[Congressional Bills 110th Congress]
[From the U.S. Government Publishing Office]
[H.R. 5912 Introduced in House (IH)]







110th CONGRESS
  2d Session
                                H. R. 5912

 To amend title 39, United States Code, to make cigarettes and certain 
      other tobacco products nonmailable, and for other purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                             April 29, 2008

  Mr. McHugh (for himself, Mr. Waxman, Mr. Davis of Illinois, Mr. Tom 
 Davis of Virginia, Mrs. Capps, and Mr. Moran of Virginia) introduced 
 the following bill; which was referred to the Committee on Oversight 
                         and Government Reform

_______________________________________________________________________

                                 A BILL


 
 To amend title 39, United States Code, to make cigarettes and certain 
      other tobacco products nonmailable, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. NONMAILABILITY OF CERTAIN TOBACCO PRODUCTS.

    (a) In General.--Chapter 30 of title 39, United States Code, is 
amended by inserting after section 3002a the following:
``Sec. 3002b. Nonmailability of certain tobacco products
    ``(a) In General.--Cigarettes, smokeless tobacco, and roll-your-
own-tobacco--
            ``(1) are nonmailable matter;
            ``(2) shall not be--
                    ``(A) deposited in the mails; or
                    ``(B) carried or delivered through the mails; and
            ``(3) shall be disposed of as the Postal Service directs.
    ``(b) Civil Penalty.--
            ``(1) In general.--Any person who violates subsection 
        (a)(2)(A) shall be liable to the United States for a civil 
        penalty in an amount not to exceed $100,000 for each violation.
            ``(2) Hearings.--
                    ``(A) In general.--The Postal Service may determine 
                that a person has violated subsection (a)(2)(A) only 
                after notice and an opportunity for a hearing. 
                Proceedings under this paragraph shall be conducted in 
                accordance with section 3001(m).
                    ``(B) Penalty considerations.--In determining the 
                amount of a civil penalty under this paragraph, the 
                Postal Service shall consider--
                            ``(i) the nature, circumstances, extent, 
                        and gravity of the violation;
                            ``(ii) with respect to the violator, the 
                        degree of culpability, ability to pay, and any 
                        history of prior violations; and
                            ``(iii) such other matters as justice may 
                        require.
            ``(3) Civil actions to collect.--The Postal Service may 
        bring a civil action in an appropriate district court of the 
        United States, in accordance with section 409(g)(2), to collect 
        a civil penalty under this section.
            ``(4) Disposition of amounts.--Amounts received in payment 
        of any civil penalties under this subsection shall be deposited 
        as miscellaneous receipts in the Treasury of the United States.
    ``(c) Orders.--Upon evidence satisfactory to the Postal Service 
that any person is, for commercial or money-making purposes, engaged in 
the sending of mail matter which is nonmailable under this section, the 
Postal Service may issue an order which--
            ``(1) directs any postmaster, to whom any mailing 
        originating with such person or his representative is tendered 
        for transmission through the mails (other than a mailing that 
        consists only of one or more sealed letters), to refuse to 
        accept any such mailing, unless such person or his 
        representative first establishes to the satisfaction of the 
        postmaster that the mailing does not contain any matter which 
        is nonmailable under this section; and
            ``(2) requires the person or his representative to cease 
        and desist from mailing any mail matter which is nonmailable 
        under this section.
    ``(d) Prima Facie Evidence of Purpose.--For the purposes of this 
section, the repeated mailing of matter which is nonmailable under this 
section by any person or the advertisement by any person that the 
person will mail cigarettes, smokeless tobacco, or roll-your-own 
tobacco in return for payment shall constitute prima facie evidence 
that such person is engaged, for commercial or money-making purposes, 
in the mailing of matter which is nonmailable under this section.
    ``(e) Coordination of Efforts.--In the enforcement of this section, 
the Postal Service shall cooperate and coordinate its efforts with 
related activities of any other Federal agency or of any State or local 
government, whenever appropriate.
    ``(f) Actions by States Relating to Certain Tobacco Products.--
            ``(1) Authority of states.--
                    ``(A) In general.--Whenever the attorney general of 
                a State (or an official or agency of a State or local 
                government designated by the State) has reason to 
                believe that any person has engaged or is engaging in 
                mailings to residents of that State in violation of 
                subsection (a)(2)(A), the State (or designee) may 
                bring, in an appropriate district court of the United 
                States, a civil action to enjoin such mailings or to 
                enforce subsection (b).
                    ``(B) Other relief.--A State, through its attorney 
                general (or an official or agency of a State or local 
                government designated by the State), may in a civil 
                action under subparagraph (A) also obtain damages equal 
                to the amount that would be owed as State and local 
                tobacco taxes by residents of the State and such 
                further and other relief as the court may deem 
                appropriate.
            ``(2) Rights of the postal service.--The State (or 
        designee) shall serve prior written notice of any action under 
        paragraph (1) upon the Postal Service and provide the Postal 
        Service with a copy of its complaint, except in any case where 
        such prior notice is not feasible, in which case the State (or 
        designee) shall serve such notice immediately upon instituting 
        such action. The Postal Service, in accordance with section 
        409(g)(2), shall have the right (A) to intervene in the action, 
        (B) upon so intervening, to be heard on all matters arising 
        therein, and (C) to file petitions for appeal.
            ``(3) Effect on state court proceedings.--Nothing contained 
        in this section shall be construed to prohibit an authorized 
        State official from proceeding in State court on the basis of 
        an alleged violation of any general civil or criminal statute 
        of such State.
            ``(4) Limitation.--Whenever the Postal Service institutes a 
        civil action for violation of subsection (a)(2)(A), no State 
        may, during the pendency of such action instituted by the 
        Postal Service, subsequently institute a separate civil action 
        for any violation of subsection (a)(2)(A) against any defendant 
        named in the Postal Service's complaint.
    ``(g) Definitions.--For purposes of this section--
            ``(1) the terms `cigarette' and `roll-your-own-tobacco' 
        have the meanings given them by section 5702 of the Internal 
        Revenue Code of 1986;
            ``(2) the term `smokeless tobacco' has the meaning given 
        such term by section 2341 of title 18; and
            ``(3) the term `State' includes the District of Columbia, 
        the Commonwealth of Puerto Rico, and the Virgin Islands.''.
    (b) Administrative Subpoenas.--Section 3016(a) of title 39, United 
States Code, is amended in paragraphs (1)(A) and (2) by inserting 
``3002b or'' before ``3005(a)''.
    (c) Enforcement of Postal Service Orders.--Section 3012 of title 
39, United States Code, is amended--
            (1) in subsection (a)--
                    (A) in paragraph (1), by striking ``section 
                3005(a)(1) or'' and inserting ``section 3002b(c)(1), 
                3005(a)(1), or''; and
                    (B) in paragraph (2), by inserting ``3002b(c)(2) 
                or'' before ``3005(a)(3)'';
            (2) in subsection (c), by inserting ``3002b(c) or'' before 
        ``3005(a)'' each place it appears; and
            (3) in subsection (f), by inserting ``3002b(c) or'' before 
        ``3005'' each place it appears.
    (d) Semiannual Reports.--Section 3013 of title 39, United States 
Code, is amended--
            (1) in paragraph (1), by inserting ``3002b(b) or'' before 
        ``3005''; and
            (2) in paragraph (3), by striking ``section 3007 of this 
        title'' and inserting ``section 3002b(c) or section 3007, 
        respectively,''.
    (e) Clerical Amendment.--The table of sections for chapter 30 of 
title 39, United States Code, is amended by inserting after the item 
relating to section 3002a the following:

``3002b. Nonmailability of certain tobacco products.''.
    (f) Effective Dates.--
            (1) In general.--Except as provided in paragraph (2), the 
        amendments made by this section shall take effect on the 60th 
        day after the date of the enactment of this Act, and shall 
        apply with respect to any mail matter mailed on or after such 
        60th day.
            (2) Semiannual reports.--The amendments made by subsection 
        (d) shall apply beginning with the report submitted for the 
        reporting period in which occurs the 60th day after the date of 
        the enactment of this Act.

SEC. 2. TECHNICAL CORRECTION.

    (a) In General.--Sections 3007(a)(1), 3012(b)(1), and 3018(f)(1) of 
title 39, United States Code, are amended by striking ``409(d)'' and 
inserting ``409(g)(2)''.
    (b) Effective Date.--The amendments made by subsection (a) shall 
take effect as if included in the enactment of the Postal 
Accountability and Enhancement Act (Public Law 109-435).
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