    [United States Statutes at Large, Volume 124, 111th Congress, 2nd Session]
    [From the U.S. Government Publishing 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:
    ---------------------------------------------------------------------------

    CONGRESSIONAL RECORD, Vol. 156 (2010):
    Mar. 11, considered and passed Senate.
    Mar. 17, considered and passed House.