SENATE DOCKET, NO. 1790        FILED ON: 1/21/2011

SENATE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 1505

The Commonwealth of Massachusetts

_________________

PRESENTED BY:

Michael J. Rodrigues

_________________

To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
Court assembled:

The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:

An Act encouraging a better business climate and job creation in the Commonwealth.

_______________

PETITION OF:

SENATE DOCKET, NO. 1790        FILED ON: 1/21/2011

SENATE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 1505

The Commonwealth of Massachusetts

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In the Year Two Thousand Eleven

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An Act encouraging a better business climate and job creation in the Commonwealth.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:
 

SECTION 1. Subsection (a) of section 2RR of chapter 29 of the General Laws, as appearing in the 2008 Official Edition is hereby amended by inserting after the word “Training” the following word:- Trust.

SECTION 2. Said section 2RR of chapter 29, as so appearing, is hereby further amended by striking out, in lines 6 and 7, the words “Subject to appropriation, the commissioner, which in this section shall have the meaning assigned by SECTION 1 of chapter 151A” and inserting in place thereof the following words:- The commissioner, which in this section shall have the meaning assigned by SECTION 1 of chapter 151A, shall be the trustee of the Fund and, without further appropriation.

SECTION 3. Section 2A of chapter 63, as appearing in the 2008 Official Edition, is hereby amended by striking out subsection (b) and inserting in place thereof the following new subsection:-

(b)(1) Except as provided by subsection (b)(2), if the financial institution has income from business activity which is taxable both within and without this commonwealth, its net income shall be apportioned to this commonwealth by multiplying its net income by the applicable apportionment percentage. For purposes of subsection (b)(1), the applicable apportionment percentage is determined by adding the taxpayer’s receipts factor, property factor and payroll factor together and dividing the sum by three. If one of the factors is missing, the two remaining factors are added and the sum is divided by two. If two of the factors are missing, the remaining factor is the apportionment percentage. If all three factors are missing, the whole of the financial institution’s net income shall be taxable under section two. A factor is missing if both its numerator and denominator are zero, but it is not missing merely because its numerator is zero.

(b)(2), Notwithstanding subsection (b)(1), a financial institution that has income from business activity which is taxable both within and without this commonwealth, may elect to have its net income apportioned to this commonwealth by multiplying said taxable net income by the resulting percentage as determined in the following formulas:

    (i) For taxable years beginning on or after January 1, 2012 but before January 1, 2013, 20 percent of the property factor plus 20 percent of the payroll factor plus 60 percent of the receipts factor.

    (ii) For taxable years beginning on or after January 1, 2013 but before January 1, 2014, 15 percent of the property factor plus 15 percent of the payroll factor plus 70 percent of the receipts factor.

    (iii) For taxable years beginning on or after January 1, 2014 but before January 1, 2015, 10 percent of the property factor plus 10 percent of the payroll factor plus 80 percent of the receipts factor.

    (iv) For taxable years beginning on or after January 1, 2015 but before January 1, 2016, 5 percent of the property factor plus 5 percent of the payroll factor plus 90 percent of the receipts factor.

    (v) For taxable years beginning on or after January 1, 2016, 100 percent of the receipts factor.

SECTION 4.  Subsection (d) of section 2A of chapter 63, as appearing in the 2008 Official Edition, is hereby amended by inserting after paragraph (xiii) the following new paragraph:-

(xiv) Notwithstanding the foregoing, a financial institution that elects to apportion its taxable net income pursuant to subsection (b)(2) of this section shall apply the rules applicable to the receipts factor as set forth in this section, with the following exceptions:

(A) In lieu of sourcing receipts pursuant to paragraph (xi), receipts from services not otherwise apportioned under this section are sourced to this commonwealth if the gross receipts are derived from customers in this commonwealth or otherwise attributable to this commonwealth's marketplace.

(B) In lieu of sourcing receipts pursuant to paragraph (xii), the numerator of the receipts factor includes the income described in paragraph (xii)(A) multiplied by a fraction, the numerator of which is the total amount included in the numerator of the receipts factor pursuant to paragraphs (iii), (iv), (vi) and (xiv)(A) and the denominator of which is the taxpayer's total amount of (1) interest and fees or penalties in the nature of interest from loans, (2) interest and fees or penalties in the nature of interest from credit card receivables and receipts from fees charged to card holders, such as annual fees, and (3) receipts from services subject to apportionment pursuant to (xiv)(A).

SECTION 5. Subsection (i) of section 31A of Chapter 63 of the General Laws is hereby amended by striking out “three” and inserting in place thereof, in each instance, the following word:- five

SECTION 6. Subsection (j) of section 31A of said Chapter 63 is hereby amended by striking out “three” and inserting in place thereof the following word:- five

SECTION 7. Subsection (l) of Section 31A of said Chapter 63 is hereby amended by striking out said subsection and inserting in place thereof the following section:

(l) Paragraphs (i) and (j), as amended, shall be available only for the taxable years ending on or after December 31, 2011.             

SECTION 8.  Chapter 63 of the General Laws is hereby amended by inserting the following section:-

Section 31N:  A manufacturing corporation, or a business corporation engaged primarily in research and development that is a certified project, enhanced expansion project or a manufacturing retention and job growth project, as the terms are defined in section 3A of Chapter 23A of the general laws, which is located in a gateway municipality, as defined in section 3A of said Chapter 23A, shall be entitled a credit as hereinafter provided against its excise due pursuant to the section 39 of this chapter. The amount of such credit available shall be up to $2500 per new, full-time employee as the term is defined in section 31C of chapter 63. 

The credit allowed under this section for any taxable year shall not reduce the excise to less than the amount due under section thirty-two (b), thirty-nine (b) or sixty-seven and under any act in addition thereto.

Any corporation entitled to a credit for any taxable year in accordance with the provisions of this section may carry over and apply to its excise for any one or more of the next succeeding three taxable years, the portion, as reduced from year to year, of its credit which exceeds its excise for the taxable year.

SECTION 9. Said chapter 63 of the General Laws is hereby amended by inserting the following section:-

Section 31O: For the purposes of this section, the following words shall have the following meanings:

‘Application year’, the calendar year for which a qualifying small business submits the information required for a determination as to a jobs incentive payment.

‘Commissioner’, the commissioner of revenue.

‘Eligible jobs’, a number determined by first multiplying each of the local jobs created by a small business during a single calendar year by the job qualifier for that job, and then totaling the number for all the local jobs created.

‘Full time employee’, a person who is employed for consideration for at least 35 hours per week and whose salary is subject to withholding as provided in chapter 62B.

‘Job qualifier fraction’, in the case of either a full-time employee or a part-time employee of a small business, the figure that determines the extent to which that employee is employed in the commonwealth during a single calendar year. The job qualifier fraction for each employer shall be determined by multiplying the following percentages together: (i) the percentage of time that an employee worked while employed by the company expressed as average hours worked per week out of 35 hours, not to exceed 100 per cent; (ii) that employee’s time attributable to work in the commonwealth, as a portion of that employee’s total work for the company; and (iii) the portion of the year the employee worked for the company.

‘Local jobs created’, the total number of direct jobs created by a small business during a single calendar year in which the new employees perform their duties in at least 1 in-state location, including jobs performed by persons that are transferred within the company to work at an in-state location from a location based outside the state.

‘Part-time employee’, a person who is employed for consideration for less than 35 hours a week and whose salary is subject to withholding as provided in chapter 62B.

‘Payment years’, in the case of a small business that is determined to be eligible for a jobs incentive payment, the 3 calendar years following the application year.

‘Small business’, a business that had total annual sales in its most recently completed fiscal year of less than five million dollars, or has less than 100 employees, and has a principal place of business in the commonwealth.

‘Small business jobs incentive payment’, a business employment incentive payment for qualifying small businesses as provided for in this section.

‘Weighted average employment’, for a calendar year, the total number of jobs maintained by a small business in which the employees performed employment services at least 1 in-state location. The number is to be determined by first multiplying each of the individual jobs maintained by the company for that year by the job qualifier fraction for that job and then totaling the number for all of these jobs.

(b) A small business that creates 5 or more eligible jobs in the commonwealth during a single calendar year shall be entitled to a small business jobs incentive payment if its weighted average employment for such year reflects a net increase of at least 5 jobs over the company’s weighted average employment for the previous calendar year. The jobs incentive payment shall be equal to 25 per cent of the amount paid by the company as salary attributable to eligible jobs created by the company in such year to the extent that the salary was subject to Massachusetts withholding pursuant to chapter 62B for such year, multiple by the applicable Massachusetts income tax rate for such salary.  For the purposes of this provision, an eligible job shall be deemed created in the commonwealth on the first day for which Massachusetts withholding is required in connection with the compensation paid to the employee.

(c) The small business jobs incentive payment shall be paid to the small business in 3 equal installments in each of the three calendar years commencing with the calendar year subsequent to the application year. If, for the first or second payment year, the company’s weighted average employment falls below its weighted average for the application year, the company shall be disqualified from receiving its second installment payment.  It may still receive its third installment payment if its weighted average employment for its second payment year is above its weighted average employment for its application year.

(d) A small business that seeks a small business jobs incentive payment shall apply to the commissioner to receive such payment on a form to be prescribed by the commissioner.  This form shall reference the necessary information concerning the eligible jobs created by the company in the commonwealth during the application year and also the company’s weighted average employment for such year and the previous calendar year.  The commissioner shall advise the company of his determination in writing.

(e) Not later than March 1 of each calendar year for which a small business has been approved to receive a small business jobs incentive payment, the company shall submit to the commissioner the information necessary to evaluate the company’s previous year weighted employment average.

(f) A small business previously approved to receive a small business jobs incentive payment is entitled to re-apply for an additional payment for a second or third application year.  In such cases, the company may be entitled to receive a small business jobs incentive payment that relates to a different application in the same calendar year. When a company had previously been granted a jobs incentive payment for 3 application years, it shall not request an additional small business jobs incentive payment.

(g) The commissioner shall issue payments, as authorized in subsection (b), without further appropriation.  The commissioner may issue rules and regulations as necessary or helpful to implement this section, including rules and regulations to ensure compliance with this section.

SECTION 10. Said chapter 63 of the General Laws is hereby amended by inserting the following section: -

Section 31P: (a) As used in this section, the following words shall, unless the context otherwise requires, have the following meanings:

‘Qualified veterans’, a Massachusetts resident who: (i) was a member of the Armed Forces of the United States, a member of the Massachusetts National Guard, or a member of any reserve component of the Armed Forces of the United States;               (ii) served on active duty in connection with the Vietnam Conflict, Operation Desert Storm, Operation Enduring Freedom, or Operation Iraqi Freedom; (iii) who has provided the taxpayer  with documentation showing honorable discharge; and (iv) was initially hired by the taxpayer on or after January 1, 2010.

‘Sustained employment’, a period of employment that is at least 185 days during a taxable year.

(b) For each taxable year on or after January 1, 2010, each taxpayer is entitled to a credit against the excise due under this chapter in an amount equal to 5%, but in no event to exceed $600, of the gross wages paid by the taxpayer to a qualified veteran in the course of that veteran’s sustained employment during the taxable year.

(c) If a taxpayer is subject to a minimum excise under this chapter, the amount of credit allowed shall not reduce the excise to an amount less than the minimum excise.

(d) A taxpayer entitled to a credit under this section for any taxable year may carry over and apply to its excise for any 1 or more of the next succeeding 5 taxable years, the portion, as reduced from year to year, of those credits which exceed the excise for the taxable year.  The tax credit shall be applied to the earliest year for which there is a tax liability.  If there are credits for more than one year that are available to offset a liability, the earlier credit shall be applied first.

(e) A taxpayer that has previously been approved to receive a credit under this section shall not be eligible to receive said payment for more than one calendar year.  A taxpayer may apply to receive a credit under this section that relates to a different application in the same calendar year or a different application in a different calendar year.

SECTION 11. Section 38 of said chapter 63, as appearing in the 2008 Official Edition, is hereby amended by striking out subsection (c) and inserting in place thereof the following new subsection:-

(c)(1) Except as provided by subsection (c)(2), if a business corporation, other than a defense corporation as described in subsection (k), a manufacturing corporation as described in subsection (l), or a mutual fund service corporation to the extent of its mutual fund sales as described in subsection (m), has income from business activity which is taxable both within and without this commonwealth, its taxable net income, as determined under the provisions of subsection (a), shall be apportioned to this commonwealth by multiplying said taxable net income by a fraction, the numerator of which is the property factor plus the payroll factor plus twice times the sales factor, and the denominator of which is four.

(2) Notwithstanding subsection (c)(1), any business corporation, including a defense corporation as described in subsection (k), a manufacturing corporation as described in subsection (l), or a mutual fund service corporation, as described in subsection (m), to the extent of its non-mutual fund sales, that has income from business activity which is taxable both within and without this commonwealth, may elect to have its taxable net income, as determined under the provisions of subsection (a), apportioned to this commonwealth by multiplying said taxable net income by the resulting percentage as determined in the following formulas:

    (i) For taxable years beginning on or after January 1, 2012 but before January 1, 2013, 20 percent of the property factor plus 20 percent of the payroll factor plus 60 percent of the sales factor.

    (ii) For taxable years beginning on or after January 1, 2013 but before January 1, 2014, 15 percent of the property factor plus 15 percent of the payroll factor plus 70 percent of the sales factor.

    (iii) For taxable years beginning on or after January 1, 2014 but before January 1, 2015, 10 percent of the property factor plus 10 percent of the payroll factor plus 80 percent of the sales factor.

    (iv) For taxable years beginning on or after January 1, 2015 but before January 1, 2016, 5 percent of the property factor plus 5 percent of the payroll factor plus 90 percent of the sales factor.

    (v) For taxable years beginning on or after January 1, 2016, 100 percent of the sales factor.

SECTION 12.  Subsection (f) of section 38 of said chapter 63, as appearing in the 2008 Official Edition, is hereby amended by inserting after the third paragraph the following new paragraph:-

Notwithstanding the foregoing, a business corporation that elects to apportion its taxable net income pursuant to subsection (c)(2) of this section shall apportion such income using the sales factor rules set forth in this subsection, with the exception that (i) sales other than sales of tangible personal property are sourced to this commonwealth if the gross receipts are derived from customers in this commonwealth or otherwise attributable to this commonwealth's marketplace; and (ii) gross receipts from the licensing of intangible property are sourced to this commonwealth to the extent that the intangible property is used in the commonwealth.

SECTION 13.  Section 38N(a) of said Chapter 63 of the General Laws is hereby amended by inserting after the words “taken by such corporation” the following words:- except that the corporation shall also be entitled to any credits earned pursuant to section thirty-one A of chapter sixty-three if the property were purchased by a manufacturing corporation or a business corporation engaged primarily in research and development and used  exclusively in a certified project located in a Gateway City, as defined in Chapter 23A.  Corporations leasing property located in a Gateway City to unrelated parties shall be entitled to the tax credit provided that the property is used exclusively in a certified project.

SECTION 14. Section 52A of said chapter 63, as appearing in the 2008 Official Edition, is hereby amended by striking out subdivision (3) and inserting in place thereof the following new subdivision:-

(3)(a)  The portion of net income derived from business carried on within the commonwealth by a corporation subject to tax under this section shall be determined under the provisions of sections thirty-eight and forty-two; provided, however, that under subsection (c)(1) of section 38 its taxable net income shall be multiplied by a fraction, the numerator of which is the property factor plus the payroll factor plus the sales factor, and the denominator is three.

(b) Notwithstanding subdivision(3)(a), any corporation subject to tax under this section that has net income derived from business carried on within the commonwealth may elect to determine the portion of such net income subject to tax in accordance with subsection (c)(2) of section 38.

SECTION 15. Subsection (c) of Section 3 of Chapter 63B of the General Laws, as appearing in the 2008 Official Edition, is hereby amended by striking said subsection and inserting in place thereof the following section:-

(c) For purposes of this chapter, there shall be four required installments for each taxable year, except as otherwise provided by this chapter. The first installment shall be paid on or before the fifteenth day of the third month of the taxable year; the second installment shall be paid on or before the fifteenth day of the sixth month of the taxable year; the third installment shall be paid on or before the fifteenth day of the ninth month of the taxable year; and the fourth installment shall be paid on or before the fifteenth day of twelfth month of the calendar year. The amount of any installment shall be twenty-five per cent of the required annual payment.

The term “required annual payment” means the lesser of (i) ninety percent of the tax shown on the return for the taxable year or, if no return is filed, ninety percent of the tax for such year, or (ii) one hundred percent of the tax shown on the return of the corporation for the preceding taxable year, or (iii) ninety percent of the tax for the taxable year or, if no return is filed, ninety percent of tax for such year determined by using the income apportionment percentage, if any, applicable for the preceding taxable year in computing its net income subject to tax under chapter sixty-three.

Clause (ii) shall not apply if the preceding taxable year was not a taxable year of twelve months or the corporation did not file a return for such preceding taxable year showing a liability for tax.

Clause (ii) shall not apply in the case of a large corporation, as defined in section sixty-six hundred and fifty-five (g) of the Internal Revenue Code of the United States, as amended on January first, nineteen hundred and eighty-nine and in effect for the taxable year except for purposes of determining the amount of the first required installment for any taxable year; provided, however that any reduction in such first installment by reason of this provision shall be recaptured by increasing the amount of the next required installment by the amount of such reduction.

SECTION 16. Section 4A of Chapter 63B of the General Laws, as so appearing, is hereby amended by striking the word “sixty-five” in line 4 and inserting in place thereof the following:-  fifty.

SECTION 17. Section 4A of Chapter 63B of the General Laws, as so appearing, is hereby amended by striking the word “ten” in line 9 and inserting in place thereof the following:-  twenty-five.

SECTION 18. Section 4A of Chapter 63B of the General Laws, as so appearing, is hereby amended by striking the word “ninety” in line 14 and inserting in place thereof the following:- twenty-five.

SECTION 19. Section 4A of Chapter 63B of the General Laws, as so appearing, is hereby amended by striking the word “ten” in line 16 and inserting in place thereof the following:- twenty-five.

SECTION 20. Section 148B of Chapter 149 of the General Laws, as appearing in the 2008 Official Edition, is hereby amended by striking out the word “and,” in line 8, and inserting in place thereof the following word:- or.

SECTION 21. Section 188 of Chapter 149 of the General Laws, as appearing in the 2006 Official Edition, is hereby amended by striking out, in line 18, the word “equivalent”.             

SECTION 22. Section 188 of Chapter 149 of the General Laws, as appearing in the 2006 Official Edition, is hereby amended by inserting under subsection (c) the following paragraph:

(11) For the purpose of the fair share contribution compliance test, an employer may count employees that have qualifying health insurance coverage from a spouse, a parent, a veteran’s plan, Medicare, Medicaid, or a plan or plans due to a disability or retirement towards their qualifying take-up rate as a “contributing employer”, as defined by the Division of Health Care Finance and Policy. The employer is still required to offer group medical insurance and must keep and maintain proof of their employee’s insurance status.

SECTION 23.  Subsection (2) of paragraph (a) of section 14 of Chapter 151A, as so appearing, is hereby amended by striking the words “employer’s total taxable payroll for the period of twelve consecutive months ending on” and inserting in place thereof the following words:- average of the employer’s total taxable payroll for the three years prior to

SECTION 24.  Said subsection is hereby further amended by striking the words “total taxable payrolls reported by all employers whose experience rate is determined under paragraph (1) of subsection (i), for the period of twelve consecutive months ending on” and inserting in place thereof the following words:- average of the total taxable payrolls reported by all employers whose experience rate is determined under paragraph (1) of subsection (i), for the three years preceding

SECTION 25.  Said subsection is hereby further amended by striking the words “total payrolls reported by all employers liable for contributions under section fourteen for the calendar year” and inserting in place thereof the following words:-the average of the total payrolls reported by all employers liable for contributions under section fourteen for the three years

SECTION 26.  Subsection (1) of paragraph (h) of said section 14 is hereby amended by striking the words “The commissioner shall determine each employer’s total taxable wages for the twelve months” and inserting in place thereof the following words:- The commissioner shall determine the average of each employer’s total taxable wages for the three-year

SECTION 27.  Subsection (2) of paragraph (h) of section 14 of said chapter 151A of the General Laws, as so appearing, is hereby amended by striking the words “commissioner shall determine the total taxable wages of all employers in the commonwealth, whose experience rate is determined under paragraph (1) of subsection (i) during the calendar year” and inserting in place thereof the following words:- commissioner shall determine the  average of the total taxable wages of all employers in the commonwealth, whose experience rate is determined under paragraph (1) of subsection (i) for the three-year period

SECTION 28.  Section 24 of said chapter 151A, as so appearing, is hereby amended in subparagraph (a) by striking the words “Have been paid wages in the base period amounting to at least thirty times the weekly benefit rate” and inserting in place thereof the following words:- Have been paid wages in at least two quarters of the base period amounting to at least thirty times the weekly benefit rate.

SECTION 29.  Subsection (i) of section 14 of said chapter 151A, as appearing in the 2006 Official Edition, is hereby amended by striking out paragraph (1) and inserting in place thereof the following:-

With respect to calendar years beginning on or after January 1, 2011, the experience rate of an employer qualifying therefor under subsection (b) shall be the rate which appears in the column headed by the unemployment compensation reserve percentage as of the applicable computation date and on the line with the applicable employer account reserve percentage as set forth in the experience rate table:

SECTION 30.  Paragraph (2) of subsection (i) of section 14 of said chapter 151A of the General Laws, as so appearing, is hereby repealed.

SECTION 31. Said chapter 151A of the General Laws, as appearing in the 2006 Official Edition, is hereby amended by deleting Section 14G.

SECTION 32. All proceeds accumulated in the Medical Security Trust Fund on the date of dissolution shall be deposited in the unemployment insurance trust fund.

SECTION 33.  Chapter 231 of the General Laws, as appearing in the 2008 Official Edition, is hereby amended by inserting after section 85Z the following new section:-

Section 85AA.  A product supplier shall not be liable in any product liability action for harm caused by failure to provide adequate warning or instruction, unless the plaintiff proves by a preponderance of the evidence that, at the time the product left the control of the supplier, and in light of the technical, medical, and scientific knowledge available at the time the product left the control of the supplier, the supplier knew or reasonably should have known of the danger that caused the plaintiff’s harm and failed to provide adequate warning or instruction concerning such danger.

A product supplier shall not be liable in any product liability action for harm caused by the design or formulation of a product, unless the plaintiff proves by a preponderance of the evidence that, at the time the product left the control of the supplier, an alternative design or formulation was commercially and technically feasible that would have prevented the harm for which the claimant seeks to recover compensatory damages without substantially impairing the utility of the product.

For purposes of this section the term “product liability action” shall mean any action brought for, or on account of, death, personal injury or injury to property caused by a product which is claimed to be defectively designed, or for which it is claimed that an adequate warning or instruction was not provided, irrespective of whether such action is based on negligence, strict liability, breach of warranty, or any other legal theory.

This section applies to all causes of action pending on or commenced on or after the date of the enactment.  This section shall take effect upon enactment.

SECTION 34.  Chapter 231B of the General Laws, as appearing in the 2008 Official Edition, is hereby amended by inserting the following new section:-

Section 5.  (a)  In any civil action, the court, unless otherwise agreed by all parties to the action, shall instruct the jury to answer special interrogatories or, if there is no jury, shall make findings indicating both (1) the total amount of each plaintiff’s damages, and (2)  the percentage of the total fault of all persons that contributed to the plaintiff’s damages, including any plaintiff, defendant or other person not named as a party to the action.

(b)  In determining the percentages of fault under subsection (a), the trier of fact shall consider both the nature of the conduct of each person at fault and the extent of the causal relation between the conduct and the damages.  (c)  The court shall determine the award of damages to each plaintiff in accordance with the findings under subsection (a), and shall enter judgment against each party, including any third-party defendant, except that a person shall not be required to pay non-economic damages in an amount greater than his or her percentage of fault as found under subsection (a) (2).  (d)  The term “non-economic damages” means subjective, non-monetary loss resulting from harm, including pain, suffering, inconvenience, mental suffering, emotional distress, loss of society or companionship, loss of consortium, injury to reputation, and humiliation.  (e)  This section shall not apply to actions for intentional torts, or to judgments against two or more defendants who are found to have consciously acted in a concerted effort.

SECTION 35.  Chapter 260 of the General Laws, as appearing in the 2008 Official Edition, is hereby amended by inserting the following new section:-

Section 20A.  (a)  A products liability action shall not be commenced more than ten years after the initial date of sale or lease of the product for use or consumption.

(b)  The limitation provided for in subsection (a) shall not apply to the following situations:

    (1)  where a manufacturer or seller of a product provides any express written warranty that the product can be used for a period longer than ten years.  In such case the limitation shall be extended pursuant to the terms of the express written warranty.

    (2)  if the harm, caused within ten years after the time of delivery, did not manifest itself until after that time.

SECTION 36.  Sections 3A, 20A and 25 of chapter 175 of the acts of 1998 are hereby repealed.

SECTION 37.  Notwithstanding any general or special law to the contrary, subsection (b) of section 39 of chapter 7 of the General Laws, as appearing in the 2008 Official Edition, is hereby suspended, beginning January 1, 2012, and ending December 31, 2014.

SECTION 38. Notwithstanding any general or special act to the contrary, the operational services division within the executive office for administration and finance shall endeavor to ensure that in any fiscal year no less than 15% of statewide procurement contracts are entered into with small businesses. For the purposes of this section, small business shall mean a business entity, including its affiliates, that (i) is independently owned and operated; (ii) has a principal place of business in the commonwealth; and (iii) would be defined as a small business under applicable federal law.

SECTION 39.  Sections 3, 4, 11, 12, 14 and sections 15 to 19, inclusive, shall be effective for tax years beginning on or after January 1, 2012.

SECTION 40.  Section 9 shall be effective for calendar years 2011 to 2015, inclusive.

SECTION 41. Sections 23 through 30, inclusive, shall take effect January 1, 2012.