PROPOSED RULEMAKING
PENNSYLVANIA PUBLIC UTILITY COMMISSION
[52 PA CODE CHS. 1, 3, 21, 23, 29 AND 31]
[L-950106]
Motor Carriers of Property
[26 Pa.B. 1358] At a public meeting held December 14, 1995, the Pennsylvania Public Utility Commission (Commission) adopted an order which promulgated a proposed rulemaking modifying regulations to reflect its changed regulatory role since the Federal Aviation Authorization Act of 1994 amended the Interstate Commerce Act, preempting state regulation of motor carriers of property in the areas of rates, routes and service. The Commission historically regulated intrastate property transportation in these areas as well as in the areas of safety and insurance. In light of the preemption, the Commission has proposed these changes. Also, the Commission has taken this opportunity to delete the requirement of filing annual reports for both motor carriers of passengers and property. The contact person is John Herzog, Assistant Counsel, Legal Division, Bureau of Transportation and Safety, (717) 783-3173.
Executive Summary
The Federal Aviation Authorization Act of 1994 amended the Interstate Commerce Act, preempting state regulation of motor carriers of property in the areas of rates, routes and service. The Commission historically regulated intrastate property transportation in these areas, as well as in the areas of safety and insurance. In light of the preemption, the Commission has promulgated a proposed rulemaking modifying its regulations to reflect its changed regulatory role. Also, the Commission has taken this opportunity to delete the requirement of filing annual reports for both motor carriers of passengers and property.
Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), the Commission submitted a copy of these proposed amendments on March 15, 1996, 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. A copy of this material is available to the public upon request.
If the 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 30 days after the close of the public comment 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 any objections raised.
Public meeting held
December 14, 1995Commissioners Present: John M. Quain, Chairperson, Statement follows; Lisa Crutchfield, Vice Chairperson; John Hanger; David W. Rolka; and Robert K. Bloom, Statement follows
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 motor common carriers of property now found in 52 Pa. Code. In 1994, the United States Congress adopted legislation entitled the Federal Aviation Authorization Act of 1994 which amended, inter alia, the Interstate Commerce Act at sections 41713(b) and 1501(h), 49 U.S.C.A. §§ 41713(b) and 1501(h), (hereinafter referred to as the Act.) These sections provide, in pertinent part, that states are not permitted to regulate rates, routes or service of motor carriers of property, except household goods. However, our oversight of safety and financial responsibility of property carriers are not affected and remain necessary and essential parts of our obligation to ensure safe and available transportation throughout the Commonwealth.
Historically, we have used economic regulation of motor carrier transportation as a means to carry out our responsibilities under the Public Utility Code to promote safe and reasonable transportation service within the Commonwealth. For example, our regulations are designed to require a showing of market need for transportation services prior to a grant of authority. See e.g., 52 Pa. Code § 3.381. This was an efficient method to ensure stability in the transportation industry and sufficient earnings to promote safe operations and available service. However, Federal legislation requires that we alter our current methodology and move to a safety/insurance based system for motor carriers of property.
Our goal in this proposed rulemaking is to excise economic regulation over motor carriers of property without disturbing those measures which should remain regarding common carriers of property, passenger and household goods common carriers and contract carriers of household goods in use. Consistent with our responsibilities under the Public Utility Code to ensure safe transportation within the Commonwealth, we are proposing to amend our regulations to provide for an abbreviated application process for motor common carriers of property. This proposed procedure is designed to highlight safety issues and continue our insurance requirements while removing economic factors. We are also amending regulations such as rate and tariff requirements to conform to the preemptive provisions of the Act as it relates to motor common carriers of property. In addition, we are taking this opportunity to delete certain regulations which are no longer useful or in the public interest.
A discussion of the affected provisions with a brief description of the changes is set forth below. In addition to the regulations specifically discussed herein, our current leasing regulation now found at 52 Pa. Code § 31.32 require examination in light of the significant changes now being undertaken. While specific changes are not proposed at this time, we invite comments to that regulation in the context of this proceeding. We also invite comments to our insurance regulations now found at 52 Pa. Code §§ 32.12 and 32.13. Amendment to those sections may be undertaken in our final form rulemaking. Corrections to grammar, addresses and bureau titles have been made throughout this rulemaking without specific discussion in this order.
We propose to amend the following regulations as discussed herein and as set forth in Annex A:
§ 1.43. Schedule of fees payable to the Commission.
This section has been modified to recognize a new application for motor common carriers of property with a $100 fee. We have also specified that Emergency Temporary Authority and Temporary Authority applications are available for passenger and household goods carriers. This indicates that these forms of authority will not be available for property carriers. Since all property carriers will possess Statewide authority, it is doubtful that the shipping public will be faced with such a lack of carriers that Emergency Temporary Authority will be required. Also, the application process for motor common carriers of property set forth below is such that permanent authority can be obtained by fit carriers in a very brief time period thereby alleviating the need for a Temporary Authority procedure. It should be noted that no such applications for motor common carriers of property have been filed within the last 6 months.
§ 3.381. Applications for transportation of property, household goods in use and persons.
This section has been substantially revised. Subsections (a), (c), (d)--(f) and (i) have been revised to clarify that common carriers of property will be considered separate and distinct from common carriers of passengers and household goods in use. Subsection (i) deletes the word ''order'' to conform to current practice which uses letters to apprise applicants of compliance requirements.
§ 3.381(k)--(n). Adverse Comments to Property Applications.
These subsections are the heart of the proposed rulemaking. The new subsections provide for the application process for motor common carriers of property. As described in the proposed regulations, the application process is intended to focus on the safety fitness of applicants and is in keeping with the Commission's mandate to approve such applications if it finds that granting the certificate is ''necessary or proper for the service, accommodation, convenience, or safety of the public.'' 66 Pa.C.S. § 1103(a).
Contrary to the former procedure in which adverse parties could intervene in carrier applications by filing protests on economic and fitness grounds, the proposed procedure permits intervention by staff of the Bureau of Transportation and Safety only on significant safety fitness grounds. That Bureau has the responsibility to screen adverse comments to ensure that frivolous or non-safety related issues do not interfere with the application process. In addition, the Bureau of Transportation and Safety may intervene based upon its own determination of safety issues. It need not rely solely on outside comments.
In the event significant safety issues are raised regarding an application, the matter will be referred to the Office of Administrative Law Judge for hearing. If no safety issues are raised, or the Bureau of Transportation and Safety determines that filed comments do not raise significant safety issues, the matter will be processed as set forth in § 3.381(n). That section provides that a Statewide certificate will be issued upon the filing of appropriate evidence of insurance. It is contemplated that an applicant which possesses a satisfactory safety rating from the United States Department of Transportation, or from a state with safety regulations consistent with those of the Commonwealth, will be presumed to be fit.
In cases in which an applicant does not possess a satisfactory safety rating from the United States Department of Transportation or a state regulatory body with safety regulations similar to those of the Commonwealth, the applicant will be required to complete a safety fitness review conducted by Commission enforcement staff within 180 days of the issuance of the compliance letter apprising them of the review requirement. If the review is not successfully completed within 180 days, a 60 day grace period will begin. If the review is not successfully completed within the grace period, the certificate will be immediately suspended without formal action by the Commission. Failure to successfully complete the safety fitness review within 30 days of notice of suspension for such failure will result in revocation proceedings.
§ 3.382. Transportation applications--evidentiary guidelines.
Evidence of market need is no longer relevant in motor common carrier of property applications. Accordingly, we propose to modify this section to clarify that such evidence will not be received in motor common carrier of property proceedings.
§ 3.383. Applications for temporary authority and emergency temporary authority.
This section has been revised to make it applicable to passenger and household goods carriers. Given the time frame for property carrier applications and the fact that any property carrier can transport any commodities within this Commonwealth, it is unnecessary to provide for Emergency Temporary Authority in property matters. For consistency, we have deleted the requirement that information relating to commodities to be transported be provided in verified statements filed in these proceedings.
§ 3.384. Disposition of applications.
This section is the companion to § 3.383 and has been modified to restrict its application to passenger and household goods carriers.
§ 3.385. Rates, fares and charges for TA and ETA authorities.
Subsection (b) has been deleted as not serving any useful purpose.
§ 21.1. Definitions.
This section provides for definitions of motor common carriers of property and household goods carriers. The definitions are those set forth in the Commission's Final Decision at P-00940884 (entered December 20, 1994) and, for household goods carriers, conform to definitions now used at the Federal level.
This section, through the definitions, is intended to restrict the application of sections in this subpart when such application would not be permitted by the act. The definition of the phrase ''motor carrier'' limits it to only passenger and household goods in use carriers.
§ 23.1. Definitions.
This is one of the more significant sections of the proposed rulemaking. The definitions provided here serve to restrict the applicability of some regulations to passenger and household goods carriers. Federal preemption has eliminated our ability to engage in ratemaking and impose tariff restrictions on motor common carriers of property. Accordingly, by altering the definitions section here, we are attempting to limit the applicability of ratemaking and tariff filings to passenger and household goods carriers.
§ 23.14. Numbering of tariffs and supplements.
This proposed modification removes the ''Express'' and ''Freight'' tariff designations from our regulations as the tariff requirements will no longer apply to motor common carriers of property.
§ 23.16. Filing in numerical order.
This change merely reflects the new Bureau of Transportation and Safety and the correct address for the Commission.
§ 23.21. Title page.
This change restricts applicability to passenger and household goods carriers. We have also removed ''aircraft'' from this section since it is of no use.
§ 23.22. List of changes made by tariff.
Again, we have attempted to limit this section's scope to remove motor common carriers of property and aircraft.
§ 23.33. Index of commodities.
This section has been deleted since tariff requirements no longer apply to motor common carriers of property.
§ 23.67. Financial data.
We have restricted the scope of this section to passenger and household goods in use carriers.
§§ 23.81, 23.82, 23.83 and 23.85. Relating to carrier rates at intermediate points.
These sections have been deleted as no longer serving any useful purpose.
§ 23.116. Transportation of circuses and other shows.
This section has been deleted as no longer serving any useful purpose.
§§ 23.131--23.135. Relating to embargoes.
These sections have been deleted as no longer serving any useful purpose.
§ 23.149. Filing of discontinuance or termination.
This section has been deleted as serving no useful purpose.
Appendix I, Pennsylvania Public Utility Commission Policy Statement on Federal Anti-Inflation Guidelines.
This Appendix appears at the end of Chapter 23 and was adopted in response to the rampant inflation experienced in the 1970's. It is being deleted as no longer serving any useful purpose.
§ 29.42. Annual reports.
This section requires annual reports for passenger carriers. It is being deleted since most of the useful information required in the reports is duplicated in the annual Assessment Report. The Assessment Report will continue to be required and can be modified to provide information which used to be provided in the annual report.
§ 31.1. Definitions.
In this section, we are again restricting the applicability of preempted provisions through our definitions. We have provided for the definition of ''motor common carrier of property'' separate and distinct from ''common carrier by motor vehicle.'' The definition of ''household goods carrier'' is that now used at the Federal level. We have also eliminated the former definition of ''property carrier'' to avoid conflicting interpretations.
§ 31.2. Applicability.
This section, together with the definitions, provides for motor common carriers of property as a separate class of carrier. It further advances our goal of restricting application of preempted regulations to passenger and household goods carriers. We have also deleted the final clause of this section as surplusage.
§ 31.4. Transfer of certificates and permits.
This section has been modified to provide that certificates for motor common carriers of property are non-transferable. Because our oversight of these carriers is strictly safety and insurance based, those qualities run with the specific carrier. It would be pointless to permit a transfer since we would have to perform the same checks on a transferee as on a new applicant. There appears to be no public benefit to a transfer process.
§ 31.9. Annual reports.
This section has been deleted to eliminate annual reports for property carriers and household goods carriers. As pointed out in our discussion of § 29.42, any useful information now contained in these reports can be provided in the Assessment Report forms.
§ 31.10. Assessment reports.
Because we have defined motor common carriers of property separately from common carrier, that class has been specifically added to this section. It is important to note here that the Congressional Conference Committee Report on the act expressly provided that the act was not intended to affect state taxation of motor common carriers of property. Accordingly, our mechanism of funding oversight of this industry through assessments remains unaffected.
§ 31.16. Mileage description in certificates.
This has been revised to apply only to household goods carriers. Mileage restrictions no longer apply to property carriers.
§§ 31.21--31.25. Relating to classification.
These sections provided the separate classifications for motor carriers which indicated territorial and route restrictions depending on the type of class involved. These classifications have been uniformly ignored since certificates now describe the authorized territory. Also, all motor common carriers of property will now have Statewide authority. The sections are being deleted as no longer necessary.
§§ 31.27. Rate schedules and tariffs.
This section has been modified to recognize the elimination of regulation of property rates. It retains its usefulness as a tool for consumer protection in the regulation of household goods in use carriers.
§§ 31.28--31.31. Relating to commencement of service, interruptions in service, credit requirements and bills of lading and receipts.
These sections have been deleted as no longer serving a useful purpose.
§ 31.34. Handling of c.o.d. shipments.
This section has no application to property carriers and serves no useful purpose in the regulation of household goods in use. Accordingly, it has been deleted.
§ 31.37. Return of refused, rejected or damaged shipments to points of origin.
Motor common carriers of property will have Statewide authority. Also, this section has no use in household goods transportation. This section is being deleted as unnecessary.
§§ 31.41 and 31.45. Relating to contract carrier classifications and contracts.
These two sections have been modified to restrict their application to contract carriers of household goods in use.
§§ 31.47--31.50. Relating to commencement of service, interruptions of service, credit requirements and bills of lading and receipts.
These sections are being deleted as no longer serving any useful purpose.
§ 31.61. Classification.
This section eliminates the classification scheme for forwarders to be consistent with our modification to §§ 31.21--31.25.
§ 31.62. Use of or interchange with carriers.
This section has been modified to remove air carriers from its application. The final sentence has been deleted since motor common carriers of property no longer have any designated routes or territories in their certificates.
§§ 31.66--31.71. Relating to rate schedules and tariffs, commencement of service, interruptions of service, credit requirements, bills of lading and receipts and allowances and rebates.
These sections are being deleted as no longer serving a useful purpose.
Due to the recent Federal preemption of economic oversight of motor common carriers of property, the Commission has determined that modifications to our regulations must be made as more specifically discussed above. In addition, we are taking this opportunity to remove certain regulations which are no longer useful or in the public interest. We invite all interested parties to file comments to the proposed revisions set forth in Annex A attached to this order. Also, we invite comments regarding our current regulations found at 52 Pa. Code §§ 32.12, 32.13 and 31.32 (relating to insurance; cargo insurance; and leasing).
Accordingly, under section 501 of the Pennsylvania Public Utility Code, 66 Pa.C.S. § 501, 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 above 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 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. The public is invited to submit comments, original and 10 copies, regarding the proposed rulemaking with the Secretary of the Commission, P. O. Box 3265, Harrisburg, PA 17105-3265, within 30 days after publication in the Pennsylvania Bulletin.
JOHN G. ALFORD,
Secretary
Statement of Chairperson John M. Quain Before us today are two significant rulemakings that when combined, will delete or rescind 62 obsolete and redundant sections of our regulations and revise another 43 sections. Furthermore, when this Commission again meets on January 11, 1996, we will consider another 58 sections pertaining to Chapters 63, 64 and 56 for possible rescission or revision.
I wish to express my appreciation to all of the staff of the various bureaus, and those public commentors who contributed to this massive undertaking.
Statement of Commissioner Robert K. Bloom Before us for consideration is the proposed rulemaking which would amend regulations governing motor carrier regulation. I offer the following comments associated with the proposed rulemaking.
In Frank Renda v. Edward Rabel, Docket A-00101022C9501, Mr. Renda filed a formal complaint against Mr. Rabel, a household goods mover for failure to provide a binding estimate. In the Initial Decision of Administrative Law Judge Michael C. Schnierle, issued December 7, 1995, the ALJ stated:
''One final comment is necessary. These kinds of cases could be avoided in large measure if the Commission would simply require movers to render binding estimates, as the Federal government did many years ago for interstate moves. I strongly recommend that the Commission institute a proposed rulemaking to require movers to render binding estimates for any customer requesting one.'' Initial Decision p. 16.I would examine the ALJ's recommendation in the context of this rulemaking proceeding to see if it is appropriate for this Commission to require binding estimates. I would like a copy of this Statement attached to the Order served on the parties.
Fiscal Note: 57-166. No fiscal impact; (8) recommends adoption.
(Editor's Note: A proposal to amend § 1.43 (relating to schedule of fees payable to the Commission) remains outstanding at 25 Pa.B. 1288 (April 8, 1995).)
Annex A
TITLE 52. PUBLIC UTILITIES
PART I. PUBLIC UTILITY COMMISSION
Subpart A. GENERAL PROVISIONS
CHAPTER 1. RULES OF ADMINISTRATIVE PRACTICE AND PROCEDURE
Subchapter E. FEES § 1.43. Schedule of fees payable to the Commission.
(a) Fees for services. The fees for services rendered by the Commission are as follows:
Description Fee
(in dollars)* * * * * Filing an application for a certificate of public convenience for a motor common carrier of property $100 Filing an application for emergency temporary authority as common carrier [or] of passengers or household goods in use, contract carrier of passengers or household goods in use, or broker or for an extension thereof $100 Filing an application for temporary authority as common carrier of passengers or household goods in use, contract carrier of passengers or household goods in use, or broker $100 Filing an application for a certificate to discontinue intrastate common carrier transportation of household goods in use or passenger service $ 10 * * * * *
CHAPTER 3. SPECIAL PROVISIONS
Subchapter E. MOTOR TRANSPORTATION PROCEEDINGS § 3.381. Applications for transportation of property, household goods in use and persons.
(a) Applications.
(1) Forms. The following [applications shall be made to the Commission substantially in accordance with the forms prescribed in § 3.551 (relating to official forms)] list of forms may be obtained from the Office of the Secretary of the Commission:
* * * * * (3) Filing and verification. An original application, together with two copies, shall be filed by the applicant, or an authorized officer or representative, with the Secretary of the Pennsylvania Public Utility Commission, Post Office Box 3265, Harrisburg, Pennsylvania [17120] 17105-3265. The application shall be verified under § 1.36 (relating to verification). An application by a common carrier for a certificate of public convenience authorizing the transportation of passengers or household goods in use may be accompanied by verified statements of the applicant and supporting party or firm, as set forth [at] in subsection (e)(1)(ii) and (iii). An application by a contract carrier for a permit authorizing the transportation of passengers or household goods in use may be accompanied by a verified statement of the applicant, as set forth at subsection (e)(1)(ii) and a copy of the bilateral contract or statement of the shipper that it will enter into a bilateral contract with the carrier.
* * * * * (5) Abandonment or discontinuance of service. A motor common carrier of property, contract carrier or broker is not required to file an application to abandon or discontinue service. Abandonment or discontinuance of service, in whole or in part, by a motor common carrier of property, contract carrier or a broker shall require the submission of a letter to the Commission containing a statement that the service is no longer being rendered or that the contract has expired.
* * * * * (8) Change in the name of shipper.
(i) If a shipper named in the existing or proposed operating authority of a motor carrier of passengers or household goods in use changes its name, the motor carrier shall submit a verified letter of notification to the Secretary containing the following information:
* * * * * (ii) If a shipper named in the existing or proposed operating authority of a motor carrier of passengers or household goods in use simply makes an addition to or change of a fictitious trade name, the motor carrier shall notify the Secretary by letter, identifying the name and docket number of the motor carrier and submitting a copy of the shipper's fictitious name registration form filed with the Department of State under 54 Pa.C.S. § 312.
(9) Change in entity of named shipper.
(i) A change in the entity of a shipper named in the existing or proposed operating authority of a motor carrier of passengers or household goods in use, which is accompanied by a change in the ownership or control of the shipper's business--for example, through a sale or merger--requires the filing of an application by the motor carrier in accordance with paragraphs (3) and (4) and § 5.12.
(ii) A change in the entity of a shipper named in the existing or proposed operating authority of a motor carrier of passengers or household goods in use, which is not accompanied by a change in the ownership or control of the shipper's business--for example, through the incorporation of a sole proprietorship or partnership--requires the submission by the motor carrier of a verified letter of notification to the Secretary containing the following information:
* * * * * (10) Change in location of named shipper.
(i) A change in the location of an existing facility of a shipper named in the existing or proposed operating authority of a motor carrier of passengers or household goods in use requires the filing of an application under paragraphs (3) and (4) and § 5.12, except as provided in subparagraph (ii).
(ii) A change in the location of an existing facility of a shipper named in the existing or proposed operating authority of a motor contract carrier of passengers or household goods in use, which is not accompanied by a change in ownership or control of the business, requires the submission of a verified letter of notification to the Secretary containing the name and docket number of the motor carrier, and a statement that there is no change in ownership or control of the business.
* * * * * (c) Protests to applications for passenger or household goods in use authority: content and effect.
(1) A person objecting to the approval of an application for passenger or household goods in use authority shall file with the Secretary of the Commission and serve upon the applicant and the applicant's attorney, if any, a written protest which shall contain [all of] the following:
* * * * * (2) Upon the filing of a timely protest to an application for passenger or household goods in use authority, the protestant will be allowed to participate in the proceeding as a party intervener.
(3) A protest to an application for passenger or household goods in use authority shall be treated as a pleading and the applicant may, within 20 days after the closing date for the filing of protests, file motions to strike, to dismiss, or for amplification as provided in § 5.101 (relating to preliminary motion).
(d) Protests: time of filing. A protest to an application for passenger or household goods authority shall be filed within the time specified in the notice appearing in the Pennsylvania Bulletin, which shall be no less than 15 days from date of publication [thereof]. Failure to file such a protest in accordance with this subsection shall be a bar to subsequent participation in the proceeding, except [where] when permitted by the Commission for good cause shown.
(e) Failure to file protests. If no protest to an application for passenger or household goods in use authority is filed with the Commission on or before the date specified in the Pennsylvania Bulletin or if all protests have been withdrawn at or prior to the hearing, the Commission may[, in its discretion,] take either of the following actions:
* * * * * (f) Scheduling hearings. The applications for passenger or household goods in use authority to which timely protests were filed will not be acted on by the Commission for [a period of] 20 days after the closing date for filing protests, to permit the applicant to make restrictive amendments leading to the withdrawal of protests. [In the event that] If all protests are withdrawn upon amendment, the Commission may dispose of the application in accordance with subsection (e). [In the event that] If the application is still subject to protest, then after the expiration of the 20-day waiting period, the Commission will set the application for hearing and will notify the parties thereof. Absent good cause shown, no further amendments to the application will be considered after the expiration of the 20-day period or the commencement of hearings.
* * * * * (i) Compliance [order]; conditions for approval. Whenever the Commission shall approve operation by a motor common carrier of passengers or household goods in use, forwarder, broker or motor contract carrier of passengers or household goods in use, the motor common carrier, forwarder, broker or motor contract carrier will be notified thereof by registered or certified mail, whereupon it shall file with the Commission, within 60 days of receipt of [such] the notice, a certificate of insurance or other security required by this title, relating to insurance and security for the protection of the public. In addition, motor common carriers of passengers or household goods in use shall file tariffs of their applicable rates and charges, and contract carriers of passengers or household goods in use shall file schedules of actual charges. When all of these requirements have been met, the Commission will issue the certificate, permit[,] or license as the case may be. Failure on the part of any motor common carrier of passengers or household goods in use, forwarder, broker or motor contract carrier of passengers or household goods in use to comply with [the provisions of] this section within the 60-day period may result in the dismissal of the application and rescission of prior approval, unless the Commission shall have, upon written request demonstrating good cause, extended the time for compliance.
* * * * * (k) Adverse comments to applications for motor common carrier of property authority: content and effect.
(1) A person objecting to the approval of an application for motor common carrier of property authority may file with the Secretary of the Commission and serve upon the applicant, the applicant's attorney, if any, and the Bureau of Transportation and Safety written comments which shall contain 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 the comments. Comments which are not supported by specific factual allegations as described will not be considered.
(2) Upon the filing of timely adverse comments 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.
(l) Adverse comments: time for filing. Adverse comments to applications for motor common carrier property authority shall be filed within the time specified in the Pennsylvania Bulletin, which shall be at least 10 days from the date of publication.
(m) Hearings on applications for motor common carrier property authority. If adverse comments are filed which raise significant issues regarding an applicant's safety fitness, or if the Bureau of Transportation and Safety prosecutory staff determine that 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 hearings 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.
(n) Action on applications for motor common carrier property authority without adverse comments or hearing. If no adverse comments are filed, or if the Bureau of Transportation and Safety has determined that the adverse comments do not raise significant allegations of safety fitness, the Commission will act on motor common carrier of property 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 Damage Liability Certificate of Insurance and a Form K 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.
(2) Once acceptable evidence of insurance has 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 rating within the 180 day period, it will be given an additional 60-days to correct the deficiencies. Failure to achieve a satisfactory rating within the 60-day period will result in immediate suspension of the certificate of public convenience. Failure to achieve a satisfactory safety rating within 30 days of notification of suspension under this section will result 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 the Commission's regulations in Chapter 37 (relating to safety code for transportation of property and passengers).
§ 3.382. Transportation applications--evidentiary guidelines.
(a) Service request evidence. Evidence of requests received by an applicant for passenger or household goods in use service may be offered by the applicant in a transportation application proceeding relevant to the existence of public necessity for the proposed service. The credibility and demeanor of a witness offering evidence will be considered in evaluating the evidence. The weight which will be attributed to the evidence will depend upon the extent to which the alleged requests are substantiated by [such] the evidence as [the following] follows:
* * * * * (b) Prospective rate evidence. An applicant for a motor carrier certificate or permit for the transportation of passengers or household goods in use, though not required to offer testimony as to the rates proposed to be charged, may do so provided it is otherwise competent. The weight to be attributed to the evidence will depend upon the extent to which it is accompanied by cost evidence demonstrating that the prospective rates would be compensatory, that is, that the prospective rates would be adequate to enable the applicant to recover its costs and realize a reasonable return either on investment or under operating ratio standards. The demeanor and credibility of a witness offering the evidence will also be considered in evaluating the weight to be attributed to the evidence.
§ 3.383. Applications for temporary authority and emergency temporary authority.
* * * * * (b) Definitions. The following words and terms, when used in this subchapter, have the following meanings:
Carrier--Includes motor common carriers of passengers or household goods in use and motor contract carriers [by motor vehicle] of passengers or household goods in use, brokers and forwarders.
Emergency temporary authority (ETA)--Limited duration operating authority issued under 66 Pa.C.S. §§ 1103(d) and 2509 to authorize the transportation [service] of passengers or household goods in use to meet an emergency situation and [where] when time or circumstances do not reasonably permit the filing and processing of an application for TA.
Temporary authority (TA)--Limited duration operating authority issued under 66 Pa.C.S. §§ 1103(d) and 2509 to authorize the transportation [service] of passengers or household goods to meet an emergency situation.
(c) Filing of applications. An application shall be filed as follows:
* * * * * (3) Supporting statements. An application shall be accompanied by supporting statements of the applicant and shippers or other witnesses which establish an immediate need for service. A statement shall contain a certification of its accuracy and shall be signed by the person submitting the statement.
* * * * * (ii) Statements of supporting shippers or witnesses. The statement of a supporting shipper or witness, which shall be prepared by the shipper or witness, or an authorized representative of the shipper or witness, shall contain the following information:
[(A) A description of the specific commodity which will be transported, if the transportation of property is involved.]
[(B)] (A) ***
[(C)] (B) ***
[(D)] (C) ***
[(E)] (D) ***
[(F)] (E) ***
[(G)] (F) ***
[(H)] (G) ***
[(I)] (H) ***
[(J)] (I) ***
[(K)] (J) ***
(4) Procedures for filing ETA application. Procedures for filing ETA applications are as follows:
* * * * * (ii) If the urgency of the situation warrants, the supporting statement of those having the immediate need for [carrier] service may be furnished by telegram. The telegram shall contain substantially the factual information described in paragraph (3). The telegram shall be sent to the Director, Bureau of Transportation and Safety.
* * * * * § 3.384. Disposition of applications.
(a) General. Initial determination of ETA and TA applications will be made by the Bureau of [Nonrail] Transportation and Safety with the approval of the Commission.
(b) Standards for determination of need.
(1) General. Grants of TA or ETA shall be made upon the establishment of an immediate need for the transportation of passengers or of [particular commodities or classes of commodities] household goods in use. Requests involving service to cities, counties, townships[,] or other defined areas warrant approval when supported by evidence that there is a need for service to or from a representative number of points in each [such] city, county, township or areas and that there is a reasonable certainty that the service will be used.
(2) Immediate need. A grant of TA or ETA will be made [where] when it is established that there is or soon will be an immediate transportation need. A showing of immediate need may involve passenger service to a new or relocated plant, [a different method of distribution, new or unusual commodities,] an origin or destination not presently served by carriers a discontinuance of existing service, failure of existing carriers to provide service or comparable situations which require new carrier service before an application for permanent authority can be filed and processed. An immediate need will not normally be found to exist where there are other carriers capable of rendering the service unless it is determined that there is a substantial benefit to be derived from the initiation of a competitive service.
* * * * * § 3.385. Rates, fares and charges for TA and ETA authorities.
* * * * * [(b) Emergency temporary authority. Upon completion of services rendered under ETA, a carrier shall submit to the Bureau of Transportation a statement containing the gross revenue and other charges related to the transportation, and the total tonnage or number of persons transported.]
[(c)] (b) ***
[(d)] (c) ***
Subpart B. CARRIERS OF PASSENGERS OR PROPERTY
CHAPTER 21. GENERAL PROVISIONS § 21.1. Definitions.
The following words and terms, when used in this subpart, have the following meanings, unless the context clearly indicates otherwise:
* * * * * Common carrier of property--A motor common carrier who or which transports property, other than household goods in use. Common carriers of property shall by definition be permitted to transport those items described in subparagraph (iii) in the definition of ''household goods in use carrier'' in this section.
* * * * * Household goods in use carrier--A motor common or contract carrier who or which holds authority to transport:
(i) Personal effects and property used or to be used in a dwelling when a part of the equipment or supply of the dwelling and other similar property; except that this does not include property moving from a factory or store, except property that the householder has purchased with the intent to use in his dwelling and which is transported at the request of and the transportation charges paid to the carrier by the householder.
(ii) Furniture, fixtures, equipment and the property of stores, offices, museums, institutions, hospitals or other establishments when a part of the stock, equipment or supply of the store, offices, museums, institutions, hospitals or other establishments; except that this does not include the stock-in-trade of any establishment, whether consignor or consignee, except when transported as incidental to moving of the establishment from one location to another.
(iii) Articles, including objects of art, displays, exhibits and business machines, which because of their unusual nature or value require specialized handling and equipment usually employed in moving household goods; except that this does not include any article whether crated or uncrated, which does not, because of the unusual nature or value require specialized handling usually employed in moving household goods.
Motor carrier--A common or contract carrier by motor vehicle of passengers or household goods in use.
CHAPTER 23. TARIFFS FOR COMMON CARRIERS OF PASSENGERS AND HOUSEHOLD GOODS IN USE
GENERAL PROVISIONS § 23.1. Definitions.
The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:
Common carrier or [Carrier] carrier--A person or corporation holding out, offering or undertaking, directly or indirectly, service for compensation to the public for the transportation of passengers or [property] household goods in use, or both, or any class of passengers or [property] household goods in use, between points within this Commonwealth by, through, over, above or under land, water or air, including forwarders, but not motor common carriers of property, contract carriers [by motor vehicles], brokers[,] or any bona fide cooperative association transporting property exclusively for the members of [such] the association on a nonprofit basis.
Contract carrier--Any person or corporation who or which provides or furnishes transportation of passengers or [property] household goods in use, or both, or any class of passengers or [property] household goods in use, between points within this Commonwealth by motor vehicle for compensation, whether or not the owner or operator of [such] the motor vehicle, or who or which provides or furnishes, with or without drivers, any motor vehicle for the transportation, or for use in the transportation, other than as a common carrier by motor vehicle, but not including [any] one or more of the following:
* * * * * Rate--An individual or joint fare, toll, charge, rental or other compensation of a public utility, other than a motor common carrier of property in its transportation of property, or contract carrier by motor vehicle, made, demanded or received for [a] jurisdictional service [within this act], offered, rendered or furnished by the public utility, other than a motor carrier of property in its transportation of property, or contract carrier by motor vehicle, whether in currency, legal tender or evidence thereof, in kind, in services or in another medium or manner, and whether received directly or indirectly, and rules, regulations, practices, classifications or contracts affecting the compensation, charge, fare, toll or rental.
Tariff--Schedules of rates, rules, regulations, practices or contracts involving any rate or rates, including contracts for interchange of service and, in the case of a common carrier, other than a common carrier of property in the transportation of property, schedules showing the method of distribution of the facilities of the common carrier.
FORM AND FILING OF TARIFFS § 23.14. Numbering of tariffs and supplements.
* * * * * (b) The designation on tariffs of motor carriers shall show the kind of service and serial number as follows:
* * * * * [(4) ''Express Pa.P.U.C. No. ____ .''
(5) ''Freight Pa.P.U.C. No. ____ .'']
[(6)] (4) ***
* * * * * § 23.16. Filing in numerical order.
* * * * * (f) Separate letters shall be used for tariffs or supplements filed for different classes of service. Tariffs tendered for filing shall be addressed to:
Bureau of Transportation and Safety
Pennsylvania Public Utility Commission
P. O. Box 3254
Harrisburg, Pennsylvania [17120] 17105-3265
CONTENT AND ARRANGEMENT OF TARIFFS § 23.21. Title page.
Each tariff shall contain a title page showing [all of] the following information in the sequence specified:
* * * * * (9) [All] The tariffs and supplements filed by other than [motor carriers of property,] railroad companies[, and aircraft,] or their agents, shall indicate the amendments to existing rules and rates made by the tariff or supplement, together with reference to the page [or pages] on which they are listed, and which shall be shown at the bottom of the page, as follows:
* * * * * § 23.22. List of changes made by tariff.
(a) Except as to [motor carriers of property,] railroad companies[, and aircraft], page two of the tariff or supplement shall begin with the following:
LIST OF CHANGES MADE BY THIS TARIFF (or supplement) * * * * * § 23.33. [Index of commodities] (Reserved).
[A complete and alphabetically arranged index of all commodities upon which commodity rates are named shall be provided.]
NOTICE OF CHANGES IN FARES § 23.67. Financial data.
(a) The Commission will not, on or after the effective date of this order, permit a tariff filing increasing rates by a common carrier of [property] household goods in use with gross annual intrastate revenues of $200,000 or more, or making general increase in rates published by a rate bureau, conference[,] or similar organization of carriers, which will increase gross annual revenues by more than 1.0%, unless financial justification in support of the proposed increase is filed with the tariff.
(b) [Property] Household goods in use carriers referred to in subsection (a), shall be governed by the following procedures in the filing of tariffs or tariff supplements:
* * * * * (c) Common carriers of [property] household goods in use, with gross annual intrastate revenues of less than $200,000, and with operating ratios of [no less than] at least 93%, before income taxes, [*] need not file substantiating data required by subsection (b)(2), but shall submit a statement with the tariff, or tariff supplement, stating that gross annual intrastate revenues did not exceed $200,000 in the 12-month period preceding the tariff filing together with a statement that its operating ratio before income taxes for the same period is no less than 93%.[*] The tariffs, or tariff supplements, shall be published to become effective on no less than 30 days notice. Nothing in this subsection [shall preclude] preclude the Commission from requiring supporting financial data in instances where increases in rates appear to be excessive.
[*Operating ratio is operating expenses, excluding income taxes, divided by operating revenues.]
[CARRIER RATES AT INTERMEDIATE POINTS] (Editor's Note: The following sections which appear at 52 Pa. Code pages 93--95, serial pages (20773), (26114)--(28769) are proposed to be deleted in their entirety.)
§ 23.81. (Reserved).
§ 23.82. (Reserved).
§ 23.83. (Reserved).
§ 23.85. (Reserved).
[EXCEPTIONS TO PUBLIC UTILITY LAW PROHIBITIONS PERTAINING TO RATES] (Editor's Note: The following sections which appear at 52 Pa. Code pages 95--98, serial pages (28769), (20776)--(20778) are proposed to be deleted in their entirety.)
§ 23.91. (Reserved).
§ 23.92. (Reserved).
OTHER RULES PERTAINING TO CARRIER RATES § 23.116. [Transportation of circuses and other shows] (Reserved).
[Rates for specified movements of circuses and other show outfits may be established on not less than one day's notice to the Commission. Such tariffs shall bear reference to this section and publish the charges specifically, showing the number and kind of cars moved, or may consist of a proper title page reading ''as per copy of contract attached,'' and to it may be attached a copy of the contract under which the movement is made. Tariffs containing such rates need not be posted at stations. As far as practicable, general rules or regulations governing the fixing of such rates should be regularly published, posted, and filed upon the usual notice.]
[EMBARGOES] (Editor's Note: The following sections which appear at 52 Pa. Code pages 106--108, serial pages (26116), (20787) and (20788) are proposed to be deleted in their entirety.)
§ 23.131. (Reserved).
§ 23.132. (Reserved).
§ 23.133. (Reserved).
§ 23.134. (Reserved).
§ 23.135. (Reserved).
CONTRACT CARRIERS § 23.149. [Filing of discontinuance or termination] (Reserved).
[If any contract carrier discontinues any service provided for in any schedule or terminates any contract approved by the Commission, such carrier shall file with the Commission a suitable supplement providing for cancellation of the existing charges for such service from its schedule or schedules.]
(Editor's Note: Appendix I, PENNSYLVANIA PUBLIC UTILITY COMMISSION POLITY STATEMENT ON FEDERAL ANTI-INFLATION GUIDELINES, which appears at 52 Pa. Code page 110, serial page (120404), is proposed to be deleted in its entirety.)
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