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[Congressional Bills 103th Congress]
[From the U.S. Government Publishing Office]
[H.R. 710 Introduced in House (IH)]

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. Romero-Barcelo, 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 policy in buildings owned or leased by Federal 
                   agencies, and for other purposes.

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Preventing Our Kids From Inhaling 
Deadly Smoke (PRO-KIDS) Act of 1993''.

SEC. 2. FINDINGS.

    Congress finds that--
            (1) environmental tobacco smoke comes from secondhand smoke 
        exhaled by smokers and sidestream smoke emitted from the 
        burning of cigarettes, cigars, and pipes;
            (2) since citizens of the United States spend up to 90 
        percent of a day indoors, there is a significant potential for 
        exposure to environmental tobacco smoke from indoor air;
            (3) exposure to environmental tobacco smoke occurs in 
        schools, public buildings, and other indoor facilities;
            (4) recent scientific studies have concluded that exposure 
        to environmental tobacco smoke is a cause of lung cancer in 
        healthy nonsmokers and is responsible for acute and chronic 
        respiratory problems and other health impacts in sensitive 
        populations (including children);
            (5) the health risks posed by environmental tobacco smoke 
        exceed the risks posed by many environmental pollutants 
        regulated by the Environmental Protection Agency; and
            (6) according to information released by the Environmental 
        Protection Agency, environmental tobacco smoke results in a 
        loss to the economy of over $3,000,000,000 per year.

SEC. 3. DEFINITIONS.

    As used in this Act:
            (1) Administrator.--The term ``Administrator'' means the 
        Administrator of the Environmental Protection Agency.
            (2) Children.--The term ``children'' means individuals who 
        have not attained the age of 18.
            (3) Children's services.--The term ``children's services'' 
        means--
                    (A) direct health services routinely provided to 
                children; or
                    (B) any other direct services routinely provided 
                primarily to children, including educational services.
            (4) Executive agency.--The term ``Executive agency'' has 
        the meaning provided in section 105 of title 5, United States 
        Code.
            (5) Federal agency.--The term ``Federal agency'' includes 
        any Executive agency, the Executive Office of the President, 
        any military department, any court of the United States, the 
        Administrative Office of the United States Courts, the Library 
        of Congress, the Botanic Garden, the Government Printing 
        Office, the Congressional Budget Office, the United States 
        Postal Service, the Postal Rate Commission, the Office of the 
        Architect of the Capitol, the Office of Technology Assessment, 
        and any other agency of the executive, legislative and judicial 
        branches.
            (6) Federal building.--The term ``Federal building'' means 
        any building or other structure owned or leased for use by a 
        Federal agency, except that the term shall not include any area 
        of a building that is used primarily as living quarters.
            (7) Secretary.--The term ``Secretary'' means the Secretary 
        of Health and Human Services.

SEC. 4. NONSMOKING POLICY FOR FEDERAL BUILDINGS.

    (a) In General.--
            (1) Issuance of guidelines.--Not later than 180 days after 
        the date of enactment of this Act, the Administrator shall 
        issue guidelines for instituting and enforcing a nonsmoking 
        policy at each Federal agency.
            (2) Contents of guidelines.--A nonsmoking policy that meets 
        the requirements of the guidelines shall, at a minimum, 
        prohibit smoking in each indoor portion of a Federal building 
        that is not ventilated separately (as defined by the 
        Administrator) from other portions of the facility.
    (b) Adoption of Guidelines.--
            (1) In general.--As soon as is practicable after the date 
        of issuance of the guidelines referred to in subsection (a), 
        the head of each Executive agency, and the Director of the 
        Administrative Office of the United States Courts shall adopt a 
        nonsmoking policy applicable to the Federal agency under the 
        jurisdiction of the individual that meets the requirements of 
        the guidelines referred to in subsection (a), and take such 
        action as is necessary to ensure that the policy is carried out 
        in the manner specified in the guidelines.
            (2) Legislative branch.--As soon as is practicable after 
        the date of issuance of the guidelines referred to in 
        subsection (a), the following entities and individuals shall 
        adopt a nonsmoking policy that meets the requirements of the 
        guidelines referred to in subsection (a), and take such action 
        as is necessary to ensure that the policy is carried out in the 
        manner specified in the guidelines:
                    (A) With respect to the House of Representatives 
                (including any office space or buildings of the House 
                of Representatives), the House Office Building 
                Commission.
                    (B) With respect to the Senate (including any 
                office space or buildings of the Senate), the Committee 
                on Rules and Administration of the Senate.
                    (C) With respect to any other area occupied or used 
                by a Federal agency of the legislative branch, the 
                Architect of the Capitol.
            (3) Certification for executive agencies.--The 
        Administrator of General Services, in consultation with the 
        Administrator, shall review each nonsmoking policy adopted by 
        the head of an Executive agency and shall certify those 
        policies that meet the requirements of the guidelines referred 
        to in subsection (a). In carrying out the certification, the 
        Administrator of General Services shall use a procedure and 
        apply criteria that the Administrator shall establish. Except 
        as provided in subsection (c), if a policy does not meet the 
        requirements of the guidelines, the Administrator of General 
        Services shall--
                    (A) in a written communication, advise the head of 
                the Executive agency concerning modifications of the 
                policy to meet the requirements; and
                    (B) publish the communication in the Federal 
                Register.
    (c) Waivers.--
            (1) Executive agencies.--The head of an Executive agency 
        may publicly petition the Administrator of General Services for 
        a waiver from instituting or enforcing a nonsmoking policy (or 
        policy requirement) under the guidelines issued pursuant to 
        subsection (a). The Administrator of General Services may waive 
        the requirement if, after consultation with the Administrator, 
        the Administrator of General Services determines that--
                    (A) unusual extenuating circumstances prevent the 
                head of the Federal agency from enforcing the policy 
                (or a requirement under the policy) (including a case 
                in which the Federal agency shares space in an indoor 
                facility with a non-Federal entity and cannot obtain an 
                agreement with the other entity to abide by the 
                nonsmoking policy requirement) and the head of the 
                Executive agency will establish and make a good-faith 
                effort to enforce an alternative nonsmoking policy (or 
                alternative requirement under the policy) that will 
                protect individuals from exposure to environmental 
                tobacco smoke to the maximum extent possible; or
                    (B) the head of the Executive agency will enforce 
                an alternative nonsmoking policy (or alternative 
                requirement under the policy) that will protect 
                individuals from exposure to environmental tobacco 
                smoke to the same degree as the requirement under the 
                guidelines issued pursuant to subsection (a).
            (2) Agencies of the judicial branch.--After consultation 
        with the Administrator, and after providing public notice and 
        reasonable opportunity for public review and comment, the 
        Director of the Administrative Office of the United States 
        Courts may, on the basis of the criteria for a waiver referred 
        to in paragraph (1), make such modifications to the nonsmoking 
        policy required to be carried out pursuant to subsection (b) as 
        the Director determines to be necessary. The Director may not 
        make any modification that violates the criteria for a waiver 
        under paragraph (1).
            (3) Agencies of the legislative branch.--After consultation 
        with the Administrator, and after providing public notice and 
        reasonable opportunity for public review and comment, the 
        appropriate entity or individual referred to in subparagraphs 
        (A) through (C) of subsection (b)(2) may, on the basis of the 
        criteria for a waiver referred to in paragraph (1), make such 
        modifications to the nonsmoking policy required to be carried 
        out pursuant to subsection (b) as the entity or individual 
        determines to be necessary. The entity or individual may not 
        make any modification that violates the criteria for a waiver 
        under paragraph (1).
    (d) Collective Bargaining Agreements.--
            (1) In general.--In a Federal agency in which a labor 
        organization has been accorded recognition as a bargaining unit 
        pursuant to chapter 71 of title 5, United States Code, the 
        Federal agency shall engage in collective bargaining pursuant 
        to section 7114 of title 5, United States Code, to ensure the 
        implementation of the requirements of this section that affect 
        work areas predominately occupied by the employees represented 
        by the labor organization by the date of the adoption, pursuant 
        to this section, of a nonsmoking policy applicable to the 
        Federal agency.
            (2) Exemption.--
                    (A) In general.--If, on the date of enactment of 
                this Act--
                            (i) a bargaining unit referred to in 
                        paragraph (1) has in effect a collective 
                        bargaining agreement with respect to which a 
                        Federal agency is a party; and
                            (ii) the collective bargaining agreement 
                        referred to in clause (i) includes provisions 
                        relating to smoking privileges that are in 
                        violation of the requirements of this section,
                the head of the Federal agency may exempt work areas 
                predominately occupied by the employees subject to the 
                collective bargaining agreement from the nonsmoking 
                policy that the Federal agency is required to be 
                carried out under subsection (b).
                    (B) Termination of exemption.--
                            (i) In general.--An exemption referred to 
                        in subparagraph (A) shall terminate on the 
                        earlier of--
                                    (I) the first expiration date 
                                (after the date of enactment of this 
                                Act) of the collecting bargaining 
                                agreement containing the provisions 
                                relating to smoking privileges; or
                                    (II) the date that is 1 year after 
                                the date of issuance of the guidelines.
                            (ii) Implementation of nonsmoking policy 
                        after termination date.-- By the applicable 
                        date specified in clause (i)(II), the head of 
                        each Federal agency shall be required to 
                        enforce a nonsmoking policy that meets the 
                        requirements of the guidelines issued under 
                        subsection (a) in each work area under the 
                        jurisdiction of the head of the Federal agency, 
                        notwithstanding any collective bargaining 
                        agreement that contains provisions that are 
                        less restrictive than the nonsmoking policy.

SEC. 5. TECHNICAL ASSISTANCE AND OUTREACH ACTIVITIES.

    (a) Technical Assistance.--The Administrator and the Secretary 
shall provide technical assistance to the heads of Federal agencies and 
other persons who request technical assistance. The technical 
assistance shall include information--
            (1) on smoking cessation programs for employees; and
            (2) to assist in compliance with the requirements of this 
        Act.
    (b) Outreach Activities.--
            (1) In general.--The Administrator, in consultation with 
        the Secretary, shall establish an outreach program to inform 
        the public concerning the dangers of environmental tobacco 
        smoke. As part of the outreach program, the Administrator and 
        the Secretary shall make available to the general public 
        brochures and other educational materials. In establishing the 
        programs under this paragraph, the Administrator and the 
        Secretary shall cooperate to maximize the sharing of 
        information and resources.
            (2) Environmental tobacco smoke advisory office.--
                    (A) In general.--The Administrator shall establish 
                within the Office of Radiation and Indoor Air of the 
                Environmental Protection Agency an office, to be known 
                as the ``Environmental Tobacco Smoke Advisory Office''. 
                The Administrator shall appoint a Director to carry out 
                the functions of the office.
                    (B) Duties of the director.--The Director shall--
                            (i) provide information on smoking 
                        cessation;
                            (ii) provide information to assist in 
                        compliance with the requirements of this Act;
                            (iii) provide information on the dangers of 
                        environmental tobacco smoke to any person who 
                        requests the information;
                            (iv) establish a telephone hotline to 
                        provide information on the dangers of 
                        environmental tobacco smoke; and
                            (v) carry out any other function of the 
                        Office that the Administrator determines to be 
                        appropriate.

SEC. 6. FEDERALLY FUNDED PROGRAMS.

    (a) In General.--Notwithstanding any other provision of law, each 
person who uses Federal funds to provide children's services shall 
establish and make a good-faith effort to enforce a nonsmoking policy 
that meets or exceeds the requirements of subsection (b).
    (b) Nonsmoking Policy.--
            (1) General requirements.--A nonsmoking policy meets the 
        requirements of this subsection if the policy--
                    (A) is consistent with the guidelines issued under 
                section 4(a);
                    (B) prohibits smoking in each portion of an indoor 
                facility used in connection with the provision of 
                services directly to children; and
                    (C) where appropriate, requires that signs stating 
                that smoking is not permitted be posted in each indoor 
                facility to communicate the policy.
            (2) Permissible features.--A nonsmoking policy that meets 
        the requirements of this subsection may allow smoking in those 
        portions of the facility--
                    (A) in which services are not normally provided 
                directly to children; and
                    (B) that are ventilated separately from those 
                portions of the facility in which services are normally 
                provided directly to children.
    (c) Waiver.--
            (1) In general.--A person described in subsection (a) may 
        publicly petition the head of the Federal agency from which the 
        person receives Federal funds (including financial assistance) 
        for a waiver from any or all of the requirements of subsection 
        (b).
            (2) Conditions for granting a waiver.--Except as provided 
        in paragraph (3), the head of the Federal agency may grant a 
        waiver only--
                    (A) after consulting with the Administrator, and 
                receiving the concurrence of the Administrator;
                    (B) after giving an opportunity for public hearing 
                (at the main office of the Federal agency or at any 
                regional office of the agency) and comment; and
                    (C) if the person requesting the waiver provides 
                assurances that are satisfactory to the head of the 
                Federal agency (with the concurrence of the 
                Administrator) that--
                            (i) unusual extenuating circumstances 
                        prevent the person from establishing or 
                        enforcing the nonsmoking policy (or a 
                        requirement under the policy) referred to in 
                        subsection (b) (including a case in which the 
                        person shares space in an indoor facility with 
                        another entity and cannot obtain an agreement 
                        with the other entity to abide by the 
                        nonsmoking policy requirement) and the person 
                        will establish and make a good-faith effort to 
                        enforce an alternative nonsmoking policy (or 
                        alternative requirement under the policy) that 
                        will protect children from exposure to 
                        environmental tobacco smoke to the maximum 
                        extent possible; or
                            (ii) the person requesting the waiver will 
                        establish and make a good-faith effort to 
                        enforce an alternative nonsmoking policy (or 
                        alternative requirement under the policy) that 
                        will protect children from exposure to 
                        environmental tobacco smoke to the same degree 
                        as the policy (or requirement) under subsection 
                        (b).
            (3) Special waiver.--
                    (A) In general.--On receipt of an application, the 
                head of the Federal agency may grant a special waiver 
                to a person described in subsection (a) who employs 
                individuals who are members of a labor organization and 
                provide children's services pursuant to a collective 
                bargaining agreement that--
                            (i) took effect before the date of 
                        enactment of this Act; and
                            (ii) includes provisions relating to 
                        smoking privileges that are in violation of the 
                        requirements of this section.
                    (B) Termination of waiver.--A special waiver 
                granted under this paragraph shall terminate on the 
                earlier of--
                            (i) the first expiration date (after the 
                        date of enactment of this Act) of the 
                        collective bargaining agreement containing the 
                        provisions relating to smoking privileges; or
                            (ii) the date that is 1 year after the date 
                        specified in subsection (f).
    (d) Civil Penalties.--
            (1) In general.--Any person subject to the requirements of 
        this section who fails to comply with the requirements shall be 
        liable to the United States for a civil penalty in an amount 
        not to exceed $1,000 for each violation, but in no case shall 
        the amount be in excess of the amount of Federal funds received 
        by the person for the provision of children's services for the 
        fiscal year in which the violation occurred. Each day a 
        violation continues shall constitute a separate violation.
            (2) Assessment.--A civil penalty for a violation of this 
        section shall be assessed by the head of the Federal agency 
        that provided Federal funds (including financial assistance) to 
        the person (or if the head of the Federal agency does not have 
        the authority to issue an order, the appropriate official) by 
        an order made on the record after opportunity for a hearing in 
        accordance with section 554 of title 5, United States Code. 
        Before issuing the order, the head of the Federal agency (or 
        the appropriate official) shall--
                    (A) give written notice to the person to be 
                assessed a civil penalty under the order of the 
                proposal to issue the order; and
                    (B) provide the person an opportunity to request, 
                not later than 15 days after the date of receipt of the 
                notice, a hearing on the order.
            (3) Amount of civil penalty.--In determining the amount of 
        a civil penalty under this subsection, the head of the Federal 
        agency (or the appropriate official) shall take into account--
                    (A) the nature, circumstances, extent, and gravity 
                of the violation;
                    (B) with respect to the violator, the ability to 
                pay, the effect of the penalty on the ability to 
                continue operation, any prior history of the same kind 
                of violation, the degree of culpability, and a 
                demonstration of willingness to comply with the 
                requirements of this Act; and
                    (C) such other matters as justice may require.
            (4) Modification.--The head of the Federal agency (or the 
        appropriate official) may compromise, modify, or remit, with or 
        without conditions, any civil penalty that may be imposed under 
        this subsection. The amount of the penalty as finally 
        determined or agreed upon in compromise may be deducted from 
        any sums that the United States owes to the person against whom 
        the penalty is assessed.
            (5) Petition for review.--A person who has requested a 
        hearing concerning the assessment of a penalty pursuant to 
        paragraph (2) and is aggrieved by an order assessing a civil 
        penalty may file a petition for judicial review of the order 
        with the United States Court of Appeals for the District of 
        Columbia Circuit or for any other circuit in which the person 
        resides or transacts business. The petition may only be filed 
        during the 30-day period beginning on the date of issuance of 
        the order making the assessment.
            (6) Failure to pay.--If a person fails to pay an assessment 
        of a civil penalty--
                    (A) after the order making the assessment has 
                become a final order and without filing a petition for 
                judicial review in accordance with paragraph (5); or
                    (B) after a court has entered a final judgment in 
                favor of the head of the Federal agency (or appropriate 
                official),
        the Attorney General shall recover the amount assessed (plus 
        interest at currently prevailing rates from the last day of the 
        30-day period referred to in paragraph (5) or the date of the 
        final judgment, as the case may be) in an action brought in an 
        appropriate district court of the United States. In the action, 
        the validity, amount, and appropriateness of the penalty shall 
        not be subject to review.
    (e) Exemption.--This section shall not apply to a person who 
provides children's services who--
            (1) has attained the age of 18;
            (2) provides children's services--
                    (A) in a private residence; and
                    (B) only to children who are, by affinity or 
                consanguinity, or by court decree, a grandchild, niece, 
                or nephew of the provider; and
            (3) is registered and complies with any State requirements 
        that govern the children's services provided.
    (f) Effective Date.--This section shall take effect on the first 
day of the first fiscal year beginning after the date of enactment of 
this Act.

SEC. 7. REPORT BY THE ADMINISTRATOR.

    Not later than 2 years after the date of enactment of this Act, the 
Administrator shall submit a report to Congress that includes--
            (1) information concerning the degree of compliance with 
        this Act; and
            (2) an assessment of the legal status of smoking in public 
        places.

SEC. 8. PREEMPTION.

    Nothing in this Act is intended to preempt any provision of law of 
a State or political subdivision of a State that is more restrictive 
than a provision of this Act.

                                 <all>

HR 710 SC----2
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