PART 3. TEXAS ALCOHOLIC BEVERAGE COMMISSION
SUBCHAPTER B. LICENSE AND PERMIT SURCHARGES
The Texas Alcoholic Beverage Commission (commission) proposes to amend §33.23, relating to the surcharges assessed for permits and licenses issued by the commission. The commission also proposes two new sections. Proposed new §33.25 relates to the implementation of two-year licenses and permits issued by the commission. Proposed new §33.26 relates to the fee for a manufacturer's agent's warehousing permit.
The proposed amendments to §33.23 add surcharges for the following new permit types: direct shipper's permit, manufacturer's agent's warehousing permit, out-of-state wine only package store permit and promotional permit. The commission is required by §5.50 of the Texas Alcoholic Beverage Code (code) to assess a surcharge on each application for an original or renewal permit issued by the commission in addition to a fee set by the code or by rule.
The proposed new §33.25 reflects the timeline for the commission's implementation of two-year licenses and permits. The commission is required by §11.09 and §61.03 of the code to issue a permit or license that will expire on the second anniversary of the date on which it is issued. The code sections do, however, provide that the commission may issue a license or permit for less than two years to maintain a reasonable annual distribution of review work and fees. The commission has proposed a schedule that will provide for a graduated implementation of two-year licenses to allow the commission to maintain a reasonable distribution of work and fees over the implementation period. The initial implementation will begin on October 1, 2008, and end on September 1, 2009.
The proposed new §33.26 establishes a fee of $750.00 for a manufacturer's agent's warehousing permit issued under Chapter 55 of the code. No fee for the permit is established under the chapter. Section 5.50 provides the commission with authority to set a fee by rule if no statutory fee is established.
Charlie Kerr, Chief Financial Officer, has determined that for each fiscal year of the first five years the amended and new sections are in effect, there will be fiscal implications to the state as a result of enforcing or administering the sections as proposed.
Specifically, for each of the first five years proposed amended §33.23 is in effect, the commission will collect approximately $116,824.00 in surcharges for the new permits issued. These additional revenues will offset the increased costs associated with regulation of the new permittees by the commission.
For each of the first five years that proposed new §33.26 is in effect, the commission will collect approximately $1,500.00 in fees for the new permits issued. These additional revenues will offset the increased costs associated with regulation of the new permittees by the commission.
For the first year (FY 2009) the proposed new §33.25 is in effect, the state will collect approximately $61,176,953.00 in fees and surcharges. This is an increase over fees and surcharges collected in FY 2007 of $14,440,122.00 as a result of the doubling of fees and surcharges for two-year permits and licenses under subsections (c) and (d) of the new rule. In the second year (FY 2010) after the proposed rule is in effect, the state will collect approximately $57,679,812.00 in fees and surcharges. This is an increase over fees and surcharges collected in FY 2007 of $10,942,981.00 as a result of the doubling of the fees and surcharges for two-year permits and licenses under subsection (e) of the new rule. In the third year (FY 2011) the proposed new rule is in effect, when all permits and licenses will be issued for a two-year period, the state will collect approximately $44,129,228, in fees and surcharges. This is a decrease of approximately $2,607,603.00 from the fees and surcharges collected in FY 2007. In the fourth (FY 2012) and fifth (FY 2013) years that the proposed new rule is in effect, it is expected that the estimates for the second and third years will repeat and remain fairly constant after all permits and licenses are issued for a two-year term.
Local governments are authorized by §11.38 and §61.36 to collect one-half of the state fee for each license or permit issued within the jurisdictional limits of the city or county. The implementation of the two-year term for a license or permit will have an impact on local government similar to that on state government, however, the commission is unable to collect information sufficient to accurately estimate the impact on local government.
Mr. Kerr has determined that for the first five years that proposed amended §33.23 is in effect, there will be a fiscal impact on small or micro-businesses. Each small or micro-business applying for a permit will be required to pay the assessed surcharge. Small or micro-businesses applying for a direct shipper's or promotional permit will be required to pay $160.00 per year for the first one-year permit and $320.00 for each two-year permit issued thereafter. Small and micro-businesses applying for a manufacturer's agent's warehousing permit will be required to pay $277.00 for the first one-year permit and $554.00 for each two-year permit issued thereafter. A small or micro-business applying for an out-of-state wine only package store permit will be required to pay $277.00 for the first one-year permit and $554.00 for each two-year permit issued thereafter. The fiscal impact on individuals who are required to pay a surcharge under the rule will be the same as that of small and micro-businesses.
Mr. Kerr has determined that for the first five years that proposed new §33.26 is in effect, there will be no fiscal impact on small or micro-businesses. Individuals and entities applying for the manufacturer's agent's warehousing permit will be required to pay the $750.00 fee. It is expected that the number of permits issued will be nominal.
Mr. Kerr has also determined that for the first five years that proposed new §33.25 is in effect, there will be a fiscal impact on small or micro-businesses. Although the fees have not been increased, under the new section a small or micro-business will be required to pay double the amount of fees and surcharges at the time of application for a two-year permit or license. This impact will, however, be offset in the second year of the permit or license because there will be no time or cost of preparing and submitting a renewal application and no fee or surcharge will be due.
Sherry Cook, Assistant Administrator, has determined that for each of the first five years that amended §33.23 and proposed new §33.26 are in effect, it is anticipated that the public will benefit because the persons and entities regulated will bear the cost, including indirect administrative costs, of regulation by the commission.
Ms. Cook has also determined that for each of the first five years that proposed new §33.25 is in effect, it is anticipated that the public will benefit. After the two-year permit and licensing process is fully implemented, it is anticipated that permits and licenses will be reviewed and processed more efficiently, and the cost and expense to persons applying for a license or permit will be reduced.
Comments on the proposed amendments and new rules may be addressed to Lou Bright, General Counsel, Texas Alcoholic Beverage Commission, P.O. Box 13127, Austin, Texas 78711. Comments will be accepted for 30 days following publication of the proposed amended rule and proposed new rules in the Texas Register.
The proposed amendments to §33.23 are authorized by §5.50 of the Texas Alcoholic Beverage Code, which provides the Texas Alcoholic Beverage Commission with authority to establish and assess surcharges by rule. The proposed new §33.25 is authorized by §§5.50, 11.09 and 61.03 of the Texas Alcoholic Beverage Code, which provide the commission with authority to issue a license or permit for a two-year term. The proposed new §33.26 is authorized by Chapter 55 and §5.50 of the code; Chapter 55 creates the permit type and §5.50 provides the commission with authority to adopt a fee if one is not established by statute.
Cross Reference: §§5.31, 5.50, 11.09, 61.03 and Chapter 55 of the Alcoholic Beverage Code are affected by the proposed amendments to an existing rule and the proposed new rules.
§33.23.Alcoholic Beverage License and Permit Surcharges.
(a) An annual [A] surcharge of
all original or renewal permit or license fees set by the Texas Alcoholic
Beverage Code shall be levied against license and permit holders as
follows:
(1) The surcharge shall apply to each brewpub licensed under Texas Alcoholic Beverage Code, Chapter 74, even though one or more are licensed under the same general management or ownership.
(2) An organization which meets the requirements for exemption from a private club registration permit under the Texas Alcoholic Beverage Code §32.11, is also exempt from the surcharge.
(b) The surcharges shall be due and payable at the same time and in the same place and manner as the original or renewal permit, certificate, or license fee to which the surcharges apply.
(c) Failure or refusal to timely pay the license, certificate or permit surcharge shall be considered the same as failure to timely pay the original or renewal certificate, permit or license fee and the same penalties will apply.
[(d) The amount of surcharge
due shall be determined by the issue date of the permit or license
and the surcharge in effect under this rule on the issue date of that
license or permit.]
[(e) This section shall take effect October 1, 2005.]
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on June 27, 2008.
TRD-200803379
Alan Steen
Administrator
Texas Alcoholic Beverage Commission
Earliest possible date of adoption: August 10, 2008
For further information, please call: (512) 206-3204
The proposed amendments to §33.23 are authorized by §5.50 of the Texas Alcoholic Beverage Code, which provides the Texas Alcoholic Beverage Commission with authority to establish and assess surcharges by rule. The proposed new §33.25 is authorized by §§5.50, 11.09 and 61.03 of the Texas Alcoholic Beverage Code, which provide the commission with authority to issue a license or permit for a two-year term. The proposed new §33.26 is authorized by Chapter 55 and §5.50 of the code; Chapter 55 creates the permit type and §5.50 provides the commission with authority to adopt a fee if one is not established by statute.
Cross Reference: §§5.31, 5.50, 11.09, 61.03 and Chapter 55 of the Alcoholic Beverage Code are affected by the proposed amendments to an existing rule and the proposed new rules.
§33.25.Alcoholic Beverage License and Permit Fees and Surcharges.
(a) This rule implements the provisions of §§5.50, 11.09 and 61.03 of the Texas Alcoholic Beverage Code (Code). Section 5.50 authorizes the Texas Alcoholic Beverage Commission (commission) by rule to assess surcharges on all applicants for original or renewal certificate, permit, or license issued by the commission. Sections 11.09 and 61.03 of the Code authorize the commission to issue a license or permit for a two-year term and double the amount of the fees established for each license or permit by the Code or a rule of the commission, and surcharges established in §33.23 of this chapter (relating to Alcoholic Beverage License and Permit Surcharge).
(b) Implementation Plan. To maintain a reasonable annual distribution of renewal application review work and permit fees, the commission will implement the two-year licensing schedule based on the type of permit or license type for which an application is submitted.
(c) An original or renewal application for a permit or license listed in the following chart, with an issue date before October 1, 2008, will expire one year from the date the license or permit is issued. An original or renewal application for a permit or license listed in the following chart, with an issue date on or after October 1, 2008, will expire two years from the date the license or permit is issued.
(d) An original or renewal application for a primary permit or license listed in the following chart, with an issue date before January 1, 2009, will expire one year from the date the license or permit is issued. An original or renewal application for a primary permit or license listed in the following chart, with an issue date on or after January 1, 2009, will expire two years from the date the license or permit is issued.
(e) An original or renewal application for a primary permit or license listed in the following chart, with an issue date before September 1, 2009, will expire one year from the date the license or permit is issued. An original or renewal application for a primary permit or license listed in the following chart, with an issue date on or after September 1, 2009, will expire two years from the date the license or permit is issued.
(f) The following permits and licenses are time limited and the fees and surcharges are assessed each time a permit or license is issued.
(g) A secondary permit or license which requires the holder to first obtain another permit, including a late hours permit, expires on the same date as the primary permit expires. A temporary permit or license expires on the date indicated on the license or permit or the same date as the primary permit, whichever occurs earlier. The fees for a secondary or temporary permit or license may not be prorated or refunded.
§33.26.Manufacturer's Agent's Warehousing Permit Fee.
The annual fee for a manufacturer's agent's warehousing permit under Chapter 55 of the Alcoholic Beverage Code shall be $750.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on June 27, 2008.
TRD-200803380
Alan Steen
Administrator
Texas Alcoholic Beverage Commission
Earliest possible date of adoption: August 10, 2008
For further information, please call: (512) 206-3204