RULES AND REGULATIONS
Title 52--PUBLIC UTILITIES
PENNSYLVANIA PUBLIC UTILITY COMMISSION
[52 PA. CODE CHS. 29 AND 31]
[36 Pa.B. 4181]
[Saturday, August 5, 2006][L-00020157]
Passenger Service and Property and Household Goods Carriers The Pennsylvania Public Utility Commission, on August 11, 2005, adopted a final rulemaking order setting forth changes to regulations governing passenger service and property and household good carriers.
Executive Summary
The Commission is vested with jurisdiction over common carriers operating within this Commonwealth. 66 Pa.C.S. §§ 102, 501 and 1101--1103. In furtherance of this statutory charge, the Commission has promulgated regulations governing common carriers of passengers and property, including household goods, in Chapters 29 and 31. Due to changes in the appropriate levels of Commission oversight of these industries mandated by Federal preemption as well as the changing dynamics within the transportation market, the Commission has adopted modifications and additions to its current regulations.
Changes to regulations governing passenger service include implementation of procedural safeguards in the event of the death or incapacitation of a certificateholder, deletion of unduly burdensome accounting requirements, modification of accident reporting requirements, deletion of obsolete regulations governing smoking and passenger/driver conversation, modification of leasing regulations, implementation of a consumer information requirement for most carrier classes and the addition of driver regulations for vehicles with seating capacities of 15 passengers or less.
Changes to regulations governing property and household goods carriers include implementation of procedural safeguards in the event of the death or incapacitation of a certificateholder, modification of accident reporting requirements, modification of leasing regulations, modification of the ''Information for Shippers'' form provided by household goods carriers, implementation of a requirement that household goods carriers must prepare an Inventory and a Bill of Lading and implementation of a requirement that household carriers obtain criminal history records for all persons providing moving services within a dwelling.
Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on June 16, 2004, the Commission submitted a copy of the notice of proposed rulemaking, published at 34 Pa.B. 3258 (June 26, 2005), to the Independent Regulatory Review Commission (IRRC) and the Chairpersons of the House Committee on Consumer Affairs and the Senate Committee on Consumer Protection and Professional Licensure for review and comment.
Under section 5(c) of the Regulatory Review Act, IRRC and the 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 Department 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 July 5, 2006, 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 July 6, 2006, and approved the final-form rulemaking.
Public Meeting held
August 11, 2005Commissioners Present: Wendell F. Holland, Chairperson; James H. Cawley, Vice Chairperson; William R. Shane; Kim Pizzingrilli, statement follows; Terrance J. Fitzpatrick
Final Rulemaking Amending 52 Pa. Code
Chapters 29 and 31; Doc. No. L-00020157
Final Rulemaking Order By the Commission:
On September 25, 2002, we issued an Advance Notice of Proposed Rulemaking Order, soliciting comments concerning changes to the Commission's regulations governing motor carriers of passengers, property, and household goods. Chapters 29 and 31. The impetus for the Advance Notice was changes in the Commission's oversight of these industries mandated by federal preemption, (Federal Aviation Authorization Act of 1994 and the Transportation Equity Act for the 21st Century, P. L. 105--178), as well as changing dynamics within the transportation market. Following receipt of comments, we issued a Proposed Rulemaking Order on March 25, 2004. On June 1, 2004, the Attorney General approved the Proposed Regulations as to form and legality. Following approval, the Proposed Order was published in the Pennsylvania Bulletin on June 26, 2004. 34 Pa.B. 3258. Comments to the Proposed Order were filed by numerous passenger and household goods carriers,1 as well as the Independent Regulatory Review Commission (IRRC). Having reviewed the comments, we now offer the following changes to our regulations at Chapters 29 and 31.
Chapter 29
§ 29.11. Applicability.
We proposed adding contract carriers of passengers to this section. This change is consistent with the scope and content of the chapter. See § 29.111. There were no comments to the proposal. However, upon further review, we will delineate the reference in this provision as subchapter.
§ 29.31. Sale or transfer of certificates.
We proposed redrafting this section to make it more readily understandable. There were no comments to the proposal. Therefore, we will change this provision as proposed.
§ 29.32. Death or incapacitation of a certificateholder.
We proposed modifying this provision to delete the self executing termination language. Before canceling or allowing the abandonment of a certificate of public convenience, the Commission must consider whether cancellation or abandonment is in the public interest. See 66 Pa.C.S. §§ 501, 1102, 1103. The rights and obligations conferred by a certificate can be terminated only upon application for abandonment or complaint to cancel the certificate. We proposed modifying this section so that it is consistent with our statutory charge.
IRRC filed two comments on this proposal. First, IRRC questioned whether the terminology referencing a certificateholder being ''legally declared insane'' was proper. In response to this comment, we will revise the regulation to refer to an ''incapacitated'' person. See 20 Pa.C.S. § 5501.
IRRC also questions where the ''appropriate proceedings'' referenced in this section, and section 29.61, can be found. In response, we direct IRRC to §§ 5.21 to 5.31. The ''appropriate proceedings'' will be a complaint proceeding. However, critical to both changes is the notion that cancellation of a certificate may only occur if in the public interest, with notice and opportunity to be heard.
§ 29.33. Transfer of certificate without a hearing.
We proposed deleting this section. This section addresses the hearing requirement for certificate transfers. However, it is our position that this issue is adequately addressed at § 29.31. Further, § 29.33 is not accurate to the extent that it does not contain a complete recitation of circumstances under which a certificate may be transferred without hearing. There were no comments to the proposal. Therefore, we will change this provision as proposed.
§ 29.41. Accounts and records.
We proposed deleting the requirement that motor carriers of passengers maintain books in conformity with the Uniform System of Accounts found at 99 CFR 1206.2. Interstate carriers are no longer required to comply with the Uniform System of Accounts. We see no benefit in requiring intrastate carriers to comply with this accounting system. Rather, we will simply direct that intrastate passenger carriers follow generally accepted accounting principles for all accounting and reporting matters. We note that we will leave language contained in original subsection (c) intact. There were no comments to the proposal. Therefore, we will change this provision as proposed.
§ 29.44. Accident reports.
We proposed amending this provision to provide for telephonic notification to our Bureau of Transportation and Safety within 24 hours of an accident that results in the death of a person.2 Our Order also noted that carriers must provide a written report of the accident to the Commission within 30 days of the accident. This was an error. No written notification is required. Also, carriers must maintain copies of police reports for any reportable accidents for one year from the date of the accident. We believe that these modifications adequately protect the public while not overburdening the industry or our staff.
There were no comments opposing the proposal. Therefore, we will change this provision as proposed.
§ 29.61. Commencement of service.
We proposed revising this provision to eliminate the automatic termination of the certificate of public convenience in the event a carrier fails to commence service within 30 days of authorization. See § 29.32. IRRC filed comments to this proposal questioning where the ''appropriate proceeding'' referenced in the proposal could be found. We refer to our discussion of § 29.32. Having reviewed the comments, we will change this section as proposed.
§ 29.62. Interruptions of service.
We proposed amending this provision to change the reference from ''rule to show cause'' to ''complaint.'' This change is consistent with current practice. There were no comments to the proposal. Therefore, we will change this provision as proposed.
§ 29.73. Posting notice prohibiting conversation.
We proposed deleting this section. This change is consistent with current Federal regulations. See 49 CFR Part 392, subpart G. There were no comments to the proposal. Therefore, we will change this provision as proposed.
§ 29.81. Smoking limitations.
We proposed deleting this section since we do not believe that it is necessary. There were no comments to the proposal. Therefore, we will change this provision as proposed.
§ 29.101. Operation of leased equipment.
We proposed modifying the current regulation by requiring drivers be qualified under the new driver regulations (subchapter F, as follows), prohibiting carriers (with the exception of call or demand carriers) from leasing vehicles to drivers, updating some cross references, and eliminating the formal inspection reports and annual reports. The prohibition against leasing vehicles to drivers is consistent with the intent of this section to ensure that the certificated carrier maintains control over the service provided under its authority. The elimination of the inspection report does not relieve the carrier's obligation to inspect leased vehicles and to maintain a certificate of inspection. We believe that the inspection report does not enhance safety enforcement and is simply cumbersome. Further, elimination of the annual report is consistent with current Commission practice.
We have also eliminated various sections that no longer serve a useful purpose. Specifically, we have eliminated the section concerning receipts, since we believe that the lease itself suffices as adequate documentation for our purposes. Further, we have eliminated original subsection (g), concerning scheduled route and group and party service. These provisions are not relevant in the current regulatory environment. We note that these carriers must continue to comply with the remainder of our leasing requirements.
Several commentators suggested in filing preliminary comments to the Advance Notice of proposed Rulemaking, that we amend this section to include a provision insulating carriers from prosecution if they utilize lease drivers who have a suspended or inactive driver's license. We declined to adopt this suggestion, noting that it is a carrier's responsibility to ensure that all drivers operating under its authority are properly licensed. Pa. PUC v. Yellow Cab Company of Pittsburgh, Docket No. A-00049926C9803-C9812 (Order entered November 17, 1999). Commentators have again raised objection to requiring a carrier ensure all its drivers are properly licensed. We reject this comment, since we believe that it is ultimately the carrier's responsibility to ensure its drivers are licensed. This requirement is consistent with current Commission practice.
Subchapter C. Contract carriers and brokers.
We proposed deleting reference to ''brokers'' due to inapplicability. There were no comments to the proposal. Therefore, we will change this provision as proposed.
§ 29.111. Accounts, records and memoranda.
We proposed deleting references to §§ 29.43, 29.73, and 29.81 to be consistent with current and proposed regulations. Further, we are deleting the annual report filing requirement for contract carriers. There were no comments to the proposal. Therefore, we will change this provision as proposed.
Scheduled Route Service
§ 29.301. Conditions.
We proposed revising this section to include reference to subchapters E (Vehicle Equipment and Inspection) and F (Driver Requirements, to be discussed as follows). There were no comments to the proposal. Therefore, we will change this provision as proposed.
§ 29.303. Service standards and requirements.
This provision, concerning scheduled route carriers, is revised to ensure that particular schedule changes are provided to the Commission. One commentator suggested that the regulation be revised to allow more flexibility for the carrier. However, no suggested changes were provided. We decline to adopt the comment.
§ 29.306. Consumer information.
This provision was added in order to advise the public of the appropriate forum in which to address complaints over service. We believe that this requirement will have minimal cost to the carrier yet be a significant benefit to the public. IRRC's comments suggested it was the Commission's intent to provide various compliance options to all carrier groups. However, this was not the intent of the Commission. No changes were made to the language of the subsection from the proposed version of the regulation.
Call or Demand Service
§ 29.311. Conditions.
We proposed revising this section to include reference to subchapters E (Vehicle Equipment and Inspection) and F (Driver Requirements, to be discussed as follows). There were no comments to the proposal. Therefore, we will change this provision as proposed.
§ 29.313. Service standards and requirements.
We proposed amending this provision to include a requirement that log sheets be completed contemporaneously with a trip. This requirement ensures reporting accuracy. Further, we proposed that origin and destination points provided in log sheets include a street name with address, if available, or some identifiable landmark.
Comments to our proposals indicated that the Commission should provide a log sheet format. We decline to adopt this suggestion. Log sheet requirements are adequately delineated in our regulations. Carriers are free to develop their own forms, according to their business needs, that contain the required information.
Commentators also suggest that electronic tracking of required log sheet data should be permitted by regulation. This proposal does not conflict with our requirements, so long as all required information is retained electronically. Therefore, we will modify the proposed regulation to permit electronic record keeping.
Finally, commentators object to the contemporaneous maintenance of log sheets. We disagree with this comment. Drivers cannot be relied on to recreate, with accuracy, all charges, locations, and mileages at the end of a shift. The contemporaneous completion of log sheet requirement ensures accuracy.
§ 29.314. Vehicle and equipment requirements.
We proposed making meters mandatory for all call or demand carriers. We proposed this as a more efficient and accurate means of charging the public for service. Meters are available at a cost of approximately $225. Currently, approximately fifty per cent (50%) of call or demand carriers charge non-metered rates. We believed that the cost of installing the meters is not enormous and is certainly outweighed by the benefits associated therewith; i.e., charges that more accurately reflect the cost of transportation. Further, we proposed continuing to require all meters to be sealed for security and accuracy purposes. We proposed requiring carriers to provide an annual vehicle list to the Commission. This requirement will aid the Commission in its enforcement efforts. Further, we proposed requiring all taxicabs to have dome lights, which will aid the public in identifying taxicabs available for service. Finally, we proposed that no vehicles older than eight years be permitted to be utilized in taxi service. We believed this vehicle age limitation will ensure a current, reliable fleet. This requirement would be phased in over a one year period.
Commentators provided extensive feedback on these proposals. First, one commentator suggests that requiring meters for taxicabs, while affordable, is not economically viable for rural areas. Another commentator supported our meter proposal. We believe that our proposal is sound. No support was provided for the claim that meters are not economically viable for rural carriers. Certainly, a meter can be calibrated to reflect current zone rate charges. Therefore, we reject the comments regarding meters.
Further, we have modified the meter seal requirement to include a waiver provision for carriers utilizing tamper-proof meters.
One commentator also objected to the dome light requirement. In support of its objection, the commentator suggests that some customers do not like their employers or other persons to know they are taking a taxi. Additionally, a dome light may compromise security of the patron's home, since it would alert thieves that the patron is not home. While we are mindful of these concerns, we do not believe that they are sufficient to outweigh the purpose of the dome light requirement; i.e., to aid the public in identifying taxicabs available for service. However, in an effort to accommodate the particular needs of a given locale, we will permit a possible exemption from this requirement, upon Commission approval.
Finally, much commentary was provided on the vehicle age requirement. Generally, the commentary suggested that this requirement would unnecessarily increase costs, including insurance costs. Further, commentators suggested that a vehicle's age is not an accurate barometer of the vehicle's condition.
While we understand that age is not synonymous with condition, we are also cognizant that age is one of the most important factors to ensure a vehicle is fit for service. We have the difficult task of ensuring a safe and reliable taxi fleet for the public, with only limited tools available to meet this challenge. Age of fleet is a viable, efficient tool for this job.
However, we recognize that this requirement may cause undue hardship on select carriers. Therefore, we will allow a compromise. We will continue to impose an 8 year limit, subject to specific exemption. A carrier may request our enforcement personnel to inspect any vehicle more than 8 years old to determine if that vehicle is fit for service. While this necessitates a certain amount of discretion be exercised by our enforcement personnel, this is the necessary result when the clear cut 8 year litmus test is rejected.
§ 29.315. Alternative forms of compensation.
We proposed technical amendments to this section updating cross references. There were no comments to the proposal. Therefore, we will change this provision as proposed.
§ 29.316. Tariff requirements.
We proposed amending this section by phasing out zone-based fares in three years. There were no comments to the proposal. Therefore, we will change this provision as proposed.
§ 29.317. Accounting requirements for alternative forms of compensation for drivers.
We proposed technical amendments to this section as well as phasing out references to zone-based fares. Further, the report required by subsection (c) will only be provided to drivers upon request. We believe that this proposal minimizes unnecessary paperwork for the carrier while retaining necessary protections for the driver.
One commentator argued that our current accounting requirements are burdensome to the certificateholder and that this burden should be transferred to the lease driver. We disagree. It is ultimately the certificateholder's responsibility to maintain log sheets and ensure their accuracy. A public utility cannot shift this responsibility as a matter of convenience.
§ 29.318. Complaint decals.
We proposed that all taxicabs be required to post a complaint decal inside their vehicles. The decal will advise a customer of relevant complaint information. The decals shall be provided by the Commission. Only decals provided by the Commission may be posted.
One commentator suggested that the Commission ensure that the decal remains permanently affixed to the vehicle. We disagree. The Commission will provide the decals. It is the certificateholder's responsibility to inspect its vehicles regularly for compliance. If a decal needs to be replaced, the certificateholder can get another one from the Commission.
Limousine Service
§ 29.331. Conditions.
We proposed amending this provision to include references to Subchapters E and F. There were no comments to the proposal. Therefore, we will change this provision as proposed.
§ 29.332. Method of operation.
We proposed amending this provision to prohibit the direct solicitation of passengers by a limousine driver. Commentators suggest that this prohibition is ambiguous and does not go far enough to prevent limousine carriers from encroaching on call or demand service. We are cognizant of the necessity to clearly delineate the boundaries of the taxicab and limousine industries. Complaints are common, primarily limited to Pittsburgh and Philadelphia, that limousine carriers are unfairly and illegally siphoning business from the taxicab industry. Given the different regulatory standards each industry must meet, it is imperative that limousines not be permitted to operate as defacto taxicabs. It is our intent and desire to ensure the health of each industry in order to serve the public's transportation needs.
While we cannot guarantee that on any particular trip, a limousine carrier will not breach its regulatory boundaries, we believe that the proposed language helps to ensure a separation of the industries. However, we also recognize that there may be some ambiguity attached to the proposed language. Therefore, we have modified the proposed language to further delineate our intent.
§ 29.333. Vehicle and equipment requirements.
We proposed amending this provision to include a requirement that limousines be no more than eight years old. Further, we proposed requiring limousine operators to provide the Commission with a vehicle list annually.
Commentators opposed the 8 year limitation, citing similar reasons to comments at § 29.314. We agree that there is a need for some flexibility and have modified the final regulations accordingly.
§ 29.334. Tariff requirements.
We proposed amending this section to prohibit the use of meters. We believe that meters are unique to taxi service and should not be utilized in luxury limousine service. Further, we propose restricting limousines from basing tariffs on mileage. We believe that a mileage based rate is more akin to taxicab service. Limousine service is a luxury service, and should not be viewed as a substitute for taxicab service. The industries serve different transportation needs. A time based tariff is more consistent with the nature of limousine service.
Commentators generally agreed with our proposals. However, they argue that the regulations should also include a minimum initial time period. Further, commentators suggest that carriers be permitted to charge flat rates for select destinations.
We agree that setting a minimum initial time period is consistent with our intent. A limousine charging by the minute would be more akin to taxi service. Therefore, we adopt this comment and incorporate a 30 minute minimum initial charge. Additionally, we will also require minimum 30 minute increments for the same reasons justifying the minimum initial charge. Finally, we will not permit flat rate pricing. While we recognize the need for exact quotes in certain circumstances, we believe that a carrier will be able to provide that certainty within the tariff structure adopted. We note that this modifies our prior Order permitting flexible ratemaking. Investigation into Flexible Ratemaking for the Bus and Limousine Industries, Docket No. I-00960063 (Order entered October 16, 1997.).
§ 29.335. Trip sheet requirements.
We proposed amending this provision to include a requirement that the origin point be included on trip sheets. Further, we proposed deleting odometer recording requirements, as irrelevant under our proposed tariff changes. There were no comments to the proposal. Therefore, we will change this provision as proposed. We note that we have included a requirement that the trip sheet contain the certificate number of the carrier.
§ 29.336. Consumer information.
The Commission proposed mandating a consumer information initiative that would provide the consumer with relevant information regarding service complaints. We proposed offering limousine carriers three choices to comply with this initiative: (1) posting a Commission supplied complaint decal, (2) providing information on the service contract, or (3) providing information on the receipt for service. Having received no comments opposing the proposal, we will adopt it.
Airport Transfer Service
§ 29.341. Conditions.
We proposed amending this section to include reference to subchapters E and F. There were no comments to the proposal. Therefore, we will change this provision as proposed.
§ 29.344. Consumer information.
The Commission proposed mandating a consumer information initiative that would provide the consumer with relevant information regarding service complaints. We proposed offering airport transfer carriers two choices to comply with this initiative: (1) posting a Commission supplied complaint decal, or (2) providing information on the receipt for service. We believe this initiative will aid the public and enhance transportation service. While we received no comments opposing the proposal, upon further review, we have modified the initial proposal to afford the carrier greater latitude for compliance.
Other Services: Paratransit, Experimental
§ 29.351. Conditions.
We proposed amending this section to include reference to subchapters E and F. One commentator suggested that we delineate paratransit service as a stand-alone classification. We decline to adopt this suggestion. We believe that current regulations adequately define paratransit service.
§ 29.356. Consumer information.
The Commission proposed mandating a consumer information initiative that would provide the consumer with relevant information regarding service complaints. We proposed offering paratransit carriers two choices to comply with this initiative: (1) posting a Commission supplied complaint decal, or (2) providing information on the receipt for service. While we received no comments opposing the proposal, upon further review, we have modified the initial proposal to afford the carrier greater latitude for compliance.
Subchapter E. Vehicle Equipment and Inspection.
§ 29.401. Applicability
We proposed amending this provision to more clearly delineate its applicability to vehicles with seating capacities of 15 passengers or less, including the driver. Having received no comments opposing the proposal, we will adopt it.
§ 29.402. Vehicle equipment requirements.
We proposed amending this section to more clearly delineate applicability. See § 29.401.
We also proposed amending this section to include a requirement that advertising be limited to the roof of the vehicle. We believe this requirement will ensure unobstructed views for driver and passenger. Further, it will aid in enforcement since vehicle identification markings will not be obscured by advertisements.
One commentator opposed our proposal, arguing that exterior and interior advertising should not be restricted so long as it does not obstruct a driver's view or relevant vehicle/driver information. We disagree for the reasons previously stated. However, to the extent a carrier wishes to deviate from this requirement, we will permit a waiver upon petition.
§ 29.403. Requirements for passenger service operation.
We proposed amending subsection (1) of this provision to include a reference to removable seats which are currently common in vehicles. Further, we proposed the following additional vehicle requirements: operative air conditioning, exterior free of dents or gouges more than four inches in diameter, vehicles must have four matching wheel covers or the equivalent, and seats shall be secure and undamaged with no protruding springs or cushioning. Having received no comments opposing the proposal, we will adopt it. We note that we have also included a prohibition against objects protruding from the exterior of the vehicle.
§ 29.404. Unsafe operations forbidden.
We proposed amending this section to include a prohibition against operating a vehicle in violation of § 29.403. Having received no comments opposing the proposal, we will adopt it.
§ 29.406. Inspection by enforcement officers.
We proposed amending this provision to clarify and simplify the out-of-service procedures employed by the Commission. Having received no comments opposing the proposal, we will adopt it.
Subchapter F. Driver Regulations
We proposed the addition of driver regulations for drivers of vehicles with seating capacities of 15 passengers or less, including the driver. We will require all drivers have a current license and be at least 21 years of age. Further, we shall require carriers to obtain a driver history for each driver and update that history every 12 months. We will require carriers to obtain a criminal history record for all drivers and update same every two years. Finally, we will prohibit operation of vehicles by anyone under the influence of alcohol or a controlled substance. We believe these requirements will help to ensure the quality and safety of public utility service in Pennsylvania.
We further proposed additional driver standards for carriers operating vehicles with seating capacities of 9 to 15 passengers, including the driver. Recent amendments to federal regulations applicable to interstate carriers of this vehicle type are found at 49 CFR Part 390. We proposed adopting similar standards. Specifically, we proposed physical qualification and hours of service standards. We believe that the heightened scrutiny accorded drivers of these vehicles is warranted and in the public interest.
One Commentator suggested that since proposed Section 504, requires, inter alia, carriers to obtain a driver history report for its drivers, the carrier should not be responsible to ensure the status of a driver between required reporting periods. We decline to adopt this comment. As previously noted, it is the carrier's responsibility to ensure its drivers are properly licensed. While this may cause some difficulties, reasonable steps must be taken by carriers to ensure proper licensing.
Commentators also provided suggestions regarding the requirement that carriers obtain criminal history records for all drivers. There was no negative industry response to this proposal. In fact, the industry supported strengthening various portions of the proposal. However, IRRC commented that there is no statutory authority for a carrier to obtain criminal history records for its drivers. IRRC also commented that there is nothing in the Public Utility Code which authorizes the Commission to require that carriers or drivers obtain this information.
In response to IRRC's comments, we have reviewed the Criminal History Record Information Act (CHRIA) 18 Pa.C.S. §§ 9101--9183, and have determined that we are authorized to require carriers obtain criminal history records for their drivers. CHRIA specifically recognizes that prospective employers may require job applicants to submit a criminal history record, to be used for the purpose of deciding whether to hire the applicant. 18 Pa.C.S. § 9125. Felony and misdemeanor convictions may be considered by the employer only to the extent they relate to the applicant's suitability for employment. 18 Pa.C.S. § 9125. Therefore, a carrier could require a potential driver to submit a criminal history record as a condition of hire.
The Public Utility Commission is charged with overseeing common carrier service within Pennsylvania. It is the Commission's foremost responsibility to ensure that common carrier service is provided safely. 66 Pa.C.S. §§ 1103, 1501. In our judgment, the general statutory standard that a carrier be fit easily encompasses a regulatory requirement that a carrier obtain a criminal history record for its drivers in order to evaluate suitability for employment. The key way the Commission can provide the necessary security for the public is by requiring a criminal history record review for each driver.3 We will not compromise public safety by deleting this proposal. Therefore, we will require all passenger motor carriers obtain and review criminal history records for their drivers to ensure their suitability for employment.
IRRC also suggests that we define ''crime of moral turpitude,'' since it is ambiguous. We agree with this comment and have deleted this language.
Chapter 31
Our proposed revisions to this chapter were primarily aimed at provisions governing household goods carriers, §§ 31.121--31.130. Those proposed changes attempted to strike a continuing balance between the shipper and the carrier. We also proposed some general revisions governing both property and household goods carriers.
§ 31.4. Transfer of Certificates and Permits.
We proposed modifying this provision to delete the self executing termination language found in subsection (c). Having received no comments opposing the proposal, we will adopt it.
§ 31.11. Reports of Accidents and Damages.
We proposed amending this provision to provide for telephonic notification to our Bureau of Transportation and Safety within 24 hours of an accident that results in the death of a person. Further, carriers must maintain copies of police reports for any reportable accidents for one year from the date of the accident. Having received no comments opposing the proposal, we will adopt it.
§ 31.32. Equipment.
We proposed revising this section to simplify and clarify leasing requirements. Having received no comments opposing the proposal, we will adopt it.
§ 31.33. Identification of equipment.
The proposed changes included deleting excess language and replacing the requirement that identification markings be painted on the vehicle. Having received no comments opposing the proposal, we will adopt it.
§ 31.121. Information for Shippers.
Our proposed modifications to this section included requiring carriers to provide shippers with the ''Information for Shippers'' form at least 48 hours in advance of the move, to ensure that shippers receive meaningful notice. Further, we proposed requiring an Inventory be completed by the carrier and provided to the shipper, as well as a bill of lading. We proposed raising the minimum valuation limits to 60 cents per pound per article.4 We also proposed requiring carriers to use a Commission supplied form, which will be available on our web-site or upon request.
This form will include the Commission's contact information for complaints. We also proposed requiring carriers to retain an executed copy of the form for two years from the date of the move. We proposed replacing ''money order'' with ''cashier's check,'' due to the relative security of these instruments.
We received numerous comments to our proposals. First, commentators suggest that requiring carriers to provide the Information for Shippers form 48 hours prior to the move is too cumbersome and would impede the ability to accommodate last-minute shipment requests. We agree, and have provided a waiver option for the shipper.
Commentators also suggest that increasing the loss coverage from 30 cents per pound per article to 60 cents per pound per article would unnecessarily increase costs. We disagree. The proposed 60 cents coverage limit is consistent with coverage required for interstate shipments. 49 CFR § 375.203. Our research indicates that this increase in valuation coverage will have minimal effect on the cost of the move. If a carrier requires a rate increase to cover this increased cost, it may properly petition the Commission.
Commentators also question the appropriateness of requiring an inventory for shorter time-based moves. Commentators suggest the inventory requirement will have little benefit, yet significantly increase costs due to the increased labor involved. Commentators indicate that for longer moves, inventories are routinely prepared. We agree with the comments and have modified the proposed regulation to provide for shipper waiver of an inventory for hourly based moves.
We also have modified the language regarding liability of the carrier to reflect that a carrier is only liable for damage to goods to the extent required by law.
Finally, we have modified the proposal to include the signature of the shipper.
§ 31.122. Estimate of Charges.
We proposed delineating all contents required on an estimate of charges form. Further, we proposed deleting current regulation § 31.130, which is a sample ''Estimate of Charges'' form, as unnecessary. We also proposed that carriers retain the form for two years from the date of the move. Finally, we proposed moving the ''Notification of Charges'' section, since that section is distinct from ''Estimate of Charges.''
Commentators to these proposals, including IRRC, questioned when the Estimate must be provided to the shipper. In the proposal, we had indicated that the estimate must be provided ''prior to the move,'' which was consistent with past regulation. After review of the comments, we will require that the Estimate be provided 48 hours prior to the move, unless the shipper agrees, in writing, to a shorter period. Also, commentators requested that the Commission allow some variation on the lettering requirements, which we have done.
§ 31.123. Delivery when Charges Exceed Estimates.
We proposed replacing ''money order'' with ''cashier's check,'' due to increased security. Given that this change was reflected in the new Information for Shippers form, we did not believe that it was necessary to repeat it at this point, and deleted the sentence in the proposal. Commentators did not oppose this change.
§ 31.124. Report of Underestimates.
We proposed deleting the sample report form attached to the regulations. Further, we proposed carriers retain these reports for two years from the date of the move. Having received no comments opposing the proposal, we will adopt it.
§ 31.125. Obtaining Weight Tickets.
We proposed amending this section to eliminate the requirement for separate gross and tare weight tickets, since gross and tare weights are commonly included on the same weight ticket. Further, we proposed eliminating the requirement that copies of bills of lading utilizing constructive weight be furnished to the Commission. Finally, we proposed that carriers retain the tickets for two years from the date of the move. Having received no comments opposing the proposal, we will adopt it. We note that our original proposed changes appearing in the Annex were inconsistent with our intent. We have modified the Annex accordingly.
§ 31.127. Failure to Comply with Provisions.
We proposed updating this section with appropriate statutory references. Having received no comments opposing the proposal, we will adopt it.
§ 31.130. Estimated Cost of Services.
We proposed deleting this provision since an example form is unnecessary in light of the specifications established for an estimated cost of services provided at § 31.122. Having received no comments opposing the proposal, we will adopt it.
§ 31.131. Notification to Shipper of Charges.
We proposed moving the notification requirement currently found at § 31.122(1) to this location. This will reduce confusion and clarify that ''Notification of Charges'' is distinct from ''Estimate of Charges.'' Further, we proposed modifying the notification requirements by permitting notice by fax or e-mail. Having received no comments opposing the proposal, we will adopt it.
§ 31.132. Bill of Lading.
We proposed adding a new requirement that a household goods carrier prepare and provide to the shipper a bill of lading for the shipment. We believe that the bill of lading is currently used by carriers and should not be omitted from our regulations. The requirement is straightforward, places no undue burden on the carrier, and serves as a valuable consumer protection tool.
The only comments received on the proposal centered on the release from liability for damage provision. We have modified this provision to be consistent with our prior discussion at § 31.121.
§ 31.133. Inventory.
We proposed requiring a household goods carrier to prepare an inventory of the shipment. Commentators opposed this provision for hourly based moves. As discussed previously, we will permit shipper waiver of the Inventory requirement for hourly based moves.
§ 31.134. Criminal History.
We proposed requiring carriers to obtain criminal history records for all persons providing moving services within a dwelling. We proposed prohibiting carriers from employing individuals who had been convicted of a felony or a crime of moral turpitude. Further, carriers may not permit an individual who has been convicted of a felony or misdemeanor to provide moving services in a shipper's dwelling, where the conviction relates adversely to the individual's suitability for employment. These requirements are reflective of fundamental shipper expectations when engaging a licensed carrier.
Commentators offered both support and opposition to this proposal. Several commentators indicated that due to the high turnover rate and the use of temporary help in the moving industry, requiring background checks would be unduly burdensome. Conversely, other commentators supported the proposal, with the caveat that it was too vague in draft form. We will adopt our original proposal, with modifications. We reject deleting the criminal background check, as suggested by some commentators, since, as noted earlier, we refuse to compromise public safety. We have removed the reference to crimes of moral turpitude as suggested by IRRC's comments.
The attached Annex A, is permitted by sections 501, 1102, 1103, 1501, 1502, 1504, 1506, 1508, and Chapters 23 and 25 of the Public Utility Code. Accordingly, under section 501 of the Public Utility Code, 66 Pa.C.S. § 501, sections 201--205 of the act of July 31, 1968 (P. L. 769, No. 240), known as the Commonwealth Documents Law, and regulations promulgated thereunder at 1 Pa. Code §§ 7.1, 7.2 and 7.5, we amend the regulations in Chapters 29 and 31 to read as set forth in Annex A. Therefore,
It Is Ordered That:
1. The regulations of the Commission, 52 Pa. Code Chapters 29 and 31, are amended by:
a) Amending §§ 29.11, 29.31, 29.32, 29.41, 29.44, 29.61, 29.62, 29.101, 29.111, 29.301, 29.303, 29.311, 29.313--29.317, 29.331--29.335, 29.341, 29.351, 29.401--29.404, 29.406, 31.4, 31.11, 31.32, 31.33, 31.121--31.125 and 31.127; by
b) Adding §§ 29.306, 29.318, 29.344, 29.356, 29.501--29.509 and 31.131--31.134; and by
c) Deleting §§ 29.33, 29.73, 29.81, 29.336 and 31.130 to read as set forth in Annex A.
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. This final-form rulemaking shall become effective upon final publication in the Pennsylvania Bulletin.
7. The contact person is John Herzog, Assistant Counsel, Law Bureau, (717) 783-3714.
8. A copy of this order shall be served on commentators to the proposed rulemaking order.
JAMES J. MCNULTY,
Secretary(Editor's Note: For the text of the order of the Independent Regulatory Review Commission, relating to this document, see 36 Pa.B. 3919 (July 22, 2006).)
Fiscal Note: Fiscal Note 57-233 remains valid for the final adoption of the subject regulations.
Statement of Commissioner Kim Pizzingrilli
Final Rulemaking Amending 52 Pa. Code
Chapters 29 and 31; AUG-2005-L-0068*;
Doc. No. L-00020157Before the Commission for consideration is the Final Rulemaking Order which amends 52 Pa. Code, Chapters 29 and 31, pertaining to Motor Carriers of Passengers and Common Carriers of Property and Household Goods in Use.
This rulemaking process began with an Advanced Notice of Proposed Rulemaking in 2002. Since that time, the Commission has received and reviewed comments filed by numerous passenger and household goods carriers as well as the Independent Regulatory Review Commission.
The final regulations are the result of the input received from all affected parties. Many of the revisions were long overdue. The regulations eliminate obsolete and unnecessary reporting requirements; provide carriers with flexibility regarding our regulations; allow for electronic recordkeeping as well as enhance our enforcement efforts to ensure protection of the public.
I want to commend the Commission staff for recognizing and taking action on the need to update Chapters 29 and 31, as well as their diligence in working with all of the stakeholders to produce regulations that best serve the needs of the Commonwealth.
I believe that this rulemaking allows the Commission to uphold its mission to ensure the quality and safety of public utility service, while enabling the transportation industry to continue to grow and thrive.
KIM PIZZINGRILLI,
Commissioner
Annex A
TITLE 52. PUBLIC UTILITIES
PART I. PUBLIC UTILITY COMMISSION
Subpart B. CARRIERS OF PASSENGERS OR PROPERTY
CHAPTER 29. MOTOR CARRIERS OF PASSENGERS
Subchapter B. COMMON CARRIERS
PRELIMINARY PROVISIONS § 29.11. Applicability.
This subchapter applies to common carriers and is subject to amendment, change, modification or exception as the Commission may deem advisable, just and proper.
TRANSFER OF RIGHTS § 29.31. Sale or transfer of certificates.
The approval of the Commission is required for the sale or transfer of a certificate, except as otherwise provided in this chapter. The approval may be granted with or without hearing and after such reasonable notice as the Commission may direct.
§ 29.32. Death or incapacitation of a certificateholder.
Upon the death of a holder of a certificate, or upon an individual certificateholder being legally declared incapacitated, the rights conferred by the certificate shall continue with the legal representative of the deceased or incapacitated holder for 1 year. After the expiration of the 1 year period, appropriate proceedings shall be initiated to terminate the certificate, unless application has been made to transfer the rights to the heirs, guardian, trustees, legatees or others, in which case the rights shall continue with the legal representative until the application is granted or refused. If at least application is made by the legal representative 30 days prior to the end of a period of 1 year, the Commission may, at its discretion and for cause shown, permit the transfer of the rights to the executors, administrators, guardians, trustees or other legal representatives of the deceased or incapacitated holder for a period to be fixed by the Commission. Pertinent orders or decrees of the court having jurisdiction over the estate of the decedent or incapacitated person may be deemed cause for the granting of the petitions by the Commission.
§ 29.33. (Reserved).
ACCOUNTS, RECORDS AND REPORTS § 29.41. Accounts and records.
(a) Common carriers of passengers shall follow generally accepted accounting principles for all accounting and reporting matters.
(b) Amounts received as operating subsidies or payments for services rendered from a Federal, State or local governmental agency shall be included in the respective passenger revenue classifications corresponding to the operating authority under which the services were provided, and shall be included in the reporting company's assessment liability under 66 Pa.C.S. § 510 (relating to assessment for regulatory expenses upon public utilities).
§ 29.44. Accident reports.
(a) Accidents involving death of a person. Motor carriers of passengers, operating vehicles with seating capacities of 15 passengers or less, including the driver, shall telephonically notify the Bureau of Transportation and Safety of any accident resulting in the death of a person within 24 hours of the accident. Carriers shall maintain a copy of the police report for 1 year from the date of the accident.
(b) Other accidents. For all accidents resulting in the filing of a police report, a motor carrier shall maintain a copy of the police report for 1 year from the date of the accident.
CONTINUITY OF SERVICE § 29.61. Commencement of service.
A common carrier shall, within 30 days from the date of receipt of a certificate, begin operating and furnishing service. If it has not commenced operating and furnishing the authorized service within 30 days, appropriate proceedings shall be initiated to terminate the certificate unless, upon specific permission granted by the Commission, the time for commencement of service is extended.
§ 29.62. Interruptions of service.
An interruption of service for more than 48 hours shall be reported to the Commission with a statement of the cause of interruption and its probable duration. Suspension of service for 5 consecutive days without notice to the Commission will be deemed sufficient cause for revocation or cancellation of the rights of the carrier, except if the suspension is caused by strike or labor difficulties, riot, insurrection, war, government decrees or an act of God. An order of revocation will not issue until the carrier is given opportunity for a public hearing on a complaint as to why the rights should not be revoked and cancelled.
MARKINGS AND POSTING NOTICE § 29.73. (Reserved).
§ 29.81. (Reserved).
MISCELLANEOUS PROVISIONS § 29.101. Operation of leased equipment.
(a) General provisions. General provisions include the following:
(1) Common carriers. Common carriers shall operate vehicles in compliance with this title and of the laws of the Commonwealth.
(2) Drivers. When used in the authorized service of the lessee, leased vehicles shall be operated by drivers qualified under Subchapter F (relating to driver regulations) when operating vehicles with seating capacities of 15 or less, including the driver, or Chapter 37 (relating to safety code for transportation of property and passengers), when operating vehicles with seating capacities of 16 or more, including the driver.
(3) Insurance and registration. Leased vehicles shall be covered by insurance as provided by § 32.11 (relating to passenger carrier insurance) and conform with the requirements for registration of vehicles as set forth in 75 Pa.C.S. §§ 101--9910 (relating to the Vehicle Code).
(4) Capacity. The operation of leased vehicles may in no event be assumed to permit an increase in the number of vehicles or in the seating capacity of vehicles where so limited by the terms of the certificate.
(5) Control. Vehicles shall be owned by or leased by the certificateholder. Operation and service shall be under the direct control and supervision of the certificateholder. A common carrier of passengers may not lease a vehicle to a driver, except as provided in subsection (f), relating to call or demand service.
(b) Lease agreements. Lease agreements must conform with the following:
(1) Content. Leases of vehicles must be in writing, specifically set forth the terms of the lease including obligations assumed such as maintenance and fuel, compensation, and the duration of the lease, and be executed by the parties or their authorized agents or officers.
(2) Copies of lease and distribution. The following applies to copies and distribution of the lease:
(i) Preparation. Lease agreements shall be prepared in triplicate, the original to be retained by the certi- ficateholder in whose service the equipment is to be operated. The original shall be retained at the principal office of the certificateholder, one copy to be retained by the owner of the equipment, and one copy to be carried on the leased vehicle for the duration of the contract. The certificateholder shall retain leases for 2 years following their expiration date.
(ii) Certificates. In lieu of a copy of the lease, a certificate or rental form identifying the leased vehicle shall be carried on the leased vehicle certifying that the equipment is to be operated exclusively in the service of the certificateholder named therein as lessee, the names and addresses of the owner and lessee, the date of the lease, the location of the original lease retained by the certificateholder, and the exact expiration date of the lease. This certificate or rental form shall be certified as true and correct by the certificateholder or an authorized representative.
(c) Safety inspection. It is the duty of the certifi- cateholder, before taking possession of equipment, to inspect the equipment or to have the equipment inspected by a person who is competent and qualified to make an inspection as a representative of the carrier to insure that the equipment is in a safe condition to be operated on the highway. The person making the inspection shall certify the results thereof. The certification shall be retained by the certificateholder for at least 1 year. If the inspection discloses that the equipment is not in a safe condition to be operated on the highways, possession thereof may not be taken by the certificateholder.
(d) Registration of vehicles. When the Department of Transportation, at the request of the owner, designates the lessee certificateholder as the registrant of the vehicle and the name and address of the lessee are substituted for the address of the lessor, the Commission will approve the registration when the certificate is in good standing, but the approval is effective only for the period during which the lease remains in effect.
(e) Identification. If a removable device is used to identify the operating carrier as lessee, the device must be made of durable material securely affixed to the vehicle operated, throughout the duration of the lease. Upon relinquishing possession of the equipment, the certificateholder operating the leased vehicle under this subsection shall remove the legend or removable device displayed on the vehicle.
(f) Call or demand. The following applies to call or demand carriers operating leased equipment:
(1) A certificateholder may not lease, contract with or make an arrangement with an employee-driver under which the certificateholder is given custody, possession or use of a vehicle owned or leased by the employee-driver or his nominee. For the purpose of this paragraph, a nominee shall include the employee-driver, his spouse, children, parents or a trust for their benefit or an affiliated corporation, partnership or association.
(2) The holder of a call or demand certificate may lease vehicles to drivers for operation in the service of the certificateholder only under the following conditions:
(i) The leased vehicle shall be operated under the direct control and supervision of the certificateholder.
(ii) The driver-lessee of the vehicle and the certificateholder shall be required to keep and retain daily log sheets as prescribed by § 29.313(c) (relating to service standards and requirements).
(iii) The certificateholder shall be required to furnish and maintain adequate service to the public which shall be reasonably continuous and without unreasonable interruptions or delays.
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1 A complete list of commentators is available from the Commission's Secretary Bureau.
2 We limit applicability to carriers operating vehicles with seating capacities of 15 passengers or less, including the driver, since larger vehicles are governed by 52 Pa. Code § 37.204.
3 The Commission required criminal history records for all Philadelphia medallion taxicab drivers. 52 Pa. Code § 30.72. There is no specific statutory authorization for this requirement, beyond the requirement that a driver be ''fit.'' 66 Pa.C.S. § 2409.
4 We recognized that this proposal will necessitate a collateral proceeding to modify the existing rate structure.
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