Order 2013-2-9

 

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY

WASHINGTON, D.C.

Issued by the Department of Transportation

On the Eleventh day of February, 2013

United Air Lines, Inc.

Docket OST 2013-0004

Served February 11, 2013

Violations of 14 CFR 259.4 and 244.3,

and 49 U.S.C. §§ 41708 and 41712 

CONSENT ORDER

This consent order concerns violations of 14 CFR Parts 259 and 244, and 49 U.S.C. 

§§ 41708 and 41712, involving the failure by United Air Lines, Inc. (United), as required,

to inform passengers on a flight delayed at the gate of the opportunity to deplane, as well 

as its unwarranted inclusion of the flight in its July 2012 Tarmac Delay Report. This 

order directs United to cease and desist from future similar violations of Parts 259 and 

244 and sections 41712 and 41708 and assesses the carrier $130,000 in civil penalties.

Applicable Law

I. Contingency Plan for Lengthy Tarmac Delays

Pursuant to section 259.4 of the Department’s rules (14 CFR 259.4), covered carriers, 

which include any U.S. certificated carrier conducting scheduled passenger service or 

public charter service with at least one aircraft having a designed seating capacity of 30 

or more 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 airport.1

 1 On April 25, 2011, the Department issued a set of rules designed to enhance protection for air travel 

consumers that, among other items, expanded the requirements under the Department’s rule on contingency 

plans for lengthy tarmac delays. 76 Fed. Reg. 23110 (April 25, 2011).
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Specifically, pursuant to section 259.4(b)(2), carriers must provide assurances that for 

international flights, carriers will not permit an aircraft to remain on the tarmac at a U.S. 

airport for more than four hours before allowing the passengers to deplane subject to 

certain exceptions. Additionally, pursuant to section 259.4(b)(6), for all flights, a carrier 

must provide the assurance that passengers on the delayed flight will be notified 

beginning 30 minutes after scheduled departure time and every 30 minutes thereafter that 

they have the opportunity to deplane from an aircraft that is at the gate or another 

disembarkation area with the door open if the opportunity to deplane actually exists. A 

carrier’s failure to comply with the 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. 

II. Reporting Tarmac Delay Data

Section 244.3 of the Department’s regulations requires certain U.S. and foreign air 

carriers to file a Bureau of Transportation Statistics (BTS) Form 244 “Tarmac Delay 

Report” with the Office of Airline Information (OAI) on a monthly basis. The data are 

filed with a certification of their accuracy.2

 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 

international flights with tarmac delays of four hours or more.3 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 to conduct 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, therefore, that ATCR 

data be accurate. Violations of section 244.3 also constitute violations of 49 U.S.C. 

§ 41708, which provides the authority to require the reports in question.

Facts and Conclusions

United is an air carrier as defined by 49 U.S.C. § 40102(a)(2)4 that operates scheduled 

service at Chicago-O’Hare International Airport (ORD), a large hub airport, and that uses

at least one aircraft having a design capacity of more than 30 passenger seats. United has 

adopted a contingency plan for lengthy tarmac delays covering its scheduled passenger 

operations at ORD. United’s contingency plan stipulates that the carrier will ensure that 

passengers on the delayed flight receive notifications beginning 30 minutes after the 

scheduled departure time and every 30 minutes thereafter that they have the opportunity 

to deplane from an aircraft that is at the gate or another disembarkation area with the door 

open if the opportunity to deplane actually exists.

 2 See Part 244 – Reporting of Tarmac Delay Data (Revised), (August 10, 2011), available at 

http://www.bts.gov/programs/airline_information/accounting_and_reporting_directives/number_303a.html.

3 See Air Travel Consumer Report, available at http://airconsumer.dot.gov.

4 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.”
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United was scheduled to operate flight 881, a Boeing 747 with 357 passengers on board,

from ORD to Narita International Airport (NRT) in Japan on May 7, 2012. United 

boarded flight 881 and the aircraft was pushed back from the gate at ORD at 12:38 pm

(local time); however, because of a maintenance issue, the aircraft returned to a gate at 

2:25 pm and the doors were opened. Once at the gate and the opportunity to deplane 

existed, United failed to make an announcement notifying passengers of that opportunity 

to deplane. The aircraft doors were closed again at 3:10 pm, but because of another 

mechanical issue the flight was ultimately canceled and passengers deplaned at 5:22 pm. 

Three passengers on board flight 881 filed complaints with the Department’s Aviation 

Consumer Protection Division alleging that passengers were not notified that they had the 

opportunity to deplane the aircraft during this delay. 

In response to an investigation by the Office of Aviation Enforcement and Proceedings

(Enforcement Office), United acknowledges that a miscommunication resulted in the 

failure to make a deplaning announcement after the flight returned to the gate and the 

opportunity to deplane existed. United states that it does not have any record of a 

passenger requesting to deplane while the aircraft was at the gate with the door open. 

Section 259.4(b)(2) requires carriers to provide passengers with the opportunity to 

deplane on an international flight before the flight has been on the tarmac for more than

four hours subject to certain exceptions. Section 259.4(b)(6) requires that carriers 

announce that passengers have the opportunity to deplane from an aircraft when the flight 

is delayed and the aircraft is at a gate or another disembarkation area with the door open

if the opportunity to deplane actually exists. A tarmac delay begins when passengers no 

longer have the option to get off an aircraft, which usually occurs when the doors of the

aircraft are closed. Section 259.4(b)(6) was promulgated to address the issue of when a 

tarmac delay has not yet begun, or the clock has stopped, because the doors remain open

or are opened at a gate or another disembarkation area, and yet passengers may be

unaware that the door to the aircraft is open and that they have the option to deplane.

Carriers are not required to provide passengers the opportunity to deplane in less than 

four hours but if that opportunity does exists the rule requires that the carrier simply 

inform passengers of the option to deplane. The Department has encouraged carriers to

also remind passengers that they are deplaning at their own risk and that the flight could 

depart at any time without them if that is in fact the case. 

In sum, section 259.4(b)(6) is in place to address the precise incident that occurred on 

flight 881. Beginning thirty minutes after the flight returned to the gate in which the 

opportunity to deplane existed and every thirty minutes thereafter until the doors closed

United was required to notify passengers that they could deplane the aircraft if they 

wished to do so. The failure by United to make the proper notification is a violation of 

14 CFR 259.4(b)(6) as well as 49 U.S.C. § 41712.

Further, United reported this delay to the Bureau of Transportation Statistics (BTS), and 

the Department published the delay data in its monthly Air Travel Consumer Report 

(ATCR) in July 2012. United’s reporting of this delay was inaccurate because the door 
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was open at the gate in the middle of the delay providing passengers an opportunity to 

deplane. The failure by United to provide accurate tarmac delay information to the 

Department is a violation of 14 CFR 244.3 and 49 U.S.C. § 41708.

Mitigation

In mitigation, United emphasizes its commitment to full compliance with the 

Department’s Part 259 tarmac delay regulations and notes that it has provided 

compensation to impacted passengers. United explains that this particular incident was 

related to a miscommunication between personnel, not a systemic failure. Nevertheless, 

United responded to the incident by disseminating communications to refresh its training 

program for flight attendants and gate agents on section 259.4(b)(6) that reemphasized 

United’s obligation to announce that passengers may deplane an aircraft that has been 

sitting at a gate with the door open 30 minutes after scheduled departure times, and every 

30 minutes thereafter. United notes that the refresher communication has been effective 

and that it is unaware of any subsequent incidents of non-compliance with section 

259.4(b)(6). Furthermore, while United acknowledges it failed to make an announcement

while flight 881 was at the gate with the door open, United points out that the aircraft was 

at the gate with the doors open for only 45 minutes and that United failed to make the 

announcement mandated by section 259.4(b)(6) only once. 

In connection with its alleged violation of Part 244, United emphasizes its commitment to 

providing BTS with the most accurate information possible. United notes that the 

violation at issue does not imply a failure by United to disclose a reportable delay under 

Part 244, and, according to the carrier, that the decision to report ran counter to United’s 

own interests and in fact illustrates United’s commitment to regulatory compliance.

Decision

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

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

United have reached a settlement of this matter in order to avoid litigation. Without 

admitting or denying the violations described above, United consents to the issuance of 

this order to cease and desist from future violations of 14 CFR 259.4(b)(6), 14 CFR 244.3

and 49 U.S.C. §§ 41708 and 41712, and to the assessment of $130,000 in compromise of 

potential civil penalties otherwise due and payable pursuant to 49 U.S.C. § 46301.

The compromise assessment is appropriate considering the nature and extent of the 

violations described herein and serves the public interest. It establishes a strong deterrent 

to future similar unlawful practices by United and other carriers.

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

1. Based on the above information, we approve this settlement and the provisions of this 

order as being in the public interest;

2. We find that United Air Lines, Inc., violated 14 CFR 259.4 by failing to properly 

notify passengers that they had the opportunity to deplane the aircraft that was at the 

gate with the door open;

3. We find that United Air Lines, Inc., violated 14 CFR 244.3 by including UA 881 in 

its July 2012 BTS Tarmac Delay report; 

4. We find that by engaging in the conduct described in ordering paragraph 2, above, 

United Air Lines, Inc., engaged in unfair and deceptive practices and unfair methods 

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

5. We find that by engaging in the conduct described in ordering paragraph 3, above, 

United Air Lines, Inc., violated 49 U.S.C. § 41708.

6. We order United Air Lines, Inc., and all other entities owned or controlled by, or 

under common ownership and control with United Air Lines, Inc., its successors, 

affiliates, and assignees, to cease and desist from further violations of 14 CFR 259.4, 

14 CFR 244.3 and 49 U.S.C. §§ 41708 and 41712;

7. United Air Lines, Inc., is assessed $130,000 in compromise of civil penalties that 

might otherwise be assessed for the violations described above. Of that amount, 

$40,000 shall be due and payable within 30 days of the date of issuance of this order; 

and $40,000 shall be credited to United Air Lines, Inc., for refunds and travel 

vouchers and frequent flyer mileage awards that may be used to acquire 

transportation on United Air Lines, Inc., flights that were provided to passengers of 

Flight 881. The remaining amount will become due and payable, if within one year of 

the date of the issuance of this order, United Air Lines, Inc., violates the order’s cease 

and desist provisions or fails to comply with the order’s payment provisions, in which 

case United Air Lines, Inc., may be subject to additional enforcement action for 

violation of this order; and

8. We order United Air Lines, Inc., to pay the penalty through Pay.gov to the account of 

the U.S. Treasury. Payments 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 Air Lines, 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.
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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