Order 2012-12-18

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY

WASHINGTON, D.C.

Issued by the Department of Transportation

On the Thirty-First day of December, 2012

Copa Airlines, Inc. Served December 31, 2012 

Violations of 14 CFR Parts 259 and 244 and 

 49 U.S.C. §§ 41712 and 41708 Docket DOT-OST-2012-0002

CONSENT ORDER

This consent order concerns violations by Copa Airlines, Inc., (Copa) of 

14 CFR Parts 259 and 244 and 49 U.S.C. §§ 41712 and 41708. Specifically, the carrier 

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

the carrier (1) would not allow an aircraft to remain on the tarmac for more than four 

hours before allowing passengers an opportunity to deplane, and (2) would provide 

customers with food and water within two hours after the aircraft left the gate in the case 

of a tarmac delay. Moreover, Copa failed to include certain required assurances in its 

contingency plan for lengthy tarmac delays and failed to file the required on-time 

performance information for a lengthy tarmac delay with the Department of 

Transportation (Department). This order directs Copa to cease and desist from future 

similar violations of 14 CFR Parts 259 and 244 and 49 U.S.C. §§ 41712 and 41708 and 

assesses the carrier $150,000 in civil penalties.

Applicable Law

On April 25, 2011, the Department issued rules1 designed to enhance protections for air 

travel consumers that, among other things, require “covered carriers,” which include 

 1 76 Fed. Reg. 23110 (April 25, 2011).
2

foreign air carriers that operate scheduled passenger service to or from the United States 

with at least one aircraft with a design capacity of 30 or more passenger seats, to adopt 

and adhere to contingency plans for lengthy tarmac delays2 and customer service plans. 

These rules also require covered carriers to file data with the Department regarding 

lengthy tarmac delays. The effective date for these rules was August 23, 2011.

I. Contingency Plan for Lengthy Tarmac Delays

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

that operate scheduled passenger service or public charter service to and from the U.S.3

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, medium, small, and non-hub U.S. airport at which they operate scheduled or public 

charter air service. The rule requires covered carriers to provide ten assurances that are 

specified in the rule at section 259.4(b)(1)-(10). Under section 259.6, each covered 

foreign carrier that has a website marketed to U.S. consumers, and that is required to 

adopt a contingency plan for lengthy tarmac delays, is required to post its current 

contingency plan on its website in an easily-accessible form.

For an international flight, which is at issue here, section 259.4(b)(2) requires covered 

carriers to provide an assurance that they will not permit an aircraft to remain on the 

tarmac for more than four hours 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 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. Furthermore, section 259.4(b)(3) requires 

covered carriers, for all flights delayed on the tarmac, to provide adequate food and

potable 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. An air carrier’s 

failure to comply with the assurances required by Part 259 and contained in the carrier’s

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

within the meaning of 49 U.S.C. § 41712. 

 

2 On April 25, 2011, the Department issued new rules that expanded the requirements of what must be

included in contingency plans for lengthy tarmac delays. See 76 Fed. Reg. 23110 (April 25, 2011).

 

3 According to 14 CFR 259.2, Part 259 does not apply to foreign carrier charters that operate to and from 

the United States if no new passengers are picked up in the United States.
3

II. Reporting Tarmac Delay Data

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 on a monthly basis. 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.4 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, therefore, that ATCR 

data be accurate. Violations of section 244.3 also constitute violations of 

49 U.S.C. § 41708.

Facts and Conclusions

Copa is a foreign air carrier as defined by 49 U.S.C. § 40102(a)(21)5 that operates 

scheduled service from John F. Kennedy International Airport (JFK), a large hub airport, 

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

seats. Copa’s contingency plan states that for the carrier’s international flights to and 

from the U.S., “Copa Airlines will not allow an aircraft to remain on the tarmac at a U.S. 

airport for more than four hours before providing passengers an opportunity to get off 

board.” Copa further states that the exceptions to this policy are, “if the pilot in 

command determines that there is a safety related or security related reason, and the 

aircraft can’t leave its position on the tarmac to let passengers deplane” or if air traffic 

control “advises the pilot in command that returning to the gate to let passengers deplane 

would disrupt airport operations.” Copa’s plan also states that it will provide customers 

with “snack food and drinking water no later than two hours after the aircraft leaves the 

gate” in the case of departure unless the pilot in command determines that there is a 

safety or security issue with providing such service.

An investigation by the Office of Aviation Enforcement and Proceedings (Enforcement 

Office) revealed that Copa flight 831 was scheduled to depart JFK on June 22, 2012, at 

3:05pm EDT, and arrive at Panama Tocumen Airport (PTY) at 8:38pm EDT. However, 

inclement weather conditions occurred in the New York metropolitan area which led to

congestion and traffic on the tarmac and runways at JFK. Flight 831 pushed back from 

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

5 49 U.S.C. § 40102(a)(21) defines a foreign air carrier as “a person, not a citizen of the United States, 

undertaking by any means, directly or indirectly, to provide foreign air transportation.”
4

the gate at 3:50pm EDT. The flight crew began serving beverages at 4:50pm EDT. As a 

result of the inclement weather, the aircraft sat on the tarmac for one hour and fifteen 

minutes before the captain of flight 831 determined that refueling would be required to 

meet the flight plan. At 5:30pm EDT, the captain relocated the aircraft to a remote 

position on the tarmac to begin refueling, which continued until 6:45pm EDT.

Passengers were kept aboard the aircraft during this time and were neither given the 

opportunity to deplane nor provided with food service. 

After refueling was complete, the captain, not having received any information from Air 

Traffic Control of further delays, positioned the aircraft on the taxiway to await clearance 

for take-off. Passengers were offered meals at 7:30pm EDT while awaiting clearance for 

take-off. 

The captain was unable to confirm a possible departure time with Air Traffic Control so,

as the crew aboard the aircraft was close to timing out, the captain decided to postpone 

the flight. Passengers were given the opportunity to deplane at 9:24pm EDT, five hours 

and thirty-four minutes after the aircraft left the gate. Flight 831 departed JFK at 5:28am 

EDT on June 23, 2012, and arrived at PTY at 10:10am EDT. 

In summary, the Enforcement Office found that Copa failed to provide passengers with 

an opportunity to deplane before the tarmac delay exceeded four hours and that Copa 

made no attempt to provide snack food to passengers within two hours after flight 831 

left the gate. Copa’s failure to adhere to the terms of its contingency plan in this regard

violated sections 259.4(b)(2) and 259.4(b)(3) and 49 U.S.C. § 41712. 

In addition, as part of the investigation into this incident, a review of Copa’s contingency 

plan for lengthy tarmac delays, posted on its website, revealed that the required 

assurances specified in sections 259.4(b)(6)-(10) were absent from the contents of its 

plan. Pursuant to section 259.4(b)(6), a carrier must provide an assurance that passengers 

on a delayed flight on the tarmac will receive notifications 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. Section 259.4(b)(7) requires a carrier 

to provide an assurance that it will maintain sufficient resources to implement the plan. 

Finally, sections 259.4(b)(8)-(10) state that a carrier must provide assurance that its 

contingency plan for lengthy tarmac delays has been coordinated with airport authorities, 

U.S. Customs and Border Protection, and the Transportation Security Administration at 

each large U.S. hub airport, medium hub airport, small hub airport and non-hub airport 

that the carrier serves, as well as its regular U.S. diversion airports that the carrier 

regularly uses for its international flights. Copa’s failure to adopt all of the required 

assurances in its contingency plan for lengthy tarmac delays is a violation of 14 CFR 

259.4(b) and 49 U.S.C. § 41712. 

As a final matter, Copa also failed to file BTS Form 244 “Tarmac Delay Report” with the 

Department’s Bureau of Transportation Statistics’ Office of Airline Information covering 
5

flight 831. The Department only learned of the tarmac delay experienced by flight 831 

after reviewing two complaints it received from consumers aboard flight 831 alleging that 

they had experienced lengthy tarmac delays and that Copa had failed to provide food 

until several hours into the tarmac delay. After the Enforcement Office initiated an 

investigation of the circumstances surrounding the lengthy tarmac delay, the Enforcement 

Office discovered that Copa had failed to file the required report with the Department. 

Had it not been for the consumer complaints the Department received, Copa may have 

never provided information regarding the tarmac delay experienced by flight 831 as 

required by Part 244. Copa’s failure to file its tarmac delay report for flight 831 is a 

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

Mitigation

In mitigation, Copa states that it takes very seriously its responsibility to comply with all 

of the Department’s requirements, including the Department’s tarmac delay rules. Copa 

states that it has an excellent record overall of compliance with DOT regulations, and 

regrets the unfortunate failures detailed in this order. Copa concedes that it failed to 

strictly comply with the requirements of the Department’s tarmac delay rules in 

connection with flight 831 on June 22, 2012, and failed to timely file the related tarmac 

delay report. Copa, however, points out that the temperature in the aircraft was at all 

times maintained at comfortable levels, lavatories were working and accessible to 

passengers, and Copa crew members acted in a very courteous and professional manner. 

In addition, Copa states that where possible, it provided ground transportation and meal 

vouchers to affected passengers once they deplaned. 

Copa also states that upon being made aware of its failure to strictly comply with the 

Department’s tarmac delay rules as outlined in this order, the airline undertook 

immediate and comprehensive steps to ensure strict compliance in the future. Copa states 

that the steps it has taken include the following: (i) updating its crew and ground 

personnel training and operational manuals and procedures; (ii) formulating internal 

procedures to ensure compliance with reporting requirements in the future; (iii) working 

with airport authorities, suppliers and local employees at relevant airports to ensure that 

adequate sources of snacks and drinks will be available in case of any future events; (iv) 

updating the Copa website to comply in all respects with the informational requirements 

of Part 259; and (v) stressing the importance of compliance with the Department’s tarmac 

delay rules at local, regional and pan-regional meetings of its operations staff and senior 

management.

Decision

We view seriously Copa’s violation of 14 CFR Parts 259 and 244 and 

49 U.S.C. §§ 41712 and 41708. 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 Copa failed to 
6

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

would not permit an aircraft to remain on the tarmac for more than four hours without 

providing passengers an opportunity to deplane and that passengers would be provided 

with food no later than two hours after the aircraft left the gate. Copa forced a total of 

143 passengers on flight 831 to remain on the tarmac for more than five hours without the 

opportunity to deplane. In addition, Copa forced those passengers to remain on the plane 

for nearly four hours before providing those passengers with food. Copa also failed to 

include all of the assurances required by section 259.4 in its contingency plan for lengthy 

tarmac delays. Finally, Copa failed to file with the Department BTS Form 244 setting 

forth the required information surrounding the tarmac delay experienced by flight 831.

In order to avoid litigation, Copa has agreed to settle this matter with the Enforcement 

Office and enter into this consent order, which directs Copa to cease and desist from 

future similar violations of 14 CFR Parts 259 and 244 and 49 U.S.C. §§ 41712 and 

41708, and assesses $150,000 in compromise of potential civil penalties otherwise due 

and payable. 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 Copa, and other 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 Copa Airlines, Inc., violated 14 CFR 259.4(b)(2) by failing to adhere 

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

would not permit an aircraft to remain on the tarmac at a U.S. airport for more than 

four hours without providing passengers an opportunity to deplane;

3. We find that Copa Airlines, Inc., violated 14 CFR 259.4(b)(3) by failing to adhere 

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

would provide food no later than two hours after the aircraft left the gate in the case 

of departure; 

4. We find that Copa Airlines, Inc., violated section 259.4(b) by failing to include all 

of the required assurances in its contingency plan for lengthy tarmac delays;

5. We find that by engaging in the conduct described in ordering paragraphs 2, 3 and 

4, above, Copa Airlines, Inc., engaged in unfair and deceptive practices and unfair 

methods of competition in violation of 49 U.S.C. § 41712;
7

6. We find that Copa Airlines, Inc., violated 14 CFR Part 244 by failing to file a BTS 

Form 244 with the Department setting forth the information surrounding the tarmac 

delay experienced by flight 831; 

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

paragraph 6, above, Copa Airlines, Inc., violated 49 U.S.C. § 41708;

8. We order Copa Airlines, Inc., and all other entities owned or controlled by, or under 

common ownership and control with Copa Airlines, Inc., its successors, affiliates, 

and assigns, to cease and desist from further violations of 14 CFR Parts 259 and 

244 and 49 U.S.C. §§ 41712 and 41708; 

9. We assess Copa Airlines, Inc., $150,000 in civil penalties in compromise of civil 

penalties that might otherwise be assessed for the violations found in ordering 

paragraphs 2 through 7 above. Of this total penalty amount, $75,000 shall be due 

and payable within 30 days of the date of issuance of this order. The remaining 

portion of any unpaid civil penalty shall become immediately due and payable if, 

within one year of the date of this order, Copa Airlines, Inc., violates this order’s 

cease and desist or payment provision, in which case Copa Airlines, Inc., may 

become subject to additional enforcement action for any violation of the order; and

10. We order Copa Airlines, Inc., pay the penalty through Pay.gov to the account of the 

U.S. Treasury in accordance with the instructions contained in the Attachment to 

this order. Failure to pay the penalty as ordered shall subject Copa 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.regulatons.gov