Smoking Ban on Aircraft Legislation

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36772 Federal Register / Vol. 65, No. 112/ Friday, June 9, 2000/ Rules and Regulations

DEPARTMENT OF TRANSPORTATION

Office of the Secretary

14 CFR Part 252

[Docket No. OST20007473; OST DocketNo. 46783; Notice 905; OST Docket No.44778; Notice 911]

RIN 2105AC85; 2105AB58

Smoking Aboard Aircraft

AGENCY: Office of the Secretary, DOT.

ACTION: Final rule; Disposition ofcomments; disposition of petition forrulemaking.

SUMMARY: The Department is amendingits smoking rule to implement a recentstatutory ban on smoking aboard aircraftin scheduled passenger interstate,intrastate and foreign air transportation.This rule is being issued in conjunctionwith a related FAA final rule on

smoking that makes its rules consistentwith the statutory ban. The FAA rule ispublished elsewhere in todays issue ofthe Federal Register.

This rule also confirms certainportions of the Departments 1990interim final rule that incorporated astatutory ban on smoking aboard aircrafton almost all flight segments within theUnited States. The 1990 rule codified a

blanket waiver concerning single-entitycharters and made other clarifyingchanges. Finally, this rule responds to apetition for rulemaking to prohibitsmoking aboard commercial aircraft

DATES

: This final rule is effective June4, 2000, in order to meet the effectivedate for the statutory ban on smoking.

FOR FURTHER INFORMATION CONTACT:Arnold Konheim, Office of the AssistantSecretary for Transportation Policy, U.S.Department of Transportation, 400Seventh Street, SW., Washington, DC20590 (202) 3664849.

SUPPLEMENTARY INFORMATION:

Electronic Access

An electronic copy of this documentmay be downloaded by using acomputer, modem, and suitable

communications software from theGovernment Printing Offices ElectronicBulletin Board Service at (202) 5121661. Internet users may reach theOffice of the Federal Registers homepage at: http://www.nara.gov/fedregandthe Government Printing Officesdatabase at: http://www.access.gpo.gov/nara. You can also view and downloadthis document by going to the webpageof the Departments Docket ManagementSystem (http://dms.dot.gov/). On thatpage, click on search. On the nextpage, type in the last four digits of the

docket number shown on the first pageof this document. Then click onsearch.

Background

Throughout this preamble and rule,we have used the terms air carrier andforeign air carrier, as defined in 49U.S.C. 40102, in which an air carrier

is a citizen of the United Statesundertaking to provide airtransportation, and a foreign aircarrier is a person, not a citizen of theUnited States, undertaking to provideforeign air transportation.

In 1973, the Civil Aeronautics Board(CAB) adopted its first regulation (ER800, 38 FR 12207, May 10, 1973)restricting smoking on air carrier flights.In subsequent years, the CAB and thenthe Office of the Secretary (OST) of theDepartment of Transportation, to whichCAB functions were transferred on

January 1, 1985, strengthened this rulein accord with public input, scientificstudies and statutory requirements.

In its initial form, the rule requiredthe separation of smoking passengersfrom no-smoking passengers. With eachrevision, the rule provided additionalprotections to nonsmokers, reflectingfindings by the Surgeon General, theNational Academy of Sciences, and theU.S. Environmental Protection Agencythat exposure to environmental tobaccosmoke is deleterious to health.

The increase in restrictions onsmoking on air carrier flights alsoreflected global policy and publictrends. In its 1992 session, the Assembly

of the International Civil AviationOrganization passed Resolution A2915,which called on its member nations totake necessary measures as soon aspossible to restrict smokingprogressively on all internationalpassenger flights. To reduce the healthhazards to passengers and crew and toenhance aviation safety, thegovernments of Australia, Canada, NewZealand and the United States havesince entered into an internationalagreement banning smoking on all non-stop flights of their airlines between thesignatory countries. This ban applies to

all locations within the aircraft,including the flight deck.The Federal Aviation Administration

(FAA) also regulates smoking toenhance safe air transportation and toimplement statutory bans on smoking.The FAA has issued rules in furtheranceof the statutory bans on smoking and theDepartments ban on smoking containedin 14 CFR part 252. The FAA, under itssafety mandate, has also issued rules todeal with the safety problems that candevelop when people on board aircraftviolate the statutory ban on smoking

and try to conceal their smoking. Forexample, smoke detectors are requiredin lavatories because sometimes peopletry to hide cigarette butts in paper-towelrefuse compartments that could lead toa fire in flight.

The statute on which the current rulesare based is Public Law 101164, whichwas enacted in 1989 and reads as

follows:* * * it shall be unlawful to smoke in the

passenger cabin or lavatory on any scheduledairline flight segment in air transportation orintrastate air transportation, which is

(i) between any two points within PuertoRico, the United States Virgin Islands, theDistrict of Columbia, or any state of theUnited States (other than Alaska andHawaii), or between any point in any one ofthe aforesaid jurisdictions (other than Alaskaand Hawaii) and any point in any other ofsuch jurisdictions;

(ii) within the State of Alaska or within theState of Hawaii; or

(iii) scheduled for 6 hours or less in

duration, and between any point described inclause (1) and any point in Alaska or Hawaii,or between any point in Alaska and any pointin Hawaii.

The current 14 CFR part 252, whichapplies to air carriers and foreign aircarriers, incorporates these statutoryrequirements and also requires aircarriers to ban smoking when theventilation system is not fullyfunctioning, when a plane is on theground, and on all aircraft with lessthan 30 seats. It also requires air carriersto ban smoking of cigars and pipes. Inaddition, on flights where smoking is

not banned, the rule provides that eachair carrier furnish any confirmedpassenger who checks in on time a seatin a no-smoking section, if requested.The air carrier must expand the no-smoking section to accommodate allqualified passengers and must makespecial provision to ensure that, if a no-smoking section is placed between thesmoking sections, the nonsmokingpassengers are not unreasonably

burdened. Air carriers are otherwisefree to ban smoking if they choose.

In fact, all air carriers ban smoking onall scheduled passenger flights, andmost foreign air carriers ban smoking.At present, 97.7 percent of all scheduledpassenger flight segments to and fromthe United States are smoke-free.

Recent Statutory Changes

On April 5, 2000, President Clintonsigned H.R. 1000 (P.L. 106181), theWendell H. Ford Aviation Investmentand Reform Act for the 21st Century,containing the following section:

Sec. 708. Prohibitions Against Smoking onScheduled Flights

(a) In General * * *

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36773Federal Register / Vol. 65, No. 112/ Friday, June 9, 2000/ Rules and Regulations

41706. Prohibitions against smoking onscheduled flights.

(a) Smoking Prohibition in Intrastate andInterstate Air Transportation: An individualmay not smoke in an aircraft in scheduledpassenger interstate air transportation orscheduled passenger intrastate airtransportation.

(b) Smoking Prohibition in Foreign AirTransportation: The Secretary of

Transportation shall require all air carriersand foreign air carriers to prohibit smokingin any aircraft in scheduled passenger foreignair transportation.

(c) Limitation on Applicability:(1) In general: If a foreign government

objects to the application of subsection (b) onthe basis that subsection (b) provides for anextraterritorial application of the laws of theUnited States, the Secretary shall waive theapplication of subsection (b) to a foreign aircarrier licensed by that foreign government atsuch time as an alternative prohibitionnegotiated under paragraph (2) becomeseffective and is enforced by the Secretary.

(2) Alternative prohibition: If, pursuant toparagraph (1), a foreign government objects to

the prohibition under subsection (b), theSecretary shall enter into bilateralnegotiations with the objecting foreigngovernment to provide for an alternativesmoking prohibition.

(d) Regulations: The Secretary shallprescribe such regulations as are necessary tocarry out this section.

(b) Effective Date:The amendment madeby subsection (a) shall take effect on the datethat is 60 days after the date of enactment ofthis Act.

Final Rule

The Office of the Secretarys currentsmoking regulations are contained in 14CFR Part 252 and require that air

carriers and foreign air carriers prohibitsmoking on certain flights. This ruleamends Part 252 to implement therecent statutory ban on smoking for aircarriers and foreign air carriers. Thisrule bans smoking on all scheduledpassenger flights of air carriers, and onall scheduled passenger flight segmentsof foreign air carriers (1) between pointsin the U.S. and (2) between the U.S. andforeign points. The statutory ban onpassengers smoking on aircraft ininterstate and intrastate airtransportation is self-executing and goesinto effect on the 60th day after

enactment of the statute whether or notwe update this regulation. Since thisrule essentially restates a statutorymandate with an imminent deadline,seeking prior notice and comment on itis unnecessary under 5 U.S.C. 553(b).

The rule also incorporates the waiverprovision for foreign air carriers undercriteria provided in the statute. That is,a foreign government can object to therule as an extraterritorial application ofU.S. laws and request a waiver of therequirements, once bilateralnegotiations with the U.S. have put in

place an alternative smokingprohibition.

Smoking on the flight deck is nowprohibited by the government only onscheduled non-stop flights betweenAustralia, Canada, New Zealand and theUnited States. Consistent with therecent statute, the new section 252.8 inthe rule now bans smoking in alllocations within the aircraft, includingthe flight deck. This new ban applies toall air carrier and foreign air carrierflights covered by the rule. The ruledoes not change the current requirementin 252.11 that air carriers prohibitsmoking whenever their aircraft are onthe ground. The ban, as it applies toforeign air carriers, is less extensive. Inparticular, it is flight-specific, applyingonly from the time the aircraft beginsenplaning passengers to the time that allpassengers complete deplaning.

The recent statutory ban on smoking

applies to individual passengers andflight crew as well as to air carriers andforeign air carriers. This rule appliesonly to air carriers and foreign aircarriers. The companion FAA rulepublished elsewhere in todays FederalRegister implements the statutory banon smoking by such individuals.

We have made nonsubstantivechanges to Part 252 to use the terms aircarrier and foreign air carrier, asdefined in 49 USC 40102, in allsections, changed and otherwiseunchanged. As stated above, an aircarrier is a citizen of the United States

undertaking to provide airtransportation, and a foreign aircarrier is a person, not a citizen of theUnited States, undertaking to provideforeign air transportation.

Effective Date

The Administrative Procedure Act, 5U.S.C. 553(d)(3), states that regulationsmay not go into effect less than 30 daysafter publication except where goodcause is shown. The Wendell H. FordAviation Investment and Reform Act forthe 21st Century directs the Secretary ofTransportation to issue regulations to

prohibit smoking on scheduled flightswithin 60 days of its enactment.Therefore, we must make thisamendment effective by June 4, 2000.We have determined that good causeexists to make this amendment effectiveon June 4, 2000, rather than 30 daysafter publication. All air carrier flightsand nearly 98 percent of foreign aircarrier flights to and from the U.S.already meet this requirement. As aresult, making the rule effective in lessthan 30 days after publication will

burden very few foreign air carriers.

Disposition of Comments to the 1990Interim Final Rule (Docket No. 46783)

On February 13, 1990, the Office ofthe Secretary published an interim finalrule in the Federal Register (55 FR4991) implementing Public Law 101164. That act banned smoking on mostscheduled airline flight segments within

the United States. The rule also codifieda blanket waiver concerning single-entity charters and made otherclarifying changes. In addition, theinterim rule requested comments onchanging the applicability of section252.13 from less than 30 seats to 30seats or less in order to conform to theterminology used in the FederalAviation Administrations (FAA) carrieroperating rules found in 14 CFR Parts135 and 121. We did not receive anycomments on the proposed change.Accordingly, this final rule adopts thechange.

We received four comments in

response to the interim final rule. Onecommenter, a private citizen, expressedhis opposition to the act because it hadthe effect of alleviat[ing] any fiscalresponsibilities the airline industry mayencounter to install more efficientairplane ventilation systems. However,the smoking ban should improve theefficiency of existing ventilationsystems.

Sun Country Airlines suggested thatthe smoking ban be extended to allcarriers, whether scheduled or charteroperations. Both the 1989 and 2000legislation apply only to scheduled

flights. Both rules simply implementthe legislation. Nevertheless, there hasnever been a requirement to permitsmoking aboard aircraft, and charteroperators have always been free to bansmoking on any or all of their flights.

Another private citizen commentedthat smokers also have rights andsuggested that proper ventilation wouldsolve the problem of germ ridden air.The Tobacco Institute [TI], a tradeassociation of cigarette manufacturers,stated that the Departments broadstatements [in the interim final rulespreamble] as to rights of smokers and

nonsmokers is neither necessary norsupported by the legislation. DOTs useof the word rights merely emphasizesthat smokers do not have the right todemand that an airline provide asmoking seat. We did not intend thediscussion in the interim final rulespreamble to be a policy statement of theoverall rights of smokers versusnonsmokers.

TI also asserted that air carriers wouldlikely suffer competitive disadvantageif smoking is banned on those aircarriers international flights. Finally, TI



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36775Federal Register / Vol. 65, No. 112/ Friday, June 9, 2000/ Rules and Regulations

international scheduled passengerflights of air carriers would have noadverse effect on the environment. Infact, the rule would improve air qualitywithin the aircraft, reduce the risk ofadverse health effects, and enhanceaviation safety.

Therefore, the department has foundthat the rule will have no significant

adverse economic impact. A copy of theenvironmental assessment has beenfiled in the public docket.

List of Subjects in 14 CFR Part 252

Air carriers, Aircraft, Consumerprotection, Foreign air carriers,smoking.

Accordingly, the Office of theSecretary of the U.S. Department ofTransportation revises 14 CFR part 252to read as follows:

PART 252SMOKING ABOARDAIRCRAFT

Sec.252.1 Purpose.252.2 Applicability.252.3 Smoking ban: air carriers252.5 Smoking ban: foreign air carriers.252.7 No-smoking sections.252.8 Extent of smoking restrictions 252.9

Ventilation systems.252.11 Aircraft on the ground.252.13 Small aircraft.252.15 Cigars and pipes.252.17 Enforcement.252.19 Single-entity charters.

Authority: Pub. L 101164; 49 U.S.C.40102, 40109, 40113, 41701, 41702, 41706, asamended by section 708 of Pub. L 106181,41711, and 46301.

Cross Reference: For smoking rules of theFederal Aviation Administration, see 14 CFR121.317(c), 121.571(a)(1)(i), 129.29,135.117(a)(1), and 135.127(a).

252.1 Purpose.

This part implements a ban onsmoking of tobacco products on aircarrier and foreign air carrier flights inscheduled intrastate, interstate andforeign air transportation, as required by49 USC 41706. It also addressessmoking on charter flights. Nothing inthis regulation shall be deemed torequire air carriers or foreign air carriers

to permit the smoking of tobaccoproducts aboard aircraft.

Note to 252.1: As defined in 49 U.S.C.40102, an air carrier is a citizen of theUnited States undertaking to provide airtransportation, and a foreign air carrier isa person, not a citizen of the United States,undertaking to provide foreign airtransportation.

252.2 Applicability.

This part applies to all operations ofair carriers engaged in interstate,intrastate and foreign air transportation

and to foreign air carriers engaged inforeign air transportation, but does notapply to the on-demand services of airtaxi operators.

252.3 Smoking ban: air carriers.

Air carriers shall prohibit smoking onall scheduled passenger flights.

252.5 Smoking ban: foreign air carriers.(a) Foreign air carriers shall prohibit

smoking on all scheduled passengerflight segments:

(1) Between points in the UnitedStates, and

(2) Between the U.S. and any foreignpoint.

(b) A foreign government objecting tothe application of paragraph (a) of thissection on the basis that paragraph (a)provides for extraterritorial applicationof the laws of the United States mayrequest and obtain a waiver ofparagraph (a) from the Assistant

Secretary of Transportation forTransportation Policy, provided that analternative smoking prohibitionresulting from bilateral negotiations isin effect.

252.7 No-smoking sections.

(a) Except as provided in paragraph(b) of this section, air carriers operatingnonstop flight segments to which 252.3 and 252.13 do not apply shallprovide, at a minimum:

(1) A no-smoking section for eachclass of service;

(2) A sufficient number of seats in

each no-smoking section toaccommodate all persons in that class ofservice who wish to be seated there;

(3) Expansion of no-smoking sectionsto meet passenger demand; and

(4) Special provisions to ensure that ifa no-smoking section is placed betweensmoking sections, the nonsmokingpassengers are not unreasonably

burdened.(b) On flights for which passengers

may make confirmed reservations andon which seats are assigned before

boarding, an air carrier need not providea seat in a no-smoking section to a

passenger who has not met the carriersrequirements as to time and method ofobtaining a seat on the flight, or whodoes not have a confirmed reservation.If a seat is available in the establishedno-smoking section, however, an aircarrier shall seat there any enplaningpassenger who so requests, regardless of

boarding time or reservation status.

252.8 Extent of smoking restrictions.

The restrictions on smoking describedin 252.3 through 252.7 shall apply toall locations within the aircraft.

252.9 Ventilation systems.

Air carriers shall prohibit smokingwhenever the ventilation system is notfully functioning. Fully functioning forthis purpose means operating so as toprovide the level and quality ofventilation specified and designed bythe manufacturer for the number ofpersons currently in the passengercompartment.

252.11 Aircraft on the ground.

(a) Air carriers shall prohibit smokingwhenever the aircraft is on the ground.

(b) With respect to the restrictions onsmoking described in 252.5, foreign aircarriers shall prohibit smoking from thetime an aircraft begins enplaningpassengers until the time passengerscomplete deplaning.

252.13 Small aircraft.

Air carriers shall prohibit smoking onaircraft designed to have a passenger

capacity of 30 or fewer seats.Note to 252.13: This section, like the rest

of this part, does not apply to on-demandservices of air taxi operators; see 252.2 inthis part.

252.15 Cigars and pipes.

Air carriers shall prohibit the smokingof cigars and pipes aboard aircraft.

252.17 Enforcement.

Air carriers and foreign air carriersshall take such action as is necessary toensure that smoking by passengers orcrew is not permitted in the passenger

cabin or lavatories on no-smoking flightsegments. Air carriers shall take suchaction as is necessary to ensure thatsmoking by passengers or crew is notpermitted in no-smoking sections or atother times or places where smoking isprohibited by this part, and to maintainrequired separation of passengers insmoking and no-smoking areas.

252.19 Single-entity charters.

On single-entity charters operatedpursuant to 207.50 or 208.300 of thistitle, air carriers need not comply withthe procedures of this part 252 if sucha request is made by the charterer,

provided that each passenger on suchflights is given notice of the smokingprocedures for the flight at the time heor she first makes arrangements to takethe flight.

Issued in Washington, D.C. on June 2,2000, under authority delegated by 49 CFR1.56a (h)2.

Robert S. Goldner,

Acting Deputy Assistant Secretary forAviation and International Affairs.

[FR Doc. 0014480 Filed 6600; 3:32 pm]

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