Order 2013-10-13

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY

WASHINGTON, D.C.

Issued by the Department of Transportation

On the Twenty-Fifth day of October, 2013

United Airlines, Inc. Docket OST 2013-0004

Violations of 14 CFR Part 259 and 

 49 U.S.C. §§ 41712 and 42301

Served October 25, 2013

CONSENT ORDER

This consent order concerns violations by United Airlines, Inc. (United) of 14 CFR Part 259, the 

Department’s tarmac delay rule, 49 U.S.C. § 41712, which prohibits unfair and deceptive 

practices, and 49 U.S.C. § 42301, which requires adherence to a carrier’s tarmac delay 

contingency plan,when United failed to adhere to the assurances in its contingency plan for 

lengthy tarmac delays for thirteen flights at Chicago-O’Hare International Airport (ORD) on July 

13, 2012.1 Specifically, United permitted thirteen domestic flights to remain on the tarmac for 

more than three hours without providing United and United Express passengers an opportunity to 

deplane and, in the case of two flights, failed to provide operable lavatories during lengthy tarmac 

delays. This order directs United to cease and desist from future similar violations of Part 259 and 

sections 41712 and 42301 and assesses United $1,100,000 in civil penalties.

I. Applicable Law Regarding Tarmac Delays

Pursuant to section 259.4 of the Department’s rules (14 CFR 259.4), certificated and commuter air 

carriers that operate scheduled passenger service or public charter service 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 hub, medium hub, small hub, and 

non-hub U.S. airport at which they operate or market scheduled or public charter air service. For 

domestic flights, which are at issue here, the rule requires covered U.S. carriers to provide 

assurance that they will not permit an aircraft to remain on the tarmac for more than three hours 

 1 Several of the flights at issue were operated by other carriers doing business as United Express under codeshare 

agreements with United. The affiliated carriers were: ExpressJet Airlines, SkyWest Airlines, Mesa Air Group, Shuttle 

America Corporation, and GoJet Airlines. Based on the facts described below and for the reasons described in the 

Decision section of this order, the related violations by the United Express carriers are not included in this order and 

instead the tarmac delay cases related to those carriers are being closed with warning letters.
2

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 safety-related or security-related reason (e.g. weather, a directive from an 

appropriate government agency, etc.); and (2) where Air Traffic Control (ATC) advises the 

pilot-in-command that returning to the gate or another disembarkation point elsewhere in order to 

deplane passengers would significantly disrupt airport operations. For all covered flights delayed 

on the tarmac, carriers must provide adequate food and water no later than two hours after the 

aircraft leaves the gate (in the case of a departure) or touches down (in the case of an arrival), 

unless the pilot-in-command determines that safety or security requirements preclude such service. 

Carriers must also ensure that lavatory facilities are operable and medical attention is provided, if 

needed, while the aircraft remains on the tarmac. In addition, carriers must ensure that they have 

sufficient resources to carry out their contingency plans.

Under the FAA Modernization and Reform Act of 2012 (the Act), 49 U.S.C. § 42301, covered 

carriers are required to submit to the Department tarmac delay contingency plans that contain

additional assurances including maintaining a comfortable cabin temperature during an excessive 

tarmac delay and sharing gates and facilities with other carriers in the event of an emergency. The 

Act also requires each carrier to develop a tarmac delay contingency plan for each airport it serves 

and to adhere to its respective plans. 

Under the Department’s tarmac delay rule, specifically 14 CFR 259.4(a), each carrier must adhere 

to the tarmac delay contingency plan it adopts for each flight it operates or markets at each U.S. 

large, medium, small, and non-hub airport. Section 259.4(c) indicates which carrier’s plan applies 

in the event of a code-share flight, i.e., a flight where one carrier markets and sells the air 

transportation but another carrier operates the flight. Section 259.4(c) states that the plan that 

applies to a code-share flight is the one of the carrier under whose code the service is marketed, 

unless the marketing carrier specifies in its contract of carriage that the operating carrier’s plan 

governs. Responsibility to ensure adherence to the plan falls to both the marketing carrier, whose 

plan governs under section 259.4(c), unless specified otherwise, and the operating carrier, which 

must adhere to the applicable contingency plan on flights it operates and markets, under section 

259.4(a).

An air carrier’s failure to comply with assurances required by Part 259 and as contained in its 

contingency plan for lengthy tarmac delays constitutes an unfair and deceptive practice within the 

meaning of 49 U.S.C. § 41712. Because the purpose of section 259.4 is to protect individual

passengers from being forced to remain on an aircraft for more than three hours, in the case of 

domestic flights, without the opportunity to deplane, the Office of Aviation Enforcement and 

Proceedings (Enforcement Office) takes the position that a separate violation occurs 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. Pursuant to 49 U.S.C. § 46301, violations of 14 CFR Part 259 

or 49 U.S.C. § 41712 subject a carrier to civil penalties of up to $27,500 per violation.
3

II. Tarmac Delays of July 13, 2012

United, is an air carrier as defined by 49 U.S.C. § 40102(a)(2)2 that operates scheduled service into 

and out of ORD, a large hub airport, using at least one aircraft having a design seating capacity of 

more than 30 passenger seats. United has adopted a contingency plan for lengthy tarmac delays 

covering its scheduled operations at ORD, which stipulates that for the carrier’s domestic flights, 

customers will have the opportunity to deplane before the tarmac delay exceeds three hours. In 

addition, as part of its contingency plan specific to ORD. United has an Extended Tarmac Delay 

Recovery Plan to respond to congestion at its gates. This plan includes a “Deplane and Go” 

procedure for sequentially offloading passengers and moving aircraft. Additionally, if United 

reaches gate saturation at ORD, it has in place a plan for tandem parking operations at gates and 

attempting to use other airlines’ gates. United handles all ground and gate operations for both 

United and United Express flights at ORD.

In a report filed on August 13, 2012,

3 regarding tarmac delays, United indicated that multiple

United and United Express flights experienced tarmac delays in excess of three hours at ORD on 

July 13, 2012. The Enforcement Office conducted an investigation and determined that thirteen 

flights violated the Department’s tarmac delay rule and warrant enforcement action. In total, 939

passengers were delayed on the tarmac at ORD on eleven inbound United and United Express 

flights and two outbound United Express flights for more than three hours. The following table 

details the thirteen tarmac delays:

 2 49 U.S.C. §40102(a)(2) defines an air carrier as “a citizen of the United States undertaking by any means, directly or indirectly, to 

provide air transportation.”

3

United filed this report pursuant to 49 U.S.C. § 42301(h).
4

Flight Operating 

Carrier

Departure 

Airport

Total 

Tarmac 

Delay 

(Min.)

Minutes> 

3 Hrs. (180 

Min.)

# OF 

PAX

1 3512 Shuttle 

America

Chicago-O’Hare 

(ORD)

257 77 61

2 6180 ExpressJet Rapid City, SD 

(RAP)

249 69 41

3 5918 ExpressJet Richmond, VA 

(RIC)

242 62 48

4 5211 SkyWest Cleveland, OH 

(CLE)

221 41 65

5 3780 Mesa Chicago-O’Hare 

(ORD)

214 34 66

6 5832 ExpressJet Green Bay, WI 

(GRB)

213 33 43

7 3487 Shuttle 

America

Pittsburgh, PA 

(PIT)

212 32 66

8 3638 GoJet Kansas City, 

MO (MCI)

206 26 66

9 3671 GoJet Austin, TX 

(AUS)

196 16 64

10 5928 ExpressJet Norfolk, VA 

(ORF)

189 9 49

11 908 United Denver, CO 

(DEN)

184 4 180

12 597 United Las Vegas, NV 

(LAS)

183 3 144

13 5561 SkyWest Charleston, SC 

(CHS)

182 2 46

TOTAL 939

On July 13, 2012, severe thunderstorms and lightning on the field at ORD caused several ramp 

closures and caused other disruptions impeding the movement of aircraft at the airport. Although 

the weather forecast called for only a thirty percent chance of rain, by 12:50 p.m. it was clear that 

the weather situation at ORD was serious enough to impact airport operations leading to the first of 

what turned out to be a series of four ramp closures, which are mandated by an objective system at 

ORD when lightning strikes within five miles of the airport.

4 The first ramp closure lasted 

seventy- two minutes, until 2:02 p.m. The second ramp closure began at 2:23 p.m. and lasted 

twenty-one minutes. Around the time of the second ramp closure, Air Traffic Control (ATC) 

 4 The Department does not expect airlines to deplane passengers during lightning caused ramp closures and in 

investigating violations of the tarmac delay rule, the Enforcement Office takes into account the impact of ramp 

closures.
5

issued a ground delay program (GDP) affecting all flights bound for ORD. A GDP issued for a 

particular airport affects inbound flights by metering arrivals through flow control programs to that 

airport. However, a GDP is not intended to limit departures from such airport.

Due to the ramp closures and reduced yet steady arrival of aircraft, congestion on the airfield and at 

the gates increased. At 3:00 p.m. United cancelled 60 United Express flights and at 4:15 p.m. 

commenced an internal ground stop program. During this time period the FAA continued to land

arrivals at ORD, including United and United Express flights. United faced increasing gate

congestion and limited deplaning options for arriving aircraft. Additionally during this time, 

United pushed two United Express flights with passengers back from the gate. Those flights were 

Shuttle America flight 3512, which eventually incurred the longest tarmac delay that day, totaling 

four hours and seventeen minutes, and Mesa flight 3780, which pushed back at 4:25 p.m. after 

United initiated its internal congestion relief efforts, and it experienced a tarmac delay of three 

hours and thirty-four minutes.

A period of nearly two hours elapsed before the third ramp closure at 4:40 p.m. United asserts that 

recovery efforts from the cascading effects of the preceding ramp closures made it impossible to 

deplane aircraft between the second and third ramp closures. The third ramp closure lasted 

forty-five minutes. The ramp reopened for seven minutes and then closed again for the fourth and 

final time at 5:32 p.m. The last ramp closure was lifted at 6:02 p.m. During the time between the 

end of the second ramp closure and the end of the fourth ramp closure, ATC continued to permit 

planes operated by United, United Express, and other operators to land at ORD. United chose not 

to initiate diversions to other airports. This incoming traffic resulted in twice the number of 

aircraft on the ground compared to the aircraft present during a normal peak period at ORD. By 

that time, the number of arrivals exceeding departures had created untenable gridlock.

The Enforcement Office’s investigation revealed that United did not contact the airport’s 

personnel for assistance during any of the ramp closures. Additionally, although the pilots of the 

affected flights attempted to communicate with United’s ORD operations personnel, there were 

periods of time when those United personnel were not responsive to requests for gate assignments. 

The information provided by United indicates that it did not implement its ORD Extended Tarmac 

Delay Recovery Plan by commencing its “Deplane and Go” plan or its tandem parking plan, or 

attempt to use other airline gates as provided in its plan. United states that the situation at ORD on 

July 13, 2012, was so unique and unexpected that a “Deplane and Go” operation would have, in 

fact, slowed down the deplaning of passengers. United further asserts that ATC began using all 

available runways unpredictably to land aircraft as the weather deteriorated. Additionally, United 

references a rule at ORD requiring a mechanic from the operating carrier to move an aircraft on the 

airfield when that aircraft’s crew has reached its flight and duty time limit. United explains that 

this adds to the complexity of deplaning because most of the affected flights were operated by 

regional air carriers.

Although the Enforcement Office regonizes that challenging weather and operational 

circumstances existed on the day in question, the purpose of 14 CFR Part 259 is to require carriers 

to plan for various contingencies including gate saturation events or events where the crew may 
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time out of duty. Additionally, the Enforcement Office does not see the situation at ORD on July 

13, 2012 as so unique it went beyond the planning capabilities of United.5 Rather, it appears that 

although United had a contingency plan for lengthy tarmac delays, the plan was inadequate to 

cover the foreseeable event of weather causing more planes to be on the ground than available gate 

space. United had several options contained in its plan to deal with a gate saturation event that, by 

United’s own admission, would not have worked in this case.

The investigation found that while most of the delayed flights that are the subject of this order were 

on the ground during the third and fourth ramp closures, the primary cause for the failure to 

deplane passengers during the tarmac delays was United’s gate management. Most of the aircraft 

were on the tarmac for a considerable period of time before the third ramp closure began or for a 

considerable period of time after the ramp closure was lifted.

For example, Shuttle America flight 3512 remained on the tarmac for an additional two hours and 

sixteen minutes after the final ramp closure ended before passengers were given the opportunity to 

deplane. Similarly, ExpressJet flight 6180 remained on the tarmac one hour and fifty-two minutes 

after the ramp reopened. ExpressJet flight 5918 was on the tarmac for one hour and eight minutes 

before the ramp closures and remained on the tarmac for one hour and thirty- two minutes after the 

ramp reopened. SkyWest flight 5211 was on the tarmac for one hour and eleven minutes before 

the third ramp closure, but remained on the tarmac for one hour and eight minutes after the ramp 

reopened. Mesa flight 3780 was on the tarmac for nearly two hours after the fourth ramp closure 

lifted. GoJet flight 3638 was on the tarmac for one hour and twenty-four minutes before the first 

ramp closure and remained on the tarmac for forty minutes after the ramp closures ended. GoJet 

flight 3671 was on the tarmac for one hour twenty-three minutes after the ramp reopened for the 

final time. United flight 908 was on the tarmac for twenty-eight minutes before the third ramp 

closure and remained on the tarmac for one hour and fourteen minutes after the ramp reopened. 

United flight 597 was on the tarmac for the third and fourth ramp closures and remained on the 

tarmac for two hours and twenty-one minutes after the ramp reopened. SkyWest flight 5561, the 

shortest delay, was on the tarmac for forty minutes before the ramp closed and remained on the 

tarmac for one hour after the ramp reopened. ExpressJet flight 5832, ExpressJet flight 5928 and 

Shuttle America flight 3487 each arrived after the last ramp closure.

In addition to the lengthy tarmac delays, on two United Express flights, their lavatories became 

inoperable during the delay. On ExpressJet operated flights 5832 and 5918, the lavatories became 

full and unusable. The crew of those flights called in for servicing, but the lavatories could not be 

serviced unless the planes were parked at a gate. For those two flights, the lavatories were not 

operational for the last one hour and thirty minutes of the delay. According to United’s 

ORD-specific plan, an aircraft must return to the gate prior to the two-hour mark if United cannot 

provide customers with operable restrooms while on the tarmac. Due to gate congestion, these 

flights did not receive priority for returning to the gate.

In summary, the Enforcement Office found that United’s gate management, its inability to handle 

the number of flights it chose to operate into and out of ORD, and its failure early in the incident to 

request assistance with deplaning passengers in accordance with its existing ORD plan caused 939 

 5 The Enforcement Office notes that no other airline experienced a three-hour tarmac delay at ORD on July 13, 2012.
7

passengers on thirteen aircraft to remain on the tarmac in excess of three hours without the 

opportunity to deplane. The average length of delay exceeding three hours was thirty minutes.

Furthermore, United’s inadequate advance consideration of limitations on its and its code share 

partners’ crew and own gate resources and failure to prepare an appropriate deplaning procedure 

for gate saturation at ORD contributed significantly to the carrier’s inability to deplane the thirteen 

flights by the three-hour mark.

The failure by United and the United Express carriers to adhere to the terms of their contingency 

plans by failing to offer each passenger the opportunity to deplane within three hours of arrival or 

departure violates 14 CFR 259.4 and 49 U.S.C. § 41712. This failure also violated 49 U.S.C. §

42301(e)(3), which requires each carrier to adhere to its approved tarmac delay contingency plan.

Further, for the ninety-one passengers on ExpressJet flights 5832 and 5918, United failed to adhere 

to the terms of their contingency plan by failing to maintain operable lavatories in violation of 14 

CFR 259.4 and 49 U.S.C. §§ 41712 and 42301(e)(3).

III. Mitigation

In mitigation and without conceding the Enforcement Office’s facts or findings, United states that

it was and remains commited to safety as its first priority, and to its full compliance with the 

Department’s consumer protection regulations including Part 259. United also states its belief 

that its operational decisions on July 13, 2012, that prevented passengers from deplaning within 

three hours demonstrated that it puts safety first. According to United, the safety exception to the 

three-hour rule and its own tarmac delay contingency plan both recognize that passenger safety is 

the first priority.

United further states that its actions in response to the convective weather events of July 13, 2012,

were not commercial decisions but, instead, were operational decisions made in the face of

unforeseen and extremely unusual weather activity. United also states that the ramp closures 

which precipitated the tarmac delays were judged necessary to ensure the safety of passengers and 

employees due to the observed risk of lightning strikes. United asserts that had it attempted to 

deplane passengers during the ramp closures it would have exposed not only its passengers, but 

also its aircraft fuelers, wing walkers, luggage handlers, food suppliers and other personnel

involved in ramp operations, to lightning risks.

United notes that its tarmac delay contingency plan explicitly states that it may be unable to allow 

passengers to deplane within three hours on a domestic flight for safety reasons. Thus, United

asserts that its operational decisions on July 13 could neither be unfair nor deceptive within the 

meaning of section 41712 as its plan provided passengers with written advance notice of this very 

possibility. 

With respect to the safety exception and the related operational disruption exception in section 

259.4(b)(1), United states its belief that the most reasonable construction of these exceptions is 

that the duration of ramp closures – or other circumstances during which deplaning would be 

unsafe because of the risks to passengers and airline ground personnel – should not be counted 

toward the three-hour limit. If the clock were tolled during ramp closures at ORD on July 13, nine 

of the thirteen flights that arrived prior to or during the ramp closures would fall within one or both 
8

exceptions.

United also defends its decision not to initiate diversions of flights destined for ORD. According 

to United, diversions can substantially increase the workloads of both pilots and air traffic 

controllers and are only undertaken for safety or security reasons such as airport closures, medical 

emergencies and other exigent circumstances. United also states that diversions can result in 

substantially greater inconvenience to passengers than tarmac delays.

United further asserts that although 13 flights exceeded three hours on the tarmac, United and their

code share partners successfully deplaned 1,156 flights or 98.5% of its total flights at ORD on July 

13 without triggering the three-hour rule and also cancelled a total of 121 flights to ensure other 

passengers would not be subject to extended waits on the tarmac. United acknowledges that four 

of the thirteen flights exceeded the 180-minutes, even excluding the ramp closures. 

United expresses its recognition of, and sincere regret for, the inconvenience and discomfort 

caused to passengers aboard flights that endured extended waits on the tarmac. According to 

United, it paid passengers subject to tarmac delays over three hours approximately $200,000 in 

compensation and refunds and also provided more than $18,000 in compensation to passengers on 

other flights subject to tarmac delays of less than three hours that day at ORD. United states that it

seeks to prevent tarmac delays whenever and wherever possible because they are detrimental both 

to United and its customers. To that end, United states that it has undertaken several measures 

subsequent to July 13, 2012. Specifically, United states that it has revised communications and 

coordination protocols between its Network Operations Center and Station Operations Control,

increased key staff at ORD, invested in additional ground equipment including air stairs and jet 

bridges at ORD, and deployed at ORD, on a trial basis, a surface management and surveillance 

system which has already prevented a tarmac delay violation during this test phase. United

believes this surface management and surveillance system will provide it with greater insight and 

ability to manage ground operations. 

Regarding the Enforcement Office’s interpretation of the 49 U.S.C. § 46301 that civil penalties of 

up to $27,500 may be assessed on a per passenger basis, United states its belief that such civil 

penalties may be assessed only on a per flight basis as explicitly stated in section 46301(a)(2). 

However, in the interest of settling this matter without engaging in protracted litigation, and 

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

authority, its construction of section 41712, and its construction of the safety exception to the 

three-hour rule, United has agreed to this compromise settlement. 

Decision

The Enforcement Office has carefully considered the information provided by United but 

continues to believe that enforcement action is warranted. The Enforcement Office and United 

have reached a settlement of this matter in order to avoid litigation. United consents to the 

issuance of an order to cease and desist from future violations of 14 CFR 259.4 and 49 U.S.C. §§ 

41712 and 42301. United also agrees to the assessment of $1,100,000 in compromise of potential 
9

civil penalties for the violations of 14 CFR 259.4 and 49 U.S.C. §§ 41712 and 42301 that would be 

otherwise due and payable pursuant under 49 U.S.C.§ 46301.6

This compromise assessment is appropriate considering the nature and extent of the violations 

described herein and serves the public interest. It represents an adequate deterrence to future 

noncompliance with the Department’s requirement to adhere to tarmac delay contingency plans by 

United as well as by other air carriers and foreign air carriers.

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

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 United Airlines, Inc., has violated 14 CFR 259.4 and 49 U.S.C. § 42301 by 

failing to adhere to the assurance in its contingency plan for lengthy tarmac delays that the 

carrier will not permit a domestic flight to remain on the tarmac for more than three hours 

without providing passengers an opportunity to deplane. By its actions, the carrier forced 

a total of 939 passengers on thirteen flights to remain on the tarmac at Chicago-O’Hare 

International Airport on July 13, 2012, for more than three hours without the opportunity to 

deplane;

3. We find that concerning United Express flights 5832 and 5918, operated by ExpressJet, on 

July 13, 2012, United Airlines, Inc., violated 14 CFR 259.4 and 49 U.S.C. § 42301 by 

failing to adhere to the assurance in the contingency plan for lengthy tarmac delays that the 

carrier would ensure that lavatories remain operational for the duration of a lengthy tarmac 

delay;

4. We find that by engaging in the conduct and violations described in ordering paragraph 2 

and 3, United Airlines, Inc., engaged in unfair and deceptive practices and unfair methods 

of competition in violation of 49 U.S.C. § 41712;

5. United Airlines, Inc., and all other entities owned or controlled by United Airlines, Inc., its 

successors and assignees are ordered to cease and desist from further violations of 14 CFR 

259.4 and 49 U.S.C. §§ 41712 and 42301;

6. United Airlines, Inc., is assessed $1,100,000 in compromise of civil penalties that might 

otherwise be assessed for the violations found in ordering paragraphs 2 through 4 above: 

(a) $475,000 of the assessed penalty shall be due and payable within 30 days of the 

 6 As a point of settlement the Department has also agreed to close with warnings several open tarmac delay cases 

involving United covering both United and United Express flights.
10

service date of this order; 

(b) $185,000 of the assessed penalty shall be credited to United Airlines, Inc., for 

compensation provided to passengers on the affected flights and also 

passengers on other flights with tarmac delays of less than three hours;7 and

(c) $440,000 of the assessed penalty shall be credited to United Airlines, Inc. 

toward United’s cost of acquiring, operating and maintaining a surface 

management and surveillance system at ORD to monitor the location of each 

aircraft on the airfield.

8

7. We order United Airlines, Inc., to pay the penalty as required in paragraph 6 through 

Pay.gov to the account of the U.S. Treasury. 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 United Airlines, Inc. 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:

SAMUEL PODBERESKY

Assistant General Counsel for

 Aviation Enforcement and Proceedings

An electronic version of this document is available at 

www.regulations.gov

 7 The credits are based on the actual amount of refunds, 80% of voucher value, and two cents per frequent flyer mile,

provided to passengers affected by lengthy tarmac delay sat ORD on July 13, 2012.

8 To avail itself of this credit, United Airlines, Inc., shall provide a sworn statement to the Enforcement Office from a 

company officer with supporting documentation substantiating the expenditures.