Order 2010

- 2

- 27

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY WASHINGTON, D.C.

Issued by the Department of Transportation On the Twenty

- Sixth D ay of Februar y , 2010

Bahamasair Holdings Limited Served: February 26 , 2010

Violations of 49 U.S.C. § 41705

and 14 CFR Part 382 Docket : DOT

- OST

- 2010

- 0005

C ONSENT O RDER

This order concerns violations by Bahamasair Holdings Limited (Bahamasair) of the

req uirements of 14 CFR Part 382 (Part 382), with respect to the filing of annual report s detailing disability

- related complaints that Bahamasair received from passengers in each calendar year between 2004 and 2008 . 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 Bahamasair to cease and desist from future similar violations of Part 382

and the ACAA and assesses the carrier $ 15 ,000 in civil penalties.

Under section 382.70 (recodified as section 382.157)

, 1 covered carriers (i.e. U.S. and foreign air carriers operating passenger service to, from and 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

- related complaints that they received the prior calendar year. 2

1 On May 13, 2009, 14 CFR 382.70 changed to 14 CFR 382.157; however, its relative substance

remains the same. The annual report to the Department is due each year on the last Monday

2 In addition, the rule requires a carrier to record complaints that it receives alleging discrimination or inadequate accessibility on the basis of a disability. The complaints are to be categorized according to the passenger’s type of disability and the nature of the complaint. The rule also requires that covered2

in January. The first annual report covering calendar year 2004 was due to the Department on January 24, 2005, the second report covering calendar year 2005 was due on January 30, 2006, the third report covering calendar year 2006 was due on January 29, 2007, the fourth report covering calendar year 2007 was due on January 28, 2008, and the fifth report covering calendar year 2008 was due on January 26, 2009.

To comply with 49 U.S.C. § 41705, which requires, among other things, that the Secretary of Tr ansportation “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, the Office of the Assistant General Counsel for Aviation Enforcement and Proceedings (Enforcement Office) is committed to ensuring that carriers file disability

- related reports as required. To this end, the

En forcement Office has made efforts to ensure compliance with section 382.70, including providing carriers and carrier associations information about the disability reporting requirements and posting a copy of the disability reporting rule on its Aviation Co nsumer Protection Division’s website.

Bahamasair is a foreign air carrier based in Nassau, Bahamas that operates scheduled

service to and from the United State s using at least one aircraft having a design seating capacity of more than 60 passenger seats. Bahamasair’s operations into the United States clearly fall within the scope of the reporting rule. Therefore, Bahamasair violated section

382.70 and the ACAA when it submitted to the Department the report for calendar year 2004 on April 4, 2005, sixty

- three days late, the report for calendar year 2005 on February 8, 2006, nine days late, the report for calendar year 2006 on January 31, 2007, two days late, the report for calendar year 2007 on January 31, 2008, three days late and the report

for calendar year 2008 on February 25, 2009, over four weeks late

.

In mitigation, Bahamasair states that it is a small Caribbean airline with limited budgetary

and human reso urces, facing greater challenge s than most carriers in meeting non

- critical

administrative r equirements , especially in light of time constraints and conflicting priorities arising during the busy opening weeks of a new year. Bahamas air states further that it has nevertheless consistently met the requirements of section 382.70 insofar as

disabili ty

- related complaints need to be monitored, categorized, recorded and retained on an ongoing basis (and, in fact, there were no such complaints received by Bahamas air during the reporting years 2006

- 08, an d only one complaint concerning a damaged

wheelcha ir in 2009). Moreover, Bahamasair avers that because the Department first made Bahamasair aware in 2009 of its concerns regarding the timing of the carrier’s disability

- related complaint report submissions, senior management personnel of

Bahamasair did no t learn of its consistent reporting deficiency until recently. Bahamasair states that since learning of the reporting tardiness, Bahamasair has cooperated fully with the Department and has implemented robust internal procedures and clear lines of

carriers retain a copy of each disability

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

responsi bility to ensure that its future disability

- related complaints reports will be filed timely , no later than the last Monday in January.

W e view seriously Bahamasair ’s failure to submit its report on time as required by section 382.70. Accordingly, after c arefully 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 Bahamasair failed to submit timely i t s annual reports detailin g the disability

- related complaints it received in calendar years 2004, 2005, 2006, 2007, and 2008 in violation of 14 CFR Part 382 and 49 U.S.C. § 41705.

In order to avoid litigation, Bahamasair Holdings Limited has agreed to settle this matter

with the Enforcement Office and enter into this consent order directing Bahamasair Holdings Limited to cease and desist from future similar violations of Part 382 and 49 U.S.C. § 41705, and assessing $ 15 ,000 in compromise of potential civil penalties

otherwise due and payable. We believe that this assessment is appropriate and serves the public interest. It represents an adequate deterrent to future noncompliance with the Department's reporting requirements by Bahamasair Holdings Limited , as well as by

other dome stic 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 interes t;

2. We find that Bahamasair Holdings Limited has violated 14 CFR 382.70 by failing

to submit timely is annual reports detailing the disability

- related complaints it received in calendar years 2004, 2005, 2006, 2007, and 2008 to the Department of Transporta tion summarizing the disability

- related complaints that it received in

those calendar year s ;

3. We find that by engaging in the conduct and violations described in ordering paragraph 2 above, Bahamasair Holdings Limited also violated 49 U.S.C. § 41705;

4. Baha masair Holdings Limited and all other entities owned or controlled by Bahamasair Holdings Limited

, its successors and assignees are ordered to cease and

desist from further violations of 14 CFR 382.70 [now section 382.157(d)] and 49 U.S.C. § 41705;

5. Bahama sair Holdings Limited is assessed $ 15 ,000 in compromise of civil penalties that might otherwise be assessed for the violations found in ordering paragraphs 2

and 3 above . Of this total penalty amount, $7,500 shall be due and payable within 30 days after t he service date of this order. The remaining $7,500 will become due and payable if Bahamasair Holdings Limited violates 14 CFR 382.157(d) within4

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 Bahamasair Holdings limited may be subject to 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 attached instructions. Failure to pay the penalty as ordered will subject Bahamasair Holdings Limi ted 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

un less 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 http://regulations. gov