RULES AND REGULATIONS
STATE BOARD OF VEHICLE MANUFACTURERS, DEALERS AND SALESPERSONS
[49 PA. CODE CH. 19]
Vehicle Auction License
[34 Pa.B. 4693] The State Board of Vehicle Manufacturers, Dealers and Salespersons (Board) adds §§ 19.19 and 19.20 (relating to standards of licensure for retail or public auction; and standards of licensure for wholesale auction) to read as set forth in Annex A.
Description and Need for Rulemaking
The final-form rulemaking adds §§ 19.19 and 19.20 to set forth standards of licensure and operation of retail or public auctions and wholesale auctions, respectively.
Summary of Comments and Responses to Proposed Rulemaking
The Board published a notice of proposed rulemaking at 32 Pa.B. 5418 (November 2, 2002) with a 30-day public comment period. The Board received public comment from a representative of a public auction and a wholesale auction that auctions salvage vehicles. The Board received comments from the Independent Regulatory Review Commission (IRRC) and the House Professional Licensure Committee (HPLC) as part of their review of proposed rulemaking under the Regulatory Review Act (71 P. S. §§ 745.1--745.12). The Board did not receive comments from the Senate Consumer Protection and Professional Licensure Committee (SCP/PLC).
The public commentator and IRRC questioned whether §§ 19.19(a)(2) and 19.20(a)(2), which prohibit an auction from conducting auction activities from other than its established place of business, prohibit an auction from receiving bids by telephone or the Internet. In response, the Board has revised the subsections to make clear that an auction may receive bids by telephone, Internet or other electronic means. However, to protect purchasers, both retail and wholesale, from the possibility of phantom vehicles being offered for auction, the Board also will require an auction to have each vehicle physically present at the auction's established place of business.
Because §§ 19.19(b)(1) and 19.20(b)(1) require the established place of business of an auction to include a permanent enclosed building for use as an auction facility, both the public commentator and IRRC questioned whether the proposed rulemaking permitted the auction sale to be conducted outside of the permanent enclosed building. In response, the Board has revised these subsections to state that ''[their provisions do] not require that all auction activities be conducted within the permanent enclosed building.''
The public commentator and IRRC also commented on the Board's reference in §§ 19.19(b)(5) and 19.20(b)(5) to the act of April 27, 1927 (P. L. 465, No. 299) (35 P. S. §§ 1221--1235), known as the Fire and Panic Act. Because the pertinent sections of the Fire and Panic Act were repealed by enactment of the Pennsylvania Construction Code Act (act) (35 P. S. §§ 7210.101--7210.1103), both suggested that the final-form rulemaking be updated to reference the act. Accordingly, the Board has revised these subsections to refer only to the act.
Section 19.19(b)(8) sets forth the requirement that a public or retail auction have a display area where potential buyers are permitted to inspect vehicles for auction. Because § 19.18(a)(3)(ii) requires that the display area of a dealership be properly graded and surfaced, the HPLC and IRRC questioned whether this requirement should also be applied to a public or retail auction. The Board believes that the display area of a public or retail auction should be properly graded and surfaced to ensure public protection and safety. The Board has revised § 19.19(b)(8) to set forth this requirement.
Finally, the public commentator noted that the act of December 9, 2002 (P. L. 1278, No. 152) (Act 152) amended 75 Pa.C.S. (relating to the Vehicle Code), including provisions regarding salvage sales, and suggested that the Board review the proposed rulemaking for consistency with Act 152. The Board has reviewed Act 152 and has found no need to further revise the final-form rulemaking.
Fiscal Impact and Paperwork Requirements
The final-form rulemaking will have no adverse fiscal impact on the Commonwealth or its political subdivisions and will impose no additional paperwork requirements upon the Commonwealth, political subdivisions or the private sector.
Effective Date
The final-form rulemaking will become effective upon publication in the Pennsylvania Bulletin.
Statutory Authority
The final-form rulemaking is promulgated under sections 2 and 4(9) of the Board of Vehicles Act (63 P. S. §§ 818.2 and 818.4(9)).
Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on November 2, 2002, the Board submitted a copy of the notice of proposed rulemaking, published at 32 Pa.B. 5418, to IRRC and the Chairpersons of the HPLC and the SCP/PLC for review and comment.
Under section 5(c) of the Regulatory Review Act, IRRC, the HPLC and the SCP/PLC 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 HPLC, the SCP/PLC and the public.
Under section 5.1(j.2) of the Regulatory Review Act (71 P. S. § 745.5a(j.2)), on June 15, 2004, the final-form rulemaking was approved by the HPLC. On July 14, 2004, the final-form rulemaking was deemed approved by the SCP/PLC. Under section 5.1(e) of the Regulatory Review Act, IRRC met on July 15, 2004, and approved the final-form rulemaking.
Additional Information
Persons who require additional information about the final-form rulemaking should submit inquiries to Teresa Woodall, Board Administrator, State Board of Vehicle Manufacturers, Dealers and Salespersons, P. O. Box 2649, Harrisburg, PA 17105-2649, (717) 783-1697, st-vehicle@state.pa.us.
Findings
The Board finds that:
(1) Public notice of the intention to adopt this final-form rulemaking was 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 promulgated thereunder, 1 Pa. Code §§ 7.1 and 7.2.
(2) A public comment period was provided as required by law, and all comments were considered.
(3) The final-form rulemaking adopted by this order is necessary and appropriate for the administration of the Board of Vehicles Act.
(4) The final form regulations do not enlarge the scope of proposed rulemaking published at 32 Pa.B. 5418.
Order
The Board, acting under its authorizing statue, orders that:
(a) The regulations of the Board, 49 Pa. Code Chapter 19, are amended by adding §§ 19.19 and 19.20 to read as set forth in Annex A.
(b) The Board shall submit this order and Annex A to the Office of Attorney General and the Office of General Counsel for approval as required by law.
(c) The Board shall certify this order and Annex A and deposit them with the Legislative Reference Bureau as required by law.
(d) The final-form rulemaking shall take effect upon publication in the Pennsylvania Bulletin.
EDWIN K. GALBREATH, Jr.,
Chairperson(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 16A-603 remains valid for the final adoption of the subject regulations.
Annex A
TITLE 49. PROFESSIONAL AND VOCATIONAL STANDARDS
PART I. DEPARTMENT OF STATE
Subpart A. PROFESSIONAL AND OCCUPATIONAL AFFAIRS
CHAPTER 19. STATE BOARD OF VEHICLE MANUFACTURERS, DEALERS AND SALESPERSONS
AUCTION LICENSE § 19.19. Standards of licensure for retail or public auction.
(a) Auction activities.
(1) Every public or retail auction shall have a business identity separate from other businesses owned or operated by the public or retail auction.
(2) A public or retail auction may not conduct auction activities other than from its established place of business. A retail or public auction may auction only those vehicles that are physically located at the established place of business of the public or retail auction. A retail or public auction may accept bids by telephone, Internet or other remote means.
(3) An auction license does not permit a public or retail auction to broker, other than the auctioning of vehicles.
(b) Established place of business.
(1) The established place of business for a public or retail auction must include a permanent enclosed building for use as an auction facility within this Commonwealth. This paragraph does not require that all auctioning of vehicles be conducted within the permanent enclosed building.
(2) The established place of business must include a private office, located within the permanent enclosed building, separate from display areas and auctioning areas, that has space for the storage of books and records.
(3) The established place of business must have a single business line telephone, located within the permanent enclosed building, that is used for the public or retail auction. The telephone number must be listed under the public or retail auction's licensed name.
(4) The established place of business must be in full compliance with applicable building codes, zoning ordinances and other land-use ordinances.
(5) A public or retail auction shall possess a certificate of occupancy issued by a building code official in accordance with the Pennsylvania Construction Code Act (35 P. S. §§ 7210.101--7210.1103).
(6) A public or retail auction shall post a sign indicating the days and hours that the public may attend for either inspection or auctioning of vehicles.
(7) A public or retail auction shall exhibit a sign, either permanently affixed to the building or erected outdoors in the display area, that shows the licensed name of the auction and that is visible to the public.
(8) A public or retail auction shall have a display area where potential buyers are permitted and invited in the regular course of business to inspect or test drive the vehicles that are being offered for sale by the auction. The display area must be at or adjacent to the auction's established place of business. The display area may be indoors, outdoors or partly indoors and partly outdoors. The outdoor portions of a display area must be properly graded and surfaced with concrete, asphalt, slag, brick, stone, aggregate, gravel, cinder or similar material.
§ 19.20. Standards of licensure for wholesale auction.
(a) Auction activities.
(1) Every wholesale auction shall have a business identity separate from other businesses owned or operated by the wholesale auction.
(2) A wholesale auction may not conduct auction activities other than from its established place of business. A wholesale auction may auction only those vehicles that are physically located at the established place of business of the wholesale auction. A wholesale auction may accept bids by telephone, Internet or other remote means.
(3) An auction license does not permit a wholesale auction to broker, other than the auctioning of vehicles.
(b) Established place of business.
(1) The established place of business for a wholesale auction must include a permanent enclosed building for use as an auction facility within this Commonwealth. This paragraph does not require that all auctioning be conducted within the permanent enclosed building.
(2) The established place of business must include a private office, located within the permanent enclosed building, separate from display areas and auctioning areas, that has space for the storage of books and records.
(3) The established place of business must have a single business line telephone, located within the permanent enclosed building, that is used for the wholesale auction. The telephone number must be listed under the wholesale auction's licensed name.
(4) The established place of business shall be in full compliance with applicable building codes, zoning ordinances and other land-use ordinances.
(5) A wholesale auction shall possess a certificate of occupancy issued by a building code official in accordance with the Pennsylvania Construction Code Act (35 P. S. §§ 7210.101--7210.1103).
(6) A wholesale auction shall post a sign indicating the auction's licensed name and that the auction is not open to the general public.
[Pa.B. Doc. No. 04-1590. Filed for public inspection August 27, 2004, 9:00 a.m.]
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