BEFORE THE

FEDERAL AVIATION ADMINISTRATION

WASHINGTON, D.C.

Flightcrew Member Duty and Rest Requirements

Docket No. FAA-2009-1093

MOTION TO REOPEN RECORD

Communications with respect to this filing shall be made to:

Stephen A. Alterman

President 

Cargo Airline Association

1620 L Street, NW

Suite 610

Washington, DC 20036

202-293-1030

202-293-4377 (fax)

salterman@cargoair.org

June 21, 2011
BEFORE THE

FEDERAL AVIATION ADMINISTRATION

WASHINGTON, D.C.

Flightcrew Member Duty and Rest Requirements

Docket No. FAA-2009-1093

MOTION TO REOPEN RECORD

The Cargo Airline Association (hereinafter “the Association”), the nationwide 

organization representing members of the United States all-cargo air carrier industry, 

respectfully requests that the Federal Aviation Administration reopen the record in the abovecaptioned proceeding to take into account material developments in the area of fatigue science 

that have occurred subsequent to the filing of Comments on November 15, 2010 and that have 

significant bearing on the FAA’s proposed rules.1

 CAA submits that for the reasons stated 

below, reopening the record is necessary to take into consideration these new developments 

before any rule can be finalized.

 

1 This pleading is filed pursuant to authority provided in 14 C.F.R. § 302.11. 
2

In support of this request, the Association states as follows:

On January 18, 2011, President Barack Obama issued Executive Order 13563 detailing 

general principles of regulation that agencies must follow in issuing rules under their various 

jurisdictions. One of the very first points made in this Executive Order is that “Our regulatory 

system . . . must be based on the best available science.” In this case, the “best available 

science” not only has not been applied in the proposed crew member duty and rest 

requirements, what little science exists has largely been ignored as detailed in the numerous 

comments filed with the FAA on November 15, 2010. Moreover, recent events have served to 

underscore just how undeveloped fatigue science is. Newly-emerging scientific evidence 

should be placed in the record and considered before any Final Rule is issued.

First, as requested by the FAA in response to a statutory mandate contained in The 

Airline Safety and Federal Aviation Administration (FAA) Extension Act of 2010 (H.R. 5900), the 

National Academy of Sciences (NAS) is conducting a study on the effects of commuting on flight 

crewmember fatigue. The NAS-constituted committee, consisting of volunteer members from 

the fatigue research and scientific community, has had several meetings, but has not yet issued 

a final report detailing its findings. The final published report is scheduled to be available by 

November 2011. Since commuting was the major impetus for the FAA rule and is a major 

fatigue factor, it is absolutely necessary that the NAS report be considered, with the 

opportunity for public comment, before any final rule is issued. The Docket should therefore be 

held open to receive this report, and the final rule should not be issued until the report can be 

evaluated.
3

Second, on June 6-7, 2011, MITRE Corporation convened a seminar entitled: Aviation 

Fatigue Research Roadmap: A Framework for Partnership to bring together all parties to the 

aviation fatigue debate in an attempt to advance the understanding of the role of fatigue in the 

aviation environment. In addition to a number of presentations by experts in various areas of 

both fatigue and aviation operations, MITRE established five new Working Groups to continue 

exploring the fatigue issue. 

These Working Groups were charged with studying:

Scheduled Operations: Focus on research pertaining to scheduled domestic and 

international, long-haul and short-haul/multi-segment operations. 

On-Demand Operations: Focus on operations that occur in the civilian and military 

environments, including EMS and other medical transport flights, firefighting flights, 

search-and-rescue flights, charter flights and wartime flight operations.

Shift Work: Focus on fatigue related to traditional shift work environments, including 

aircraft maintenance, air traffic control, dispatch/planning and technical operations.

Tools: Focus on developing guidance for the use of objective and subjective measures 

of fatigue in support of fatigue modeling and fatigue risk mitigation.

Modeling: Focus on developing a Fatigue Risk Management System (FRMS), including 

methods of assessing risk, education and training, monitoring and mitigating human 

fatigue risk. 
4

The only conclusion that can be drawn from the ongoing NAS study on crew member 

commuting and the establishment of the MITRE Working Groups is that, with respect to the 

science of fatigue in the aviation workplace, much more scientific information needs to be 

known before there is a adequate basis for the FAA to finalize a major rewrite of longstanding 

existing regulations – especially where, as here, the safety benefits of the proposed rule are 

minimal and the costs of the rule greatly exceed the benefits. As CAA previously pointed out, 

every dollar of benefit will produce a staggering $3,800 in costs to the all-cargo airlines. In 

order to comply with Executive Order 13563’s mandate that new regulations be based on the 

best available science, at the least, the FAA must await the conclusions of the commuting study 

and the MITRE Working Groups and take those conclusions into account in any new rule. 

Third, the Administrator of the Office of Management and Budget’s Office of 

Information and Regulatory Affairs, Cass Sunstein, wrote in the Wall Street Journal on May 25, 

2011 that “[a] 21st-century regulatory system must promote economic growth, innovation and 

job creation while also protecting public health and welfare.” He further states that “Our goal 

is to change the regulatory culture of Washington by constantly asking what's working and 

what isn't. To achieve that goal, we need to obtain real-world evidence and data.” Mr. 

Sunstein correctly insists on rules that are “pragmatic”, “evidence-based” and “cost-effective”. 

The FAA’s proposed rule is not based on “real-world evidence and data” and lacks pragmatism 

and cost-effectiveness. Before the rule can be finalized, it needs to be informed by the 

scientific information that will be product of the NAS and MITRE initiatives.
5

Accordingly, the Cargo Airline Association respectfully requests that the record in this 

proceeding be reopened to await the scientific analyses underway and that any final rule take 

into account the findings presented.

Respectfully submitted,

Stephen A. Alterman2

President 

Cargo Airline Association

1620 L Street, NW

Suite 610

Washington, DC 20036

202-293-1030

202-293-4377 (fax)

salterman@cargoair.org

 

2 Pursuant to Title 18 United States Code Section 1001, I, Stephen A. Alterman, in my individual capacity and as the authorized representative 

of the pleader, have not in any manner knowingly and willfully falsified, concealed or failed to disclose any material fact or made any false, 

fictitious, or fraudulent statement or knowingly used any documents which contain such statements in connection with the preparation, filing 

or prosecution of the pleading. I understand that an individual who is found to have violated the provisions of 18 U.S.C. Section 1001 shall be 

fined or imprisoned not more than five years, or both.