> ![](media/image1.png){width="0.4625in" height="0.4625in"}
>
> U.S. Department
>
> of Transportation
>
> **Federal Aviation**
>
> **Administration**

April 29, 2005

Candace K. Kolander

Coordinator, Air Safety, Health and Security

Association of Flight Attendants

1275 K Street, N.W.

Washington, D.C. 20005-4006

Dear Mrs. Kolander:

This letter responds to your March 29, 2004 letter requesting
confirmation of the Agency's view on various flight attendant rest
issues, namely:

1)  That the definition of rest, as previously defined by the FAA, also
    applies to flight attendants.

2)  That the FAA policy regarding the "one phone call exception" also
    applies to flight attendants.

3)  That a flight attendant may also submit a "do not call" letter of
    her/his desire not to be contacted while on a rest period.

**Question No. 1: Whether the definition of rest, as previously defined
by the FAA, also applies to flight attendants.**

The agency has previously said that the [nature]{.underline} of rest is
the same, regardless of the operation or the subpart under which a
flight assignment is performed. Rest must satisfy three conditions in
order to qualify as a rest period: It must be 1) a continuous period of
time, 2) determined prospectively, and 3) during which the crewmember is
free from all restraint by the certificate holder, including freedom
from present responsibility from work should the occasion arise. *See*
Oct 29. 2002 Letter to James W. Johnson, from Donald P. Byrne, Assistant
Chief Counsel, Regulations Division \[No. 2003-6\] (copy enclosed);
August 5, 2004 Letter to Don Treichler, from James W. Whitlow, Deputy
Chief Counsel (copy enclosed); and Dec. 9, 1999 Letter to James R.
Knight, from Donald P. Byrne, Assistant Chief Counsel \[2001-1\] (copy
enclosed).

Under section 121.467(a) of the flight attendant duty period limitations
and rest requirements regulations, rest period is defined as "the period
free of all restraint or duty for a certificate holder conducting
domestic, flag, or supplemental operations and free of all
responsibility for work or duty should the occasion arise." The agency
has not previously addressed, via a letter of interpretation, whether
this definition of rest is similar to the definition of rest in the
cited interpretations.

As written, the definition of rest period in section 121.467(a) appears
to focus on criterion number 3 of the nature of rest (i.e., a period
"during which a crewmember is free from all restraint by the certificate
holder, including freedom from present responsibility for work should
the occasion arise"). The regulatory history of section 121.467 provides
insight into the FAA drafters' intent about the nature of the section
121.467(a) rest period. The Preamble to the final rule notes that "this
final rule requires that a flight attendant 'be given' a scheduled rest
period. This provision makes the operator responsible for ensuring that
a flight attendant is scheduled for and receives the scheduled rest
period. The FAA recognizes that how the flight attendant utilizes this
rest period cannot be regulated. Requiring operators to schedule rest
periods ensures that flight attendants [know in advance when rest
periods will occur]{.underline} and that [they will be of a specified
duration."]{.underline}[^1] (Emphasis added).

We believe that the cited regulatory history supports the view that the
FAA drafters' intended that a flight attendant's rest period satisfy
[not only]{.underline} criterion number 3 of the [nature]{.underline} of
rest (a period "during which the crewmember is free from all restraint
by the certificate holder, including freedom from present responsibility
for work should the occasion arise), [but also]{.underline} criteria
numbers 1 and 2 ("a continuous period of time" that is "determined
prospectively"). Thus, we conclude that the Agency's definition of rest
stated, in various legal interpretations, also applies to flight
attendants.

**Questions Nos. 2 and 3: Whether the FAA policy regarding the "one
phone call exception" also applies to flight attendants and whether a
flight attendant may also submit a "do not call" letter of her/his
desire not to be contacted while on a rest period.**

In our November 7, 2003 letter, we responded to the Air Line Pilots
Association's (ALPA's) question whether a carrier is limited to one
phone call or can continue calling until they actually contact and speak
to the pilot. We confirmed the continued existence of the FAA policy on
the "one phone call exception," stating at footnote 1:

> \[T\]he Federal Aviation Regulations do not explicitly allow 'one
> phone call' from the carrier during a pilot's rest period. However,
> the FAA established the 'one phone call policy,' based on certain
> narrow conditions and the fact pattern presented to us. Generally
> speaking, an air carrier can initiate a phone call and a pilot
> can\--on his or her own volition\--receive one phone call from an air
> carrier without the phone call being viewed as disruptive and breaking
> the continuous rest period.

*See* Nov. 7, Letter to James W. Johnson, from Donald P. Byrne,
Assistant Chief Counsel (copy enclosed).

That letter went on to reemphasize the voluntary nature of receiving
phone calls and suggested examples of methods a pilot could take to
prevent being contacted by the carrier, and thus have an uninterrupted
rest period. We mentioned the following, by way of example:

> \[I\]f the pilot is staying at a hotel, the front desk can hold any
> incoming calls;or if the pilot is at home, the telephone ringer can be
> turned off and an answering machine can pick up calls. Further, a
> flight crewmember can provide written notification to the air carrier
> of his or her desire not to be contacted while on rest periods (or the
> conditions under which contact should not be attempted). If an air
> carrier receives such a 'do not call' letter from a flight crewmember,
> then the carrier is on actual notice that its attempts to contact the
> pilot during the rest period could disrupt the pilot's attempt to
> sleep. In such a situation, unlike the situations summarized in
> footnote 1, even one phone call from the carrier to the pilot is
> evidence that the carrier has broken the pilot's continuous rest
> period, and the rest period must begin anew before the carrier could
> use the pilot in part 121 domestic operations.

Because the example of a "do not call" letter was misconstrued by the
aviation community to mean that the FAA was requiring such a letter to
be sent by the pilot and honored by the carrier, the Agency subsequently
issued a clarification letter to ALPA on May 11, 2004 letter. We said in
the May 11 letter that:

> "The \[November 7\] letter was not intended, and does not establish, a
> new policy or a new rule by the FAA with respect to our rest
> requirements. Nor does the Letter override FAA's existing policy that
> a rest period is not viewed as interrupted simply because the air
> carrier makes contact with the pilot one time by telephone, pager, and
> the like.
>
> \[B\]ecause the question you posed could not be answered in the
> abstract, an example was provided to illustrate the *kind of evidence*
> that could indeed suggest that a pilot's continuous rest had been
> interrupted. I must emphasize that by providing this example the FAA
> was neither requiring air carriers to honor or process such a notice
> if sent, nor advising pilots to send such notices in order to
> communicate a desire not to have their rest interrupted. Such details
> should be left to the parties. The establishment of a rule imposing a
> regime of "do not call" letters on pilots or air carriers would
> require notice and comment rulemaking because it would do more than
> interpret our existing rules and would impose new, substantive
> requirements on the aviation community.

*See* May 11, 2004 Letter to James W. Johnson, from Andrew B. Steinberg,
Chief Counsel (copy enclosed).

The Agency has not previously addressed via a letter of interpretation
whether the "one phone call exception" applies to flight attendants. The
safety rationale that underpins the policy allowing "one phone call" to
pilots is based on the agency's judgment that a single phone call that a
pilot in a rest period does not expect to receive, is not required to
accept, but does in fact accept, would not impose a great psychological
or physiological burden on such a pilot. Nor in general, would such a
call undermine the protection against fatigue that is afforded by the
continuous rest period. We believe that a similar rationale applies to a
flight attendant's rest period and that the exception should also apply
to a flight attendant. Note, however, as previously stated in the
November 7 letter, that the exception is very narrow. The flight
attendant must not be obligated to answer the call or be available to
answer the call. Note, in addition, that if the call is made during a
period when it could be expected that the flight attendant would be
sleeping (e.g., at 2:00 a.m.), then although "legally" the continuous
period of rest has not been interrupted, the carrier may have
interrupted the flight attendant's actual sleep and may thereby cause
the flight attendant to be fatigued for the next duty day.

Our May 11 letter of clarification to ALPA that the FAA was not in the
November 7 letter imposing a regime of "do not call" letters on pilots
or carriers is also applicable to flight attendants. Thus, as to your
question whether a flight attendant may also submit a "do not call"
letter of his/her desire not to be contacted while on a rest period,
note that the FAA may not impose, via a letter of interpretation, a
regime of "do not call" letters on flight attendants or air carriers.
The establishment of a rule imposing a regime of "do not call" letters
on flight attendants or air carriers would require notice and comment
rulemaking because it would do more than interpret our existing rules
and would impose new, substantive requirements on the aviation
community.

This response was prepared by Joseph A. Conte, Manager, Operations Law
Branch, and Constance M. Subadan, Attorney, Operations Law Branch. It
was coordinated with the Flight Standards Service at FAA Headquarters.

Sincerely,

Rebecca B. MacPherson

Assistant Chief Counsel

Regulations Division

Enclosures

[^1]: 59 Fed. Reg. 42974, 42980 (August 19, 1994).