|SURFACE TRANSPORTATION BOARD DECISION DOCUMENT|
|REGULATIONS GOVERNING FEES FOR SERVICES PERFORMED IN CONNECTION WITH LICENSING AND RELATED SERVICE--2010 UPDATE|
|DECISION UPDATES THE BOARD USER 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. MOST OF THE BOARD'S USER FEES EITHER DECREASE OR REMAIN UNCHANGED IN 2010.|
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|Full Text of Decision|
40539 SERVICE DATE – JULY 28, 2010
This decision will be included in the bound volumes
of printed reports at a later date.
Docket No. EP 542 (Sub-No. 17)
REGULATIONS GOVERNING FEES FOR SERVICES PERFORMED
IN CONNECTION WITH LICENSING AND RELATED SERVICES–2010 UPDATE
Decided: July 22, 2010
The Board adopts the 2010 User Fee Update.
The Surface Transportation 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–2009 Update, EP 542 (Sub-No. 16) (STB served May 5, 2009) (2009 Fee Update), and became effective June 4, 2009. 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 many of the Board’s user fees. This decrease is primarily a result of our application of the 2010 update factors, described below. In general, a Government-wide salary increase and a slight increase in overhead operation costs are offset by decreases in the Board’s general and administrative expenses. As a result, most of the Board’s user fees either decrease or remain unchanged in 2010.
2010 UPDATE FACTORS
For the 2010 update, direct-labor cost data reflect the combined 2010 Government-wide general and locality salary increase of 2.42% that took effect in January 2010. However, user fees in this decision have generally either decreased or remained unchanged from those in the 2009 Fee Update. These decreased and unchanged fees are 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) 2009 actual budget data, the Board’s Office General and Administrative Expense Factor decreased from 28.18% to 24.04%, while the Operations Overhead Factor, developed from FY 2009 payroll cost data, increased slightly from 19.01% to 19.23%. Lastly, the Board’s General and Administrative Expense Factor decreased from 11.93% to 10.45%. The 2010 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 pay increase of 2.42%, coupled with 2 of the Board’s 3 overhead cost factors decreasing by a combined total of approximately 5.60%, the 2010 full costs have dropped by about 2.0% when compared to the 2009 Fee Update full cost levels.
FEDERAL REGISTER COST
There are no changes from the 2009 Fee Update decision to publication costs. The United States Government Printing Office (GPO) has informed the Board that changes in GPO’s March 2006 Circular Letter No. 609, with publication costs at $163 per column, remain in effect.
ADDITIONAL CHANGES TO FEES
1. Recent Changes to Formal Rate Complaint Fees:
In Simplified Standards for Rail Rate Cases, EP 646 (Sub-No. 1) (STB served Sept. 5, 2007), the Board modified its rules at 49 C.F.R. § 1002.2(f)(56) to establish fees for new complaint procedures developed by the Board for small and medium-size rate cases. As of that date, § 1002.2(f)(56) read as follows:
Subsequent legislation mandated further revisions to the fee schedule adopted in Simplified Standards for Rail Rate Cases. On December 26, 2007, the Consolidated Appropriations Act, Pub. L. No. 110-161, 121 Stat. 1844 (2007) was enacted into law. In addition to establishing the Board’s FY 2008 funding, it also stated, in section 194, the following:
None of the funds appropriated or otherwise made available under this Act may be used by the Surface Transportation Board of the Department of Transportation to charge or collect any filing fee for rate complaints filed with the Board in an amount in excess of the amount authorized for district court civil suit filing fees under section 1914 of title 28, United States Code.
As a result, the Board modified 2 of the 6 sub-fee items in 49 C.F.R. § 1002.2(f)(56) of its User Fee schedule. Regulations Governing Fees for Services Performed in Connection with Licensing and Related Services–2007 Update, EP No. 542 (Sub-No. 14) (STB served Jan. 25, 2008). Specifically, the fees for both a formal complaint filed under the coal rate guidelines and a complaint involving rail maximum rates filed under the Simplified-SAC methodology were reduced to $350, the current district court filing fee under 28 U.S.C. § 1914. Because Congress mandated continuation of the $350 filing-fee limit in the Omnibus Appropriations for FY 2009, and again mandated it with the same language in the Omnibus Appropriations for FY 2010, in this decision the Board continues to hold those 2 rate-case fees at that $350 level. These fees, and others the Board addresses, are included in the Schedule of Filing Fees in APPENDIX B.
The fee for all other formal complaints (i.e., non-rate complaints)–sub-item 56(iv)–was not affected by the above referenced Appropriation legislation. Thus, in this proceeding, we set the fee for this sub-item at $20,600, which reflects a $500 decrease from the 2009 sub-fee item amount and which takes into account the 2010 cost and overhead changes.
2. Other Original Below-Cost Fees (Capped):
Historically, certain fees have been held to levels 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 these 6 fee and sub-fee items to $250. The $250 fees were predicated on a measurement of the full cost level changes between March 2004 and March 2009. Because these fee and sub-fee items represent greatly reduced fee amounts, the Board is holding the 6 items constant at the $250 level in this decision.
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 remain at their current fee levels because they also represent greatly reduced fee amounts.
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 the $250 level. The 6th capped sub-fee item—item 56(iii)—will be held at $150 because it has only been in effect for approximately 2½ years. The Board adjusts the remaining 13 items established in 2002 New Fees to account for the 2010 salary increase and changes to the Board’s 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 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.
However, because these Interim Rules now have been in effect for over 1 year, the Board will apply 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 2010 fees of $6,000 and $21,100 for items (16) and (17), respectively (reductions from the 2009 Fee Update decision of $300 and $1,100, respectively).
RESULTS FROM THE 2010 UPDATE
The Board’s current master Schedule of Filing Fees, like last year, contains 125 fee or sub-fee items. Based on the various direct-labor and overhead changes instituted in this decision, we find the following: (1) legislation holds fees for 2 of these 125 items at $350; (2) 4 sub-fee items out of the 125 in the master schedule show fee increases that range from $1 to $3; (3) fees for 95 items (76% of the Board’s fee schedule) are either unchanged (63 items) or decreased by $100 or less (32 items); (4) of the 26 fees with decreases greater than $100, 18 are decreased by less than $2,000; and (5) all 8 of the items that decreased by $2,100 or more pertain to major or significant financial transactions.
Many fees had either small decreases or no decreases, because the combined 2010 wage increase of 2.42% was offset by 2 of the 3 overhead factors, which decreased by greater percentages (approximately 5.60% combined). Fee or sub-fee items that do not require a Federal Register notice show a net drop in full cost of about 2.0% for 2010 from the 2009 Fee Update. The following table depicts the breakdown of user-fee changes for this proceeding.
SUMMARY OF USER-FEE CHANGES FOR 2010
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, although it does contain 2 fees that were established last year in Solid Waste Rail Transfer Facilities, as described above. 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). The impact must be 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, if any small entity would incur a
significant economic impact from paying one of the fees, they 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,
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 27, 2010.
By the Board, Chairman Elliott, Vice Chairman Mulvey, and Commissioner Nottingham.
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. Section 1002.1 is amended by revising paragraphs (b) and (c); paragraph (f)(1); and the table in paragraph (g)(6); to read as follows:
§ 1002.1 Fees for record search, review, copying, certification, and related services.
* * * * *
(b) Service involved in examination of tariffs or schedules for preparation of certified copies of tariffs or schedules or extracts therefrom at the rate of $41.00 per hour.
(c) Service involved in checking records to be certified to determine authenticity, including clerical work, etc., identical thereto, at the rate of $28.00 per hour.
* * * * *
(f) * * *
(1) A fee of $71.00 per hour for professional staff time will be charged when it is required to fulfill a request for ADP data.
* * * * *
(g) * * *
(6) * * *
* * * * *
3. In § 1002.2, paragraph (f) is revised as follows:
§ 1002.2 Filing fees.
(a) * * *
(f) Schedule of filing fees.