Text: H.R.5689 — 110th Congress (2007-2008)All Information (Except Text)

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Introduced in House (04/03/2008)


110th CONGRESS
2d Session
H. R. 5689


To amend the Internal Revenue Code of 1986 and title 18, United States Code, to deter the smuggling of tobacco products into the United States, and for other purposes.


IN THE HOUSE OF REPRESENTATIVES

April 3, 2008

Mr. Doggett (for himself, Mr. Abercrombie, Mr. Ackerman, Mr. Allen, Mr. Andrews, Mr. Arcuri, Ms. Baldwin, Mr. Becerra, Mr. Berman, Mr. Blumenauer, Mr. Braley of Iowa, Ms. Ginny Brown-Waite of Florida, Mrs. Capps, Mr. Capuano, Ms. Clarke, Mr. Cummings, Mr. Davis of Illinois, Mrs. Davis of California, Mr. DeFazio, Ms. DeGette, Mr. Delahunt, Ms. DeLauro, Mr. Ellison, Mr. Emanuel, Ms. Eshoo, Mr. Farr, Mr. Filner, Mr. Frank of Massachusetts, Mr. Gene Green of Texas, Mr. Grijalva, Mr. Hare, Mr. Hinchey, Mr. Hinojosa, Ms. Hirono, Mr. Holt, Mr. Honda, Ms. Hooley, Mr. Israel, Mr. Jackson of Illinois, Ms. Jackson-Lee of Texas, Ms. Eddie Bernice Johnson of Texas, Ms. Kaptur, Mr. Kennedy, Mr. Kind, Mr. Kucinich, Mr. Langevin, Ms. Lee, Mr. Levin, Mr. Lewis of Georgia, Mr. Lipinski, Mr. Loebsack, Ms. Zoe Lofgren of California, Mrs. Lowey, Mr. Lynch, Mrs. Maloney of New York, Mr. Markey, Mr. Matheson, Ms. Matsui, Mrs. McCarthy of New York, Mr. McDermott, Mr. McGovern, Mr. McNulty, Mr. Meeks of New York, Mr. George Miller of California, Mr. Nadler, Mrs. Napolitano, Mr. Neal of Massachusetts, Mr. Oberstar, Mr. Olver, Mr. Pallone, Mr. Pascrell, Mr. Payne, Mr. Platts, Ms. Richardson, Mr. Rothman, Ms. Roybal-Allard, Mr. Rush, Mr. Ryan of Ohio, Ms. Linda T. Sánchez of California, Ms. Loretta Sanchez of California, Mr. Sarbanes, Ms. Schakowsky, Mr. Serrano, Mr. Sestak, Mr. Sherman, Ms. Slaughter, Mr. Smith of Washington, Mr. Snyder, Ms. Solis, Mr. Stark, Ms. Sutton, Mrs. Tauscher, Mr. Thompson of California, Mr. Tierney, Ms. Tsongas, Mr. Udall of New Mexico, Mr. Van Hollen, Mr. Walz of Minnesota, Ms. Waters, Ms. Watson, Mr. Waxman, Mr. Weiner, Mr. Welch of Vermont, Ms. Woolsey, and Mr. Wu) introduced the following bill; which was referred to the Committee on Ways and Means, and in addition to the Committee on the Judiciary, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned


A BILL

To amend the Internal Revenue Code of 1986 and title 18, United States Code, to deter the smuggling of tobacco products into the United States, 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. Short title and table of contents.

(a) Short title.—This Act may be cited as the “Smuggled Tobacco Prevention Act of 2008”.

(b) Table of contents.—The table of contents of this Act is as follows:


Sec. 1. Short title and table of contents.

Sec. 101. Amendment of 1986 code.

Sec. 102. Improved marking and labeling; export bonds.

Sec. 103. Wholesalers required to have permit.

Sec. 104. Conditions of permit.

Sec. 105. Records to be maintained.

Sec. 106. Reports.

Sec. 107. Fraudulent offenses.

Sec. 108. Civil penalties.

Sec. 109. Definitions.

Sec. 110. Effective date.

Sec. 201. Expanding scope of penal provisions relating to trafficking in contraband tobacco products.

Sec. 202. Creating right of action for State tobacco tax administrator for failure to report.

Sec. 301. Whistleblower protection.

SEC. 101. Amendment of 1986 code.

Except as otherwise expressly provided, whenever in this title an amendment or repeal is expressed in terms of an amendment to, or repeal of, a section or other provision, the reference shall be considered to be made to a section or other provision of the Internal Revenue Code of 1986.

SEC. 102. Improved marking and labeling; export bonds.

(a) In General.—

(1) Section 5723 (relating to marks, labels, and notices) is amended—

(A) by striking “, if any,” in subsection (b),

(B) by adding at the end of subsection (b) the following: “Such marks, labels, and notices shall include marks and notices relating to the following:

“(1) IDENTIFICATION.—Each person who is a manufacturer or importer of tobacco products shall (in accordance with regulations prescribed by the Secretary) legibly print a unique serial number on all packages of tobacco products manufactured or imported by such person for sale or distribution. Such serial number shall be designed to enable the Secretary to identify the manufacturer of the product (and, in the case of importation, the manufacturer and importer of the product), the location and date of manufacture (and, if imported, the location and date of importation), and any other information the Secretary determines necessary or appropriate for the proper administration of the chapter. The Secretary shall determine the size and location of the serial number.

“(2) MARKING REQUIREMENTS FOR EXPORTS.—Each package of a tobacco product that is exported, or sold for export, shall be marked for export from the United States and shall be marked as to the foreign country which is to be the final destination of such product. Such marking shall be visible and prominent and shall be in English and in the primary language of such foreign country. The Secretary shall promulgate regulations to determine the size and location of the mark.

“(3) ADDITIONAL METHODS OF IDENTIFICATION OR MARKING.—The Secretary may by regulation authorize such additional secure methods of identification or marking as may be, taking into account available technology, necessary or appropriate to carry out the purposes of this subsection.”, and

(C) by adding at the end the following new subsection:

“(f) Additional marks.—

“(1) IN GENERAL.—Not later than 180 days after the date of the enactment of the Smuggled Tobacco Prevention Act of 2008, the Secretary shall prescribe a system of tobacco tax stamps, meter impressions, or other Federal tax-payment indicia to be affixed by manufacturers and importers of tobacco products on all tobacco products subject to tax under this chapter.

“(2) SYSTEM SPECIFICATIONS.—

“(A) The Secretary shall design such system to coordinate and avoid interference with State and local tax stamps or markings, facilitate collection of the tax under this chapter, impede contraband tobacco trafficking, minimize counterfeit stamping or meter impressions, allow for more effective tracking and tracing of tobacco products, facilitate the enforcement of related Federal laws, and utilize such available technology as may promote the purposes of this chapter.

“(B) The Secretary shall prescribe the method and manner in which such stamps, meter impressions, or indicia are to be distributed, purchased, and affixed to tobacco product packages, and may provide for the cancellation of such stamps, meter impressions, or indicia.

“(C) Any such tax stamp, meter impression, or indicia must provide the following information:

“(i) The denominated value of the stamp, meter impression, or indicia.

“(ii) A unique serial number or tracking code.

“(iii) The name and address of the person purchasing (and, if different, of the person affixing) the stamp, meter impression, or indicia.

“(iv) The date the stamp, meter impression, or indicia was purchased and when it was affixed.

“(v) The name and address of the person purchasing or otherwise receiving the tobacco product from the person who affixes the tax stamp, meter impression, or indicia, and the date of such purchase or transfer.

“(vi) Such other information as the Secretary may prescribe to carry out the purposes of this chapter.

“(D) The information described in subparagraph (C) shall, to the extent practicable, be cryptographically encrypted and readable by a portable scanning device (or similar device) at the time and place of inspection, and shall otherwise be accessible remotely by such a device at such time and place.

“(E) The Secretary may establish different stamps, meter impressions, or indicia for the same type of tobacco product to correspond to different jurisdictions of manufacture, distribution, or sale.

“(F) The Secretary may by regulation authorize such additional secure methods of identification or marking as may be, taking into account available technology, necessary or appropriate to carry out the purposes of this subsection.

“(G) No tobacco product may be sold, distributed, or otherwise delivered to any consumer in the United States unless the tax stamp, meter impression, or indicia required under regulations prescribed pursuant to this section is affixed to the tobacco product packaging in accordance with such regulations.”.

(b) Sales on Indian reservations; package defined.—Section 5723, as amended by subsection (a), is amended by adding at the end the following new subsections:

“(g) Sales on Indian reservations.—Each package of a tobacco product that is sold on an Indian reservation (as defined in section 403(9) of the Indian Child Protection and Family Violence Prevention Act (25 U.S.C. 3202(9)) shall be visibly and prominently labeled as such. The Secretary, in consultation with the Secretary of the Interior, shall promulgate regulations with respect to such labeling, including requirements for the size and location of the label.

“(h) Definition of package.—For purposes of this section, the term ‘package’ means the innermost sealed container visible from the outside of the individual container irrespective of the material from which such container is made, in which a tobacco product is placed by the manufacturer and in which such tobacco product is offered for sale to a member of the general public.”.

(c) Requirements for tracking of tobacco products.—

(1) IN GENERAL.—Subchapter B of chapter 52 is amended by adding at the end the following new section:

“SEC. 5714. Export bonds.

“(a) Posting of bond.—

“(1) IN GENERAL.—It shall be unlawful for any person to export any tobacco product unless such person—

“(A) has posted with the Secretary a tobacco product bond in accordance with this section for such product that contains a disclosure of the country to which such product will be exported; and

“(B) receives a written statement from the recipient of the tobacco products involved that such person—

“(i) will not knowingly and willfully violate or cause to be violated any law or regulation of such country, the United States, any State, the District of Columbia, or any possession of the United States with respect to such products; and

“(ii) has never been convicted of any offense with respect to tobacco products.

“(2) REGULATIONS.—The Secretary shall promulgate regulations that determine the frequency and the amount of each bond that must be posted under paragraph (1), but in no case shall such amount be less than an amount equal to the tax imposed under this chapter on the value of the shipment of the products involved if such products were consumed within the United States.

“(3) EXPORT.—For purposes of this subsection, property shall be treated as exported if it is shipped to a foreign country, Puerto Rico, the Virgin Islands, or a possession of the United States, or for consumption beyond the jurisdiction of the internal revenue laws of the United States.

“(b) Return of bond.—The Secretary shall return a bond posted under subsection (a)—

“(1) upon a determination by the Secretary (based on documentation provided by the person who posted the bond in accordance with regulations promulgated by the Secretary) that the items to which the bond applies have been received in the country of final destination as designated in the bond, or

“(2) under such other circumstance as the Secretary may specify which is consistent with the purposes of this chapter.”.

(2) CLERICAL AMENDMENT.—The table of sections for such subchapter B is amended by adding at the end the following new item:


“Sec. 5714. Export bonds.”.

SEC. 103. Wholesalers required to have permit.

Section 5712 (relating to application for permit) is amended by inserting “, wholesaler,” after “manufacturer”.

SEC. 104. Conditions of permit.

Subsection (a) of section 5713 (relating to issuance of permit) is amended to read as follows:

“(a) Issuance.—

“(1) IN GENERAL.—A person shall not engage in business as a manufacturer, wholesaler, or importer of tobacco products or as an export warehouse proprietor without a permit to engage in such business. Such permit shall be issued in such form and in such manner as the Secretary shall by regulation prescribe, to every person properly qualified under sections 5711 and 5712. A new permit may be required at such other time as the Secretary shall by regulation prescribe.

“(2) CONDITIONS.—The issuance of a permit under this section shall be conditioned upon the compliance with the requirements of—

“(A) this chapter,

“(B) chapter 114 of title 18, United States Code,

“(C) the Act of October 19, 1949 (15 U.S.C. 375 et seq.),

“(D) any regulations issued pursuant to such statutes, and

“(E) any other federal laws or regulations relating to the taxation, manufacture, distribution, marketing, sale, or transportation of tobacco products.”.

SEC. 105. Records to be maintained.

Section 5741 (relating to records to be maintained) is amended—

(1) by inserting “(a) In general.—” before “Every manufacturer”,

(2) by inserting “every wholesaler,” after “every importer,”,

(3) by striking “such records” and inserting “records concerning the chain of custody of the tobacco products (including the foreign country of final destination for packages marked for export) and such other records”, and

(4) by adding at the end the following new subsection:

“(b) Retailers.—Retailers shall maintain records of receipt of tobacco products, and such records shall be available to the Secretary for inspection and audit. An ordinary commercial record or invoice shall satisfy the requirements of this subsection if such record shows the date of receipt, from whom tobacco products were received, and the quantity of tobacco products received. The preceding provisions of this subsection shall not be construed to limit or preclude other recordkeeping requirements imposed on any retailer.”.

SEC. 106. Reports.

Section 5722 (relating to reports) is amended—

(1) by inserting “(a) In general.—” before “Every manufacturer”, and

(2) by adding at the end the following new subsection:

“(b) Reports by export warehouse proprietors.—

“(1) IN GENERAL.—Prior to exportation of tobacco products from the United States, the export warehouse proprietor shall submit a report (in such manner and form as the Secretary may by regulation prescribe) to enable the Secretary to identify the shipment and assure that it reaches its intended destination.

“(2) AGREEMENTS WITH FOREIGN GOVERNMENTS.—Notwithstanding section 6103 of this title, the Secretary is authorized to enter into agreements with foreign governments to exchange or share information contained in reports received from export warehouse proprietors of tobacco products if—

“(A) the Secretary believes that such agreement will assist in—

“(i) ensuring compliance with the provisions of this chapter or regulations promulgated thereunder, or

“(ii) preventing or detecting violations of the provisions of this chapter or regulations promulgated thereunder, and

“(B) the Secretary obtains assurances from such government that the information will be held in confidence and used only for the purposes specified in clauses (i) and (ii) of subparagraph (A).

No information may be exchanged or shared with any government that has violated such assurances.”.

SEC. 107. Fraudulent offenses.

(a) In General.—Subsection (a) of section 5762 (relating to fraudulent offenses) is amended by striking paragraph (1) and redesignating paragraphs (2) through (6) as paragraphs (1) through (5), respectively.

(b) Offenses relating to distribution of tobacco products.—Section 5762 is amended—

(1) by redesignating subsection (b) as subsection (c),

(2) in subsection (c) (as so redesignated), by inserting “or (b)” after “(a)”, and

(3) by inserting after subsection (a) the following new subsection:

“(b) Offenses relating to distribution of tobacco products.—It shall be unlawful—

“(1) for any person to engage in the business as a manufacturer or importer of tobacco products or cigarette papers and tubes, or to engage in the business as a wholesaler or an export warehouse proprietor, without filing the bond and obtaining the permit where required by this chapter or regulations thereunder;

“(2) for a manufacturer, importer, or wholesaler permitted under this chapter intentionally to ship, transport, deliver, or receive any tobacco products from or to any person other than a person permitted under this chapter or a retailer, except a permitted importer may receive foreign tobacco products from a foreign manufacturer or a foreign distributor that have not previously entered the United States;

“(3) for any person (other than the original manufacturer of such tobacco products or an export warehouse proprietor authorized to receive any tobacco products that have previously been exported and returned to the United States) to receive any tobacco products that have previously been exported and returned to the United States;

“(4) for any export warehouse proprietor intentionally to ship, transport, sell, or deliver for sale any tobacco products to any person other than the original manufacturer of such tobacco products, another export warehouse proprietor, or a foreign purchaser;

“(5) for any person (other than a manufacturer or an export warehouse proprietor permitted under this chapter) intentionally to ship, transport, receive, or possess, for purposes of resale, any tobacco product in packages marked pursuant to regulations issued under section 5723, other than for direct return to a manufacturer for repacking or for re-exportation or to an export warehouse proprietor for re-exportation;

“(6) for any manufacturer, importer, export warehouse proprietor, or wholesaler permitted under this chapter to make intentionally any false entry in, to fail willfully to make appropriate entry in, or to fail willfully to maintain properly any record or report that such person is required to keep as required by this chapter or the regulations promulgated thereunder;

“(7) for any person to alter, mutilate, destroy, obliterate, or remove any mark or label required under this chapter upon a tobacco product held for sale, except pursuant to regulations of the Secretary authorizing relabeling for purposes of compliance with the requirements of this section or of State law, or to create, possess, or apply on any tobacco product or its packaging any counterfeit versions of any such marks or labels; and

“(8) for any person to sell at retail more than 5,000 cigarettes in a single transaction or in a series of related transactions, or, in the case of other tobacco products, an equivalent quantity as determined by regulation.

Any person violating any of the provisions of this subsection shall, upon conviction, be fined as provided in section 3571 of title 18, United States Code, or imprisoned for not more than 5 years, or both.”.

(c) Intentionally defined.—Section 5762 is amended by adding at the end the following:

“(d) Definition of intentionally.—For purposes of this section and section 5761, the term ‘intentionally’ means doing an act, or omitting to do an act, deliberately, and not due to accident, inadvertence, or mistake, regardless of whether the person knew that the act or omission constituted an offense.”.

SEC. 108. Civil penalties.

Subsection (a) of section 5761 (relating to civil penalties) is amended—

(1) by striking “willfully” and inserting “intentionally”, and

(2) by striking “$1,000” and inserting “$10,000”.

SEC. 109. Definitions.

(a) Export warehouse proprietor.—Subsection (i) of section 5702 (relating to definition of export warehouse proprietor) is amended by inserting before the period the following: “or any person engaged in the business of exporting tobacco products from the United States for purposes of sale or distribution. Any duty free store that sells, offers for sale, or otherwise distributes to any person in any single transaction more than 30 packages of cigarettes, or its equivalent for other tobacco products as the Secretary shall by regulation prescribe, shall be deemed an export warehouse proprietor under this chapter”.

(b) Retailer; wholesaler.—Section 5702 is amended by adding at the end the following new subsections:

“(p) Retailer.—The term ‘retailer’ means any dealer who sells, or offers for sale, any tobacco product at retail. The term ‘retailer’ includes any duty free store that sells, offers for sale, or otherwise distributes at retail in any single transaction 30 or fewer packages of cigarettes or its equivalent for other tobacco products.

“(q) Wholesaler.—The term ‘wholesaler’ means any person engaged in the business of purchasing tobacco products for resale at wholesale, or any person acting as an agent or broker for any person engaged in the business of purchasing tobacco products for resale at wholesale.”.

SEC. 110. Effective date.

(a) In general.—Except as provided in subsection (b), the amendments made by this title shall take effect on January 1, 2009.

(b) Additional tobacco mark system.—The amendments made by subparagraph (C) of section 102(a)(1) of this Act shall take effect on the date of the enactment of this Act.

SEC. 201. Expanding scope of penal provisions relating to trafficking in contraband tobacco products.

(a) Provisions relating to definition of tobacco products.—

(1) IN GENERAL.—Paragraphs (1) and (2) of section 2341 of title 18, United States Code, are amended to read as follows:

“(1) the term ‘tobacco product’ has the meaning given to such term by section 5702 of the Internal Revenue Code of 1986;

“(2) the term ‘contraband tobacco product’ means any tobacco product if—

“(A)(i) in the case of cigarettes, such cigarettes are in a quantity in excess of 2,000 cigarettes; or

“(ii) in the case of a tobacco product other than a cigarette, such product is in a quantity in excess of the equivalent of 2,000 cigarettes as determined under rules made by the Attorney General;

“(B) such tobacco product is not marked with a Federal tax stamp, meter impression, or other Federal tax-payment indicia as required by law;

“(C) such tobacco product is marked with a counterfeit, stolen, or unauthorized Federal or State tax stamp, meter impression, or other tax-payment indicia;

“(D) such tobacco product is a counterfeit tobacco product, including tobacco products having any counterfeit markings, labels, or packaging or bearing any unauthorized trademarks;

“(E) such tobacco product has been brought into the United States illegally;

“(F)(i) if the State or other jurisdiction in which such tobacco product is found requires a stamp, impression, or other indication to be placed on packages or other containers of product to evidence payment of tobacco taxes, such tobacco product bears no evidence of such payment; or

“(ii) if such State or other such jurisdiction has no such requirement, applicable tobacco taxes are found to be not paid; and

“(G) such tobacco product is in the possession of any person other than—

“(i) a person holding a permit issued pursuant to chapter 52 of the Internal Revenue Code of 1986 as a manufacturer or importer of tobacco products or as an export warehouse proprietor, or a person operating a customs bonded warehouse pursuant to section 311 or 555 of the Tariff Act of 1930 (19 U.S.C. 1311 or 1555) or an agent of such person;

“(ii) a common or contract carrier transporting the tobacco product involved under a proper bill of lading or freight bill which states the quantity, source, and destination of such product;

“(iii) a person—

“(I) who is licensed or otherwise authorized by the State where the tobacco product is found to account for and pay tobacco taxes imposed by such State; and

“(II) who has complied with the accounting and payment requirements relating to such license or authorization with respect to the tobacco product involved; or

“(iv) an officer, employee, or other agent of the United States or a State, or any department, agency, or instrumentality of the United States or a State (including any political subdivision of a State) having possession of such tobacco product in connection with the performance of official duties;”.

(2) CIGARETTES.—Section 2341 of title 18, United States Code, is amended by adding at the end the following new paragraph:

“(8) the term ‘cigarette’ has the meaning given such term by section 5702 of the Internal Revenue Code of 1986.”.

(3) CONFORMING AMENDMENTS.—Section 2341 of title 18, United States Code, as amended by paragraph (2), is amended—

(A) by inserting “and” at the end of paragraph (5);

(B) by striking paragraphs (6) and (7); and

(C) by redesignating paragraph (8) as paragraph (6).

(b) Provisions relating to unlawful acts.—Section 2342 of title 18, United States Code, is amended to read as follows:

§ 2342. Unlawful acts

“(a) It shall be unlawful for any person knowingly to ship, transport, receive, possess, sell, distribute, or purchase contraband tobacco products.

“(b) It shall be unlawful for any person knowingly—

“(1) to make any false statement or representation with respect to the information required by this chapter to be kept in the records or reports of any person who ships, sells, or distributes (in a single transaction or in a series of related transactions) any quantity of tobacco product in excess of the quantity specified in or pursuant to section 2341(2)(A) with respect to such product; or

“(2) to fail to maintain records or reports, alter or obliterate required markings, or interfere with any inspection, required under this chapter, with respect to such quantity of tobacco product.

“(c) It shall be unlawful for any person knowingly to transport tobacco products under a false bill of lading or without any bill of lading.”.

(c) Provisions relating to recordkeeping, reporting, and inspection requirements.—

(1) IN GENERAL.—Section 2343 of title 18, United States Code, is amended—

(A) in subsection (a), by striking “any quantity of cigarettes in excess of 10,000, or” and all that follows through “cans or packages, in a single transaction” and inserting “(in a single transaction or in a series of related transactions) any quantity of tobacco product in excess of the quantity specified in or pursuant to section 2341(2)(A) with respect to such product”;

(B) in subsection (b), by striking “any quantity in excess of 10,000 cigarettes, or” and all that follows through “smokeless tobacco, or their equivalent” and inserting “any quantity of tobacco product in excess of the quantity specified in or pursuant to section 2341(2)(A) with respect to such product”; and

(C) in subsection (c), by striking “any quantity of cigarettes in excess of 10,000 in a single transaction” and inserting “(in a single transaction or in a series of related transactions) any quantity of tobacco product in excess of the quantity specified in or pursuant to section 2341(2)(A) with respect to such product”.

(2) CONFORMING AMENDMENTS.—Section 2343 of title 18, United States Code, as amended by paragraph (1) of this subsection, is amended—

(A) in paragraph (2) of subsection (e), by striking “are” and inserting “is”; and

(B) by striking—

(i) “cigarettes” each place it appears in subsections (a) and (c);

(ii) “cigarettes and cans or packages of smokeless tobacco” each place it appears in subsection (b); and

(iii) “cigarettes or smokeless tobacco” each place it appears in subsection (e);

and inserting ‘tobacco product’.

(d) Provisions relating to machines used To manufacture or package cigarettes or other tobacco products.—Chapter 114 of title 18, United State Code, is amended by inserting after section 2343 the following:

§ 2343A. Machines used to manufacture or package cigarettes or other tobacco products

“(a) Any machine used to manufacture or package tobacco products shall be sold, leased, or delivered only to persons lawfully engaged in the sale, lease, or delivery of such machines or lawfully engaged in the manufacture of tobacco products, and that have all permits or licenses required to engage in such activities by the laws of the country and other jurisdictions where the person is located.

“(b) Any machine used to apply or affix tax stamps, meter impressions, or other tax-payment indicia to packages of tobacco products shall be sold, leased, or delivered only to persons lawfully engaged in the sale, lease, or delivery of such machines or lawfully engaged in the application of such stamps, meter impressions or other tax-payment indicia onto tobacco product packages, and that have all permits or licenses required to engage in such activities by the laws of the country and other jurisdictions where the person is located.

“(c) No machine used in the manufacture or packaging of tobacco products or in the application of tax stamps, meter impressions, or other tax-payment indicia to packages of tobacco products shall knowingly be manufactured for or be sold, leased, delivered, directly or indirectly, or otherwise made available to any person engaged in the manufacture, distribution or sale of counterfeit or contraband tobacco products or counterfeit tax stamps, meter impressions, or other tax-payment indicia.

“(d) Any machine used to manufacture or package tobacco products or to apply or affix tax stamps, meter impressions, or other tax-payment indicia to packages of tobacco products that is no longer being used or offered for that purpose shall be made irreparably inoperable for those purposes before being disposed of or put to any other use. This paragraph shall not apply to any such machines being kept solely for display or for historical purposes.

“(e) Any person manufacturing, selling, leasing, delivering, or disposing of a machine used to manufacture or package tobacco products or to apply or affix tax stamps, meter impressions, or other tax-payment indicia to packages of tobacco products shall maintain and keep records relating to any transfers of deliveries of the machine, including the name, address, and other contact information of any person ordering, buying, leasing, or receiving delivery of the machine. Such reports shall be made available to the Secretary and other federal and state government law enforcement officials for inspection and audit upon request. An ordinary commercial record or invoice shall satisfy the requirements of this subsection if such record describes the transaction and the related machine and provides the date of the transaction and the name and contact information of all persons parties to the transaction or acting as agents for those parties in regard to the transaction.

“(f) This section shall not apply to machines meant and expected for use only by individual consumers of tobacco products for personal use.”.

(e) Provisions relating to penalties.—Section 2344 of title 18, United States Code, is amended—

(1) in subsection (a), by inserting “or subsection (a), (b), or (c) of section 2343A” after “section 2342(a)”, and

(2) in subsection (b), by striking “section 2342(b)” and inserting “subsection (b) or (c) of section 2342 or subsection (d) or (e) of section 2343A”.

(f) Provisions relating to effect on State and local law.—Section 2345 of title 18, United States Code, is amended—

(1) by striking “cigarette tax laws” each place it appears and inserting “tobacco product tax laws”; and

(2) by striking “cigarettes or smokeless tobacco” and inserting “tobacco products”.

(g) Clerical amendments.—(1) The heading for chapter 114 of title 18, United States Code, is amended to read as follows:

“CHAPTER 114TRAFFICKING IN CONTRABAND TOBACCO PRODUCTS”.

(2) The table of chapters at the beginning of part I of title 18, United States Code, is amended by striking the item relating to section 114 and inserting the following new item:

“114. Trafficking in contraband tobacco products ............................
2341”.


(3) The table of sections for chapter 114 of title 18, United States Code, is amended by inserting after the item relating to section 2343 the following new item:


“2343A. Machines used to manufacture or package cigarettes or other tobacco products.”.

SEC. 202. Creating right of action for State tobacco tax administrator for failure to report.

(a) In general.—(1) Section 4 of the Act of October 19, 1949 (15 U.S.C. 378) is amended by adding at the end the following: “A State tobacco tax administrator may commence a civil action to obtain appropriate relief with respect to a violation of this Act.”.

(2) Section 1 of such Act is amended by striking paragraph (2) and inserting following new paragraph:

“(2) The term ‘tobacco product’ has the meaning given to such term by section 5702 of the Internal Revenue Code of 1986.”.

(b) Conforming amendment.—Such Act is further amended by striking “cigarette” and “cigarettes” each place either appears and inserting “tobacco product” and “tobacco products”, respectively.

SEC. 301. Whistleblower protection.

(a) In General.—Chapter 73 of title 18, United States Code, is amended by inserting after section 1514A the following:

§ 1514B. Civil action to protect against retaliation in contraband tobacco cases

“(a) Whistleblower protection for contraband tobacco.—No person may discharge, demote, suspend, threaten, harass, or in any other manner discriminate against an employee in the terms and conditions of employment because of any lawful act done by the employee—

“(1) to provide information, cause information to be provided, or otherwise assist in an investigation regarding any conduct which the employee reasonably believes constitutes a violation of section 2342 or any other provision of Federal law relating to contraband tobacco, when the information or assistance is provided to or the investigation is conducted by—

“(A) a Federal regulatory or law enforcement agency;

“(B) any Member of Congress or any committee of Congress; or

“(C) a person with supervisory authority over the employee (or such other person working for the employer who has the authority to investigate, discover, or terminate misconduct); or

“(2) to file, cause to be filed, testify, participate in, or otherwise assist in a proceeding filed or about to be filed (with any knowledge of the employer) relating to an alleged violation of section 2342, or any provision of Federal law relating to contraband tobacco.

“(b) Enforcement action.—

“(1) IN GENERAL.—A person who alleges discharge or other discrimination by any person in violation of subsection (a) may seek relief under subsection (c), by—

“(A) filing a complaint with the Secretary of Labor; or

“(B) if the Secretary has not issued a final decision within 180 days of the filing of the complaint and there is no showing that such delay is due to the bad faith of the claimant, bringing an action at law or equity for de novo review in the appropriate district court of the United States, which shall have jurisdiction over such an action without regard to the amount in controversy.

“(2) PROCEDURE.—

“(A) IN GENERAL.—An action under paragraph (1)(A) shall be governed under the rules and procedures set forth in section 42121(b) of title 49, United States Code.

“(B) EXCEPTION.—Notification made under section 42121(b)(1) of title 49, United States Code, shall be made to the person named in the complaint and to the employer.

“(C) BURDENS OF PROOF.—An action brought under paragraph (1)(B) shall be governed by the legal burdens of proof set forth in section 42121(b) of title 49, United States Code.

“(D) STATUTE OF LIMITATIONS.—An action under paragraph (1) shall be commenced not later than 90 days after the date on which the violation occurs.

“(c) Remedies.—

“(1) IN GENERAL.—An employee prevailing in any action under subsection (b)(1) shall be entitled to all relief necessary to make the employee whole.

“(2) COMPENSATORY DAMAGES.—Relief for any action under paragraph (1) shall include—

“(A) reinstatement with the same seniority status that the employee would have had, but for the discrimination;

“(B) the amount of back pay, with interest; and

“(C) compensation for any special damages sustained as a result of the discrimination, including litigation costs, expert witness fees, and reasonable attorney fees.

“(d) Rights retained by employee.—Nothing in this section shall be deemed to diminish the rights, privileges, or remedies of any employee under any Federal or State law, or under any collective bargaining agreement.”.

(b) Clerical amendment.—The table of sections at the beginning of chapter 73 of title 18, United States Code, is amended by inserting after the item relating to section 1514A the following new item:


“1514B. Civil action to protect against retaliation in contraband tobacco cases”.