PART 3. TEXAS ALCOHOLIC BEVERAGE COMMISSION
CHAPTER 33. LICENSING
SUBCHAPTER E. EVENTS AT A TEMPORARY LOCATION
16 TAC §§33.70 - 33.72, 33.76, 33.77, 33.81
The Texas Alcoholic Beverage Commission (TABC) adopts amendments to 16 TAC §§33.70 - 33.72, 33.76, 33.77, and 33.81, relating to Events at a Temporary Location. The amendments are adopted without changes to the proposed text as published in the December 1, 2023, issue of the Texas Register (48 TexReg 6984). The amended rules will not be republished.
REASONED JUSTIFICATION. The amendments are necessary to implement legislation. Senate Bill 926 (88th Regular Session) authorized the temporary sale of wine and malt beverages by a mixed beverage permit holder in certain high-capacity facilities that are open to the public during certain motor vehicle racing events. Senate Bill 1375 (88th Regular Session) authorized a distiller's and rectifier's permit holder to conduct samplings or tastings at certain temporary events. Sections 71, 112, 122, 128, and 247 of House Bill 1545 (86th Regular Session) authorized various permit holders to sell different alcoholic beverages at certain temporary events. These bills all required TABC to adopt implementing rules.
The amendments to §§33.72, 33.77(f), and 33.81 implement SB 926 by: (1) acknowledging that mixed beverage permittees may sell wine and malt beverages for more than four consecutive days at an authorized temporary event, as provided in Alcoholic Beverage Code §28.20(c); (2) clarifying the recordkeeping and reporting obligations of mixed beverage permittees who sell wine or malt beverages in a county other than the county in which the temporary event premises is located, consistent with Alcoholic Beverage Code §28.20(e); (3) clarifying that if an authorized temporary event is held in a county that includes more than one territory, as that term is defined by Alcoholic Beverage Code §102.71(5), the mixed beverage permittee must purchase malt beverages from the distributor holding the territorial agreement covering the temporary event location; and (4) clarifying that if an authorized temporary event is held in a county other than the county in which the mixed beverage permit holder's premises is located, the mixed beverage permittee must purchase wine from a wholesaler authorized to sell wine in the county covering the temporary event location.
The amendments to §§33.70, 33.71, 33.76, and 33.77(d) implement SB 1375 and HB 1545 by: (1) changing the scope and applicability of Chapter 33, Subchapter E to include temporary events conducted under Chapter 14 of the Alcoholic Beverage Code; (2) acknowledging that certain temporary events are eligible for File and Use Notification even if sponsored by a distiller's and rectifier's permittee or winery permittee; (3) providing that distilled spirits samplings or tastings at temporary events conducted in accordance with Alcoholic Beverage Code §14.09 may be conducted using File and Use Notification, without the need to obtain prior approval from the Commission; and (4) clarifying the requirements to verify the wet/dry status of the governing jurisdiction where the temporary event will be held.
SUMMARY OF COMMENTS. TABC received one comment from the Texas Distilled Spirits Association supporting the amendments to §33.71.
COMMENT: The commenter supports the proposed changes to §33.71, which allow distillers to "conduct distilled spirits sampling or tasting at a civic or distilled spirits festival, farmers' market celebration or similar event...without obtaining prior approval...by submitting a notice on forms provided by the commission." The commenter states that "[b]ecause a distiller cannot sell bottles at these temporary events, TDSA agrees that notifying the commission, without needing prior approval, is the best solution for participating in temporary events."
AGENCY RESPONSE: TABC appreciates the comment.
STATUTORY AUTHORITY. TABC adopts the amendments under §§5.31, 14.09(g), 16.12(c), 25.16(c), 28.19(c), 28.20(g), 32.25(d), and 69.18(c) of the Alcoholic Beverage Code. Section 5.31 authorizes TABC to prescribe and publish rules necessary to carry out the provisions of the Alcoholic Beverage Code. Section 14.09(g) requires TABC to adopt rules to implement distilled spirits sampling at temporary events. Section 28.20(g) requires TABC to adopt rules implementing temporary sales at certain racing facilities. Sections 16.12(c), 25.16(c), 28.19(c), 32.25(d), and 69.18(c) require TABC to adopt rules implementing temporary sales by various permittees at a temporary event location.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on January 23, 2024.
TRD-202400219
Matthew Cherry
Senior Counsel
Texas Alcoholic Beverage Commission
Effective date: February 12, 2024
Proposal publication date: December 1, 2023
For further information, please call: (512) 206-3491
SUBCHAPTER B. RECORDKEEPING & REPORTS
The Texas Alcoholic Beverage Commission (TABC) adopts an amendment to rule 16 TAC §41.25, relating to Providing Retailer Samples: Distiller's and Rectifier's Permit. The amendment is adopted without changes to the proposed text as published in the December 1, 2023, issue of the Texas Register (48 TexReg 6987). The amended rule will not be republished.
REASONED JUSTIFICATION. The amendment is necessary to implement new legislation and provide clarity for impacted permittees. Senate Bill 1375 (88th Regular Session) authorized a distiller's and rectifier's permit holder to conduct samplings or tastings at certain temporary events. The amendment to §41.25 implements SB 1375 by acknowledging that a distiller's and rectifier's permit holder may conduct samplings or tastings consistent with SB 1375 and clarifies that samples of distilled spirits taken from a distiller's inventory for such events qualify as a first sale for purposes of excise tax payments under Alcoholic Beverage Code §§201.02 and 201.03. A conforming change is also made to the rule's title.
SUMMARY OF COMMENTS. TABC received one comment from the Texas Distilled Spirits Association supporting the amendment to §41.25.
COMMENT: The commenter supports the proposed changes to §41.25 and states that they "believe that allowing Texas distillers to bring their own manufactured products from their inventory matches the legislative intent of SB 1375."
AGENCY RESPONSE: TABC appreciates the comment.
STATUTORY AUTHORITY. TABC adopts the amendment under §§5.31 and 14.09(g) of the Alcoholic Beverage Code. Section 5.31 provides that TABC may prescribe and publish rules necessary to carry out the provisions of the Alcoholic Beverage Code. Section 14.09(g) provides that TABC shall adopt rules to implement distilled spirits samplings or tastings at temporary events.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on January 23, 2024.
TRD-202400220
Matthew Cherry
Senior Counsel
Texas Alcoholic Beverage Commission
Effective date: February 12, 2024
Proposal publication date: December 1, 2023
For further information, please call: (512) 206-3491
SUBCHAPTER F. ADVERTISING AND PROMOTION
The Texas Alcoholic Beverage Commission (TABC) adopts an amendment to rule 16 TAC §45.117, relating to Gifts and Advertising Specialties. The amendment is adopted without changes to the proposed text as published in the December 1, 2023, issue of the Texas Register (48 TexReg 6988). The amended rules will not be republished.
REASONED JUSTIFICATION. The amendment to §45.117 allows TABC to increase or decrease the total amount of advertising specialties furnished to a retailer under §102.07(b) of the Alcoholic Beverage Code by order of the executive director instead of through formal rulemaking. The amendment does not change the total amount of advertising specialties currently allowed under law. Rather, it aligns the process for setting the amount with the process contemplated in §102.07(b), which specifically states that the executive director may change the amount not more than once a year. Under the amendment, any order issued by the executive director must be published in the Texas Register and on the agency's website.
SUMMARY OF COMMENTS. TABC did not receive any comments on the proposed amendment.
STATUTORY AUTHORITY. TABC adopts the amendment under §5.31 of the Texas Alcoholic Beverage Code. Section 5.31 provides that TABC may prescribe and publish rules necessary to carry out the provisions of the Texas Alcoholic Beverage Code.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on January 23, 2024.
TRD-202400221
Matthew Cherry
Senior Counsel
Texas Alcoholic Beverage Commission
Effective date: February 12, 2024
Proposal publication date: December 1, 2023
For further information, please call: (512) 206-3491
SUBCHAPTER B. MANDATORY CURRICULUM AND COURSE OF INSTRUCTION
The Texas Alcoholic Beverage Commission (TABC) adopts an amendment to rule 16 TAC §50.3, relating to Mandatory Course Curriculum. The amendment is adopted without changes to the proposed text as published in the December 1, 2023, issue of the Texas Register (48 TexReg 6989). The amended rule will not be republished. TABC declines to adopt changes to 16 TAC §§50.4-50.6 and 50.29, relating to Alcoholic Beverage Seller Server and Delivery Driver Training, as proposed in the same issue of the Texas Register.
REASONED JUSTIFICATION. The amendment to §50.3(f) eliminates outdated references to the process TABC used to develop the original mandatory course curriculum for seller server training. The amendment also simplifies the process for updating the curriculum by allowing TABC's executive director or their designee to update the curriculum as needed and requires the agency to post notice of any such changes on its website and in the Texas Register.
SUMMARY OF COMMENTS. TABC did not receive any comments on the proposed amendment to §50.3. TABC did receive a comment from the Texas Restaurant Association opposing the proposed amendments to §§50.4 - 50.6 and 50.29, which increased the minimum minutes of active instruction and student participation in the seller server training course curriculum from 120 to 140 minutes to account for the inclusion of training on the signs and symptoms of an opioid-related drug overdose and the administration of an opioid antagonist. The opioid-related training is mandated for certain permittees and licensees under Senate Bill 998 (88th Regular Session).
COMMENT: The commenter opposes the inclusion of opioid-related training in the agency's seller server training and suggests that the proposed amendments to §§50.4 - 50.6 and 50.29 were based on a filed version of SB 998, which did not exempt restaurants from the opioid-related training requirements, rather than the final version of the bill, which did contain such an exemption.
AGENCY RESPONSE: TABC disagrees with the commenter's suggestion that the proposed amendments to §§50.4 - 50.6 and 50.29 were not based on the final version of SB 998. TABC staff closely reviewed the passed version of SB 998 before drafting the proposed amendments. Nevertheless, TABC accepts the commenter's suggestion that opioid-related training not be included in the agency's seller server training. Instead, the opioid-related training will be offered as a standalone course. As such, TABC will not proceed with the adoption of the proposed amendments to §§50.4 - 50.6 and 50.29.
STATUTORY AUTHORITY. TABC adopts the amendment under §§5.31 and 106.14(b) of the Alcoholic Beverage Code. Section 5.31 provides that TABC may prescribe and publish rules necessary to carry out the provisions of the Alcoholic Beverage Code. Section 106.14(b) requires TABC to adopt rules or policies establishing the minimum requirements for approved seller training programs.
CERTIFICATION. The amendment, as adopted, has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on January 23, 2024.
TRD-202400222
Matthew Cherry
Senior Counsel
Texas Alcoholic Beverage Commission
Effective date: February 12, 2024
Proposal publication date: December 1, 2023
For further information, please call: (512) 206-3491