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C UNITED STATES OF AMERICA CIVIL AERONAUTICS BOARD WASHINGTON, D.C. EDR- 377 Economic Regulations Docket 29044 Dated: May 16, 1979 PART 252 - PROVISION OF DESIGNATED "NO-SMOKING" AREAS ABOARD AIRCRAFT OPERATED BY CERTIFICATED AIR CARRIERS PROPOSED RESTRICTIONS ON SMOKING AGENCY: Civil AEronautics Board ACTION: Notice of Proposed Rulemaking SL- i;'dCU r~pY 18 1979 SUMMARY: This notice proposes to amend the existing rule on smoking aboard aircraft in various ways, including special seating for susceptible passengers, buffer zones, and special locations for cigar and pipe smoking. The Board is issuing the proposal on its own initiative. Dates: Initial comments: Reply comments: August 20, 1979 September 19, 1979 • Comments and other relevant information received after these dates will be considered by the Board only to the extent practicable. Requests to be put on the Service List: June 11,1979.Docket Section prepares the Service List and sends it to each person listed, who then serves his comments on others on the list. ADDRESSES: Twenty copies of comments should be sent to Docket 29044, Civil Aeronautics Board, 1825 Connecticut Avenue, N.W., Washington, D.C. 20428. Individuals may submit their views as consumers without filing multiple copies. Comments may be examined in Room 711, Civil Aeronautics Board, 1825 Connecticut Avenue, N.W., Washington, D.C. as soon as they are received. FOR FURTHER INFORMATION CONTACT: Richard B. Dyson, Associate General Counsel, Civil Aeronautics Board, 1825 Connecticut Avenue, N.W., Washington, D.C. 20428, 202-673-5444. SUPPLEMENTARY INFORMATION: By ER-1091, (44 FR 5071, January 25, 1979) the Board amended its rules on smoking aboard aircraft to provide airline passengers more effective protection from tobacco smoke. This amendment was made on the \ ~ ~~

-2- basis of notice of proposed rulemaking EDR-306, 41 FR 44424, October 8, 1976. The new requirements are for special segregation of cigar and pipe smokers, and such other procedures as may be necessary to avoid exposing persons in no-smoking areas to smoke from cigars and pipes; a no-smoking area for each class of service and for charter service consisting of at least two rows of seats; enough seats in no-smoking areas for all persons who wish to be seated there, with provision for expansion of no- smoking areas to meet passenger demand; special provisions to ensure that if a no-smoking section is placed between smoking sections, the non-smoking passengers are not unreasonably burdened; and carrier measures to prevent smoking in no-smoking areas. The Board has not finally decided whether the rules as now amended will be sufficient to protect non-smokers from unreasonable exposure to tobacco smoke. Various other suggestions have been advanced by petitioners and commenters in this proceeding. We would like to receive further comment on some of these possiblities, while at the same time observing the effect of the recent amendments to see whether more stringent actions are called for. Although we are presenting all of these proposals in rule form for ease of understanding, they certainly will not all be included in any final rule (some are mutually exclusive). They should be considered as options, which might be issued by the Board in various combinations. PERSONS UNUSUALLY SUSCEPTIBLE TO TOBACCO SMOKE Several authorities have been cited by commenters to the effect that severe physical reactions to tobacco smoke are experienced by persons with certain'medical conditions. Based on expert medical testimony that exposure to tobacco smoke causes extreme distress to some individuals, a New Jersey court has held that an employee who suffered allergic reactions to the inhalation of ambient smoke was entitled to work in a smoke-free environment. 1/ In letters to the Board dated January 11, 1978, and August 3, 1978, the Secretary of the Department of Health, Education, and Welfare, citing the harm suffered by individuals with certain allergies and respiratory diseases, called for the special protection of such travelers. 1/ Shimp v. New Jersey Bell Telephone Co., 368 A. 2d 408 (Superior Ct., Ch. Div., N.J. 1976).

- 3 - While action to accommodate unusually susceptible individuals may be justified, we do not find practicable ASH's proposal to ban all smoking on any flight where a passenger indicates that exposure to smoke will cause "serious physical injury or other impairment." Restricting all passengers upon the request of a susceptible individual could cause last-minute controversies between passengers and difficult administrative problems for the airlines. There may be merit, however, in requiring airlines to take more action with regard to persons with special problems. Some airlines have been dealing with the problem of persons with unusual susceptibility to smoke by placing them in seats that are farthest from the smoking areas. We are proposing to make the practice general, by requiring carriers to seat persons who advise them of special susceptibility to smoke either in the area of the plane that is farthest from any smoking area, or in a position shown by objective tests to be the freest from smoke. We request that commenters on this proposal address these questions: How should carriers decide which persons are entitled to special accommodation? Should there be a list of qualifying medical conditions? Should a medical certificate be required, and if so what should be the minimum requirements for the certificate? Is uniformity of carrier rules important? SANDWICHING A few carriers that offer more than one class of service per compartment place the no-smoking area for both classes together in a split-section seating configuration, so that non-smokers are, in effect, "sandwiched" between smokers. This seating arrangment has been the subject of complaints to the Board's Bureau of Consumer Protection. Allegheny Airlines has agreed to cease and desist from employment of this configuration. Order 76-4-160, April 28, 1976. Allegheny had, as a result of self-monitoring, already found that this configuration did not provide effective separation of smokers and non-smokers on its DC-9-30 aircraft and discontinued the practice. To remedy the problems created by sandwiching, EDR-306 proposed to amend 4252.2 to require that there be no more than one smoking area per aircraft compartment. This proposal was opposed both by carriers and by advocates of stricter smoking regulations. \ t. ` i C ~~ ~

C - 4 - Those opposed to smoking on aircraft found the allowance of one smoking area in each compartment too lenient. Many individuals filing comments took the position that all smokers should be seated together and isolated in one area from which there is the least possible flow of smoke to non-smokers. Many suggested that this area should be the rear of the aircraft. In addition, ASH urged that there should be no smoking area at all in forward first class, because its small size prevents effective separation, and because smoke drifts back into the tourist no- smoking area even when a curtain is drawn. There has been no convincing demonstration, however, that grouping all smokers together would solve the problems associated with smoking on aircraft. Although we recognize the problem, we do not find that a ban on all smoking in first class is warranted at this time. In order to provide more effective separation, carriers might make use of "don't care" passengers or empty seats as buffers between smokers and those non-smokers who object to any exposure to smoke. While intensity of feeling on the part of large numbers of non-smokers is evident in the comaents, there may be a substantial group of non-smokers who would not feel burdened by sitting in the row behind first class smoking section. Pan American indicates that it has had success with the use of "don't cares" and vacant seats, and this aspect of its seating procedures may be usable by other carriers. Some carriers objected to limiting smoking areas to one per compart- ment. Objections related primarily to the relative merits of sandwiching, and to possible interference with the marketing of various classes of service. ATA stated that to limit smoking areas to one per compartment in situations where the rear compartment accommodates more than one class, a carrier would have to either discriminate by denying smoking to one class or combine smokers without regard to class. Continental argued that sandwiching of non-smokers provides them better protection than they would receive under the proposed rule, because placing coach and economy smokers together would make the smoke more dense, reduce the speed with which it is cleared, and have an adverse psychological effect by presenting non-smokers with a concentrated area of smoke. It makes more detailed arguments with respect to the B-727 and the DC-10, contending that sandwiching reduces the points of contact between smokers and non- smokers on these aircraft. The Board would like to have the benefit of additional comments on the technical issues raised by Continental's objections. A proposal to limit smoking areas to one per compartment is therefore included in this notice, to obtain more data on the effects of various seating configurations. r_1 L N ~~ ~

- 5 - SPECIAL SEGREGATION OF PIPES AND CIGARS ER-1091 (44 FR 5071, January 25, 1979) was based partly on a finding that non-smokers require special segregation from pipe and cigar smoke in order to receive "adequate" and "reasonable" service. It leaves the specifics of this special segregation requirement to the discretion of each air carrier. While we expect full and effective compliance with this general mandate, we are also interested in receiving comments on more detailed regulations concerning pipe and cigar smoking. The Cigar Association filed a petition for rulemaking on December 9, 1977 (Docket 31805), proposing a buffer-zone arrangement between cigar and pipe smokers and non-smokers. In Order 78-5-139 the Board consolidated the Cigar Association's petition with the present rulemaking proceeding. The Cigar Association proposed a three-part approach to the restriction of cigars and pipes: (1) a buffer zone of three rows between non- smokers and any cigar and pipe smoker in coach-class cabin, and of one row in a first class cabin; (2) restriction of cigar or pipe smokers to the window seats or seats closest to an air outtake vent; and (3) a requirement that any cigar or pipe smoking passenger extinguish his cigar or pipe if any other passenger makes such a request through a flight attendant. This scheme is one approach toward achieving special segregation of pipe and cigar smokers. With some changes, we are including it in the proposal, to stimulate public comment on the subject of more specific rules. We are proposing a seven-row buffer zone between cigar and pipe smokers and non-smokers, and a one-row buffer zone around the total smoking section where there is not an equivalent amount of space or a physical barrier between the smoking and non-smoking sections. The Board also proposes and requests comments on buffer zones of any different sizes. For buffer zones to be practicable when the plane is full, they must be occupied by persons who neither smoke nor object to sitting next to the smoking area. Finding persons in this category may involve the offering of incentives by carriers, such as a free drink or higher- class service. We invite comment on all aspects of buffer zones, including experience carriers may have had in using incentives for these or analogous purposes. Other proposals included here, which will be considered as either cumulative or alternative possibilities, are the restriction of cigar and pipe smokers to positions nearest the air vents or at the back of the plane, requiring partitions to separate smokers and non-smokers, and a rule requiring putting out cigars or pipes at the request of a non-smoker. EDR-306, 41 FR 44424, October 8, 1976, proposed a ban on cigar and pipe smoking, and other smoking prohibitions conditioned on the type of aircraft (for example, banning smoking on planes with 30 or fewer seats) and length of flight (for example, banning smoking on all flights of

less than 1 hour). No action has yet been taken on those proposals, but thev remain live options for final rule action and are reproposed here. We also propose and request comments on other possible phvsical bases on which to delineate aircraft on which smoking should be prohibited, such as whether the cabin is pressurized. Finally, we propose a provision to advise that the Board will consider requests for waivers from one or more of these rules, so that carriers may experiment with various methods of separating smokers and non-smokers or with innovative ventilating devices or other technological solutions. For example, Continental's sandwiching technique might be permitted on a portion of its operations to allow a comparison between multi,,le and single smoking areas. Another example might be "smoker flights'• on second sections of shuttle services on which non-smokers could travel if they wish. We are not proposing a ban on all tobacco smoking aboard aircraft at this time, although it has been urged in thousands of comments in this proceeding. At this stage our focus is on arriving at a set of restrictions, short of a total ban, that will best accommodate the conflict'ng desires of the smoking and non-smoking public. We are not ruling out the possibililty of such a ban at some future time, but we want the comments in response to this notice to help us in our search among the detailed options, and not to be distracted by the immediate prospect of a total ban. 0'MELIA, MEMSER, CONCURRING: As more and more papers stack up telling us in great and specific detail what to do about smoking aboard aircraft and as more and more individual complaints cross my desk, I have come to the ccnclusion that we need some reliable scientific tests on the flow of smoke, whether cigar, cigarette or pipe, aboard aircraft. We need :ore hard information, and perhaps less grandiloquence and harangue, befo7,_~ ae can, with any confidence, put the smokers in the back of the plane or in the window seats or throw them out altogether. 1/ I believe the Board s`ould call upon FAA, DOT, SEW, the National Acade=y of Sciences, the Bureau of Standards or someone to conduct such tests. If we must decide these touchy questions, we should have specific answers at hand on the effects of tobacco smoking aboard aircraft. /s/ RICHARD J. O'MELIA 1/ For example, we say we will consider putting passengers who are particularly susceptible to smoke in the area of the plane freest from smoke. I'm not yet sure just where that is. k ,

C - 7 - C Accordingly the Civil Aeronautics Board proposes to amend Part 252 of the Economic Regulations (14 CFR Part 252) to read as set forth below. It should be noted that, as discussed above, some of the provisions would be considered as alternatives and they are set out here cumulatively only to facilitate comment. PART 252 - SMOKING ABOARD AIRCRAFT Section 252.1 Applicability. 252.1a Special segregation of cigar and pipe smokers. 252.1b Special requirements for cigar and pipe smoking. 252.2 No-smoking areas. 252.2a Ban on smoking when ventilation systems not fully functioning. 252.2b Special seating for unusually susceptible persons. 252.2c Ban on cigar and pipe smoking. 252.2d Ban on smoking on short flights. 252.2e Ban on smoking on small aircraft. 252.3 Enforcement. 252.3a Waivers. 252.4 Manual containing carrier smoking rules. 252.5 Board may modify carrier rules. §252.1 Applicability. This part establishes rules for the smoking of tobacco aboard aircraft. It applies to each direct air carrier that holds a certificate of public convenience and necessity, authorizing the transportation of persons, issued pursuant to Section 401 of the act (hereafter called "carriers"). Nothing in this regulation requires carriers to permit the smoking of tobacco aboard aircraft. 4252.1a Special segregation of cigar and pipe smokers.. Carriers shall adopt and enforce rules providing for special segregation of cigar and pipe smokers, and for such other procedures as may be necessary to avoid exposing persons seated in no-smoking areas to smoke from cigars and pipes. 3252.1b Special requirements for cigar and pipe smoking. Each carrier shall enforce the following rules regarding cigar and pipe smoking: (1) Cigar and pipe smoking shall be limited to an area at least seven rows from the non-smoking section. (2) A smoking section shall be separated from any non-smoking section by a physical barrier or at least one row or the equivalent distance, that is either vacant or occupied by persons who neither smoke nor oblect to being seated next to the smoking section. `~~

C -8- (3) Cigars and pi?es may be smoked only by persons seated closest to the air vent in each row. (4) The section where cigars and pipes may be smoked must be at the rear of the compartment. (5) Cigar and pipe smoking shall be prohibited in a compartment if any person seated in the compartment requests such a ban through a flight attendant. 4252.2 No-smoking areas. Carriers shall ensure that non-smoking passengers are not unreasonably burdened by breathing smoke and to that end shall provide at a minimum: (a) A no-smoking area for each class of service and for charter service; (b) A no-smoking section of at least two rows of seats; (c) A sufficient number of seats in the no-smoking areas aircraft for all persons who wish to be seated there; of the (d) Specific provision for expansion of no-smoking areas to meet passenger demand; (e) Special provisions to ensure that if a no-smoking section is placed between smoking sections, the non-smoking passengers are not unreasonably burdened. (f) That each smoking area shall be separated from any other smoking area by a curtain or partition. 4252.2a Ban on smoking when ventilation systems not fully functioning. Carriers shall adopt and enforce rules prohibiting the smoking of tobacco whenever the ventilation system is not fully functioning. A ventilation system shall be considered fully functioning only when all parts are in working order and operating at the capacity designed for normal service. 1252.2b Special seating for unusually susceptible persons. Carriers shall provide special accommodations for persons who are unusually susceptible to physical ill effects from inhalation of tobacco smoke, and who so inform the carrier in advance of the flight. These accommodations shall consist of seating in a location either as far as possible from smoking areas or one shown by objective tests to provide the maximum freedom from smoke. 4252.2c Ban on cigar and pipe smoking. Carriers shall adopt and enforce rules prohibiting the smoking of cigars and pipes aboard aircraft.

C - q - §252.2d Ban on smoking on short flights. Carriers shall adopt and enforce rules prohibiting the smoking of tobacco on all flights 1 hour or less. §252.2e Ban on smoking on small aircraft. Carriers shall adopt and enforce rules prohibiting the smoking of tobacco on aircraft with 30 seats or less. §252.3 Enforcement. Each carrier shall take such action as is necessary to ensure that smoking is not permitted in no-smoking areas and to enforce its rules with respect to the segregation of passengers in smoking and no-smoking areas. §252.3a Waivers. Carriers may file applications for waivers with the Civil Aeronautics Board, Bureau of Consumer Protection, to be relieved from one or more of the requirements of this part in order to experiment with methods of protecting non-smokers from tobacco smoke to the maximum possible degree. §252.4 Manual containing carrier smoking rules. Each carrier shall maintain an employee manual containing its rules on smoking by passengers aboard aircraft. Two copies of the manual shall be filed with the Bureau of Pricing and Domestic Aviation, and revisions and amendments shall be filed within 15 days following adoption by the carrier. §252.5 Board may modify carrier rules. If the Board finds that any carrier rule is at variance with any provision of this part, the Board may by order modify the rule to the extent necessary to make it conform to this part. (Secs. 204(a), 404(a), and 407, Federal Aviation Act of 1958, as amended, 72 Stat. 743, 760, 766; 49 U.S.C. 1324, 1374, and 1377.) By the Civil Aeronautics Board: PHYLLIS T. KAYLOR Secretary \ (SEAL) I ~ :s ~ ~ W O ~ ~~

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