RULES AND REGULATIONS
Title 52—PUBLIC UTILITIES
PHILADELPHIA
PARKING AUTHORITY
[ 52 PA. CODE CHS. 1001, 1003, 1005, 1011, 1013, 1015, 1017, 1019, 1021, 1025, 1027, 1029, 1051, 1053, 1055, 1057, 1059, 1061, 1063 AND 1065 ]
[ PRM-10-001 ]
Philadelphia Taxicab and Limousine Regulations
[41 Pa.B. 6499]
[Saturday, December 3, 2011]The Philadelphia Parking Authority on August 29, 2011 adopted a final rulemaking order which establishes a body of regulations applicable to Philadelphia taxicabs and limousine service providers.
Final Rulemaking Order—Philadelphia Taxicab and Limousine Regulations; Doc. No. PRM-10-001 (126-1)
Final Rulemaking Order The Authority is required to carry out the provisions of the act of July 16, 2004, (P. L. 758, No. 94), as amended, 53 Pa.C.S. §§ 5701 et seq., (the ''act'') relating to the regulation of taxicab and limousine service providers in the City of Philadelphia. Pursuant to this obligation, the Authority issued proposed regulations at this docket number on November 23, 2010.1 The initial public comment period for this rulemaking proceeding concluded on February 14, 2011. The Authority has completed its review of the comments and now issues final-form regulations. These final-form regulations will be effective upon publication in the Pennsylvania Bulletin.
Background
Pursuant to Section 23 of the Act, the Authority initiated regulatory oversight of taxicab and limousine service providers in Philadelphia in April 2005. That regulatory oversight was guided by regulations promulgated by the Authority and made effective in April 2005. Because the Authority was a local agency its taxicab and limousine regulations were implemented without publication or review in the form required by the act of June 25, 1982 (P. L. 633, No. 181), known as the Regulatory Review Act, and Sections 201 through 208 of the act of July 31, 1968 (P. L. 769, No 240), referred to as the Commonwealth Documents Law, although the regulations were subject to public comment and Sunshine Act2 review.
In 2007, the Pennsylvania Commonwealth Court determined that the Authority was a local agency for purposes of regulating taxicab and limousine services in Philadelphia. However, in February of 2009, the Pennsylvania Supreme Court reversed the Commonwealth Court and determined that the Authority was a Commonwealth agency for purposes of regulating taxicab and limousine services in Philadelphia.3 In April 2010, the Commonwealth Court determined that the Authority's local taxicab and limousine regulations of April 2005 were invalid because they were not promulgated in accordance with the Commonwealth Documents Law.4 The Commonwealth Court's decision is being reviewed by the Pennsylvania Supreme Court,5 while the current locally promulgated regulations of April 2005 remain in effect.6
The Authority moves to promulgate the final-form regulations found at Annex A7 now because the act does not permit the Authority to implement regulations through a piecemeal ''temporary'' regulation process. The Authority is constrained to have complying regulations in place in the event the Pennsylvania Supreme Court determines that the Authority was required to adhere to the requirements of the Commonwealth Documents Law in 2005. Rules and regulations are needed to fully implement provisions of the act8 and to provide certainty to the general public and the regulated industries. The lack of rules and regulations would create a tremendous amount of uncertainty as to what rules, rates and procedures would apply to taxicab and limousine service in Philadelphia.
Indeed, because of pending appeals, several taxicab and limousine companies have already refused to submit their vehicles for inspection by the Authority, have begun to provide service with drivers that have not been certified by the Authority, and have refused to pay annual fees to the Authority as required by our Fee Schedule, which is adopted each year only after review by the Legislature.9 The enforcement actions associated with these violations unnecessarily tax the Authority's resources. More importantly, the public health, safety and welfare are endangered through the use of uninspected vehicles and uncertified drivers.
Consistent with the Authority's proposed regulations, the final-form regulations found at Annex A have been drafted to be placed in Part II of Title 52 of the Pennsylvania Code. Part I of that title relates to rules and regulations of the Pennsylvania Public Utility Commission (the ''PUC''). The final-form regulations are drawn primarily from the Authority's locally promulgated regulations, which have been in place in Philadelphia since 2005.10 That foundation will further enable the regulated industries to continue to operate their businesses and serve their customers in the same way on the day after the final-form rulemaking becomes effective as they have for the past 8 fiscal years. We have also based many of the provisions of the final-form rulemaking on long standing regulations of the PUC, as we specifically address below.
Like the proposed regulations, the Authority's final-form regulations are organized as follows:
Subpart A. General Provisions.
Subpart B. Taxicabs.
Subpart C. Limousines.
The Authority has divided its final-form regulations as provided above in order to assist regulated parties with their search for sections applicable to their specific area of service. In choosing this format we have attempted to make our regulations user-friendly. Subpart A contains regulations related to practice and procedure before the Authority. Several of those provisions adopt the procedures of the General Rules of Administrative Practice and Procedure, 1 Pa. Code Part II, (''GRAPP''), which is applicable to Commonwealth agencies.
Subpart A will present in a very similar fashion to the PUC's Subpart A ''General Provisions,''11 which also contains three subparts with titles identical to those used in this final-form regulation. Indeed, many of the sections of the Authority's Subpart A are identical to those of the PUC and when different will generally appear in the same order, which will make it easier for readers to compare and contrast the regulations when necessary. While the Philadelphia taxicab and limousine industry has not adhered to the PUC's regulations for 8 fiscal years, the similarities between the final-form regulations will be familiar to those who did provide service in Philadelphia under the PUC's jurisdiction, as well as those who are certificated by the PUC to provide service in other areas of the Commonwealth.
We developed our Subpart A in order to maintain the practices and procedures applicable to the taxicab and limousine industry in Philadelphia since 2005. The final-form regulations are intended to support the development of a clean, safe, reliable and well-regulated taxicab and limousine industry. They are also intended to be clear, feasible and reasonable. To this end, the final-form regulations have adopted the majority of the comments of the Independent Regulatory Review Commission (''IRRC'') and certain members of the regulated community. In response to IRRC's Comment No. 8, we have specifically identified comments of lawmakers in the sections of the regulations that were the subject of comment. We have opted to defer more significant alterations to our current local practices and procedures until such time as all interested parties can focus on those specific issues, as opposed to this large final-form rulemaking. At this time, it is not desirable or feasible to drastically alter the regulatory status quo. Nor is it desirable or responsible to establish lesser standards of compliance for the taxicab and limousine industry, particularly in light of the significant gains made over the past several years. The riding public deserves world-class taxicab and limousine service.
Subparts B and C will divide most of the Authority's regulations between either taxicab or limousine operations. We believe this format will make it easier for regulated parties to find sections directly applicable to their specific operations, without need to read through those applicable to a completely different type of service. While our current local regulations interweave taxicab and limousine requirements in the same sections, this rulemaking will separate those subjects. We believe that separation of the rules and regulations for taxicabs and limousines will make the applicable regulations easier to find, saving regulated parties time and affording a better opportunity to remain in compliance.
The Authority commenced this rulemaking by adopting a proposed rulemaking order at its Public Meeting of November 22, 2010. It issued the proposed rulemaking order on November 23, 2010. The proposed regulations were published in the Pennsylvania Bulletin on January 15, 2011.12 Comments to the proposed regulations were submitted on or before February 14, 2011, by 20 members of the regulated industries, four Members of the Pennsylvania House of Representatives and IRRC. IRRC submitted its comments on March 16, 2011.13 All comments are available on IRRC's web site.14
Upon the conclusion of the comment period, the Authority requested that every commentator attend a one-on-one meeting with the Director of the Authority's Taxicab and Limousine Division and his staff to review the comments and suggested changes to the proposed regulations. We are happy to report that most commentators accepted that invitation and we are very pleased with the results of that exchange of information. As referenced in footnote No. 7 above, the Authority withdrew the final-form regulations it adopted on July 21, 2011 from consideration by IRRC and the standing committees. In so doing, we treated the July 21, 2011 final-form regulations as a form of advanced notice of final rulemaking and requested that interested parties submit comments, concerns or questions; a process recommended by IRRC in its Comment No. 7 to the proposed regulations.
Several commentators submitted additional comments and questions to the Authority. We were also able to meet or consult with several parties who submitted comments to the regulations posted on July 21, 2011. Those comments and discussions were very helpful in addressing additional concerns of many members of the regulated community. Many of the comments we received did not express concern with the final-form regulations as much as with the Authority's proposed penalty schedule. We have advised those who have expressed concerns about the form or substance of that proposed penalty schedule that we anticipate significant changes to that document as public comment is received and public hearings are conducted. We believe these final-form regulations represent as close to a consensus as we can responsibly reach with the regulated community.
We will continue to maintain open lines of communication with the regulated industries, as we have since 2005. We look forward to their input in regard to future rulemakings, in which we will more specifically address the promulgation of some of the regulations removed from this final-form rulemaking in order to more narrowly tailor those regulations and address fiscal impact concerns.
Affected Parties.
Because this rulemaking will establish all of the regulations related to taxicab and limousine operations within Philadelphia, every party subject to or referenced in the Act will be affected. The current legal dispute referenced above regarding the manner in which the Authority must promulgate taxicab and limousines regulations has created a certain level of uncertainty among regulated parties in Philadelphia. The implementation of this final-form rulemaking will restore certainty and ensure that the regulatory status quo will continue in Philadelphia. That certainty will permit regulated parties to make plans with full knowledge as to what rules will apply to their respective service industry in the future. As a continuation of the regulatory status quo, we do not anticipate any adverse effects on prices of goods and services, productivity or competition. Likewise, the public will experience the positive economic impact referenced by the Legislature in section 5701.1(2) of the act that will result from the continued improvement to the taxicab and limousine industries in Philadelphia.
Fiscal Impact.
The fiscal impact of the proposed regulations, particularly the potential for increased costs to the regulated industries, generated several comments from Members of the Legislature, including Representative W. Curtis Thomas, Democratic Chairperson of the House Urban Affairs Committee, from IRRC, in its Comment No. 4, and from several regulated parties. While neither fees nor a schedule of penalties were established in the proposed rulemaking (nor the final-form rulemaking), costs associated with changes to several requirements of taxicab operators, particularly the condition of vehicles and insurance levels, generated several negative comments and assertions of significant cost increases.
In IRRC its Comment No. 2, IRRC indicates that the Authority's reliance on its ''invalidated'' locally promulgated regulations for a baseline from which to determine the fiscal impact or cost of the proposed (and now final-form) regulations as required by the Regulatory Review Act, was misplaced. See 71 P. S. 745.5b. We respectfully disagree with IRRC. The Authority's locally promulgated taxicab and limousine regulations have been valid in Philadelphia since 2005. Those regulations were valid on the day that the proposed regulations were submitted to IRRC and are valid as of the day of this final-form rulemaking by virtue of the Authority's appeal of the Commonwealth Court decision in Germantown Cab as referenced above.15 We continue to assert in our appeal to the Supreme Court that our locally promulgated regulations should be deemed valid.16
However, even if those local regulations were deemed invalid, we cannot ignore the fact that the taxicab and limousine industries in Philadelphia are actually following them, or defending enforcement actions filed by the Authority for violations of those regulations. Therefore, the real economic cost or fiscal impact upon the regulated industries will be the cost difference between adhering to the Authority's current local regulations and the final-form regulations. We know of no other reasonable way to determine economic impact except to compare those current actual costs with the projected costs of the final-form rulemaking.
Commonwealth. The Authority does not anticipate any increase in regulatory demands associated with these regulations because the regulatory framework created by this final-form rulemaking will be nearly identical to that in place in Philadelphia since 2005. Therefore, the Authority does not anticipate that it will incur cost increases as a result of this final-form rulemaking.
Political subdivisions. This final-form rulemaking will not increase costs to any local political subdivision, although, we believe the return of regulatory stability and continued improvement to taxicab and limousine service will produce the benefits for the City of Philadelphia and the surrounding region directed by section 5701.1(2) of the act.
Private sector. The Authority's goal in advancing this final-form rulemaking is to implement regulations that maintain the regulatory status quo in Philadelphia, while complying with the form and content obligations of a Commonwealth agency. We seek to create as seamless a transition as possible between the current locally promulgated regulations and this final-form rulemaking for taxicab and limousine operators, drivers, customers and all other affected persons. While requirements for publication in the Pennsylvania Code and the need to adopt or supersede the many provisions of GRAPP necessitated a change to the arrangement and style of these final-form regulations, we have incorporated those procedures and the terminology applicable to ''Commonwealth agencies'' into the current regulatory status quo in a manner intended to eliminate any substantive impact in terms of the day-to-day operations of the Philadelphia taxicab and limousine industry.
We have carefully reviewed the comments and have made numerous changes requested in those comments or in our meetings with regulated parties over the past several months. By targeting the proposed regulations that created an actual or perceived increase in costs to the regulated community as suggested by the commentators, we have eliminated those costs and any increase in the economic or fiscal impact of the final-form regulation. We are concerned that the focus on the cost of the sections of the proposed regulations that required service improvements may interfere with the prompt adoption of this basic framework of regulations needed presently in Philadelphia.
Therefore, upon review of the comments related to economic or fiscal impact, including IRRC's Comment No. 4, we have deleted or significantly modified the sections of the proposed rulemaking that produced those concerns. We do not necessarily agree with the comments related to fiscal impact and believe that the Legislative intent of the act would be advanced by pressing for the standards provided in the proposed regulations. However, we also recognize the regulatory review process must consider economic costs and fiscal impact in a very particular way and that changes to the status quo in Philadelphia will require a more enhanced review of those costs than can be reasonably addressed in this broad rulemaking.
The precise changes are noted in our responses below to each specific section of the final-form rulemaking; however, by way of example, the following requirements that were included in the proposed rulemaking have been deleted in this final-form rulemaking:
• The sunset provision applicable to existing waivers from current regulations in Philadelphia. (§ 1001.1(c)).
• Prohibition of use of legal interns from participation in administrative proceedings (§ 1001.22(c)).
• Restrictions on use of powers of attorney (§ 1001.28).
• The requirement to obtain a Philadelphia Business privilege license (§ 1011.7(d)).
• Requirement to use a fire suppression systems in document storage rooms (§ 1011.11(c)).
• The limitation of the number of taxicabs a partial-rights certificate holder may operate (§ 1015.3).
• New taxicabs must be less than 1 year old when first admitted to service (§ 1017.4).
• New taxicabs must have less than 15,000 miles on the odometer when first admitted to service (§ 1017.4).
• Taxicabs may not be older than 5 years (§ 1017.4).
• Taxicabs may not be operated with more than 200,000 miles on the odometer (§ 1017.4).
• Requirement that partial-rights taxicabs use a certified dispatcher (§ 1017.5(b)(2)).
• Medallion owners must inspect their own taxicabs daily (§ 1017.5(f)).
• Requirement that partial-rights taxicab companies use meters that comply with city-wide use standards (§ 1017.24(e)).
• Capping of the aggregate number of taxicab drivers (§ 1021.3).
• Increases to taxicab automobile insurance levels (§ 1025.3).
• Increases to broker insurance levels (§ 1029.11).
• Increases to limousine automobile insurance levels (§ 1065.1(b)(2)).
Averments that the proposed regulations would increase costs upon regulated parties were almost universally based on one or more of the above referenced regulations. And we have made many more concessions in order to reach consensus, as set forth below.
In its Comment No. 2, IRRC specifically cited one commentator who opined that compliance with the proposed rulemaking would cost taxicab drivers and owners approximately $22 million dollars. While we do not agree with several of those cost calculations, we note that the primary causes for most of the cost increases averred by the commentator related to the heightened taxicab age and mileage standards, the overall limitations on the number of certificated taxicab drivers, the increase to the minimum automobile insurance levels in place now in Philadelphia, and a concern that standing waivers from specific regulatory compliance issues would be lost. Each of those issues has been addressed in the final-form regulation in such a way as to eliminate the source of the alleged cost increases. IRRC also generally cited a commentator's references to impoundment procedures, attendance at vehicle inspections and ''paperwork.'' While each of these issues is addressed in the relevant section of the final-form regulations, none of them represents a change between current practices and prospective practices (or costs) under the final-form regulations. The impoundment procedures are provided for in sections 5714(g) and 5741(f) of the act. The final-form regulations that deal with impoundment procedures (§§ 1017.52 and 1055.31) create options through which a regulated party may reclaim possession of impounded vehicles prior to a final determination of the underlying violation. These procedures permit the early and prompt release of impounded property and have been used in Philadelphia since 2005; therefore, we believe an increase in costs to the regulated industries would result if we deleted those provisions.
General Public. This final-form rulemaking will not have a fiscal impact on the general public.
Paperwork Requirements.
This final-form rulemaking will not affect the paperwork generated by the Authority or the regulated communities. The final-form rulemaking will continue the status quo of filing requirements in Philadelphia with minor modifications that we do not believe will increase filing times or costs. In fact, significant improvements have been made in terms of developing universal applications and the posting of all forms on our web site. The Authority's local application, renewal and waiver procedures have been developed through a combination of regulations, orders and internal procedures, which will now be clearly and reliably presented in these final-form regulations. We have also received comments requesting electronic filing capabilities, which will be pursued in the coming fiscal year as our budget permits. We agree that continued use of technology to reduce time and costs related to filing documents will inure to the benefit of both the regulated industries and the Authority.
Effective Date.
The final-form rulemaking will become effective upon publication in the Pennsylvania Bulletin. This timetable for implementation is reasonable because this final-form rulemaking is a continuation of the regulatory status quo.
Discussion
The Authority has reviewed the comments filed at each stage of this proceeding. Responses to those comments are set forth below. Pursuant to IRRC's request in Comment No. 1 to the proposed regulations a description of the language used in each section even though not subject to comment is also set forth below.
Subpart A. General provisions
Chapter 1001. Rules of administrative practice and procedure
Subchapter A. General provisions § 1001.1. Purpose.
Section 1001.1 notes the reason for the regulations, which seek to codify a new body of regulations for publication in the Pennsylvania Code. IRRC questioned the need for this section, generally. In reviewing the form of regulations promulgated by other agencies subject to IRRC's review, the Authority observed the language used in this section is very common and already exists in the Pennsylvania Code. See 58 Pa. Code § 401a.1. This section sets out the purpose of this rulemaking and the legislative basis for its promulgation.
While a commentator expressed concern that this subpart is challenging to read, it uses language identical or very similar to the General Rules of Administrative Practice and Procedure, 1 Pa. Code Part II, (''GRAPP'') and the regulations of most other Commonwealth agencies promulgated to supplement or supersede individual sections of GRAPP. See 1 Pa. Code § 31.1. This subpart has been worded as clearly as possible and in a manner consistent with language used by other state agencies.
(b). Subsection (b) was drafted and placed in the opening provision of this rulemaking in order to provide assurance to those parties currently providing taxicab and limousine related service in Philadelphia through Authority issued rights that those rights will continue under the new regulations. Several commentators have questioned the continued viability of their current waivers from requirements of the Authority's current regulations. Those waivers will continue under these regulations.
We believe that waivers in place at the time these final-form regulations will become effective will remain necessary because the subjects of the waivers are replicated in these regulations. For example, one regulated party holds a waiver to provide limousine service while using a meter. Because the prohibition from the use of a meter while providing limousine service has been continued in these regulations in § 1063.2, the regulated party will continue to need that waiver to provide that metered limousine service. This section clarifies that these waivers will remain effective.
IRRC questioned the meaning of the term ''rights'' in this subsection and the basis for not including that term in the definition section of this subpart, although the term is defined in proposed § 1011.2. The term ''rights'' has the same meaning throughout the regulations. The Authority agrees with IRRC's recommendation to include the definition of this term in this subpart and that addition has been made to § 1001.10. This subsection has also been edited to delete a reference to subsection (c), which has been deleted.
(c). Subsection (c) has been deleted. This subsection caused waivers granted by order of the Authority pursuant to the Authority's current locally promulgated regulations to expire at a certain point in time. IRRC and other commentators questioned the meaning of the term ''waiver'' and the potential impact of this provision on rights not granted through the petition for waiver process. We incorporate our response to comments to § 1005.23. While the Authority believes that this subsection was clear as to its intended purpose, we also believe that subsection (b) will adequately address the continuation of those waivers. And the deletion of this expiration requirement will eliminate any potential costs that may have been associated with the pursuit of a new waiver.
§ 1001.2. Scope of subpart and severability.
(a). Subsection (a) provides that Subpart A of this rulemaking governs practice and procedure before the Authority. This subsection also notes that it acts as a supplement to both 2 Pa.C.S. (relating to administrative law and procedure) and GRAPP. The language used by the Authority in this subsection is similar to the language used by the Pennsylvania Public Utility Commission (the ''PUC'') at 52 Pa. Code § 1.1 and is identical to the language used by the Pennsylvania Gaming Control Board at 58 Pa. Code § 491a.1.
The Authority's submission of the proposed regulations was its first act of participation in the rulemaking process applicable to Commonwealth agencies, including the Commonwealth Documents Law, 45 P. S. § 1102 et seq., the Commonwealth Attorneys Act, 71 P. S. § 732-204(b), and the Regulatory Review Act, 71 P. S. §§ 745.1—745.15. In regard to form and content of commonly employed regulatory language, such as that used in subsection (a), the Authority reviewed language that had already been subject to comment by the public, standing committees of the Legislature and IRRC. In several instances throughout Subpart A, language employed by the Authority is identical or very similar to language already published in the Pennsylvania Code and in use by other Commonwealth agencies subject to the GRAPP.
IRRC generally cited subsection (a) in reference to a general concern that certain provisions of this subpart seem inconsistent with the requirement of Commonwealth agencies to note a supersession or supplementation of GRAPP. We agree with IRRC's comment. In order to eliminate any confusion that may be created by subsection (a), a new subsection (c) has been added to note the supersession of subsection (a) as it may be interpreted to apply to 1 Pa. Code § 31.1.
Another commentator questioned the use of the term ''supplement'' in subsection (a) and commented that similar language used by the PUC at 52 Pa. Code § 1.1 uses the term ''supersede'' as to GRAPP. We have opted to adopt several provisions of GRAPP; therefore, this subpart does not supersede every section of GRAPP.
IRRC also noted several other provisions of Subpart A that should have noted that the Authority's language superseded GRAPP, but did not. We agree with IRRC's comment and the final form regulation for each of the suggested sections has been changed to specifically note supersession. Those sections are:
• § 1001.4(b).
• § 1001.26(b).
• § 1001.27(c).
• § 1001.32(c).
• § 1001.91(b).
• § 1005.71(f).
• § 1005.149(c).
• § 1005.187(b).
(b). Subsection (b) is a standard severability clause. IRRC commented that the subsection is long and requested clarification for its need. The language of subsection (b) is taken entirely from 2 Pa.C.S. § 1925 (relating to Constitutional construction of statutes), but for the reference to regulations as opposed to statutes. Because this is a commonly employed term in statutes, the Authority believes that this provision will not create confusion among members of the public and will provide the Authority, as well as those subject to this rulemaking, with some assurance that this regulatory structure will not be disrupted due to the potential invalidation of a single regulation.
§ 1001.3. Liberal construction.
Section 1001.3 provides several general guidance provisions applicable to the implementation of this rule making. This section is substantially similar to the PUC's 52 Pa. Code § 1.2 (relating to liberal construction).
(a). IRRC specifically requested clarification of subsection (a) as it may relate to a party's request for a continuance of a filing deadline for efficiency purposes. In reviewing this language the Authority recognizes, as one commentator noted, that subsection (a) substituted the word ''efficient'' in place of the word ''inexpensive'' as used in the PUC's regulation. It was not the intent of the Authority to create confusion through the substitution of those terms. That inconsistency has been eliminated in the final-form regulation. The elimination of the term ''efficient'' also addressed the gravamen of IRRC's question about the ''efficiency'' of waiving filing deadlines. A commentator also seems to have expressed a concern that this provision will permit the Authority to deny ''procedural'' due process rights. Subsection (a) cannot reasonably be read to reduce or eliminate a party's access to procedural due process. If a party believes that a decision of the Authority removed a procedural due process right, this rulemaking provides a right of recourse from a review of staff decisions through § 1005.24 and a review of decisions of presiding officers § 1005.211. Of course the courts also have jurisdiction to review issues of this nature.
§ 1001.4. Information and special instructions.
Section 1001.4 provides instructions for obtaining information on the procedures and instructions for special instances related to the Authority's regulations. There were no comments to this section, except as referenced above as to the supersession of this section.
§ 1001.5. Office of the Clerk.
Section 1001.5 provides information related to the duties and activities of the Clerk as well as the procedure for obtaining information related to practice and procedure for filing requests.
§ 1001.6. Filing generally.
Section 1001.6 provides basic guidelines related to the filing of documents with the Authority, including the use of identifying numbers, such as a docket number, the name of the document and the name of the filing party. Documents that fail to meet these standards may be rejected for filing by the Authority as long as an explanation of the rejection is provided.
(d). Subsection (d) permits the Authority to require the filing party to remove information from a filed document that is generally deemed to be inappropriate. IRRC commented that the use of the term ''otherwise inappropriate comments'' was vague. Another commentator questioned the propriety of this language generally. We agree with the comments and have deleted that language of subsection (d) and replaced it with the language used by the PUC to address the same subject at 52 Pa.C.S. § 1.4. Just as with the PUC or any other agency, we believe the Authority may appropriately direct the removal of the type of language or assertions referenced in this section.
§ 1001.7. Amendment to rules.
Section 1001.7 provides information on the procedure for requesting a general and permanent change to the General Provisions in this subpart.
§ 1001.8. Authority office hours and address.
Section 1001.8 provides general guidance on the office of the Authority, including office hours and web site information. IRRC commented on the vagueness of the term ''certain offices'' used in the second sentence of this section. We agree with IRRC's comment and have deleted that sentence because it may easily cause confusion and is not necessary. One commentator suggested that the Authority closes its offices ''in the middle of the day to the public for lunch.'' and requested clarification of the Authority's hours of operation. Barring staffing emergencies, the Authority will not close portions of its offices otherwise open to the public simply because staff has gone to lunch.
§ 1001.9. Sessions of the Authority.
Section 1001.9 provides general information about the Authority's Board meetings. IRRC and other commentators questioned the provision in this section directing interested parties to the Authority's General Counsel for information about Board meetings, how such requests could be made, if the Authority advertises the Board meeting on its web site and if the Authority is subject to Pennsylvania's Sunshine Act, 65 Pa.C.S. § 701 et seq. (''Sunshine Act''). IRRC requested that clarifications be made in the final-form regulation. The Authority's Board meetings are subject to the Sunshine Act and meeting notices are advertised and posted as required by that law and the Authority will continue to adhere to those requirements in relation to the advertisement or meetings and the manner in which the meetings are conducted. The Authority's meeting schedule will also be published on its web site. Therefore, this section has been amended by deleting reference to the General Counsel and by listing the Authority's web site address.
§ 1001.10. Definitions.
(Editor's Note: The Legislative Reference Bureau suggested and IRRC agreed that definitions used throughout the entire subpart should only be included in § 1001.10. Duplicate definitions in §§ 1011.2 and 1051.2 have been deleted from this final-form rulemaking.)
This section provides several definitions important to the interpretation of the final-form regulations. IRRC commented that the definition sections of the regulation's three subparts should be reviewed for consistency; ease of reading and to make certain that the defined terms are actually used in the rulemaking. While some sections or chapters include specific definitions related precisely to that section or chapter, the definition sections of the three subparts of this rulemaking (§§ 1001.10, 1011.2 and 1051.2) were drafted to include definitions contained in the relevant subpart, even if defined in an earlier subpart. In order to address this comment, we have reviewed and amended each of those three definition sections in such a manner that every definition will be repeated if used in the relevant subpart.
We agree with IRRC's comment that most readers of the regulations will find it easier to search for and read definitions located in the same subpart, even if it is necessary to repeat definitions. Therefore, each of the definition sections (§§ 1001.10, 1011.2 and 1051.2) will contain several additions and changes. This constituted a significant amount of editing.
Terms defined in § 1001.10 that will now identically appear in §§ 1011.2 and 1051.2 in order to address IRRC's comment will be as follows:
• Act.
• Adjudication.
• Applicant.
• Approved, approval or approve.
• Authority.
• Authorized agent.
• Board.
• Certificate.
• Certificate holder.
• City of Philadelphia or Philadelphia.
• Clerk.
• Compensation.
• Director.
• Electronic mail or email.
• Executive Director.
• Ex parte communication.
• Fiscal year.
• Formal complaint.
• Individual.
• PUC.
• Party.
• Person.
• Petitioners.
• Staff.
• TLD.
• TLD Headquarters.
• Verification.
Terms defined in § 1001.10 that will now identically appear in § 1011.2 in order to address IRRC's comment will be as follows:
• Enforcement proceeding.
• Presiding officer.
• Recommended decision.
• Trial counsel.
• Verification.
Terms defined in §§ 1001.10 and 1011.2 that will now identically appear in § 1051.2 in order to address IRRC's comment will be as follows:
• Criminal history report.
Terms defined in § 1011.2 that will now identically appear in § 1001.10 in order to address IRRC's comment will be as follows:
• Arrest.
• Call or demand service.
• Common carrier.
• Dispatcher.
• Enforcement Department.
• Exclusive service.
• Manager of Administration.
• Manager of Enforcement.
• Regulated person.
• Rights.
• Taxicab.
• Taxicab certificate.
• Taxicab driver.
• Taxicab driver's certificate.
• Taxicab service.
The term ''regulated person'' now also includes the term ''regulated party'' in each definitional section to address the alternating use of those common terms in the final form regulations. The term ''regulated person'' has also been amended in response to IRRC's comment to § 1011.2, as provided in our response to that section.
Terms defined in § 1051.2 that will now identically appear in § 1001.10 in order to address IRRC's comment will be as follows:
• Limousine.
• Limousine driver.
• Limousine service.
IRRC requested clarification of the need for five terms defined in § 1001.10 because it appeared as though the terms were not actually used in Subpart A. Those terms were:
1) Hearing officer. We agree with IRRC's comment. This term will be deleted. This term does not appear in Subpart A and the Authority's interest in addressing this term will be met through an amendment to the term ''presiding officer'' as referenced below.
2) Formal investigation. We agree with IRRC's comment and will delete this term.
3) Informal investigation. This term is used in § 1003.42 (relating to Authority action on informal complaints).
4) Informal proceeding. This term is used in the title to Subchapter B of Chapter 1003 (relating to special provisions), but the language of that subchapter makes the definition of the term unnecessary in § 1001.10 because it is used in no other section of the regulations. Therefore, the term will be deleted.
5) Notarial officer. We agree with IRRC's comment and we will delete this term.
IRRC commented that the term ''applicant'' in § 1001.10 includes a sentence that seems to be substantive and is; therefore, misplaced in this section. We agree with IRRC and will delete that sentence from the definition as it appears in this section as it will appear in section 1001.10 and 1051.2. One commentator also suggested that the first sentence of this definition would permit a person to act on behalf of another person without first proving that the representative was acting with the approval of the principal. We also received comments critical of our attempts to require owners of rights to appear for certain appointments with the Authority and in regard to the submission of applications. We agree with this commentator's concern, which is one reason that the Authority has retained the language questioned by IRRC in § 1001.21(c)(3) and why those permitted to represent others in proceedings before the Authority is so narrowly tailored. This concern also contributes to the need to thoroughly screen and train brokers as provided in § 1029.5, and to have agreements of sale for medallions and certificates of public convenience executed before a representative of the Authority and all closings on such sales occur at Authority offices. This additional oversight will discourage, and hopefully eliminate the fraud concern of the commentator. Due to the protections afforded by several other sections of the final form rulemaking, the Authority believes it is unnecessary to amend the first sentence of the defined term ''applicant'' as suggested by the commentator. As noted above, the first sentence will compromise the entire definition of applicant in the final rulemaking.
The commentator also questioned the definition of the terms ''Approved, approval or approve.'' The commentator suggested that the definition may be viewed as an ''attempt by the PPA to deprive a court of competent jurisdiction from issuing a stay order, issuing an injunction or otherwise preventing the implementation of any order of the PPA.'' We think the commentator's suggested interpretation is not reasonable. There is no language in this definition that seeks to block intervention of a court of competent jurisdiction, nor could this section reasonably be interpreted as being legally capable of doing so. Therefore, we decline to amend this term as suggested by the commentator.
We agree with IRRC's comment regarding the need to consistently define the term ''broker.'' That definition has been made consistent throughout the final-form regulation. The chapter detailing the process to become a broker is found at 1029, which is technically within Subpart B. Because brokers will be cross trained to handle both taxicab and limousine matters, Subpart C, adopts the process in Chapter 1029 when referencing brokers in the limousine subpart. Nevertheless, the definition of ''broker'' in Subpart C will deviate from the definitions in Subparts A and B only in that reference will be made to Chapter 1061 as opposed to Chapter 1029. We believe that minor distinction will not create confusion and will be consistent with our attempt to simplify the reading of the regulations by providing a clear line of distinction between most taxicab and limousine matters. Brokers are integral to the application process associated with the sale of rights or request for rights. Individuals have acted as brokers in this regard in Philadelphia for many years and well before the Authority initiated regulatory control in 2005. We believe our mandate to develop a clean, safe, reliable, and well regulated taxicab and limousine industry in Philadelphia will be undermined without the involvement of well qualified individuals to act as brokers. The term ''transferable rights'' has been added to the definition sections 1001.10, 1011.2 and 1051.2 because the definition of ''broker'' includes the term ''transferable rights.''
A commentator suggested that brokers will engage in the practice of law without a license. It should also be noted that this rulemaking does not require attorneys to register with the Authority, as suggested by this commentator. The act of finding buyers or sellers as to transferable rights is not a legal activity at all and the completion of applications and agreements of sale are a common function of brokers and agents in many settings and have been involved in the Philadelphia taxicab and limousine industry for many years. The court's view of this issue has been fairly static for some time and has provided that the acts of brokers as permitted by the final-form regulations is appropriate ''so long as the papers involved pertain to and grow out of their business transactions and are intimately connected therewith. The drafting and execution of legal instruments is a necessary concomitant of many businesses and cannot be considered unlawful.'' Childs v. Smeltzer, 315 Pa. 9, 171 A. 883, 885-886 (1934).
The term ''sale'' was defined in § 1027.2 (formerly relating to definitions) and will appear in § 1001.10 because it is used in the term ''transferable rights,'' as will the definition of ''securities'' as referenced in our response to § 1011.2.
Commentators questioned the propriety and potential violation of due process associated with the definition of ''presiding officer.'' Commentators suggested that the use of an Authority board member or other individual selected by the Authority would be inappropriate and would raise due process concerns. However, it is a common practice in administrative law throughout the United States of America for agencies to promulgate, enforce and adjudicate matters within the jurisdiction of the agency and for administrative law judges, hearing officers or other presiding officers to be hired and paid by the relevant government agency. Those agencies also generally pay those who act as presiding officers, as does the Authority, but for Board members who may only be paid $200 for each meeting. See 53 Pa.C.S. § 5508.1(k). By way of example, the Public Utility Commission selects its administrative law judges and sets their rate of pay. See 66 Pa.C.S. § 304. As the commentator notes, these regulations contain language dictating the standards of behavior appropriate for presiding officers. We believe those provisions will address the commentator's concerns.
We have also amended the definition of ''presiding officer'' by adding a subparagraph to specifically include the term ''hearing officer'' as referenced in section 5705 of the act within the meaning of this term.
One commentator suggested that the term ''adjudication'' was confusing and that the definition should not include the word ''adjudication.'' The Authority believes this term is properly defined and is set forth in a manner intended to address the several different circumstances in which an adjudication can occur. It is also noted that this definition has been directly imported from the PUC's regulations at 52 Pa. Code § 1.8 and should be familiar to most regulated parties.
The term ''State Police'' has been added to this section and sections 1011.2 and 1051.2 in order to clarify that the term identifies the Pennsylvania State Police.
Subchapter B. Time § 1001.11. Date of filing.
Section 1001.11 provides guidance as to the filing of documents with the Authority and specifically addresses the manner in which the date of filing will be determined. Commentators suggested that the date of filing with the Authority should be the post mark date on a mailing as opposed to the date the document was received by the Authority. However, we have adopted the filed upon receipt standard provided in GRAPP. See 1 Pa. Code § 31.11. We believe that that long established process will help maintain a more efficient and accurate docketing system.
§ 1001.12. Computation of time.
Section 1001.12 describes the way in which time will be computed for purposes of the Authority's regulations.
§ 1001.13. Issuance of Authority orders.
Section 1001.13 identifies the process through which an order of the Authority or a presiding officer will be issued, entered and adopted. In the proposed regulation this section was substantially similar to the PUC's regulation on this subject. See 52 Pa. Code § 1.13.
(a). One commentator noted in reference to subsection (a):
Considering that the regulated, (the industry), is a public utility, and the Regulator of a Public Utility's number one objective and purpose is the general welfare and protection of that utility being regulated, then all Orders shall be made public prior to the day of issuance, and not left to the PPA's discretion. Additionally, no Order and/or Regulation should be effective immediately, and should have to meet all of the requirements of the Commonwealth Document Act as prescribed by law.We believe that the substantive language of subsection (a), which is a direct copy of the PUC's § 1.13, adequately addresses the regulated industries' need to know of an Authority order. This language merely provides notice of the mechanism through which the orders will be entered upon the docket, as well as the standard difference between an entered order and an adopted order. A commentator questioned the method by which the Authority's Board will enter orders at Sunshine Act meetings. In such cases the Authority will continue to follow standard Sunshine Act procedures as to the deliberation, voting and discussion of issues related to those orders, including the availability of public comment. Further, this section will have no impact upon the Authority's obligation to adhere to any statutory requirements, including the Commonwealth Documents Law.
(b). In order to simplify the process associated with calculating the date that a decision of a presiding officer will become effective, the Authority has amended subsection (b) to require that each order of a presiding officer contain the date the decision will become an order of the Authority, as provided in section 1005.213. For example, decisions of a presiding officer rendered pursuant to section 5705(a) of the act, do not become a final order of the Authority until a period of 15 days has elapsed after issuance. Instead of placing the burden of calculating that period upon the regulated community, that calculation will now be made by the Authority and listed on the order. Therefore, language in subsection (b) requiring notice subsequent to issuance of the order and the date it is deemed an order of the Authority has been deleted as unnecessary. The elimination of the second superfluous notice will also reduce internal Authority costs associated with that process.
§ 1001.14. Effective dates of Authority orders.
Section 1001.14 provides guidance as to the dates that Authority orders will become effective. Subsection (a) deals with orders related to regulations and subsection (b) deals with all other orders. A commentator referenced that his comments made in relation to § 1001.13 were applicable to this section. Our response to § 1001.13 is incorporated here. This section is identical to the PUC's regulation found at 52 Pa.C.S. § 1.14.
§ 1001.15. Extensions of time and continuances.
Section 1001.15 provides the rules and procedures related to requests for the extension of time as it pertains to the Authority's regulations.
§ 1001.16. Issuance of decisions by presiding officers.
This section identifies the date upon which the decision of a presiding officer is considered issued. This section has been deleted as unnecessary in consideration of the changes made to § 1001.13 as noted above.
Subchapter C. Representation before the Authority § 1001.21. Appearance.
Section 1001.21 provides the right of persons appearing before the Authority to represent themselves or to use a representative pursuant to certain terms and conditions. One commentator commented on this section and another commented on this section in tandem with proposed §§ 1001.22 and 1001.23, by noting the lack of a provisions permitting certain legal representation by a legal intern. The Democratic Chairperson of the House Urban Affairs Committee and Representative Mark B. Cohen also commented that law students or inactive lawyers should be able to appear on behalf of taxicab drivers in Authority proceedings. We agree with the main point of these comments. This section and §§ 1001.22 and 1001.23 have been amended in the final-form regulations to permit additional non-attorney representation through the use of language substantially similar to that used by the PUC in 52 Pa. Code §§ 1.21 and 1.22. The amendment is made at new subsection (b), which required the reidentification of the subsequent subsections.
This change will permit legal interns to represent regulated persons in proceedings before the Authority. We believe this cost effective form of representation is sufficient to address the concerns of the commentators, while simultaneously maintaining a standard requiring legal training and professional legal supervision of these representatives. This safeguard will maintain participation in these adjudications by attorneys currently approved by the Pennsylvania Supreme Court, if only in a supervisory capacity. We believe that the administrative hearing process needs to be flexible, but also understand that knowledge of the rules of administrative procedure promotes the development of full records and helps to advance hearings in a judicially economic fashion. Therefore, we decline to accept the suggestion that inactive attorneys or a non-attorney, outside of the supervised law student context, should be able to provide representation at Authority proceedings.
IRRC also questioned the language used in paragraph (c)(3) (now (d)(3)) related to the denial of the request of a non-attorney individual to provide representation to a respondent at an Authority proceeding even after the information required by this section has been presented. This situation arises most when an employee of one of the owners or officers of an entity that is a respondent seeks to represent the entity. We agree with IRRC that the language of this paragraph was unclear. We have amended this paragraph of the final form regulations to specify that the Authority or the presiding officer may deny the requested information if the information presented is found to be inauthentic. The practice of permitting this form of representation has been in place in Philadelphia since 2005 through the Authority's current locally promulgated regulations. In that time we have experienced several instances in which the information proffered to obtain a representative status was found to be unreliable or even forged. A presiding officer must have the flexibility to reject a potential representative in such situations.
IRRC commented that a typographical error appeared in paragraph (c)(3). We agree with IRRC's comment and have corrected the word ''the'' to ''then'' in that paragraph.
§ 1001.22. Appearance by attorney or certified legal intern.
Section 1001.22 of the proposed regulations required representation by an attorney at all Authority proceedings except those authorized by § 1001.21. Consistent with the Authority's response to comments on 1001.21 above, this section has been amended to permit legal interns to provide representation under the restrictions provided in Pa.B.A.R. Nos. 321 and 322.
§ 1001.23. Other representation prohibited at hearings.
Section 1001.23 of the proposed rulemaking restricted those permitted to represent persons at Authority proceedings to attorneys or those authorized by §§ 1001.21 and 1001.22 (relating to appearance; and appearance by attorney or certified legal intern). This section has been amended to be consistent with the changes made to §§ 1001.21 and 1001.22 as referenced above. The only change to this section relates to the amendment of the title of § 1001.22, which now includes certified legal interns.
§ 1001.24. Notice of appearance or withdrawal.
Section 1001.24 provides the rules and procedures related to the notice of appearance for individuals and attorneys and the notice of withdrawal for attorneys. Subsection (b)(2)(ii)(B) has been amended in the final-form regulation to require attorneys to update all information provided in a notice of appearance that changes during the course of a proceeding, such as telephone numbers, email addresses, etc. The Proposed regulation only required that the attorney's address be updated in such cases.
§ 1001.25. Form of notice of appearance.
Section 1001.25 provides rules related to the form notice of appearance must take. It also provides a resource for and an example of a form of notice of appearance and information that must be provided by non-represented parties upon filing a pleading. A minor change has been made to the form of notice of appearance to clarify that either a P. O. Box address or standard address is required. The proposed form was unclear as to the requirement to provide one or the other.
§ 1001.26. Contemptuous conduct.
Section 1001.26 permits the Authority or a presiding officer to exclude a party from further participation in a proceeding based on contemptuous conduct. IRRC commented that this section was identified in the proposed rulemaking as ''identical'' to the corresponding GRAPP section at 1 Pa. Code § 31.27 (relating to contemptuous conduct) and requested that this section be corrected to disclose that it was not identical. This section is identical to § 31.27, but for the reference to the Authority or the presiding officer, as opposed to the generic ''agency head or presiding officer.'' However, we accept IRRC's recommendation and have amended this section to note that it supersedes § 31.27.
§ 1001.27. Suspension and disbarment.
Section 1001.27 provides that the Authority may deny a person the privilege of appearing or practicing before it and the standards that will apply to such suspension or disbarment. IRRC commented that this section was identified in the proposed rulemaking as ''identical'' to the corresponding GRAPP section at § 31.28 (relating to suspension and disbarment), although it was not, and requested that this section be corrected to disclose that it was not identical. We agree with IRRC's comment and have amended this section to note that it supersedes § 31.28.
§ 1001.28. Power of attorney.
This Section provided for the limited use of powers of attorney by regulated persons and applicants. This section has been deleted from the final-form regulations in response to comments of IRRC and other commentators as to the application of the requirements of this section and the ability of the Authority to implement such requirements, except for subsection (a), which will clarify that a power of attorney may be used as later referenced in the regulations.
Subchapter D. Documentary filings § 1001.31. Requirements for documentary filings.
Section 1001.31 identifies certain information that must be included in pleadings submitted to the Authority, including the form of caption. A typographical error involving the duplicated use of subsection ''(d)'' necessitated the re-identification of the subsections after the first subsection ''(d)'' and reference to the appropriate subsection range in the re-identified subsection (i) ''Supersession.'' Also, a paragraph (4) has been added to subsection (f) ''Identifying information'' to require the inclusion of certificate of public convenience identification and other rights identification numbers in pleadings filed with the Authority. The failure to include this basic requirement in the proposed rulemaking was an oversight and its inclusion here is not anticipated to cause any burden upon regulated persons, in fact it will assist all parties to proceedings to understand the precise issues to be addressed. This requirement will also assist responding parties with their preparation of a response.
§ 1001.32. Filing specifications.
Section 1001.32 provides specific requirements related to the appropriate form of pleadings submitted to the Authority and is based on a substantially similar provision of GRAPP at 1 Pa. Code § 33.2 and the PUC's regulations at 52 Pa. Code § 1.32(a). A typographical error has been corrected by reidentifying subsection (c) as ''(b).'' IRRC commented that the language this section was not identical to 1 Pa. Code § 33.2; therefore, subsection (b) has been amended to note that this section supersedes that provision of GRAPP.
§ 1001.33. Incorporation by reference.
Section 1001.33 provides rules and procedures related to the incorporation of a document on file with the Authority into a subsequent document.
§ 1001.34. Single pleading or submittal covering more than one matter.
Section 1001.34 provides rules and procedures related to the use of a single pleading or submittal covering for more than one matter.
§ 1001.35. Execution.
Section 1001.35 provides rules and procedures related to appearance of signatures, who must sign, and the effect of signatures.
§ 1001.36. Verification and affidavit.
Section 1001.36 provides guidance on when documents filed with the Authority require either verification or an affidavit. IRRC commented that the use of the phrase ''should comply substantially with'' in subsection (b) and (c) was vague and lacked sufficient information to provide guidance to the regulated community. The Authority agrees with IRRC's comment and has deleted that phrase. This section will now require the use of the provided form of affidavit and verification. In the event these forms are insufficient to suit a party's needs, a request may be made for a waiver from this specific filing requirement pursuant to § 1001.101.
§ 1001.37. Number of copies to be filed.
Section 1001.37 provides rules and procedures related to the number of copies of documents that must be included when a filing is made with the Clerk or other Authority office. Two typographical errors were corrected in subsection (b) regarding the supersession of subsection (a).
§ 1001.38. Rejection of filings.
Section 1001.38 provides the rules governing the Authority's ability to reject a filing.
Subchapter E. Fees § 1001.41. Filing fees.
Section 1001.41 provides the rules and procedures related to the fees associated with filing certain documents and the effect fees have on the filing status of a document.
§ 1001.42. Mode of payment to the Authority.
Section 1001.42 provides the rules and procedures related to the acceptable forms of payments made to the Authority and how payments should be delivered. This section has been amended to correct a typographical error by inserting the word ''the'' before ''act.'' A commentator submitted comments under this section that all related to the fee schedule in § 1001.43. Our responses to those comments may be found in that section.
§ 1001.43. Authority fee schedule.
Section 1001.43 provides notice of the manner in which the Authority will issue its annual fee schedule as required by section 5707(b) of the act. IRRC, and other commentators, commented that this section incorrectly noted that the Authority's fee schedule was subject to the approval of the Legislature each year, when in fact the fee schedule is effective unless disapproved by the Legislature pursuant to § 5707(b). We agree and have made the suggested change to this section. A commentator suggested that the annual fee schedule be placed in these final-form regulations. Because our fee schedule must be submitted each year to the Appropriations Committees of the Senate and House of Representatives for review and potential disapproval, we believe that it would be inconsistent with section 5707(b) to include a schedule of fees in the final rulemaking. The process of annually amending a regulation to incorporate modifications to the fee schedule already approved by the Legislature could easily encompass a significant portion of the fiscal year in which the schedule is supposed to be effective. We believe that this could not have been the intent of the Legislature and will not include a fee schedule here as suggested by commentators.
Commentators suggested that a statutory requirement to provide notice of the ''proposed fee schedule'' has not been met by this section. However, the act does not include language related to how the Authority must develop a budget and fee schedule, and does not require any notice of the ''proposed fee schedule.'' See 53 Pa.C.S § 5707(b). The Authority is subject to the Sunshine Act and the supervision of the Appropriations Committees, as referenced above. The Authority must provide in these final-form regulations for a procedure to provide notice to ''certificate holders of the fee schedule.'' 53 Pa.C.S § 5707(b). This regulation identifies that procedure.
A commentator suggested that this was the wrong subchapter to locate this section. We also believe that the placement of this section, which deals with notice of the fee schedule, in a chapter of this rulemaking which deals with a variety of notice procedures and requirements, is appropriate.
IRRC also commented that while section 5707(b) of the act requires that the Authority's regulations provide for a form of notification to certificate holders of the fee schedule it does not require notice by email. IRRC questioned why email was selected. The Authority selected email notification because it is efficient, economical, and effective. It eliminates postage fees, paper costs and waste; it is at least as reliable as regular mail service and is much faster. The Authority has employed this process in furtherance of the notice requirements of section 5707(b) of the act since 2005 and we have found it to be very effective. In addition to the direct email communication, the Authority's web site will also provide notice of the new fee schedule. We believe this regulation is consistent with the intent of the Legislature as to this notice requirement, which is placed immediately after the deemed approved language of section 5707(b).
IRRC also requested that the final-form rulemaking identify when the notice of the fee schedule would be emailed to certificate holders. We agree with IRRC's comment and this section has been amended in the final form rulemaking to require notice of each fiscal year's fee schedule within 5 days of its effective date. This means that if the Legislature does not act to disapprove the fee schedule by April 15th of a given year, the Authority must send notice of the new fee schedule by April 20th. This section will also now require that the fee schedule be published in the Pennsylvania Bulletin each year. We believe this open process, which involves at least one Sunshine Act meeting and annual review by the Legislature is sufficient for the development and implementation of a budget and fee schedule.
The fee schedule is not the same as a penalty schedule, which will be developed in a manner similar to that used by the PUC, as noted in our response to § 1001.61 below.
Subchapter F. Service of documents § 1001.51. Service by the Authority.
Section 1001.51 provides the various ways in which the Authority may provide notice to regulated parties, parties to proceedings and their representatives.
IRRC noted the language of subsection (d) that requires regulated parties to update their contact information on file with the Authority within 48 hours of any change. IRRC asked what would happen if the party did not file notice within that time frame. There is no specific penalty provided for in the regulation; however, a party with inaccurate contact information will not receive notices required by the act or these regulations. That person will not be able to avail themselves of a defense for failing to receive notice based on a change in contact information that occurred more than 48 hours before the notice was sent. The 48 hour notice requirement is reasonable and easy to understand. We believe this requirement is more reasonable than requiring ''immediate'' notice of contact information changes. We have amended subsection (d) by identifying the parties required to provide updated contact information and specifying that notice must be provided to the Clerk as opposed to the ''Authority,'' which we believe will further clarify the purpose and effect of this subsection.
The Authority has opted to employ reliable, economical and modern communication mechanisms through this section, including email, for the reasons identified in our response to § 1001.43 (relating to Authority fee schedule). The regulated categories of service providers identified as being subject to email notification are listed in subsection (b)(3). These parties are required to provide an accurate email address and to maintain that email address pursuant to subsection (d). Through subsection (c), regulated persons not otherwise required to maintain an email address with the Authority, such as drivers, may voluntarily participate in the email notification process.
Subsection (e) addresses situations in which the Authority is unable to serve a person through the mechanisms provided elsewhere in this section, and permits service of notice through publication in a newspaper of general circulation or the Pennsylvania Bulletin. This subparagraph is substantially similar to the PUC's § 1.53(e) and the service by ''publication'' concept of Pa.R.C.P. No. 430. IRRC and other commentators have questioned the meaning of ''newspaper of general circulation'' specifically because the Authority has used the Philadelphia Tribune to provide this type of notice in the past. The term ''newspaper of general circulation'' is defined specifically as to legal notices in 45 Pa.C.S. § 101 (relating to definitions) as follows:
A newspaper issued daily, or not less than once a week, intended for general distribution and circulation, and sold at fixed prices per copy per week, per month, or per annum, to subscribers and readers without regard to business, trade, profession or class.The Authority will adhere to this definition as used in Title 45 (relating to legal notices) and believes that the Philadelphia Tribune meets this definition, although it is our intention to use the Pennsylvania Bulletin whenever practicable in order to reduce costs. It is important to remember that the ''notice'' addressed in this subsection is generally going to be directed toward a single person and does not deal with issues such as notice of Authority Board meetings, which is a subject addressed in the Sunshine Act.
§ 1001.52. Service by party.
Section 1001.52 provides for service by parties in certain situations and provides guidance on how such service may be conducted.
(a). Subsection (a) requires a party to an Authority proceeding to serve all pleadings and other documents upon the other parties and the presiding officer, if one has been assigned. IRRC and another commentator questioned the need for inclusion of alternative service language in this section. We agree with those comments and have amended this subsection in the final form rulemaking to simply require service of pleadings or documents filed in a proceeding before the Authority to be served upon all parties to the proceeding and the presiding officer, if one has been assigned.
(b)(2). Subsection (b) permits service to be completed by hand delivery. This section contains limitations on who may provide this service. We agree with a commentator who questioned the prohibition of an individual ''who is neither a party to the proceeding nor an employee or relative of a party'' from providing service. The quoted language has been deleted from the final-form regulation.
(c). Subsection (c) permits a presiding officer to limit the parties in a proceeding and who must be served to those who have requested service. IRRC and one other commentator question the need and implications of this provision. We agree that this provision may lead to unnecessary confusion and we have deleted it from the final form regulation. That deletion will require proposed subsection (d) to become subsection (c) in the final form regulation and the supersession range in subsection (c) to be reduced to ''(a) and (b).''
§ 1001.53. Service on attorneys.
Section 1001.53 explains how service to attorneys should be directed; the purpose behind requiring attorneys to supply an email address in their entries of appearance, and the effect service upon a client's attorney has on the client.
§ 1001.54. Date of service.
Section 1001.54 explains how the date of service of documents is determined.
§ 1001.55. Proof of service.
Section 1001.55 provides the procedure for proving that service of documents was made and that such proof must be included in the original and all copies of documents filed with the Authority when service is required to be made by the parties.
§ 1001.56. Form of certificate of service.
Section 1001.56 provides the form a certificate of service must appear in through an illustration of the form.
§ 1001.57. Number of copies to be served.
Section 1001.57 provides guidance on the number of copies of documents to be served upon other parties to a proceeding, including the presiding officer, if one has been designated. One commentator referenced language in this section limiting the number or expanding the number of copies to be served based upon uncertain standards and questioned the need to deviate from the PUC's language that appears at 52 Pa. Code § 1.37. We agree with the commentator and have deleted the questioned language and replaced that language with the clearer language of the PUC's regulation.
Subchapter G. Penalty § 1001.61. Penalties.
Section 1001.61 provides for a range of penalties applicable to violations of the act, the regulations or an order of the Authority. We have amended this section to lower the bottom range of the penalty schedule from $50 to $25. That flexibility will permit the Authority to continue the use of a $25 penalty for certain violations that are remedied within a rapid period of time. This type of penalty is called ''correctable'' and has been in place in Philadelphia since 2005.
The Democratic Chairperson of the House Urban Affairs Committee, as well as Representative Mark B. Cohen, IRRC and other commentators suggested that a specific penalty schedule be drafted into the final rulemaking and questioned the process through which the Authority would ensure a measure of consistency in terms of the application of administrative penalties. This section is not silent as to penalties, but provides a penalty range. We note that the PUC opted to employ a penalty range in its taxicab regulations and responded to similar comments as follows:
Finally, we note that the Democratic Chairperson and the Majority Chairperson of the House Consumer Affairs Committee encourage the inclusion of a fine schedule in this rulemaking. We have considered this comment and will incorporate a fine schedule. The fine schedule presents a range of allowable fines for particular violations. This flexibility is essential to effective enforcement of the Medallion Act and Commission regulations. Repeat offenders may be more severely punished than first-time offenders. We believe that providing the fine-range satisfies the industry's need to know the consequences of various violations as well as the Commission's need to have some flexibility in its enforcement endeavors.26 Pa.B 5819. We adopt the rationale of the PUC and will employ the use of a penalty range, which includes a cap, in the final form rulemaking and develop a penalty schedule guidance document similar to that employed by the PUC. It is important to note that the Authority currently uses a penalty schedule in relation to the enforcement of its locally promulgated regulations and will continue that practice. We will make the schedule available to the public, including publication on the Authority's web site at www.philapark.org/tld. A penalty schedule is currently listed on the Authority's web site for use upon publication of this final form rulemaking in the Pennsylvania Bulletin.
Representative Cohen also commented that penalties collected from regulated parties as a result of violations of the act or the regulations should go to a designated location. While the regulations are silent on this issue, section 5707(d)(1) of the act specifically provides that revenue exclusively related to taxicabs shall be deposited into the Taxicab Account. We have adhered to this statutory requirement since 2005 and will continue to do so upon implementation of these regulations.
(b)(5). IRRC also questioned the meaning of subsection (b)(5), which permitted the application of ''other penalties deemed necessary to protect the public.'' We agree with IRRC's comment and have deleted subsection (b)(5) in the final rulemaking for vagueness.
Other commentators have questioned the ability of the Authority to suspend rights, or modify rights as provided in this subsection. While each potential penalty may not be applicable to every regulated party, each potential penalty is applicable to at least certain regulated parties. We incorporate our response to § 1011.3 regarding this issue.
§ 1001.62. Continuing offenses.
Section 1001.62 provides that a regulated party may be subject to an administrative penalty for each day's ''continuance in the violation of the act, this part or an order of the Authority.'' Commentators questioned the meaning and application of this section in light of the presence of substantially similar language in §§ 5725(b) and 5745(b) (relating to civil penalties). We agree with the commentators and we will delete this section in the final-form regulation as superfluous in light of the presence of the more expansive language of the act.
Subchapter H. Matters before other tribunals § 1001.71. Notice and filing of copies of pleadings before other tribunals.
Section 1001.71 requires regulated parties to file notice with the Authority when matters over which the Authority may have jurisdiction under the act are raised in proceedings filed with a court or other regulatory body by a person subject to the act. This section is substantially similar to the PUC regulation at 52 Pa. Code § 1.61. The Authority has modified this section to correct the name of Authority Form No. SA-1. The form has been modified for multiple purpose applications; therefore, the form's name has been amended from ''Sale Application'' to ''Application.'' A commentator suggested that notice to the Authority was a prerequisite to filing a bankruptcy claim; we disagree that this language can be interpreted in that fashion. Also, a commentator questioned the requirement of this section to file the subject documents with the Director as opposed to the Clerk. We agree with the commentator and the final-form regulation will reflect that the documents be filed with the Clerk because that office is charged with maintaining a docket of all matters related to the Authority under the act.
Subchapter I. Amendments or withdrawals of submittals § 1001.81. Amendments.
Section 1001.81 provides guidance on when amendments to a submittal or pleading may be made and the manner in which they should be filed. IRRC and one commentator commented that the proposed form of this section contained vague language limiting the ability to file amendments to unidentified sections ''of this part.'' We agree with IRRC and have deleted that phrase from the first sentence. The first sentence of this section has been further modified to convert this section into a substantially similar version of the language of the PUC's 52 Pa. Code § 1.81, which should be familiar to most members of the regulated industries. IRRC and one commentator also commented that the last sentence of this section was vague in its reference to the ''interests of justice.'' We agree and have deleted the last sentence of this section. The Authority or the presiding officer may limit the ability of a party to file an amendment to a submittal or pleading, which at a minimum is important to the advancement of judicial economy. If parties to a dispute were able to indefinitely amend pleadings, the scope of proceedings may be impossible to define and ultimately rule upon.
§ 1001.82. Withdrawal or termination of uncontested matter or proceeding.
Section 1001.82 provides a procedure through which a party to an uncontested proceeding before the Authority may withdraw from the proceeding. IRRC and another commentator questioned the inclusion of language in subsection (b) making the withdrawal ''with prejudice'' and assigning a 15 day review period to the request for withdrawal. IRRC and the commentator also questioned the use of the term ''unless otherwise provided by statute'' in terms of the discretion of the presiding officer to permit the withdrawal and the use of a vague reference to ''interests of the public'' as to the withdrawal of the matter in that subsection. We agree with IRRC's concerns and have deleted subsection (a) and (b) from this section and replaced those sections with a new subsection (a), which has been copied directly from GRAPP at 1 Pa. Code § 33.42, except for the specific reference to the ''Authority or presiding officer'' (as opposed to the generic ''agency'') and the requirement to file the withdrawal documents with the Clerk. Also, consistent with IRRC's comment, the phrase ''Unless otherwise provided by statute,'' as a limitation upon the discretion of the Authority or the presiding officer to grant the withdrawal has not been incorporated from the GRAPP language. The section numbers have been appropriately adjusted, as has the required supersession language.
Subchapter J. Docket § 1001.91. Docket.
Section 1001.91 establishes that a docket will be maintained, how the docket will be maintained, and provides information as to the docket's accessibility to the public. Subsection (b) has been amended to note that subsection (a) supersedes GRAPP, as opposed to mirroring the cited section.
Subchapter K. Waiver of rules § 1001.101. Applications for waiver of formal requirements.
Section 1001.101 provides that a party may request a waiver from the application of a specific requirement related to the document created by Chapters 1, 3 or 5, or all of them. One commentator seems to have commented on the content of this section, although a different section was cited (a section which does not exist), and construed this section as applicable to the waiver of substantive requirements created in other chapters of this part, specifically citing the use of a waiver to permit limousines to operate with taxicab meters. This section does not deal with waivers of that nature, those types of waivers are provided for in § 1005.23.
Subchapter L. Unofficial statements, opinions and notice § 1001.111. Unofficial statements and opinions by Authority personnel.
Section 1001.111 provides that comments in opinions of the Authority that are not necessary to reach the decision should not have the full force and effect of law or precedential value otherwise accorded to the decision. This section is substantially similar to the PUC's regulation at 52 Pa. Code § 1.96. IRRC and one other commentator questioned the reason for this section and suggested that it may interfere with the discretion of a reviewing court. This section cannot supplant the jurisdiction of the courts; however, when a reviewing court examines a decision of the Authority and seeks to determine the Authority's interpretation of the impact of statements in a decision, or the relevance of those statements, which were not necessary to resolve the case, this section will provide guidance to the court as to the Authority's intent.
§ 1001.112. Notice of rulemaking proceedings.
Section 1001.112 provides for the manner in which notices related to rulemaking proceedings will be provided and persons with interest in the proposed rulemaking may request hearings on the rulemaking. A commentator questioned the location of this section and noted that the Authority does not contemplate holding a hearing each time a rulemaking is considered. This section is an exact copy of the PUC's 52 Pa. Code § 5.211, which should be familiar to most of the regulated industries. While hearings will often be helpful, particularly as to fact intensive issues, the regulations of both the PUC and the Authority do not require one. A commentator questioned the difference between a regulation and a rulemaking. A rulemaking is the process through which a regulation is promulgated and the rulemaking incorporates the regulation.
One commentator suggested that the Pennsylvania Bulletin is an insufficient form of notice for rulemaking actions and that additional means of notice should be incorporated into this section. While the Authority will often employ the use of mass email communication and web site posting, we decline to formally include those means of communication into this section because all regulated persons do not have equal access to those mediums and we will rely on the cost effective form of notice represented by the Pennsylvania Bulletin, which is already understood by regulated persons as the primary source of these forms of notice.
Chapter 1003. Special provisions
Subchapter A. Temporary emergency orders
Emergency relief § 1003.1. Definitions.
Section 1003.1 provides definitions related to the implementation of temporary emergency orders. The definition of ''Adjudication Department'' has been added to clarify the definition of ''emergency order'' which uses the term. A commentator noted the distinction between the definition of ''emergency'' in this rulemaking and as opposed to that used by the PUC in 52 Pa. Code § 3.11. The commentator expressed what we believed to be a concern about its clarity. We agree with that comment and will revise the definition to mimic that used by the PUC by deleting the phrase ''and is not subject to a pending proceeding.'' The deletion of that term will not have a material impact on the determination of what is or is not an emergency because the balance of the definition does not require the existence of a pending proceeding in order for a situation to be deemed an emergency. One commentator expressed a concern that the number of people capable of issuing emergency orders be expanded and another commented that the number should be reduced by deleting the Authority's Executive Director. We believe the persons and positions empowered to issue an ''emergency order'' are sufficient to address all contingencies and we decline to broaden or constrict the list of those capable of issuing such orders.
Ex parte emergency orders § 1003.11. Petitions for issuance of emergency orders.
Section 1003.11 establishes the form, contents, and service required for petitions for issuance of emergency orders.
§ 1003.12. Disposition of ex parte emergency orders.
Section 1003.12 provides for the manner in which an ex parte emergency order may be issued by the Authority and the manner in which it may be issued. One commentator noted concerns about the need to increase those capable of issuing these orders, we incorporate here our response to § 1003.1 above.
(c). Ratification. A commentator also questioned language of subsection (c) which dispenses with the need for a ratification vote by the Board as to emergency orders when a case or controversy no longer exists. In the event a dispute related to an emergency order no longer exists and the emergency has ceased to exist, the basis for the emergency order will be eliminated and a Board ratification vote on the emergency order will not be necessary nor scheduled. If the emergency has ended the Board could not ratify the order pursuant to the standards of this section. To the extent a Board ratification vote occurs it will be at a Sunshine Act meeting.
(d). Service. A commentator noted that this subsection does not include the phrase ''as expeditiously as practicable'' in relation to the Clerk's service of the emergency order or order denying the request for an emergency order, while that term is used in a substantially similar context by the PUC in 52 Pa. Code § 3.3. Based on other comments to the proposed rulemaking, we believe the non-specific term suggested by the commentator would raise more questions as to vagueness, instead we have relied upon the several specified means of notice permitted by § 1001.51, which provides for multiple efficient means of notice by the Authority, including email notification in many cases.
§ 1003.13. Hearings following issuance of emergency orders.
Section 1003.13 provides for procedures to contest the issuance of an emergency order. The proceeding will occur before a presiding officer in the Adjudication Department and be initiated by the person against whom the order is issued. A typographical error in subsection (b) was corrected by adding the letter ''r'' to the end of the ''office.'' The term was originally intended to be presiding officer.
(e). A commentator suggested that a Board level review of every decision issued in response to a request for review of an emergency order occur, regardless of whether the parties request the review. We will decline that alteration and continue to provide that the decisions of the presiding officer will be considered a recommended decision to the Board, subject to consideration by the Board upon the request of a party to the relevant proceeding.
Interim emergency relief § 1003.21. Petitions for interim emergency orders.
Section 1003.21 establishes the form, contents, and service required for interim emergency orders issued during the course of an existing proceeding.
§ 1003.22. Hearing on petitions for interim emergency orders.
Section 1003.22 provides that a hearing to consider a petition for an interim emergency order be conducted within 20 days of filing.
IRRC questioned the basis for selecting a 20 day window and another commentator noted that a substantially similar provision of the PUC's regulations at 52 Pa. Code § 3.6a provides for a window of only 10 days. The purpose of stating a mandatory deadline for the hearing is to make certain that it occurs quickly. Because the PUC's version of this section has been functioning for some time and has been referenced by at least one commentator we will adopt that 10 day period in the final-form regulation. In order to comport with drafting guidelines of the Legislative Reference Bureau the terms ''must'' has been changed to ''will'' in the final-form regulation.
§ 1003.23. Issuance of interim emergency orders.
Section 1003.23 provides the manner in which an order will be issued by a presiding officer as to a petition for an interim emergency order, including a deadline and a requirement for service. A commentator suggested reducing the time period within which a presiding officer may issue a decision from 25 days to 15 days. We will decline to make this adjustment. The presiding officer is required to conduct a hearing within 10 days of the filing of the petition. While we believe it is necessary to have a defined period during which a decision should be issued, the presiding officer will maintain the discretion to issue the decision within the described period in consideration of the unique circumstances of each case. Again, orders of this nature relate to cases already pending before the Authority. The commentator also commented on subsection (c) and requested the insertion of a vague term referencing service of a presiding officer's decision ''as expeditiously as possible.'' We decline to include that language for the same reasons noted in our response to § 1003.12(d).
§ 1003.24. Form of interim emergency orders.
Section 1003.24 explains what must be included in interim emergency orders and what may be included.
§ 1003.25. Authority review of interim emergency orders.
Section 1003.25 provides for the manner in which an interim emergency order of a presiding officer may be reviewed by the Authority.
A commentator suggested that a hearing be scheduled to review the presiding officer's decision even if the parties do not request the review. We decline to adopt that practice and believe that the standard process for requesting Authority review will be efficient and adequate for all parties without need of scheduling hearings and further review that has not been requested by a party. We agree with the commentator that a deadline for Authority action upon filing these exceptions is appropriate, and will provide that deadline through the same mechanism employed by the PUC. Therefore, we have amended subsection (b) and adopted the 30 day review period used by the PUC in 52 Pa. Code § 3.10. This designated review period will provide the petitioner with a determination that may then be appealed beyond the Authority, in the petitioner's discretion.
Out of service § 1003.31. Definitions.
Section 1003.31 provides definitions applicable to the process through which the Authority may place rights out of service.
One commentator suggested the placement of the out of service procedure in this section of the rulemaking was unusual. We disagree and believe that the special circumstances and procedures related to placing any right out of service, not just vehicles, are proper in this ''Special Provisions'' chapter. Other commentators seemed to have misinterpreted this section as applicable to the impoundment of vehicles, which it is not. In the out of service scenario, a vehicle subject to an out of service designation will be prohibited from providing service to the public (through notice to the owner and driver, or both) and in the case of vehicles, by affixing conspicuous stickers on the vehicle's windows warning the public as to the out of service status, pending remedial action by the owner of the vehicle.
§ 1003.32. Out of service designation.
Section 1003.32 provides the procedure through which the Authority may place rights in an immediate out of service status for conditions found to involve a threat to public safety, as that term is defined in § 1003.31 (relating to definition). Upon being designated out of service the offending condition could be remedied and the rights restored or a party may pursue the expedited hearing process provided in this section. We believe that the rapid hearing process associated with such designations will provide a safeguard against an injudicious application of this section and will monitor the use of this section to make certain that it is employed only when necessary.
(b) Drivers. This subsection provides that the Authority may place a driver's certificate out of service for reasons which include the driver's failure to report to TLD Headquarters. IRRC and other commentators questioned the fairness of this provision because it does not include language excusing the driver's failure to report to TLD Headquarters for legitimate reasons, such as hospitalization. We agree with IRRC and the other commentators and have added language to permit a driver to assert a just cause basis for a failure to report.
(d). Notice to the Clerk. Subsection (d) requires the Authority's Taxicab and Limousine Enforcement Department to provide notice of the out of service designation to the Clerk so that a hearing on the propriety of that designation may be held within three days as required by subsection (e).
IRRC commented that the language in this subsection requiring ''prompt'' notice from the Enforcement Department to the Clerk was vague. The Authority agrees with IRRC's comment and has amended this section to require notice ''by 4:30 p.m. on the next day during which the Authority maintains office hours as provided in § 1001.8 (relating to Authority office hours and address).''
(f)(3). Formal complaint. Subsection (f)(3) deals with the formal complaint component of the out of service designation. The term ''complaint'' has been inserted in place of ''compliant'' to correct a typographical error.
(h). Orders. Subsection (h) requires a presiding officer to enter an order after a hearing on the validity of the out of service designation. The order must include a prompt date for a hearing related to the underlying offense. One commentator suggested that the merits hearing and the emergency hearing be held simultaneously. While this section does not prohibit the parties from agreeing to resolve the entire controversy at the first hearing (or even without a hearing), we believe this suggestion is not practical. The rapid scheduling of a hearing to determine the out of service status is necessary to assure that these designations are used properly by the Enforcement Department. Parties generally require time to assemble witnesses and evidence necessary to conduct a hearing on the merits and we believe that requiring parties to conduct that preparation at an accelerated rate will present a difficult hurdle to a fair hearing.
We incorporate the responses to similar questions about the propriety of the out of service designation provided by the PUC at 26 Pa.B. 5816—5817.
Subchapter B. Informal proceedings generally § 1003.41. Form and content of informal complaints.
Section 1003.41 provides the rules and procedures associated with the form, content, and filing procedures associated with informal complaints.
§ 1003.42. Authority action on informal complaints.
Section 1003.42 explains what the Clerk will do with informal complaints, the purpose of having a staff review of the informal complaint, the circumstances and purpose for an informal investigation, what the staff will do when an informal investigation is completed, and the fact that submitting an informal complaint does not guarantee that a formal hearing will take place.
§ 1003.43. Other initiation of formal complaints.
Section 1003.43 explains how an informal complainant can file and prosecute a formal complaint within 30 days of service of an informal complaint termination letter by the Enforcement Department following staff review and informal investigation of the informal complaint by the Authority.
Subchapter C. Applications and protests § 1003.51. Applications generally.
Section 1003.51 provides general procedures and guidelines associated with the filing of applications for authorization or permission from the Authority. A commentator referenced this section when questioning the inclusion of drivers within the meaning of regulated persons, presumably as that term may relate to applications. The definition of regulated persons specifically includes drivers.
§ 1003.52. Contents of applications.
Section 1003.52 provides general requirements for the form and content of applications submitted to the Authority. Subsection (a)(1) has been amended to clarify that applications must be typed or printed and may not be handwritten. This is a continuation of an existing Authority practice, which is employed to prevent mistakes in translation or other confusion likely to slow the pace of administrative review. This section has also been amended to permit the Manager of Administration to accept handwritten driver applications, if the writing is legible. We have made this allowance because we understand that many drivers do not have access to a computer of typewriter.
§ 1003.53. Applications requiring notice.
Section 1003.53 establishes that notice of applications to the Authority for rights under the act must be published in the Pennsylvania Bulletin or other resources required by the Authority. Subsection (a) has been amended to confirm that applications for a taxicab or limousine driver's certificate will not require publication in the Pennsylvania Bulletin. Neither the Authority nor the PUC has applied publication to these applications in the past. We find no reason to deviate from the status quo in Philadelphia and expand the scope of applications subject to publication to individuals seeking a driver's certificate.
§ 1003.54. Protests.
Section 1003.54 establishes a process through which certain parties may protest the application of a person seeking Authority rights. Regulations for pursuing these types of actions are common and can be found in GRAPP at 1 Pa. Code § 35.23 and in the PUC's regulations at 52 Pa. Code §§ 5.51, 5.52, and 5.53.
IRRC and other commentators questioned the amount of the filing fee for protest actions. The filing fee for a protest of an application is not provided for in this section, nor is it included in the final form rulemaking for the reasons expressed in response to comments on § 1001.43. The filing fee for the protest of an application is subject to change each fiscal year and has been set at level that we believe is appropriate to discourage frivolous challenges to the granting of Authority rights. The process of assembling a new public utility business in compliance with the laws of the Commonwealth and the regulations of administrative agencies established to regulate those utilities is time consuming and costly. That process should not be further delayed and made even more costly through the filing of frivolous protests, regardless of whether the protest is withdrawn midway through a formal proceeding.
Several years ago, the Authority agreed to forward notice of any new limousine certificate of public convenience applications to at least one limousine owners' organization to permit that organization to submit whatever information it wished in regard to the review process. Anyone can submit any information to the Authority that they believe should be considered in reviewing any application for rights, without a fee. The Authority is then free to raise the issue with the applicant for clarification. Of course, with the recent designation of the Authority as a Commonwealth Agency for purposes of regulating taxicab and limousine service providers, notice of applications will now be provided through the Pennsylvania Bulletin as well.
IRRC and other commentators noted that the Authority's fee schedule (not the proposed rulemaking) currently identifies the protest fee as applicable to limousine applications. We agree with IRRC's concern and note that the final form rulemaking does not make that distinction, because applications for ''rights'' are subject to protest, not simply limousine rights. The Authority's fee schedule will be revised as permitted through section 5707(b) of that act to more specifically apply to the various forms a protest may take.
§ 1003.55. Applications for temporary certificate of public convenience.
Section 1003.55 provides a process through which an applicant for rights may obtain use of those rights on a temporary basis during the pendency of the Authority's review of the application and upon showing that an emergency exists. A commentator cited the potential that Philadelphia may be selected as the location for a Super Bowl and that limousine companies may seek to provide temporary service to fill the needs associated with such an event. The commentator seemed to be concerned that new limousine companies would be created for an event and either displace existing companies during the event or continue as limousine service providers after the event and increase competition among limousine service providers in place before the event, or both. The commentator also suggested that temporary rights only last for 7 days. We believe that the investment that will be made in preparing for and filing an application for a limousine certificate of public convenience (or any other similar rights) will prevent reasonable persons from attempting to obtain temporary rights to serve a particular targeted event and then terminate operations through this section and decline to make the alterations suggested. These applications will be published in the Pennsylvania Bulletin and will be subject to protest. A typographical error in subsection (c) has been corrected by adding the word ''a'' before the word ''temporary.''
§ 1003.56. Registration of intrastate operating authority issued by the Interstate Commerce Authority.
Section 1003.56 requires those in receipt of intrastate operating authority in Pennsylvania, and specifically Philadelphia, to file a copy of Interstate Commerce Authority authorization with the Director of the TLD. IRRC commented that the citation in this section to a federal statute appeared to be a typographical error. Commentators expressed confusion with the import of this section. Because we believe that changes made in Chapter 1053.41 adequately address issues related to intrastate and interstate licensing, this section is now unnecessary and will be deleted in the final-form rulemaking.
[Continued on next Web Page] _______
1 See Sections 13 and 17 of the Act.
2 See 65 Pa.C.S.A. § 701 et seq.
3 Blount, et al. v. Philadelphia Parking Authority, 920 A.2d 215 (Pa. Commw. Ct. 2007) (en banc), reversed, 965 A.2d 226 (Pa. 2009).
4 Germantown Cab Co. v. Philadelphia Parking Authority, 993 A.2d 933 (Pa.Commw. Ct. 2010), appeal granted, 14 A.3d 821 (Pa. 2011).
5 See, e.g., Pennsylvania Supreme Court Docket Nos. 10 EAP 2011, 11 EAP 2011, 12 EAP 2011 and 13 EAP 2011.
6 See Germantown Cab Co. v. Philadelphia Parking Authority, 15 A.3d. 44 (Pa. 2011) (per curiam order reinstating automatic supersedeas).
7 The Authority issued a Final Rulemaking Order and submitted final-form regulations to IRRC and the standing committees on July 21, 2011. On August 12, 2011, the Authority withdrew those regulations from consideration in order to address preliminary issues raised by IRRC and certain commentators. On August 23, 2011 this Board approved, adopted and ratified the decision to withdraw the July 21, 2011, Final Rulemaking Order and final-form regulations from consideration by IRRC and the standing committees.
8 See, e.g., 53 Pa.C.S. §§ 5703(b), 5704, 5705(a), 5706, 5718, 5721, 5722, 5741.
9 See 53 Pa.C.S. § 5707(b) (relating to budget and fees).
10 One commentator assumed that the rules related to taxicabs in New York City formed the basis of the Authority's regulations. The commentator commented extensively on the differing markets in New York and Philadelphia and cost issues related to those differences. However, the taxicab regulations used in New York City were not consulted at all during the drafting of either the proposed form rulemaking or the final-form rulemaking.
11 52 Pa. Code §§ 1.1 to 5.633.
12 41 Pa.B. 323, 435 (January 15, 2011).
13 IRRC's comments were published in the Pennsylvania Bulletin at 41 Pa.B. 1609, 1717 (March 26, 2011).
14 http://www.irrc.state.pa.us/regulation_details.aspx?IRRCNo=2885.
15 See Pa.R.AP. 1736(b); see also, Per Curium Order issued by the Supreme Court on February 23, 2011 at Germantown Cab Co. v. Philadelphia Parking Authority, 103 EM (Pa. 2010).
16 See footnote 6, supra.
No part of the information on this site may be reproduced for profit or sold for profit.This material has been drawn directly from the official Pennsylvania Bulletin full text database. Due to the limitations of HTML or differences in display capabilities of different browsers, this version may differ slightly from the official printed version.
