Thursday, June 26, 2008

Aimed Directly at Native American Internet Smoke Shops

(And this bill is another try in the long standing dispute between NY and the Seneca Tribe Smoke Shops in NY among others -

Yo Newt! See these are isolationist tactics, not a free market-

Yo Congress - get a grip you really think you're going to stomp this out - think back to the 1920s prohibition on Booze - and we still have booze; ah, I see, it's the tax you want, not the health care issue - ah, it's the money again - if they collect the tax, you'll let them use the USPS - amazing - you can't close the borders but you can close down the Native Americans business ventures - tobacco has been around and was actually used for *money* in the late 1600s and early 1700s - it's still here and probably will be for another 1000 years - now companies are firing folks if they smoke, then forcing their spouses to quit smoking even though the spouse didn't work for the company - think this is getting a bit out of hand? Anyone? Anyone?

Remember the Boston Tea party - when we had some courageous folks that dumped all that tea in Boston Harbor? Where are you taking us? You're taking us down the wrong path - this is really getting to be a sickening sight to read about - can't smoke in your own home - whose guarding the hen house here? This is really getting crazy - this is a guardianship over everyone not just the Indians anymore - and a dilution of our personal freedoms)

http://thomas.loc.gov/cgi-bin/query/D?c110:1:./temp/~c110C4rFD7::

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


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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).