|SURFACE TRANSPORTATION BOARD DECISION DOCUMENT|
|REGULATIONS GOVERNING FEES FOR SERVICES PERFORMED IN CONNECTION WITH LICENSING AND RELATED SERVICES-2011 UPDATE|
|DECISION UPDATED THE 2011 FEES THAT THE PUBLIC MUST PAY TO FILE CERTAIN CASES AND PLEADINGS WITH THE BOARD.|
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|Full Text of Decision|
41725 SERVICE DATE – JULY 28, 2011
This decision will be included in the bound volumes
of printed reports at a later date.
Docket No. EP 542 (Sub-No. 19)
REGULATIONS GOVERNING FEES FOR SERVICES PERFORMED
IN CONNECTION WITH LICENSING AND RELATED SERVICES–2011 UPDATE
Decided: July 27, 2011
Digest: The Board updates for 2011 the fees that the public must pay to file certain cases and pleadings with the Board. All of the Board’s user fees either decrease slightly or remain 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–2010 Update, EP 542 (Sub-No. 17) (STB served July 28, 2010) (2010 Fee Update), and became effective August 27, 2010. 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 decrease 12 of the Board’s user fee or sub-fee items. The other 113 fee or sub-fee items remain unchanged. Due to a freeze on Government-wide wages and salaries, as well as a slight overall decrease in overhead operation and publication costs, all of the Board’s user fees either decrease slightly or remain unchanged in the 2011 Fee Update. The results of our application of the 2011 update factors are described below.
2011 UPDATE FACTORS
Due to the freeze placed on the 2011 direct-labor costs, the 2011 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. Therefore, the fees in this decision generally have either decreased or remained unchanged from those in the 2010 Fee Update, due mainly to various Board overhead cost 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) 2010 actual budget data, the Office General and Administrative Expense Factor has decreased from 24.04% to 22.21%, while the Operations Overhead Factor, developed from FY 2010 payroll cost data, has decreased from 19.23% to 18.58%. Lastly, the Board’s General and Administrative Expense Factor increased from 10.45% to 12.62%. The 2011 full cost for each fee or sub-fee item developed from these factors is set forth in column 9 of APPENDIX A.
Due to the absence of a pay increase, a decrease in 2 of the Board’s 3 overhead cost factors, and, as noted immediately below, a reduction in publication costs, the 2011 full cost levels have dropped slightly vis a vis their comparable 2010 Fee Update full cost levels.
FEDERAL REGISTER COST
There is a small decrease in publication costs from the 2010 Fee Update decision. The United States Government Printing Office (GPO) has informed the Board that, due to changes called for in GPO’s July 2, 2010 Circular Letter No. 777, publication costs now are set at $159 per column, which represents a decrease of $4 from last year’s cost of $163 per column and equates to a decrease of about 2.45% for any fee or sub-fee items that require Federal Register publication.
1. Formal Complaint Fees:
On February 15, 2011, the Board served a notice of proposed rulemaking, in which we proposed that all formal complaint fees be set at $350 (except for Three Benchmark rate complaints, the fee for which was already set at $150 (sub-item 56(iii)). The Board proposed setting the fee for full Stand-Alone Cost rate complaints (fee item 56(i)) at $350; setting the fee for Simplified-SAC rate complaints at $350 (sub-item 56 (ii)); and reducing 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 Feb. 15, 2011). On July 7, 2011, the Board adopted a final rule that set the fees for sub-items 56(i), (ii), and (iv) at $350, and continued to hold the Three Benchmark rate complaint fee at its previously set level of $150. These fees 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 would have a chilling effect on some complaints or petitions, 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 6 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 6 items constant at their $250 levels in this decision.
Other below-cost fees – fees for item 13, feeder line development program ($2,600), item 58(i), petition for declaratory order involving a dispute over an existing rate or practice ($1,000), and item 58(ii), all other petitions for declaratory order ($1,400) – will also remain at their current fee levels.
3. Certain Fees from the 2002 New Fees Decision Held Below-Cost (Capped):
In 2002 New Fees, 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: item 12(iv), request for determination of a dispute involving a rail construction that crosses the line of another carrier; former item 56(ii), now 56(iii), formal complaint involving rail maximum rates filed under the Three Benchmark methodology; item 56(vi), request for an order compelling a rail carrier to establish a common carrier rate; items 63(i) and 63(ii), request for expedited or temporary relief for service emergency or service inadequacy, respectively; and item 88, basic fee for STB adjudicatory services not otherwise covered.
In this decision, the Board also holds the fees for 5 out of the 6 2002 New Fee sub-item fees at their current $250 levels. The 6th capped sub-fee item—item 56(iii)—will be held at $150. The Board adjusts the remaining 13 items established in 2002 New Fees to account for the changes to the Board’s various overhead and publication 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 2 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 in the 2010 Fee Update, will remain in place for filings under these new rules. Therefore, the Board applies the current update formula to these 2 items, adjusting them as it does for other non-capped user fee or sub-fee items in the schedule. Application of the formula results in 2011 fees of $6,000 and $21,100 for items (16) and (17), respectively, which results in no change from their 2010 Fee Update levels.
RESULTS FROM THE 2011 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 and publication cost changes instituted in this decision, we find the following: (1) legislation continues to hold fees for 2 of these 125 items at $350; (2) fees for an additional 111 items (about 90% of the Board’s fee schedule) are unchanged; (3) fees for 3 items are decreased by $100; (4) fees for 4 items are decreased by $300; (5) fees for 4 items are decreased by $1,400; and (6) the 1 fee for sub-fee item 56(iv) is decreased by $20,250.
The following table depicts the breakdown of user-fee changes for this proceeding.
SUMMARY OF USER-FEE CHANGES FOR 2011
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).
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 –
which in fact are either held at current levels or reduced 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
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 September 2, 2011.
By the Board, Chairman Elliott, Vice Chairman Begeman, and Commissioner Mulvey.
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.