Current through Register Vol. 47, No. 52, December 29, 2023
a) The AGO
shall develop, maintain, and publish a directory of participating manufacturers
who have generally performed their financial obligations under the MSA, and a
separate directory of compliant NPMs who have established a qualified escrow
account and who are otherwise in compliance with Section 15(a)(2) of the Escrow
Act and Section 15(a)(2) and (3) of the Escrow Enforcement Act.
b) The directories shall be published on the
AGO's website (www.illinoisattorneygeneral.gov)
and shall be revised as necessary as new information is received by the AGO.
1) If the AGO intends to remove or not list a
TPM from the directory, the AGO shall send a notice of intent to deny the TPM
or its agent for service of process. The notice of intent to deny shall
include:
A) the factual and legal
deficiencies upon which the AGO's intended action rests;
B) the actions that the TPM must undertake to
cure the factual or legal deficiencies upon which the intended action is based;
and
C) a notification that the TPM
shall have 10 calendar days to cure deficiencies and submit documentation or
other information of its attempt to cure to the AGO.
2) The AGO may extend the time period for a
TPM to cure its deficiencies.
c) If the TPM's deficiencies have been cured,
a notice of approval shall be sent to the TPM or its agent for service of
process. If the TPM's deficiencies have not been cured, a notice of removal or
refusal to list shall be sent to the TPM or its agent for service of process.
The notice of approval, removal or refusal to list shall be sent by certified
or registered U.S. Mail or by other commercial mail delivery service 10 days
prior to the change. The notice of approval, removal or refusal to list shall
be a final administrative decision. Any TPM may request judicial review of the
final administrative decision in the manner set forth in Section
250.100.
d) If the AGO decides to add or remove a TPM
or brand family from the directory, notice shall be provided to distributors.
The notice to distributors shall be provided by U.S. Mail, other commercial
mail delivery service, electronic mail or facsimile 10 calendar days prior to
the change. In addition, notice of the directory change may be published on the
AGO's website (www.illinoisattorneygeneral.gov)
10 calendar days prior to the change.
e) The AGO shall not place an NPM on the
directory of compliant NPMs unless all outstanding final judgments (including
interest thereon) for violations of the Escrow Act and the Escrow Enforcement
Act have been fully satisfied for that brand family and NPM, and:
1) the NPM has had sales in one or more
Liability Years prior to the date of the directory's publication and it is in
full compliance with its escrow obligations under the Escrow Act and the Escrow
Enforcement Act and Section
250.70
as to such sales, including the payment of any applicable penalties;
or
2) the NPM is a successor to a
tobacco product manufacturer that has had sales in one or more Liability Years
prior to the date of the directory's publication, and it has deposited funds
into a qualified escrow account to fully fund all prior Liability Year
obligations for all of its predecessor's brands and paid all the penalties due
for all such brands for all prior Liability Years, if the NPM's predecessor has
not already done so; or
3) the NPM
has had no sales in any prior Liability Years but has established a qualifying
escrow account (as evidenced by an approved Escrow Agreement) and is otherwise
compliant with the Escrow Act and the Escrow Enforcement Act.
f) Under Section 15(a)(2) of the
Escrow Act, each NPM for a particular brand family is jointly and severally
liable with every other NPM for that particular brand family for all Liability
Year escrow obligations and penalties.
g) In determining compliance for purposes of
placing a TPM on the directory of participating manufacturers and the directory
of compliant NPMs, the AGO may consider the following factors:
1) the requirements for placement on the
directory as set forth in this Part and in the Acts;
2) distributor filings;
3) the TPM's certifications, affidavits, and
supporting documents;
4) the lack
of completeness of the TPM's certifications, affidavits, and supporting
documents;
5) the NPM's escrow
agreement;
6) the failure of a TPM
who is a PM to generally perform its financial obligations under the MSA, or of
the TPM, predecessor of the TPM, or previous TPM of the brand families to make
its full MSA payments unless as otherwise provided in MSA Section
XI(d);
7) the failure of the NPM,
predecessor of the NPM, or previous NPM of the brand families to timely pay or
fully fund its qualified escrow account or to timely or entirely pay judgments
or penalties due to a qualified escrow account or to the AGO under the Escrow
Act or other states' tobacco statutes;
8) whether the TPM is, in fact, the
manufacturer of the brands with respect to which the TPM seeks to be listed as
compliant;
9) whether acting on its
own or through a distributor, wholesaler, retailer, or similar intermediary or
intermediaries or another TPM, the TPM's having engaged in business as a
distributor (as defined in the Tobacco Products Tax Act of 1995 [ 35 ILCS 143
]) without first having obtained a license to do so from the
Department;
10) the TPM's failure
to cure the deficiencies identified in a notice of intent to deny under this
Part within 10 calendar days after receiving the notice;
11) the TPM's failure to provide additional
information as requested by the AGO;
12) information from any other source (e.g.,
U.S. Department of the Treasury, Department of Revenue, distributors) that
pertains to the verification of the accuracy of the information provided by the
TPM;
13) whether the TPM is
controlled, managed, or operated by a person with a current or prior interest
in any other TPM that is not or has not been compliant with the Escrow Act or
that is the subject of an injunction for failure to comply with the Escrow Act;
and
14) any other facts or
circumstances that are relevant to the certification of the TPM.
Amended at 31 Ill. Reg. 12718, effective August 24,
2007
Amended at
41
Ill. Reg. 2068, effective
2/2/2017