(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.

Source Note: The provisions of this §3.1261 adopted to be effective December 25, 2000, 25 TexReg 12811; amended to be effective September 5, 2006, 31 TexReg 7134