| Banning Electronic Cigarettes on Aircrafts | | | | |

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1. This proposed regulation interests me since I have started flying more often and I wouldn’t want to sit next to someone smoking an electronic cigarette on an airplane. The seating on airplanes are so close together that you wouldn’t want to be able to smell the vapor from someone smoking an electronic cigarette even though it is barely noticeable. This proposed regulation is banning electronic cigarettes from commercial and international aircraft flights. I guess it would affect me and the company I work for since there are hundreds of people in our company that have to fly for business. The discomfort of having to smell an unusual odor even if it was a flavor odor from someone sitting so close to during a 2 -6 hour flight would not be enjoyable.
2. The proposal is intended to change any existing smoking regulations for airlines to ban the use of electronic cigarettes on any passenger flights both domestic and international. The DOT is implementing this change due to the marketing and promotional advertising to increase the popularity of the electronic cigarettes and they are concerned about any safety, health and discomfort concerns that may be imposed on the other passengers on the aircraft.
3. November 13, 2011
Subject: Docket # DOT-OST-2011-0044 – Office of the Secretary (OST) and Department of Transportation (DOT) - Proposed Rule: Ban Smoking of Electronic Cigarettes on Aircrafts

Dear Sir or Madam,
I am submitting a comment in favor of banning the use of electronic cigarettes on aircrafts. I have an interest in this proposed regulation since I fly for work a lot and I wouldn’t want to sit next to someone smoking an electronic cigarette on an airplane. The seating on airplanes are very close together that you wouldn’t want to be able to smell the vapor from someone smoking an electronic cigarette even though it may be barely noticeable. They say with electronic cigarettes that second hand smoke is not an issue but there has not been enough research found stating that it does not cause absolutely any health issues for someone sitting next to someone smoking an electronic cigarette. If there is even a chance that it could affect the health and safety of others then it would be a valid reason to pass this proposed rule. The discomfort of having to smell an unusual odor even if it was a flavored odor from someone sitting right next to you during a 2 -6 hour flight would not be enjoyable. Smoking of cigarettes, cigars and pipes are already banned from being smoked on aircrafts, trains, etc. So I agree why would the use of electronic cigarettes be allowed? The popularity of the electronic cigarettes has been increasingly growing and the airlines are concerned about any safety, health and discomfort that may be imposed by their passengers, crew members or anyone else that may be on the aircraft. There is not enough valid research that there are no health risks involved with the electronic cigarettes and there would be discomfort involved with the vapors from the product therefore I believe smoking of electronic cigarettes should be banned from aircrafts both domestic and international.
Thank you for the opportunity to comment on this proposed rule.
4. Public comment deadline for the banning of electronic cigarettes on aircrafts is November 14, 2011.
5. Anyone can submit a comment to a proposed regulation whether they are “private citizens, government officials, industry representatives, business people, and corporations” (Jennings, 2009, p, 189). Each regulation will publish a deadline for public comments to be made and the comment period can’t be less than 30 days. These comments will then be posted to the Federal Register. In order to be legally entitled to dispute the legality of the proposed regulation or rule you need to have posted a public comment within the deadline period. A proposed regulation or an administrative rule has the ability to be challenged on the basis of several grounds.
The procedures for rulemaking must be followed in order for the regulatory process and resulting rules to be valid. An agency that seeks public comment for the purposes of drafting legislation cannot then turn the legislation into rules after the comment period. The notice must specify that promulgated rules will be the result of the proceeding (Jennings, 2009, p, 193).
Proposed rules and regulations can be challenged on the basis of 5 legal theories or grounds. The theories are uses in order to attempt to declare the regulation invalid or try to overturn it in a court hearing. “The first ground on which to challenge an agency rule is that it is arbitrary, capricious, an abuse of discretion, or in violation of some other law” (Jennings, 2009, p, 193). This theory would be generally applied to informal rulemaking or if an agency is required to show evidence in order to support the proposed regulation or rule. In order to use the arbitrary and capricious theory; proof or a foundation for the regulation or rule would need to be provided. The, one would need to provide proof or basis. The second ground for challenging a proposed regulation is that the proposed regulation is not supported by enough substantial evidence. Hybrid or formal rules normally apply the substantial evidence test to review their proposed rules or regulations. If the agency did not fulfill all of the requirements set forth by the APA for public comments, input, notices or publications then this would be the third ground on which proposed regulations could be challenged. The forth theory for challenging a rule or regulation is trying to prove that the regulation may be unconstitutional. “Many challenges based on constitutional grounds deal with regulations that give an agency authority to search records or that impose discriminatory requirements for licensing professionals” (Jennings, 2009, p, 198).
Ultra vires is the fifth legal theory used to challenge a rule or regulation. “An ultra vires regulation is one that goes beyond the authority given to the agency in its enabling act” (Jennings, 2009, p, 198-199). Most agencies normally try to stay within their authority but if they go beyond their own authority to change the purpose or substance of the regulation or rule they would have to use this basis of theory.
I am in favor of banning the smoking of electronic cigarettes and agree with the proposed rule. If I was against it and wanted to challenge the regulation then I believe that the second theory would be the best way to submit the challenge. In the second theory states that “the regulation is unsupported by substantial evidence” (Jennings, p. 198) With this theory of challenging the regulation the agency would have to provide more credible and persuasive evidence in order to support their proposed regulation on why they should ban the use of electronic cigarettes on aircrafts. Since there is little research backing up the health issue risks involved substantial evidence would have to be submitted stating that there would not be a health risk to the other non-smoking passengers or crew members on an aircraft.
The lack of available research on e-cigarettes and the potential health risks posed by the use of this product, both to the user and to the people around them, is of grave concern. The burden to prove their products are safe rests on the manufacturers of e-cigarettes. At this time, Americans for Nonsmokers' Rights recommends that e-cigarettes not be used in areas where people will be exposed to the vapors they emit. (Njus, E)

References
Jennings, M. (2009). Administrative Law. Business: its legal, ethical, and global environment (8th ed., pp. 189-200). Mason, OH: South-Western Cengage Learning.
Njus, E. Electronic Cigarettes. No-smoke.org. Retrieved November 13, 2011, from http://www.no-smoke.org/learnmore.php?id=645
Smoking of Electonic Cigarettes on Aircraft - Federal Register Volume 76, Number 179 . (2011, September 15). Regulations.gov. Retrieved November 13, 2011, from http://www.regulations.gov/#!documentDetail;D=DOT-OST-2011-0044-0003.pdf