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Proposed Department of Transportation Ban on E-Cigarette Usage

Proposed Department of Transportation Ban on E-Cigarette Usage

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Federal Register / Vol. 76, No. 179 / Thursday, September 15, 2011 / Proposed Rules
carriers with aircraft that have a designed seating capacity of 19 or more passenger seats. DATES: Comments should be filed by November 14, 2011. Late-filed comments will be considered to the extent possible. ADDRESSES: You may file comments identified by the docket number DOT– OST–2011–0044 by any of the following methods: • Federal eRulemaking Portal: go to http://www.regulations.gov and follow the onlin

Federal Register / Vol. 76, No. 179 / Thursday, September 15, 2011 / Proposed Rules
carriers with aircraft that have a designed seating capacity of 19 or more passenger seats. DATES: Comments should be filed by November 14, 2011. Late-filed comments will be considered to the extent possible. ADDRESSES: You may file comments identified by the docket number DOT– OST–2011–0044 by any of the following methods: • Federal eRulemaking Portal: go to http://www.regulations.gov and follow the onlin

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Federal Register
/Vol. 76, No. 179/Thursday, September 15, 2011/Proposed Rules
expertise on the negotiating workinggroup for the purpose of developing arule that is legally and economicallyjustified, technically sound, fair to allparties, and in the public interest. Allmeetings are open to all stakeholdersand the public, and participation by allis welcome within boundaries asrequired by the orderly conduct of  business. Considerations are still beingmade for additional membership, butthe current Members of the LV Groupare as follows:
Tim Ballo (Earthjustice).
Scott Beck (Lakeview Metals).
Eric Petersen (AK Steel).
Gary Fernstrom (PG&E).
Andrew DeLaski (ASAP).
Robin Roy (NRDC).
Steve Nadel (ACEEE).
Eduardo Robles (Eaton).
Robert Greeson (Federal Pacific).
Vijay Tendulkar (ONYX Power).
Chad Kennedy (Schneider).
 John Caskey (NEMA).
Millure David (Metglas).
 John Cymbalsky (U.S. Departmentof Energy).
Mark Stoering (Xcel Energy).
Purpose of the Meeting:
To launch theprocess of seeking consensus on aproposed rule for setting standards forthe energy efficiency of low-voltage drytype distribution transformers, asauthorized by the Energy PolicyConservation Act (EPCA) of 1975, asamended, 42 U.S.C. 6313(a)(6)(C) and6317(a).
Tentative Agenda:
The meeting willstart at 9 a.m. and will conclude at5 p.m. on Wednesday, September 28,2011, in room 8E–089 at DOE’s,Forrestal Building, 1000 IndependenceAvenue, SW., Washington, DC 20585.The tentative meeting agenda includesintroductions, agreement on facilitatorand rules of procedure, presentationsfrom DOE consultants on the results of their revised analysis of alternativecandidate standard levels, andidentification of the issues to beaddressed by the negotiations, and anyoutstanding data needs.
Public Participation:
Members of thepublic are welcome to observe the business of the meetings and to makecomments related to the issues beingdiscussed at appropriate points, whencalled on by the moderator. Thefacilitator will make every effort to hearthe views of all interested parties,within limits, required for the orderlyconduct of business. To attend themeeting and/or to make oral statementsregarding any of the items on theagenda, e-mail
no laterthan 5 p.m., Thursday, September 22,2011. Please include ‘‘LV Work Group092811’’ in the subject line of themessage. An early confirmation of attendance will help facilitate access tothe building more quickly. In the e-mail,please provide your name, organization,citizenship and contact information.Space is limited.Anyone attending the meeting will berequired to present government-issuedidentification. Foreign nationals will berequired, per DOE security protocol, tocomplete a questionnaire, no later than,one week prior to the meeting,Thursday, September 22, 2011.Participation in the meeting is not aprerequisite for submission of writtencomments. ERAC invites writtencomments from all interested parties. If you would like to file a writtenstatement with the committee, you maydo so either by submitting a hard orelectronic copy before or after themeeting. Electronic copy of writtenstatements should be e-mailed to
erac@ee.doe.gov. Minutes:
The minutes of the meetingwill be available for public review at
Issued at Washington, DC, on September 8,2011.
LaTanya R. Butler,
Acting Deputy Committee Management Officer.
[FR Doc. 2011–23634 Filed 9–14–11; 8:45 am]
DEPARTMENT OF TRANSPORTATIONOffice of the Secretary14 CFR Part 252
[Docket No. DOT–OST–2011–0044]RIN 2105–AE06
Smoking of Electronic Cigarettes onAircraft
Office of the Secretary (OST),Department of Transportation (DOT).
Notice of proposed rulemaking(NPRM).
The Department of Transportation is proposing to amendits existing airline smoking rule toexplicitly ban the use of electroniccigarettes on all aircraft in scheduledpassenger interstate, intrastate andforeign air transportation. TheDepartment is taking this action becauseof the increased promotion of electroniccigarettes and the potential health andpassenger comfort concerns that theypose in an aircraft. The Department isalso considering whether to extend the ban on smoking (including electroniccigarettes) to charter flights of aircarriers (
U.S. carriers) and foreign aircarriers with aircraft that have adesigned seating capacity of 19 or morepassenger seats.
Comments should be filed byNovember 14, 2011. Late-filedcomments will be considered to theextent possible.
You may file commentsidentified by the docket number DOT–OST–2011–0044 by any of the followingmethods:
Federal eRulemaking Portal:
go to
and followthe online instructions for submittingcomments.
Docket Management Facility,U.S. Department of Transportation, 1200New Jersey Ave., SE., Room W12–140,Washington, DC 20590–0001.
Hand Delivery or Courier:
WestBuilding Ground Floor, Room W12–140,1200 New Jersey Ave., SE between9 a.m. and 5 p.m. E.T., Monday throughFriday, except Federal Holidays.
You must include theagency name and docket number DOT–OST–2010–XXXX or RegulatoryIdentification Number (RIN) for therulemaking at the beginning of yourcomment. All comments will be postedwithout change to
including anypersonal information provided.
Privacy Act:
Anyone is able to searchthe electronic form of all commentsreceived in any of our dockets by thename of the individual submitting thecomment (or signing the comment if submitted on behalf of an association, a business, or labor union,
). You mayreview DOT’s complete Privacy Actstatement in the
Federal Register
published on April 11, 2000 (65 FR19477–78), or you may visit
For access to the docket toread background documents orcomments received, go to
or to the streetaddress listed above. Follow the onlineinstructions for accessing the docket.
Laura E. Jennings, Trial Attorney, Officeof the Assistant General Counsel forAviation Enforcement and Proceedings,U.S. Department of Transportation, 1200New Jersey Ave., SE., Washington, DC20590, 202–366–9342 (phone), 202–366–7152 (fax),
You may also contact Blane A. Workie,Deputy Assistant General Counsel,Office of the Assistant General Counselfor Aviation Enforcement andProceedings, U.S. Department of Transportation, 1200 New Jersey Ave.,SE., Washington, DC 20590, 202–366–
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Federal Register
/Vol. 76, No. 179/Thursday, September 15, 2011/Proposed Rules
9342 (phone), 202–366–7152 (fax),
Throughout this proposed rule, weuse the terms ‘‘air carrier’’ and ‘‘foreignair carrier’’ as defined in 49 U.S.C.40102, in which ‘‘air carrier’’ is a citizenof the United States undertaking toprovide air transportation, and a‘‘foreign air carrier’’ is a person, not acitizen of the United States, undertakingto provide foreign air transportation.The current statutory ban on smokingin scheduled interstate, intrastate, andforeign air transportation derives fromthe Wendell H. Ford AviationInvestment and Reform Act for the 21stCentury or ‘‘AIR–21’’ (Pub. L. 106–181),which was signed into law on April 5,2000. It included section 708,‘‘Prohibitions Against Smoking onScheduled Flights,’’ and was codified as49 U.S.C. 41706. Section 41706 states:
Smoking prohibition in intrastate and interstate air transportation.
—An individualmay not smoke in an aircraft in scheduledpassenger interstate air transportation orscheduled passenger intrastate airtransportation.(b)
Smoking prohibition in foreign air transportation.
—The Secretary of Transportation shall require all air carriersand foreign air carriers to prohibit smokingin any aircraft in scheduled passenger foreignair transportation.(c)
Limitation on applicability.
In general.
—If a foreign governmentobjects to the application of subsection (b) onthe basis that subsection (b) provides for anextraterritorial application of the laws of theUnited States, the Secretary shall waive theapplication of subsection (b) to a foreign aircarrier licensed by that foreign government atsuch time as an alternative prohibitionnegotiated under paragraph (2) becomeseffective and is enforced by the Secretary.(2)
Alternative prohibition.
—If, pursuant toparagraph (1), a foreign government objects tothe prohibition under subsection (b), theSecretary shall enter into bilateralnegotiations with the objecting foreigngovernment to provide for an alternativesmoking prohibition.(d)
The Secretary shallprescribe such regulations as are necessary tocarry out this section.
On June 9, 2000, the Departmentamended 14 CFR part 252, titledSmoking Aboard Aircraft, to implementsection 41706.
65 FR 36772. As aresult, part 252 today bans the smokingof tobacco products on all scheduledpassenger flights of air carriers, and onall scheduled passenger flight segmentsof foreign air carriers between points inthe U.S. and between the U.S. andforeign points. Foreign air carriers mayrequest and obtain a waiver from thisrequirement provided that an alternativesmoking prohibition resulting from bilateral negotiations is in effect. Part252 also addresses smoking on charterflights. It permits carriers operatingsingle entity charters to allow smokingthroughout the aircraft but requires ano-smoking section for each class of service on other charter flights wheresmoking is not banned.Electronic cigarettes were introducedinto the market in recent years. Becauseof the increasing promotion andavailability of electronic cigarettes theissue has been raised as to whether thestatutory ban on smoking in section41706 and existing regulatoryprohibition on the smoking of tobaccoproducts in part 252 apply to electroniccigarettes. The Department views thestatutory and regulatory ban on smokingto be sufficiently broad to include theuse of electronic cigarettes. While weview the statutory ban on smoking insection 41706 to cover electroniccigarettes as the statutory authority forthis NPRM, we are, nonetheless, notsolely relying on section 41706, whichprohibits smoking aboard aircraft, butalso another statute, as was true whenwe amended Part 252 to implementsection 41706. This statute, 49 U.S.C.41702, mandates that an air carrier shallprovide safe and adequate interstate airtransportation. We invite all interestedpersons to comment.
Notice of Proposed Rulemaking
This NPRM proposes to amend part252 to define smoking as the smoking of tobacco products or use of electroniccigarettes that are designed to delivernicotine or other substances to a user inthe form of a vapor. The Departmentdoes not intend for the definition toinclude the use of a device such as anebulizer that delivers a medically beneficial substance to a user in theform of a vapor. Typically electroniccigarettes, also called ‘‘e-cigarettes,’’ aredesigned to look like traditionalcigarettes. E-cigarettes are sometimesalso made to look like cigars and pipes,and even everyday products such aspens.Studies show thousands of people useelectronic cigarettes daily, and theproducts generate an estimated $100million annually in sales. Some aremarketed as being permissible in placeswhere cigarette use is prohibited.Through Congressional correspondence,anecdotal evidence, and online sources,including blogs, the Department has been made aware that some airlinepassengers have used or have attemptedto use electronic cigarettes on boardcommercial flights. This NPRMproposes an explicit ban on the use of electronic cigarettes that would apply toall forms of the products, including butnot limited to: Electronic cigars, pipes,and devices designed to look likeeveryday products such as pens andUSB memory sticks.The Department views its currentregulatory ban on smoking of tobaccoproducts on passenger flights to besufficiently broad to include the use of electronic cigarettes. The recentdecision by the U.S. Court of Appealsfor the DC Circuit,
Sottera, Inc.
Food & Drug Administration,
627 F.3d 891(D.C. Cir. 2010), supports theDepartment’s view that electroniccigarettes are often tobacco products. Inthat decision, the Court held that e-cigarettes and other products made orderived from tobacco can be regulatedas ‘‘tobacco products’’ under the FamilySmoking Prevention and TobaccoControl Act of 2009 (Tobacco ControlAct). The Tobacco Control Act broadlydefines tobacco products as extending to‘‘any product made or derived fromtobacco.’’ However, if the products aremarketed for therapeutic purposes, thecourt determined that they will then beregulated as drugs and/or devices underthe Food, Drug, and Cosmetic Act.The Department is proposing in thisNPRM to explicitly ban the use of electronic cigarettes on aircraft as therehas been some confusion over whetherthe Department’s ban on smoking of tobacco products includes a ban on useof electronic cigarettes. We see noreason to treat electronic cigarettes anydifferently than traditional cigarettes.The purpose behind the statutory banon smoking aboard aircraft and theregulatory ban in part 252 on smokingtobacco products was to improve airquality within the aircraft, reduce therisk of adverse health effects onpassengers and crewmembers, andenhance aviation safety and passengercomfort. Electronic cigarettes aregenerally designed to look like and to beused in the same manner asconventional cigarettes. Although avapor, rather than smoke, is produced,the products require an inhalation andexhalation similar to smoking cigarettes.We are unaware of sufficient studies onthe health impact on third parties fromthese vapors to conclude that theywould not negatively impact the airquality within the aircraft and/orincrease the risk of adverse healtheffects on passengers and crewmembers.Each e-cigarette consists of threeparts: The replaceable cartridge, whichmost often contains liquid nicotine butmay contain other chemicals, theatomizer or heating element, and the battery and electronics. See
Sottera Inc.
Food & Drug Administration,
627F.3d 891, 893 (D.C. Cir 2010). The
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Federal Register
/Vol. 76, No. 179/Thursday, September 15, 2011/Proposed Rules
atomizer or heating element vaporizesthe liquid inside the cartridge, and the battery and electronics power theatomizer and monitor air flow.
Whenthe user inhales, the electronics detectthe air flow and activate the atomizer,the liquid nicotine is vaporized, and theuser inhales the vapor.
Some electronic cigarette companieshave claimed that their products are safe because they reportedly do not containcarcinogens or tar or produce second-hand smoke, as there is no combustionin their use. According to thesearguments, while the vapor looks andfeels, and may taste, like smokeproduced by burning traditional tobaccoproducts, its chemistry differs from thesmoke produced from burningconventional tobacco products. Theprincipal liquid ingredient is propyleneglycol, which is widely used as amoistening food additive and an aid tovaporization. However, some research,conducted on non-asthmatic people, hasshown that exposure to propyleneglycol mist from artificial smokegenerators may cause acute ocular andupper airway irritation, and in a fewcases people reacted with cough andslight airway obstruction. See GWieslander, D Norba¨ck, and T Lindgren,‘‘Experimental exposure to propyleneglycol mist in aviation emergencytraining: Acute ocular and respiratoryeffects,’’
Occupational and Environmental Medicine
2001; 58:649–655. Further, in a recent
New England  Journal of Medicine
article, ‘‘E-Cigaretteor Drug-Delivery Device? RegulatingNovel Nicotine Products,’’ it was notedthat the safety of inhaling propyleneglycol has not been studied in humans.365;3: 193–95.Researchers at the University of California, Riverside, published a studyon December 7, 2010, in which theyevaluated five electronic cigarette brands. See Anna Trtchounian & PrueTalbot, ‘‘Electronic nicotine deliverysystems: Is there a need for regulation?’’
Tobacco Control,
December 7, 2010. Thestudy found design flaws, lack of adequate labeling, and concerns overquality control and health issues withrespect to the products. One primaryobservation was that electronic cigarettecartridges leak, which could exposenicotine to children, adults, and theenvironment. The study concluded thatelectronic cigarettes are potentiallyharmful and should be removed fromthe market until their safety can beadequately evaluated. Moreover, the
New England Journal of Medicine
articlediscussed above echoed some of theseconcerns, noting that testing of cartridges revealed poor quality control,marked variability in nicotine content,as well as significant deviations fromthe content claimed on the label. 365;3:194–95.Numerous public health experts alsohave voiced concerns over electroniccigarettes. Reacting to the University of California, Riverside, study, a researchadministrator from the University of California Tobacco-Related DiseaseResearch Program stated, ‘‘Moreresearch on e-cigarettes is cruciallyneeded to protect the health of e-cigarette users and even those who donot use e-cigarettes. Contrary to theclaims of the manufacturers andmarketers of e-cigarettes being ‘safe,’ infact nothing is known about the toxicityof the vapors generated by these e-cigarettes.’’ See ScienceDaily.com,‘‘Electronic Cigarettes are Unsafe andPose Health Risks, Study Finds,
(last visited Mar.8, 2011). The American LegacyFoundation issued a statement in May2009 stating, ‘‘We do not yet know allof the ingredients in these products and,accordingly, the impact of thoseingredients on the health of people who‘smoke’ e-cigarettes or the peoplearound them.’’ A December 2010editorial in the
American Journal of Public Health
called for removal of e-cigarettes from the market, pendingrigorous safety testing.We note that Amtrak has banned theuse of electronic smoking devices ontrains and in any area where smoking isprohibited, the Air Force SurgeonGeneral issued a memorandumhighlighting the safety concernsregarding electronic cigarettes andplaced them in the same category astobacco products, and the U.S. Navy has banned them below decks insubmarines. Moreover, several stateshave taken steps to ban either the saleor use of electronic cigarettes, in theabsence of federal regulation.The purpose behind the statutory banon smoking aboard aircraft and theregulatory ban in Part 252 on smokingtobacco products was to improve airquality within the aircraft, reduce therisk of adverse health effects onpassengers and crewmembers, andenhance aviation safety and passengercomfort. The object of the proposed ruleis to prevent introduction of a newpotential source of contamination to thecabin environment that couldpotentially endanger the welfare of nonsmokers who are now protectedfrom all such exposure. Consistent withthis underlying purpose, we areproposing this NPRM. There is a lack of scientific data and knowledge withrespect to the ingredients in electroniccigarettes. The quantity and toxicity of exhaled vapors have not been studied.Releasing a vapor that may containharmful substances or respiratoryirritants in a confined space, especiallyto those who are at a higher risk, iscontrary to the purpose and intent of thestatutory and regulatory ban on smokingaboard aircraft.In light of the unknown health riskswith the use of electronic cigarettes byindividuals who ‘‘smoke’’ them or thepeople around them and the growingavailability and use of electroniccigarettes, the Department is proposingthis amendment to Part 252 to explicitly ban the use of electronic cigarettesaboard aircraft. The Department seekscomments on the following: (1) Whetherthe definition of ‘‘smoking’’ in theproposed rule text is too broad in thatit may unintentionally includeotherwise permissible medical devicesthat produce a vapor; (2) concerns over,and benefits of, the proposal to clarifythe prohibition in Part 252 to explicitlycover electronic cigarettes; and (3) anyother information or data that arerelevant to the Department’s decision.The Department is also consideringwhether to extend the ban on smoking(including electronic cigarettes) tocharter flights of air carriers and foreignair carriers between points in the U.S.and between the U.S. and any foreignpoint with aircraft that have a designedseating capacity of 19 or more passengerseats. Under the current part 252, aircarriers operating single-entity chartersmay permit smoking throughout theaircraft (
they are not required tohave a no-smoking section) if such arequest is made by the charterer,provided that each passenger on suchflights is given notice of the smokingprocedures for the flight at the time heor she first makes arrangements to takethe flight.
14 CFR 252.19. Part 252permits air carriers to allow smoking onother types of charter flights as long asthe following is provided: (1) A no-smoking section for each class of service, (2) a sufficient number of seatsin each no-smoking section toaccommodate all persons in that class of service who desire to be seated in thatsection, (3) expansion of no-smokingsections to meet passenger demand, and(4) special provisions to ensure that if ano-smoking section is placed betweensmoking sections, the nonsmokingpassengers are not unreasonably burdened.
14 CFR 252.7. TheDepartment is considering banningsmoking on charter flights with 19 ormore passenger seats in part out of concern about the health effects of second hand smoke on flight attendantsaboard such flights. For aircraft withfewer than 19 passenger seats, no flight
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