[Federal Register Volume 65, Number 112 (Friday, June 9, 2000)]
[Rules and Regulations]
[Pages 36772-36775]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-14480]
[[Page 36771]]
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Part IV
Department of Transportation
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Federal Aviation Administration
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14 CFR Part 121, et al.
Prohibition of Smoking on Scheduled Passenger Flights; Final Rules
Federal Register / Vol. 65, No. 112 / Friday, June 9, 2000 / Rules
and Regulations
[[Page 36772]]
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DEPARTMENT OF TRANSPORTATION
Office of the Secretary
14 CFR Part 252
[Docket No. OST-2000-7473; OST Docket No. 46783; Notice 90-5; OST
Docket No. 44778; Notice 91-1]
RIN 2105-AC85; 2105-AB58
Smoking Aboard Aircraft
AGENCY: Office of the Secretary, DOT.
ACTION: Final rule; Disposition of comments; disposition of petition
for rulemaking.
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SUMMARY: The Department is amending its smoking rule to implement a
recent statutory ban on smoking aboard aircraft in scheduled passenger
interstate, intrastate and foreign air transportation. This rule is
being issued in conjunction with a related FAA final rule on smoking
that makes its rules consistent with the statutory ban. The FAA rule is
published elsewhere in today's issue of the Federal Register.
This rule also confirms certain portions of the Department's 1990
interim final rule that incorporated a statutory ban on smoking aboard
aircraft on almost all flight segments within the United States. The
1990 rule codified a blanket waiver concerning single-entity charters
and made other clarifying changes. Finally, this rule responds to a
petition for rulemaking to prohibit smoking aboard commercial aircraft
DATES: This final rule is effective June 4, 2000, in order to meet the
effective date for the statutory ban on smoking.
FOR FURTHER INFORMATION CONTACT: Arnold Konheim, Office of the
Assistant Secretary for Transportation Policy, U.S. Department of
Transportation, 400 Seventh Street, SW., Washington, DC 20590 (202)
366-4849.
SUPPLEMENTARY INFORMATION:
Electronic Access
An electronic copy of this document may be downloaded by using a
computer, modem, and suitable communications software from the
Government Printing Office's Electronic Bulletin Board Service at (202)
512-1661. Internet users may reach the Office of the Federal Register's
home page at: http://www.nara.gov/fedreg and the Government Printing
Office's database at: http://www.access.gpo.gov/nara. You can also view
and download this document by going to the webpage of the Department's
Docket Management System (http://dms.dot.gov/). On that page, click on
``search.'' On the next page, type in the last four digits of the
docket number shown on the first page of this document. Then click on
``search.''
Background
Throughout this preamble and rule, we have used the terms ``air
carrier'' and ``foreign air carrier'', as defined in 49 U.S.C. 40102,
in which an ``air carrier'' is a citizen of the United States
undertaking to provide air transportation, and a ``foreign air
carrier'' is a person, not a citizen of the United States, undertaking
to provide foreign air transportation.
In 1973, the Civil Aeronautics Board (CAB) adopted its first
regulation (ER-800, 38 FR 12207, May 10, 1973) restricting smoking on
air carrier flights. In subsequent years, the CAB and then the Office
of the Secretary (OST) of the Department of Transportation, to which
CAB functions were transferred on January 1, 1985, strengthened this
rule in accord with public input, scientific studies and statutory
requirements.
In its initial form, the rule required the separation of smoking
passengers from no-smoking passengers. With each revision, the rule
provided additional protections to nonsmokers, reflecting findings by
the Surgeon General, the National Academy of Sciences, and the U.S.
Environmental Protection Agency that exposure to environmental tobacco
smoke is deleterious to health.
The increase in restrictions on smoking on air carrier flights also
reflected global policy and public trends. In its 1992 session, the
Assembly of the International Civil Aviation Organization passed
Resolution A29-15, which called on its member nations ``to take
necessary measures as soon as possible to restrict smoking
progressively on all international passenger flights.'' To reduce the
health hazards to passengers and crew and to enhance aviation safety,
the governments of Australia, Canada, New Zealand and the United States
have since entered into an international agreement banning smoking on
all non-stop flights of their airlines between the signatory countries.
This ban applies to all locations within the aircraft, including the
flight deck.
The Federal Aviation Administration (FAA) also regulates smoking to
enhance safe air transportation and to implement statutory bans on
smoking. The FAA has issued rules in furtherance of the statutory bans
on smoking and the Department's ban on smoking contained in 14 CFR part
252. The FAA, under its safety mandate, has also issued rules to deal
with the safety problems that can develop when people on board aircraft
violate the statutory ban on smoking and try to conceal their smoking.
For example, smoke detectors are required in lavatories because
sometimes people try to hide cigarette butts in paper-towel refuse
compartments that could lead to a fire in flight.
The statute on which the current rules are based is Public Law 101-
164, which was enacted in 1989 and reads as follows:
* * * it shall be unlawful to smoke in the passenger cabin or
lavatory on any scheduled airline flight segment in air
transportation or intrastate air transportation, which is--
(i) between any two points within Puerto Rico, the United States
Virgin Islands, the District of Columbia, or any state of the United
States (other than Alaska and Hawaii), or between any point in any
one of the aforesaid jurisdictions (other than Alaska and Hawaii)
and any point in any other of such jurisdictions;
(ii) within the State of Alaska or within the State of Hawaii;
or
(iii) scheduled for 6 hours or less in duration, and between any
point described in clause (1) and any point in Alaska or Hawaii, or
between any point in Alaska and any point in Hawaii.
The current 14 CFR part 252, which applies to air carriers and
foreign air carriers, incorporates these statutory requirements and
also requires air carriers to ban smoking when the ventilation system
is not fully functioning, when a plane is on the ground, and on all
aircraft with less than 30 seats. It also requires air carriers to ban
smoking of cigars and pipes. In addition, on flights where smoking is
not banned, the rule provides that each air carrier furnish any
confirmed passenger who checks in on time a seat in a no-smoking
section, if requested. The air carrier must expand the no-smoking
section to accommodate all qualified passengers and must make special
provision to ensure that, if a no-smoking section is placed between the
smoking sections, the nonsmoking passengers are not ``unreasonably
burdened.'' Air carriers are otherwise free to ban smoking if they
choose.
In fact, all air carriers ban smoking on all scheduled passenger
flights, and most foreign air carriers ban smoking. At present, 97.7
percent of all scheduled passenger flight segments to and from the
United States are smoke-free.
Recent Statutory Changes
On April 5, 2000, President Clinton signed H.R. 1000 (P.L. 106-
181), the Wendell H. Ford Aviation Investment and Reform Act for the
21st Century, containing the following section:
Sec. 708. Prohibitions Against Smoking on Scheduled Flights
(a) In General * * *
[[Page 36773]]
41706. Prohibitions against smoking on scheduled flights.
(a) Smoking Prohibition in Intrastate and Interstate Air
Transportation: An individual may not smoke in an aircraft in
scheduled passenger interstate air transportation or scheduled
passenger intrastate air transportation.
(b) Smoking Prohibition in Foreign Air Transportation: The
Secretary of Transportation shall require all air carriers and
foreign air carriers to prohibit smoking in any aircraft in
scheduled passenger foreign air transportation.
(c) Limitation on Applicability:
(1) In general: If a foreign government objects to the
application of subsection (b) on the basis that subsection (b)
provides for an extraterritorial application of the laws of the
United States, the Secretary shall waive the application of
subsection (b) to a foreign air carrier licensed by that foreign
government at such time as an alternative prohibition negotiated
under paragraph (2) becomes effective and is enforced by the
Secretary.
(2) Alternative prohibition: If, pursuant to paragraph (1), a
foreign government objects to the prohibition under subsection (b),
the Secretary shall enter into bilateral negotiations with the
objecting foreign government to provide for an alternative smoking
prohibition.
(d) Regulations: The Secretary shall prescribe such regulations
as are necessary to carry out this section.
(b) Effective Date: The amendment made by subsection (a) shall
take effect on the date that is 60 days after the date of enactment
of this Act.
Final Rule
The Office of the Secretary's current smoking regulations are
contained in 14 CFR Part 252 and require that air carriers and foreign
air carriers prohibit smoking on certain flights. This rule amends Part
252 to implement the recent statutory ban on smoking for air carriers
and foreign air carriers. This rule bans smoking on all scheduled
passenger flights of air carriers, and on all scheduled passenger
flight segments of foreign air carriers (1) between points in the U.S.
and (2) between the U.S. and foreign points. The statutory ban on
passengers smoking on aircraft in interstate and intrastate air
transportation is self-executing and goes into effect on the 60th day
after enactment of the statute whether or not we update this
regulation. Since this rule essentially restates a statutory mandate
with an imminent deadline, seeking prior notice and comment on it is
unnecessary under 5 U.S.C. 553(b).
The rule also incorporates the waiver provision for foreign air
carriers under criteria provided in the statute. That is, a foreign
government can object to the rule as an extraterritorial application of
U.S. laws and request a waiver of the requirements, once bilateral
negotiations with the U.S. have put in place an alternative smoking
prohibition.
Smoking on the flight deck is now prohibited by the government only
on scheduled non-stop flights between Australia, Canada, New Zealand
and the United States. Consistent with the recent statute, the new
section 252.8 in the rule now bans smoking in all locations within the
aircraft, including the flight deck. This new ban applies to all air
carrier and foreign air carrier flights covered by the rule. The rule
does not change the current requirement in Sec. 252.11 that air
carriers prohibit smoking whenever their aircraft are on the ground.
The ban, as it applies to foreign air carriers, is less extensive. In
particular, it is flight-specific, applying only from the time the
aircraft begins enplaning passengers to the time that all passengers
complete deplaning.
The recent statutory ban on smoking applies to individual
passengers and flight crew as well as to air carriers and foreign air
carriers. This rule applies only to air carriers and foreign air
carriers. The companion FAA rule published elsewhere in today's Federal
Register implements the statutory ban on smoking by such individuals.
We have made nonsubstantive changes to Part 252 to use the terms
``air carrier'' and ``foreign air carrier'', as defined in 49 USC
40102, in all sections, changed and otherwise unchanged. As stated
above, an ``air carrier'' is a citizen of the United States undertaking
to provide air transportation, and a ``foreign air carrier'' is a
person, not a citizen of the United States, undertaking to provide
foreign air transportation.
Effective Date
The Administrative Procedure Act, 5 U.S.C. 553(d)(3), states that
regulations may not go into effect less than 30 days after publication
except where good cause is shown. The Wendell H. Ford Aviation
Investment and Reform Act for the 21st Century directs the Secretary of
Transportation to issue regulations to prohibit smoking on scheduled
flights within 60 days of its enactment. Therefore, we must make this
amendment effective by June 4, 2000. We have determined that good cause
exists to make this amendment effective on June 4, 2000, rather than 30
days after publication. All air carrier flights and nearly 98 percent
of foreign air carrier flights to and from the U.S. already meet this
requirement. As a result, making the rule effective in less than 30
days after publication will burden very few foreign air carriers.
Disposition of Comments to the 1990 Interim Final Rule (Docket No.
46783)
On February 13, 1990, the Office of the Secretary published an
interim final rule in the Federal Register (55 FR 4991) implementing
Public Law 101-164. That act banned smoking on most scheduled airline
flight segments within the United States. The rule also codified a
blanket waiver concerning single-entity charters and made other
clarifying changes. In addition, the interim rule requested comments on
changing the applicability of section 252.13 from ``less than 30
seats'' to ``30 seats or less'' in order to conform to the terminology
used in the Federal Aviation Administration's (FAA) carrier operating
rules found in 14 CFR Parts 135 and 121. We did not receive any
comments on the proposed change. Accordingly, this final rule adopts
the change.
We received four comments in response to the interim final rule.
One commenter, a private citizen, expressed his opposition to the act
because it had the effect of ``alleviat[ing] any fiscal
responsibilities the airline industry may encounter'' to install more
efficient airplane ventilation systems. However, the smoking ban should
improve the efficiency of existing ventilation systems.
Sun Country Airlines suggested that the smoking ban be extended to
all carriers, whether scheduled or charter operations. Both the 1989
and 2000 legislation apply only to ``scheduled flights.'' Both rules
simply implement the legislation. Nevertheless, there has never been a
requirement to permit smoking aboard aircraft, and charter operators
have always been free to ban smoking on any or all of their flights.
Another private citizen commented that smokers also have rights and
suggested that proper ventilation would solve the problem of ``germ
ridden'' air. The Tobacco Institute [TI], a trade association of
cigarette manufacturers, stated that the Department's ``broad
statements [in the interim final rule's preamble] as to `rights' of
smokers and nonsmokers'' is ``neither necessary nor supported by the
legislation.'' DOT's use of the word ``rights'' merely emphasizes that
smokers do not have the right to demand that an airline provide a
``smoking seat.'' We did not intend the discussion in the interim final
rule's preamble to be a policy statement of the overall rights of
smokers versus nonsmokers.
TI also asserted that air carriers would ``likely suffer
competitive disadvantage'' if smoking is banned on those air carriers'
international flights. Finally, TI
[[Page 36774]]
asserted that the rule exempting ``single-entity charters'' should
avoid imposing unnecessary administrative burdens on charter operators.
Specifically, TI believes that the advance notice provisions of
Sec. 252.19 preclude ``administrative flexibility'' for charter
operators. The advance notice provisions of Sec. 252.19 merely codified
a blanket waiver for single-entity charter operators that has been in
effect since 1982 with no serious problems. In addition, we note that
no charter operator has commented in opposition to this section.
Petition of David James Biss (Docket No. 44778)
On April 7, 1987, Mr. David Biss petitioned the Department to ban
all smoking on passenger-carrying commercial aircraft operating under
the jurisdiction of the DOT. This final rule addresses most of Mr.
Biss' concerns. Accordingly, this rule disposes of his petition for
rulemaking.
Regulatory Process Matters
This rule is a nonsignificant regulatory action under section 3(f)
of Executive Order 12866 and has not been reviewed by the Office of
Management and Budget under that order. This rule is also not
significant under the Regulatory Policies and Procedures of the
Department of Transportation, 44 FR 11034, (February 26, 1979), because
it primarily implements a statutory directive. This rule is expected to
have a minimal economic effect, therefore further regulatory evaluation
is not necessary.
Regulatory Assessment
The additional number of flights on which airlines will be required
to ban all smoking will be a very small percentage of all those between
the United States and foreign countries. A total of 159 air carriers
and foreign air carriers performed departures from the United States to
foreign countries in 1998. Of these, 35 were certificated in the U.S.,
and none of them permits smoking. Of 124 foreign air carriers, only 17
permitted smoking on any flight. Except for Aeroflot and Olympic
Airways, all major European airlines ban smoking. So do most of those
in other regions, excepting certain foreign air carriers in South and
Central America, Asia, and the Middle East. Out of 191,000 departures
from the U.S. by foreign air carriers, only 11,000, or 5.4 percent,
permitted smoking in 1998. Since more than half of the departures are
performed by air carriers, this represents an average of 2.3 percent of
all departures. Even this figure probably overstates the proportion of
passengers newly affected by this legislation and rule, because the
majority of such flights are by smaller airlines on less densely
traveled routes. For example, 2,800 departures are performed by the
Mexican carrier Aero California, which operates DC-9 aircraft seating
fewer than 100 passengers.
The benefits of protection against environmental tobacco smoke in
aircraft include improved comfort of passengers and crew, as well as
lower risk of both acute and chronic adverse health impacts associated
with increased incidence of respiratory illnesses, lung cancer, heart
disease, and fetal defects for those repeatedly exposed over a long
period. Safety will be augmented by reduced risk of fire, preventing
impairment of the alertness of crews resulting from smoke intoxication,
and improved reliability of equipment that will not be subjected to
accumulated deposits of smoke residues. It is possible that smokers
will suffer some discomfort through being prevented from smoking during
the flight, but they too will receive the stated health and safety
benefits.
The airlines required to discontinue their present policies of
permitting smoking in flight will benefit from reduced maintenance
costs for cleaning and replacing upholstery, servicing no-smoking
lights, and emptying ashtrays. They will suffer no loss of revenue
through diversion of smoking passengers; because there are no close
substitutes for scheduled airline flights in international
transportation, and all flights will be covered by the same no-smoking
rule.
Small Business Impact
Congress enacted the Regulatory Flexibility Act of 1980, 5 U.S.C.
601 et seq., to ensure that small entities are not unnecessarily and
disproportionately burdened by government regulations. The act requires
agencies to review proposed regulations that may have a significant
economic impact on a substantial number of small entities. For purposes
of this rule, small entities include smaller air carriers.
All small air carriers already meet the requirements of this rule,
since all air carriers already ban smoking on all scheduled passenger
service. This rule contains no direct reporting or record-keeping
requirements that would affect small entities. There are no other
federal rules that duplicate, overlap, or conflict with this rule.
Therefore, I certify under section 605(b) of the Regulatory Flexibility
Act (5 U.S.C. 601 et seq.) that this regulation will not have a
significant economic impact on a substantial number of small entities.
Paperwork Reduction Act
This proposal contains no collection-of-information requirements
subject to the Paperwork Reduction Act, Public Law 96-511, 44 U.S.C.
Chapter 35.
Federalism Implications
We have reviewed this rule in accordance with the principles and
criteria contained in Executive Order 13132, dated August 4, 1999, and
determined that it will not have a substantial direct effect on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government. The rule will not limit the policymaking
discretion of the States. Nothing in it would directly preempt any
State law or regulation. Because the rule will have no significant
effect on State or local governments, no consultations with State and
local governments on this rule were necessary and it does not warrant
the preparation of a Federalism Assessment.
National Environmental Policy Act (NEPA)
Issuing this rule is exempt from any requirement to prepare an
environmental impact statement under NEPA because the Department's
action is ministerial without discretion. In addition, the department
has determined that this rule will not have any significant impact on
the quality of the human environment. Smoking within an aircraft has a
negligible effect on the environment outside of the aircraft and its
elimination would also have a negligible effect.
Within the aircraft, smoking can result in non-smoking passengers
and crew being exposed to environmental tobacco smoke (ETS). A study by
the Department showed that ETS contaminants are not restricted to the
smoking section of an aircraft but are found throughout the cabin,
particularly in the no-smoking area closest to the smoking section. The
effect of a smoking ban would be to reduce the health risk to
passengers and crew from exposure to ETS. It would also enhance
aviation safety by reducing the risk of (a) fire, (b) failure of
compartments holding oxygen masks to open because of the accumulation
of tobacco tar residue and (c) degradation of the crew's ability to
function properly.
The issuance of a rule banning smoking on all scheduled passenger
flights to and from this country by foreign air carriers and on all
[[Page 36775]]
international scheduled passenger flights of air carriers would have no
adverse effect on the environment. In fact, the rule would improve air
quality within the aircraft, reduce the risk of adverse health effects,
and enhance aviation safety.
Therefore, the department has found that the rule will have no
significant adverse economic impact. A copy of the environmental
assessment has been filed in the public docket.
List of Subjects in 14 CFR Part 252
Air carriers, Aircraft, Consumer protection, Foreign air carriers,
smoking.
Accordingly, the Office of the Secretary of the U.S. Department of
Transportation revises 14 CFR part 252 to read as follows:
PART 252--SMOKING ABOARD AIRCRAFT
Sec.
252.1 Purpose.
252.2 Applicability.
252.3 Smoking ban: air carriers
252.5 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 101-164; 49 U.S.C. 40102, 40109, 40113, 41701,
41702, 41706, as amended by section 708 of Pub. L 106-181, 41711,
and 46301.
Cross Reference: For smoking rules of the Federal Aviation
Administration, see 14 CFR 121.317(c), 121.571(a)(1)(i), 129.29,
135.117(a)(1), and 135.127(a).
Sec. 252.1 Purpose.
This part implements a ban on smoking of tobacco products on air
carrier and foreign air carrier flights in scheduled intrastate,
interstate and foreign air transportation, as required by 49 USC 41706.
It also addresses smoking on charter flights. Nothing in this
regulation shall be deemed to require air carriers or foreign air
carriers to permit the smoking of tobacco products aboard aircraft.
Note to Sec. 252.1: As defined in 49 U.S.C. 40102, an ``air
carrier'' is a citizen of the United States undertaking to provide
air transportation, and a ``foreign air carrier'' is a person, not a
citizen of the United States, undertaking to provide foreign air
transportation.
Sec. 252.2 Applicability.
This part applies to all operations of air carriers engaged in
interstate, intrastate and foreign air transportation and to foreign
air carriers engaged in foreign air transportation, but does not apply
to the on-demand services of air taxi operators.
Sec. 252.3 Smoking ban: air carriers.
Air carriers shall prohibit smoking on all scheduled passenger
flights.
Sec. 252.5 Smoking ban: foreign air carriers.
(a) Foreign air carriers shall prohibit smoking on all scheduled
passenger flight segments:
(1) Between points in the United States, and
(2) Between the U.S. and any foreign point.
(b) A foreign government objecting to the application of paragraph
(a) of this section on the basis that paragraph (a) provides for
extraterritorial application of the laws of the United States may
request and obtain a waiver of paragraph (a) from the Assistant
Secretary of Transportation for Transportation Policy, provided that an
alternative smoking prohibition resulting from bilateral negotiations
is in effect.
Sec. 252.7 No-smoking sections.
(a) Except as provided in paragraph (b) of this section, air
carriers operating nonstop flight segments to which Secs. 252.3 and
252.13 do not apply shall provide, at a minimum:
(1) A no-smoking section for each class of service;
(2) A sufficient number of seats in each no-smoking section to
accommodate all persons in that class of service who wish to be seated
there;
(3) Expansion of no-smoking sections to meet passenger demand; and
(4) Special provisions to ensure that if a no-smoking section is
placed between smoking sections, the nonsmoking passengers are not
unreasonably burdened.
(b) On flights for which passengers may make confirmed reservations
and on which seats are assigned before boarding, an air carrier need
not provide a seat in a no-smoking section to a passenger who has not
met the carrier's requirements as to time and method of obtaining a
seat on the flight, or who does not have a confirmed reservation. If a
seat is available in the established no-smoking section, however, an
air carrier shall seat there any enplaning passenger who so requests,
regardless of boarding time or reservation status.
Sec. 252.8 Extent of smoking restrictions.
The restrictions on smoking described in Secs. 252.3 through 252.7
shall apply to all locations within the aircraft.
Sec. 252.9 Ventilation systems.
Air carriers shall prohibit smoking whenever the ventilation system
is not fully functioning. Fully functioning for this purpose means
operating so as to provide the level and quality of ventilation
specified and designed by the manufacturer for the number of persons
currently in the passenger compartment.
Sec. 252.11 Aircraft on the ground.
(a) Air carriers shall prohibit smoking whenever the aircraft is on
the ground.
(b) With respect to the restrictions on smoking described in
Sec. 252.5, foreign air carriers shall prohibit smoking from the time
an aircraft begins enplaning passengers until the time passengers
complete deplaning.
Sec. 252.13 Small aircraft.
Air carriers shall prohibit smoking on aircraft designed to have a
passenger capacity of 30 or fewer seats.
Note to Sec. 252.13: This section, like the rest of this part,
does not apply to on-demand services of air taxi operators; see
Sec. 252.2 in this part.
Sec. 252.15 Cigars and pipes.
Air carriers shall prohibit the smoking of cigars and pipes aboard
aircraft.
Sec. 252.17 Enforcement.
Air carriers and foreign air carriers shall take such action as is
necessary to ensure that smoking by passengers or crew is not permitted
in the passenger cabin or lavatories on no-smoking flight segments. Air
carriers shall take such action as is necessary to ensure that smoking
by passengers or crew is not permitted in no-smoking sections or at
other times or places where smoking is prohibited by this part, and to
maintain required separation of passengers in smoking and no-smoking
areas.
Sec. 252.19 Single-entity charters.
On single-entity charters operated pursuant to Secs. 207.50 or
208.300 of this title, air carriers need not comply with the procedures
of this part 252 if such a request is made by the charterer, provided
that each passenger on such flights is given notice of the smoking
procedures for the flight at the time he or she first makes
arrangements to take the flight.
Issued in Washington, D.C. on June 2, 2000, under authority
delegated by 49 CFR 1.56a (h)2.
Robert S. Goldner,
Acting Deputy Assistant Secretary for Aviation and International
Affairs.
[FR Doc. 00-14480 Filed 6-6-00; 3:32 pm]
BILLING CODE 4910-62-U