NOTICES
INDEPENDENT REGULATORY REVIEW COMMISSION
Notice of Comments Issued
[43 Pa.B. 3200]
[Saturday, June 8, 2013]Section 5(g) of the Regulatory Review Act (71 P. S. § 745.5(g)) provides that the Independent Regulatory Review Commission (Commission) may issue comments within 30 days of the close of the public comment period. The Commission comments are based upon the criteria contained in section 5.2 of the Regulatory Review Act (71 P. S. § 745.5b).
The Commission has issued comments on the following proposed regulations. The agency must consider these comments in preparing the final-form regulation. The final-form regulation must be submitted within 2 years of the close of the public comment period or it will be deemed withdrawn.
Reg. No. Agency/Title Close of the Public
Comment PeriodIRRC
Comments
Issued126-3 Philadelphia Parking Authority
Impoundment of Vehicles and Equipment
43 Pa.B. 1720 (March 30, 2013)4/29/13 5/29/13 126-4 Philadelphia Parking Authority
Taxicab and Limousine Amendments
43 Pa.B. 1725 (March 30, 2013)
4/29/13 5/29/13
Philadelphia Parking Authority
Regulation #126-3 (IRRC #2992)
Impoundment of Vehicles and Equipment
May 29, 2013 We submit for your consideration the following comments on the proposed rulemaking published in the March 30, 2013 Pennsylvania Bulletin. Our comments are based on criteria in Section 5.2 of the Regulatory Review Act (71 P. S. § 45.5b). Section 5.1(a) of the Regulatory Review Act (71 P. S. § 745.5a(a)) directs the Philadelphia Parking Authority (PPA or Authority) to respond to all comments received from us or any other source.
1. Statutory authority; Whether the regulation is consistent with the intent of the General Assembly.
In the Regulatory Analysis Form (RAF), PPA states that this rulemaking will affect approximately 4,300 drivers, 700 taxicab medallion owners, six partial-rights carriers, four brokers, 13 dispatchers, and 127 limousine companies. We have received comments from a partial-rights carrier questioning PPA's authority to regulate them in general and specifically to impound their vehicles.
In the Preamble to this proposed rulemaking, it is noted that in 2012, Commonwealth Court found that PPA does not have the authority to impound a vehicle acting as a taxicab in Philadelphia without rights to do so, provided that the vehicle was authorized to be a taxicab elsewhere in the Commonwealth. Sawink, Inc. et al., v. Philadelphia Parking Authority, 34 A.3d 926 (Pa. Cmwlth. 2012), affirmed, 57 A.3d 644 (Pa. 2012). According to the PPA, Act 119 of 2012 (Act 119) was enacted to amend the provisions of the Parking Authorities Act (Act) (53 Pa.C.S.A §§ 5701, et seq.) to address, among other things, issues raised by the Commonwealth Court in Sawink.
Based on the explanations provided in the RAF and the Preamble, we are unable to determine if PPA has the statutory authority to promulgate this rulemaking and whether it is consistent with the intent of the General Assembly and their enactment of Act 119 and the Court's ruling in the Sawink case. We ask PPA to identify the specific sections of the revised Act and the specific statutory language in Act 119 that provides the PPA the authority to impound vehicles of partial-rights carriers.
2. Determining whether the regulation is in the public interest.
Section 5.2 of the Regulatory Review Act (71 P. S. § 745.5b) directs this Commission to determine whether a regulation is in the public interest. When making this determination, the Commission considers criteria such as economic or fiscal impact and reasonableness. To make that determination, the Commission must analyze the text of the proposed rulemaking and the reasons for the new or amended language. The Commission also considers the information a promulgating agency is required to provide under § 745.5(a) in the RAF.
PPA's responses to sections 12, 13 and 18 through 23 of the RAF are not sufficient to allow this Commission to determine if the regulation is in the public interest. Without this information, we cannot determine if this proposed regulation is in the public interest. In the RAF submitted with the final-form rulemaking, the Board should provide more detailed information required under § 745.5(a) of the RRA. Specifically, we seek answers to the following questions:
• How does this regulation compare with those of other states?
• How will this affect Pennsylvania's ability to compete with other states?
• Will the regulation affect any other regulations of the promulgating agency or other state agencies? Of particular concern to this Commission is how this rulemaking will work in conjunction with the regulations of the Pennsylvania Public Utility Commission and their jurisdiction over partial-rights carriers.
• For the regulated community, what costs are associated with the impoundment of a vehicle?
3. Section 1017.52. Impoundment of vehicles and equipment.—Protection of the public health, safety and welfare; Implementation procedures; Fiscal impact; Clarity.
Subsection (b) Notice of impoundment
Paragraph (4) of this subsection states that the notice of impoundment will include ''Other information required under section 5714(g)(2)(ii) of the act.'' Since the cited section of the Act does not require any other information besides the information listed in Paragraphs 1, 2 and 3 of this subsection, we recommend that Paragraph 4 be deleted. We have a similar concern with § 1055.32(b)(4), pertaining to notice of impoundment for limousines.
Subsection (c) Impoundment hearing
We have three concerns with this subsection. First, under Paragraph (1), the registered owner of an impounded vehicle may file a hearing request with the Clerk ''at any time after impoundment.'' Paragraph (2) provides that Clerk will immediately schedule a hearing to be conducted within two days. Section 1001.8 of PPA's regulations establishes the hours of operation for the PPA. Those hours are 8:30 a.m. until 4:30 p.m. on business days except Saturdays, Sundays and legal holidays. In addition, the PPA may be open on Saturdays by appointment. We are concerned that the impoundment of a vehicle on a Friday or Saturday may impose a significant cost to the regulated community because they would not be able to file a request for a hearing for two, or possibly three days. Having a vehicle out of service for that long, before a hearing can even be scheduled could financially harm a registered owner. We ask PPA to explain how this provision will be implemented and suggest that language be added to the final-form rulemaking that would minimize the potential fiscal impact this provision could have on the regulated community. We have a similar concern with § 1055.32(c)(2), pertaining to impoundment hearings for limousines.
Second, Paragraph (3) states that if a presiding officer determines that an impoundment was not proper, the impounded property may be immediately reclaimed by the registered owner without a need to pay a penalty or cost associated with the impoundment. We note that § 1017.52 (f) of PPA's existing regulations is being deleted in its entirety. This subsection currently requires PPA to refund the costs of towing and impoundment when it is determined that the grounds for impoundment are unsubstantiated. Why is this provision being deleted from PPA's regulations? In order to ease the potential fiscal impact this rulemaking could have on the regulated community, we ask PAA to consider adding a similar provision to the proposed rulemaking. We have a similar concern with § 1055.32(c)(3).
Third, presiding officers of impoundment hearings have the authority, under Paragraph (4), to ''establish terms for the release of the impounded property including the posting of collateral and inspections by the Enforcement Department.'' Are the terms to be established based on any other regulatory provisions or statutory provisions of the Act? If so, we recommend that the final-form regulation include a reference to the appropriate regulatory or statutory provision. If not, we recommend that the final-form regulation provide direction on how presiding officers are to establish the terms. We have a similar concern with § 1055.32(c)(4).
Subsection (g) Final disposition of impounded property
We have two concerns with this subsection. First, if a respondent is found liable for the violation averred by the Enforcement Division and disagrees with that determination, does the respondent have a right to appeal that determination? If so, we recommend that the final-form regulation specify how and where an appeal can be filed. Additionally, the appeal procedures should be specific to all parties affected by the rulemaking, including partial-rights carriers. We have a similar concern with § 1055.32(g), pertaining to final disposition of impounded property for limousines.
Second, under Paragraph (2), respondents found not liable for a violation may reclaim their property without payment of a penalty, fee or cost. Similar to our concern above on § 1017.52(c)(4), why has PPA excluded the refund provision that can be found in existing regulations? We have a similar concern with § 1055.32(g).
Subsection (h) Immediate repossession.
This subsection allows a registered owner to reclaim impounded property at anytime by paying the associated penalties, fees and costs. If the property in question was impounded for safety concerns, would those concerns have to be addressed and the property inspected before the property is returned to the registered owner? Failure to correct the underlying safety concern that lead to the impoundment could be a potential threat to the public health, safety and welfare of the citizens of the Commonwealth. We ask PPA to address this concern when the final-form regulation is submitted for final review. We have a similar concern with § 1055.32(h), pertaining to immediate repossession of limousines.
4. Miscellaneous clarity.
The definitions of ''impoundable offense'' found in §§ 1017.51 and 1055.31 both begin with the phrase ''The Authority may immediately confiscate and impound a vehicle. . . .'' This phrase is substantive and should not be included in either definition. If the phrase is needed, it should be moved to the appropriate sections in the body of the regulation.
Philadelphia Parking Authority
Regulation #126-4 (IRRC #2993)
Taxicab and Limousine Amendments
May 29, 2013 We submit for your consideration the following comments on the proposed rulemaking published in the March 30, 2013 Pennsylvania Bulletin. Our comments are based on criteria in Section 5.2 of the Regulatory Review Act (RRA) (71 P. S. § 745.5b). Section 5.1(a) of the RRA (71 P. S. § 745.5a(a)) directs the Philadelphia Parking Authority (PPA or Authority) to respond to all comments received from us or any other source.
1. Section 1015.2. Certificate required.—Statutory authority; Clarity.
PPA proposes to add Subsections (c) and (d) ''to clarify the rights and limitations of partial-rights taxicabs.'' PPA also states that these provisions ''are consistent with the long established limitations of partial-rights taxicabs in Philadelphia.'' PPA does not provide its statutory authority for clarifying these limitations.
Further, Subsections (c) and (d) restrict the service of partial-rights taxicabs based on the geographical boundaries identified in the partial-rights taxicab certificate holder's PPA-approved tariff. A partial-rights taxicab company, Germantown Cab Company (Germantown), comments that it does not have a PPA-approved tariff, and that the only tariff Germantown has is on file with the Public Utility Commission (PUC).
While we recognize that the PPA has authority to regulate partial-rights taxicabs in the City of Philadelphia, PPA should specify the statutory authority for these newly proposed subsections in the Regulatory Analysis Form (RAF) and the preamble accompanying the final-form regulation.
2. Section 1027.5. Agreement of sale.—Need; Reasonableness of requirements.
Subsection (b) currently requires that an agreement of sale for transferrable rights be executed by all parties in the presence of the Director or a designee. The process to apply for the sale of transferable rights is then outlined in Sections 1027.6 through 1027.12. PPA proposes to amend this subsection to require that the agreement of sale be executed at the same time that the sale is initiated as provided in Section 1027.6(a)(1) (relating to application documents).
PPA states in its preamble,
There are currently many agreements of sale filed with the Authority without a corresponding transfer of rights application. We have found that confusion as to who actually owns the transferable rights, and false claims related to who may use those rights germinate in these scenarios. We believe it to be in the best interests of the parties to the agreement of sale and the public concerned about who is actually using the rights at issue, to impose this modest scheduling requirement.However, a commentator states that the proposed amendment would impose an undue burden on the way business is regularly conducted within the industry. The commentator states that in the normal course of business, the agreement of sale and transfer of rights are multi-step processes which would be difficult to complete in one sitting. Another commentator states that having an agreement of sale in place is essential before a broker can move forward in any sale transaction, including submitting a transfer application to PPA.
Based on commentator concerns and our review of the process to apply for the sale of transferable rights as outlined in Sections 1027.6 through 1027.12, we question the need for and reasonableness of requiring the agreement of sale to be executed at the same time the sale is initiated. For example, we question the reasonableness of requiring the acquisition of third-party documents such as a certificate of good standing from the Corporation Bureau (Section 1027.7(b)(4) and (5)), evidence of the removal of liens (Section 1027.8(c)) or loan documents (Section 1027.8(f)) in advance of the signing of an agreement of sale.
Also, we note that Section 1027.8(d) (relating to continuing service) states clearly that ''[t]he owner of the rights subject to sale shall confirm that the rights will remain in active service pending review of the application.'' Further, Section 1027.12 (relating to approval process and closing on sale) makes it clear that ownership of the transferable rights remain with the seller until the closing of the transaction. For these reasons, we question the need to amend this subsection based on PPA's intent to alleviate confusion.
However, we recognize that having many agreements of sale filed with PPA without a corresponding transfer of rights application could be problematic. Commentators suggest that PPA create a reasonable, mandatory timeframe within which the transfer of rights applications must be submitted after the signing of the agreement of sale. We agree that it would be in the best interests of PPA, the parties to the agreement of sale and the public to impose a reasonable, mandatory scheduling requirement and recommend that PPA include such a requirement in the final-form regulation. If amended in final-form, PPA also should clearly state the consequences of non-compliance.
If PPA chooses to keep this subsection as proposed, in its final-form RAF and preamble, PPA should provide concrete examples that demonstrate the need for this change, explain how the contemporaneous filing requirement is reasonable in light of the numerous documents which must be submitted under Sections 1027.6 through 1027.12, and address how the benefits outweigh the costs and adverse effects.
Additionally, if PPA maintains the language as proposed, PPA should thoroughly review its regulations for consistency. For example Section 1027.8(b) states that the ''proposed agreement of sale must be signed . . . on or before the date the SA-1 is filed.'' (Emphasis added.)
These concerns and comments relate similarly to Section 1059.4 (relating to agreement of sale of limousine rights) and we ask PPA to consider similar amendments to Section 1059.4 in the final-form regulation, or to provide additional, appropriate support in the final RAF for PPA's decision not to amend Section 1059.4.
3. Section 1059.4. Agreement of sale.—Clarity.
In the preamble, PPA states that this section is amended to ''mirror the substantially similar section related to the sale of taxicab transferable rights at § 1027.5.'' (Emphasis added.) The proposed language states:
. . . at the time the sale is initiated as provided in § 1059.5 (relating to application for sale of transferable rights).PPA's proposed language in Section 1027.5, which Section 1059.4 is to mirror, states:
. . . at the time the sale is initiated as provided in § 1027.6(a)(1) (relating to application for sale of transferable rights). (Emphasis added.)Recognizing that PPA may amend these sections related to the prior comment, we ask PPA to amend this reference as appropriate, mirroring Section 1027.5 for consistency.
SILVAN B. LUTKEWITTE, III,
Chairperson
[Pa.B. Doc. No. 13-1059. Filed for public inspection June 7, 2013, 9:00 a.m.]
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