Laws & Guidance ELEMENTARY & SECONDARY EDUCATION
Part C — Environmental Tobacco Smoke

SEC. 4301. SHORT TITLE.

    This part may be cited as the 'Pro-Children Act of 2001'.

SEC. 4302. DEFINITIONS.

    As used in this part:

      (1) CHILDREN- The term children' means individuals who have not attained the age of 18.

      (2) CHILDREN'S SERVICES- The term children's services' means the provision on a routine or regular basis of health, day care, education, or library services —

        (A) that are funded, after the date of enactment of the No Child Left Behind Act of 2001, directly by the Federal Government or through State or local governments, by Federal grant, loan, loan guarantee, or contract programs —

          (i) administered by either the Secretary of Health and Human Services or the Secretary of Education (other than services provided and funded solely under titles XVIII and XIX of the Social Security Act); or

          (ii) administered by the Secretary of Agriculture in the case of a clinic (as defined in part 246.2 of title 7, Code of Federal Regulations (or any corresponding similar regulation or ruling)) under section 17(b)(6) of the Child Nutrition Act of 1966; or

        (B) that are provided in indoor facilities that are constructed, operated, or maintained with such Federal funds, as determined by the appropriate head of a Federal agency in any enforcement action carried out under this part,

      except that nothing in clause (ii) of subparagraph (A) is intended to include facilities (other than clinics) where coupons are redeemed under the Child Nutrition Act of 1966.

      (3) INDOOR FACILITY- The term indoor facility' means a building that is enclosed.

      (4) PERSON- The term person' means any State or local subdivision of a State, agency of such State or subdivision, corporation, or partnership that owns or operates or otherwise controls and provides children's services or any individual who owns or operates or otherwise controls and provides such services.

      (5) SECRETARY- The term Secretary' means the Secretary of Health and Human Services.

SEC. 4303. NONSMOKING POLICY FOR CHILDREN'S SERVICES.

    (a) PROHIBITION- After the date of enactment of the No Child Left Behind Act of 2001, 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 the date of enactment of the No Child Left Behind Act of 2001, 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 the date of enactment of the No Child Left Behind Act of 2001, 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 the date of enactment of the No Child Left Behind Act of 2001, 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) 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 the date of enactment of the No Child Left Behind Act of 2001, 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 title of this Act by such person for the fiscal year in which the continuing violation occurred. For the purpose of the prohibition in subsection (c), 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, United States Code. 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) 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.

SEC. 4304. PREEMPTION.

    Nothing in this part is intended to preempt any provision of law of a State or political subdivision of a State that is more restrictive than a provision of this part.'.


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Last Modified: 09/15/2004