### SERVED: August 27, 2015 U.S. DEPARTMENT OF TRANSPORTATION· OFFICE OF HEARINGS

WASHINGTON, DC

IN THE MATTER OF AERO MICRONESIA FDMS NO. FAA-2012- 0468 (Civil Penalty Action)

INITIAL DECISION·OF ADMINiSTRATIVE LAWJUDGE I. Introductory Comment On or about March 25, 2011. Aero Micronesia (hereinafter "Aero") operated a Boeing 727-200 aircraft, Civil Registration No. N319NE, on a cargo carrying flight from Majuro Atoll to Honolulu International Airport (hereinafter "HNL"). Incident to the above operation, N319NE carried an item ofcargo, which included an aircraft engine in zone 8. The "Load Planner- Weight Manifest" for the above flight showed thatthe weight ofthe cargo indicated was distributed across zones 7, 8, and 9, but in fact the load was limited to zone 8. II. Procedural History The Federal Aviation Administration,(herein,after "FAA") filed its Complaint onMay 11,

. i. •.Or
..1 ,;.)iVt, 2012. Aero filed an Answer on June 15,2012. III. Hearing A hearing was held on December 1, 2014, inHonolulu, HI.
1The matter is nowready for decision. 

### N. Jurisdiction Aero dba "AsiaPacific Airlines" was at all times mentioned herein was, the holder ofAir Carrier Certificate No. 15PA400I,**auth~rized ~~.** **c<;>~qpct** flight operations, cargo only, underpart

• ,;1 121 ofthe Federal Aviation Regulations (hereinafter**"FARs'~** and was subjectto those regulations. V. Burden ofProof The FAAis the petitioningparty with the initial burden ofproof. 

### (14 C.

### FR.§ 13.224) VI. Allegations 1. FAA's recitation offacts On or about March 25, 2011, Aero operated a Boeing 727-200 aircraft, Civil Registration No. N319NE, on a cargo carrying flight from Majuro Atoll to HNL. Incidentto the above operation, N319NE carried an item ofcargo, which included an aircraft engine in zone 8. The "Load Planner- WeightManifest" for the abbve

# mglitshowed the weight ofthe cargo was distributed across zones 7, 8, and 9. The weight ofthe cargo was not distributed across zones 7, 8, and 9, butwas instead limited to zone 8. As a result, the Load Planner- WeightManifest" was not accurate. The maxim 

### pro allowable weight in zone 8 ofN319NE was 10,000pounds. N319NE contained a placard indicating thatthe maximum allowable weight for zone 8 was 10, 

# ·ooo pounds. The weight ofthe cargo exceeded 10,000 pounds. Alternatively, the Load PlannerWeightManifest" showingthe total weight ofsaid cargo did exceeded 10.000 pounds was not accurate. 2. Aero's recitation offacts Aero denied the allegations ofthe Complaint. 'J'. 2VII. Issues Did Aero violate 14 C.F.R. § 91.9(a), and/or 14 C.F.R. § 121.665. VIII. Summary ofTestimony and Evidence All admitted testimonial and documentary evidence was reviewed and considered. Only briefhighlights are summarized herein. 1. FAA's Case Clarence Kanae Clarence Kanae 1 (hereinafter "Kanae")

### t~stified at the time ofthe alleged incident he had FAA oversight ofAero as the

## PrincipafOperations'I~spector (hereinafter "POI"). On March 25, 2011, he did an unannounced ramp inspection ofAero operations in HNL. Kanae checked onthe currency ofpilot certificates, medical certificates, looked at the flight logs and weight manifest, and safety equipment to make sure that the safety equipment inspections were current. During the inspection Kanae noticed the ground crew was attempting to offload a heavy piece ofcargo,
an aircraft engine. Kanae observed thatthe engine in its entirety, to include the engine stand was strapped to
a LD7 pallet, which, in laymen's terms, was called a cookie sheet pallet. The engine was only strapped and configured to be loaded on that one particular cookie sheet pallet. And thatpallet could only fit one actual position inthe aircraft.**Ka~me** observed, in comparison to the load

r ··•. •/\,l.
. manifest, it indicated that all the weight was transferred across three zones. But in fact, the way it was rigged Kanae observed it was only secured for shipment on one zone. Kanae testified the computed weight manifest was at variance with his observations ofhowthe cargo was distributed within the aircraft. The cargo documentation showed the engine weighed 10,400 pounds.

1Tr. p. 9, I. 19 top. 58, I. 7. 3The FAA did not weigh the engine to verify the documented weight at HNL. According to the load manifest the engines was distributed over zones 7, 8, and 9. Kanae's observed that the cargo was not loaded overthose zones. !**~** \ One pallet showed an aircraft engine at

## td;o84 pounds. 

### Itthen showed.a secondpallet and saying a second aircraft engine, at 316 pounds, implying the 10,400 pounds was spread across, was ontwo differentpallets. Kanae agreed that normal procedure when shipping an engine was to remove fluids and oils. Kanae testified the engine was covered and he did notknow ifall the components had been removed from the engine, whether casters were on the pallet, whether all fluids had been removed from the engine. The weight onthe manifest was assumed to be correctbutwas not verified atthe point oforigin and/or HNL. Kanae testified the engine was weighed in Guam, not in HNL. Catherine R. Flores2 Catherine R. Flores (hereinafter "Flores") testified she was the warehouse supervisor for United Airlines. Flores testified the documentation showed that Aero shipped out a 737 aircraft engine, total ofthreepieces weighing 10,400 pounds from Guamto HNL, with a final destination ofLos Angeles. The documentation showed the shipment broken down into two pallets. Two ofthethree pieces were at 316 pounds; the remaining piece at 10,084 pounds. The total weight was 10,542 because the 10,084 pounds wasjustthe weight ofthe engine and the engine stand. The 7,458 pounds, was the total weight for the pallet and straps used to
secure the engine stand. They did not have the scale to weighthe engine, so they were not able to put a weight on the documentation. Flores believed the**engine:.we~ghed** 10,400 pounds because the casters were
2 Tr. p. 59, I. 12 top. 102, I. 18. 4still onthe pallet and they normally weight 680 pounds total. Flores was not aware ofthe maximum weight ofthe scale atthe cargo area on Guam where the engine inquestion was weighed. She did not know who weighed the engine. To weigh and engine you would need to remove it from the stand, a difficult operation. All the engines come with stands attached; She did not know ifthe engine atthe warehouse was capable ofweighing objects over 10,000 pounds. She did not know ifthe engine was actually weighed since that tookplace onthe opposite side ofthe air field. 

### 2. Aero's Case Michael Quinn3 Michael Quinn (hereinafter "Quinn") testified he founded Aero, was heavily involved in writing the manuals for Aero, including the load planning and weight manifest. He does all the weight and balance calculations for the aircraft. With respect to this incident, the engine was broughtto Aero onthe west side ofthe field along with the documents. Quinntestified the engine was delivered a bit late. The crewwas already inthe process ofsetting up the flight. Whenthe crew sawthe documents, the airway bill andthe documents onthe engine, they believed the engine was too heavy to carry. Aero was well aware ofthe limitations oftheir aircraft; well aware ofthe 10,000 pound limit for the pallet " position number 8 in whichthe engine was loaded. The crew wentbackto Continental and said, "You've got to take some stuffoffthis engine and get the weight down, which they did." That's the 316 pounds thatwound up on a separate pallet inthe back ofthe airplane. To the knowledge ofthe people that worked for Quinn in Guam, Continental4 had never weighed one ofthese engines because their scales don't go that high in Guam at that time. Aero

3 Tr. p. 104, I. 14 top. 130, I. 19. 4 Which had the facility with the scale on Guam. 

### 5was confident that afterthey took the weight offthe engine, even though the casters were still on, that we were under 10,000 pounds. The maximum weights across those three positions (7, 8 and 

### 9) were something like a little bit more than 28,000.pounds that you would have been able to put inthose three positions. Ifthe engine had actually weighed more than 10,000 pounds, you would have had to put it on a pallet and braced it to where some ofthe weight was actually in the other palletposition. They were confident thatthe engine weighed less than 10,000 pounds. The paperwork didn't reflectthat necessarily; the paperwork was filled out incorrectly. Theytook offnothaving corrected paperwork. Quinntestified that the engine was not weighed in Guam because at the time, Guam didn't have a scale to weigh something this heavy, or as heavy as they claimedthe engine weighted. Quinn said they had an aircraftthat'took

# oifh.t 100 tons, 200,000 pounds. Itcarried 55,000 pounds ofcargo; 400 pounds was nothing in the scheme ofthings. Itwas a very, very minor amount ofweight in context ofwhat Aero did. Continental did not keep a record ofwhat was onthe engine when it was weighed. The engine was never weighed in Guam; it was never weighed in Honolulu. And as Ms. Flores testified, there was no way to weigh an individual engine.5 Aero admitted the paperwork was incorrect. Credibility determinations All witnesses were found to be credible. IX. Law A. 14 C.F.R. 

### § 91.9 (a) states:
5 To do so would require taking the engine offthe stand and laying it down which was probably illegal. 

### 6Except as provided in paragraph (d) ofthis section, no person may operate a civil aircraft without complying withthe operating limitations specified inthe approved Airplane or Rotorcraft Flight Manual, markings, and placards, oras otherwiseprescribed bythe certificating authority ofthe country ofregistry
..

B. 

### 14 C.F.R. § 

### 121.665 states: Each certificate holder is responsible for the preparation and accuracy ofa load manifest form before each takeoff. The form must be prepared and signed for each flight by employees ofthe certificate holder who have the duty ofsupervising the loading of aircraft and preparing the load manifest forms orby other qualified persons authorized by the certificate holder. ::. ·i' :. : . · X. Findings ofFact We find thatthe evidentiary facts, by a preponderance ofthe evidence standard, do not support a finding that Aero violated 

### 14 C.F.R. § 

### 91.9 (a). There wis no conclusive evidence thatthe engine was weighed at eitherthe embarkation ofthe engine and/or destination with a scale capable ofaccurately weighing the engine. The FAA failed it its burden ofproof. We find thatthe evidentiary facts, by a preponderance ofthe evidence standard, do support a finding that Aero violated 

### 14 C.F.R. § 

### 121.665
. Aero admitted that in its haste to depart Guan, itdid not correct paperwork it believed to be inaccurate. XI. Penalty and Mitigation Considerations
•.J .•. Aero admitted one allegation set forth inthe complaint. We found the violation alleged. The FAA argued thatthe penalty requested of$19, 250 was appropriate. Aero was cooperative and responsive to FAA concerns. The FAA had a cooperative working relationship with Aero. The FAA failed to prove by testimony and/or evidence ofhowit arrived atthe figure of $19,250. We are leftto speculate howthe figure was determined. 7

.l. 'While a penalty calculated in accordance withthe FAA's policy guidance should stand,

,, absent a showing ofthe Aero's inability_to pay; the. evidence and testimony did not supportthe
·, ' penalty requested. While the FAA was entitled to substantial deference in establishing an appropriate civil penalty, we cannot ignore our role to evaluate the testimony and evidence. The ultimate weight discrepancy was well withinthe performance parameters ofthe aircraft. Taking the totality ofthe testimony and evidence into consideration we find a penalty in the amount of$5,000 is appropriate under the circumstances. WHEREFORE, evidence and testimony having been heard and considered itbe and is hereby ORDERED as follows:
a. The FAA failed to prove Aero violated 14 C.F.R. § 91.9 

### (a) and that violationbe and is hereby DISMISSED; anq ,.. b. The FAAproved and Aero adtiiitted 'the violation of14 C. F.R. § 121.665; and 

### c. Aero be and is hereby assessed a penalty in the amount of$5,000 for violation 14 C.F.R. §121.665.

Richard C. Goodwin U.S. Administrative LawJudge
Attachment

- Service List

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### ' ·' .}·."',>**"/~'~·l~,**



### 8CORRECTED ORIGINAL & ONE COPY 

### Federal Aviation Administration 800 Independence Avenue, S.W. Washington, DC 20591 Attention: Hearing Docket Clerk, AGC-430 ',**·~**


### Wilbur Wright Building-Suite 2W1000 1 ONE COPY 

### DavidM. Kirstein and Lyndsey M. Grunewald Kirstein & 

### Young, PLLC, Respondent's Counsel 

### 1750 K Street, N.W., Suite 200 Washington, DC 20006 TEL: 202-331-3348 FAX: 202-331-3933 Michael 

### R. Quinn, President. Aero Micronesia, Inc. dba Asia Pacific Airlines, Inc., Respondent 

### 156 Diablo Road, Suite 203 Danville, CA 94526 TEL: 925-362-4430 FAX: 925-362-4432 (' Don Bobertz, Complainant's Counsel 

### Office ofthe Regional Counsel, AWP-7 POBox 92007 Los Angeles, CA 90009-2007 TEL: 310-725-3454 FAX: 310-725-6816 The Honorable Richard C. Goodwin,Administrative LawJudge 

### Office ofHearings, M-20 U.S. Department ofTransportation 1200 New Jersey Avenue, S.E. (E11-310) Washington, DC 20590 TEL: 202-366-5121 StaffAssistant FAX: 202-366-7536 FDMS No. FAA-2012-0468 (Civil Penalty Action)

1 Service was by U.S. Mail. For service in person orby etcpedited courier, use the following address: Federal Aviation Administration, 600 Independence Avenue, S;W., Wilbur Wright Building-Suite2Wl000, Washington, DC 20591; Attention: Hearing Docket Clerk, AGC-430.
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