### 91.9(a).8



### IV. SANCTION. As demonstrated above, Respondent operated a Boeing 727 from Majuro Atoll to Honolulu International Airport, while carrying an engine in a manner that exceeded the operating limitations ofthe aircraft, a violation of 14 C.F.R. § 91.9(a). Additionally, Respondent prepared an inaccurate load manifest, in that Respondent's manifest showed the engine cargo spread over 3 loading zones, when in fact the weight ofthe engine cargo was limited to a single zone. This is a violation of 14 C.F.R. § 121.665. Finally, even if Respondent were correct about the engine cargo weighing less than 10,000 pounds, the 14 C.F.R. § 91.9(a) violation (overweight engine cargo) would simply be replaced by a second 14 C.F.R. § 121.665 violation (inaccurate manifest) for showing the engine weighed more than 10,000 pounds on the manifest. Pursuant to 49 U.S.C. § 

### 46301, Respondent is subject to a civil penalty not to exceed $27,500 for each violation. Respondent committed two violations: One 14 C.F.R. § 

### 91.9(a) violation, and one 14 C.F.R. § 121.665 violation (or, alternatively, as Respondent contends, two 14 C.F.R. § 121.665 violations). Thus, Respondent is subject to a maximum civil penalty of$55,000. However, for this case, Respondent simply seeks a civil penalty of $19,250. This is an appropriate amount for a single violation ofeither 14 C.F.R. § 91.9(a) violation, or 14 C.F.R. § 

### 121.665. Again, although a civil penalty ofdouble this amount ($38,500) would be appropriate because ofthe two violations committed by Respondent, Complainant is simply seeking an amount based on a single violation. A civil penalty of$19,500 for a single violation ofeither 14 C.F.R. § 91.9(a) or 14 C.F.R. § 121.665 is consistent with the FAA's sanction guidance. The FAA's publicly9 

### available sanction guidance table is contained in Appendix B ofFAA Order 2150.3B. 3 

### Operation ofan aircraft while exceeding the operating limitations (14 C.F.R. 

### § 91.9(a) violation) is analogous to operation in non-conformity ofthe aircrafts type certificate, which may have an adverse effect on safe operation ofthe aircraft. The sanction guidance recommends a moderate to maximum civil penalty for such a violation. 4 

### Similarly, the sanction guidance also recommends a moderate to maximum civil penalty for the inaccurate manifest (14 C.F.R. 

### § 121.665) violation. 5 

### As Respondent is a Group II large business6, 

### the maximum civil penalty range is $17,875- $27,500, and the moderate civil penalty range is $9,625-$20,624. 7 

### FAA Order 2150.3B, Chapter 7, Subparagraph 5-b(3) instructs to "begin with an amount inthe middle ofthe range, and increase that amount toward the higher end ofthe range for aggravating factors or decrease that amount toward the lower end ofthe range for mitigating factors." The middle ofthe range between $9,625 and $27,500 is $18,562. The penalty could have been substantially increased by the fact that there were actually two violations, rather than a single violation, but it was not. The penalty could have been substantially increased by the fact that aggravating factors exceeded any mitigating

3 FAA Order 2150.3B can be found at http://www.faa.gov/regulations policies/orders notices/index.cfm/go/document.information/documentiD/1721 3. 4See FAA Order 2150.3B, Appendix B, Figure B-1-1(2). 5 See FAA Order 2150.3B, Appendix B, Figure B-1-k(l), which recommends a moderate to maximum civil penalty for any violation ofsubpart U of 14 CFR part 121. 14 C.P.R. § 121.665 is contained in subpart U of 14 CFR part 121. 6 "In determining the concern's size, SBA counts the receipts, employees, or othermeasure ofsize ofthe concern whose size is at issue and all ofits domestic and foreign affiliates, regardless ofwhether the affiliates are organized for profit." 14 C.F.R § 121.103. Asia Pacific Airlines is an affiliate ofTan Holdings. See http://www.tanholdings.com/index.php/sbu/. "Tan Holdings Corporation employs more than 4,000 people in the Western Pacific Region." See http://www.tanholdings.com/index.php/ourpeople/under "Commitment." The maximum number ofemployees for an air transportation freight company to be considered a small business is 1,500 employees. See FAA Order 2150.3B, Appendix B, subparagraph 3-b. Thus, Respondent is considered a large business concern. 7 See FAA Order 2150.3B, Appendix B, Subparagraph 3-c(l). The amounts shown above are the amounts provided in FAA Order2150.3B, as adjusted for inflation. See 75 FR 72935 (October 29, 2010) and 14 C.P.R. 13.305.

### . \ 

### 10 factors, but it was not. Although a significant increase in the civil penalty would have been justified, the penalty was increased only slightly, to $19,250. The factors affecting the sanction are discussed in more detail below. "Ifa violation is deliberate or not inadvertent, a sanction at the upper end ofthe range or exceeding the range for that type ofviolation is generally appropriate." 8 

### By its
own admission, Respondent claims that it knew ofthe manifest error, but attempts tojustify the error by stating that "the flight was already late departing and we decided not to redo the

... paperwork." See Kanae Declaration Exhibit H, p.l,**~** 

### 3 (Respondent's April20, 2011 letter responding to Complainant's Letter oflnvestigation). However, as noted above, despite Respondent's deliberate operation with a known manifest error, the civil penalty amount was increased only slightly. Additionally, Respondent contends that Complainant "improperly considered prior alleged violations." (Respondent's Answer, p. 2,**~** 

### 5). 9 

### However, the civil penalty amount was not increased due to prior violations. Another factor that can be considered in setting the penalty amount is the degree of hazard imposed by a Respondent's action. "[A]n increase in the degree ofhazard may form the basis for exceeding the sanction ranges." 10 

### Respondent argues that its manifest error regarding the engine weight was inadvertent and immaterial" and "did not ... represent any safety risk." However, recordkeeping violations are not trifling matters. On the contrary, they are significant. Complete and accurate recordkeeping is the linchpin ofFAA's

8 FAA Order 2150.3B, Chapter 7, Subparagraph 4-b. 9 See FAA Order 2150.3B, Chapter 7, Subparagraph 4-d(l) which states that "[a] prior violation history may suggest that a person has a poor compliance disposition, which is an aggravating factor." See also FAA Order 2150.3B, Chapter 7, Subparagraph 4-h(l), which states that "a violation history canjustify imposing a sanction at the higher end ofthe normal range or a sanction beyond the normal range." Thus, the FAA's sanction guidance provides for increasing the sanction when a respondent has a violation history. However, as indicated above, Complainant did not aggravate the sanction based on a violation history. 1

## °

FAA Order 2150.3B, Chapter 7, Subparagraph 4-e(2).

### 11 oversight and enforcement. Complete and accurate recordkeeping is essential for the FAA to fulfill its mandate ofassuring that operators comply with safety standards. See Watts AgriculturalAviation, Inc., d/b/a GrowersAirService, FAA Order No. 91-8 (April 11, 1991). Incomplete or inaccurate records compromise air safety. Such transgressions merit significant penalties. Additionally, the potential hazard created by exceeding weight limitations ofan aircraft cannot be overstated. Compliance with the weight and balance limits ofany aircraft is critical to flight safety. Operating above the maximum weight limitation compromises the structural integrity ofan aircraft and adversely affects its performance.
FAA Pilot's Handbook ofAeronautical Knowledge, Chap. 9, Weight and Balance, p. 9-1 (http:/ /www.faa.gov/regulations _policies/handbooks_ manuals/aviation/pilot_ handbook/) "Because ofabnormal stresses placed upon the structure ofan improperly loaded aircraft, or because ofchanged flying characteristics ofthe aircraft, loss oflife and destruction of valuable equipment may result." FAA Aircraft Weight and Balance Handbook, FAA-H8083-1A. p. 1-1 (http://www.faa.gov/regulations_policies/handbooks_manuals/aircraft/ Yet, despite the hazards imposed by Respondent's actions in this case, the amount ofthe civil penalty was increased only slightly. The sanction also could have been aggravated by the fact that Respondent is an air carrier, and "[a]ir carriers are held to the highest standard ofcare." 11 

### As discussed above, rather than correcting what Respondent claims was a known manifest error, Respondent attempts tojustify its manifest error, stating that "the flight was already late departing and

11 FAA Order 2150.3B, Chapter 7, Subparagraph 4-g.

# ------------------

# .............

12
we decided not to redo the ... paperwork." See Kanae Declaration Exhibit H, p.l,**~** 3 (Respondent's April 20, 20Illetterresponding to Complainant's Letter oflnvestigation). This is hardly the actions ofan air carrier exhibiting the highest standard ofcare. In summary, although Complainant could have doubled the sanction due to the fact Respondent committed two violations, Complainant did not do so. Although Complainant could have also used aggravating factors to significantly increase the amount ofthe penalty, Complainant did not do so. The sanction sought of$19,250 is only slightly above the midpoint ($18,562) ofthe recommended range for a single violation. Accordingly, Complainant's selected civil penalty of$19,250 is well within the range indicated in the sanction guidance table, and is not arbitrary, capricious, or otherwise not according to law. V. CONCLUSION. Based on the foregoing, Complainant is entitled to a decision in its favor that Respondent committed the violations charged and should be assessed a civil penalty of $19,250. Respectfully submitted,

By: Attorney Dated: September 13, 2013

### CERTIFICATE OF SERVICE I hereby certify that onthis date I have placed in the United States mail, postage prepaid, the MOTION FORDECISION, addressed as follows:

And a copy to: Federal Aviation Administration 800 Independence Avenue, SW Washington, DC 20591 Attn: Hearing Docket Clerk, AGC-430 Wilbur Wright Building-Suite 2W1000 The Honorable Richard C. Goodwin Administrative Law Judge Office ofHearings, M-20 U.S. Dept ofTransportation 1200 New Jersey Avenue, SE (E11-310) Washington, D.C. 20590 I further certify that onthis date I have placed in the United States mail, postage prepaid, certified mail -returnreceipt requested, a true copy ofthe above, addressed as follows: David Kirstein, Esq. Kirstein & 

### Young PLLC 1750 K Street, NW, Suite 200 Washington, D.C. 20006 Mr. Michael Quinn, President Asia Pacific Airlines 156 Diablo Road, Suite 203 Danville, CA 94526

Dated: September 13, 2013

Legal Technician Office ofthe Regional Counsel Federal Aviation Administration Western-Pacific Region Hawthorne, California 13Western-Pacific Region AWP-7 U.S. Department ·of Tronspor1ation Office of The Regional Counsel P.O. Box 92007 Los Angeles, CA 90009-2007 Federal Aviation Administration f-.·1arch L 2012 Case No. 2011WP350018 CERTIFIED MAIL- RETURN RECEIPT REQUESTED Aero 

### Mit:roi1esia, Im:. d/b/a Asia Pacific Airlines, Inc. Att11: 

### Michael Quinn, President 153 Diablo Road Suite 203 Danville, CA 94526 

### aHJ**A~:ro Mi~.:wnesia,**  Inc., d/b/a Asia Pacific Airlines, Inc., c/o Joanne 

### W. Young, Agent for Service 1750 K Street NW

### .w~hington, 

## D.C 20006 

# REcEIVED

AMENDED NOTICE 

### OF PROPOSED·CIVIL PENALTY 

## SEP 1 9 2013 Based on a report ofinvestigation, it appears that: 

# HEARING DOCKET 1. Aero Micronesia, Inc. d/b/a Asia Pacific Airlines ("Aero Micronesia") is no\:v, and at all times mentioned herein was, the holder ofAir Carrier Certificate No. ISPA400I, authorized to conduct flight operations, cargo only, under part 121 ofthe Federal Aviation Regulations 

### ("FARs"). 2. On or about March 25, 2011, Aero Micronesia operated 

### a Boeing 727-200 aircraft, Civil Registration No. N319NE, on a cargo carrying flight from Majuro Atoll to Honolulu Intemational Airport. 3. Incident to the above operation, N319NE cmTied an item ofcargo, which included an aircraft engine in zone 8. 4. The "Load I>.lanner**~Weight** Mm1ifest" for the above flight showed that the weight of the cargo indicated in no. 3 above was distributed across zones 7, 8, and 9. 5. The weight ofthe cargo indicated in no. 3 above was not distributed across zones 7, 8, and 9, but \Vas instead limited to zone 8. 6. As a result ofallegations 

### 3 - 5 above, the "Load Platmer- Weight Manifest" was not accurate. 7. The maximum allowable \Veight in zone 8 ofN319NE was 10,000 pounds. 8. N319NE cqntained a placard indicating that the maximum allowable weight for zone 8 was 10,000 pounds.9. The \:Veight ofthe cargo indicated in no. 3 above exceeded 10,000 pounds. 10. Alternatively, ifit is found that the cargo indicated in no. 3 above did notexceed 10,000 pounds, thenthe "Load Planner- Weight Manifest" sho\ving the total weight ofsaid cargo did exceed 10,000 pounds is rtot accurate. 

### 2

By reason ofthe facts and circumstances described above, Aero Micronesia failed to exercise the degree ofcare,judgment, and responsibility required ofthe holder ofan air carrier certificate. By reason ofthe foregoing facts and circumstances, it appears that Aero Micronesia violated the following Federal Aviation Regulation(s):
a. 14 C.F.R. 

### § 91.9(a), \Vhich states "...no person may operate a civil aircraft without complying with the operating limitations specified in the approved Airplane or Rotocraft Flight Manual, marking, and placards...'' b. 14 C.F.R. 

### § 121.665, which states"[ e]ach certificate holder is responsible for the preparation and accuracy ofa load manifest fonn before each takeoff..."

. ' Based on information on Aero Micronesia, Inc. and its affiliates, it does not appear that Aero Micronesia, Inc. is a small business concern as defined in 13 C.F.R. Section 121. Under Section 4630l(a)(5)(A) ofTitle 49 ofthe United States Code, AeroMicronesia, Inc. is subject to a civil penalty for each ofthe violations noted. As adjusted under 14 CFRpart 13, subpart H, the ma..ximum penalty for each violation is $27,500.00. We propose to assess a civil penalty for the violations noted above in the total amount of$19,250.00. Enclosed is information on Aero Micronesia, Inc.'s options in respondingto this Notice. The options include pa1iicipating in an informal conference with an FAA attorney, and submission of information to the FAA for consideration. Aero Micronesia, Inc. must submit, in VvTiting, its choice ofthe alternatives explained on the enclosed information fom1,on or before 30 days after it receives this Notice. IfAero Micronesia, Inc.·rails to submit ·its choice within that time, it 

### will have no further right to participate in the infonnal procedures. In the alternative, Aero Micronesia, Inc. ·may pay its civil penalty with a credit card over the Internet. To pay electronically, visit the web site at http://w·ww.pav.gov. Under the "Search Public Fonns" option located on the left side ofthe page, type 

### F\VP-FINEl and click "Go". Click on "FAA Civil Penalty Payments- Westem Pacific Region", complete the requested information and click ''Submit" to pay by credit card.

### 3
Please direct all communication in tllis matter to Don Bobertz; Attorney, AWP-7.7, FAA, Office ofRegional Counsel, P.O. Box 92007, Los Angeles, CA 90009-2007. Telephone number (310) 725-3454. 

### NAOMI TSUDA Regional Counsel
By: Attorney Enclosures

## ~)(.', 

# r'3

# RECEIVED SEI' 1 92013 

# HEARING DOCKET U.S. Department ofTransportation Western-Pacific Region P.O. Box 92007 Office of the Regional Counsel Los Angeles, CA 90009-2007 Federal Aviation Administration April24,2012 Telephone: (31 0) 725-3454 Fax: (310) 725-6816 Case No. 2011WP350018 CERTIFIED MAIL- RETURN RECEIPT REQUESTED Aero Micronesia, Inc. d/b/a Asia Pacific Airlines, Inc. Attn: Michael Qubm, President 153 Diablo Road Suite 203 Danville, CA 94526 and Aero Micronesia, Inc., d/b/a Asia Pacific Airlines, Inc., c/o Jomme W. Young, Agent for Service 1750 K StreetNW Washington, DC 20006
FINAL NOTICE OF PROPOSED CIVIL PENALTY On March 1, 2012, Aero Micronesia, Inc. was advised through an AmendedNotice ofProposed Civil Penalty that the Federal Aviation Administration (FAA) proposedto assess a civil penalty in the amount of$19,250.00. We have considered Aero Micronesia's response to the Amended Notice. A report ofinvestigation indicates that: 1. Aero Micronesia, Inc. d/b/a Asia Pacific Airlines ("Aero Micronesia") is now, and at all times mentioned herein was, the holder ofAir Carrier Certificate No. I5PA400I, authorized to conduct flight operations, cargo only, under pati 121 oftheFederal Aviation Regulations ("FARs"). 2. On or about March 25, 2011, Aero Micronesia operated a Boeing 727-200 aircraft, Civil Registration No. N319NE, on a cargo carrying flight from Majuro Atoll to Honolulu International Airport. 3. Incidentto the above operation, N319NE carried an item ofcargo, which included an aircraft engine in zone 8. · 4. The "Load Platmer- Weight Manifest" for the above flight showed that the weight of the· cargo indicated in no. 3 above was distributed across zones 7, 8, and 9. 5. The weight ofthe cargo indicated in no. 3 above was not distributed across zones 7, 8, and 9, but was insteadlbnited to zone 8.6. As a result ofallegations 3 - 5 above, the "LoadPlanner- Weight Manifest" was not accurate. 7. The maximum allowable weight in zone 8 ofN319NE was 10,000 pounds. 2

8. N319NE contained a placard indicating that the maximum allowable weight for zone 8 was 10,000 pounds. 9. The weight ofthe cargo indicated in no. 3 above exceeded 10,000 pounds. 10. Alternatively, ifit is found thatthe cargo indicated in no. 3 above did not exceed 10,000 pounds, then the "LoadPlatmer- Weight Manifest" showing the total weight ofsaid cargo did exceed 10,000 pounds is not accurate. By reason ofthe facts and circumstances described above, Aero Micronesia failed to exercise the degree ofcare,judgment, and responsibility required ofthe holder ofan air carrier certificate. By reason ofthe foregoing facts and circumstances, it appears thatAero Micronesiaviolated the following Federal Aviation Regulation(s): a. 14 C.P.R.§ 91.9(a}, which states " ...no person may operate a civil aircraft without complying with the operating limitations specified inthe approved Airplane or Rotocraft FlightManual, marking, and placards..." b. 14 C.P.R. § 121.665, which states "[e]ach certificate holder is responsible for the preparation and accuracy ofa loadmanifest form before eachtakeoff. .." Under Title 49 U.S.C., Section 4630l(a)(5)(A), Aero Micronesia is subject to a civil penalty not to exceed $11,000.00 for each ofthe violations noted. By reason ofthe foregoing facts and circumstances, we propose to assess a civil penalty inthe amount of$19,250.00. Unless a request, in writing, for a hearing inthis matter is mailed orpersonally delivered, on or before 15 days after you receive this Final Notice, we will issue an Order Assessing Civil Penalty and Aero Micronesia will have no further right to a hearing. Ifa written request for a hearing is not received, Aero Micronesia inust pay the proposed civil penalty. Your request for a hearing must be sentto: (1) ForU.S. mail or certified mail -FederalAviation Administration, 800 Independence Avenue, SW, Washington, DC 20591, Attention: Hearing Docket Clerk, AGC-430, Wilbur Wright Building-Room 2Wl000; (2) for commercial expedited courier (overnight mail)- Federal Aviation Administration, 600 Independence Avenue, SW., Wilbur WrightBuilding, Suite 2W1000, Washington, DC 20591, Attention: Hearing Docket Clerk, AGC-430; (3) a copy 

### MUST be sent to the undersigned FAA attorney in3 the Office ofthe Regional Counsel, P.O. Box 92007, Los Angeles, CA 90009-2007, (310) 725- 3454. Your request mustbe dated and signed, in accordance with Section 13.16 ofthe Federal Aviation Regulations, sentto you withtheAmendedNotice ofProposed Civil Penalty ( 14 C.F.R. 13.16). You may pay the proposed penalty by submitting a certified check or money order payable to the "Federal Aviation Administration," to FAA!MMAC, AMZ-310-WP/NM, PO Box 25770 Oklahoma City, OK 73125. In the alternative, youmay pay your civilpenalty with a credit card overthe Internet. To pay electronically, visit the web site athttp://www.pay.gov. Under the "SearchPublic Forms" option located on the left side ofthe page, type FWP-FINEl and press "Go." On the page entitled "SearchPublic Forms," scroll to the bottom ofthe page and enter "NextPage." Click on "FAA Civil Penalty Payments- Western-Pacific Region," follow the prompts to complete the requested information and click ''submit" to pay by credit card. Please advise me ofthe date of any payment made over the internet.
Naomi Tsuda Regional Counsel

# :~.ilie

# w&fi8gv::--n7t(------

Don Bobertz \ Attorney



## 8 x:. 

## J.' 

# P· 32 

### 3 4 

### 5 6 

### 7 U riTED STATES OF AMERICA**DEPA~TMENT** OF TRANSPORTATION OFFICE OF HEARINGS WASHINGTON, DC 

# RECEIVED SEP 19 2Dl3 

# HEARING DOCKET
In the Matter ofAERO MICRPNESIA, FAA Docket No.: unassigned FDMS No.: FAA-2012-0468**R<~pondcnt.** FAA Region: Western-Pacific Judge: Richard C. Goodwin 

### 8 DECL**~**

### TION OF CATHERINE FLORES 9 I, Catherine Flores,**beret~** declare and state: 

### 10 L 

### I am over 

### 18 year ofage and the followl.ng 

### iswithin my O\Vll personal 

### 11 knowledge. Ifcalled as a witnes , 

### I could and would competently testify thereto. 12 2. . I have been empl yed by United Airlines since r'ebruary 24, 1997. My current 13 position is Warehouse

### Supervise~. In that capacity, my duties include overseeing the daily 14 operations ofthe Guam Stores V arehouse. 15 

### 3. Exhibit A is a ph< tograph taken in May, 2011, ofa CFM56-7l326 engine as 

### 16 typically prepared for shipment. The components ofthe shipment consist ofa CFM56-7B26 17 engine, an AM2811 engine stan , 1pallet, 10 straps, and 3 spreader boards. I witnessed the 18 weighing ofthese components i May, 2011, and the total weight was 9,812 lbs. 19 

### 4. Exhibit B is a ph tograph providedtome by Don Bobertz ofthe FederalAviation 20 Administration. Mr. Bobertz tol me that this was also a photo ofa CFM56-7B26 engine as 21 loaded on an airplane for shipm ton March 25, 2011. 

### Mr. Bobertz stated that he was trying to 22 ascertain the correct weight oft engine shipment. He provided me copies ofContinental 23 Airline's and Asia Pacific Airlin s shipping records for this engine, included as Exhibits C- F. 24 Exhibit C shows a total weight.[! r the engine (in 3 pieces) of 10,400 lbs. It appears from Exhibit 25 D that the 3 pieces were split int two pallets for shipping, pallet PAG72083CO and 26 PAG72217CO. Exhibit E show 316lbswere placed on pallet PAG72217CO with some other 2 7 items, for a total weight of517 1 s. With 316 lbs removed from the original 1 0,400 lbs, the 28 remaining engine weight would ave been 10,084 lbs. Exhibit F shows this remaining 10,084

FDMS No. F.t\A-2012-0469: DECLA TION OF CATHERINE FLORESlbs ofthe engine placed on pallet PAG72083CO, with some other items, for a total weight of 2 10,542 lbs. .:., ·.) 

### 5. Mr. Bobertz inqui ed a<> to the discrepancy between the weight of9,812 lbs. that l

4 provided for the typical CFM56- B26 shipment (Exhibit A), and the weight of 10,542lbs. 

### 5 indicated in the shipping docume ts as discussed above. My original thought was that the 

### 6 shipping weight of 10,542 pound indicated in the shipping documents \.vas wrong. 

### I believed 

### 7 that the weight ofthc engine asp cpared for shipping should be closer to 9,812 pounds like it 

### 8 was \Vhen 

### I weighed the similar gine in May, 2011. However, when 

### Mr. Bobcrtz provided me 9 with the photograph ofthe engin as shipped (Exhibit B), I noticed that the engine shown in 10 Exhibit B still had the casters (w eels) attached to the shipping stand, whereas the engine shown 

### 11 in Exhibit 

### A did not. 

### All four ca ters weigh a total of680 pounds. 

### Ifthe four casters had been .12 left on the typical shipment sho in Exhibit A, the shipment would have weighed



### 13 14 

### 15 16 17 18 19 20 21 22 23 

## 24 25 26 27 28 approximately 9,812 lbs plus 68 lbs, for atotal of 1 0,492lbs. I declare under penalty o perjurythat the foregoing is true to the best ofmy knowledge and that this declaration vv·as exe utcd at

### Barri~~da,**~~:** on September 12, 2013. 

# {**~** 

## ...,- '

## ~()\**L~""'",.,**

# .. CATHERINE FLORES**~-----~-**

2 FDMS No. FA/1.-20 12-0469: DECLAR TION OF CATHERINE FLORES

### Actual Scale Weight Engine Model: CFM56-7B26 Engine Stand: AM2811 1pallet 10 straps 3 spreader boards Total Weight: 9,812 lbs.



# - /. 

# I ... \

# ~-

....r •. 

## ··-------.......

# L_ ..c'J.
____·,WORLD 'fft,AY t·JEST LOS ANGELES



## ..

AC-17A**---~10)** NOT NEGOTIABLE /AIR WAYBILL_; (AIR CONSIGNMENT NOTE) 

## uuo 

# ub 

### :i0 

# uu f ;)

## .C{ni~~~~:!

# IJt

600 JEFFERSON HOUSTON, TEXAS 77002

Received In good order and condition at---:-:---- on-::-:--=--------- Place Datemme Signature of Consignee or his agent ALSO NOTIFY NAME AND ADDRESS (OPTIONAL ACCOUNTING INFORMATION)

NATURE AND QUANTTIY OF GOODS QNCL DIMENSIONS OR VOLUME)

OF ISSUING CARRIER OR ITS AGENT 

## 005 

# 0695 00753-25-11; 11: 19AM;



## Asia 

## Pacific Airlines

P.O. Box 24858 Barrigada, Guam 

### 96921 Tel: 1-671-647-0050/51 Fax: 1-671-647-1086 www.flyapa.com I ' 

## ( ;671 647 1086

Flight No: 

### Magellan 319 AircraftRegistration No: 

### N319NE Date: 

### March 25, 2011 Point ofl..:lding: 

### Guam Point ofUnlading: 

### Honolulu EID: 

### GUM-HNL ISI PAG72IZIB3CQ.

00505'350075P 

### PAG72217CO

00505'350075P· · 

### TOtAL·- ... .. 1 

### ACFT 2 

### ACFT 3 

### ENGIN ENGIN 10084L CONTINENTA GUMLAX P 315L 

### CONTINENTA GUMLAX P 

### 1041Z10L # 2/ 2



### 16:30

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3/25/201111:01 AM