20 U.S.C. § 7973 — Nonsmoking policy for children’s services
submitted 24 years ago by Pub. L. 89-10 to r/title-20-EDUCATION · 1,196 words · no verdicts yet
This section prohibits smoking in indoor facilities used for children's education, library, health, day-care, and early-childhood services, with limited exceptions. It establishes notice, penalties, hearings, review, and enforcement rules.
(a) After January 8, 2002, no person* may allow smoking in an indoor facility* the person owns, leases, or contracts for and uses to provide routine or regular kindergarten, elementary, secondary, or library services to children*. (b)(1) After that date, no person may allow smoking in an indoor facility, or part of one, that the person owns, leases, or contracts for and uses for regular or routine health care, day care, or early-childhood education. (2) This does not apply to (A) a part used for inpatient hospital treatment of people dependent on or addicted to drugs or alcohol, or (B) a private residence. (c)(1) After that date, a Federal agency may not allow smoking in a U.S. indoor facility it operates directly or by contract for those education or library services. (2)(A) It may not allow smoking in such a facility used for routine or regular health, day-care, or early-childhood programs. (B) The exceptions are (i) a part used for inpatient treatment of people dependent on or addicted to drugs or alcohol and (ii) a private residence. (3) Paragraph (2) also applies to the listed education or library services in the paragraph (2) facilities not covered by paragraph (1). (d) The Secretary*, consulting affected agency heads, must publish subsections (a)–(c)'s prohibitions in a Federal Register notice. Agency heads must include them in funding arrangements for children's services they administer. The prohibitions take effect 90 days after publication or 270 days after January 8, 2002, whichever comes first. (e)(1) Violating a prohibition violates this section. The Secretary may impose up to a $1,000 civil penalty per violation, an administrative compliance order, or both. Each continuing day is a separate violation. A penalty for a continuing violation may not exceed 50% of the Federal funds the person received under this chapter for that fiscal year. For subsection (c), “person” means the Federal agency head or its contractor providing children's services; this section does not otherwise define the term. (2) The Secretary may impose a penalty or order only after an opportunity for a title 5 section 554 hearing. The Secretary must first send certified written notice with return receipt, describing the violation and explaining that a hearing may be requested in writing within 30 days after receipt. The notice must include hearing procedures and a simple request form. If requested, the certified notice must set the time and place, as convenient as possible, and the Secretary or designee and person may consult on a suitable date and place. (3) The Secretary must consider, as appropriate, the violation's nature, circumstances, extent, and seriousness; the violator's good-faith efforts, need for early permanent compliance, ability to pay or comply, effect on continued operations, prior similar violations, culpability, willingness to comply promptly; and other matters justice requires. (4) The Secretary may compromise, change, or cancel a penalty or order, with or without conditions. A finally determined or compromised penalty may be deducted from money owed by the United States or its agencies to the person. (5) An aggrieved person may petition for judicial review in the D.C. Circuit or a circuit where the person lives or does business, and must give the Secretary or designee a copy. The petition is due within 30 days after the final penalty or order is provided by certified mail. The Secretary must promptly give the court the certified hearing transcript and notice or order. (6) If a final penalty is not paid or an order is not followed, or after a court's final judgment for the Secretary, the Attorney General, at the Secretary's request, must recover the penalty plus prevailing-rate interest from finality or enforce the order in the proper U.S. district court. The penalty, order, and amount may not be reviewed in that action.
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*.
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 education programs.
Paragraph (1) shall not apply to—
any portion of such facility that is used for inpatient hospital treatment of individuals dependent on, or addicted to, drugs or alcohol; and
any private residence.
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.
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 education programs to children.
Subparagraph (A) shall not apply to—
any portion of such facility that is used for inpatient hospital treatment of individuals dependent on, or addicted to, drugs or alcohol; and
any private residence.
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).
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 January 8, 2002, whichever occurs first.
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), 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.
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.
In determining the amount of the civil penalty or the nature of the administrative compliance order, the Secretary shall take into account, as appropriate—
the nature, circumstances, extent, and gravity of the violation;
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
such other matters as justice may require.
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.
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.
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 credit: (Pub. L. 89–10, title VIII, § 8573, formerly title IV, § 4303, as added Pub. L. 107–110, title IV, § 401, Jan. 8, 2002, 115 Stat. 1774; renumbered title IX, § 9563, renumbered title VIII, § 8573, and amended Pub. L. 114–95, title IV, § 4001(a)(1), (4)(A), (B), (C)(ii), title VIII, § 8001(a)(9), Dec. 10, 2015, 129 Stat. 1966, 2088, 2089.)
- 2002Enacted · Pub. L. 89-10 · 115 Stat. 1774
- 2015Amended · Pub. L. 114-95 · 129 Stat. 1966, 2088, 2089
A history note hasn’t been published yet. The record shows enactment by Pub. L. 89-10 on 2002-01-08.
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