RULES AND REGULATIONS
Title 52—PUBLIC UTILITIES
PENNSYLVANIA PUBLIC UTILITY COMMISSION
[ 52 PA. CODE CH. 33 ]
[ L-2011-2233841 ]
Railroad Transportation
[43 Pa.B. 2820]
[Saturday, May 25, 2013]The Pennsylvania Public Utility Commission (Commission), on January 24, 2013, adopted a final rulemaking order which amends the Commission's existing regulations in Chapter 33 (relating to railroad transportation) to reflect the technological and operational changes in the railroad industry and to reflect current Federal standards.
Executive Summary
The Pennsylvania Public Utility Commission is vested with jurisdiction over railroad common carriers operating within Pennsylvania. In furtherance of this statutory charge, the Commission has promulgated regulations governing railroad common carriers. 52 Pa. Code Chapter 33. Due to operational and technological changes in the industry and federal preemption and standards, the Commission has modified its current regulations.
Changes to regulations governing railroad transportation include updated references and terminology, deletion of outdated references and regulations, proper reflection of federal law impacting regulation, and deletion of vestigial or preempted regulations.
Public Meeting held
January 24, 2013Commissioners Present: Robert F. Powelson, Chairperson; John F. Coleman, Jr., Vice Chairperson; Wayne E. Gardner; James H. Cawley; Pamela A. Witmer
Final Rulemaking Amending 52 Pa. Code Chapter 33; Doc. No. L-2011-2233841
Final Rulemaking Order By the Commission:
On November 6, 2009, we issued a Notice that the Commission sought to review the existing Railroad Transportation Regulations found at 52 Pa. Code Chapter 33, in order to seek more efficient and effective means to regulate the rail industry. Review of Existing Railroad Transportation Regulations; 52 Pa. Code Chapter 33, Docket No. M-2009-2140262. The Notice indicated that the Commission's regulations pertaining to railroads should reflect the technological and operational changes of the railroad industry that have occurred over the last 30 years and reflect current Federal standards. The Notice further indicated that the review is intended to ''ensure that the regulations address a compelling public interest; ensure that the costs of regulation do not outweigh the benefits; are written in a clear and concise manner; and, where Federal regulations exist, the Commission's regulations should not exceed Federal standards unless justified by a compelling Commonwealth interest or required by State law.'' The Notice was published in the Pennsylvania Bulletin on November 28, 2009 at 39 Pa.B. 6851. Comments and reply comments to the Notice were filed by various railroads, associations and unions. After reviewing the comments and replies, we initiated a Proposed Rulemaking by Order entered April 1, 2011, which proposed various changes to the Commission's regulations at 52 Pa. Code Chapter 33. Proposed Rulemaking Amending 52 Pa. Code Chapter 33, Docket No. L-2011-2233841. We noted that the proposal was not an exhaustive compilation of our regulations that may be in need of revision. Rather, we addressed only those provisions which clearly required revision, based on observation and comments.
The Proposed Rulemaking Order was published in the Pennsylvania Bulletin on October 22, 2011. 41 Pa.B. 5634. Joint comments to the Proposed Rulemaking were filed by the Pennsylvania State Legislative Board of the United Transportation Union, the Brotherhood of Maintenance of Way Employees Division of the Rail Conference of the International Brotherhood of Teamsters, and the Brotherhood of Railroad Signalmen. (collectively, Unions). Joint comments were also filed by Consolidated Rail Corporation, CSX Transportation, Inc., and Norfolk Southern Railway Company. (collectively, Railroads). Finally, the Independent Regulatory Review Commission (IRRC) filed comments.
I. Summary of Comments
A. Unions' Comments
The Unions commented that they generally supported the proposed Rulemaking. However, the Unions noted that they did not believe the Proposed Rulemaking was sufficiently exhaustive, failing to supplement existing regulations with new regulations suggested by the Union in their comments to the November 6, 2009 Notice. Additionally, the Unions comment that 52 Pa. Code § 33.65, concerning camp cars and trailers, is not preempted by recently enacted Federal rules, 76 FR 67073 (October 31, 2011), and needs to be modified to address standing water, drainage hazards or tripping hazards, and the discharge of gray water.
The Unions also commented that 52 Pa. Code § 33.61, concerning track cars and four-wheel self-propelled maintenance-of-way cars, is not preempted by 49 CFR Part 214, since the Federal regulations do not cover equipment manufactured prior to 1991. The Unions request, therefore, that we retain this provision.1
B. Railroads' Comments
The Railroads filed comments generally supporting the Commission's Proposed Rulemaking. The Railroads did suggest that the Commission should address additional regulations that have been allegedly preempted by Federal regulation. Of note, the Railroads suggest that the Commission's regulations concerning camp cars and trailers at 52 Pa. Code §§ 33.1 and 33.65, are preempted by 49 CFR Part 228 as of October 31, 2011. 76 FR 67073-01. Similarly, the Railroads allege that the Commission's regulation at § 33.56, concerning safe operation of trains, is preempted due to recently enacted federal regulations published on November 9, 2011. 76 FR 69802-01. Finally, the Railroads allege that various other regulations should be deleted due to preemption or obsolescence. The gist of the Railroad's comments is that the Commission's Order was not sufficiently exhaustive of all possible regulatory modifications that may be warranted.
C. IRRC Comments
IRRC first commented that it is uncertain if the Proposed Rulemaking is in the public interest. IRRC opines that the Proposed Rulemaking does not make sufficiently specific references to federal law and, therefore, it is unable to discern whether the proposal is in the public interest. IRRC recommends that the Final Order should be more detailed in this regard.
IRRC also comments that the statutory authority of the Commission to issue regulations should be more clearly stated. IRRC comments that the definitions of ''Bureau'' and ''camp car or trailer'' at § 33.1 should be clarified and consistent with federal law. IRRC comments that the Proposed Regulation § 33.12 is too broad in its citation to federal regulations and more specificity is required. Finally, IRRC comments that the proposed deletion of § 33.61 requires further explanation, due to confusion created by the Union's comments.
II. Analysis
In our Proposed Rulemaking Order, we were clear that it was not our intent to conduct an exhaustive compilation of every regulation that may be in need of revision. Rather, our intent was to address only those regulations which clearly required revision to be consistent with technology and operations and with federal standards. In light of the stated limited scope of this proceeding, we decline to significantly expand the rulemaking as suggested by the Unions and the Railroads. We do advise both commentators that we will take up their suggestions at a later time. However, we want this rulemaking to proceed as originally envisioned.
To the extent any commentator believes that there is an immediate need to address any particular suggestion contained in the comments or otherwise, we remind them that they can petition the Commission for relief. In the scheme of administrative law, the petition for relief is a responsive tool to address issues that demand immediate attention. See 52 Pa. Code §§ 3.1—3.5. Regarding IRRC's comments, we will include a detailed analysis of the specific provisions to be modified as well as ensure that the same citations are consistently used throughout the regulatory package.
We will now address the specific proposals set forth in the Proposed Rulemaking Order.
§ 33.1. Definitions.
We proposed changing three definitions, ''bureau,'' ''camp car or trailer,'' and ''carrier.'' We note that since we issued the Proposed Rulemaking Order, the Commission underwent a reorganization. The referenced ''bureau'' is now the ''Bureau of Technical Utility Services.'' The regulation will reflect this change. We note that this updated reference will appear throughout the Final Rulemaking, even though we will not specifically address it each time it presents.
As for ''camp car or trailer,'' we proposed modifying this definition consistent with 49 CFR Part 228, App. C. Subsequent to issuance of our Proposed Rulemaking Order, the FRA issued a Final Rule covering a number of areas of camp car safety. 76 FR 67073-01 (October 31, 2011). The Railroads comment that this Final Rule preempts state regulation in this area, while the Unions comment that the Final Rule is not completely exhaustive and therefore does not preempt state regulation. IRRC comments that the Commission should address these comments. We note that this issue affects 52 Pa. Code § 33.65, which provides substantive rules for regulation of camp cars and trailers. While we did not include § 33.65 in our Proposed Rulemaking, we believe that it is appropriate to address this provision at this point, since all commentators as well as recently enacted federal regulations, have effectively put it in play.
The FRA Final Rule on camp cars establishes safety and health requirements related to camp cars. The federal rules address all aspects of regulation currently found in our regulation. Based on our review of the newly promulgated FRA regulations juxtaposed with our regulation, we are of the opinion that the FRA regulation preempts our regulation pursuant to 49 U.S.C.A. § 20106.
The Federal Railroad Safety Act (FRSA), 49 U.S.C.A.. § 20101 et seq., was enacted in 1970 ''to promote safety in every area of railroad operations and to reduce railroad-related accidents and incidents'' 49 U.S.C.A. § 20101. The Secretary of Transportation is given broad powers to ''prescribe regulations and issue orders for every area of railroad safety. . . .'' 49 U.S.C.A. § 20103(a). The FRSA and regulations promulgated thereunder are to be nationally uniform to the extent practicable, and generally preempt state laws covering the subject matter. 49 U.S.C.A. § 20106. The pre-emptive effect of these regulations is governed by § 20106, which contains express saving and pre-emption clauses. That provision provides:
§ 20106. Preemption(a) National uniformity of regulation.(1) Laws, regulations, and orders related to railroad safety and laws, regulations, and orders related to railroad security shall be nationally uniform to the extent practicable.(2) A State may adopt or continue in force a law, regulation, or order related to railroad safety or security until the Secretary of Transportation (with respect to railroad safety matters), or the Secretary of Homeland Security (with respect to railroad security matters), prescribes a regulation or issues an order covering the subject matter of the State requirement. A State may adopt or continue in force an additional or more stringent law, regulation, or order related to railroad safety or security when the law, regulation, or order—(A) is necessary to eliminate or reduce an essentially local safety or security hazard;(B) is not incompatible with a law, regulation, or order of the United States Government; and(C) does not unreasonably burden interstate commerce.49 U.S.C.A. § 20106. Thus, the States are permitted to ''adopt or continue in force a law, rule, regulation, or order related to railroad safety . . . until the Secretary . . . prescribes a regulation or issues an order covering the subject matter of the State requirement.'' Even after federal standards have been promulgated, a State may adopt more stringent safety requirements when ''necessary to eliminate or reduce an essentially local safety . . . hazard,'' if those standards are ''not incompatible with'' federal laws or regulations and not an undue burden on interstate commerce.
Pursuant to 49 U.S.C.A. § 20106, the initial inquiry is whether a federal regulation 'covers' the subject matter of the 1975 Order. To prevail on the claim that a federal regulation has pre-emptive effect, it must be established that it more than ''touches upon'' or ''relates to'' that subject matter. CSX Transportation, Inc. v. Easterwood, 507 U.S. 658 (1993). ''Covering'' indicates that pre-emption will lie only if the federal regulations substantially subsume the subject matter of the relevant state law. Id. Cover means to comprise, include, or embrace that concern in an effective scope of treatment or operation. The term ''covering'' is in turn employed within a provision that displays considerable solicitude for state law in that its express pre-emption clause is both prefaced and succeeded by express saving clauses. Id. What is important is that the Federal Railroad Administration (FRA) has considered the ''subject matter'' and has addressed it ''in an effective scope of treatment or operation.'' BNSF Railway Co. v. Swanson, 533 F.3d 618, 621 (8th Cir. 2008) (internal citations omitted).
Pursuant to 49 U.S.C.A. § 20106, even if a federal regulation or order covers the subject matter of a state law, regulation, or order relating to railroad safety, preemption of that state law may still be avoided if the state law, regulation, or order: (1) is necessary to eliminate an essentially local safety hazard; (2) is not incompatible with federal laws, regulations, or orders; and (3) does not unreasonably burden interstate commerce. 49 U.S.C.A. § 20106(a)(2)(A)—(C). This is a three part conjunctive test and all three prongs must be met for a state law, regulation or order to survive preemption. An essentially local safety hazard only applies to local situations which are not statewide in character and not capable of being encompassed in uniform national standards. National Association of Regulatory Commissioners, et al. v. Coleman, 542 F. 2d 11 (3d Cir. 1976).
Review of the new federal regulation reveals that it covers the subject matter of 52 Pa. Code § 33.65. Further, we do not find applicable the exceptions to the general rule of preemption established by § 20106. Our regulation at § 33.65 is not designed to eliminate an essentially local safety hazard. Finally, regarding the Unions' comments on camp cars, we note that these issues are not included in our current regulation and we decline to expand that regulation to address geologic conditions surrounding camp cars. Suffice it to say, as our regulations currently read, they are covered by the recent FRA Rule. Under these circumstances, we will delete the definition of ''camp car or trailer'' at 52 Pa. Code § 33.1, as well as delete 52 Pa. Code § 33.65.
In addition, we will also delete the definitions of ''non-train accident,'' ''train accident'', and ''train service accident.'' These deletions are consistent with changes to §§ 33.11-13, infra, which all parties support. Given the changes to the substantive regulations attached to these definitions and the reference to applicable federal regulations, state regulations prescribing definitions are not required and can lead to possible confusion.
§ 33.11. General.
The Commission proposed changing this provision to include updated references to the appropriate Commission Bureau for reporting accidents and incidents, and to delete those provisions that are inconsistent with current law. IRRC commented that it is unsure of the exact provisions that are inconsistent with Federal law. In response, 49 CFR 225.23 encompasses accident reporting for joint operations and we will modify this provision accordingly.
§ 33.12. Reportable accidents.
The Commission proposed modifying this provision to be consistent with FRA regulations for reportable accidents. 49 CFR Part 225. The Commission proposed deleting specific definitions of reportable accidents contained in the current regulation and adopting definitions provided by Federal law at 49 CFR Part 225.
IRRC comments that our citation to 49 CFR, as referenced in the Proposed Rulemaking, should be more specific. We agree with IRRC's concerns and will include a general reference to 49 CFR Part 225.
§ 33.13. Telegraph and telephone reports.
The Commission proposed modifying this provision to provide notification consistent with FRA regulations for telephone reports. 49 CFR Part 225. The Commission proposed deleting specific circumstances requiring telephonic notification of accidents contained in the current regulation and adopting Federal telephonic reporting standards. Beyond IRRC's request for a specific reference to applicable federal regulations, no comments were filed to this proposal. Therefore, we will adopt it as proposed, with the applicable citation to federal regulations. We do note that we have deleted the specific bureau phone number as suggested in our Proposed Rulemaking Order. This deletion is premised on the knowledge that phone numbers can change, creating unnecessary confusion. We have replaced the telephone number with a reference to the Commission's web site, where we will post the proper phone number.
§ 33.14. Accident report forms.
The Commission proposed modifying this provision consistent with FRA regulations for accident report forms. 49 CFR 225.21. The Commission proposed deleting report forms delineated in the current regulation and adopting report forms required by Federal law. Beyond IRRC's request for a specific reference to applicable federal regulations, no comments were filed to this proposal. Therefore, we will adopt it as proposed, with the applicable citation to federal regulations. 49 CFR Part 225.
§ 33.21. General
The Railroads comment that § 33.21(a) of our regulations should be deleted since it is preempted by 49 CFR 229.125. Further, the Railroads comment that § 33.21(b) should be modified to delete the term ''watchmen'' as antiquated. The Unions challenge the Railroads' position in their comments to the November 6, 2009 Notice.
The Unions and the Railroads disagree over the viability of this particular provision, which addresses significant safety issues. Given the limited scope of this proceeding, we decline to expand this rulemaking as requested by the Railroads.
§ 33.31. Regulations and procedure.
The Commission proposed modifying this provision to reflect proper statutory references. The Railroads commented that the Commission should delete the term ''of service'' in this regulation, since the Commission no longer has jurisdiction over the services of railroads. 49 U.S.C.A. § 10501(b)(1-2). At this juncture, given the limited scope of this proceeding, we decline to adopt the Railroads' comment, given the technical use of the phrase ''of service'' in this particular provision.
§ 33.41. Bridge or tunnel warnings.
The Commission proposed modifying this provision to reflect proper references to the American Railway Engineering and Maintenance of Way Association. No comments were filed to this proposal. Therefore, we will adopt it as proposed.
§ 33.42. Switches marked by lamps.
We did not propose any changes to this section. The Railroads commented that this Section should be deleted due to federal preemption. The Unions, in their comments to the November 6, 2009 Notice, challenged whether preemption applies. Given the limited scope of this proceeding, we decline to expand the rulemaking as requested by the Railroads.
§ 33.43. Walkways and railings.
We did not propose any changes to this section. The Railroads commented that they believe this provision has, most likely, been preempted. The Unions, in their comments to the November 6, 2009 Notice, challenged whether preemption applies. Given the limited scope of this proceeding, we decline to expand the rulemaking as requested by the Railroads.
§ 33.52. Blind cars.
We did not propose any changes to this section. The Railroads commented that this Section should be deleted since it is obsolete. The Unions did not comment. Given the limited scope of this proceeding, we decline to expand the rulemaking as requested by the Railroads.
§ 33.53. Pusher engines.
We did not propose any changes to this section. The Railroads commented that this Section should be deleted due to preemption. The Unions did not comment. Given the limited scope of this proceeding, we decline to expand the rulemaking as requested by the Railroads.
§ 33.54. Federal safety regulations
The Commission proposed amending this provision to delete outdated references to Federal law and to accurately reflect the relationship of state and federal law in the area of safety regulation. IRRC comments that it is unclear as to the relationship between Federal and State Safety regulations. By way of further clarification, the regulation as modified is to reflect the preemption provisions of 49 U.S.C.A. § 20106, as discussed previously. The purpose of this regulation is to recognize that potential preemption issues may arise and may need to be addressed outside the confines of a formal rulemaking.
§ 33.55. Interchange of traffic and loading of commodities on open top cars.
We did not propose any changes to this section. The Railroads commented that this provision is preempted pursuant to 49 U.S.C.A. § 10501(b)(1). The Unions, in their comments to the November 6, 2009 Notice, indicated that the word ''supplement'' in the regulation was in need of further clarity. Given the limited scope of this proceeding, we decline to expand the rulemaking as requested by the Railroads.
§ 33.56. Safety of operation of railroad trains.
We did not propose any changes to this provision. The Railroads commented that the FRA has recently issued a regulation governing this subject matter and therefore our regulation is preempted. 76 FR 69802-01. The Unions, did not file comments, but in their comments to the November 6, 2009 Notice, indicated that this provision should include additional safeguards. Given the limited scope of this proceeding, we decline to expand the rulemaking as requested by the Railroads.
§ 33.61. Track, cars and four-wheel self-propelled maintenance-of-way cars.
The Commission proposed deleting this provision due to federal regulations covering this area. 49 CFR Part 214. In response, the Unions commented that the federal regulations do not cover equipment manufactured prior to 1991 and therefore request that the provision be retained. IRRC comments that it wants further explanation of the proposal, citing the Unions' comment.
It is uncontested that 49 CFR Part 214 covers the subject matter of 52 Pa. Code § 33.61. The only issue is, does Part 214 cover equipment older than 1991. The Commission notes that the Railroads filed comments on this issue, alleging that the federal regulation at 49 CFR 214.513 provides general requirements for retrofitting of all existing on-track roadway maintenance machines.
As noted earlier, 49 U.S.C.A. § 20106 provides that state regulations related to railroad safety are preempted where the FRA has issued a regulation or order covering the subject matter. An exception to the general rule of preemption allows a state to adopt a more stringent regulation than the federal counterpart, where (1) it is necessary to eliminate an essentially local safety hazard; (2) it is not incompatible with the federal regulation; and (3) it does not unreasonably burden interstate commerce. This preemption rule is reiterated in the federal regulation. 49 CFR 214.4.
Regulations ''cover'' the subject matter of a safety concern where they ''comprise, include, or embrace [that concern] in an effective scope of treatment or operation.'' The [federal regulation] must ''substantially subsume the subject matter of the relevant state law,'' not merely ''touch upon'' or ''relate to'' that subject matter. What is important is that the FRA has considered the ''subject matter'' and has addressed it ''in an effective scope of treatment or operation.'' BNSF Railway Co. v. Swanson, 533 F.3d 618, 621 (8th Cir. 2008) (internal citations omitted).
Applying the foregoing to the regulation under consideration, the Commission's regulation provides minimum safety requirements for track cars and four-wheel self-propelled maintenance-of-way cars. Those safety requirements include: a windshield of safety glass and adequate size; a canopy to protect the occupants from the elements; an electric headlight; an electric taillight; and a windshield wiper. 52 Pa. Code § 33.61.
The relevant federal regulations concern workplace safety generally. Those regulations require all on-track roadway maintenance machines, including those manufactured before 1991, to be equipped with: handholds or a seat or bench for each worker, protection from moving parts of the machine; a horn or warning device; an illumination device that is not hand held and capable of illuminating obstructions on the track from a distance of 300 feet; suitable overhead covers, if feasible; safe floors, decks, stairs, and ladders; and a flagging kit. 49 CFR 214.513, .515, .519, and .521.
Comparing the federal regulations to our regulation, it is obvious they are not identical. However, both regulations do cover the subject matter of on-track roadway maintenance machine safety. While the federal regulations do not specifically mention windshield safety glass and wiper or taillight, we do not believe this omission means the federal regulations do not cover the subject matter. Preemption under 49 U.S.C.A. § 20106 does not require a line-item match between the federal and state regulation.
Additionally, we do not believe that § 33.61 falls within the exception to preemption established by 49 U.S.C.A. § 20106. Specifically, § 33.61 is a state-wide requirement. It does not address a local safety hazard. Therefore, we believe that § 33.61 is preempted by the federal regulations previously cited. As such, we will delete this provision from our regulations.
§ 33.62. Locomotives.
We did not propose any changes to this provision. The Railroads commented that our regulation is preempted by 49 CFR 229.137 and 139. The Unions did not comment, but did address this provision in their comments to the November 6, 2009 Notice. Therein, the Union challenged whether this regulation was preempted. Given the limited scope of this proceeding, we decline to expand the rulemaking as requested by the Railroads.
§ 33.63. Cabin Cars.
We did not propose any changes to this section. The Railroads commented that our regulation is preempted. The Unions commented in response to our November 6, 2009 Notice, that the regulation should be retained. Given the limited scope of this proceeding, we decline to expand the rulemaking as requested by the Railroads.
§ 33.64. Protection cars.
We did not propose any changes to this provision. The Railroads commented that the regulation is obsolete and should be deleted. The Unions did not comment. Given the limited scope of this proceeding, we decline to expand the rulemaking as requested by the Railroads.
§ 33.65. Camp cars and trailers.
We did not propose any changes to this provision. As previously discussed, however, we find that recently enacted federal regulations at 76 FR 67073-01 preempt existing regulations and therefore we will delete this section in our final rulemaking.
§ 33.66. Safety glazing in railroad equipment.
The Commission proposed deleting this provision due to FRA regulations governing the subject matter. 49 CFR Part 223. No comments were filed to this proposal. Therefore, we will adopt it as proposed.
§ 33.67. Use of back up hose in rail operations.
We did not propose any changes to this provision. The Railroads commented that this regulation is obsolete and most likely preempted and therefore should be deleted. The Unions did not comment on this provision. Given the limited scope of this proceeding, we decline to expand the rulemaking as requested by the Railroads.
§§ 33.71—33.77. Regulations governing passenger train service.
The Commission proposed deleting these provisions since they are obsolete and no longer applicable to passenger train service provided in Pennsylvania. No comments were filed to this proposal. Therefore, we will adopt it as proposed.
§§ 33.81—33.84. Regulations governing track.
The Commission proposed deleting these provisions due to FRA regulations governing the subject matter. 49 CFR Part 213. No comments were filed to this proposal. Therefore, we will adopt it as proposed.
§ 33.91. General regulations (Motor Vehicles).
§ 33.92. Transportation of employees.
We did not propose any changes to these provisions. The Railroads commented that these regulations should be deleted. The Unions did not comment. Given the limited scope of this proceeding, we decline to expand the rulemaking as requested by the Railroads.
§ 33.101. Accounts.
The Commission proposed amending this provision to provide updated references to the appropriate Federal agency, the Surface Transportation Board. No comments were filed to this proposal. Therefore, we will adopt it as proposed.
§ 33.102. Records.
The Commission proposed amending this provision to provide updated references to the appropriate Federal agency, the Surface Transportation Board. No comments were filed to this proposal. Therefore, we will adopt it as proposed.
§ 33.103. Reports.
The Commission proposed amending this provision to delete the annual report requirement and to provide updated references regarding the Commission's assessment report. No comments were filed to this proposal. Therefore, we will adopt it as proposed.
§ 33.113. Training of equipment inspectors.
The Commission proposed deleting this provision due to FRA regulations governing the subject matter. 49 CFR Parts 172, 215, and 232. No comments were filed to this proposal. Therefore, we will adopt it as proposed.
§ 33.128. Application of regulations.
We did not propose any changes to this provision. The Railroad commented that this regulation be amended to include a grandfathering exemption provision for substandard clearances. The Unions commented that the regulation should be expanded. Given the limited scope of this proceeding, we decline to expand the rulemaking as requested.
§ 33.129. Enforcement.
We did not propose any changes to this provision. The Railroads commented that this regulation should be deleted and Commission enforcement efforts should be coordinated with federal regulation. Given the limited scope of this proceeding, we decline to expand the rulemaking as requested by the Railroads. We note that enforcement issues may entail uniquely state requirements.
Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on October 11, 2011, the Commission submitted a copy of the notice of proposed rulemaking, published at 41 Pa.B. 5634, to IRRC and the Chairper-sons of the House Consumer Affairs Committee and the Senate Consumer Protection and Professional Licensure Committee for review and comment.
Under section 5(c) of the Regulatory Review Act, IRRC and the House and Senate Committees 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 Commission has considered all comments from IRRC, the House and Senate Committees and the public.
Under section 5.1(j.2) of the Regulatory Review Act (71 P. S. § 745.5a(j.2)), on April 3, 2013, the final-form rulemaking was deemed approved by the House and Senate Committees. Under section 5.1(e) of the Regulatory Review Act, IRRC met on April 4, 2013, and approved the final-form rulemaking.
Conclusion
Annex A, the final regulations, is permitted by sections 501, 1501 and chapter 27 of the Public Utility Code. Accordingly, under section 501 of the Public Utility Code, 66 Pa.C.S. § 501, and the Commonwealth Documents Law, 45 P. S. §§ 1201 et seq., and regulations promulgated thereunder at 1 Pa. Code §§ 7.1, 7.2 and 7.5, we amend the regulations at Chapter 33 as set forth in Annex A; Therefore,
It Is Ordered That:
1. The regulations of the Commission, 52 Pa. Code Chapter 33, are amended by amending §§ 33.1, 33.11—33.14, 33.31, 33.41, 33.54 and 33.101—33.103 and by deleting §§ 33.61, 33.65, 33.66, 33.71—33.77, 33.81—33.84 and 33.113 to read as set forth in Annex A.
(Editor's Note: Rescinded § 33.65 was not included in the proposed rulemaking published at 41 Pa.B. 5634.)
2. The Secretary shall submit this order and Annex A to the Office of Attorney General for review as to form and legality.
3. The Secretary shall submit a copy of this order and 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 and approval by the designated standing committees of both Houses of the General Assembly, and for review and approval by IRRC.
5. The Secretary shall certify this order and Annex A and deposit them with the Legislative Reference Bureau for publication in the Pennsylvania Bulletin.
6. A copy of this order shall be served on commentators to the proposed rulemaking order.
7. This final-form rulemaking shall become effective upon final publication in the Pennsylvania Bulletin.
8. The contact person is John Herzog, Assistant Counsel, Law Bureau, (717) 783-3714.
ROSEMARY CHIAVETTA,
Secretary(Editor's Note: For the text of the order of the Independent Regulatory Review Commission relating to this document, see 43 Pa.B. 2242 (April 20, 2013).)
Fiscal Note: Fiscal Note 57-286 remains valid for the final adoption of the subject regulations.
Annex A
TITLE 52. PUBLIC UTILITIES
PART I. PUBLIC UTILITY COMMISSION
Subpart B. CARRIERS OF PASSENGERS OR PROPERTY
CHAPTER 33. RAILROAD TRANSPORTATION
Subchapter A. GENERAL PROVISIONS § 33.1. Definitions.
The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:
Blind car—A railroad car attached behind the caboose of a freight train or at the rear end of a passenger train upon which a member of the crew cannot ride in order to properly protect the rear of the train in the event of an emergency.
Bureau—The Bureau of Technical Utility Services of the Pennsylvania Public Utility Commission.
Cabin cars—Cabooses provided for the use of railroad employees, excluding protection cars.
Carrier—Any railroad, railway company or corporation subject to Commission jurisdiction, which operates in this Commonwealth.
* * * * * Main track—A designated track upon which trains are operated by timetable, train order, or both, or the use of which is governed by block signals.
Overhead clearance—The vertical distance from the top of the highest rail to any structure or obstruction there above.
* * * * * Street railway—Every railroad and railway, or extension, and all the facilities thereof, by whatever power operated, for public use in the conveyance of passengers or property, located mainly or in part upon, above, below, through, or along any highway in any city, borough, or town, and not constituting or used as part of a trunk line railroad system.
Wash basin or bowl—A basin or bowl used for the purpose of obtaining personal cleanliness.
* * * * *
Subchapter B. SERVICE AND FACILITIES
ACCIDENTS § 33.11. General.
Each carrier shall submit a report of each reportable accident or incident involving its facilities or operation in this Commonwealth. Reports shall be addressed to the Bureau of Technical Utility Services, Pennsylvania Public Utility Commission, Post Office Box 3265, Harrisburg, Pennsylvania 17105-3265.
§ 33.12. Reportable accidents or incidents.
A reportable accident or incident is one as defined in 49 CFR (relating to transportation) and when a carrier is required to report to the Federal Railroad Administration under 49 CFR Part 225 (relating to railroad accidents/incidents: reports classification, and investigations).
§ 33.13. Telephone reports.
A carrier shall immediately report by telephone to the Bureau an accident or incident which requires the carrier to telephonically notify the Federal Railroad Administration under 49 CFR Part 225 (relating to railroad accidents/incidents: reports classification, and investigations). The proper telephone number is provided on the Commission's web site at www.puc.pa.gov.
§ 33.14. Accident or incident report forms.
Carriers shall make reports to the Bureau on forms which the carrier shall file with the Federal Railroad Administration as prescribed by 49 CFR Part 225 (relating to railroad accidents/incidents: reports classification, and investigations). Reports shall be submitted to the Commission within the same time period as the reports are required to be submitted to the Federal Railroad Administration under 49 CFR Part 225.
CONSTRUCTION, ALTERATION OR RELOCATION OF CROSSINGS § 33.31. Regulations and procedure.
Each carrier shall comply with 66 Pa.C.S. § 2702 (relating to construction, relocation, suspension and abolition of crossings) and obtain Commission approval of the construction, alteration or relocation of every public highway and railroad crossing at grade, above grade or below grade, unless the Commission has given its prior unconditional consent to an abandonment of service or facilities of the line of railroad upon which such crossing or crossings are located.
SAFETY—BRIDGES, TUNNELS, TRESTLES AND SWITCHES § 33.41. Bridge or tunnel warnings.
(a) Common carriers shall install and maintain warnings of the telltale or tapper type at a reasonable distance on each side of bridges, tunnels, or other obstructions over main tracks, main track sidings, yard and switching tracks in accordance with the specifications of the American Railway Engineering and Maintenance of Way Association or existing standard plans of individual railroads.
(b) The provisions of subsection (a) do not apply to locations in territory where, by railroad order or rule, employees are prohibited from climbing on top of moving cars, engines, or other high equipment, or at locations over industrial tracks where points of limited vertical clearances are marked by appropriate warning signs.
(c) As used in this section, the term ''points of limited vertical clearance'' shall mean points less than 22 feet above the top of the rail.
OPERATION OF TRAINS § 33.54. Federal safety regulations.
The safety regulations of the United States Department of Transportation supplement the provisions of this chapter and control when State regulations are pre-empted. However, a violation of the Federal regulations which is not otherwise a violation of this chapter may not be subject to additional penalty for the same violation if penalized by a Federal tribunal.
SANITATION AND SAFETY FACILITIES
AND EQUIPMENT§ 33.61. (Reserved).
§ 33.65. (Reserved).
§ 33.66. (Reserved).
§§ 33.71—33.77. (Reserved).
§§ 33.81—33.84. (Reserved).
ACCOUNTS, RECORDS AND REPORTS § 33.101. Accounts.
Each carrier authorized to operate in this Commonwealth shall keep and record its accounts and records in conformity with the systems of accounts for railroad companies, with text, definitions and instructions as embodied in the currently effective classifications prescribed for railroad companies by the Surface Transportation Board.
§ 33.102. Records.
Each carrier shall preserve its records in conformity with the effective regulations of the Surface Transportation Board.
§ 33.103. Reports.
A carrier shall file with the Commission each year an assessment report on a form provided by the Commission showing gross Commonwealth intrastate revenues for assessment purposes. The assessment report shall be filed by March 31 covering the preceding calendar year.
MISCELLANEOUS PROVISIONS § 33.113. (Reserved).
[Pa.B. Doc. No. 13-952. Filed for public inspection May 24, 2013, 9:00 a.m.] _______
1 We had proposed deleting this provision due to Federal Railroad Administration (FRA) regulations governing the subject matter.
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