Oklahoma § 68-360.4 - Certification by manufacturer

§ 68-360.4. Certification by manufacturer

A. 1. Every tobacco product manufacturer whose cigarettes are

sold in this state, whether directly or through a distributor,

retailer or similar intermediary or intermediaries, shall execute

and deliver on a form or in the manner prescribed by the Attorney

General a certification to the Oklahoma Tax Commission and Attorney

General, no later than April 30 of each year, certifying under

penalty of perjury that, as of the date of certification, the

tobacco product manufacturer either:

a.

is a participating manufacturer, or

b.

is in full compliance with the provisions of Sections

600.21 through 600.23 of Title 37 of the Oklahoma

Statutes.

2. A participating manufacturer shall include in its

certification a list of its brand families. The participating

manufacturer shall update the list thirty (30) calendar days prior

to any addition to or modification of its brand families by

executing and delivering a supplemental certification to the

Attorney General and the Oklahoma Tax Commission.

3. A nonparticipating manufacturer shall include in its

certification:

a.

a list of all of its brand families and the number of

units sold for each brand family that were sold in the

state during the preceding calendar year, and

b.

a list of all of its brand families that have been

sold in the state at any time during the current

calendar year:

(1) indicating, by an asterisk, any brand family sold

in the state during the preceding calendar year

that is no longer being sold in the state as of

the date of the certification, and

Oklahoma Statutes - Title 68. Revenue and Taxation

(2)

identifying by name and address any other

manufacturer of the brand families in the

preceding or current calendar year.

The nonparticipating manufacturer shall update the list thirty (30)

calendar days prior to any corrected final addition to or

modification of its brand families by executing and delivering a

supplemental certification to the Attorney General and the Oklahoma

Tax Commission.

4. In the case of a nonparticipating manufacturer, the

certification shall further certify that the nonparticipating

manufacturer:

a.

is registered to do business in the state or has

appointed a resident agent for service of process and

provided notice thereof as required by Section 360.5

of this title,

b.

has established and continues to maintain a qualified

escrow fund, and

c.

has executed a qualified escrow agreement that has

been reviewed and approved by the Attorney General and

that governs the qualified escrow fund as defined in

Section 600.22 of Title 37 of the Oklahoma Statutes

that the nonparticipating manufacturer is in full

compliance with the provisions of Sections 600.21

through 600.23 of Title 37 of the Oklahoma Statutes

and the Master Settlement Agreement Complementary Act

and any rules promulgated pursuant to the Master

Settlement Agreement Complementary Act.

5. The nonparticipating manufacturer shall include with

certification:

a.

the name, address, and telephone number of the

financial institution with which the nonparticipating

manufacturer has established its qualified escrow

fund,

b.

the account number of its qualified escrow fund and

any subaccount number for the State of Oklahoma,

c.

the amount the nonparticipating manufacturer placed in

the qualified escrow fund for cigarettes sold in

Oklahoma during the preceding calendar year, the date

and amount of each deposit to the fund, and any

evidence or verification as may be deemed necessary by

the Attorney General to confirm the information

required by this paragraph, and

d.

the amount and date of any withdrawal or transfer of

funds the nonparticipating manufacturer made at any

time from the qualified escrow fund or from any other

qualified escrow fund into which the nonparticipating

manufacturer made escrow payments pursuant to Section

Oklahoma Statutes - Title 68. Revenue and Taxation

600.23 of Title 37 of the Oklahoma Statutes rules

promulgated thereto.

6. In the case of a nonparticipating manufacturer located

outside of the United States, the certification shall further

certify that the nonparticipating manufacturer has provided a

declaration from each of its importers into the United States of any

of its brand families to be sold in Oklahoma. The declaration shall

be on a form prescribed by the Attorney General and shall state that

such importer accepts joint and several liability with the

nonparticipating manufacturer for all escrow deposits due, for all

penalties assessed and for payment of all costs and attorney fees

imposed in accordance with Sections 600.21 through 600.23 of Title

37 of the Oklahoma Statutes. Such declaration shall appoint for the

declaration a resident agent for service of process in Oklahoma in

accordance with Section 360.5 of this title.

7. A tobacco product manufacturer may not include a brand

family in its certification unless:

a.

in the case of a participating manufacturer, the

participating manufacturer affirms that the brand

family is to be deemed to be its cigarettes for

purposes of calculating its payments under the Master

Settlement Agreement for the relevant year, in the

volume and shares determined pursuant to the Master

Settlement Agreement, or

b.

in the case of a nonparticipating manufacturer, the

nonparticipating manufacturer affirms that the brand

family is to be deemed to be its cigarettes for

purposes of the provisions of Sections 600.21 through

600.23 of Title 37 of the Oklahoma Statutes.

8. Nothing in this section shall be construed as limiting or

otherwise affecting the right of this state to maintain that a brand

family constitutes cigarettes of a different tobacco product

manufacturer for purposes of calculating payments under the Master

Settlement Agreement or for purposes of Sections 600.21 through

600.23 of Title 37 of the Oklahoma Statutes.

9. Tobacco product manufacturers shall maintain all invoices

and documentation of sales and other information relied upon for the

certification for a period of five (5) years, unless otherwise

required by law to maintain them for a greater period of time.

10. At the time a manufacturer submits a yearly written

certification pursuant to this section, the manufacturer shall pay

to the Office of the Attorney General a fee of One Thousand Dollars

($1,000.00). All fees collected pursuant to this paragraph shall be

deposited in the Attorney General’s Revolving Fund.

B. 1. Not later than ninety (90) calendar days after this act

takes effect, the Attorney General shall develop and publish on its

website a directory listing all tobacco product manufacturers that

Oklahoma Statutes - Title 68. Revenue and Taxation

have provided current and accurate certifications conforming to the

requirements of subparagraph a of paragraph 4 of subsection A of

this section and all brand families that are listed in the

certifications, except as otherwise provided in this section.

2. The Attorney General shall not include or retain in the

directory the name or brand families of any nonparticipating

manufacturer that has failed to provide the required certification

or whose certification the Attorney General determines is not in

compliance with paragraphs 3, 4, and 5 of subsection A of this

section, unless the Attorney General has determined that a violation

has been cured to the satisfaction of the Attorney General.

3. Neither a tobacco product manufacturer nor brand family

shall be included or retained in the directory if the Attorney

General concludes, in the case of a nonparticipating manufacturer,

that:

a.

any escrow payment required pursuant to Section 600.23

of Title 37 of the Oklahoma Statutes for any period

for any brand family, whether or not listed by the

nonparticipating manufacturer, has not been fully paid

into a qualified escrow fund governed by a qualified

escrow agreement that has been approved by the

Attorney General,

b.

any outstanding final judgment, including interest

thereon, for a violation of the provisions of Sections

600.21 through 600.23 of Title 37 of the Oklahoma

Statutes has not been fully satisfied for the brand

family or manufacturer, or

c.

the nonparticipating manufacturer or such tobacco

product manufacturer fails to provide reasonable

assurance that it will comply with the requirements of

this section or Sections 600.21 through 600.23 of

Title 37 of the Oklahoma Statutes, or the manufacturer

has knowingly failed to disclose any material

information required or knowingly made any material

false statement in the certification of any supporting

information or documentation provided. As used in

this subparagraph, reasonable assurances may include

information and documentation establishing to the

satisfaction of the Attorney General that a failure to

pay in Oklahoma or elsewhere was the result of a goodfaith dispute over the payment obligation.

4. The Attorney General shall update the directory as necessary

in order to correct mistakes and to add or remove a tobacco product

manufacturer or brand family to keep the directory in conformity

with the requirements of the Master Settlement Agreement

Complementary Act.

Oklahoma Statutes - Title 68. Revenue and Taxation

5. Every stamping agent shall provide and update, as necessary,

an electronic mail address to the Oklahoma Tax Commission and the

Attorney General for the purpose of receiving any notifications as

may be required by the Master Settlement Agreement Complementary

Act.

6. Any nonparticipating manufacturer may request, by facsimile

transmission or other means to the Attorney General’s Tobacco

Enforcement Unit, information regarding its current compliance

status pursuant to this act and to Sections 600.21 through 600.23 of

Title 37 of the Oklahoma Statutes. Upon receipt of such request,

the Attorney General shall inform the requesting nonparticipating

manufacturer of its current compliance status before close of

business within three (3) business days.

C. It shall be unlawful for any person to:

1. Affix a stamp to a package or other container of cigarettes

of a tobacco product manufacturer or brand family not included in

the directory; and

2. Sell, offer, or possess for sale, in this state, or import

for personal consumption in this state, cigarettes of a tobacco

product manufacturer or brand family not included in the directory.

Added by Laws 2004, c. 266, § 4, emerg. eff. May 6, 2004. Amended

by Laws 2009, c. 434, § 11, eff. Jan. 1, 2010.