I

103D CONGRESS

1ST SESSION H. R. 710

To protect children from exposure to environmental tobacco smoke in the

provision of children’s services, to require the Administrator of the Environmental Protection Agency to promulgate guidelines for instituting

a nonsmoking policy in buildings owned or leased by Federal agencies,

and for other purposes.

IN THE HOUSE OF REPRESENTATIVES

FEBRUARY 2, 1993

Mr. DURBIN (for himself, Mr. HANSEN, Mr. MAZZOLI, Mrs. SCHROEDER, Mr.

SYNAR, Mr. ANDREWS of Texas, Mr. MCDERMOTT, Mr. PORTER, Mr.

MILLER of California, Mr. FAWELL, Mr. LAFALCE, Mr. LIPINSKI, Mr.

ACKERMAN, Mr. FRANK of Massachusetts, Ms. PELOSI, and Mr. YATES)

introduced the following bill; which was referred to the Committee on Energy and Commerce

MARCH 3, 1993

Additional sponsors: Ms. KAPTUR, Mr. EVANS, Mr. KREIDLER, Mrs.

MALONEY, Mr. OBERSTAR, Mr. COLEMAN, Mrs. UNSOELD, Mr.

GUTIERREZ, Mrs. COLLINS of Illinois, Mr. MCCOLLUM, Ms. WOOLSEY,

Ms. SHEPHERD, Ms. NORTON, Mr. JOHNSON of South Dakota, Mr. CONYERS, Ms. SCHENK, Mr. INGLIS of South Carolina, Mr. ROMEROBARCELO ́, Mr. BARRETT of Wisconsin, Mr. JACOBS, Mr. MCCANDLESS,

Mr. BEILENSON, Miss COLLINS of Michigan, Mr. HINCHEY, Mr. FROST,

and Mr. BROWN of California

A BILL

To protect children from exposure to environmental tobacco

smoke in the provision of children’s services, to require

the Administrator of the Environmental Protection Agency to promulgate guidelines for instituting a nonsmoking
2

•HR 710 SC

policy in buildings owned or leased by Federal agencies,

and for other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Preventing Our Kids

5 From Inhaling Deadly Smoke (PRO–KIDS) Act of 1993’’.

6 SEC. 2. FINDINGS.

7 Congress finds that—

8 (1) environmental tobacco smoke comes from

9 secondhand smoke exhaled by smokers and

10 sidestream smoke emitted from the burning of ciga11 rettes, cigars, and pipes;

12 (2) since citizens of the United States spend up

13 to 90 percent of a day indoors, there is a significant

14 potential for exposure to environmental tobacco

15 smoke from indoor air;

16 (3) exposure to environmental tobacco smoke

17 occurs in schools, public buildings, and other indoor

18 facilities;

19 (4) recent scientific studies have concluded that

20 exposure to environmental tobacco smoke is a cause

21 of lung cancer in healthy nonsmokers and is respon22 sible for acute and chronic respiratory problems and

23 other health impacts in sensitive populations (includ24 ing children);
3

•HR 710 SC

1 (5) the health risks posed by environmental to2 bacco smoke exceed the risks posed by many envi3 ronmental pollutants regulated by the Environ4 mental Protection Agency; and

5 (6) according to information released by the

6 Environmental Protection Agency, environmental to7 bacco smoke results in a loss to the economy of over

8 $3,000,000,000 per year.

9 SEC. 3. DEFINITIONS.

10 As used in this Act:

11 (1) ADMINISTRATOR.—The term ‘‘Adminis12 trator’’ means the Administrator of the Environ13 mental Protection Agency.

14 (2) CHILDREN.—The term ‘‘children’’ means

15 individuals who have not attained the age of 18.

16 (3) CHILDREN’S SERVICES.—The term ‘‘chil17 dren’s services’’ means—

18 (A) direct health services routinely pro19 vided to children; or

20 (B) any other direct services routinely pro21 vided primarily to children, including edu22 cational services.

23 (4) EXECUTIVE AGENCY.—The term ‘‘Executive

24 agency’’ has the meaning provided in section 105 of

25 title 5, United States Code.
4

•HR 710 SC

1 (5) FEDERAL AGENCY.—The term ‘‘Federal

2 agency’’ includes any Executive agency, the Execu3 tive Office of the President, any military depart4 ment, any court of the United States, the Adminis5 trative Office of the United States Courts, the Li6 brary of Congress, the Botanic Garden, the Govern7 ment Printing Office, the Congressional Budget Of8 fice, the United States Postal Service, the Postal

9 Rate Commission, the Office of the Architect of the

10 Capitol, the Office of Technology Assessment, and

11 any other agency of the executive, legislative and ju12 dicial branches.

13 (6) FEDERAL BUILDING.—The term ‘‘Federal

14 building’’ means any building or other structure

15 owned or leased for use by a Federal agency, except

16 that the term shall not include any area of a build17 ing that is used primarily as living quarters.

18 (7) SECRETARY.—The term ‘‘Secretary’’ means

19 the Secretary of Health and Human Services.

20 SEC. 4. NONSMOKING POLICY FOR FEDERAL BUILDINGS.

21 (a) IN GENERAL.—

22 (1) ISSUANCE OF GUIDELINES.—Not later than

23 180 days after the date of enactment of this Act, the

24 Administrator shall issue guidelines for instituting
5

•HR 710 SC

1 and enforcing a nonsmoking policy at each Federal

2 agency.

3 (2) CONTENTS OF GUIDELINES.—A non4 smoking policy that meets the requirements of the

5 guidelines shall, at a minimum, prohibit smoking in

6 each indoor portion of a Federal building that is not

7 ventilated separately (as defined by the Adminis8 trator) from other portions of the facility.

9 (b) ADOPTION OF GUIDELINES.—

10 (1) IN GENERAL.—As soon as is practicable

11 after the date of issuance of the guidelines referred

12 to in subsection (a), the head of each Executive

13 agency, and the Director of the Administrative Of14 fice of the United States Courts shall adopt a non15 smoking policy applicable to the Federal agency

16 under the jurisdiction of the individual that meets

17 the requirements of the guidelines referred to in sub18 section (a), and take such action as is necessary to

19 ensure that the policy is carried out in the manner

20 specified in the guidelines.

21 (2) LEGISLATIVE BRANCH.—As soon as is prac22 ticable after the date of issuance of the guidelines

23 referred to in subsection (a), the following entities

24 and individuals shall adopt a nonsmoking policy that

25 meets the requirements of the guidelines referred to
6

•HR 710 SC

1 in subsection (a), and take such action as is nec2 essary to ensure that the policy is carried out in the

3 manner specified in the guidelines:

4 (A) With respect to the House of Rep5 resentatives (including any office space or build6 ings of the House of Representatives), the

7 House Office Building Commission.

8 (B) With respect to the Senate (including

9 any office space or buildings of the Senate), the

10 Committee on Rules and Administration of the

11 Senate.

12 (C) With respect to any other area occu13 pied or used by a Federal agency of the legisla14 tive branch, the Architect of the Capitol.

15 (3) CERTIFICATION FOR EXECUTIVE AGEN16 CIES.—The Administrator of General Services, in

17 consultation with the Administrator, shall review

18 each nonsmoking policy adopted by the head of an

19 Executive agency and shall certify those policies that

20 meet the requirements of the guidelines referred to

21 in subsection (a). In carrying out the certification,

22 the Administrator of General Services shall use a

23 procedure and apply criteria that the Administrator

24 shall establish. Except as provided in subsection (c),

25 if a policy does not meet the requirements of the
7

•HR 710 SC

1 guidelines, the Administrator of General Services

2 shall—

3 (A) in a written communication, advise the

4 head of the Executive agency concerning modi5 fications of the policy to meet the requirements;

6 and

7 (B) publish the communication in the Fed8 eral Register.

9 (c) WAIVERS.—

10 (1) EXECUTIVE AGENCIES.—The head of an

11 Executive agency may publicly petition the Adminis12 trator of General Services for a waiver from institut13 ing or enforcing a nonsmoking policy (or policy re14 quirement) under the guidelines issued pursuant to

15 subsection (a). The Administrator of General Serv16 ices may waive the requirement if, after consultation

17 with the Administrator, the Administrator of Gen18 eral Services determines that—

19 (A) unusual extenuating circumstances

20 prevent the head of the Federal agency from

21 enforcing the policy (or a requirement under

22 the policy) (including a case in which the Fed23 eral agency shares space in an indoor facility

24 with a non-Federal entity and cannot obtain an

25 agreement with the other entity to abide by the
8

•HR 710 SC

1 nonsmoking policy requirement) and the head

2 of the Executive agency will establish and make

3 a good-faith effort to enforce an alternative

4 nonsmoking policy (or alternative requirement

5 under the policy) that will protect individuals

6 from exposure to environmental tobacco smoke

7 to the maximum extent possible; or

8 (B) the head of the Executive agency will

9 enforce an alternative nonsmoking policy (or al10 ternative requirement under the policy) that

11 will protect individuals from exposure to envi12 ronmental tobacco smoke to the same degree as

13 the requirement under the guidelines issued

14 pursuant to subsection (a).

15 (2) AGENCIES OF THE JUDICIAL BRANCH.—

16 After consultation with the Administrator, and after

17 providing public notice and reasonable opportunity

18 for public review and comment, the Director of the

19 Administrative Office of the United States Courts

20 may, on the basis of the criteria for a waiver re21 ferred to in paragraph (1), make such modifications

22 to the nonsmoking policy required to be carried out

23 pursuant to subsection (b) as the Director deter24 mines to be necessary. The Director may not make
9

•HR 710 SC

1 any modification that violates the criteria for a

2 waiver under paragraph (1).

3 (3) AGENCIES OF THE LEGISLATIVE BRANCH.—

4 After consultation with the Administrator, and after

5 providing public notice and reasonable opportunity

6 for public review and comment, the appropriate en7 tity or individual referred to in subparagraphs (A)

8 through (C) of subsection (b)(2) may, on the basis

9 of the criteria for a waiver referred to in paragraph

10 (1), make such modifications to the nonsmoking pol11 icy required to be carried out pursuant to subsection

12 (b) as the entity or individual determines to be nec13 essary. The entity or individual may not make any

14 modification that violates the criteria for a waiver

15 under paragraph (1).

16 (d) COLLECTIVE BARGAINING AGREEMENTS.—

17 (1) IN GENERAL.—In a Federal agency in

18 which a labor organization has been accorded rec19 ognition as a bargaining unit pursuant to chapter 71

20 of title 5, United States Code, the Federal agency

21 shall engage in collective bargaining pursuant to sec22 tion 7114 of title 5, United States Code, to ensure

23 the implementation of the requirements of this sec24 tion that affect work areas predominately occupied

25 by the employees represented by the labor organiza-
10

•HR 710 SC

1 tion by the date of the adoption, pursuant to this

2 section, of a nonsmoking policy applicable to the

3 Federal agency.

4 (2) EXEMPTION.—

5 (A) IN GENERAL.—If, on the date of en6 actment of this Act—

7 (i) a bargaining unit referred to in

8 paragraph (1) has in effect a collective

9 bargaining agreement with respect to

10 which a Federal agency is a party; and

11 (ii) the collective bargaining agree12 ment referred to in clause (i) includes pro13 visions relating to smoking privileges that

14 are in violation of the requirements of this

15 section,

16 the head of the Federal agency may exempt

17 work areas predominately occupied by the em18 ployees subject to the collective bargaining

19 agreement from the nonsmoking policy that the

20 Federal agency is required to be carried out

21 under subsection (b).

22 (B) TERMINATION OF EXEMPTION.—

23 (i) IN GENERAL.—An exemption re24 ferred to in subparagraph (A) shall termi25 nate on the earlier of—
11

•HR 710 SC

1 (I) the first expiration date (after

2 the date of enactment of this Act) of

3 the collecting bargaining agreement

4 containing the provisions relating to

5 smoking privileges; or

6 (II) the date that is 1 year after

7 the date of issuance of the guidelines.

8 (ii) IMPLEMENTATION OF NON9 SMOKING POLICY AFTER TERMINATION

10 DATE.— By the applicable date specified in

11 clause (i)(II), the head of each Federal

12 agency shall be required to enforce a non13 smoking policy that meets the require14 ments of the guidelines issued under sub15 section (a) in each work area under the ju16 risdiction of the head of the Federal agen17 cy, notwithstanding any collective bargain18 ing agreement that contains provisions

19 that are less restrictive than the non20 smoking policy.

21 SEC. 5. TECHNICAL ASSISTANCE AND OUTREACH ACTIVI22 TIES.

23 (a) TECHNICAL ASSISTANCE.—The Administrator

24 and the Secretary shall provide technical assistance to the

25 heads of Federal agencies and other persons who request
12

•HR 710 SC

1 technical assistance. The technical assistance shall include

2 information—

3 (1) on smoking cessation programs for employ4 ees; and

5 (2) to assist in compliance with the require6 ments of this Act.

7 (b) OUTREACH ACTIVITIES.—

8 (1) IN GENERAL.—The Administrator, in con9 sultation with the Secretary, shall establish an out10 reach program to inform the public concerning the

11 dangers of environmental tobacco smoke. As part of

12 the outreach program, the Administrator and the

13 Secretary shall make available to the general public

14 brochures and other educational materials. In estab15 lishing the programs under this paragraph, the Ad16 ministrator and the Secretary shall cooperate to

17 maximize the sharing of information and resources.

18 (2) ENVIRONMENTAL TOBACCO SMOKE ADVI19 SORY OFFICE.—

20 (A) IN GENERAL.—The Administrator

21 shall establish within the Office of Radiation

22 and Indoor Air of the Environmental Protection

23 Agency an office, to be known as the ‘‘Environ24 mental Tobacco Smoke Advisory Office’’. The
13

•HR 710 SC

1 Administrator shall appoint a Director to carry

2 out the functions of the office.

3 (B) DUTIES OF THE DIRECTOR.—The Di4 rector shall—

5 (i) provide information on smoking

6 cessation;

7 (ii) provide information to assist in

8 compliance with the requirements of this

9 Act;

10 (iii) provide information on the dan11 gers of environmental tobacco smoke to

12 any person who requests the information;

13 (iv) establish a telephone hotline to

14 provide information on the dangers of envi15 ronmental tobacco smoke; and

16 (v) carry out any other function of the

17 Office that the Administrator determines

18 to be appropriate.

19 SEC. 6. FEDERALLY FUNDED PROGRAMS.

20 (a) IN GENERAL.—Notwithstanding any other provi21 sion of law, each person who uses Federal funds to provide

22 children’s services shall establish and make a good-faith

23 effort to enforce a nonsmoking policy that meets or ex24 ceeds the requirements of subsection (b).

25 (b) NONSMOKING POLICY.—
14

•HR 710 SC

1 (1) GENERAL REQUIREMENTS.—A nonsmoking

2 policy meets the requirements of this subsection if

3 the policy—

4 (A) is consistent with the guidelines issued

5 under section 4(a);

6 (B) prohibits smoking in each portion of

7 an indoor facility used in connection with the

8 provision of services directly to children; and

9 (C) where appropriate, requires that signs

10 stating that smoking is not permitted be posted

11 in each indoor facility to communicate the

12 policy.

13 (2) PERMISSIBLE FEATURES.—A nonsmoking

14 policy that meets the requirements of this subsection

15 may allow smoking in those portions of the facility—

16 (A) in which services are not normally pro17 vided directly to children; and

18 (B) that are ventilated separately from

19 those portions of the facility in which services

20 are normally provided directly to children.

21 (c) WAIVER.—

22 (1) IN GENERAL.—A person described in sub23 section (a) may publicly petition the head of the

24 Federal agency from which the person receives Fed25 eral funds (including financial assistance) for a
15

•HR 710 SC

1 waiver from any or all of the requirements of sub2 section (b).

3 (2) CONDITIONS FOR GRANTING A WAIVER.—

4 Except as provided in paragraph (3), the head of the

5 Federal agency may grant a waiver only—

6 (A) after consulting with the Adminis7 trator, and receiving the concurrence of the

8 Administrator;

9 (B) after giving an opportunity for public

10 hearing (at the main office of the Federal agen11 cy or at any regional office of the agency) and

12 comment; and

13 (C) if the person requesting the waiver

14 provides assurances that are satisfactory to the

15 head of the Federal agency (with the concur16 rence of the Administrator) that—

17 (i) unusual extenuating circumstances

18 prevent the person from establishing or en19 forcing the nonsmoking policy (or a re20 quirement under the policy) referred to in

21 subsection (b) (including a case in which

22 the person shares space in an indoor facil23 ity with another entity and cannot obtain

24 an agreement with the other entity to

25 abide by the nonsmoking policy require-
16

•HR 710 SC

1 ment) and the person will establish and

2 make a good-faith effort to enforce an al3 ternative nonsmoking policy (or alternative

4 requirement under the policy) that will

5 protect children from exposure to environ6 mental tobacco smoke to the maximum ex7 tent possible; or

8 (ii) the person requesting the waiver

9 will establish and make a good-faith effort

10 to enforce an alternative nonsmoking pol11 icy (or alternative requirement under the

12 policy) that will protect children from ex13 posure to environmental tobacco smoke to

14 the same degree as the policy (or require15 ment) under subsection (b).

16 (3) SPECIAL WAIVER.—

17 (A) IN GENERAL.—On receipt of an appli18 cation, the head of the Federal agency may

19 grant a special waiver to a person described in

20 subsection (a) who employs individuals who are

21 members of a labor organization and provide

22 children’s services pursuant to a collective bar23 gaining agreement that—

24 (i) took effect before the date of en25 actment of this Act; and
17

•HR 710 SC

1 (ii) includes provisions relating to

2 smoking privileges that are in violation of

3 the requirements of this section.

4 (B) TERMINATION OF WAIVER.—A special

5 waiver granted under this paragraph shall ter6 minate on the earlier of—

7 (i) the first expiration date (after the

8 date of enactment of this Act) of the col9 lective bargaining agreement containing

10 the provisions relating to smoking privi11 leges; or

12 (ii) the date that is 1 year after the

13 date specified in subsection (f).

14 (d) CIVIL PENALTIES.—

15 (1) IN GENERAL.—Any person subject to the

16 requirements of this section who fails to comply with

17 the requirements shall be liable to the United States

18 for a civil penalty in an amount not to exceed

19 $1,000 for each violation, but in no case shall the

20 amount be in excess of the amount of Federal funds

21 received by the person for the provision of children’s

22 services for the fiscal year in which the violation oc23 curred. Each day a violation continues shall con24 stitute a separate violation.
18

•HR 710 SC

1 (2) ASSESSMENT.—A civil penalty for a viola2 tion of this section shall be assessed by the head of

3 the Federal agency that provided Federal funds (in4 cluding financial assistance) to the person (or if the

5 head of the Federal agency does not have the au6 thority to issue an order, the appropriate official) by

7 an order made on the record after opportunity for

8 a hearing in accordance with section 554 of title 5,

9 United States Code. Before issuing the order, the

10 head of the Federal agency (or the appropriate offi11 cial) shall—

12 (A) give written notice to the person to be

13 assessed a civil penalty under the order of the

14 proposal to issue the order; and

15 (B) provide the person an opportunity to

16 request, not later than 15 days after the date

17 of receipt of the notice, a hearing on the order.

18 (3) AMOUNT OF CIVIL PENALTY.—In determin19 ing the amount of a civil penalty under this sub20 section, the head of the Federal agency (or the ap21 propriate official) shall take into account—

22 (A) the nature, circumstances, extent, and

23 gravity of the violation;

24 (B) with respect to the violator, the ability

25 to pay, the effect of the penalty on the ability
19

•HR 710 SC

1 to continue operation, any prior history of the

2 same kind of violation, the degree of culpability,

3 and a demonstration of willingness to comply

4 with the requirements of this Act; and

5 (C) such other matters as justice may

6 require.

7 (4) MODIFICATION.—The head of the Federal

8 agency (or the appropriate official) may compromise,

9 modify, or remit, with or without conditions, any

10 civil penalty that may be imposed under this sub11 section. The amount of the penalty as finally deter12 mined or agreed upon in compromise may be de13 ducted from any sums that the United States owes

14 to the person against whom the penalty is assessed.

15 (5) PETITION FOR REVIEW.—A person who has

16 requested a hearing concerning the assessment of a

17 penalty pursuant to paragraph (2) and is aggrieved

18 by an order assessing a civil penalty may file a peti19 tion for judicial review of the order with the United

20 States Court of Appeals for the District of Columbia

21 Circuit or for any other circuit in which the person

22 resides or transacts business. The petition may only

23 be filed during the 30-day period beginning on the

24 date of issuance of the order making the assessment.
20

•HR 710 SC

1 (6) FAILURE TO PAY.—If a person fails to pay

2 an assessment of a civil penalty—

3 (A) after the order making the assessment

4 has become a final order and without filing a

5 petition for judicial review in accordance with

6 paragraph (5); or

7 (B) after a court has entered a final judg8 ment in favor of the head of the Federal agency

9 (or appropriate official),

10 the Attorney General shall recover the amount as11 sessed (plus interest at currently prevailing rates

12 from the last day of the 30-day period referred to

13 in paragraph (5) or the date of the final judgment,

14 as the case may be) in an action brought in an ap15 propriate district court of the United States. In the

16 action, the validity, amount, and appropriateness of

17 the penalty shall not be subject to review.

18 (e) EXEMPTION.—This section shall not apply to a

19 person who provides children’s services who—

20 (1) has attained the age of 18;

21 (2) provides children’s services—

22 (A) in a private residence; and

23 (B) only to children who are, by affinity or

24 consanguinity, or by court decree, a grandchild,

25 niece, or nephew of the provider; and
21

•HR 710 SC

1 (3) is registered and complies with any State

2 requirements that govern the children’s services pro3 vided.

4 (f) EFFECTIVE DATE.—This section shall take effect

5 on the first day of the first fiscal year beginning after the

6 date of enactment of this Act.

7 SEC. 7. REPORT BY THE ADMINISTRATOR.

8 Not later than 2 years after the date of enactment

9 of this Act, the Administrator shall submit a report to

10 Congress that includes—

11 (1) information concerning the degree of com12 pliance with this Act; and

13 (2) an assessment of the legal status of smok14 ing in public places.

15 SEC. 8. PREEMPTION.

16 Nothing in this Act is intended to preempt any provi17 sion of law of a State or political subdivision of a State

18 that is more restrictive than a provision of this Act.

Æ

HR 710 SC——2