[United States Statutes at Large, Volume 124, 111th Congress, 2nd Session]
[From the U.S. Government Printing Office, www.gpo.gov]


Public Law 111-154
111th Congress

An Act


 
To prevent tobacco smuggling, to ensure the collection of all tobacco
taxes, 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; FINDINGS; PURPOSES.

(a) <> Short Title.--This Act may be cited
as the ``Prevent All Cigarette Trafficking Act of 2009'' or ``PACT
Act''.

(b) <>  Findings.--Congress finds that--
(1) the sale of illegal cigarettes and smokeless tobacco
products significantly reduces Federal, State, and local
government revenues, with Internet sales alone accounting for
billions of dollars of lost Federal, State, and local tobacco
tax revenue each year;
(2) Hezbollah, Hamas, al Qaeda, and other terrorist
organizations have profited from trafficking in illegal
cigarettes or counterfeit cigarette tax stamps;
(3) terrorist involvement in illicit cigarette trafficking
will continue to grow because of the large profits such
organizations can earn;
(4) the sale of illegal cigarettes and smokeless tobacco
over the Internet, and through mail, fax, or phone orders, makes
it cheaper and easier for children to obtain tobacco products;
(5) the majority of Internet and other remote sales of
cigarettes and smokeless tobacco are being made without adequate
precautions to protect against sales to children, without the
payment of applicable taxes, and without complying with the
nominal registration and reporting requirements in existing
Federal law;
(6) unfair competition from illegal sales of cigarettes and
smokeless tobacco is taking billions of dollars of sales away
from law-abiding retailers throughout the United States;
(7) with rising State and local tobacco tax rates, the
incentives for the illegal sale of cigarettes and smokeless
tobacco have increased;
(8) the number of active tobacco investigations being
conducted by the Bureau of Alcohol, Tobacco, Firearms, and
Explosives rose to 452 in 2005;
(9) the number of Internet vendors in the United States and
in foreign countries that sell cigarettes and smokeless tobacco
to buyers in the United States increased from only about 40 in
2000 to more than 500 in 2005; and

[[Page 1088]]

(10) the intrastate sale of illegal cigarettes and smokeless
tobacco over the Internet has a substantial effect on interstate
commerce.

(c) Purposes.--It is the purpose of this Act to--
(1) require Internet and other remote sellers of cigarettes
and smokeless tobacco to comply with the same laws that apply to
law-abiding tobacco retailers;
(2) create strong disincentives to illegal smuggling of
tobacco products;
(3) provide government enforcement officials with more
effective enforcement tools to combat tobacco smuggling;
(4) make it more difficult for cigarette and smokeless
tobacco traffickers to engage in and profit from their illegal
activities;
(5) increase collections of Federal, State, and local excise
taxes on cigarettes and smokeless tobacco; and
(6) prevent and reduce youth access to inexpensive
cigarettes and smokeless tobacco through illegal Internet or
contraband sales.
SEC. 2. COLLECTION OF STATE CIGARETTE AND SMOKELESS TOBACCO TAXES.

(a) Definitions.--The Act of October 19, 1949 (15 U.S.C. 375 et
seq.; commonly referred to as the ``Jenkins Act'') (referred to in this
Act as the ``Jenkins Act''), is amended by striking the first
section <>  and inserting the following:
``SECTION 1. DEFINITIONS.

``As used in this Act, the following definitions apply:
``(1) Attorney general.--The term `attorney general', with
respect to a State, means the attorney general or other chief
law enforcement officer of the State.
``(2) Cigarette.--
``(A) In general.--The term `cigarette'--
``(i) has the meaning given that term in
section 2341 of title 18, United States Code; and
``(ii) includes roll-your-own tobacco (as
defined in section 5702 of the Internal Revenue
Code of 1986).
``(B) Exception.--The term `cigarette' does not
include a cigar (as defined in section 5702 of the
Internal Revenue Code of 1986).
``(3) Common carrier.--The term `common carrier' means any
person (other than a local messenger service or the United
States Postal Service) that holds itself out to the general
public as a provider for hire of the transportation by water,
land, or air of merchandise (regardless of whether the person
actually operates the vessel, vehicle, or aircraft by which the
transportation is provided) between a port or place and a port
or place in the United States.
``(4) Consumer.--The term `consumer'--
``(A) means any person that purchases cigarettes or
smokeless tobacco; and
``(B) does not include any person lawfully operating
as a manufacturer, distributor, wholesaler, or retailer
of cigarettes or smokeless tobacco.
``(5) Delivery sale.--The term `delivery sale' means any
sale of cigarettes or smokeless tobacco to a consumer if--

[[Page 1089]]

``(A) the consumer submits the order for the sale by
means of a telephone or other method of voice
transmission, the mails, or the Internet or other online
service, or the seller is otherwise not in the physical
presence of the buyer when the request for purchase or
order is made; or
``(B) the cigarettes or smokeless tobacco are
delivered to the buyer by common carrier, private
delivery service, or other method of remote delivery, or
the seller is not in the physical presence of the buyer
when the buyer obtains possession of the cigarettes or
smokeless tobacco.
``(6) Delivery seller.--The term `delivery seller' means a
person who makes a delivery sale.
``(7) Indian country.--The term `Indian country'--
``(A) has the meaning given that term in section
1151 of title 18, United States Code, except that within
the State of Alaska that term applies only to the
Metlakatla Indian Community, Annette Island Reserve; and
``(B) includes any other land held by the United
States in trust or restricted status for one or more
Indian tribes.
``(8) Indian tribe.--The term `Indian tribe', `tribe', or
`tribal' refers to an Indian tribe as defined in section 4(e) of
the Indian Self-Determination and Education Assistance Act (25
U.S.C. 450b(e)) or as listed pursuant to section 104 of the
Federally Recognized Indian Tribe List Act of 1994 (25 U.S.C.
479a-1).
``(9) Interstate commerce.--
``(A) In general.--The term `interstate commerce'
means commerce between a State and any place outside the
State, commerce between a State and any Indian country
in the State, or commerce between points in the same
State but through any place outside the State or through
any Indian country.
``(B) Into a state, place, or locality.--A sale,
shipment, or transfer of cigarettes or smokeless tobacco
that is made in interstate commerce, as defined in this
paragraph, shall be deemed to have been made into the
State, place, or locality in which such cigarettes or
smokeless tobacco are delivered.
``(10) Person.--The term `person' means an individual,
corporation, company, association, firm, partnership, society,
State government, local government, Indian tribal government,
governmental organization of such a government, or joint stock
company.
``(11) State.--The term `State' means each of the several
States of the United States, the District of Columbia, the
Commonwealth of Puerto Rico, or any territory or possession of
the United States.
``(12) Smokeless tobacco.--The term `smokeless tobacco'
means any finely cut, ground, powdered, or leaf tobacco, or
other product containing tobacco, that is intended to be placed
in the oral or nasal cavity or otherwise consumed without being
combusted.
``(13) Tobacco tax administrator.--The term `tobacco tax
administrator' means the State, local, or tribal official duly
authorized to collect the tobacco tax or administer the tax law
of a State, locality, or tribe, respectively.

[[Page 1090]]

``(14) Use.--The term `use' includes the consumption,
storage, handling, or disposal of cigarettes or smokeless
tobacco.''.

(b) Reports to State Tobacco Tax Administrators.--Section 2 of the
Jenkins Act (15 U.S.C. 376) is amended--
(1) by striking ``cigarettes'' each place it appears and
inserting ``cigarettes or smokeless tobacco'';
(2) in subsection (a)--
(A) in the matter preceding paragraph (1)--
(i) by inserting ``Contents.--'' after
``(a)'';
(ii) by striking ``or transfers'' and
inserting ``, transfers, or ships'';
(iii) by inserting ``, locality, or Indian
country of an Indian tribe'' after ``a State'';
(iv) by striking ``to other than a distributor
licensed by or located in such State,''; and
(v) by striking ``or transfer and shipment''
and inserting ``, transfer, or shipment'';
(B) in paragraph (1)--
(i) by striking ``with the tobacco tax
administrator of the State'' and inserting ``with
the Attorney General of the United States and with
the tobacco tax administrators of the State and
place''; and
(ii) by striking ``; and'' and inserting the
following: ``, as well as telephone numbers for
each place of business, a principal electronic
mail address, any website addresses, and the name,
address, and telephone number of an agent in the
State authorized to accept service on behalf of
the person;'';
(C) in paragraph (2), by striking ``and the quantity
thereof.'' and inserting ``the quantity thereof, and the
name, address, and phone number of the person delivering
the shipment to the recipient on behalf of the delivery
seller, with all invoice or memoranda information
relating to specific customers to be organized by city
or town and by zip code; and''; and
(D) by adding at the end the following:
``(3) with respect to each memorandum or invoice filed with
a State under paragraph (2), also file copies of the memorandum
or invoice with the tobacco tax administrators and chief law
enforcement officers of the local governments and Indian tribes
operating within the borders of the State that apply their own
local or tribal taxes on cigarettes or smokeless tobacco.'';
(3) in subsection (b)--
(A) by inserting ``Presumptive Evidence.--'' after
``(b)'';
(B) by striking ``(1) that'' and inserting ``that'';
and
(C) by striking ``, and (2)'' and all that follows
and inserting a period; and
(4) by adding at the end the following:

``(c) Use of Information.--A tobacco tax administrator or chief law
enforcement officer who receives a memorandum or invoice under paragraph
(2) or (3) of subsection (a) shall use the memorandum or invoice solely
for the purposes of the enforcement of this Act and the collection of
any taxes owed on related sales of cigarettes and smokeless tobacco, and
shall keep confidential

[[Page 1091]]

any personal information in the memorandum or invoice except as required
for such purposes.''.
(c) Requirements for Delivery Sales.--The Jenkins Act is amended by
inserting after section 2 the following:
``SEC. 2A. <> DELIVERY SALES.

``(a) In General.--With respect to delivery sales into a specific
State and place, each delivery seller shall comply with--
``(1) the shipping requirements set forth in subsection (b);
``(2) the recordkeeping requirements set forth in subsection
(c);
``(3) all State, local, tribal, and other laws generally
applicable to sales of cigarettes or smokeless tobacco as if the
delivery sales occurred entirely within the specific State and
place, including laws imposing--
``(A) excise taxes;
``(B) licensing and tax-stamping requirements;
``(C) restrictions on sales to minors; and
``(D) other payment obligations or legal
requirements relating to the sale, distribution, or
delivery of cigarettes or smokeless tobacco; and
``(4) the tax collection requirements set forth in
subsection (d).

``(b) Shipping and Packaging.--
``(1) Required statement.--For any shipping package
containing cigarettes or smokeless tobacco, the delivery seller
shall include on the bill of lading, if any, and on the outside
of the shipping package, on the same surface as the delivery
address, a clear and conspicuous statement providing as follows:
`CIGARETTES/SMOKELESS TOBACCO: FEDERAL LAW REQUIRES THE PAYMENT
OF ALL APPLICABLE EXCISE TAXES, AND COMPLIANCE WITH APPLICABLE
LICENSING AND TAX-STAMPING OBLIGATIONS'.
``(2) Failure to label.--Any shipping package described in
paragraph (1) that is not labeled in accordance with that
paragraph shall be treated as nondeliverable matter by a common
carrier or other delivery service, if the common carrier or
other delivery service knows or should know the package contains
cigarettes or smokeless tobacco. If a common carrier or other
delivery service believes a package is being submitted for
delivery in violation of paragraph (1), it may require the
person submitting the package for delivery to establish that it
is not being sent in violation of paragraph (1) before accepting
the package for delivery. Nothing in this paragraph shall
require the common carrier or other delivery service to open any
package to determine its contents.
``(3) Weight restriction.--A delivery seller shall not sell,
offer for sale, deliver, or cause to be delivered in any single
sale or single delivery any cigarettes or smokeless tobacco
weighing more than 10 pounds.
``(4) Age verification.--
``(A) In general.--A delivery seller who mails or
ships tobacco products--
``(i) shall not sell, deliver, or cause to be
delivered any tobacco products to a person under
the minimum age required for the legal sale or
purchase of tobacco

[[Page 1092]]

products, as determined by the applicable law at
the place of delivery;
``(ii) shall use a method of mailing or
shipping that requires--
``(I) the purchaser placing the
delivery sale order, or an adult who is
at least the minimum age required for
the legal sale or purchase of tobacco
products, as determined by the
applicable law at the place of delivery,
to sign to accept delivery of the
shipping container at the delivery
address; and
``(II) the person who signs to
accept delivery of the shipping
container to provide proof, in the form
of a valid, government-issued
identification bearing a photograph of
the individual, that the person is at
least the minimum age required for the
legal sale or purchase of tobacco
products, as determined by the
applicable law at the place of delivery;
and
``(iii) shall not accept a delivery sale order
from a person without--
``(I) obtaining the full name, birth
date, and residential address of that
person; and
``(II) verifying the information
provided in subclause (I), through the
use of a commercially available database
or aggregate of databases, consisting
primarily of data from government
sources, that are regularly used by
government and businesses for the
purpose of age and identity verification
and authentication, to ensure that the
purchaser is at least the minimum age
required for the legal sale or purchase
of tobacco products, as determined by
the applicable law at the place of
delivery.
``(B) Limitation.--No database being used for age
and identity verification under subparagraph (A)(iii)
shall be in the possession or under the control of the
delivery seller, or be subject to any changes or
supplementation by the delivery seller.

``(c) Records.--
``(1) In general.--Each delivery seller shall keep a record
of any delivery sale, including all of the information described
in section 2(a)(2), organized by the State, and within the
State, by the city or town and by zip code, into which the
delivery sale is so made.
``(2) Record retention.--Records of a delivery sale shall be
kept as described in paragraph (1) until the end of the 4th full
calendar year that begins after the date of the delivery sale.
``(3) Access for officials.--Records kept under paragraph
(1) shall be made available to tobacco tax administrators of the
States, to local governments and Indian tribes that apply local
or tribal taxes on cigarettes or smokeless tobacco, to the
attorneys general of the States, to the chief law enforcement
officers of the local governments and Indian tribes, and to the
Attorney General of the United States in order to ensure the
compliance of persons making delivery sales with the
requirements of this Act.

[[Page 1093]]

``(d) Delivery.--
``(1) In general.--Except as provided in paragraph (2), no
delivery seller may sell or deliver to any consumer, or tender
to any common carrier or other delivery service, any cigarettes
or smokeless tobacco pursuant to a delivery sale unless, in
advance of the sale, delivery, or tender--
``(A) any cigarette or smokeless tobacco excise tax
that is imposed by the State in which the cigarettes or
smokeless tobacco are to be delivered has been paid to
the State;
``(B) any cigarette or smokeless tobacco excise tax
that is imposed by the local government of the place in
which the cigarettes or smokeless tobacco are to be
delivered has been paid to the local government; and
``(C) any required stamps or other indicia that the
excise tax has been paid are properly affixed or applied
to the cigarettes or smokeless tobacco.
``(2) Exception.--Paragraph (1) does not apply to a delivery
sale of smokeless tobacco if the law of the State or local
government of the place where the smokeless tobacco is to be
delivered requires or otherwise provides that delivery sellers
collect the excise tax from the consumer and remit the excise
tax to the State or local government, and the delivery seller
complies with the requirement.

``(e) List of Unregistered or Noncompliant Delivery Sellers.--
``(1) In general.--
``(A) Initial list.--Not <>  later
than 90 days after this subsection goes into effect
under the Prevent All Cigarette Trafficking Act of 2009,
the Attorney General of the United States shall compile
a list of delivery sellers of cigarettes or smokeless
tobacco that have not registered with the Attorney
General of the United States pursuant to section 2(a),
or that are otherwise not in compliance with this Act,
and--
``(i) distribute the list to--
``(I) the attorney general and tax
administrator of every State;
``(II) common carriers and other
persons that deliver small packages to
consumers in interstate commerce,
including the United States Postal
Service; and
``(III) any other person that the
Attorney General of the United States
determines can promote the effective
enforcement of this Act; and
``(ii) publicize and make the list available
to any other person engaged in the business of
interstate deliveries or who delivers cigarettes
or smokeless tobacco in or into any State.
``(B) List contents.--To the extent known, the
Attorney General of the United States shall include, for
each delivery seller on the list described in
subparagraph (A)--
``(i) all names the delivery seller uses or
has used in the transaction of its business or on
packages delivered to customers;

[[Page 1094]]

``(ii) all addresses from which the delivery
seller does or has done business, or ships or has
shipped cigarettes or smokeless tobacco;
``(iii) the website addresses, primary e-mail
address, and phone number of the delivery seller;
and
``(iv) any other information that the Attorney
General of the United States determines would
facilitate compliance with this subsection by
recipients of the list.
``(C) Updating.--The <> Attorney
General of the United States shall update and distribute
the list described in subparagraph (A) at least once
every 4 months, and may distribute the list and any
updates by regular mail, electronic mail, or any other
reasonable means, or by providing recipients with access
to the list through a nonpublic website that the
Attorney General of the United States regularly updates.
``(D) State, local, or tribal additions.--
The <>  Attorney General of the
United States shall include in the list described in
subparagraph (A) any noncomplying delivery sellers
identified by any State, local, or tribal government
under paragraph (6), and shall distribute the list to
the attorney general or chief law enforcement official
and the tax administrator of any government submitting
any such information, and to any common carriers or
other persons who deliver small packages to consumers
identified by any government pursuant to paragraph (6).
``(E) Accuracy and completeness of list of
noncomplying delivery sellers.--In preparing and
revising the list described in subparagraph (A), the
Attorney General of the United States shall--
``(i) use reasonable procedures to ensure
maximum possible accuracy and completeness of the
records and information relied on for the purpose
of determining that a delivery seller is not in
compliance with this Act;
``(ii) <>  not later
than 14 days before including a delivery seller on
the list, make a reasonable attempt to send notice
to the delivery seller by letter, electronic mail,
or other means that the delivery seller is being
placed on the list, which shall cite the relevant
provisions of this Act and the specific reasons
for which the delivery seller is being placed on
the list;
``(iii) provide an opportunity to the delivery
seller to challenge placement on the list;
``(iv) <>  investigate each
challenge described in clause (iii) by contacting
the relevant Federal, State, tribal, and local law
enforcement officials, and provide the specific
findings and results of the investigation to the
delivery seller not later than 30 days after the
date on which the challenge is made; and
``(v) <>
if the Attorney General of the United States
determines that the basis for including a delivery
seller on the list is inaccurate, based on
incomplete information, or cannot be verified,
promptly remove the delivery seller from the list
as appropriate and notify

[[Page 1095]]

each appropriate Federal, State, tribal, and local
authority of the determination.
``(F) Confidentiality.--The list described in
subparagraph (A) shall be confidential, and any person
receiving the list shall maintain the confidentiality of
the list and may deliver the list, for enforcement
purposes, to any government official or to any common
carrier or other person that delivers tobacco products
or small packages to consumers. Nothing in this section
shall prohibit a common carrier, the United States
Postal Service, or any other person receiving the list
from discussing with a listed delivery seller the
inclusion of the delivery seller on the list and the
resulting effects on any services requested by the
listed delivery seller.
``(2) <>  Prohibition on delivery.--
``(A) In general.--Commencing on the date that is 60
days after the date of the initial distribution or
availability of the list described in paragraph (1)(A),
no person who receives the list under paragraph (1), and
no person who delivers cigarettes or smokeless tobacco
to consumers, shall knowingly complete, cause to be
completed, or complete its portion of a delivery of any
package for any person whose name and address are on the
list, unless--
``(i) the person making the delivery knows or
believes in good faith that the item does not
include cigarettes or smokeless tobacco;
``(ii) the delivery is made to a person
lawfully engaged in the business of manufacturing,
distributing, or selling cigarettes or smokeless
tobacco; or
``(iii) the package being delivered weighs
more than 100 pounds and the person making the
delivery does not know or have reasonable cause to
believe that the package contains cigarettes or
smokeless tobacco.
``(B) Implementation of updates.--Commencing on the
date that is 30 days after the date of the distribution
or availability of any updates or corrections to the
list described in paragraph (1)(A), all recipients and
all common carriers or other persons that deliver
cigarettes or smokeless tobacco to consumers shall be
subject to subparagraph (A) in regard to the corrections
or updates.
``(3) Exemptions.--
``(A) In general.--Subsection (b)(2) and any
requirements or restrictions placed directly on common
carriers under this subsection, including subparagraphs
(A) and (B) of paragraph (2), shall not apply to a
common carrier that--
``(i) is subject to a settlement agreement
described in subparagraph (B); or
``(ii) if a settlement agreement described in
subparagraph (B) to which the common carrier is a
party is terminated or otherwise becomes inactive,
is administering and enforcing policies and
practices throughout the United States that are at
least as stringent as the agreement.
``(B) Settlement agreement.--A settlement agreement
described in this subparagraph--

[[Page 1096]]

``(i) is a settlement agreement relating to
tobacco product deliveries to consumers; and
``(ii) includes--
``(I) the Assurance of
Discontinuance entered into by the
Attorney General of New York and DHL
Holdings USA, Inc. and DHL Express
(USA), Inc. on or about July 1, 2005,
the Assurance of Discontinuance entered
into by the Attorney General of New York
and United Parcel Service, Inc. on or
about October 21, 2005, and the
Assurance of Compliance entered into by
the Attorney General of New York and
Federal Express Corporation and FedEx
Ground Package Systems, Inc. on or about
February 3, 2006, if each of those
agreements is honored throughout the
United States to block illegal
deliveries of cigarettes or smokeless
tobacco to consumers; and
``(II) any other active agreement
between a common carrier and a State
that operates throughout the United
States to ensure that no deliveries of
cigarettes or smokeless tobacco shall be
made to consumers or illegally operating
Internet or mail-order sellers and that
any such deliveries to consumers shall
not be made to minors or without payment
to the States and localities where the
consumers are located of all taxes on
the tobacco products.
``(4) Shipments from persons on list.--
``(A) In general.--If a common carrier or other
delivery service delays or interrupts the delivery of a
package in the possession of the common carrier or
delivery service because the common carrier or delivery
service determines or has reason to believe that the
person ordering the delivery is on a list described in
paragraph (1)(A) and that clauses (i), (ii), and (iii)
of paragraph (2)(A) do not apply--
``(i) the person ordering the delivery shall
be obligated to pay--
``(I) the common carrier or other
delivery service as if the delivery of
the package had been timely completed;
and
``(II) if the package is not
deliverable, any reasonable additional
fee or charge levied by the common
carrier or other delivery service to
cover any extra costs and inconvenience
and to serve as a disincentive against
such noncomplying delivery orders; and
``(ii) if the package is determined not to be
deliverable, the common carrier or other delivery
service shall offer to provide the package and its
contents to a Federal, State, or local law
enforcement agency.
``(B) Records.-- <> A common
carrier or other delivery service shall maintain, for a
period of 5 years, any records kept in the ordinary
course of business relating to any delivery interrupted
under this paragraph and provide that information, upon
request, to the Attorney General of the United States or
to the attorney general or chief law

[[Page 1097]]

enforcement official or tax administrator of any State,
local, or tribal government.
``(C) Confidentiality.--Any person receiving records
under subparagraph (B) shall--
``(i) use the records solely for the purposes
of the enforcement of this Act and the collection
of any taxes owed on related sales of cigarettes
and smokeless tobacco; and
``(ii) keep confidential any personal
information in the records not otherwise required
for such purposes.
``(5) Preemption.--
``(A) In general.--No State, local, or tribal
government, nor any political authority of 2 or more
State, local, or tribal governments, may enact or
enforce any law or regulation relating to delivery sales
that restricts deliveries of cigarettes or smokeless
tobacco to consumers by common carriers or other
delivery services on behalf of delivery sellers by--
``(i) requiring that the common carrier or
other delivery service verify the age or identity
of the consumer accepting the delivery by
requiring the person who signs to accept delivery
of the shipping container to provide proof, in the
form of a valid, government-issued identification
bearing a photograph of the individual, that the
person is at least the minimum age required for
the legal sale or purchase of tobacco products, as
determined by either State or local law at the
place of delivery;
``(ii) requiring that the common carrier or
other delivery service obtain a signature from the
consumer accepting the delivery;
``(iii) requiring that the common carrier or
other delivery service verify that all applicable
taxes have been paid;
``(iv) requiring that packages delivered by
the common carrier or other delivery service
contain any particular labels, notice, or
markings; or
``(v) prohibiting common carriers or other
delivery services from making deliveries on the
basis of whether the delivery seller is or is not
identified on any list of delivery sellers
maintained and distributed by any entity other
than the Federal Government.
``(B) Relationship to other laws.--Except as
provided in subparagraph (C), nothing in this paragraph
shall be construed to nullify, expand, restrict, or
otherwise amend or modify--
``(i) section 14501(c)(1) or 41713(b)(4) of
title 49, United States Code;
``(ii) any other restrictions in Federal law
on the ability of State, local, or tribal
governments to regulate common carriers; or
``(iii) any provision of State, local, or
tribal law regulating common carriers that is
described in section 14501(c)(2) or 41713(b)(4)(B)
of title 49 of the United States Code.
``(C) State laws prohibiting delivery sales.--

[[Page 1098]]

``(i) In general.--Except as provided in
clause (ii), nothing in the Prevent All Cigarette
Trafficking Act of 2009, the amendments made by
that Act, or in any other Federal statute shall be
construed to preempt, supersede, or otherwise
limit or restrict State laws prohibiting the
delivery sale, or the shipment or delivery
pursuant to a delivery sale, of cigarettes or
other tobacco products to individual consumers or
personal residences.
``(ii) Exemptions.--No State may enforce
against a common carrier a law prohibiting the
delivery of cigarettes or other tobacco products
to individual consumers or personal residences
without proof that the common carrier is not
exempt under paragraph (3) of this subsection.
``(6) State, local, and tribal additions.--
``(A) In general.--Any State, local, or tribal
government shall provide the Attorney General of the
United States with--
``(i) all known names, addresses, website
addresses, and other primary contact information
of any delivery seller that--
``(I) offers for sale or makes sales
of cigarettes or smokeless tobacco in or
into the State, locality, or tribal
land; and
``(II) has failed to register with
or make reports to the respective tax
administrator as required by this Act,
or that has been found in a legal
proceeding to have otherwise failed to
comply with this Act; and
``(ii) <>  a list of common
carriers and other persons who make deliveries of
cigarettes or smokeless tobacco in or into the
State, locality, or tribal land.
``(B) Updates.--
<> Any government
providing a list to the Attorney General of the United
States under subparagraph (A) shall also provide updates
and corrections every 4 months until such time as the
government notifies the Attorney General of the United
States in writing that the government no longer desires
to submit information to supplement the list described
in paragraph (1)(A).
``(C) Removal after withdrawal.--Upon receiving
written notice that a government no longer desires to
submit information under subparagraph (A), the Attorney
General of the United States shall remove from the list
described in paragraph (1)(A) any persons that are on
the list solely because of the prior submissions of the
government of the list of the government of noncomplying
delivery sellers of cigarettes or smokeless tobacco or a
subsequent update or correction by the government.
``(7) Deadline to incorporate additions.--The Attorney
General of the United States shall--
``(A) include any delivery seller identified and
submitted by a State, local, or tribal government under
paragraph (6) in any list or update that is distributed
or made available under paragraph (1) on or after the
date that is 30 days after the date on which the
information is

[[Page 1099]]

received by the Attorney General of the United States;
and
``(B) distribute any list or update described in
subparagraph (A) to any common carrier or other person
who makes deliveries of cigarettes or smokeless tobacco
that has been identified and submitted by a government
pursuant to paragraph (6).
``(8) Notice to delivery sellers.--Not <>
later than 14 days before including any delivery seller on the
initial list described in paragraph (1)(A), or on an update to
the list for the first time, the Attorney General of the United
States shall make a reasonable attempt to send notice to the
delivery seller by letter, electronic mail, or other means that
the delivery seller is being placed on the list or update, with
that notice citing the relevant provisions of this Act.
``(9) Limitations.--
``(A) In general.--Any common carrier or other
person making a delivery subject to this subsection
shall not be required or otherwise obligated to--
``(i) determine whether any list distributed
or made available under paragraph (1) is complete,
accurate, or up-to-date;
``(ii) determine whether a person ordering a
delivery is in compliance with this Act; or
``(iii) open or inspect, pursuant to this Act,
any package being delivered to determine its
contents.
``(B) Alternate names.--Any common carrier or other
person making a delivery subject to this subsection--
``(i) shall not be required to make any
inquiries or otherwise determine whether a person
ordering a delivery is a delivery seller on the
list described in paragraph (1)(A) who is using a
different name or address in order to evade the
related delivery restrictions; and
``(ii) shall not knowingly deliver any
packages to consumers for any delivery seller on
the list described in paragraph (1)(A) who the
common carrier or other delivery service knows is
a delivery seller who is on the list and is using
a different name or address to evade the delivery
restrictions of paragraph (2).
``(C) Penalties.--Any common carrier or person in
the business of delivering packages on behalf of other
persons shall not be subject to any penalty under
section 14101(a) of title 49, United States Code, or any
other provision of law for--
``(i) not making any specific delivery, or any
deliveries at all, on behalf of any person on the
list described in paragraph (1)(A);
``(ii) refusing, as a matter of regular
practice and procedure, to make any deliveries, or
any deliveries in certain States, of any
cigarettes or smokeless tobacco for any person or
for any person not in the business of
manufacturing, distributing, or selling cigarettes
or smokeless tobacco; or
``(iii) delaying or not making a delivery for
any person because of reasonable efforts to comply
with this Act.

[[Page 1100]]

``(D) Other limits.--Section 2 and subsections (a),
(b), (c), and (d) of this section shall not be
interpreted to impose any responsibilities,
requirements, or liability on common carriers.

``(f) Presumption.--For purposes of this Act, a delivery sale shall
be deemed to have occurred in the State and place where the buyer
obtains personal possession of the cigarettes or smokeless tobacco, and
a delivery pursuant to a delivery sale is deemed to have been initiated
or ordered by the delivery seller.''.
(d) Penalties.--The Jenkins Act is amended by striking section
3 <> and inserting the following:
``SEC. 3. PENALTIES.

``(a) Criminal Penalties.--
``(1) In general.--Except as provided in paragraph (2),
whoever knowingly violates this Act shall be imprisoned for not
more than 3 years, fined under title 18, United States Code, or
both.
``(2) Exceptions.--
``(A) Governments.--Paragraph (1) shall not apply to
a State, local, or tribal government.
``(B) Delivery violations.--A common carrier or
independent delivery service, or employee of a common
carrier or independent delivery service, shall be
subject to criminal penalties under paragraph (1) for a
violation of section 2A(e) only if the violation is
committed knowingly--
``(i) as consideration for the receipt of, or
as consideration for a promise or agreement to
pay, anything of pecuniary value; or
``(ii) for the purpose of assisting a delivery
seller to violate, or otherwise evading compliance
with, section 2A.

``(b) Civil Penalties.--
``(1) In general.--Except as provided in paragraph (3),
whoever violates this Act shall be subject to a civil penalty in
an amount not to exceed--
``(A) in the case of a delivery seller, the greater
of--
``(i) $5,000 in the case of the first
violation, or $10,000 for any other violation; or
``(ii) for any violation, 2 percent of the
gross sales of cigarettes or smokeless tobacco of
the delivery seller during the 1-year period
ending on the date of the violation.
``(B) in the case of a common carrier or other
delivery service, $2,500 in the case of a first
violation, or $5,000 for any violation within 1 year of
a prior violation.
``(2) Relation to other penalties.--A civil penalty imposed
under paragraph (1) for a violation of this Act shall be imposed
in addition to any criminal penalty under subsection (a) and any
other damages, equitable relief, or injunctive relief awarded by
the court, including the payment of any unpaid taxes to the
appropriate Federal, State, local, or tribal governments.
``(3) Exceptions.--
``(A) Delivery violations.--An employee of a common
carrier or independent delivery service shall be subject
to civil penalties under paragraph (1) for a violation
of

[[Page 1101]]

section 2A(e) only if the violation is committed
intentionally--
``(i) as consideration for the receipt of, or
as consideration for a promise or agreement to
pay, anything of pecuniary value; or
``(ii) for the purpose of assisting a delivery
seller to violate, or otherwise evading compliance
with, section 2A.
``(B) Other limitations.--No common carrier or
independent delivery service shall be subject to civil
penalties under paragraph (1) for a violation of section
2A(e) if--
``(i) the common carrier or independent
delivery service has implemented and enforces
effective policies and practices for complying
with that section; or
``(ii) the violation consists of an employee
of the common carrier or independent delivery
service who physically receives and processes
orders, picks up packages, processes packages, or
makes deliveries, taking actions that are outside
the scope of employment of the employee, or that
violate the implemented and enforced policies of
the common carrier or independent delivery service
described in clause (i).''.

(e) Enforcement.--The Jenkins Act is amended by striking section
4 <>  and inserting the following:
``SEC. 4. ENFORCEMENT.

``(a) <>  In General.--The United States district
courts shall have jurisdiction to prevent and restrain violations of
this Act and to provide other appropriate injunctive or equitable
relief, including money damages, for the violations.

``(b) Authority of the Attorney General.--The Attorney General of
the United States shall administer and enforce this Act.
``(c) State, Local, and Tribal Enforcement.--
``(1) In general.--
``(A) Standing.--A State, through its attorney
general, or a local government or Indian tribe that
levies a tax subject to section 2A(a)(3), through its
chief law enforcement officer, may bring an action in a
United States district court to prevent and restrain
violations of this Act by any person or to obtain any
other appropriate relief from any person for violations
of this Act, including civil penalties, money damages,
and injunctive or other equitable relief.
``(B) Sovereign immunity.--Nothing in this Act shall
be deemed to abrogate or constitute a waiver of any
sovereign immunity of a State or local government or
Indian tribe against any unconsented lawsuit under this
Act, or otherwise to restrict, expand, or modify any
sovereign immunity of a State or local government or
Indian tribe.
``(2) Provision of information.--A State, through its
attorney general, or a local government or Indian tribe that
levies a tax subject to section 2A(a)(3), through its chief law
enforcement officer, may provide evidence of a violation of this
Act by any person not subject to State, local, or tribal
government enforcement actions for violations of this Act to the
Attorney General of the United States or a United States

[[Page 1102]]

attorney, who shall take appropriate actions to enforce this
Act.
``(3) Use of penalties collected.--
``(A) In general.--There is established a separate
account in the Treasury known as the `PACT Anti-
Trafficking Fund'. Notwithstanding any other provision
of law and subject to subparagraph (B), an amount equal
to 50 percent of any criminal and civil penalties
collected by the Federal Government in enforcing this
Act shall be transferred into the PACT Anti-Trafficking
Fund and shall be available to the Attorney General of
the United States for purposes of enforcing this Act and
other laws relating to contraband tobacco products.
``(B) Allocation of funds.--Of the amount available
to the Attorney General of the United States under
subparagraph (A), not less than 50 percent shall be made
available only to the agencies and offices within the
Department of Justice that were responsible for the
enforcement actions in which the penalties concerned
were imposed or for any underlying investigations.
``(4) Nonexclusivity of remedy.--
``(A) In general.--The remedies available under this
section and section 3 are in addition to any other
remedies available under Federal, State, local, tribal,
or other law.
``(B) State court proceedings.--Nothing in this Act
shall be construed to expand, restrict, or otherwise
modify any right of an authorized State official to
proceed in State court, or take other enforcement
actions, on the basis of an alleged violation of State
or other law.
``(C) Tribal court proceedings.--Nothing in this Act
shall be construed to expand, restrict, or otherwise
modify any right of an authorized Indian tribal
government official to proceed in tribal court, or take
other enforcement actions, on the basis of an alleged
violation of tribal law.
``(D) Local government enforcement.--Nothing in this
Act shall be construed to expand, restrict, or otherwise
modify any right of an authorized local government
official to proceed in State court, or take other
enforcement actions, on the basis of an alleged
violation of local or other law.

``(d) Persons Dealing in Tobacco Products.--Any person who holds a
permit under section 5712 of the Internal Revenue Code of 1986
(regarding permitting of manufacturers and importers of tobacco products
and export warehouse proprietors) may bring an action in an appropriate
United States district court to prevent and restrain violations of this
Act by any person other than a State, local, or tribal government.
``(e) Notice.--
``(1) Persons dealing in tobacco products.--Any person who
commences a civil action under subsection (d) shall inform the
Attorney General of the United States of the action.
``(2) State, local, and tribal actions.--It is the sense of
Congress that the attorney general of any State, or chief law
enforcement officer of any locality or tribe, that commences a
civil action under this section should inform the Attorney
General of the United States of the action.

``(f) Public Notice.--

[[Page 1103]]

``(1) In general.--The Attorney General of the United States
shall make available to the public, by posting information on
the Internet and by other appropriate means, information
regarding all enforcement actions brought by the United States,
or reported to the Attorney General of the United States, under
this section, including information regarding the resolution of
the enforcement actions and how the Attorney General of the
United States has responded to referrals of evidence of
violations pursuant to subsection (c)(2).
``(2) Reports to congress.--Not later than 1 year after the
date of enactment of the Prevent All Cigarette Trafficking Act
of 2009, and every year thereafter until the date that is 5
years after such date of enactment, the Attorney General of the
United States shall submit to Congress a report containing the
information described in paragraph (1).''.
SEC. 3. TREATMENT OF CIGARETTES AND SMOKELESS TOBACCO AS
NONMAILABLE MATTER.

(a) In General.--Chapter 83 of title 18, United States Code, is
amended by inserting after section 1716D the following:
``Sec. 1716E. Tobacco products as nonmailable

``(a) Prohibition.--
``(1) In general.--All cigarettes and smokeless tobacco (as
those terms are defined in section 1 of the Act of October 19,
1949, commonly referred to as the Jenkins Act) are nonmailable
and shall not be deposited in or carried through the mails. The
United States Postal Service shall not accept for delivery or
transmit through the mails any package that it knows or has
reasonable cause to believe contains any cigarettes or smokeless
tobacco made nonmailable by this paragraph.
``(2) Reasonable cause.--For the purposes of this subsection
reasonable cause includes--
``(A) a statement on a publicly available website,
or an advertisement, by any person that the person will
mail matter which is nonmailable under this section in
return for payment; or
``(B) the fact that the person is on the list
created under section 2A(e) of the Jenkins Act.

``(b) Exceptions.--
``(1) Cigars.--Subsection (a) shall not apply to cigars (as
defined in section 5702(a) of the Internal Revenue Code of
1986).
``(2) <>  Geographic exception.--
Subsection (a) shall not apply to mailings within the State of
Alaska or within the State of Hawaii.
``(3) Business purposes.--
``(A) In general.--Subsection (a) shall not apply to
tobacco products mailed only--
``(i) for business purposes between legally
operating businesses that have all applicable
State and Federal Government licenses or permits
and are engaged in tobacco product manufacturing,
distribution, wholesale, export, import, testing,
investigation, or research; or
``(ii) for regulatory purposes between any
business described in clause (i) and an agency of
the Federal Government or a State government.

[[Page 1104]]

``(B) Rules.--
``(i) <>  In general.--Not
later than 180 days after the date of enactment of
the Prevent All Cigarette Trafficking Act of 2009,
the Postmaster General shall issue a final rule
which shall establish the standards and
requirements that apply to all mailings described
in subparagraph (A).
``(ii) Contents.--The final rule issued under
clause (i) shall require--
``(I) the United States Postal
Service to verify that any person
submitting an otherwise nonmailable
tobacco product into the mails as
authorized under this paragraph is a
business or government agency permitted
to make a mailing under this paragraph;
``(II) the United States Postal
Service to ensure that any recipient of
an otherwise nonmailable tobacco product
sent through the mails under this
paragraph is a business or government
agency that may lawfully receive the
product;
``(III) that any mailing described
in subparagraph (A) shall be sent
through the systems of the United States
Postal Service that provide for the
tracking and confirmation of the
delivery;
``(IV) that the identity of the
business or government entity submitting
the mailing containing otherwise
nonmailable tobacco products for
delivery and the identity of the
business or government entity receiving
the mailing are clearly set forth on the
package;
``(V) <>  the
United States Postal Service to maintain
identifying information described in
subclause (IV) during the 3-year period
beginning on the date of the mailing and
make the information available to the
Postal Service, the Attorney General of
the United States, and to persons
eligible to bring enforcement actions
under section 3(d) of the Prevent All
Cigarette Trafficking Act of 2009;
``(VI) that any mailing described in
subparagraph (A) be marked with a United
States Postal Service label or marking
that makes it clear to employees of the
United States Postal Service that it is
a permitted mailing of otherwise
nonmailable tobacco products that may be
delivered only to a permitted government
agency or business and may not be
delivered to any residence or individual
person; and
``(VII) that any mailing described
in subparagraph (A) be delivered only to
a verified employee of the recipient
business or government agency, who is
not a minor and who shall be required to
sign for the mailing.
``(C) Definition.--In this paragraph, the term
`minor' means an individual who is less than the minimum
age required for the legal sale or purchase of tobacco
products

[[Page 1105]]

as determined by applicable law at the place the
individual is located.
``(4) Certain individuals.--
``(A) In general.--Subsection (a) shall not apply to
tobacco products mailed by individuals who are not
minors for noncommercial purposes, including the return
of a damaged or unacceptable tobacco product to the
manufacturer.
``(B) Rules.--
``(i) <>  In general.--Not
later than 180 days after the date of enactment of
the Prevent All Cigarette Trafficking Act of 2009,
the Postmaster General shall issue a final rule
which shall establish the standards and
requirements that apply to all mailings described
in subparagraph (A).
``(ii) Contents.--The final rule issued under
clause (i) shall require--
``(I) the United States Postal
Service to verify that any person
submitting an otherwise nonmailable
tobacco product into the mails as
authorized under this paragraph is the
individual identified on the return
address label of the package and is not
a minor;
``(II) for a mailing to an
individual, the United States Postal
Service to require the person submitting
the otherwise nonmailable tobacco
product into the mails as authorized by
this paragraph to affirm that the
recipient is not a minor;
``(III) that any package mailed
under this paragraph shall weigh not
more than 10 ounces;
``(IV) that any mailing described in
subparagraph (A) shall be sent through
the systems of the United States Postal
Service that provide for the tracking
and confirmation of the delivery;
``(V) that a mailing described in
subparagraph (A) shall not be delivered
or placed in the possession of any
individual who has not been verified as
not being a minor;
``(VI) for a mailing described in
subparagraph (A) to an individual, that
the United States Postal Service shall
deliver the package only to a recipient
who is verified not to be a minor at the
recipient address or transfer it for
delivery to an Air/Army Postal Office or
Fleet Postal Office number designated in
the recipient address; and
``(VII) that no person may initiate
more than 10 mailings described in
subparagraph (A) during any 30-day
period.
``(C) Definition.--In this paragraph, the term
`minor' means an individual who is less than the minimum
age required for the legal sale or purchase of tobacco
products as determined by applicable law at the place
the individual is located.
``(5) Exception for mailings for consumer testing by
manufacturers.--
``(A) In general.--Subject to subparagraph (B),
subsection (a) shall not preclude a legally operating
cigarette manufacturer or a legally authorized agent of
a legally

[[Page 1106]]

operating cigarette manufacturer from using the United
States Postal Service to mail cigarettes to verified
adult smoker solely for consumer testing purposes, if--
``(i) the cigarette manufacturer has a permit,
in good standing, issued under section 5713 of the
Internal Revenue Code of 1986;
``(ii) the package of cigarettes mailed under
this paragraph contains not more than 12 packs of
cigarettes (240 cigarettes);
``(iii) the recipient does not receive more
than 1 package of cigarettes from any 1 cigarette
manufacturer under this paragraph during any 30-
day period;
``(iv) all taxes on the cigarettes mailed
under this paragraph levied by the State and
locality of delivery are paid to the State and
locality before delivery, and tax stamps or other
tax-payment indicia are affixed to the cigarettes
as required by law; and
``(v)(I) the recipient has not made any
payments of any kind in exchange for receiving the
cigarettes;
``(II) the recipient is paid a fee by the
manufacturer or agent of the manufacturer for
participation in consumer product tests; and
``(III) the recipient, in connection with the
tests, evaluates the cigarettes and provides
feedback to the manufacturer or agent.
``(B) Limitations.--Subparagraph (A) shall not--
``(i) permit a mailing of cigarettes to an
individual located in any State that prohibits the
delivery or shipment of cigarettes to individuals
in the State, or preempt, limit, or otherwise
affect any related State laws; or
``(ii) permit a manufacturer, directly or
through a legally authorized agent, to mail
cigarettes in any calendar year in a total amount
greater than 1 percent of the total cigarette
sales of the manufacturer in the United States
during the calendar year before the date of the
mailing.
``(C) Rules.--
``(i) <>  In general.--Not
later than 180 days after the date of enactment of
the Prevent All Cigarette Trafficking Act of 2009,
the Postmaster General shall issue a final rule
which shall establish the standards and
requirements that apply to all mailings described
in subparagraph (A).
``(ii) Contents.--The final rule issued under
clause (i) shall require--
``(I) <>  the
United States Postal Service to verify
that any person submitting a tobacco
product into the mails under this
paragraph is a legally operating
cigarette manufacturer permitted to make
a mailing under this paragraph, or an
agent legally authorized by the legally
operating cigarette manufacturer to
submit the tobacco product into the
mails on behalf of the manufacturer;
``(II) the legally operating
cigarette manufacturer submitting the
cigarettes into the mails under this
paragraph to affirm that--

[[Page 1107]]

``(aa) the manufacturer or
the legally authorized agent of
the manufacturer has verified
that the recipient is an adult
established smoker;
``(bb) the recipient has not
made any payment for the
cigarettes;
``(cc) the recipient has
signed a written statement that
is in effect indicating that the
recipient wishes to receive the
mailings; and
``(dd) the manufacturer or
the legally authorized agent of
the manufacturer has offered the
opportunity for the recipient to
withdraw the written statement
described in item (cc) not less
frequently than once in every 3-
month period;
``(III) the legally operating
cigarette manufacturer or the legally
authorized agent of the manufacturer
submitting the cigarettes into the mails
under this paragraph to affirm that any
package mailed under this paragraph
contains not more than 12 packs of
cigarettes (240 cigarettes) on which all
taxes levied on the cigarettes by the
State and locality of delivery have been
paid and all related State tax stamps or
other tax-payment indicia have been
applied;
``(IV) that any mailing described in
subparagraph (A) shall be sent through
the systems of the United States Postal
Service that provide for the tracking
and confirmation of the delivery;
``(V) <>  the United States Postal
Service to maintain records relating to
a mailing described in subparagraph (A)
during the 3-year period beginning on
the date of the mailing and make the
information available to persons
enforcing this section;
``(VI) that any mailing described in
subparagraph (A) be marked with a United
States Postal Service label or marking
that makes it clear to employees of the
United States Postal Service that it is
a permitted mailing of otherwise
nonmailable tobacco products that may be
delivered only to the named recipient
after verifying that the recipient is an
adult; and
``(VII) the United States Postal
Service shall deliver a mailing
described in subparagraph (A) only to
the named recipient and only after
verifying that the recipient is an
adult.
``(D) Definitions.--In this paragraph--
``(i) the term `adult' means an individual who
is not less than 21 years of age; and
``(ii) the term `consumer testing' means
testing limited to formal data collection and
analysis for the specific purpose of evaluating
the product for quality assurance and benchmarking
purposes of cigarette brands or sub-brands among
existing adult smokers.
``(6) Federal government agencies.--An agency of the Federal
Government involved in the consumer testing of tobacco

[[Page 1108]]

products solely for public health purposes may mail cigarettes
under the same requirements, restrictions, and rules and
procedures that apply to consumer testing mailings of cigarettes
by manufacturers under paragraph (5), except that the agency
shall not be required to pay the recipients for participating in
the consumer testing.

``(c) Seizure and Forfeiture.--Any cigarettes or smokeless tobacco
made nonmailable by this subsection that are deposited in the mails
shall be subject to seizure and forfeiture, pursuant to the procedures
set forth in chapter 46 of this title. Any tobacco products seized and
forfeited under this subsection shall be destroyed or retained by the
Federal Government for the detection or prosecution of crimes or related
investigations and then destroyed.
``(d) Additional Penalties.--In addition to any other fines and
penalties under this title for violations of this section, any person
violating this section shall be subject to an additional civil penalty
in the amount equal to 10 times the retail value of the nonmailable
cigarettes or smokeless tobacco, including all Federal, State, and local
taxes.
``(e) Criminal Penalty.--Whoever knowingly deposits for mailing or
delivery, or knowingly causes to be delivered by mail, according to the
direction thereon, or at any place at which it is directed to be
delivered by the person to whom it is addressed, anything that is
nonmailable matter under this section shall be fined under this title,
imprisoned not more than 1 year, or both.
``(f) Use of Penalties.--There is established a separate account in
the Treasury, to be known as the `PACT Postal Service Fund'.
Notwithstanding any other provision of law, an amount equal to 50
percent of any criminal fines, civil penalties, or other monetary
penalties collected by the Federal Government in enforcing this section
shall be transferred into the PACT Postal Service Fund and shall be
available to the Postmaster General for the purpose of enforcing this
subsection.
``(g) Coordination of Efforts.--The Postmaster General shall
cooperate and coordinate efforts to enforce this section with related
enforcement activities of any other Federal agency or agency of any
State, local, or tribal government, whenever appropriate.
``(h) Actions by State, Local, or Tribal Governments Relating to
Certain Tobacco Products.--
``(1) In general.--A State, through its attorney general, or
a local government or Indian tribe that levies an excise tax on
tobacco products, through its chief law enforcement officer, may
in a civil action in a United States district court obtain
appropriate relief with respect to a violation of this section.
Appropriate relief includes injunctive and equitable relief and
damages equal to the amount of unpaid taxes on tobacco products
mailed in violation of this section to addressees in that State,
locality, or tribal land.
``(2) Sovereign immunity.--Nothing in this subsection shall
be deemed to abrogate or constitute a waiver of any sovereign
immunity of a State or local government or Indian tribe against
any unconsented lawsuit under paragraph (1), or otherwise to
restrict, expand, or modify any sovereign immunity of a State or
local government or Indian tribe.
``(3) Attorney general referral.--A State, through its
attorney general, or a local government or Indian tribe that

[[Page 1109]]

levies an excise tax on tobacco products, through its chief law
enforcement officer, may provide evidence of a violation of this
section for commercial purposes by any person not subject to
State, local, or tribal government enforcement actions for
violations of this section to the Attorney General of the United
States, who shall take appropriate actions to enforce this
section.
``(4) Nonexclusivity of remedies.--The remedies available
under this subsection are in addition to any other remedies
available under Federal, State, local, tribal, or other law.
Nothing in this subsection shall be construed to expand,
restrict, or otherwise modify any right of an authorized State,
local, or tribal government official to proceed in a State,
tribal, or other appropriate court, or take other enforcement
actions, on the basis of an alleged violation of State, local,
tribal, or other law.
``(5) Other enforcement actions.--Nothing in this subsection
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 the State.

``(i) Definition.--In this section, the term `State' has the meaning
given that term in section 1716(k).''.
(b) Clerical Amendment.--The table of sections for chapter 83 of
title 18 is amended by inserting after the item relating to section
1716D the following:

``1716E. Tobacco products as nonmailable.''.

SEC. 4. INSPECTION BY BUREAU OF ALCOHOL, TOBACCO, FIREARMS, AND
EXPLOSIVES OF RECORDS OF CERTAIN CIGARETTE AND
SMOKELESS TOBACCO SELLERS; CIVIL PENALTY.

Section 2343(c) of title 18, United States Code, is amended to read
as follows:
``(c)(1) Any officer of the Bureau of Alcohol, Tobacco, Firearms,
and Explosives may, during normal business hours, enter the premises of
any person described in subsection (a) or (b) for the purposes of
inspecting--
``(A) any records or information required to be maintained
by the person under this chapter; or
``(B) any cigarettes or smokeless tobacco kept or stored by
the person at the premises.

``(2) <>  The district courts of the United States
shall have the authority in a civil action under this subsection to
compel inspections authorized by paragraph (1).

``(3) Whoever denies access to an officer under paragraph (1), or
who fails to comply with an order issued under paragraph (2), shall be
subject to a civil penalty in an amount not to exceed $10,000.''.
SEC. 5. <>  EXCLUSIONS REGARDING INDIAN
TRIBES AND TRIBAL MATTERS.

(a) In General.--Nothing in this Act or the amendments made by this
Act shall be construed to amend, modify, or otherwise affect--
(1) any agreements, compacts, or other intergovernmental
arrangements between any State or local government and any
government of an Indian tribe (as that term is defined in
section 4(e) of the Indian Self-Determination and Education

[[Page 1110]]

Assistance Act (25 U.S.C. 450b(e)) relating to the collection of
taxes on cigarettes or smokeless tobacco sold in Indian country;
(2) any State laws that authorize or otherwise pertain to
any such intergovernmental arrangements or create special rules
or procedures for the collection of State, local, or tribal
taxes on cigarettes or smokeless tobacco sold in Indian country;
(3) any limitations under Federal or State law, including
Federal common law and treaties, on State, local, and tribal tax
and regulatory authority with respect to the sale, use, or
distribution of cigarettes and smokeless tobacco by or to Indian
tribes, tribal members, tribal enterprises, or in Indian
country;
(4) any Federal law, including Federal common law and
treaties, regarding State jurisdiction, or lack thereof, over
any tribe, tribal members, tribal enterprises, tribal
reservations, or other lands held by the United States in trust
for one or more Indian tribes; or
(5) any State or local government authority to bring
enforcement actions against persons located in Indian country.

(b) Coordination of Law Enforcement.--Nothing in this Act or the
amendments made by this Act shall be construed to inhibit or otherwise
affect any coordinated law enforcement effort by 1 or more States or
other jurisdictions, including Indian tribes, through interstate compact
or otherwise, that--
(1) provides for the administration of tobacco product laws
or laws pertaining to interstate sales or other sales of tobacco
products;
(2) provides for the seizure of tobacco products or other
property related to a violation of such laws; or
(3) establishes cooperative programs for the administration
of such laws.

(c) Treatment of State and Local Governments.--Nothing in this Act
or the amendments made by this Act shall be construed to authorize,
deputize, or commission States or local governments as instrumentalities
of the United States.
(d) Enforcement Within Indian Country.--Nothing in this Act or the
amendments made by this Act shall prohibit, limit, or restrict
enforcement by the Attorney General of the United States of this Act or
an amendment made by this Act within Indian country.
(e) Ambiguity.--Any ambiguity between the language of this section
or its application and any other provision of this Act shall be resolved
in favor of this section.
(f) Definitions.--In this section--
(1) the term ``Indian country'' has the meaning given that
term in section 1 of the Jenkins Act, as amended by this Act;
and
(2) the term ``tribal enterprise'' means any business
enterprise, regardless of whether incorporated or unincorporated
under Federal or tribal law, of an Indian tribe or group of
Indian tribes.
SEC. 6. <>  EFFECTIVE DATE.

(a) In General.--Except as provided in subsection (b), this Act
shall take effect on the date that is 90 days after the date of
enactment of this Act.

[[Page 1111]]

(b) BATFE Authority.--The amendments made by section 4 shall take
effect on the date of enactment of this Act.
SEC. 7. <>  SEVERABILITY.

If any provision of this Act, or any amendment made by this Act, or
the application thereof to any person or circumstance, is held invalid,
the remainder of the Act and the application of the Act to any other
person or circumstance shall not be affected thereby.
SEC. 8. SENSE OF CONGRESS CONCERNING THE PRECEDENTIAL EFFECT OF
THIS ACT.

It is the sense of Congress that unique harms are associated with
online cigarette sales, including problems with verifying the ages of
consumers in the digital market and the long-term health problems
associated with the use of certain tobacco products. This Act was
enacted recognizing the longstanding interest of Congress in urging
compliance with States' laws regulating remote sales of certain tobacco
products to citizens of those States, including the passage of the
Jenkins Act over 50 years ago, which established reporting requirements
for out-of-State companies that sell certain tobacco products to
citizens of the taxing States, and which gave authority to the
Department of Justice and the Bureau of Alcohol, Tobacco, Firearms, and
Explosives to enforce the Jenkins Act. In light of the unique harms and
circumstances surrounding the online sale of certain tobacco products,
this Act is intended to help collect cigarette excise taxes, to stop
tobacco sales to underage youth, and to help the States enforce their
laws that target the online sales of certain tobacco products only. This
Act is in no way meant to create a precedent regarding the collection of
State sales or use taxes by, or the validity of efforts to impose other
types of taxes on, out-of-State entities that do not have a physical
presence within the taxing State.

Approved March 31, 2010.

LEGISLATIVE HISTORY--S. 1147:
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CONGRESSIONAL RECORD, Vol. 156 (2010):
Mar. 11, considered and passed Senate.
Mar. 17, considered and passed House.