Pro-Children
Act of 1994
Pro-Children Act: Background
| Federal Register |
Prohibitions Contained in the Pro-Children Act of 1994
United States Code
Title 20. Education
Chapter 68. National Education Reform
Miscellaneous
Environmental Tobacco Smoke
The Pro-Children Act of 1994 prohibits smoking in facilities (in some cases portions of
facilities) in which certain Federally funded children’s services are provided on a
routine or regular basis. The provisions apply if funds are being provided through an
applicable Federal grant, loan, loan guarantee, or contract. The law went into effect
December 26, 1994.
The law applies to practically all public elementary and
secondary education and library facilities. It also applies to facilities used for the
Head Start program, the WIC program (the supplemental food and nutrition program for women
and children), and certain health care services for children.
The Department of Health and Human Services (HHS), the
Department of Education, and the Department of Agriculture share responsibility for
implementing the new provisions. Each Department will be working with recipients of its
funds to make them aware of the law and promote compliance.
It is permissible under the law to assess civil money
penalties for non-compliance. The civil money penalties may not exceed $1000 for each day
of violations, or exceed the amount of applicable Federal funds the recipient receives for
the fiscal year.
In addition, HHS will be implementing these new
provisions by requiring those receiving applicable HHS funds to certify that smoking will
not be permitted in facilities, or portions of facilities, used for children’s
services covered by this statute. Current recipients of HHS funds will be required to
provide this certification upon reauthorization of funding. New recipients must execute
this certification in order to receive funds. HHS will promote and monitor compliance with
these provisions through its management systems for monitoring requirements associated
with accepting federal funds. If a recipient that has certified does not comply with the
law, Federal funds may be withheld or the award may be terminated.
The provisions of the law do not apply to private
residences; to services providers whose sole source of Federal funds is Medicare or
Medicaid; or to portions of facilities used for inpatient treatment of individuals who are
dependent on or addicted to drugs or alcohol.
Anyone wishing to file a complaint regarding a facility
should do so initially by informing the children’s services provider that a violation
appears to be occurring. If the complaint is justified, the official would be expected to
take steps to prohibit smoking. If smoking continues to be allowed in the facility and
discussion with the provider is not addressing the violation, contact the Federal office
that funds the children’s service to register a complaint.
Questions regarding schools and education services should
be directed to the Department of Education at 202-260-3954. Questions regarding services
funded through the Department of Agriculture should be directed to USDA at 703-305-2746.
Questions for services funded through HHS should be directed to 202-205-8500.
6081. Short title
This part [20 U.S.C. 6081 et seq.] may be cited as the
"Pro-Children Act of 1994".
HISTORY: (March 31, 1994, P.L. 103 227, Title X, Part C, 1041, 108 Stat. 271.)
6082. Definitions
As used in this part [20 U.S.C. 6081 et seq.]:
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 [enacted March 31, 1994], 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 [42 U.S.C. 1395 et seq., 1396
et seq.]); 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
constructed, operated, or maintained with such Federal funds, as determined by the
appropriate Secretary in any enforcement 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 [42 U.S.C. 1771 et seq.
].
3. Person. The term "person" means any State or
local subdivision thereof, 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.
4. Indoor facility. The term "indoor facility"
means a building that is enclosed.
5. Secretary. The term "Secretary" means the
Secretary of Health and Human Services.
HISTORY: (March 31, 1994, P.L. 103 227, Title X, Part C,
1042, 108 Stat. 271.
6083. Nonsmoking policy for children's services
A. Prohibition. After the date of the enactment of this
Act [enacted 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 the date of the
enactment of this Act [enacted 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 the date of the enactment of this Act [enacted 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 the date of the
enactment of this Act [enacted 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) 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 the date of the enactment of this Act [enacted 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) 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 the date of enactment of this Act
[enacted 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 the
date of enactment of this Act [enacted March 31, 1994]) 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 enactment of this Act [enacted 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), 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 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.
HISTORY: (March 31, 1994, P.L. 103 227, Title X, Part C,
1043, 108 Stat. 272.)
6084. Preemption
Nothing in this part [20 U.S.C. 6081 et seq.] 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 [20 U.S.C. 6081 et seq.].
HISTORY: (March 31, 1994, P.L. 103 227, Title X, Part C,
1044, 108 Stat. 274.)
HISTORY; ANCILLARY LAWS AND DIRECTIVES REFERENCES IN
TEXT:
"This title", referred to in this section, is
Title X of Act March 31, 1994, P.L. 103 227, 108 Stat. 265, which appears generally as 20
U.S.C. 6061 et seq. For full classification of this Title, consult U.S.C. Tables volumes.
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Federal Register
Vol. 59 No. 250 Friday, December 30, 1994 p 67713
1/149
DEPARTMENT OF HEALTH AND HUMAN SERVICES
Office of the Secretary
Implementation of Pro-Children Act of 1994
AGENCY: Office of the Secretary and Centers for Disease
Control and Prevention, PHS, HHS.
ACTION: Notice to prohibit smoking in certain facilities.
SUMMARY: The Department of Health and Human Services announces the implementation of the
Pro Children Act of 1994, which prohibits smoking in certain facilities in which
education, library, day care, health care and early childhood development (including WIC
and Head Start) services are provided to children. In accordance with section 1043(d) of
the Act, the Secretary of Health and Human Services is publishing the prohibitions which
restrict smoking in certain indoor facilities.
DATES: The prohibitions contained in the Pro-Children Act
of 1994 will be effective on December 26, 1994.
FOR FURTHER INFORMATION CONTACT:
Department of Health and Human Services
Karen M. Deasy, Assistant Director,
Office of Smoking and Health,
Centers for Disease Control and Prevention,
330 C St. SW., Room 1229,
Washington, DC 20201,
(202) 205 8598;
Department of Education
Debbie Rudy,
Safe and Drug Free Schools Program,
600 Independence Ave. SW.,
The Portals Room 4011 B,
Washington, DC 20202 6123,
(202) 260 3954;
Department of Agriculture
Stanley C. Garnett, Director,
Supplemental Food Programs Division,
Food and Consumer Service,
3101 Park Center Drive Room 540,
Alexandria, VA 22302,
(703) 305 2746.
Supplementary Information: The Pro-Children Act of 1994
(20 U.S.C. 6081 6084), hereafter referred to as ``the Act,'' was enacted on March 31,
1994, as sections 1041 through 1044 of Public Law 103 227, the ``Goals 2000: Educate
America Act.'' The purpose of this Act is to protect children under the age of 18 from
exposure to environmental tobacco smoke when receiving education, library, day care,
health care, and early childhood development services in indoor facilities. The Act seeks
to achieve this goal by requiring persons that provide children's services in indoor
facilities to prohibit smoking in such facilities if they are regularly or routinely used
for the delivery of those services. Similar prohibitions apply to federal agencies that
provide those services to children.
Section 1043(d) of the Act requires that the Secretary of
Health and Human Services, in consultation with other affected agencies, publish a Notice
in the Federal Register incorporating the Act's prohibitions. Section 1043(d) further
provides that the Act will become effective ninety days from the issuance of this notice
or 270 days after enactment of the Act (March 31, 1994) whichever is earlier. The
prohibitions that follow are being published in furtherance of these requirements.
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1. Persons That Provide Children's Services
A. 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.{1}
{1} "Person'' is defined in section 1042(3) of the
Act as:
* * * any State or local subdivision thereof, 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.
{2} "Children's services'' is defined in section
1042(2) as:
* * * 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 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 that 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
constructed, operated, or maintained with such Federal funds, as determined by the
appropriate Secretary in any enforcement 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.
B. 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 provide such services, except that this 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.
2. Federal Agencies That Provide Services to Children
A. 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.
B. 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 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.
C. The provisions of paragraph (b) 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 (b) not subject to paragraph
(a).
The Act provides civil penalties of up to $1000.00 for
each violation and for the issuance of administrative compliance orders. Each day a
violation continues constitutes a separate violation.
Dated: December 22, 1994.
Donna E. Shalala,
Secretary.
[FR Doc. 94 32136 Filed 12 23 94; 3:05 pm]
BILLING CODE 4160 18 M
The Contents entry for this article reads as follows:
Smoking prohibition in facilities that provide education, library, day care, health care
and early childhood development services, 67713
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