Order 2013-11-10

 

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, 2013

Shuttle America Corporation Docket OST 2013-0004

Violations of 49 U.S.C. § 41708 and Served November 14, 2013

 14 CFR Part 244 

CONSENT ORDER

This consent order concerns the failure of Shuttle America Corporation (Shuttle America) 

to timely file with the Department of Transportation (Department) Tarmac Delay Reports 

for three flights in violation of 14 CFR Part 244 and 49 U.S.C. § 41708. It directs Shuttle 

America to cease and desist from future similar violations of Part 244 and section 41708, 

and assesses the carrier a compromise civil penalty of $10,000.

Applicable Law

Section 244.3 of the Department’s regulations require certain air carriers to file Bureau of 

Transportation Statistics (BTS) Form 244 “Tarmac Delay Report” with the Office of 

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

more occurred. The data are then published and made available to the public in a useable 

format in the Department’s monthly Air Travel Consumer Report (ATCR), which, among 

other things, lists all regularly scheduled domestic flights with tarmac delays of three 

hours or more and international flights with tarmac delays of four hours or more.1

 The 

ATCR data in question are used for a number of purposes, including by the traveling 

public to choose among transportation options, by the Department as a basis for 

conducting enforcement investigations, and by carriers as a basis for making advertising 

claims regarding the quality of their service compared to other carriers. It is imperative, 

 1 See Air Travel Consumer Report, available at http://www.dot.gov/airconsumer. In addition to the 

reporting requirements of 14 CFR Parts 234 and 244, the FAA Reauthorization Law, 49 U.S.C. § 42301(h), 

requires carriers to submit a written description of a tarmac delay incident in which any flight experiences 

an excessive tarmac delay to the Aviation Consumer Protection Division of the Department within 30 days 

of the date of the incident. The requirement to submit a report under the FAA Reauthorization Law is 

separate and distinct from a carrier’s obligation to submit to the Bureau of Transportation Statistics an ontime performance report under 14 CFR Part 234 or a Tarmac Delay Report under 14 CFR Part 244.
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therefore, that ATCR data be accurate. Violations of section 244.3 also constitute 

violations of 49 U.S.C. § 41708.

Background

During the month of July 2012, Shuttle America, a covered carrier under 14 CFR Part 

244, experienced three tarmac delays of more than three hours, as to which it failed to 

timely file the requisite Tarmac Delay Report according to Part 244. The affected flights, 

operated by Shuttle America doing business as United Express, were: (1) United Express 

flight 3486 from Washington Dulles International Airport (IAD) to Detroit-Wayne 

County International Airport, delayed at IAD on July 3, 2012; (2) United Express flight 

3512 from Chicago O’Hare International Airport (ORD) to Atlanta Hartsfield 

International Airport, delayed at ORD on July 13, 2012; and (3) United Express flight 

3487 from Pittsburgh International Airport to ORD, also delayed at ORD on July 13, 

2012. Tarmac Delay Reports for the three flights should have been submitted to the 

Office of Airline Information on or before August 15, 2012 as required by Part 244.2

 The 

Tarmac Delay Reports for these flights were filed on September 11, 2012.

In summary, the Office of Aviation Enforcement Proceedings found that Shuttle 

America’s failure to timely report the tarmac delays to the Office of Airline Information 

violated 14 CFR Part 244 and 49 U.S.C. § 41708.

Mitigation

In mitigation, Shuttle America states that it takes its reporting obligations very seriously. 

Shuttle America further states that United Airlines (United), the mainline carrier-partner 

on whose behalf Shuttle America operated these flights, represented to Shuttle America

that it would file the Tarmac Delay Reports with respect to the flights on or before the 

deadline, and that United had in fact timely filed the Tarmac Delay Reports. Shuttle

America further states that it reasonably relied on the mainline carrier’s representations, 

and that consistent with the Department’s guidance, Shuttle America did not need to file 

duplicative Tarmac Delay Reports. Shuttle America states that it later learned that United 

had timely filed the Section 42301(h) tarmac delay reports on August 13, 2012, but filed 

the Part 244 reports with the Office of Airline Information on September 11, 2012. 

Shuttle America contends and the Enforcement Office has confirmed that it was 

informed about the three tarmac delays in sufficient time for the flights to be included in 

the September 2012 Air Travel Consumer Report. Finally, Shuttle America states that, 

going forward, it will not rely on its mainline carrier-partners to file timely tarmac delay 

reports, but rather will file the reports itself. 

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 The Office of Aviation Enforcement and Proceedings became aware that the three flights experienced 

tarmac delays of more than three hours prior to the publication of the September 2012 ATCR, and was able 

to accurately publish the information regarding the tarmac delays despite Shuttle America’s failure to 

timely file the required reports. The reports were filed in mid-September 2012.
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Decision

The Enforcement Office has carefully considered the information provided by Shuttle 

America but continues to believe that enforcement action is warranted. The Enforcement 

Office and Shuttle America have reached a settlement of this matter in order to avoid 

litigation. Shuttle America consents to the issuance of an order to cease and desist from 

future violations of 49 U.S.C. § 41708 and Part 244 of the Department’s regulations, and 

to the assessment of $10,000 in compromise of potential civil penalties otherwise due and 

payable pursuant to 49 U.S.C. § 46301. 

This compromise assessment is appropriate considering the nature of the violations 

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

future noncompliance with the Department’s reporting requirements by Shuttle America 

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 Shuttle America Corporation violated 14 CFR Part 244 by failing to 

timely file Tarmac Delay Reports concerning United Express flights 3486 

operated on July 3, 2012; 3487 operated on July 13, 2012; and 3512 operated on 

July 13, 2012; 

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

paragraph 2, above, Shuttle America Corporation has also violated 49 U.S.C. 

§ 41708;

4. We order Shuttle America Corporation, and all other entities owned or controlled 

by or under common ownership with Shuttle America Corporation and their 

successors and assignees, to cease and desist from future violations of 49 U.S.C. 

§ 41708 and 14 CFR Part 244;

5. Shuttle America Corporation is assessed $10,000 in compromise of civil penalties 

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

and 3, above, $5,000 of which shall be due and payable within thirty (30) days 

from the date of issuance of this order. The remaining $5,000 shall become due 

and payable immediately if Shuttle America Corporation violates the cease-anddesist provision of this order within one year following the date of issuance of this 

order, or fails to comply with the order’s payment provisions; and

6. We order Shuttle America Corporation to pay the penalty assessed in paragraph 5 

through Pay.gov to the account of the U.S. Treasury. Payments shall be made in 
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accordance with the instructions contained in the Attachment to this order. Failure 

to pay the penalty as ordered shall subject Shuttle America Corporation 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