| (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The fee is assessed when petroleum products are withdrawn from the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net temperature corrected quantity of product withdrawn.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withdrawn from the facility.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.
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| Source Note: The provisions of this §3.151 adopted to be effective December 5, 1996, 21 TexReg 11493; amended to be effective September 22, 1999, 24 TexReg 7766; amended to be effective October 17, 2001, 26 TexReg 8191; amended to be effective June 3, 2004, 29 TexReg 5411; amended to be effective April 13, 2005, 30 TexReg 2078; amended to be effective January 29, 2006, 31 TexReg 404; amended to be effective November 27, 2007, 32 TexReg 8520; amended to be effective August 6, 2012, 37 TexReg 5815 |
