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The Oregon Administrative Rules contain OARs filed through January 15, 2017
 
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DEPARTMENT OF JUSTICE

 

DIVISION 105

NON-PARTICIPATING MANUFACTURERS

137-105-0001

Definitions

The following definitions shall apply to all Oregon Administrative Rules contained in division 105 unless the context requires otherwise:

(1) "Brand Family" has the meaning given that term in ORS 180.405.

(2) "Cigarette" has the meaning given that term in ORS 323.800.

(3) "Certification" means the information required to be provided to the Attorney General under ORS 180.410 and 180.415.

(4) "Directory" means the listing of tobacco product manufacturers that have provided current and accurate certifications pursuant to the provisions of ORS 180.425.

(5) "Distributor" has the meaning given that term in ORS 180.405(3).

(6) "NPM Distributor report" means the information required to be provided to the Attorney General under ORS 180.435(1).

(7) "Escrow deposit" means deposits required to be made into a qualified escrow fund pursuant to ORS 323.806(2)(a).

(8) "Master Settlement Agreement" has the meaning given that term in ORS 323.800.

(9) "Participating manufacturer" has the meaning given that term in ORS 180.405.

(10) "Qualified escrow fund" has the meaning given that term in ORS 323.800.

(11) "Tobacco product manufacturer" has the meaning given that term in ORS 323.800.

(12) "Units Sold" has the meaning given that term in ORS 323.800.

Stat. Auth.: ORS 180.445
Stats. Implemented:
Hist.: DOJ 9-2004, f. & cert. ef. 5-25-04; DOJ 13-2016, f. & cert. ef. 11-17-16

137-105-0010

Tobacco Product Manufacturers Directory

(1) In exercising the discretion granted by ORS 180.425(2), the Attorney General will consider the following:

(a) Whether the entity tendering a certification is a tobacco product manufacturer;

(b) Timeliness of the certification made by the tobacco product manufacturer;

(c) Completeness, or lack thereof, of the certification made by the tobacco product manufacturer;

(d) Whether the tobacco product manufacturer has provided all requested documents supporting its certification;

(e) Whether the certification is based on misrepresentation, false information, nondisclosure or concealment of facts;

(f) Whether the tobacco product manufacturer is in full compliance with all provisions of Local, State and Federal Law, including but not limited to the provisions of ORS 180.410, 180.415 and 323.800 to 323.806.

(g) Whether the tobacco product manufacturer, predecessor of the tobacco product manufacturer, or previous manufacturer of the brand is the subject of an injunction obtained by the State of Oregon for previous failure to comply with the nonparticipating manufacturer statutes;

(h) Whether the tobacco product manufacturer has failed to fully or timely fund a qualified escrow fund approved by the Attorney General;

(i) Whether all final judgments and penalties, including interest, costs and attorney fees thereon, in favor of the State of Oregon, or any political subdivision thereof, for violation of any Oregon statute, administrative rule or other law, including but not limited to violations of ORS 323.800 to 323.806, have been fully satisfied for the name, brand family, or tobacco product manufacturer;

(j) Whether the tobacco product manufacturer has corrected deficiencies in its certification or criteria set forth in this section in a timely and thorough manner;

(k) Whether the tobacco product manufacturer has complied in a timely and thorough manner with any request by the Attorney General pursuant to ORS 180.435 for additional information or documentation or the criteria set forth in this section; and

(l) Any other facts or circumstances the Attorney General determines are relevant.

(2) In a manner provided in subsection (5) of this rule, the Attorney General shall remove a tobacco product manufacturer or brand family from the directory if the Attorney General determines that the tobacco product manufacturer or the brand family no longer meets the requirements of ORS 180.410 and 180.415.

(3) In the manner provided in subsection (5) of this rule, the Attorney General shall reject the application of a tobacco product manufacturer or brand family to be listed in the directory if the Attorney General determines that the tobacco product manufacturer or the brand family does not meet the requirements of ORS 180.410 and 180.415.

(4) The Attorney General shall promptly notify a tobacco product manufacturer in writing (via email or regular mail) if the manufacturer has met the requirements of ORS 180.410 and 180.415 and will be included in the directory. The notice shall include each brand family that the Attorney General determines will be included in the directory.

(5) If, on or after the effective date of these rules, the Attorney General intends to deny a tobacco product manufacturer or brand family a place in the directory, to remove a manufacturer or brand family from the directory, or to exclude an entity because the entity is not a tobacco product manufacturer, the Attorney General shall mail a written Notice of Intended Action to the manufacturer or entity. The Notice of Intended Action shall specify:

(a) The factual and legal basis upon which the Attorney General's intended action rests;

(b) The actions that the tobacco product manufacturer or entity must complete to cure the factual or legal deficiencies upon which the intended action is based; and,

(c) The date upon which attempts to cure the deficiencies must be completed and documentation of completion must be submitted to the Attorney General. In no event shall the Attorney General allow the tobacco product manufacturer or entity less than 15 days within which to cure the deficiencies upon which the Attorney General's intended action is based.

(6) On or before the deadline set in the Notice of Intended Action, the tobacco product manufacturer or entity shall provide documentation to the Attorney General detailing the actions, if any, that the tobacco product manufacturer or entity has taken to cure the deficiencies identified by the Attorney General in the Notice of Intended Action.

(7) Within 45 days of the date on which a certification that is the subject of a Notice of Intent is received, the Attorney General shall determine whether the deficiencies have been cured.

(a) If the deficiencies have been cured to the satisfaction of the Attorney General, the Attorney General shall promptly notify a tobacco product manufacturer in writing (via email or regular mail) that the manufacturer or brand family will be included in the directory.

(b) If any of the deficiencies have not been cured to the satisfaction of the Attorney General, the Attorney General shall promptly issue an order in Other than Contested Case denying a manufacturer, brand family, or entity a place in the directory.

(8) A tobacco product manufacturer or entity that has complied with subsection (6) of this rule and is aggrieved by an Order denying the manufacturer or brand family a place in the directory may file a petition for judicial review of the Attorney General's order as provided in ORS 183.484.

(9) The Attorney General may, for any reason and at the Attorney General's discretion, extend any period allowed by these rules.

Stat. Auth.: ORS 180.445
Stats. Implemented:
Hist.: DOJ 9-2004, f. & cert. ef. 5-25-04; DOJ 13-2016, f. & cert. ef. 11-17-16

137-105-0020

Escrow Deposits

(1) Each tobacco product manufacturer shall make the escrow deposits required by ORS 323.806 in quarterly payments for each of the following periods of the year: January 1 through March 31; April 1 through June 30; July 1 through September 30; and October 1 through December 31. The quarterly escrow payments shall be made no later than 15 days after the end of each quarter.

(2) The calculation for the amount of the escrow deposit required for deposit into the qualified escrow fund for any given quarter will be based on the number of units sold by the tobacco product manufacturer during the corresponding quarter, as adjusted for inflation pursuant to ORS 323.806(2)(a)(A)-(E).

(3) Nonparticipating tobacco manufacturers must provide the Attorney General with official notification of the quarterly escrow deposit by filing an Oregon Quarterly Escrow Compliance Certificate and Affidavit with the Office of the Attorney General no later than the 10th day after the deadline for which an escrow deposit is required.

(4) Nonparticipating tobacco manufacturers must provide the Attorney General with official notification of the annual escrow deposit by filing an Oregon Annual Escrow Compliance Certificate and Affidavit with the Office of the Attorney General no later than the 30th day of April following the reporting year.

(5) The Attorney General may at any time, upon written request, require a tobacco product manufacturer to produce all invoices and documentation of sales and other information relied upon in filing a Quarterly or Annual Escrow Compliance Certificate.

Stat. Auth.: ORS 180.445
Stats. Implemented:
Hist.: DOJ 9-2004, f. & cert. ef. 5-25-04; DOJ 13-2016, f. & cert. ef. 11-17-16

137-105-0025

Model Escrow Agreement

(1) The model escrow agreement set forth in OAR 137-105-0025(2) is provided for use by tobacco product manufacturers who are required to execute a qualified escrow agreement. A tobacco product manufacturer that executes the model escrow agreement set forth in OAR 137-105-0025(2) is deemed to have satisfied the requirement of ORS 180.415(2)(b) that it use a form of escrow agreement that has been reviewed and approved by the Attorney General.

(2) [Model Escrow Agreement] [Table not included. See ED. NOTE.]

[ED. NOTE: Table referenced is not included in rule text. Click here for PDF of table.]]

Stat. Auth.: ORS 180.415(2)(b)
Stats. Implemented: ORS 180-415(2)(b)
Hist.: DOJ 7-2016(Temp), f. & cert. ef. 5-23-16 thru 11-18-16; DOJ 13-2016, f. & cert. ef. 11-17-16

137-105-0030

Distributor Reports

(1) No later than the 15th day following the end of each month, each distributor shall report to the Attorney General the total number of cigarettes, littler cigars, and ounces of roll your own tobacco sold on which the distributor affixed tax stamps or otherwise paid the tax due during the reporting month.

(2) Reports under section 1 of this rule should not include cigarettes, little cigars, or roll your own tobacco that were tax paid at the time the distributor acquired them.

(3) In making the reports required by section 1 of this rule, the distributor shall certify that the information provided is true and accurate.

(4) The Department of Justice shall promulgate a form entitled Brand Specific Report for Cigarettes, Little Cigars, and Roll-Your-Own Product with Oregon Tax Paid for All Manufacturers. Distributors shall use the Brand Specific Report for Cigarettes, Little Cigars, and Roll-Your-Own Product with Oregon Tax Paid for All Manufacturers form for reports required by section 1 of this rule. Brand Specific Report for Cigarettes, Little Cigars, and Roll-Your-Own Product with Oregon Tax Paid for All Manufacturers forms shall be mailed to Department of Justice, Civil Enforcement, 1162 Court Street NE, Salem, Oregon 97301.

Stat. Auth.: ORS 180.445
Stats. Implemented:
Hist.: DOJ 9-2004, f. & cert. ef. 5-25-04; DOJ 13-2016, f. & cert. ef. 11-17-16

137-105-0040

Calculation of Time for Purposes of These Rules

In computing any period of time prescribed or allowed by these rules, the period shall be calculated as provided in Oregon Rule of Civil Procedure 10A.

Stat. Auth.: ORS 180.445
Stats. Implemented:
Hist.: DOJ 9-2004, f. & cert. ef. 5-25-04

137-105-0050

Monitoring and Enforcing Tobacco Product Manufacturer Compliance

(1) ORS 323.862 authorizes the Department of Revenue to disclose to the Attorney General, and such other parties as the Attorney General deems necessary, information submitted to the department relating to cigarettes, tobacco product manufacturers, and tobacco retailers to allow the Attorney General to monitor and enforce compliance by tobacco product manufacturers with ORS 323.800 to 323.806.

(2) For the purposes of ORS 323.862 and this rule:

(a) “Attorney General” includes attorneys employed by the Oregon Department of Justice;

(b) “Department” means the Department of Revenue;

(c) “Distributor” has the meaning given that term in ORS 180.405(3);

(d) “Information” and “information submitted to the department” means cigarette related documents and data submitted to the department, including but not limited to cigarette tax reports and returns filed by distributors, documents related to such tax reports and returns filed by distributors, and department audit documents relating to cigarette tax reports and returns. “Information” includes the amount of tax, penalty, interest, sales information, purchase information, and any other particulars, set forth or disclosed in a cigarette tax report or return or other cigarette related document submitted by a distributor to the Department;

(e) “Legal proceeding” includes but is not limited to lawsuits in state or federal court, proceedings relating to the Master Settlement Agreement, arbitrations, mediations and settlement conferences or negotiations;

(f) “Master Settlement Agreement” has the meaning given that term in ORS 323.800;

(g) “Monitoring and enforcing compliance” includes, but is not limited to:

(A) Investigating and calculating the amount of escrow a nonparticipating manufacturer must deposit in a qualified escrow fund;

(B) Investigating and determining whether a nonparticipating manufacturer has deposited sufficient funds in a qualified escrow fund;

(C) Investigating and determining whether a participating manufacturer is generally performing its obligations under the Master Settlement Agreement;

(D) Investigating and demonstrating enforcement by the Attorney General or the State of Oregon of ORS 323.800 to 323.806 in a legal proceeding relating to ORS 323.800 to 323.806, ORS 180.400 to 180.405 or the Master Settlement Agreement;

(E) Investigating and assessing whether a tobacco product manufacturer is in compliance with ORS 323.800 to 323.806 for the purposes of ORS 180.400 to 180.455;

(h) “Nonparticipating Manufacturer” has the meaning given that term in ORS 323.800;

(i) “Participating Manufacturer” has the meaning given that term in ORS 180.405;

(j) “Particulars” has the meaning given that term in ORS 314.835(2)(b);

(k) “Qualified escrow fund” has the meaning given that term in ORS 323.800;

(l) “Tobacco product manufacturer” has the meaning given that term in ORS 323.800.

Stat. Auth.: ORS 323.865
Stats. Implemented: ORS 323.862
Hist.: DOJ 9-2010(Temp), f. & cert. ef. 4-19-10 thru 10-15-10; DOJ 10-2010, f. & cert. ef. 6-30-10

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