HB697: relative to the sale of motor fuel.

CHAPTER 194

HB 697-FN – FINAL VERSION

07Jan2004… 2547h

04/08/04 1008s

13May2004… 1615eba

2004 SESSION

03-0915

03/09

HOUSE BILL 697-FN

AN ACT relative to the sale of motor fuel.

SPONSORS: Rep. Packard, Rock 75

COMMITTEE: Public Works and Highways

ANALYSIS

This bill makes a variety of changes in the laws relating to licensure, penalties, and enforcement under the road toll statutes. This bill also establishes notice requirements for dyed special fuel.

This bill is a request of the department of safety.

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Explanation: Matter added to current law appears in bold italics.

Matter removed from current law appears [in brackets and struckthrough.]

Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

07Jan2004… 2547h

04/08/04 1008s

13May2004… 1615eba

03-0915

03/09

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand Four

AN ACT relative to the sale of motor fuel.

Be it Enacted by the Senate and House of Representatives in General Court convened:

194:1 Retail Dealer. Amend RSA 259:89 to read as follows:

259:89 Retail Dealer. “Retail dealer,” for purposes of the provisions of this title relative to road tolls, shall mean any person or persons other than a licensed distributor who engages [primarily] in the business of selling or distributing motor fuel within this state at the retail level; provided further that retail dealer shall not include any person or persons who receive motor fuel upon which the road toll has been paid by a licensed distributor for storage or subsequent distribution at the wholesale level or solely for storage and consumption by such person or persons.

194:2 Exemptions from Levy of Road Tolls. Amend RSA 260:32, IV-V to read as follows:

IV. Bulk sales from distributors to the state of New Hampshire or its agencies; or

V. [Bulk] Sales from distributors to any city, town, county, school district, or village district[; or].

194:3 Application for License; Licensing of Distributors. Amend RSA 260:36 to read as follows:

260:36 Application for License; Licensing of Distributors. It shall be unlawful for any person to sell or use motor fuel upon which the road toll imposed and collected under this subdivision has not been paid, unless the person is the holder of a valid license to engage in business as a distributor of motor fuels. To procure a motor fuel distributor license, an application, signed subject to prosecution for unsworn falsification and accompanied by a bond, shall be filed with the department in such form as the commissioner may prescribe. Once approved, the department shall issue a license certificate valid only for the distributor in whose name issued. The license shall be unassignable and shall remain in full force and effect on a fiscal year basis from July 1 through June 30 [until] unless cancelled, suspended, or revoked. The license shall be renewable upon completion of an application renewal form, provided that the distributor is in good standing with the division. The department shall furnish each distributor, monthly, a list of current licenses issued under this section.

194:4 Motor Fuel and Petroleum Products Transporter; License. Amend RSA 260:42, IV to read as follows:

IV. The commissioner shall issue a license certificate when the application has been accepted and approved, and all other conditions and requirements of this subdivision have been fully complied with. The license shall be valid only for the transporter in whose name it is issued. The license shall not be assignable and shall remain in full force and effect on a fiscal year basis from July 1 through June 30 [until] unless cancelled, suspended, or revoked. The license shall be renewable upon completion of an application renewal form, provided that the transporter is in good standing with the division.

194:5 Motor Fuel and Petroleum Products Transporter; Penalty. Amend RSA 260:42, VI to read as follows:

VI.(a) Any person who fails, neglects, or refuses to file the monthly report required by this section shall be assessed a penalty of [$50] $500. Such penalty shall immediately accrue and shall bear interest as specified in RSA 260:40-a.

(b) Any person who fails to report a delivery of petroleum fuel or petroleum products within the time period specified in this section shall be assessed a penalty of $500 or $50 per unreported delivery, whichever is greater. Such penalty shall immediately accrue and shall bear interest as specified in RSA 260:40-a.

194:6 New Section; Road Tolls; Retail Dealer Inspections. Amend RSA 260 by inserting after section 42 the following new section:

260:42-a Retail Dealer Inspections.

I. Every retail dealer shall be subject to reasonable inspections during the regular business hours of the retail dealer. Inspections may consist of the review of records of motor fuel and petroleum products, including:

(a) Purchases of product;

(b) Opening and closing inventory readings; and

(c) Pump meter readings.

II. Any person authorized by the department is hereby given the authority, during the usual business hours of the day, to enter any retail dealer’s premises for the purpose of making an inspection or investigation as deemed necessary by the department. If the owner or occupant refuses to permit such inspection, the commissioner or the commissioner’s authorized officers may apply under oath for a search warrant as provided in RSA 595-B.

194:7 New Section; Road Tolls; Retention of Records by Retail Dealers. Amend RSA 260 by inserting after section 43 the following new section:

260:43-a Retention of Records by Retail Dealers, and Transporters. Each retail dealer shall maintain and keep for a period of 3 years records of motor fuel and petroleum products, including purchases of product, opening and closing inventory readings, and pump meter readings.

194:8 Road Toll on Users of Special Fuel; Dyed Fuel. Amend RSA 260:52, IX to read as follows:

IX. A user, or any agent or employee of a user, who consumes special fuel in a motor vehicle over the ways of this state when the user is not the holder of a required valid license[,] or has not been granted temporary authorization[, or who uses dyed fuel in the tank of the vehicle used to propel the vehicle] shall be guilty of a violation. Upon conviction for a first offense, the user, agent, or employee shall, notwithstanding the provisions of title LXII, be fined not more than $500. Upon conviction based upon a complaint which alleges that such person was driving after license suspension or revocation, or based upon a complaint which alleges that such person has had one or more prior convictions within the 12-month period preceding the date of the second or subsequent offense, if said conviction or convictions are proven, such user, agent, or employee shall, notwithstanding the provisions of title LXII, be fined not less than $250 nor more than $1,000.

194:9 New Sections; Road Tolls; Dyed Special Fuel. Amend RSA 260 by inserting after section 52-b the following new sections:

260:52-c Notice of Dyed Special Fuel.

I. A notice stating “dyed special fuel, nontaxable use only, penalty for taxable use” shall be:

(a) Provided by the distributor to any person who receives dyed special fuel at a terminal rack of the distributor.

(b) Provided by the seller of dyed special fuel to the buyer, if the fuel is located outside the bulk transfer or terminal system and is not sold from a retail pump posted in accordance with subparagraph (c).

(c) Posted by a seller on any retail pump where it sells dyed special fuel for use by the buyer.

II. The notice shall be provided by the time of the removal or sale and shall appear on shipping papers, bills of lading, and invoices accompanying the sale or removal of the fuel.

III. The department may designate any federal notice provision that is substantially similar to a notice required by this section as satisfying any notice requirement of this section.

260:52-d Dyed Special Fuel Not to be Used on the Ways of the State.

I. A person shall not operate a motor vehicle on the ways of this state if the fuel supply tanks of the vehicle contain dyed special fuel.

II. A person shall not sell or deliver any dyed special fuel knowing or having reason to know that the fuel will be consumed in a highway use. A person who dispenses dyed special fuel from a retail pump that is not properly labeled with the notice required by RSA 260:52-c, or who knowingly delivers dyed special fuel into the storage tank of such a pump, shall be presumed to know that the fuel will be consumed in a highway use.

III. A person shall not:

(a) Import, export, or transport within this state special fuel, other than dyed special fuel, without the license required under RSA 260:36 unless the road toll has been paid on the special fuel.

(b) Sell or deliver dyed special fuel from a retail pump unless the pump is properly labeled as required by RSA 260:52-c.

IV. A person who violates any provision of this section commits a violation and shall, upon conviction, be sentenced to pay a fine of not less than $100 nor more than $500.

V. In addition to any penalty provided in paragraph IV, a person who violates paragraph I or III shall be assessed a penalty of $1,000 or $10 per gallon of dyed special fuel involved in the sale, delivery, or consumption, whichever is greater.

VI. Any person authorized by the department may enter any place where fuels are produced or stored, and may physically inspect any tank, reservoir, or other container that can be used for the production, storage, or transportation of special fuel, special fuel dyes, or special fuel markers. Inspection may also be made of any equipment used for or in connection with the production, storage, or transportation of special fuel, special fuel dyes, or special fuel markers, including any equipment used for the dyeing or marking of special fuel. Books, records, or other documents may be inspected to determine road toll liability. A person authorized by the department may detain a vehicle, vessel, or railroad tank car placed on a customer’s siding for use or storage for the purpose of inspecting fuel tanks or fuel storage tanks as necessary to determine the amount and composition of the fuel. A person authorized by the department may take and remove samples of diesel fuel in reasonable quantities necessary to determine the composition of the fuel.

VII. A person that refuses to allow an inspection authorized by this section commits a violation and shall, upon conviction, be sentenced to pay a fine of $1,000 for each refusal.

194:10 Road Tolls; Penalties. RSA 260:55 is repealed and reenacted to read as follows:

260:55 Penalties.

I.(a) The term “person,” as used in this section, shall include, but not be limited to, a natural person, a corporation, a limited liability company, a partnership, a professional association, an officer or employee of a corporation, a member, officer, or employee of a partnership, or a trustee, member, or employee of a trust who as such trustee, member, or employee is under a duty either to perform or to refrain from performing the act with respect to which the violation occurs. This section shall apply to persons acting in any fiduciary capacity.

(b) The term “wilfully,” as used in this section, shall have the same meaning as provided in RSA 626:2, IV.

II. With respect to any road toll, penalty, or interest imposed by this subdivision, no person shall:

(a) Wilfully attempt in any manner to evade any tax or the payment thereof.

(b) Wilfully fail to collect, truthfully account for, and pay over any road toll, penalty, or interest which such person is required to collect, account for, and pay over to the department.

(c) Wilfully fail to make a return, report, or declaration, to keep records, or to supply any information, which such person is required to do under this subdivision or under rules adopted under authority of this subdivision, to make such return, report, or declaration, to keep such records, or to supply such information, at the time or times required by statute or rules.

(d) Make and submit to the department any return, report, statement, or other document, that is incomplete due to wilful omissions.

(e) Wilfully make and submit to the department any return, report, statement, or other document that he or she does not believe to be true and correct as to every material matter.

(f) Aid or assist in, or procure, counsel, or advise the preparation of or presentation under, or in connection with any matter arising with respect to the road tolls imposed under this subdivision, a return, affidavit, claim, or other document, which the person knows is fraudulent or false as to any material matter, whether or not such falsity or fraud is with the knowledge and consent of the person authorized or required to present such return, affidavit, claim, or document.

(g) Wilfully simulate, or falsely or fraudulently execute or sign, any bond, license, permit, or other document required by the department with respect to motor fuel laws, or by any rule adopted relative to such laws, or wilfully procure such documents to be falsely or fraudulently executed or advise, aid in, or connive at such execution.

(h) Wilfully remove, deposit, or conceal, or direct the removing, depositing, or concealing of any goods, chattels, or commodities for, or in respect to, any road toll which is or is to be imposed, or any property upon which levy is authorized by law, with intent to evade the assessment or collection of any road toll, penalty, or interest.

(i) Wilfully deliver or disclose to the department any list, return, account, statement, declaration, or other document, known by him or her to be fraudulent or to be false as to any material matter.

(j) Wilfully corrupt or by force or threat of force, including any threatening letter or communication, endeavor to obstruct or impede an officer or employee of the state acting in an official capacity under this subdivision, or in any other way corrupt or by force or threats of force, including any threatening letter or communication, obstruct or impede, or endeavor to obstruct or impede, the due administration of any tax administered by the department. The term “threats of force,” as used in this subparagraph, means threats of bodily harm to the officer or employee of the department or to a member of his or her family.

(k) Wilfully accepts delivery of motor fuel upon which the road tolls have not been paid, unless such motor fuel is exempt under the law from the payment of road tolls.

III.(a) Any natural person who violates subparagraph II(a), (b), (e), (f), or (j) shall be guilty of a class B felony and shall be fined as provided in paragraph IV and subject to the penalties provided in RSA 651:2. Any other person who violates subparagraph II(a), (b), (e), (f), or (j) shall be guilty of a felony and shall be fined as provided in paragraph IV and subject to the penalties provided in RSA 651:2.

(b) Any natural person who violates subparagraph II(c), (d), (g), (h), (i), or (k) shall be guilty of a misdemeanor and shall be fined as provided in paragraph IV and subject to the penalties provided in RSA 651:2. Any other person who violates subparagraph II(c), (d), (g), (h), (i), or (k) shall be guilty of a misdemeanor and shall be fined as provided in paragraph IV and subject to the penalties provided in RSA 651:2.

IV. In addition to any penalties provided in RSA 651:2, any person convicted under this section shall be subject to a criminal penalty of at least 10 percent, but not more than 30 percent, of the outstanding road toll.

V. The motor fuel licenses issued to any distributor by the department shall be revoked upon the conviction of the distributor of any crime under this section. Such convicted distributors shall be ineligible to renew or obtain any motor fuel license issued by the department for a period of at least 5 years from the date of conviction.

194:11 Road Tolls; Determining Amount. Amend RSA 260:38, I to read as follows:

I. For the purpose of determining the amount of road toll imposed and to be collected under this subdivision, the sole proprietor, president, managing partner, chief executive officer, or equivalent thereof, of each distributor shall on or before the twentieth day of each calendar month render a return to the department on forms prescribed and furnished by the commissioner, and shall certify under the pains and penalties of perjury that the return is true, accurate, and complete in all material respects. The return shall show the total number of gallons sold and used in the state during the previous calendar month together with such other information as the commissioner may require for the reasonable administration of this subdivision. Each distributor shall accompany the return with a check payable to the state treasurer for the total amount of road toll shown by such return to be due.

194:12 Road Tolls; Determining Amount. Amend RSA 260:38, III to read as follows:

III. Each person manufacturing alcohol, ethanol, methanol, or any other product within the state of New Hampshire for use in gasohol shall obtain a license and, on or before the twentieth day of each calendar month, the sole proprietor, president, managing partner, chief executive officer, or equivalent thereof, of said person shall render a return to the commissioner on forms prescribed and furnished by the commissioner, and shall certify under the pains and penalties of perjury that the return is true, accurate, and complete in all material respects. The return shall show the total number of gallons sold to distributors of gasohol, or to persons purchasing the product for the purpose of resale to the distributors, together with such other information as the commissioner may require for the reasonable administration of this subdivision.

194:13 Road Tolls; Penalty Waiver. Amend RSA 260:42, VII to read as follows:

VII. The commissioner is authorized to waive any civil penalty and interest when it is proved to the commissioner's satisfaction that the failure to file a monthly report on time or to report all deliveries of petroleum fuel or petroleum products within the time period specified in this section was not [willful] wilful.

194:14 Effective Date. This act shall take effect July 1, 2004.

(Approved: June 7, 2004)

(Effective Date: July 1, 2004)