MIAMI AND FORT LAUDERDALE, FLA.-AIR
TERMINAL AREAS

The Interstate Commerce Commission has amended section 1047.40 of the Code of Federal Regulations by the addition of subsections d(5) and d(6), which respectively define the Miami, Fla., and Fort Lauderdale, Fla., air exempt zones. This action stems from a petition filed May 2, 1976, jointly by Broward Airfreight Terminal, Inc., and Greater Miami Air Freight, Inc., requesting the Commission to clarify, pursuant to 49 CFR 1047.40(c), the zones surrounding the Miami International Airport and the Fort Lauderdale International Airport, within which motor transportation of property is incidental to transportation by air and exempt from the Commission's economic regulation under section 203(b)(7a) of the Interstate Commerce Act.

This rule is issued under authority of 52 Stat. 1029, 49 U.S.C. 303(b)(7a); 52 Stat. 1237, 49 U.S.C. 304(a)(6); 56 Stat. 285, 80 Stat. 383; 49 U.S.C. 1003, 5 U.S.C. 553, 559.

Accordingly, this action amends 49 CFR 1047.40 by the addition thereto of subsections d(5) and d(6) as follows:

(d) Exempt zones and operations.—(5) Miami International Airport (Miami, Fla.). The area surrounding the Miami International Airport at Miami, Fla., within which the transportation by motor vehicle, in interstate or foreign commerce, of property having a prior or subsequent movement by air, which transportation otherwise meets the requirements of section 1047.40(a) of this part, is exempt from economic regulation by the Interstate Commerce Commission pursuant to section 203(b)(7a) of the Interstate Commerce Act, includes those points in Florida within 25 miles of either the Miami International Airport or the city limits of Miami, Fla.

(6) Fort Lauderdale International Airport (Fort Lauderdale, Fla.). The area surrounding the Fort Lauderdale International Airport at Fort Lauderdale, Fla., within which the transportation by motor vehicle, in interstate or foreign commerce, of property having a prior or subsequent movement by air, which transportation otherwise meets the requirements of section 1047.40(a) of this part, is exempt from economic regulation by the Interstate Commerce Commission pursuant to section 203(b)(7a) of the Interstate Commerce Act, includes those points in Florida within 25 miles of either the Fort Lauderdale International Airport or the city limits of Fort Lauderdale, Fla.

125 M.C.C.

No. MC-C-6748

SMOKING BY PASSENGERS AND OPERATING PERSONNEL ON INTERSTATE BUSES

(PETITION FOR ModificatION)

Decided September 20, 1976

Petition seeking modification of regulations (49 CFR 1061.1(a)) to enlarge the separate seating section for smoking on passenger-carrying motor vehicles in interstate or foreign commerce, where smoking is otherwise permitted by the carrier and by law, granted in part. Appropriate order entered and petition in all other respects denied.

Drew L. Carraway, John S. Fessenden, and Charles A. Webb for National Association of Motor Bus Owners, petitioner.

John F. Banzhaf III and Glenn A. Goldberg for Action on Smoking and Health, in opposition to the petition.

April Aldridge, Lawrence Auerbach, Jacque Ballow, Carrol Barker, Elaine Barnes, Mary E. Barnes, A. J. Bartow, Janelle Bauer, Deborah A. Belko, Thomas M. Bradley, Terri Bratton, Ellen Braun, Kathryn Busch, Deanna Bux, Valerie A. Caires, E. J. Caldivere, C. D. Case, Shiela Chaplin, Leonard J. Choate, Eddie L. Courvisier, Russell B. Curnett, Mitchell S. Cwick, Diane Davis, Celene Denton, Robyn Dobson, Marvin H. Eckardt, Kathleen Flanagan, Barbara Garrett, Don Gaston, Edith Gordon, Carol H. Greene, Robert Haber, Linda E. Harmon, Mr. and Mrs. C. Harnoise, Vicki Hendricks, Jane Hickman, Kurt T. Hull, Mrs. W. J. Hunt, Jr., Ann Ingebretsen, Kim Jackman, Carol Johnson, E. Kelsey Kauffman, Nan Kelly, Mary Z. Keyes, Paula Kirchhoff, Judith A. Kotar, Marcel and Ester Kovarsky, Diane K. Kunz, Nancy Lacy, Robin Lang, Katherine T. Lantz, Kathy LaRos, Mrs. Elva W. Mauer, Amy McDonald, Mable McMinn, Patricia Montgomery, Clara Morabito, Diane Motway, Darlene Nelson, Carl D. Olsen, Mary L. Pealor, Brenda Pesek, R. E. Pickering, William and Virginia Pitts, Debbie Polvado, Jan Powell, Pamela Rowan, Susan Sallee, Diane Schaak, Mrs. John D. Schaeffer, Helen Schneider, Bernice Shoobs, Valerie Sis, Mary E. Smith, Susan Steele, Bruce Stinebrickner, Valeria

Svetlik, Christy Taylor, Nancy J. Walker, Hilliane Wilder, Marjorie M. Wilson, and Debbie Yahn expressing individual opinions on the petitioner's proposal.

REPORT OF THE COMMISSION

BY THE COMMISSION:

In docket No. MC-C-6748, Smoking on Interstate Buses, 114 M.C.C. 256 (1971), affirmed National Ass'n of Motor Bus Owners v. United States, 370 F. Supp. 408 (1974), the Commission, by report and order entered November 8, 1971 (served November 17, 1971), promulgated regulations providing for the separate seating for smokers and nonsmokers on interstate passenger-carrying motor vehicles. As set forth in section 1061.1 of the Commission's General Rules and Regulations (49 CFR 1061.1), the adopted regulations, which became effective April 22, 1974, provide:

(a) All motor common carriers of passengers subject to part II of the Interstate Commerce Act, which desire to permit smoking of cigars, cigarettes, or pipes, shall, where smoking on passenger-carrying motor vehicles is otherwise permitted by law, provide a smoking section, consisting of a number of seats in the rear of the passengercarrying motor vehicle, not to exceed 20 percent of the capacity of the said vehicle. Except as otherwise permitted under paragraph (b) of this section, smoking of cigars, cigarettes, or pipes shall not be permitted in any portion of the motor vehicle other than the smoking section required by subparagraph (1) of this paragraph.

(b) The provisions of paragraph (a) of this section shall not be construed to apply to charter operations performed by motor common carriers of passengers subject to part Il of the Interstate Commerce Act.

(c) In the event of any unusual circumstances arising under paragraph (a) of this section, the operator (driver) of the motor vehicle involved (or other carrier employee) may exercise reasonable discretion to the extent permitted by the carrier, by making minor modifications in the special seating sections established by paragraph (a) of this section in order to assure the comfort of all passengers and the provisions of safe, adequate, and expeditious transportation service.

By petition filed July 25, 1975, National Association of Motor Bus Owners (hereinafter referred to as "petitioner" or "NAMBO") requests that part (a) of the adopted regulations be modified to permit the enlargement of the defined smoking section on passenger-carrying buses from 20 percent to 50 percent of available seating capacity. Notice of the filing of the petition was published in the Federal Register of August 18, 1975, with the provision that any person (including petitioner) interested in making representations either for or against the relief sought in the petition could do so by the submission of written data, views, or arguments on or before October 1, 1975.

Numerous statements and representations were filed in response to the notice. NAMBO did not submit any additional representations beyond those set forth in its petition. We did not contemplate oral hearings, and it is our opinion that the present record is fully adequate to enable our consideration and disposition of petitioner's request. At this juncture, we deem it appropriate to outline briefly the history of the proceeding giving rise to the regulations here sought to be modified.

HISTORIAL BACKGROUND

Section 1061.1 resulted from a general rulemaking proceeding of the Commission, initiated pursuant to a petition filed January 8, 1970, by consumer-advocate Ralph Nader, seeking a regulation banning the smoking of cigars, cigarettes, and pipes on passengercarrying motor vehicles in interstate commerce. The matter was assigned for oral hearing, at which NAMBO appeared along with the petitioner in that proceeding. In his report, the hearing officer concluded that tobacco smoke fumes had the capability of disturbing many passengers to some degree, especially persons with respiratory ailments, and he recommended that affected riders be afforded reasonable protection from excessive exposure to such fumes. He, therefore, proposed that a regulation be prescribed requiring carriers to post signs on all buses to read:

Please do not smoke in buses, some people cannot tolerate tobacco smoke.

On exceptions to the hearing officer's report and recommended order, the Commission in its report, Smoking on Interstate Buses, supra, concluded that it possessed appropriate jurisdiction and power to promulgate regulations respecting smoking on interstate passenger-carrying vehicles, and that pursuant to such powers and duties, and based on the facts developed on the record, it should take affirmative action to limit smoking on interstate buses.

In its consideration of what action to take in the matter, the Commission noted (1) the inherent unfairness of a complete ban on habitual smokers desiring to use public buses, and (2) the long distances and traveling time involved in interstate movements. By weighing and balancing the needs of smokers, the effect of secondhand smoke on the public, and the economic situation of motor common carriers of passengers, it concluded that a seating section should be set aside in the rear of the bus for smokers. It further

found that not more than about 20 percent of the passengers on an average-size interstate bus (shown at that time to have a seating capacity of between 47 and 49 persons) smoke. Hence, it promulgated the 20-percent provision of part (a) of the regulations. Because of expressed concern regarding the enforceability of the regulations, the Commission adopted in part (c) of the regulations a rule permitting the individual motor vehicle driver or other carrier employee, in unusual circumstances, and to the extent permitted by the carrier, to exercise reasonable discretion to handle the situation by making minor modifications in the special seating sections established by paragraph (a) of the regulations, in order to assure the comfort of all passengers and the provisions of safe, adequate, and expeditious service.

Finally, the Commission considered whether any antismoking rule should be promulgated applicable. to all modes of public transportation. It concluded that the rule, applied only to motor common carriers of passengers, would not adversely affect that industry; that the rule, in providing for the needs of all passengers, should not hinder the use of such mode by any members of the traveling public; and that, because each mode of transportation is unique in its nature and needs, each requires unique treatment. In the National case, supra, NAMBO sought to enjoin the enforcement of the regulations adopted in the Smoking case, supra, and the Commission's order denying its petition for reconsideration thereof. The court concluded that the arguments of NAMBO were without merit and that NAMBO was entitled to no "relief." National, supra, at 421.

Subsequent to the court's decision on January 31, 1974, NAMBO filed a petition on March 13, 1974, requesting reopening of the proceeding for modification of the Commission's order of November 8, 1971, entered in the Smoking case. In its pleading, NAMBO noted that, since the entry of the order, rules had been applied to passenger rail and aircraft carriers respectively permitting smoking in 50 percent or more of a railcar being the sole one of its type in the consist,' and setting aside a "no smoking" area

'Regulations governing the quality of intercity rail passenger service, (codified as 49 CFR 1124, effective April 1, 1974), were promulgated by the Commission in Adequacy of Intercity Rail Passenger Service, 344 I.C.C. 758. Originally, these regulations did permit smoking in 50 percent of a railcar being the sole one of its type in the consist. By order entered March 29, 1976, as supplemented by order of August 11, 1976, the Commission, in Ex Parte No. 277 (Sub-No. 3), Adequacy of Intercity Rail Passenger Service, modified §§ 1124.1 through 1124.28. Under the amended regulations, smoking in unreserved coach, reserved coach, and dome cars is permitted only in a ratio of up to one smoking car for every nonsmoking car of its type in the consist.