RULES AND REGULATIONS
Title 40—LIQUOR
LIQUOR CONTROL BOARD
[ 40 PA. CODE CH. 5 ]
Proof of Recycling
[51 Pa.B. 2927]
[Saturday, May 22, 2021]The Liquor Control Board (Board), under the authority of section 207(i) of the Liquor Code (47 P.S. § 2-207(i)), amends Chapter 5 (relating to duties and rights of licensees) and adds § 5.43 (relating to proof of recycling) to read as set forth in Annex A.
A. Effective Date
This final-form rulemaking will become effective upon publication in the Pennsylvania Bulletin.
B. Additional Information
Further information may be obtained by contacting Rodrigo Diaz, Chief Counsel, Jason M. Worley, Deputy Chief Counsel; or Norina Foster, Assistant Counsel, Office of Chief Counsel, Liquor Control Board, Room 401, North- west Office Building, Harrisburg, PA 17124-0001; ra-lblegal@pa.gov (e-mail is preferred).
C. Statutory Authority
These amendments are published under the statutory authority of section 207(i) of the Liquor Code (47 P.S. § 2-207(i)).
D. Purpose and Background
The specific purpose and background of the amendments are described in more detail under the summary of changes.
E. Summary of Changes
Section 491(5) of the Liquor Code (47 P.S. § 4-491(5)) requires restaurant, hotel and club liquor licensees to break any package that contained liquor (''liquor packages'') within 24 hours after the liquor package has been emptied, with two exceptions: 1) the Board has determined the package to be decorative; or 2) the licensee participates in either a municipal or voluntary recycling program. If a licensee claims to participate in a recycling program, the Pennsylvania State Police, Bureau of Liquor Control Enforcement, which enforces the Liquor Code, may demand that the licensee provide ''proof in writing.'' Id. These amendments establish what constitutes ''proof in writing.''
The amendments add § 5.43; subsection (a) is based on the text of section 491(5) of the Liquor Code and is included to provide a frame of reference for the regulation.
Subsection (b) requires a licensee to ''deface, prior to recycling, the labels of all packages that are not broken. The labels must be defaced with a permanent marker or some other, similar, permanent defacement. . . .'' The reason for this is to prevent the fraudulent reuse of liquor packaging, which is also the reason for requiring a licensee to break any packages that are not being recycled. Packaging that is not broken may be taken by someone, whether at curbside or at a recycling drop off location, who then refills the package and passes it off as genuine. Therefore, to thwart this type of fraud, licensees are required to deface the labels of liquor packaging that is being recycled.
Subsection (c) sets forth the documentation that licensees must keep as ''proof in writing'' of participation in a recycling program. Paragraph 1 requires a licensee to have, as a threshold element, written proof that the county recycles the type of liquor package, such as glass, that the licensee is recycling. This proof can be a pamphlet or printed pages from the recycling program's web site or something similar.
Subsection (c), paragraph 2 pertains to licensees that have their recycling picked up at the curb. These licensees must retain a copy of the receipts, bills or invoices paid by the licensee when it pays for a municipal or private entity to pick up its recycling.
Subsection (c), paragraph 3 pertains to licensees that must take their recycling to a drop off location. There may or may not be a person staffing the drop off location; so, in consideration of that fact, the ''proof in writing'' documentation does not require corroboration from the township or municipality.
In the proposed rulemaking, the Board included, in subsection (c), paragraph 3, a form to record what has been taken to the recycling drop-off location and other details. At the suggestion of the Independent Regulatory Review Commission (IRRC), the Board eliminated this form from this final-form rulemaking. Instead, the information that was captured on the form has been streamlined and provided in list form, directing the licensee to maintain a statement containing the following information:
• Name and address of the licensee;
• Type of liquor packages recycled; and
• Details on each delivery of recycled liquor packages, including the date of delivery, time of delivery, who delivered the liquor packages, what was delivered, and the approximate weight or quantity of the recycled liquor packages.
In addition, this final-form rulemaking requires the statement to be verified by the licensee's representative that the information provided is true and complete to the best of the representative's knowledge and belief and that the licensee's representative understands that the statements made are subject to the penalties set forth in 18 Pa.C.S. § 4904 (relating to unsworn falsification to authorities). This statement should be followed by the signature of the licensee's representative and the date the signature was made.
Subsection (c), paragraph (3) also requires the licensee to keep a choice of two of the following items:
• The name, location and hours of operation of the recycling facility where licensee disposes recyclable liquor packages.
• A copy of the recycling registration or documentation required by a municipality.
• A municipal waste newsletter or circular.
• An e-mail, letter or memorandum from its municipality that explains what may be recycled and where recyclable liquor packages may be dropped off.
• Municipal recycling maps of drop-off locations for recyclable liquor packages.
• A municipal recycling collection schedule or calendar.
• Other printed or online materials provided by a municipality regarding municipal waste management.
The intent behind this requirement is to ensure that the licensee has made the effort to become informed as to how to recycle in the county. Although independent corroboration is preferred, in many rural areas, it is impossible to obtain.
Finally, subsection (d) requires the ''proof in writing'' to be kept for a period of 2 years, in conformance with section 493(12) of the Liquor Code (47 P.S. § 4-493(12)).
F. Paperwork Requirements
The amendments impose minimal paperwork requirements on those licensees who recycle packages that previously contained alcohol. Since the statute requires ''proof in writing,'' some paperwork is unavoidable. These amendments are intended to provide guidance as to what constitutes ''proof in writing'' of participation in a recycling program without creating an unreasonable burden for licensees.
G. Fiscal Impact
This regulatory change is not expected to have any measurable fiscal impact on the regulated community, State government or local governments.
H. Comments to the Proposed Rulemaking
Comments were received from the Pennsylvania Restaurant and Lodging Association, the Honorable John A. Lawrence, as well as IRRC. Responses to the comments have been provided in a separate document.
I. Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P.S. § 745.5(a)), on February 21, 2019, the Board submitted a copy of this proposed rulemaking and a copy of a Regulatory Analysis Form to IRRC and to the Chairpersons of the House Liquor Control Committee and Senate Committee on Law and Justice for review and comment.
Under section 5(c) of the Regulatory Review Act, IRRC, and the House and Senate Committees were provided with copies of all comments received during the public comment period as well as other documents when requested. In preparing this final-form rulemaking, the Board has considered all comments received from IRRC and the public.
Under section 5.1(j.2) of the Regulatory Review Act (71 P.S. § 745.5a(j.2)), on April 14, 2021, the final-form rulemaking was deemed approved by the House and Senate Committees. Under section 5.1(e) of the Regulatory Review Act (71 P.S. § 745.5a(e)), IRRC met on April 15, 2021, and approved the final-form rulemaking.
TIM HOLDEN,
Chairperson(Editor's Note: See 51 Pa.B. 2468 (May 1, 2021) for IRRC's approval order.)
Fiscal Note: Fiscal note 54-93 remains valid for the final adoption of the subject regulation.
Annex A
TITLE 40. LIQUOR
PART I. LIQUOR CONTROL BOARD
CHAPTER 5. DUTIES AND RIGHTS OF LICENSEES
Subchapter D. MAINTENANCE OF THE LICENSED PREMISES § 5.43. Proof of recycling.
(a) Under section 491(5) of the Liquor Code (47 P.S. § 4-491(5)), restaurant, hotel and club liquor licensees are required to break any package in which liquors were contained (''liquor packages''), except those decanter packages that the Board determines to be decorative, within 24 hours after the contents of the package have been removed, unless the licensee participates in either a municipal recycling program or a voluntary recycling program.
(b) If a licensee participates in a recycling program, the licensee must deface, prior to recycling, the labels of all packages that are not broken. The labels must be defaced with a permanent marker or some other, similar, permanent defacement that will discourage the theft of the bottles for unlawful re-use.
(c) The licensee shall provide proof in writing of participation in such a program upon demand of the Bureau of Liquor Control Enforcement of the Pennsylvania State Police. This subsection establishes what constitutes ''proof in writing.''
(1) The licensee must be able to provide written proof that the municipal or voluntary recycling program accepts the kind of liquor packages (such as glass) that the licensee recycles. This written proof may be a pamphlet or printed pages from the recycling program's web site or something similar.
(2) If the licensee pays for a municipal or private entity to pick up its recycling, the licensee must retain a copy of the receipts, bills or invoices paid by the licensee to the municipal or private entity as ''proof in writing.''
(3) If the licensee voluntarily participates in a recycling program by taking recyclable liquor packages to a drop off location, the licensee must maintain, for each calendar year, a statement containing the following information:
(i) Name and address of the licensee.
(ii) Type of liquor packages recycled.
(iii) Details on each delivery of recycled liquor packages, including the date of delivery, time of delivery, who delivered the recycled liquor packages, what was delivered, and the approximate weight or quantity of recycled liquor packages.
(iv) A verification by the licensee's representative that the information provided is true and complete to the best of the representative's knowledge and belief and that the licensee's representative understands that the statements made are subject to the penalties set forth in 18 Pa.C.S. § 4904 (relating to unsworn falsification to authorities). This statement should be followed by the signature of the licensee's representative and the date the signature was made.
(4) In addition to the statement required by subsection (c)(3), a licensee who takes recyclable liquor packages to a drop off location must also keep a copy of at least two of the following records from the municipality with oversight of the drop off location:
(i) The name, location and hours of operation of the recycling facility where licensee disposes recyclable liquor packages.
(ii) A copy of the recycling registration or documentation required by a municipality.
(iii) A municipal waste newsletter or circular.
(iv) An e-mail, letter or memorandum from its municipality that explains what may be recycled and where recyclable liquor packages may be dropped off.
(v) Municipal recycling maps of drop-off locations for recyclable material.
(vi) A municipal recycling collection schedule or calendar.
(vii) Other printed or online materials provided by a municipality regarding municipal waste management.
(d) These records shall be maintained as part of the licensee's operating records required to be kept for 2 years in accordance with section 493(12) of the Liquor Code (47 P.S. § 4-493(12)).
[Pa.B. Doc. No. 21-838. Filed for public inspection May 21, 2021, 9:00 a.m.]
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