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Regulation ER-1091 UNITED STATES OF AMERICA CIVIL AERONAUTICS BOARD WASHINGTON, D.C. r7 Economic Regulations Docket 29044 Amendment No. 1 to Part 252 PART 252 - PROVISION OF DESIGNATED "NO-SMOKING" AREAS ABOARD AIRCRAFT OPERATED BY CERTIFICATED AIR CARRIERS AMENDMENT OF PART AGENCY: Civil Aeronautics Board /ACTION: Final Rule SUMMARY: The Board is requiring certificated air carriers to nrovide for thetpecial segregation cigar and pipe smokers. It is also requiring carriers to be abl to expand no-smoking areas to accommodate all persons who wish to sit there, and to*prohibit all smoking when ventilation systems are not fully functioning. DATES: Effective: February 2~. 1979 Adopte : Tanuarv 11. 1979 FOR FURTHER INFORMATION CONTACT: Richard B. Dyson, Associate General Counsel, 1825 Connecticut Avenue, N.W., Washington, D.C. 20428, 202- 673-5444. SUPPLEMENTARY INFORMATION: By EDR-306, 41 FR 44424, October 8, 1976, the Board issued a Notice of Proposed Rulemaking that would amend Part 252 of the Economic Regulations (14 CFR Part 252) to prohibit the smoking of cigars and pipes aboard aircraft operated by certificated air carriers, and to improve the segregation of cigarette smokers and non-smokers on these aircraft. In addition, the Board expressed interest in receiving comments on a number of other possible alternatives for protecting non-smokers from exposure to tobacco smoke. 4

c - 2 - Formal comments 1/ have been filed by air carriers, organizations representing the tobacco industry, anti-smoking groups, interested individuals and organizations, and by the Department of Health, Education and Welfare's Office of Consumer Affairs (HEW). 2/ In addition, over 31,000 letters and cards have been received from individual consumers. The comments contain a wide range of contentions and suggestions, which have been of help to the Board in reaching its decision. On consideration of the comments and other related material in the record and of the Board's open meetings on August 11, 1977, November 23, 1977, September 7, 1978, and January 4, 1979 we have decided to adopt some parts of the rule proposed by EDR-306, but to withdraw the detailed proposals relating to carrier administration. We are adopting Vle following provisions: special segregation of cigar and pipe smokers, and such other procedures as may be necessary to avoid exposing persons seated in no-smoking areas to smoke from cigars and pipes; a no-smoking area for each class of service and for charter service; a no-smoking area must consist of at least two rows of seats; a sufficient number of seats in the no-smoking areas of the aircraft to be made available to accommodate all persons who wish to be seated in such areas, and specific 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, that the non-smoking passengers are not unreasonably burdener;and that carriers must take measures to prevent smoking in no-smokinE areas and to enforce their rules with respect to segregation of passengers. 1/ Formal comments are multi-copy comments submitted in conformity with Part 302 of the Board's Rule of Practice. 2/ A list of those filing comments is attached hereto as an appendix. 1 •r ~ 61610 "C' N yP ~21 A

0 I C C i 3 Our decision here reflects two basic nrinciples that governed enactment of the present smoking rule: (1) that U.S. air carriers have a duty to eliminate, to the extent practicable, their passengers' involuntarv breathing of other people's smoke, and (2) that Board involvement in the administrative and enforcement aspects of smoking rules should be kept to the minimum. At the time we adopted Part 252, we found that the carrier obligations to provide "adequate service" and to establish and observe "reasonable practices"3/ required them to provide segregated seating of smokers and non-smokers (ER-800, effective July 10, 1973, 38 FR 12207, May 10, 1973). On the basis of the present record, we now find that there should be improved segregation of cigar and pipe smokers from non-smokers and other provisions that ensure that there will be no smoking when ventilation systems are not fully functioning. We also are making it clear that seats in the no-smoking section must be available to all who wish to be seated there. 3/ Section 404(a)(1) of the Federal Aviation Act of 1958 provides, "It shall be the duty of every air carrier to provide and furnish interstate and overseas air transportation, . . . to provide safe and adequate service, . . . in connection with such transportation; to establish, observe, and enforce ...,just and reasonable . . . practices relating to such air transportation . . . . (2) It shall be the duty of every air carrier . . . to establish, observe, and enforce . . . just and reasonable ... practices relating to foreign air transportation . . . ."

e 4 In reaching these conclusions, we have considered the contentions of carriers, tobacco interests, and some individuals, that any expansion or strengthening of Part 252 is unnecessary. Carriers urged, in support of this argument, that decreases in the number of complaints to them show that the present system is working well. The Tobacco Institute argued that responses to the 1971 Federal Administration (FAA)-IiEIJ flight survey which we cited in ER-800 show that a majority of aircraft passengers either smoke or do not object to smoking and that the present rule protects all but the most sensitive or vocal non-smokers. Some comments opposed any additional regulation as an interference with management at a time when the climate of opinion favors less regulation. Assertions of a reduction in complaints to carriers are, for the most part, vague and unsupported. The Board has consistently received a substantial number of informal complaints concerning smoking on U.S. scheduled carriers. 4/ Furthermore, the record in this rulemaking alone contains thousands of complaints from persons who find the present system unsatisfactory, and the Bureau of Enforcement has prosecuted 48 smoking violations on the basis of third party complaints since Part 252 was adopted. The FAA-HEW survey referred to by the Tobacco Institute showed that in 1971, 39% of surveyed MAC (Military Airlift Command) passengers and 547 of surveyed domestic passengers asked for corrective action with respect to smoking. 5/ The Tobacco Institute offered no current statistics in support of its statement of majority preferences 4/ These figures for the years 1973-77 were, respectively; 229, 291, 125, 225 and 369. In the first nine months of 1978, the Board received 477 informal complaints. 5/ 38 FR 12208, May 10, 1973. l

0 , C 5 and such general statistics as are available do not tend to substantiate it. 6/ Neither the 132,000 signatures on the Tobacco Institute's petition 7/ nor the more than 25,400 individual communications favoring 6/ 1975, Adult Use of Tobacco, HEW, June 1976, is the most extensive recent study of smoking habits and attitudes. It shows that in 1975, 39% of adult males and 29% of adult females were smokers. There was a slight decrease in the proportion of adult (over 21) cigarette smokers between 1970 and 1975, and a marked rise in the percentage of persons who expressed a desire for additional smoking restrictions. In 1975, 70% of 12,010 persons interviewed (including more than half of the smokers) agreed that the smoking of cigarettes should be allowed in fewer places than it then was. The comparable figure for 1970 was 57%. 7/ This petition, prepared by the Tobacco Institute and presented to travelers in 41 airports by temporary workers it employed, stated: The undersigned believe that each smoking and non-smoking airline passenger deserves equal comfort, service, freedom from engine noise and access to exits, and that this can best be achieved by separately seating smokers and non-smokers across the aisles from each other. The Institute cites signatures to its petition as showing that signers regard the present rule as discriminating against smokers and oppose any further regulation. The question of discrimination in the present rule was considered at the time of its enactment (ER-800, p. 16, 38 FR 12209) and requires no further discussion here. 1

i - 6 - either a ban on all smoking or a ban on cigars and pipes 8/ conclusivelv demonstrate the preference of the majority of airline passengers. Some of the comments raise questions as to the application of smoking rules in foreign air transportation and their effect on the competitive position of U.S. air carriers. The Air Transport Association (ATA) aroues that because EDR-306 cited section 404(a) of the Act as authoricv, the proposed rules would not applv in foreign air transportation. This contention is without merit. Tdhile paragraph 1 of section 404(a) relates to interstate and overseas air transportation, paragraph 2 of section 404(a) specifically relates to foreign air transportation. Part 252 applies, and the proposed amendments would apply, to all direct air carriers certificated under section 401 of the Act, and to interstate, overseas and foreign air transportation performed by those carriers. Pan American contends that restrictions on cigar and pipe smoking would injure its competitive position in that passengers desiring to use these forms of tobacco would turn to foreign air carriers. We do not consider, however, that the available experience supports this contention. Carriers that already ban cigars and pipes do not appear to have been adversely affected. Pacific Southwest noted public acceptance of its ban. Trans International, having had a ban in effect since before 8/ Tabulation of single copy comments as of April 13, 1977, indicated that some 1450 individuals supported a ban on cigars and/or pipes, about 23,950 supported a ban on all smoking, and about 6,800 supported the status quo, i.e., segregation of smokers, with or without improvements.

t C C P 7 the enactment of Part 252, has had ample opportunity to change its rule, if that appeared economically desirable. Northwest has banned cigars and pipes for more than 4 years, with evidently no unfavorable effects on its competitive position. 9/ For similar reasons, we do not expect a decrease in the use of air transportation on domestic short haul flights, as suggested in an individual comment. According to Pan American's June 1977 Bulletin on file with the Board, in fact, Pan American itself has already "normally" limited smoking to cigarettes, permitting cigar and pipe smoking only if other passengers are not annoyed. 10/ The Connecticut Health Commissioner suggested that Part 252 be extended to apply to all airlines not now covered, including foreign air carriers. Since American citizens traveling in foreign air transporta- tion are, however, generally free to use U.S. air carriers, we find no present need for such an extension of Board smoking rules. CIGARS AND PIPES On review of all the comments and other material before us, we find that there is a substantial distinction between cigar and pipe smoke on the one hand and cigarette smoke on the other. Submitted and cited literature indicated.that in test situations, smoking of cigars produces 9/ While opposing a Board ban, Northwest did so only on the grounds that it would constitute government interference with carrier management. 10/ While this agency's concern is with the field of air transportation, we have also considered arguments addressed to the effect of Board action on the tobacco industry and its role in the economy. Any possible effect of our action here appears to be minimal.

- 8 - more pollutants than the smoking of cigarettes. 11/ While fewer tests appear to have been run on pipe smoking, several authorities place pipes and cigars in the same category with respect to relative production of pollution. 12/ A few comments, both formal and informal, would have us distinguish between cigars and pipes, on the grounds that pipes are less offensive to non-smokers. Allegheny's rule makes a distinction, banning cigars and permitting pipes "only if the cabin is pressurized, well- ventilated and the smoke does not offend anyone." However, cigar and pipe smoke have important similarities and we find that they should be treated together for our purposes here. 11/ Carbon monoxide generated by one cigar is said to be double that of three cigarettes smoked simultaneously. Epstein, "The Effects of Tobacco Smoke Pollution on the Eyes of the Non-Smoker", Paper Presented to Third World Conference on Smoking and Health, June 4, 1975, New York, p.2 See also Brunnemann and Hoffman, "Chemical Studies on Tobacco Smoke", Journal of Chromotographic Science 12(2) February 1974 pp. 70-75 and Harke, The Problem of Passive Smoking, Munchener Medizinishche Wochenschrift 112(51) 2328-2334, December 18, 1970 cited and tabulated in Chapter 4, Health Consequences of Smoking, 1975, T)epartment of Health, Education and Welfare. 12/ Epstein, supra, note 11; Steinfeld, "Health Consequences of Smoking", Talk presented June 2, 1975, Third kiorld Conference on Smoking and Health, New York; Doyle, "Pipe and Cigar Smoking--is it Safe?", American Lung Association Bulletin, March 1974. And see "Report of an Expert Group", Practitioner 210 (1259): 645, 651, May 1973. i /

P I 9 Pollution due to smoking is derived from both mainstream and side- stream smoke. 13/ Cigar and pipe smokers, since they generally inhale less than cigarette smokers, produce a composite of sidestream smoke and relatively unfiltered mainstream smoke. 14/ In addition, cigars and pipes are usually kept burning for longer periods of time than cigarettes, which produces a relatively large quantity of sidestream smoke--frequently stated to contain more noxious elements than mainstream smoke. 15/ Comments in this rulemaking, as well as cited published articles, note the relative alkalinity of cigar and pipe smoke--a factor suggested as a reason for lack of inhalation by the smoker himself. They also frequently describe this type of smoke as thicker, more voluminous, more difficult to dissipate, and more offensive in its odor. The record shows that a substantial number of persons on aircraft experience more distress from cigar and pipe smoke than from cigarette smoke. A majority of flight attendants responding to an ASH survey stated that they were more affected by cigars and pipes than by cigarettes. 16/ Many letters to the Board refer to particular difficulties, such as nausea, experienced as a result of exposure to cigar and pipe smoke. A number of organizations and individuals filing comments on EDR-306 13/ Mainstream smoke emerges from the tobacco product after being drawn through the tobacco during puffing, whereas sidestream smoke rises from the burning cone of tobacco. The two kinds of smoke contribute different concentrations of many substances to the atmosphere. The Surgeon General's Report on The Health Consequences of Smoking, (HEW), 1975, Chapter 4 at p. 92 14/ Surgeon General's 1972 Report, 72 Cong. Rec. Vol. 118 (May 4, 1972); Epstein, su ra note 11; Steinfeld, supra note 12. 15/ See Epstein and Steinfeld, su ra notes 11 and 12, respectively. 16/ The Cigar Association contends that this survey is irrelevant because the question here is one of effect on passengers. While flight attendants are generally exposed to smoke for longer periods, we think it clear that the effects of different types of tobacco on attendants is relevant to their effects on other persons. 1

. .. ~ C C favored a ban on this type of tobacco. 17/ The Secretarv of Health, Education and Welfare, in a letter to the Board dated Januarv 11, 1978, noted the "particularly obnoxious" effect of cigar and pipe smoke, and fully supported the proposed amendments of Part 252. (EDR-306, 41 FR 44424, October 8, 1976) Existing carrier bans and restrictions in themselves indicate that carriers have found cigar and pipe smoke particularly annoying to passengers. 18/ Trans International Airlines, one carrier having such a ban, pointed out that it was adopted because of passenger complaints prior to enactment of Part 252. Furthermore, in opposing the original -; enactment of Part 252, carriers criticized the fact that a cited questionnaire failed to distinguish cigar, cigarette, and pipe smoke. As stated in ER-800, the carriers implied that if the question of restricting smoking had been broken down by type of smoke, most passengers would be in favor of restricting cigars and pipes. 19/ 17/ In addition to petitioners ASH and Paul R. Kaiser, ACAP (Aviation Consumer Action Project), GASP, San Francisco (Group Against Smoking Pollution), the Association of Flight Attendants, the American Lung Association, the Commissioner of Health for Connecticut, the Chicago Heart Association, Pacific Southwest Airlines, the Office of Consumer Affairs (HEW), and many individuals filing both formal and informal comments favored a ban on cigars and pipes. 18/ According to manuals on file with the Board, five carriers (Northwest, Pacific Southwest, Trans International, Wien Consolidated, and World Airways) ban cigars and pipes; Allegheny bans cigars and permits pipes "only if the cabin is pressurized, well-ventilated and the smoke does not offend anyone"; North Central bans cigars and pipes on Convairs, permitting them on DC-9s as long as they are not objectionable to nearby passengers. Pan American, Alaska, Piedmont and United all have special provisions with respect to cigars and pipes. The ATA states that most carriers permit cigar and pipe smoking only until a neighboring passenger objects. 19/ 38 FR 12208.