|SURFACE TRANSPORTATION BOARD DECISION DOCUMENT|
|REGULATIONS GOVERNING FEES FOR SERVICES PERFORMED IN CONNECTION WITH LICENSING AND RELATED SERVICES-2012 UPDATE|
|DECISION UPDATED FOR 2012 THE FEES THAT THE PUBLIC MUST PAY TO FILE CERTAIN CASES AND PLEADINGS WITH THE BOARD.|
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|Full Text of Decision|
42336 SERVICE DATE – JULY 27, 2012
Surface Transportation Board
Docket No. EP 542 (Sub-No. 20)
REGULATIONS GOVERNING FEES FOR SERVICES PERFORMED
IN CONNECTION WITH LICENSING AND RELATED SERVICES–2012 UPDATE
Decided: July 17, 2012
Digest: The Board updates for 2012 the fees that the public must pay to file certain cases and pleadings with the Board. In this decision, we increase about half of the Board’s user fee schedule, while the other half remains unchanged.
The Surface Transportation Board (STB or Board) is required by regulation at 49 C.F.R. § 1002.3 to update its user fees at least once per year. The Board’s last annual user-fee update was issued in Regulations Governing Fees for Services Performed in Connection with Licensing and Related Services–2011 Update, EP 542 (Sub-No. 19) (STB served July 28, 2011) (2011 Fee Update), and became effective September 2, 2011. This decision updates our fees based on the cost study formula set forth at 49 C.F.R. § 1002.3(d) and other factors relevant to Board fee policy.
In this decision, we increase about half of the Board’s user fee schedule, while the other half remains unchanged. Although Federal Government wages and salaries were frozen at 2010 levels (which is one factor in calculating annually the Board’s user fees), an overall increase in overhead cost factors resulted in a net increase in the full cost calculations. This in turn resulted in the Board’s user fees either increasing (64 items or sub-items) or remaining unchanged (61 items or sub-items) from their respective 2011 Fee Update levels. The Board notes that 95 of the total 125 fee or sub-fee items, or 76% of the items, either increase by $100 or less or remain unchanged from the 2011 Fee Update. Results from our application of the 2012 update factors are described below.
2012 UPDATE FACTORS
The 2012 update reflects the same level of direct-labor costs as in the combined 2010 Government-wide general and locality salary that took effect in January 2010. However, the fees in this decision have either increased or remained unchanged from those in the 2011 Fee Update, due mainly to various Board overhead cost factor changes. Specifically, the Government Fringe Benefit Cost Factor used in the current update formula is applied at the same rate as last year’s decision – 56.25%. Based on fiscal year (FY) 2011 actual budget data, the Office General and Administrative Expense Factor has increased from 22.21% to 25.91%, while the Operations Overhead Factor, developed from FY 2011 payroll cost data, has decreased from 18.58% to 17.81%. Lastly, the Board’s General and Administrative Expense Factor increased from 12.62% to 13.36%. The 2012 full cost level for each fee or sub-fee item developed from these factors is set forth in column 9 of APPENDIX A. The 2012 full cost levels have increased by approximately 3.00%, vis a vis their comparable 2011 Fee Update full cost levels.
FEDERAL REGISTER COST
There is no change in publication costs from the 2011 Fee Update decision. The United States Government Printing Office (GPO) last informed the Board that, due to changes called for in GPO’s July 2, 2010 Circular Letter No. 777, publication costs were set at $159 per column. No further Circular Letter dealing with the cost of publication has been published. Thus, the 2011 Fee Update decision publication cost levels remain unchanged.
1. Formal Complaint Fees:
On July 7, 2011, the STB adopted a final rule that set the fees for full Stand-Alone Cost (SAC) rate complaints (fee item 56(i)) at $350; set the fee for Simplified-SAC rate complaints at $350 (sub-item 56 (ii)); and reduced the fee for all other formal complaints from $20,600 to $350 (sub-item 56 (iv)). Regulations Governing Fees For Services, EP 542 (Sub-No. 18) (STB served Jul. 7, 2011). These fees remain unchanged and are reflected in the Schedule of Filing Fees in APPENDIX B.
2. Other Original Below-Cost Fees (Capped):
Historically, certain fees have been held well below the full cost level. The Board capped these fees out of a concern that higher fees could have a chilling effect on the ability of some to bring a matter to our attention, or because certain types of actions were deemed to benefit the general public. Capped fees are occasionally adjusted, and the Board continues to monitor them. Such fees include: trail use condition requests–item 27(i); Amtrak conveyance and compensation proceedings–items 47 and 48, respectively; appeals to Board decisions–item 61(i); motor carrier undercharge proceedings–item 62; and labor arbitration proceedings–item 60. See Regulations Governing Fees for Services Performed in Connection with Licensing and Related Services–2002 New Fees, 7 S.T.B. 511 (2004) (2002 New Fees).
In the 2009 Fee Update, the Board raised each of these six fee and sub-fee items from $200 to $250. The $250 fees were predicated on a measurement of the full cost level changes between March 2004 and March 2009. These fee and sub-fee items were kept at these levels in last year’s fee update decision, and the Board will continue to hold the six items constant at their $250 levels in this decision.
Other below-cost fees – feeder line development program ($2,600)–item 13, petition for declaratory order involving a dispute over an existing rate or practice ($1,000)–item 58(i), and all other petitions for declaratory order ($1,400)–item 58(ii) – will also remain at their current fee levels.
3. Certain Fees from the 2002 New Fees Decision Held Below-Cost (Capped):
In the 2002 New Fees decision, the Board added 19 new fee or sub-fee items to its user-fee schedule. Six of those items were capped below their full costs for reasons discussed either in the 2002 New Fees final decision or in the Notice of Proposed Rulemaking for that proceeding. Those capped items included: request for determination of a dispute involving a rail construction that crosses the line of another carrier–item 12(iv); formal complaint involving rail maximum rates filed under the Three Benchmark methodology–former item 56(ii), now 56(iii); request for an order compelling a rail carrier to establish a common carrier rate–item 56(vi); request for expedited or temporary relief for service emergency or service inadequacy,–items 63(i) and 63(ii), respectively; and basic fee for STB adjudicatory services not otherwise covered–item 88.
In this decision, the Board also holds the fees for all six 2002 New Fee sub-item fees at their current levels. The Board adjusts the remaining 13 items established in 2002 New Fees to account for the changes to the Board’s various overhead costs. These items are included in the Schedule of Filing Fees in APPENDIX B.
4. Fee Items Pertaining to Solid-Waste Rail Transfer Facilities:
On January 14, 2009, the Board served both a Notice of Proposed Rulemaking and an Adoption of Interim Rules in Solid Waste Rail Transfer Facilities, EP 684. This rulemaking was based on the October 16, 2008 Clean Railroads Act of 2008, Pub. L. No. 110-432, 122 Stat. 4848 (CRA), which revised 49 U.S.C. § 10501(c)(2) to remove regulation of solid-waste rail transfer facilities from the Board’s jurisdiction, except as provided in that Act. The CRA limited the Board’s authority to regulate solid-waste rail transfer facilities to the issuance of land-use-exemption permits. In adopting Interim Rules, the Board established two new fees for the Board’s current master Schedule of Filing Fees, which are:
(16) An application for a land-use-exemption permit for a facility existing as of October 16, 2008 under 49 U.S.C. 10909……………………………….. $6,300.
(17) An application for a land-use-exemption permit for a facility not existing as of October 16, 2008 under 49 U.S.C. 10909 ……………….….………. $22,200.
On March 24, 2011, the Board served Revised Interim Rules governing land-use-exemption permits for solid waste rail transfer facilities and requested comments from interested parties on the modifications. The fees established for filings under the original Interim Rules, as adjusted here, increase over the 2011 Fee Update levels. When the Board applies the current update formula to these two items, adjusting them as it does for all other non-capped user fee or sub-fee items in the schedule, it results in 2012 fees of $6,200 and $21,700 for items (16) and (17), respectively. This results in an increase to the Solid Waste fees of $200 and $600, respectively, over their 2011 Fee Update counterpart levels.
RESULTS FROM THE 2012 UPDATE
The Board’s current master Schedule of Filing Fees, like last year, contains 125 fee or sub-fee items. Based on the various overhead cost changes instituted in this decision, we find the following results: (1) fees for 61 of the 125 fee or sub-fee items remain unchanged (about 48.8% of the Board’s 125 items); (2) fees for 34 items (about 27.2% of the 125 total) have increased by $100 or less; (3) fees for 19 items have increased by $200 to $900 (15.2% of the schedule); (4) fees for three items have been increased by $1,000 to $2,500; (5) fees for four items have been increased by $2,600 to $10,000; and (6) fees for four items have been increased by over $10,000.
The following table depicts the breakdown of user-fee changes for this proceeding.
SUMMARY OF USER-FEE CHANGES FOR 2012
NOTICE AND COMMENT REQUIREMENT
The fee changes adopted here generally are a product of the mechanical application of the current update formula at 49 C.F.R. § 1002.3(d), which was adopted through notice and comment procedures in Regulations Governing Fees for Service–1987 Update, 4 I.C.C.2d 137 (1987). This decision does not contain any new proposed fee or sub-fee items. Therefore, notice and comment are unnecessary for this proceeding. See Regulations Governing Fees For Services–1990 Update, 7 I.C.C.2d 3 (1990); Regulations Governing Fees For Services–1991 Update, 8 I.C.C.2d 13 (1991); and Regulations Governing Fees For Services–1993 Update, 9 I.C.C.2d 855 (1993).
REGULATORY FLEXIBILITY ANALYSIS
The Regulatory Flexibility Act of 1980, 5 U.S.C. §§ 601-612, generally requires a description and analysis of final rules that will have significant economic impact on a substantial number of small entities. In drafting a rule, an agency is required to: (1) assess the effect that its regulation will have on small entities; (2) analyze effective alternatives that may minimize a regulation’s impact; and (3) make the analysis available for public comment. 5 U.S.C. §§ 601-604. In its notice of proposed rulemaking, the agency must either include an initial regulatory flexibility analysis, 5 U.S.C. § 603(a), or certify that the proposed rule will not have a “significant impact on a substantial number of small entities,” 5 U.S.C. § 605(b), i.e., a direct impact on small entities “whose conduct is circumscribed or mandated” by the proposed rule. White Eagle Coop. Ass’n v. Conner, 553 F.3d 467, 480 (7th Cir. 2009).
Though these rules may have some impact on a small entity because a small entity may be subject to a filing fee, the rules provide a waiver provision of filing fees for those entities that can make the required showing of financial hardship. Therefore, any small entity that would incur a significant economic impact from paying one of the fees – many of which are in fact held at current levels in this decision – could make such a showing and have that fee waived. Accordingly, pursuant to 5 U.S.C. § 605(b), the Board certifies that the regulations proposed herein would not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act. A copy of this decision will be served upon the Chief Counsel for Advocacy, Office of Advocacy, U.S. Small Business Administration, Washington, DC 20416.
It is ordered:
1. 49 C.F.R. Part 1002 of the Code of Federal Regulations is amended as indicated in APPENDIX B. Notice of the final rules adopted here will be transmitted to Congress pursuant to Pub. L. 104-121 (Mar. 29, 1996).
2. These rules are effective on August 26, 2012.
By the Board, Chairman Elliott, Vice Chairman Mulvey, and Commissioner Begeman.
For reasons set forth in the preamble, title 49, chapter X, part 1002, of the Code of Federal Regulations is amended as follows:
Part 1002 - FEES
1. The authority citation for part 1002 continues to read as follows:
Authority: 5 U.S.C. 552(a)(4)(A) and 553; 31 U.S.C. 9701 and 49 U.S.C. 721(a).
* * * * *
2. In § 1002.2, paragraph (f) is revised as follows:
§ 1002.2 Filing fees.
(a) * * *
(f) Schedule of filing fees.
* * * * *
 The digest constitutes no part of the decision of the Board but has been prepared for the convenience of the reader. It may not be cited to or relied upon as precedent. Policy Statement on Plain Language Digests in Decisions, EP 696 (STB served Sept. 2, 2010).
 The current master fee schedule includes 125 fee or sub-fee items, as it did in the 2011 Fee Update.
 On December 22, 2010, the President signed an Executive Order containing the 2011 and 2012 pay schedules for certain Federal civilian employees. Exec. Order No. 13561, 75 Fed. Reg. 81,817 (Dec. 22, 2010). Pursuant to section 147 of the Continuing Appropriations Act, 2011 (Pub. L. No. 111-242), as amended by section 1(a) of the Continuing Appropriations and Surface Transportation Extensions Act, 2011 (Pub. L. No. 111-322, Dec. 22, 2010), the Executive Order provides that the 2011 and 2012 pay rates (beginning January 1, 2011 and ending December 31, 2012) for the civilian employee pay schedules covered by the order are not adjusted and remain at 2010 levels.
 That combined increase from year 2010 was composed of a general schedule increase of 1.50% and a locality payment increase of 0.92%, for a total of 2.42%.
 No updates have been instituted with regard to the Government Fringe Benefit Cost Factor. Therefore, pursuant to a memorandum (M-08-13) from the Executive Office of the President–Office of Management and Budget (OMB) dated March 11, 2008, and based on past Board precedent, the component parts of the Government Fringe Benefit Cost Factor have been updated as follows: the Standard Civilian Retirement Benefit remains at 26.10%; the Insurance and Health Benefit remains at 7.00%; the Medicare Benefit remains at 1.45%; the Miscellaneous Fringe Benefit remains at 1.70%; and the Leave and Holiday Benefit remains at 20.00%.
 The exact overhead factors utilized in APPENDIX A are as follows: Operations Overhead Factor = 0.17812720; Office Overhead Factor = 0.25910016; and Board Overhead Factor = 0.13360335.
 Regulations Governing Fees for Services Performed in Connection with Licensing and Related Services–2002 New Fees, EP 542 (Sub-No. 4) (STB served Aug. 29, 2002).
 Solid Waste Rail Transfer Facilities, EP 684, slip op. at 15 (STB served Jan. 14, 2009).
 Solid Waste Rail Transfer Facilities, EP 684, (STB served Mar. 24, 2011).
 The four sub-fee items shown with increases over $10,000 (actual increases of $45,000 each) are all covered under fee items 38 through 41 [parts (i)] dealing with Major Transactions, respectively. The four sub-fee items shown with increases of $2,600 to $10,000 (actual increases of $9,000 each) also pertain to fee items 38 through 41 [parts (ii)] dealing with Significant Transactions, respectively.
 There are several fee items, such as 2iii, which list a total sum in column 9 without broken-out costs in columns 1 through 8. The full costs for these items were not computed through a time-and-motion study. Instead, they were estimated in a prior fee update or in specific decisions, based either on a comparable fee item (e.g., the cost for non-rail-related petitions to revoke were based upon the cost for rail-related petitions to revoke) or through a special calculation intended to lower the user fee far below actual full costs (e.g., complaints for small rate cases–Three Benchmark).