Order 2010-1-8 

UNITED STATES OF AMERICA 

DEPARTMENT OF TRANSPORTATION 

OFFICE OF THE SECRETARY 

WASHINGTON, D.C.

Issued by the Department of Transportation 

On the Fourteenth Day of January 2010 

 TAM Linhas Aereas, S.A. Docket OST-2010-0005

 

 Violations of 49 U.S.C. § 41705 Served: January 15, 2010 

 and 14 CFR Part 382

CONSENT ORDER 

This order concerns violations by TAM Linhas Aereas, S.A., (TAM) of the requirements 

of 14 CFR Part 382 (Part 382), with respect to filing annual reports detailing disabilityrelated complaints that the foreign air carrier received from passengers in calendar years 

2004, 2007, and 2008. Part 382 implements the Air Carrier Access Act (ACAA), 49 

U.S.C. § 41705, and violations of that part also violate the ACAA. This order directs 

TAM to cease and desist from future violations of this statute and regulatory provision, 

and assesses the carrier a compromise civil penalty of $5,000. 

Applicable Law 

Section 382.70 of Part 382 requires, among other things, that U.S. and foreign carriers 

that conduct, passenger service to, from, or within the United States with one or more 

aircraft having a designed seating capacity of more than 60 passenger seats to record and 

categorize complaints that they receive alleging inadequate accessibility or 

discrimination on the basis of a disability.1

 The regulation also requires that these 

carriers submit an annual report to the Department, due each year on the last Monday in 

January, summarizing the disability-related complaints that they received the prior 

calendar year. Foreign air carriers are required to submit information only with respect 

to disability-related complaints associated with any flight segment originating or 

terminating in the United States. Failure to comply with the Department’s disability 

reporting requirement, in addition to violating 14 CFR 382.70, constitutes a violation of 

the ACAA. 

 

1

 It should be noted that on May 13, 2009, the Department issued a final rule amending its ACAA rule. In 

addition to a number of other changes, the final rule reorganized and updated the ACAA rules. Under the 

amended rule, 14 CFR 382.157(d) contains the requirement that carriers must submit annual disability 

reports to the Department. 
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The Department uses carriers’ disability reports to comply with a congressional mandate 

that the Secretary of Transportation “regularly review all complaints received by air 

carriers alleging discrimination on the basis of disability . . . and report annually to 

Congress on the results of such review,” and to ensure that consumers can compare the 

overall disability complaints filed against particular carriers. To this end, the 

Department’s Office of Aviation Enforcement and Proceedings (Enforcement Office) has 

made efforts to ensure compliance with section 382.70 and the ACAA, including 

providing carriers and carrier associations information about the disability reporting 

requirements and posting a copy of the disability reporting rule on its Aviation Consumer 

Protection Division’s website. 

Background 

TAM is a Brazil-based foreign carrier operating service to and from the U.S. It currently 

operates between six and eight daily roundtrip flights between Brazil and the U.S. using 

at least one aircraft having a design seating capacity of more than 60 passenger seats. 

Therefore, TAM’s operations to and from the U.S. clearly fall within the scope of the 

reporting requirements set forth in section 382.70. 

TAM has failed to submit its disability report for 2004, 2007, and 2008 on time. 

Specifically, the report due for 2004 was filed on February 2, 2005, two days late; the 

report for 2007 was filed on February 15, 2008, eighteen days late; and the report for 

2008 was filed on February 18, 2009, twenty three days late. Therefore, TAM violated 

section 382.70 and the ACAA when it failed to file its reports in a timely manner. 

Mitigation 

In mitigation TAM states that it had established procedures for filing of its annual reports 

but that for reasons resulting from the growth of the airline’s international flight 

operations and the change in personnel assigned the task, the filing of the reports was not 

consistently achieved on a timely basis. TAM asserts that timely filings in 2005 and 

2006 of its reports for the years 2004 and 2005 were made demonstrating that TAM was 

capable of observing the regulation and the requirement to submit annual reports. 

However, TAM states that during the period that reporting was required by the 

regulation, TAM reassigned individuals who had the task to prepare the year-end reports 

and these reassignments, coupled with actions taken by TAM to streamline departmental 

duties and responsibilities to accommodate the growth of the airline, resulted in 

inconsistent results. 

Further TAM states that it has taken additional remedial steps to assure the timelier filing 

of the Part 382 reports, which include: (1) rewriting the job descriptions of the relevant 

personnel to specifically include the filing of TAM’s disability-related complaint reports 

to help ensure that all future reports are filed on a timely basis; (2) assigning “back-up” 

personnel to oversee the individuals who are directly responsible for filing the reports as 
3

a further precaution to prevent the late filing of any future reports; (3) placing on the 

annual agenda of TAM’s Traffic Department, the division within TAM that is now 

responsible for filing the reports, the task of filing future Part 382 reports by TAM as an 

additional safeguard; and (4) revising its internal guidance document known as its 

“Operations Instructions” to provide for the same. TAM asserts that these additional 

remedial actions will result in timely filings in the future. 

Decision 

The Enforcement Office has carefully considered the information provided by TAM and 

continues to believe that enforcement action is warranted. In order to avoid litigation, the 

Enforcement Office and TAM have reached a settlement of this matter. Without 

admitting or denying the violations described above, TAM agrees to the issuance of this 

order to cease and desist from future violations of 14 CFR Part 382 and 49 U.S.C. 

§ 41705. TAM further agrees to the assessment of $5,000 in compromise of potential 

civil penalties otherwise assessable against it. Of this penalty amount, $2,500 shall be 

due and payable within 30 days after the date of issuance of this order. The remaining 

$2,500 of the assessed penalty shall become due and payable if TAM violates 14 CFR 

382.70 (now section 382.157(d)) within one year following the date of issuance of this 

order, or fails to comply with the payment provisions of this order. This compromise 

assessment is appropriate in view of the nature and extent of the violations in question, 

serves the public interest, and establishes a deterrent to future similar unlawful practices 

by TAM and other domestic and foreign air carriers. 

This order is issued under the authority contained in 49 CFR 1.57a and 14 CFR 385.15. 

ACCORDINGLY, 

1. Based on the above discussion, we approve this settlement and the provisions of 

this order as being in the public interest; 

2. We find that TAM Linhas Aereas, S.A., violated 14 CFR 382.70 by failing to 

submit its disability report to the Department of Transportation for 2004, 2007, 

and 2008 on time; 

3. We find that by engaging in the conduct and violations described in ordering 

paragraph 2 above, TAM Linhas Aereas, S.A. has also violated 49 U.S.C. 

§ 41705; 

4. We order TAM Linhas Aereas, S.A., and all other entities owned or controlled by 

or under common ownership with TAM Linhas Aereas, S.A., its successors and 

assignees to cease and desist from any further violations of 14 CFR 382.70 (now 

section 382.157(d)) and 49 U.S.C. § 41705; 
4

5. We assess TAM Linhas Aereas, S.A., a compromise civil penalty of $5,000 in 

lieu of civil penalties that might otherwise be assessed for the violations described 

in ordering paragraphs 2 and 3 above. Of this total penalty amount, $2,500 shall 

be due and payable within 30 days after the date of issuance of this order. The 

remaining $2,500 will become due and payable if TAM Linhas Aereas, S.A., 

violates 14 CFR 382.70 (now section 382.157(d)) within one year following the 

date of issuance of this order, or fails to comply with the payment provisions of 

this order, in which case the entire unpaid portion of the civil penalty shall 

become due and payable immediately, and TAM Linhas Aereas, S.A., shall be 

subject to possible additional enforcement action for failure to comply with this 

order; and 

6. Payment shall be made by wire transfer through the Federal Reserve 

Communications System, commonly known as “Fed Wire,” to the account of the 

U. S. Treasury in accordance with the instructions contained in the attachment to 

this order. Failure to pay any portion of the penalty as ordered shall subject TAM 

Linhas Aereas, S.A., to the assessment of interest, penalty, and collection charges 

under the Debt Collection Act. 

This order will become a final order of the Department 10 days after its service date 

unless a timely petition for review is filed or the Department takes review on its 

motion. 

BY: 

 ROSALIND A. KNAPP 

Deputy General Counsel 

 (SEAL) 

An electronic version of this document is available 

on the World Wide Web at 

http://regulations.gov