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e C BEFORE THE CIVIL AERONAUTICS BOARD WASHINGTON, D.C. Petition for Rulemaking to ) Eliminate Regulation ) 14 C.F.R. Part 252 ) Docket No. 37657 ANSWER OF THE TOBACCO INSTITUTE, INC. TO PETITION FOR RULEMAKING Communications with respect to this Answer may be sent to Stanley L. Temko, Esq., 888 Sixteenth Street, N.W. Washington, D.C. 20006 (202-452-6237) April 15, 1980 Stanley L. Temko Richard F. Kingham Covington & Burling 888 Sixteenth Street, N.W. Washington, D.C. 20006 Attorneys for The Tobacco Institute, Inc. \

BEFORE THE CIVIL AERONAUTICS BOARD WASHINGTON, D.C. Petition for Rulemaking to ) Eliminate Regulation ) 14 C.F.R. Part 252 ) Docket No. 37657 ANSWER OF THE TOBACCO INSTITUTE, INC. Mr. Stanley Diefenthal and Mrs. Elka Diefent:^.al have petitioned the Board to institute a rulemaking proceeding to revoke 14 C.F.R. Part 252, the regulations governing the provision of designated "no smoking" areas aboard aircraft operated by certificated air carriers. The Tobacco Institute, Inc., supports that petition. The Tobacco Institute is a nonprofit association that represents major manufacturers and marketers of cigarettes and other tobacco products. The Institute has participated in pending rulemaking proceedings to revise the regulations in Part 252 (EDR-377, Docket No. 29044). In comments submitted in that proceeding on August 17, 1979, the Institute questioned the legal authority of the Board to regulate smoking aboard aircraft. Those comments pointed out that memoranda prepared by the Board's staff in 1978 acknowledged that there was reason dz~'j to doubt that Congress intended the Board to issue regulations such as Part 252 when it enacted the basic Federal Aviation Act. That statute specifically prohibits the Board from interfering with C) GZ=3= \ W

C t - 2 - the right of air carriers to add to or change equipment, accommodations, or facilities. The statute further proscribes "unjust discrimination" against all persons, including those who wish to smoke. The Airline Deregulation Act of 1978 made clear that Congress intended the Board to permit the airlines to compete freely with respect to the kind and quality of ser- vices and accommodations they provide. Regulations, such as Part 252, which impose detailed, uniform requirements as to passenger accommodations impermissibly interfere with the managerial discretion of air carriers. Part 252 is not only open to serious legal challenge but it represents unwise public policy. The effort to substi- tute government regulations for the exercise of common courtesy and mutual respect among passengers has embroiled the airlines and the Board in an unending series of controversies with smokers and nonsmokers alike. Militant antismoking advocates have made use of the Board's rules to harass smoking passengers who only seek to travel in reasonable comfort. The anti- smokers have approached the Board with demands for even greater restrictions on smoking. The Board's "no smoking" rules represent an unlawful interference with the statutory rights of airline managers to run their businesses and of airline passengers to travel in comfort, free from harassment or discrimination. At r

c - 3 - the very least, the Board should institute the requested rulemaking proceeding so that all interested persons can comment on the lawfulness and propriety of Part 252. The legal and policy questions raised by the Peti- tion in this proceeding were considered in detail in the Institute's comments in Docket No. 29044, in particular at pages 2-9. Those comments are appended to and made a part of this Answer. Respectfully submitted, 2 , '~ -~, Stanley L. Temko Richard F. Kinghan Covington & Burling 888 Sixteenth Street, N.W. Washington, D.C. 20006 Attorneys for The Tobacco Institute, Inc. April 15, 1980 V