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[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).
                                 <all>
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