Page:United States Statutes at Large Volume 108 Part 1.djvu/299

 PUBLIC LAW 103-227—MAR. 31, 1994 108 STAT. 273 members of a labor organization and provide children'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 enactment 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 enactment 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 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" s^ all mean the head of the applicable Federal agency or the '^-.ntractor 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

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