REPORT TITLE: 
Cigarette Stamp Tax


DESCRIPTION:
Provides that the excise tax on cigarettes be imposed and
collected through the use of stamps affixed to cigarette
packages.  Creates a system for administration and enforcement
of the stamp tax, including criminal penalties and forfeiture.
Requires the director of taxation to submit findings and
recommendations to the legislature prior to the regular session
of 2006 as to the effectiveness of the bill in reducing the loss
of cigarette tax revenue to the State from illegal sales of
untaxed cigarettes.  Requires the attorney general to report to
the legislature prior to the convening of the regular sessions
of 2002 and 2003 on its activities relating to this bill,
including expenses, fines, and penalties collected, and
forfeitures.  Appropriates funds for start-up costs for
implementing the cigarette stamp tax system, and the attorney
general, including the hiring of necessary staff, for the
purposes of this bill.  (HB2034 HD2)

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                        2034
HOUSE OF REPRESENTATIVES                H.B. NO.           H.D. 2
TWENTIETH LEGISLATURE, 2000                                
STATE OF HAWAII                                            
                                                             
________________________________________________________________
________________________________________________________________


                     A BILL FOR AN ACT

RELATING TO TAXATION.



BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 1      SECTION 1.  Chapter 245, Hawaii Revised Statutes, is amended
 
 2 by adding a new part to be appropriately designated and to read
 
 3 as follows:
 
 4                 "PART   .  STAMPING OF CIGARETTES
 
 5      §245-A  Payment of tax through use of stamps.(a)  The tax
 
 6 imposed under section 245-3 upon the sale or use of cigarettes
 
 7 shall be paid by licensees through the use of stamps.
 
 8      (b)  The department shall furnish stamps for sale.
 
 9      §245-B  Sales through financial institutions; rules.  The
 
10 department may enter into agreements to permit the sale of stamps
 
11 by designated financial institutions located within the State.  A
 
12 list of financial institutions designated to sell stamps shall be
 
13 made available at the department.  The department may adopt rules
 
14 as necessary for this purpose pursuant to chapter 91.
 
15      §245-C  Designs, specifications, and denominations of
 
16 stamps; affixation; cancellation.  Stamps shall be of such
 
17 designs, specifications, and denominations as may be prescribed
 
18 by the department; provided that these agreements shall be exempt
 
19 from the requirements of chapter 103D.  The department shall
 
20 adopt rules pursuant to chapter 91, on the method and manner in
 

 
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 1 which stamps are to be affixed to packages of cigarettes, and may
 
 2 provide for the cancellation of stamps.
 
 3      §245-D  Affixation prior to distribution.(a)  Beginning
 
 4 December 15, 2000, a licensee, or designee of a licensee, may
 
 5 apply to the department for stamps as provided in this section.
 
 6      (b)  Beginning January 1, 2001, a licensee or the authorized
 
 7 agent or designee of a licensee, shall affix a stamp to the
 
 8 bottom of each individual package of cigarettes, prior to
 
 9 distribution.
 
10      (c)  Beginning April 1, 2001, no individual package of
 
11 cigarettes may be sold or offered for sale to the general public,
 
12 unless affixed with the stamp required under this section.
 
13      (d)  Beginning April 1, 2001, no cigarette package may be
 
14 placed or stored in a vending machine, unless affixed with the
 
15 stamp required under this section.
 
16      §245-E  Approval of department required for transfer of
 
17 stamps.  Unaffixed stamps shall not be sold, exchanged, or in any
 
18 manner transferred by a licensee to another person without prior
 
19 written approval of the department.  Any person who violates this
 
20 section shall be fined not less than $500 and not more than
 
21 $1,000 for each violation.
 
22      §245-F  Authority to order purchases for wholesaler or
 
23 dealer; duration; revocation.  A licensee, in writing, shall
 

 
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                                     H.B. NO.           H.D. 2
                                                        
                                                        

 
 1 authorize those persons who may order purchases of stamps for the
 
 2 licensee at a location where stamps are sold.  The authorization
 
 3 shall continue in effect until written notice of revocation of
 
 4 the authority is delivered at the sales location in the manner
 
 5 prescribed by rules adopted by the department pursuant to chapter
 
 6 91.
 
 7      §245-G  Payment of tax without use of stamps in certain
 
 8 transactions; rules.  The department may provide by rule pursuant
 
 9 to chapter 91 that the tax imposed by this chapter with respect
 
10 to cigarettes may be paid without the use of stamps in connection
 
11 with a particular type of transaction.
 
12      §245-H  Price; payment; deferred payment purchases.(a)
 
13 Stamps shall be sold to licensees at their denominated values,
 
14 plus a state stamp fee of .2 per cent of the denominated value of
 
15 the stamp to pay the State for the cost of providing the stamps;
 
16 provided that the department may adopt rules, pursuant to chapter
 
17 91, to modify the state stamp fee to reflect the actual costs
 
18 incurred by the State in providing the stamps.
 
19      (b)  Payment for stamps shall be made at the time of
 
20 purchase; provided that the department may adopt rules pursuant
 
21 to chapter 91 to permit a licensee to defer payments therefor as
 
22 provided for in section 245-1.
 

 
 
 
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 1      §245-I  Application to fix maximum amount and time of
 
 2 deferred-payment purchases; bonding; designation of sales
 
 3 locations.(a)  A licensee may apply to the department to set
 
 4 the maximum amount of deferred-payment purchases of stamps that
 
 5 may remain unpaid by the licensee during the time specified under
 
 6 section 245-J.  Upon receipt of the application and any bond
 
 7 required pursuant to subsection (b), the department shall set the
 
 8 amount for deferred-payment purchases.
 
 9      (b)  The department may require that a licensee who submits
 
10 an application for deferred-payment purchases of stamps post a
 
11 bond in an amount of up to one hundred per cent of the maximum
 
12 amount of allowed deferred-payment purchases as a condition of
 
13 approval of the application by the department.
 
14      §245-J  Time for payment of deferred-payment purchases;
 
15 manner of payment.  Amounts owing for stamps purchased on the
 
16 deferred-payment basis in any calendar month shall be due and
 
17 payable on or before the last day of the following calendar
 
18 month.  Payment shall be made by a remittance payable to the
 
19 department.
 
20      §245-K  Suspension of privilege to purchase on deferred-
 
21 payment basis or reduction of amount of permissible purchases.
 
22 The department may suspend, without prior notice, a licensee's
 

 
 
 
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                                     H.B. NO.           H.D. 2
                                                        
                                                        

 
 1 privilege to purchase stamps on the deferred-payment basis, or
 
 2 may reduce the amount of deferred-payment purchases allowed the
 
 3 licensee, if:
 
 4      (1)  The licensee fails to promptly pay for stamps when
 
 5           payment is due;
 
 6      (2)  The bond or bonds required of the licensee are
 
 7           canceled, become void, impaired, or unenforceable for
 
 8           any reason; or
 
 9      (3)  In the opinion of the department, collection of any
 
10           amounts unpaid or due from the licensee under this
 
11           chapter is jeopardized.
 
12      §245-L  Penalty for failure to make timely payment.  A
 
13 licensee who fails to pay any amount owing for the purchase of
 
14 stamps within the time required shall pay a penalty of ten per
 
15 cent of the amount due in addition to the amount due plus
 
16 interest at the rate specified in section 231-39, from the date
 
17 on which the amount became due and payable until the date of
 
18 payment.
 
19      §245-M  Unused stamps.  The department shall adopt rules
 
20 pursuant to chapter 91 for a refund or credit to a licensee in
 
21 the amount of the denominated values of any unused stamps.
 
22      §245-N  Cigarettes and tobacco products shipped outside the
 
23 State for sale or use outside the State; refund or credit of
 

 


 

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 1 taxes.(a)  The department shall adopt rules pursuant to chapter
 
 2 91 to provide a tobacco tax refund or credit to a licensee who
 
 3 has paid a tobacco tax on the distribution of cigarettes or
 
 4 tobacco products that are shipped to a point outside the State
 
 5 for subsequent sale or use outside the State.
 
 6      (b)  This part shall not apply to cigarettes or tobacco
 
 7 products that are distributed in this State to consumers and that
 
 8 are subsequently taken outside the State.
 
 9      §245-O  Monthly report on distributions of cigarettes and
 
10 tobacco products, and purchases of stamps.(a)  On or before the
 
11 last day of each month, every licensee shall file, on forms
 
12 prescribed by the department:
 
13      (1)  A report of the licensee's distributions of cigarettes
 
14           and purchases of stamps during the preceding month; and
 
15      (2)  Any other information that the department may require
 
16           to carry out this section.
 
17      (b)  On or before the last day of each month, every licensee
 
18 shall file, on forms prescribed by the department:
 
19      (1)  A report of the licensee's distributions of tobacco
 
20           products and the wholesale costs of tobacco products
 
21           during the preceding month; and 
 
22      (2)  Any other information that the department may require
 
23           to carry out this part.
 

 
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                                     H.B. NO.           H.D. 2
                                                        
                                                        

 
 1      §245-P  Counterfeiting stamps.  Any person who:
 
 2      (1)  Intentionally or knowingly makes, alters, or reuses a
 
 3           stamp as defined in section 245-1; or
 
 4      (2)  Knowingly possesses or distributes a stamp that has
 
 5           been falsely made, altered, or reused,
 
 6 is guilty of a class B felony.
 
 7      §245-Q  Sale or purchase of packages of cigarettes without
 
 8 stamps; fines and penalties.(a)  Beginning April 1, 2001:
 
 9      (1)  Any person, other than a licensee or a United States
 
10           military sales outlet, who knowingly possesses, keeps,
 
11           stores, acquires, or transports three thousand or more
 
12           cigarettes that do not have stamps affixed to the
 
13           cigarette packages as required by this part; or
 
14      (2)  Any person, other than a United States military sales
 
15           outlet, who knowingly sells one thousand or more
 
16           cigarettes that do not have a stamp affixed to the
 
17           cigarette packages as required by this part,
 
18 is guilty of a class C felony.  In addition to any other
 
19 authorized disposition, a corporation in violation of this
 
20 subsection may be fined in an amount not exceeding $50,000.
 
21      (b)  Beginning April 1, 2001:
 
22      (1)  Any person, other than a licensee or a United States
 
23           military sales outlet, who knowingly possesses, keeps,
 

 
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                                     H.B. NO.           H.D. 2
                                                        
                                                        

 
 1           stores, acquires, or transports one thousand or more
 
 2           cigarettes that do not have stamps affixed to the
 
 3           cigarette packages as required by this part; or
 
 4      (2)  Any person, other than a United States military sales
 
 5           outlet, who knowingly sells less than one thousand
 
 6           cigarettes that do not have stamps affixed to the
 
 7           cigarette packages as required by this part,
 
 8 is guilty of a misdemeanor.  In addition to any other authorized
 
 9 disposition, a corporation in violation of this subsection may be
 
10 fined in an amount not exceeding $25,000.
 
11      §245-R  Vending unstamped cigarettes; offense; punishment.
 
12 (a)  Beginning April 1, 2001, any person who knowingly places for
 
13 sale in a cigarette vending machine any cigarettes not contained
 
14 in cigarette packages to which are affixed stamps as required by
 
15 this part, shall be guilty of a class C felony.
 
16      (b)  In addition to any other authorized disposition, a
 
17 corporation in violation of subsection (a) may be fined in an
 
18 amount not exceeding $50,000.
 
19      §245-S  Enforcement; injunction; disposition of fines.(a)
 
20 Enforcement of this part shall be under the jurisdiction of the
 
21 attorney general.
 
22      (b)  Notwithstanding the existence of other remedies at law,
 
23 the attorney general may apply for, and the court may grant, a
 

 
Page 9                                                     2034
                                     H.B. NO.           H.D. 2
                                                        
                                                        

 
 1 temporary or permanent injunction restraining any person from
 
 2 violating or continuing to violate this part.  The injunction
 
 3 shall be issued without bond.
 
 4      (c)  Where the attorney general initiates and conducts an
 
 5 investigation resulting in the imposition and collection of a
 
 6 criminal fine pursuant to this part, one hundred per cent of the
 
 7 fine shall be distributed to the attorney general.
 
 8      §245-T  Forfeitures; disposition.(a)  Any cigarette,
 
 9 package of cigarettes, or carton of cigarettes unlawfully
 
10 possessed, kept, stored, acquired, transported, or sold in
 
11 violation of this part may be ordered forfeited pursuant to
 
12 chapter 712A.
 
13      SECTION 2.  Chapter 245, Hawaii Revised Statutes, is amended
 
14 by designating sections 245-1 to 245-15 as part I and inserting a
 
15 title before section 245-1 to read as follows:
 
16                   "PART I.  GENERAL PROVISIONS"
 
17      SECTION 3.  Section 245-1, Hawaii Revised Statutes, is
 
18 amended by adding eleven new definitions to be appropriately
 
19 inserted and to read as follows:
 
20      ""Attorney general" means the attorney general or deputy
 
21 attorneys general of the State.
 

 
 
 
 
 
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                                     H.B. NO.           H.D. 2
                                                        
                                                        

 
 1      "Cigarette package," means a sealed package of cigarettes
 
 2 originating from the manufacturer and bearing the health warning
 
 3 required by law.
 
 4      "Department" means the department of taxation.
 
 5      "Falsely make" means to print, manufacture or make what
 
 6 purports to be a stamp without the authority or consent of the
 
 7 department.
 
 8      "Falsely alter" means to change a stamp in any manner so
 
 9 that the altered stamp falsely appears or purports to have a
 
10 value or validity that is not authorized or consented to by the
 
11 department.
 
12      "Falsely reuse" means to affix a stamp that was previously
 
13 affixed to a package of cigarettes, to another package of
 
14 cigarettes.
 
15      "License" means any license granted under this chapter.
 
16      "Licensee" means a holder of a license granted under this
 
17 chapter.
 
18      "Sale" includes every act of selling.
 
19      "Sell" means to solicit and receive an order for; to have,
 
20 keep, offer, or expose for sale; to deliver for value or deliver
 
21 in any other way than purely gratuitously; to peddle; to keep
 
22 with intent to sell; and to traffic in.
 

 
 
 
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                                     H.B. NO.           H.D. 2
                                                        
                                                        

 
 1      "Stamp" means a stamp printed, manufactured, or made by
 
 2 authority of the department, as provided in this chapter, which
 
 3 is issued, sold, or circulated by the department, and by the use
 
 4 of which the tax levied under this chapter is paid."
 
 5      SECTION 4.  Section 245-3, Hawaii Revised Statutes, is
 
 6 amended by amending the title and subsection (a) to read as
 
 7 follows:
 
 8      "§245-3  Taxes[; limitations].(a)  Every licensee
 
 9 wholesaler, or dealer, in addition to any other taxes provided by
 
10 law, shall pay for the privilege of conducting business and other
 
11 activities in the State, an:
 
12      (1)  Excise tax equal to[:
 
13           (A)  4.00 cents for each cigarette sold, used, or
 
14                possessed by the wholesaler or dealer, after
 
15                August 31, 1997; and
 
16           (B)] 5.00 cents for each cigarette sold, used, or
 
17                possessed by a licensee, wholesaler, or dealer
 
18                after June 30, 1998,
 
19           whether or not sold at wholesale, or if not sold then
 
20           at the same rate upon the use by the licensee,
 
21           wholesaler, or dealer; and
 
22      (2)  Excise tax equal to forty per cent of the wholesale
 
23           price of each article or item of tobacco products sold
 

 
Page 12                                                    2034
                                     H.B. NO.           H.D. 2
                                                        
                                                        

 
 1           by the licensee, wholesaler, or dealer, whether or not
 
 2           sold at wholesale, or if not sold then at the same rate
 
 3           upon the use by the licensee, wholesaler, or dealer.
 
 4      Where the tax imposed has been paid on cigarettes or tobacco
 
 5 products which thereafter become the subject of a casualty loss
 
 6 deduction allowable under chapter 235, the tax paid shall be
 
 7 refunded or credited to the account of the licensee, wholesaler,
 
 8 or dealer.  [In applying the tax, the tax shall be applied
 
 9 against the latest of the activities of selling, using, or
 
10 possessing.  The tax shall be imposed at the time of the last of
 
11 the following activities to occur:  the sale; the use; or the
 
12 possession of cigarettes or tobacco products.] The tax shall be
 
13 applied to cigarettes through the use of stamps."
 
14      SECTION 5.  Section 245-5, Hawaii Revised Statutes, is
 
15 amended to read as follows:
 
16      "§245-5  Returns.  Every licensee, wholesaler, or dealer, on
 
17 or before the last day of each month, shall file with the
 
18 department [of taxation] a return showing the cigarettes and
 
19 tobacco products sold, possessed, or used by the licensee,
 
20 wholesaler, or dealer during the preceding calendar month and of
 
21 the taxes chargeable against the taxpayer in accordance with this
 

 
 
 
 
 
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                                     H.B. NO.           H.D. 2
                                                        
                                                        

 
 1 chapter.  The form of the return shall be prescribed by the
 
 2 department and shall [contain such information including a]
 
 3 include:
 
 4      (1)  A separate statement of the number and wholesale price
 
 5           of cigarettes[,];
 
 6      (2)  The amount of stamps purchased and used; [and the]
 
 7      (3)  The wholesale price of tobacco products, sold,
 
 8           possessed, or used[, as it]; and
 
 9      (4)  Any other information that the department may deem
 
10           necessary, for the proper administration of this
 
11           chapter."
 
12      SECTION 6.  Section 245-6, Hawaii Revised Statutes, is
 
13 amended to read as follows:
 
14      "§245-6  Payment of taxes; penalties.  At the time of the
 
15 filing of the return required under section 245-5 and within the
 
16 time prescribed therefor, each licensee, wholesaler, or dealer
 
17 shall pay to the department [of taxation] the taxes imposed by
 
18 this chapter, required to be shown by the return[.], including
 
19 the unpaid amount of taxes imposed by this chapter.
 
20      Penalties and interest shall be added to and become a part
 
21 of the taxes, when and as provided by section 231-39."
 
22      SECTION 7.  Section 245-8, Hawaii Revised Statutes, is
 
23 amended by amending subsection (a) to read as follows:
 

 
Page 14                                                    2034
                                     H.B. NO.           H.D. 2
                                                        
                                                        

 
 1      "(a)  Every licensee, wholesaler, and dealer shall keep a
 
 2 record of [every]:
 
 3      (1)  Every sale or use of cigarettes and tobacco products by
 
 4           the licensee, wholesaler, or dealer[, the];
 
 5      (2)  The number and wholesale price of cigarettes[, and
 
 6           the];
 
 7      (3)  The wholesale price of tobacco products, sold,
 
 8           possessed, or used[, and of the];
 
 9      (4)  The taxes payable [thereon,] on tobacco products sold,
 
10           possessed, or used, if any[,]; and
 
11      (5)  The amounts of stamps purchased and used,
 
12 in such form as the department [of taxation] may prescribe.  The
 
13 records shall be offered for inspection and examination at any
 
14 time upon demand by the department or the attorney general and
 
15 shall be preserved for a period of five years, except that the
 
16 department, in writing, may consent to their destruction within
 
17 the five-year period or may require that they be kept longer.
 
18 The department, by rule, may require the licensee, wholesaler, or
 
19 dealer to keep such other records as it may deem necessary for
 
20 the proper enforcement of this chapter."
 
21      SECTION 8.  Section 245-9, Hawaii Revised Statutes, is
 
22 amended to read as follows:
 

 
 
 
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                                     H.B. NO.           H.D. 2
                                                        
                                                        

 
 1      "§245-9 Inspection.  The department of taxation and the
 
 2 attorney general may examine all records required to be kept
 
 3 under this chapter, and books, papers, and records of any person
 
 4 engaged in the business of wholesaling or dealing cigarettes and
 
 5 tobacco products, to verify the accuracy of the payment of the
 
 6 taxes imposed by this chapter.  Every person in possession of any
 
 7 books, papers, and records, and the person's agents and
 
 8 employees, are directed and required to give to the department
 
 9 and the attorney general the means, facilities, and opportunities
 
10 for the examinations."
 
11      SECTION 9.  Section 245-15, Hawaii Revised Statutes, is
 
12 amended to read as follows:
 
13      "§245-15  Disposition of revenues.  All moneys collected
 
14 pursuant to this chapter shall be paid into the state treasury as
 
15 state realizations to be kept and accounted for as provided by
 
16 law[.], except for the amounts designated by sections 245-T, and
 
17 245-W, for distribution to the attorney general."
 
18      SECTION 10.  Section 712-1257, Hawaii Revised Statutes, is
 
19 amended by amending subsection (4) to read as follows:
 
20      "(4)  Any person who violates subsection (1) shall be [fined
 
21 not more than $2,500 for the first offense.  An subsequent
 
22 offense shall subject the person to a fine of not less than $100
 
23 and not more than $5,000.] guilty of a class C felony."
 

 
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                                     H.B. NO.           H.D. 2
                                                        
                                                        

 
 1      SECTION 11.  Section 712A-5, Hawaii Revised Statutes, is
 
 2 amended by amending subsection (d) to read as follows:
 
 3      "(d)  Contraband[, which] or untaxed cigarettes in violation
 
 4 of chapter 245, shall be seized and summarily forfeited to the
 
 5 State without regard to the procedures set forth in this
 
 6 chapter;"
 
 7      SECTION 12.  Section 712A-16, Hawaii Revised Statutes, is
 
 8 amended by amending subsection (c) to read as follows:
 
 9      "(c)  May sell or destroy all raw materials, products, and
 
10 equipment of any kind used or intended for use in manufacturing,
 
11 compounding, or processing a controlled substance, or any untaxed
 
12 cigarettes in violation of chapter 245;"
 
13      SECTION 13.  There is appropriated out of the general
 
14 revenues of the State of Hawaii the sum of $          or so much
 
15 thereof as may be necessary for fiscal year 2000-2001 for start-
 
16 up costs for implementing the cigarette stamp tax system,
 
17 including a one-year supply of stamps and stamp cylinders.
 
18      The sum appropriated shall be expended by the department of
 
19 taxation for purposes of this Act.
 
20      SECTION 14.  There is appropriated out of the general
 
21 revenues of the State of Hawaii the sum of $           or so much
 

 
 
 
 
 
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                                     H.B. NO.           H.D. 2
                                                        
                                                        

 
 1 thereof as may be necessary for fiscal year 2000-2001 to the
 
 2 attorney general, including the hiring of necessary staff.
 
 3      The sum appropriated shall be expended by the attorney
 
 4 general for the purposes of this Act.
 
 5      SECTION 15.  The director of taxation shall submit findings
 
 6 and recommendations to the legislature twenty days prior to the
 
 7 regular session of 2006 as to the effectiveness of this Act in
 
 8 reducing the loss of cigarette tax revenue to the State from
 
 9 illegal sales of untaxed cigarettes.  The director of taxation
 
10 may submit an interim report to the legislature on any findings
 
11 relating to the effectiveness of this Act before 2006.
 
12      SECTION 16.  The attorney general shall report to the
 
13 legislature no later than twenty days before the convening of
 
14 each of the regular sessions of 2002 and 2003 on its activities
 
15 relating to this Act, including expenses, fines, and penalties
 
16 collected, and forfeitures.
 
17      SECTION 17.  This Act does not affect the rights and duties
 
18 that matured, penalties that were incurred, and proceedings that
 
19 were begun, before its effective date.
 
20      SECTION 18.  In codifying the new part added to chapter 245,
 
21 Hawaii Revised Statutes, by section 1 of this Act, the revisor of
 
22 statutes shall substitute appropriate section numbers for the
 
23 letters used in designating the new sections in this Act.
 

 
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                                     H.B. NO.           H.D. 2
                                                        
                                                        

 
 1      SECTION 19.  Statutory material to be repealed is bracketed.
 
 2 New statutory material is underscored.
 
 3      SECTION 20.  This Act shall take effect on ___________;
 
 4 provided that:
 
 5      (1)  Sections 13 and 14 shall take effect on July 1, 2000;
 
 6      (2)  On June 30, 2006, this Act shall be repealed and
 
 7           sections 245-1, 245-3, 245-5, 245-6, 245-8, 245-9,
 
 8           245-15, 712-1257, 712A-5, and 712A-16, Hawaii Revised
 
 9           Statutes, shall be reenacted in the form in which they
 
10           read on the day before the approval of this Act.