PROPOSED RULEMAKING
PENNSYLVANIA PUBLIC UTILITY COMMISSION
[52 PA. CODE CH. 35]
[L-00010154]
Street Railway Transportation
[32 Pa.B. 797] The Pennsylvania Public Utility Commission (Commission) on November 30, 2001, adopted a proposed rulemaking order which proposes to delete railway transportation regulations which have become obsolete. The contact person is David A. Salapa, (717) 783-2841 in the Bureau of Transportation and Safety, Legal Division.
The Commission proposes to delete the existing regulations governing street railway transportation in this Commonwealth. The existing regulations are outdated in light of changes in street railway operations in this Commonwealth.
At one time, street railway companies provided passenger service to many areas of this Commonwealth. Over the years, many of these street railway companies went out of business due to the widespread use of automobiles. In order to preserve street railway passenger service in the Pittsburgh and Philadelphia metropolitan areas, the General Assembly passed legislation authorizing the creation of transportation authorities and empowered those transportation authorities to purchase the assets of the street railway companies operating in those metropolitan areas. These transportation authorities, Southeastern Pennsylvania Transportation Authority (SEPTA) and Port Authority of Allegheny County (PAT) purchased the assets of the street railway companies and began operating street railway systems in the Philadelphia and Pittsburgh metropolitan areas. The Philadelphia and Pittsburgh metropolitan areas are the only places in this Commonwealth where street railway systems still operate.
Both SEPTA's and PAT's enabling legislation provides that those agencies shall determine the facilities they will operate, the services they will provide and the rates they will charge. The Commission is thus precluded from regulating SEPTA or PAT in these areas. In addition, SEPTA and PAT receive Federal funds for their operations. Receipt of the Federal funds is conditioned upon the authorities having safety programs in place that are monitored by the Department of Transportation (Department). Since the Department monitors the safety programs initiated by SEPTA and PAT, the Commission's regulations in Chapter 35 (relating to street railway transportation) are unnecessary.
Commissioners Present: Glen R. Thomas, Chairperson; Robert K. Bloom, Vice-Chairperson; Aaron Wilson, Jr.; Terrance J. Fitzpatrick
Public Meeting held
November 30, 2001
Order By the Commission:
The Commission proposes to delete existing regulations governing street railway transportation in this Commonwealth. The current regulations are outdated in light of changes in street railway operations in this Commonwealth.
At one time street railway companies provided passenger service to many areas of this Commonwealth. When automobiles came into widespread use, many street railway companies began to lose money. Over the years many of these street railway companies abandoned service, discontinued operations and liquidated their assets. Finally, the only areas in this Commonwealth where street railway companies continued to operate were in the Pittsburgh and Philadelphia metropolitan areas. As more people used automobiles to commute to work and large numbers of people moved to suburbs, even the street railway companies operating in the Pittsburgh and Philadelphia metropolitan areas began losing money. In order to preserve street railway passenger service in the Philadelphia and Pittsburgh metropolitan areas, the General Assembly passed legislation authorizing creation of transit authorities and empowered those transit authorities to purchase the assets of the street railway companies. These transit authorities, SEPTA and PAT, purchased the assets of the street railway companies and began operating street railway systems in the Philadelphia and Pittsburgh metropolitan areas. See Pittsburgh Railways Company v. Pa PUC, 427 Pa. 562, 237 A.2d 602 (1967) and PA PUC v. SEPTA, 343 A.2d 371 (Pa. Cmwlth. 1975). Thus the era of privately owned street railway companies in this Commonwealth came to an end.
At the same time that SEPTA and PAT took over the operations of street railway companies in the Philadelphia and Pittsburgh metropolitan areas, the Federal government became involved in funding urban mass transit. See 49 U.S.C.A. §§ 5301--5338. Congress began providing Federal funds for the operations of transit authorities throughout the United States, including SEPTA and PAT. With Federal funds came conditions for their use. These conditions required not only that the Federal money be spent on certain items, but also required the transit authorities to operate in a certain manner in order to continue receiving Federal funds. For instance, the Federal Department of Transportation recently began requiring that local transit agencies operating street railways develop system safety program plans as a condition for receiving Federal funds. See 49 CFR 659.1--659.49. Increased Federal funds and the conditions imposed on the use of those funds have greatly enlarged the Federal oversight of street railway operations by local transit authorities.
In contrast to this increased Federal role in the operation of street railways by local transit authorities, the Commission's authority over SEPTA and PAT is limited. PAT's enabling legislation divests the Commission of jurisdiction over the transportation of passengers for hire in Allegheny County except for taxicabs and school buses. See Port Authority of Allegheny County v. Pa. PUC, 494 Pa. 250, 431 A.2d 243 (1981). The Commission is not aware of any PAT street railway operations outside Allegheny County.
SEPTA's enabling legislation provides that SEPTA by itself shall determine the facilities it will operate, services it will make available and the rates it will charge. See 74 Pa.C.S. § 1741(15) (relating to general powers). The only exception to this in SEPTA's enabling legislation is when SEPTA provides services outside the five county Philadelphia metropolitan area. See 74 Pa.C.S. § 1711 (relating to creation of metropolitan transportation authorities) and § 1741(26). The Commission is not aware of any SEPTA street railway operations outside the five county metropolitan area.
In addition, the Commission has recently held that the Public Utility Code does not grant the Commission authority over crossings between SEPTA's street railway facilities and public highways. See Application of SEPTA, Docket No. A-00116200 (December 17, 1999); Application of SEPTA, Docket No. A-00116334 (March 17, 2000); and Application of SEPTA, Docket No. A-00116121 (March 17, 2000). In those decisions, the Commission held that it only had jurisdiction over SEPTA as a public utility when SEPTA operated regional rail lines formerly owned by certain railroads. See 66 Pa.C.S. § 102 (relating to definitions). That rationale applies not only to crossings involving street railways but also to Commission jurisdiction pursuant to 66 Pa.C.S. §§ 1501, 1505 and 1508 (relating to character of service and facilities; proper service established on complaint; authority to order conservation and load management programs; and reports of accidents), governing safety of services, facilities and accident reports. SEPTA's street railway facilities are not regional rail lines formerly owned or operated by the designated railroads.
Commission staff conferred with Department staff and confirmed that PAT and SEPTA receive Federal funds from the Federal Transit Administration (FTA) through the Department. The Department acts as the conduit for Federal funds to PAT, SEPTA and other local transportation agencies. The FTA regulations at 49 CFR 659.1-- 659.49 require the Department, as the oversight agency, to develop a safety program for street railways operated by local transit authorities. The Department's safety program for local transit authorities is administered by that agency's Bureau of Public Transportation.
The Department, Bureau of Public Transportation is the oversight agency of PAT and SEPTA pursuant to 49 CFR 659.1--659.49. The regulations at 49 CFR 659.31 and 659.32 require SEPTA and PAT to implement system safety program plans consistent with the Department's system safety program standards. Commission staff conferred with Department's staff in the Bureau of Public Transportation and ascertained that SEPTA and PAT have implemented these safety plans. Department staff also reports that the Bureau of Public Transportation receives annual safety audit reports from PAT and SEPTA and performs safety reviews of PAT and SEPTA pursuant to 49 CFR 659.35 and 659.36. In addition, PAT and SEPTA provide accident reports to the Department as required by 49 CFR 659.39. Since the Department, Bureau of Public Transportation, acts as oversight agency of SEPTA and PAT pursuant to 49 CFR 659.1--659.49, the Commission's regulations in Chapter 35 are unnecessary.
Section 35.1 (relating to definitions) is deleted since it is superseded by the definitions set forth at 49 CFR 659.5. Definition of ''rail fixed guide way system'' defines the same functions as the definition of ''street railway'' in § 35.1.
Section 35.2 (relating to applicability) is deleted as not necessary in light of the Federal regulations at 49 CFR 659.1--659.49.
Section 35.3 (relating to compliance) is deleted due to the lack of Commission authority over SEPTA and PAT's street railway operations.
Section 35.11 (relating to accounts) is deleted as unnecessary due to Federal regulations at 49 CFR 630.1--630.12 that set forth standards of accounting and reporting for transit agencies receiving Federal funds from the FTA. Since only SEPTA and PAT operate street railways in this Commonwealth, they are already governed by the reporting regulations at 49 CFR 630.1--630.12 and the Statue at 49 U.S.C. § 5335.
Section 35.12 (relating to records) is deleted as outdated. The reference in this section to 49 CFR 1221 is obsolete. That section of the CFR no longer exists. The regulations at 49 CFR 630.1--630.12 set forth the standards of accounting and reporting for transit agencies receiving Federal funds from FTA.
Section 35.13 (relating to accident reports) is deleted as unnecessary. The Federal regulations at 49 CFR 659.39 set forth accident reporting requirements for transit agencies receiving Federal funds.
Section 35.21 (relating to equipment and facilities) is deleted as unnecessary. The Federal regulations at 49 CFR 659.1--659.49 set forth the requirements for transit authorities to develop a system safety program plan.
Sections 35.22 and 35.31--35.36 are deleted as unnecessary. Prior Commission and Pennsylvania appellate court decisions have held that the Commission has no jurisdiction over street railway crossings of either PAT or SEPTA.
Section 35.23 (relating to interference with operators) is deleted as unnecessary. The Federal regulations at 49 CFR 659.1--659.49 set forth the requirements for transit authorities to develop a system safety program plan.
Sections 35.24--35.26, 35.31--35.36, 35.43 and 35.44 are deleted as unnecessary. Prior Commission and Pennsylvania appellate court decisions have held that the Commission has no jurisdiction over the street railway facilities and operations of PAT or SEPTA.
Section 35.41 (relating to rate schedules) is deleted as unnecessary. Both SEPTA's and PAT's enabling legislation provide that the Commission has no authority to govern rate making with regard to street railway operations.
Section 35.42 (relating to interruptions of service) is deleted as unnecessary. Both SEPTA's and PAT's enabling legislation provide that the Commission has no authority over level of service provided on street railway operations.
Accordingly, under sections 501 and 1501 of the Public Utility Code, 66 Pa.C.S. §§ 501 and 1501 and the Commonwealth Documents Law (45 P. S. §§ 1201 and 1202) and regulations promulgated thereunder at 1 Pa. Code §§ 7.1, 7.2 and 7.5, we propose to delete the regulations in Chapter 35 as noted and as set forth in Annex A. Therefore, It Is Ordered That:
1. A proposed rulemaking docket shall be opened to delete the regulations in Chapter 35 as set forth in Annex A of this order.
2. The Secretary shall submit this order and Annex A to the office of Attorney General for preliminary review as to form and legality.
3. The Secretary shall serve 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 this order and Annex A for review by the designated standing committees of both Houses of the General Assembly, and for review and comments by the Independent Regulatory Review Commission.
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.
6. Within 30 days of this order's publication in the Pennsylvania Bulletin, an original and 15 copies of any comments concerning this order should be submitted to the Pennsylvania Public Utility Commission, Attn: Secretary, P. O. Box 3265, Harrisburg, PA 17105-3265.
7. Alternate formats of this document are available to persons with disabilities and may be obtained by contacting Sherri DelBiondo, Regulatory Coordinator, Law Bureau, (717) 772-4597.
JAMES J. MCNULTY,
SecretaryFiscal Note: 57-225. No fiscal impact; (8) recommends adoption.
Annex A
TITLE 52. PUBLIC UTILITIES
PART I. PUBLIC UTILITY COMMISSION
Subpart B. CARRIERS OF PASSENGERS OR PROPERTY
CHAPTER 35. (Reserved) (Editor's Note: As part of this proposal, the Commission is proposing to delete the existing text of Chapter 35, which appears at 52 Pa. Code pages 35-1--35-8, serial pages (239199)--(239206), in its entirety.)
§§ 35.1--35.3. (Reserved).
§§ 35.11--35.13. (Reserved).
§§ 35.21--35.26. (Reserved).
§§ 35.31--35.36. (Reserved).
§§ 35.41--35.44. (Reserved).
[Pa.B. Doc. No. 02-215. Filed for public inspection February 8, 2002, 9:00 a.m.]
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