Texas 2011 bill text

HB 2114

The following text was found at http://www.capitol.state.tx.us/tlodocs/82R/billtext/html/HB02114I.htm
The corresponding Senate Bill (SB 1119) can be found at http://www.capitol.state.tx.us/tlodocs/82R/billtext/html/SB01119I.htm

A BILL TO BE ENTITLED
	AN ACT
	relating to beverage container deposits and recycling; providing
	penalties.
	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
	SECTION 1.  Subtitle B, Title 5, Health and Safety Code, is
	amended by adding Chapter 376 to read as follows:
	CHAPTER 376. TEXAS CONTAINER RECYCLING INITIATIVE
	SUBCHAPTER A.  GENERAL PROVISIONS
	Sec. 376.001.  DEFINITIONS.  In this chapter:
	(1)  "Beverage" means an alcoholic, nonalcoholic,
	carbonated, or noncarbonated drink prepared in liquid,
	ready-to-drink form and intended for human consumption. The term
	includes:
	(A)  beer;
	(B)  ale;
	(C)  malt liquor;
	(D)  other drinks produced by fermenting malt;
	(E)  spirits;
	(F)  wine;
	(G)  wine coolers;
	(H)  soda;
	(I)  water, including mineral water;
	(J)  carbonated water, including carbonated
	mineral water;
	(K)  carbonated soft drinks;
	(L)  noncarbonated soft drinks and sport drinks;
	(M)  noncarbonated fruit drinks;
	(N)  energy drinks;
	(O)  coffee and tea drinks; and
	(P)  carbonated fruit drinks.
	(2)  "Beverage container" means a glass, metal, or
	plastic vessel that is hermetically sealed or capped and that
	contains a beverage at the time it is sold or offered for sale.
	(3)  "Consumer" means a person who purchases a beverage
	in a beverage container for the person's own use or consumption.
	The term includes a lodging, eating, or drinking establishment if
	beverages are generally consumed on the establishment's premises
	and does not include a person who purchases the beverage from the
	establishment for consumption on the premises.
	(4)  "Convenience redemption zone" means:
	(A)  the one-half-mile radius around a retail
	dealer with at least $2 million in food-related sales each year who
	is located in a municipality with a population of more than 50,000;
	or
	(B)  the two-mile radius around a retail dealer
	with at least $2 million in food-related sales each year who is not
	located in a municipality described by Paragraph (A).
	(5)  "Distributor" means a person who distributes
	beverages in beverage containers to retail dealers.
	(6)  "Infant formula" means any liquid food sold as an
	alternative for human milk for the feeding of infants.
	(7)  "Medical food" means a food or beverage that is
	formulated to be consumed or administered under the supervision of
	a physician and that is intended for specific dietary management of
	diseases or health conditions for which distinctive nutritional
	requirements, based on recognized scientific principles, are
	established by medical evaluation. The term also includes any
	product that meets the definition of "medical food" under Section
	5(b)(3), the Food, Drug, and Cosmetic Act (21 U.S.C. Section
	360ee).
	(8)  "Redemption center" means an operation approved by
	the commission to redeem beverage containers under this chapter and
	includes a manned operation or a mechanical device that accepts
	empty beverage containers and issues a cash refund or a redeemable
	credit slip with a value not less than the container's refund value.
	(9)  "Refund" means a payment by a redemption center
	under Section 376.201 to a person who presents a beverage container
	at the redemption center.
	(10)  "Retail dealer" means a person who sells a
	beverage in a beverage container to a consumer.
	Sec. 376.002.  ADMINISTRATION AND RULES.  (a)  The
	comptroller shall establish and administer the Texas container
	recycling initiative in accordance with this chapter.
	(b)  In administering the Texas container recycling
	initiative, the comptroller shall:
	(1)  approve redemption centers under Section 376.152;
	(2)  enforce compliance with the provisions of this
	chapter;
	(3)  administer the infrastructure improvement grant
	program under Section 376.003;
	(4)  develop and implement a marketing plan to provide
	information and educate consumers about the initiative;
	(5)  conduct any audit of the initiative the
	comptroller determines is necessary;
	(6)  develop an operating budget for the initiative;
	(7)  ensure the solvency of the initiative's account;
	(8)  develop a system for reimbursement of deposits and
	refunds and for distribution of handling fees;
	(9)  develop a system for monitoring the number of
	containers sold by distributors and the number of containers
	returned to redemption centers and curbside recycling centers;
	(10)  develop a system for covering the start-up costs
	of the initiative as described by Section 376.105;
	(11)  administer the Texas container recycling
	initiative account as provided by Section 376.104; and
	(12)  adopt rules and forms necessary to implement this
	chapter.
	Sec. 376.003.  INFRASTRUCTURE IMPROVEMENT GRANT PROGRAM.
	(a) The comptroller shall develop and administer a program to
	provide grants from money in the Texas container recycling
	initiative account to ensure sufficient infrastructure is
	available to increase the state recycling rate by expanding
	curbside recycling programs, municipal recycling facilities, and
	independent redemption centers.
	(b)  The total amount of money available each year under the
	grant program may not exceed five percent of the money available in
	the account.
	(c)  The comptroller may adopt guidelines to allow a regional
	planning commission, council of governments, or similar regional
	planning agency created under Chapter 391, Local Government Code,
	to apply for and receive a grant to improve the ability of the
	program to achieve its goals.
	(d)  A recipient of a grant under this section must return
	any unexpended grant money to the comptroller for redeposit into
	the account.
	(e)  A project funded by a grant under this section must
	promote cooperation between public and private entities and may not
	be used to create a competitive advantage over a private industry
	that provides recycling services.
	(f)  Not later than September 1 of each year, an entity
	receiving a grant under this section must submit a report to the
	comptroller detailing the use of the grant money. The comptroller
	shall include this information in its report to the legislature
	under 376.005.
	(g)  An application for a grant under this section must be
	made on a form provided by the comptroller and must contain the
	information required by the comptroller.
	(h)  This section expires when the state recycling rate
	reaches 65 percent, as determined by the comptroller.
	Sec. 376.004.  CRIMINAL PENALTIES. A person commits an
	offense if the person knowingly violates Section 376.051, 376.101,
	376.102, or 376.201. An offense under this section is a Class C
	misdemeanor.
	Sec. 376.005.  REPORT TO LEGISLATURE.  Not later than
	November 1 of each year, the comptroller shall submit a report to
	the governor, lieutenant governor, speaker of the house of
	representatives, and committee in each house of the legislature
	that has primary jurisdiction over environmental matters about the
	progress and success of the Texas container recycling initiative
	established under this chapter.
	[Sections 376.006-376.050 reserved for expansion]
	SUBCHAPTER B. REFUND VALUE AND LABELING OF BEVERAGE CONTAINERS
	Sec. 376.051.  REFUND VALUE AND LABEL REQUIRED.  (a)  Except
	as provided by Subsection (b), a person may not sell or offer for
	sale in this state a beverage container unless the container:
	(1)  has:
	(A)  a fluid capacity of less than 24 ounces and a
	refund value of five cents; or
	(B)  a fluid capacity of at least 24 ounces and a
	refund value of 10 cents; and
	(2)  is labeled as required by Section 376.052.
	(b)  A person may sell or offer for sale a beverage container
	that does not have a refund value if:
	(1)  the container has a fluid capacity of more than one
	gallon; or
	(2)  the container contains:
	(A)  a beverage that consists of milk or of 100
	percent fruit or vegetable juice; or
	(B)  medical food or infant formula.
	Sec. 376.052.  LABELING.  (a) A beverage container required
	to have a refund value under Section 376.051 that is offered for
	sale in this state must have legibly stamped, labeled, or embossed
	on the container:
	(1)  the refund value of the container;
	(2)  the name "Texas" or the abbreviation "TX"; and
	(3)  other language as required by the commission.
	(b)  Any beverage container intended for sale in this state
	must be printed, embossed, stamped, labeled, or otherwise marked
	with a universal product code or similar machine-readable indicia.
	[Sections 376.053-376.100 reserved for expansion]
	SUBCHAPTER C. COLLECTION OF DEPOSIT
	Sec. 376.101.  COLLECTION OF DEPOSIT BY DISTRIBUTOR AND
	RETAIL DEALER.  (a)  A distributor shall collect a deposit of 5 or 10
	cents, as established by Section 376.051, from a retail dealer for
	each beverage container that the distributor sells to the retail
	dealer.
	(b)  A retail dealer shall collect a deposit of 5 or 10 cents,
	as established by Section 376.051, from a consumer for each
	beverage container that the retail dealer sells to the consumer.
	(c)  The invoice for a beverage container sold by a retail
	dealer to a consumer must list the beverage container deposit as a
	separate line item. The deposit may not be included in the sales
	tax calculation.
	Sec. 376.102.  REMITTANCE OF DEPOSITS BY DISTRIBUTOR.  Not
	later than the fifth day of each month, a distributor shall remit to
	the comptroller the deposits collected by the distributor under
	Section 376.101 during the preceding month.
	Sec. 376.103.  MONTHLY REPORT. (a)  Not later than the fifth
	day of each month, a distributor who collects a deposit under
	Section 376.101 shall report to the comptroller, on a form approved
	by the comptroller:
	(1)  the total amount of deposits collected during the
	preceding month; and
	(2)  the number of beverage containers sold during the
	preceding month separated by deposit amount and material of
	container.
	(b)  The comptroller may require a distributor to include in
	the report required by Subsection (a) other information the
	comptroller considers necessary.
	(c)  The information contained in the report required by this
	section is confidential and may not be disclosed by the comptroller
	or an officer or employee of the comptroller.
	Sec. 376.104.  TEXAS CONTAINER RECYCLING INITIATIVE
	ACCOUNT.  (a) Deposits collected under this chapter shall be
	deposited to the credit of the Texas container recycling initiative
	account in the general revenue fund. Money in the account may be
	appropriated only for:
	(1)  reimbursements and handling fees paid to
	redemption centers or curbside recycling programs, as applicable;
	(2)  administration of this chapter;
	(3)  providing information and educating consumers
	about the Texas container recycling initiative;
	(4)  reimbursing a distributor under Section 376.105;
	and
	(5)  the purposes authorized under Section 376.003.
	(b)  At the end of each state fiscal biennium, any money in
	the account that is unencumbered must be distributed as follows:
	(1)  15 percent must be retained in the account for
	unforeseen costs associated with a higher than expected recycling
	rate; and
	(2)  85 percent must be transferred to the undedicated
	portion of the general revenue fund.
	Sec. 376.105.  FINANCING START-UP COSTS. (a) The
	comptroller may apply for, accept, receive, and administer gifts,
	grants, loans, and other funds available from any source for the
	purposes of this chapter.
	(b)  The comptroller may charge distributors an initial fee
	in an amount necessary to cover the start-up costs of the Texas
	container recycling initiative. The comptroller shall reimburse
	the distributors as sufficient money becomes available.
	(c)  The comptroller shall deposit revenue collected under
	this section to the credit of the Texas container recycling
	initiative account in the general revenue fund.
	[Sections 376.106-376.150 reserved for expansion]
	SUBCHAPTER D.  REDEMPTION CENTERS AND CONVENIENCE REDEMPTION ZONES
	Sec. 376.151.  CONVENIENCE REDEMPTION ZONES. (a)  A retail
	dealer may not sell a beverage in a beverage container eligible for
	redemption under this chapter to a consumer if there is not a
	redemption center within the retail dealer's convenience
	redemption zone.
	(b)  On petition by a retail dealer, the comptroller may
	exempt the dealer from the requirements of this section if the
	comptroller determines that extenuating circumstances support the
	exemption.
	(c)  A redemption center within a convenience redemption
	zone may be owned and operated by a retail dealer, local government,
	or independent entity.
	(d)  A retail dealer who owns and operates a redemption
	center shall register with the comptroller in the manner described
	by Section 376.152.
	Sec. 376.152.  REDEMPTION CENTERS.  (a)  To facilitate the
	return of empty beverage containers, a retail dealer, local
	government, or independent entity may establish a redemption center
	at which empty containers may be returned for their refund value.
	(b)  The retail dealer, local government, or independent
	entity must file an application for approval of a redemption center
	with the comptroller.  The application must state:
	(1)  the name, mailing address, telephone number,
	electronic mail address, and title of the person responsible for
	the establishment and operation of the redemption center;
	(2)  the physical address of the redemption center;
	(3)  the name and address of each retail dealer in whose
	convenience redemption zone the redemption center is located;
	(4)  the applicant's federal tax identification number,
	if applicable; and
	(5)  any additional information the comptroller by rule
	requires as necessary or convenient for the implementation of this
	section.
	(c)  The comptroller by order shall approve a redemption
	center if it finds the redemption center will provide a convenient
	service to persons for the return of empty beverage containers.  The
	comptroller may include in the order other provisions that the
	comptroller determines are necessary to ensure that the redemption
	center will provide a convenient service to the public.
	(d)  The comptroller at any time may review its approval of a
	redemption center. After written notice to the person responsible
	for the establishment and operation of the redemption center and to
	each retail dealer in whose convenience redemption zone the
	redemption center is located, the comptroller may, after a hearing,
	withdraw approval of a redemption center if the comptroller finds
	the redemption center has violated the order approving the
	redemption center.
	(e)  The comptroller by rule shall establish the required
	hours of operation for a redemption center.
	(f)  The comptroller may not limit the number of redemption
	centers within a convenience redemption zone.
	[Sections 376.153-376.200 reserved for expansion]
	SUBCHAPTER E. BEVERAGE CONTAINER REDEMPTION
	Sec. 376.201.  USED BEVERAGE CONTAINER REDEMPTION.  Except
	as provided by Sections 376.202 and 376.203, a redemption center
	shall accept a used beverage container that has a refund value as
	established by Section 376.051 and shall pay the refund value of the
	container in cash to the person presenting the container if the
	container is stamped, labeled, or embossed with the refund value
	and the name "Texas" or the abbreviation "TX."
	Sec. 376.202.  REFUSAL PERMITTED. A redemption center may
	refuse to accept for refund:
	(1)  a glass bottle that is broken to the extent that it
	would present a safety hazard when handled; or
	(2)  a used beverage container that contains part of
	its original contents or other foreign matter to the extent that it
	could present health or sanitation problems.
	Sec. 376.203.  REDEMPTION BY WEIGHT.  (a)  The comptroller by
	rule shall establish:
	(1)  a procedure for providing a reimbursement based on
	the weight of the beverage containers presented to be used in
	circumstances in which the number of containers is so large that
	counting the containers individually would be burdensome on a
	redemption center or curbside recycling program;
	(2)  a per pound redemption value for containers
	composed of each material covered by this chapter that are redeemed
	in the manner described by Subdivision (1);
	(3)  a per pound redemption value for unsorted
	containers composed of any material covered by this chapter that
	are collected as part of a single-stream recycling program and
	redeemed in the manner described by Subdivision (1);
	(4)  a per pound handling fee to be paid to redemption
	centers and curbside recycling programs for containers redeemed in
	the manner described by Subdivision (1); and
	(5)  procedures for regulating the accuracy of scales
	used to weigh containers under this section.
	(b)  Not more than every six months the comptroller by rule
	may adjust the per pound rates described by Subsection (a).
	Sec. 376.204.  DISPOSAL OF BEVERAGE CONTAINERS BY REDEMPTION
	CENTER AND CURBSIDE RECYCLING PROGRAM. A redemption center or
	curbside recycling program shall dispose of the returned used
	beverage containers by:
	(1)  selling the material generated by the crushed or
	shredded used beverage containers to a processor or other end user;
	or
	(2)  recycling the material in another manner
	prescribed by the comptroller.
	Sec. 376.205.  REIMBURSEMENT OF REDEMPTION CENTERS BY
	COMPTROLLER; HANDLING FEE.  (a) On submission of a completed
	invoice of refunds paid by a redemption center on a form adopted by
	the comptroller, the comptroller shall pay to the redemption center
	an amount equal to the redemption value established by Section
	376.051 or 376.203, as applicable, plus a handling fee of:
	(1)  one and one-half cents for each beverage container
	redeemed by the redemption center under Section 376.201; or
	(2)  the per pound amount determined under Section
	376.203 for beverage containers redeemed in the manner described by
	that section.
	(b)  The comptroller shall reimburse a redemption center
	under Subsection (a) not later than five working days after the
	comptroller receives the invoice submitted by the redemption
	center.
	(c)  The comptroller by rule may adjust a handling fee to
	account for changes in market conditions. The comptroller may
	periodically conduct research to determine if an adjustment is
	necessary.
	Sec. 376.206.  REIMBURSEMENT OF CURBSIDE RECYCLING PROGRAM
	BY COMPTROLLER.  (a)  On submission of a completed report, on a form
	adopted by the comptroller, indicating the number or weight, as
	applicable, of beverage containers collected by a curbside
	recycling program that are covered under this chapter, the
	comptroller shall pay to the curbside recycling program an amount
	equal to the redemption value established by Section 376.051 or
	376.203, as applicable, plus a handling fee of:
	(1)  one-half of one cent for each beverage container
	collected by the curbside recycling program; or
	(2)  the per pound amount determined under Section
	376.203 for beverage containers redeemed in the manner described by
	that section.
	(b)  The comptroller shall reimburse a curbside recycling
	program under Subsection (a) not later than five working days after
	the comptroller receives the invoice submitted by the curbside
	recycling program.
	(c)  The comptroller by rule may adjust a handling fee to
	account for changes in market conditions. The comptroller may
	periodically conduct research to determine if an adjustment is
	necessary.
	Sec. 376.207.  REPORTING REQUIREMENTS. Each redemption
	center and curbside recycling program shall submit a report with
	the submission of the completed invoice required under Sections
	376.205 and 376.206, respectively, to the comptroller, on a form
	approved by the comptroller, that provides:
	(1)  the redemption value of beverage containers
	collected by the redemption center or curbside recycling program;
	(2)  the number or weight of beverage containers
	collected by the center or curbside recycling program; and
	(3)  an invoice or other documentation that provides
	proof that the collected recycled material was recycled in a manner
	described under Section 376.204.
	SECTION 2.  Section 151.007(c), Tax Code, is amended to read
	as follows:
	(c)  "Sales price" or "receipts" does not include any of the
	following if separately identified to the customer by such means as
	an invoice, billing, sales slip or ticket, or contract:
	(1)  a cash discount allowed on the sale;
	(2)  the amount charged for tangible personal property
	returned by a customer if the total amount charged is refunded by
	cash or credit;
	(3)  a refund of the charges for the performance of a
	taxable service;
	(4)  finance, carrying and service charges, or interest
	from credit extended on sales of taxable items under a conditional
	sales contract or other contract providing for the deferred payment
	of the purchase price;
	(5)  the value of tangible personal property that:
	(A)  is taken by a seller in trade as all or part
	of the consideration for a sale of a taxable item; and
	(B)  is of a type of property sold by the seller in
	the regular course of business;
	(6)  the face value of United States coin or currency in
	a sale of that coin or currency in which the total consideration
	given by the purchaser exceeds the face value of the coin or
	currency; [or]
	(7)  a voluntary gratuity or a reasonable mandatory
	charge for the service of a meal or food products, including soft
	drinks and candy, for immediate human consumption when the service
	charge is separated from the sales price of the meal or food product
	and identified as a gratuity or tip and when the total amount of the
	service charge is disbursed by the employer to employees who
	customarily and regularly provide the service; or
	(8)  a beverage container redemption fee under Chapter
	376, Health and Safety Code.
	SECTION 3.  (a)  Not later than September 1, 2012, the
	comptroller of public accounts shall adopt the rules necessary to
	implement Chapter 376, Health and Safety Code, as added by this Act.
	(b)  The requirements of and penalties imposed by Chapter
	376, Health and Safety Code, as added by this Act, do not apply to
	any person before January 1, 2013.
	SECTION 4.  This Act takes effect September 1, 2011.