34 Tex. Admin. Code § 3.151 - Imposition, Collection, and Bonds or Other Security of the Fee
(a) The Texas Petroleum Products Delivery Fee
is imposed, collected, and paid to the state by operators of bulk facilities.
The fee is assessed when petroleum products are withdrawn from the bulk
facility and delivered into a cargo tank or barge or imported into this state
in a cargo tank or barge for delivery to another location for distribution or
sale. The fee is not assessed when the fuel is destined for delivery to another
bulk facility, an electrical generating plant, a common carrier railroad for
its exclusive use, or is to be exported from the state prior to being placed
into intermediate storage tanks.
(b) For the purposes of this section,
withdrawals from a bulk facility into a cargo tank or barge are not subject to
the fee when the entire withdrawal is delivered into the fuel supply tanks of
vessels or boats prior to being placed into intermediate storage
tanks.
(c) The fee is collected by
the operator of a bulk facility from the person ordering the withdrawal. The
fee is set by the Texas Commission on Environmental Quality subject to Water
Code, §
26.3574(b-1).
(d) In determining the amount of fee due for
motor gasoline, other alcohol blended fuels, and aviation gasoline, each net
temperature corrected withdrawal of 7,000 gallons or more but less than 10,000
gallons shall be presumed to have been a delivery into a cargo tank having a
capacity of 8,000 gallons or more but less than 10,000 gallons.
(e) In determining the amount of fee due on
all withdrawals not covered by subsection (d) of this section, it shall be
presumed that the capacity of the cargo tank or barge is equal to the total net
temperature corrected quantity of product withdrawn.
(f) For the purposes of this section, a bulk
facility is a refinery terminal or any other terminal or facility which
receives petroleum products by pipeline, rail, or barge, and delivers the
products into a cargo tank or barge.
(g) For the purposes of this section, the
operator of a bulk facility is the person who first invoices petroleum products
withdrawn from the facility. An exchange statement is not considered an
invoice.
(h) For the purposes of
this section, an electrical generating facility is a plant operated for the
primary purpose of generating electricity for sale to consumers.
(i) Persons exempt from the petroleum
products delivery fee, including persons operating barges who make withdrawals
from a permitted bulk facility for delivery into the fuel supply tanks of
vessels or boats prior to intermediate storage, shall request in writing a
letter of exemption from the comptroller. The letter of exemption issued by the
comptroller, or a copy, must be furnished to the seller each time purchases
exempt from the petroleum products delivery fee are made.
(j) If the person making the sale to the
exempt purchaser does not hold a petroleum products delivery fee permit, the
purchaser must also furnish to the seller a statement listing the date of
purchase, number of gallons purchased per delivery, and destination of the
product. For the seller to receive credit for exempt sales, this documentation
must be presented to the permitted bulk facility from which the product was
purchased.
(k) As an alternative to
subsection (j) of this section, an exempt purchaser may elect to seek refund
directly from the comptroller. When an exempt purchaser elects to use this
option, the purchaser must use this option with the vendor for all petroleum
products purchased during the refund claim period for which the fee has been
paid. The exempt purchaser must furnish to the comptroller:
(1) a letter declaring that the exempt
purchaser did not provide the seller with a comptroller issued petroleum
products delivery fee exemption letter and will not seek a refund from the
seller or bulk facility from which the petroleum products were
withdrawn;
(2) a copy of the
comptroller issued petroleum products delivery fee exemption letter;
(3) documentation showing that the petroleum
products delivery fee was paid; and
(4) any other information the comptroller
deems necessary to validate the refund.
(l) The amount of the petroleum products
delivery fee must be listed as a separate item on the invoice or cargo manifest
issued by the person holding a permit to collect the fee upon the withdrawal of
product from a bulk facility.
(m)
Only persons who hold a petroleum products delivery fee permit may charge and
collect the fee on the basis of the bracket system established by the Texas
Commission on Environmental Quality. No other persons selling fuel may list the
fee as a separate item on invoices or manifest except:
(1) when required to do so by another
governmental agency; or
(2) when an
amount is clearly identified as reimbursement. An amount collected as
reimbursement may not exceed the amount of fee actually paid by the person
issuing the manifest or invoice.
(n) The comptroller may require a bulk
facility operator to post a bond or other security to protect the revenues of
the state.
(o) When determining the
security required of a bulk facility operator, the comptroller will take into
consideration the amount of fee that has or is expected to become due from the
person, any past history of the person as a distributor or supplier of fuel,
and the necessity to protect the state against the failure to pay the fee as it
becomes due.
(p) The comptroller
may require a bond equal to two times the highest amount of fees that will
accrue during a reporting period. The minimum bond is $30,000. The maximum bond
is $600,000 unless the comptroller believes there is undue risk of loss of fee
revenues, in which event he may require one or more bond or securities in a
total amount exceeding $600,000.
(q) If the comptroller determines that a bulk
facility operator has for four consecutive years continuously complied with the
conditions of the bond or other security on file, the operator is entitled on
request to have the comptroller return, refund, or release the bond or
security. However, if the comptroller determines that the revenues of the state
would be jeopardized by the return, refund, or release of the bond or security,
the comptroller may elect not to return, refund, or release the bond or
security. The comptroller may reimpose a requirement of a bond or other
security if necessary to protect the revenues of the state.
(r) A bond must be a continuing instrument,
must constitute a new and separate obligation in the penal sum named in the
bond for each calendar year or portion of a year while the bond is in force,
and must remain in effect until the surety on the bond is released and
discharged.
(s) In lieu of filing a
surety bond, an applicant for a permit may substitute the following security:
(1) cash in the form of United States
currency in an amount equal to the required bond, to be deposited in the
suspense account of the state treasury;
(2) an assignment to the comptroller of a
certificate of deposit in any bank or savings and loan association in Texas
that is a member of the FDIC in an amount equal to the bond amount required;
or
(3) an irrevocable letter of
credit to the comptroller from any bank or savings and loan association in
Texas that is a member of the FDIC in an amount of credit at least equal to the
bond amount required.
(t) If the amount of an existing bond becomes
insufficient or a security becomes unsatisfactory or unacceptable, the
comptroller may require the filing of a new or of an additional bond or
security.
(u) No surety bond or
other form of security may be released until it is determined by examination or
audit that no fee, penalty, or interest liability exists. The cash or
securities shall be released within 60 days after the comptroller determines
that no liability exists.
(v) The
comptroller may use the cash or certificate of deposit security to satisfy a
final determination of delinquent liability or a judgment secured in any action
by this state to recover fees, cost, penalties, and interest found to be due
this state by a person in whose behalf the cash or certificate security was
deposited.
(w) A surety on a bond
furnished by a permittee shall be released and discharged from liability to the
state accruing on the bond after the expiration of 30 days after the date on
which the surety files with the comptroller a written request to be released
and discharged. The request does not relieve, release, or discharge the surety
from a liability already accrued, or that accrues before the expiration of the
30-day period. Promptly after receipt of the request, the comptroller shall
notify the permittee who furnished the bond, and unless the permittee, before
the expiration date of the existing security, files with the comptroller a
satisfactory new bond or other security, the comptroller shall cancel the
permit.
(x) The comptroller shall
notify immediately the issuer of a letter of credit of a final determination of
the bulk facility operator's delinquent liability or a judgment secured in any
action by this state to recover fees, cost, penalties, and interest found to be
due this state by a bulk facility operator in whose behalf the letter of credit
was issued. A letter of credit accepted as security shall contain a statement
that the issuer agrees to respond to the comptroller's notice of liability with
amounts sufficient to satisfy the comptroller's delinquency claim against the
bulk facility operator.
(y) An
examination or audit may be requested to obtain release of the security when
the permit holder relinquishes the permit or desires to substitute one form of
security for an existing one.
Notes
State regulations are updated quarterly; we currently have two versions available. Below is a comparison between our most recent version and the prior quarterly release. More comparison features will be added as we have more versions to compare.
No prior version found.