[Federal Register Volume 67, Number 59 (Wednesday, March 27, 2002)]
[Notices]
[Pages 14771-14772]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-7339]


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DEPARTMENT OF TRANSPORTATION

Surface Transportation Board

[STB Finance Docket No. 34117]


Pemiscot County Port Authority--Construction of a Line of 
Railroad in Pemiscot County, MO

AGENCY: Surface Transportation Board.

ACTION: Notice of ruling on fee waiver.

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SUMMARY: The Surface Transportation Board (Board) grants an appeal of 
the denial of a fee waiver request, but reaffirms that henceforth it 
will narrowly apply its rule providing for a waiver of filing fees for 
state and local government entities, as originally intended.

DATES: This action is effective immediately.

FOR FURTHER INFORMATION CONTACT: Vernon A. Williams, (202) 565-1650 
[TDD/TTY for the hearing impaired: 1-800-877-8339].

SUPPLEMENTARY INFORMATION: This decision addresses an appeal of a Board 
order denying a request for waiver of a filing fee. Under the law, the 
Board is required to assess fees upon parties filing pleadings seeking 
to engage the Board's processes. The fees that the Board charges were 
established by the Board's predecessor, the Interstate Commerce 
Commission (ICC), in Regulations Governing Fees for Services, 1 
I.C.C.2d 60 (1984), and they have been amended on various occasions.
    The Board's fee program is described fully in 49 CFR 1002.2. Under 
the provisions of 49 CFR 1002.2(e)(1), a government entity may request 
a waiver of the otherwise applicable filing fee. In Regulations 
Governing Fees for Services Performed in Connection with Licensing and 
Related Services--Policy Statement, STB Ex Parte No. 542 (Sub-No. 6) 
(STB served Dec. 6, 2000) (Policy Statement), the Board reviewed how 
the government-entity fee waiver provision had been used by ``state or 
local government entit[ies] acting in a proprietary capacity as 
[carriers]'' (id. at 3), specifically citing cases in which ``states, 
state agencies and local transportation authorities and districts have 
submitted filings to acquire rail lines, usually for operation by a 
third party.'' Id. The Board expressed the view that, in the past, 
waivers had been too readily issued, and emphasized that, for the 
future, it would closely adhere to the strict guidelines established by 
the ICC in determining whether to grant a waiver. In particular, the 
Board stated (id. at 4, emphasis in original) that ``fees will be 
assessed to any entity (a state or local governmental entity, a quasi-
governmental entity, or a government-subsidized transportation company) 
that owns or proposes to own a carrier, * * * and comes before the 
Board in that capacity.''
    In this case, Pemiscot County Port Authority (Pemiscot) filed a 
request with the Office of the Secretary for waiver of the $51,500 
filing fee required in connection with a petition for a construction 
exemption under 49 U.S.C. 10502. Because Pemiscot would be seeking 
authority to construct and operate (through a third party operator) a 
line of railroad, by letter dated December 10, 2001, Pemiscot's request 
for waiver of the fee was denied. On March 8, 2002, Pemiscot submitted 
an untimely appeal, which we will accept for filing, of the decision 
denying the fee waiver request. In its appeal, Pemiscot argues that 
even though it will retain a residual common carrier obligation if it 
contracts with a third party to operate the proposed line, the project 
that it wants to pursue would ``convey[] a public benefit, * * * the 
project would not exist but for public funding, and * * * the 
transaction does not entail any effort to gain an advantage over 
another party.'' Pemiscot also argues that a waiver is in the best 
interest of the public and that denial of the waiver would impose an 
undue hardship on it.
    Pemiscot has clearly not shown that the denial of its waiver 
request was erroneous, and indeed, the decision follows closely the 
guidelines laid out in the Policy Statement. Nevertheless, because a 
party in a different case was granted a fee waiver after issuance of 
the Policy Statement under circumstances not substantially different 
from those prevailing here, we will grant

[[Page 14772]]

Pemiscot's appeal and waive the filing fee that should be required in 
this case. However, in the future, we will construe the waiver 
provision narrowly, as we said we would do in the Policy Statement.

    Decided: March 21, 2002.

    By the Board, Chairman Morgan and Vice Chairman Burkes.
Vernon A. Williams,
Secretary.
[FR Doc. 02-7339 Filed 3-26-02; 8:45 am]
BILLING CODE 4915-00-P