NOTICES
PENNSYLVANIA PUBLIC UTILITY COMMISSION
Regulation of Group and Party Carriers; Doc. No. P-00981458 Commissioners Present: John M. Quain, Chairperson; Robert K. Bloom, Vice Chairperson; David W. Rolka; Nora Mead Brownell
[28 Pa.B. 4583] Public Meeting held
August 13, 1998
Tentative Decision By the Commission:
On June 9, 1998, the Transportation Equity Act for the 21st Century, P. L. 105-178 (''TEA Act''), was signed into law. The TEA Act, inter alia, modified 49 U.S.C. § 14501 by preempting state regulation ''relating to the authority to provide intrastate or interstate charter bus transportation.'' Section 4016, TEA Act.1
SECTION 4016. AUTHORITY OVER CHARTER BUS TRANSPORTATION
Section 14501(a) (49 U.S.C.) is amended to read as follows:
(a) MOTOR CARRIERS OF PASSENGERS.--
(1) LIMITATION ON STATE LAW.--No State or political subdivision thereof and no interstate agency or other political agency of 2 or more States shall enact or enforce any law, rule, regulation, standard, or other provision having the force and effect of law relating to
(A) scheduling of interstate or intrastate transportation (including discontinuance or reduction in the level of service) provided by a motor carrier of passengers subject to jurisdiction under subchapter I of chapter 135 of this title on an interstate route;
(B) the implementation of any change in the rates for such transportation or for any charter transportation except to the extent that notice, not in excess of 30 days, of changes in schedules may be required; or
(C) the authority to provide intrastate or interstate charter bus transportation.
This paragraph shall not apply to intrastate commuter bus operations.
(2) MATTERS NOT COVERED.--Paragraph (1) shall not restrict the safety regulatory authority of a State with respect to motor vehicles, the authority of a State to impose highway route controls or limitations based on the size or weight of the motor vehicle, or the authority of a State to regulate carriers with regard to minimum amounts of financial responsibility relating to insurance requirements and selfinsurance authorization.
The preemption is applicable to only charter bus transportation, not commuter bus operations. Further, the Conference Report accompanying the TEA Act, Report 105-550, explicitly notes ''that the [preemption] does not limit a state's ability to regulate taxicab service or limousine livery service.'' Conference Report, p. 496.2The conference adopts the Senate provision with modification. A clarifying provision is included to ensure that states may continue to regulate safety with respect to motor vehicles and to impose highway route controls or limitations based on the size or weight of the motor vehicle or with regard to minimum amounts of financial responsibility relating to insurance requirements. The conference also notes that the provision does not limit a state's ability to regulate taxicab service or limousine livery service.
Finally, the TEA Act specifically authorizes continuing state oversight of safety and financial responsibility for charter bus carriers.Historically, this Commission has regulated entry into the charter bus market in order to ensure continued viability. Pursuant to the statutory mandate found at 66 Pa.C.S. § 1103(a), the Commission developed a three part test to determine whether to grant a carrier authority. That test required: 1) that an applicant demonstrate that the proposed service was responsive to a public demand or need; 2) that an applicant demonstrate that it has the technical and financial ability to provide the service safely and legally; and 3) that the entry of a new carrier into the market would not endanger operations of existing carriers in contravention of the public interest. See 52 Pa. Code § 41.14.
Due to the TEA Act's preemption, we will no longer use this three part test to regulate entry into the charter bus industry. However, as more fully discussed below, we will continue to require certification of bus carriers through an application process aimed at compliance with Commission safety and insurance regulations.
The extent of the preemption created by the TEA Act is somewhat ambiguous due to its failure to define ''charter bus transportation''. Reference to Federal regulations provides some guidance. For instance, ''charter transportation of passengers'' is defined at 49 C.F.R. § 390.5 as:
''transportation, using a bus, of a group of persons who pursuant to a common purpose under a single contract, at a fixed charge for the motor vehicle, have acquired the exclusive use of the motor vehicle to travel together under an itinerary either specified in advance or modified after having left the place of origin.''
Further, ''bus'' is defined at 49 C.F.R. § 393.5 as a vehicle designed to carry more than 15 passengers, including the driver.3
Currently, Commission regulations recognize three (3) categories of group and party (non-scheduled bus) service: charter service, tour or sightseeing service, and special excursion service. 52 Pa. Code § 29.322.4
Charter service. This service shall be limited to the transportation of groups and parties of persons the charge for which is based upon the transportation of a group and not upon the number of persons carried and for which payment is made by a single individual or organization and not by the passengers as individuals.
Tour or sightseeing service. This service shall include tours and sightseeing trips on which the general public is invited: limited to trips which originate and terminate at the same point, on which advertised stops are made for sightseeing or recreational purposes, and for which each passenger pays the rate contained in the filed tariff. The charge for the trip may be for transportation alone or may include meals, hotel expenses and admission charges to points of interest.
Special excursions. This service shall be limited to advertised trips to a definite destination on which trips the general public is invited and for which transportation a passenger pays the rate contained in the filed tariff.
Under the Commission's regulations, these services must be provided in vehicles designed to carry ten (10) passengers or more, excluding the driver. 52 Pa. Code § 29.323.5A group and party service may be operated only in vehicles with seating capacities of ten passengers or greater, excluding the driver.
Of the three types of group and party service recognized by the Commission, it appears that the TEA Act's preemption, by definition, would be applicable only to ''charter service''. However, given the historical treatment of ''tour/sightseeing service'' and ''special excursion service'' as ancillary services to charter service, C.I. Beiber, Inc. v. Pa. P.U.C., 281 A.2d 351 (Pa. Comwlth., 1971)6 , we are inclined to extend the TEA Act's preemption to these services. This is especially the case given the pragmatic factors involved in enforcement of economic regulation for ''tour/sightseeing'' and ''special excursion'' services. These services are provided in vehicles that qualify as ''charter service'' vehicles. Without stopping each vehicle to determine what type of service it is currently providing (i.e., charter, tour/sightseeing, special excursion), the Commission would be unable to determine if that vehicle were subject to economic regulation for that particular trip. We believe the continuation of economic regulation for tour/sightseeing and special excursion services is undesirable and unachievable under these circumstances. Therefore, we will extend the TEA Act's preemption to these services as well as charter service.
As for the type of vehicle that qualifies as a ''bus'' for purpose of preemption, we are inclined to apply our current definition, i.e., vehicles with seating capacities of ten passengers or greater, excluding the driver. While we recognize that this definition is broader (i.e., includes more vehicles) than the Federal definition found at 49 C.F.R. § 393.5, (15 passengers) we believe continuing with our historical definition is the enlightened approach. It would be an unmanageable result if we were to limit preemption to those current group and party carriers operating in vehicles with seating capacities of 15 or greater. We do not believe that bifurcating current group and party carriers into two groups, one which will be subject to economic regulation and one which will not, is a viable option. Therefore, we will apply the preemption to vehicles with seating capacities of 10 or greater, excluding the driver.
Finally, we note that our oversight of the rates charged by charter carriers has been dramatically curtailed in recent years. We have previously adopted flexible ratemaking for both the group and party and limousine industries. See Investigation of Flexible Ratemaking for Bus and Limousine Industries, Docket No. I-00960063 (Order entered October 16, 1997). Section 4016 of the TEA Act has further clarified the authority of a state to regulate rates charged in charter bus transportation. Specifically, the TEA Act provides that ''no State . . . shall enact or enforce any law . . . relating to . . . the implementation of any change in the rates . . . for any charter transportation except to the extent that notice, not in excess of 30 days, of changes in schedules may be required.'' Based on this provision, we find that our current rate-filing requirement, which is simply a notice requirement, is no longer necessary and serves no useful public purpose. Therefore, we will modify our current rate procedure by deleting any rate filing requirements for group and party carriers.
Implementation
Given the TEA Act's reservation to states of continuing oversight in the areas of safety and insurance, we believe that in order to effectively regulate carriers in these areas a continuing registration requirement is necessary. The registration requirement for group and party carriers will be similar to that utilized for property carriers following deregulation. See Regulation of Motor Common Carriers of Property, Docket No. P-00940884, (Order entered December 20, 1994). It will be an expedited process designed to ensure compliance and familiarity with Commission safety and insurance requirements. The traditional requirement of demonstration of need for a proposed service is abolished. Further, given our inability to restrict entry, all carriers (charter, tour/sightseeing, special excursion), new and existing, will have authority to operate group and party service between points in Pennsylvania.
Procedure for New Entrants Following entry of a final order in this matter, all applicants for authority to provide group and party service will follow the following procedure:
1. A new applicant will file an application on an appropriate form provided by the Commission.
2. The filing fee for new applicants will be reduced from $350 to $100.
3. Notice of the application will not be published in the Pennsylvania Bulletin.7
4. No protests to applications for group and party authority will be considered.8
5. If an applicant's safety fitness to provide service is at issue, the application will be referred to the Office of Administrative Law Judge for hearing and decision.
6. If an applicant's safety fitness to provide service is not at issue, a compliance order will be issued immediately. The compliance letter will direct applicant to file proper evidence of insurance. Temporary evidence of insurance may be filed in the form of (a) a declaration page of the insurance policy or (b) a copy of a valid binder of insurance. Temporary evidence of insurance shall be replaced by permanent evidence of insurance within 60 days. A carrier may begin operations upon filing acceptable evidence of insurance.
7. Once acceptable evidence of insurance has been filed, a certificate of public convenience will be issued authorizing the transportation of persons, in group and party service, between points in Pennsylvania.
8. No tariff filings are required for new or existing carriers.
9. Applicants which do not possess a satisfactory safety rating issued by the United States Department of Transportation or a state with safety regulations comparable to the Commonwealth's, shall complete a safety fitness review conducted by Commission staff. See 52 Pa. Code § 3.381(c)(2)(iii).
Existing Group and Party Carriers All currently certificated carriers providing group and party services will have the following right:
To transport persons, in group and party service, between points in Pennsylvania.
Assessments Given our continued regulation of group and party carriers in the areas of safety and insurance, the industry will remain subject to our assessment process. We direct our Fiscal Office to examine any required adjustments.
Insurance Commission insurance regulations governing passenger carriers are found at 52 Pa. Code § 32.11. Generally, we have required group and party carriers to maintain insurance coverage of $5 million to cover liability for bodily injury, death, or property damage. On occasion, we have permitted a carrier to carry less coverage if the carrier restricted the vehicles used to vehicles with seating capacities of less than 28 passengers. As a general rule, we will continue to require $5 million coverage for a group and party carrier. If a carrier voluntarily limits the size of the vehicles it operates, it may request a reduction in the mandated coverage limits.
Waiver of Regulations In light of our changed regulatory role over group and party carriers, we will waive all regulations with respect to group and party carriers to the extent they are inconsistent with the new process. Those regulations include, but are not limited to, 52 Pa. Code §§ 3.381, 23.1--23.149. Regulations found at 52 Pa. Code Chapter 29 remain intact, but for 52 Pa. Code § 29.324; Therefore,
It Is Ordered That:
1. This Tentative Decision should be entered and served for comment upon all group and party carriers and the Pennsylvania Bus Association.
2. A copy of this Tentative Decision shall be forwarded to the Pennsylvania Bulletin for publication.
3. An original and nine copies of any comments are to be filed within 30 days of the date of publication in the Pennsylvania Bulletin, with Secretary James McNulty, Pennsylvania Public Utility Commission, P. O. Box 3265, Harrisburg, PA 17105-3265. All comments must note the caption and docket number of this proceeding.
4. The Commission's Fiscal Office is directed to examine any changes required in the Assessment process for group and party carriers. The Fiscal Office shall report its findings and recommendations to the Commission within 45 days of the date of entry of this Order.
JAMES J. MCNULTY,
Secretary
[Pa.B. Doc. No. 98-1471. Filed for public inspection September 4, 1998, 9:00 a.m.] _______
1 Section 4016 of the TEA Act provides:
2 The Conference Report provides:
3 We note that both of the definitions are found under the Federal Motor Carrier Safety Regulations and are, therefore, of questionable relevance when considering the extent of the TEA Act's preemption. Further, ''bus'' is defined broadly at 49 C.F.R. § 390.5 (again for purposes of Federal Motor Carrier Safety Regulations) without regard to seating capacity. We reject this broad definition in light of the TEA Act's Conference Report which limited the preemption to buses, not taxicabs or limousines.
4 52 Pa. Code § 29.322 defines these services as:
5 52 Pa. Code § 29.323 provides:
6 In Beiber, the Court found that excursion and sightseeing services required no independent evidence of necessity.
7 We are deleting the publication requirement established at 52 Pa. Code § 3.381(b) as well as the protest process provided for at 52 Pa. Code § 3.381(c). Currently, there is a rulemaking pending that deletes the publication/protest process for property carriers. See Publication and Protests, Motor Carrier Property Applications, Docket No. L-00980133 (Order entered March 3, 1998). While the rulemaking is not final, it is noncontroversial and has not met any resistance. We believe that the publication/protest concerns for group and party carriers are analogous to the concerns for property carriers, given the similar limitation on Commission regulation of these two groups. Therefore, we will expedite the application process for group and party carriers by eliminating the publication/protest process at this juncture.
8 See Footnote 7.
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