[Congressional Bills 103th Congress]
[From the U.S. Government Publishing Office]
[S. 261 Introduced in Senate (IS)]

103d CONGRESS
  1st Session
                                 S. 261

To protect children from exposure to environmental tobacco smoke in the 
       provision of children's services, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

             January 28 (legislative day, January 5), 1993

 Mr. Lautenberg (for himself and Mr. Harkin) introduced the following 
 bill; which was read twice and referred to the Committee on Labor and 
                            Human Resources

_______________________________________________________________________

                                 A BILL


 
To protect children from exposure to environmental tobacco smoke in the 
       provision of children's services, 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)(i) direct health services routinely provided to 
                children; or
                    (ii) any other direct services routinely provided 
                primarily to children, including educational services; 
                and
                    (B) that are funded (in whole or in part) by 
                Federal funds.
            (4) Secretary.--The term ``Secretary'' means the Secretary 
        of Health and Human Services.

SEC. 4. NONSMOKING POLICY FOR CHILDREN'S SERVICES.

    (a) 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 indoor facility 
where children's services are provided.
    (b) Contents of Guidelines.--A nonsmoking policy that meets the 
requirements of the guidelines shall, at a minimum, prohibit smoking in 
each portion of an indoor facility where children's services are 
provided that is not ventilated separately (as defined by the 
Administrator) from other portions of the facility.

SEC. 5. TECHNICAL ASSISTANCE AND OUTREACH ACTIVITIES.

    (a) Technical Assistance.--The Administrator and the Secretary 
shall provide technical assistance to persons who provide children's 
services 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.

SEC. 6. FEDERALLY FUNDED PROGRAMS.

    (a) In General.--Notwithstanding any other provision of law, each 
person who provides 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.--(A) 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 fiscal year in which the violation 
        occurred for the provision of children's services.
            (B) 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.

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