Section 1.56 - Waiver of Fees(a) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise. (1) Business day--Any day during which the United States Post Office or during which the department is open for business for any portion of the day, through the close of business on each such day.(2) Code--The Texas Agriculture Code.(3) Confirmed--Obtained from department records or from documented information acquired through oral or written communication between the department and the person owing the fee or that person's authorized agent or representative.(4) Good cause--any reason listed in subsection (c)(2) of this section or a credible written certification from an authorized agent or representative of an entity listed in subsection (c)(1) of this section stating that the entity did not know that it qualified for a waiver due to a change in personnel responsible for managing licensed activities or due to other circumstances demonstrating an innocent mistake.(5) Invoice period--From the invoice date printed on the invoice to the date the invoiced payment is due, inclusive.(6) License--The whole or a part of any department permit, certificate, approval, registration, or similar form of permission required by law.(7) Renewal period--From the date a renewal notice is sent to the date of expiration of the license to which the renewal notice refers, inclusive.(8) Responsible assistant commissioner--The assistant commissioner in charge of the Austin headquarters division that administers and establishes policy for the regulatory, marketing, licensing inspection, or other program for which waiver of a license, inspection, or other fee is requested.(9) Send--Place in a United States Postal Service mail receptacle, place into the control of an employee of the U.S. Postal Service, transmit by facsimile machine, or place in the department's electronic mail queue for transmittal.(b) Notice that fee is due. (1) Notice that a fee is due shall be in writing and may be made by facsimile, electronic mail, regular mail service by the United States Post Office, hand-delivery, or any other written means.(2) A mailed notice may be directed to the last known physical address, electronic mail address, or facsimile number of the person owing the fee, as shown on department records.(3) A hand-delivered or other written notice may be served on any employee or agent who exercises executive or managerial responsibilities on behalf of the person owing the fee.(c) Circumstances under which a fee may be waived.(1) Fees will be waived when required by a state or federal statute, the United States Constitution, the Texas Constitution, a state or federal court order from a court of competent jurisdiction, or in accordance with the provisions of this section. When waiver of a fee is not required by law, failure to collect the fee can have negative financial consequences for the state, this agency, and the people we serve. Accordingly, the provisions of this section shall be strictly construed and implemented to disfavor the waiver of fees.(2) As authorized by section RSA 12.034 of the Texas Agriculture Code (the Code), the department may waive the following fees when the circumstances and documentation listed below are shown to exist in accordance with the provisions of this section: (A) License Fees. License fees are generally required for legislatively mandated cost recovery purposes and will not be waived except for the following entities which file their request for fee waiver by the deadline specified in subsection (e) of this section, or have good cause for failing to file their request by that deadline, and who would otherwise have timely met the requirements for the original license or renewal thereof. The responsible assistant commissioner shall make any necessary determination regarding the existence of good cause under this paragraph. Reference to an agency, school, organization, or other artificial entity below includes only the entity. Individual employees or agents of a listed entity are not eligible for a fee waiver, regardless whether the license is for personal use or use in service to the entity.(i) another state agency;(ii) local governmental entity;(iii) a private or public primary or secondary school that certifies in writing that all proceeds from any sales authorized by the license will be applied to educational activities, equipment, supplies, or other educational expenses incurred by the school;(iv) a state-funded college or university that certifies in writing that all proceeds from any sales authorized by the license will be applied to educational activities, equipment, supplies, or other educational expenses incurred by the college or university;(v) a student organization operated by, through, or under an entity described by clause (iii) or (iv) of this subparagraph that certifies in writing that all proceeds from any sales authorized by the license will be applied to educational activities, equipment, supplies, or other educational expenses incurred by the organization;(vi) a parent-teacher association operated by, through, or under an entity described by clause (iii) or (iv) of this subparagraph that certifies in writing that all proceeds from any sales authorized by the license will be applied to educational activities, equipment, supplies, or other educational expenses incurred by the association; or(vii) a department employee, if the employee's supervisor requires or recommends that the license be obtained.(B) Additional Fee for Late Payment of License Renewal Fees (Section 12.024 of the Code). (i) Incapacity from serious illness or injury. Person owing the fee was incapacitated (unable to address renewal or invoice matters) due to serious illness or injury during most or all of the renewal period or invoice period as evidenced by medical records or a letter from and signed by a treating physician. The responsible assistant commissioner shall determine whether a particular illness or injury qualifies as serious and whether such injury or illness rendered the person incapacitated.(ii) Fatal or life-threatening illness or injury. A member of the immediate family of the person owing the fee experienced a fatal or life-threatening illness or injury during the renewal period or invoice period, as evidenced by medical records or a letter from and signed by a treating physician. The responsible assistant commissioner shall evaluate any submitted medical records or treating-physician letter to determine whether a particular illness or injury qualifies as fatal or life-threatening, as well as whether a particular individual qualifies as a member of the immediate family of the person owing the fee;(iii) Catastrophic loss to business property. Person owing the fee suffered a catastrophic loss to a significant amount of property (either real property or inventory), used for the activities for which the fee is due, as the result of circumstances beyond the control of the person and the person's agent or representative during the twelve-month period preceding the date the renewal or other payment was due, as evidenced by official loss appraisals, pictures authenticated by affidavit, or other similar records. Weather related damages to property, such as from tornado, windstorm, hurricane, lightning, or flood are hereby deemed beyond the control of the person owing the fee. Any necessary determination regarding the factual evidence of loss, whether the circumstances were beyond the control of the person owing the fee and that person's agent or representative, unless otherwise deemed under this clause as beyond the person's control, and whether the financial hardship resulting from the loss warrants approving a waiver, shall be made by the responsible assistant commissioner.(iv) Alleged failure to timely receive renewal notice. Department records show that the renewal notice was not sent by the department to the last known address according to department records (unless those records contain an obvious significant typographical error by the department that could reasonably have resulted in misdelivery of the notice) of the person in whose name the license was issued, on or before the 30th day prior to expiration of the license that was the subject of the renewal notice. (I) The requester must attach to the request any documentation confirming the then-current (at the time of the request for waiver of the fee) mailing address of the person in whose name the license was issued.(II) Waiver of a late fee will not be granted under this clause if the licensee has failed to comply with a statute or department rule requiring the person to notify the department of a change of address and use of the previous address appears to be the primary cause for the failure to timely receive the notice.(III) Section 12.024(f) of the Code directs the department to send a renewal notice on or before the 30th day prior to expiration of a license. Section 12.024(f) does not require or direct that a renewal notice be received by the licensee on or before the 30th day prior to expiration of the license. The department considers the wording of Section 12.024(f) precatory in nature and nothing in that provision shall be construed to require waiver of a late fee solely because the renewal notice was not sent to or received by the requester on or before the 30th day prior to expiration of the license that was the subject of the renewal notice.(IV) The responsible assistant commissioner will decide on a case-by-case basis whether an alleged failure to send the renewal notice on or before the 30th day prior to expiration significantly impaired the licensee's ability to timely renew. The responsible assistant commissioner shall take into account the requirements for renewal for the particular license, the amount of time past the 30th day (prior to expiration) that the renewal notice was actually sent, if this can be determined, and any other circumstances relevant to the licensee's ability to comply by the renewal deadline in light of the alleged late mailing.(V) Absent a postmark or information within the department's records showing otherwise, for purposes of applying this clause a renewal notice is conclusively presumed to have been sent on or before the 30th day prior to expiration of the license that was the subject of the renewal notice.(v) Entities that ordinarily qualify for waiver of licensing fee. The entity is listed in subsection (c)(2)(A) of this subsection and is subject to a renewal fee due to the entity's failure to timely file for a waiver, show good cause for failing to timely file for a waiver, or timely meet the renewal requirements for their license.(vi) Other justifiable reasons. Any reason which, in the judgment of the responsible assistant commissioner, involves extraordinary circumstances that justify waiver of the fee to ensure just and fair treatment of the person who owes the fee. The department may, by written notice published in the In Addition section of the Texas Register, prospectively or retroactively waive late fees for an entire class of licensees if, due to malfunctions in the renewal generation process, a class of license renewals are mailed less than 30 days prior to the normal expiration date for that class of licenses or under other circumstances as deemed necessary for the just and fair treatment of an entire class of licensees. The responsible assistant commissioner shall make any necessary determination under this paragraph, regarding whether waiver is necessary to ensure just and fair treatment of the person who owes the fee.(C) Inspection Fees. Inspection fees are generally required for legislatively mandated cost recovery purposes and will not be waived except for extraordinary reasons. Unless another controlling law prohibits waiver, these fees may be waived for any reason which, in the judgment of the responsible assistant commissioner, involves extraordinary circumstances that justify waiver of the fee to ensure just and fair treatment of the person who owes the fee. The responsible assistant commissioner shall make any necessary determination under this paragraph, regarding whether waiver is necessary to ensure just and fair treatment of the person who owes the fee.(D) Other Fees. Unless waiver is prohibited by another controlling law, other fees may be waived for any reason which, in the judgment of the responsible assistant commissioner, involves extraordinary circumstances that justify waiver of the fee to ensure just and fair treatment of the person who owes the fee. The responsible assistant commissioner shall make any necessary determination under this paragraph, regarding whether waiver is necessary to ensure just and fair treatment of the person who owes the fee.(d) Procedure to request a waiver of a fee. (1) A separate request for waiver of a fee or fees must be filed for each period for which the fee or fees are due.(2) To qualify for a fee waiver, the person owing the fee or that person's authorized representative or agent must file with the department a written request, that the fee be waived, by the deadline specified in subsection (e) of this section. (A) The request must be signed by the person or the person's authorized representative or agent, which may be the person's supervisor, manager, responsible executive officer, or other legal representative.(B) A request from a governmental entity must be filed on the letterhead of the governmental entity.(C) The department recommends that the request be sent by certified mail, return receipt requested, or any other method that will provide proof of delivery.(3) Except as otherwise provided in this subsection regarding letterhead requirements, the request must be filed on a department Request to Waive Fee Form, or other written communication that contains all of the following information for each fee for which a waiver is requested: (A) the name, address, and phone number of the person owing the fee;(B) the client and account numbers of the person owing the fee, if any;(C) if requested by the authorized agent or representative of the person owing the fee, the agent's or representative's name, title, and phone number and a statement certifying that the agent or representative is authorized to act on behalf of the person owing the fee;(D) a description of the fee for which waiver is requested;(E) the amount of the fee for which waiver is requested;(F) a statement or list of the reason or reasons that the waiver is requested (the department recommends that the person requesting the fee waiver refer to the appropriate subsection and paragraph in subsection (c) of this section);(G) the dated signature of the person filing the request;(H) any documentation that proves, confirms, or supports the reason or reasons proffered in requesting that the fee be waived.(e) Deadline for filing a request to waive a fee.(1) Except as otherwise expressly provided by this section or when good cause exists under subsection (c)(2)(A) of this section, failure to file a request for fee waiver by the deadlines provided in this subsection shall without exception result in denial of the waiver request.(2) Except as specified in paragraph (4) of this subsection, a request for waiver of a fee or portion thereof must be filed (received by the department) on or before the 10th business day after the person who owes the fee or portion thereof, or that person's authorized agent or representative, is first notified by the department in writing that the fee or portion thereof is due.(3) For mailed notices, except as provided by paragraph (4) of this subsection, the date of first notification is conclusively presumed to be the 3rd business day after the date, according to department records, the notice was mailed to the person's last known address, also according to department records.(4) If a mailed notice or the department records pertaining thereto contains an obvious significant typographical error by the department that could reasonably have resulted in misdelivery of the notice, then the request for waiver must be filed on or before the 10th business day after a written notice is first sent by facsimile transmission to a confirmed facsimile number, sent by electronic mail to a confirmed electronic mail address, delivered by hand, or served on the person owing the fee, or that person's authorized agent or representative, by other written means for which a delivery date can be determined.(f) Approval of a request to waive a fee--determinations not requiring responsible assistant commissioner approval. When reviewing requests stating reasons which do not require responsible assistant commissioner approval, the department shall approve or disapprove waiver of the fee in writing within 15 business days after the date the department receives the request. If the department fails to act on such a request on or before the 15th business day after the date the department receives the request, the requested waiver shall be deemed approved.(g) Approval of a request to waive a fee--circumstances requiring responsible assistant commissioner approval. When reviewing requests stating reasons which require responsible assistant commissioner approval, the department shall approve or disapprove waiver of the fee in writing within 20 business days after the date the department receives the request. If the department fails to act on such a request on or before the 20th business day after the date the department receives the request, the requested waiver shall be deemed disapproved.(h) Circumstances for granting waivers. A list of the circumstances under which waivers been previously granted under this section will be made available to the public either on the department's website or by mail upon request. The department's assertion that it will publish or make available lists of reasons resulting in previously granted waiver requests is precatory in nature and the department's failure to publish or make available any such list shall not constitute grounds for waiver of a fee under this section and shall not excuse noncompliance with the procedural requirements or deadlines for requesting a waiver.(i) Delegation by assistant commissioner. The responsible assistant commissioner may delegate any duty or privilege established by this section and the employee to whom the duty or privilege is delegated shall have the same authority as the delegating responsible assistant commissioner.4 Tex. Admin. Code § 1.56
The provisions of this §1.56 adopted to be effective January 28, 2004, 29 TexReg 625; amended to be effective November 12, 2007, 32 TexReg 8121