§ 282-a. Imposition of excise tax on Diesel motor fuel. 1. There is
hereby levied and imposed with respect to Diesel motor fuel an excise
tax of four cents per gallon upon the sale or use of Diesel motor fuel
in this state.

The excise tax is imposed on the first sale or use of Diesel motor
fuel to occur which is not exempt from tax under this article. Provided,
however, if the tax has not been imposed prior thereto, it shall be
imposed on the removal of highway Diesel motor fuel from a terminal,
other than by pipeline, barge, tanker or other vessel, or the delivery
of Diesel motor fuel to a filling station or into the fuel tank
connecting with the engine of a motor vehicle for use in the operation
thereof whichever event shall be first to occur. The tax shall be
computed based upon the number of gallons of Diesel motor fuel sold,
removed or used or the number of gallons of Diesel fuel delivered into
the fuel tank of a motor vehicle, as the case may be. Nothing in this
article shall be construed to require the payment of such excise tax
more than once upon the same Diesel motor fuel. Nor shall the collection
of such tax be made applicable to the sale or use of Diesel motor fuel
under circumstances which preclude the collection of such tax by reason
of the United States constitution and of laws of the United States
enacted pursuant thereto. Provided, further, no Diesel motor fuel shall
be included in the measure of the tax unless it shall have previously
come to rest within the meaning of federal decisional law interpreting
the United States constitution. All tax for the period for which a
return is required to be filed shall be due on the date limited for the
filing of the return for such period, regardless of whether a return is
filed as required by this article or whether the return which is filed
correctly shows the amount of tax due.

2. No person shall sell or use Diesel motor fuel within this state
(other than a retail sale not in bulk or self-use of Diesel motor fuel
which has been the subject of a retail sale), import or cause the
importation of Diesel motor fuel into the state or produce, refine,
manufacture or compound Diesel motor fuel within the state unless such
person shall be registered by the department as a distributor of Diesel
motor fuel. Provided, the commissioner shall not register as a
distributor of Diesel motor fuel any person who is engaged solely in one
or both of the following: (i) any person who makes or offers to make a
retail sale not in bulk of such fuel or (ii) any person who purchases
Diesel motor fuel in bulk in this state for the sole purpose of
self-use. The commissioner may, however, register as a distributor of
kero-jet fuel only a fixed base operator who makes no sales of kero-jet
fuel other than retail sales not in bulk delivered directly into the
fuel tank of an airplane for use in the operation of such airplane and
who makes no other sales of diesel motor fuel. Such registration shall
apply only to the wholesale purchase of kero-jet fuel and the retail
sale of such fuel not in bulk for delivery directly into the fuel tank
of an airplane for use in the operation thereof. Provided, further, that
if the commissioner is satisfied that full registration is not necessary
in order to protect tax revenues, the commissioner may limit or modify
the requirement of registration as a distributor with respect to any
person otherwise required to register solely because such person engages
in the sale of non-highway Diesel motor fuel where such person makes
sales of non-highway Diesel motor fuel to the consumer solely for the
purposes described in subparagraph (i) of paragraph (b) of subdivision
three of this section, provided that if the commissioner so limits or
modifies such registration requirement with respect to such person, then
such registration shall apply only to the importation, sale and
distribution of such non-highway Diesel motor fuel. The commissioner may
also waive any other requirement imposed by this article on such a
distributor. All the provisions of section two hundred eighty-three of
this article shall apply to applicants for registration and registrants
with respect to Diesel motor fuel, and, in addition, distributors with
respect to Diesel motor fuel shall be subject to all other provisions of
this article relating to distributors of motor fuel, including but not
limited to, the keeping of records, the fixing, determination and
payment of tax and filing of returns. Provided, further, the
commissioner may limit or modify the requirement of registration as a
distributor with respect to any person who produces for self use
"unqualified biodiesel."

3. (a) The tax imposed by this section shall not apply to the sale of
untaxed Diesel motor fuel to or the use of such fuel by an organization
described in paragraph one or two of subdivision (a) of section eleven
hundred sixteen of this chapter where such Diesel motor fuel is used by
such organization for its own use or consumption.

(b) The tax on the incidence of sale or use imposed by subdivision one
of this section shall not apply to: (i) the sale or use of non-highway
Diesel motor fuel, but only if all of such fuel is consumed other than
on the public highways of this state (except for the use of the public
highway by farmers to reach adjacent farmlands); provided, however, this
exemption shall in no event apply to a sale of non-highway Diesel motor
fuel which involves a delivery at a filling station or into a repository
which is equipped with a hose or other apparatus by which such fuel can
be dispensed into the fuel tank of a motor vehicle (except for delivery
at a farm site which qualifies for the exemption under subdivision (g)
of section three hundred one-b of this chapter); or (ii) a sale to the
consumer consisting of not more than twenty gallons of water-white
kerosene to be used and consumed exclusively for heating purposes; or
(iii) the sale to or delivery at a filling station or other retail
vendor of water-white kerosene provided such filling station or other
retail vendor only sells such water-white kerosene exclusively for
heating purposes in containers of no more than twenty gallons; or (iv) a
sale of kero-jet fuel to an airline for use in its airplanes or a use of
kero-jet fuel by an airline in its airplanes; or (v) a sale of kero-jet
fuel by a registered distributor of Diesel motor fuel to a fixed base
operator registered under this article as a distributor of kero-jet fuel
only where such fixed base operator is engaged solely in making or
offering to make retail sales not in bulk of kero-jet fuel directly into
the fuel tank of an airplane for the purpose of operating such airplane;
or (vi) a retail sale not in bulk of kero-jet fuel by a fixed base
operator registered under this article as a distributor of kero-jet fuel
only where such fuel is delivered directly into the fuel tank of an
airplane for use in the operation of such airplane; or (vii) the sale of
previously untaxed qualified biodiesel to a person registered under this
article as a distributor of Diesel motor fuel other than (A) a retail
sale to such person or (B) a sale to such person which involves a
delivery at a filling station or into a repository which is equipped
with a hose or other apparatus by which such qualified biodiesel can be
dispensed into the fuel tank of a motor vehicle; or (viii) the sale of
previously untaxed highway Diesel motor fuel by a person registered
under this article as a distributor of Diesel motor fuel to a person
registered under this article as a distributor of Diesel motor fuel
where the highway Diesel motor fuel is either: (A) being delivered by
pipeline, railcar, barge, tanker or other vessel to a terminal, the
operator of which terminal is registered under section two hundred
eighty-three-b of this article, or (B) within such a terminal where it
has been so delivered. Provided, however, that the exemption set forth
in this subparagraph shall not apply to any highway Diesel motor fuel if
it is removed from a terminal, other than by pipeline, barge, tanker or
other vessel.

(c) Nothing in this article shall exempt non-highway diesel motor fuel
from the imposition of the tax under this section, if such non-highway
diesel motor fuel is intended for use on the waterways of the state
including any other waterways bordering on the state, for operating
pleasure or recreational motor boats thereon.

4. The tax imposed by this section on Diesel motor fuel shall be
passed through by the seller and included as part of the selling price
to each purchaser of such fuel. Provided, however, the amount of the tax
imposed by this section may be excluded from the selling price of Diesel
motor fuel where (i) a sale of Diesel motor fuel is made to an
organization described in paragraph (a) of subdivision three of this
section solely for the purpose stated therein; (ii) a sale of
non-highway Diesel motor fuel is made to a consumer but only if such
non-highway Diesel motor fuel is not delivered to a filling station, nor
delivered into a storage tank which is equipped with a hose or other
apparatus by which such fuel can be dispensed into the fuel tank of a
motor vehicle; or (iii) the sale to or delivery at a filling station or
other retail vendor of water-white kerosene provided such filling
station or other retail vendor only sells such water-white kerosene
exclusively for heating purposes in containers of no more than twenty
gallons; or (iv) a sale of kero-jet fuel is made to an airline for use
in its airplanes.

5. All the provisions of this article relating to the administration
and collection of the taxes on motor fuel, except section two hundred
eighty-three-a of this article, shall be applicable to the tax imposed
by this section with such limitation as specifically provided for in
this article with respect to Diesel motor fuel and with such
modification as may be necessary to adapt the language of such
provisions to the tax imposed by this section. With respect to the bond
or other security required by subdivision three of section two hundred
eighty-three of this article, the commissioner, in determining the
amount of bond or other security required for the purpose of securing
tax payments, shall take into account the volume of non-highway Diesel
motor fuel and other Diesel motor fuel sold for exempt purposes by a
distributor of Diesel motor fuel during prior periods as a factor
reducing potential tax liability along with any other relevant factors
in determining the amount of security required. With respect to the bond
required to be filed prior to registration as a Diesel motor fuel
distributor, no bond shall be required of an applicant upon a finding of
the applicant's fiscal responsibility, as reflected by such factors as
net worth, current assets and liabilities, and tax reporting and payment
history, and the department shall not provide for a minimum bond of
every applicant.