Order 2011-11-13

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 November, 2011

American Eagle Airlines, Inc. Served: November 14, 2011

Violations of 14 CFR Part 259

and 49 U.S.C. § 41712 Docket OST-2011-0003

CONSENT ORDER

This consent order concerns violations of 14 CFR Part 259 and 49 U.S.C. § 41712

involving the failure by American Eagle Airlines, Inc. (American Eagle) to adhere to the 

assurances in its contingency plan for lengthy tarmac delays that the carrier would not 

permit a domestic flight to remain on the tarmac for more than three hours without 

providing passengers an opportunity to deplane. This order directs American Eagle to 

cease and desist from future similar violations of Part 259 and section 41712 and assesses 

the carrier $900,000 in civil penalties.

Applicable Law

Pursuant to section 259.4 of the Department’s rules (14 CFR 259.4), U.S. 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 

and medium hub U.S. airport at which they operate scheduled or public charter air 

service.1 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 without providing passengers an opportunity to deplane, with 

 

1 Effective August 23, 2011, this provision was extended to also cover small hub and non hub airport 

operations.
2

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. Carriers 

must also ensure that they have sufficient resources to carry out their contingency plans.

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

in its contingency plan for lengthy tarmac delays is considered to be 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 aircraft 

for more than 3 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.

Facts and Conclusions

American Eagle is an air carrier as defined by 49 U.S.C. § 40102(a)(2)2 that operates 

scheduled service into Chicago O’Hare International Airport (ORD), a large hub airport,

using at least one aircraft having a design seating capacity of more than 30 passenger 

seats. American Eagle has adopted a contingency plan for lengthy tarmac delays covering

its scheduled operations at ORD. American Eagle’s contingency plan stipulates that for

the carrier’s domestic flights, each customer will have the opportunity to deplane before 

the tarmac delay exceeds three hours. In addition, as part of its specific contingency plan 

for ORD, American Eagle has in place a “Drop and Go” procedure for offloading 

passengers during gate congestion situations. Pursuant to American Eagle’s “Drop and 

Go” plan, aircraft are brought into a gate and the passengers and their carry-on or valet 

bags are offloaded. The flight crews then take the aircraft back out to a holding area until 

the congestion issue has been resolved, and the aircraft are thereafter brought back to 

gates for boarding later flights.

An investigation by the Enforcement Office revealed that on May 29, 2011, 608 

passengers were delayed on the tarmac on 15 inbound American Eagle flights at ORD for 

more than three hours in violation of 14 CFR 259.4(b)(1). See the table below:

 

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

During the early morning hours of May 29, 2011, ORD experienced fog, low visibility, 

and low ceilings. Weather conditions changed from fog and low ceilings to thunderstorm 

activity at approximately 3:30 p.m. The weather conditions prompted Air Traffic Control 

to institute ground stops, arrival delays and gate holds between 5:20 a.m. and 3:20 p.m. 

The ORD ramp closed on three separate occasions due to lightning between 10:42 a.m.

and 3:50 p.m. The duration of each ramp closure was approximately 40 minutes. 

However, after 3:30 p.m., weather conditions improved and visual flight rules (VFR)

conditions existed for the remainder of the day. Because of the weather conditions and 

ATC programs, American Eagle’s Systems Operation Control (SOC) cancelled 126 

flights between 6:00 a.m. and 1:00 p.m.

After the ramp reopened and the ATC programs were terminated at 3:20 p.m., American 

Eagle continued to operate flights into ORD, even though the carrier’s airplanes were not 

departing from gates as planned. The aircraft that were occupying the gates were 

scheduled to operate revenue flights later in the afternoon or in the evening. 

Consequently, arriving American Eagle aircraft were forced to hold at various waiting 

areas around the airfield.

In many instances, the airplanes that were parked at the American Eagle gates were not 

departing because American Eagle’s crews were not available to operate the flights. In 

fact, many of those crew members were onboard aircraft that were being held at various 

locations around the airfield at ORD on inbound flights because of the lack of available 

American Eagle gates. At some point between 3:50 p.m. and 4:00 p.m., American 

Eagle’s SOC issued a company ground stop of all ORD arrivals. However, by 4:00 p.m.

Flight Departed From Total 

Tarmac 

Delay 

(Min.)

Minutes >3 Hrs 

(180 Min.)

# OF PAX

1 3873 El Paso, TX (ELP) 225 45 31

2 4122 Tri-Cities, TN (TRI) 223 43 41

3 4185 Cleveland, OH (CLE) 215 35 5

4 4168 Richmond, VA (RIC) 211 31 47

5 4230 Wichita, KS (ICT) 203 23 31

6 3765 Denver, CO (DEN) 201 21 63

7 3709 Atlanta, GA (ATL) 196 16 53

8 4143 Buffalo, NY (BUF) 192 12 49

9 4173 Wichita, KS (ICT) 190 10 39

10 4315 Cleveland, OH (CLE) 189 9 14

11 3705 Washington, DC (DCA) 189 9 63

12 3919 Little Rock, AR (LIT) 185 5 42

13 4031 Manhattan, KS (MHK) 185 5 30

14 4215 Nashville, TN (BNA) 183 3 50

15 4164 Columbus, OH (CMH) 183 3 50

TOTAL 608
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a gridlock situation had already begun to develop at the American Eagle ramp, and each 

hour thereafter the situation got progressively worse in terms of arrivals exceeding 

departures. 

Even though the delay situation had been steadily deteriorating since 4:00 p.m., as late as 

8:05 p.m., the ORD American Eagle Tower Manager on Duty incorrectly continued to 

believe that the delay situation was still manageable and communicated that belief to 

American Eagle’s System Operations Control Manager. At 8:30 p.m., American Eagle 

finally activated its “Drop and Go” contingency plan and began to clear two gates to 

implement the procedure. However, by that point in time, all 15 of the aircraft that 

eventually experienced three-plus hour tarmac delays were already on the ground, most 

for some time, holding at various locations on the airfield at ORD.

American Eagle indicated to the Enforcement Office that it chose not to deplane 

passengers on holding aircraft remotely on the airfield via airport busses because the 

carrier did not want to expose passengers to high noise and a poorly lit environment. 

However, the carrier admits that by the time it considered the possibility of utilizing 

airport busses to offload passengers, the coordination time for the bussing operations 

would have put the waiting flights beyond the three hour limit. By 9:00 p.m., American 

Eagle had cleared two gates for use in the “Drop and Go” procedure. Nonetheless, 15 

flights remained on the tarmac in excess of three hours before deplaning passengers.

In summary, the Enforcement Office found that American Eagle’s overly optimistic 

estimation of its ability to handle the number of flights it chose to operate into ORD and 

its poor planning of its crew and gate resources caused 608 passengers to remain on 

aircraft in excess of three hours without the opportunity to deplane. Furthermore, the 

Enforcement Office also believes that American Eagle’s failure to implement in a timely 

manner its “Drop and Go” procedure, and its failure early in the incident to request 

assistance deplaning passengers remotely by bus from the Chicago Department of 

Aviation, contributed significantly to the carrier’s inability to deplane the 15 flights by the 

three-hour mark. This failure by American Eagle to adhere to the terms of its 

contingency plan by failing to offer each passenger the opportunity to deplane within 

three hours of arrival violates 14 CFR 295.4 and 49 U.S.C. § 41712.3

Mitigation

In mitigation, American Eagle states that it takes very seriously its responsibility to 

comply with all of the Department’s requirements, including the recently adopted tarmac 

delay rule. American Eagle notes that it fully cooperated with the Department’s 

investigation of the event in question. Although multiple flights were involved, 

American Eagle contends that this was a single incident that occurred on a single 

afternoon as a result of a single adverse weather system affecting O’Hare airport.

 

3 This order also closes our investigation of a single tarmac delay incident that occurred at JFK International 

Airport on May 26, 2011, involving American Eagle flight 4305, on which 34 passengers were forced to 

remain onboard the aircraft for 3 hours and 12 minutes without the opportunity to deplane.
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According to the carrier, while any extended tarmac delay is regrettable, the delays here, 

as shown in the Department’s chart, ranged from 3 minutes to 45 minutes over the threehour limit, or an average tarmac delay of approximately 18 minutes. Seven of the 15 

flights (almost half) experienced tarmac delays of between 3 and 9 minutes over the 

limit. American Eagle states that since this occurrence, it has exhaustively investigated 

the circumstances surrounding the event and has conducted extensive additional training 

of its employees, with a particular focus on flights destined to ORD on days involving 

inclement weather, in order to minimize the chances of a recurrence. The company also 

states that its contingency plan for responding to off-schedule operations has been 

updated to improve internal communication and ensure decisions are made sooner in a 

delay situation. In addition, the carrier contends that new technology will provide realtime information about the exact location of aircraft on the field, enabling more accurate 

decision-making. American Eagle states that it has compensated passengers it has been 

able to contact with vouchers for future flights and with AAdvantage miles. American 

Eagle states that the value of the compensation it has paid to date is almost $150,000, or 

an average of $250 per passenger. American Eagle argues that it has not experienced any 

tarmac delays in violation of the rule other than on the single date of May 29, 2011.

American Eagle also points out that this is the first consent order that the Department has 

ever issued against it for violations of consumer protection regulations, which is a 

compliance record that few other carriers can claim. Finally, American Eagle states that 

it does not agree that the Department has statutory authority to assess civil penalties for 

violations of the tarmac delay rules on a per passenger basis, but rather has concluded that

penalties may only be imposed on a per flight basis. However, in the interest of settling 

this matter without engaging in protracted litigation, and without conceding or waiving its 

legal position on the question of the scope of the Department’s civil penalty authority, 

American Eagle has agreed to this compromise settlement.

Decision

We view seriously American Eagle’s failure, in violation of 14 CFR Part 259 and 49 

U.S.C. § 41712, to adhere to the assurances in its contingency plan for lengthy tarmac 

delays that the carrier would not permit a domestic flight to remain on the tarmac for 

more than three hours without providing each passenger an opportunity to deplane. 

Accordingly, after carefully considering all the facts in this case, including those set forth 

above, the Enforcement Office believes that enforcement action is warranted. By this 

order, the Department finds that American Eagle failed to adhere to the assurances in its 

contingency plan for lengthy tarmac delays that the carrier would 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 608 passengers on 15 

flights to remain on the tarmac for more than three hours without the opportunity to 

deplane in violation of 14 CFR Part 259 and 49 U.S.C. § 41712.

In order to avoid litigation, American Eagle has agreed to settle this matter with the 

Enforcement Office and enter into this consent order directing American Eagle to cease 

and desist from future similar violations of Part 259 and section 41712, and assessing 

$900,000 in compromise of potential civil penalties otherwise due and payable. We 
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believe that this assessment is appropriate and serves the public interest. It represents an 

adequate deterrent to future noncompliance with 14 CFR Part 259 and 49 U.S.C. § 41712 

by American Eagle, as well as by other 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 American Eagle Airlines, Inc. has violated 14 CFR 259.4 by failing to

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

carrier would 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 608 passengers on 15 flights to remain on the tarmac at 

Chicago O’Hare International Airport on May 29, 2011, for more than three hours 

without the opportunity to deplane;

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

paragraph 2, American Eagle Airlines, Inc. has engaged in unfair and deceptive 

practices and unfair methods of competition in violation of 49 U.S.C. § 41712;

4. American Eagle Airlines, Inc. and all other entities owned or controlled by 

American Eagle 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;

5. American Eagle Airlines, Inc. is assessed $900,000 in compromise of civil penalties 

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

and 3 above payable as follows:

(a) $650,000 shall be payable within 30 days after the service date of this order; 

and

(b) The remaining $250,000 shall be payable on December 1, 2013, less any 

amount credited, as set forth below, for refunds, as well as vouchers and 

frequent flyer miles provided to passengers that may be used to acquire 

transportation on American Eagle Airlines, Inc./American Airlines, Inc.

flights, subject to the following conditions:

i) Vouchers shall be credited at 80 percent of their face value;

ii) Frequent flyer mileage shall be credited at $.02 per mile awarded;

iii) Refunds shall be credited at their cash value;
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iv) The refunds, vouchers, and mileage must have been given to passengers 

on the flights covered by this order or for other flights that experienced 

tarmac delays after the service date of this order, provided that those 

other flights do not involve violations of the tarmac delay rule;

v) By November 1, 2013, American Eagle Airlines, Inc. shall submit a 

detailed accounting supporting its claim for credits accompanied by a 

sworn statement from a company officer attesting to the accuracy of the 

accounting and the claim; and

vi) The Office of Aviation Enforcement and Proceedings notifies American 

Eagle Airlines, Inc. of the acceptability of the credit request; and

6. Penalty payments 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 attached instructions. Failure to pay the 

penalty as ordered will subject American Eagle Airlines, Inc. to the assessment of 

interest, penalty and collection charges under the Debt Collection Act and possible 

enforcement action for failure 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:

ROSALIND A. KNAPP

Deputy General Counsel

(SEAL) 

An electronic version of this document is available on the World Wide Web at

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