RULES AND REGULATIONS
Title 7--AGRICULTURE
DEPARTMENT OF AGRICULTURE
[7 PA. CODE CH. 104]
Sheep and Lamb Marketing Program; Wine Marketing and Research Program
[34 Pa.B. 4573] The Department of Agriculture (Department) deletes Subchapter C (relating to sheep and lamb marketing program) and adds Subchapter F (relating to wine marketing and research program) to read as set forth in Annex A.
Statutory Authority
Sections 4501--4513 of 3 Pa.C.S. (relating to Agricultural Commodities Marketing Act) (act) provides the legal authority for this final-form rulemaking. Both the Sheep and Lamb Marketing Program (Sheep Program) and the Wine Marketing and Research Program (Wine Program) are agricultural commodity programs established under authority of the act. Section 4511 of the act (relating to rules and regulations) authorizes the Department to promulgate regulations necessary to enforce a marketing program established under its authority.
Purpose
This final-form rulemaking deletes Subchapter C. Since the Sheep Program was terminated some time ago, Subchapter C serves no purpose.
This final-form rulemaking also affirms the obligations of affected wine producers with respect to the Wine Program, provides a mechanism for accounting and payment of producer charges and establishes a mechanism for the collection of producer charges from affected producers who do not pay their fair share to support the Wine Program.
Background
The act authorizes the establishment of an agricultural commodity marketing program through a referendum among affected producers of the agricultural commodity involved. The Wine Program was established through a referendum among persons who produce or sell wine under authority of a limited winery license issued in accordance with the Liquor Code (47 P. S. §§ 1-101--8-803).
The production of wine is closely regulated. Holders of limited winery licenses are required to report their wine production and sales to the Liquor Control Board. This production information assists the Wine Program in calculating the producer charges owed it by each affected wine producer. The producer charges are 15¢ per gallon of wine sold within a particular January 1--December 31 marketing season.
The final-form rulemaking emphasizes the obligation of an affected wine producer to account for and pay the appropriate producer charges to the Wine Program and provide that program a mechanism by which to pursue collection of unpaid producer charges.
Need for the Final-Form Rulemaking
The final-form rulemaking is necessary for the operation of the Wine Program and makes extensive use of language from existing regulations for other act-based agricultural commodity marketing programs. The Department is satisfied of the need for the final-form rulemaking.
Comments
Notice of proposed rulemaking was published at 34 Pa.B. 561 (January 31, 2004) and provided for a 30-day public comment period. The only formal written comments received with respect to the proposed rulemaking were offered by the Independent Regulatory Review Commission (IRRC). The Department's response to these comments follows.
Comment 1: IRRC observed that proposed § 104.71 (relating to scope) states that persons who produce and sell wine under authority of a limited winery license will be required to pay producer charges to the Wine Program, and recommended that the final-form rulemaking include a reference to the provision of the Liquor Code addressing limited wineries (47 P. S. § 5-505.2).
Response: The Department has implemented this recommendation in the final-form rulemaking.
Comment 2: IRRC recommended that the terms ''ACMA,'' ''marketing contract'' ''PLCB'' and be deleted from § 104.72 (relating to definitions), since these terms are not used elsewhere in regulations. This same recommendation had been made informally by Pennsylvania Bulletin staff when the proposed rulemaking was submitted for publication.
Response: The Department has implemented this recommendation in the final-form rulemaking.
Comment 3: IRRC asked the Department to either explain or delete the phrase ''or other time period designated by the Program'' in proposed § 104.75(a)(2) (relating to accounting and payment).
Response: The referenced phrase has been deleted from the final-form rulemaking.
Comment 4: With respect to proposed § 104.75(e), IRRC offered the following:
This subsection requires producers to pay a penalty for nonpayment of producer charges ''of at least $100 but not more than $5,000, and as nearly equivalent to 100% of the amount of the delinquent producer charge as is practicable.'' We note in the Vegetable Marketing and Research Program and the Peach and Nectarine Research Program the maximum fine levied is $500. Why has the Department chosen to implement a much higher fine for this Program? The preamble should include the Department's reasoning for the fines in this subsection.Response: The object of the subsection is to allow for a penalty that would, in most cases, effectively double the amount of money a delinquent producer would have to pay the Wine Program. This penalty amount is tempered by the $5,000 ceiling in the final-form rulemaking. The Department and the Wine Program Board considered the upward civil penalty limits imposed by the commodity marketing programs described in the comment, but felt that the $5,000 figure is more appropriate for the Wine Program, and that this figure would help provide an incentive for compliance with the accounting and payment provisions of the final-form rulemaking.
Fiscal Impact
Commonwealth: The final-form rulemaking imposes no costs and has no fiscal impact on the Commonwealth.
Political Subdivisions: The final-form rulemaking imposes no costs and has no fiscal impact on political subdivisions.
Private Sector: The final-form rulemaking imposes no costs and has no adverse fiscal impact upon the private sector. Although the final-form rulemaking references the 15¢ per gallon producer charge, the charge has been established through a referendum among affected producers, in accordance with the act. The final-form rulemaking repeats this existing obligation, but does not create it. The final-form rulemaking will help to fully fund the research and marketing efforts of the Wine Program. Although this is expected to have a favorable economic impact upon this Commonwealth's wine production industry, this benefit is not readily quantifiable.
General Public: The final-form rulemaking imposes no costs and has no adverse fiscal impact upon the general public.
Paperwork Requirements
The final-form rulemaking will not appreciably increase the paperwork burden of the Department, other government units or affected wine producers.
Sunset Date
There is no sunset date for the final-form rulemaking. The Department will review the efficacy of these regulations on an ongoing basis.
Contact Person
Further information is available by contacting the Department of Agriculture, Bureau of Market Development, Pennsylvania Wine Marketing and Research Program, 2301 North Cameron Street, Harrisburg, PA 17110-9408, Attn: Kyle Nagurny, (717) 787-2376.
Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on January 16, 2004, the Department submitted a copy of the notice of proposed rulemaking, published at 34 Pa.B. 561, to IRRC and the Chairpersons of the House and Senate Standing Committees on Agriculture and Rural Affairs for review and comment.
Under section 5(c) of the Regulatory Review Act, IRRC and the Committees were provided with copies of the comments received during the public comment period, as well as other documents when requested. In preparing the final-form rulemaking, the Department has considered all comments from IRRC, the House and Senate Committees and the public.
Under section 5.1(j.2) of the Regulatory Review Act (71 P. S. § 745.5a(j.2)), on July 15, 2004, the final-form rulemaking was deemed approved by the House and Senate Committees. Under section 5.1(e) of the Regulatory Review Act, IRRC met on July 15, 2004, and approved the final-form rulemaking.
Findings
The Department finds that:
(1) Public notice of intention to adopt the regulations adopted by this order has been given under sections 201 and 202 of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. §§ 1201 and 1202), and the regulations thereunder, 1 Pa. Code §§ 7.1 and 7.2.
(2) A public comment period was provided as required by law and all comments received were considered.
(3) The modifications that were made to this final-form rulemaking in response to comments received do not enlarge the purpose of the proposed rulemaking published at 34 Pa.B. 561.
(4) The adoption of the final-form rulemaking in the manner provided in this order is necessary and appropriate for the administration of the authorizing statute.
Order
The Department, acting under authority of the authorizing statute, orders that:
(a) The regulations of the Department, 7 Pa. Code Chapter 104, are amended by deleting §§ 104.21--104.30 and by adding §§ 104.71--104.75 to read as set forth in Annex A.
(b) The Secretary of Agriculture shall submit this order and Annex A to the Office of General Counsel and to the Office of Attorney General for approval as required by law.
(c) The Secretary of Agriculture shall certify this order and Annex A and deposit them with the Legislative Reference Bureau as required by law.
(d) This order shall take effect upon publication in the Pennsylvania Bulletin.
DENNIS C WOLFF,
Secretary(Editor's Note: For the text of the order of the Independent Regulatory Review Commission, relating to this document, see 34 Pa.B. 4082 (July 31, 2004).)
Fiscal Note: Fiscal Note 2-142 remains valid for the final adoption of the subject regulations.
Annex A
TITLE 7. AGRICULTURE
PART IV. BUREAU OF MARKET DEVELOPMENT
CHAPTER 104. ENFORCEMENT OF MARKETING PROGRAMS
Subchapter C. (Reserved) §§ 104.21--104.30. (Reserved).
Subchapter F. WINE MARKETING AND
RESEARCH PROGRAMSec.
104.71. Scope. 104.72. Definitions. 104.73. Producer charges. 104.74. Responsibility for payment of producer charge. 104.75. Accounting and payment. § 104.71. Scope.
This subchapter establishes the procedures by which persons who produce or sell wine under authority of a limited winery license issued under authority of section 505.2 of the Liquor Code (47 P. S. § 5-505.2) shall account for and pay producer charges owed the Program.
§ 104.72. Definitions.
The following words and terms, when used in this subchapter, have the following meanings, unless the context clearly indicates otherwise:
Board--The persons appointed by the Secretary from among those producers whose commodities are subject to the marketing and research program set forth in this subchapter.
Department--The Department of Agriculture of the Commonwealth.
Limited winery--The holder of a limited winery license issued under authority of the Liquor Code (47 P. S. §§ 1-101--8-803).
Marketing season--
(i) The initial marketing season for purposes of this subchapter shall be from July 1, 2001, through December 31, 2001.
(ii) Thereafter, the marketing season shall be the period beginning January 1 of any year and extending through December 31 of the same year.
Person--An individual, partnership, firm, corporation, association or any other business unit.
Producer--A person who produces or sells wine under authority of a limited winery license during a particular marketing season.
Program--The Pennsylvania Wine Marketing and Research Program.
Secretary--The Secretary of the Department.
§ 104.73. Producer charges.
The producer charges owed the Program shall be 15¢ per gallon of wine sold within a given marketing season, except in-State winery-to-winery sales in bond. In-State winery-to-winery sales in bond are exempt from charges. The producer charges may be changed by subsequent amendment of the Program in accordance with the referendum procedure in Chapter 103 (relating to referendums).
§ 104.74. Responsibility for payment of producer charge.
It is the responsibility of the producer to pay the appropriate producer charge owed the Program within the time period set forth in § 104.75(b) (relating to accounting and payment) and in the manner set forth in § 104.75(a).
§ 104.75. Accounting and payment.
(a) Annual production statement. The Program will provide a producer with annual production statement forms with which to verify the quantity of wine that it has produced within a particular marketing season. The producer shall provide the following information on the annual production statement and submit the form in accordance with this section.
(1) The name and address of the producer.
(2) The number of gallons of wine sold within the marketing season.
(3) A calculation of the amount of producer charges owed the Program by the producer.
(b) Deadlines. The payment of the producer charges shall be postmarked and mailed, or actually delivered to the Program, by the first day of February immediately following the previous marketing season.
(c) Form of payment. Payments of producer charges shall be by check or money order made payable to the ''PA Wine Marketing and Research Program.''
(d) Address. Payments of producer charges shall be mailed or delivered to:
Department of Agriculture
Bureau of Market Development
Attn: Pennsylvania Wine Marketing and Research
Program
2301 North Cameron Street
Harrisburg, Pennsylvania 17110-9408.(e) Penalty for failure to account or pay. Producers who fail to mail or deliver the required producer charges owed the Program within 30 days of the due date, as described in subsection (b), shall be required to pay a penalty of at least $100 but not more than $5,000, and as nearly equivalent to 100% of the amount of the delinquent producer charges as is practicable. An action seeking the imposition of a penalty, plus payment of producer charges due the Program, may be brought in the appropriate magisterial district. A penalty imposed shall be in addition to the delinquent producer charges owed the Program.
[Pa.B. Doc. No. 04-1542. Filed for public inspection August 20, 2004, 9:00 a.m.]
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