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MAY 29, 1979 NB-79-II ~ ~2 c ~ r7~ `~~- ,c ~.ssrS~J CAB REQUEST PUBLIC COMMENTS ON ALTERNATIVE FORMS OF RESTRICTIONS ON SMOKING ON AIRPLANES On May 21, the Civil Aeronautics Board offerred for public and industry ootmmntasy a set of proposed regulations to inlplerrent restrictions on stroking a- board airplanes. These proposals in- clude special seating arrangements for particularly stroke-sensitive passengers, institution of buffer zones or physical barriers around stroking sections and special requirements affecting cigar and pipe smking. A copy of the propo- sals, as published in the Federal Reg- ister of May 21 (44 FR 29486-9), is attached. ACTION IMPLICATION These proposals were specifically set forth to elicit carffnent that would permit de- velolment of practicable rules. Catcrents should be sent to: Docket 29044, Civil Aeronautics Board, 1825 Connecticut Ave., N.W., Washington, D.C. 20428. Twenty copies of each submission are requested from corporate bodies; only one copy is required frert those su)sni_tting carunents as private indivir3ttals. CIVIL AERONAUTICS BOARD 114 CFR Part 252] [EDR-377; Docket No. 29044, Dated: May 16, 1979) Proposed Restrictions on SmokJng Aboard Aircraft AGENC.Y: Civil Aeronautics Board. ACTION: Notice of Proposed Rulemaking. SUI.+MARY:1'hfs 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 cie3r and pipe smoking. The R.a. is Icsuing the p.oposal ca !ts own initiative. INITIAL CCMi.1ENTS: August 20, 1979. Reply comtuents: September 19, 1979. Comments and other relevant Information received after these dates will be considered by the Board only to the extent practicable. Reqnests to be put on the Service List: June 11, 1979. Docket Section prepares the Service t.ist and sends it to each person lisled, who then serves his comments on others on the list. ADORE58Es: Twenty copies of comments shoutd be sent to Docket 290-l4, Civil Aeronaatics Board. 1P25 Connecticut Avenue. NW.. Washington. D.C.20420. Individuals may subnut Iheir views as consumers without filing multiple copies. Comments may be exan,in::d in Room 711. Citil Aeronautics Goard, 1825 Connecticut Avenue. NW.. Washington, D.C. as soon as they are received. FOR FURTHER INFORAIATION CONTACT: Richard 9. Utson, Associate General Counsel. Civil Aeronautics Board, 1823 Connecticut Avenue. NW., Washington, D.C.204-^.8, 202-073-5444. SUPPLEME!1TRRY IYFOR/AATION: By F.R- 1091,14;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 basis of notice of proposed ralemakinp, EDii-3G8, h: FR 44424, October 8, 19%6. The new requirements are for special segregation of cigar ar.d pipe smokers, and such other procedures as may be necessary to avoid exposing persons in no-smoking areas to smoke fr om 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-smokin; areas for aU persons who wish to be seated thcre, with provision for expansion of no- smokino areas to meet passenger demand: special provisions to ensure that if a no-smoking section is placed between smoking seclions, the non- smoking passengers are not unreasonably burdened; and carrier measures to prevent smcking in no- smoking areas. The Board has not finally decided whether the rules as now amended will be sufficient to protect non-smokers from unreasoaah!e exposuretotoSL~cco smoke. Various other su~,; estions have been advanced by peti ioners and commenters in thi s proceedine. We would like to receive further comrnent on some of these possibilities. a:h;!e at the same time ob;crs ing the effLct of the recent amendments to sce ~~'`ether more slrngent actions are called for. Although we are presenting a!1 of these porposils in rule form for ease of understanding, thc;; cer:ainit :rll not all be included in any fin.n.l ru!e (scme are mutualiy exclusive). T he~- should be consider ed as options, which mig!tt be issucd by the Board in various combiaations. Persons Unusually Susceplihle to Tobacco Smoke Several authoritics huve been cited by eomme~lers to the effect that severe physical reaclions to tobacco smoke are experienced by persons tvitlt ccrtain medical condito!:s. Bused on expert madical lestirnony that exposure to tob,lcco snwke c:ruses extreme dislress to some individuals, a New Jrrse,y court has held that an employee who suffered STATLER HILTON. SEVENTH AVE. AND 33RD STREET, NEW YORK, N.Y. 10001 (212) 239-4435 I

C allergic reactions to the inhalalion ot amhicnt snioke was entililed to work in a smoke-frce environment.' In letters to the Board dated )ununry 11, 19%6, and August 3,1978. the Secretary of the Deparlmenl of Hcalth, Education, and Wel.`are, citin,~ thc harm suffered by individuals vvilh certain a!Icr,ics and respiratory discaes. called fnr the special protection of such travelers. While action to accommodate unucually susceptible individuals may be justified, vre 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 impair:aent." Restricting all passengers upon the request of a susceptlble Individual could cause last-minute controver>ies bethar.en pasrcnSers and difficult administrative problems for the airlines. T here may be merit, hov:ever, in requirine airlines to tal:e more action with regard to persons with special problems. Some airlines have been dealing wi th the problem of pe:sons with unusual susceptibility to smoke by placing them in seats that are farthest from the smokic; areas. We are proposing to make the practice general, by requiring carriers to seat pcrsons who advisc th^m of special susceptibility to smoke either in the area of the plane +hat is farthest from any smokicg area, or in a position shown by objective tests to be the freest from smoke. We request that commenters on this proposal a ddress these questions: How should carriers decide which persons are entitlied to special accommodation? Should there be a Lst of qualifying medical conditions? Should a medical certificate be required, and if so what should be the nitnimum requirements for the certi icate? Is uniformity of carrier rules Important? Sandwzching . A few carriers that offer more than one class of service per comparlr,tent place the no-smcking area for both classes together in a split-section seating configuration, so that non- smokcrs are, in effect, "sandwiched'+ between smokers. This seating arrangmen! has been the subject of complaints to the Board s Bureau of Consumer Prutection. Allegheny Airlines has agreed to cease and desist from employment of this configuration. Order 7G-4-1ti0, April 28.1976. Allegheny had, as a result of seif- 'Shimp.. hew /eney Scll Te4-phane Ca. ]as A. =d eae (Supcnor Ct_ Ch. Div. N.J. nraj. C monitoring, already found that this rece(ve under the proposed rule. configuration did not provide effective because phrcing coach and economy separation of smokers and non-smokers emqkers togclhcr would mnke t1Le smoke on it DC-9-30 aircrafl artd discontinued more dense, reduce the speed with the practice. which it is dcared, und U.e ar ad•:erse To remedy the problems created by psychological effect by prese:t:in~, non- sandwich'.ng, EDR-306 proposed to smokers with a concentrnted area of amend S: 53.2 to requir c that there be no smoke- It makes motc detailed more than one smoking area per aircraft erguments with respect to t6e B-72T and compartment. This proposal was opposed both by carriers and by advocates of stricter smoking regulations. Thoae opposed to smoking on aircraft found the allowance of one smoking area in each compartment too lenicnt. Many individuals filing comments took the position that all smokers should be seated together and isolated in one area from which there is the lcast possible flow of smoke to non-smokers, A4acy suggested that this area should be the rcar of the aircraft. In additicn, ASH urged that there should be no srzoking area at all in for.;ard 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 g:ouping all smokers tcget-hcr 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 buffcrs between smokers and those non-smokers who object to any exposure to smoke. b'S'hi;c intersity of feeling on the part of large numbers of non-smokers is evident in the comments. there may be a substantial aro::o 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 compar tment. Objections related primarily to the relative merits of sandwichir,g, and to possible interference with the mrrketing of various classes of service. ATA stated that no limit smoking areas to one per compart:r.ent in situations wF.era the rear compartment a ccomvod:rtcs 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 sandwiehing of non-smokers provides f thsm better protection than they would Ahe DC-10. contending that sand'•riching reduces the points uf contact helwcen smokers and non-smokers on these aircraft. The Board would like to have the benefit of ndditional comments on the technical issues raised by Cou'inentai's objections. A proposal to limit smoking areas to one per compartment is therefore ir:cluded in this noticc, to obtain mo:e data on the effects of various seating configurations. Special Segregation of Pipes and Cigars ER-11731 (44 FR 5071. January 25. 1979) was based partly on a finding that non- smokers require special segreg:rlion from pipe and cigar smoke in o.drr to receive "adequete" and "reasonairle" servtice-.It leaves the specifics cf -his special segregation requirement to the discretion of each air carrier. W=ile v: e 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 bufir.t-zone arrangement between cigar and pipe smokers and non-smokers. In Crder 7t3- 5-139 the Board consolidated the Cigar Associatiori s petition with the present rulemaking proceeding. The Cigar Association propc;ed a three-part approach to the restriction of cigars and pipes: (1) A buffer zone of th:ee 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 smoRCrs to " the window seats or seats closest to an air outtake vent; and (3) a requircment that any cigar or pipe smoking passenger extinguish his cigar or pipe if arsy cthor passenger makes such a request through a flight attend;:nt. This scheme is one approach toward achieving special segregation of pipe ar.d cigar smokers. With some changes. we are including it in the proposal, to stimulate public comment on the subject of mme specific rules. We are proposing a seven-row buffer zone betw•een cigar and pipe smokers and non-smokcrs. and a one-row buffer zone around the totul smokirg section where there is not an equivalent amount of space or u .2 NB-79-II ~ ~ {r.~ ~ ~ \ L~

C 'physical barrfer between the smoking and non-smoking sections. The Board alsa proposes and requests comments on buffrr zones of any different sizes. For bufier zones to be practicable when the plaoe 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 es a free drink or higher- class service. We invite comment on ell 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 cumulatives 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 ru!c requirLig putting cut cigars or pipes at the request of a non-smoker. EDR-3o6, 41 FR 44424, October 8, 1976, proposed a ban on cigsr and pipe smoking, and other smokina prohibitions conditioned on the type of aircraft (for example. banning smoking on planes with 30 or fewer seats) and length of flig5t (for example, banning smoking on ali flights of less than one hour). No action has yet been taken on ihose propcsal.:, but they remain live options for final rule action and are reproposed here. We also propose and request co^lrnents on other possible physical bases on which to delineate aircraft on which smoking should be prohibited, such as whether the cabin is pressurized- Finaliy, 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 _lsample, Cnn!iner.tal's sa-n,dtvfchin5 technique might be permitted on a portion of its operations to allow a comparison between multiple and single smoking areas. Another example might be "smoler flights" on second secCons 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 hns 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 conflicting desires of the smoking and non-smoking public. We are not ruling dut the possibility of such a ban at some future lime, but we want the comments in response to this notice to help us in our search among the detailed options, and nnl to be distracted by the immediate pruspect of a totsl ban. O'Ale1iu, Ail-mLcr. Concerring: As more and more papers stack up telling us in great and specific dctail what to do about smckin}; aboard aircraft and as more and more individual complaints cross niy desk, f have con e to the conclusion that tve need some reliable scien!ific Iesls on the flow of smoke, whether cigar, cigarette or pipe aboard aircraft. We need more hard information, and perhaps less grandiloquence and harangue, before we can, nith any confidence, put the smokers in the back of d e plane or in the u indow seats or throw thern out altogether.' I believe the Board should cal! upon FAA, DOT, HEW, the National Academv of Sciences, the Bureau of Standards nr someone to conduct ;uch tests. If we must decide these touchy questions. tce should have specific answers at hand on the effects of tobacco smoking aboard aircraft. Signed Richard J. O?+;eiie. Accordingly the Civil Aeronautics 13uard proposed to amend Part 252 of the Economic Regut.ations (14 CFR Part 252) to read as set forth below. It should be noted that, as discussed above, some of the provisions wu,ild be considered as allernatives and they are set out here cumulatively only to facilitate cotnment, PART 252-SMOKING ABOARD AIRCRAFT $e4 252.1 Applicability. - 252.1a Special segregation of cioar and pipe smokers. 252.1b Spccial requirements for cigar and pipe smoking. . 252.2 Vo-smoking areas- 252?a Ban on smcking wher, ventitatlon sysle,ns nol fuCy functioning. 252.2b Specla! ser.tin; [or u::usually susceptible persnns. Z52.2c Ban o: cigar end pipe smoking. 252?d E.:^. on a, ;hort flidhts. 252.2e Ban on smoking on ema!! aircraft. 252.3 Enforcement. 252.3a Wai-rs. 252.4 Atanual conlaiting carder smoking ndrs. 252.5 Bo,rrJ may modify carrier rules. Authorily: Secs. 20-i(n). 401(nl, and-?07, Fedcrat Aviatiua Act of 195s, es nmended, 72 Slal. 743, 7G0. 760; (:8 U.S.C. 1323, 1374. and 7377). § 252.1 Appllcabltlty. This part estublishes rules for the smoking of tobacco uboard aircraft. It 'For exumple, ne snq we witt romlAcr putUng p~nrnger> who wr p,vt„ul~rlr .uaccp!ib:e to .mukc m IPc nrr:, ol tf.e plone frrent f"m emoke. 1'm nnl yel euru rsl whera N.I s. C applies to each direct air carrier that holds a certificate of public convenience and necessity, authorizing the transporation of persuns, issued ' p;irsuant to Section 401 of the act (hereafter ealled "carriers"). Nothing in this regulation requires carriers to permit the smoking of tobacco aboard aircraft. § 252.1a Speclal segregaGon of cigar and p!pe smokers- Carriers shall adopt and enforce rules providing for speeial segregation of cigar and pipe smokers, ard for such other procedures as may be necessary to avoid exposing persons seated in no- smoking areas to smoke from cigars and pipes. § 252.1b Spectat reqetrements for Ggar and pipe smoking. Each carrier shall enforce the following rules regar'1i-^.g ciSar and pipe smoking: (1) Cigar and pipe smoking shall be limited to an area at leost seven roivs from the non-smoking section. (2) A smoking section shall be separated from an' v ncn-smoki: g section by a physical barricr or at least one row cr the equivalent distal;ce, that is either vacant or occupiad by persons who neither smoke nor ot;ject to being seated next to the smoking section. (3) Cigars and pipes may be smoked only by persons seated clo;est to the air vent in each row. (4) The section where cigars ard pipes may be smoked must be at the rear of the compartmenl. (5) Cigar and p;pe smoking shall be prohibited in a compartment if any person seated in the comcartmest requests such a ban through a fllght attendant. § 252.2 No-smoking areaa '. e Carriers shall ensure that non- smoking passengers are not unreasonnbly burdened by breathing smoke artd to that end shall provide at a minimum: (a) A no-srnckli`.g area for each class of service and for charter service; (b) A no-smoking section of at least two rows of seats; (c) A sofficient number of seats in Ihe no-smoking areas of the aircraft for all persons who wish to be seated thrie; (d) Specific provision for expans!on of no-smoking areas 'o meet passenger demand; (e) Special provisions to ensure Ihat if a no-smoking section i3 placed belv:cen smukin; sections, the uon-sn:oking passengers are notunrcasonab!y burdened. NB-79-II 3 r\

(1) That cech smoking area siiidl Le teparutcd fro;:l ar-; other smukina area y a curtain or p arlition. § 252.2a Ban on sm,cking when ventltatlon systenns not 1vI1y functloning. Carriers sha'a adopt and enforce :ules prohibitini; the srnokinp of tub:.cco whenever the venetlalion syrtcm is not fully f::nctiocicg. A vA:ailetion system shall be considcr,d f.illy fumlianicg only when ali parts are in r:orkir,g order and oporating at the capaci!y designed for normal se: vice. 2522c Ean on ctgar and plpc smoki^g. Carriers shall adopt and cnforce rules prohibitino the sciokict of cigars and pipeo aboard oircrait. § 252.2d Ban an smokfng on short tlghts. Carriers sha!l adopt and enforce rulcs C prohihiling the amoicin; to tobocco an all flights I hour or less. ; 252.2e Ban on srnoking on smal' a!rcraft. Carriers shall adopt and enforce n les prohibiting the snoking of tobacco on airraaft with 30 scats or less. 5257_3 Enforcemcr,t. Each carrier shall take such action as IS necessary to ensure that smuklne is p~ iremehts of thir pat i in ort;er to y:ri.^.:ent with rn.•lhuil, of tnclccting nurr-smokers from lobacco smoke ,o the teaxi^tum possible iree. 42,52.4 Manual contahiing canier sc,oking rute•.. Eacn carrier shall mnioain an eaiploycc ruauual containing its ru:cs no amokinf; by r r:ssengers :;board airuraft. Two r,np:es of the manual sL•a!l'cr 51ed with the Luresu of P:icing and Domealic Aviation, at:d revisions and nmendnients sha)1 he f,led within 15 days fallowin,~ ndoption by the c;:rrln. $ 252.5 Board rnay c;odify carr;cr ru!rs, If the Baa!d finds that : ny c;,n!cr rut,, Is at va:i,i,tr,e r•;ith any p;uvision of lhis pc-rt, the 8oard may by e:dor rtodify t}:e rule to :he cxlcni necr.<s<<ry to make it confor:n to this part. f5;cs. 204:a?.!Oita), an : n;77j i'ederal Asiaiion Act nf ig5:+, as an,undcd, >;. ;ai. 743. 7G0. 966: (a9 1:."C. 1324• 1374. and ]3~7)), By the Civ:f Aerunautics Eoard. Sacretory. ¢ 252-2b Special seating for unusua:!y suseeptibte persons. Car.icr sha'l provide specia) acco:ncodations for par=_ons v.) o are unusua:lv scscptibie to physical ill effec!s from inha!aUcn of tobacco smokc, and who so inior^r the carricr in edaar,ce cf he flio4:: :hese acco:amodations shall consis: of saating in a location cither as for as possbla f.-onr smo::in-, areas or one scowri by ohjerrevr- trcls to prm:'u.9e. Ihemwximsrcn-... iieedom from smoke. _ ' . tr7,Dec)0.155]Jri~.vS-1~f3flasa^,1 rot pe-rmitted',n no-smokinr rreas an3 to enforce its rul^s teitir respect to ihe segre,,ation of passen; ers in snm<ir.g and no-srno)cir.g areas. § 252.3a Waivers. Carriers may file applicat:ocs for waivers w0h t.},e Civil Aeronautics Bt at2! Ys t; ea7 oTC orisu ner Pi otect:on, to be relieved fro :•, one or more of the Federal Re;aster / Vol. 41. No. 99 / hlonc'ay, May 21• 1979 / Pronosrr! Rules 14 CFR Pert 252 Provision of Designated "No- Smokin3 ' Areas Aboarci Aircraft pperated by Cer:ificated P:ir Car; ier5 SUPPL[MENTARY iNFOR1AATION: 14 CFR 252.4 new pruvides ihat each air carrier shall fiie the maneal conta;ning its rules for smokir,q by p^ssengers ahoard aircraft with the Hurcau of Pricing and Domestic Aviaticn, with any revis:ous Adopted by the Citiil Aeronautics 13oard at and emendments to be'iled within 15 its office in Waeh:ngton. D.C. on May 10, days following adoption by the 19:9. company. The lioard l:as decided that AGENCY: Civi) Aeronautics Board. ACT,oN: Final rule. the utanuals shnuid be filcd with and meintninad by t!,e P,ureau of Ccnsumer Protection. whose activitiee are more $UMM1;ARY:'Fhe 9o8rd ame^d9 its rU:a or. closely involve,d with the sabjr:ct mueer. smoking aboard aircraft so that carriers Since this arnendme:;t affects only L~ust now file their mancais containing agency procedure, ar.d impos°s no company ndes for smokin, aboard additionai burdcns, the Board :-inds that aircraft with the Bureau of Consumer notice and public procedtne are Fre:ce:icn. •,:hoss act`;ities crc c)oae:y -un^'eceassry, nucLtbatlF,e rule.mpy involved vva," , the s:lb;ect rnatter. become effective inmtediately. DATeS: Adopted: May 10,1979. Effective: PART 252-PZUVIS!ON OF °A'o-s.mokir,g"Areas oboord Airtrc~: Cperr, tad by Ccr Gfic•ated Ai: Cor.: ers, as follows: Section 252.4 is amended by replacir.g "Bureau o1 Pricing and Domestic Aviation" with'•Bureau of Consum3r PrcY,ecLon", so that it reads: § 252.4 Manu:l containing coapany rulas for srnol!ng by nassenge~s abezrd aircratt. Each air carrier suhject to this pert shall rr.ai:.tain an empieyce manual conlainsg cornpany r.rl°s for smok~ng by passeng:,rs aboa:d airera,:. Two copies of such manual shr)i be f;ied with the Bureau of Consumer P:etectica, and revisions and amendments shall be fiied within 15 days fo!lo-.ving adoption by --..._.the em^pcn,v. . __ (Sections 204(a), 46:(a), and 407. Federal Aviation Act of 1458, as amended, 72 SfaL 743.71 789; 49 U.S.C 1324, 1's74, and 1377.) By the Civil Aeronautice Bcard. P6y1n.1. Y ylor. Seeme.vy. fRepvIDeon CR-1122: Amdt.:1 .mf lrR oee )Yls:eO nIed s-11-)9. 645 May 10, 1979. 02SIGNATED "t'O-St~;C1CiNG," AREAS FOR FURTHER INFORMATION CONTACT: ABOARD A!RCR :FT OPERATED DY Richard B. Oysor„ Associate General CERTIFICATED AtR CARRIEf1S Counsel, Civil Aeronautics Euard, 1825 Accordingly, the Board amends 14 Connecticut Avenue, N'N.. N'ashington, D.C. 20328, 202-673-5444 r cR Part 252, Provision ofDesigt:ated . Federal Rel?,isicr I Vol. 44, No. 90 / Wrdn-esday, May 10, 1979 / Rules Rnd P.crulnlions 4 2F,G:r7 NB-79-4 / A N ~`~! ~) •`I-?t