NOTICES

INDEPENDENT REGULATORY REVIEW COMMISSION

Notice of Comments Issued

[45 Pa.B. 7072]
[Saturday, December 12, 2015]

 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 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final-form regulation must be submitted within 2 years of the close of the public comment period or it will be deemed withdrawn.

		Close of the Public	IRRC Comments
Reg No.	Agency/Title	Comment Period	Issued
54-85	Pennsylvania Liquor Control Board Limited Wineries 45 Pa.B. 5791 (September 26, 2015)	10/26/15	11/25/15
7-496	Environmental Quality Board Remining Requirements 45 Pa.B. 5920 (October 3, 2015)	11/2/15	12/2/15

Pennsylvania Liquor Control Board Regulation #54-85 (IRRC #3117)

Limited Wineries

November 25, 2015

 We submit for your consideration the following comments on the proposed rulemaking published in the September 26, 2015 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.

 The Board states that the purpose for the proposed rulemaking is to make its regulations consistent with the Liquor Code (''Code'') as it is currently written. In addition to wine and alcoholic ciders, Section 505.2(a)(1), (2) of the Code authorizes limited wineries licensees to produce and sell wine coolers. 47 P. S. § 5-505.2(a)(1), (a)(2). We note, however, that the Board's amendments do not address the production or sale of wine coolers. (See §§ 3.62, 3.63, 5.103, and 11.111.) It is our understanding that the Board has excluded wine coolers from its regulations because the term ''wine cooler'' is not defined in the Code. We recommend the Board define the term and include it in the final rulemaking or explain how the exclusion conforms to the Board's intent to make its regulations consistent with the Code.

2. Section 11.111. Sale by limited winery licensees. Statutory authority; Whether the regulation is consistent with statute; Public interest; Clarity.

Proposed Paragraph (a)(3) states the following:

A limited winery may sell wine and alcoholic ciders from 7 a.m. until 2 a.m. of the following morning, Mondays through Saturdays, and from 9 a.m. until 2 a.m. of the following morning on Sundays.

 The Board's response to Regulatory Analysis Form (RAF) question #10 indicates that the proposed rulemaking updates the current regulations to reflect the current hours of operation for limited wineries. The Board cites Section 505.2(a)(6.3) of the Code as the authorizing statutory provision for the proposed amendment.

 Section 505.2(a)(6.3) states that holders of a limited winery license may:

[s]ell alcoholic cider, wine and wine coolers only between the hours of nine o'clock antemeridian and eleven o'clock postmeridian. A limited winery also may request approval from the board to extend sales hours in individual locations at other times during the year or beyond the limits set forth in this clause. This request shall be made in writing . . . and shall detail the exact locations where sales hours are proposed to be extended, the proposed hours and dates of extended operations and the reason for the proposed extended hours. (Emphasis added.)

 47 P. S. § 5-502.2(a)(6.3). Since the sales hours may be extended only by considering a detailed request from a limited winery, we believe the Board's proposal to provide for the expansion of the sales hours for all limited wineries is not authorized by the Code. We recommend the Board delete proposed Paragraph (a)(3) and retain existing Paragraph (a)(4), or explain how the proposed revision to sales hours is consistent with the Code.

Proposed Subparagraph (a)(4)(i)

 The Preamble and the Board's response to RAF question #10 states the payment method for wine and alcoholic ciders is being updated to be consistent with the language in the Code and the Board's regulations. However, the Board does not include the statutory authority for the proposed change. We request the Board clarify its statutory authority for this provision.

Proposed Paragraph (a)(5)

 The Board proposes that visitors at the winery or at one of the additional Board-approved locations may be provided, with or without charge, samples of wine or alcoholic cider, or both, produced by the limited winery. The proposed language also provides for sampling of wine and alcoholic ciders at locations licensed under a farmer's market permit or under the special permit issued for alcoholic cider, wine and food expositions.

 In RAF question #10 and in the Preamble, the Board states that the regulation is being amended to reflect changes in the Code. However, there does not appear to be a specific statutory change to support this amendment to the regulation. The Board should clarify the rationale for including sampling at limited wineries and other licensed locations under special permit.

Existing Subparagraphs (a)(8)(i)(A, C) and (a)(8)(ii)

 The Board proposes to delete Pennsylvania-grown fruits, jellies, jams, preserves and mushrooms from the list of items that a limited winery may offer for sale at the winery. We ask the Board to explain how removing Pennsylvania-grown commodities from the list of products that may be offered for sale at limited wineries is in the public interest.

Proposed Paragraph (a)(9)

 The Board should provide the statutory authority for accepting Internet orders of wine and alcoholic ciders.

3. Miscellaneous Clarifications:

 • The proposed rulemaking uses the following terms: sample, alcoholic cider, wine and food expositions, farmer's market, and agricultural commodity. To improve clarity, we recommend the Board define these terms in the final-form regulation.

 • The Board should revise its response to RAF question #8 to include specific statutory citations for all of the proposed changes.

 • The Preamble and Board's response to RAF question #10 should be revised to refer to Section 505.2(a)(6.1) of the Code which allows for on or off premises consumption of wine and alcoholic cider, not Section 505.2(a)(6.2) which authorizes licensees to sell wine or liquor-scented candles acquired or produced by the limited winery.

 • The Board's response to RAF questions #26 and #27 are identical. The Board should revise its response to RAF question #27.

 • In proposed Section 11.111(a)(5) we recommend the Board insert the word ''limited'' after ''the'' and before ''winery.''

Environmental Quality Board Regulation #7-496 (IRRC #3121)

Remining Requirements

December 2, 2015

 We submit for your consideration the following comments on the proposed rulemaking published in the October 3, 2015 Pennsylvania Bulletin. Our comments are based on criteria in Section 5.2 of the Regulatory Review Act (RRA) (71 P. S. § 745.5b). Section 5.1(a) of the RRA (71 P. S. § 745.5a(a)) directs the Environmental Quality Board (EQB) to respond to all comments received from us or any other source.

1. Compliance with the RRA.

 Section 5.2 of the RRA (71 P. S. § 745.5b) directs this Commission to determine whether a regulation is in the public interest. When making this determination, the Commission considers criteria such as economic or fiscal impact and reasonableness. To make that determination, the Commission must analyze the text of the Preamble and proposed regulation and the reasons for the new or amended language. The Commission also considers the information a promulgating agency is required to provide under Section 745.5(a) in the Regulatory Analysis Form (RAF). EQB did not respond to question #23 on the RAF related to fiscal savings and costs associated with implementation and compliance for the regulated community, local government and state government for the current year and five subsequent years. We ask EQB to include a response to each question on the final-form RAF.

2. RAF—Clarity and lack of ambiguity.

 EQB states in response to RAF question #11 that Section 87.210(d)(2), (3) and (5) include requirements to establish an in-stream pollutant baseline in certain circumstances. EQB states that these provisions are more stringent than federal requirements. These same provisions are found in parallel Sections 88.510 and 90.310. We ask EQB to include all provisions which are more stringent than federal requirements in its response to the final-form RAF.

3. Section 87.204. Application for authorization.—Protection of the public health, safety and welfare; Need for the regulation.

 In Subsection (b), EQB currently requires the operator seeking authorization to continue the water quality and quantity monitoring program required by Subsection (a)(2) after making the authorization request. The operator is currently required to submit the results of this monitoring program to the Department of Environmental Protection on a monthly basis until a decision on the authorization is made. EQB states in the Preamble that on the recommendation of the Mining and Reclamation Advisory Board, EQB proposes to allow—rather than require—the operator to continue water monitoring until the permit is issued. We ask EQB to explain in the final-form RAF and Preamble the need for this change, and how this proposed change will adequately protect the public health, safety and welfare.

 We ask EQB to address these same concerns related to parallel Sections 88.504 and 90.304 (relating application for authorization).

4. Section 87.210. Effluent limitations.—Clarity and lack of ambiguity.

 We have clarity concerns in Subsection (d) (relating to in-stream requirements). Paragraph (d)(1) states:

If the [Department of Environmental Protection (Department)] determines that it is infeasible to collect samples for establishing the baseline pollutant levels under this subsection, and that remining will result in significant improvement that would not otherwise occur, the permit applicant may establish an in-stream baseline concentration at a suitable point downstream from the remining operation and the numeric effluent limitations in subsection (c)(1) do not apply. (Emphasis added.)

 The circumstances under which it is infeasible to collect samples are found in Paragraph (d)(4). EQB should include a reference to the specific paragraph in order to make clear for the regulated community how the Department makes the determination.

 Also, Paragraph (d)(1) states that a permit applicant may establish an in-stream baseline concentration at a suitable point downstream from the remining operation. Does EQB intend for this provision to be optional? Paragraph (d)(5) includes circumstances under which the Department may waive the in-stream monitoring requirements. It appears that EQB intends to require permit applicants to establish an in-stream baseline concentration at a suitable point downstream from the remining operation unless the Department grants a waiver. If so, EQB should amend the language to clarify that establishing an in-stream baseline concentration at a suitable point downstream from the remining operation is a requirement unless the Department grants a waiver under Paragraph (d)(5).

 We ask EQB to make these same clarifications in parallel Sections 88.510 and 90.310 (relating to effluent limitations).

5. Section 87.213. Procedure for calculating and applying an annual trigger.—Clarity and lack of ambiguity.

 Subsections (b) and (c) provide methods for calculating the annual trigger. The methods are taken from paragraphs III.A and III.B of Appendix B in 40 CFR Part 434, respectively. We ask EQB to clarify the calculations as follows.

 Based on subparagraph III.A.4 of the CFR, the calculation in paragraph (b)(4) should include an additional set of parentheses.

 Tb=M+((1.815*R)/SQRT(n))

 Based on subparagraph III.A.6 of the CFR, the calculation in paragraph (b)(6) should include an additional set of parentheses.

 Tm=M' −((1.815*R')/SQRT(m))

 Based on subparagraph III.B.3.b of the CFR, the calculation in subparagraph (c)(7)(ii) should use a small letter ''m'' rather than a capital.

 Critical Value=0.5*n*(N+1)−3.0902*SQRT(n*m(N+1)/12)

 Based on subparagraph III.B.3.c of the CFR, the calculation for V in subparagraph (c)(7)(iii) should include additional parentheses.

 V=((n*m*S)/(N*(N−1)))−((n*m*(N+1)²)/(4*(N−1)))

 We ask EQB to make these same clarifications in parallel Sections 88.513 and 90.313 (relating to procedure for calculating and applying an annual trigger).

JOHN F. MIZNER, Esq., 
Chairperson

[Pa.B. Doc. No. 15-2191. Filed for public inspection December 11, 2015, 9:00 a.m.]

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