 
                  CHAPTER 68--NATIONAL EDUCATION REFORM
 
                       SUBCHAPTER X--MISCELLANEOUS
 
                   Part B--Environmental Tobacco Smoke
 
Sec. 6083. Nonsmoking policy for children's services


(a) Prohibition

    After March 31, 1994, 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

    After March 31, 1994, no person shall permit smoking within any 
indoor facility (or portion thereof) owned or leased or contracted for 
by such person for the provision by such person of regular or routine 
health care or day care or early childhood development (Head Start) 
services to children or for the use of the employees of such person who 
provides such services, except that this subsection shall not apply to--
        (1) any portion of such facility that is used for inpatient 
    hospital treatment of individuals dependent on, or addicted to, 
    drugs or alcohol; and
        (2) any private residence.

(c) Federal agencies

      (1) Kindergarten, elementary, or secondary education or 
                              library services

        After March 31, 1994, 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

        After March 31, 1994, no Federal agency shall permit smoking 
    within any indoor facility (or portion thereof) 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, except that this paragraph 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.

                    (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 incorporated by publication of 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 March 31, 1994, whichever occurs first.

(e) Special waiver

                           (1) In general

        On receipt of an application, the head of the Federal agency may 
    grant a special waiver to a person described in subsection (a) of 
    this section who employs individuals who are members of a labor 
    organization and provide children's services pursuant to a 
    collective bargaining agreement that--
            (A) took effect before March 31, 1994; and
            (B) includes provisions relating to smoking privileges that 
        are in violation of the requirements of this section.

                      (2) Termination of waiver

        A special waiver granted under this subsection shall terminate 
    on the earlier of--
            (A) the first expiration date (after March 31, 1994) of the 
        collective bargaining agreement containing the provisions 
        relating to smoking privileges; or
            (B) the date that is 1 year after March 31, 1994.

(f) Civil penalties

                           (1) In general

        Any failure to comply with a prohibition in this section shall 
    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 under this section, the total amount shall not exceed 
    the amount of Federal funds received by such person for the fiscal 
    year in which the continuing violations occurred. For the purpose of 
    the prohibition in subsection (c) of this section, the term 
    ``person'' 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, 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 thereof to such person 
    by certified mail with return receipt and provide therein 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 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 should 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) 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 its agencies 
    or instrumentalities owes 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 thereof 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 thereof 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 either or both are final under this 
    section, or after a court under paragraph (5) has entered a final 
    judgment 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 then currently prevailing rates from the 
    day either 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.

(Pub. L. 103-227, title X, Sec. 1043, Mar. 31, 1994, 108 Stat. 272.)
