[Federal Register Volume 81, Number 43 (Friday, March 4, 2016)]
[Rules and Regulations]
[Pages 11415-11428]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-04799]


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DEPARTMENT OF TRANSPORTATION

Office of the Secretary

14 CFR Part 252

[Docket No. DOT-OST-2011-0044]
RIN 2105-AE06


Use of Electronic Cigarettes on Aircraft

AGENCY: Office of the Secretary (OST), Department of Transportation 
(DOT).

ACTION: Final rule.

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SUMMARY: The Department of Transportation is issuing a final rule to 
extend the smoking ban in DOT's regulation to include all charter 
(i.e., nonscheduled) flights where a flight attendant is a required 
crewmember. The revised regulation would comport with 49 U.S.C. 41706, 
which was revised in 2012, to ban smoking on charter flights where a 
flight attendant is a required crewmember. This final rule also 
explicitly bans the use of electronic cigarettes (``e-cigarettes'') on 
all flights where smoking is banned. The Department interprets the 
existing regulation to prohibit e-cigarette use, but is codifying this 
interpretation.

DATES: The rule is effective April 4, 2016.

FOR FURTHER INFORMATION CONTACT: Robert M. Gorman, Senior Trial 
Attorney, or Blane A. Workie, 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, 202-366-9342, 202-366-7152 (fax), 
[email protected] or [email protected] (email).

SUPPLEMENTARY INFORMATION:

Background

    The Wendell H. Ford Aviation Investment and Reform Act for the 21st 
Century (Pub. L. 106-181) was signed into law on April 5, 2000. Section 
708 of this statute, ``Prohibitions Against Smoking on Scheduled 
Flights'' (codified as 49 U.S.C. 41706), banned passengers from smoking 
on all flights in scheduled passenger interstate and intrastate air 
transportation, and directed the Secretary of Transportation to 
prohibit smoking in foreign air transportation (with an exception 
process for foreign carriers). Shortly thereafter, the Department of 
Transportation (``DOT,'' or ``the Department'') amended its rule on 
smoking aboard aircraft, 14 CFR part 252, to implement section 41706. 
Under part 252, the smoking of tobacco products is banned on all 
scheduled passenger flights of air carriers, and on all scheduled 
passenger flight segments of foreign air carriers between points in the 
United States and between the United States and foreign points. Under 
part 252, foreign governments may request and obtain a waiver from DOT 
provided that an alternative smoking prohibition resulting from 
bilateral negotiations is in effect. Further, part 252 was amended to 
permit carriers operating single-entity charters to allow smoking 
throughout the aircraft, but also required a no-smoking section for 
each class of service (e.g., first class) on other charter flights 
where smoking is not banned.
    Throughout this preamble, we use 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.

The Notice of Proposed Rulemaking

Electronic Cigarettes and Other Nicotine Delivery Systems

    On September 15, 2011, the Department published a notice of 
proposed rulemaking (NPRM) in which it proposed to amend its existing 
smoking rule (part 252) to explicitly ban the use of e-cigarettes on 
all flights covered by that rule (i.e., all flights of U.S. air 
carriers in scheduled passenger interstate, intrastate and foreign air 
transportation and all scheduled flight segments of foreign air 
carriers in, to, or from the United States).\1\ E-cigarettes typically 
contain a cartridge or chamber, which contain an atomizer or heating 
element, a battery and a liquid solution. Most often e-cigarettes 
contain liquid nicotine but they may contain other chemicals. When a 
user inhales, the heating element aerosolizes the liquid solution. This 
produces an aerosol,\2\ which requires an inhalation and exhalation 
similar to smoking cigarettes. In addition to nicotine, e-cigarette 
aerosol can contain heavy metals, ultrafine particulates that can be 
inhaled deep into the lungs, and cancer-causing agents like acrolein. 
Secondhand

[[Page 11416]]

aerosol that is exhaled by users may reduce air quality and is 
potentially harmful to health. Sometimes e-cigarettes are designed to 
look like traditional cigarettes, but at times they are also made to 
look like cigars, pipes, and even everyday products such as pens.
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    \1\ Smoking of Electronic Cigarettes on Aircraft, Department of 
Transportation, Office of the Secretary, 14 CFR part 252, [Docket 
No. DOT-OST-2011-0044], RIN 2105-AE06, 76 FR 57008 (Sept. 15. 2011).
    \2\ Our NPRM and many commenters referred to the exhaled product 
of e-cigarettes as a ``vapor.'' It is more accurate to refer to the 
product as an aerosol. See Grana et al., E-Cigarettes: A Scientific 
Review, http://www.ncbi.nlm.nih.gov/pmc/articles/PMC4018182/. 
Products that create both vapors and aerosols are included in the 
Department's definition of ``smoking.''
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    The increased promotion and availability of e-cigarettes raised the 
issue of whether the statutory ban on smoking on scheduled passenger 
flights in section 41706 and the existing regulatory prohibition on the 
smoking of tobacco products in part 252 applied to e-cigarettes. In the 
NPRM, we explained that the Department views the existing statutory and 
regulatory framework to be sufficiently broad to include the use of e-
cigarettes; however, the purpose of the proposal was to clarify and 
codify this position. In addition to relying on section 41706 as our 
statutory authority for the rule, we also relied on 49 U.S.C. 41702, 
which requires air carriers to provide safe and adequate interstate air 
transportation. Another Federal statute, 49 U.S.C. 41712, which 
prohibits airlines from engaging in unfair or deceptive practices or 
unfair methods of competition in air transportation or the sale of air 
transportation, provides additional support for the e-cigarette rule. 
(See ``Authority to Regulate E-Cigarettes under 49 U.S.C. 41712,'' 
below).
    The NPRM stated our position that the reasons supporting the 
statutory and regulatory ban on smoking also apply to a ban on e-
cigarettes: Improving air quality within the aircraft, reducing the 
risk of adverse health effects on passengers and crewmembers, and 
enhancing aviation safety and passenger comfort. We also discussed 
Sottera, Inc. v. Food & Drug Administration, 627 F.3d 891 (D.C. Cir. 
Dec. 7, 2010), in which the court held that the Food and Drug 
Administration (FDA) could not regulate ``customarily marketed'' 
electronic cigarettes as drugs or devices under the Federal Food, Drug, 
and Cosmetic Act (FDCA), but that the FDA could regulate the e-
cigarettes at issue as tobacco products under the FDCA as amended by 
the Family Smoking Prevention and Tobacco Act of 2009 (Tobacco Control 
Act).
    The FDA has express authority under the Tobacco Control Act to 
regulate only the following tobacco products at this time: cigarettes, 
cigarette tobacco, roll-your-own tobacco, and smokeless tobacco. The 
Tobacco Control Act permits the FDA to extend its tobacco products 
authority to other types of tobacco products by issuing regulations. On 
April 25, 2014, the FDA issued a proposed rule to extend FDA's tobacco 
product authorities to include e-cigarettes and other types of tobacco 
products.\3\
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    \3\ Deeming Tobacco Products to be Subject to the Federal Food, 
Drug, and Cosmetic Act, as Amended by the Family Smoking Prevention 
and Tobacco Control Act; Regulations on the Sale and Distribution of 
Tobacco Products and Required Warning Statements for Tobacco 
Products, Department of Health and Human Services, Food and Drug 
Administration, 14 CFR parts 1100, 1140, and 1143, [Docket No. FDA-
2014-N-0189], RIN 0910-AG38, 79 FR 23142 (April 25, 2014).
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    Similarly, in our NPRM, we proposed to amend DOT's smoking rule so 
it clearly covers e-cigarettes by including a definition of smoking. 
For purposes of this rule, we proposed to define smoking as: ``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,'' with an exemption for ``the use of a device such 
as a nebulizer that delivers a medically beneficial substance to a user 
in the form of a vapor.''
    In the NPRM, the Department sought comment on: (1) Whether the 
definition of ``smoking'' in the proposed rule text was so broad that 
it might 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 e-
cigarettes; and (3) any other information or data relevant to the 
Department's decision.

Charter (Nonscheduled) Passenger Flights

    In addition, the NPRM also stated the Department's intent to 
consider whether to extend the ban on smoking, including e-cigarettes, 
to charter flights with aircraft that have a seating capacity of 19 or 
more passenger seats--i.e., those flights that generally require a 
flight attendant.\4\ The Department proposed banning smoking on charter 
flights with 19 or more passenger seats, citing public health concerns 
for flight attendants who may be subject to secondhand smoke on board 
such charter flights. Thus, the Department sought comment on the 
benefits and drawbacks of extending the smoking ban to charter flights 
that have a seating capacity of 19 or more passenger seats.
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    \4\ Generally, pursuant to FAA regulations, a flight attendant 
is a required crewmember for Part 121, 125, and 135 operations where 
the aircraft has a seating capacity of more than nineteen. See 14 
CFR 121.391, 125.269, 135.107. A flight attendant is also a required 
crewmember for Part 121 operations with airplanes that have a 
maximum payload capacity of more than 7,500 pounds and a seating 
capacity of more than nine. 14 CFR 121.269(a)(1).
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    A ban on smoking on charter flights where a flight attendant is a 
required crewmember was enacted into law on February 14, 2012, in the 
FAA Modernization and Reform Act of 2012, Public Law 112-95. Section 
401 of the Act amended section 41706, the existing smoking statute, by 
broadening the smoking prohibition to include aircraft in nonscheduled 
passenger interstate, intrastate and foreign air transportation, if a 
flight attendant is a required crewmember on the aircraft (as 
determined by the Federal Aviation Administration or a foreign 
government).

Discussion of Comments

Overview

    In response to the NPRM, the Department received over 1000 
comments, the majority of which were in response to the e-cigarette 
issue. A majority of the comments received on the NPRM were from 
individuals. In addition, the Department received comments from the 
following entities: U.S. carrier and foreign carrier associations, 
members of Congress, pilot associations, flight attendant associations, 
consumer organizations, advocacy and special interest organizations, 
local governments, and medical associations.
    The Department has carefully reviewed and considered the comments 
received. The commenters' positions are summarized below.

Definition of ``Smoking''

    In the NPRM, we asked 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. We proposed 
the following definition:

    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.

    The Air Transport Association of America (now Airlines for America 
(A4A)), International Air Transport Association (IATA), Regional 
Airline Association (RAA), and Air Carrier Association of America 
(ACAA) filed a joint comment stating their view that the proposed 
definition was adequate as written, and that it would not 
unintentionally include otherwise permissible medical devices. Also, 
the American Thoracic Society suggested that the Department consider 
explicitly stating in its definition that FDA-approved medical devices, 
such as

[[Page 11417]]

nebulizers, metered dose inhalers, ventilators, supplemental oxygen and 
other respiratory assistive devices meeting Federal Aviation 
Administration (FAA) requirements, are not covered by the definition of 
smoking.
    With respect to comments received from individuals, there was a 
concern raised by some that the definition could include all inhalers, 
asthma inhalers, or permissible nicotine replacement products. Some 
suggested that ``medically beneficial'' is too broad because in some 
cases, nicotine may be medically beneficial. Therefore, the commenters 
suggest changing the language to ``medically necessary substances,'' 
``FDA-approved devices,'' or ``prescription drugs.'' One commenter 
stated that the definition is circular because it uses ``smoking'' in 
the definition of ``smoking.'' In addition, some commenters suggested 
it would be clearer to add the word ``harmful'' before ``vapor.''
    Finally, one commenter suggested the following definition as an 
alternative to the proposed rule text: ``any inhalation or exhalation 
of a tobacco product, electronic cigarette, or similar products that 
emits a smoke, mist, vapor, etc., with the exception of medical devices 
such as nebulizers.''

DOT Response

    Based on the comments received, we have decided to edit our 
proposed definition of smoking to read as follows:

    Smoking means the use of a tobacco product, electronic 
cigarettes whether or not they are a tobacco product, or similar 
products that produce a smoke, mist, vapor, or aerosol, with the 
exception of products (other than electronic cigarettes) which meet 
the definition of a medical device in section 201(h) of the Federal 
Food, Drug and Cosmetic Act, such as nebulizers.

    We feel this change more succinctly addresses our targeted 
prohibition and makes clear that products which meet the definition of 
a medical device (other than electronic cigarettes) in section 201(h) 
of the Federal Food, Drug and Cosmetic Act, such as nebulizers, are 
exempt. The use of electronic cigarettes would fall within the smoking 
ban even if electronic cigarettes were to meet the definition of a 
medical device.

Coverage of E-Cigarettes

    In the NPRM, we explained that we interpret the existing part 252 
to ban the use of e-cigarettes on all flights and that we were seeking 
to codify this interpretation. We solicited comments about the 
potential benefits or harm of this proposal.
    In their joint comment, A4A, IATA, RAA, and ACAA stated their 
support for the proposed ban, arguing that e-cigarettes should be 
treated the same as other tobacco products. These organizations voiced 
concern over the ingredients in e-cigarettes, which could possibly 
cause airway irritation for users and others nearby. They also named 
design flaws, inadequate labeling, quality control, and health issues 
as concerns. Further, the commenters stated, ``in fact, all carriers 
already prohibit e-cigarette use in the cabin for the same reasons the 
Department provided.''
    The Air Line Pilots Association (ALPA) stated its belief that the 
proposed rule would prevent degradation of the air quality onboard 
aircraft, and asserted that the health risks for human use need to be 
more thoroughly understood for both users and non-users who are 
subjected to ``secondhand smoke.'' ALPA also noted the possibility of 
passenger and crewmember confusion in differentiating e-cigarettes from 
tobacco cigarettes, as the two products can be difficult to distinguish 
from each other.
    The Association of Flight Attendants (AFA) reported that it has 
received occasional reports of in-flight passenger use of the devices 
and some confusion among travelers regarding airline policies. AFA 
stated its support for treating the devices the same as traditional 
cigarettes. AFA believes that DOT is appropriately applying a 
precautionary principle because the toxicity of e-cigarettes is not 
well understood. In addition, the Association of Professional Flight 
Attendants, representing flight attendants for American Airlines, 
submitted a comment stating that American Airlines currently bans e-
cigarettes, but nonetheless still urged DOT to promulgate a final rule 
to create consistency across the industry. The Association further 
noted that the science behind the effects that e-cigarettes may have on 
third parties is, at best, inconclusive, and that they adamantly 
advocate for a healthy environment for all flight attendants.
    The Independent Pilots Association, the bargaining unit for the 
pilots of United Parcel Service, stated its support for the rule on 
safety grounds (based on the inherent dangers of using lithium battery 
powered e-cigarettes onboard aircraft). However, it also expressed the 
view that DOT has created a double standard of safety regulations by 
carving out less safe standards for cargo aircraft operations, and 
urged that the rule be applied to all aircraft.
    We received comments from a number of medical associations, each 
voicing their support for the proposed ban. The American Academy of 
Pediatrics (AAP) commented that it was unaware of any data which would 
suggest that it is safe for children as passengers in aircraft to be in 
close proximity to exhaled ``vapors'' from e-cigarettes. Further, the 
AAP noted that FDA data demonstrate that e-cigarette vapor includes 
known toxicants, carcinogens, and irritants of the respiratory tract. 
The American Thoracic Society (ATS) commented that while e-cigarette 
manufacturers claim that the devices are a reduced-risk product, there 
is little evidence to support this claim, and that the limited research 
on these products has found significant variation between 
manufacturers' attestations and the actual dose of nicotine delivered 
by the products. ATS further stated that it is not aware of any studies 
that suggest exhaled e-cigarette vapors are risk-free and that the use 
of these devices in the confined space of an airline cabin should be 
viewed with extreme caution. The California Medical Association (CMA) 
stated its support for the prohibition of the use of any nicotine 
delivery devices not approved by the FDA in places where smoking is 
already prohibited by law. CMA also noted that several local and State 
governments have banned e-cigarettes in indoor public spaces and 
workplaces. The Oncology Nursing Society expressed its support for the 
ban, citing evidence for the presence of toxic chemicals in e-cigarette 
aerosol.
    The Department also received a letter of support for the proposed 
rule signed by seven members of the U.S. Senate.\5\ The Senators urged 
a strong final rule, and stated that the devices raise significant 
public health concerns. They also expressed concern with respect to the 
manufacturing and quality control of e-cigarettes. In sum, the Senators 
stated that the proposed rule recognizes the rights of airline 
passengers to a safe travel environment and promotes public health.
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    \5\ Letter from Senators Barbara Boxer, Richard J. Durbin, Tom 
Harkin, Richard Blumenthal, Jack Reed, and Edward J. Markey to 
Secretary Anthony Foxx (June 10, 2014) (available in the public 
docket).
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    In addition, we received two comments from local governments. The 
New York City Department of Health and Mental Hygiene (DOHMH) submitted 
a comment stating its concern that e-cigarettes are not FDA-approved 
and may contain chemicals that could harm users or those around them, 
especially in confined spaces such as

[[Page 11418]]

aircraft. DOHMH noted that the proposed rule would make enforcement of 
the existing smoking ban easier, as e-cigarettes can be difficult to 
distinguish from traditional cigarettes. Seattle and King County, 
Washington, which passed a regulation prohibiting the use of e-
cigarette devices in places where smoking is prohibited by law, 
commented that a precautionary approach is warranted as the products 
are relatively new to the market and research has not conclusively 
identified the components of the vapor that are exhaled.
    We received several comments from other advocacy organizations. The 
American Cancer Society, American Heart Association, American Lung 
Association, Campaign for Tobacco-Free Kids, and Legacy submitted a 
joint comment in support of the proposed rule, stating that in the 
context of smoking prohibitions on aircraft, e-cigarettes should be 
considered the same as traditional cigarettes. The organizations 
commented that the health consequences of e-cigarette use are unknown, 
and therefore restrictions on their use inside aircraft are appropriate 
until it can be shown with a high degree of certainty that they pose no 
harm to non-users. The organizations also argued that allowing the use 
of e-cigarettes on aircraft would create significant confusion for 
passengers and enforcement challenges for airline personnel, citing an 
incident on a Southwest Airlines flight on July 13, 2011, where a man 
was arrested for pelting a flight attendant with peanuts and pretzels 
after being asked to put away his e-cigarette upon attempting to smoke 
the device. The organizations also argued that DOT's proposed rule is 
consistent with the decision in Sottera. Finally, the organizations 
argued that prohibiting e-cigarette use on aircraft promotes the health 
goal of reducing the use of tobacco products through the promotion of 
non-smoking environments.
    Americans for Nonsmokers' Rights (ANR) submitted a comment in 
support of the proposed rule, stating its belief that e-cigarettes 
should be prohibited in all places where the smoking of tobacco 
products is prohibited. ANR stated that its primary reason for 
supporting the ban is that the devices' components raise significant 
health concerns. ANR also asserted that e-cigarettes can undermine and 
cause confusion over compliance with smoke-free rules when used on 
airplanes. Finally, ANR noted that there are at least 25 municipalities 
that define ``smoking'' to include the use of e-cigarettes and prohibit 
their use in workplaces and public places. Arizonans for Nonsmokers' 
Rights expressed the view that e-cigarettes posed respiratory hazards 
to non-users, and that permitting e-cigarettes aboard aircraft may 
infringe on the rights of individuals with respiratory disabilities.
    The Kentucky Center for Smoke-free Policy submitted a comment 
strongly in support of the proposed ban, stating that although there is 
a need for rigorous scientific study of e-cigarettes, it is known that 
the vapor emitted from the devices contains several volatile organic 
compounds (e.g., acetone, styrene, and ethyl alcohol acetaldehyde) that 
can cause negative health effects. The Kentucky Center also commented 
that the use of e-cigarettes on aircraft may lead people to believe 
that smoking is permitted, and may undermine smoke-free policies. The 
Tobacco Free Coalition of Pinellas County (FL) expressed similar health 
concerns.
    FlyersRights.org, a non-profit airline passenger rights advocacy 
organization, conducted a survey of its members to gauge public opinion 
on the proposed rule. The survey garnered 987 responses, and those who 
responded voted overwhelmingly (81.4%) in favor of the NPRM. Support 
was generally based on the grounds of public health or cabin comfort. 
Those opposing the ban were almost evenly divided in their reasoning, 
with some doubting that the e-cigarettes pose any risk, others 
believing that current research is insufficient to support the 
regulation, and still others objecting generally to the proposed ban.
    The following organizations submitted comments in opposition to the 
proposed rule. Smokin' Vapor LLC submitted a comment in opposition 
stating that e-cigarettes do not burn any matter, and that their 
ingredients (water, flavorings, nicotine--when chosen--and propylene 
glycol) are safe, and even beneficial to users in some instances. The 
National Vapers Club submitted a comment stating that e-cigarettes do 
not produce smoke and therefore do not create the byproducts of 
combustion. National Vapers stated that banning e-cigarettes is akin to 
banning the use of Nicotrol inhalers. The organization added that e-
cigarettes have not been shown to cause any harm to bystanders; until 
such harm is proven, the club believes that the ban is unfounded. 
National Vapers also asserted that it is the responsibility of airlines 
to explain the use of e-cigarettes to those who are uncomfortable with 
them, and to alleviate the concerns of those who are not familiar with 
the products. In addition, Smokers Fighting Discrimination, Inc., 
submitted a comment in opposition to the proposed ban, stating that e-
cigarettes emit water vapor, but not smoke.
    Smokefree Pennsylvania submitted a comment that outlined several 
reasons for its opposition to the proposed ban. The organization 
challenged the Department's statutory authority to promulgate the rule 
under 49 U.S.C. 41706. The organization reasoned that the statute does 
not authorize the ban of e-cigarettes because vapor does not involve 
combustion, and thus is vastly different from tobacco smoke. Smokefree 
Pennsylvania stated that the Department falsely alleged that using an 
e-cigarette is the same as smoking. The organization also challenged 
the Department's statutory authority under 49 U.S.C. 41702, stating 
that there is no evidence that e-cigarettes have harmed anyone or that 
they pose any health or safety risks to users or non-users. The 
organization alleged that the NPRM deceives the public into believing 
that e-cigarettes emit smoke and pose health risks to users and non-
users similar to those posed by cigarette smoke. Furthermore, it argued 
that none of the studies cited by the Department had found any 
hazardous levels of chemicals in e-cigarettes. The organization also 
asserted that the proposal is unenforceable, as e-cigarette consumers 
can use the products discreetly without anyone noticing because the 
vapor that is emitted is not visible. As evidence of this assertion, 
the organization stated that there have been no citations issued for 
violating indoor e-cigarette usage bans in New Jersey, Seattle, or 
other jurisdictions where e-cigarettes have been banned. Finally, the 
organization noted that violators of the Department's proposed rule 
would face a $3,300 fine, which the organization claimed is excessive 
and may violate the 8th Amendment's prohibition against cruel and 
unusual punishment.
    The Consumer Advocates for Smoke-Free Alternatives Association 
(CASAA) and the Competitive Enterprise Institute (CEI) submitted a 
comment urging the Department to withdraw its proposed ban, and cited 
reasons for its opposition similar to those offered by Smokefree 
Pennsylvania. CASAA and CEI challenged the Department's statutory 
authority, arguing that the statutory ban on in-flight smoking, 49 
U.S.C. 41706, does not extend to smoke-free products such as e-
cigarettes. Also, these organizations argued that the Department's 
reliance on 49 U.S.C Sec.  41702 is misplaced, as there is no research 
indicating that e-cigarette vapor, with or without nicotine, is harmful 
to users or bystanders. The organizations cited a Health New Zealand 
report where e-cigarette mist

[[Page 11419]]

was tested for over 50 cigarette smoke toxicants, and no such toxicants 
were found. CASAA and CEI additionally argued that the Department has 
failed to perform a cost-benefit analysis and has not demonstrated that 
the ban would produce any benefits; the American Aviation Institute 
echoed this view. Lastly, CASAA and CEI stated that the possible civil 
penalty of $3,300 for violating part 252 is not justified, as e-
cigarettes would not impair cabin air quality or cause damage to 
aircraft seats or carpeting.
    We now turn to comments received from the public. By the end of the 
comment period on November 15, 2011, the Department received 
approximately 700 total comments; approximately 500 of those were from 
individuals opposed to the proposed ban. (Many of the comments received 
in opposition to the proposed rule were identical.) The purported lack 
of DOT jurisdictional authority to create the proposed rule and lack of 
research, data, evidence, or proof to support the rule were common 
themes. Many felt that the Department was overstepping its statutory 
authority, and argued that e-cigarettes are not smoked, but ``vaped'' 
(producing water vapor), and as such do not fall within the smoking 
statute, section 41706. Also, many felt that the Department failed to 
justify the proposed ban under section 41702 because it did not provide 
any evidence that e-cigarettes are harmful to bystanders. Some 
individuals asserted that there have not been any reported health 
issues with respect to the devices and stated that lack of evidence 
cannot be the basis for a rule. Many argued that the proposed rule was 
an example of unnecessary government regulation, and that the better 
approach would be to allow the industry to devise its own rules for the 
products. It was also argued that the proposed regulation would be 
unenforceable because users can easily hide their use of e-cigarettes. 
Finally, some argued that the civil penalty associated with a violation 
of the proposed rule is excessive and illegal under the 8th Amendment.
    Supporters of the rule generally viewed the Department as having 
the appropriate authority and stated that the unknown risk and 
potential harmful effects justified the ban. Many voiced concern over 
the air quality aboard aircraft, stating that the rights and public 
health concerns of passengers who are not e-cigarette users should be 
protected, as these people do not have the option of leaving the space. 
Supporters also raised the point that potentially vulnerable 
passengers, such as children, the elderly, and people with asthma 
should be protected from the effects of e-cigarette vapor. Another 
reason cited in support of the rule was the elimination of potential 
passenger and crew confusion; supporters argued that a ban on both 
traditional cigarettes and e-cigarettes would make enforcement of the 
smoking regulation easier for crewmembers, because e-cigarettes 
resemble traditional cigarettes. It was also stated that this proposed 
rule would create only minimal inconvenience for smokers and 
``vapers,'' as the existing smoking ban on aircraft has been in place 
since 2000.
    In more recent years, the Department has noted a substantial 
increase in individual comments supporting the ban. Of the 
approximately 350 additional individual comments received after the 
close of the comment period, approximately 60 opposed the ban while 
approximately 290 supported it. Most commenters supporting the ban 
cited health concerns, and expressed the view that e-cigarette aerosol 
was either already demonstrated to be harmful, or should be banned 
unless it is proven to be safe. A number of individuals expressed 
impatience at the Department's slow progress in implementing the ban.
    We note that several commenters, both organizations and 
individuals, cited safety reasons as additional grounds for supporting 
the proposed ban (e.g., potential fire concerns and hazards associated 
with the lithium batteries that power the devices).

DOT Response

    After fully considering the comments received, the Department has 
decided to amend its existing smoking rule to explicitly ban the use of 
e-cigarettes on all flights in passenger interstate, intrastate and 
foreign air transportation where other forms of smoking are banned. We 
are primarily concerned with the potential adverse health effects of 
secondhand exposure to aerosols generated by e-cigarettes, particularly 
in the unique environment of an aircraft cabin. We further believe that 
the ban on the use of e-cigarettes fulfills the statutory mandates of 
sections 41706, 41702, and 41712. We do not address in this rulemaking 
any safety-related issues that may exist with regard to the use of e-
cigarettes aboard aircraft. The Pipeline and Hazardous Materials Safety 
Administration (PHMSA) regulates hazardous materials safety \6\ and the 
FAA regulates smoking aboard aircraft under its safety mandate. See 14 
CFR 121.317, 129.29, 135.127.
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    \6\ With respect to the Independent Pilots Association's comment 
that DOT should expand the ban on e-cigarettes to include cargo 
flights, we note that the Association's concern appears to be 
largely on the safety hazards of transporting lithium batteries. On 
August 6, 2014, PHMSA issued a final rule addressing this issue. See 
79 FR 46011 (August 6, 2014); PHMSA-2009-0095 (HM-224F).
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Authority To Regulate E-Cigarettes Under 49 U.S.C. 41706

    We begin with section 41706, the statutory smoking ban. With 
respect to domestic air transportation, section 41706(a) provides that 
``an individual may not smoke in an aircraft in scheduled passenger 
interstate or intrastate air transportation; or in an aircraft in 
nonscheduled passenger interstate or intrastate air transportation if a 
flight attendant is a required crewmember on the aircraft.'' Similarly, 
with respect to foreign air transportation, section 41706(b) provides 
that ``the Secretary of Transportation shall require all air carriers 
and foreign air carriers to prohibit smoking in an aircraft in 
scheduled passenger foreign air transportation; and in an aircraft in 
nonscheduled passenger foreign air transportation, if a flight 
attendant is a required crewmember on the aircraft.''
    While section 41706 does not define `smoking,'' nothing in the text 
of section 41706 suggests that the definition of ``smoking'' should be 
limited to the combustion of traditional tobacco products. Instead, 
Congress vested broad authority in the Department to implement the 
statutory smoking ban. Specifically, section 41706(d) states that ``the 
Secretary shall provide such regulations as are necessary to carry out 
this section.'' We interpret section 41706 as a whole as vesting the 
Department with the authority to define the term ``smoking,'' and to 
refine that definition as necessary to effectuate the purpose of the 
statute while adapting to new technologies and passenger behavior. Like 
section 41706, the Department's regulation in 14 CFR part 252 did not 
contain a definition of ``smoking'' prior to the issuance of this final 
rule. However, the Department has previously taken the position that 
the prohibition against smoking in 49 U.S.C. 41706 and 14 CFR part 252 
should be read to ban the use of electronic cigarettes on U.S. air 
carrier and foreign air carrier flights in scheduled intrastate, 
interstate and foreign air transportation, a position that was noted in 
connection with a June 17, 2010 hearing before the Senate Committee on 
Commerce, Science and Transportation. This final rule formalizes the 
Department's interpretation by defining smoking to explicitly include 
the use of e-cigarettes.

[[Page 11420]]

    Some commenters contend that section 41706 cannot be relied upon to 
reach this result because it prohibits smoking, and e-cigarettes are 
``vaped'' and produce a vapor. Although e-cigarettes typically do not 
undergo combustion, they do produce an aerosol of chemicals and require 
an inhalation and exhalation action similar to that which is required 
when smoking traditional cigarettes. E-cigarettes are generally 
designed to look like and be used in the same manner as conventional 
cigarettes. Further, the purpose behind the statutory ban on smoking 
aboard aircraft in section 41706 and the regulatory ban on smoking 
tobacco products in part 252 were to improve cabin air quality, reduce 
the risk of adverse health effects on passengers and crewmembers, and 
enhance passenger comfort. The in-cabin dynamics of e-cigarette use are 
similar enough to traditional smoking to necessitate including e-
cigarette use within the definition of ``smoking.'' Like traditional 
smoking, e-cigarette use introduces a cloud of chemicals into the air 
that may be harmful to passengers who are confined in a narrow area 
within the aircraft cabin without the ability to avoid those chemicals.
    A recent study published in the journal Nicotine & Tobacco Research 
found that e-cigarettes are a source of secondhand exposure to nicotine 
but not to combustion toxicants.\7\ The conclusions of the study were 
that using e-cigarettes in indoor environments may involuntarily expose 
non-users to nicotine, and that more research is needed to evaluate the 
health consequences of secondhand exposure to nicotine, especially 
among vulnerable populations such as children, pregnant women, and 
people with cardiovascular conditions. More recent research has 
determined that persistent residual nicotine on indoor surfaces from e-
cigarettes can lead to third hand exposure through the skin, 
inhalation, and ingestion long after the air itself has cleared.\8\
---------------------------------------------------------------------------

    \7\ Jan Czogala et al., Secondhand Exposure to Vapors From 
Electronic Cigarettes, 16 Nicotine & Tobacco Research 655 (2014), 
doi: 10.1093/ntr/ntt203.
    \8\ ML Goniewicz & L Lee, Electronic Cigarettes Are a Source of 
Thirdhand Exposure to Nicotine, Nicotine Tob Res. 2014 Aug 30. 
pii:ntu152. [Epub ahead of print]; see also WG Kuschner et al., 
Electronic Cigarettes and Thirdhand Tobacco Smoke: Two Emerging 
Health Care Challenges for the Primary Care Provider, 4 Int J Gen 
Med. 115 (2011), doi: 10.2147/IJGM.S16908.
---------------------------------------------------------------------------

    Additionally, we find it significant that the three medical 
associations that submitted comments cited the unknown health risks of 
exposure to e-cigarette aerosol in a confined space as a reason for 
concern. Also citing public health concerns were the American Cancer 
Society, American Heart Association, American Lung Association, 
Campaign for Tobacco-Free Kids, and Legacy. In addition, each comment 
received from the airline industry voiced strong support for the rule, 
based on the unknown ingredients in the devices and their possible 
health consequences.
    While the specific hazards of e-cigarette aerosol have not yet been 
fully identified, the Department does not believe that it would be 
appropriate to exempt e-cigarettes from the ban for now, pending a more 
definitive catalog of those hazards. Since the NPRM was issued, 
research continues to undermine claims that the use of e-cigarettes 
would have no adverse health implications on users or others who are 
nearby. Research has detected toxic chemicals such as formaldehyde and 
acetaldehyde in the aerosol from certain e-cigarettes.\9\ The aerosol 
was also found to contain acrolein, which can cause irritation to the 
nasal cavity and damage to the lining of the lungs, and may contribute 
to cardiovascular disease in cigarette smokers.\10\ Another study 
identified 22 chemical elements in e-cigarette aerosol, including lead, 
nickel, and chromium, among others that can cause adverse health 
effects in the respiratory and nervous systems.\11\
---------------------------------------------------------------------------

    \9\ Goniewicz, M. L., J. Knysak, M. Gawron, et al., Levels of 
Selected Carcinogens and Toxicants in Vapour From Electronic 
Cigarettes, 23 Tobacco Control 133 (2013), doi: 10.1136/
tobaccocontrol-2012-050859.
    \10\ Goniewicz, M. L., J. Knysak, M. Gawron, et al., Levels of 
Selected Carcinogens and Toxicants in Vapour From Electronic 
Cigarettes, 23 Tobacco Control 133 (2013), doi: 10.1136/
tobaccocontrol-2012-050859.
    \11\ Williams, M., A. Villarreal, K. Bozhilov, et al., Metal and 
Silicate Particles Including Nanoparticles Are Present in Electronic 
Cigarette Cartomizer Fluid and Aerosol, 8 Public Library of Science 
One e57987 (2013), doi: 10.1371/journal.pone.0057987.
---------------------------------------------------------------------------

    Some studies have found that lower levels of toxicants are observed 
in e-cigarette aerosols than in combusted tobacco smoke.\12\ However, 
research on near real-use conditions of e-cigarettes has found 
increased indoor air levels of polycyclic aromatic hydrocarbons; 1,2-
propanediol; 1,2,3-propanetriol; glycerine; nicotine; fine particles; 
ultrafine particles; particle number concentrations; and aluminum, all 
of which raise health concerns.\13\ We recognize that the aerosol that 
is exhaled by users of some e-cigarettes and similar electronic 
apparatus may not pose as much harm as smoke emitted from combusted 
tobacco products. However, given that studies do indicate that both 
nicotine and other toxicants are found in the exhaled aerosol, limiting 
exposures must be considered. Because the potential for harm to 
consumers from second hand aerosol is even greater in the closed 
environment of an aircraft, we believe a precautionary approach is 
warranted. In sum, releasing an aerosol that may contain harmful 
substances or respiratory irritants in a confined space, especially 
when those who are at a higher risk are present, is contrary to the 
statutory ban on smoking aboard aircraft.
---------------------------------------------------------------------------

    \12\ Goniewicz, M., et al., ``Levels of Selected Carcinogens and 
Toxicants in Vapour from Electronic Cigarettes,'' Tobacco Control, 
23(2):133-139, 2014.
    \13\ Schober, W., et al., Use of Electronic Cigarettes (E-
Cigarettes) Impairs Indoor Air Quality and Increases FeNO Levels of 
E-Cigarette Consumers, 217 Int J Hyg Environ Health 628 (2014), doi: 
10.1016/j.ijheh.2013.11.003; Schripp T., D. Markewitz, E. Uhde, and 
T. Salthammer, Does E-Cigarette Consumption Cause Passive Vaping?, 
23 Indoor Air 25 (2013), doi: 10.1111/j.1600-0668.2012.00792.x.
---------------------------------------------------------------------------

Authority To Regulate E-Cigarettes Under 49 U.S.C. 41702

    We also find an independent source of authority for this rulemaking 
in section 41702, which mandates safe and adequate interstate air 
transportation. The Department's predecessor, the Civil Aeronautics 
Board (CAB), relied upon section 404(a) of the Federal Aviation Act of 
1958 (subsequently re-codified as 41702), requiring air carriers ``to 
provide safe and adequate service, equipment and facilities,'' as 
authority to adopt its first regulation restricting smoking on air 
carrier flights (ER-800, 38 FR 12207, May 10, 1973). At that time, CAB 
issued a ``smoking rule'' under its economic regulations titled, ``Part 
252--Provision of Designated `No Smoking' Areas Aboard Aircraft 
Operated by Certificated Air Carriers,'' which mandated designated ``no 
smoking'' areas on commercial flights. See 38 FR 12207 (May 10, 1973). 
The rule predated a Congressional ban on smoking on scheduled flights. 
In the preamble to the 1973 rule, the CAB cited a joint study by the 
FAA and the then Department of Health, Education, and Welfare that 
concluded that the low levels of contaminants in tobacco smoke did not 
represent a health hazard to nonsmoking passengers on aircraft; 
however, the study found that a significant portion of the nonsmokers 
stated that they were bothered by tobacco smoke. The CAB stated, 
``unlike persons in public buildings, nonsmoking passengers on aircraft 
may be assigned to a seat next to, or otherwise in close proximity to, 
persons who smoke and cannot escape this

[[Page 11421]]

environment until the end of the flight.'' The principal basis for the 
1973 smoking rule was passenger discomfort issues. Just as the CAB 
relied on the ``adequate'' prong of the predecessor to section 41702 to 
adopt a smoking ban in 1973, the Department believes that it has the 
authority today to ban the use of e-cigarettes under section 41702 to 
ensure ``adequate'' service by reducing a similar kind of passenger 
discomfort. In our view, passenger discomfort arises from at least two 
aspects of e-cigarette aerosol exposure. First, the non-user passenger 
may feel the direct effects of inhaling the aerosol, which, as noted 
above, has been shown to contain respiratory irritants. More broadly, 
passengers may reasonably be concerned that they are inhaling unknown 
quantities of harmful chemicals, and that they will not be able to 
avoid the exposure for the duration of the flight.

Authority To Regulate E-Cigarettes Under 49 U.S.C. 41712

    In addition to the Department's authority under sections 41716 and 
41702, the Department has the authority and responsibility to protect 
consumers from unfair or deceptive practices in air transportation 
under 49 U.S.C. 41712. Using this authority, the Department has found 
practices to be ``unfair'' if they are harmful to passengers but could 
not be reasonably avoided by them. For example, the Department relied 
upon section 41712 and its ``unfair'' practice component when 
promulgating the ``Tarmac Delay Rule,'' \14\ in which the Department 
addressed problems consumers face when aircraft sit for hours on the 
airport tarmac. In doing so, the Department considered the harm to the 
consumer and the fact that the harm was unavoidable. The Department 
concluded that regulatory action was necessary and that a three-hour 
time limit is the maximum time after which passengers must be permitted 
to deplane from domestic flights given the cramped, close conditions in 
aircraft and the inability of passengers to avoid lengthy tarmac 
delays. Here, as with the tarmac delay rule, the Department believes 
that the practice of allowing use of e-cigarettes onboard aircraft 
would be potentially harmful to passengers and there is no way for the 
passenger to reasonably avoid the harm. The harms include the potential 
for decreased cabin air quality, confusion about whether the passenger 
is being exposed to traditional cigarette smoke, and possible health 
risks arising from exposure to the chemicals contained in e-cigarette 
aerosol. These harms are unavoidable because passengers who do not wish 
to be exposed to e-cigarette aerosol cannot escape this environment 
until the end of the flight.
---------------------------------------------------------------------------

    \14\ See 74 FR 68983 (December 30, 2009) and 76 FR 23110 (April 
25, 2011).
---------------------------------------------------------------------------

    In sum, we are amending our existing smoking regulation to 
explicitly ban the use of e-cigarettes because we view the ban to be 
consistent with the statutory mandates of sections 41706, 41702 and 
41712. We do not believe that it is appropriate, as some commenters 
have suggested, to allow the airline industry to adopt its own 
standards with respect to the inclusion of electronic cigarettes within 
the prohibition on smoking. We recognize that the industry has 
generally banned the use of electronic cigarettes on flights, either as 
a matter of preference or in recognition of the Department's well-
publicized enforcement policy. On the other hand, we believe that 
without a clear, uniform regulation, some carriers may feel free to 
adopt policies that allow the use of e-cigarettes onboard aircraft. In 
light of the potential health hazards posed to flight attendants and 
fellow passengers, as well as the potential diminution in air cabin 
quality posed by the use of electronic cigarettes in an aircraft cabin, 
we do not believe that a free-market approach is appropriate or 
desirable.
    An additional benefit of this rule is that it eliminates passenger 
or crewmember confusion with regard to the permissibility of e-
cigarettes by creating an explicit ban. In our notice, we stated that 
through Congressional correspondence, anecdotal evidence, and online 
sources, including blogs, we were made aware that some passengers have 
attempted to use e-cigarettes onboard aircraft. The Association of 
Flight Attendants also stated in comments submitted to the Department 
that it receives occasional reports of in-flight passenger use and 
confusion among travelers regarding airline policies. In the absence of 
regulation, e-cigarette users may believe that an airline's policy 
banning e-cigarettes is merely a preference, and that they may continue 
to use such devices because they are not prohibited by federal law. 
This rule would eliminate any such arguments with respect to the use of 
e-cigarettes, and provide flight crew with the clear message that e-
cigarettes are placed firmly on the same footing as traditional tobacco 
products. The traveling public would also have the benefit of knowing 
with certainty that e-cigarettes are prohibited onboard aircraft, 
Moreover, to the extent that carriers may be inclined to permit e-
cigarettes on the ground that the Department's enforcement policy is 
not consistent with the regulatory text, this rule would preclude that 
option.

Charter (Non-Scheduled) Flights

    Section 401 of the FAA Modernization and Reform Act of 2012 
prohibited smoking on domestic nonscheduled (charter) passenger flights 
that require a flight attendant, and directed the Department to 
prohibit smoking on nonscheduled (charter) passenger flights in foreign 
air transportation that require a flight attendant. In the NPRM in this 
proceeding, we sought comment on the issue of banning smoking on most 
charter flights. We received few comments on this issue; however, those 
that did comment overwhelmingly supported the proposal. The Association 
of Flight Attendants (AFA) stated its support for the ban, claiming 
that it would be beneficial to the occupational health of flight 
attendants and the health of the traveling public. AFA stated that 
there is virtually universal agreement that exposure to environmental 
tobacco smoke is harmful to health, and requested that DOT acknowledge 
these findings and expand the smoking ban to all charter operations.
    The Association of Professional Flight Attendants, representing 
American Airlines flight attendants, stated its support of the ban to 
create consistency across the industry and argued that no flight 
attendant should be subjected to cigarette smoke on an airplane, given 
what is known about secondhand smoke.
    The American Cancer Society, American Heart Association, American 
Lung Association, Campaign for Tobacco-Free Kids, and Legacy stated 
that the health effects of secondhand smoke are well established in 
scientific literature. The organizations argued that charter flight 
staff should not be exposed at their workplace to secondhand smoke, 
which has been shown to increase risk of heart disease, stroke, and 
cancer. These organizations expressed their concern that charter flight 
passengers are potentially exposed to secondhand smoke for extended 
periods of time in a confined space. The organizations argued that 
there is no safe level of exposure to secondhand smoke, regardless of 
the type of plane or flight one takes, and that the current regulations 
do not effectively protect public health. We received a few comments 
from the public on this issue, with most stating their support for the 
proposal and some suggesting extending the ban to all flights.

[[Page 11422]]

DOT Response

    We are amending the rule text of part 252 to implement section 401 
of the FAA Modernization and Reform Act. Section 401 requires U.S. and 
foreign air carriers to ban smoking in nonscheduled passenger 
interstate, intrastate, and foreign air transportation where a flight 
attendant is a required crewmember. The amendment to part 252 is 
necessary to harmonize the Departmental regulation with the new 
statutory requirement.\15\ The 2011 NPRM sought comment on banning 
smoking on charter flights that use aircraft with 19 or more passenger 
seats. In view of the statutory smoking ban in section 401 that was 
signed into law in 2012, this final rule conforms part 252 to the 
requirement in the statute. Consequently, this new rule bans smoking on 
all nonscheduled passenger air transportation where a flight attendant 
is a required crewmember of the aircraft.
---------------------------------------------------------------------------

    \15\ For the reasons discussed in the prior section, this ban 
will include the use of e-cigarettes.
---------------------------------------------------------------------------

    The rule also continues a ban on smoking on nonscheduled passenger 
air transportation where a flight attendant is not a required 
crewmember of the aircraft, except for single entity charters and on-
demand services of air taxi operators. Under the existing sections 
252.2 and 252.13, U.S. carriers are required to ban smoking on all 
flights (scheduled and charter) that use aircraft with 30 or fewer 
passenger seats except for the on-demand services of air taxi 
operators. Section 252.19 of the existing rule permits smoking on 
single-entity charter flights of U.S. air carriers. In other words, 
under the existing rule, smoking is allowed on single-entity charter 
flights and on-demand services of air taxi operators regardless of 
aircraft size. For U.S. carriers, smoking is prohibited on all other 
charter flights that use aircraft with 30 or fewer passenger seats.
    If an aircraft has more than 30 seats, under section 252.7 of the 
existing rule the air carrier operating the charter flight (other than 
single-entity charters or on-demand services of air taxi operators) 
must establish a non-smoking section for each class of service. As an 
organizational matter, we are eliminating this section as it is no 
longer needed because section 401 bans smoking on charter flights where 
a flight attendant is a required crewmember. All charter flights 
covered under section 252.7 would require a flight attendant as that 
section only applies to aircraft with more than 30 seats.
    The only change that is not directly required by the statute is 
eliminating the requirement in the existing rule for carriers to give 
notice to each passenger on a single-entity charter of the smoking 
procedures for that flight. It would be of limited usefulness to have 
such a requirement where smoking on single-entity charters would not be 
banned by this rule (i.e., on aircraft where a flight attendant is not 
a required crewmember, which essentially means aircraft with 19 seats 
or less).

Regulatory Analysis and Notices

A. Executive Order 12866 (Regulatory Planning and Review), Executive 
Order 13563 (Improving Regulation and Regulatory Review) and DOT 
Regulatory Policies and Procedures

    This final rule 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 in accordance with Executive Order 12866 
(Regulatory Planning and Review) and Executive Order 13563 (Improving 
Regulation and Regulatory Review) and is consistent with the 
requirements in both orders.
    The Final Regulatory Evaluation, included in this section, 
qualitatively evaluates the benefits and costs of the final rule. Both 
benefits and costs are expected to be very small because the final rule 
only represents a modest change, if any, to existing industry practice. 
Nonetheless, the Department believes that the rule is necessary for the 
reasons noted below. As discussed below, DOT was unable to find any 
airline that explicitly states that it allows smoking of any type or 
includes accommodating smokers in its business plan, including e-
cigarettes and their users, and as such, would be affected by this 
rule. In fact, the overwhelming majority of passenger seats are on 
scheduled flights where smoking traditional cigarettes is already 
banned. Moreover and again as discussed below, commercial airlines have 
interpreted the existing DOT smoking ban to cover e-cigarettes and do 
not allow their use. Due to the inability to identify any specific 
airlines that would have to change their policies in response to the 
final rule, it was not possible to quantify benefits or costs. However, 
DOT does not rule out the possibility that a few airlines may at times 
provide services that could be affected by the rule, and therefore 
provides a qualitative analysis of potential benefits and costs for 
those situations.

The Final Regulatory Evaluation

Introduction
    In April 2000, the Wendell H. Ford Aviation Investment and Reform 
Act for the 21st Century (Pub. L. 106-181) was signed into law. Section 
708 of the Act amended 49 U.S.C. 41706 to impose a ban on smoking on 
all scheduled passenger interstate, intrastate, and foreign air 
transportation. DOT subsequently incorporated this ban in its rule on 
smoking on commercial airline flights. Because of confusion as to 
whether the use of e-cigarettes was allowed on aircraft, in September 
2011, DOT issued a NPRM (see 79 FR 57008), which proposed to amend 14 
CFR part 252 to explicitly include the use of e-cigarettes in the 
smoking ban. Specifically, the NPRM proposed to define smoking as, 
``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 vapor.'' The NPRM also considered whether to extend 
the smoking ban (including e-cigarettes) to nonscheduled passenger 
flights or air carriers and foreign air carriers between points in the 
United States and between the United States and any foreign point with 
aircraft that have a designed seating capacity of 19 or more passenger 
seats.
    In February 2012, the FAA Modernization and Reform Act of 2012 
(Pub. L. 112-95) (the Act) was signed into law. Section 401 of the Act 
amended 49 U.S.C. 41706 to extend the smoking prohibition to aircraft 
in nonscheduled passenger interstate, intrastate, and foreign air 
transportation, offered by both U.S. and foreign carriers, if a flight 
attendant is a required crewmember.
    This final rule primarily makes two regulatory changes. First, it 
amends the existing smoking ban in 14 CFR part 252 to explicitly ban 
the use of e-cigarettes whenever smoking is banned by revising the 
definition of smoking to cover the use of e-cigarettes. Second, the 
rule amends 14 CFR part 252 to implement section 401 of the FAA 
Modernization and Reform Act and extends the smoking ban to flights in 
nonscheduled interstate, intrastate, and foreign passenger air 
transportation where a flight attendant is required.
Current Industry Practice/Regulatory Baseline
    In 2014, there were a total of 104 U.S. carriers and 151 foreign 
air carriers providing service in the United States. About 75 percent 
of these carriers provided scheduled service and the remaining 25 
percent provided only

[[Page 11423]]

charter service. However, the overwhelming majority of air passenger 
service is provided by the 75 percent of scheduled service carriers; in 
2014, roughly 99 percent of U.S. passenger enplanements were associated 
with scheduled flights.\16\ Table A.1 provides an overview of the 
carriers providing service in the United States in 2014.
---------------------------------------------------------------------------

    \16\ Source: Bureau of Transportation Statistics, T-100 Market 
and Segment (http://www.rita.dot.gov/bts/data_and_statistics/by_mode/airline_and_airports/airline_passengers.html).

                  Table A.1--Carriers Operating in the U.S. Market by Size and Type of Service
----------------------------------------------------------------------------------------------------------------
                                                     Seats on
                                                      largest     Total carriers   Charter only      Scheduled
                                                     aircraft                                         service
----------------------------------------------------------------------------------------------------------------
U.S. Carriers...................................             >60              41              13              28
                                                           30-60              15               2              13
                                                             <30              48              11              37
                                                                 -----------------------------------------------
U.S. Carrier Total..............................  ..............             104              26              78
Foreign Carriers................................             >60             123              12             111
                                                           30-60               2               0               2
                                                             <30              26              25               1
                                                                 -----------------------------------------------
    Foreign Carrier Total.......................  ..............             151              37             114
----------------------------------------------------------------------------------------------------------------
Source: DOT contractor estimates based on 2014 T-100 segment database, 2013 B-43 aircraft inventory, Regional
  Airline Association 2014 Annual Report and review of carrier Web sites.

    14 CFR part 252 currently bans smoking on all scheduled passenger 
interstate, intrastate, and foreign air transportation. Thus, as noted 
above, the overwhelming majority of flights are covered by the general 
smoking ban (75 percent of carriers representing 99 percent of 
passenger enplanements). No regulatory definition of ``smoking'' is 
included in the existing Part 252, and questions have emerged regarding 
its applicability to e-cigarettes. DOT has stated that e-cigarettes are 
covered by its existing smoking rule, part 252.\17\ Based upon DOT 
review of individual Web sites, U.S. and foreign carriers generally 
appear to be in compliance with this interpretation and do not allow 
their use. While some carriers provide no explanation for their 
interpretation, some airlines cite a ``nuisance factor,'' concerns for 
triggering smoke detection equipment, and concerns for other 
passengers' health. Exhibit A.1 lists some typical examples of e-
cigarette policies taken from a select number of the 104 individual 
U.S. carrier and 151 foreign carrier Web sites.
---------------------------------------------------------------------------

    \17\ See https://www.transportation.gov/sites/dot.gov/files/docs/PolicyOnECigarettes.pdf.

    Exhibit A.1--Electronic Cigarette Policies for Selected Carriers
 
 
 
AirTran Airways--``In addition to smoking, the use of chewing tobacco
 and electronic cigarettes are not permitted onboard any scheduled or
 private charter AirTran Airways flight.''
Alaska Airlines--``Smoking, chewing tobacco, smokeless tobacco, and the
 use of electronic smoking devices are not permitted on any Alaska
 Airlines flight.''
American--``You can travel with electronic cigarettes in your carry-on
 baggage, but you are not allowed to use them onboard at any time.''
Delta--``E-cigarettes cannot be operated at any time on a Delta or Delta
 Connection Aircraft.''
JetBlue--``While the majority of electronic cigarettes may be non-
 hazardous, JetBlue does NOT allow the USE of them on any of our
 flights, but will allow them in checked or carry-on baggage. It is
 considered a nuisance item as small amounts of vapor are expelled from
 the cigarette.''
Southwest--``Electronic Cigarettes and Smoking Devices'' are ``never
 permitted'' for use on board.
United--``The use of electronic, simulated smoking materials (such as
 electronic cigarettes, pipes or cigars) is prohibited on United
 Airlines.''
Air France--``Use of e-cigarettes is prohibited on all Air France
 flights. The vapor emitted by these devices may trigger the cabin smoke
 detectors.''
Air New Zealand--``The use and charging of electronic cigarettes
 (eCigarettes) is also not permitted as the vapour may contain levels of
 nicotine that are unacceptable to other passengers.''
British Airways--``We have a no smoking policy on board all our aircraft
 and in our airport lounges. This includes electronic cigarettes (e-
 cigarettes), as they emit a small amount of mist which can make it
 appear that a customer is actually smoking.''
KLM--``All KLM flights are non-smoking flights. Smoking is not permitted
 at any place or at any time on board our aircraft. This also applies to
 artificial cigarettes.''
Lufthansa--``Please note, however, that you are not permitted to smoke
 electronic cigarettes on board Lufthansa flights.''
 
Source: Individual carrier Web sites.

    For the remaining 25 percent of carriers providing only charter 
service (representing about one percent of passenger enplanements), 
smoking is not prohibited by law in all cases. On flights where smoking 
is not banned by law, airlines must have a non-smoking section and must 
accommodate in that section every passenger who has complied with the 
airline's check-in deadline and who wishes to be seated there.
    Apparently, however, charter airlines have taken a direction 
similar to rental car companies and hotels, where nonsmoking policies 
are now the norm.\18\ Finding a charter that allows in-flight smoking 
or guarantees a smoker's right to engage in the activity has become 
difficult, if not impossible. According to one Web site that assists in 
booking charters:
---------------------------------------------------------------------------

    \18\ http://usatoday30.usatoday.com/travel/hotels/2008-11-17-smoke-free-hotels-no-smoking_N.htm; http://consumertraveler.com/today/still-smoking-be-careful-before-you-rent-a-car/.

    ``. . . some charter operators such as GlobeAir have a strict 
no-smoking policy across their fleet. `It got to the point where we 
felt that smoking on board not only posed

[[Page 11424]]

a health hazard but also increases the risk of fire,' says Bernhard 
Fragner, CEO.'' \19\
---------------------------------------------------------------------------

    \19\ http://corporatejetinvestor.com/articles/how-to-charter-private-jet-503/.

---------------------------------------------------------------------------
And another:

    ``Alot (sic) of the air charter aircraft are now non-smoking due 
to fact that all airline flights are now non-smoking flights. 
Charter operators complain that the tobacco smell from smoking gets 
into the fabric of their airplanes and bothers the next 
passenger(s).'' \20\
---------------------------------------------------------------------------

    \20\ http://www.usskylink.com/resource/air-charter-faq-details.asp?fldNAME=Air%20Charter%20Flights.

And, according to a charter company: \21\
---------------------------------------------------------------------------

    \21\ A few other examples of explicit smoking prohibitions are 
as follows: Charter Air Transport, Inc. states ``Smoking is 
prohibited on all flights. . . . NOTE: This includes electronic 
cigarettes'' (see http://www.charterairtransport.com/); Avjet 
Corporation indicates that their entire charter fleet is nonsmoking 
(http://www.avjet.com/); Atlas Air's policy is that ``Smoking is 
prohibited on our Flights (www.atlasair.com/aa/); and Dynamic 
Airways conditions of service include ``Dynamic flights are non-
smoking. Smoking cigarettes, regular and electronic, is not allowed 
onboard our aircraft, but chewing tobacco is allowed'' (https://www.airdynamic.com) . Interestingly one carrier addresses e-
cigarette use with no reference to traditional smoking, ``You're not 
allowed to use electronic cigarettes on the plane'' (http://www.thomson.co.uk/flight/0.

    ``All Skyward Aviation aircraft prohibit smoking to ensure the 
complete safety of passengers and flight crew members.'' \22\
---------------------------------------------------------------------------

    \22\ http://www.skywardaviation.com/76/FAQ.html.

While some charters address the use of e-cigarettes and include them in 
their smoking prohibitions, it is unknown whether this is standard 
practice.
    There are incentives for charter airlines to voluntarily adopt 
smoking bans despite the lack of a legal requirement. In the case of 
domestic charters, assuring the accommodation of nonsmoking passengers 
in a nonsmoking section in accordance with the law could create some 
planning difficulties unless a service provider knows in advance the 
smoking status of each passenger; it is easier and requires less 
planning to simply disallow the activity. Moreover, to attract 
customers, many of these carriers advertise receipt of various safety 
certifications (e.g., the FAA's Diamond Award of Excellence, Argus 
rated, AACA Medallion) as part of their marketing strategy. Permitting 
passengers to smoke onboard would be at odds with the standards of the 
certifying organizations. Finally, and perhaps most importantly, it is 
more costly to operate aircraft where smoking is permitted. Smoking 
increases hardware costs since cabin air filters have to be changed 
more frequently and avionics need to be cleaned more often. The higher 
expense associated with maintenance of aircraft in which smoking is 
allowed deters carriers from allowing the activity, unless of course, 
the increase in expense is justified by a net increase in demand from 
smokers (and thus revenues) to cover these costs.\23\ It is unclear 
whether these incentives apply to e-cigarettes.
---------------------------------------------------------------------------

    \23\ The increase would need to be net of the reduction in 
demand from passengers with an aversion to smoking.
---------------------------------------------------------------------------

    An internet search yields a few anecdotes suggesting some smokers 
have been frustrated by the lack of options for those who wish to smoke 
during flight, which is a further indication that the industry norm has 
tended toward smoking prohibition, at least for traditional cigarettes. 
There have been some limited attempts to market flights for smokers or 
create a ``smokers airline'' which would allow or even encourage 
passengers to smoke during flight. However, none of these efforts have 
been successful to date.\24\ This probably reflects that a consumer's 
decision regarding which flight to purchase is complicated, involving 
price, availability, safety record or perceptions, and multiple other 
attributes. The ability to smoke on a flight would only be one aspect, 
and probably a very small one, in the overall decision. In addition, 
one would expect that at least some customers would purposely avoid 
flights that allowed smoking. Due to relative importance of other 
attributes (i.e. price), there are limits to how successful carriers 
who focus exclusively on attracting smokers can be.
---------------------------------------------------------------------------

    \24\ The names of these airlines were: Great American Smokers' 
Club, Smokers Express, Freedom Air, and Smintair. None ever 
commenced commercial operation (see, for example, http://www.sourcewatch.org/index.php/Smokers_Express_Airlines; http://articles.chicagotribune.com/1993-10-03/travel/9310030004_1_flights-american-trans-air-smokers; http:///articles.chicagotribune.com/1993-10-03/travel/9310030027_1_freedom-air-smokers-passengers; 
http://www.nytimes.com/2006/09/03/business/worldbusiness/03iht-smoke.2683305.html)
---------------------------------------------------------------------------

    In sum, at least 99 percent of passenger enplanements occur on 
flights that prohibit smoking of any type, including both traditional 
cigarettes and e-cigarettes. The remaining one percent of enplanements 
appears to be on charter flights that largely prohibit smoking of 
traditional cigarettes. Some of the charter companies also extend the 
prohibition to e-cigarettes, but the extent of that practice is 
unknown.
Need for the Rule
    The involuntary exposure to second-hand smoke or e-cigarette 
aerosol in an airplane cabin represents one classic example of a market 
failure, an externality; the smoker (of either traditional or 
electronic cigarettes) does not bear the full cost of the activity. 
Part of the cost of smoking in an airplane cabin is borne by nearby 
passengers or flight crew who are unable to regulate their exposure. 
The costs of involuntary exposure to smoke or aerosol are in the form 
of actual adverse health consequences, perception and fear of adverse 
health consequences and annoyance or irritation regarding undesirable 
odors. Even if a carrier were to disclose that it allowed smoking (of 
either traditional cigarettes or e-cigarettes), patrons may not receive 
this information prior to departure or in the case of some smaller 
markets, they may not have a convenient option to avoid exposure by 
choosing an airline that disallowed use (which could represent another 
type of market failure, but not one that is the primary concern of this 
regulatory action).
    Regarding e-cigarettes specifically, they typically do not involve 
combustion. However, they require an inhalation and exhalation action 
similar to smoking traditional cigarettes and they produce a cloud of 
aerosol which can be mistaken for smoke. E-cigarettes are generally 
designed to look like and be used in the same manner as conventional 
cigarettes. Passengers who do not engage in or understand the process 
of e-cigarette use can easily mistake the act for traditional smoking. 
Thus, even if second-hand exposure to e-cigarette aerosol were ever 
determined to not lead to the same type of health consequences as 
exposure to tobacco smoke, nearby passengers may still experience 
discomfort, stress or some in cases display aggression or fear because 
they believe their health is threatened. Currently, the state of 
knowledge regarding the effects of secondhand exposure to e-cigarette 
aerosol does not rule out the possibility of actual adverse health 
effects to nearby individuals who do not directly choose to engage in 
this activity. In fact, some research supports the case that bystanders 
incur actual adverse health effects when exposed to secondhand e-
cigarette aerosol.
    In the absence of a rule, carriers are free to make their own 
determinations regarding the use of e-cigarettes. Charter operations 
have historically had additional flexibility regarding smoking in 
general, as long as they accommodate nonsmoking patrons in accordance 
with the law (e.g., no-smoking sections). Scheduled service providers 
have chosen to prohibit e-cigarette use and charters typically do not 
allow smoking of traditional cigarettes (some charters also prohibit e-
cigarettes but the degree to which this is standard practice is 
unknown). Without this rule, it is

[[Page 11425]]

possible that some airlines could relax their current policies, which 
would increase passenger and flight crew secondhand exposure to 
aerosols and quite possibly, traditional tobacco smoke in the case of 
some charters.
Impacts, Benefits and Costs of the Final Rule
    In general, the impacts of the rule will be very modest, and 
generate little in terms of measurable benefits and costs. There will 
probably be no change to the current baseline for scheduled passenger 
operations. The existing regulation prohibits smoking on such flights 
and as described above, airlines that provide scheduled passenger 
service treat the smoking ban as covering e-cigarettes. Scheduled 
operations represent roughly 99 percent of passenger enplanements and 
thus, the rule can do little to impact current industry practice 
overall.
    For charter (nonscheduled) flight operations, the impacts should 
also be small. Based upon review of carrier Web sites and their 
advertisements, charter companies appear to prohibit smoking of 
traditional cigarettes. Operating a nonsmoking airline is less costly, 
makes accommodating non-smoking patrons in accordance with the law 
easier, and assists in the receipt of certain safety certifications and 
perhaps the award of government contracts that may serve as useful 
marketing tools. While it is not known with any certainty whether the 
prohibitions apply to e-cigarette use, the widespread and seamless 
adoption of e-cigarette bans in the scheduled service component of the 
industry suggests that extending the prohibitions to e-cigarettes can 
be accomplished without too much difficulty or cost.

Including E-Cigarettes in the General Smoking Ban: Benefits and Costs

    As noted above, the inclusion of e-cigarettes in the general 
smoking ban will not affect, but will simply reinforce, current 
industry practice in the scheduled service segment of the airline 
industry. Consequently, the final rule probably will produce close to 
zero benefits and zero costs over the current baseline when considering 
impacts solely to and resulting from scheduled service providers. The 
inclusion of e-cigarettes may potentially have greater impact on 
nonscheduled or charter service and these potential impacts, as well as 
benefits and costs, are discussed below.
    Conversely, if DOT were to determine that e-cigarettes were not 
covered under the ban, the current industry environment could be 
affected, more so than would be expected under this final rule. First, 
some carriers could incur new costs relative to the baseline due to the 
need to more actively enforce their prohibitions. This could occur if 
some consumers mistakenly interpret DOT's failure to enact a federal 
prohibition as ensuring their right to engage in e-cigarette use in an 
airplane cabin. Alternatively, some carriers might lift their 
prohibitions, which could reduce the burden on the minority of the 
population that uses e-cigarettes and whose activities are now 
restricted. However, removing e-cigarette restrictions would reduce 
benefits relative to the current baseline by exposing other passengers 
and flight crew to secondhand aerosols. Additionally, airlines would 
probably need to offer additional training to crew members and the pre-
flight briefing would have to be longer, to educate and explain what, 
when and where particular smoking products may and may not be used.
    The nonscheduled segment of the industry could potentially 
experience greater impact than the scheduled service segment, because 
while some charter airlines explicitly prohibit e-cigarette use, the 
extent to which this practice is standard or typical is unknown. 
However, the widespread adoption of an e-cigarette ban on the part of 
scheduled service airlines suggests that implementing an e-cigarette 
prohibition is not particularly costly, at least when a general smoking 
ban is already in place. To the extent that e-cigarette use is allowed 
on charter flights, a ban will add a burden to smoking patrons who will 
no longer be able to engage in the activity while in flight. The burden 
to smoking patrons will probably constitute the primary burden of the 
rule with respect to e-cigarettes. However, benefits will accrue to 
nearby passengers and crew who no longer are exposed to secondhand 
aerosol.

Implementation of Section 401 of the FAA Modernization and Reform Act: 
Benefits and Costs

    The rule amends 14 CFR part 252 to implement section 401 of the FAA 
Modernization and Reform Act and extends the general smoking ban to 
nonscheduled interstate, intrastate, and foreign passenger air 
transportation when a flight attendant is required. To the extent that 
charter airlines allow smoking, the final rule will produce benefits in 
terms of reduced secondhand exposure to tobacco smoke, and the 
resulting positive health effects to nonsmoking passengers and flight 
crew. Again based upon a review of charter airline Web sites, most 
already prohibit smoking on their flights so the benefits of this 
nature are expected to be small.
    There is no cost to operators for hardware related to smoking bans. 
In fact, smoking bans reduce hardware costs as cabin air filters do not 
have to be changed as frequently and avionics do not have to be cleaned 
as often, which is one reason that charter flights have opted to 
prohibit smoking, even when allowed by law. The American Aviation 
Institute, in its comments on the NPRM, raised the issue of additional 
costs due to new placards and notification lights, and re-printing of 
airline manuals.\25\ These should not be significant costs associated 
with this final rule since all aircraft are already required to be 
equipped with no-smoking signs and lights. Some operators may feel the 
need to update documents used to communicate to passengers and 
employees the activities prohibited by law. However, such document 
update is not a direct requirement of the final rule and would be 
voluntary on the part of affected airlines. The costs of updating such 
materials should be small since most charter flights already do not 
allow smoking and probably have developed documents in support of their 
policies. In addition, such documents are routinely updated since laws 
regarding prohibited behaviors and security concerns are constantly 
evolving. An operator could reduce the costs of updating documents to 
reflect changes as they pertain to smoking by waiting until there is a 
more general need for updating.
---------------------------------------------------------------------------

    \25\ Comments of the American Aviation Institute in the Matter 
of Smoking of Electronic Cigarettes on Aircraft, Docket DOT-OST-
2011-0044, September 26, 2011.
---------------------------------------------------------------------------

    To the extent that the rule, in effect, expands the existing ban on 
smoking (for traditional tobacco products and its extension to 
electronic cigarettes), there could be a cost to operators in the form 
of lost revenue or profits due to a reduction in demand for flights 
from customers who would wish to smoke on those flights. Such costs are 
largely speculative since they would apply to operators who allow 
smoking and consumers who chose their particular flights based 
primarily on the ability to smoke; DOT was unable to identify any 
businesses, successful or otherwise, operating under this model. Given 
that smokers will not have a smoking flight alternative (except perhaps 
chartering their own private flight where a flight attendant is not 
required), they will need to choose another transportation mode such as 
driving to their destination or if an alternative mode is

[[Page 11426]]

not feasible, they would need to choose to not travel at all, if the 
ability to smoke was the primary consideration in their decision-making 
process. Or they might choose alternate nicotine delivery systems, such 
as patches and gum. The lack of flight alternatives coupled with the 
presence of alternative nicotine delivery systems will likely limit the 
reduction in demand that the small number of operators who would allow 
smoking could experience. In addition, any reduction in demand from 
smokers may, to some extent, be offset by increased demand from non-
smokers.
Comparison of Costs to Benefits
    Due to the inability to identify any specific carrier that would 
need to change its current practices significantly, DOT was unable to 
quantify the costs and the benefits of the rule, but believes both are 
probably very small. The overwhelming majority of passengers travel on 
scheduled service where smoking, including the use of e-cigarettes, is 
already prohibited. If smoking were to be allowed on nonscheduled 
flights, benefits of a ban would include reductions in potential 
exposure to secondhand smoke for passengers and crewmembers. Expanding 
the ban on smoking to cover e-cigarettes could reduce health hazards 
related to secondhand exposure to exhaled aerosols. The costs to 
operators should be minimal, but some passengers could experience some 
costs due to a reduced opportunity to smoke.
    The risks and resulting adverse health consequences associated with 
secondhand exposure to tobacco smoke are well-documented.\26\ Existing 
evidence indicates that e-cigarettes may also have adverse health 
impacts, not just for users, but for those nearby. Those seated next to 
users may not want to expose themselves (or their babies or older 
children) to the risks of these adverse health impacts and at least 
some crewmembers may prefer to work in an environment free of these 
risks since they fly far more frequently than most passengers. Due to 
the involuntary nature of the risk of secondhand exposure, the 
Department believes that it is prudent to give greater weight to the 
potential benefits of the rule than to the inconvenience costs incurred 
by smoking passengers or any small incremental costs incurred by 
airline operators.
---------------------------------------------------------------------------

    \26\ See, for example: http://www.cdc.gov/tobacco/data_statistics/fact_sheets/secondhand_smoke/health_effects// ; 
http://www.lung.org/stop-smoking/smoking-facts/health-effects-of-secondhand-smoke.html?referrer=https://www.google.com/
---------------------------------------------------------------------------

Alternatives
    DOT has identified only one viable regulatory alternative: A final 
rule that is limited in scope to solely to implementing Section 401 of 
the FAA Modernization and Reform Act. Such a rule would not alter the 
definition of smoking to cover e-cigarettes. DOT has determined that 
the alternative of ``no regulatory action'' (i.e. the status quo) is 
not viable since the Department is required to implement Section 401 of 
the FAA Modernization and Reform Act, at a minimum.
    Restricting the rule to Section 401 implementation would represent 
the minimum regulatory action that the Department could undertake. To 
the extent that smoking of traditional cigarettes is occurring on 
nonscheduled interstate, intrastate, and foreign passenger air 
transportation when a flight attendant is a required crew member, there 
would still be some benefits related to reduced secondhand smoke 
exposure from traditional cigarettes.
    This alternative would continue to allow airlines to develop their 
own policies regarding use of e-cigarettes, allowing them to change 
their current policies if they desire. If a carrier chose to change its 
policy, this would expose passengers and crewmembers to potentially 
harmful health risks. Also, any change in policy to allow for the use 
of e-cigarettes would require flight attendants to distinguish among 
various cigarettes and devices to determine which are acceptable. For 
example, the Air Line Pilots Association (ALPA) noted in their comments 
the possibility of passenger and crewmember confusion in 
differentiating e-cigarettes from tobacco cigarettes, as the two 
products can be difficult to distinguish from each other. In addition, 
carriers that do not change their policies could incur new costs due to 
the need to more actively enforce their prohibitions. This could occur 
if some consumers mistakenly interpret the lack of a federal 
prohibition as ensuring their right to engage in e-cigarette use in an 
airplane cabin. For these reasons, DOT rejected this alternative.

B. Regulatory Flexibility Analysis

    DOT has examined the economic implications of this final rule for 
small entities as required by the Regulatory Flexibility Act (5 U.S.C. 
601 et seq.). Unless an agency determines that a rule is not expected 
to have a significant economic impact on a substantial number of small 
entities, the Regulatory Flexibility Act requires the agency to analyze 
regulatory options that would lessen the economic effect of the rule on 
small entities. As discussed below, DOT finds that this final rule will 
not have a significant economic impact on a substantial number of small 
entities.
    For purposes of rules promulgated by the Office of the Secretary of 
Transportation regarding aviation economic and consumer matters, an 
airline is a small entity for purposes of the Regulatory Flexibility 
Act if it provides air transportation only with aircraft having 60 or 
fewer seats and no more than 18,000 pounds payload capacity. Referring 
to Table A.1, this final rule applies to 63 (15 + 48) small U.S. 
carriers.\27\ Of these small carriers, 50 (13 + 37), or about 79 
percent, provide scheduled service and are subject to the general 
smoking ban. As noted above, scheduled service providers have 
overwhelmingly adopted prohibitions on e-cigarette use. DOT is unaware 
of any small scheduled service carrier that would need to change its e-
cigarette policy in response to this final rule. In addition, the 
widespread industry ban on e-cigarettes suggests that it is quite easy 
to cover e-cigarettes once a smoking ban is in place. Thus, it is 
expected that the typical small scheduled service airline will 
experience no impacts due to this rule.
---------------------------------------------------------------------------

    \27\ RFA analysis is typically limited to domestic firms because 
SBA guidelines and definitions pertain to U.S.-based entities.
---------------------------------------------------------------------------

    The remaining 13 (2 + 11) small airlines, or roughly 21 percent, 
provide nonscheduled or charter services. Based upon a review of their 
individual Web sites, none of these carriers cater their businesses to 
smoking patrons (smokers of either traditional or e-cigarettes). As 
noted above, providers of charter airplane service have several 
incentives to prohibit smoking of traditional cigarettes, including 
lower operating costs, ease of accommodating nonsmoking patrons, and 
meeting the standards necessary for receipt of safety certifications 
and government contracts. In addition, several of the small charter 
airlines have fleets that consist of extremely small aircraft (i.e. 
Cessnas or other planes that seat fewer than 10 passengers), and 
smoking is already banned on these aircraft (see existing section 
252.13). Moreover, some of these companies provide medical 
transportation services, which is likely at odds with a permissive 
smoking policy. While it is not known with any certainty whether these 
factors also represent incentives to restrict e-cigarette use, the 
swift adoption of e-cigarette bans in the scheduled service component 
of the industry suggests that extending the prohibitions to e-

[[Page 11427]]

cigarettes can be accomplished without too much difficulty or cost once 
a ban on smoking is already in place.
    For the reasons described about, the final rule is unlikely to 
produce a significant financial impact on any small carrier, and 
probably will not affect their operations in any meaningful way. 
Therefore, the Secretary of Transportation certifies that the final 
rule will not have a significant economic impact on a substantial 
number of small entities.

C. Executive Order 13132 (Federalism)

    This final rule has been analyzed in accordance with the principles 
and criteria contained in Executive Order 13132 (``Federalism''). This 
regulation has no substantial direct effects on the States, the 
relationship between the national government and the States, or the 
distribution of power and responsibilities among the various levels of 
government. It does not contain any provision that imposes substantial 
direct compliance costs on State and local governments. It does not 
contain any provision that preempts state law, because states are 
already preempted from regulating in this area under the Airline 
Deregulation Act, 49 U.S.C. 41713. Therefore, the consultation and 
funding requirements of Executive Order 13132 do not apply.

D. Executive Order 13084

    This rule has been analyzed in accordance with the principles and 
criteria contained in Executive Order 13084 (``Consultation and 
Coordination with Indian Tribal Governments''). Because none of the 
measures in the rule will 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

    Under the Paperwork Reduction Act, before an agency submits a 
proposed collection of information to OMB for approval, it must publish 
a document in the Federal Register providing notice of and a 60-day 
comment period on, and otherwise consult with members of the public and 
affected agencies concerning, each proposed collection of information. 
This rule imposes no new information reporting or record keeping 
necessitating clearance by the Office of Management and Budget.

F. National Environmental Policy Act

    The Department has analyzed the environmental impacts of this final 
rule pursuant to the National Environmental Policy Act of 1969 (NEPA) 
(42 U.S.C. 4321 et seq.) and has determined that it is categorically 
excluded pursuant to DOT Order 5610.1C, Procedures for Considering 
Environmental Impacts (44 FR 56420, Oct. 1, 1979). Categorical 
exclusions are actions identified in an agency's NEPA implementing 
procedures that do not normally have a significant impact on the 
environment and therefore do not require either an environmental 
assessment (EA) or environmental impact statement (EIS). See 40 CFR 
1508.4. In analyzing the applicability of a categorical exclusion, the 
agency must also consider whether extraordinary circumstances are 
present that would warrant the preparation of an EA or EIS. Id. 
Paragraph 3.c.6.i of DOT Order 5610.1C categorically excludes 
``[a]ctions relating to consumer protection, including regulations.'' 
The purpose of this rulemaking is to extend the smoking ban in 14 CFR 
part 252 to include all charter flights where a flight attendant is a 
required crewmember and to ban the use of e-cigarettes. The Department 
does not anticipate any environmental impacts, and there are no 
extraordinary circumstances present in connection with this rulemaking.

G. Unfunded Mandates Reform Act

    The Department analyzed the final rule under the factors in the 
Unfunded Mandates Reform Act of 1995. The Department considered whether 
the rule includes a federal mandate that may result in the expenditure 
by State, local, and tribal governments, in the aggregate, or by the 
private sector, of $100,000,000 or more (adjusted annually for 
inflation) in any one year. The Department has determined that this 
final rule will not result in such expenditures. Accordingly, this 
final rule is not subject to the Unfunded Mandates Reform Act.

List of Subjects in 14 CFR Part 252

    Air carriers, Aircraft, Consumer protection, Smoking.

    Issued in Washington, DC, on February 19, 2016 under authority 
delegated in 49 CFR 1.27(n).
Kathryn B. Thomson,
General Counsel.

    For the reasons stated in the preamble, the Office of the Secretary 
of Transportation amends 14 CFR part 252 as set forth below:

PART 252--[AMENDED]

0
1. The authority citation for 14 CFR part 252 is revised 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 and 
section 401 of Pub. L. 112-95, 41711, and 46301.


0
2. Section 252.1 is revised to read as follows:


Sec.  252.1  Purpose.

    This part implements a ban on smoking as defined in Sec.  252.3, 
including the use of electronic cigarettes and certain other devices, 
on flights by air carriers and foreign air carriers.

0
3. Section 252.2 is revised to read as follows:


Sec.  252.2  Applicability.

    This part applies to operations of air carriers engaged in 
interstate, intrastate and foreign air transportation and to foreign 
air carriers engaged in foreign air transportation.

0
4. 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.
    Smoking means the use of a tobacco product, electronic cigarettes 
whether or not they are a tobacco product, or similar products that 
produce a smoke, mist, vapor, or aerosol, with the exception of 
products (other than electronic cigarettes) which meet the definition 
of a medical device in section 201(h) of the Federal Food, Drug and 
Cosmetic Act, such as nebulizers.

0
5. Section 252.4 is added to read as follows:


Sec.  252.4  Smoking ban: air carriers.

    Air carriers shall prohibit smoking on the following flights:
    (a) Scheduled passenger flights.
    (b) Nonscheduled passenger flights, except for the following 
flights where a flight attendant is not a required crewmember on the 
aircraft as determined by the Administrator of the Federal Aviation 
Administration:
    (1) Single entity charters.
    (2) On-demand services of air taxi operators.
    (c) Nothing in this section shall be deemed to require air carriers 
to permit smoking aboard aircraft.

0
6. Section 252.5 is revised to read as follows:


Sec.  252.5  Smoking ban: foreign air carriers.

    (a)(1) Foreign air carriers shall prohibit smoking on flight 
segments that

[[Page 11428]]

occur between points in the United States, and between the United 
States and any foreign point, in the following types of operations:
    (i) Scheduled passenger foreign air transportation.
    (ii) Nonscheduled passenger foreign air transportation, if a flight 
attendant is a required crewmember on the aircraft as determined by the 
Administrator of the Federal Aviation Administration or a foreign 
carrier's government.
    (2) Nothing in this section shall be deemed to require foreign air 
carriers to permit smoking aboard aircraft.
    (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 for Aviation and International Affairs, provided that an 
alternative smoking prohibition resulting from bilateral negotiations 
is in effect.


Sec.  252.7  [Removed]

0
7. Section 252.7 is removed.

0
8. 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 and 252.5 
shall apply to all locations within the aircraft.


Sec. Sec.  252.13 and 253.15   [Removed]

0
9. Sections 252.13 and 253.15 are removed.

0
10. Section 252.17 is revised to read as follows:


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 
where smoking is prohibited by this part, including but not limited to 
aircraft lavatories.


Sec.  252.19  [Removed]

0
11. Section 252.19 is removed.

[FR Doc. 2016-04799 Filed 3-3-16; 8:45 am]
 BILLING CODE 4910-9X-P