LQR-17-16-00002-P Updated Price Posting Rules, License Durations, and Recordkeeping Requirements, and Rescinding of Whiskey Dividend Rules

4/27/16 N.Y. St. Reg. LQR-17-16-00002-P

NEW YORK STATE REGISTER

VOLUME XXXVIII, ISSUE 17

April 27, 2016

RULE MAKING ACTIVITIES

STATE LIQUOR AUTHORITY

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. LQR-17-16-00002-P

Updated Price Posting Rules, License Durations, and Recordkeeping Requirements, and Rescinding of Whiskey Dividend Rules

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:

Proposed Action:

This is a consensus rule making to amend sections 65.4, 65.5, 65.11 and 97.1; and repeal of sections 90.1 and 90.2 of Title 9 NYCRR.

Statutory authority:

Alcohol Beverage Control Law, sections 55-a(1), 101(1)(c), 101-b(4) and 109(1)

Subject:

Updated price posting rules, license durations, and recordkeeping requirements, and rescinding of whiskey dividend rules.

Purpose:

To update price posting rules, license durations, recordkeeping, and joint advertising rules for certain license types.

Text of proposed rule:

Title 9, Subtitle B, of the Official Compilation of Codes, Rules and Regulations of the State of New York (NYCRR), is hereby amended to include amendments to sections 65.4, 65.5, 65.11, and 97.1, as well as the repeal of sections 90.1 and 90.2.

§ 65.4 Prices to retailers (Alcoholic Beverage Control Law, § 101-b)

(a) The price to retailers, except retailers operating railroad cars, shall include federal customs duties, internal revenue taxes, State taxes and fees and cost of delivery to the retailer. The price to retailers operating railroad cars may be scheduled at a price “ex State taxes and fees”, but shall include all of the other taxes and costs computed in prices to other retailers. No charge shall be made in addition thereto, except where a wholesaler lists in his schedule those counties in which no charge for delivery will be made, in all other counties the actual cost of delivery shall be charged to the retailer in addition to the price set forth in the schedule and shall be so indicated on the invoice.

(b) A delivery charge may be made for certain brands and not for other brands, provided it is so indicated on the schedule of prices to retailers.

(c) All sales to airline company retail licensees shall be at price schedule prices, except “in bond” sales to aircraft companies holding permits under section 99-b.

(d) The bottle or case price of an item of liquor listed in a schedule of liquor prices to retailers shall not be changed from the price theretofore listed in the prior schedule of liquor prices to retailers except insofar as such change may be required or permitted pursuant to the provisions of 3(b) of section 101-b (Alcoholic Beverage Control Law), or after prior permission of the Authority for good cause shown and for reasons not inconsistent with the purpose of section 101-b.

(e) For each item of liquor listed in the schedule of liquor prices to retailers there shall be posted a bottle and a case price. [The bottle price multiplied by number of containers in the case must exceed the case price by approximately $1.92 for any case of 48 or fewer containers. The figure is to be reached by adding $1.92 to the case price, dividing by the number of containers in the case, and rounding to the nearest cent. Where more than 48 containers are packed in a case, bottle price shall be computed by dividing the case price by the number of containers in the case, rounding to the nearest cent, and adding one cent. Variations will not be permitted without approval of the authority.]

§ 65.5 Prices to wholesalers

(a) The prices of liquor to wholesalers must be scheduled by the following methods for designated points of shipment. If the brand owner or brand agent ships from more than one point-of-shipment to any wholesaler anywhere in any State of the United States or in the District of Columbia, or to any state (or state agency) then the points-of-shipment most economical to the New York wholesaler must be scheduled.

(1) F.O.B. United States of America point-of-shipment designated which shall include Federal customs duties, internal revenue taxes, New York State excise taxes and all charges up to the point-of-shipment designated.

(2) F.O.B. United States of America point-of-shipment designated which shall include all Federal customs duties, internal revenue taxes and all charges up to the point-of-shipment designated if sales to any wholesaler in any other state, or to any state (or state agency) are made on this basis.

(3) In bond f.o.b. United States of America point-of-shipment designated if sales to any wholesaler in any other state, or to any state (or state agency) are made on this basis.

(4) In bond f.o.b. foreign point-of-shipment designated (direct import) if sales to any wholesaler in any other state, or to any state (or state agency) are made on this basis.

(5) F.O.B. foreign point-of-shipment designated which shall include all Federal customs duties, internal revenue taxes and all charges up to the point-of-shipment designated if sales to any wholesaler in any other State, or to any state (or state agency) are made on this basis.

[(b) Liquor prices to wholesalers may not be scheduled by any other method unless it is first established to the satisfaction of the Authority that the bottle and case prices under the alternate method are not higher than the lowest prices at which the brand will be sold to any wholesaler anywhere in any other state of the United States or in the District of Columbia, or to any state (or state agency).

(c)] (b) Where any schedule of liquor prices to wholesalers reflects a reduction or increase in the bottle or case price filed pursuant to subdivision (a)(1) of this section for any item set forth therein from the bottle or case price of such item theretofore in effect, then the schedules of liquor prices to retailers shall reflect, in the event of a decrease at least a like reduction in per centum in the bottle and case price of such item set forth therein, and in the event of an increase, not more than a like increase in per centum in the bottle and case price of such item set forth therein.

[(d)] (c) The prices of wine to wholesalers may be scheduled by the following methods:

(1) F.O.B. United States of America point-of-shipment designated which shall include all Federal customs duties, internal revenue taxes, New York State excise taxes and all charges up to the point-of-shipment designated.

(2) F.O.B. United States of America point-of-shipment designated which shall include all federal customs duties, internal revenue taxes and all charges up to the point-of-shipment designated.

(3) In bond f.o.b. United States of America point-of-shipment designated.

(4) In bond f.o.b. foreign point-of-shipment designated (direct import).

(5) F.O.B. foreign point-of-shipment which shall include all federal customs duties, internal revenue taxes and all charges up to the point-of-shipment designated.

(6) A price which shall include federal customs duties, internal revenue taxes, State excise taxes and cost of delivery to the wholesaler. No charge shall be made in addition thereto except where the manufacturer or wholesaler lists in his schedule of wine prices to wholesalers the counties in which no charge for delivery will be made, in which event the actual cost of delivery in all other counties shall be charged to the wholesalers in addition to the price set forth on the schedule.

(7) A price which shall conform to the same terms and conditions set forth in method number (6) above except exclusive of federal customs duties, internal revenue taxes and State excise taxes.

(8) A price which shall conform to the same terms and conditions set forth in method number (6) above except exclusive of State excise taxes.

[(e)] (d) Wine prices to wholesalers may not be scheduled by any other method except with the approval of the Authority first obtained.

§ 65.11 Breakage

(a) As part of its regular books and records, each manufacturer and wholesaler licensed to sell liquor or wine shall keep a monthly record of all allowances for breakage containing the name, address and license number of the customer, the amount of breakage allowance, the date and number of the invoice of sale[, and the Federal strip stamp numbers of each broken bottle for which allowance is given].

(b) No allowances for breakage shall be given unless the broken bottle is returned to the seller [and where the container is required to have a Federal strip stamp affixed thereto, such stamp must be intact at the time of return]. Such broken bottles shall be kept available for inspection by representatives of the Liquor Authority, and may not be removed from the licensed premises or destroyed without permission from the Liquor Authority for a period of at least thirty (30) days.

§ 97.1 (Duration of permits)

The duration of the following retail beer licenses, effective on and after July 1, 1976, shall be as follows:

(a) Single grocery store beer licenses located in the following counties shall be effective for one year commencing July 1, 1976 and shall expire on June 30, 1977. Thereafter, the term of such licenses shall be three years commencing July 1, 1977 and ending June 30, 1980, and every three years thereafter.

ZONE I	ZONE II	ZONE III
New York Kings	Albany Greene Chenango Delaware Otsego Schoharie Clinton Essex Franklin Columbia Renessalaer Washington Broome Cayuga	Alleghany Cattaraugus Chautauqua Chemung Schuyler Steuben Tompkins Tioga Ontario Seneca Yates

(b) Single grocery store beer licenses located in the following counties shall be effective for two years commencing July 1, 1976 and shall expire on June 30, 1978. Thereafter, the term of such licenses shall be three years commencing July 1, 1978 and ending June 30, 1981, and every three years thereafter.

ZONE I	ZONE II	ZONE III
Bronx Queens Richmond Fulton Hamilton Montgomery Herkimer Madison Oneida Jefferson Lewis Oswego	Cortland Onondaga Dutchess	Erie Wyoming

(c) Single grocery store beer licenses located in the following counties shall have a duration of three years, the first such period to commence July 1, 1976 and end on June 30, 1979.

ZONE I	ZONE II	ZONE III
Nassau Suffolk Westchester Orange Putnam Rockland	St. Lawrence Saratoga Schenectady Warren Sullivan Ulster	Genesee Niagara Orleans Livingston Monroe Wayne

(d) All multiple grocery store beer licenses throughout the State shall have a duration of three years, the first such period to commence July 1, 1976 and end on June 30, 1979.

(e) All single and multiple drug store beer licenses throughout the State shall have a duration of three years, the first such period to commence July 1, 1976 and end on June 30, 1979.

(f) The following retail beer licenses, authorized by sections 53-a and 55 of the Alcoholic Beverage Control Law, shall continue to have a duration of one year commencing July 1 and ending June 30:

Eating place	Club
Vendor	Additional bar
Vessel	Fishing vessel
Hotel

(g) [and] All ball park retail beer licenses, authorized by section 55-a of the Alcoholic Beverage Control Law, shall [continue to] have a duration of [one] three years [commencing April 1 and ending March 31].

Text of proposed rule and any required statements and analyses may be obtained from:

Paul Karamanol, Senior Attorney, State Liquor Authority, 80 South Swan Street, Suite 900, Albany, NY 12210, [phone], email: [e-mail]

Data, views or arguments may be submitted to:

Same as above.

Public comment will be received until:

45 days after publication of this notice.

Consensus Rule Making Determination

This statement is being submitted pursuant to subparagraph (i) of paragraph (b) of subdivision (1) of section 202 of the State Administrative Procedure Act and in support of the New York State Liquor Authority’s (“Authority”) Notice of Proposed Rulemaking seeking to amend sections 65.4, 65.5, 65.11, and 97.1, as well as the repeal of sections 90.1 and 90.2 of Title 9, Subtitle B, of the Official Compilation of Codes, Rules and Regulations of the State of New York (N.Y.C.R.R.)

It is apparent from the nature and purpose of these proposed amendments that no person is likely to object to their adoption as written. Part 65.4 sets forth requirements for posting prices of liquor and wine to retailers and the proposed change would rescind the archaic requirement that case prices exceed the bottle price multiplied by the number of bottles in a case by $1.92, thereby codifying current practices. Part 65.5 sets requirements for posting prices of liquor and wine to wholesalers and the proposed change would rescind the archaic requirement that wholesalers establish to the satisfaction of the Authority that their bottle and case prices are not higher than the lowest prices at which the brand will be sold to any wholesaler anywhere in any other state of the United States or in the District of Columbia, thereby codifying current practices. Part 65.11 sets forth recordkeeping requirements for broken alcoholic beverage containers in the chain of distribution (“breakage”) and the proposed change would rescind archaic references to Federal strip stamps which are no longer utilized. Part 97.1 sets forth durations for several retail beer licenses and the proposed change would lengthen the duration for ball park beer licenses from one to three years, thereby codifying current practices. Part 90.1 sets forth a ban on issuing permits for trafficking of alcoholic beverage dividends and would be rescinded as an outdated practice which is no longer relevant. Part 90.2 sets forth requirements that alcoholic beverage dividends be shipped via a manufacturer or wholesaler licensed in New York and would be rescinded as an outdated practice which is no longer relevant.

Consistent with the definition of “consensus rule” as set forth in section 102(11) of the State Administrative Procedure Act, the Authority has determined that this proposal, which rescinds certain archaic price posting requirements, outdated recordkeeping references, and codifies current practices regarding length of ball park licenses, and rescinds archaic rules regarding whiskey dividends, is non-controversial in nature and, therefore, no person is likely to object to its adoption as written.

Job Impact Statement

This statement is being submitted pursuant to subdivision (2) of section 201-a of the State Administrative Procedure Act and in support of the New York State Liquor Authority’s (“Authority”) Notice of Proposed Rulemaking seeking to amend sections 65.4, 65.5, 65.11, and 97.1, as well as the repeal of sections 90.1 and 90.2 of Title 9, Subtitle B, of the Official Compilation of Codes, Rules and Regulations of the State of New York (N.Y.C.R.R.).

It is apparent from the nature and purpose of these proposed amendments that they have no impact on jobs or employment opportunities in New York. These proposed amendments merely rescind certain archaic price posting requirements, outdated recordkeeping references, codify current practices regarding length of ball park licenses, and rescind archaic rules regarding whiskey dividends. As a result, the Authority has determined that these proposed amendments will have no substantial adverse impact on any private or public sector jobs or employment opportunities and a full Job Impact Statement is not warranted.