Part 3. TEXAS ALCOHOLIC BEVERAGE COMMISSION
Chapter 45. MARKETING PRACTICES
Subchapter A. STANDARDS OF IDENTITY FOR DISTILLED SPIRITS
The Texas Alcoholic Beverage Commission (commission) adopts the repeal of §§45.8, 45.9, 45.11 - 45.16, relating to label information and requirements for distilled spirits, and §45.33, relating to certificate of label approval; and adopts new §45.33, relating to application, requirements and fees for certificate of registration for distilled spirits with changes to the proposed text as published in the November 23, 2007, issue of the Texas Register (32 TexReg 8412). The repeal of §§45.8, 45.9, 45.11 - 45.16, and 45.33 are adopted without changes, and therefore, the sections will not be republished.
Senate Bill 904, §21, 80th Legislature, Regular Session, 2007, amended Chapter 101 of the Texas Alcoholic Beverage Code (Code) to add new §101.671 to the Code. This new section provides, in part, that an authorized permit holder may not ship distilled spirits into the state, or sell distilled spirits within the state without first registering and obtaining a certificate of registration from the commission. An applicant for a certificate of registration for distilled spirits must include a Certificate of Label Approval (COLA) issued by the United States Alcohol and Tobacco Tax and Trade Bureau (TTB). The commission must accept the COLA issued by the TTB as evidence that the distilled spirit meets the standards of quality, purity, and identity required by §5.38 of the Code. The effect of this section makes obtaining a COLA mandatory for all products shipped into or sold within the state. The commission will no longer issue a Certificate of Registration to any product without a COLA. The new section also provides that the distilled spirit may not be registered if the application is not submitted with a fee sufficient to cover the cost of administration of the section.
Sections 45.8, 45.9, 45.11 - 45.16, and 45.33, are repealed because they are no longer necessary after the adoption of new §45.33.
New §45.33 sets forth the requirements for application and approval of a Certificate of Registration (Certificate) by the commission. The section describes activities that are prohibited without first obtaining a certificate, who may submit an application for a Certificate, the form and required content of the application, the application fee of $25.00 to be submitted with the application and a statement that the commission does not require additional product approval or testing to issue the Certificate.
The commission has reviewed and prepared responses to the comments received regarding the proposed rule during the comment period. Some of the comments were accepted and changes made to the proposed rule as a result of the comments. Some comments were not accepted. The commenters were individuals and the Distilled Spirits Council of the United States. The commenters were generally in favor of the rule; however, they suggested changes as discussed in the summary of comments.
Comment: Concerning the rules generally, one commenter suggested that the heading of new §45.33 be changed to more accurately reflect that the application is for registration of the distilled spirit, not label approval, and that similar changes be reflected in the rule text.
Response: The commission agrees and has changed the section heading and rule text to reflect the comment.
Comment: Concerning §45.33(f), one commenter suggested that language be inserted requiring the commission to issue a certificate of registration if the requirements of the section were satisfied.
Response: The commission disagrees with this comment because it is unnecessary and is not required to implement the statute. No change was made as a result of the comment.
Comment: Concerning §45.33(a), one commenter suggested that upon submission of an application and payment of the required fee the applicant may ship and sell distilled spirits in the state and the commission shall issue a certificate of approval.
Response: The commission disagrees with this comment. Although not requiring further testing or approval of a product, Code §101.671, still requires that the commission act on the application and "issue a letter to that effect to the permittee". As indicated in the above comment, if all requirements of the section are met the commission will issue the certificate without compelling itself to do so by rule. No change was made as a result of the comment.
Comment: One commenter suggested that the commission restructure its brand registration scheme to a per brand basis, rather than a per brand/container size basis.
Response: The commission would like to clarify that this "restructuring brand registration" is a natural consequence of the acceptance of the federal COLA for registering a product with the commission. If the TTB requires only one COLA for the product, regardless of the container size, TABC will also only require the registration of that label for the product regardless of container size. Likewise, if the TTB requires separate COLA registrations for a range of container sizes, so will TABC. The intent was to bring TABC "in sync" with the federal label approval process. No change in the rule is required, as the rule already states "distilled spirit" or "product" rather than container. No changes were made as a result of the comment.
Comment: Concerning the amendment of other rules that are affected by the repeal and new section, one commenter suggested amendments to §§45.25, 45.28, 45.31, and 45.32.
Response: Although the commission agrees with the commenter, the changes are beyond the scope of the rule as proposed, and amendments will be submitted separately.
16 TAC §§45.8, 45.9, 45.11 - 45.16, 45.33
The repeal of the existing rules is adopted under the authority of §5.31 of the Alcoholic Beverage Code (Code), which authorizes the commission to adopt rules necessary to carry out provisions of the Code, §5.38 of the Code which provides specific authority to adopt rules governing the labeling and standards of quality, purity and identity of alcoholic beverages, and §101.671 of the Code which provides specific authority to register distilled spirits and accept the certificate of label approval issued by the United States Alcohol and Tobacco Tax and Trade Bureau as compliance with the requirements of §5.38 of the Code.
Cross Reference: Sections 5.31, 5.38, and 101.671 of the Alcoholic Beverage Code are affected by these repeals.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on March 10, 2008.
TRD-200801379
Alan Steen
Administrator
Texas Alcoholic Beverage Commission
Effective date: March 30, 2008
Proposal publication date: November 23, 2007
For further information, please call: (512) 206-3204
The new rule is adopted under the authority of §5.31 of the Alcoholic Beverage Code (Code), which authorizes the commission to adopt rules necessary to carry out provisions of the Code, §5.38 of the Code which provides specific authority to adopt rules governing the labeling and standards of quality, purity and identity of alcoholic beverages and §101.671 of the Code which provides specific authority to register distilled spirits and accept the certificate of label approval issued by the United States Alcohol and Tobacco Tax and Trade Bureau as compliance with the requirements of §5.38 of the Code.
Cross Reference: Sections 5.31, 5.38, and 101.671 of the Alcoholic Beverage Code are affected by the new rule.
§45.33.Certificate of Registration.
(a) No distilled spirit may be shipped into the state or sold within the state without a Certificate of Registration (Certificate) issued by the commission.
(b) An applicant for a Certificate under this section must hold a Distiller's & Rectifier's Permit or a Nonresident Seller's Permit issued by the commission.
(c) An applicant must submit an Application to Register a Distilled Spirit (application) on the form prescribed by the commission along with the application fee to the commission. The application must contain the following information:
(1) A certificate of label approval (COLA) issued by the United States Alcohol and Tobacco Tax and Trade Bureau;
(2) product brand name; and
(3) product class and type.
(d) A legible copy of the COLA must be included with the application. If the COLA is not legible, an actual label that is affixed to the distilled spirit as shipped or sold, or an exact color copy of a label must be included with the application.
(e) The application fee for a Certificate is $25.00.
(f) No additional approval or testing of the distilled spirit by the commission is required for issuance of a Certificate.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on March 10, 2008.
TRD-200801378
Alan Steen
Administrator
Texas Alcoholic Beverage Commission
Effective date: March 30, 2008
Proposal publication date: November 23, 2007
For further information, please call: (512) 206-3204
The Texas Alcoholic Beverage Commission (commission) adopts the repeal of §45.50, relating to label application for wine and §45.51, relating to mandatory label information for wine, and adopts new §45.50, relating to requirements and fees for certificate of registration for wine with changes to the proposed text as published in the November 23, 2007, issue of the Texas Register (32 TexReg 8413). Sections 45.50 and 45.51 are adopted without changes, therefore, the sections will not be republished.
Senate Bill 904, §21, 80th Legislature, Regular Session, 2007, amended Chapter 101 of the Texas Alcoholic Beverage Code (Code) to add new §101.671 to the Code. This new section provides, in part, that an authorized permit holder may not ship wine into the state, or sell wine within the state without first registering and obtaining a certificate of registration from the commission. An applicant for a certificate of registration must include a Certificate of Label Approval (COLA) issued by the United States Alcohol and Tobacco Tax and Trade Bureau (TTB). The commission must accept the COLA issued by the TTB as evidence that the wine meets the standards of quality, purity, and identity required by §5.38 of the Code. The effect of this section makes obtaining a COLA mandatory for all products shipped into or sold within the state. The commission will no longer issue a Certificate of Registration to any product without a COLA. The new section also provides that the wine may not be registered if the application is not submitted with a fee sufficient to cover the cost of administration of the section.
Sections 45.50 and 45.51 are repealed because they are no longer necessary after the adoption of new §45.50. The new section authorizes the acceptance of a TTB COLA as evidence that the product and label have satisfied each labeling standard contained in the repealed sections.
New §45.50 sets forth the requirements for application and approval of a Certificate of Registration (Certificate) by the commission. The section describes activities that are prohibited without first obtaining a certificate, who may submit an application for a Certificate, the form and required content of the application, the application fee of $25.00 to be submitted with the application and a statement that the commission does not require additional product approval or testing to issue the Certificate.
The commission has reviewed and prepared responses to the comments received regarding the proposed rules during the comment period. Some of the comments were accepted and changes made to the proposed rule as a result of the comments. Some comments were not accepted. The commenters were individuals and the Distilled Spirits Council of the United States. The commenters were generally in favor of the rules; however, they suggested changes as discussed in the summary of comments.
Comment: Concerning the rules generally, one commenter suggested that the heading of new §45.50 be changed to more accurately reflect that the application is for registration of the wine, not label approval, and that similar changes be reflected in the rule text.
Response: The commission agrees and has changed the section heading and rule text to reflect the comment.
Comment: Concerning §45.50(f) one commenter suggested that language be inserted requiring the commission to issue a certificate of registration if the requirements of the section were satisfied.
Response: The commission disagrees with this comment because it is not necessary; if all requirements of the section are met the commission will issue the certificate without compelling itself to do so by rule.
Comment: Concerning §45.50(a), one commenter suggested that upon submission of an application and payment of the required fee the applicant may ship and sell wine in the state and the commission shall issue a certificate of approval.
Response: The commission disagrees with this comment. Although not requiring further testing or approval of a product, Code §101.671, still requires that the commission act on the application and "issue a letter to that effect to the permittee". As indicated in the above comment if all requirements of the section are met the commission will issue the certificate without compelling itself to do so by rule.
Comment: One commenter suggested that the commission restructure its brand registration scheme to a per brand basis, rather than a per brand/container size basis.
Response: The commission would like to clarify that this "restructuring brand registration" is a natural consequence of the acceptance of the federal COLA for registering a product with the commission. If the TTB requires only one COLA for the product, regardless of the container size, TABC will also only require the registration of that label for the product regardless of container size. Likewise, if the TTB requires separate COLA registrations for a range of container sizes, so will TABC. The intent was to bring TABC "in sync" with the federal label approval process. No change in the rule is required, as the rule already states "wine" or "product" rather than container.
Comment: Concerning the amendment of other rules that are affected by the repeal and new section, one commenter suggested the repeal of §45.52.
Response: Although the commission agrees with the commenter, the changes are beyond the scope of the rule as proposed, and a repeal of the section will be submitted separately.
The repeals are adopted under the authority of §5.31 of the Alcoholic Beverage Code (Code), which authorizes the commission to adopt rules necessary to carry out provisions of the Code, §5.38 of the Code which provides specific authority to adopt rules governing the labeling and standards of quality, purity and identity of alcoholic beverages and §101.671 of the Code which provides specific authority to register wine and accept the certificate of label approval issued by the United States Alcohol and Tobacco Tax and Trade Bureau as compliance with the requirements of §5.38 of the Code.
Cross Reference: Sections 5.31, 5.38, and 101.671 of the Alcoholic Beverage Code are affected by these repeals.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on March 12, 2008.
TRD-200801427
Alan Steen
Administrator
Texas Alcoholic Beverage Commission
Effective date: April 1, 2008
Proposal publication date: November 23, 2007
For further information, please call: (512) 206-3204
The new rule is adopted under the authority of §5.31 of the Alcoholic Beverage Code (Code), which authorizes the commission to adopt rules necessary to carry out provisions of the Code, §5.38 of the Code which provides specific authority to adopt rules governing the labeling and standards of quality, purity and identity of alcoholic beverages and §101.671 of the Code which provides specific authority to register wine and accept the certificate of label approval issued by the United States Alcohol and Tobacco Tax and Trade Bureau as compliance with the requirements of §5.38 of the Code.
Cross Reference: Sections 5.31, 5.38, and 101.671 of the Alcoholic Beverage Code are affected by the new rule.
§45.50.Certificate of Registration.
(a) No wine may be shipped into the state or sold within the state without a Certificate of Registration (Certificate) issued by the commission.
(b) An applicant for a Certificate under this section must hold a Winery or a Nonresident Seller's Permit issued by the commission.
(c) An applicant must submit an Application to Register a Wine (application) on the form prescribed by the commission along with the application fee to the commission. The application must contain the following information:
(1) A certificate of label approval (COLA) issued by the United States Alcohol and Tobacco Tax and Trade Bureau (TTB);
(2) product brand name; and
(3) product class and type;
(4) fanciful name;
(5) appellation and vintage;
(6) alcohol content;
(7) size of container.
(d) A legible copy of the COLA must be included with the application. If the COLA is not legible, an actual label that is affixed to the wine as shipped, sold, or marketed, or an exact color copy of a label must be included with the application.
(e) The application fee for a Certificate of Registration is $25.00.
(f) No additional approval or testing of the wine by the commission is required for issuance of a Certificate of Registration.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on March 12, 2008.
TRD-200801426
Alan Steen
Administrator
Texas Alcoholic Beverage Commission
Effective date: April 1, 2008
Proposal publication date: November 23, 2007
For further information, please call: (512) 206-3204