[Federal Register Volume 76, Number 34 (Friday, February 18, 2011)]
[Proposed Rules]
[Pages 9527-9529]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-3716]


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DEPARTMENT OF TRANSPORTATION

Surface Transportation Board

49 CFR Part 1002

[EP 542 (Sub-No. 18)]


Regulations Governing Fees for Services

AGENCY: Surface Transportation Board, DOT.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Board proposes to amend the regulations governing user 
fees for

[[Page 9528]]

services. The proposed amendment would set the fee for certain formal 
complaints at $350.

DATES: Comments on this proposal are due by April 19, 2011; and replies 
are due by May 19, 2011.

ADDRESSES: Comments may be submitted either via the Board's e-filing 
format or in the traditional paper format. Any person using e-filing 
should attach a document and otherwise comply with the instructions at 
the E-Filing link on the Board's Web site, at http://www.stb.dot.gov. 
Any person submitting a filing in the traditional paper format should 
send an original and 10 copies to: Surface Transportation Board, Attn: 
Docket No. EP 542 (Sub-No. 18), 395 E Street, SW., Washington, DC 
20423-0001.
    Copies of paper comments will be available for viewing and self-
copying at the Board's Public Docket Room, Room 131; paper and 
electronic copies will be posted to the Board's Web site.

FOR FURTHER INFORMATION CONTACT: Valerie Quinn at 202-245-0382. 
Assistance for the hearing impaired is available through the Federal 
Information Relay Service (FIRS) at 1-800-877-8339.

SUPPLEMENTARY INFORMATION: The Board sets user fees in accordance with 
the Independent Offices Appropriation Act of 1952 (IOAA). The IOAA 
directs agencies such as the Board to establish fees for specific 
services that it provides to identifiable recipients, so that the 
service provided may be ``self-sustaining to the extent possible.'' 31 
U.S.C. 9701(a). The fees must be ``fair'' and be based on a variety of 
factors, including (but not limited to) the costs to the agency of each 
covered service, public policy or interest served, and the value of the 
service to the entity receiving it. 31 U.S.C. 9701(b). The Board's fees 
transfer some of the cost of funding the agency from the general 
taxpayer to the entity receiving the benefit of a particular Board 
action.\1\
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    \1\ The fees established by the Board for specific services 
offset the Board's appropriated funding, and do not directly add to 
it.
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    Historically, certain fees have been set at levels below the full 
cost. For example, fee sub-item 58(i), a petition for declaratory order 
involving a dispute over an existing rate or practice, and fee sub-item 
58(ii), all other petitions for declaratory order, were held at $1,000 
and $1,400, respectively, well below full cost to agency, to avoid any 
possible ``chilling effect '' \2\ that higher fees would have on access 
by shippers and consumers to the Board's adjudicatory process. See 
Regulations Governing Fees for Servs. Performed in Connection With 
Licensing and Related Servs., 1 S.T.B. 179, 199-200 (1996). Filing fees 
for formal complaints generally have been set based on a percentage of 
the full cost. Id. at 195-99. Since 2008, pursuant to Congressional 
directive, we have held the fees for all rate complaints at or below 
$350, the level of filing fees for complaints in district court. Fees 
for competitive access complaints and complaints seeking establishment 
of a common carrier rate are also below $350.
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    \2\ The Interstate Commerce Commission (ICC) previously defined 
a ``chilling effect'' as the level at which the filing fee 
represents a significant factor in determining whether to bring a 
complaint. See Regulations Governing Fees for Servs. Performed in 
Connection with Licensing and Related Servs., 1 I.C.C. 2d 196, 198 
(1984).
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    Thus, in our current fee structure, we have a large gap between the 
relatively low fees for most complaints and for petitions for 
declaratory orders and the $20,600 fee for all other formal complaints, 
a gap that is not good public policy. Therefore, the Board proposes to 
lower the fee for sub-item 56(iv) [all other formal complaints except 
competitive access] from $20,600 to $350. Under this proposal, the fee 
for sub-items 56(i) [full Stand-Alone Cost rate complaints] and 56(ii) 
[Simplified-SAC rate complaints] would be set at $350, and the fee for 
sub-item 56(iii) [Three Benchmark rate complaints], the most likely 
path to rate relief for small shippers, would remain at $150.
    We believe three sound public policy considerations call for the 
Board to set relatively low fees for filing a complaint. Under the ICC 
Termination Act of 1995,\3\ Congress eliminated authority previously 
held by the ICC to initiate investigations of alleged illegal or 
unreasonable rates or practices. As a result, the filing of a complaint 
by shippers or other entities is the Board's only mechanism for 
investigating and addressing potential rate violations or other 
unlawful practices.
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    \3\ Public Law 104-88, 109 Stat. 803 (1995).
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    Second, it is possible that the relatively high fees for filing 
formal complaints under item 56(iv)--currently $20,600--may be having a 
chilling effect on shippers and other entities seeking to bring a 
complaint to the Board. For example, over the past 10 years, our Rail 
Consumer and Public Assistance unit has assessed hundreds of informal 
complaints related to service and demurrage, and although many have 
been successfully resolved, several that were unresolved did not become 
the subjects of formal complaints. While we presume that some of these 
cases were not brought before the Board for reasons unrelated to fees, 
the proposed fee amendment would minimize any chilling effect of high 
fees, and encourage outside parties to bring potential regulatory 
violations before the Board for adjudication.
    Finally, the proposed amendment should result in better management 
of the Board's docket and use of Board resources. Maintaining 
comparatively low filing fees for petitions for declaratory orders, 
coupled with the high fee for complaints (other than rate or 
competitive access complaints) under fee item 56(iv), appears to have 
led parties to seek broad declarations by the Board rather than asking 
the Board to resolve individual complaints. In some cases, an 
individual complaint may have been preferable and the Board's fee 
structure should not be the deciding factor in a party's decision of 
what type of case to bring.
    While not part of the changes proposed here, we intend, in a future 
proceeding, to consider revising the fees for declaratory order 
proceedings to better reflect the cost of these proceedings to the 
agency. However, to encourage courts to continue to seek our advice, 
when appropriate, under the doctrine of primary jurisdiction, and so as 
not to unduly burden parties, we also intend to establish a new, 
comparatively low fee item for petitions for declaratory order that 
result from court referrals.
    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).
    Though these rules may impact some small entities because they may 
be subject to a filing fee, the fees proposed above would change only 
the fee for ``all other formal complaints except competitive access 
complaints,'' by reducing that fee from $20,600 to $350. Accordingly, 
pursuant to 5 U.S.C.

[[Page 9529]]

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.
    This action will not significantly affect either the quality of the 
human environment or the conservation of energy resources. This 
rulemaking will affect the following subjects:

List of Subjects in 49 CFR Part 1002

    Administrative practice and procedure, Common carriers, Freedom of 
information.

    Decided: February 14, 2011.

    By the Board, Chairman Elliott, Vice Chairman Nottingham, and 
Commissioner Mulvey.
Jeffrey Herzig,
Clearance Clerk.

Code of Federal Regulations

    For reasons set forth in the preamble, the Surface Transportation 
Board proposes to amend part 1002 of title 49, chapter X of the Code of 
Federal Regulations 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 Sec.  553; 31 U.S.C. 9701 
and 49 U.S.C. 721(a). Section 1002.1(g)(11) also issued under 5 
U.S.C. 5514 and 31 U.S.C. 3717.

    2. In Sec.  1002.2, revise paragraph (f)(56)(iv) to read as 
follows:


Sec.  1002.2  Filing fees.

* * * * *
    (f) * * *

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                  Type of proceeding                          Fee
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                              * * * * * * *
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                       PART V: Formal Proceedings
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                              * * * * * * *
 (56) * * *
 (iv) All other formal complaints (except competitive              $350
 access complaints)..................................
 
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[FR Doc. 2011-3716 Filed 2-17-11; 8:45 am]
BILLING CODE 4915-01-P