12B-5.400. Producers and Importers of Pollutants

(1) General Information. The pollutants tax accrues at the time of first production in or importation into this State on all pollutants other than petroleum products. The tax is imposed upon the person who owns the pollutant when it is imported into this State or the person who produces the pollutant in this State. The tax is imposed when the pollutant is first removed from storage or first sold in this State. The tax is levied under Sections 206.9935(1)(a), 206.9935(2)(a) and 206.9935(3)(a), F.S., for the Tax for Coastal Protection, Tax for Water Quality, and Tax for Inland Protection.

(2) Definitions. The following definitions are for purposes of Part IV, Chapter 206, F.S., only:

(a) “Producer” means any person who manufactures, refines, blends, or compounds pollutants; who maintains a storage facility, or imports such products into this State; and who does not hold a valid fuel license.

(b) “Pesticides” means all preparations intended for use as insecticides, rodenticides, nematocides, fungicides, herbicides, amphibian and reptile poisons or repellents, fish poisons or repellents, mammal poisons or repellents, invertebrate animal poisons or repellents, plant regulators, plant defoliants, and plant desiccants. A product shall be deemed to be a pesticide regardless of whether intended for use as packaged or after dilution or mixture with other substances, such as carriers of baits.

(c) “Ammonia” means anhydrous liquid ammonia (NH3).

(d) “Chlorine” means anhydrous liquid chlorine (Cl2).

(e) “Motor oil” is a lubricant commonly known as an engine oil.

(f) “Lubricant” is a liquid with a carbon base used to prevent contact of parts in motion and reduce friction, wear, heat, and corrosion. Lubricants include gear oils and steam-turbine oils, and exclude greases.

(g) “Petrochemical feedstocks” means a chemical compound or element recovered from petroleum or natural gas, or derived in whole or part from petroleum or natural gas hydrocarbons converted by a chemical and/or physical process to materials of greater utility or value.

(h) “Liquid petrochemical” means a compound which is at least 99 percent pure that can be produced in the refinery by rearranging the hydrocarbon molecules that exist in crude oil. A typical liquid petrochemical feedstock can be classified in five specific categories of hydrocarbon where the carbon number would range from four (4) to nine (9), including normal paraffins, isoparaffins, olefins, naphthenes, and aromatics. The major compounds used as petrochemical feedstocks include, but are not limited to the following:

1. Benzene, including dodecylbenzene and ethylbenzene,

2. Butylene, including polyisobutylene and triisobutylene,

3. Cumene,

4. Naphthalene, including amyl naphthalene, or

5. Styrene.

(i) “Storage” means any keeping or retention of pollutants in this state.

(j) “Products intended for application to the human body or for use in human personal hygiene, or human ingestion” means:

1. Products that are intended to be physically applied to the body, such as after shave lotion, perfume, deodorants, skin cleaners, lotions or treatments;

2. Products intended to be used to clean, disinfect, and sanitize the human body or items in close contact with it, such as wearing apparel, linens, contact lenses, dental appliances, medical prostheses, except products which are defined as drycleaning solvents in section 376.301, F.S.;

3. Products intended to be used to clean, disinfect, and sanitize food contact surfaces or utensils used in the preparation, preservation, storage, or eating of food or beverages;

a. “Food contact surfaces” include surfaces of equipment and utensils with which food normally comes into contact, and those surfaces from which food may drain, drip, or splash back onto surfaces normally in contact with food;

b. “Utensils” include implements such as pots, pans, ladles or food containers used in the preparation, storage, transportation or serving of food;

4. Products that are intended to be swallowed; and,

5. Medical products.

The phrase “products intended for application to the human body or for use in human personal hygiene or for human ingestion” applies only to products which are sold at retail for use in residential households. The phrase is not intended to apply to products marketed specifically for a nonqualifying use, but used for a qualifying purpose, nor to products intended to be used for commercial or industrial purposes.

(k) “Waste oil” means any oil or fuel which has been refined from crude oil or synthetic oil, and as result of use, storage, or handling, has become unsuitable for its original purpose due to the presence of impurities or loss of original properties, but which may be suitable for further use and is economically recyclable.

(3) Licensing and Bonding.

(a) Any person who does not hold a valid motor fuel, diesel fuel, or aviation fuel tax license issued pursuant to Parts I, II or III of Chapter 206, F.S., and who produces, imports, or causes pollutants to be imported into this state is required to obtain a pollutants tax license.

(b)1. To obtain an annual license as an importer or producer of taxable pollutants, a person must file a Florida Pollutant Tax Application (Form DR-166, incorporated by reference in Rule 12B-5.150, F.A.C.) and the required attachments with the Department, as provided in the application.

2. To renew an annual license, an applicant must file a Renewal Application for Florida Fuel/Pollutant License (Form DR-156R, incorporated by reference in Rule 12B-5.150, F.A.C.).

(c) Each terminal supplier, importer, or wholesaler, of pollutants that holds a fuel license must add to its fuel bond an amount to be three times the average monthly pollutants tax paid or due during the preceding twelve calendar months. However, the total amount of the bond must not exceed $300,000.

(d) Each producer or importer of pollutants who does not hold a valid fuel license must file with the Department, a bond in an amount to be three times the average monthly pollutants tax paid or due during the preceding twelve calendar months. The bond shall not exceed $300,000.

(e) No bond is required to obtain a pollutant tax license for the sole purpose of applying for refunds of tax paid on pollutants, as provided in Section 206.9942, F.S.

(4) Exemptions.

(a) Florida Coastal Protection Tax:

1. Liquefied petroleum gas,

2. Medicinal oils,

3. Motor oils and lubricants,

4. Waxes,

5. Solvents, or

6. A product intended for application to the human body or for use in human personal hygiene or for human ingestion.

(b) Tax for Water Quality:

1. Liquefied petroleum gas,

2. Medicinal oils,

3. Waxes,

4. Crude oil,

5. Solvents that are consumed in the manufacture or production of a product that is not a pollutant, or

6. A product intended for application to the human body or for use in human personal hygiene or for human ingestion.

(c) Tax for Inland Protection:

1. Solvents,

2. Liquefied petroleum gas,

3. Medicinal oils,

4. Motor oil and lubricants,

5. Waxes,

6. Grades no. 5 and no. 6 residual oils,

7. Petroleum products bunkered into marine vessels engaged in interstate or foreign commerce by the licensee who first imported said products,

8. Asphalt oil,

9. Petrochemical feedstocks, and all liquid petrochemicals except for, methyl alcohol, ethyl alcohol, and methyl tert-butyl ether.

10. Pesticides, ammonia, and chlorine,

11. Crude oil, or

12. A product intended for application to the human body or for use in human personal hygiene or for human ingestion.

(d) Bonded fuel is not taxable. Bonded fuel becomes subject to the pollutants tax when such fuel is withdrawn from storage for domestic use.

(e) The United States government, its departments, or its agencies which import pollutants into this State are exempt from tax and are not required to file a return with the Department. Pollutants tax licensees who sell pollutants to the United States government, its departments, or its agencies are not exempt from paying the tax due on pollutants.

(5) Taxable Products.

(a) Florida Coastal Protection Tax:

1. Any refined liquid commodity made wholly or partially from oil or gas, or blends; or mixtures of oil with one or more liquid products or byproducts derived from oil or gas, or blends; or mixtures of two or more liquid products or byproducts derived from oil or gas,

2. Motor gasoline,

3. Gasohol,

4. Aviation gasoline,

5. Naphtha-type jet fuel,

6. Kerosene,

7. Distillate fuel oil (diesel fuel),

8. Residual fuel oil,

9. Naphtha of less than 400 degrees F for petroleum feed,

10. Special naphthas,

11. Road oil (pavement treatment),

12. Ammonia, chlorine, and pesticides,

13. Crude oil,

14. Motor and aviation gas blending components (including methyl alcohol, petroleum-derived ethyl alcohol, and MTBE (methyl tertiary butyl ether)),

15. Petroleum based hydraulic fluid (such as transmission and brake fluid),

16. Unfinished oils,

17. Still gas,

18. Asphalt oil, or

19. Waste oil (if imported into this State; however, the act of collecting the waste produced by normal maintenance activities performed in this State, such as pumping the bilge of ships, cleaning storage tanks, and periodic changing of engine oil in vehicles, boats, and planes is not considered producing or importing a taxable pollutant).

(b) Tax for Water Quality:

1. Any refined liquid commodity made wholly or partially from oil or gas, or blends, or mixtures of oil with one or more liquid products or byproducts derived from oil or gas, or blends, or mixtures or two or more liquid products or byproducts derived from oil or gas,

2. Motor oil and lubricants,

3. Solvents,

4. Motor gasoline,

5. Gasohol,

6. Aviation gasoline,

7. Naphtha-type jet fuel,

8. Kerosene-type jet fuel,

9. Kerosene,

10. Distillate fuel oil (diesel fuel),

11. Residual fuel oil,

12. Naphtha of less than 400 degrees F for petroleum feed,

13. Special naphthas (such as certain paint thinners and cleaners),

14. Road oil (pavement treatment),

15. Ammonia, chlorine, and pesticides,

16. Motor and aviation gas blending components (including methyl alcohol, petroleum-derived ethyl alcohol, and MTBE (methyl tertiary butyl ether)),

17. Petroleum based hydraulic fluid (such as brake and transmission fluid),

18. Unfinished oil,

19. Still gas,

20. Asphalt oil, or

21. Waste oil (if imported into this State; however, the act of collecting the waste produced by normal maintenance activities performed in this State, such as pumping the bilge of ships, cleaning storage tanks, and periodic changing of engine oil in vehicles, boats, and planes is not considered producing or importing a taxable pollutant).

(c) Tax for Inland Protection:

1. Any refined liquid commodity made wholly or partially from oil or gas, or blends, or mixtures of oil with one or more liquid products or byproducts derived from oil or gas, or blends, or mixtures of two or more liquid products or byproducts derived from oil or gas,

2. Motor gasoline,

3. Gasohol,

4. Aviation gasoline,

5. Naphtha-type jet fuel,

6. Kerosene,

7. Distillate fuel oil (diesel fuel),

8. Residual fuel oil,

9. Naphtha of less than 400 degrees F for petroleum feed,

10. Special naphthas (such as certain paint thinners and cleaners),

11. Road oil (pavement treatment),

12. Unfinished oils,

13. Still gas,

14. Motor and aviation gas blending components which are used for gas blending (including methyl alcohol, petroleum-derived ethyl alcohol and MTBE (methyl tertiary butyl ether)),

15. Petroleum based hydraulic fluid (such as brake and transmission fluid), or

16. Waste oil (If imported into this state; however, the act of collecting the waste produced by normal maintenance activities performed in this State, such as pumping the bilge of ships, cleaning storage tanks, and periodic changing of engine oil in vehicles, boats, and planes is not considered producing or importing a taxable pollutant).

(d) Rate of Tax:

1. The excise tax is levied by Sections 206.9935(1)(a), 206.9935(2)(a) and 206.9935(3)(a), F.S., for the tax for coastal protection, tax for water quality, and tax for inland protection, respectively.

2. The effective tax rates for each trust fund are:

a. Coastal Protection Tax: 2 cents per barrel of pollutant.

b. Inland Protection Tax: 80 cents per barrel of pollutant.

c. Water Quality Assurance Tax:

Motor Oil and Lubricants-2.5 cents per gallon

Solvents-5.9 cents per gallon

Other Petroleum Products, Pesticides, and Chlorine-5 cents per barrel

Ammonia-2 cents per barrel

3. Solid Conversions. Pesticides are taxable pollutants in liquid and solid form, and ammonia is taxable in liquid form, under the Water Quality Assurance Tax and the Coastal Protection Tax. The taxpayer is to convert solid pesticides, and liquid ammonia, from pounds to gallons using the following equivalent measure: 5.14 pounds of ammonia at 60 degrees Fahrenheit equals one gallon; and 10 pounds of solid pesticides equals one gallon.

(6) Returns.

(a) Any person licensed as a terminal supplier, importer, wholesaler, or blender pursuant to Chapter 206, F.S., and any person licensed as an importer or producer of pollutants is required to file a Pollutants Tax Return (Form DR-904, incorporated by reference in Rule 12B-5.150, F.A.C.) on or before the 20th day of the month following the month of sale or first removal of pollutants from storage. If the 20th day falls on a Saturday, Sunday, or legal holiday, payments accompanied by returns will be accepted as timely if postmarked or delivered to the Department on the next succeeding day which is not a Saturday, Sunday, or legal holiday. For the purpose of this rule, a legal holiday means a holiday which is observed by federal or state agencies as this term is defined in Chapter 683, F.S., and s. 7503 of the Internal Revenue Code of 1986, as amended. A “legal holiday” pursuant to s. 7503 of the Internal Revenue Code of 1986, as amended, means a legal holiday in the District of Columbia or a statewide legal holiday at a location outside the District of Columbia but within an internal revenue district.

(b) When quarterly, semi-annual, or annual reporting is authorized by the Department, pursuant to Section 206.9931(5), F.S., the tax is due on or before the 20th day of the month following the authorized reporting period and becomes delinquent on the 21st day of that month.

(c) Electronic payments must be submitted to the Department, as provided by Chapter 12-24, F.A.C.

(7) Refunds and Credits.

(a)1. Any licensee that is entitled to a refund of pollutant tax pursuant to Section 206.9942, F.S., is required to file with the Department an Application for Pollutant Tax Refund (Form DR-309660, incorporated by reference in Rule 12B-5.150, F.A.C.). The request for refund must be supported by charge tickets, sales slips, invoices, or other tangible evidence of the sale; applicable export schedules, and shipping and delivery documents. Charge tickets, sales slips, invoices, or other tangible evidence of the sale must contain the following information:

a. The name, mailing address, and location address of the purchaser;

b. The type of pollutant and the number of gallons or barrels purchased;

c. The date on which the purchase was made;

d. The price paid for the pollutants;

e. The name and place of business of the seller;

f. The pollutant tax paid per gallon or per barrel; and,

g. The Department of Environmental Protection storage tank facility identification number for the seller, if applicable.

2. In lieu of original sales invoices, the applicant applying for a refund may submit a detailed schedule of individual transactions that includes the information required under subparagraph 1. Original invoices or certified copies of invoices obtained from suppliers must be maintained by the applicant in its records until tax imposed under Chapter 206, F.S., may no longer be determined and assessed under Section 95.091, F.S.

3. Form DR-309660 must be filed for each calendar quarter no later than the last day of the first month following the quarter for which the refund is claimed. The filing date may be extended one additional month from the due date of Form DR-309660 when a written explanation that sets forth reasonable cause for delay in filing the refund application is submitted with the application and the prior quarter’s application for refund was timely submitted to the Department.

4. Amended applications for the prior calendar quarter must be received by the Department by the current calendar quarter’s deadline.

5. No refund will be authorized for a tax refund of less than $5 for a refund period.

(b) Any licensee that produces, imports, or purchases solvents on which the tax has been paid to the State or supplier under the Water Quality Assurance Trust Fund and consumes these solvents in the manufacture or production of a product which is not a pollutant, may request a refund of the tax paid on the solvent under the Water Quality Assurance Trust Fund, as provided in paragraph (a).

(c) Any licensee who has purchased petroleum products on which the tax has been paid to the State or supplier under the Water Quality Assurance Trust Fund and the Tax for Inland Protection Trust Fund, and who subsequently exports said products from the state or bunkers petroleum products into marine vessels engaged in interstate or foreign commerce, may apply for a refund of the tax paid on the petroleum product under the Water Quality Assurance Trust Fund and the Inland Protection Trust Fund, as provided in paragraph (a).

(d) Any licensee who has produced, imported, or purchased pollutants on which the tax has been paid to the State or supplier and who subsequently exports from the state said pollutants or products containing said pollutants may apply for a refund of the tax paid on the pollutant under the Water Quality Assurance Trust Fund, as provided in paragraph (a).

(e) Any person licensed pursuant to Chapter 206, F.S., that is eligible for a refund pursuant to Section 206.9942, F.S., may, in lieu of applying for a refund, take a credit on the monthly Pollutants Tax Return (Form DR-904). The credit may not exceed the tax imposed on those gallons which would otherwise be eligible for refund. Any request for a credit shall be supported by a charge ticket, sales slip, invoice, or other tangible evidence of the sale showing the tax was paid to the State or supplier; applicable export schedules, and shipping and delivery documents.

Rulemaking Authority 206.14(1), 206.59(1), 213.06(1) FS. Law Implemented 206.9915, 206.9925, 206.9931, 206.9935, 206.9941, 206.9942, 206.9943, 213.755 FS. History–New 11-21-96, Amended 10-27-98, 5-1-06, 6-1-09, 1-25-12, 1-17-18, 1-1-21.