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-CITE-
-EXPCITE-
TITLE 20 - EDUCATION
CHAPTER 70 - STRENGTHENING
AND IMPROVEMENT OF ELEMENTARY AND
SECONDARY SCHOOLS
SUBCHAPTER IV - 21ST CENTURY
SCHOOLS
Part C - Environmental
Tobacco Smoke
-HEAD-
Sec. 7183. Nonsmoking policy
for children's services
-STATUTE-
(a) Prohibition
After January 8,
2002, no person shall permit smoking within any
indoor facility owned or leased or
contracted for, and utilized, by
such person for provision of
routine or regular kindergarten,
elementary, or secondary
education or library services to children.
(b) Additional prohibition
(1) In general
After January 8, 2002, no person shall permit smoking
within
any indoor
facility (or portion of such a facility) owned or
leased or
contracted for, and utilized by, such person for the
provision of
regular or routine health care or day care or early
childhood
development (Head Start) services.
(2) Exception
Paragraph (1) shall not apply to -
(A) any portion of such facility that is used for inpatient
hospital
treatment of individuals dependent on, or addicted to,
drugs or alcohol; and
(B) any private residence.
(c) Federal agencies
(1)
Kindergarten, elementary, or secondary education or library
services
After
January 8, 2002, no Federal agency shall permit smoking
within any
indoor facility in the United States operated by such
agency, directly
or by contract, to provide routine or regular
kindergarten,
elementary, or secondary education or library
services to
children.
(2) Health or
day care or early childhood development services
(A)
In general
After January 8, 2002, no Federal agency shall permit smoking
within
any indoor facility (or portion of such facility)
operated by such agency, directly or by contract, to provide
routine or regular health or day care or early childhood
development (Head Start) services to children.
(B)
Exception
Subparagraph (A) shall not apply to -
(i) any portion of such facility that is used for inpatient
hospital treatment of individuals dependent on, or addicted
to, drugs or alcohol; and
(ii) any private residence.
(3) Application
of provisions
The
provisions of paragraph (2) shall also apply to the
provision of
such routine or regular kindergarten, elementary or
secondary education
or library services in the facilities
described in
paragraph (2) not subject to paragraph (1).
(d) Notice
The prohibitions
in subsections (a) through (c) of this section
shall be published in a
notice in the Federal Register by the
Secretary (in consultation
with the heads of other affected
agencies) and by such agency
heads in funding arrangements
involving the provision of
children's services administered by such
heads. Such prohibitions
shall be effective 90 days after such
notice is published, or 270
days after January 8, 2002, whichever
occurs first.
(e) Civil penalties
(1) In general
Any
failure to comply with a prohibition in this section shall
be considered to
be a violation of this section and any person
subject to such
prohibition who commits such violation may be
liable to the
United States for a civil penalty in an amount not
to exceed $1,000
for each violation, or may be subject to an
administrative
compliance order, or both, as determined by the
Secretary. Each
day a violation continues shall constitute a
separate
violation. In the case of any civil penalty assessed
under this
section, the total amount shall not exceed 50 percent
of the amount of
Federal funds received under any subchapter of
this chapter by
such person for the fiscal year in which the
continuing
violation occurred. For the purpose of the prohibition
in subsection
(c) of this section, the term "person", as used in
this paragraph,
shall mean the head of the applicable Federal
agency or the
contractor of such agency providing the services to
children.
(2) Administrative
proceeding
A
civil penalty may be assessed in a written notice, or an
administrative
compliance order may be issued under paragraph
(1), by the
Secretary only after an opportunity for a hearing in
accordance with
section 554 of title 5. Before making such
assessment or
issuing such order, or both, the Secretary shall
give written
notice of the assessment or order to such person by
certified mail
with return receipt and provide information in the
notice of an
opportunity to request in writing, not later than 30
days after the
date of receipt of such notice, such hearing. The
notice shall
reasonably describe the violation and be accompanied
with the procedures
for such hearing and a simple form that may
be used to
request such hearing if such person desires to use
such form. If a
hearing is requested, the Secretary shall
establish by
such certified notice the time and place for such
hearing, which
shall be located, to the greatest extent possible,
at a location
convenient to such person. The Secretary (or the
Secretary's
designee) and such person may consult to arrange a
suitable date
and location where appropriate.
(3)
Circumstances affecting penalty or order
In
determining the amount of the civil penalty or the nature of
the
administrative compliance order, the Secretary shall take
into account, as
appropriate -
(A) the nature, circumstances, extent, and gravity of the
violation;
(B) with respect to the violator, any good faith efforts to
comply, the importance of achieving early and permanent
compliance, the ability to pay or comply, the effect of the
penalty or order on the ability to continue operation, any
prior history of the same kind of violation, the degree of
culpability, and any demonstration of willingness to comply
with the
prohibitions of this section in a timely manner; and
(C) (!1) such other matters as justice may require.
(4) Modification
The
Secretary may, as appropriate, compromise, modify, or
remit, with or without
conditions, any civil penalty or
administrative
compliance order. In the case of a civil penalty,
the amount, as
finally determined by the Secretary or agreed upon
in compromise,
may be deducted from any sums that the United
States or the
agencies or instrumentalities of the United States
owe to the
person against whom the penalty is assessed.
(5) Petition for
review
Any
person aggrieved by a penalty assessed or an order issued,
or both, by the
Secretary under this section 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. Such
person shall
provide a copy of the petition to the Secretary or
the Secretary's
designee. The petition shall be filed within 30
days after the
Secretary's assessment or order, or both, are
final and have been
provided to such person by certified mail.
The Secretary
shall promptly provide to the court a certified
copy of the
transcript of any hearing held under this section and
a copy of the
notice or order.
(6) Failure to
comply
If a
person fails to pay an assessment of a civil penalty or
comply with an
order, after the assessment or order, or both, are
final under this
section, or after a court has entered a final
judgment under
paragraph (5) in favor of the Secretary, the
Attorney
General, at the request of the Secretary, shall recover
the amount of
the civil penalty (plus interest at prevailing
rates from the
day the assessment or order, or both, are final)
or enforce the
order in an action brought in the appropriate
district court
of the United States. In such action, the validity
and
appropriateness of the penalty or order or the amount of the
penalty shall
not be subject to review.
-SOURCE-
(Pub. L. 89-10, title IV,
Sec. 4303, as added Pub. L. 107-110,
title IV, Sec. 401, Jan. 8,
2002, 115 Stat. 1774.)
-FOOTNOTE-
(!1) Opening parenthesis
editorially supplied.
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