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 Envi-
ronmental 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 En-
ergy 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. CON-
YERS, 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 Agen-
cy 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 Representa-
tives 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 ciga-
rettes, 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 respon-
sible for acute and chronic respiratory problems and
other health impacts in sensitive populations (includ-
ing children);
(5) the health risks posed by environmental to-
bacco smoke exceed the risks posed by many envi-
ronmental pollutants regulated by the Environ-
mental Protection Agency; and
(6) according to information released by the
Environmental Protection Agency, environmental to-
bacco 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 ‘‘Adminis-
trator’’ means the Administrator of the Environ-
mental Protection Agency.
(2) CHILDREN.—The term ‘‘children’’ means
individuals who have not attained the age of 18.
(3) CHILDREN’S
SERVICES.—The term ‘‘chil-
dren’s services’’ means—
(A) direct health services routinely pro-
vided to children; or
(B) any other direct services routinely pro-
vided primarily to children, including edu-
cational 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 Execu-
tive Office of the President, any military depart-
ment, any court of the United States, the Adminis-
trative Office of the United States Courts, the Li-
brary of Congress, the Botanic Garden, the Govern-
ment Printing Office, the Congressional Budget Of-
fice, 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 ju-
dicial 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 build-
ing 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 
non-
smoking 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 Adminis-
trator) 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 Of-
fice of the United States Courts shall adopt a non-
smoking policy applicable to the Federal agency
under the jurisdiction of the individual that meets
the requirements of the guidelines referred to in sub-
section (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 prac-
ticable 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 nec-
essary to ensure that the policy is carried out in the
manner specified in the guidelines:
(A) With respect to the House of Rep-
resentatives (including any office space or build-
ings 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 occu-
pied or used by a Federal agency of the legisla-
tive branch, the Architect of the Capitol.
(3) CERTIFICATION
FOR
EXECUTIVE
AGEN-
CIES.—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 modi-
fications of the policy to meet the requirements;
and
(B) publish the communication in the Fed-
eral Register.
(c) WAIVERS.—
(1) EXECUTIVE
AGENCIES.—The head of an
Executive agency may publicly petition the Adminis-
trator of General Services for a waiver from institut-
ing or enforcing a nonsmoking policy (or policy re-
quirement) under the guidelines issued pursuant to
subsection (a). The Administrator of General Serv-
ices may waive the requirement if, after consultation
with the Administrator, the Administrator of Gen-
eral 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 Fed-
eral 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 al-
ternative requirement under the policy) that
will protect individuals from exposure to envi-
ronmental 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 re-
ferred to in paragraph (1), make such modifications
to the nonsmoking policy required to be carried out
pursuant to subsection (b) as the Director deter-
mines 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 en-
tity 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 pol-
icy required to be carried out pursuant to subsection
(b) as the entity or individual determines to be nec-
essary. 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 rec-
ognition as a bargaining unit pursuant to chapter 71
of title 5, United States Code, the Federal agency
shall engage in collective bargaining pursuant to sec-
tion 7114 of title 5, United States Code, to ensure
the implementation of the requirements of this sec-
tion that affect work areas predominately occupied
by the employees represented by the labor organiza-
tion 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 en-
actment 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 agree-
ment referred to in clause (i) includes pro-
visions 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 em-
ployees 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 re-
ferred to in subparagraph (A) shall termi-
nate 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
NON-
SMOKING
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 non-
smoking policy that meets the require-
ments of the guidelines issued under sub-
section (a) in each work area under the ju-
risdiction of the head of the Federal agen-
cy, notwithstanding any collective bargain-
ing agreement that contains provisions
that are less restrictive than the non-
smoking policy.
SEC. 5. TECHNICAL ASSISTANCE AND OUTREACH ACTIVI-
TIES.
(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 employ-
ees; and
(2) to assist in compliance with the require-
ments of this Act.
(b) OUTREACH ACTIVITIES.—
(1) IN GENERAL.—The Administrator, in con-
sultation with the Secretary, shall establish an out-
reach 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 estab-
lishing the programs under this paragraph, the Ad-
ministrator and the Secretary shall cooperate to
maximize the sharing of information and resources.
(2) ENVIRONMENTAL
TOBACCO
SMOKE
ADVI-
SORY 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 ‘‘Environ-
mental Tobacco Smoke Advisory Office’’. The
Administrator shall appoint a Director to carry
out the functions of the office.
(B) DUTIES OF THE DIRECTOR.—The Di-
rector 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 dan-
gers of environmental tobacco smoke to
any person who requests the information;
(iv) establish a telephone hotline to
provide information on the dangers of envi-
ronmental 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 provi-
sion 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 ex-
ceeds 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 pro-
vided 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 sub-
section (a) may publicly petition the head of the
Federal agency from which the person receives Fed-
eral funds (including financial assistance) for a
waiver from any or all of the requirements of sub-
section (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 Adminis-
trator, and receiving the concurrence of the
Administrator;
(B) after giving an opportunity for public
hearing (at the main office of the Federal agen-
cy 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 concur-
rence of the Administrator) that—
(i) unusual extenuating circumstances
prevent the person from establishing or en-
forcing the nonsmoking policy (or a re-
quirement under the policy) referred to in
subsection (b) (including a case in which
the person shares space in an indoor facil-
ity with another entity and cannot obtain
an agreement with the other entity to
abide by the nonsmoking policy require-
ment) and the person will establish and
make a good-faith effort to enforce an al-
ternative nonsmoking policy (or alternative
requirement under the policy) that will
protect children from exposure to environ-
mental tobacco smoke to the maximum ex-
tent possible; or
(ii) the person requesting the waiver
will establish and make a good-faith effort
to enforce an alternative nonsmoking pol-
icy (or alternative requirement under the
policy) that will protect children from ex-
posure to environmental tobacco smoke to
the same degree as the policy (or require-
ment) under subsection (b).
(3) SPECIAL WAIVER.—
(A) IN GENERAL.—On receipt of an appli-
cation, 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 bar-
gaining agreement that—
(i) took effect before the date of en-
actment 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 ter-
minate on the earlier of—
(i) the first expiration date (after the
date of enactment of this Act) of the col-
lective bargaining agreement containing
the provisions relating to smoking privi-
leges; 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 oc-
curred. Each day a violation continues shall con-
stitute a separate violation.
(2) ASSESSMENT.—A civil penalty for a viola-
tion of this section shall be assessed by the head of
the Federal agency that provided Federal funds (in-
cluding financial assistance) to the person (or if the
head of the Federal agency does not have the au-
thority 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 offi-
cial) 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 determin-
ing the amount of a civil penalty under this sub-
section, the head of the Federal agency (or the ap-
propriate 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 sub-
section. The amount of the penalty as finally deter-
mined or agreed upon in compromise may be de-
ducted 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 peti-
tion 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 judg-
ment in favor of the head of the Federal agency
(or appropriate official),
the Attorney General shall recover the amount as-
sessed (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 ap-
propriate 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 pro-
vided.
(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 com-
pliance with this Act; and
(2) an assessment of the legal status of smok-
ing in public places.
SEC. 8. PREEMPTION.
Nothing in this Act is intended to preempt any provi-
sion of law of a State or political subdivision of a State
that is more restrictive than a provision of this Act.
Æ
HR 710 SC——2