HR 2518 PP
(i) unusual extenuating circumstances
prevent the person from establishing or en-
forcing the nonsmoking policy (or a require-
ment under the policy) referred to in sub-
section (b) (including a case in which the
person shares space in an indoor facility
with another entity and cannot obtain an
agreement with the other entity to abide by
the nonsmoking policy requirement) and the
person will establish and make a good-faith
effort to enforce an alternative nonsmoking
policy (or alternative requirement under the
policy) that will protect children from expo-
sure to environmental tobacco smoke to the
maximum extent possible; or
(ii) the person requesting the waiver
will establish and make a good-faith effort
to enforce an alternative nonsmoking policy
(or alternative requirement under the pol-
icy) that will protect children from exposure
to environmental tobacco smoke to the same
degree as the policy (or requirement) under
subsection (b).
(3) SPECIAL WAIVER.—
HR 2518 PP
(A) IN GENERAL.—On receipt of an appli-
cation, the head of the Federal agency may grant
a special waiver to a person described in sub-
section (a) who employs individuals who are
members of a labor organization and provide
children’s services pursuant to a collective bar-
gaining agreement that—
(i) took effect before the date of enact-
ment of this Act; and
(ii) includes provisions relating to
smoking privileges that are in violation of
the requirements of this section.
(B) TERMINATION OF WAIVER.—A special
waiver granted under this paragraph shall ter-
minate on the earlier of—
(i) the first expiration date (after the
date of enactment of this Act) of the collec-
tive bargaining agreement containing the
provisions relating to smoking privileges; or
(ii) the date that is 1 year after the
date specified in subsection (f).
(d) CIVIL PENALTIES.—
(1) IN GENERAL.—(A) Any person subject to the
requirements of this section who fails to comply with
the requirements shall be liable to the United States
HR 2518 PP
for a civil penalty in an amount not to exceed $1,000
for each violation, but in no case shall the amount be
in excess of the amount of Federal funds received by
the person for the fiscal year in which the violation
occurred for the provision of children’s services.
(B) Each day a violation continues shall con-
stitute a separate violation.
(2) ASSESSMENT.—A civil penalty for a viola-
tion of this section shall be assessed by the head of the
Federal agency that provided Federal funds (includ-
ing financial assistance) to the person (or if the head
of the Federal agency does not have the authority to
issue an order, the appropriate official) by an order
made on the record after opportunity for a hearing in
accordance with section 554 of title 5, United States
Code. Before issuing the order, the head of the Federal
agency (or the appropriate official) shall—
(A) give written notice to the person to be
assessed a civil penalty under the order of the
proposal to issue the order; and
(B) provide the person an opportunity to
request, not later than 15 days after the date of
receipt of the notice, a hearing on the order.
(3) AMOUNT OF CIVIL PENALTY.—In determining
the amount of a civil penalty under this subsection,
HR 2518 PP
the head of the Federal agency (or the appropriate of-
ficial) shall take into account—
(A) the nature, circumstances, extent, and
gravity of the violation;
(B) with respect to the violator, the ability
to pay, the effect of the penalty on the ability to
continue operation, any prior history of the
same kind of violation, the degree of culpability,
and a demonstration of willingness to comply
with the requirements of this title; and
(C) such other matters as justice may
require.
(4) MODIFICATION.—The head of the Federal
agency (or the appropriate official) may compromise,
modify, or remit, with or without conditions, any
civil penalty that may be imposed under this sub-
section. The amount of the penalty as finally deter-
mined or agreed upon in compromise may be de-
ducted from any sums that the United States owes to
the person against whom the penalty is assessed.
(5) PETITION FOR REVIEW.—A person who has
requested a hearing concerning the assessment of a
penalty pursuant to paragraph (2) and is aggrieved
by an order assessing a civil penalty may file a peti-
tion for judicial review of the order with the United
HR 2518 PP
States Court of Appeals for the District of Columbia
Circuit or for any other circuit in which the person
resides or transacts business. The petition may only
be filed during the 30-day period beginning on the
date of issuance of the order making the assessment.
(6) FAILURE TO PAY.—If a person fails to pay
an assessment of a civil penalty—
(A) after the order making the assessment
has become a final order and without filing a pe-
tition for judicial review in accordance with
paragraph (5); or
(B) after a court has entered a final judg-
ment in favor of the head of the Federal agency
(or appropriate official),
the Attorney General shall recover the amount as-
sessed (plus interest at currently prevailing rates
from the last day of the 30-day period referred to in
paragraph (5) or the date of the final judgment, as
the case may be) in an action brought in an appro-
priate district court of the United States. In the ac-
tion, the validity, amount, and appropriateness of the
penalty shall not be subject to review.
(e) EXEMPTION.—This section shall not apply to a
person who provides children’s services who—
(1) has attained the age of 18;
HR 2518 PP
(2) provides children’s services—
(A) in a private residence; and
(B) only to children who are, by affinity or
consanguinity, or by court decree, a grandchild,
niece, or nephew of the provider; and
(3) is registered and complies with any State re-
quirements that govern the children’s services pro-
vided.
(f) EFFECTIVE DATE.—This section shall take effect on
the first day of the first fiscal year beginning after the date
of enactment of this Act.
SEC. 607. REPORT BY THE ADMINISTRATOR.
Not later than 2 years after the date of enactment of
this Act, the Administrator shall submit a report to the
Congress that includes—
(1) information concerning the degree of compli-
ance with this title; and
(2) an assessment of the legal status of smoking
in public places.
SEC. 608. PREEMPTION.
Nothing in this title is intended to preempt any provi-
sion of law of a State or political subdivision of a State
that is more restrictive than a provision of this title.