15 September 2011
Electronic Cigarettes Banned on Aircraft
[Federal Register Volume 76, Number 179 (Thursday, September 15, 2011)]
[Proposed Rules]
[Pages 57008-57012]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-23673]
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DEPARTMENT OF TRANSPORTATION
Office of the Secretary
14 CFR Part 252
[Docket No. DOT-OST-2011-0044]
RIN 2105-AE06
Smoking of Electronic Cigarettes on Aircraft
AGENCY: Office of the Secretary (OST), Department of Transportation
(DOT).
ACTION: Notice of proposed rulemaking (NPRM).
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SUMMARY: The Department of Transportation is proposing to amend its
existing airline smoking rule to explicitly ban the use of electronic
cigarettes on all aircraft in scheduled passenger interstate,
intrastate and foreign air transportation. The Department is taking
this action because of the increased promotion of electronic cigarettes
and the potential health and passenger comfort concerns that they pose
in an aircraft. The Department is also considering whether to extend
the ban on smoking (including electronic cigarettes) to charter flights
of air carriers (i.e. U.S. carriers) and foreign air carriers with
aircraft that have a designed seating capacity of 19 or more passenger
seats.
DATES: Comments should be filed by November 14, 2011. Late-filed
comments will be considered to the extent possible.
ADDRESSES: You may file comments identified by the docket number DOT-
OST-2011-0044 by any of the following methods:
Federal eRulemaking Portal: go to http://www.regulations.gov and
follow the online instructions for submitting comments.
Mail: Docket Management Facility, U.S. Department of
Transportation, 1200 New Jersey Ave., SE., Room W12-140, Washington, DC
20590-0001.
Hand Delivery or Courier: West Building Ground Floor, Room
W12-140, 1200 New Jersey Ave., SE between 9 a.m. and 5 p.m. E.T.,
Monday through Friday, except Federal Holidays.
Fax: 202-493-2251.
Instructions: You must include the agency name and docket number
DOT-OST-2010-XXXX or Regulatory Identification Number (RIN) for the
rulemaking at the beginning of your comment. All comments will be
posted without change to http://www.regulations.gov, including any
personal information provided.
Privacy Act: Anyone is able to search the electronic form of all
comments received in any of our dockets by the name of the individual
submitting the comment (or signing the comment if submitted on behalf
of an association, a business, or labor union, etc.). You may review
DOT's complete Privacy Act statement in the Federal Register published
on April 11, 2000 (65 FR 19477-78), or you may visit http://DocketsInfo.dot.gov.
Docket: For access to the docket to read background documents or
comments received, go to http://www.regulations.gov or to the street
address listed above. Follow the online instructions for accessing the
docket.
FOR FURTHER INFORMATION CONTACT: Laura E. Jennings, Trial Attorney,
Office of the Assistant General Counsel for Aviation Enforcement and
Proceedings, U.S. Department of Transportation, 1200 New Jersey Ave.,
SE., Washington, DC 20590, 202-366-9342 (phone), 202-366-7152 (fax),
laura.jennings@dot.gov. You may also contact Blane A. Workie, Deputy
Assistant General Counsel, Office of the Assistant General Counsel for
Aviation Enforcement and Proceedings, U.S. Department of
Transportation, 1200 New Jersey Ave., SE., Washington, DC 20590, 202-
366-
[[Page 57009]]
9342 (phone), 202-366-7152 (fax), blane.workie@dot.gov.
SUPPLEMENTARY INFORMATION:
Background
Throughout this proposed rule, we use the terms ``air carrier'' and
``foreign air carrier'' as defined in 49 U.S.C. 40102, in which ``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.
The current statutory ban on smoking in scheduled interstate,
intrastate, and foreign air transportation derives from the Wendell H.
Ford Aviation Investment and Reform Act for the 21st Century or ``AIR-
21'' (Pub. L. 106-181), which was signed into law on April 5, 2000. It
included section 708, ``Prohibitions Against Smoking on Scheduled
Flights,'' and was codified as 49 U.S.C. 41706. Section 41706 states:
(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.
On June 9, 2000, the Department amended 14 CFR part 252, titled
Smoking Aboard Aircraft, to implement section 41706. See 65 FR 36772.
As a result, part 252 today bans the smoking of tobacco products on all
scheduled passenger flights of air carriers, and on all scheduled
passenger flight segments of foreign air carriers between points in the
U.S. and between the U.S. and foreign points. Foreign air carriers may
request and obtain a waiver from this requirement provided that an
alternative smoking prohibition resulting from bilateral negotiations
is in effect. Part 252 also addresses smoking on charter flights. It
permits carriers operating single entity charters to allow smoking
throughout the aircraft but requires a no-smoking section for each
class of service on other charter flights where smoking is not banned.
Electronic cigarettes were introduced into the market in recent
years. Because of the increasing promotion and availability of
electronic cigarettes the issue has been raised as to whether the
statutory ban on smoking in section 41706 and existing regulatory
prohibition on the smoking of tobacco products in part 252 apply to
electronic cigarettes. The Department views the statutory and
regulatory ban on smoking to be sufficiently broad to include the use
of electronic cigarettes. While we view the statutory ban on smoking in
section 41706 to cover electronic cigarettes as the statutory authority
for this NPRM, we are, nonetheless, not solely relying on section
41706, which prohibits smoking aboard aircraft, but also another
statute, as was true when we amended Part 252 to implement section
41706. This statute, 49 U.S.C. 41702, mandates that an air carrier
shall provide safe and adequate interstate air transportation. We
invite all interested persons to comment.
Notice of Proposed Rulemaking
This NPRM proposes to amend part 252 to define smoking as the
smoking of tobacco products or use of electronic cigarettes that are
designed to deliver nicotine or other substances to a user in the form
of a vapor. The Department does not intend for the definition to
include the use of a device such as a nebulizer that delivers a
medically beneficial substance to a user in the form of a vapor.
Typically electronic cigarettes, also called ``e-cigarettes,'' are
designed to look like traditional cigarettes. E-cigarettes are
sometimes also made to look like cigars and pipes, and even everyday
products such as pens.
Studies show thousands of people use electronic cigarettes daily,
and the products generate an estimated $100 million annually in sales.
Some are marketed as being permissible in places where cigarette use is
prohibited. Through Congressional correspondence, anecdotal evidence,
and online sources, including blogs, the Department has been made aware
that some airline passengers have used or have attempted to use
electronic cigarettes on board commercial flights. This NPRM proposes
an explicit ban on the use of electronic cigarettes that would apply to
all forms of the products, including but not limited to: Electronic
cigars, pipes, and devices designed to look like everyday products such
as pens and USB memory sticks.
The Department views its current regulatory ban on smoking of
tobacco products on passenger flights to be sufficiently broad to
include the use of electronic cigarettes. The recent decision by the
U.S. Court of Appeals for the DC Circuit, Sottera, Inc. v. Food & Drug
Administration, 627 F.3d 891 (D.C. Cir. 2010), supports the
Department's view that electronic cigarettes are often tobacco
products. In that decision, the Court held that e-cigarettes and other
products made or derived from tobacco can be regulated as ``tobacco
products'' under the Family Smoking Prevention and Tobacco Control Act
of 2009 (Tobacco Control Act). The Tobacco Control Act broadly defines
tobacco products as extending to ``any product made or derived from
tobacco.'' However, if the products are marketed for therapeutic
purposes, the court determined that they will then be regulated as
drugs and/or devices under the Food, Drug, and Cosmetic Act.
The Department is proposing in this NPRM to explicitly ban the use
of electronic cigarettes on aircraft as there has been some confusion
over whether the Department's ban on smoking of tobacco products
includes a ban on use of electronic cigarettes. We see no reason to
treat electronic cigarettes any differently than traditional
cigarettes. The purpose behind the statutory ban on smoking aboard
aircraft and the regulatory ban in part 252 on smoking tobacco products
was to improve air quality within the aircraft, reduce the risk of
adverse health effects on passengers and crewmembers, and enhance
aviation safety and passenger comfort. Electronic cigarettes are
generally designed to look like and to be used in the same manner as
conventional cigarettes. Although a vapor, rather than smoke, is
produced, the products require an inhalation and exhalation similar to
smoking cigarettes. We are unaware of sufficient studies on the health
impact on third parties from these vapors to conclude that they would
not negatively impact the air quality within the aircraft and/or
increase the risk of adverse health effects on passengers and
crewmembers.
Each e-cigarette consists of three parts: The replaceable
cartridge, which most often contains liquid nicotine but may contain
other chemicals, the atomizer or heating element, and the battery and
electronics. See Sottera Inc. v. Food & Drug Administration, 627 F.3d
891, 893 (D.C. Cir 2010). The
[[Page 57010]]
atomizer or heating element vaporizes the liquid inside the cartridge,
and the battery and electronics power the atomizer and monitor air
flow. Id. When the user inhales, the electronics detect the air flow
and activate the atomizer, the liquid nicotine is vaporized, and the
user inhales the vapor. Id.
Some electronic cigarette companies have claimed that their
products are safe because they reportedly do not contain carcinogens or
tar or produce second-hand smoke, as there is no combustion in their
use. According to these arguments, while the vapor looks and feels, and
may taste, like smoke produced by burning traditional tobacco products,
its chemistry differs from the smoke produced from burning conventional
tobacco products. The principal liquid ingredient is propylene glycol,
which is widely used as a moistening food additive and an aid to
vaporization. However, some research, conducted on non-asthmatic
people, has shown that exposure to propylene glycol mist from
artificial smoke generators may cause acute ocular and upper airway
irritation, and in a few cases people reacted with cough and slight
airway obstruction. See G Wieslander, D Norb[auml]ck, and T Lindgren,
``Experimental exposure to propylene glycol mist in aviation emergency
training: Acute ocular and respiratory effects,'' Occupational and
Environmental Medicine 2001; 58:649-655. Further, in a recent New
England Journal of Medicine article, ``E-Cigarette or Drug-Delivery
Device? Regulating Novel Nicotine Products,'' it was noted that the
safety of inhaling propylene glycol has not been studied in humans.
365;3: 193-95.
Researchers at the University of California, Riverside, published a
study on December 7, 2010, in which they evaluated five electronic
cigarette brands. See Anna Trtchounian & Prue Talbot, ``Electronic
nicotine delivery systems: Is there a need for regulation?'' Tobacco
Control, December 7, 2010. The study found design flaws, lack of
adequate labeling, and concerns over quality control and health issues
with respect to the products. One primary observation was that
electronic cigarette cartridges leak, which could expose nicotine to
children, adults, and the environment. The study concluded that
electronic cigarettes are potentially harmful and should be removed
from the market until their safety can be adequately evaluated.
Moreover, the New England Journal of Medicine article discussed above
echoed some of these concerns, noting that testing of cartridges
revealed poor quality control, marked variability in nicotine content,
as well as significant deviations from the content claimed on the
label. 365;3: 194-95.
Numerous public health experts also have voiced concerns over
electronic cigarettes. Reacting to the University of California,
Riverside, study, a research administrator from the University of
California Tobacco-Related Disease Research Program stated, ``More
research on e-cigarettes is crucially needed to protect the health of
e-cigarette users and even those who do not use e-cigarettes. Contrary
to the claims of the manufacturers and marketers of e-cigarettes being
`safe,' in fact nothing is known about the toxicity of the vapors
generated by these e-cigarettes.'' See ScienceDaily.com, ``Electronic
Cigarettes are Unsafe and Pose Health Risks, Study Finds,
http://www.sciencedaily.com/releases/2010/12/101203141932.htm (last visited
Mar. 8, 2011). The American Legacy Foundation issued a statement in May
2009 stating, ``We do not yet know all of the ingredients in these
products and, accordingly, the impact of those ingredients on the
health of people who `smoke' e-cigarettes or the people around them.''
A December 2010 editorial in the American Journal of Public Health
called for removal of e-cigarettes from the market, pending rigorous
safety testing.
We note that Amtrak has banned the use of electronic smoking
devices on trains and in any area where smoking is prohibited, the Air
Force Surgeon General issued a memorandum highlighting the safety
concerns regarding electronic cigarettes and placed them in the same
category as tobacco products, and the U.S. Navy has banned them below
decks in submarines. Moreover, several states have taken steps to ban
either the sale or use of electronic cigarettes, in the absence of
federal regulation.
The purpose behind the statutory ban on smoking aboard aircraft and
the regulatory ban in Part 252 on smoking tobacco products was to
improve air quality within the aircraft, reduce the risk of adverse
health effects on passengers and crewmembers, and enhance aviation
safety and passenger comfort. The object of the proposed rule is to
prevent introduction of a new potential source of contamination to the
cabin environment that could potentially endanger the welfare of
nonsmokers who are now protected from all such exposure. Consistent
with this underlying purpose, we are proposing this NPRM. There is a
lack of scientific data and knowledge with respect to the ingredients
in electronic cigarettes. The quantity and toxicity of exhaled vapors
have not been studied. Releasing a vapor that may contain harmful
substances or respiratory irritants in a confined space, especially to
those who are at a higher risk, is contrary to the purpose and intent
of the statutory and regulatory ban on smoking aboard aircraft.
In light of the unknown health risks with the use of electronic
cigarettes by individuals who ``smoke'' them or the people around them
and the growing availability and use of electronic cigarettes, the
Department is proposing this amendment to Part 252 to explicitly ban
the use of electronic cigarettes aboard aircraft. The Department seeks
comments on the following: (1) Whether the definition of ``smoking'' in
the proposed rule text is too broad in that it may unintentionally
include otherwise permissible medical devices that produce a vapor; (2)
concerns over, and benefits of, the proposal to clarify the prohibition
in Part 252 to explicitly cover electronic cigarettes; and (3) any
other information or data that are relevant to the Department's
decision.
The Department is also considering whether to extend the ban on
smoking (including electronic cigarettes) to charter flights of air
carriers and foreign air carriers between points in the U.S. and
between the U.S. and any foreign point with aircraft that have a
designed seating capacity of 19 or more passenger seats. Under the
current part 252, air carriers operating single-entity charters may
permit smoking throughout the aircraft (i.e., they are not required to
have a no-smoking section) 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. See 14 CFR 252.19. Part 252 permits
air carriers to allow smoking on other types of charter flights as long
as the following is provided: (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 desire to be
seated in that section, (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. See 14 CFR 252.7. The
Department is considering banning smoking on charter flights with 19 or
more passenger seats in part out of concern about the health effects of
second hand smoke on flight attendants aboard such flights. For
aircraft with fewer than 19 passenger seats, no flight
[[Page 57011]]
attendant is required. See 14 CFR 121.391, 14 CFR 125.269, and 14 CFR
135.107. The Department seeks comment on the benefits and drawbacks of
extending the smoking ban to charter flights of U.S. and foreign
carriers between the U.S. and any foreign point with aircraft that have
a seating capacity of 19 or more. We invite all interested persons to
comment on the issues raised in this notice.
We note that we are not addressing in this rulemaking any other
safety-related issues that may exist with the use of electronic
cigarettes aboard aircraft (e.g., possible interference with the
navigation or communication systems of the aircraft or potential
hazards associated with the batteries that power electronic
cigarettes). In addition to the Office of the Secretary, the Federal
Aviation Administration regulates smoking aboard aircraft. The FAA,
under its safety mandate, has rules to address the safety problems that
can develop when people on board aircraft violate the statutory ban on
smoking and try to conceal their smoking. The FAA rules also address
passenger information signs and passenger briefings used to inform
passengers of the smoking prohibition. See 14 CFR 121.317, 14 CFR
129.29, and 14 CFR 135.127. Our final action will be based on the
comments and supporting evidence filed in this docket and on our own
analysis.
Regulatory Analyses and Notices
A. Executive Order 12866 (Regulatory Planning and Review) and DOT
Regulatory Policies and Procedures
This action has been determined to be significant under Executive
Order 12866 and the Department of Transportation's Regulatory Policies
and Procedures. It has been reviewed by the Office of Management and
Budget under that Order. We find that the benefits of the proposal
exceed its costs.
In 2009, there were a total of 73 U.S. carriers and 101 foreign air
carriers providing service covered by the present rule. In total, these
carriers operated 782 million passenger departures. These passengers
and carriers and their employees have all benefited from protection by
the existing rule against the injurious effects of secondhand smoke.
They have also benefited from inclusion of e-cigarettes in the smoking
prohibition to the extent that exhaled vapors may be harmful (whether
or not including components of nicotine). The proposed rule would offer
incremental benefits in limiting potential pollution resulting from the
mistaken supposition that e-cigarettes are not covered by the current
no-smoking rules. As the market for these devices expands, the number
of misinformed passengers and the difficulty of reducing confusion over
the use of these devices would likely grow without this rulemaking.
Costs of enforcement should be negligible at this time. By making
the prohibition explicit and public, the Department will relieve
carriers of much of the burden of policing violations and explaining
the rule to passengers who mistakenly believe that use of e-cigarettes
is allowed. The present system for notifying passengers of the
prohibition should need little modification, although notice that e-
cigarettes are not exempt might be appropriate at certain times, either
orally or otherwise. While a small fraction of passengers may suffer
from nicotine withdrawal, they would still have access to alternative
methods of nicotine replacement such as gum or patches that do not
release contaminants into the environment.
B. Regulatory Flexibility Act
Pursuant to section 605 of the Regulatory Flexibility Act (RFA), 5
U.S.C. 605(b), as amended by the Small Business Regulatory Enforcement
and Fairness Act of 1996 (SBREFA), DOT certifies that this rulemaking
will not have a significant economic impact on a substantial number of
small entities. The NPRM would impose no new duties or obligations on
small entities.
C. Executive Order 13132 (Federalism)
This action 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, and therefore will not have federalism
implications.
D. Executive Order 13084
This notice has been analyzed in accordance with the principles and
criteria contained in Executive Order 13084 (``Consultation and
Coordination with Indian Tribal Governments''). Because the provision
on which we are seeking comment would not significantly or uniquely
affect the communities of the Indian tribal governments or impose
substantial direct compliance costs on them, the funding and
consultation requirements of Executive Order 13084 do not apply.
E. Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et seq.)
requires that DOT consider the impact of paperwork and other
information collection burdens imposed on the public and, under the
provisions of PRA section 3507(d), obtain approval from the Office of
Management and Budget (OMB) for each collection of information it
conducts, sponsors, or requires through regulations. DOT has determined
that there are no information collection requirements associated with
this NPRM.
F. Unfunded Mandates Reform Act
The Department has determined that the requirements of Title II of
the Unfunded Mandates Reform Act of 1995 do not apply to this
rulemaking.
List of Subjects in 14 CFR Part 252
Air carriers, Aircraft, Consumer protection, Foreign air carriers,
smoking.
Issued this 2nd day of September 2011, in Washington, DC.
Susan L. Kurland,
Assistant Secretary for Aviation and International Affairs.
For the reasons set forth in the preamble, the Department proposes
to amend 14 CFR part 252 as follows:
PART 252--[AMENDED]
1. The authority citation for 14 CFR Part 252 continues to read as
follows:
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.
2. Section 252.1 is revised to read as follows:
Sec. 252.1 Purpose.
This part implements a ban on smoking on air carrier and foreign
air carrier flights in scheduled intrastate, interstate and foreign air
transportation. It also addresses smoking on charter flights. Nothing
in this part shall be deemed to require air carriers or foreign air
carriers to permit smoking aboard aircraft.
3. Section 252.3 is revised to read as follows:
Sec. 252.3 Definitions.
As used in this part:
Air carrier means a carrier that is a citizen of the United States
undertaking to provide air transportation as defined in 49 U.S.C.
40102.
Foreign air carrier means a carrier that is not a citizen of the
United States undertaking to provide foreign air transportation as
defined in 49 U.S.C. 40102.
No-smoking section and no-smoking area means an area where smoking
of tobacco products or use of electronic cigarettes and similar
products that are
[[Page 57012]]
designed to deliver nicotine or other substances to a user in the form
of a vapor is prohibited.
Smoking means the smoking of tobacco products or use of electronic
cigarettes and similar products designed to deliver nicotine or other
substances to a user in the form of a vapor. It does not include the
use of a device such as a nebulizer that delivers a medically
beneficial substance to a user in the form of a vapor.
4. Section 252.4 is added to read as follows:
Sec. 252.4 Smoking ban: air carriers.
Air carriers shall prohibit smoking on all scheduled passenger
flights.
5. Section 252.8 is revised to read as follows:
Sec. 252.8 Extent of smoking restrictions.
The restrictions on smoking described in Sec. Sec. 252.4 through
252.7 shall apply to all locations within the aircraft.
[FR Doc. 2011-23673 Filed 9-14-11; 8:45 am]
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