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 an d 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

wer e stated to be 90

- 120 minutes by FAA. At the time of the incident

, approximately 25 aircraft we re 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 t he 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

B ecause 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 del ays 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 tarm ac 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 securi ty

- 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

passeng ers 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 “signific antly affect airport operations” t hat 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 individua l 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

- the

board waiver of the rule or a determination that enforcement is inappro priate. The airport was already operating in a delay environment induced by ATC ground delay and ground stop program s due to

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

hour. No aircraft coul d 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 directio n 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 fait h 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 provi sion 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 Southw est Airlines flight 345. Alternatively, A4A requests a determination that the Department will not enforce this provision with respect to all such delays.

Respectfully submitted,

Da vid 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