[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[H.R. 1400 Introduced in House (IH)]
111th CONGRESS
1st Session
H. R. 1400
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
March 9, 2009
Mr. McHugh 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.--Except as provided in subsections (g) and (h),
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.--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 enjoin violations of
subsection (a)(2)(A), to collect a civil penalty under this
section, or to seek such other relief with respect to
violations of subsection (a)(2)(A) as the court may deem
appropriate.
``(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 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.--For the purposes of this section,
prima facie evidence that a person is engaged in the mailing of matter
which is nonmailable under this section may include a statement on a
publicly available website, or an advertisement, by any person that
such person will mail matter which is nonmailable under this section in
return for payment or other consideration.
``(e) Coordination of Efforts.--In the enforcement of this section,
the Postal Service shall cooperate with, and coordinate its efforts
with related activities of, any other Federal agency or any State or
local government, whenever appropriate.
``(f) Actions by States Relating to Certain Tobacco Products.--
``(1) Authority of states.--Whenever the attorney general
of a 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 may bring, in an appropriate
district court of the United States, a civil action--
``(A) to enjoin such mailings;
``(B) to carry out paragraphs (1) and (4) of
subsection (b) with respect to such mailings; or
``(C) to carry out subparagraphs (A) and (B).
In the course of any such action, the State may seek damages
equal to the amount of any unpaid taxes on tobacco products
mailed in violation of subsection (a)(2)(A) to residents of the
State and such other relief as the court may deem appropriate.
``(2) Rights of the postal service.--The State 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 in which such prior notice is
not feasible, in which case the State 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 considered 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 under subsection (a)(3) for a violation of
subsection (a)(2)(A), no State may, during the pendency of such
action, institute a separate civil action for any violation of
subsection (a)(2)(A) against any defendant named in the Postal
Service's complaint.
``(g) Mailings Between Legal Tobacco Industry Businesses and
Government Agencies.--
``(1) In general.--Tobacco products otherwise made
nonmailable by subsection (a) may, beginning on the effective
date of regulations prescribed under paragraph (2), be mailed--
``(A) for business purposes between businesses
that--
``(i) have all government licenses or
permits that are required in order to do
business; and
``(ii) are engaged in tobacco product
manufacturing, distribution, wholesale, export,
import, testing, investigation, or research; or
``(B) for regulatory purposes between any business
described in subparagraph (A) and any government
agency.
``(2) Regulations.--The Postal Service may prescribe
regulations governing mailings under this subsection, including
regulations to carry out the following:
``(A) The Postal Service shall verify that any
person depositing any otherwise nonmailable tobacco
product into the mails under this subsection is a
business or government agency permitted to make such
mailing under this subsection.
``(B) The Postal Service shall ensure that any
recipient of any otherwise nonmailable tobacco product
sent through the mails under this subsection is a
business or government agency permitted to receive such
mailing under this subsection.
``(C) The mailing shall be sent using a method that
provides for the tracking and confirmation of delivery.
``(D) The identity of the business or government
agency from which the mailing is sent, and the identity
of the business or government agency to which the
mailing is sent, shall be clearly set forth on the
envelope or outside cover or wrapper in which such
mailing is sent, and all of that information shall, for
a period of at least 3 years from the date of the
mailing, be kept in Postal Service records and made
available to persons enforcing subsection (a)(2)(A).
``(E) The mailing shall be marked with a Postal
Service label or marking that makes it clear that such
mailing--
``(i) is a permissible mailing of otherwise
nonmailable tobacco products; and
``(ii) may be delivered only to a business
described in paragraph (1)(A) or a government
employee or entity.
``(F) The mailing shall be delivered only to a
verified employee or agent of the recipient business or
government agency, who--
``(i) has been duly authorized to accept
such mailing; and
``(ii) shall be required to sign for the
mailing.
``(3) Rule of construction.--Nothing in this subsection
shall be considered to subject a government agency or any
government employee or agent to any penalty or other
restriction in connection with any mailing made by such
employee or agent, acting within the scope of his employment or
agency.
``(h) Mailings Between Individuals.--
``(1) In general.--Tobacco products otherwise made
nonmailable by subsection (a) may be mailed between individuals
(other than in any of the circumstances to which subsection (g)
applies), for non-moneymaking purposes, beginning on the
effective date of regulations prescribed under paragraph (2).
``(2) Regulations.--The Postal Service may prescribe
regulations establishing the standards and requirements which
shall govern all mailings under this subsection, including
regulations to carry out the following:
``(A) The Postal Service shall verify that the
person depositing the otherwise nonmailable tobacco
product into the mails is properly identified on the
return address of the mailing.
``(B) The Postal Service shall require the person
depositing the otherwise nonmailable tobacco product
into the mails to affirm that the recipient is an
individual who is of legal age to purchase tobacco
products.
``(C) The Postal Service shall require the person
depositing the otherwise nonmailable tobacco product
into the mails to affirm that the product is not being
sent for moneymaking purposes.
``(D) The mailing shall weigh not more than 10
ounces.
``(E) The mailing shall be sent using a method that
provides for the tracking and confirmation of delivery.
``(F) The Postal Service shall deliver the mailing
only to the verified recipient (as described in
subparagraph (B)) at the recipient's address, including
an Air/Army Postal Office (APO) or Fleet Postal Office
(FPO) address.
``(i) 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, the Virgin Islands, American
Samoa, Guam, and the Commonwealth of the Northern Mariana
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 (b), by striking ``or (d)'' each place it
appears and inserting ``(d), or (e)'';
(2) by redesignating subsections (e) and (f) as subsections
(f) and (g), respectively; and
(3) by inserting after subsection (d) the following:
``(e) Any person who fails to comply with an order issued under
section 3002b(c)(2) shall be liable to the United States for a civil
penalty--
``(1) not to exceed $10,000 for each mailing of fewer than
10 pieces;
``(2) not to exceed $50,000 for each mailing of 10 to 50
pieces; and
``(3) not to exceed $100,000 for each mailing of more than
50 pieces.''; and
(4) in subsection (g) (as so redesignated by paragraph
(2)), by inserting ``3002b(c)(2) 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'';
(2) in paragraph (2), by inserting ``3002b(c) or'' before
``3005(e)''; and
(3) 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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