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PA Bulletin, Doc. No. 08-1996

NOTICES

Notice of Comments Issued

[38 Pa.B. 6125]
[Saturday, November 1, 2008]

   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 Act (71 P. S. § 645.5b).

   The Commission has issued comments on the following proposed regulations. 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final-form regulation must be submitted within 2 years of the close of the public comment period or it will be deemed withdrawn.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 Comment Period IRRC Comments Issued
54-65Pennsylvania Liquor    Control Board
Promotion of Sale of    Liquor by Vendors
Pa.B. 38 4629
(August 23, 2008)		9/22/0810/22/08
16-42Department of State
Alternation of Local    Election Districts
Pa.B. 38 4628
(August 23, 2008)		9/22/0810/22/08

____

Pennsylvania Liquor Control Board
Regulation #54-65 (IRRC #2714)

Promotion of Sale of Liquor by Vendors

October 22, 2008

   We submit for your consideration the following comments on the proposed rulemaking published in the August 23, 2008 Pennsylvania Bulletin. Our comments are based on criteria in section 5.2 of the Regulatory Review Act (71 P. S. § 745.5b). Section 5.1(a) of the Regulatory Review Act (71 P. S. § 745.5a(a)) directs the Pennsylvania Liquor Control Board (Board) to respond to all comments received from us or any other source.

1. General Comments.--Implementation procedures; Clarity.

The type of product to which the regulation applies

   The Preamble states that the purpose of this proposed regulation is to facilitate the Board's access to fine wines that a vendor might otherwise reserve for special orders only. However, the regulation applies to ''liquor,'' which includes wine but is a substantially broader category. The Board should clarify the category to which the regulation applies: fine wines, liquor, or both.

The process for sale and purchase of luxury items

   While the proposed regulation defines ''luxury items,'' it does not explain the process for their sale. For example, in the Preamble, the Board says that individual consumers will benefit from being able to purchase luxury items from a state store. However, Chapter 13, Subchapter B applies to ''promotion of sale by vendors.'' (Emphasis added.) Section 13.73 (d) allows vendors to ''obtain'' orders of luxury goods from licensees and ''other persons,'' but it does not specify how private citizens will be able to access luxury items. Section 13.79(e) states that ''licensed vendors and their agents shall place luxury item orders for liquor at State Liquor Stores.'' How does this sentence reflect the statement in the Preamble that vendors can process orders from both the Board and from licensees or other persons? (Emphasis added.)

   A public commentator even questioned whether luxury items can still be ordered and shipped directly from the vendor/agent or whether they must be ordered at the state store.

   Given these clarity concerns, the final-form regulation needs to clearly specify who is permitted to sell and buy luxury items and the sale and purchase process.

2.  Section 13.71. Definitions.--Clarity.

Stock merchandise

   The proposed regulation defines this term as liquors available from a liquor store without placing a special liquor orders (SLO) ''and which have not been designated as luxury items.'' (Emphasis added.) Are SLOs and luxury items two completely different things or are luxury items a sub-category of SLOs? Can a luxury item also be stock merchandise? If a luxury item can be stock merchandise as well as a sub-category of SLOs, then how does this reflect the existing language in Section 13.76(a) which states that ''[i]t is the intent of this section that vendors shall not compete on special order with items sold to the Board as stock merchandise?''

   The final-form regulation should clarify the difference between stock merchandise, SLOs and luxury items.

3.  Section 13.73. Privileges of vendors' agents.--Clarity.

   Subsection (d) refers to ''other persons'' from whom agents may solicit orders. While the term ''other persons'' is used throughout the existing regulation, it is not defined. To improve clarity, the final-form regulation should include a definition for this term.

4.  Section 13.79. Special orders and luxury item orders; restrictions.--Implementation procedures.

   Subsection (g) refers to the release of ''liquor sold to licensees.'' However, this subsection does not mention how liquor sold to ''other persons,'' as mentioned in Section 13.73(d), would be released. The final-form regulation should clarify this issue.

____

Department of State
Regulation #16-42 (IRRC #2716)

Alteration of Local Election Districts

October 22, 2008

   We submit for your consideration the following comments on the proposed rulemaking published in the August 23, 2008 Pennsylvania Bulletin. Our comments are based on criteria in Section 5.2 of the Regulatory Review Act (71 P. S. § 745.5b). Section 5.1(a) of the Regulatory Review Act (71 P. S. § 745.5a(a)) directs the Department of State (Department) to respond to all comments received from us or any other source.

Section 191.1 Definitions.--Clarity.

   We have two concerns with the definition of ''Report.''

   First, this definition contains the term ''report.'' However, Section 1.7(e) of the Pennsylvania Code and Bulletin Style Manual (Style Manual) states ''The term being defined may not be included as part of the definition.'' Therefore, the Department should remove the term ''report'' from the definition.

   Second, Subsections (1) through (4) under this definition contain requirements for the content of the report. Section 1.7(c) of the Style Manual does not permit the inclusion of substantive language in a definition. To give the regulated community clear direction, these provisions should be moved to another section of the regulation.

Section 191.2.  Procedures for implementing alteration of local election districts.--Clarity.

   Subsection (a) requires the county board of elections to submit a report to the bureau. The final-form regulation should clarify if written or electronic, or both formats, are acceptable to the bureau.

   Subsection (b) contains the following phrase: '' . . . may not be implemented until the next following primary or election.'' (Emphasis added). The bolded phrase is not clear. It appears that the word ''following'' could be deleted. We recommend the Department clarify this provision in the final-form regulation.

ARTHUR COCCODRILLI,   
Chairperson

[Pa.B. Doc. No. 08-1996. Filed for public inspection October 31, 2008, 9:00 a.m.]


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