TRANSPORTATION DEPT MAY LIMIT SMOKING IN AIRPORTS [11/01]

The U.S. Department of Transportation (DOT) is proposing to regulate smoking at airports, and is asking for comments from persons with respiratory conditions such as asthma, emphysema, sinusitis, bronchitis, and other conditions which make them especially susceptible to tobacco smoke.

The agency suggests that the rules may be required by the Air Carrier Access Act of 1986 (ACAA). This statute basically imposes on air carriers the same obligations to accommodate persons with disabilities as the more-widely-known Americans With Disabilities Act (ADA).

Courts and agencies have repeatedly held that persons with significant respiratory problems are entitled to protection under the ADA, and that they may seek, if necessary, a total ban on smoking in facilities.

However, the DOT is not necessarily seeking to ban all smoking in airports. Rather, it is considering requiring sufficient bans or other measures necessary to assure passengers with respiratory problems that they can use airports without exposure to tobacco smoke.

Action on Smoking and Health (ASH), which used a series of legal actions to limit smoking on airplanes, and to set the stage for the smoking ban on domestic flights, strongly endorses the DOT proposal, and urges all persons with respiratory conditions to write to the DOT in support of the proposed rule.

"Passengers are entitled to at least as much protection from tobacco smoke on the ground as they are in the air, especially since it can be provided more easily and with less inconvenience to smoking passengers," says law professor John Banzhaf, Executive Director of ASH.

Comments, which can be in form of simple letters, must be received by the DOT by January 30, 1997. They should be sent to the Docket Clerk, Docket No. OST-96-1880, Department of Transportation, 400 7th Street, S.W., Room PL-401, Washington, D.C., 20590.

For the convenience of the press and members of the public, ASH is placing the text of the DOT proposal on its Web Site:

ASH also urges all people who might be affected to write to the DOT at the address above, setting forth in detail the problems you, your family, or others have experienced with smoking in airports, and how inclusive a rule limiting smoking in airports should be.

The relevant text of the proposal follows:

61 FR 56481-01
(Cite as: 61 FR 56481)
PROPOSED RULES

DEPARTMENT OF TRANSPORTATION

14 CFR Part 382

[Docket OST-96-1880; Notice 96-25]

RIN 2105-AC28

Nondiscrimination on the Basis of Handicap in Air Travel

Friday, November 1, 1996

*56481 AGENCY: Department of Transportation, Office of
the Secretary.

ACTION: Notice of Proposed Rulemaking (NPRM).

SUMMARY: The Department is proposing to amend its rules
implementing the Air Carrier Access Act of 1986
concerning seating accommodations for individuals with
disabilities and the stowage of collapsible electric
wheelchairs.  These proposals are the result of petitions
for rulemaking on which the Department previously
received comment.  The Department is also proposing to
clarify the meaning of the general nondiscrimination
provision in the Air Carrier Access Act rule.  The
Department is also seeking comment on petitions
requesting a smoke-free path through airports for
passengers with severe respiratory disabilities.

DATES: Comments are requested within January 30, 1997.
Late-filed comments will be considered to the extent
practicable.

ADDRESSES: Comments should be sent, preferably in
triplicate, to Docket Clerk, Docket No. OST-96-1880,
Department of Transportation, 400 7th Street, S.W., Room
PL-401, Washington, D.C., 20590.  We request that, to
facilitate scanning comments into the Department's
electronic docket system, commenters put comments on 8
1/2 by 11 inch white paper using dark ink, without tabs
and unbound.  Comments will be available for inspection
at this address from 9:00 a.m. to 5:00 p.m., Monday
through Friday.  Commenters who wish the receipt of their
comments to be acknowledged should include a stamped,
self-addressed postcard with their comments.  The Docket
Clerk will date-stamp the postcard and mail it back to
the commenter.

FOR FURTHER INFORMATION CONTACT:

Robert C. Ashby, Deputy Assistant General Counsel for
Regulation and Enforcement, Department of Transportation,
400 7th Street, S.W., Room 10424, Washington, D.C.,
20590.  (202) 366-9306 (voice); (202) 755-7687 (TDD); or
Nancy Ebersole, Office of the Assistant Secretary for
Transportation Policy, same street address, Room 9217,
(202) 366-4864.

SUPPLEMENTARY INFORMATION:

Background

In its September 1993 notice of proposed rulemaking on
the Air Carrier Access ct (ACAA) rules (58 FR 47681;
September 9, 1993), the Department asked for comment on
three petitions for rulemaking. These concerned use of
oxygen by airline passengers, seating accommodations for
passengers with disabilities, and the stowage of
collapsible electric wheelchairs.  The Department is
considering addressing the first of these issues through
a negotiated rulemaking.  The Department has decided to
grant the other two petitions, by issuing this NPRM
proposing amendments to the ACAA rule.  The public will
have the opportunity to comment on these proposals before
the Department takes any final action on them.  In
addition, having become aware of misunderstanding on the
part of some parties concerning the scope and nature of
the general nondiscrimination obligation under the ACAA,
the Department is proposing a clarification of Part 382's
statement of that obligation.

GENERAL NONDISCRIMINATION OBLIGATION

The history of the ACAA clearly shows that Congress
enacted the statute to fill a gap in nondiscrimination
coverage left by a Supreme Court decision that said that
section 504 of the Rehabilitation Act did not apply to
air carriers, since they do not (with the exception of
participants in the Essential Air Service program)
receive Federal financial assistance.  The intent of the
statute was to achieve the same protection from
discrimination for airline passengers that section 504
provides persons affected by Federally- assisted
programs.  For a summary of the history of the Act, see
the preamble to the Department's 1990 final ACAA rule (55
FR 8009; March 6, 1990).

When Congress enacted the Americans with Disabilities Act
(ADA), it excluded transportation by aircraft from the
definition of "specified public transportation." Congress
did so specifically because air transportation was
covered by the ACAA. (See H. Rept. 101-485, Pt. 1; May
14, 1990; p. 36.) There is no evidence that Congress
intended this exclusion, which simply avoids duplication
in coverage, to suggest that a weaker standard of
nondiscrimination applies to air carriers than to
transportation providers covered by the ADA.

Under section 504 and the ADA, providers of
transportation and other facilities and services to the
public have the obligation to take steps to accommodate
customers who have disabilities, though these obligations
have limits.  For example, places of public accommodation
under Title III of the ADA are required to make
reasonable modifications in policies, practices, or
procedures, when the modifications are necessary to
afford goods, services, facilities, privileges, or
accommodations to individuals with disabilities, unless
the public accommodation can demonstrate that making the
modifications would fundamentally alter the nature of the
goods, services, facilities, privileges, or
accommodations.  (28 CFR s36.302.(a))

Under the ADA, public accommodations must remove barriers
where doing so is "readily achievable i.e., easily
accomplishable and able to be carried out without much
difficulty or expense" (28 CFR s36.304(a)).  One option
open to a public accommodation is making its services
available through readily achievable alternative means
where barrier removal itself is not *56482 readily
achievable (28 CFR s36.305(a)).  These provisions are
intended to be compatible with the section 504 standards,
which requires recipients of Federal funds to make
accommodations to the needs of individuals with
disabilities, as long as doing so does not create undue
financial or administrative burdens.

The Department has become aware that there may be some
misunderstanding concerning the applicability of these
basic nondiscrimination principles to air carriers.  To
avoid such misunderstanding, the Department is proposing
to add language to the nondiscrimination section of Part
382 reciting explicitly the existing legal requirement
that carriers have the duty of accommodating disabilities
of passengers, consistent with these principles, even
where a specific accommodation is not mandated elsewhere
in the regulation.

PETITIONS CONCERNING AN ACCESSIBLE PATH THROUGH AIRPORTS
FOR PERSONS WITH SEVERE RESPIRATORY DISABILITIES

The Department is seeking comment on petitions from
individuals with respiratory disabilities for a
requirement for an accessible path through airports. 
Petitions on this subject have been received from Dr.
Dwain Eckberg, a physician and medical school faculty
member from Richmond, Virginia, and Dr. Judith Plotkin,
a Maryland resident.  Both individuals suggested that the
Department add regulatory provisions to protect such
individuals from exposure to tobacco smoke.

The petitions make the point that some individuals have
respiratory conditions that can create significant health
problems for them if they are exposed to tobacco smoke. 
If such an individual must, in order to get from the
entrance of an airport to an aircraft, pass through areas
in which he or she is exposed to smoke, he or she may
suffer these health problems, require oxygen that is not
immediately available, or require emergency medical
treatment.  Exposure to smoke, then, acts as a
significant barrier for such individuals to the use of
the air travel system.

If granted, these petitions would lead to a proposal that
carriers and airports carrier ensure that an individual
with a severe respiratory disability that is triggered by
exposure to tobacco smoke have available a path of access
from the terminal entrance to the aircraft free from
exposure to tobacco smoke.  As with other airport
terminal accessibility issues, amendments to both the
ACAA and section 504 rules would be needed as part of
such a proposal.  The air carrier and airport would be
expected to work together to meet an obligation to
provide such passengers with a means of getting to an
aircraft that does not expose them to significant adverse
health effects.

We anticipate that any proposal resulting from this
petition would not specify or limit the means to be used. 
A smoke-free path through the airport, transportation
from the gate to the tarmac that does not go through a
terminal in which smoke is present, an enclosed cart that
took the passenger through the airport without exposure
to smoke that was present, etc.  might all be
possibilities.

The Department would not intend, if it granted these
petitions, to propose to ban all smoking in terminals. 
Regulating smoking in public places is traditionally a
state or local matter, and the Department would not
attempt to pre-empt state or local decisionmaking.
The Department seeks comment on whether we should propose
a provision of the kind requested by the petitioners.  We
seek comments on the extent to which such a provision is
needed and on cost and feasibility considerations that
should be taken into account.

The Department is also aware of people with environmental
sensitivities to a wide variety of common substances
(e.g., cleaning agents, perfumes).  In some cases, these
sensitivities may be severe.  In addition to seeking
comment on whether to proceed with a proposal based on
the petitions, the Department seeks comment on whether it
would be desirable and feasible to have similar
provisions for people with severe environmental
sensitivities.

REGULATORY ANALYSES AND NOTICES

This NPRM does not propose a significant rule under
Executive Order 12866 or a significant rule under the
Department's Regulatory Policies and Procedures. The
Department certifies that this rule, if adopted, would
not have a significant economic effect on a substantial
number of small entities.  The basis for this statement
is that the modifications to airline practices and
procedures involved if the rules are made final would
involve little additional cost to carriers or airports.
The Department has determined that there would not be
sufficient Federalism impacts to warrant the preparation
of a Federalism Assessment.  As it implements a
nondiscrimination statute, this rule is not subject to
scrutiny under the Unfunded Mandates Act.

List of Subjects in 14 CFR Part 382

Aviation, Handicapped.
Issued this 8th Day of October, 1996, at Washington, D.C.

Federico Pena,

Secretary of Transportation.

BILLING CODE 4910-62-M

61 FR 56481-01

ASH - ACTION ON SMOKING AND HEALTH 2013 H Street, NW / Washington, DC 20006 / (202) 659-4310