Reference no: EM133231082

The Federal Aviation Administration ("FAA") is empowered by statute to enact safety regulations for airline passengers "in the interest of the public safety and general welfare." The statute prohibits any passenger behavior on board an airplane that is "hazardous." Pursuant to that power, the FAA has passed regulations that prohibit smoking on board airplanes. Specifically, the FAA's regulations, issued pursuant to public notice and comment rulemaking, prohibit "any passenger from smoking or otherwise emitting noxious or hazardous fumes by means of a pipe, cigarette, cigar, or hookah." The regulation defines hazardous as "causing an unreasonable risk to public health." The FAA does not define any other terms either in statute or in the regulation. Smokeless, Inc. (SINC) sells a small, pen-shaped device it calls the "mystifier" that vaporizes a nicotine-infused liquid for inhalation without producing smoke or using an open flame.

1. Is the FAA constitutionally empowered to make this sort of legislative determination on the "mystifier, (i.e. - has Congress constitutionally delegated legislative power to FAA to regulate the "mystifier" in this context), and

2. To what extent might a court defer to the FAA's interpretation of the statute and its own regulations?