STATE BOARD OF VEHICLE MANUFACTURERS, DEALERS AND SALESPERSONS [49 PA. CODE CH. 19] Branch Lots [34 Pa.B. 4689] The State Board of Vehicle Manufacturers, Dealers and Salespersons (Board) adds § 19.17a (relating to branch lots) to read as set forth in Annex A.
Description and Need for Rulemaking
The final-form rulemaking adds § 19.17a to set forth the general rule that any location where a dealer has placed vehicles must be licensed and to set forth standards for determining whether a location where a dealer has placed vehicles is a storage lot or an advertisement, as opposed to the offering for sale of those vehicles, and need not be licensed.
Summary of Comments and Responses to Proposed Rulemaking
The Board published notice of proposed rulemaking at 33 Pa.B. 1124 (March 1, 2003) with a 30-day public comment period. The Board received comments from the Pennsylvania Automotive Association (PAA). The Board also received comments from the Independent Regulatory Review Commission (IRRC) and the House Professional Licensure Committee (HPLC) as part of their review of the 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) as part of its review of the proposed rulemaking under the Regulatory Review Act.
The PAA commented that it ''is in agreement with the proposed regulations as presented.''
The HPLC and IRRC both suggested that the final-form rulemaking should be included under the heading of ''dealership license'' because it specifically addresses dealers, rather than under ''general provisions.'' The Board agrees and has renumbered the regulation as § 19.17a.
IRRC commented that the language used in subsection (b)(3), (4), (6) and (7) to distinguish a storage lot from a sales lot expresses the negative in the actor, although the negative should be with the action. The Board has revised these portions of the final-form rulemaking in accordance with this comment.
IRRC also commented that subsection (b)(8) should clarify that the dealer may not provide a telephone or other means for a customer to contact the dealer from the unlicensed location. The Board agrees and has revised subsection (b)(8) to preclude the dealer from providing potential customers at the unlicensed location with any means to communicate with the dealer about the vehicles stored there. Additionally, the Board has revised this subsection to express the negative with the action, as discussed in the previous comment.
The HPLC questioned the Board's authority to promulgate subsection (c). Subsection (c)(1) states that certain actions will not be considered to be ''buying, selling or exchanging'' vehicles, as defined in section 2 of the Board of Vehicles Act (act) (63 P. S. § 818.2). Because the definition of ''buying, selling or exchanging'' includes advertising and all sales activity is to occur at the licensed dealership facility, the HPLC questioned whether the Board has authority to create an exemption. In drafting subsections (b) and (c), the Board intended to create a safe harbor for dealers to know on what terms the display of a vehicle will be considered to be storage or merely advertising, respectively, (and may be done away from a licensed facility) and not the offering for sale (that must be done only at a licensed facility). The Board considers the display of a vehicle under subsection (c) to be merely a three-dimensional ''billboard'' that may be placed anywhere for public view of the advertising.
Both the HPLC and IRRC suggested that subsection (c) include a requirement that the dealer post a sign with the single vehicle display stating that the vehicle is for display only and that no sales transaction may occur at the display site. The Board has revised the final-form rulemaking to incorporate this suggestion.
Subsection (c)(1)(v) prohibits a single vehicle display from having ''sales agreement forms or other documents routinely used in vehicle sales transactions.'' IRRC commented that the Board should identify these other documents. In response, the Board has revised this subsection to read ''There are no sales forms present at the location.'' IRRC also commented that subsection (c)(1)(vi) should make clear that it is the dealer's responsibility to ensure that the vehicle is locked and that the public is unable to gain entry. The Board agrees that this is the dealer's responsibility and, in response to this comment, has revised subsection (c)(1)(vi) to read ''The dealer has secured the vehicle so that it is not capable of being operated . . . .''
Finally, IRRC questioned why subsection (c)(2) explicitly excluded the display of recreational vehicles, mobile homes or manufactured housing from a regulation that is not applicable to these types of vehicles. Subsection (c)(2) was drafted to clearly demarcate those segments of the vehicle sales industry that are subject to this final-form rulemaking from those that are not.
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 section 2 and sections 4(4) and (9) and 5(e) of the act (63 P. S. §§ 818.4(4), 818.4(9) and 818.5(e)).
Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on March 1, 2003, the Board submitted a copy of the notice of proposed rulemaking, published at 33 Pa.B. 1124, 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 act.
(4) The final-form rulemaking does not enlarge the scope of proposed rulemaking published at 33 Pa.B. 1124.
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 § 19.17a 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-605 remains valid for the final adoption of the subject regulation.
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 DEALERSHIP LICENSE § 19.17a. Branch lots.
(a) Facility. Unless otherwise exempted by the act or this chapter, any location where a licensed vehicle dealer displays or offers vehicles for sale shall be licensed and comply with the facilities requirements set forth in the act and § 19.18 (relating to established place of business for dealers).
(b) Storage of vehicles. The storage of vehicles by a licensed vehicle dealer at an unlicensed location will not be considered to be the display or offer for sale of vehicles at that location if:
(1) The lot is used solely for the storage of vehicles.
(2) The lot is identified by a sign with the dealership name and a designation that the lot is for ''storage only.'' The area may not otherwise be identified.
(3) A salesperson is present at the lot only as necessary to repair, recondition, inspect or move any of the vehicles.
(4) A salesperson present at the unlicensed location does not engage in any demonstration or discussion of product features of the vehicles and does not discuss any terms of sale.
(5) The public is not permitted access to any of the vehicles at the lot and the vehicles are not capable of being entered or operated (other than by criminal acts).
(6) A sign or other marking at the lot or on any of the vehicles at the lot (except for a Federally-mandated manufacturer's price sticker) does not indicate that any of the vehicles at the lot are available for sale at any other location.
(7) Literature, such as business cards or brochures, is not available for potential customers to remove from the lot.
(8) The dealer has provided a potential customer at the lot with no means, such as telephone, e-mail or Internet website, to negotiate the sale of, to obtain additional information concerning, or to otherwise discuss the vehicles at the unlicensed lot or other vehicles available for sale by the dealer.
(c) Single vehicle display.
(1) The placement of a single vehicle before the public will not be considered the buying, selling or exchanging of the vehicle, as defined in section 2 of the act (63 P. S. § 818.2), if:
(i) The placement is by a vehicle dealer licensed in this Commonwealth.
(ii) No more than one vehicle is placed at the location.
(iii) A salesperson present at the location does not discuss the features of the vehicle or other vehicles handled by the dealership and does not negotiate or conclude the sale of the vehicle or another vehicle of the dealer.
(iv) There is no sales office at the location.
(v) There are no sales forms present at the location.
(vi) The dealer has secured the vehicle so that it is not capable of being entered or operated by potential customers or others (other than by criminal acts).
(vii) The location is not at the licensed premises of any vehicle dealer or vehicle auction.
(viii) A sign is posted that identifies the vehicle as for display only and not for sale at that location.
(2) This subsection applies to the placement of automobiles, light trucks and motorcycles, but does not apply to the placement of recreational vehicles, mobile homes, manufactured housing, and other vehicles not identified in this paragraph.
[Pa.B. Doc. No. 04-1588. Filed for public inspection August 27, 2004, 9:00 a.m.]
