II 

109TH CONGRESS 

2D SESSION S. 3810 

To prevent tobacco smuggling, to ensure the collection of all tobacco taxes, 

and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

AUGUST 3, 2006 

Mr. KOHL (for himself and Mr. SCHUMER) introduced the following bill; which 

was read twice and referred to the Committee on the Judiciary 

A BILL 

To prevent tobacco smuggling, to ensure the collection of 

all tobacco taxes, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE; FINDINGS; PURPOSE. 

4 (a) SHORT TITLE.—This Act may be cited as the 

5 ‘‘Prevent All Cigarette Trafficking Act of 2006’’ or 

6 ‘‘PACT Act’’. 

7 (b) FINDINGS.—Congress finds that— 

8 (1) the sale of illegal cigarettes and smokeless 

9 tobacco products significantly reduces Federal, 

10 State, and local government revenues, with Internet 


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1 sales alone accounting for billions of dollars of lost 

2 Federal, State, and local tobacco tax revenue each 

3 year; 

4 (2) Hezbollah, Hamas, al Qaeda, and other ter5 rorist organizations have profited from trafficking in 

6 illegal cigarettes or counterfeit cigarette tax stamps; 

7 (3) terrorist involvement in illicit cigarette traf8 ficking will continue to grow because of the large 

9 profits such organizations can earn; 

10 (4) the sale of illegal cigarettes and smokeless 

11 tobacco over the Internet, and through mail, fax, or 

12 phone orders, make it cheaper and easier for chil13 dren to obtain tobacco products; 

14 (5) the majority of Internet and other remote 

15 sales of cigarettes and smokeless tobacco are being 

16 made without adequate precautions to protect 

17 against sales to children, without the payment of ap18 plicable taxes, and without complying with the nomi19 nal registration and reporting requirements in exist20 ing Federal law; 

21 (6) unfair competition from illegal sales of ciga22 rettes and smokeless tobacco is taking billions of dol23 lars of sales away from law-abiding retailers 

24 throughout the United States; 


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1 (7) with rising State and local tobacco tax 

2 rates, the incentives for the illegal sale of cigarettes 

3 and smokeless tobacco have increased; 

4 (8) the number of active tobacco investigations 

5 being conducted by the Bureau of Alcohol, Tobacco, 

6 Firearms and Explosives rose to 452 in 2005; 

7 (9) the number of Internet vendors in the 

8 United States and in foreign countries that sell ciga9 rettes and smokeless tobacco to buyers in the United 

10 States has increased from only about 40 in 2000 to 

11 more than 500 in 2005; and 

12 (10) the intrastate sale of illegal cigarettes and 

13 smokeless tobacco over the Internet has a substan14 tial effect on interstate commerce. 

15 (c) PURPOSES.—It is the purpose of this Act to— 

16 (1) require Internet and other remote sellers of 

17 cigarettes and smokeless tobacco to comply with the 

18 same laws that apply to law-abiding tobacco retail19 ers; 

20 (2) create strong disincentives to illegal smug21 gling of tobacco products; 

22 (3) provide government enforcement officials 

23 with more effective enforcement tools to combat to24 bacco smuggling; 


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1 (4) make it more difficult for cigarette and 

2 smokeless tobacco traffickers to engage in and profit 

3 from their illegal activities; 

4 (5) increase collections of Federal, State, and 

5 local excise taxes on cigarettes and smokeless to6 bacco; and 

7 (6) prevent and reduce youth access to inexpen8 sive cigarettes and smokeless tobacco through illegal 

9 Internet or contraband sales. 

10 SEC. 2. COLLECTION OF STATE CIGARETTE AND SMOKE11 LESS TOBACCO TAXES. 

12 (a) DEFINITIONS.—The Act of October 19, 1949 (15 

13 U.S.C. 375 et seq.; commonly referred to as the ‘‘Jenkins 

14 Act’’) (referred to in this Act as the ‘‘Jenkins Act’’), is 

15 amended by striking the first section and inserting the fol16 lowing: 

17 ‘‘SECTION 1. DEFINITIONS. 

18 ‘‘As used in this Act, the following definitions apply: 

19 ‘‘(1) ATTORNEY GENERAL.—The term ‘attorney 

20 general’, with respect to a State, means the attorney 

21 general or other chief law enforcement officer of the 

22 State, or the designee of that officer. 

23 ‘‘(2) CIGARETTE.— 

24 ‘‘(A) IN GENERAL.—For purposes of this 

25 Act, the term ‘cigarette’— 


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1 ‘‘(i) shall have the same meaning 

2 given that term in section 2341 of title 18, 

3 United States Code; and 

4 ‘‘(ii) shall include ‘roll-your-own to5 bacco’ (as that term is defined in section 

6 5702 of title 26, United States Code). 

7 ‘‘(B) EXCEPTION.—For purposes of this 

8 Act, the term ‘cigarette’ does not include a 

9 ‘cigar,’ as that term is defined in section 5702 

10 of title 26, United States Code. 

11 ‘‘(3) COMMON CARRIER.—The term ‘common 

12 carrier’ means any person (other than a local mes13 senger service or the United States Postal Service) 

14 that holds itself out to the general public as a pro15 vider for hire of the transportation by water, land, 

16 or air of merchandise, whether or not the person ac17 tually operates the vessel, vehicle, or aircraft by 

18 which the transportation is provided, between a port 

19 or place and a port or place in the United States. 

20 ‘‘(4) CONSUMER.—The term ‘consumer’ means 

21 any person that purchases cigarettes or smokeless 

22 tobacco, but does not include any person lawfully op23 erating as a manufacturer, distributor, wholesaler, 

24 or retailer of cigarettes or smokeless tobacco. 


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1 ‘‘(5) DELIVERY SALE.—The term ‘delivery sale’ 

2 means any sale of cigarettes or smokeless tobacco to 

3 a consumer if— 

4 ‘‘(A) the consumer submits the order for 

5 such sale by means of a telephone or other 

6 method of voice transmission, the mails, or the 

7 Internet or other online service, or the seller is 

8 otherwise not in the physical presence of the 

9 buyer when the request for purchase or order is 

10 made; or 

11 ‘‘(B) the cigarettes or smokeless tobacco 

12 are delivered by use of a common carrier, pri13 vate delivery service, or the mails, or the seller 

14 is not in the physical presence of the buyer 

15 when the buyer obtains possession of the ciga16 rettes or smokeless tobacco. 

17 ‘‘(6) DELIVERY SELLER.—The term ‘delivery 

18 seller’ means a person who makes a delivery sale. 

19 ‘‘(7) INDIAN COUNTRY.—The term ‘Indian 

20 country’ has the meaning given that term in section 

21 1151 of title 18, United States Code, except that 

22 within the State of Alaska that term applies only to 

23 the Metlakatla Indian Community, Annette Island 

24 Reserve. 


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1 ‘‘(8) INDIAN TRIBE.—The term ‘Indian tribe’, 

2 ‘tribe’, or ‘tribal’ refers to an Indian tribes as de3 fined in section 4(e) of the Indian Self-Determina4 tion and Education Assistance Act (25 U.S.C. 

5 450b(e)) or as listed pursuant to section 104 of the 

6 Federally Recognized Indian Tribe List Act of 1994 

7 (25 U.S.C. 479a–1). 

8 ‘‘(9) INTERSTATE COMMERCE.—The term 

9 ‘interstate commerce’ means commerce between a 

10 State and any place outside the State, commerce be11 tween a State and any Indian country in the State, 

12 or commerce between points in the same State but 

13 through any place outside the State or through any 

14 Indian country. 

15 ‘‘(10) PERSON.—The term ‘person’ means an 

16 individual, corporation, company, association, firm, 

17 partnership, society, State government, local govern18 ment, Indian tribal government, governmental orga19 nization of such government, or joint stock company. 

20 ‘‘(11) STATE.—The term ‘State’ means each of 

21 the several States of the United States, the District 

22 of Columbia, the Commonwealth of Puerto Rico, or 

23 any territory or possession of the United States. 

24 ‘‘(12) SMOKELESS TOBACCO.—The term 

25 ‘smokeless tobacco’ means any finely cut, ground, 


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1 powdered, or leaf tobacco, or other product con2 taining tobacco, that is intended to be placed in the 

3 oral or nasal cavity or otherwise consumed without 

4 being combusted. 

5 ‘‘(13) TOBACCO TAX ADMINISTRATOR.—The 

6 term ‘tobacco tax administrator’ means the State, 

7 local, or tribal official duly authorized to collect the 

8 tobacco tax or administer the tax law of a State, lo9 cality, or tribe, respectively. 

10 ‘‘(14) TRANSFERS FOR PROFIT.—The term 

11 ‘transfers for profit’ means any transfer for profit or 

12 other disposition for profit, including any transfer or 

13 disposition by an agent to his principal in connection 

14 with which the agent receives anything of value. 

15 ‘‘(15) USE.—The term ‘use’, in addition to its 

16 ordinary meaning, means the consumption, storage, 

17 handling, or disposal of cigarettes or smokeless to18 bacco.’’. 

19 (b) REPORTS TO STATE TOBACCO TAX ADMINISTRA20 TORS.—Section 2 of the Jenkins Act (15 U.S.C. 376) is 

21 amended— 

22 (1) by striking ‘‘cigarettes’’ each place it ap23 pears and inserting ‘‘cigarettes or smokeless to24 bacco’’; 

25 (2) in subsection (a)— 


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1 (A) in the matter preceding paragraph 

2 (1)— 

3 (i) by inserting ‘‘CONTENTS.—’’ after 

4 ‘‘(a)’’; 

5 (ii) by striking ‘‘or transfers’’ and in6 serting ‘‘, transfers, or ships’’; 

7 (iii) by inserting ‘‘, locality, or Indian 

8 country of an Indian tribe’’ after ‘‘a 

9 State’’; 

10 (iv) by striking ‘‘to other than a dis11 tributor licensed by or located in such 

12 State,’’; and 

13 (v) by striking ‘‘or transfer and ship14 ment’’ and inserting ‘‘, transfer, or ship15 ment’’; 

16 (B) in paragraph (1)— 

17 (i) by striking ‘‘with the tobacco tax 

18 administrator of the State’’ and inserting 

19 ‘‘with the Attorney General of the United 

20 States and with the tobacco tax adminis21 trators of the State and place’’; and 

22 (ii) by striking ‘‘; and’’ and inserting 

23 the following: ‘‘, as well as telephone num24 bers for each place of business, a principal 

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1 dresses, and the name, address, and tele2 phone number of an agent in the State au3 thorized to accept service on behalf of such 

4 person;’’; 

5 (C) in paragraph (2), by striking ‘‘and the 

6 quantity thereof.’’ and inserting ‘‘the quantity 

7 thereof, and the name, address, and phone 

8 number of the person delivering the shipment to 

9 the recipient on behalf of the delivery seller, 

10 with all invoice or memoranda information re11 lating to specific customers to be organized by 

12 city or town and by zip code; and’’; and 

13 (D) by adding at the end the following: 

14 ‘‘(3) with respect to each memorandum or in15 voice filed with a State under paragraph (2), also 

16 file copies of such memorandum or invoice with the 

17 tobacco tax administrators and chief law enforce18 ment officers of the local governments and Indian 

19 tribes operating within the borders of the State that 

20 apply their own local or tribal taxes on cigarettes or 

21 smokeless tobacco.’’; 

22 (3) in subsection (b)— 

23 (A) by inserting ‘‘PRESUMPTIVE EVI24 DENCE.—’’ after ‘‘(b)’’; 


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1 (B) by striking ‘‘(1) that’’ and inserting 

2 ‘‘that’’; and 

3 (C) by striking ‘‘, and (2)’’ and all that 

4 follows and inserting a period; and 

5 (4) by adding at the end the following: 

6 ‘‘(c) USE OF INFORMATION.—A tobacco tax adminis7 trator or chief law enforcement officer who receives a 

8 memorandum or invoice under paragraph (2) or (3) of 

9 subsection (a) shall use such memorandum or invoice sole10 ly for the purposes of the enforcement of this Act and the 

11 collection of any taxes owed on related sales of cigarettes 

12 and smokeless tobacco, and shall keep confidential any 

13 personal information in such memorandum or invoice not 

14 otherwise required for such purposes.’’. 

15 (c) REQUIREMENTS FOR DELIVERY SALES.—The 

16 Jenkins Act is amended by inserting after section 2 the 

17 following: 

18 ‘‘SEC. 2A. DELIVERY SALES. 

19 ‘‘(a) IN GENERAL.—With respect to delivery sales 

20 into a specific State and place, each delivery seller shall 

21 comply with— 

22 ‘‘(1) the shipping requirements set forth in sub23 section (b); 

24 ‘‘(2) the recordkeeping requirements set forth 

25 in subsection (c); 


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1 ‘‘(3) all State, local, tribal, and other laws gen2 erally applicable to sales of cigarettes or smokeless 

3 tobacco as if such delivery sales occurred entirely 

4 within the specific State and place, including laws 

5 imposing— 

6 ‘‘(A) excise taxes; 

7 ‘‘(B) licensing and tax-stamping require8 ments; 

9 ‘‘(C) restrictions on sales to minors; and 

10 ‘‘(D) other payment obligations or legal re11 quirements relating to the sale, distribution, or 

12 delivery of cigarettes or smokeless tobacco; and 

13 ‘‘(4) the tax collection requirements set forth in 

14 subsection (d). 

15 ‘‘(b) SHIPPING AND PACKAGING.— 

16 ‘‘(1) REQUIRED STATEMENT.—For any ship17 ping package containing cigarettes or smokeless to18 bacco, the delivery seller shall include on the bill of 

19 lading, if any, and on the outside of the shipping 

20 package, on the same surface as the delivery ad21 dress, a clear and conspicuous statement providing 

22 as follows: ‘CIGARETTES/SMOKELESS TO23 BACCO: FEDERAL LAW REQUIRES THE PAY24 MENT OF ALL APPLICABLE EXCISE TAXES, 

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1 CENSING AND TAX-STAMPING OBLIGA2 TIONS’. 

3 ‘‘(2) FAILURE TO LABEL.—Any shipping pack4 age described in paragraph (1) that is not labeled in 

5 accordance with that paragraph shall be treated as 

6 nondeliverable matter by a common carrier, other 

7 delivery service, or the United States Postal Service 

8 if the common carrier, other delivery service, or the 

9 United States Postal Service, as the case may be, 

10 knows or should know the package contains ciga11 rettes or smokeless tobacco. Nothing in this para12 graph shall require the common carrier, other deliv13 ery service, or the United States Postal Service to 

14 open any package to determine its contents. 

15 ‘‘(3) WEIGHT RESTRICTION.—A delivery seller 

16 shall not sell, offer for sale, deliver, or cause to be 

17 delivered in any single sale or single delivery any 

18 cigarettes or smokeless tobacco weighing more than 

19 10 pounds. 

20 ‘‘(4) AGE VERIFICATION.—Notwithstanding any 

21 other provision of law, a delivery seller who mails or 

22 ships cigarettes or smokeless tobacco in connection 

23 with a delivery sale— 

24 ‘‘(A) shall not sell, deliver, or cause to be 

25 delivered any tobacco products to a person 


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1 under the minimum age required for the legal 

2 sale or purchase of tobacco products, as deter3 mined by either State or local law at the place 

4 of delivery; and 

5 ‘‘(B) shall use a method of mailing or ship6 ping that requires— 

7 ‘‘(i) the purchaser placing the delivery 

8 sale order, or an adult who is at least the 

9 minimum age required for the legal sale or 

10 purchase of tobacco products, as deter11 mined by either State or local law at the 

12 place of delivery, to sign to accept delivery 

13 of the shipping container at the delivery 

14 address; and 

15 ‘‘(ii) the person who signs to accept 

16 delivery of the shipping container to pro17 vide proof, in the form of a valid, govern18 ment-issued identification bearing a photo19 graph of the individual, that the person is 

20 at least the minimum age required for the 

21 legal sale or purchase of tobacco products, 

22 as determined by either State or local law 

23 at the place of delivery. 

24 ‘‘(c) RECORDS.— 


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1 ‘‘(1) IN GENERAL.—Each delivery seller shall 

2 keep a record of any delivery sale, including all of 

3 the information described in section 2(a)(2), orga4 nized by the State, and within such State, by the 

5 city or town and by zip code, into which such deliv6 ery sale is so made. 

7 ‘‘(2) RECORD RETENTION.—Records of a deliv8 ery sale shall be kept as described in paragraph (1) 

9 in the year in which the delivery sale is made and 

10 for the next 4 years. 

11 ‘‘(3) ACCESS FOR OFFICIALS.—Records kept 

12 under paragraph (1) shall be made available to to13 bacco tax administrators of the States, to local gov14 ernments and Indian tribes that apply their own 

15 local or tribal taxes on cigarettes or smokeless to16 bacco, to the attorneys general of the States, to the 

17 chief law enforcement officers of such local govern18 ments and Indian tribes, and to the Attorney Gen19 eral of the United States in order to ensure the com20 pliance of persons making delivery sales with the re21 quirements of this Act. 

22 ‘‘(d) DELIVERY.— 

23 ‘‘(1) IN GENERAL.—Except as provided in para24 graph (2), no delivery seller may sell or deliver to 

25 any consumer, or tender to any common carrier or 


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1 other delivery service, any cigarettes or smokeless to2 bacco pursuant to a delivery sale unless, in advance 

3 of the sale, delivery, or tender— 

4 ‘‘(A) any cigarette or smokeless tobacco ex5 cise tax that is imposed by the State in which 

6 the cigarettes or smokeless tobacco are to be 

7 delivered has been paid to the State; 

8 ‘‘(B) any cigarette or smokeless tobacco 

9 excise tax that is imposed by the local govern10 ment of the place in which the cigarettes or 

11 smokeless tobacco are to be delivered has been 

12 paid to the local government; and 

13 ‘‘(C) any required stamps or other indicia 

14 that such excise tax has been paid are properly 

15 affixed or applied to the cigarettes or smokeless 

16 tobacco. 

17 ‘‘(2) EXCEPTION.—Paragraph (1) does not 

18 apply to a delivery sale of smokeless tobacco if the 

19 law of the State or local government of the place 

20 where the smokeless tobacco is to be delivered re21 quires or otherwise provides that delivery sellers col22 lect the excise tax from the consumer and remit the 

23 excise tax to the State or local government, and the 

24 delivery seller complies with the requirement. 


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1 ‘‘(e) LIST OF UNREGISTERED OR NONCOMPLIANT

2 DELIVERY SELLERS.— 

3 ‘‘(1) IN GENERAL.— 

4 ‘‘(A) INITIAL LIST.—Not later than 90 

5 days after this subsection goes into effect under 

6 section 10 of the Prevent All Cigarette Traf7 ficking Act of 2006, the Attorney General of 

8 the United States shall compile a list of delivery 

9 sellers of cigarettes or smokeless tobacco that 

10 have not registered with the Attorney General, 

11 pursuant to section 2(a) or that are otherwise 

12 not in compliance with this Act, and— 

13 ‘‘(i) distribute the list to— 

14 ‘‘(I) the attorney general and tax 

15 administrator of every State; 

16 ‘‘(II) common carriers and other 

17 persons that deliver small packages to 

18 consumers in interstate commerce, in19 cluding the United States Postal Serv20 ice; and 

21 ‘‘(III) at the discretion of the At22 torney General of the United States, 

23 to any other persons; and 

24 ‘‘(ii) publicize and make the list avail25 able to any other person engaged in the 


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1 business of interstate deliveries or who de2 livers cigarettes or smokeless tobacco in or 

3 into any State. 

4 ‘‘(B) LIST CONTENTS.—To the extent 

5 known, the Attorney General of the United 

6 States shall include, for each delivery seller on 

7 the list described in subparagraph (A)— 

8 ‘‘(i) all names the delivery seller uses 

9 in the transaction of its business or on 

10 packages delivered to customers; 

11 ‘‘(ii) all addresses from which the de12 livery seller does business or ships ciga13 rettes or smokeless tobacco; 

14 ‘‘(iii) the website addresses, primary 

15 e-mail address, and phone number of the 

16 delivery seller; and 

17 ‘‘(iv) any other information that the 

18 Attorney General determines would facili19 tate compliance with this subsection by re20 cipients of the list. 

21 ‘‘(C) UPDATING.—The Attorney General of 

22 the United States shall update and distribute 

23 the list at least once every 4 months, and may 

24 distribute the list and any updates by regular 

25 mail, electronic mail, or any other reasonable 


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1 means, or by providing recipients with access to 

2 the list through a nonpublic website that the 

3 Attorney General of the United States regularly 

4 updates. 

5 ‘‘(D) STATE, LOCAL, OR TRIBAL ADDI6 TIONS.—The Attorney General of the United 

7 States shall include in the list under subpara8 graph (A) any noncomplying delivery sellers 

9 identified by any State, local, or tribal govern10 ment under paragraph (5), and shall distribute 

11 the list to the attorney general or chief law en12 forcement official and the tax administrator of 

13 any government submitting any such informa14 tion and to any common carriers or other per15 sons who deliver small packages to consumers 

16 identified by any government pursuant to para17 graph (5). 

18 ‘‘(E) CONFIDENTIALITY.—The list distrib19 uted pursuant to subparagraph (A) shall be 

20 confidential, and any person receiving the list 

21 shall maintain the confidentiality of the list but 

22 may deliver the list, for enforcement purposes, 

23 to any government official or to any common 

24 carrier or other person that delivers tobacco 

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1 ing in this section shall prohibit a common car2 rier, the United States Postal Service, or any 

3 other person receiving the list from discussing 

4 with the listed delivery sellers the delivery sell5 ers’ inclusion on the list and the resulting ef6 fects on any services requested by such listed 

7 delivery seller. 

8 ‘‘(2) PROHIBITION ON DELIVERY.— 

9 ‘‘(A) IN GENERAL.—Commencing on the 

10 date that is 60 days after the date of the initial 

11 distribution or availability of the list under 

12 paragraph (1)(A), no person who receives the 

13 list under paragraph (1), and no person who 

14 delivers cigarettes or smokeless tobacco to con15 sumers, shall knowingly complete, cause to be 

16 completed, or complete its portion of a delivery 

17 of any package for any person whose name and 

18 address are on the list, unless— 

19 ‘‘(i) the person making the delivery 

20 knows or believes in good faith that the 

21 item does not include cigarettes or smoke22 less tobacco; 

23 ‘‘(ii) the delivery is made to a person 

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1 facturing, distributing, or selling cigarettes 

2 or smokeless tobacco; or 

3 ‘‘(iii) the package being delivered 

4 weighs more than 100 pounds and the per5 son making the delivery does not know or 

6 have reasonable cause to believe that the 

7 package contains cigarettes or smokeless 

8 tobacco. 

9 ‘‘(B) IMPLEMENTATION OF UPDATES.— 

10 Commencing on the date that is 30 days after 

11 the date of the distribution or availability of 

12 any updates or corrections to the list under 

13 paragraph (1), all recipients and all common 

14 carriers or other persons that deliver cigarettes 

15 or smokeless tobacco to consumers shall be sub16 ject to subparagraph (A) in regard to such cor17 rections or updates. 

18 ‘‘(3) SHIPMENTS FROM PERSONS ON LIST.— 

19 ‘‘(A) IN GENERAL.—In the event that a 

20 common carrier or other delivery service delays 

21 or interrupts the delivery of a package it has in 

22 its possession because it determines or has rea23 son to believe that the person ordering the de24 livery is on a list distributed under paragraph 

25 (1)— 


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1 ‘‘(i) the person ordering the delivery 

2 shall be obligated to pay— 

3 ‘‘(I) the common carrier or other 

4 delivery service as if the delivery of 

5 the package had been timely com6 pleted; and 

7 ‘‘(II) if the package is not deliv8 erable, any reasonable additional fee 

9 or charge levied by the common car10 rier or other delivery service to cover 

11 its extra costs and inconvenience and 

12 to serve as a disincentive against such 

13 noncomplying delivery orders; and 

14 ‘‘(ii) if the package is determined not 

15 to be deliverable, the common carrier or 

16 other delivery service shall, in its discre17 tion, either provide the package and its 

18 contents to a Federal, State, or local law 

19 enforcement agency or destroy the package 

20 and its contents. 

21 ‘‘(B) RECORDS.—A common carrier or 

22 other delivery service shall maintain, for a pe23 riod of 5 years, any records kept in the ordi24 nary course of business relating to any deliv25 eries interrupted pursuant to this paragraph 


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1 and provide that information, upon request, to 

2 the Attorney General of the United States or to 

3 the attorney general or chief law enforcement 

4 official or tax administrator of any State, local, 

5 or tribal government. 

6 ‘‘(C) CONFIDENTIALITY.—Any person re7 ceiving records under subparagraph (B) shall 

8 use such records solely for the purposes of the 

9 enforcement of this Act and the collection of 

10 any taxes owed on related sales of cigarettes 

11 and smokeless tobacco, and the person receiving 

12 records under subparagraph (B) shall keep con13 fidential any personal information in such 

14 records not otherwise required for such pur15 poses. 

16 ‘‘(4) PREEMPTION.— 

17 ‘‘(A) IN GENERAL.—No State, local, or 

18 tribal government, nor any political authority of 

19 two or more State, local, or tribal governments, 

20 may enact or enforce any law or regulation re21 lating to delivery sales that restricts deliveries 

22 of cigarettes or smokeless tobacco to consumers 

23 by common carriers or other delivery services 

24 on behalf of delivery sellers by— 


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1 ‘‘(i) requiring that the common carrier 

2 or other delivery service verify the age or 

3 identity of the consumer accepting the de4 livery by requiring the person who signs to 

5 accept delivery of the shipping container to 

6 provide proof, in the form of a valid, gov7 ernment-issued identification bearing a 

8 photograph of the individual, that such 

9 person is at least the minimum age re10 quired for the legal sale or purchase of to11 bacco products, as determined by either 

12 State or local law at the place of delivery; 

13 ‘‘(ii) requiring that the common car14 rier or other delivery service obtain a sig15 nature from the consumer accepting the 

16 delivery; 

17 ‘‘(iii) requiring that the common car18 rier or other delivery service verify that all 

19 applicable taxes have been paid; 

20 ‘‘(iv) requiring that packages delivered 

21 by the common carrier or other delivery 

22 service contain any particular labels, no23 tice, or markings; or 

24 ‘‘(v) prohibiting common carriers or 

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1 eries on the basis of whether the delivery 

2 seller is or is not identified on any list of 

3 delivery sellers maintained and distributed 

4 by any entity other than the Federal Gov5 ernment. 

6 Nothing in this paragraph may be construed to 

7 preempt or supersede State laws prohibiting the 

8 delivery sale, or the shipment or delivery pursu9 ant to a delivery sale, of cigarettes or smokeless 

10 tobacco to individual consumers. 

11 ‘‘(B) RELATIONSHIP TO OTHER LAWS.— 

12 Nothing in this paragraph shall be construed to 

13 prohibit, expand, restrict, or otherwise amend 

14 or modify— 

15 ‘‘(i) section 14501(c)(1) or 

16 41713(b)(4) of title 49, United States 

17 Code; 

18 ‘‘(ii) any other restrictions in Federal 

19 law on the ability of State, local, or tribal 

20 governments to regulate common carriers; 

21 or 

22 ‘‘(iii) any provision of State, local, or 

23 tribal law regulating common carriers that 

24 falls within the provisions of chapter 49 of 


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1 the United States Code, sections 

2 14501(c)(2) or 41713(b)(4)(B). 

3 ‘‘(5) STATE, LOCAL, AND TRIBAL ADDITIONS.— 

4 ‘‘(A) IN GENERAL.—Any State, local, or 

5 tribal government shall provide the Attorney 

6 General of the United States with— 

7 ‘‘(i) all known names, addresses, 

8 website addresses, and other primary con9 tact information of any delivery seller that 

10 offers for sale or makes sales of cigarettes 

11 or smokeless tobacco in or into the State, 

12 locality, or tribal land but has failed to 

13 register with or make reports to the re14 spective tax administrator, as required by 

15 this Act, or that has been found in a legal 

16 proceeding to have otherwise failed to com17 ply with this Act; and 

18 ‘‘(ii) a list of common carriers and 

19 other persons who make deliveries of ciga20 rettes or smokeless tobacco in or into the 

21 State, locality, or tribal lands. 

22 ‘‘(B) UPDATES.—Any government pro23 viding a list to the Attorney General of the 

24 United States under subparagraph (A) shall 

25 also provide updates and corrections every 4 


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1 months until such time as such government no2 tifies the Attorney General of the United States 

3 in writing that such government no longer de4 sires to submit such information to supplement 

5 the list maintained and distributed by the At6 torney General of the United States under 

7 paragraph (1). 

8 ‘‘(C) REMOVAL AFTER WITHDRAWAL.— 

9 Upon receiving written notice that a govern10 ment no longer desires to submit information 

11 under subparagraph (A), the Attorney General 

12 of the United States shall remove from the list 

13 under paragraph (1) any persons that are on 

14 the list solely because of such government’s 

15 prior submissions of its list of noncomplying de16 livery sellers of cigarettes or smokeless tobacco 

17 or its subsequent updates and corrections. 

18 ‘‘(6) DEADLINE TO INCORPORATE ADDI19 TIONS.—The Attorney General of the United States 

20 shall— 

21 ‘‘(A) include any delivery seller identified 

22 and submitted by a State, local, or tribal gov23 ernment under paragraph (5) in any list or up24 date that is distributed or made available under 

25 paragraph (1) on or after the date that is 30 


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1 days after the date on which the information is 

2 received by the Attorney General of the United 

3 States; and 

4 ‘‘(B) distribute any such list or update to 

5 any common carrier or other person who makes 

6 deliveries of cigarettes or smokeless tobacco 

7 that has been identified and submitted by an8 other government, pursuant to paragraph (5). 

9 ‘‘(7) NOTICE TO DELIVERY SELLERS.—Not 

10 later than 14 days prior to including any delivery 

11 seller on the initial list distributed or made available 

12 under paragraph (1), or on any subsequent list or 

13 update for the first time, the Attorney General of 

14 the United States shall make a reasonable attempt 

15 to send notice to the delivery seller by letter, elec16 tronic mail, or other means that the delivery seller 

17 is being placed on such list or update, with that no18 tice including the text of this Act. 

19 ‘‘(8) LIMITATIONS.— 

20 ‘‘(A) IN GENERAL.—Any common carrier 

21 or other person making a delivery subject to 

22 this subsection shall not be required or other23 wise obligated to— 

24 ‘‘(i) determine whether any list dis25 tributed or made available under paraVerDate Aug 31 2005 04:49 Aug 08, 2006 Jkt 049200 PO 00000 Frm 00028 Fmt 6652 Sfmt 6201 E:\BILLS\S3810.IS S3810

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1 graph (1) is complete, accurate, or up-to2 date; 

3 ‘‘(ii) determine whether a person or4 dering a delivery is in compliance with this 

5 Act; or 

6 ‘‘(iii) open or inspect, pursuant to this 

7 Act, any package being delivered to deter8 mine its contents. 

9 ‘‘(B) ALTERNATE NAMES.—Any common 

10 carrier or other person making a delivery sub11 ject to this subsection shall not be required or 

12 otherwise obligated to make any inquiries or 

13 otherwise determine whether a person ordering 

14 a delivery is a delivery seller on the list under 

15 paragraph (1) who is using a different name or 

16 address in order to evade the related delivery 

17 restrictions, but shall not knowingly deliver any 

18 packages to consumers for any such delivery 

19 seller who the common carrier or other delivery 

20 service knows is a delivery seller who is on the 

21 list under paragraph (1) but is using a different 

22 name or address to evade the delivery restric23 tions of paragraph (2). 

24 ‘‘(C) PENALTIES.—Any common carrier or 

25 person in the business of delivering packages on 


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1 behalf of other persons shall not be subject to 

2 any penalty under section 14101(a) of title 49, 

3 United States Code, or any other provision of 

4 law for— 

5 ‘‘(i) not making any specific delivery, 

6 or any deliveries at all, on behalf of any 

7 person on the list under paragraph (1); 

8 ‘‘(ii) not, as a matter of regular prac9 tice and procedure, making any deliveries, 

10 or any deliveries in certain States, of any 

11 cigarettes or smokeless tobacco for any 

12 person or for any person not in the busi13 ness of manufacturing, distributing, or 

14 selling cigarettes or smokeless tobacco; or 

15 ‘‘(iii) delaying or not making a deliv16 ery for any person because of reasonable 

17 efforts to comply with this Act. 

18 ‘‘(D) OTHER LIMITS.—Section 2 and sub19 sections (a), (b), (c), and (d) of this section 

20 shall not be interpreted to impose any respon21 sibilities, requirements, or liability on common 

22 carriers. 

23 ‘‘(f) PRESUMPTION.—For purposes of this Act, a de24 livery sale shall be deemed to have occurred in the State 

25 and place where the buyer obtains personal possession of 


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1 the cigarettes or smokeless tobacco, and a delivery pursu2 ant to a delivery sale is deemed to have been initiated or 

3 ordered by the delivery seller.’’. 

4 (d) PENALTIES.—The Jenkins Act is amended by 

5 striking section 3 and inserting the following: 

6 ‘‘SEC. 3. PENALTIES. 

7 ‘‘(a) CRIMINAL PENALTIES.— 

8 ‘‘(1) IN GENERAL.—Except as provided in para9 graph (2), whoever violates any provision of this Act 

10 shall be guilty of a felony and shall be imprisoned 

11 not more than 3 years, fined under title 18, United 

12 States Code, or both. 

13 ‘‘(2) EXCEPTIONS.— 

14 ‘‘(A) GOVERNMENTS.—Paragraph (1) shall 

15 not apply to a State, local, or tribal govern16 ment. 

17 ‘‘(B) DELIVERY VIOLATIONS.—A common 

18 carrier or independent delivery service, or em19 ployee of a common carrier or independent de20 livery service, shall be subject to criminal pen21 alties under paragraph (1) for a violation of 

22 section 2A(e) only if the violation is committed 

23 intentionally for the purpose of— 

24 ‘‘(i) obtaining the business of delivery 

25 sellers known to the common carrier or 


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1 independent delivery service not to be in 

2 compliance with this Act; or 

3 ‘‘(ii) assisting a delivery seller to vio4 late or otherwise evade compliance with 

5 section 2A. 

6 ‘‘(b) CIVIL PENALTIES.— 

7 ‘‘(1) IN GENERAL.—Except as provided in para8 graph (3), whoever violates any provision of this Act 

9 shall be subject to a civil penalty in an amount not 

10 to exceed— 

11 ‘‘(A) in the case of a delivery seller, the 

12 greater of— 

13 ‘‘(i) $5,000 in the case of the first 

14 violation, or $10,000 for any other viola15 tion; or 

16 ‘‘(ii) for any violation, 2 percent of 

17 the gross sales of cigarettes or smokeless 

18 tobacco of such person during the 1-year 

19 period ending on the date of the violation. 

20 ‘‘(B) in the case of a common carrier or 

21 other delivery service, $2,500 in the case of a 

22 first violation, or $5,000 for any violation with23 in 1 year of a prior violation. 

24 ‘‘(2) RELATION TO OTHER PENALTIES.—A civil 

25 penalty under paragraph (1) for a violation of this 


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1 Act shall be imposed in addition to any criminal 

2 penalty under subsection (a) and any other damages, 

3 equitable relief, or injunctive relief awarded by the 

4 court, including, but not limited to, the payment of 

5 any unpaid taxes to the appropriate Federal, State, 

6 local, or tribal governments. 

7 ‘‘(3) EXCEPTIONS.— 

8 ‘‘(A) DELIVERY VIOLATIONS.—An em9 ployee of a common carrier or independent de10 livery service shall be subject to civil penalties 

11 under paragraph (1) for a violation of section 

12 2A(e) only if the violation is committed inten13 tionally for the purpose of— 

14 ‘‘(i) obtaining the business of delivery 

15 sellers known to the common carrier or 

16 independent delivery service not to be in 

17 compliance with this Act; or 

18 ‘‘(ii) assisting a delivery seller to vio19 late or otherwise evade compliance with 

20 section 2A. 

21 ‘‘(B) OTHER LIMITATIONS.—No common 

22 carrier or independent delivery service shall be 

23 subject to civil penalties under paragraph (1) 

24 for a violation of section 2A(e) if— 


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1 ‘‘(i) the common carrier or inde2 pendent delivery service has implemented 

3 and enforces effective policies and practices 

4 for complying with that section; or 

5 ‘‘(ii) an employee of the common car6 rier or independent delivery service who 

7 physically receives and processes orders, 

8 picks up packages, processes packages, or 

9 makes deliveries, takes actions that are 

10 outside the scope of employment of the em11 ployee in the course of the violation, or 

12 that violate the implemented and enforced 

13 policies of the common carrier or inde14 pendent delivery service described in clause 

15 (i).’’. 

16 (e) ENFORCEMENT.—The Jenkins Act is amended by 

17 striking section 4 and inserting the following: 

18 ‘‘SEC. 4. ENFORCEMENT. 

19 ‘‘(a) IN GENERAL.—The United States district 

20 courts shall have jurisdiction to prevent and restrain viola21 tions of this Act and to provide other appropriate injunc22 tive or equitable relief, including money damages, for such 

23 violations. 


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1 ‘‘(b) AUTHORITY OF THE ATTORNEY GENERAL.— 

2 The Attorney General of the United States shall admin3 ister and enforce the provisions of this Act. 

4 ‘‘(c) STATE, LOCAL, AND TRIBAL ENFORCEMENT.— 

5 ‘‘(1) IN GENERAL.— 

6 ‘‘(A) STANDING.—A State, through its at7 torney general (or a designee thereof), or a 

8 local government or Indian tribe that levies a 

9 tax subject to section 2A(a)(3), through its 

10 chief law enforcement officer (or a designee 

11 thereof), may bring an action in a United 

12 States district court to prevent and restrain vio13 lations of this Act by any person (or by any 

14 person controlling such person) or to obtain any 

15 other appropriate relief from any person (or 

16 from any person controlling such person) for 

17 violations of this Act, including civil penalties, 

18 money damages, and injunctive or other equi19 table relief. 

20 ‘‘(B) SOVEREIGN IMMUNITY.—Nothing in 

21 this Act shall be deemed to abrogate or con22 stitute a waiver of any sovereign immunity of a 

23 State or local government or Indian tribe 

24 against any unconsented lawsuit under this Act, 

25 or otherwise to restrict, expand, or modify any 


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1 sovereign immunity of a State or local govern2 ment or Indian tribe. 

3 ‘‘(2) PROVISION OF INFORMATION.—A State, 

4 through its attorney general, or a local government 

5 or Indian tribe that levies a tax subject to section 

6 2A(a)(3), through its chief law enforcement officer 

7 (or a designee thereof), may provide evidence of a 

8 violation of this Act by any person not subject to 

9 State, local, or tribal government enforcement ac10 tions for violations of this Act to the Attorney Gen11 eral of the United States or a United States attor12 ney, who shall take appropriate actions to enforce 

13 the provisions of this Act. 

14 ‘‘(3) USE OF PENALTIES COLLECTED.— 

15 ‘‘(A) IN GENERAL.—There is established a 

16 separate account in the Treasury known as the 

17 ‘PACT Anti-Trafficking Fund’. Notwith18 standing any other provision of law and subject 

19 to subparagraph (B), an amount equal to 50 

20 percent of any criminal and civil penalties col21 lected by the United States Government in en22 forcing the provisions of this Act shall be trans23 ferred into the PACT Anti-Trafficking Fund 

24 and shall be available to the Attorney General 

25 of the United States for purposes of enforcing 


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1 the provisions of this Act and other laws relat2 ing to contraband tobacco products. 

3 ‘‘(B) ALLOCATION OF FUNDS.—Of the 

4 amount available to the Attorney General under 

5 subparagraph (A), not less than 50 percent 

6 shall be made available only to the agencies and 

7 offices within the Department of Justice that 

8 were responsible for the enforcement actions in 

9 which the penalties concerned were imposed or 

10 for any underlying investigations. 

11 ‘‘(4) NONEXCLUSIVITY OF REMEDY.— 

12 ‘‘(A) IN GENERAL.—The remedies avail13 able under this section and section 3 are in ad14 dition to any other remedies available under 

15 Federal, State, local, tribal, or other law. 

16 ‘‘(B) STATE COURT PROCEEDINGS.—Noth17 ing in this Act shall be construed to expand, re18 strict, or otherwise modify any right of an au19 thorized State official to proceed in State court, 

20 or take other enforcement actions, on the basis 

21 of an alleged violation of State or other law. 

22 ‘‘(C) TRIBAL COURT PROCEEDINGS.— 

23 Nothing in this Act shall be construed to ex24 pand, restrict, or otherwise modify any right of 

25 an authorized Indian tribal government official 


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1 to proceed in tribal court, or take other enforce2 ment actions, on the basis of an alleged viola3 tion of tribal law. 

4 ‘‘(D) LOCAL GOVERNMENT ENFORCE5 MENT.—Nothing in this Act shall be construed 

6 to expand, restrict, or otherwise modify any 

7 right of an authorized local government official 

8 to proceed in State court, or take other enforce9 ment actions, on the basis of an alleged viola10 tion of local or other law. 

11 ‘‘(d) PERSONS DEALING IN TOBACCO PRODUCTS.— 

12 Any person who holds a permit under section 5712 of the 

13 Internal Revenue Code of 1986 (regarding permitting of 

14 manufacturers and importers of tobacco products and ex15 port warehouse proprietors) may bring an action in a 

16 United States district court to prevent and restrain viola17 tions of this Act by any person (or by any person control18 ling such person) other than a State, local, or tribal gov19 ernment. 

20 ‘‘(e) NOTICE.— 

21 ‘‘(1) PERSONS DEALING IN TOBACCO PROD22 UCTS.—Any person who commences a civil action 

23 under subsection (d) shall inform the Attorney Gen24 eral of the United States of the action. 


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1 ‘‘(2) STATE, LOCAL, AND TRIBAL ACTIONS.—It 

2 is the sense of Congress that the attorney general of 

3 any State, or chief law enforcement officer of any lo4 cality or tribe, that commences a civil action under 

5 this section should inform the Attorney General of 

6 the United States of the action. 

7 ‘‘(f) PUBLIC NOTICE.— 

8 ‘‘(1) IN GENERAL.—The Attorney General of 

9 the United States shall make available to the public, 

10 by posting such information on the Internet and by 

11 other appropriate means, information regarding all 

12 enforcement actions undertaken by the Attorney 

13 General or United States attorneys, or reported to 

14 the Attorney General, under this section, including 

15 information regarding the resolution of such actions 

16 and how the Attorney General and the United States 

17 attorney have responded to referrals of evidence of 

18 violations pursuant to paragraph (2). 

19 ‘‘(2) REPORTS TO CONGRESS.—The Attorney 

20 General shall submit to Congress each year a report 

21 containing the information described in paragraph 

22 (1).’’. 

23 (f) CONFORMING AND CLERICAL AMENDMENTS.— 

24 The section heading for chapter 10A of title 15, United 

25 States Code, is amended to read as follows: ‘‘REMOTE 


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1 SALES OF CIGARETTES AND SMOKELESS 

2 TOBACCO’’. 

3 SEC. 3. TREATMENT OF CIGARETTES AND SMOKELESS TO4 BACCO AS NONMAILABLE MATTER. 

5 Section 1716 of title 18, United States Code, is 

6 amended— 

7 (1) by redesignating subsections (j) and (k) as 

8 subsections (k) and (l), respectively; and 

9 (2) by inserting after subsection (i) the fol10 lowing: 

11 ‘‘(j) TOBACCO PRODUCTS.— 

12 ‘‘(1) PROHIBITION.— 

13 ‘‘(A) IN GENERAL.—Except as provided in 

14 subparagraphs (B) and (C), all cigarettes (as 

15 that term is defined in section 1(2) of the Act 

16 of October 19, 1949 (15 U.S.C. 375; commonly 

17 referred to as the ‘Jenkins Act’)) and smokeless 

18 tobacco (as that term is defined in section 

19 1(12) of that Act), are nonmailable and shall 

20 not be deposited in or carried through the 

21 mails. The United States Postal Service shall 

22 not accept for delivery or transmit through the 

23 mails any package that it knows or has reason24 able cause to believe contains any cigarettes or 


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1 smokeless tobacco made nonmailable by this 

2 subsection. 

3 ‘‘(B) REASONABLE CAUSE TO BELIEVE.— 

4 For purposes of this section, notification to the 

5 United States Postal Service by the Attorney 

6 General, a United States attorney, or a State 

7 Attorney General that an individual or entity is 

8 primarily engaged in the business of transmit9 ting cigarettes or smokeless tobacco made non10 mailable by this section shall constitute reason11 able cause to believe that any packages pre12 sented to the United States Postal Service by 

13 such individual or entity contain nonmailable 

14 cigarettes or smokeless tobacco. 

15 ‘‘(C) CIGARS.—Subparagraph (A) shall not 

16 apply to cigars (as that term is defined in sec17 tion 5702(a) of the Internal Revenue Code of 

18 1986). 

19 ‘‘(D) GEOGRAPHIC EXCEPTION.—Subpara20 graph (A) shall not apply to mailings within or 

21 into any State that is not contiguous with at 

22 least 1 other State of the United States. For 

23 purposes of this paragraph, ‘State’ means any 

24 of the 50 States or the District of Columbia. 


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1 ‘‘(2) PACKAGING EXCEPTIONS INAPPLICABLE.— 

2 Subsection (b) shall not apply to any tobacco prod3 uct made nonmailable by this subsection. 

4 ‘‘(3) SEIZURE AND FORFEITURE.—Any ciga5 rettes or smokeless tobacco made nonmailable by 

6 this subsection that are deposited in the mails shall 

7 be subject to seizure and forfeiture, and any tobacco 

8 products so seized and forfeited shall either be de9 stroyed or retained by Government officials for the 

10 detection or prosecution of crimes or related inves11 tigations and then destroyed. 

12 ‘‘(4) ADDITIONAL PENALTIES.—In addition to 

13 any other fines and penalties imposed by this chap14 ter for violations of this section, any person violating 

15 this subsection shall be subject to an additional pen16 alty in the amount of 10 times the retail value of the 

17 nonmailable cigarettes or smokeless tobacco, includ18 ing all Federal, State, and local taxes. 

19 ‘‘(5) USE OF PENALTIES.—There is established 

20 a separate account in the Treasury known as the 

21 ‘PACT Postal Service Fund’. Notwithstanding any 

22 other provision of law, an amount equal to 50 per23 cent of any criminal and civil fines or monetary pen24 alties collected by the United States Government in 

25 enforcing the provisions of this subsection shall be 


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1 transferred into the PACT Postal Service Fund and 

2 shall be available to the Postmaster General for the 

3 purpose of enforcing the provisions of this sub4 section.’’. 

5 SEC. 4. COMPLIANCE WITH MODEL STATUTE OR QUALI6 FYING STATUTE. 

7 (a) IN GENERAL.—A Tobacco Product Manufacturer 

8 or importer may not sell in, deliver to, or place for delivery 

9 sale, or cause to be sold in, delivered to, or placed for deliv10 ery sale in a State that is a party to the Master Settlement 

11 Agreement, any cigarette manufactured by a Tobacco 

12 Product Manufacturer that is not in full compliance with 

13 the terms of the Model Statute or Qualifying Statute en14 acted by such State requiring funds to be placed into a 

15 qualified escrow account under specified conditions, or any 

16 regulations promulgated pursuant to such statute. 

17 (b) JURISDICTION TO PREVENT AND RESTRAIN VIO18 LATIONS.— 

19 (1) IN GENERAL.—The United States district 

20 courts shall have jurisdiction to prevent and restrain 

21 violations of subsection (a) in accordance with this 

22 subsection. 

23 (2) INITIATION OF ACTION.—A State, through 

24 its attorney general, may bring an action in the 

25 United States district courts to prevent and restrain 


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1 violations of subsection (a) by any person (or by any 

2 person controlling such person). 

3 (3) ATTORNEY FEES.—In any action under 

4 paragraph (2), a State, through its attorney general, 

5 shall be entitled to reasonable attorney fees from a 

6 person found to have willfully and knowingly violated 

7 subsection (a). 

8 (4) NONEXCLUSIVITY OF REMEDIES.—The rem9 edy available under paragraph (2) is in addition to 

10 any other remedies available under Federal, State, 

11 or other law. No provision of this Act or any other 

12 Federal law shall be held or construed to prohibit or 

13 preempt the Master Settlement Agreement, the 

14 Model Statute (as defined in the Master Settlement 

15 Agreement), any legislation amending or complemen16 tary to the Model Statute in effect as of June 1, 

17 2006, or any legislation substantially similar to such 

18 existing, amending, or complementary legislation 

19 hereinafter enacted. 

20 (5) OTHER ENFORCEMENT ACTIONS.—Nothing 

21 in this subsection shall be construed to prohibit an 

22 authorized State official from proceeding in State 

23 court or taking other enforcement actions on the 

24 basis of an alleged violation of State or other law. 


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1 (6) AUTHORITY OF THE ATTORNEY GEN2 ERAL.—The Attorney General of the United States 

3 may administer and enforce subsection (a). 

4 (c) DEFINITIONS.—In this section the following defi5 nitions apply: 

6 (1) DELIVERY SALE.—The term ‘‘delivery sale’’ 

7 means any sale of cigarettes or smokeless tobacco to 

8 a consumer if— 

9 (A) the consumer submits the order for 

10 such sale by means of a telephone or other 

11 method of voice transmission, the mails, or the 

12 Internet or other online service, or the seller is 

13 otherwise not in the physical presence of the 

14 buyer when the request for purchase or order is 

15 made; or 

16 (B) the cigarettes or smokeless tobacco are 

17 delivered by use of a common carrier, private 

18 delivery service, or the mails, or the seller is not 

19 in the physical presence of the buyer when the 

20 buyer obtains possession of the cigarettes or 

21 smokeless tobacco. 

22 (2) IMPORTER.—The term ‘‘importer’’ means 

23 each of the following: 

24 (A) SHIPPING OR CONSIGNING.—Any per25 son in the United States to whom non-tax-paid 


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•S 3810 IS

1 tobacco products manufactured in a foreign 

2 country, Puerto Rico, the Virgin Islands, or a 

3 possession of the United States are shipped or 

4 consigned. 

5 (B) MANUFACTURING WAREHOUSES.—Any 

6 person who removes cigars or cigarettes for sale 

7 or consumption in the United States from a 

8 customs-bonded manufacturing warehouse. 

9 (C) UNLAWFUL IMPORTING.—Any person 

10 who smuggles or otherwise unlawfully brings to11 bacco products into the United States. 

12 (3) MASTER SETTLEMENT AGREEMENT.—The 

13 term ‘‘Master Settlement Agreement’’ means the 

14 agreement executed November 23, 1998, between 

15 the attorneys general of 46 States, the District of 

16 Columbia, the Commonwealth of Puerto Rico, and 4 

17 territories of the United States and certain tobacco 

18 manufacturers. 

19 (4) MODEL STATUTE; QUALIFYING STATUTE.— 

20 The terms ‘‘Model Statute’’ and ‘‘Qualifying Stat21 ute’’ means a statute as defined in section 

22 IX(d)(2)(e) of the Master Settlement Agreement. 

23 (5) TOBACCO PRODUCT MANUFACTURER.—The 

24 term ‘‘Tobacco Product Manufacturer’’ has the 


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1 meaning given that term in section II(uu) of the 

2 Master Settlement Agreement. 

3 SEC. 5. UNDERCOVER CRIMINAL INVESTIGATIONS OF THE 

4 BUREAU OF ALCOHOL, TOBACCO, FIREARMS 

5 AND EXPLOSIVES. 

6 (a) APPROPRIATIONS AVAILABLE.— 

7 (1) IN GENERAL.—Commencing as of the date 

8 of the enactment of this Act and without fiscal year 

9 limitation, the authorities in section 102(b) of the 

10 Department of Justice and Related Agencies Appro11 priations Act, 1993 (title I of Public Law 102–395; 

12 106 Stat. 1838) shall be available to the Bureau of 

13 Alcohol, Tobacco, Firearms and Explosives for un14 dercover investigative operations of the Bureau 

15 which are necessary for the detection and prosecu16 tion of crimes against the United States. 

17 (2) CONFORMING RULE.—For purposes of the 

18 exercise by the Bureau of Alcohol, Tobacco, Fire19 arms and Explosives of the authorities referenced in 

20 paragraph (1), a reference in section 102(b) of the 

21 Department of Justice and Related Agencies Appro22 priations Act, 1993 (title I of Public Law 102–395; 

23 106 Stat. 1838) to the Federal Bureau of Investiga24 tion shall be deemed to be a reference to the Bureau 

25 of Alcohol, Tobacco, Firearms and Explosives, and a 


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1 reference to the Director of the Federal Bureau of 

2 Investigation shall be deemed to be a reference to 

3 the Director of the Bureau of Alcohol, Tobacco, 

4 Firearms and Explosives. 

5 (b) LIMITATIONS IN APPROPRIATIONS ACTS.—The 

6 exercise of the authorities referred to in subsection (a)(1) 

7 by the Bureau of Alcohol, Tobacco, Firearms and Explo8 sives shall be subject to the provisions of appropriations 

9 Acts. 

10 SEC. 6. INSPECTION BY BUREAU OF ALCOHOL, TOBACCO, 

11 FIREARMS AND EXPLOSIVES OF RECORDS OF 

12 CERTAIN CIGARETTE AND SMOKELESS TO13 BACCO SELLERS. 

14 (a) IN GENERAL.—Any officer of the Bureau of Alco15 hol, Tobacco, Firearms and Explosives may, during nor16 mal business hours, enter the premises of any person de17 scribed in subsection (b) for the purposes of inspecting— 

18 (1) any records or information required to be 

19 maintained by such person under the provisions of 

20 law referred to in subsection (d); or 

21 (2) any cigarettes or smokeless tobacco kept or 

22 stored by such person at such premises. 

23 (b) COVERED PERSONS.—Subsection (a) applies to 

24 any person who engages in a delivery sale, and who ships, 

25 sells, distributes, or receives any quantity in excess of 


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1 10,000 cigarettes, or any quantity in excess of 500 single2 unit consumer-sized cans or packages of smokeless to3 bacco, within a single month. 

4 (c) RELIEF.— 

5 (1) IN GENERAL.—The district courts of the 

6 United States shall have the authority in a civil ac7 tion under this subsection to compel inspections au8 thorized by subsection (a). 

9 (2) VIOLATIONS.—Whoever violates subsection 

10 (a) or an order issued pursuant to paragraph (1) 

11 shall be subject to a civil penalty in an amount not 

12 to exceed $10,000 for each violation. 

13 (d) COVERED PROVISIONS OF LAW.—The provisions 

14 of law referred to in this subsection are— 

15 (1) the Act of October 19, 1949 (15 U.S.C. 

16 375; commonly referred to as the ‘‘Jenkins Act’’); 

17 (2) chapter 114 of title 18, United States Code; 

18 and 

19 (3) this Act. 

20 (e) DELIVERY SALE DEFINED.—In this section, the 

21 term ‘‘delivery sale’’ has the meaning given that term in 

22 2343(e) of title 18, United States Code, as amended by 

23 section 4(d)(4). 


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1 SEC. 7. COMPLIANCE WITH TARIFF ACT OF 1930. 

2 (a) INAPPLICABILITY OF EXEMPTIONS FROM RE3 QUIREMENTS FOR ENTRY OF CERTAIN CIGARETTES.— 

4 Section 802(b)(1) of the Tariff Act of 1930 (19 U.S.C. 

5 1681a(b)(1)) is amended by adding at the end the fol6 lowing: ‘‘This paragraph shall not apply to any cigarettes 

7 sold in connection with a delivery sale (as that term is 

8 defined in section 1(6) of the Act of October 19, 1949 

9 (commonly referred to as the ‘Jenkins Act’)).’’. 

10 (b) STATE AND TRIBAL ACCESS TO CUSTOMS CER11 TIFICATIONS.—Section 802 of the Tariff Act of 1930 (19 

12 U.S.C. 1681a) is amended by adding at the end the fol13 lowing: 

14 ‘‘(d) STATE AND TRIBAL ACCESS TO CUSTOMS CER15 TIFICATIONS.—A State, through its attorney general, and 

16 an Indian tribe (as that term is defined in section 4(e) 

17 of the Indian Self-Determination and Education Assist18 ance Act (25 U.S.C. 450b(e)), through its chief law en19 forcement officer, shall be entitled to obtain copies of any 

20 certification required pursuant to subsection (c) directly— 

21 ‘‘(1) upon request to the agency of the United 

22 States responsible for collecting such certification; or 

23 ‘‘(2) upon request to the importer, manufac24 turer, or authorized official of such importer or 

25 manufacturer.’’. 


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1 (c) ENFORCEMENT PROVISIONS.—Section 803 of the 

2 Tariff Act of 1930 (19 U.S.C. 1681b) is amended— 

3 (1) in subsection (b)— 

4 (A) in the first sentence— 

5 (i) by inserting ‘‘any State of’’ before 

6 ‘‘the United States’’ the first and second 

7 places it appears; and 

8 (ii) by inserting before the period the 

9 following: ‘‘, to any State in which such to10 bacco product, cigarette papers, or tube 

11 was imported, or to the Indian tribe of any 

12 Indian country (as that term is defined in 

13 section 1151 of title 18, United States 

14 Code) in which such tobacco product, ciga15 rette papers, or tube was imported’’; and 

16 (B) in the second sentence, by inserting ‘‘, 

17 or to any State or Indian tribe,’’ after ‘‘the 

18 United States’’; and 

19 (2) by adding at the end the following: 

20 ‘‘(c) ACTIONS BY STATES AND OTHERS.— 

21 ‘‘(1) PERSONS DEALING IN TOBACCO PROD22 UCTS.—Any person who holds a permit under sec23 tion 5712 of the Internal Revenue Code of 1986 (re24 garding permitting of manufacturers and importers 

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1 etors) may bring an action in the United States dis2 trict courts to prevent and restrain violations of this 

3 title by any person (or by any person controlling 

4 such person), other than a State, local, or tribal gov5 ernment. 

6 ‘‘(2) STATE, LOCAL, AND TRIBAL GOVERN7 MENTS.—A State, through its attorney general, or a 

8 local government or tribe through its chief law en9 forcement officer (or a designee thereof), may bring 

10 a civil action under this title to prevent and restrain 

11 violations of this title by any person (or by any per12 son controlling such person) or to obtain any other 

13 appropriate relief for violations of this title by any 

14 person (or from any person controlling such person), 

15 including civil penalties, money damages, and in16 junctive or other equitable relief. 

17 ‘‘(3) CONSTRUCTION GENERALLY.— 

18 ‘‘(A) IN GENERAL.—Nothing in this sub19 section shall be deemed to abrogate or con20 stitute a waiver of any sovereign immunity of a 

21 State or local government or Indian tribe 

22 against any unconsented lawsuit under this title 

23 or to otherwise restrict, expand, or modify any 

24 sovereign immunity of a State, local govern25 ment, or Indian tribe. 


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1 ‘‘(B) CONSTRUCTION WITH OTHER RE2 LIEF.—The remedies available under this sub3 section are in addition to any other remedies 

4 available under Federal, State, local, tribal, or 

5 other law. 

6 ‘‘(4) CONSTRUCTION WITH FORFEITURE PROVI7 SIONS.—Nothing in this subsection shall be con8 strued to require a State or Indian tribe to first 

9 bring an action under to paragraph (1) when pur10 suing relief under subsection (b). 

11 ‘‘(d) CONSTRUCTION WITH OTHER AUTHORITIES.— 

12 Nothing in this title shall be construed to expand, restrict, 

13 or otherwise modify the right of— 

14 ‘‘(1) an authorized State official from pro15 ceeding in State court, or taking other enforcement 

16 actions, on the basis of alleged violation of State or 

17 other law; or 

18 ‘‘(2) an authorized Indian tribal government of19 ficial from proceeding in tribal court, or taking other 

20 enforcement actions, on the basis of alleged violation 

21 of tribal law.’’. 

22 (d) INCLUSION OF SMOKELESS TOBACCO.— 

23 (1) IN GENERAL.—Sections 802 and 803(a) of 

24 the Tariff Act of 1930 (19 U.S.C. 1202 et seq.) are 


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1 amended by inserting ‘‘or smokeless tobacco prod2 ucts’’ after ‘‘cigarettes’’ each place it appears. 

3 (2) CONFORMING AMENDMENTS.— 

4 (A) REQUIREMENTS FOR ENTRY.—Section 

5 802 of the Tariff Act of 1930 (19 U.S.C. 

6 1681a) is amended— 

7 (i) in the heading, by inserting ‘‘AND

8 SMOKELESS TOBACCO’’ after ‘‘CIGA9 RETTES’’; 

10 (ii) in subsection (a)— 

11 (I) in paragraph (1), by inserting 

12 ‘‘or section 4 of the Comprehensive 

13 Smokeless Tobacco Health Education 

14 Act of 1986 (15 U.S.C. 4403), respec15 tively’’ after ‘‘section 7 of the Federal 

16 Cigarette Labeling and Advertising 

17 Act (15 U.S.C. 1335a)’’; 

18 (II) in paragraph (2), by insert19 ing ‘‘or section 3 of the Comprehen20 sive Smokeless Tobacco Health Edu21 cation Act of 1986 (15 U.S.C. 4402), 

22 respectively,’’ after ‘‘section 4 of the 

23 Federal Cigarette Labeling and Ad24 vertising Act (15 U.S.C. 1333)’’; and 


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1 (III) in paragraph (3), by insert2 ing ‘‘or section 3(d) of the Com3 prehensive Smokeless Tobacco Health 

4 Education Act of 1986 (15 U.S.C. 

5 4402(d)), respectively,’’ after ‘‘section 

6 4(c) of the Federal Cigarette Labeling 

7 and Advertising Act (15 U.S.C. 

8 1333(c))’’; 

9 (iii) in subsection (b)— 

10 (I) in the heading of paragraph 

11 (1), by inserting ‘‘OR SMOKELESS TO12 BACCO’’ after ‘‘CIGARETTES’’; and 

13 (II) in the heading of paragraphs 

14 (2) and (3), by inserting ‘‘OR SMOKE15 LESS TOBACCO’’ after ‘‘CIGARETTES’’; 

16 and 

17 (iv) in subsection (c)— 

18 (I) in the heading, by inserting 

19 ‘‘OR SMOKELESS TOBACCO’’ after 

20 ‘‘CIGARETTE’’; 

21 (II) in paragraph (1), by insert22 ing ‘‘or section 4 of the Comprehen23 sive Smokeless Tobacco Health Edu24 cation Act of 1986 (15 U.S.C. 4403), 

25 respectively’’ after ‘‘section 7 of the 


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1 Federal Cigarette Labeling and Ad2 vertising Act (15 U.S.C. 1335a)’’; 

3 (III) in paragraph (2)(A), ‘‘or 

4 section 3 of the Comprehensive 

5 Smokeless Tobacco Health Education 

6 Act of 1986 (15 U.S.C. 4402), respec7 tively,’’ after ‘‘section 4 of the Federal 

8 Cigarette Labeling and Advertising 

9 Act (15 U.S.C. 1333)’’; and 

10 (IV) in paragraph (2)(B), by in11 serting ‘‘or section 3(d) of the Com12 prehensive Smokeless Tobacco Health 

13 Education Act of 1986 (15 U.S.C. 

14 4402(d)), respectively’’ after ‘‘section 

15 4(c) of the Federal Cigarette Labeling 

16 and Advertising Act (15 U.S.C. 

17 1333(c))’’. 

18 (B) ENFORCEMENT.—Section 803(b) of 

19 the Tariff Act of 1930 (19 U.S.C. 1681b(b)) is 

20 amended by inserting ‘‘, or any smokeless to21 bacco product,’’ after ‘‘or tube’’ the first place 

22 it appears. 

23 (C) TITLE HEADING.—The heading of title 

24 VIII of the Tariff Act of 1930 (19 U.S.C. 1681 

25 et seq.) is amended by inserting ‘‘AND 


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1 SMOKELESS TOBACCO’’ after ‘‘CIGA2 RETTES’’. 

3 SEC. 8. EXCLUSIONS REGARDING INDIAN TRIBES AND 

4 TRIBAL MATTERS. 

5 (a) IN GENERAL.—Nothing in this Act or the amend6 ments made by this Act is intended nor shall be construed 

7 to affect, amend, or modify— 

8 (1) any agreements, compacts, or other inter9 governmental arrangements between any State or 

10 local government and any government of an Indian 

11 tribe (as that term is defined in section 4(e) of the 

12 Indian Self-Determination and Education Assistance 

13 Act (25 U.S.C. 450b(e)) relating to the collection of 

14 taxes on cigarettes or smokeless tobacco sold in In15 dian country (as that term is defined in section 

16 1151 of title 18, United States Code); 

17 (2) any State laws that authorize or otherwise 

18 pertain to any such intergovernmental arrangements 

19 or create special rules or procedures for the collec20 tion of State, local, or tribal taxes on cigarettes or 

21 smokeless tobacco sold in Indian country; 

22 (3) any limitations under existing Federal law, 

23 including Federal common law and treaties, on 

24 State, local, and tribal tax and regulatory authority 

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1 rettes and smokeless tobacco by or to Indian tribes 

2 or tribal members or in Indian country; 

3 (4) any existing Federal law, including Federal 

4 common law and treaties, regarding State jurisdic5 tion, or lack thereof, over any tribe, tribal members, 

6 or tribal reservations; and 

7 (5) any existing State or local government au8 thority to bring enforcement actions against persons 

9 located in Indian country. 

10 (b) COORDINATION OF LAW ENFORCEMENT.—Noth11 ing in this Act or the amendments made by this Act shall 

12 be construed to inhibit or otherwise affect any coordinated 

13 law enforcement effort by 1 or more States or other juris14 dictions, including Indian tribes, through interstate com15 pact or otherwise, that— 

16 (1) provides for the administration of tobacco 

17 product laws or laws pertaining to interstate sales or 

18 other sales of tobacco products; 

19 (2) provides for the seizure of tobacco products 

20 or other property related to a violation of such laws; 

21 or 

22 (3) establishes cooperative programs for the ad23 ministration of such laws. 

24 (c) TREATMENT OF STATE AND LOCAL GOVERN25 MENTS.—Nothing in this Act or the amendments made 


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1 by this Act is intended, and shall not be construed to, au2 thorize, deputize, or commission States or local govern3 ments as instrumentalities of the United States. 

4 (d) ENFORCEMENT WITHIN INDIAN COUNTRY.— 

5 Nothing in this Act or the amendments made by this Act 

6 is intended to prohibit, limit, or restrict enforcement by 

7 the Attorney General of the United States of the provi8 sions herein within Indian country. 

9 (e) AMBIGUITY.—Any ambiguity between the lan10 guage of this section or its application and any other pro11 vision of this Act shall be resolved in favor of this section. 

12 SEC. 9. EFFECTIVE DATE. 

13 (a) IN GENERAL.—Except as provided in subsection 

14 (b), this Act shall take effect on the date that is 90 days 

15 after the date of enactment of this Act. 

16 (b) BATFE AUTHORITY.— 

17 (1) IN GENERAL.—Sections 6 and 7 shall take 

18 effect on the date of enactment of this Act. 

19 (2) DEFINITION.—For purposes of section 7, 

20 the definition of delivery sale in section 2343(e)(1) 

21 of title 18, United States Code, as amended by sec22 tion 4(d)(4) of this Act, shall take effect on the date 

23 of enactment of this Act. 


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1 SEC. 10. SEPARABILITY. 

2 If any provision of this Act or the application thereof 

3 to any person or circumstance is held invalid, the remain4 der of the Act and the application of it to any other person 

5 or circumstance shall not be affected thereby. 

Æ 


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