Rep. Angelo Saviano
Filed: 4/17/2007
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1 | AMENDMENT TO HOUSE BILL 2926
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2 | AMENDMENT NO. ______. Amend House Bill 2926 by replacing | ||||||
3 | everything after the enacting clause with the following:
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4 | "Section 1. Short title. This Act may be cited as the | ||||||
5 | Nonparticipating Cigarette Manufacturer Assessment Act. | ||||||
6 | Section 5. Required information; assessment imposed; other | ||||||
7 | provisions. | ||||||
8 | (a) Before commencing sales of cigarettes in this State, a | ||||||
9 | nonparticipating manufacturer shall provide to the Department | ||||||
10 | the information described in subsection (c) and shall pay the | ||||||
11 | equity assessment as provided in subsections (d) and (e).
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12 | (b) A nonparticipating manufacturer selling cigarettes in | ||||||
13 | this State on the effective date of this Act shall provide to | ||||||
14 | the Department the information described in subsection (c) and | ||||||
15 | pay the equity assessment as provided in subsections (d) and | ||||||
16 | (e) within 30 days after the effective date of this Act. If a |
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1 | nonparticipating manufacturer is not selling cigarettes in | ||||||
2 | this State on the effective date of this Act, then, before | ||||||
3 | selling cigarettes in this State, the nonparticipating | ||||||
4 | manufacturer shall pay the equity assessment imposed under | ||||||
5 | subsections (d) and (e) for all cigarettes that are anticipated | ||||||
6 | to be sold in the current calendar year as described in | ||||||
7 | subsection (e).
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8 | (c) A nonparticipating manufacturer shall provide to the | ||||||
9 | Department on a form prescribed by the Department the following | ||||||
10 | information:
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11 | (1) the complete name, address, and telephone number of | ||||||
12 | the nonparticipating manufacturer;
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13 | (2) the date that the nonparticipating manufacturer | ||||||
14 | intends to begin or began selling cigarettes in this State;
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15 | (3) the brand names of the cigarettes the | ||||||
16 | nonparticipating manufacturer will sell or is selling in | ||||||
17 | this State;
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18 | (4) a statement of the nonparticipating manufacturer's | ||||||
19 | intention to comply with its escrow obligation under this | ||||||
20 | Act, and the obligations in this Act;
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21 | (5) the name, address, and telephone number of the | ||||||
22 | resident agent of the nonparticipating manufacturer; and
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23 | (6) the name, address, telephone number, and signature | ||||||
24 | of an officer of the nonparticipating manufacturer | ||||||
25 | attesting to all of the information described in this | ||||||
26 | subsection.
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1 | (d) An equity assessment in the amount of 17.5 mills per | ||||||
2 | cigarette is imposed upon all cigarettes sold by a | ||||||
3 | nonparticipating manufacturer in this State. The purpose of the | ||||||
4 | equity assessment is to fund enforcement and administration | ||||||
5 | this Act. The equity assessment is in addition to all other | ||||||
6 | fees, assessments, and taxes levied by law. The equity | ||||||
7 | assessment shall be collected by the Department from each | ||||||
8 | nonparticipating manufacturer selling cigarettes in this | ||||||
9 | State. The equity assessment shall be collected and reconciled | ||||||
10 | by April 15 of each year for cigarettes sold in the previous | ||||||
11 | calendar year. The Department shall credit a nonparticipating | ||||||
12 | manufacturer with any prepayment made by the nonparticipating | ||||||
13 | manufacturer pursuant to subsection (e) for that calendar year. | ||||||
14 |
(e) Except as provided in subsection (b), a | ||||||
15 | nonparticipating manufacturer selling cigarettes in this State | ||||||
16 | shall prepay the equity assessment imposed in subsection (d) | ||||||
17 | not later than March 1 for all cigarettes that are anticipated | ||||||
18 | to be sold in the current calendar year. The prepayment amount | ||||||
19 | shall be determined by multiplying 17.5 mills times the number | ||||||
20 | of cigarettes that the Department reasonably determines that | ||||||
21 | the nonparticipating manufacturer will sell in this State in | ||||||
22 | the current calendar year or $10,000, whichever is more. The | ||||||
23 | Department may require a nonparticipating manufacturer to | ||||||
24 | provide any information reasonably necessary to determine the | ||||||
25 | equity assessment prepayment amount. Not later than February 15 | ||||||
26 | of each year, the Department shall notify the nonparticipating |
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1 | manufacturer of the amount of the prepayment due for the | ||||||
2 | current year. The Department shall increase the equity | ||||||
3 | assessment prepayment amount during the year if the increase is | ||||||
4 | justified by the nonparticipating manufacturer's actual sales | ||||||
5 | of cigarettes.
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6 | (f) A stamping agent shall not affix to any package of | ||||||
7 | cigarettes or shipping container of roll-your-own tobacco of a | ||||||
8 | nonparticipating manufacturer the stamp required under this | ||||||
9 | Act unless the nonparticipating manufacturer is listed on the | ||||||
10 | Department website as provided in subsection (i) or after | ||||||
11 | receiving notice that the nonparticipating manufacturer has | ||||||
12 | not prepaid or paid in full the equity assessment imposed under | ||||||
13 | this Act. A stamping agent that violates this subsection is | ||||||
14 | subject to the penalties described in subsection (e). If a | ||||||
15 | stamping agent intentionally and knowingly violates this | ||||||
16 | subsection, the Department may seize or confiscate any | ||||||
17 | cigarettes in the stamping agent's possession that were stamped | ||||||
18 | in violation of this subsection. | ||||||
19 | (g) A nonparticipating manufacturer that does not provide | ||||||
20 | the information required under subsection (c) or pay the equity | ||||||
21 | assessment required by this Act shall not make a sale of | ||||||
22 | cigarettes in this State to any person for sale, distribution, | ||||||
23 | or consumption in this State.
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24 | (h) A person shall not purchase, acquire, possess, or sell | ||||||
25 | cigarettes acquired from or manufactured by a nonparticipating | ||||||
26 | manufacturer that has not provided the information required |
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1 | under subsection (c) or made the payment of the equity | ||||||
2 | assessment required by this Act.
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3 | (i) The Department shall maintain and regularly update a | ||||||
4 | list of nonparticipating manufacturers that have complied with | ||||||
5 | the requirements of this Act. The Department shall publish the | ||||||
6 | list on its website and provide a copy of the list to a person | ||||||
7 | upon request.
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8 | (j) Ninety days after the Department posts on its website | ||||||
9 | and provides wholesalers and unclassified acquirers notice | ||||||
10 | that a nonparticipating manufacturer is in violation of | ||||||
11 | subsection (a) or (b), the Department may seize or confiscate | ||||||
12 | from any person any cigarettes in that person's possession that | ||||||
13 | were acquired from or manufactured by that nonparticipating | ||||||
14 | manufacturer.
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15 | (k) The Department may impose on any person a civil fine | ||||||
16 | not to exceed $1,000 for each violation of this Act. The civil | ||||||
17 | fine is in addition to all other fines or penalties imposed by | ||||||
18 | law.
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19 | (l) A nonparticipating manufacturer shall appoint and | ||||||
20 | continually engage a resident agent for service of process. | ||||||
21 | That service shall constitute legal and valid service of | ||||||
22 | process on the nonparticipating manufacturer.
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23 | (m) For purposes of this Act, a nonparticipating | ||||||
24 | manufacturer that intends to sell or is selling a brand of | ||||||
25 | cigarettes in or into this State is presumed to be the same | ||||||
26 | manufacturer that previously sold that same brand in or into |
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1 | the State, unless the nonparticipating manufacturer can prove | ||||||
2 | that the 2 manufacturers are not affiliated. A nonparticipating | ||||||
3 | manufacturer shall not be authorized to sell in or into this | ||||||
4 | State a cigarette brand that was previously sold in or into | ||||||
5 | this State by another nonparticipating manufacturer if that | ||||||
6 | other nonparticipating manufacturer did not escrow the entire | ||||||
7 | amount due or pay the equity assessment due under this Act.
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8 | (n) The Department shall conduct an audit or review of | ||||||
9 | nonparticipating manufacturers to ensure compliance with this | ||||||
10 | Act.
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11 | (o) As used in this Act:
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12 | "Cigarette" means any product that contains nicotine, is | ||||||
13 | intended to be burned or hearted under ordinary conditions of | ||||||
14 | use, and consists of or contains: | ||||||
15 | (1) any roll of tobacco wrapped in paper or any | ||||||
16 | substance not containing tobacco; | ||||||
17 | (2) tobacco, in any form, that is functional in the | ||||||
18 | product that, because of its appearance, the type of | ||||||
19 | tobacco used in the filler, or its packaging and labeling, | ||||||
20 | is likely to be offered to or purchased by consumers as a | ||||||
21 | "cigarette"; or | ||||||
22 | (3) any roll or tobacco wrapped in any substance | ||||||
23 | containing tobacco that, because of its appearance, the | ||||||
24 | type of tobacco used in the filler, or its packaging and | ||||||
25 | labeling, is likely to be offered to or purchased by | ||||||
26 | consumers as a "cigarette". |
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1 | The term "cigarette" also includes roll-your-own tobacco, | ||||||
2 | which is any tobacco that, because of its appearance, the type | ||||||
3 | of tobacco used in the filler, or its packaging and labeling, | ||||||
4 | is likely to be offered to or purchased by consumers for making | ||||||
5 | or rolling cigarettes, and 0.09 ounces of roll-your-own tobacco | ||||||
6 | is equal to one cigarette. | ||||||
7 | "Department" means the Department of Revenue. | ||||||
8 | "Nonparticipating manufacturer" means a manufacturer of | ||||||
9 | cigarettes that is not a participating manufacturer under the | ||||||
10 | Tobacco Master Settlement Agreement. Nonparticipating | ||||||
11 | manufacturer also includes the first purchaser of cigarettes | ||||||
12 | manufactured outside the United States for resale in the United | ||||||
13 | States.
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14 | Section 99. Effective date. This Act takes effect upon | ||||||
15 | becoming law.".
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