E8-30180. 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.

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 §§ 102-74.315 through 102-74.350 including the insertion of a new § 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 [phone], or by e-mail at [e-mail] for clarification of content. For information pertaining to status or publication schedules, contact the Regulatory Secretariat, Room 4041, GS Building, Washington, DC 20405, [phone]. 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.

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

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

Authority: 40 U.S.C. 121(c).

2. Amend Subpart B of part 102-74 by revising §§ 102.74-315 through 102.74-350 and adding new § 102.74-351 to read as follows:

§ 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.

§ 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.

§ 102-74.325

Are designated smoking areas authorized in interior space?

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

§ 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.

§ 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.

§ 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 § 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.

§ 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 § 102-74.320(d).

§ 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.

§ 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.