Order 2012

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UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY WASHINGTON, D.C.

Issued by the Department of Transportation

O n the Eighth day of November , 201 2

AeroSvit Airlines Docket OST 201 2

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Served November 8

, 201 2

Violations of 14 CFR Part 3 82 and

49 U.S.C. § 41705

CONSENT ORDER

This order concerns violations by AeroSvit Airlines ( AeroSvit ) of the requirements of 14

CFR Part 382 (Part 382) with respect to the filing of annual reports detailing disab ility

related complaints that AeroSvit received from passengers in calendar years 2008 and 2011

. Part 382 implements the Air Carrier Access Act (ACAA), 49 U.S.C. § 41705, and

violations of Part 382 also violate the ACAA. This order directs AeroSvit to cea se and

desist from future similar violations of Part s 382 and the ACAA and assesses the carrier a compromise civil penalty of $ 20 ,000.

APPLICABLE LAW

Under 14 CFR 382.157, covered carriers (i.e.

, U.S. and foreign air carriers operating passenger service to, from, or within the United States with at least one aircraft having a design capacity of more than 60 passenger seats) must, among other things, submit an annual report to the U.S. Department of Transportation ( Department ) summarizing the disability

- re lated complaints that they received during the previous calendar year. 1 The

1 In addition, the rule requires a carrie r to record complaints that it receives alleging discrimination or inadequate accessibilit y on the basis of a disability. The complaints are to be categorized according to the passenger’s type of disability a nd the nature of the complaint. The rule also requires that covered carriers2

annual report to the Department is due each year on the last Monday in January. The annual report for calendar year 2011 was due on January 30, 2012

, and the annual report

for ca lendar year 2008 was due on January 26, 2009

.

The A CAA requires , among other things, 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 a particular

carrier. T he Office of Aviation Enforcement and Proceedings (Enforcement Office) has

made efforts to ensure tha t carriers file disability

- related reports in compliance with

section 382.157

, 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 Di vision ’s website

.

FACTS AND CONCLUSIONS

AeroSvit is a foreign air car rier based in Kiev, Ukraine, that operates scheduled service to and from the United States using at least one aircraft having a design seating capacity of

more th an 60 passenger seats. AeroSvit’s operation s into the United States clearly fall within the scope of the reporting rule. Therefore, AeroSvit violated section 382.157 (d) and the ACAA when it submitted to the Department the report for calendar year 2011 on February 17, 2012, eighteen dates late

, and the report for calendar year 2008 on February 25, 2009, four weeks late

. Additionally, we note that, in June 2009 AeroSvit w a s warned

that a subsequent failure to file the annual report in a timely manner could result in

enforcement action.

MITIGATION

AeroSvit states that d isruptions in the timely submission of AeroSvit’s report s under 14 CFR Part 382 cited by the Department are not indicative of a pattern of noncompliance with applicable regulations, but ra ther they are results of unfortunate administrative and

technical “ glitches ” in the established internal reporting system. According to AeroSvit

, following the 2008 reporting delay that was due to a lack of continuity after a personnel change, AeroSvit mad e significant improvements to its procedures and set up a series of safeguards in order to ensure timely submission of the report detailing disability

- related complaints required under 14 CFR Part 382, including implementation o f a set of

electronic remind ers and conducting extensive personnel training. AeroSvit assert s that

t he carrier’s focus was on ensuring continuity in the reporting function during the process of personnel changes and transitions from one r esponsible employee to another, and a s a

resu lt of those measures AeroSvit successfully submitted ti mely reports for calendar years 2009 and 2010.

AeroSvit also assert s that t he delay in the submission of the report for 2011 resulted from a technical disruption in the functioning of AeroSvit’s Custom er Feedback Management

retain a copy of each disability

- related complaint that the carrier receives and a record of the action taken on the complaint for three years.3

(Crane 4C) system and a subsequent failure in the established employee reminder/notification mechanism due to overreliance on the electronic system of

notifications. The carrier notes that t he delay in the submission of the 2011 repo rt revealed a vulnerability in the system that was established in 2009, since it over

- relied on computer notifications, in the absence of which responsible personnel did not act on the deadlines appropriately. Based on the a for e mentioned information , Aero Svit states that it has undertaken steps to establish further safeguards against possible impacts of technical, human or any other factors on the timeliness of the required reporting.

DECISION

The Enforcement Office has carefully considered the information provided by AeroSvit

and continues to believe that enforcement action is warranted. We view seriously AeroSvit’s failure to file the annual reports on time as required by section 382.157(d). In order to avoid litigation, t he Enforcement Office and AeroSv it have reached a settlement

of this mat ter and enter into a consent order directing AeroSvit to cease and desist from

future similar violations of 14 CFR Parts 382 and 49 U.S.C. § 41705

, and to the

as sessment of $20 ,000 in compromise of potential civil pe nalties otherwise due and payable pursuant to 49 U.S.C. § 46301.

This compromise assessment is appropriate considering the nature and extent of the violations described herein and serves the public i nterest. It represents an adequate deterrent against future non

- compliance with the Department’s reporting requirements by AeroSvit, as well as by other domestic and foreign air carriers.

T his order is issued under the authority contained i n 49 CFR Part 1

.

ACCORDINGLY,

1. Based on the above information, we approve this settlement and the pro vision s of this order as being in the public interest;

2. We find that AeroSvit Airlines violated 14 CFR 382.157 by failing to timely submit to the Department of Transportation its annual reports detailing the disability

- re lated complaints it received in calendar years 2008 and 2011 ;

3. We find that by engaging in the conduct and violations described in orde ring paragraph 2 , above, AeroSvit Airlines also violated the Air Carrier Access Act, 49 U.S.C. § 41705;

4. AeroSvit Airlin es and all other entities owned or controlled by AeroSvit Airlines, its

successors and assigns, are ordered to cease and desist from furt her violations of 14

CFR 382 .157 and 49 U.S.C. § 41705 ;

5. AeroSvit Airlines is assessed $20 ,000 in compromise of civil p enalties that might

otherwise be assessed for the violations found in ordering paragraph 2 through 4,

above. Of this total penalty amount, $10,000 shall be due and payable within forty

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five (45) days of the date of the issuance of this order

. The remainin g $10,000 shall

becom e due and payable if AeroSvit Airlines violates 14 CFR 382.157 within one year following the date of issuance of this order, or fails to comply with this order’s

paym ent provisions, in which case the entire unpaid portion of the civil penalty shall become due and payable immediately, and AeroSvit Airlines may be subject to

additional enforcement action for failure to comply with this order; and

6. We order AeroSvit Airlines to pay the penalty through Pay.gov to the account of the

U.S. Tre asury. Payment shall be made in accordance with the instructions contained in the Attachment to this order. Failure to pay the penalty as ordered shall subject

AeroSvit Airlines 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 revi ew on its own

motion.

BY:

SAMUEL PODBERESKY

Assistant General Counsel for

Aviation Enforcement and Proceedings

An electronic version of this document is available at

www.regulations.gov