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-CITE-

20 USC Sec. 7183 01/02/2006

-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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