Order 2014-5-5

 

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 May, 2014

Air Europa Lineas Aereas, S.A.U. Docket OST 2014-0001

Served May 14, 2014

Violations of 14 CFR Part 259

and 49 U.S.C. § 41712 

CONSENT ORDER

This consent order concerns violations by Air Europa Lineas Aereas, S.A.U. (Air Europa) 

of 14 CFR Part 259 and 49 U.S.C. § 41712. Specifically, the carrier failed to adhere to 

the assurance in its contingency plan for lengthy tarmac delays that it would not permit 

an international flight to remain on the tarmac for more than four hours without providing 

passengers an opportunity to deplane. This order directs Air Europa to cease and desist 

from future similar violations of 14 CFR Part 259 and 49 U.S.C. § 41712 and assesses the 

carrier $140,000 in civil penalties. 

Applicable Law

Pursuant to section 259.4 of the Department’s rules (14 CFR 259.4), foreign air carriers 

that operate scheduled passenger service or public charter service to and from the U.S. 

using any aircraft with a design capacity of 30 or more passenger seats are required to 

adopt, implement, and adhere to contingency plans for lengthy tarmac delays at each

large, medium, small, and non-hub U.S. airport at which they operate scheduled or public 

charter air service.1 For the international flight at issue here, section 259.4(b)(2) requires 

covered carriers to provide an assurance that they will not permit an aircraft to remain on 

 1 According to 14 CFR 259.2, Part 259 does not apply to foreign carrier charters that operate to and 

from the United States if no new passengers are picked up in the United States.
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the tarmac for more than four hours without providing passengers an opportunity to 

deplane, with the following exceptions: (1) where the pilot-in-command determines that 

an aircraft cannot leave its position on the tarmac to deplane passengers due to a safetyrelated or security-related reason (e.g. weather, a directive from an appropriate 

government agency, etc.); and (2) where Air Traffic Control advises the pilot-incommand that returning to the gate or another disembarkation point elsewhere in order to 

deplane passengers would significantly disrupt airport operations.

An air carrier’s noncompliance with assurances required by Part 259 and as contained in 

its contingency plan for lengthy tarmac delays is considered by the Office of Aviation 

Enforcement and Proceedings (Enforcement Office) to be an unfair and deceptive 

practice within the meaning of 49 U.S.C. § 41712. Because, in the Enforcement Office’s 

view, the purpose of section 259.4 is to protect individual passengers from being forced 

to remain on an aircraft for more than four hours in the case of international flights 

without being provided the opportunity to deplane or being informed when an 

opportunity to deplane exists, a separate violation is considered by the Enforcement 

Office to have occurred for each passenger who is forced to remain on board an aircraft 

for longer than the set amount of time without the opportunity to deplane. 

Facts

Air Europa is a foreign air carrier as defined by 49 U.S.C. § 40102(a)(21)2 that operates 

scheduled service into John F. Kennedy International Airport (JFK), a large hub airport, 

using at least one aircraft having a designed seating capacity of 30 or more passenger 

seats. An investigation by the Enforcement Office determined that during the night of 

November 7-8, 2012, 218 passengers were delayed on the tarmac for five hours on flight 

UX092.

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 2 49 U.S.C. § 40102(a)(21) defines a foreign air carrier as “a person, not a citizen of the United 

States, undertaking by any means, directly or indirectly, to provide foreign air transportation.”

3 Section 244.3 of the Department’s regulations (as clarified in answer #2 in the “Reporting Tarmac 

Delay Data” section of the tarmac delay Frequently Asked Questions on our website) requires covered 

carriers to file a “Tarmac Delay Report,” Bureau of Transportation Statistics (BTS) Form 244, with the 

Office of Airline Information for each month in which at least one tarmac delay of three hours or more 

occurred. A tarmac delay occurs when an aircraft is on the ground but there is no opportunity for its 

passengers to deplane, as defined in 14 CFR 244.1. On this basis, Air Europa, a covered carrier, was 

required to report the tarmac delay which began at 11:34 p.m., when passengers no longer had the 

opportunity to deplane, and ended five hours later when the aircraft took off at 4:34 a.m. Air Europa 

initially believed it was not required to file a Form 244 Tarmac Delay Report because the “gate departure 

time” for the flight did not reflect a lengthy tarmac delay. Gate departure time is defined in 14 CFR 244.1 

as “the instant when the pilot releases the aircraft parking brake after passengers have boarded and aircraft 

doors have closed.” Here, Air Europa released the aircraft parking brake at 3:31 a.m. and took off at 4:34 

a.m. At that time, passengers had boarded and the aircraft doors had closed but the aircraft did not take 

off. In this situation, although it may have appeared based on the gate departure and takeoff times that the 

tarmac delay was one hour and three minutes, the tarmac delay was five hours since the aircraft was on the 

ground for that period with no opportunity for passengers to deplane. Therefore, the Enforcement Office 

considers this to have been a reportable tarmac delay under Part 244.

 
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On November 7, 2012, Air Europa flight UX092 was scheduled to depart JFK at 10:05 

p.m. destined for Madrid-Barajas Airport. Numerous flights scheduled to depart JFK that 

evening were delayed extensively due to a severe snowstorm.

Air Europa closed the aircraft door and concluded boarding activities at 11:34 p.m. At 

11:54 p.m., the captain announced to passengers that the flight would be delayed due to 

the adverse weather conditions. According to Air Europa, despite the flight crew’s 

repeated requests, Air Traffic Control (ATC) continued to provide no estimated pushback 

time during the delay. The aircraft continued to hold at the gate, although Air Europa did 

not open the door or inform passengers that they could deplane while the aircraft 

remained at the gate. ATC cleared the flight to push back from the gate at 3:31 a.m. The 

aircraft was then deiced and took off at 4:34 a.m.

Based on these facts, the Enforcement Office found that Air Europa did not adhere to the 

terms of its contingency plan because it did not provide passengers an opportunity to 

deplane before the tarmac delay exceeded four hours. The Enforcement Office 

concluded this deficiency violated 14 CFR 259.4(b)(2) and 49 U.S.C. § 41712. 

Mitigation

Air Europa states that it is committed to compliance with its tarmac delay plan and the 

Department’s regulations. Air Europa believes, however, that it is in the public interest 

for carriers to be afforded reasonable latitude in applying plan provisions so as to treat 

passengers respectfully and most beneficially in the circumstances. In Air Europa’s 

view, that is what it did in this case. 

The Enforcement Office asserts that Air Europa did not provide its passengers an 

opportunity to deplane before the tarmac delay exceeded four hours. In response, Air 

Europa states that during the three hours and 37 minutes the aircraft was at the gate 

awaiting pushback clearance from ATC, Air Europa would have allowed any passenger 

wishing to deplane to do so immediately. Air Europa advises that no passenger 

expressed a desire to deplane and that the passengers, recognizing the delay was beyond 

Air Europa’s control, simply wanted Air Europa to get them to Madrid as quickly as 

possible. Air Europa states additionally that the aircraft door remained closed during the

gate hold so that the flight would not miss an opportunity for pushback when ATC 

clearance was received. Air Europa states that under the circumstances, the objective of 

getting the passengers to their destination as quickly as possible required the aircraft to be 

kept in pushback-ready status. 

In regard to the Enforcement Office’s position that for civil penalty purposes, the tarmac 

delay rule is considered to apply on a passenger-by-passenger basis, Air Europa disagrees 

and believes such penalties may be assessed only on a per-flight basis as specifically 

stated in 49 U.S.C. § 46301(a)(2). However, in the interest of settling this matter, and 

without conceding or waiving its legal position on the scope of the Department’s civil 

penalty authority, Air Europa has agreed to this consent order.
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Decision

The Enforcement Office has carefully considered the information provided by Air 

Europa, but continues to believe enforcement action is warranted. The Enforcement 

Office and Air Europa have reached a settlement of this matter in order to avoid 

litigation. Without admitting or denying the violations found in this order, Air Europa

consents to the issuance of this order to cease and desist from future similar violations of 

14 CFR Part 259 and 49 U.S.C. § 41712, and to the assessment of $140,000 in 

compromise of potential civil penalties otherwise due and payable pursuant to 49 U.S.C. 

§ 46301.

The compromise assessment is appropriate considering the nature and extent of the 

violations described herein and serves the public interest. It establishes a strong deterrent 

to future similar unlawful practices by Air Europa and other carriers.

This order is issued under the authority in 49 CFR Part 1.

ACCORDINGLY,

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

order as being in the public interest;

2. We find that Air Europa violated 14 CFR 259.4(b)(2) by not adhering to the 

assurance in its contingency plan that the carrier would not permit an international 

flight to remain on the tarmac for more than four hours without providing passengers 

an opportunity to deplane;

3. We find that by engaging in the conduct described in ordering paragraph 2 above, Air 

Europa engaged in an unfair and deceptive practice and unfair method of competition 

in violation of 49 U.S.C. § 41712; 

4. We order Air Europa and all other entities owned or controlled by, or under common 

ownership and control with Air Europa, its successors, affiliates, and assigns, to cease 

and desist from further similar violations of 14 CFR 259.4(b)(2) and 49 U.S.C. 

§ 41712;

5. We assess Air Europa $140,000 in civil penalties in compromise of civil penalties 

that might otherwise be assessed for the violations found in ordering paragraphs 2 and 

3 above. Of this total amount, $70,000 shall be due and payable in three installments. 

The first installment of $25,000 shall be due and payable within 30 days after the 

service date of this order. A second installment of $25,000 shall be due and payable 

within 60 days after the service date of this order. The final installment of $20,000 

shall be due within 90 days after the service date of this order. The remaining 

$70,000 shall be paid if Air Europa violates this order’s cease and desist provisions 

during the one-year period following the service date of this order; and
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6. We order Air Europa to pay the penalty through Pay.gov to the account of the U.S. 

Treasury in accordance with the instructions contained in the Attachment to this 

order. Failure to pay the penalty as ordered shall subject Air Europa to the 

assessment of interest, penalty, and collection charges under the Debt Collection Act 

and to further enforcement action for failing to comply with this order. 

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 own motion.

BY:

BLANE A.WORKIE

Acting Assistant General Counsel for

 Aviation Enforcement and Proceedings

An electronic version of this document is available at 

www.regulations.gov