34 Tex. Admin. Code § 3.1261 - Reports, Payments, and Record Keeping Requirements
(a) Definitions. The following words and
terms, when used in this section shall have the following meanings, unless the
context clearly indicates otherwise.
(1)
Barrel--Three 100-pound containers of oysters.
(2) Certificate (Shellfish Certificate of
Compliance)--A numbered document that the Seafood and Aquatic Life Group of the
Texas Department of State Health Services issues and that authorizes a dealer
to process oysters for sale.
(3)
Certified location--A plant or place of business that the Seafood and Aquatic
Life Group of the Texas Department of State Health Services has inspected and
for which that department has issued a Shellfish Certificate of
Compliance.
(4) Certified shellfish
dealer--A person to whom the Texas Department of State Health Services has
issued a Certificate of Compliance that authorizes the activities of molluscan
shell stock shipper, shucker-packer, repacker, or depuration
processor.
(5) Container--For the
purposes of this section, any material holding oysters.
(6) Harvest--The process of gathering or
removing oysters from their growing areas.
(7) Pack--All activities involved in placing
oysters in containers.
(8) Shell
stock--Live oysters in the shell.
(9) Shucked oysters--Oysters, whole or in
part, from which one or both shells have been removed.
(10) Take--To catch, hook, net, snare, trap,
kill, or capture by any means, including the attempt to take, oysters from
their growing areas.
(b)
Fee imposed. A fee of $1.00 for each barrel is imposed on the first certified
shellfish dealer who harvests, purchases, handles, stores, packs, labels,
unloads at dockside, or holds oysters taken from Texas waters.
(c) Reporting period. A certified shellfish
dealer must file a report with the comptroller on or before the 20th day of the
month following the month in which the barrels of oysters were handled. The
report must include the total number of barrels of oysters upon which the fee
is imposed. A certified shellfish dealer must file a report, even if the dealer
owes no fee for the report period.
(d) Report forms. Each certified shellfish
dealer must report the oyster sales fee on the forms prescribed by the
comptroller. A certified shellfish dealer who does not receive the forms or
does not receive the correct forms from the comptroller is not relieved of the
responsibility of paying the required fee and any penalties and/or interest
owed.
(e) Reporting Waiver Request.
Using a form prescribed by the comptroller, a certified shellfish dealer may
request a waiver from the requirement to file the monthly reports when the
dealer, at a specified location, is not the first certified shellfish dealer to
harvest, purchase, handle, store, pack, label, unload at dockside, or hold
oysters taken from Texas waters. If the certified shellfish dealer intends to
change plant operations at a later date at the specified location in a manner
that will require payment of the oyster sales fee, the dealer must inform the
comptroller, in writing, prior to implementing the change.
(f) Payment of the fee. Not later than the
20th day of each month, each certified shellfish dealer shall remit to the
comptroller the total fee amount due.
(g) Payment of penalties.
(1) Overweight penalty. A certified shellfish
dealer who purchases or packs oysters in containers that exceed 110 pounds in
weight is liable for a penalty of $5.00 for each container purchased or packed
that exceeds 110 pounds. Payment of an overweight penalty is due with the
filing of the report for the month in which the overweight container was
handled.
(2) Late filing penalty. A
certified shellfish dealer who does not file a monthly report required in
subsection (c) of this section or pay the fee required in subsection (b) of
this section or the overweight penalty required by paragraph (1) of this
subsection in full, is liable for a late filing penalty of 10% of the sum of
the fee amount due and the total overweight penalty amount due.
(h) Enforcement provisions. Tax
Code, Title 2, Subtitles A and B, apply to the comptroller's administration,
collection, and enforcement of Health and Safety Code, §
436.103.
(1) Compliance inspections by the
comptroller. The comptroller may conduct periodic inspections of plant
operations to ensure compliance with the provisions of this section.
(2) Weighing oyster containers. During
compliance inspections, the comptroller may weigh all oyster containers in the
certified shellfish dealer's possession or use a projection method to determine
the number of overweight oyster containers. Containers that weigh more than 110
pounds are overweight and are subject to an overweight penalty. The projection
method consists of weighing a portion of oyster containers in the certified
shellfish dealer's storage facility or offloading facility. The penalty amount
is calculated and assessed based on the percentage of total containers that are
overweight. The percentage is determined by dividing the total number of
containers that are overweight by the total number of containers weighed. For
example, if 15 containers are weighed and five of the 15 are overweight, the
comptroller will project that 33% of all oyster containers in the dealer's
possession at the time of the inspection are overweight.
(3) Past due fees and penalties. The
comptroller may certify to the Texas Department of State Health Services that a
fee, overweight penalty, or late filing penalty is past due. On certification
from the comptroller, the Texas Department of State Health Services may suspend
the shellfish certificate of the certified shellfish dealer until the fee,
overweight penalty, or late filing penalty is paid in full.
(4) Refusal to pay past due fees and
penalties. The comptroller may certify to the Texas Department of State Health
Services that a certified shellfish dealer refuses to pay a fee, overweight
penalty, or late filing penalty after written demand by the comptroller. On
certification from the comptroller, the Texas Department of State Health
Services may revoke the shellfish certificate of a certified shellfish dealer
who refuses to pay a fee, overweight penalty, or late filing penalty.
(i) Interest. Interest due on
delinquent fees or overweight penalties shall be imposed as provided by Tax
Code, §
111.060.
(j) Records required.
(1) A certified shellfish dealer must keep
all invoices, purchase contracts, installment or credit agreements, and any
other records relating to harvesting, purchasing, handling, storing, packing,
labeling, unloading at dockside, or holding oysters taken from Texas waters for
at least four years after the date each report is filed with the
comptroller.
(2) Any person liable
for the oyster sales fee must make the person's records or equipment available
to the comptroller or the comptroller's representative for examination to
verify the accuracy of any report made or to determine the fee liability if no
report is filed.
Notes
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