H. R. 1804—147
‘‘(2) DEFINITION.—For the purpose of this section, the term
‘‘weapon’’ means a firearm as such term is defined in section
921 of title 18, United States Code.
‘‘(b) REPORT TO STATE.—Each local educational agency request-
ing assistance from the State educational agency that is to be
provided from funds made available to the State under this Act
shall provide to the State, in the application requesting such
assistance—
‘‘(1) an assurance that such local educational agency has
in effect the policy required by subsection (a); and
‘‘(2) a description of the circumstances surrounding any
expulsions imposed under the policy required by subsection
(a), including—
‘‘(A) the name of the school concerned;
‘‘(B) the number of students expelled from such school;
and
‘‘(C) the types of weapons concerned.’’.
PART C—ENVIRONMENTAL TOBACCO SMOKE
SEC. 1041. SHORT TITLE.
This part may be cited as the ‘‘Pro-Children Act of 1994’’.
SEC. 1042. 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 the enactment
of this Act, 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 7 CFR 246.2)
under section 17(b)(6) of the Child Nutrition Act of
1966 (42 U.S.C. 1786(b)(6)), or
(B) that are provided in indoor facilities that are con-
structed, operated, or maintained with such Federal funds,
as determined by the appropriate Secretary in any enforce-
ment action under this title,
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) PERSON.—The term ‘‘person’’ means any State or local
subdivision thereof, agency of such State or subdivision, cor-
poration, 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 serv-
ices.
(4) INDOOR
FACILITY.—The term ‘‘indoor facility’’ means
a building that is enclosed.
H. R. 1804—148
(5) SECRETARY.—The term ‘‘Secretary’’ means the Secretary
of Health and Human Services.
SEC. 1043. NONSMOKING POLICY FOR CHILDREN’S SERVICES.
(a) PROHIBITION.—After the date of the enactment of this Act,
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 edu-
cation or library services to children.
(b) ADDITIONAL PROHIBITION.—After the date of the enactment
of this Act, 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 the date of the enactment of this
Act, 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 chil-
dren.
(2) HEALTH OR DAY CARE OR EARLY CHILDHOOD DEVELOP-
MENT SERVICES.—After the date of the enactment of this Act,
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 para-
graph (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 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 arrange-
ments 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 the enactment
of this Act, 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) who employs individuals who are
H. R. 1804—149
members of a labor organization and provide children’s services
pursuant to a collective bargaining agreement that—
(A) took effect before the date of enactment of this
Act; 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 the date of enact-
ment of this Act) of the collective bargaining agreement
containing the provisions relating to smoking privileges;
or
(B) the date that is 1 year after the date of the enact-
ment of this Act.
(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 deter-
mined 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 pur-
pose of the prohibition in subsection (c), 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, United
States Code. 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 accom-
panied 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 estab-
lish 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
H. R. 1804—150
prior history of the same kind of violation, the degree
of culpability, and any demonstration of willingness to com-
ply 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 pen-
alty 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 assess-
ment 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.
SEC. 1044. 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.
PART D—MIDNIGHT BASKETBALL LEAGUE
TRAINING AND PARTNERSHIP
SEC. 1051. SHORT TITLE.
This part may be cited as the ‘‘Midnight Basketball League
Training and Partnership Act’’.
SEC. 1052. GRANTS FOR MIDNIGHT BASKETBALL LEAGUE TRAINING
AND PARTNERSHIP PROGRAMS.
Section 520 of the Cranston-Gonzalez National Affordable Hous-
ing Act (42 U.S.C. 11903a) is amended—
(1) in the section heading by inserting ‘‘AND ASSISTED’’
after ‘‘PUBLIC’’;
(2) in the subsection heading for subsection (a), by inserting
‘‘PUBLIC HOUSING’’ before ‘‘YOUTH’’; and