Proposed Rules Title 16

TITLE 16. ECONOMIC REGULATION

PART 3. TEXAS ALCOHOLIC BEVERAGE COMMISSION

CHAPTER 33. LICENSING

The Texas Alcoholic Beverage Commission (TABC) proposes to amend 16 TAC §33.2, relating to Application and Fee Payment Procedures, 16 TAC §33.23, relating to License and Permit Fees, 16 TAC §33.44, relating to Excise Tax Bonds, 16 TAC §33.45, relating to Bonds for Alternating Brewery Proprietorships and Contract Brewing Arrangements, 16 TAC §33.57, relating to Application Withdrawn, 16 TAC §33.75, relating to Penalties and Suspension, 16 TAC §33.93, relating to Notification Requirements, 16 TAC §33.100, relating to General Provisions, 16 TAC §33.103, relating to Notice and Opportunity for Hearing, and 16 TAC §33.104, relating to Contents of Emergency Order. TABC also proposes to repeal 16 TAC §33.101, relating to Authority of the Executive Director, and 16 TAC §33.105, relating to Appeals of Emergency Orders.

The proposed amendment to §33.2(a) removes a reference to physical application forms provided by TABC to reflect the fact that applications may now be filled out and submitted in a digital format through the agency's online business portal.

The proposed amendment to §33.23(c) reduces the minimum number of days that a nonprofit temporary event permit may be issued from two days to one day. The agency's goal is to reduce the regulatory burden on applicants.

The proposed amendments to §§33.44(b) and 33.75(c) update internal rule citations to the appropriate, current rules to conform with previous changes to rule numbering.

The proposed amendments to §33.45 remove references to statutes and terms that correspond with the former brewer's permit that was eliminated by House Bill 1545 (2019).

The proposed amendment to §33.57(b) alters the method for calculating the minimum number of days that must elapse before the agency may withdraw an application. Currently, §33.57(b) provides that TABC may consider an application withdrawn if an applicant fails to respond to requests from the agency for additional information or for remittance of a fee within ten business days. The proposed amendment changes that timeline to ten calendar days to account for the fact that the agency's online business portal is generally accessible 24 hours a day, seven days a week. However, the agency still retains discretion to withdraw the application after that time period.

The proposed amendment to §33.93(b) removes a reference to reporting changes to the contact information for seller-server schools. The requirements for seller server school certificates are found in Chapter 50 and the agency is proposing to relocate that language to §50.24 in a separate and simultaneous rulemaking.

The proposed amendments to §33.100: (1) clarify that emergency orders suspending licenses or permits are initially issued without a hearing, as provided by Alcoholic Beverage Code §11.614; (2) better align the rule language with the statutory language in §11.614(a); and (3) remove obsolete and redundant language regarding the applicability of the Open Meetings Act and Administrative Procedure Act. TABC also proposes to repeal §33.101 because it is redundant due to the proposed amendments to §33.100. The proposed amendments to §33.103 better align the rule language with the statutory language in §11.614(c) and clarify that the administrative law judge's decision to affirm, modify, or set aside the order is final. The proposed changes to §33.103 render §33.105 obsolete, therefore TABC is proposing to repeal §33.105. Finally, the proposed amendment to §33.104 simply adds language clarifying that the term of the suspension must be in the agency's emergency order.

TABC presented the proposed amendments at a stakeholder meeting on October 3, 2024, and received comments. TABC considered these comments when drafting this proposal.

FISCAL NOTE AND LOCAL EMPLOYMENT IMPACT STATEMENT. Andrea Maceyra, Chief of Regulatory Affairs, has determined that during each year of the first five years the proposed amendments are in effect, there will be no fiscal impact on state or local governments because of enforcing or administering the amended rules. Mrs. Maceyra made this determination because the proposed amendments do not add to or decrease state revenues or expenditures, and because local governments are not involved in enforcing or complying with the amended rules. Mrs. Maceyra also does not anticipate any measurable effect on local employment or the local economy because of this proposal.

PUBLIC BENEFIT AND COST NOTE. For each year of the first five years the proposed amendments are in effect, Mrs. Maceyra expects that enforcing or administering the amended rules will have the public benefit of ensuring current rules align with existing statutes and clarify existing regulations. Mrs. Maceyra does not expect the proposed amendments will impose economic costs on persons required to comply with the amended rules.

ECONOMIC IMPACT STATEMENT AND REGULATORY FLEXIBILITY ANALYSIS. TABC has determined that the proposed amendments will not have an adverse economic effect on small or micro businesses, or on rural communities. As a result, and in accordance with Government Code §2006.002(c), TABC is not required to prepare a regulatory flexibility analysis.

GOVERNMENT GROWTH IMPACT STATEMENT. TABC has determined that for each year of the first five years that the proposed amendments are in effect, they:

- will not create or eliminate a government program;

- will not require the creation of new employee positions or the elimination of existing employee positions;

- will not require an increase or decrease in future legislative appropriations to the agency;

- will not require an increase or decrease in fees paid to the agency;

- will not create a new regulation;

- will expand, limit, or repeal an existing regulation;

- will not increase or decrease the number of individuals subject to the rule's applicability; and

- will not positively or adversely affect the Texas economy.

TAKINGS IMPACT ASSESSMENT. TABC has determined that no private real property interests are affected by this proposal and that this proposal does not restrict or limit an owner's right to property that would otherwise exist in the absence of government action. As a result, this proposal does not constitute a taking or require a takings impact assessment under Government Code §2007.043.

REQUEST FOR PUBLIC COMMENT. TABC will consider any written comments on the proposal that are received by TABC no later than 5:00 p.m., central time, December 29, 2024. Send your comments to rules@tabc.texas.gov or to the Office of the General Counsel, Texas Alcoholic Beverage Commission, P.O. Box 13127, Austin, Texas 78711-3127. TABC staff will hold a public hearing to receive oral comments on the proposed rule at 10:00 a.m. on December 19, 2024. Interested persons should visit the TABC's public website at www.tabc.texas.gov or contact TABC Legal Assistant Kelly Johnson at (512) 206-3367, prior to the meeting date to receive further instructions.

SUBCHAPTER A. APPLICATIONS

16 TAC §33.2

STATUTORY AUTHORITY. TABC proposes the amendments pursuant to TABC's rulemaking authority under Texas Alcoholic Beverage Code §§5.31, 11.614(d), 30.08(2), 62.14(d), 63.05(d). Section 5.31 authorizes TABC to prescribe and publish rules necessary to carry out the provisions of the Alcoholic Beverage Code. Section 11.614(d) authorizes TABC to "prescribe procedures for the determination and appeal of an emergency order issued under section 11.614." Section 30.08(2) directs TABC to "adopt rules which it determines to be necessary to implement and administer the provisions of Chapter 30, including "the duration for a permit issued under Chapter 30." Sections 62.14(d) and 63.05(d) both authorize TABC "by rule to require an entity that is a party to an alternating brewery proprietorship or contract brewing arrangement to post with the commission a bond in an amount determined by the commission."

CROSS-REFERENCE TO STATUTE. The proposed amendment to §33.2 implements Alcoholic Beverage Code §§5.55(a), 11.33, and 61.31(a). The proposed amendment to §33.23 implements Alcoholic Beverage Code §30.02. The proposed amendment to §33.44 implements Chapter 204 of the Alcoholic Beverage Code. The proposed amendments to §33.45 implement Alcoholic Beverage Code §§62.14 and 63.05. The proposed amendment to §33.57 implements Alcoholic Beverage Code §§5.31(b)(5) and 11.43(j). The proposed amendment to §33.75 implements Alcoholic Beverage Code §§14.09, 16.08, 16.12, 25.16, 28.19, 28.20, 30.02, 32.25, and 69.18. The proposed amendment to §33.93 implements Alcoholic Beverage Code §106.14. The proposed amendments to §§33.100 - 33.105 implement Alcoholic Beverage Code §11.614.

§33.2.Application and Fee Payment Procedures.

(a) Applications for licenses, permits and certificates shall be made by an applicant in such a manner as may be directed by the executive director [~~upon forms provided by the commission~~].

(b) - (e) (No change.)

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on November 15, 2024.

TRD-202405547

Matthew Cherry

Senior Counsel

Texas Alcoholic Beverage Commission

Earliest possible date of adoption: December 29, 2024

For further information, please call: (512) 206-3491

SUBCHAPTER B. FEES AND PAYMENTS

16 TAC §33.23

STATUTORY AUTHORITY. The amendments are proposed pursuant to TABC’s rulemaking authority under §§5.31 and 30.08(2) 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. Section 30.08(2) directs TABC to "adopt rules which it determines to be necessary to implement and administer the provisions of Chapter 30, including the duration for a permit issued under Chapter 30."

§33.23.License and Permit Fees.

(a) - (b) (No change.)

(c) An applicant for a Nonprofit Entity Temporary Event authorization shall pay a fee of $50 per day [~~with a two-day minimum~~], pursuant to §33.78 of this title. The authorization must be in effect for all days that alcoholic beverages will be present at the temporary event location, from delivery to removal.

(d) - (e) (No change.)

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on November 15, 2024.

TRD-202405548

Matthew Cherry

Senior Counsel

Texas Alcoholic Beverage Commission

Earliest possible date of adoption: December 29, 2024

For further information, please call: (512) 206-3491

SUBCHAPTER C. BONDS

16 TAC §33.44, §33.45

STATUTORY AUTHORITY. The amendments are proposed pursuant to TABC's rulemaking authority under §§5.31, 62.14(d) and 63.05(d) 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. Sections 62.14(d) and 63.05(d) both authorize TABC "by rule to require an entity that is a party to an alternating brewery proprietorship or contract brewing arrangement to post with the commission a bond in an amount determined by the commission."

§33.44.Excise Tax Bonds.

(a) (No change.)

(b) Each bond required under this section shall be set by the executive director at an amount determined pursuant to §41.39 [~~§41.42~~] of this title that will protect the state against the anticipated tax liability of the principal for any six-week period based on previous average alcoholic beverage sales or estimates of the future average volume of sales.

§33.45.Bonds for Alternating Brewery Proprietorships and Contract Brewing Arrangements.

(a) This section relates to Alcoholic Beverage Code §§62.14 and 63.05 [~~§§11.71, 12.01(a)(6), 13.04(c), 61.41(d) and 62.01(a)(5)~~].

(b) (No change.)

(c) A licensee [~~or permittee~~] who was not subject to the bond requirements of subsection (b) [~~or (c)~~] of this section at the time of application must post the required bond at the time it becomes subject to those requirements.

(d) The licensee [~~or permittee~~] may, within 30 days of the notice specified in §33.40(l)(1) of this title request a hearing on the question of whether the criteria established by this section for forfeiture of a bond have been satisfied. The hearing shall be conducted in accordance with Chapter 2001 of the Government Code.

(e) Release of Surety. A license [~~or permit~~] holder may request release and return of the surety required by subsection (b) [~~or (c)~~] of this section upon:

(1) expiration of the license [~~or permit~~];

(2) voluntary cancellation of the license [~~or permit~~];

(3) verification that the applicant or license [~~or permit~~] holder has acquired fee interest in a brewing [~~or manufacturing~~] facility (as appropriate in reference to subsection (b) [~~subsections (b) and (c)~~] of this section); or

(4) verification that the license [~~or permit~~] holder no longer is a party to an alternating brewery proprietorship or contract brewing arrangement.

(f) (No change.)

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on November 15, 2024.

TRD-202405549

Matthew Cherry

Senior Counsel

Texas Alcoholic Beverage Commission

Earliest possible date of adoption: December 29, 2024

For further information, please call: (512) 206-3491

SUBCHAPTER D. APPLICATION REVIEW AND PROTESTS

16 TAC §33.57

STATUTORY AUTHORITY. The amendments are proposed pursuant to TABC's rulemaking authority 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.

§33.57.Application Withdrawn.

(a) (No change.)

(b) If an applicant fails to respond to requests from the TABC for additional information or for remittance of a license or permit fee within ten (10) calendar [~~business~~] days of the request, the TABC may consider the application withdrawn by the applicant.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on November 15, 2024.

TRD-202405550

Matthew Cherry

Senior Counsel

Texas Alcoholic Beverage Commission

Earliest possible date of adoption: December 29, 2024

For further information, please call: (512) 206-3491

SUBCHAPTER E. EVENTS AT A TEMPORARY LOCATION

16 TAC §33.75

§33.75.Penalties and Suspension.

(a) - (b) (No change.)

(c) The executive director may temporarily suspend an applicant's right to apply for a temporary authorization for violations of offenses against the general welfare under §34.3[~~§35.31~~] of this title that occur in connection with the use of a temporary authorization.

(d) (No change.)

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on November 15, 2024.

TRD-202405551

Matthew Cherry

Senior Counsel

Texas Alcoholic Beverage Commission

Earliest possible date of adoption: December 29, 2024

For further information, please call: (512) 206-3491

SUBCHAPTER F. LICENSE AND PERMIT ACTION

16 TAC §33.93

§33.93.Notification Requirements.

(a) (No change.)

(b) A person who holds a license, permit, or certificate issued by the Alcoholic Beverage Commission shall file a notice of change of mailing address with the Commission within seven (7) business days of the change. [~~A person who holds a certificate issued by the Commission shall file the change of address with the Seller/Server Training Division at TABC, P.O. Box 13127, Austin, Texas 78711.~~]

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on November 15, 2024.

TRD-202405552

Matthew Cherry

Senior Counsel

Texas Alcoholic Beverage Commission

Earliest possible date of adoption: December 29, 2024

For further information, please call: (512) 206-3491

SUBCHAPTER G. EMERGENCY ORDERS

16 TAC §§33.100, 33.103, 33.104

STATUTORY AUTHORITY. The amendments are proposed pursuant to TABC's rulemaking authority under §§5.31 and 11.614 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. Section 11.614 authorizes TABC to prescribe procedures for the determination and appeal of an emergency orders temporarily suspending a license.

§33.100.General Provisions.

(a) The purpose of this subchapter is to implement the commission's authority under Texas Alcoholic Beverage Code Section 11.614 to issue an emergency order temporarily suspending a permit or license without a hearing.

(b) The commission, executive director, or executive director's designee may issue an emergency order suspending the permit or license of a business without a hearing if the commission, executive director, or executive director's designee determines that the continued operation of the business constitutes a continuing threat to the public welfare.

[(c) All hearings under this subchapter, including appeals, may be held by teleconference or videoconference in compliance with applicable provisions of the Texas Open Meetings Act (Tex. Gov't Code Ch. 551) and the Administrative Procedure Act (Tex. Gov't Code Ch. 2001).]

§33.103.Notice and Opportunity for Hearing.

If an emergency order is issued without a hearing, the executive director or his designee shall set the time and place for a hearing to affirm, modify, or set aside [on] the emergency order [~~to be conducted by the State Office of Administrative Hearings~~]. The hearing shall be conducted by the State Office of Administrative Hearings and the decision rendered by the Administrative Law Judge is final.

§33.104.Contents of Emergency Order.

An emergency order issued under this subchapter shall contain at least the following:

(1) the name and address of the license or permit holder and information sufficient to identify the premises affected by the order;

(2) a brief statement of fact supporting the issuance of the order;

(3) a determination that the continued operation of a permitted or licensed business would constitute a continuing threat to the public welfare; and

(4) a statement of the term of the suspension [~~order~~], including the date on which it begins and ends.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on November 15, 2024.

TRD-202405553

Matthew Cherry

Senior Counsel

Texas Alcoholic Beverage Commission

Earliest possible date of adoption: December 29, 2024

For further information, please call: (512) 206-3491

16 TAC §33.101, §33.105

STATUTORY AUTHORITY. The repeals are proposed pursuant to TABC’s rulemaking authority under §§5.31 and 11.614 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. Section 11.614 authorizes TABC to prescribe procedures for the determination and appeal of an emergency orders temporarily suspending a license.

§33.101.Authority of the Executive Director.

§33.105.Appeals of Emergency Orders.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on November 15, 2024.

TRD-202405554

Matthew Cherry

Senior Counsel

Texas Alcoholic Beverage Commission

Earliest possible date of adoption: December 29, 2024

For further information, please call: (512) 206-3491

CHAPTER 45. MARKETING PRACTICES

The Texas Alcoholic Beverage Commission (TABC) proposes to amend 16 TAC §45.9, relating to Withdrawal of Application, 16 TAC §45.11, relating to When Reapplication is Required, 16 TAC §45.12, relating to Application Procedures During Interruption of Federal Agency Operations, 16 TAC §45.20, relating to Exhibiting Certificates to Representatives of the Commission, 16 TAC §45.23, relating to Alteration of Labels, 16 TAC §45.30, relating to Certificates of Registration for a Distilled Spirit Product, 16 TAC §45.40, related to Certificate of Registration for a Malt Beverage Product, 16 TAC §45.50, relating to Certificate of Registration for Wine, and 16 TAC §45.105, relating to Advertising.

The proposed amendment to §45.9 adds language to mirror the process for license and permit application withdrawals found in §33.57. This change is intended to provide clarity for applicants and consistency for the agency. The proposed amendments to §§45.11, 45.12, and 45.20 remove redundant language in references to a Certificate of Label Approval (COLA) and change references to the product registration certificate for consistency. The proposed amendment to §45.23 allows the executive director to name a designee to approve relabeling of bottled alcoholic beverages to ensure agency efficiency and removes redundant language. The proposed amendments to §§45.30, 45.40, and 45.50 make corresponding changes in each section to update the product registration process for distilled spirits, malt beverages, and wine, to mirror existing agency practices.

The proposed amendments to §45.105 provide clarity on the permissible forms of outdoor advertising at retail establishments. Pursuant to Alcoholic Beverage Code §108.52, "no outdoor advertising is permitted in this state except that which is authorized by this section or under rules of the commission..." Currently, §45.105(a) references a restriction on certain types of outdoor advertising and creates an inference that the rule also authorizes other forms of outdoor advertising. Proposed subsection (a)(2) is intended to clarify that, unless otherwise prohibited under the rule, outdoor advertising is permissible. For additional clarity, the subsection also incorporates the Alcoholic Beverage Code's definitions for outdoor advertising, billboards, and electric signs. Proposed subsection (a)(5) reiterates the inducement prohibitions in §45.110 and Alcoholic Beverage Code §§102.04, 102.07, 102.15, and 108.06. Proposed subsection (a)(6) acknowledges the permissible avenues for upper-tier members to sell or provide signage to retailers under §§45.113(d) and 45.117(d), which may meet the definition of outdoor advertising, so that the prohibition in subsection (a)(5) does not conflict with those authorizations. Lastly, proposed subsection (a)(6) also allows the signage provided to a retailer by an upper-tier member under §§45.113 and 45.117 to be placed on the exterior walls of the building or enclosure on the retailer's premises. This change is intended to reduce the regulatory burden on retailers.

TABC presented the proposed amendments at a stakeholder meeting on October 3, 2024, and received comments. TABC considered these comments when drafting this proposal.

PUBLIC BENEFIT AND COST NOTE. For each year of the first five years the proposed amendments are in effect, Mrs. Maceyra expects that enforcing or administering the amended rules will have the public benefit of ensuring current rules align with existing statutes and clarify regulatory requirements. The proposal also reduces the regulatory burden on certain licensees and permittees. Mrs. Maceyra does not expect the proposed amendments will impose economic costs on persons required to comply with the amended rules.

GOVERNMENT GROWTH IMPACT STATEMENT. TABC has determined that for each year of the first five years that the proposed amendments are in effect, they:

- will not create or eliminate a government program;

- will not require the creation of new employee positions or the elimination of existing employee positions;

- will not require an increase or decrease in future legislative appropriations to the agency;

- will not require an increase or decrease in fees paid to the agency;

- will not create a new regulation;

- will expand, limit, or repeal an existing regulation;

- will not increase or decrease the number of individuals subject to the rule's applicability; and

- will not positively or adversely affect the Texas economy.

SUBCHAPTER A. GENERAL PROVISIONS

16 TAC §§45.9, 45.11, 45.12

STATUTORY AUTHORITY. TABC proposes the amendments pursuant to TABC's rulemaking authority under §§5.31, 101.67, 101.671, and 108.52(c) 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. Sections 101.67 and 101.671 direct TABC to prescribe rules for the registration of alcoholic beverage products with the state. Section 108.52(c) directs the agency to adopt reasonable rules relating to the type of outdoor advertising retail licensees and permittees may erect or maintain on the retailer's premises.

CROSS-REFERENCE TO STATUTE. The proposed amendments to §§45.9, 45.11, 45.12, 45.20, 45.23, 45.30, 45.40 and 45.50 implement Alcoholic Beverage Code §§5.31, 101.67, and 101.671. The proposed amendments to §45.105 implement Alcoholic Beverage Code §108.52.

§45.9.Withdrawal of Application.

(a) An applicant may unconditionally withdraw their application for product registration at any time prior to [~~product registration or~~] issuance of a certificate of product registration or a notification of denial.

(b) If an applicant fails to respond to requests from the TABC for additional information or for remittance of a product registration fee within ten (10) calendar days of the request, the TABC may consider the application withdrawn by the applicant.

(c) An application that is withdrawn is not considered denied and may be refiled at any time. Withdrawal of an application, whether affirmatively by the applicant or due to the applicant's failure to respond to requests for information or fees, does not trigger the right to appeal or any other due process rights.

§45.11.When Reapplication is Required.

(a) For products registered with the commission using a [~~federal~~] COLA, any change to the label or product that requires issuance of a new COLA requires reapplication for product registration with the commission.

(b) For products registered with the commission that are not eligible for a [~~federal~~] COLA, any change to the label or product requires reapplication for product registration with the commission, except for the following permissible label revisions:

(1) Deleting any non-mandatory label information, including text, illustrations, graphics, and ingredients;

(2) Repositioning any label information, including text, illustrations, and graphics;

(3) Changing the color of the background or text, the shape, or the proportionate size of labels;

(4) Changing the type size or font or make appropriate changes to the spelling (including punctuation marks and abbreviations) of words;

(5) Changing the type of container or net contents statement;

(6) Adding, deleting, or changing optional information referencing awards, medals or a rating or recognition provided by an organization as long as the rating or recognition reflects simply the opinion of the organization and does not make a specific substantive claim about the product or its competitors;

(7) Adding, deleting, or changing holiday or seasonal-themed graphics, artwork, or salutations;

(8) Adding, deleting, or changing promotional sponsorship-themed graphics, logos, artwork, dates, event locations or other sponsorship-related information; [~~and~~]

(9) Adding, deleting or changing references to a year or date; and [.]

(10) Any TTB-authorized allowable revisions to an approved COLA that do not require application for a new COLA.

(c) Not later than September 1, 2023, producers of products required to obtain a first [~~federal~~] COLA pursuant to Alcoholic Beverage Code §101.67(a) must reapply for commission registration of any such product that will be shipped or imported into the state, manufactured and offered for sale, or distributed or sold on or after Sept. 1, 2023, unless granted an exception under subsection (d) of this section.

(d) The executive director may issue a temporary certificate [~~Certificate~~] of product registration [~~Registration~~] containing an expiration date at the request of a producer demonstrating that the producer requires additional time beyond September 1, 2023, to use up products bearing labels approved by the commission and printed before December 31, 2020.

§45.12.Application Procedures during Interruption of Federal Agency Operations.

(a) - (d) (No change.)

(e) If the TTB grants the COLA or exemption application, the applicant must re-apply with the commission for product registration within 30 calendar days of receipt of the [~~federal~~] COLA or exemption.

(f) (No change.)

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on November 15, 2024.

TRD-202405555

Matthew Cherry

Senior Counsel

Texas Alcoholic Beverage Commission

Earliest possible date of adoption: December 29, 2024

For further information, please call: (512) 206-3491

SUBCHAPTER B. ENFORCEMENT

16 TAC §45.20, §45.23

STATUTORY AUTHORITY. The amendments are proposed pursuant to TABC's rulemaking authority under §§5.31, 101.67, and 101.671 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. Sections 101.67 and 101.671 direct TABC to prescribe rules for the registration of alcoholic beverage products with the state.

§45.20.Exhibiting Certificates to Representatives of the Commission.

It shall be unlawful for any person to fail or refuse to exhibit, upon demand or request by any authorized representative of the commission, the certificate of product registration [~~approval as~~] issued by the United States Department of the Treasury or the commission [~~executive director~~].

§45.23.Alteration of Labels.

No person may alter, mutilate, destroy, obliterate, or remove any mark, brand, or label on an alcoholic beverage product held for sale in this state except:

(1) as authorized by Texas law; and

(2) that the executive director or their designee may, on written application, permit additional labeling or relabeling of bottled alcoholic beverages with labels [~~covered by certificates of label approval~~] that comply with the requirements of this subchapter and with state law.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on November 15, 2024.

TRD-202405556

Matthew Cherry

Senior Counsel

Texas Alcoholic Beverage Commission

Earliest possible date of adoption: December 29, 2024

For further information, please call: (512) 206-3491

SUBCHAPTER C. SPECIFIC REQUIREMENTS FOR DISTILLED SPIRITS

16 TAC §45.30

§45.30.Certificate of Registration for a Distilled Spirit Product.

(a) No distilled spirit may be shipped into the state or sold within the state without a certificate [~~Certificate~~ ] of product registration [~~Registration~~] issued by the commission.

(b) An applicant for a certificate [~~Certificate~~ ] under this section must hold a distiller's and rectifier's permit or a nonresident seller's permit issued by the commission.

(c) The application [~~An applicant must submit an application~~] to register a distilled spirit product [~~on the prescribed commission form. The application~~] must contain the following:

(1) a legible copy of the product's COLA; [~~the product COLA issued by the TTB;~~]

(2) all information required to complete the application [~~form~~]; and

(3) an [~~the~~] application fee of $25.

[(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.]

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on November 15, 2024.

TRD-202405557

Matthew Cherry

Senior Counsel

Texas Alcoholic Beverage Commission

Earliest possible date of adoption: December 29, 2024

For further information, please call: (512) 206-3491

SUBCHAPTER D. SPECIFIC REQUIREMENTS FOR MALT BEVERAGES

16 TAC §45.40

§45.40.Certificate of Registration for a Malt Beverage Product.

(a) No malt beverage may be shipped into the state or sold within the state without a certificate [~~Certificate~~ ] of product registration [~~Registration~~] issued by the commission.

(b) An applicant for a certificate [~~Certificate~~ ] under this section must hold a brewer's license, nonresident brewer's license, or brewpub license issued by the commission.

(c) A nonresident brewer's agent may file an application for a certificate [~~Certificate~~] of product registration [~~Registration~~] on behalf of a holder of a nonresident brewer's license.

(d) The application to register a malt beverage product must contain the following [An applicant must submit an Application to Register a Malt Beverage on the form prescribed by the commission along with the application fee to the commission. The application must contain the following]:

(1) If the product is eligible for a COLA:

(A) a legible copy of the product's COLA;

~~[(B) an actual label that is affixed to the malt beverage as shipped or sold, or a legible exact color copy of a label; and]~~

(B) [~~(C)~~] all information required to complete the application form; and[.]

(2) If the product is not eligible for a COLA:

(A) [~~an actual label that is affixed to the malt beverage as shipped or sold, or~~] a legible exact color copy of the label;

(B) a TTB formulation; [~~and~~]

(D) an application fee of $25.

(e) (No change.)

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on November 15, 2024.

TRD-202405558

Matthew Cherry

Senior Counsel

Texas Alcoholic Beverage Commission

Earliest possible date of adoption: December 29, 2024

For further information, please call: (512) 206-3491

SUBCHAPTER E. SPECIFIC REQUIREMENTS FOR WINE

16 TAC §45.50

§45.50.Certificate of Registration for Wine.

(a) Except as provided by §45.4(b) of this title, no wine may be shipped into the state or sold within the state without a certificate [~~Certificate~~] of product registration [~~Registration~~] issued by the commission.

(b) An applicant for a certificate [~~Certificate~~ ] under this section must hold a winery permit or a nonresident seller's permit issued by the commission.

(c) The application to register a wine product must contain the following [~~An applicant must submit an Application to Register a Wine on the form prescribed by the commission along with the application fee to the commission. The application must contain the following~~]:

(1) If the product is eligible for a COLA:

(A) a legible copy of the product's COLA [~~a legible copy of the COLA~~];

~~[(B) an actual label that is affixed to the wine as shipped or sold, or a legible exact color copy of a label; and]~~

(B) [~~(C)~~] all information required to complete the application; and [~~form.~~]

(2) If the product is not eligible for a COLA:

(A) [~~an actual label that is affixed to the wine as shipped or sold, or~~] a legible exact color copy of the label;

(B) the TTB formulation, if required by the TTB; [~~and~~]

(D) an application fee of $25.

(d) (No change.)

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on November 15, 2024.

TRD-202405559

Matthew Cherry

Senior Counsel

Texas Alcoholic Beverage Commission

Earliest possible date of adoption: December 29, 2024

For further information, please call: (512) 206-3491

SUBCHAPTER F. ADVERTISING AND PROMOTION

16 TAC §45.105

STATUTORY AUTHORITY. The amendments are proposed pursuant to TABC's rulemaking authority under §§5.31 and 108.52 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. Section 108.52(c) directs TABC to adopt reasonable rules relating to the type of outdoor advertising retail licensees and permittees may erect or maintain on the retailer's premises.

§45.105.Advertising.

(a) Retailer Establishments.

(1) This subsection relates to Alcoholic Beverage Code §§108.07, 108.51, and 108.52.

(2) Retail-tier licensees and permittees may, in accordance with this section, erect and maintain on the retailer's premises:

(A) outdoor advertising, as defined in Alcoholic Beverage Code §108.51(1);

(B) billboards, as defined in Alcoholic Beverage Code §108.51(2); and

(3) [~~(2)~~] Except as provided in paragraph (4) [~~(3)~~] of this subsection, retail-tier license and permit holders may not advertise any price for an alcoholic beverage on any sign, billboard, marquee, or other display located on the retailer's premises in such a manner that the price may be read by persons outside of the premises.

(4) [~~(3)~~] It is an exception to the restriction in paragraph (3) [~~(2)~~] of this subsection if:

(A) the holder of a food and beverage certificate places a menu on the exterior wall of the premises so that it can be read outside of the premises only by a pedestrian close to the menu. To qualify for the exception granted in this paragraph, the menu visible outside of the premises must be of the same size and in the same sized font as the menu presented to the establishment's customers, and must show both food and beverage prices; or

(B) the holder of a wine and malt beverage retailer's permit, brewpub license, retail dealer's on-premise license, or a license or permit authorizing sales of alcoholic beverages for pickup under Alcoholic Beverage Code §§28.1001 or 32.155 places a menu in a drive-through lane so that it can be read outside of the premises only by a person in a vehicle in the drive-through lane.

(5) Licensees and permittees in the manufacturing and wholesaling tiers may not, directly or indirectly, pay a retailer for any outdoor advertising, billboards, or electric signs displayed on the retailer's premises.

(6) Licensees and permittees in the manufacturing and wholesaling tiers may furnish, give, or sell interior signs to retailers in accordance with §45.113(d) and §45.117(d) of this title. Retailers may use the interior signs for outdoor advertising purposes only on the exterior walls or enclosure of the building where the license or permit is issued and inside the building.

(b) - (d) (No change.)

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on November 15, 2024.

TRD-202405560

Matthew Cherry

Senior Counsel

Texas Alcoholic Beverage Commission

Earliest possible date of adoption: December 29, 2024

For further information, please call: (512) 206-3491

CHAPTER 50. ALCOHOLIC BEVERAGE SELLER SERVER AND DELIVERY DRIVER TRAINING

SUBCHAPTER C. SELLER SERVER SCHOOL CERTIFICATES AND REQUIREMENTS

16 TAC §50.24

The Texas Alcoholic Beverage Commission (TABC) proposes to amend 16 TAC §50.24, relating to Seller Server School Certificates and Requirements. The proposed amendment adds language clarifying that the holder of a seller server certificate must maintain a current mailing address, telephone number, and email address on file with TABC. The proposed amendment also requires the holder of such a certificate to update that information within seven business days of any changes. This proposal is intended to ensure the agency has current contact information for all certificate holders. This proposal is made in conjunction with proposed amendments to 16 TAC §33.93, which were done in a separate and simultaneous rulemaking.

TABC presented the proposed amendment at a stakeholder meeting on October 3, 2024, and received no comments.

FISCAL NOTE AND LOCAL EMPLOYMENT IMPACT STATEMENT. Andrea Maceyra, Chief of Regulatory Affairs, has determined that during each year of the first five years the proposed amendment is in effect, there will be no fiscal impact on state or local governments because of enforcing or administering the amended rule. Mrs. Maceyra made this determination because the proposed amendment does not add to or decrease state revenues or expenditures, and because local governments are not involved in enforcing or complying with the amended rule. Mrs. Maceyra also does not anticipate any measurable effect on local employment or the local economy because of this proposal.

PUBLIC BENEFIT AND COST NOTE. For each year of the first five years the proposed amendment is in effect, Mrs. Maceyra expects that enforcing or administering the amended rule will have the public benefit of ensuring current rules related to seller server training are easier for interested parties to locate. The proposed amendment also helps ensure the agency has updated contact information for each certificate holder, which helps the agency better administer the Alcoholic Beverage Code. Mrs. Maceyra does not expect the proposed amendment will impose economic costs on persons required to comply with the amended rule.

ECONOMIC IMPACT STATEMENT AND REGULATORY FLEXIBILITY ANALYSIS. TABC has determined that the proposed amendment will not have an adverse economic effect on small or micro businesses, or on rural communities. As a result, and in accordance with Government Code §2006.002(c), TABC is not required to prepare a regulatory flexibility analysis.

GOVERNMENT GROWTH IMPACT STATEMENT. TABC has determined that for each year of the first five years that the proposed amendment is in effect, it:

- will not create or eliminate a government program;

- will not require the creation of new employee positions or the elimination of existing employee positions;

- will not require an increase or decrease in future legislative appropriations to the agency;

- will not require an increase or decrease in fees paid to the agency;

- will not create a new regulation;

- will not expand, limit, or repeal an existing regulation;

- will not increase or decrease the number of individuals subject to the rule's applicability; and

- will not positively or adversely affect the Texas economy.

REQUEST FOR PUBLIC COMMENT. TABC will consider any written comments on the proposal that are received by TABC no later than 5:00 p.m., central time, December 29, 2024. Send your comments to rules@tabc.texas.gov or to the Office of the General Counsel, Texas Alcoholic Beverage Commission, P.O. Box 13127, Austin, Texas 78711-3127. TABC staff will hold a public hearing to receive oral comments on the proposed rule at 10:00 a.m. on December 19, 2024. Interested persons should visit the TABC's public website at www.tabc.texas.gov, or contact TABC Legal Assistant Kelly Johnson at (512) 206-3367, prior to the meeting date to receive further instructions.

STATUTORY AUTHORITY. TABC proposes the amendment pursuant to TABC's rulemaking authority under §§5.31 and 106.14 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. Section 106.14 directs the commission to adopt rules establishing requirements for approved seller training programs.

CROSS-REFERENCE TO STATUTE. The proposed amendments implement Alcoholic Beverage Code §§5.31 and 106.14.

§50.24.Notice of Change of Location.

The holder of a certificate issued under this subchapter must maintain a current mailing address, telephone number, and email address on file with the Seller/Server Training Division. The holder shall file any changes to its mailing address, telephone number, or email address within seven (7) business days of the change, through the agency-designated reporting system or by mailing the Seller/Server Training Division at TABC, P.O. Box 13127, Austin, Texas 78711. [~~comply with §33.93 of this title.~~]

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on November 15, 2024.

TRD-202405561

Matthew Cherry

Senior Counsel

Texas Alcoholic Beverage Commission

Earliest possible date of adoption: December 29, 2024

For further information, please call: (512) 206-3491

PART 4. TEXAS DEPARTMENT OF LICENSING AND REGULATION

CHAPTER 70. INDUSTRIALIZED HOUSING AND BUILDINGS

16 TAC §70.60

The Texas Department of Licensing and Regulation (Department) proposes an amendment to an existing rule at 16 Texas Administrative Code (TAC), Chapter 70, §70.60, regarding the Industrialized Housing and Buildings program. The proposed change is referred to as the "proposed rule."

EXPLANATION OF AND JUSTIFICATION FOR THE RULES

The rules under 16 TAC, Chapter 70, implement Texas Occupations Code, Chapter 1202, Industrialized Housing and Buildings.

The proposed rule amendment at §70.60(e) would allow the team lead for the initial certification of a manufacturing plant to also conduct regular in-plant inspections as an employee of a third-party inspection agency. The amendment would expand the pool of candidates for this position to employees of the third-party inspection agency responsible for regular in-plant inspections of the manufacturer or the design review agency responsible for review of the manufacturer's design package. The proposed rules are necessary to allow the Department the possibility of focusing its limited resources on long-term, risk-based auditing of those plants.

Code Council Recommendations

The proposed rule was presented to and discussed by the Industrialized Housing and Buildings Code Council at its meeting on November 12, 2024. The Code Council did not make any changes to the proposed rule. The Code Council voted and recommended that the proposed rule be published in the Texas Register for public comment.

SECTION-BY-SECTION SUMMARY

The proposed rule amends §70.60(e) to allow the team lead for the initial certification of a manufacturing plant to also conduct regular in-plant inspections as an employee of a third-party inspection agency.

FISCAL IMPACT ON STATE AND LOCAL GOVERNMENT

Tony Couvillon, Policy Research and Budget Analyst, has determined that for each year of the first five years the proposed rule is in effect, there are no estimated additional costs or reductions in costs to state or local government as a result of enforcing or administering the proposed rule.

Mr. Couvillon has determined that for each year of the first five years the proposed rule is in effect, there is no estimated increase or loss in revenue to the state or local government as a result of enforcing or administering the proposed rules.

Mr. Couvillon has determined that for each year of the first five years the proposed rule is in effect, enforcing or administering the proposed rules does not have foreseeable implications relating to costs or revenues of state or local governments.

LOCAL EMPLOYMENT IMPACT STATEMENT

Because Mr. Couvillon has determined that the proposed rule will not affect a local economy, the agency is not required to prepare a local employment impact statement under Texas Government Code §2001.022.

PUBLIC BENEFITS

Mr. Couvillon also has determined that for each year of the first five-year period the proposed rule is in effect, the public benefit will be the increased number of individuals who will be able to conduct an inspection for the certification of a manufacturing plant, resulting in needed inspections being done more rapidly.

Additionally, expanding the pool of qualified individuals able to conduct an inspection will allow the Department more time and resources to focus on risk-based audits of previously certified manufacturing facilities rather than participating as the team leader in plant certification inspections. The Department will maintain the authority to conduct and lead certification inspections and provide oversight as needed.

PROBABLE ECONOMIC COSTS TO PERSONS REQUIRED TO COMPLY WITH PROPOSAL

Mr. Couvillon has determined that for each year of the first five-year period the proposed rule is in effect, there are no anticipated economic costs to persons who are required to comply with the proposed rules.

FISCAL IMPACT ON SMALL BUSINESSES, MICRO-BUSINESSES, AND RURAL COMMUNITIES

There will be no adverse economic effect on small businesses, micro-businesses, or rural communities as a result of the proposed rule. Because the agency has determined that the proposed rule will have no adverse economic effect on small businesses, micro-businesses, or rural communities, preparation of an Economic Impact Statement and a Regulatory Flexibility Analysis, as detailed under Texas Government Code §2006.002, is not required.

ONE-FOR-ONE REQUIREMENT FOR RULES WITH A FISCAL IMPACT

The proposed rule does not have a fiscal note that imposes a cost on regulated persons, including another state agency, a special district, or a local government. Therefore, the agency is not required to take any further action under Texas Government Code §2001.0045.

GOVERNMENT GROWTH IMPACT STATEMENT

Pursuant to Texas Government Code §2001.0221, the agency provides the following Government Growth Impact Statement for the proposed rules. For each year of the first five years the proposed rules will be in effect, the agency has determined the following:

1. The proposed rule does not create or eliminate a government program.

2. Implementation of the proposed rule does not require the creation of new employee positions or the elimination of existing employee positions.

3. Implementation of the proposed rule does not require an increase or decrease in future legislative appropriations to the agency.

4. The proposed rule does not require an increase or decrease in fees paid to the agency.

5. The proposed rule does not create a new regulation.

6. The proposed rule expands, limits, or repeals an existing regulation.

The proposed rule repeals an existing regulation by removing the prohibition that the leader of a team conducting a plant certification inspection may not be an employee of the third-party inspection agency responsible for regular in-plant inspections of the manufacturer or the design review agency responsible for review of the manufacturer's design package.

7. The proposed rule does not increase or decrease the number of individuals subject to the rules' applicability.

8. The proposed rule does not positively or adversely affect this state's economy.

TAKINGS IMPACT ASSESSMENT

The Department has determined that no private real property interests are affected by the proposed rule and the proposed rule does not restrict, limit, or impose a burden on an owner's rights to his or her private real property that would otherwise exist in the absence of government action. As a result, the proposed rule does not constitute a taking or require a takings impact assessment under Texas Government Code §2007.043.

PUBLIC COMMENTS

Comments on the proposed rules may be submitted electronically on the Department's website at https://ga.tdlr.texas.gov:1443/form/gcerules; by facsimile to (512) 475-3032; or by mail to Shamica Mason, Legal Assistant, Texas Department of Licensing and Regulation, P.O. Box 12157, Austin, Texas 78711. The deadline for comments is 30 days after publication in the Texas Register.

STATUTORY AUTHORITY

The proposed rule is proposed under Texas Occupations Code, Chapters 51 and 1202, which authorize the Texas Commission of Licensing and Regulation, the Department's governing body, to adopt rules as necessary to implement these chapters and any other law establishing a program regulated by the Department.

The statutory provisions affected by the proposed rules are those set forth in Texas Occupations Code, Chapters 51 and 1202. No other statutes, articles, or codes are affected by the proposed rules.

§70.60.Responsibilities of the Department--Plant Certification.

(a) - (d) (No change.)

(e) [The team leader may not be an employee of the third party inspection agency (TPIA) responsible for regular in-plant inspections of the manufacturer or the design review agency (DRA) responsible for review of the manufacturer's design package.] The following persons may not solicit, offer, or agree to provide future design review or in-plant inspection services for the manufacturer prior to the manufacturer completing all certification requirements:

(1) an agency other than the manufacturer's current third-party inspection agency (TPIA) [~~TPIA~~] or design review agency (DRA) [~~DRA~~] that provides a certification team member; and

(2) any team member that is not employed by the manufacturer's current TPIA or DRA.

(f) - (k) (No change.)

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on November 18, 2024.

TRD-202405568

Doug Jennings

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: December 29, 2024

For further information, please call: (512) 463-7750

CHAPTER 112. HEARING INSTRUMENT FITTERS AND DISPENSERS

The Texas Department of Licensing and Regulation (Department) proposes amendments to existing rules at 16 Texas Administrative Code (TAC), Chapter 112, Subchapter A, §112.2; Subchapter E, §112.44; and Subchapter L, §112.110; the repeal of existing rules at Subchapter H, §112.70 and §112.72; and the addition of new rules at Subchapter H, §112.70 and §§112.73 - 112.76, regarding the Hearing Instrument Fitters and Dispensers program. These proposed changes are referred to as "proposed rules."

EXPLANATION OF AND JUSTIFICATION FOR THE RULES

The rules under 16 TAC, Chapter 112, implement Texas Occupations Code, Chapter 402, Hearing Instrument Fitters and Dispensers; and Chapter 51, the enabling statute of the Texas Commission of Licensing and Regulation (Commission) and the Department.

The proposed rules are necessary to update the current administrative rules and the continuing education (CE) requirements for hearing instrument fitter and dispenser apprentices, license holders, and CE providers. The proposed rules are a result of changes suggested during the required four-year rule review related to CE; changes recommended by the Education and Examination Workgroup of the Hearing Instrument Fitters and Dispensers Advisory Board; and other suggested changes made possible, in part, by House Bill (HB) 1560, 87th Legislature, Regular Session (2021), the Department's Sunset legislation.

The proposed rules also change the CE provider registration term from one year to two years and increase the registration application fees from $200 annually to $400 every two years. Beginning May 1, 2025, the provider registrations will change from one-year to two-year terms, and the application and renewal fees will reflect this change. Existing provider registrations will be valid for one year if renewed before May 1, 2025, or for two years if renewed on or after May 1, 2025.

Four-Year Rule Review Changes

The proposed rules include changes as a result of the required four-year rule review conducted under Texas Government Code §2001.039. The Department conducted the required four-year rule review of the rules under 16 TAC Chapter 112, and the Commission readopted the rule chapter in its entirety and in its current form. (Proposed Rule Review, 45 TexReg 7281, October 9, 2020. Adopted Rule Review, 46 TexReg 2050, March 26, 2021).

In response to the Notice of Intent to Review that was published, the Department received comments from two interested parties regarding 16 TAC Chapter 112, one of which is applicable to this rules package and will be addressed as part of this rules package. The comment suggested changes to the continuing education provider registration fee under §112.110. The comment suggested having a separate CE provider registration fee of $25 paid bi-annually for out-of-state CE providers, which may encourage more out-of-state providers to become registered CE providers for the Hearing Instrument Fitters and Dispensers program. The Department disagrees with the suggestion to treat out-of-state providers differently, and this suggested change is not included in the proposed rules.

The proposed rules include changes based on the Department's review of the rules during the rule review process related to continuing education and changes recommended by the Education and Examination Workgroup.

Other Changes Made Possible by HB 1560

HB 1560, Sections 1.15 and 1.25, amended Texas Occupations Code §402.207(c) and repealed §402.303, to remove detailed requirements regarding the number of CE hours, the methods of CE delivery, the types of CE providers, and the approval of CE providers and courses. HB 1560, Section 1.12, also added broad rulemaking authority under Texas Occupations Code §51.405 regarding CE requirements and CE providers. The proposed rules revise and/or eliminate some of the CE provisions that were previously required by statute. The proposed rules allow more flexibility on the methods of CE delivery and the types of CE hours that may be obtained, and they eliminate the need for individual CE courses to be approved by the Department.

The proposed rules prescribe and expand the CE hours, courses, and methods of delivery. The proposed rules decrease the number of CE hours an apprentice permit holder must complete during the apprentice year, specify the type of proof necessary to claim CE credit during the apprentice permit year, and limit how and when an apprentice can claim CE credit. The proposed rules expand the methods of CE course delivery a hearing instrument fitter and dispenser license holder can use to earn CE hours; limit how and when a license holder can claim CE credit; and provide details on alternative methods for a license holder to obtain CE hours.

The proposed rules also modify provisions for CE providers relating to registration and application requirements; registration issuance, term, and renewal requirements; and the responsibilities imposed on CE providers. The proposed rules also extend the CE provider registration term from one year to two years and restructure the registration fees from $200 annually to $400 every two years. In addition, the proposed rules eliminate the current requirement that each CE course offered or provided by a registered CE provider must be approved by the Department.

Finally, the proposed rules include changes recommended by Department staff to correct and update citations and cross-references to improve accuracy, readability, and consistency in the rule text.

Advisory Board Recommendations

The proposed rules were presented to and discussed by the Hearing Instrument Fitters and Dispensers Advisory Board at its meeting on October 30, 2024. The Advisory Board made changes to the proposed rules at §112.70(g) to clarify that CE hours earned by a hearing-instrument fitters and dispensers licensee serving as a proctor during an exam are classified as in-person CE hours, and not as virtual or online CE hours. The Advisory Board voted and recommended that the proposed rules with changes be published in the Texas Register for public comment.

SECTION-BY-SECTION SUMMARY

Subchapter A. General Provisions.

The proposed rules amend §112.2, Definitions. The proposed rules add definitions for the following new terms: "continuing education methods of delivery," "in-person continuing education course," "online continuing education course," and "virtual (or virtually) continuing education course." The proposed rules also amend the existing definition of "continuing education hour"; reorganize in alphabetical order the existing terms "continuing education hour" and "contract"; and renumber the terms in this section.

Subchapter E. Apprentice Permit.

The proposed rules amend §112.44, Apprentice Permit - Continuing Education. The proposed rules under subsection (a) reduce the required number of CE hours from 20 hours to 10 hours during the apprentice year; eliminate the requirement that all CE hours must be completed in the classroom; allow five CE hours to be completed online; and clarify that virtual courses are not considered online courses. The proposed rules amend subsection (b) to clarify that all CE courses completed during an apprentice year must be provided by a Department-registered continuing education provider. The proposed rules amend subsection (c) by requiring the permit holder to provide proof of attendance in a form and manner prescribed by the Department. The proposed rules add new subsections (d) and (e) to clarify that the apprentice permit holder will not receive credit for completing the same CE course more than once during the permit term, will not receive credit without attending the full CE course, and will not receive partial credit for attending less than the full course.

Subchapter H. Continuing Education Requirements.

The proposed rules repeal §112.70, Continuing Education - Hours and Courses. The requirements in this section are being repealed and replaced with the updated requirements in new §112.70.

The proposed rules add new §112.70, Continuing Education - Hours, Courses, and Methods of Delivery. This new section replaces existing §112.70, with the following proposed changes. The proposed rules change the title of this section from "Continuing Education - Hours and Courses" to "Continuing Education - Hours, Courses, and Methods of Delivery." The proposed rules reorganize this section to group the requirements for each CE method or activity into separate subsections. The proposed rules clarify in subsection (b) that a license holder may complete the 20 CE hours that are required each license term through the continuing education methods prescribed under subsections (c) - (g).

The proposed rules under subsection (c) allow hearing instrument fitter and dispenser license holders to earn the required CE hours by completing CE courses offered in-person, online, or virtually and prescribe the conditions under which the hours can be completed. The proposed rules increased the current limit on the number of CE hours received from a manufacturer CE provider from no more than five hours to no more than 10 hours per license term. The proposed rules continue the current limit on the number of online CE hours received to no more than 10 hours per license term, but the proposed rules clarify that virtual courses are not considered to be online course.

The proposed rules under subsection (d) clarify that a license holder may not receive more than five hours of CE credit per license term for preparation of a published book or article. The proposed rules under subsection (e) address earning CE credit for completion of academic courses related to the fitting and dispensing of hearing instruments. The proposed rules under subsection (f) address earning CE credit for participating in or teaching programs directly related to the fitting and dispensing of hearing instruments and limit the number of CE hours that may be received per license term to five CE hours. The proposed rules under subsection (g) authorize license holders to earn continuing education hours by serving as proctors for practical tests, with a maximum of one in-person CE hour per test date and four in-person CE hours per license term. The proposed rules under subsection (h) address activities that will not receive CE credit, and the proposed rules under subsection (i) addresses statutory CE exemptions.

The proposed rules repeal §112.72, Continuing Education--Providers. The requirements in this section are being repealed and replaced with the updated requirements in new §§112.73 - 112.76.

The proposed rules add new §112.73, Continuing Education Provider--Registration Requirement and Application. The proposed rules require CE providers to register with the Department in order to offer or provide CE courses for the Hearing Instrument Fitters and Dispensers program. The proposed rules prescribe the application requirements for a CE provider registration. The proposed rules require the courses provided by a CE provider meet certain specified requirements, but the individual CE courses no longer must be approved by the Department.

The proposed rules add new §112.74, Continuing Education Provider--Issuance of Registration. The proposed rules provide details on CE provider registrations issued by the Department after a CE provider registration application has been approved.

The proposed rules add new §112.75, Continuing Education Provider--Registration Term; Renewal. The proposed rules extend the current CE provider registration term from one year to two years and specify the requirements for renewal and the consequences of non-renewal. The proposed rules include transition provisions. A registration is valid for one year if the registration was issued before May 1, 2025, or two years if the registration was issued on or after May 1, 2025. Similarly, the proposed rules establish that a registration renewed by the Department is valid for one year if the renewal was issued before May 1, 2025, and must be renewed annually, or two years if the renewal was issued on or after May 1, 2025, and must be renewed every two years. The proposed rules also provide that a list of registered CE providers will be available through a search function on the Department's website.

The proposed rules add new §112.76, Continuing Education Provider--Provider Responsibilities. The proposed rules establish the responsibilities of CE providers registered with the Department and include provisions addressing advertisements, credit hours, delivery and administration of the courses, validation for online and virtual courses, certificates of completion, recordkeeping, and audits. The proposed rules also specify actions by a CE provider that constitute violations of the rules.

Subchapter L. Fees.

The proposed rules amend §112.110, Fees. The proposed rules under subsection (f) restructure registration and renewal fees for continuing education providers to align with the CE provider registration term that is being extended from one year to two years. The continuing education provider registration fee is increased from a $200 fee paid upon application and then a $200 fee paid annually upon renewal, to a $400 fee paid upon application and a $400 fee paid every two years upon renewal.

FISCAL IMPACT ON STATE AND LOCAL GOVERNMENT

State Government

Tony Couvillon, Policy Research and Budget Analyst, has determined that for each year of the first five years the proposed rules are in effect, there are no estimated additional costs or reductions in costs to the state government to administer and enforce the proposed rules. The proposed rules do not impact program costs since they do not increase or decrease the need for personnel or resources. The activities required to implement the proposed rule changes, if any, are one-time program administration tasks that are routine in nature.

Mr. Couvillon has determined that in the first year of the first five years the proposed rules are in effect, a gain in revenue of $1,800 is expected for the state government. As of August 1, 2024, there were 18 continuing education (CE) providers approved by TDLR. The proposed rules change a provider approval with a one-year term to a provider registration with a two-year term, and the fee paid will be $400 every two years for a registration instead of $200 annually for an approval. It is assumed that half the providers will renew before the rule change becomes effective in Fiscal Year One and the other half will renew after the change becomes effective. Thus, approximately half the providers would pay the current renewal fee of $200 for a one-year approval, and the other half will pay the proposed renewal fee of $400 for a two-year registration. Because half of the providers will pay the increased fee in the first fiscal year, the result will be an increase of revenue in that one year of $1,800. In each subsequent year of the first five years the proposed rules are in effect, half as many providers will pay the increased fee, resulting in no additional revenue in those years.

Local Government

Mr. Couvillon has determined that for each year of the first five years the proposed rules are in effect, there are no estimated additional costs or reductions in costs to local governments, and there is no estimated increase or loss in revenue to local governments. Local governments are not responsible for administering the state regulation of hearing instrument fitters and dispensers under Occupations Code, Chapter 402. Thus, there are no foreseeable implications relating to costs or revenues of local governments as a result of enforcing or administering the proposed rules.

LOCAL EMPLOYMENT IMPACT STATEMENT

Because Mr. Couvillon has determined that the proposed rules will not affect a local economy, the agency is not required to prepare a local employment impact statement under Texas Government Code §2001.022.

PUBLIC BENEFITS

Mr. Couvillon also has determined that for each year of the first five-year period the proposed rules are in effect, the public benefit will be additional flexibility on the methods of CE delivery and the types of CE hours that may be obtained, and the elimination of the need for individual CE courses to be approved. These proposed rules decrease the number of CE hours an apprentice permit holder must complete during the apprentice year. The proposed rules expand the methods of CE course delivery a hearing instrument fitter and dispenser license holder can use to earn CE hours; and provide details on alternative methods for a license holder to obtain CE hours. These proposed changes will make access to continuing education credit easier for licensees and permit holders and allow more flexibility when obtaining CE hours. The reduction in required CE hours may save apprentice permit holders the amount they pay in CE fees.

The proposed rules also repeal and replace the Department's approval of a provider with a registration and update application requirements for CE providers; delineate the registration issuance requirements for CE providers and the registration term and renewal requirements for CE providers; and identify the responsibilities imposed on CE providers. These changes will provide greater clarity and guidance to CE providers regarding the registration requirements and the CE providers' responsibilities.

The proposed rules also extend the CE provider registration term from one year to two years and increase the application fees from $200 annually to $400 every two years. In addition, the proposed rules eliminate the current requirement that each CE course offered or provided by a registered CE provider must be approved by the Department. These changes will allow providers to renew their registration less often and will reduce work for providers by eliminating the requirement to submit each course given for approval.

PROBABLE ECONOMIC COSTS TO PERSONS REQUIRED TO COMPLY WITH THE PROPOSAL

Mr. Couvillon has determined that for each year of the first five-year period the proposed rules are in effect, there are no significant economic costs to persons who are required to comply with the proposed rules, including licensees, permit holders, and CE providers. The rules do not impose additional fees upon licensees or permit holders, nor do they create requirements that would obligate licensees or CE providers to expend funds for equipment, technology, staff, supplies, or infrastructure.

FISCAL IMPACT ON SMALL BUSINESSES, MICRO-BUSINESSES, AND RURAL COMMUNITIES

There will be no adverse economic effect on small businesses, micro-businesses, or rural communities as a result of the proposed rules. The Hearing Instrument Fitters and Dispensers program regulates individuals, many of which may be established as a small or micro-business. Additionally Continuing Education Providers may also be established as a small or micro-business. It is unknown how many of these businesses, individuals or the entities that employ them fall within the definitions of a small or micro-business as data regarding the number of employees and gross annual sales is not collected by the agency. However, the proposed rules do not impose any costs so they cannot have an adverse economic effect on any business. Because the agency has determined that the proposed rules will have no adverse economic effect on small businesses, micro-businesses, or rural communities, preparation of an Economic Impact Statement and a Regulatory Flexibility Analysis, as detailed under Texas Government Code §2006.002, is not required.

ONE-FOR-ONE REQUIREMENT FOR RULES WITH A FISCAL IMPACT

The proposed rules do not have a fiscal note that imposes a cost on regulated persons, including another state agency, a special district, or a local government. Thus, the agency is not required to take any further action under Government Code §2001.0045.

GOVERNMENT GROWTH IMPACT STATEMENT

Pursuant to Government Code §2001.0221, the agency provides the following Government Growth Impact Statement for the proposed rules. For each year of the first five years the proposed rules will be in effect, the agency has determined the following:

1. The proposed rules do not create or eliminate a government program.

2. Implementation of the proposed rules does not require the creation of new employee positions or the elimination of existing employee positions.

3. Implementation of the proposed rules does not require an increase or decrease in future legislative appropriations to the agency.

4. The proposed rules do not require an increase or decrease in fees paid to the agency.

5. The proposed rules do not create a new regulation.

6. The proposed rules expand, limit, and repeal an existing regulation.

The proposed rules expand an existing regulation by adding definitions for clarification; by providing clarification on which activities count as CE and on the time basis to determine the amount of CE credited; by providing details on CE provider registrations issued by the Department after a CE provider registration application has been approved; by establishing additional responsibilities of CE providers registered with the Department; and by including provisions addressing and expanding requirements for advertisements, credit hours, delivery and administration of the courses, validation for online and virtual courses, certificates of completion, recordkeeping, and audits. The proposed rules also expand an existing regulation by specifying actions by a CE provider that constitute violations of the rules.

The proposed rules limit an existing regulation by eliminating the need for individual CE courses to be approved and by removing a provision authorizing the Department to consult with an advisory board member regarding provider applications.

7. The proposed rules do not increase or decrease the number of individuals subject to the rules' applicability.

8. The proposed rules do not positively or adversely affect this state's economy.

TAKINGS IMPACT ASSESSMENT

The Department has determined that no private real property interests are affected by the proposed rules and the proposed rules do not restrict, limit, or impose a burden on an owner's rights to his or her private real property that would otherwise exist in the absence of government action. As a result, the proposed rules do not constitute a taking or require a takings impact assessment under Texas Government Code §2007.043.

PUBLIC COMMENTS

Comments on the proposed rules may be submitted electronically on the Department's website at https://ga.tdlr.texas.gov:1443/form/gcerules; by facsimile to (512) 475-3032; or by mail to Monica Nuñez, Legal Assistant, Texas Department of Licensing and Regulation, P.O. Box 12157, Austin, Texas 78711. The deadline for comments is 30 days after publication in the Texas Register.

SUBCHAPTER A. GENERAL PROVISIONS

16 TAC §112.2

STATUTORY AUTHORITY

The proposed rules are proposed under Texas Occupations Code, Chapters 51 and 402, which authorize the Texas Commission of Licensing and Regulation, the Department's governing body, to adopt rules as necessary to implement these chapters and any other law establishing a program regulated by the Department.

The statutory provisions affected by the proposed rules are those set forth in Texas Occupations Code, Chapters 51 and 402. No other statutes, articles, or codes are affected by the proposed rules.

The legislation that enacted the statutory authority under which the proposed rules are proposed to be adopted is House Bill 1560, 87th Legislature, Regular Session (2021).

§112.2.Definitions.

The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise.

(1) - (7) (No change.)

(8) [~~(10)~~] Continuing education--Education intended to maintain and improve the quality of professional services in the fitting and dispensing of hearing instruments, to keep licensees knowledgeable of current research, techniques, and practices, and provide other resources which will improve skills and competence in the fitting and dispensing of hearing instruments.

~~[(8) Continuing education hour--A period of time equal to 50 minutes.]~~

(9) Continuing education hour--A period of time equal to at least 50 minutes.

~~[(9) Contract--See definition for "written contract for services."]~~

(10) Continuing education methods of delivery--The methods of delivering or providing continuing education courses, which include in-person, online, and virtual (or virtually) as those terms are defined in this section.

(11) (No change.)

(12) Contract--See definition for "written contract for services."

(13) [~~(12)~~] Department--The Texas Department of Licensing and Regulation.

(14) [~~(13)~~] Direct supervision--The physical presence with prompt evaluation, review and consultation of a supervisor any time a temporary training permit holder is engaged in the act of fitting and dispensing of hearing instruments.

(15) [~~(14)~~] Executive director--The executive director of the department.

(16) [~~(15)~~] Fitting and dispensing hearing instruments--The measurement of human hearing by the use of an audiometer or other means to make selections, adaptations, or sales of hearing instruments. The term includes prescribing, ordering, or authorizing the use of hearing instruments, the making of impressions for earmolds to be used as a part of the hearing instruments, and providing any necessary post-fitting counseling for the purpose of fitting and dispensing hearing instruments.

(17) [~~(16)~~] Hearing aid--Any wearable device designed for, offered for the purpose of, or represented as aiding persons with or compensating for impaired hearing. The term includes hearing instruments and over-the-counter hearing aids.

(18) [~~(17)~~] Hearing instrument--A prescription hearing aid as that term is defined by 21 C.F.R. Section 800.30.

(19) [~~(18)~~] Indirect supervision--The daily evaluation, review, and prompt consultation of a supervisor any time a permit holder is engaged in the act of fitting and dispensing hearing instruments.

(20) In-person continuing education course--A continuing education course that is delivered live and where the instructor and the person taking the course are at the same physical location or the course is offered virtually.

(21) [~~(19)~~] License--A license issued by the department under the Act and this chapter to a person authorized to fit and dispense hearing instruments.

(22) [~~(20)~~] Licensee--Any person licensed or permitted by the department under Texas Occupations Code Chapter 401 or 402.

(23) [~~(21)~~] Manufacturer--The term includes a person who applies to be a continuing education provider who is employed by, compensated by, or represents an entity, business, or corporation engaged in any of the activities described in this paragraph. An entity, business, or corporation that:

(A) - (E) (No change.)

(24) [~~(22)~~] Non-Manufacturer--Any person, entity, buyer group, or corporation that does not meet the definition of a manufacturer.

(25) Online continuing education course--A continuing education course that is recorded and posted on a website for a person to take and complete. An online course does not include a live course delivered in-person or virtually. Virtual courses and webinars which are real-time and offer interaction between the provider and the attendee are not considered online courses.

(26) [~~(23)~~] Over-the-counter hearing aid--The term has the meaning assigned by 21 C.F.R. Section 800.30.

(27) [~~(24)~~] Person--An individual, corporation, partnership, or other legal entity.

(28) [~~(25)~~] Sale--The term includes a lease, rental, or any other purchase or exchange for value. The term does not include a sale at wholesale by a manufacturer to a person licensed under the Act or to a distributor for distribution and sale to a person licensed under the Act.

(29) [~~(26)~~] Specific Product Information--Specific product information shall include, but not be limited to, brand name, model number, shell type, and circuit type.

(30) [~~(27)~~] Supervisor--A supervisor is an individual who holds a valid license to fit and dispense hearing instruments under Texas Occupations Code, Chapter 401 or 402, other than an individual licensed under §401.311 or §401.312, and who meets the qualifications established by Texas Occupations Code, §402.255 and this chapter.

(31) [~~(28)~~] Telehealth--See definition(s) in Subchapter N, Telehealth.

(32) [~~(29)~~] Temporary training permit--A permit issued by the department to an individual who meets the qualifications established by Texas Occupations Code, Chapter 402, Subchapter F, and this chapter, to authorize the permit holder to fit and dispense hearing instruments only under the direct or indirect supervision, as required and as appropriate, of an individual who holds a license to fit and dispense hearing instruments without supervision under Texas Occupations Code, Chapter 401 or 402, other than an individual licensed under §401.311 or §401.312.

(33) Virtual (or virtually) continuing education course--A continuing education course delivered through a live webcast, videoconference, or other method that allows for real-time interaction or communications between the instructor and the persons taking the course. Virtual courses and webinars which are real-time and offer interaction between the provider and the attendee are not considered online courses.

(34) [~~(30)~~] Working days--Working days are Monday through Friday, 8:00 a.m. to 5:00 p.m.

(35) [~~(31)~~] Written contract for services--A written contract between the license holder and purchaser of a hearing instrument as set out in §112.140 (relating to Joint Rule Regarding the Sale of Hearing Instruments).

(36) [~~(32)~~] 30-day trial period--The period in which a person may cancel the purchase of a hearing instrument.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on November 15, 2024.

TRD-202405537

Doug Jennings

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: December 29, 2024

For further information, please call: (512) 475-4879

SUBCHAPTER E. APPRENTICE PERMIT

16 TAC §112.44

STATUTORY AUTHORITY

The statutory provisions affected by the proposed rules are those set forth in Texas Occupations Code, Chapters 51 and 402. No other statutes, articles, or codes are affected by the proposed rules.

The legislation that enacted the statutory authority under which the proposed rules are proposed to be adopted is House Bill 1560, 87th Legislature, Regular Session (2021), the Department's Sunset legislation.

§112.44.Apprentice Permit--Continuing Education.

(a) The apprentice permit holder must complete 10 hours of continuing education during the apprentice year, with no more than five of the 10 hours being completed through online courses. Virtual courses are not considered online courses.

~~[(a) Pursuant to Texas Occupations Code §402.207, the apprentice permit holder must complete twenty (20) hours of classroom continuing education during the apprentice year.]~~

(b) The continuing education courses must be provided by a department-registered continuing education provider. The apprentice permit holder must complete the continuing education courses in one or more of the following approved subjects relating to the fitting and dispensing of hearing instruments:

(1) - (15) (No change.)

(c) The apprentice permit holder must provide written proof of attendance or completion of a continuing education [~~an approved~~] course in a form and manner prescribed by the department [~~on a department-approved form or in a manner prescribed by the department~~].

(d) The apprentice permit holder will not receive credit for completing the same continuing education course more than once during the permit term.

(e) The apprentice permit holder will not receive credit unless the apprentice permit holder attended the full continuing education course. There is no partial credit for attending less than the full course.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on November 15, 2024.

TRD-202405538

Doug Jennings

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: December 29, 2024

For further information, please call: (512) 475-4879

SUBCHAPTER H. CONTINUING EDUCATION REQUIREMENTS

16 TAC §112.70, §112.72

STATUTORY AUTHORITY

The proposed repeals are repealed under Texas Occupations Code, Chapters 51 and 402, which authorize the Texas Commission of Licensing and Regulation, the Department's governing body, to adopt rules as necessary to implement these chapters and any other law establishing a program regulated by the Department.

The statutory provisions affected by the proposed repeals are those set forth in Texas Occupations Code, Chapters 51 and 402. No other statutes, articles, or codes are affected by the proposed repeals.

The legislation that enacted the statutory authority under which the proposed repeals are proposed to be adopted is House Bill 1560, 87th Legislature, Regular Session (2021).

§112.70.Continuing Education--Hours and Courses.

§112.72.Continuing Education--Providers.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on November 15, 2024.

TRD-202405540

Doug Jennings

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: December 29, 2024

For further information, please call: (512) 475-4879

16 TAC §§112.70, 112.73 - 112.76

STATUTORY AUTHORITY

The statutory provisions affected by the proposed rules are those set forth in Texas Occupations Code, Chapters 51 and 402. No other statutes, articles, or codes are affected by the proposed rules.

§112.70.Continuing Education--Hours, Courses, and Methods of Delivery.

(a) This section applies to a hearing instrument fitter and dispenser license holder.

(b) Except as provided under subsection (i), a license holder must complete 20 continuing education hours during each license term. The hours may be completed through the continuing education methods prescribed under subsections (c) - (g).

(c) A license holder may earn the required continuing education hours by completing continuing education courses offered in-person, online, or virtually. The following conditions apply:

(1) A continuing education course must be provided by a continuing education provider that holds a current department registration.

(2) A license holder may not receive more than 10 hours of continuing education credit per license term from online courses offered by registered continuing education providers. Virtual courses are not considered to be online courses.

(3) A license holder may not receive more than 10 hours of continuing education credit per license term from in-person, online, or virtual courses offered by registered manufacturer continuing education providers.

(4) A license holder will not receive credit for completing the same continuing education course more than once during the same license term. If a provider offers the same course content through different methods of delivery (in-person, online, or virtual), the course is considered to be the same course.

(5) A license holder will not receive credit unless the license holder attended the full continuing education course. A license holder who is late or who leaves early will not receive credit for attending the continuing education course. There is no partial credit for attending less than the full course.

(d) A license holder may be credited with continuing education hours for a published book or article written by the license holder that contributes to the license holder's professional competence.

(1) The department may approve credit hours based on the degree that the published book or article advanced knowledge regarding the fitting and dispensing of hearing instruments.

(2) A license holder may not receive more than 5 hours of continuing education credit per license term for preparation of the published books or articles under this subsection.

(e) A license holder may be credited with continuing education hours for completion of academic courses at an accredited college or university in areas directly supporting development of skills and competence in the fitting and dispensing of hearing instruments.

(1) To receive credit for completion of academic work, the license holder must submit an official transcript(s) from accredited school(s)showing completion of hours in appropriate areas for which the license holder received a passing grade.

(2) A license holder may not receive more than the total number of academic credit hours earned per license term for the completion of academic courses at an accredited college or university in areas directly supporting development of skills and competence in the fitting and dispensing of hearing instruments.

(f) A license holder may be credited with continuing education hours for participating in or teaching programs directly related to the fitting and dispensing of hearing instruments, which are offered by an accredited college or university.

(1) These programs may include institutes, seminars, workshops, or conferences, but not academic courses for students.

(2) To receive credit for participating in or teaching programs, the license holder must submit to the department evidence sufficient to prove a direct relation between teaching programs claimed for continuing education credit directly relate to the fitting and dispensing of hearing instruments. The department resolves all questions of evidentiary sufficiency.

(3) A license holder may not receive more than 5 hours of continuing education credit per license term for participating in or teaching programs under this subsection.

(g) A license holder may be credited with in-person continuing education hours by serving as a proctor for the practical test, not to exceed one hour of in-person continuing education credit for each test date and with a maximum of four hours of in-person continuing education credit earned each license term.

(h) The department will not approve continuing education credit for any license holder for:

(1) education incidental to the regular professional activities of a license holder such as knowledge gained through experience or research;

(2) organization activity such as serving on committees or councils or as an officer in a professional organization; and

(3) any program which is not described in, or in compliance with, this section.

(i) Pursuant to Texas Occupations Code §402.305, the department may renew the license of a license holder who has not complied with the continuing education requirements if the license holder:

(1) submits proof from an attending physician that the license holder suffered a serious disabling illness or physical disability that prevented compliance with the continuing education requirements during the 24 months before the end of the license term; or

(2) was licensed for the first time during the 24 months before the end of the license term.

§112.73.Continuing Education Provider--Registration Requirement and Application.

(a) A continuing education provider must be registered by the department to offer or provide continuing education courses for the Hearing Instrument Fitters and Dispensers program. An applicant for a continuing education provider registration shall meet the requirements set out in this subchapter.

(b) Unless otherwise indicated, an applicant must submit all required information in a form and manner prescribed by the department.

(1) submit a completed application in a form and manner prescribed by the department;

(2) specify whether the applicant is seeking to be registered as a manufacturer or a non-manufacturer continuing education provider;

(3) specify the method(s) of delivering continuing education courses(online, in-person, or virtual);

(4) provide a brief description of the applicant's capability in developing and instructing continuing education courses;

(5) provide a business plan with clearly defined purposes such as policies on inclement weather, refunds, and cancellations; and

(6) pay the provider initial application fee under §112.110.

(d) The courses provided by a continuing education provider must:

(1) include subject matter to increase or support the development of skills and competence in the fitting and dispensing of hearing instruments or in studies or disciplines related to fitting and dispensing of hearing instruments;

(2) have objectives of specific information and skills to be learned; and

(3) use educational methods and materials and qualified instructors and presenters to adequately implement learner objectives.

(e) An applicant must complete all registration requirements within one year from the date the application was submitted. After that year an applicant will be required to submit a new application and all required materials in addition to paying a new application fee.

§112.74.Continuing Education Provider--Issuance of Registration.

(a) The department will issue an applicant, whose application has been approved, a registration containing the registered provider's name, registration number, and expiration date.

(b) A continuing education provider registration issued by the department remains the property of the department.

(c) The department will issue a duplicate registration upon written request by the provider, in a form and manner prescribed by department, and upon payment of the duplicate/replacement fee under §112.110.

§112.75.Continuing Education Provider--Registration Term; Renewal.

(a) A provider registration is valid for two years from the date of issuance.

(1) An initial provider registration is valid for one year if the initial registration was issued before May 1, 2025; or two years if the initial registration was issued on or after May 1, 2025.

(2) A renewed provider registration is valid for one year if the renewed registration was issued before May 1, 2025; or two years if the renewed registration was issued on or after May 1, 2025.

(b) To renew the continuing education provider registration, the provider must:

(1) submit a completed renewal application in a form and manner prescribed by the department; and

(2) pay the provider registration renewal fee under §112.110.

(c) If the registration is not renewed on or before the expiration date, the registration expires. The continuing education provider may not offer or provide continuing education courses with an expired registration.

(d) A person whose registration has expired may renew the registration in accordance with 16 TAC §60.31 and §60.83. The continuing education provider is subject to late renewal fees.

(e) A list of registered continuing education providers will be available through a search function on the department's website.

§112.76.Continuing Education Provider--Provider Responsibilities.

(a) A registered provider must comply with all continuing education requirements set out in this subchapter.

(b) Advertisements. A registered provider may advertise as a registered continuing education provider for the Hearing Instrument Fitters and Dispensers program. A registered provider must include in all advertisements for a continuing education course the provider's registration number assigned to it by the department. A registered provider's website announcements concerning courses are considered advertisements for purposes of this rule.

(c) Credit hours. A registered provider will determine the number of hours of continuing education credit for a course. One hour of continuing education credit is equivalent to at least 50 minutes of actual instruction time.

(d) Delivery and administration of the courses.

(1) A registered provider must ensure that courses are delivered in a manner conducive to learning.

(2) If a registered provider offers the same course content through different methods of delivery (in-person, online, or virtual), the course is considered to be the same course.

(3) A registered provider must ensure that instructors possess both the subject matter knowledge they are teaching as well as the teaching ability required to impart the information.

(4) A registered provider is responsible for the conduct and administration of its courses, including the punctuality of classroom sessions, verification of participant attendance, and instructor performance.

(e) Validation for online and virtual courses.

(1) A registered provider shall maintain a method to validate the identity of the person taking the course.

(2) A registered provider shall incorporate a course content validation process that verifies a person's participation and comprehension of course material.

(f) Certificate of Completion. No later than 20 days after the date of the course, a registered provider shall issue a certificate of completion to each participant who attended and completed the entire continuing education course. The certificate of completion shall contain:

(1) the registered provider's name, registration number, and manufacturer or non-manufacturer status;

(2) the name of the participant and participant's license or permit number;

(3) the title of the course;

(4) the date and location of the course;

(5) the subject(s) included in the course;

(6) the delivery method of the course (in-person, online, or virtual);

(7) the number of continuing education credit hours given; and

(8) the signature of the registered provider.

(g) A registered provider shall not provide a certificate of completion to a participant who did not attend or complete the full continuing education course. A participant who is late or who leaves early will not receive credit for attending the continuing education course.

(h) A registered provider must maintain attendance and course completion records of all continuing education activities for a period of five years after completion of a course.

(i) The department may conduct an onsite or online audit of the continuing education courses offered by a provider.

(1) Audits may be conducted without prior notice to the provider, and department employees and representatives may enroll and attend a course without identifying themselves as employees or representatives of the department.

(2) Upon request, a provider shall provide information, including copies of specified records, to the department within 10 days of the date of the request.

(3) A provider shall cooperate fully with the department, its employees and representatives in the investigation of a complaint or performance of an audit.

(j) Violations. Any of the following actions by a registered provider is a violation of this chapter and may result in the assessment of administrative penalties and/or administrative sanctions against the registered provider:

(1) issuing a certificate of completion to an individual who did not complete the continuing education course;

(2) refusing to issue a certificate of completion to an individual who has satisfactorily completed a continuing education course;

(3) fraud or misrepresentation in an application for a provider registration;

(4) fraud or misrepresentation regarding maintenance of records, teaching method, program content, or issuance of certificates; or

(5) failing to cooperate with the department in an investigation or audit.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on November 15, 2024.

TRD-202405541

Doug Jennings

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: December 29, 2024

For further information, please call: (512) 475-4879

SUBCHAPTER L. FEES

16 TAC §112.110

STATUTORY AUTHORITY

The statutory provisions affected by the proposed rules are those set forth in Texas Occupations Code, Chapters 51 and 402. No other statutes, articles, or codes are affected by the proposed rules.

§112.110.Fees.

(a) - (e) (No change.)

(f) Continuing Education Provider Registration: [~~education provider fee--$200 annually.~~]

(1) Initial application fee--$200 before May 1, 2025; $400 on or after May 1, 2025.

(2) Renewal application fee--$200 before May 1, 2025; $400 on or after May 1, 2025.

(g) - (j) (No change.)

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on November 15, 2024.

TRD-202405539

Doug Jennings

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: December 29, 2024

For further information, please call: (512) 475-4879