SPEAKERS CONTENTS INSERTS
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H.R. 2118, A BILL TO PROHIBIT SMOKING IN FEDERAL BUILDINGS
PLEASE NOTE: The following transcript is a portion of the official hearing record of the Committee on Transportation and Infrastructure. Additional material pertinent to this transcript may be found on the web site of the Committee at [http://www.house.gov/transportation]. Complete hearing records are available for review at the Committee offices and also may be purchased at the U.S. Government Printing Office.
PUBLIC BUILDINGS AND ECONOMIC DEVELOPMENT
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TRANSPORTATION AND INFRASTRUCTURE
HOUSE OF REPRESENTATIVES
ONE HUNDRED FIFTH CONGRESS
OCTOBER 23, 1997
Printed for the use of the
Committee on Transportation and Infrastructure
COMMITTEE ON TRANSPORTATION AND INFRASTUCTURE
BUD SHUSTER, Pennsylvania, Chairman
DON YOUNG, Alaska
THOMAS E. PETRI, Wisconsin
SHERWOOD L. BOEHLERT, New York
HERBERT H. BATEMAN, Virginia
HOWARD COBLE, North Carolina
JOHN J. DUNCAN, Jr., Tennessee
Page 3 PREV PAGE TOP OF DOCTHOMAS W. EWING, Illinois
WAYNE T. GILCHREST, Maryland
JAY KIM, California
STEPHEN HORN, California
BOB FRANKS, New Jersey
JOHN L. MICA, Florida
JACK QUINN, New York
TILLIE K. FOWLER, Florida
VERNON J. EHLERS, Michigan
SPENCER BACHUS, Alabama
STEVEN C. LaTOURETTE, Ohio
SUE W. KELLY, New York
RAY LaHOOD, Illinois
RICHARD H. BAKER, Louisiana
FRANK RIGGS, California
CHARLES F. BASS, New Hampshire
ROBERT W. NEY, Ohio
JACK METCALF, Washington
JO ANN EMERSON, Missouri
EDWARD A. PEASE, Indiana
ROY BLUNT, Missouri
JOSEPH R. PITTS, Pennsylvania
ASA HUTCHINSON, Arkansas
MERRILL COOK, Utah
JOHN COOKSEY, Louisiana
Page 4 PREV PAGE TOP OF DOCJOHN R. THUNE, South Dakota
CHARLES W. ''CHIP'' PICKERING, Jr., Mississippi
KAY GRANGER, Texas
JON D. FOX, Pennsylvania
THOMAS M. DAVIS, Virginia
FRANK A. LoBIONDO, New Jersey
J.C. WATTS, Jr., Oklahoma
JERRY MORAN, Kansas
VITO FOSSELLA, New York
JAMES L. OBERSTAR, Minnesota
NICK J. RAHALL II, West Virginia
ROBERT A. BORSKI, Pennsylvania
WILLIAM O. LIPINSKI, Illinois
ROBERT E. WISE, Jr., West Virginia
JAMES A. TRAFICANT, Jr., Ohio
PETER A. DeFAZIO, Oregon
BOB CLEMENT, Tennessee
JERRY F. COSTELLO, Illinois
GLENN POSHARD, Illinois
ELEANOR HOLMES NORTON, District of Columbia
JERROLD NADLER, New York
PAT DANNER, Missouri
ROBERT MENENDEZ, New Jersey
JAMES E. CLYBURN, South Carolina
Page 5 PREV PAGE TOP OF DOCCORRINE BROWN, Florida
JAMES A. BARCIA, Michigan
BOB FILNER, California
EDDIE BERNICE JOHNSON, Texas
FRANK MASCARA, Pennsylvania
GENE TAYLOR, Mississippi
JUANITA MILLENDER-McDONALD, California
ELIJAH E. CUMMINGS, Maryland
EARL BLUMENAUER, Oregon
MAX SANDLIN, Texas
ELLEN O. TAUSCHER, California
BILL PASCRELL, Jr., New Jersey
JAY W. JOHNSON, Wisconsin
LEONARD L. BOSWELL, Iowa
JAMES P. McGOVERN, Massachusetts
TIM HOLDEN, Pennsylvania
NICK LAMPSON, Texas
Subcommittee on Public Buildings and Economic Development
JAY KIM, California, Chairman
JOHN COOKSEY, Louisiana, Vice Chairman
JOHN J. DUNCAN, Jr., Tennessee
STEVEN C. LaTOURETTE, Ohio
THOMAS M. DAVIS, Virginia
Page 6 PREV PAGE TOP OF DOCBUD SHUSTER, Pennsylvania
JAMES A. TRAFICANT, Jr., Ohio
ELEANOR HOLMES NORTON, District of Columbia
TIM HOLDEN, Pennsylvania
NICK LAMPSON, Texas
JAMES L. OBERSTAR, Minnesota
Bibb, David L., Deputy Associate Administrator, U.S. General Services Administration
Blumenauer, Hon. Earl, a Representative in Congress from Oregon
Garland, W.S. (Bill), President, Building Owners and Managers Association International (BOMA)
Hantman, Alan M., Architect of the Capitol
Page 7 PREV PAGE TOP OF DOCPREPARED STATEMENTS SUBMITTED BY MEMBERS OF CONGRESS
Blumenauer, Hon. Earl, of Oregon
Traficant, Hon. James A., of Ohio
PREPARED STATEMENTS SUBMITTED BY WITNESSES
Bibb, David L
Garland, W.S. (Bill)
Hantman, Alan M
SUBMISSIONS FOR THE RECORD
Bibb, David L., Deputy Associate Administrator, U.S. General Services Administration, responses to questions from Rep. Kim
Garland, W.S. (Bill), President, Building Owners and Mangers Association International (BOMA), responses to questions from Mr. Kim
Hantman, Alan M., Architect of the Capitol:
Responses to questions from Rep. Kim
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Letter from George M. White, FAIA, Former Architect of the Capitol, to Hon. Thomas S. Foley, Former Speaker of the House, June 16, 1993, concerning recommendations with regard to designated smoking areas in the House side of the U.S. Capitol
Selected Floor Plans of House Office Buildings, Indicating Locations of Potential Designated Smoking Rooms
Letter from George M. White, FAIA, Former Architect of the Capitol, to Hon. Thomas S. Foley, Former Speaker of the House, June 16, 1993, concerning recommendations with regard to designated smoking areas in the House Office Buildings
Memorandum, House Office Building Commission Announces No Smoking Policy, May 7, 1993
Letter from Hon. Richard J. Durbin, former Member of Congress from Illinois, to George M. White, FAIA, Former Architect of the Capitol, June 15, 1993
Memorandum to All Members concerning a no smoking policy for the public areas of the House Office Buildings and the House side of the U.S. Capitol, May 19, 1993
White, George M., FAIA, Former Architect of the Capitol, statement on H.R. 881, a bill to ban smoking in all Federal buildings, April 14, 1993
Responses to questions from Rep. Traficant and Delegate Norton
Page 9 PREV PAGE TOP OF DOCADDITION TO THE RECORD
Mecham, Leonidas Ralph, Director, Administrative Office of the United States Courts, letter to Rep. Kim, October 21, 1997
H.R. 2118, A BILL TO PROHIBIT SMOKING IN FEDERAL BUILDINGS
THURSDAY, OCTOBER 23, 1997
U.S. House of Representatives,
Subcommittee on Public Buildings and Economic Development,
Committee on Transportation and Infrastructure,
The subcommittee met, pursuant to notice, at 10:30 a.m., in Room 2253, Rayburn House Office Building, Hon. Jay Kim (Chairman of the subcommittee) presiding.
Mr. KIM. Good morning. The subcommittee will come to order now. I'd like to welcome all of you to this meeting this morning of the Subcommittee on Public Buildings and Economic Development.
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Today we are meeting to receive testimony on H.R. 2118, the bill which would ban smoking in federal buildings, sponsored by my good friend here, ranking Democrat of the subcommittee, Mr. Traficant.
August 9, 1997, I understand the President, by executive order, established a smoke-free environment in federal facilities by prohibiting the smoking of tobacco products in federal buildings.
However, this order exempts all residential accommodations owned, rented, or leased by the executive branch, and the executive order permits designated smoking areas.
H.R. 2118 has a much broader application than the executive order. It would ban all smoking in any indoor portion of a federal building. This encompasses the buildings under the control of United States courts and Congress, including members' personal offices and judges' chambers.
Under 2118 only military installations and Veterans Affairs health care facilities and space used primarily as living quarters by the Federal Government are exempt from this ban.
H.R. 2118 does not provide for any designated smoking areas.
Today we have four witnesses to testify before us today in this matter: Mr. Alan Hantman, the Architect of the CapitolI'd like to welcome youand Hon. Earl Blumenauerhe's not here yetand he's a member of the full committeeand Mr. David Bibb, deputy associate administrator with the General Service Administration.
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I understand you have a son here today?
Mr. BIBB. Yes.
Mr. KIM. Jonathan. 13. Welcome.
And also Bill Garland, president of Building Owners and Managers Association International. I just met you a minute ago. But welcome, all of you today here.
I note that Mr. Bibb is an old hand before this subcommittee. His first appearance was back in 1970 to explain the General Services Administration's leasing program.
Well, good morning, gentlemen. I look forward to your testimony.
Mr. Traficant, do you have any opening statements to make?
Mr. TRAFICANT. Yes. I would, too, like to welcome all of the witnesses that are here today. It's an important issue. And I'd like to also give my best to Becky, the wife of Mr. David Bibb, who is here also with his son, Jonathan, who is here on some student exercise to understand freedom and democracy.
You've come to the right subcommittee.
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Mr. TRAFICANT. We want to welcome you, Becky. And Jonathan, as well.
I'm going to save time and ask that this be included by unanimous consent to the record and just make one little statement.
Mr. KIM. Without objection.
Mr. TRAFICANT. It's a logical, common sense measure. We're going to end up facing workman's compensation costs and a number of complicated, constipated issues over smoking, since Congress has been in receipt of all of the dynamics and problems associated with that phenomenon now.
It would be pretty hard for us, failing to act, to carry on and wage a battle against workers who have suffered from some possible debilitating problems who want and, in fact, make the legal case that it was smoking.
We have a responsibility here. I want to just say this. I want to thank the chairman, who has brought out and had a hearing on my bill. As a Democrat, I think it shows the objectivity of both the chairman, his staff, and the chairman of the entire committee, Mr. Shuster, and I commend him for that.
With that I ask, again, unanimous consent that all of my statement be placed in the record, and I thank you for holding the hearing, Mr. Chairman.
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[The prepared statement of Mr. Traficant follows:]
Mr. KIM. Thank you. I'd like to welcome our first witness, Mr. Hantman.
Mr. HANTMAN. Good morning, Mr. Chairman, Mr. Traficant.
Mr. KIM. Yes.
TESTIMONY OF ALAN M. HANTMAN, ARCHITECT OF THE CAPITOL; HON. EARL BLUMENAUER, A REPRESENTATIVE IN CONGRESS FROM OREGON; DAVID L. BIBB, DEPUTY ASSOCIATE ADMINISTRATOR, U.S. GENERAL SERVICES ADMINISTRATION; AND W.S. (BILL) GARLAND, PRESIDENT, BUILDING OWNERS AND MANAGERS ASSOCIATION INTERNATIONAL (BOMA)
Mr. HANTMAN. I'm pleased to have the opportunity to appear before the subcommittee to provide information on the impact of H.R. 2118 on the office of the Architect of the Capitol.
With your approval, my testimony will be limited to the provisions of subsection 3(b)(3)(C) of the bill, which specifically require the Architect of the Capitol to take certain actions with respect to institution and enforcement of the prohibition.
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In my opinion it would be useful for me to first provide my analysis of the buildings that are not covered by subsection 3(b)(3)(C).
In my opinion the provision does not apply to any district offices of Members. I also assume that the Architect of the Capitol would not have responsibility under the bill for the Capitol, the House Office Buildings, the Senate Office Buildings, including the Senate Child Care Center, the House Page Dorm, in view of the provisions of Subsections 3(b), 3(A) and (B).
With respect to buildings owned or leased by the other establishments of the legislative branch the subsection requires that the Architect of the Capitol ''take such actions as may be necessary to institute and enforce the prohibition contained in subsection (a).
In my opinion it would be difficult for this office to comply with the provision as drafted for a number of reasons, including appropriations, authority, and jurisdiction.
The bill does not state what is necessary for institution of the prohibition. The administrator of the GSA is required to issue regulations as part of such institution, but the bill is silent with respect to the other entities named, including the Architect of the Capitol.
My office could certainly draft regulations. And if funds and staff were available for that purpose we could prepare and post signs regarding the prohibition, and look at architectural implications in lobbies if one needs to remove smoking facilities and urns that are sometimes placed there.
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With respect to enforcement, however, if this has the generally accepted meaning of compelling observance or obedience, the Architect of the Capitol does not currently have any inherent enforcement authority.
As an example of such an authority, under the provisions of 40 USC 212a the Capitol Police have the ''power to enforce'' the laws and regulations governing the Capitol grounds and to make arrests for any violations of such laws or regulations.
I'm not aware of any similar authority granted to the Architect of the Capitol. And, in my judgment, it would be helpful to have a clarification regarding the definition of enforcement actions that we would be required to undertake.
With respect to jurisdiction, with a few exceptions, the Architect is largely confined to the Capitol complex, including the Capitol buildings, the grounds, the House and Senate office buildings, the Botanic Garden and certain statutory responsibilities with respect to the Library of Congress and the Supreme Court.
I don't have a detailed listing of the buildings owned or leased by the other establishments in the legislative branch that would be covered by the responsibilities placed on this office in the bill.
But I'm aware that some entities have space locations so remote from the Capitol that our jurisdiction under the bill, as written, would be virtually nation-wide.
Page 16 PREV PAGE TOP OF DOC I think the General Printing Office has book centers and procurement centers in 19 states from coast to coast. Clearly we have no presence there. We have no authority there.
If all of these locations are included in the responsibilities there is a large expansion, clearly, of our jurisdiction.
If enforcement involves a physical presence, we don't have that physical presence or the appropriated funds to do so.
The same is true for preparing, posting, and maintaining signage that probably would be required.
In view of our lack of inherent enforcement authority and the extensive geographic area in which buildings are owned and leased by establishments in the legislative branch, I respectfully suggest that it might be worth considering requiring the major legislative branch establishments such as the Library of Congress, the General Accounting Office, and the Goverment Printing Office to assume responsibility for institution and enforcement of the policy for their own buildings and then have the Capitol Police assume enforcement responsibility for the buildings in the Capitol complex that are now under the Architect's jurisdiction.
At the present time I understand that the Government Printing Office has implemented and enforces its own non-smoking policy.
By raising these issues I don't mean to imply any comment on the substantive provisions of the bill. If the bill is enacted into law I would, of course, make every effort to undertake the responsibilities imposed thereunder within available funding.
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In my judgment the issues I've identified are important, and a clarification of our responsibilities would be extremely valuable and appreciated.
Mr. Chairman, that concludes my brief testimony. I'd be pleased to respond to any questions that you might have.
Mr. KIM. Well, thank you for your fine statement. At this time I'd like to invite a fellow colleague, Mr. Blumenauer. Are you ready to make a statement?
Mr. BLUMENAUER. Thank you, Mr. Chairman, Ranking Member Traficant. I appreciate the opportunity to appear before your panel.
I could not agree more that it is time to protect the health of federal employees and visitors to Federal buildings.
I agree with my good friend, Mr. Traficant, that now is the time. I don't do it with rhetorical flourishes. But I feel strongly enough about this that I have turned my attention to our own chambers and introduced H.R. 247, which would ban smoking in and around the House floor.
I find many of the same arguments apply. We have had the evidence of the dangers of second hand smoke. America has reviewed it. As a result, the majority of Americans now appropriately enjoy a smoke-free work environment.
Page 18 PREV PAGE TOP OF DOC How can we in the Federal Government do any less? How can we hope to exercise credible leadership on issues regarding, for instance, the tobacco settlement, if we're one of the only places in America that still allows smoking in the workplace.
We have only to look across the street at teenage volunteer pages who are forced to work in an environment of cigarette and cigar smoke.
And we can look at ourselves in the mirror and think that we are credible employers?
I've had people who work for us in the House take me aside and tell me their health is affected by second-hand smoke but that they feel powerless to speak out, fearing that there may be some sort of retribution, that they wish that we, as leaders in our own chamber, would step forward to protect them.
I think of the visitors that come to our chambers every day to watch the people's house at work. They look over the railing and they see members smoking near the floor, they see members smoking on the floor.
I think one of the great pleasures of being a member in this assembly is having the young people come on the floor with us as guests.
And, frankly, it's hard to explain to a 10-year-old why people are smoking on the floor of the House.
Page 19 PREV PAGE TOP OF DOC ''Aren't there rules against that?''
''Well, yeah, there are rules.''
''Don't Congresspeople have to follow the rules?''
''Well, they should.''
I find it embarrassing. I find it embarrassing on our floor. I find it embarrassing to the millions of people who work in federal facilities, who visit federal facilities, who are in awe of our governmentwe hopeand yet we haven't been able to move forward and get in step with the rest of America, which is providing smoke-free environments for people to work and visit.
I strongly commend this legislation to you. And I hope that you will be able to extend the rhetoric that is so popular in the housethat we ought to live by the same laws as the rest of America and do something to create a smoke-free environment.
I appreciate your time and your work.
[The prepared statement of Mr. Blumenauer follows:]
Mr. KIM. Thank you. The next speaker will be Mr. David Bibb.
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Mr. TRAFICANT. Will the chairman yield a minute before the gentleman leaves? Mr. Kim?
Mr. KIM. If you'd like to, come back again, please. We have a couple of questions.
Mr. TRAFICANT. I'm not going to ask a question. I just want to commend him on his testimony. I think he summarized it, and he summarized it from his heart. That's the kind of member he is.
I think he's right on target. I think your words were taken down. Not just listened to, but taken down. I want to thank you for your leadership efforts.
And let me say thisthis legislation was not drafted comprehensively. It was drafted to give it enough political cover to bring it forward.
And the amendments will be then put in place with the leadership of the chairman here and others. And so we did not mean just to streamline this legislation because we want to limit it.
And we believe that the concerns you brought up are absolutely necessary. And hopefully through the amendment process they will be addressed.
Mr. BLUMENAUER. Thank you very much, Mr. Chairman, Mr. Traficant.
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Mr. TRAFICANT. Thanks, Earl.
Mr. BLUMENAUER. And I stand willing to help you in any way that I can. And I know there's a tremendous amount of public support for what you're doing.
Mr. KIM. If I proceed. Mr. Hantman, would you mind staying later. Because we may have some questions for you also.
Mr. David Bibb.
Mr. BIBB. I can feel his gaze, Mr. Chairman.
Mr. KIM. Yes.
Mr. BIBB. Mr. Chairman and Mr. Traficant, thank you for the opportunity to appear before you here today to discuss the Federal Government's smoking policy in federal buildings.
And, with your permission, I'll summarize my statement this morning.
Nearly 11 years ago, the General Services Administration issued a policy in its federal property management regulations for GSA-controlled buildings that declared the buildings non-smoking except where designated smoking areas were identified by agency heads.
Page 22 PREV PAGE TOP OF DOC Several other federal agencies then voluntarily issued internal policies banning smoking in workspace occupied by their agencies.
And recently, as you've noted, on August 9th of this year, the President issued an executive order dealing with smoking in all executive branch facilities.
The President's order prohibits the smoking of tobacco products in all interior space owned, rented or leased by the executive branch.
Now there are a few exceptions. And I think that an understanding of these exceptions is important as you consider H.R. 2118.
First, residential accommodations owned, leased or rented by the Federal Government are excluded.
Second, portions of federally owned buildings provided to non-federal parties are excluded. And I'll mention a little bit more about that later.
Third, places of employment in the private sector serving as duty stations of federal employees are excepted. An example would be a government auditor performing his or her duties within a government contractor's space.
Fourth, the order does allow designated smoking areas that are ventilated directly to the outside and maintained under negative air pressure so that the air can't flow out into the rest of the building. That's allowed under the executive order.
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And fifth, in those extremely rare cases where an agency head determines that a complete ban on smoking would interfere with an agency's mission, smoking is permitted under the order.
While the previous policies didn't apply to any outdoor areas, the new executive order also applies in front of air intakes and provides the heads of agencies with the authority to evaluate the need to restrict smoking at doorways and in courtyards.
This order applies to all executive branch facilities, including GSA-controlled buildings that are delegated to another executive agency.
Of course, the order does not apply to buildings controlled by the judiciary or the legislative branches.
Implementation of the order must be achieved no later than August 9, 1998. Of course, we've reviewed H.R. 2118. And, in some ways, the bill is more restrictive than the administration's policy as provided in the executive order.
For example, the bill would not exempt outleases to private businesses and restaurants in federal buildings. We don't believe it would be equitable to impose restrictions upon such private businesses that are located within government buildings.
We believe that in such cases a contract has been entered into in good faith and it would not be fair to come in later and impose that kind of requirement.
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In this regard, we believe the language in the executive order does sufficiently protect Federal employees and the visiting public from exposure to tobacco smoke and at the same time provides some flexibility that we think is required in a policy of this nature.
We share with Mr. Traficant the firm commitment to protecting federal employees and the visiting public from exposure to environmental tobacco smoke.
H.R. 2118 has the same objective, and it extends to the other branches of the government.
The executive order, as I've said, does address certain exceptions which the bill doesn't. And we would look to the subcommittee to carefully consider incorporating these exceptions into the bill.
Finally, as Mr. Hantman indicated, we have some concerns about, being named as the enforcement agency. I'm sure you're aware that the GSA controls only about 8 to 10 percent of the Federal inventory and, in fact, lacks authority over the other Federal space.
So, if we go into enforcement issues it may not be possible or practical for GSA to serve as the enforcement agency. We believe, in general, agency heads would be more suitable to taking on the enforcement role if this does become law.
Again, Mr. Chairman, I appreciate the opportunity to be here, and I'd be pleased to answer any questions you may have.
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Mr. KIM. Thank you for that fine testimony. At this time I'd likeunless you've got some urgent questionI'd like to recess about 20 minutes and reconvene again. Thank you.
Mr. KIM. The subcommittee will be in order again. The next speaker will be Mr. Garland.
Mr. GARLAND. Thank you, Mr. Chairman, and good morning. It is a pleasure to present our remarks this morning to this subcommittee.
My name is Bill Garland, and I'm president of the Building Owners and Managers Association International.
BOMA International is North America's largest and oldest trade association exclusively representing the office building industry.
Our 16,000 members own or manage over 6 billion square feet of commercial real estate. We commend your subcommittee and especially Congressman Traficant for addressing the important issue of smoking indoors.
BOMA has a strong concern about second-hand smoke in buildings, including those properties our members lease to the Federal Government.
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Most Americans spend the majority of their day indoors. And building owners and managers have a responsibility to their tenants to provide a healthy indoor environment.
The health risks posed by second-hand smoke are beyond dispute. Since 1993 it has been classified as a Group A carcinogen by the U.S. EPA, which concluded that second-hand smoke causes as many as 3,000 deaths from lung cancer each year.
A study conducted recently by the California Environmental Protection Agency concluded that second-hand smoke is responsible for as many 62,000 deaths from heart disease, 2,700 deaths from sudden infant death syndrome and 2,600 new cases of asthma a year.
Clearly, steps are needed to protect office building tenants, their employees, guests and clients who may be exposed to this known carcinogen.
BOMA International believes that the most effective course of action is to prevent contaminants from being introduced into the workplace in the first place.
Second-hand smoke is a leading contributor to indoor air pollution. And a ban on smoking in the workplace would significantly improve the quality of the air we breathe.
Mr. Traficant's bill is a responsible step in that direction.
When his legislation was first introduced in 1993, BOMA testified in support. In fact, we were the first and only national real estate organization to adopt a resolution calling for a federal ban on smoking in the workplace.
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Most recently we have welcomed President Clinton's executive order, which aims to prevent federal employees and the public from being exposed to second-hand smoke in federal facilities.
Many building owners have already chosen to ban or limit smoking within their properties, even if their particular state, county or municipality has not yet made it mandatory.
In a survey that BOMA International conducted last year for our publication, ''Cleaning Makes Sense,'' we learned that 68 percent of the respondents prohibit smoking inside their building and 29 percent limit it to tenant suites.
Just 1 percent of the respondents allow smoking anywhere in their building.
Owners have taken these steps in response to health concerns and for other reasons as well. Safety, for example, is sometimes an overlooked factor.
According to BOMA's fire safety survey, conducted last in 1993, smoking was a leading cause of fires in buildings, cited by 26 of the respondents.
The elimination of smoking from buildings has yet another benefit. It reduces cleaning expenses by an average of 10 percent.
Page 28 PREV PAGE TOP OF DOC A property with a no-smoking policy has no need to clean ashtrays and cigarette butts. It requires fewer filter changes, sees a reduction in wall cleaning and painting, and needs less frequent dusting and vacuuming.
Having made our position on the overall issue clear, BOMA believes that H.R. 2118 could be improved with the addition of several elements that would clarify its scope and intent and ensure consistency with President Clinton's executive order.
First, it should be made clear that the bill does not affect those portions of federally owned buildings that are leased, rented or otherwise provided in their entirety to non-federal parties.
Similarly, where a federal agency leases space in a multi-tenant office building where smoking is not yet prohibited, the bill should apply only to the space being leased by the agency.
We believe these clarifications are consistent with the intent of Mr. Traficant's legislation.
Additionally, it is BOMA's belief that enforcement of the smoking ban should not be the responsibility of the building owner or manager where part or all of the building is being leased to a federal agency.
Building management will take the necessary steps to educate tenants on the health risks associated with second-hand smoke.
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It should not be held responsible for policing building occupants who refuse to comply with the prohibition. Instead, each tenant should be responsible for ensuring that the occupants within its space conform to the smoking ban.
With these changes, BOMA International would renew our support for the legislation. Removal of second-hand smoke would protect occupants by eliminating a recognized source of indoor air quality problems, a fire safety hazard and a liability concern for owners and tenants alike.
BOMA will continue to do everything we can to reduce and, ideally, eliminate the threat posed by second-hand smoke in commercial buildings.
Thank you again for your interest in this issue. I'd be pleased to answer any questions.
Mr. KIM. Thank you. At this timeI don't think we have any more speakers today. At this time we'll go over to Mr. Traficant. Do you have any questions to the witnesses today?
Mr. TRAFICANT. Mr. Chairman, I'm going to withhold my questions. And I'm going to make the suggestion that, in line with what I had stated to Mr. Blumenauer, that this bill was brought forward to expedite the crisis that exists because we are in receipt of much information on smoking that certainly makes us liable as one of the biggest real estate entities in the world.
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And we must act. The bill was brought forward in a straight, simplified way. And as I'm recommending to you, these suggestions have been brought forward by these witnesses.
It not only makes sense, I support them. But we've got to take their ideas and suggestions and incorporate them into the legislation where it is necessary and do that in an acceptable manner through the mark of the chair and the other process of amendment.
I want to thank each and every one of them. And I want to thank BOMA. They came out early when it was very, very tough to get anybody to come out early.
And I think that they should be recognized for that and commended for that. And I believe that their participationa very realistic participationhas made it possible for us now to possibly have a vehicle to mark up that could be enforceable and signed into law.
So I've heard from my side all of your testimony. I just didn't listen to it, I heard it. You're right. I think many of the things that the executive branch has implemented make a lot of sense.
They more than likely will be included. And I'm looking forward to working with you in a bipartisan effort on this, Mr. Chairman.
And I appreciate that. Any questions I have I would forward and ask to be forwarded to this panel. And they could respond in a reasonable manner.
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And I would ask unanimous consent the record be open for their responses. But I will have none at this point. I just commend them and commend you for going forwardyou and your staffon this important area.
Mr. KIM. Thank you. I do have somea couple of questions for Mr. Garland.
I understandyour points are well taken. What you're suggesting is, that in case of mixtureand let's the building owned by private enterprises but occupied by both federal agencies and private, then what do we do.
Supposing that the agencies occupy a very small areaone cubiclethen what do we do?
It would be costly to provide a special ventilation just for the one office. And you say that they shouldn't be burdened tothe landlord shouldn't be paid by the federal agencyin this case, lessee.
How do you see this combination of both occupying a building in this case?
Mr. GARLAND. Well, it is our belief, as was pointed out earlier, that the building owner often has or does have a contract and a lease agreement with the other tenants in the building, and that those rights should be protected.
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The Federal space under the overall issue being covered here would obviously be a non-smoking space, if I understand your question correctly.
Mr. KIM. Well, let me restate that. If we only occupy a tiny, small space. The building has no non-smoking policy. Then we, by accepting this law, we have to provide some kind of either non-smoking areawe have to spend some money to provide a special space for the employees.
Now, the other way around. Supposing your building has a non-smoking policy. We exempt small spaces. And he can smoke. It's a lot of conflict there.
Mr. GARLAND. Once again, to go back to your question, if the building is a non-smoking building and there's
Mr. KIM. We exempt a smalllet's say less than five employees allowed to smoke, then federal law allows them to smoke, but the building policy says no. That's one case.
The other case is, small occupancy we have. Do you think it's reasonable for us to provide a special smoking area at our expense just for the couple employees?
Mr. GARLAND. I wasn't aware that there was a provision for it to allow smoking for less than five employees.
Page 33 PREV PAGE TOP OF DOC Mr. KIM. No, I'm saying. Supposing that amendment is brought out and adopted
Mr. GARLAND. First
Mr. KIM. Because it just doesn't seem reasonable when you have such a small occupancy case. My case in CaliforniaI have only two employees. And it's considered federal occupancy.
And then downstairs we've got the Corps of Engineers also occupying a very small, tiny place. This law applies to everybody, whether one or two.
That would be very difficult for us to provide special smoking facilities that are a benefit to everybody. Maybe some cost sharing.
I'm just throwing this questions. Whether you've got some idea.
Mr. GARLAND. But
Mr. KIM. Why should it be borne by us totally?
Mr. GARLAND. I think, first of all, if you're goingfirst of all, I guess we believe that there wouldn't be any exceptions, whether for less than five employees or for any number of employees.
Page 34 PREV PAGE TOP OF DOC There truly shouldn't be. If you're going to have the regulation it should cover everybody. The cost ofand you're referring the cost of constructionof a smoking area specifically for those employeesI would suggest that either, if there are private areas in the building and the building still allows smoking, thatrestaurants or whateverthat they could smoke in those areas or they address the situation as to whether they want to make the decision to construct that area or not.
We, ourselves, would like to see the elimination of smoking within buildings. Although the construction of smoking areas is allowed and mandated in several municipalities and states, we think, if that's the case, it should go ahead.
I think the ideal situation would be to eliminate it completely.
Mr. KIM. The building has no non-smoking policy. We're the only one complying with. Everybody else smoke. You think we can enforce that entire building should be non-smoking?
Mr. GARLAND. I don't think
Mr. KIM. You don't buy that.
Mr. GARLAND. No. I think
Mr. KIM. But then we've got a case that we're the only complying. The rest of themthey can smoke anywhere they want inside the building.
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Mr. TRAFICANT. Would the chairman yield?
Mr. KIM. More than happy to.
Mr. TRAFICANT. Yes. Let's focus on this a minute. We have a federal agency or a unit of our government that rents a small office in a fairly large or medium-sized building. There is no policy to direct the smoking.
And any of those other tenants can go ahead and smoke. What our legislation would say is that we would ban the smoking in our lease space.
In addition, because of the mandate that is placed on by our legislation, if, in fact, there was to be a separate designated area, which the bill doesn't necessarily prohibitbut it bans smoking.
It doesn't provide for that. Unless that's to be amended. And we would have to retrofit that particular space.
Here's the one complication that we have. Our legislationthe intent of it is not to force more costs on the private sector.
It is to retrofit that public sector space that we have. But, in addition to that, there are now air systems within these buildings that, even by the nature of the fact that we have banned smoking and have no smoking in our space, that cubic feet of space, nevertheless, is subject to second-hand smoke from the fact that the air systems in the building may deliver those particular elements to us from that system.
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So, those are some of the things that we'd have to look at. But my legislation does not in any way impose a mandate on the private sector. I think that would be a folly.
And I think that we would have to have broad recommendations and maybe look at the fact of leasing when we lease space, and make it, perhaps, a criterion that our lease space would give a priority to buildings in the private sector that already have in place non-smoking policies.
That could be a possibility we could look at. But for us to have but a small office1x out of a 10x buildingand for us to force the retrofit of that building to comply with our legislation or our ban, it would not be in our best interests, I don't think.
And, remember this: people could always go outside and they could smoke. And if we're to consider, under certain circumstances for protective devices, a separately ventilated facility even though it's no smoking under such circumstances, you protect individuals from passing smoke, that could be a consideration we could take.
How do you feel about that response?
Mr. GARLAND. I think that's very much in line with what we wouldperhaps notvery much in line with what we would agree with.
I think we want to protect the private contracts that are now in place with tenants. And if the Federal Government enacts this legislation, I think the elimination of smoking should be across the board and universal.
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And, frankly, I think it would have a positive impact on our industry if you did such and gave favorable consideration to a landlord who did have a non-smoking building.
We might, within our industry, encourage that.
Mr. KIM. All right. Your points are very well taken. Mr. Hantman, I have one just brief question. Your statement is primarily concerning this definition of enforcementwho does ithow do we do it?
You mentioned that Capitol Police should take the responsibility. What is your recommendation. We're talking about buildings all over the country. Certainly the Capitol Police cannot do that.
Do you have any suggestions?
Mr. HANTMAN. Well, clearly some of the
Mr. KIM. GSA does it or
Mr. HANTMAN. The larger legislative branche entities. For instance, even on Capitol Hill, the Library of Congress has more than 4 million square feet of buildings.
It would seem a policy within the Library, itself, by its own administration would make some good sense. The Government Printing Office, I believe, has their own policy already.
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The Government Printing Officethey have offices in 19 different states. I would think as an agency-wide policy they could develop a policy and monitor it themselves without involving the Architect, certainly.
In terms of the buildings that are left on Capitol Hill that the Architect currently has some responsibility forafter the House takes care of its side, its office buildings and the Senate takes care of its office buildings, we have the police building, we have the Library of Congress, we have the Supreme Court, we have perhaps the day care centers, which I think, again, should be related to either the house or the Senate, depending on who's in charge of that particular day care center.
And each major governmental agency really could take a look at the wording of the legislation developed under this bill and make sure that their people enforce it within their own organization.
The Capitol Police, certainly, on the Hill, could be responsible depending on, again, what kind of penalties are imposed by the bill.
Certainly the Architect of the Capitol doesn't have a presence in the Capitol Police building. We do have a presence in the Supreme Court and the Library of Congress, but these are operating engineers and folks who are basically responsible for the maintenance of those buildings, not necessarily for any level of enforcement.
So, on Capitol Hill, the police have a presence throughout our area. And it would seem to make sense, depending on the level of enforcement you want, that they might be the logical people to do so.
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And, certainly, off Capitol Hill, the major agencies, with their own administrative facilities, certainly could do the same.
Mr. KIM. Thank you. Any questions?
Mr. TRAFICANT. Mr. Chairman, picky, picky, picky. You want special treatment or what, Alan?
Mr. HANTMAN. I promise not to smoke, sir.
Mr. TRAFICANT. All right. No. I think it's well taken. And I think you're right on target. And I think we can accommodate that.
And if Eleanor was here earlier she would figure it out before we did. It's good to see that she's here. But I want to thank you.
Mr. HANTMAN. Thank you.
Mr. TRAFICANT. Thank you for coming in here and for your suggestions.
And I just want to say this, because I don't know how many more questions you have of these
Page 40 PREV PAGE TOP OF DOC Mr. KIM. One more.
Mr. TRAFICANT. I think we have to get their suggestions in writing expeditiously, so that we could look at them and put down the top concerns that you have that you think would be a plus and would make this legislation fairer and better for the country and for you, et cetera.
Mr. KIM. Mr. Bibb, I'd like to ask
Ms. NORTON. Mr. Chairman.
Mr. KIM. Yes. The gentlelady is recognized.
Ms. NORTON. Before the Architect leaves, may I inquire of him?
Mr. KIM. Of course. Would you please?
Ms. NORTON. Sir, did you or your agents approach the appropriation committee to nullify a bill that was a part of the President's rescue package that would require your office to give notice, but only notice, before taking action in construction or affecting real property in the District of Columbia?
Mr. HANTMAN. We gave some information that would indicate that there are some problems in terms of time frames and approval processes that would be inherent in that information.
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But we did not approach the appropriations committee on it.
Ms. NORTON. Well, who did you givewho did you talk to about the problems inherent in time frames, and why did you not speak with the chairman of the authorizing committee and the representative of the District in order to try to correct problems involving time frame?
Mr. HANTMAN. In terms of time it was information after this had already been voted on. And the question was
Ms. NORTON. After what had been voted on?
Mr. HANTMAN. The original clause that I talked about.
Ms. NORTON. But you're seeking to change the original clause now through the appropriation?
Sir, you are new to this office. And before you came there was a real conflagration with the Washington, D.C. community.
You came to see me and gave me your word that you would act cooperatively and collegially with the community where the Architect must do his work.
I indicated to you that I had always worked closely with your predecessor and had never had any problem working out problems.
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You now have transmitted to the appropriations committee and gotten into the appropriation something that I'm going to get outgotten into the appropriation what would amount to a repeal of a billplease note this for the record.
The bill would only require that you give notice so that you can receive some word from the community. When your predecessor renovated a school for children whose parents work in the Library of Congress, the community came to me.
There was no notice bill. He met with them. Some of their suggestions were matters he hadn't even thought of before. And the whole process was improved without anger and even without a bill.
All we were trying to do in this bill was to make that process systematic so that there would not be flare ups and anger at the Office of the Architect.
I believe that you have personally disrespected me. And I want you to understand that I regard it as a sign of high personal disrespect that you would not come to me and say:
''Congresswoman, there are some problems with some time frames.''
There are no time frames in the bill. I mean, but if there were, then to fail to come to either the chairman of the committee, who, by the way, is a member of this committee, or to me, but to go around our backs to repeal a section is a personal affront to me.
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And I want you to know that I resent it. And I want you to know that before you came the Congress passed the Congressional Accountability Act.
Under the Congressional Accountability Act the Congress has decided that it will abide by the same laws as everybody else.
Federal agencies have to give this same notice. Only the Architect was exempt. I do not believe that the Speaker of the House or the leadership of this body would abide you as the lone exception to the Congressional Accountability Act.
Now I have come to this hearing largely to let you know that I do not intend to see the residents of the District of Columbia treated in this way again.
Mr. HANTMAN. Well, I'm sorry that you feel the way you do. The reality is, when we did speak and I did say communication with the community is important I fully meant that. I have initiated five different meetings with the community to talk specifically about the Senate day care center, the planting, the gatesall of the issues that were of concern by you and others in the community before.
We've had very productive meetings, a good line of communication. I think we've opened up those lines of communication. I intend to keep them open.
Ms. NORTON. But keep them open under law the way we, ourselves, rely not only on our good way but by law. And I'm going to ask youI'm going to ask you never again to try to affect a matter affecting the District of Columbia without doing the woman who represents the District the courtesy of trying to correct the problem herself, because I intend to do that.
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May I ask one more question?
Mr. HANTMAN. What we did, Congresswoman, I went to the oversight committee who oversees our functions to tell them potential implications of the wording of that particular legislation.
Ms. NORTON. Somebody went to our appropriation committee. Was it you?
Mr. HANTMAN. We went to the oversight committee who we report to when we have a need.
Ms. NORTON. Who askedwho got the appropriation committeethe D.C. Approprition Committeeto insert a provision that would repeal this section of the act? Who did that, sir?
Mr. HANTMAN. It could well have come from the oversight committee.
Ms. NORTON. No. This is the kind of dissembling that is outrageous.
You know what? You ought to find out then.
Page 45 PREV PAGE TOP OF DOC You ought to find out. Because they did it. And it looks like you did it. And if you didn't do it, you ought to make sure that others don't go around doing it.
Mr. HANTMAN. We have
Ms. NORTON. And may I ask this? May I ask this? What is the status of the suit involving female custodians under the Congressional Accountability Act, which brings you in the same position that every other American is who have mounted a case that indicates that you are paying females less than you are paying males for doing the same or similar work in this very body, an embarrassment particularly to women members, but I should think to every member of the House of Representatives.
Mr. HANTMAN. There is consulting going on as we speak. Our people are meeting with people who are representing those members of our agency.
Ms. NORTON. Have they not had to file in court?
Mr. HANTMAN. I'm not sure.
Ms. NORTON. But they filed in court.
Mr. HANTMAN. It has been filed. There are active settlement discussions.
Ms. NORTON. They filed in court becausejust let me indicate this.
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Mr. HANTMAN. Sure.
Ms. NORTON. They filed in court because mediation failed.
Very few cases involving discrimination need to go to court.
Most of them are settled. May I ask you to take whatever action you can as soon as you can to spare the Congress of the United States the press that is now all around the country indicating that the first case under the Congressional Accountability Act to go to court did not involve a memberdid not involve some wayward staff person, but involved the whole body of the Congress through the Architect of the Capitol, who, it is now said all around the country, is paying men one wage and women $1 less for doing the same.
Please rescue us from that embarrassment by settling this case.
Mr. HANTMAN. There have been some structural issues that I inherited here, no doubt, Congresswoman. And we are actively looking at them.
Mr. KIM. I'd like to go back to this hearing on building. But before I do so I'd like to recognize Mr. Traficant just briefly.
Mr. TRAFICANT. Before you go back I just want to say this.
Mr. Architect, there are some conditions in America where there still exists taxation without representation. The District of Columbiaand both Democrats and Republicans may disagree on thatand although they do not have an official voting member of the congressional body, one of the greatest Representatives that exists around here is Ms. Norton.
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Now, I just want to say this before we get off this. I think the concerns she brought up are not only important, I stand with her 100 percent.
But in addition to that I want to spread across the meeting minutes here today and to you, Mr. Chairman, that one of the problems that happens is that the authorizing committee, at times, is the last to know.
And that the executive branch and other elements of the government will attempt to go to the appropriation process where those 13 bills must be passedand they will carry the law.
I think it's absolutely important when an issue is addressed by anyone that's relative to the oversight of this subcommittee and our total committee, that before there is an effort to reach out to the appropriators that there should be an understanding, a cognizance and a knowledge of it by the authorizing committee so the authorizing committee can decide whether or not they would choose to, in fact, hold a hearing to discuss it.
And I would recommend to you, Chairman Kim, that you personally review this matter with your staff, and, if necessary, call the Architect in to explain how and why this matter was circumvented and went directly to the appropriation staff and the appropriators, if that was the case. That cannot be tolerated.
The only thing I'd say in closing out here is that we have to have a good relationship with the Architect and the people we do business with.
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And there would be some members that might have taken this matter differently. I mean, you ran up against a situation where a member understands the process and, evidently, is not going to tolerate it.
So I would like to request in writing, Mr. Chairman, although it's not about this meeting, the discrepancy in the pay between the men and women workers and a rationale and a factual explanation for the same.
I ask unanimous consent for that, Mr. Chairman.
Mr. KIM. Without objection. Thank you.
Mr. HANTMAN. Thank you.
Mr. KIM. Mr. Bibb. Thank you, Ms. Norton. My question is very simple. Under this executive order they have four or five exemptions. And this new proposed bill will sort of wipe that out.
Do you see any problems why these exemptions must be in place?
Mr. BIBB. Well, I think Mr. Traficant this morning has recognized the merit of some of the suggestions. And I would take his bill in the spirit in which he has explained it this morning as an effort to get the issue out in front of everyone open for good suggestions.
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I think some of the exceptions make an awful lot of sense. I think they all make sense. But I think when you point tofor example, if we have a contract with a restaurant owner to operate in federal space, for some of the same reasons that we talked aboutother tenants in the buildingwe should not impose a federal requirement upon that private business, in effect.
I won't go down all the exception this morning. But I think the bill would be improved with the exceptions that are in the executive order.
I think in a piece of legislation it's impossible to predict every situation. And I think, by and large, what we're recommending here is a little flexibility where we think it makes sense.
Mr. KIM. Thank you. Any more questions to the witnesses?
Mr. TRAFICANT. Mr. Chairman. Yes. Let mein response to that. I think many of those exceptions make a lot of sense.
On the restaurant that might be a tenant in an otherwise smoke-free massive federal building, unlessmaybe the language could include something that deals with local ordinance or statute of a city or a county that if all restaurants had a no-smoking policy that they would not be flexible enough to have smoking in that one, that it would be subject to it.
Page 50 PREV PAGE TOP OF DOC And if there is a local ordnance or statute that allows for restaurants to have smoking, then that would be considered.
But I would say this: in reviewing that, those facilities would have to be separately ventilated with a negative air impact on the facility itself. That's all I'm saying.
Would that be satisfactory for you?
Mr. BIBB. I think that's an issue we could talk aboutthe prevalence of the local zoning requirement and that sort of thing.
In regard to the negative air pressureparticularly if there's already a contract in placeI don't think you could implement that.
Mr. TRAFICANT. It would be tough.
Mr. BIBB. But even if you were trying to outlease space with that kind of requirement, obviously that would be a huge expense.
So I don't want to try and answer that off the top of my head. But we'd certainly be willing to take a look at it, and talk about it.
Mr. TRAFICANT. It would be more of an ideal goal, not necessarily shouldn't be a practical mandate at this time is what you're saying, right?
Page 51 PREV PAGE TOP OF DOC Mr. BIBB. Yes, sir. Its something to really look at the numbers on and see how that would work out.
Mr. TRAFICANT. Yes.
Mr. KIM. Well, I'd like to thank all of you. It's been very helpful. We're going to go back and take that into consideration. And we'll send you the bill and reflect these concerns you have.
Since there are no further questions, I'd like to thank you again. And the subcommittee stands adjourned.
[Whereupon, at 11:40 a.m., the subcommittee was adjourned.]