Home > 106th Congressional Bills > H.R. 374 (ih) To amend title 38, United States Code, to require the Secretary of [Introduced in House] ...H.R. 374 (ih) To amend title 38, United States Code, to require the Secretary of [Introduced in House] ...
108th CONGRESS
2d Session
H. R. 3749
To revise and reform the Act commonly called the Jenkins Act, and for
other purposes.
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IN THE HOUSE OF REPRESENTATIVES
January 28, 2004
Mr. Weiner introduced the following bill; which was referred to the
Committee on the Judiciary
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A BILL
To revise and reform the Act commonly called the Jenkins Act, 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.
This Act may be cited as the ``Local Government Internet Tobacco
Sales Enforcement Act of 2004''.
SEC. 2. REVISION OF ACT OF OCTOBER 19, 1949.
The Act of October 19, 1949, entitled ``An Act to assist States in
collecting sales and use taxes on cigarettes'' (15 U.S.C. 375 et seq.)
is amended by striking ``That for the purposes of this Act'' and all
that follows through the end of the Act and inserting the following:
``SECTION 1. SHORT TITLE.
``This Act may be cited as the `Jenkins Act'.
``SEC. 2. INTERSTATE SALES OF CIGARETTES AND SMOKELESS TOBACCO.
``(a) Compliance With Laws.--
``(1) Each person who engages in an interstate sale of
cigarettes or smokeless tobacco or in an interstate
distribution of cigarettes or smokeless tobacco shall comply
with all the excise, sales, and use tax laws applicable to the
sale or other transfer of cigarettes or smokeless tobacco in
the State and place in which the cigarettes or smokeless
tobacco are delivered as though the person were physically
located in that State or place.
``(2) Unless State law requires otherwise, no cigarettes or
smokeless tobacco may be delivered pursuant to an interstate
sale unless in advance of delivery--
``(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
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 or tribal 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.
``(3) The provisions of paragraph (2) do not apply to an
interstate sale or distribution of smokeless tobacco when the
law of the State or place where the smokeless tobacco is to be
delivered requires or otherwise provides that interstate
sellers of smokeless tobacco collect the excise tax from the
consumer and remit the excise tax to the State or place, and
the interstate seller complies with such requirement.
``(4)(A) Each State may compile a list of interstate
sellers of cigarettes or smokeless tobacco who are in
compliance with this Act with respect to that State. If a State
posts a list pursuant to this subsection that specifically
refers to this subsection, no person may knowingly make an
interstate distribution of cigarettes or smokeless tobacco into
that State other than to a person licensed or otherwise
authorized by the State to engage in the business of
manufacturing, distributing or selling cigarettes or smokeless
tobacco unless the person initiating or ordering the delivery
is on the list at the time of delivery.
``(B) Each State may also compile a list of interstate
sellers of cigarettes or smokeless tobacco who are not in
compliance with this Act with respect to that State. A State
may provide such a list to a common carrier, the United States
Postal Service, or to any other person, and make public the
availability of the list to any person engaged in the delivery
business in or into the State or who delivers cigarettes or
smokeless tobacco in or into the State. Such list shall be
confidential, and any person receiving such a list from a State
shall maintain the confidentiality of the list. If a State,
pursuant to this subsection, provides such a list to any person
and makes public its availability to persons who deliver
cigarettes or smokeless tobacco in or into the State, no person
who receives the list and no person who delivers cigarettes or
smokeless tobacco in or into the State may knowingly make an
interstate distribution of any item in or into that State for a
person on the list unless--
``(i) the person in good faith determines that the
item does not include cigarettes or smokeless tobacco;
or
``(ii) the delivery is made to a person licensed or
otherwise authorized by the State to engage in the
business of manufacturing, distributing or selling
cigarettes or smokeless tobacco.
``(b) Recordkeeping and Reporting.--Each person who engages in an
interstate sale of cigarettes or smokeless tobacco, or who advertises,
or offers to engage in, such a sale, shall--
``(1) first file with the tobacco tax administrator of the
State and place in which the cigarettes or smokeless tobacco
are to be offered, advertised, or delivered, a statement
setting forth the person's name and trade name (if any), and
the address of that person's principal place of business and
any other place of business, 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 authorized to accept service in the State on
behalf of that person;
``(2) not later than the 10th day of each calendar month,
file with that tobacco tax administrator a memorandum or copy
of the invoice covering each and every interstate sale of
cigarettes or smokeless tobacco by the filer into that State or
place, and each interstate distribution of cigarettes or
smokeless tobacco pursuant to that sale, during the previous
calendar month, and such memorandum or invoice shall include
the name and address of the person to whom the cigarettes or
smokeless tobacco are delivered, the brand, and the type, the
quantity delivered, and the name, address, and phone number of
the person delivering; and
``(3) maintain records, including the information specified
in paragraph (2), for not less than 5 years after the date of
an interstate sale of cigarettes or smokeless tobacco and of
each interstate distribution of cigarettes or smokeless tobacco
pursuant to that sale, and make those records available for
inspection upon the lawful demand of the Attorney General of
the United States, an attorney general of a State, the
Commissioner of Internal Revenue, or the chief tax collection
official of a State or place that levies an excise tax on
cigarettes or smokeless tobacco.
``(c) Personally identifiable information--
``(1) relating to an individual to whom cirgarettes or
smokeless tobacco are delivered; and
``(2) filed, or maintained in records, under paragraph (2)
or (3) of subsection (b);
shall not be made available to the public and shall be used solely for
the purposes of tax collection or law enforcement.
``(d) Deeming Rule.--For the purposes of this section--
``(1) an interstate sale or delivery of cigarettes or
smokeless tobacco shall be deemed to have occurred in the State
and place where the buyer obtains personal possession of the
cigarettes or smokeless tobacco; and
``(2) a delivery pursuant to an interstate sale is deemed
to have been initiated or ordered by the seller.
``SEC. 3. CIVIL ACTION.
``(a) In General.--In addition to any other remedies available
under other Federal or State or local law, the attorney general of a
State or the chief law enforcement officer of a local government that
imposes an excise tax on cigarettes or smokeless tobacco may in a civil
action obtain any appropriate relief, including money damages, civil
penalties, and injunctive or other equitable relief where appropriate,
against--
``(1) any person who violates, or is about to engage in a
violation of, section 2; or
``(2) any person who knowingly assists or participates, or
knowingly is about to engage, in such a violation.
``(b) Notice.--No attorney general of a State or chief law
enforcement officer of a local government may commence an action
pursuant to subsection (a) prior to 60 days after the State attorney
general has given notice of his intent to commence the action to the
Attorney General of the United States. If the Attorney General of the
United States has commenced and is diligently prosecuting a civil
action against the persons named in the notice for the violation
described in the notice, then the State attorney general may not
commence an action against that defendant for that violation but may
join the United States Attorney General's action solely for the purpose
of establishing and collecting State damages.
``(c) Limitations on Civil Actions by Local Governments.--The chief
law enforcement officer of a local government may not bring any
unconsented suit pursuant to this Act against any Federal, State,
local, or tribal governmental entity.
``(d) Referrals of Local Violations for Enforcement.--The chief law
enforcement officer of a local government may provide evidence of a
violation of its excise tax on cigarettes or smokeless tobacco under
section 2(a) of this Act to the Attorney General of the United States,
the United States Attorney with jurisdiction over the locality, or the
attorney general of the State in which the local government is located.
Upon referral, the Attorney General of the United States or the United
States Attorney shall take appropriate actions to enforce this Act.
``(e) Availability of Information.--The Attorney General of the
United States shall make information about Federal, State, and other
efforts to enforce this Act publicly available, through posting the
information on the Internet and through other means.
``SEC. 4. CIVIL PENALTY.
``Whoever violates section 2 is subject to a civil penalty not to
exceed $5,000 in the case of a first violation, and, in any other case,
not to exceed $10,000 or, if it is higher, 5 percent of the gross
revenue from interstate sales or distributions of cigarettes or
smokeless tobacco by such person during the 1-year period ending on the
date of the violation.
``SEC. 5. CRIMINAL PENALTIES.
``(a) Section 2(a) Violations.--Whoever violates section 2(a) shall
be fined under title 18, United States Code, or imprisoned not more
than 3 years, or both.
``(b) Section 2(b) Violations.--Whoever violates section 2(b) shall
be guilty, fined under title 18, United States Code, or imprisoned not
more than 6 months, or both.
``SEC. 6. NONPREEMPTION.
``This Act does not limit the remedies provided by State, tribal,
Federal, or other law with respect to alleged violations of State,
tribal, Federal, or other law relating to a sale or distribution of
cigarettes or smokeless tobacco in connection with an interstate sale
or distribution of cigarettes or smokeless tobacco. Nothing in this Act
shall be construed to prohibit an authorized State or local government
official from proceeding in State court or taking other enforcement
actions on the basis of alleged violations of State or other law, or an
authorized tribal government official from proceeding in tribal court
or taking other enforcement action, on the basis of alleged violations
of tribal or other law.
``SEC. 7. EXCLUSIONS REGARDING INDIAN TRIBES AND TRIBAL MATTERS.
``(a) Indian Country.--The provisions of this Act relating to State
tax collection do not apply to a sale of cigarettes or smokeless
tobacco that occurs exclusively in Indian country (as defined in
section 1151 of title 18, United States Code) owned or occupied by an
Indian tribe to a consumer located in that Indian Country who is an
individual member of the same Indian tribe.
``(b) Intergovernmental Arrangements.--Nothing in this Act is
intended nor shall be construed to affect, amend, or modify--
``(1) any agreement, compact, or other intergovernmental
arrangement between any State or local government and any
Indian tribe relating to the collection of taxes on cigarettes
or smokeless tobacco sold on tribal lands; or
``(2) any State law that pertains to any such
intergovernmental arrangement or creates special rules or
procedures for the collection of State, local, or tribal taxes
on cigarettes or smokeless tobacco sold on tribal lands.
``(c) Coordinated Law Enforcement Efforts.--Nothing in this Act
shall be construed to inhibit or otherwise affect any coordinated law
enforcement effort by one 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.
``SEC. 8. DEFINITIONS.
``As used in this Act--
``(1) the term `attorney general', with respect to a State,
means the chief law enforcement officer of that State, or the
designee of that officer;
``(2) the term `cigarette' means--
``(A) any roll of tobacco wrapped in paper or in
any substance not containing tobacco which is to be
heated or burned;
``(B) any roll of tobacco wrapped in any substance
containing tobacco that, because of its appearance, the
type of tobacco used in the filler, or its packaging or
labeling is likely to be offered to, or purchased by
consumers as a cigarette described in subparagraph (A);
``(C) any roll of tobacco wrapped in any substance
that because of its appearance, the type of tobacco
used in the filler, or its packaging or labeling is
likely to be offered to, or purchased by consumers as a
cigarette; or
``(D) loose rolling tobacco that, because of its
appearance, type, packaging, or labeling, is likely to
be offered to, or purchased by, consumers as tobacco
for making cigarettes;
``(3) the term `smokeless tobacco' means any product
intended or marketed for human consumption containing finely
cut, ground, powdered, leaf, or other tobacco that is intended
to be placed in the oral or nasal cavity or otherwise consumed
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