Sec. 26.3574. FEE ON DELIVERY OF CERTAIN PETROLEUM PRODUCTS

(a) In this section:

(1) "Bulk facility" means a facility, including pipeline terminals, refinery terminals, rail and barge terminals, and associated underground and aboveground tanks, connected or separate, from which petroleum products are withdrawn from bulk and delivered into a cargo tank or a barge used to transport those products. This term does not include petroleum products consumed at an electric generating facility.

(2) "Cargo tank" means an assembly that is used for transporting, hauling, or delivering liquids and that consists of a tank having one or more compartments mounted on a wagon, truck, trailer, railcar, or wheels.

(3) "Withdrawal from bulk" means the removal of a petroleum product from a bulk facility storage tank for delivery directly into a cargo tank or a barge to be transported to another location other than another bulk facility for distribution or sale in this state.

(b) A fee is imposed on the delivery of a petroleum product on withdrawal from bulk of that product as provided by this subsection. Each operator of a bulk facility on withdrawal from bulk of a petroleum product shall collect from the person who orders the withdrawal a fee in an amount determined as follows:

(1) not more than $3.75 for each delivery into a cargo tank having a capacity of less than 2,500 gallons;

(2) not more than $7.50 for each delivery into a cargo tank having a capacity of 2,500 gallons or more but less than 5,000 gallons;

(3) not more than $11.75 for each delivery into a cargo tank having a capacity of 5,000 gallons or more but less than 8,000 gallons;

(4) not more than $15.00 for each delivery into a cargo tank having a capacity of 8,000 gallons or more but less than 10,000 gallons; and

(5) not more than $7.50 for each increment of 5,000 gallons or any part thereof delivered into a cargo tank having a capacity of 10,000 gallons or more.

(b-1) The commission by rule shall set the amount of the fee in Subsection (b) in an amount not to exceed the amount necessary to cover the agency's costs of administering this subchapter, as indicated by the amount appropriated by the legislature from the petroleum storage tank remediation account for that purpose.

(c) The fee collected under Subsection (b) of this section shall be computed on the net amount of a petroleum product delivered into a cargo tank.

(d) A person who imports a petroleum product in a cargo tank or a barge destined for delivery into an underground or aboveground storage tank, regardless of whether or not the tank is exempt from regulation under Section 26.344 of this code, other than a storage tank connected to or part of a bulk facility in this state, shall pay to the comptroller a fee on the number of gallons imported, computed as provided by Subsections (b) and (c) of this section. If a bulk facility operator imports a petroleum product in a cargo tank or a barge, the bulk facility operator is not required to pay the fee on that imported petroleum product if the petroleum product is delivered to a bulk facility from which the petroleum product will be withdrawn from bulk.

(e) A bulk facility operator who receives petroleum products on which the fee has been paid may take credit for the fee paid on monthly reports.

(f) Subsection (b) of this section does not apply to a delivery of a petroleum product destined for export from this state if the petroleum product is in continuous movement to a destination outside this state.

(g) Each operator of a bulk facility and each person covered by Subsection (d) of this section shall file an application with the comptroller for a permit to deliver a petroleum product into a cargo tank destined for delivery to an underground or aboveground storage tank, regardless of whether or not the tank is exempt from regulation under Section 26.344 of this code. A permit issued by the comptroller under this subsection is valid on and after the date of its issuance and until the permit is surrendered by the holder or canceled by the comptroller. An applicant for a permit issued under this subsection must use a form adopted or approved by the comptroller that contains:

(1) the name under which the applicant transacts or intends to transact business;

(2) the principal office, residence, or place of business in this state of the applicant;

(3) if the applicant is not an individual, the names of the principal officers of an applicant corporation, or the name of the member of an applicant partnership, and the office, street, or post office address of each; and

(4) any other information required by the comptroller.

(h) A permit must be posted in a conspicuous place or kept available for inspection at the principal place of business of the owner. A copy of the permit must be kept at each place of business or other place of storage from which petroleum products are delivered into cargo tanks and in each motor vehicle used by the permit holder to transport petroleum products by him for delivery into petroleum storage tanks in this state.

(i) Each operator of a bulk facility and each person covered by Subsection (d) of this section shall:

(1) list, as a separate line item on an invoice or cargo manifest required under this section, the amount of the delivery fee due under this section; and

(2) on or before the 25th day of the month following the end of each calendar month, file a report with the comptroller and remit the amount of fees required to be collected or paid during the preceding month.

(j) Each operator of a bulk facility or his representative and each person covered by Subsection (d) of this section shall prepare the report required under Subsection (i) of this section on a form provided or approved by the comptroller.

(k) The cargo manifests or invoices or copies of the cargo manifests or invoices and any other records required under this section or rules of the comptroller must be maintained for a period of four years after the date on which the document or other record is prepared and be open for inspection by the comptroller at all reasonable times.

(l) As provided by the rules of the comptroller, the owner or lessee of a cargo tank or a common or contract carrier transporting a petroleum product shall possess a cargo manifest or an invoice showing the delivery point of the product, the amount of the required fee, and other information as required by rules of the comptroller.

(m) The comptroller shall adopt rules necessary for the administration, collection, reporting, and payment of the fees payable or collected under this section.

(n) A person who fails to file a report as provided by Subsection (i) of this section or who possesses a fee collected or payable under this section and who fails to remit the fee to the comptroller at the time and in the manner required by this section and rules of the comptroller shall pay a penalty of five percent of the amount of the fee due and payable. If the person fails to file the report or pay the fee before the 30th day after the date on which the fee or report is due, the person shall pay a penalty of an additional five percent of the amount of the fee due and payable.

(o) Chapters 101 and 111-113, and Sections 162.005, 162.007, and 162.111(b)-(k), Tax Code, apply to the administration, payment, collection, and enforcement of fees under this section in the same manner that those chapters apply to the administration, payment, collection, and enforcement of taxes under Title 2, Tax Code.

(p) The comptroller may add a penalty of 75 percent of the amount of the fee, penalty, and interest due if failure to file the report or pay the fee when it comes due is attributable to fraud or an intent to evade the application of this section or a rule made under this section or Chapter 111, Tax Code.

(q) The comptroller may require a bond or other security from a permittee and may establish the amount of the bond or other security.

(r) A person forfeits to the state a civil penalty of not less than $25 nor more than $200 if the person:

(1) refuses to stop and permit the inspection and examination of a motor vehicle transporting petroleum products on demand of a peace officer or the comptroller;

(2) fails or refuses to comply with or violates a provision of this section; or

(3) fails or refuses to comply with or violates a comptroller's rule for administering or enforcing this section.

(s) A person commits an offense if the person:

(1) refuses to stop and permit the inspection and examination of a motor vehicle transporting petroleum products on the demand of a peace officer or the comptroller;

(2) makes a delivery of petroleum products into cargo tanks on which he knows the fee is required to be collected, if at the time the delivery is made he does not hold a valid permit issued under this section;

(3) makes a delivery of petroleum products imported into this state on which he knows a fee is required to be collected, if at the time the delivery is made he does not hold a valid permit issued under this section;

(4) refuses to permit the comptroller or the attorney general to inspect, examine, or audit a book or record required to be kept by any person required to hold a permit under this section;

(5) refuses to permit the comptroller or the attorney general to inspect or examine any plant, equipment, or premises where petroleum products are stored or delivered into cargo tanks;

(6) refuses to permit the comptroller or the attorney general to measure or gauge the contents of or take samples from a storage tank or container on premises where petroleum products are stored or delivered into cargo tanks;

(7) is required to hold a permit under this section and fails or refuses to make or deliver to the comptroller a report required by this section to be made and delivered to the comptroller;

(8) refuses, while transporting petroleum products, to stop the motor vehicle he is operating when called on to do so by a person authorized to stop the motor vehicle;

(9) transports petroleum products for which a cargo manifest is required to be carried without possessing or exhibiting on demand by an officer authorized to make the demand a cargo manifest containing the information required to be shown on the manifest;

(10) mutilates, destroys, or secretes a book or record required by this section to be kept by any person required to hold a permit under this section;

(11) is required to hold a permit under this section or is the agent or employee of that person and makes a false entry or fails to make an entry in the books and records required under this section to be made by the person;

(12) transports in any manner petroleum products under a false cargo manifest;

(13) engages in a petroleum products transaction that requires that the person have a permit under this section without then and there holding the required permit;

(14) makes and delivers to the comptroller a report required under this section to be made and delivered to the comptroller, if the report contains false information;

(15) forges, falsifies, or alters an invoice or manifest prescribed by law; or

(16) fails to remit any fees collected by any person required to hold a permit under this section.

(t) The following criminal penalties apply to the offenses enumerated in Subsection (s) of this section:

(1) an offense under Subdivision (1) is a Class C misdemeanor;

(2) an offense under Subdivisions (2) through (7) is a Class B misdemeanor;

(3) an offense under Subdivisions (8) and (9) is a Class A misdemeanor;

(4) an offense under Subdivisions (10) through (15) is a felony of the third degree;

(5) an offense under Subdivision (16) is a felony of the second degree; and

(6) violations of three or more separate offenses under Subdivisions (10) through (15) committed pursuant to one scheme or continuous course of conduct may be considered as one offense and are punished as a felony of the second degree.

(u) The court may not fine a corporation or association under Section 12.51(c), Penal Code, unless the amount of the fine under that subsection is greater than the amount that could be fixed by the court under Section 12.51(b), Penal Code.

(v) In addition to a sentence imposed on a corporation, the court shall give notice of the conviction to the attorney general as required by Article 17A.09, Code of Criminal Procedure.

(w) The comptroller shall deduct two percent of the amount collected under this section as the state's charge for its services and shall credit the amount deducted to the general revenue fund. The balance of the fees, penalties, and interest collected by the comptroller shall be deposited in the state treasury to the credit of the petroleum storage tank remediation account.

(x) The commission shall report to the Legislative Budget Board at the end of each fiscal quarter on the financial status of the petroleum storage tank remediation account.

Added by Acts 1989, 71st Leg., ch. 228, Sec. 17, eff. May 31, 1989. Amended by Acts 1995, 74th Leg., ch. 315, Sec. 13, eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 333, Sec. 26, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 1442, Sec. 2, eff. Sept. 1, 1999; Acts 2001, 77th Leg., ch. 965, Sec. 14.09, eff. Sept. 1, 2001; Acts 2001, 77th Leg., ch. 1135, Sec. 9, eff. Sept. 1, 2001. Amended by: Acts 2005, 79th Leg., Ch. 899 , Sec. 5.05, eff. September 1, 2005. Acts 2007, 80th Leg., R.S., Ch. 1109 , Sec. 3, eff. August 27, 2007. Acts 2009, 81st Leg., R.S., Ch. 1227 , Sec. 40, eff. September 1, 2009. Acts 2011, 82nd Leg., R.S., Ch. 1021 , Sec. 4.19, eff. September 1, 2011.