INDEPENDENT REGULATORY REVIEW COMMISSION
Notice of Comments Issued
[34 Pa.B. 5221]
Section 5(g) of the Regulatory Review Act (71 P. S. § 745.5(g)) provides that the Independent Regulatory Review Commission (Commission) may issue comments within 30 days of the close of the public comment period. The Commission comments are based upon the criteria contained in section 5.2 of the Regulatory Review Act (71 P. S. § 745.5b).
The Commission has issued comments on the following proposed regulation. The agency must consider these comments in preparing the final-form regulation. The final-form regulation must be submitted within 2 years of the close of the public comment period or it will be deemed withdrawn.
Reg. No. Agency/Title Close of the Public
IRRC Comments Issued 54-59 Pennsylvania Liquor Control Board
Revisions to Codify Practices and Procedures Resulting from Legislative Amendments
(34 Pa.B. 3411 (July 3, 2004))
Pennsylvania Liquor Control Board Regulation
# 54-59 (IRRC # 2411)
Revisions to Codify Practices and Procedures
Resulting from Legislative Amendments
September 1, 2004
We submit for consideration the following comments that include references to the criteria in the Regulatory Review Act (71 P. S. § 745.5b) which have not been met. The Pennsylvania Liquor Control Board (Board) must respond to these comments when it submits the final-form regulation. The public comment period for this regulation closed on August 2, 2004. If the final-form regulation is not delivered within 2 years of the close of the public comment period, the regulation will be deemed withdrawn.
1. Section 3.1. Definitions.--Need; Clarity.
The following eight definitions are being added to this section: ''bar/counter,'' ''bench,'' ''booth,'' ''chair,'' ''eating space,'' ''seating,'' ''stool'' and ''table.'' These definitions are not used in the body of either the existing or proposed regulations. The definitions of ''bench,'' ''chair'' and ''eating space'' are only used in other proposed definitions. What is the need for adding these eight definitions?
2. Section 3.92. Brewery pubs.--Consistency with statute; Clarity.
This section establishes the provisions for the issuance and operation of a brewery pub license. Subsection (d) allows a brewery pub to sell wine produced by the holder of a Pennsylvania limited winery license. However, 47 P. S. § 4-446(2) states that the wine must be purchased from either the holder of a Pennsylvania limited winery license or from the Board. The statute also requires the wine purchases to be consumed on the premises of the brewery pub. These provisions are not reflected in the proposed regulation. The Board should include these provisions in the final-form regulation.
3. Section 3.101. Economic development licenses.--Clarity.
This section establishes areas where economic development licenses may be issued. Subsection (a)(1) provides a citation to the applicable Keystone Opportunity Zone (KOZ) statute. Under subsection (a)(2), a statutory citation is not provided for an Enterprise Zone (EZ). For clarity and consistency, a citation to applicable EZ statutes or regulations should be inserted into the final-form regulation.
4. Section 3.102. Approval for economic development license.--Clarity.
This section describes the application process for economic development licenses. The phrase ''KOZ or EZ authorities'' is used in subsection (a). Who qualifies as the ''KOZ or EZ authorities?''
5. Section 3.104. Municipal standing before the Board.--Clarity.
This section permits a municipality receiving an economic development license to file a protest with the Board. Can the decision of the Board be appealed? If so, where would the appeal be filed?
6. Section 3.105. Quarterly filing of applications and application hearings.--Clarity.
This section establishes filing requirements for counties and appeal procedures for applicants. We have two concerns.
First, subsection (b) should include a cross-reference to the Board's hearing provisions.
Second, subsection (e) should include the same language that is in the corresponding statutory provisions. It states that an applicant will receive a provisional license for 120 days. The same provision is included in 47 P. S. § 4-461(b.2), which also includes the phrase ''exclusive of periods of safekeeping.'' The final-form regulation should be amended to mirror the corresponding statutory provision.
7. Section 5.30. Definitions.--Clarity.
This section adds a definition of ''sweepstakes'' which includes conditions for permissible sweepstakes. The conditions are substantive. Substantive provisions in a definition are not enforceable. Therefore, the conditions should be moved to § 5.32(h), regarding sweepstakes promotions.
8. Section 5.36. Municipal noise ordinances.--Clarity.
Subsection (d) contains the phrase ''any other condition the Board deems appropriate.'' What ''other conditions'' would the Board deem appropriate?
9. Section 5.86. Permitted exchange of club and catering club licenses.--Consistency with statute; Clarity.
Subsections (a)--(e) list five different types of exchanges that may occur. The exchanges are:
* Club liquor license for a club malt beverage retail dispenser license.
* Club liquor license for a catering club liquor license.
* Catering club license for a club liquor license.
* Club malt beverage retail dispenser license for a catering club malt beverage retail dispenser license.
* Catering club malt beverage retail dispenser license for a club malt beverage retail dispenser license.
In the Regulatory Analysis Form, the Board notes that 47 P. S. §§ 4-401 and 4-472.3 provide the statutory basis for adding these provisions. Section 4-472.3(a) of 47 P. S. appears to be the only language that addresses exchanges of licenses. It permits a club to exchange a club liquor license for a club retail dispenser license. This type of exchange is not listed in subsections (a)--(e). Do the different types of licenses noted in subsection (a)--(e) fall under the type of license exchange noted in 47 P. S. § 4-472.3(a)?
Also, subsection (f) states that the Bureau of Licensing will set the fee for filing an application for the exchange of club licenses. The final-form regulation should establish the fee and the preamble should explain how the fee was set.
10. Section 7.10. Conversion of suspension to fine.--Clarity.
Subsection (c) states ''the transferee's request to the Office of Chief Counsel shall include the following:'' However, subsection (c)(5) states ''Other financial documents as requested by the Office of Chief Counsel.'' Because the transferee is making the initial request to the Office of Chief Counsel, how will the transferee know what, if any, additional information is required to be contained in the request?
11. Section 7.33. Sheriff's sale of a liquor license.--Clarity.
This section establishes procedures to be followed when a license is subject to a writ of execution. Paragraphs (2) and (3)(ii) state that certain actions ''should'' be performed. The word ''should'' indicates that the action is optional. The final-form regulation should replace the word ''should'' with ''shall.''
12. Section 7.63. Municipal standing before the Board.--Clarity.
This section allows a municipality to file a protest against the approval of an intermunicipal transfer of a liquor license. Subsection (c) states that a protest must be timely filed. Provisions for filing a protest are found in § 17.13, regarding protests/intervention procedure. The final-form regulation should include a cross-reference to this section.
13. Section 9.141. Requirements for licensure as a direct shipper.--Clarity.
Subsection (a) is worded as a definition for ''direct shipper.'' However, ''direct shipper'' is already defined in § 9.132. It is not needed in both places. If necessary, the language contained in this subsection should be added to the definition in § 9.132 and deleted from this section.
14. Section 9.142. Records to be maintained.--Reasonableness; Clarity.
Subsection (a) establishes audit procedures to be followed when the Commonwealth audits a direct shipper. Does the term ''Commonwealth'' mean the Board? If it doesn't, what department would be conducting the audits?
15. Section 9.143. Sales of wines.--Clarity.
Subsection (g) establishes a $4.50 handling fee. Is this fee to be applied to each bottle ordered or the entire order? The Board should clarify this provision in the final-form version.
16. Section 9.144. Products shipped.--Clarity.
Subsection (i) requires a direct shipper to provide a ''call tag'' with each order. It is not clear what this term means. The final-form regulation should either define the term ''call tag'' or include the information that should appear on the tag.
17. Section 9.145. Direct shipper's website.--Reasonableness; Clarity.
Information that must be present on a direct shipper's website is included in this section. Subsection (c) pertains to age and residency requirements. It also states that sales will not be made to ''anyone who is under the influence of alcohol or other drugs.'' The Board has indicated that the intent of this provision is to prohibit a buyer under the influence of drugs or alcohol from picking up an order at a Pennsylvania Wine and Spirits Store. The final-form regulation should be amended to clearly express this intent.
18. Section 13.52. Advertising novelties.--Clarity.
Subsection (e) contains the phrase, ''the point of sale advertising cost limit as set forth by the Board.'' The Board should include a cross-reference to this cost limit.
19. Miscellaneous edits.--Clarity.
* Section 3.91, titled ''alternate brewer's license,'' should read ''alternating brewer's license,'' as defined in 47 P. S. § 1-102.
* The second sentence of § 3.105(a) and the information that follows it should be separated out and placed into its own subsection.
* Section 7.3(c), written as one sentence with several provisions, should be broken into smaller sentences. A similar concern also exists in § 9.142(a).
* In § 7.65, the phrase ''period of'' should be included in front of the phrase ''5 years'' or the ''a'' before ''5 years'' should be deleted.
* In § 11.7(b), ''another party'' should be inserted in front of ''or other parties.''
* The phrase ''without Board approval'' in §§ 13.42 and 13.43 are not needed and could be deleted to add clarity.
JOHN R. MCGINLEY, Jr.,
[Pa.B. Doc. No. 04-1744. Filed for public inspection September 17, 2004, 9:00 a.m.]
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