Order 2014-10-23

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY

WASHINGTON, D.C.

Issued by the Department of Transportation

On the 28th day of October, 2014

Air Canada rouge Served: October 28, 2014 

Violations of 14 CFR Part 259 and 

 49 U.S.C. § 41712 Docket OST-2014-0001

CONSENT ORDER

This consent order concerns violations by Air Canada rouge (Rouge) of 14 CFR Part 259 

and 49 U.S.C. § 41712. 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, (2) would provide customers with food and water within two 

hours after the aircraft left the gate in the case of a tarmac delay, and (3) would have 

sufficient resources to implement the carrier’s tarmac delay contingency plan. This order 

directs Rouge to cease and desist from future similar violations of 14 CFR Part 259 and 

49 U.S.C. § 41712 and assesses the carrier $90,000 in civil penalties.

Applicable Law

Pursuant to section 259.4 of the Department’s rules, covered carriers, which includes

foreign air carriers conducting scheduled passenger service or public charter service to 

and from the U.S.1 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 

 1 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.
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tarmac delays at each large, medium, small, and non-hub U.S. airport. 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 securityrelated 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. 

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. 

Additionally, section 259.4(b)(7) requires covered carriers to ensure that they have 

sufficient resources to implement their plan. A 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. 

Facts and Conclusions

Rouge is a wholly owned subsidiary of Air Canada and is a foreign air carrier as defined 

by 49 U.S.C. § 40102(a)(21).

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 Rouge, Air Canada’s leisure airline, began operating to 

and from the U.S. in November of 2013, and operates routes between Canada and four

destinations in the U.S. For example, Rouge operates scheduled service from Orlando 

International Airport (MCO), a large hub airport, to Toronto Pearson International 

Airport (YYZ) using at least one aircraft having a design seating capacity of more than 

30 passenger seats. Air Canada’s contingency plan, which was adopted by Rouge, states

that the carrier will not permit an aircraft to remain on the tarmac at a U.S. airport for 

more than four hours. With respect to the provision of food and water, the plan states 

that the carrier will provide passengers with adequate food and potable water no later 

than two hours after the aircraft leaves the gate (in the case of departure) or touches down 

(in the case of arrival and diversions) if the aircraft remains on the tarmac, unless the 

pilot-in-command determines that safety or security considerations preclude such service. 

Finally, the plan states that the carrier has taken steps to ensure sufficient resources are 

available to implement its plan.

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

Office) found that Rouge flight AC 1861 diverted to Buffalo Niagara International 

 2 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.”
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Airport (BUF) at 10:09 p.m. on January 11, 2014, while in route to Toronto Pearson 

International Airport (YYZ). Flight AC 1861 diverted to BUF due to freezing rain and 

fog in the Toronto area. Because Rouge expected to quickly refuel and depart from BUF, 

the carrier did not seek a gate or another disembarkation point to deplane passengers until 

1:25 a.m. At 2:36 a.m., flight AC 1861 was assigned a gate and passengers were 

afforded the opportunity to deplane at 2:50 a.m., 4 hours and thirty-one minutes into the 

delay. Although all passengers were provided with beverages throughout the delay, and 

some of its passengers were provided with snacks, Rouge did not have adequate snacks 

on board the aircraft to provide to all of its passengers during the delay. 

Based on the facts described above, the Enforcement Office has concluded that Rouge

failed to provide passengers with an opportunity to deplane before the tarmac delay 

exceeded four hours. Furthermore, The Enforcement Office has found that Rouge did not 

provide food to all of its passengers within two hours after the aircraft arrived at BUF and 

Rouge did not have sufficient resources available to implement its contingency plan as 

the carrier did not have adequate snacks on board to distribute to passengers during the 

delay. Rouge’s failure to adhere to the terms of its contingency plan in this regard

violated sections 259.4(b)(2), 259.4(b)(3), and 259.4(b)(7) and 49 U.S.C. § 41712. 

Mitigation

In mitigation, Rouge states that there were numerous flights diverted to BUF on the 

evening of January 11, and that congestion at BUF and the large volume of delays and 

diversions contributed to Rouge’s inability to deplane its passengers in less than four hours. 

Furthermore, Rouge notes that many (but not all) of its passengers did receive a snack 

during the course of the delay. The carrier states that it supplied food items from its supply 

of “buy on board” snacks, the supply of which varies based on consumer purchases on a 

particular flight leg (or preceding flight legs). 

Rouge states that it takes its regulatory obligation seriously and it has examined in detail 

the steps required to help ensure that an incident like this does not occur again. The carrier 

explains that since this event, it has revised its procedures to ensure closer coordination 

between the pilot of a delayed aircraft and Systems Operation Control (SOC). The carrier 

also states that it has decided to stock each of its trans-border services with a dedicated 

supply of snacks to be opened in the event of a delay, to ensure availability for each 

passenger. The carrier further notes that it provided sandwiches and other food items as 

soon as its passengers were permitted to deplane.

Decision

We view seriously Rouge’s violation of 14 CFR Part 259 and 

49 U.S.C. § 41712. Accordingly, after carefully considering all the facts in this case, 

including those set forth above, the Enforcement Office believes that enforcement action 

is warranted. 
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In order to avoid litigation, Rouge has agreed to settle this matter with the Enforcement 

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

future similar violations of 14 CFR Part 259 and 49 U.S.C. § 41712, and assesses

$90,000 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 Rouge 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 Air Canada rouge, 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 Air Canada rouge, 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 touched down in the 

case of arrival; 

4. We find that Air Canada rouge violated section 259.4(b)(7) by failing to have 

sufficient resources available to implement its tarmac delay plan;

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

4, above, Air Canada rouge engaged in unfair and deceptive practices and unfair 

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

6. We order Air Canada rouge, and all other entities owned or controlled by Air 

Canada rouge, its successors, affiliates, and assigns, to cease and desist from further 

violations of 14 CFR Part 259 and 49 U.S.C. § 41712; 

7. We assess Air Canada rouge $90,000 in civil penalties in compromise of civil 

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

paragraphs 2 through 5 above. Of this total penalty amount, $45,000 shall be due 

and payable within 30 days of the 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, Air Canada rouge violates this order’s cease and 

desist or payment provision, in which case Air Canada rouge my become subject to 

additional enforcement action for any violation of the order; and 
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8. We order Air Canada rouge to 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 Air Canada rouge

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:

BLANE A. WORKIE 

Acting Assistant General Counsel for 

 Aviation Enforcement and Proceedings

An electronic version of this document is available at

www.regulatons.gov