PROPOSED RULEMAKING
[52 PA. CODE CHS. 3 AND 5]
[28 Pa.B. 2143] [L980133]
Motor Carrier Property Applications The Pennsylvania Public Utility Commission (Commission) on February 26, 1998, adopted a proposed rulemaking to discontinue publication of property carrier applications. Given the Commission's limited regulatory role of safety and insurance issues, it no longer serves a useful purpose to require publication of property carrier applications. The contact person is John Herzog, Assistant Counsel, Legal Division, Bureau of Transportation and Safety, (717) 783-3714.
Executive Summary
The Federal Aviation Authorization Act of 1994 preempted state regulation of motor carriers of property in the areas of rates, routes and service. See 49 U.S.C.A. §§ 14501(c) and 41713(b). Currently, the Commission's regulatory oversight of property carriers is limited to safety and insurance issues. In light of the Federal preemption, the Commission modified its regulations to reflect its changed regulatory role. See Regulation of Motor Carriers of Property, Docket No. L-00950106.
Historically, property carrier applications have been published in the Pennsylvania Bulletin to afford existing carriers the opportunity to protest new entrants into the market. Since the Commission no longer regulates the rates, routes and service of property carriers, the rationale for requiring publication of applications no longer exists. Further, the protest mechanism is a vestigial process left over from the bygone era of economic regulation and should likewise be eliminated.
Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on April 28, 1998, the Commission submitted a copy of these proposed amendments to the Independent Regulatory Review Commission (IRRC) and to the Chairpersons of the House Committee on Consumer Affairs and the Senate Committee on Consumer Protection and Professional Licensure. In addition to submitting the proposed amendments, the Commission has provided IRRC and the Committees with a copy of a detailed Regulatory Analysis Form prepared by the Commission in compliance with Executive Order 1996-1. A copy of this material is available to the public upon request.
If the Legislative Committees have objections to any portion of the proposed amendments, they will notify the Commission within 20 days of the close of the public comment period. If IRRC has objections to any portion of the proposed amendments, it will notify the Commission within 10 days of the close of the Committees' review period. The notification shall specify the regulatory review criteria which have not been met by that portion. The Regulatory Review Act specifies detailed procedures for review, prior to final publication of the regulations, by the Commission, the General Assembly and the Governor of objections raised.
Public Meeting held
February 26, 1998Commissioners Present: John M. Quain, Chairperson; Robert K. Bloom, Vice Chairperson; John Hanger; David W. Rolka; Nora Mead Brownell
Proposed Rulemaking Order By the Commission:
Under section 501 of the Public Utility Code, 66 Pa. C.S. § 501, the Commission proposes a rulemaking to amend our regulations governing publication of applications for motor carrier property authority. In 1994, the United States Congress adopted the Federal Aviation Administration Authorization Act of 1994 (Aviation Act), which inter alia, amended the Interstate Commerce Act (49 U.S.C.A. §§ 14501(c) and 41713(b)). In effect, the Aviation Act preempted state regulation of rates, routes or service of property carriers. However, states do maintain oversight of safety and financial responsibility for property carriers.
In response to the Aviation Act, the Commission promulgated regulations consistent with its changed regulatory role. Docket No. L-00950106. Those regulations provided, in part, for the continuing publication of property carrier applications. Further, the regulations provided that protests to property applications on the basis of safety/fitness could be filed within 10 days of the date of publication of the application in the Pennsylvania Bulletin.
Since passage of the Aviation Act, there have been approximately 2,214 new applications filed with the Commission for property carrier authority. Only one protest has been filed, which was dismissed because it failed to address safety issues.
Given the Commission's limited regulatory role over property carriers, it no longer serves a useful public purpose to require publication of property carrier applications. As noted, the Commission's oversight of property carriers is limited to safety and insurance issues. No property carrier application has been protested on these issues since passage of the Aviation Act. Further, since passage of the Aviation Act, the Commission has instituted a Safety Fitness Review program for new carriers and a Safety Audit program for existing carriers. We believe that these programs effectively carry out the Commission's charge to ensure that property carriers provide safe service in this Commonwealth.
In light of the foregoing, we propose to delete the publication requirement for motor carrier property applications. Further, we propose to eliminate the protest process for property carrier applicants. As noted, no protests on the basis of safety/insurance have been filed to property carrier applications since passage of the Aviation Act. We believe the protest mechanism is a vestigial process left over from the bygone era of economic regulation. Currently, the protest process serves no useful purpose. Safety and insurance concerns are adequately addressed through the application process and the safety fitness review. We believe that deletion of the protest process in conjunction with the publication requirement eliminates an unnecessary step in the application process.
Accordingly, under section 501 of the Pennsylvania Public Utility Code, the Commonwealth Documents Law (45 P. S. § 1201 et seq.) and 45 Pa.C.S. § 702(3), we propose to amend the regulations in 52 Pa. Code, as discussed previously and as set forth in Annex A; Therefore,
It is Ordered that:
1. A proposed rulemaking docket be opened to consider the proposed revisions to regulations set forth in Annex A of this order.
2. The Secretary shall submit a copy of this order, together with Annex A to the Office of Attorney General for preliminary review as to form and legality.
3. The Secretary shall submit a copy of this order, together with Annex A, to the Governor's Budget Office for review of fiscal impact.
4. The Secretary shall submit a copy of this order, together with Annex A, for review by the designated standing committees of both Houses of the General Assembly, and for informal review and comments by IRRC.
5. The Secretary shall duly certify this order and Annex A and deposit them with the Legislative Reference Bureau for publication in the Pennsylvania Bulletin. Interested persons may submit written comments, an original and 15 copies, to James J. McNulty, Secretary, Pennsylvania Public Utility Commission, and shall have 30 days from the date of publication to submit comments.
JAMES J. MCNULTY,
SecretaryFiscal Note: 57-196. No fiscal impact; (8) recommends adoption.
Annex A
TITLE 52. PUBLIC UTILITIES
PART I. PENNSYLVANIA PUBLIC UTILITY COMMISSION
Subpart A. GENERAL PROVISIONS
CHAPTER 3. SPECIAL PROVISIONS
Subchapter E. MOTOR TRANSPORTATION PROCEEDINGS § 3.381. Applications for transportation of property, household goods in use and persons.
* * * * * (b) Notice. Applications will be docketed by the Secretary and, with the exception of motor common carrier property applications, thereafter, forwarded for publication in the Pennsylvania Bulletin. No other notice to the public or to a carrier, forwarder or broker is required, except that an applicant filing an application for the discontinuance of the transportation of persons, on a scheduled basis, shall certify to the Commission that it has done the following:
* * * * * (c) Protests.
* * * * * (2) Applications for motor common carrier of property authority.
(i) [Content and effect.
(A) A person objecting to the approval of an application for motor common carrier of property authority shall file with the Secretary and serve upon the applicant, the applicant's attorney, if any, and the Bureau of Transportation and Safety a written protest which shall contain the following:
(I) The applicant's name and docket number of the application.
(II) The name, business address and telephone number of the protestant.
(III) The name, business address and telephone number of the protestant's attorney or other representative.
(IV) Specific factual allegations regarding an applicant's safety fitness. Factual allegations which specifically reference the applicant's United States Department of Transportation Safety rating, safety ratings from other State agencies or adverse decisions in safety related proceedings before other tribunals will be required in protests. Protests which are not supported by specific factual allegations will not be considered.
(B) Upon the filing of timely protests which contain specific factual allegations relating to an applicant's safety fitness, the application and comments will be referred to the prosecutory staff of the Bureau of Transportation and Safety for a determination as to the necessity for a hearing.
(ii) Time for filing. Protests to applications for motor common carrier property authority shall be filed within the time specified in the Pennsylvania Bulletin, which will not be less than 10 days from the date of publication.
(iii) Failure to file protests. If no protests are filed, or if the Bureau of Transportation and Safety has determined that the protests do not raise significant allegations of safety fitness, the Commission will act on motor common carrier of property applications as follows:
(A) A compliance letter will be issued directing that the applicant file a Form E Uniform Motor Carrier Bodily Injury and Property Liability Certificate of Insurance and a Form H Uniform Cargo Insurance Certificate. Temporary evidence of insurance may be filed in the form of an insurance identification card for Pennsylvania registered vehicles, a copy of the declaration page of the insurance policy, a copy of a valid binder of insurance or a copy of a valid application for insurance to the Pennsylvania Automobile Insurance Plan. The temporary evidence of insurance shall be replaced by the required certificates within 60 days. A carrier may begin operations upon filing acceptable evidence of insurance.
(B) Once acceptable Form E and Form H certificates of insurance have been filed, a certificate of public convenience will be issued authorizing the transportation of property, not including household goods in use, between points in this Commonwealth.
(C) Applicants which do not possess a current satisfactory safety rating issued by the United States Department of Transportation or a state with safety regulations comparable to the Commonwealth's, shall complete a safety fitness review conducted by Commission staff. The safety fitness review shall be scheduled and completed within 180 days of the date of the compliance letter. If the applicant fails to attain a satisfactory safety evaluation within the 180-day period, it will be given an additional 90-days to correct the deficiencies. Failure to achieve a satisfactory evaluation within the 90-day period will result in immediate suspension of the certificate of public convenience and in proceedings to revoke the certificate.
(D) Safety fitness reviews will take place at the applicant's primary place of business in this Commonwealth. Out-of-State carriers without facilities in this Commonwealth will have reviews conducted at the nearest Commission office. Out-of-State carriers shall provide Commission enforcement officers with sufficient records to enable meaningful examination of the applicant's safety related programs.
(E) In the course of a safety fitness review, Commission enforcement staff will examine an applicant's management policies, records and equipment to ensure that the applicant understands and will comply with Chapter 37 (relating to safety)].
No protests to applications. No protests to applications for motor common carrier property authority may be filed.
(d) Hearings on protested applications and applications for motor carrier of property authority when safety issues are raised.
* * * * * (2) Applications for motor common carrier of property authority.
(i) Scheduling hearings. If [protests are filed which raise significant issues regarding an applicant'ssafety fitness, or if] the Bureau of Transportation and Safety prosecutory staff determine that conditional or unsatisfactory safety ratings from other jurisdictions or adverse decisions in safety related proceedings before other tribunals exist, the Bureau of Transportation and Safety shall enter its appearance and refer the matter to the Office of Administrative Law Judge for hearing on the applicant's safety fitness. A determination by the Commission, after hearing, that the applicant possesses the necessary safety fitness will result in the application being processed as though the applicant possessed a satisfactory safety rating.
* * * * * (f) Compliance: conditions for approval for motor common carrier property authority. If the Bureau of Transportation and Safety determines that a hearing is not required, as provided in subsection (d)(2), the Commission will act on applications as follows:
(1) A compliance letter will be issued directing that the applicant file a Form E Uniform Motor Carrier Bodily Injury and Property Liability Certificate of Insurance and a Form H Uniform Cargo Insurance Certificate. Temporary evidence of insurance may be filed in the form of an insurance identification card for vehicles registered in this Commonwealth, a copy of the declaration page of the insurance policy, a copy of a valid binder of insurance or a copy of a valid application for insurance to the Pennsylvania Automobile Insurance Plan. The temporary evidence of insurance shall be replaced by the required certificates within 60 days. A carrier may begin operations upon filing acceptable evidence of insurance.
(2) Once acceptable Form E and Form H certificates of insurance have been filed, a certificate of public convenience will be issued authorizing the transportation of property, not including household goods in use, between points in this Commonwealth.
(3) Applicants which do not possess a current satisfactory safety rating issued by the United States Department of Transportation or a state with safety regulations comparable to the Commonwealth, shall complete a safety fitness review conducted by Commission staff. The safety fitness review shall be scheduled and completed within 180 days of the date of the compliance letter. If the applicant fails to attain a satisfactory safety evaluation within the 180-day period, it will be given an additional 90 days to correct the deficiencies. Failure to achieve a satisfactory evaluation within the 90-day period will result in immediate suspension of the certificate of public convenience and in proceedings to revoke the certificate.
(4) Safety fitness reviews will take place at the applicant's primary place of business in this Commonwealth. Out-of-State carriers without facilities in this Commonwealth will have reviews conducted at the nearest Commission office. Out-of-State carriers shall provide Commission enforcement officers with sufficient records to enable meaningful examination of the applicant's safety related programs.
(5) In the course of a safety fitness review, Commission enforcement staff will examine an applicant's management policies, records and equipment to ensure that the applicant understands and will comply with Chapter 37 (relating to safety).
[(f)] (g) ***
CHAPTER 5. FORMAL PROCEEDINGS
Subchapter A. PLEADINGS AND OTHER PRELIMINARY MATTERS
PROTESTS § 5.51. Protest to an application.
* * * * * (b) No protests to motor carrier property applications are permitted. See § 3.381(c) (relating to applications for transportation of property, household goods in use and persons).
[(b)] (c) ***
[Pa.B. Doc. No. 98-725. Filed for public inspection May 8, 1998, 9:00 a.m.]
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