[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]


=======================================================================
-----------------------------------------------------------------------

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).

-----------------------------------------------------------------------

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]
BILLING CODE 4910-9X-P