August 8, 2013

Samuel Podberesky

Assistant General Counsel

Aviation Enforcement & Proceedings 

1200 New Jersey Avenue, SE 

Room W98-304 

Washington, DC 20590

Re: Request for Limited Waiver of 14 CFR § 259.4 Related to Runway Closure at LaGuardia

International Airport on July 22, 2013

Dear Mr. Podberesky:

This letter requests a waiver of the tarmac delay requirement of 14 CFR § 259.4(b)(1) as to all flights 

delayed on the tarmac at LaGuardia International Airport (“LGA”) on July 22, 2014 due to the incident 

involving Southwest Airlines flight 345 on landing. Alternatively, we request an enforcement 

determination that tarmac delays over three hours affected by this incident are excused due to the 

associated safety concerns, including the decision by the airport to close the airport and hold all ground 

movement. 

Background

On July 22, 2013, Southwest Airlines flight 345 landed on runway 4 at approximately 5:45 pm and 

suffered a collapsed nose gear. The aircraft became disabled on the edge of the runway and emergency 

vehicles, including fire and rescue and police cars, were deployed to the aircraft. The airplane’s 

emergency chutes had deployed to evacuate passengers. 

The airport operator immediately closed the airport to further traffic and halted all ground movement. This 

condition existed for over an hour, until approximately 7:20 pm. Prior to that point, at approximately 6:45 

pm, LGA personnel emailed air carriers that the airport was closed, that aircraft would begin to taxi to 

gates as soon as feasible, and advising carriers “do not worry about 3-hour delay legal ramifications.”

Prior to the incident occurring, ground delay programs and ground stops were in effect at LGA causing 

significant departure delays. Average departure delays were in the 88 minute range according to FAA 

Ops Spec data. There was significant convective weather impacting routes into and out of LGA on that 

day. At 5:50 pm, the airport was closed to all traffic due to the accident. Departure delays at that time 

were stated to be 90-120 minutes by FAA. At the time of the incident, approximately 25 aircraft were on 

the taxiways, and taxi routes were limited due to numerous taxiway closures associated with the incident. 

Following the incident, pilots requested return to gate authorization from LGA Air Traffic Control (“ATC”)

Tower but were not cleared to taxi. Carriers also communicated with the FAA ATC System Command 

Center (“Command Center”) Tactical Customer Advocate (“TCA”) web exchange seeking assistance to 

return aircraft to the gate. The TCA advised carriers that the Command Center took the view that that 

“the clock was stopped from the time the movement was stopped until the time movement resumed.” 

FAA records show there were 21 aircraft arrivals that diverted to other airports, 188 departure 

cancellations, and 22 aircraft that returned to the gate, when they were able, as a result of this incident. 
Samuel Podberesky

August 8, 2013

Page 2

Because of the movement of ground emergency vehicles, and then the subsequent redirecting of aircraft 

to gates or to the departure cue, deplaning passengers from aircraft on the taxiway was not permitted

because of safety considerations. 

As a result of this incident, including the prior ground delay program, several aircraft incurred tarmac 

delays longer than three hours. The delays we are aware of are listed on Attachment A. It is possible 

other aircraft incurred similar delays.

14 CFR § 259.4(b)(1)

The “Tarmac Delay Rule” is embedded in 14 CFR § 259.4(b) and prohibits aircraft in domestic operations 

from remaining on the tarmac for more than three hours before allowing passengers to deplane, and four 

hours for aircraft in international operations. The rule expressly contemplates exceptions, however, when 

(i) “the pilot-in-command determines there is a safety-related or security-related reason...why the aircraft 

cannot leave its position on the tarmac to deplane passengers;” or “(ii) “[a]ir 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.” 14 CFR § 259(b)(1)(i)-(ii).

The preamble to the rule notes the following: “operational and safety-related concerns, such as ATC

related concerns or an inability to return to the gate without delaying other aircraft should be taken into

consideration. Thus, we have also included an exception for safety, security, or instances where Air 

Traffic Control advises the pilot-in-command that returning to the gate or permitting passengers to 

disembark elsewhere would significantly disrupt airport operations.” 74 Fed. Reg. 64988 (Dec. 30, 2009).

Additionally, the April 28, 2010 FAQs further discuss the Department’s perspective on an ATC-related 

tarmac delay that could “significantly affect airport operations” that considers the possibility of significant 

disruptions including taxiway/runway closures.1

A4A’s Waiver Request

A4A recognizes that under normal circumstances the Department would investigate incidents of potential 

rule violations on an individual basis and that carrier would be expected to make the case individually why 

a rule violation did not occur. This instance, however, presents unique factors that support an across-theboard waiver of the rule or a determination that enforcement is inappropriate. The airport was already 

operating in a delay environment induced by ATC ground delay and ground stop programs due to 

convective weather, with aircraft lined up on the taxiway, when the airport was shut down for well over an 

hour. No aircraft could move to depart from or return to a gate and deplaning passengers was not 

possible because the movement of busses and air stairs was not permitted. Aircraft that requested 

clearance to return to the gate were denied that clearance. When aircraft movement resumed, it was an 

extremely challenging ground environment and aircraft could move only at the direction and discretion of 

ATC ground control. Even airport and ATC staff believed that the conditions warranted relief from the 

Tarmac Delay Rule. A4A recognizes that only DOT can grant such relief, but it is telling that both airport 

and FAA staff in good faith expressed the view that the rule was suspended given the circumstances. 

Finally, this request seeks a limited waiver of the three and four hour tarmac delay requirements of 14 

CFR § 259.4(b)(1) and (2) only. It does not seek relief from any other provision of § 259.4. 

 

1

See DOT FAQ on Consumer Protection Final Rule I, page 6, found at 

http://www.dot.gov/sites/dot.dev/files/docs/FAQ_on_Consumer_Rule_April_28_2010.pdf
Samuel Podberesky

August 8, 2013

Page 3

For all of the reasons set forth above, A4A requests the Department to waive the deplaning of passenger

requirements in these provisions for all aircraft delayed at LGA on July 22, 2013 due to the incident 

involving Southwest Airlines flight 345. Alternatively, A4A requests a determination that the Department 

will not enforce this provision with respect to all such delays.

Respectfully submitted,

David A. Berg
Samuel Podberesky

August 8, 2013

Page 4

ATTACHMENT A

CPZ5845 - 217 minutes 

DAL1619 - 206 minutes 

CPZ5759 – 202 minutes 

CHQ6035 - 184 minutes 

ASQ5432 – 182 minutes

AA1467 – 191 minutes

AC717- 191 minutes

US1899 – 210 minutes

US2179 – 241 minutes

US3723 – 195 minutes

US3996 – 234 minutes

UA 1542 - 181 minutes

UA 745 - 226 minutes