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[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[S. 1147 Engrossed in Senate (ES)]

111th CONGRESS
  2d Session
                                S. 1147

_______________________________________________________________________

                                 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
            (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--
                    ``(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.
            ``(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 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 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.
    ``(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;
                            ``(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 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--
                            ``(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 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.--
                            ``(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 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.
                    ``(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 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 
        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.--
            ``(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.
                    ``(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 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 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--
                                            ``(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 
        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 
        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 
        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.
    (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.

            Passed the Senate March 11, 2010.

            Attest:

                                                             Secretary.
111th CONGRESS

  2d Session

                                S. 1147

_______________________________________________________________________

                                 AN ACT

 To prevent tobacco smuggling, to ensure the collection of all tobacco 
                     taxes, and for other purposes.
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