[Federal Register Volume 73, Number 245 (Friday, December 19, 2008)]
[Rules and Regulations]
[Pages 77517-77519]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-30180]


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GENERAL SERVICES ADMINISTRATION

41 CFR Part 102-74

[FMR Amendment 2008-08; FMR Case 2008-102-3; Docket 2008-0001; Sequence 
5]
RIN 3090-AI78


Federal Management Regulation; FMR Case 2008-102-3, Real Property 
Policies Update - Smoking Restrictions

AGENCY:  Office of Governmentwide Policy, General Services 
Administration (GSA).

ACTION:  Final rule.

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[[Page 77518]]

SUMMARY:  The General Services Administration is amending the Federal 
Management Regulation (FMR) to revise the restrictions on the smoking 
of tobacco products in leased or owned space under the jurisdiction, 
custody, or control of the Administrator of General Services. This 
final rule cancels and replaces in its entirety 41 CFR Sec. Sec.  102-
74.315 through 102-74.350 including the insertion of a new Sec.  102-
74.351.

DATES: Effective Date: December 19, 2008.

FOR FURTHER INFORMATION CONTACT:  Mr. Stanley C. Langfeld, Director, 
Regulations Management Division, Office of Governmentwide Policy, 
General Services Administration, at (202) 501-1737, or by e-mail at 
[email protected] for clarification of content. For information 
pertaining to status or publication schedules, contact the Regulatory 
Secretariat, Room 4041, GS Building, Washington, DC 20405, (202) 501-
4755. Please cite FMR Amendment 2008-08, FMR Case 2008-102-3.

SUPPLEMENTARY INFORMATION:

A. Background

    1. On August 9, 1997, President Clinton signed Executive Order 
(E.O.) 13058, entitled ``Protecting Federal Employees and the Public 
From Exposure to Tobacco Smoke in the Federal Workplace,'' to establish 
a smoke-free environment for Federal employees and members of the 
public visiting or using Federal facilities (62 FR 43451, August 13, 
1997).
    2. On October 20, 1997, the U.S. General Services Administration 
(GSA) issued GSA Bulletin FPMR D-245, ``Protecting Federal Employees 
and the Public from Exposure to Tobacco Smoke in the Federal 
Workplace'' (62 FR 54461). In accordance with the requirements of E.O. 
13058, GSA Bulletin FPMR D-245 prohibited the smoking of tobacco 
products in all interior space owned, rented or leased by the executive 
branch of the Federal Government, except in specially-equipped 
designated smoking areas, outdoor areas in front of air intake ducts 
and certain other residential and non-Federal occupied space. The 
bulletin also required the heads of executive agencies to evaluate the 
need to restrict smoking in courtyards and near doorways.
    3. Studies conducted since the issuance of GSA Bulletin FPMR D-245 
have concluded that cigarette smoking is the number one preventable 
cause of morbidity and premature mortality worldwide. Studies also have 
shown that the harmful effects of smoking are not confined solely to 
the smoker, but extend to co-workers and members of the general public 
who are exposed to secondhand smoke as well. Recognition of these facts 
is evidenced by the stricter laws on smoking enacted by several states 
over the past 10 years. Twenty-six states have banned smoking entirely 
in all of their State government buildings and 19 have banned smoking 
in all private work places.
    4. Executive Order 13058 encourages the heads of executive agencies 
to evaluate the need to further restrict smoking at doorways and in 
courtyards under executive branch control and authorizes the agency 
heads to restrict smoking in these areas in light of this evaluation.
    5. The proposed changes to the current smoking policy may affect 
conditions of employment for employees. Where there is an exclusive 
representative for the employees, executive branch agencies will be 
required to meet their collective bargaining obligations under the 
Federal Service Labor-Management Relations Act, as amended, 5 U.S.C. 
Ch. 71, Labor-Management Relations, before the proposed revisions to 
the existing smoking policy can be implemented.

B. Executive Order 12866

    The General Services Administration (GSA) has determined that this 
final rule is not a significant regulatory action for the purposes of 
Executive Order 12866.

C. Regulatory Flexibility Act

    This final rule is not required to be published in the Federal 
Register for comment. Therefore, the Regulatory Flexibility Act does 
not apply.

D. Paperwork Reduction Act

    The Paperwork Reduction Act does not apply because the changes to 
the FMR do not impose information collection requirements that require 
the approval of the Office of Management and Budget under 44 U.S.C. 
3501, et seq.

E. Small Business Regulatory Enforcement Fairness Act

    This final rule is exempt from Congressional review under 5 U.S.C. 
801 since it relates solely to agency management and personnel.

List of Subjects in 41 CFR Part 102-74

    Facility Management.

    Dated: December 8, 2008
James A. Williams,
Acting Administrator of General Services.

0
For the reasons set forth in the preamble, GSA amends 41 CFR part 102-
74 of Subchapter C as set forth below:

PART 102-74--FACILITY MANAGEMENT

0
1. The authority citation for 41 CFR part 102-74 continues to read as 
follows:

    Authority:  40 U.S.C. 121(c).
0
2. Amend Subpart B of part 102-74 by revising Sec. Sec.  102.74-315 
through 102.74-350 and adding new Sec.  102.74-351 to read as follows:


Sec.  102-74.315  What is the smoking policy for interior space in 
Federal facilities?

    Pursuant to Executive Order 13058, ``Protecting Federal Employees 
and the Public From Exposure to Tobacco Smoke in the Federal 
Workplace'' (3 CFR, 1997 Comp., p. 216), it is the policy of the 
executive branch to establish a smoke-free environment for Federal 
employees and members of the public visiting or using Federal 
facilities. The smoking of tobacco products is prohibited in all 
interior space owned, rented or leased by the executive branch of the 
Federal Government.


Sec.  102-74.320  Are there any exceptions to the smoking policy for 
interior space in Federal facilities?

    Yes, the smoking policy does not apply in--
    (a) Any residential accommodation for persons voluntarily or 
involuntarily residing, on a temporary or long-term basis, in a 
building owned, leased or rented by the Federal Government;
    (b) Portions of Federally owned buildings leased, rented or 
otherwise provided in their entirety to non-Federal parties;
    (c) Places of employment in the private sector or in other non-
Federal Governmental units that serve as the permanent or intermittent 
duty station of one or more Federal employees; and
    (d) Instances where an agency head establishes limited and narrow 
exceptions that are necessary to accomplish agency missions. Such 
exceptions must be in writing, approved by the agency head and, to the 
fullest extent possible, provide protection of nonsmokers from exposure 
to environmental tobacco smoke. Authority to establish such exceptions 
may not be delegated.


Sec.  102-74.325  Are designated smoking areas authorized in interior 
space?

    No, unless specifically established by an agency head as provided 
by Sec.  102-74.320(d). A previous exception for designated smoking 
areas is being eliminated. All designated interior

[[Page 77519]]

smoking areas will be closed effective June 19, 2009. This six-month 
phase-in period is designed to establish a fixed but reasonable time 
for implementing this policy change. This phase-in period will provide 
agencies with time to comply with their obligations under the Federal 
Service Labor-Management Relations Act, as amended, 5 U.S.C. Ch. 71, 
Labor-Management Relations, in those circumstances where there is an 
exclusive union representative for the employees.


Sec.  102-74.330  What smoking restrictions apply to outside areas 
under Executive branch control?

    Effective June 19, 2009, smoking is prohibited in courtyards and 
within twenty-five (25) feet of doorways and air intake ducts on 
outdoor space under the jurisdiction, custody or control of GSA. This 
six-month phase-in period is designed to establish a fixed but 
reasonable time for implementing this policy change. This phase-in 
period will provide agencies with time to comply with their obligations 
under the Federal Service Labor-Management Relations Act, as amended, 5 
U.S.C. Ch. 71, Labor-Management Relations, in those circumstances where 
there is an exclusive union representative for the employees.


Sec.  102-74.335  Who is responsible for furnishing and installing 
signs concerning smoking restrictions in the building, and in and 
around building entrance doorways and air intake ducts?

    Federal agency building managers are responsible for furnishing and 
installing suitable, uniform signs in the building, and in and around 
building entrance doorways and air intake ducts, reading ``No 
Smoking,'' ``No Smoking Except in Designated Areas,'' ``No Smoking 
Within 25 Feet of Doorway,'' or ``No Smoking Within 25 Feet of Air 
Duct,'' as applicable.


Sec.  102-74.340  Who is responsible for monitoring and controlling 
areas designated for smoking by an agency head and for identifying 
those areas with proper signage?

    Agency heads are responsible for monitoring and controlling areas 
designated by them under Sec.  102-74.320(d) for smoking and 
identifying these areas with proper signage. Suitable, uniform signs 
reading ``Designated Smoking Area'' must be furnished and installed by 
the occupant agency.


Sec.  102-74.345  Does the smoking policy in this part apply to the 
judicial branch?

    This smoking policy applies to the judicial branch when it occupies 
space in buildings controlled by the executive branch. Furthermore, the 
Federal Chief Judge in a local jurisdiction may be deemed to be 
comparable to an agency head and may establish exceptions for Federal 
jurors and others as provided in Sec.  102-74.320(d).


Sec.  102-74.350  Are agencies required to meet their obligations under 
the Federal Service Labor-Management Relations Act where there is an 
exclusive representative for the employees prior to implementing this 
smoking policy?

    Yes. Where there is an exclusive representative for the employees, 
Federal agencies must meet their obligations under the Federal Service 
Labor-Management Relations Act, 5 U.S.C. Ch. 71, Labor-Management 
Relations, prior to implementing this section. In all other cases, 
agencies may consult directly with employees.


Sec.  102-74.351  If a state or local government has a smoke-free 
ordinance that is more strict than the smoking policy for Federal 
facilities, does the state or local law or Federal policy control?

    The answer depends on whether the facility is Federally owned or 
privately owned. If the facility is Federally owned, then Federal 
preemption principles apply and the Federal policy controls. If the 
facility is privately owned, then Federal tenants are subject to the 
provisions of the state or local ordinance, even in the Federally 
leased space, if the state or local restrictions are more stringent 
than the Federal policy.
[FR Doc. E8-30180 Filed 12-19-08; 8:45 am]
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