BEFORE THE DEPARTMENT OF REVENUE

OF THE STATE OF MONTANA

 

In the matter of the adoption of New Rule I (42.13.702) and II (42.13.404) and amendment of ARM 42.13.107, 42.13.109, 42.13.222, 42.13.601, and 42.13.701 relating to liquor licensing rules

) ) ) ) )

NOTICE OF ADOPTION AND AMENDMENT

 

TO: All Concerned Persons

 

1. On July 17, 2008, the department published MAR Notice No. 42-2-795 regarding the proposed adoption and amendment of the above-stated rules at page 1450 of the 2008 Montana Administrative Register, issue no. 13. On August 28, 2008, the department published a notice of decision on proposed rule action regarding ARM 42.13.601 at page 1821 of the 2008 Montana Administrative Register, issue no. 16.

 

2. A public hearing was held on August 7, 2008, to consider the proposed adoption and amendment. Written comments are summarized as follows along with the response of the department:

 

            COMMENT NO. 1: Lee Heiman, Staff Attorney for the Montana Legislative Services Division stated that the implementing authority in the notice is the same as in the current rules, which doesn't really address the common carrier aspect of the amendments. There are several parts of Title 16 that deal with common carrier delivery, but none specifically address carriage between beer wholesalers or table wine distributors and retail licensees. The most applicable sections appear to be 16-3-106 and 16-3-411, MCA.

 

            RESPONSE NO. 1: The department concurs with Mr. Heiman and has amended the rule as shown below to include both statutes provided in his comments.

 

            COMMENT NO. 2: Lee Heiman also stated that he thought the implementing statute for ARM 42.13.701 should be 16-1-409, MCA rather than 16-1-406, MCA. Section 16-1-406, MCA, says that the tax is payable by a wholesaler, but the rule would require the tax be paid by a brewer if there is no wholesaler. He said he thought that is possible under 16-1-409, MCA, which does address brewers. He also stated that he thought the inconsistency should be fixed by a bill in the 2009 Legislative Session.

 

            RESPONSE NO. 2: The department believes that both statutes apply to the intent of this rule and have added 16-1-409, MCA, as shown below. The department will review the statutes and determine whether to propose legislative changes in 2009.

 

3. The department adopts New Rule I (42.13.702) and New Rule II (42.13.404) and amends ARM 42.13.107 and 42.13.109 as proposed. The department will be addressing the proposed amendments to ARM 42.13.601 through negotiated rulemaking. Based on the comments received, the department amends ARM 42.13.222 and 42.13.701 as follows, stricken matter interlined, new matter underlined:

 

42.13.222 BEER WHOLESALER AND TABLE WINE DISTRIBUTOR RECORDKEEPING REQUIREMENTS (1) through (4)(a) remain as proposed.

 

AUTH: 16-1-303, MCA

IMP: 16-3-106, 16-3-220, 16-3-243, 16-3-404, 16-3-406, 16-3-411, MCA

 

42.13.701 PRODUCTION THRESHOLD (1) through (5) remain as proposed.

 

AUTH:   16-1-303, MCA

IMP: 16-4-406, 16-1-409, MCA

 

4. An electronic copy of this Adoption Notice is available through the department's site on the World Wide Web at www.mt.gov/revenue, under "for your reference"; "DOR administrative rules"; and "upcoming events and proposed rule changes." The department strives to make the electronic copy of this Adoption Notice conform to the official version of the Notice, as printed in the Montana Administrative Register, but advises all concerned persons that in the event of a discrepancy between the official printed text of the Notice and the electronic version of the Notice, only the official printed text will be considered. In addition, although the department strives to keep its web site accessible at all times, concerned persons should be aware that the web site may be unavailable during some periods, due to system maintenance or technical problems.

 

/s/ Cleo Anderson                                         /s/ Dan R. Bucks

CLEO ANDERSON                                      DAN R. BUCKS

Rule Reviewer                                               Director of Revenue

 

Certified to Secretary of State September 29, 2008