10 TAC §§198.1 - 198.12
The Texas Department of Economic Development (agency) proposes
amendments to Chapter 198, §§198.1 - 198.12. Advertising Rules,
relating to selling advertisements in tourism promotions, as authorized by
Government Code, Chapter 481, Subchapter L, Tourism.
The proposed amendments are necessary to accurately reflect current law,
to reflect current program practices, and to allow for the re-adoption of
the rules. The amendments eliminate references to the Texas Department of
Commerce, which was abolished by Senate Bill 932 of the 75th Legislature,
and replace them with references to the agency. A minor spelling correction
was made. In addition:
Proposed amendments to §198.2 delete the definition of a term no longer
used in the rules.
Proposed amendments to §198.3 clarify that the agency may use its
discretion in determining the cost of advertisements.
Proposed amendments to §198.4 update the rules to include provisions
for the size of Internet advertising.
Proposed amendments to §198.5 clarify that the agency may use its
discretion in determining the appropriateness of advertising.
Proposed amendments to §198.6 clarify the methods the agency may use
to notify potential advertisers of the availability of advertising space.
Proposed amendments to §198.7 update the process for submission of
statements of interest in advertising placements. The amendments also delete
the process for purchasing overruns of promotional materials, because the
agency does not print its own promotional materials.
Proposed amendments to §198.10 update the process for payment and
refunds for advertisements.
Proposed amendments to §198.11 provide that advertising copy will
be mailed to advertisers only upon request.
David Teel, Director of Market Texas Tourism, has determined for each year
of the first five years that the amendments are in effect there will be no
fiscal implications to the state or to local governments as a result of the
amendments. No cost to either government or the public, other than the cost
of advertisers who choose to sell advertising in agency tourism promotions,
will result from the amendments. There will be no impact on small businesses
or micro-businesses.
Mr. Teel has also determined that for each year of the first five years
the amendments are in effect the public benefit anticipated as a result of
the amendments a clearer understanding of the rules and processes for participation
in agency advertising promotions. No economic costs are anticipated to persons
who are required to comply with the proposed amendments.
Written comments on the proposed amendments may be hand delivered to Texas
Economic Development, 1700 North Congress, Suite 130, Austin, Texas 78701,
mailed to P.O. Box 12728, Austin, Texas 78711-2728, or faxed to (512)936-0415
and should be addressed to the attention of Mary Herrick, Legal Assistant.
Comments must received within 30 days of publication of the proposed amendments.
The amendments are proposed pursuant to Government Code 481.0044(a),
which directs the Governing Board of the agency to adopt rules for administration
of agency programs, and Government Code, Chapter 2001, Subchapter B which
prescribes the standards for rulemaking by state agencies.
Texas Government Code, Chapter 481, Subchapter L, is affected by this proposal.
§198.1. General Provisions.
(a)
Introduction. Pursuant to the authority granted by Government
Code §481.174, as amended, and the Administrative Procedure Act, Government
Code, Chapter 2001, Subchapter B, Rulemaking, as amended, the Texas Department
of
Economic Development (TxED)
[
Commerce
] prescribes
the following sections regarding the policies and procedures to be followed
by
TxED
[
Commerce
] in selling advertisements within
its travel promotion materials.
(b)
Purpose. These rules set forth
TxED
[
the
Commerce
] policies and procedures relating to the sale of advertisements
in
TxED
[
Commerce
] travel promotion materials of any
media including print, broadcast, hi-tech venues and any other media.
§198.2.Definitions.
The following words and terms, when used in this chapter, shall have
the following meanings, unless the context clearly indicates otherwise.
[(1)
Commerce--The Texas Department of Commerce.]
(1)
[
(2)
]Executive Director--The executive
director of
TxED
[
Commerce
]
[(3)
Overruns--Extra copies of print advertisements.]
(2)
[
(4)
]Serving Texas--Benefitting the
state.
(3)
TxED or Texas Economic Development --
the Texas Department of Economic Development.
(4)
[
(5)
]Texas Hospitality Industry--Any
Texas business operating in or providing travel service to Texas, categorized
by standard industrial category (SIC) code, as defined in the glossary of
terms in the
TxED
[
Commerce
] publication entitled "Travel
Spending for Texas Communities."
(5)
[
(6)
]Texas Travel and Tourism Industry--Businesses
with direct relationships to travel as defined above in the definition of
Texas Hospitality Industry.
§198.3.Cost of Advertisements.
The cost of advertising space will be determined on a per project basis
by
TxED.
[
Commerce
]
Factors considered in determining
[
The
] advertising rates
may include, but are not limited
to,
[
will be determined with consideration of
] the market,
the cost for production of the travel promotion material in which the advertisement
is to be placed, the cost of distribution of the travel promotion material,
and circulation of the travel promotion publication or other media in which
the advertisement is placed.
§198.4.Size of Advertisements.
Print advertising space may be sold by
TxED
[
Commerce
] in full page, half page or quarter page sizes, or such other sizes
as
TxED
[
Commerce
] may make available for sale. Broadcast
advertisement spots may be sold in 10 second, 20 second and 30 second spots,
or such other lengths as
TxED
[
Commerce
] may determine
are appropriate.
Internet advertising may be sold in standard banner
sizes or text links and other sizes as TxED may determine are appropriate.
§198.5.Advertised Products and Services.
(a)
Acceptable Products and Services.
Subject to the limitations
set forth in
[
So long as they do not advertise products or services
which Commerce deems unacceptable pursuant to
] subsection (b) of this
section, the following products and services are acceptable for advertising
in
TxED
[
Commerce
] travel promotion materials:
(1)
travel destinations, attractions, facilities and associations
located in and serving Texas;
(2)
products and services within the Texas hospitality industry;
(3)
restaurants, retailers, and air and ground transportation
services located in and serving Texas;
(4)
other sites, products, equipment, facilities and services
relating to travel and tourism; and
(5)
other entities relating to business development and economic
growth for Texas.
(b)
Unacceptable Products and Services. The following products
and services are unacceptable for advertising in
TxED
[
Commerce
] travel promotion materials:
(1)
out-of-state travel and tourism destinations, attractions,
facilities and associations unless such advertisements augment and complement
Texas travel and tourism promotions;
(2)
alcoholic beverages;
(3)
tobacco products;
(4)
sexually-oriented products and services;
(5)
advertisements of a political nature;
(6)
advertisements containing disparaging characteristics;
(7)
inherently dangerous products; [
and
]
(8)
such other products and services as the executive director
determines could diminish or damage the reputation of the State of Texas;
and
(9)
any advertising that TxED determines is
inappropriate or inconsistent with the goals of the promotion.
§198.6.Notification of the Availability of Advertising Space.
TxED
[
Commerce
] may notify the public of the availability
of advertising space in
TxED
[
Commerce
] travel promotion
materials through
any medium, including,
mass notification, using
fax, mail and electronic media, to the Texas Travel and Tourism Industry;
through appropriate Texas hospitality industry newsletters, including newsletters
of the Texas Travel Industry Association, the Texas Restaurant Association,
Texas Association of Convention and Visitors Bureaus,
and the Texas
Hotel/Motel Association and through the
TxED
[
Commerce
]
newsletter. Such notifications may include information on advertising rates,
deadlines, contact information, distribution mechanisms, audience demographic
information, a commitment form and related information.
§198.7.Advertising Placement and Sales Procedure.
(a)
Distribution of
Participation Forms
[
Commitment
Cards
].
TxED
[
Commerce
] will provide
participation
forms
[
commitment cards
] to requesting parties [
at least
30 days
] prior to the closing date for placement of advertisements.
The
participation forms
[
commitment forms
] are the only
way to reserve and purchase advertising space. Telephone calls, verbal and
written space reservations will not be accepted by
TxED
[
Commerce
] in lieu of submission of a completed
participation
[
commitment
] form. Completed
participation forms,
[
commitment
cards together with full payment for the advertisement,
] must be mailed,
e-mailed
or delivered to the
TxED
[
Commerce
] contact
person indicated on the
participation form
[
commitment card
].
Participation forms
[
Commitment cards
] will
not be accepted by
TxED
[
Commerce
] prior to the initial
notification of the availability of advertising space having been issued by
TxED
[
Commerce
] pursuant to §198.6 of this title (relating
to Notification of the Availability of Advertising Space).
Participation
forms
[
Commitment cards
] are not transferable between specific
advertising opportunities.
(b)
First-come, First-served Availability. The reservation
and purchase of advertising space for acceptable products and services, as
specified in §198.5(a) of this title (relating to Advertised Products
and Services) hereof will be accepted on a first-come, first-served basis.
[
Overruns of promotional materials may be ordered on the commitment form
at the discretion of the advertiser.
]
(c)
Unavailability of Advertising Space. If advertising space
sells out, or otherwise becomes unavailable,
TxED
[
Commerce
] will notify affected individuals and entities of such unavailability
within 72 hours of space having become unavailable.
(d)
Extension of Placement Deadline. If advertising space is
unfilled at the placement deadline,
TxED
[
Commerce
]
may extend the deadline for reserving advertising space. Unsold advertising
space remaining after a placement deadline may be used by
TxED
[
Commerce
].
§198.8.Approval of Advertising Copy.
The advertiser will have final editorial and proofing approval on all
advertising copy prior to printing of the advertisement by
TxED
[
Commerce
]. However,
TxED
[
Commerce
] reserves the
right to reject advertising copy which it deems inappropriate pursuant to §198.5(b)
of this title (relating to Advertised Products and Services) or which it considers
misleading or a misrepresentation of facts.
§198.9.Liability.
TxED
[
Commerce
] shall have no liability for errors
or omissions in advertisements.
§198.10.Payment.
Full payment for the advertisement must be made
within 30 days
of receipt of an invoice from TxED
[
at the time the commitment
form is submitted reserving advertising space
] and must be received
by
TxED
[
Commerce
] no later than 5:00 p.m.
on the
due date on the invoice.
[
on the closing date for placement of the
advertisement
] Failure to submit such payment will result in
cancellation
[
nonacceptance
] of the
participation
[
commitment
] form by
TxED
[
Commerce
].
In the event that
payment is received for advertising that cannot be included in the promotion,
TxED will refund the amount paid, minus costs incurred.
[
Any overruns
ordered must be paid for at the time of submission of the commitment form.
]
§198.11.Tearsheets.
Following publication of an advertisement,
TxED
[
Commerce
] will mail a copy of the advertisement to the advertiser
only
upon request.
§198.12.Refusal To Do Business with Certain Individuals and Entities.
TxED
[
Commerce
] reserves the right to refuse advertisements
from individuals or entities that discriminate against customers on the basis
of sex, race, color, creed, religion or national origin.
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 March 8, 2002.
TRD-200201453
Tracye McDaniel
Deputy Executive Director
Texas Department of Economic Development
Earliest possible date of adoption: April 21, 2002
For further information, please call: (512) 936-0177