15 U.S.C. § 376a — Delivery sales

Page 731 TITLE 15—COMMERCE AND TRADE § 376a statement of name, trade name, address, and places of business by persons who sell or transfer for profit ciga- rettes in interstate commerce or by persons who adver- tise or offer cigarettes for such sale or transfer, and added subsec. (b). 1953—Act Aug. 15, 1953, required that the memo- randum or copy of invoice be filed with, rather than forwarded to, the tobacco tax administrator. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2010 AMENDMENT Amendment by Pub. L. 111–154 effective on the date that is 90 days after March 31, 2010, see section 6 of Pub. L. 111–154, set out as a note under section 375 of this title. EFFECTIVE DATE OF 1955 AMENDMENT Act Aug. 9, 1955, ch. 695, § 2, 69 Stat. 628, provided that: ‘‘(a) Except as provided in subsection (b), the amend- ments made by this Act [amending this section and former sections 375, 377, and 378 of this title] shall take effect thirty days after the date of its enactment [Aug. 9, 1955]. ‘‘(b) The provisions of section 2(a) of the Act of Octo- ber 19, 1949, as amended by this Act [15 U.S.C. 376(a)], insofar as it requires the filing of memoranda or copies of invoices with the appropriate tax administrator for shipments of cigarettes into the District of Columbia, Alaska, Hawaii, and the Commonwealth of Puerto Rico, shall apply in respect of memoranda or copies of in- voices covering shipments made during calendar months beginning after the month in which this Act is enacted [August 1955].’’ EFFECTIVE DATE OF 1953 AMENDMENT Act Aug. 15, 1953, ch. 512, title II, § 201(b), 67 Stat. 617, provided that: ‘‘The amendment made by subsection (a) [amending this section] shall apply only in respect of memoranda or copies of invoices covering shipments made during the calendar month in which this Act is enacted [August 1953] and subsequent calendar months.’’ § 376a. Delivery sales (a) In general With respect to delivery sales into a specific State and place, each delivery seller shall com- ply 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 oc- curred entirely within the specific State and place, including laws imposing— (A) excise taxes; (B) licensing and tax-stamping require- ments; (C) restrictions on sales to minors; and (D) other payment obligations or legal re- quirements relating to the sale, distribution, or delivery of cigarettes or smokeless to- bacco; and (4) the tax collection requirements set forth in subsection (d). (b) Shipping and packaging (1) Required statement For any shipping package containing ciga- rettes or smokeless tobacco, the delivery sell- er 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/NICOTINE/SMOKE- LESS TOBACCO: FEDERAL LAW REQUIRES THE PAYMENT OF ALL APPLICABLE EX- CISE TAXES, AND COMPLIANCE WITH AP- PLICABLE LICENSING AND TAX-STAMP- ING OBLIGATIONS’’. (2) Failure to label Any shipping package described in para- graph (1) that is not labeled in accordance with that paragraph shall be treated as non- deliverable 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 sub- mitting the package for delivery to establish that it is not being sent in violation of para- graph (1) before accepting the package for de- livery. Nothing in this paragraph shall require the common carrier or other delivery service to open any package to determine its con- tents. (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 to- bacco 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 de- termined by the applicable law at the place of delivery, to sign to accept deliv- ery of the shipping container at the de- livery address; and (II) the person who signs to accept de- livery of the shipping container to pro- vide proof, in the form of a valid, govern- ment-issued identification bearing a pho- tograph of the individual, that the per- son is at least the minimum age required for the legal sale or purchase of tobacco products, as determined by the applica- ble 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 Page 732 TITLE 15—COMMERCE AND TRADE § 376a (II) verifying the information provided in subclause (I), through the use of a commercially available database or ag- gregate of databases, consisting pri- marily 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 iden- tity verification under subparagraph (A)(iii) shall be in the possession or under the con- trol of the delivery seller, or be subject to any changes or supplementation by the de- livery seller. (c) Records (1) In general Each delivery seller shall keep a record of any delivery sale, including all of the informa- tion described in section 376(a)(2) of this title, 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 ciga- rettes or smokeless tobacco, to the attorneys general of the States, to the chief law enforce- ment officers of the local governments and In- dian tribes, and to the Attorney General of the United States in order to ensure the compli- ance of persons making delivery sales with the requirements of this chapter. (d) Delivery (1) In general Except as provided in paragraph (2), no de- livery seller may sell or deliver to any con- sumer, 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 ten- der— (A) any cigarette or smokeless tobacco ex- cise 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 ex- cise tax that is imposed by the local govern- ment 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 prop- erly 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 re- quires or otherwise provides that delivery sell- ers 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 sub- section goes into effect under the Prevent All Cigarette Trafficking Act of 2009, the At- torney General of the United States shall compile a list of delivery sellers of ciga- rettes or smokeless tobacco that have not registered with the Attorney General of the United States pursuant to section 376(a) of this title, or that are otherwise not in com- pliance with this chapter, and— (i) distribute the list to— (I) the attorney general and tax admin- istrator of every State; (II) common carriers and other persons that deliver small packages to con- sumers in interstate commerce, includ- ing the United States Postal Service; and (III) any other person that the Attor- ney General of the United States deter- mines can promote the effective enforce- ment of this chapter; and (ii) publicize and make the list available to any other person engaged in the busi- ness of interstate deliveries or who deliv- ers cigarettes or smokeless tobacco in or into any State. (B) List contents To the extent known, the Attorney Gen- eral 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 to- bacco; (iii) the website addresses, primary e- mail address, and phone number of the de- livery seller; and (iv) any other information that the At- torney General of the United States deter- mines 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 Page 733 TITLE 15—COMMERCE AND TRADE § 376a 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 subpara- graph (A) any noncomplying delivery sellers identified by any State, local, or tribal gov- ernment under paragraph (6), and shall dis- tribute the list to the attorney general or chief law enforcement official and the tax administrator of any government submit- ting any such information, and to any com- mon 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 non- complying 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 complete- ness of the records and information relied on for the purpose of determining that a delivery seller is not in compliance with this chapter; (ii) not later than 14 days before includ- ing 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 chapter and the specific reasons for which the delivery seller is being placed on the list; (iii) provide an opportunity to the deliv- ery 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 en- forcement officials, and provide the spe- cific findings and results of the investiga- tion 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 in- cluding a delivery seller on the list is inac- curate, 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 de- termination. (F) Confidentiality The list described in subparagraph (A) shall be confidential, and any person receiv- ing the list shall maintain the confiden- tiality of the list and may deliver the list, for enforcement purposes, to any govern- ment 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 dis- cussing with a listed delivery seller the in- clusion of the delivery seller on the list and the resulting effects on any services re- quested 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 para- graph (1)(A), no person who receives the list under paragraph (1), and no person who de- livers 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, un- less— (i) the person making the delivery knows or believes in good faith that the item does not include cigarettes or smokeless to- bacco; (ii) the delivery is made to a person law- fully engaged in the business of manufac- turing, distributing, or selling cigarettes or smokeless tobacco; or (iii) the package being delivered weighs more than 100 pounds and the person mak- ing the delivery does not know or have reasonable cause to believe that the pack- age contains cigarettes or smokeless to- bacco. (B) Implementation of updates Commencing on the date that is 30 days after the date of the distribution or avail- ability of any updates or corrections to the list described in paragraph (1)(A), all recipi- ents and all common carriers or other per- sons that deliver cigarettes or smokeless to- bacco to consumers shall be subject to sub- paragraph (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 car- riers under this subsection, including sub- paragraphs (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 other- wise 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 en- tered 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 Dis- continuance entered into by the Attor- Page 734 TITLE 15—COMMERCE AND TRADE § 376a ney 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 Corpora- tion and FedEx Ground Package Sys- tems, 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 smoke- less tobacco to consumers; and (II) any other active agreement be- tween 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 Inter- net 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 con- sumers are located of all taxes on the to- bacco products. (4) Shipments from persons on list (A) In general If a common carrier or other delivery serv- ice delays or interrupts the delivery of a package in the possession of the common carrier or delivery service because the com- mon carrier or delivery service determines or has reason to believe that the person or- dering 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 deliv- ery service as if the delivery of the pack- age 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 dis- incentive against such noncomplying de- livery orders; and (ii) if the package is determined not to be deliverable, the common carrier or other delivery service shall offer to pro- vide the package and its contents to a Fed- eral, State, or local law enforcement agen- cy. (B) Records A common carrier or other delivery serv- ice 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 infor- mation, upon request, to the Attorney Gen- eral 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 sub- paragraph (B) shall— (i) use the records solely for the purposes of the enforcement of this chapter and the collection of any taxes owed on related sales of cigarettes and smokeless tobacco; and (ii) keep confidential any personal infor- mation in the records not otherwise re- quired 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 de- livery sales that restricts deliveries of ciga- rettes 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 de- livery 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 per- son 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 ap- plicable taxes have been paid; (iv) requiring that packages delivered by the common carrier or other delivery serv- ice 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 deliv- ery sellers maintained and distributed by any entity other than the Federal Govern- ment. (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; (ii) any other restrictions in Federal law on the ability of State, local, or tribal gov- ernments to regulate common carriers; or (iii) any provision of State, local, or trib- al law regulating common carriers that is described in section 14501(c)(2) or 41713(b)(4)(B) of title 49. (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 oth- erwise limit or restrict State laws prohib- iting the delivery sale, or the shipment or Page 735 TITLE 15—COMMERCE AND TRADE § 376a delivery pursuant to a delivery sale, of cigarettes or other tobacco products to in- dividual 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 in- dividual consumers or personal residences without proof that the common carrier is not exempt under paragraph (3) of this sub- section. (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 in- formation 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 adminis- trator as required by this chapter, or that has been found in a legal proceeding to have otherwise failed to comply with this chapter; 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 At- torney 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 Attor- ney 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 gov- ernment no longer desires to submit infor- mation under subparagraph (A), the Attor- ney General of the United States shall re- move from the list described in paragraph (1)(A) any persons that are on the list solely because of the prior submissions of the gov- ernment 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 avail- able 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 govern- ment 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 at- tempt 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 chapter. (9) Limitations (A) In general Any common carrier or other person mak- ing a delivery subject to this subsection shall not be required or otherwise obligated to— (i) determine whether any list distrib- uted 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 chap- ter; or (iii) open or inspect, pursuant to this chapter, any package being delivered to determine its contents. (B) Alternate names Any common carrier or other person mak- ing a delivery subject to this subsection— (i) shall not be required to make any in- quiries 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 ad- dress 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 de- livery service knows is a delivery seller who is on the list and is using a different name or address to evade the delivery re- strictions of paragraph (2). (C) Penalties Any common carrier or person in the busi- ness of delivering packages on behalf of other persons shall not be subject to any penalty under section 14101(a) of title 49 or any other provision of law for— (i) not making any specific delivery, or any deliveries at all, on behalf of any per- son on the list described in paragraph (1)(A); (ii) refusing, as a matter of regular prac- tice 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 busi- ness of manufacturing, distributing, or selling cigarettes or smokeless tobacco; or (iii) delaying or not making a delivery for any person because of reasonable ef- forts to comply with this chapter. Page 736 TITLE 15—COMMERCE AND TRADE § 377 (D) Other limits Section 376 of this title and subsections (a), (b), (c), and (d) of this section shall not be interpreted to impose any responsibil- ities, requirements, or liability on common carriers. (f) Presumption For purposes of this chapter, a delivery sale shall be deemed to have occurred in the State and place where the buyer obtains personal pos- session 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. (Oct. 19, 1949, ch. 699, § 2A, as added Pub. L. 111–154, § 2(c), Mar. 31, 2010, 124 Stat. 1091; amend- ed Pub. L. 116–260, div. FF, title VI, § 602(a)(2), Dec. 27, 2020, 134 Stat. 3137.) Editorial Notes REFERENCES IN TEXT The Prevent All Cigarette Trafficking Act of 2009, re- ferred to in subsec. (e)(1)(A), (5)(C)(i), is Pub. L. 111–154, Mar. 31, 2010, 124 Stat. 1087, also known as the PACT Act. For complete classification of this Act to the Code, see Short Title of 2010 Amendment note set out under section 375 of this title and Tables. For the date subsection (e) of this section goes into effect, referred to in subsec. (e)(1)(A), see Effective Date note below. AMENDMENTS 2020—Subsec. (b)(1). Pub. L. 116–260 inserted ‘‘NICO- TINE/’’ after ‘‘CIGARETTES/’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2020 AMENDMENT Amendment by Pub. L. 116–260 effective on the date that is 90 days after Dec. 27, 2020, see section 602(b) of Pub. L. 116–260, set out as a note under section 375 of this title. EFFECTIVE DATE Section effective on the date that is 90 days after March 31, 2010, see section 6 of Pub. L. 111–154, set out as an Effective Date of 2010 Amendment note under sec- tion 375 of this title. § 377. Penalties (a) Criminal penalties (1) In general Except as provided in paragraph (2), whoever knowingly violates this chapter shall be im- prisoned for not more than 3 years, fined under title 18, 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 sub- ject to criminal penalties under paragraph (1) for a violation of section 376a(e) of this title only if the violation is committed knowingly— (i) as consideration for the receipt of, or as consideration for a promise or agree- ment to pay, anything of pecuniary value; or (ii) for the purpose of assisting a delivery seller to violate, or otherwise evading compliance with, section 376a of this title. (b) Civil penalties (1) In general Except as provided in paragraph (3), whoever violates this chapter 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 to- bacco of the delivery seller during the 1- year period ending on the date of the vio- lation. (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 chapter shall be imposed in addition to any criminal penalty under sub- section (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 inde- pendent delivery service shall be subject to civil penalties under paragraph (1) for a vio- lation of section 376a(e) of this title only if the violation is committed intentionally— (i) as consideration for the receipt of, or as consideration for a promise or agree- ment to pay, anything of pecuniary value; or (ii) for the purpose of assisting a delivery seller to violate, or otherwise evading compliance with, section 376a of this title. (B) Other limitations No common carrier or independent deliv- ery service shall be subject to civil penalties under paragraph (1) for a violation of section 376a(e) of this title if— (i) the common carrier or independent delivery service has implemented and en- forces effective policies and practices for complying with that section; or (ii) the violation consists of an employee of the common carrier or independent de- livery service who physically receives and processes orders, picks up packages, proc- esses packages, or makes deliveries, tak- ing actions that are outside the scope of employment of the employee, or that vio- late the implemented and enforced policies of the common carrier or independent de- livery service described in clause (i).