[Federal Register Volume 85, Number 247 (Wednesday, December 23, 2020)]
[Rules and Regulations]
[Pages 83830-83832]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-28408]


=======================================================================
-----------------------------------------------------------------------

SURFACE TRANSPORTATION BOARD

49 CFR Part 1002

[Docket No. EP 758]


Filing Fee Waiver Requests

AGENCY: Surface Transportation Board.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Surface Transportation Board (Board or STB) clarifies and 
updates its rules regarding requests to waive or reduce certain filing 
fees.

DATES: This rule is effective on January 22, 2021.

FOR FURTHER INFORMATION CONTACT: Jonathon Binet at (202) 245-0368. 
Assistance for the hearing impaired is available through the Federal 
Relay Service at (800) 877-8339.

SUPPLEMENTARY INFORMATION: The Independent Offices Appropriations Act 
(IOAA), codified at 31 U.S.C. 9701, provides that each service of value 
provided by an agency to a person (except those on official business of 
the U.S. Government) shall be self-sustaining to the extent possible 
and, accordingly, permits agencies to establish fees for services 
provided by the agency. The Office of Management and Budget (OMB) 
subsequently established a policy of full cost recovery for government 
services under which agencies must assess and collect user fees. OMB 
Circular A-25, User Charges (July 8, 1993). Under these authorities, 
the Board's predecessor--the Interstate Commerce Commission (ICC)--
adopted

[[Page 83831]]

the fee structure at 49 CFR 1002.2 to ``cover all the [agency's] 
expenses, including administrative expenses.'' See Crystal City R.R.--
Aban. Exemption--in LaSalle, Zavala, & Dimmit Cntys., Tex., AB 427X et 
al., slip op. at 2 (ICC served Aug. 22, 1995).
    The Board's regulations also provide for waiver or reduction of 
filing fees in certain limited circumstances. Under 49 CFR 
1002.2(e)(1), the Board's filing fees generally are waived for filings 
made by a federal government agency or a state or local government 
entity.\1\ Additionally, in ``extraordinary situations,'' a filing fee 
may be waived or reduced if the applicant shows that the waiver or 
reduction is in the best interest of the public or that payment of the 
fee would impose an undue hardship on the requestor. 49 CFR 
1002.2(e)(2)(ii).
---------------------------------------------------------------------------

    \1\ For purposes of section 1002.2(e)(1), the phrases ``federal 
government agency'' or ``government entity'' do not include a quasi-
governmental entity or government-subsidized transportation company. 
The Board has indicated that a quasi-governmental entity can include 
a public service corporation. See Reguls. Governing Fees for Servs. 
Performed in Connection with Licensing & Related Servs.--Pol'y 
Statement, 5 S.T.B. 352, 354-55 (2000).
---------------------------------------------------------------------------

    In 2000, the Board issued a policy statement that clarified its 
anticipated approach to fee waivers in several respects. Reguls. 
Governing Fees for Serv. 5 S.T.B. 352 (2000). As relevant here, the 
Board clarified that for state and local government entities, fees 
would be assessed pursuant to section 1002.2 ``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, or that is a shipper, and comes before the Board in that 
capacity. . . . The fee waiver will be available to a state or local 
government entity that is not acting in the capacity of a carrier or 
shipper.'' 5 S.T.B. at 355. The Board also stated that ``[f]ees will 
also be assessed to quasi-governmental corporations or government-
subsidized transportation companies for any filing submitted for which 
there is a fee.'' Id.
    The Board has determined that it is appropriate to clarify its 
regulations and codify certain existing policies and practices to 
promote transparency and assist stakeholders who are considering 
requesting a waiver or reduction of filing fees. The Board will amend 
49 CFR 1002.2(e)(1) to provide, consistent with Regulations Governing 
Fees for Services, that the fee waiver for government entities is not 
available to (1) quasi-governmental entities or government-subsidized 
transportation companies, or (2) any state and local government entity 
that is acting in the capacity of a carrier or shipper, or any such 
entity that owns or proposes to own a carrier and is before the agency 
in its proprietary role. As explained in Regulations Governing Fees for 
Services, when government entities are acting in a commercial capacity, 
they should be treated the same as any other entity that acts in a 
commercial capacity for purposes of fee waivers. 5 S.T.B. at 354-55.\2\ 
This approach balances Congress' policy that agencies provide services 
in a manner that is ``self-sustaining to the extent possible'' through 
collection of fees, 31 U.S.C. 9701(a), with the agency's longstanding 
view that government entities should not generally be charged fees when 
the benefits of their actions flow to the general public. See 5 S.T.B. 
at 354-55.
---------------------------------------------------------------------------

    \2\ The fee waiver for federal government agencies, which is 
based on the IOAA's waiver for persons on official business of the 
United States Government, will continue to apply. Reguls. Governing 
Fees for Serv., 5 S.T.B. at 353.
---------------------------------------------------------------------------

    The Board will also clarify in section 1002.2(e)(1) and (e)(2) how 
applicants for fee waivers or reductions will be notified of decisions 
on their requests, consistent with the Board's existing practices. In 
certain circumstances when a fee waiver request is granted under 
section 1002.2(e)(1) during the processing of the filing, the filing 
will be stamped ``Filing Fee Waived'' and posted in the public docket, 
and the Board need not provide any further notice to the applicant that 
the fee waiver request was granted.\3\ In all other circumstances, if a 
request for a fee waiver or reduction is granted or denied under either 
section 1002.2(e)(1) or (e)(2), the Board, through the Chief of the 
Section of Administration in the Office of Proceedings, will notify the 
applicant by letter.\4\
---------------------------------------------------------------------------

    \3\ This process is only used in limited circumstances where it 
is clear that the government-entity applicant qualifies for a waiver 
of the fee (e.g., when a government entity requests to extend a 
negotiating period under a notice of interim trail use or 
abandonment).
    \4\ Pursuant to 49 CFR 1104.12(d), service of decisions and 
other Board issuances as appropriate will be made by electronic 
means except in the case of paper filers that have not consented to 
e-service, in which case service upon that recipient will be made by 
mail.
---------------------------------------------------------------------------

    Additionally, the Board has held that third parties lack any legal 
interest in, and therefore cannot challenge or appeal, the grant or 
denial of a fee waiver or reduction request. Hartwell First United 
Methodist Church--Adverse Aban. & Discontinuance--Great Walton R.R., AB 
1242 (STB served June 2, 2017). The Board will codify that principle by 
amending 49 CFR 1002.2(e) to provide that third-party appeals of fee 
waiver or reduction decisions are not permitted.
    Finally, the Board will amend the language in 49 CFR 1002.2(e) to 
consistently refer to the entity seeking a fee waiver or reduction as 
the ``fee waiver applicant.''

Administrative Procedure Act

    Under the Administrative Procedure Act (APA), the public generally 
may participate in the promulgation of rules through a notice and 
comment period. 5 U.S.C. 553(b) & (c). However, an agency may publish 
``rules of agency organization, procedure, or practice'' in final form 
without notice and comment. See 5 U.S.C. 553(b)(3)(A). Because the 
Board has determined that these updates to its regulations relate to 
agency organization, practice, and procedure, the Board finds that 
notice and public comment on these changes is unnecessary.

Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA), as amended by the Small 
Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 601-612, 
generally requires an agency to prepare a regulatory flexibility 
analysis of any rules subject to notice-and-comment rulemaking 
requirements, unless the agency certifies that the rule will not have a 
significant economic impact on a substantial number of small entities. 
Because the Board has determined that notice and comment are not 
required under the APA for these rulemakings, the requirements of the 
RFA do not apply.

Paperwork Reduction Act

    These final rules do not require a new or amended information 
collection under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501-
3521.

Congressional Review Act

    The Board has determined that this action is not a rule as defined 
by the Congressional Review Act, 5 U.S.C. 804(3).

List of Subjects in 49 CFR Part 1002

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

    It is ordered:
    1. The Board adopts the final rules as set forth in this decision. 
Notice of the adopted rules will be published in the Federal Register.
    2. This decision is effective on January 22, 2021.

    Decided: December 17, 2020.


[[Page 83832]]


    By the Board, Board Members Begeman, Fuchs, and Oberman.
Jeffrey Herzig,
Clearance Clerk.

    For the reasons set forth in the preamble, the Surface 
Transportation Board amends part 1002 of title 49, chapter X, of the 
Code of Federal Regulations as follows:

PART 1002--FEES

0
1. The authority citation for part 1002 continues to read as follows:

    Authority: 5 U.S.C. 552(a)(4)(A), (a)(6)(B), and 553; 31 U.S.C. 
9701; and 49 U.S.C. 1321.


0
2. Amend Sec.  1002.2 by revising paragraphs (e)(1), (e)(2)(i), (ii), 
and (iii) and adding paragraph (e)(3) to read as follows:


Sec.  1002.2   Filing fees.

* * * * *
    (e) * * *
    (1) Except as noted in this paragraph (e)(1), filing fees are 
waived for an application, petition, notice, tariff, contract summary, 
or other document that is filed by a federal government agency or a 
state or local government entity. A fee waiver is not available under 
this paragraph for a quasi-governmental entity or government-subsidized 
transportation company. A fee waiver is also not available to any state 
or local government entity that is acting in the capacity of a carrier 
or shipper or that owns or proposes to own a carrier and is before the 
agency in its proprietary role.
    (i) When to request. At the time that a filing is submitted to the 
Board, the fee waiver applicant may request a waiver of the fee 
prescribed in this part. Such request should be addressed to the Chief, 
Section of Administration, Office of Proceedings, Surface 
Transportation Board.
    (ii) Board action. The Board will either stamp the relevant filing 
with the notation ``Filing Fee Waived,'' or the fee waiver applicant 
will be notified of the decision to grant or deny the request for 
waiver by the Chief, Section of Administration, Office of Proceedings.
    (2) * * *
    (i) When to request. At the time that a filing is submitted to the 
Board, the fee waiver applicant may request a waiver or reduction of 
the fee prescribed in this part. Such request should be addressed to 
the Chief, Section of Administration, Office of Proceedings.
    (ii) Basis. The fee waiver applicant must show the waiver or 
reduction of the fee is in the best interest of the public, or that 
payment of the fee would impose an undue hardship on the fee waiver 
applicant.
    (iii) Board action. The Chief, Section of Administration, Office of 
Proceedings will notify the fee waiver applicant of the decision to 
grant or deny the request for waiver or reduction.
    (3) Review. No third-party appeals of fee waiver or reduction 
decisions are permitted.
* * * * *

[FR Doc. 2020-28408 Filed 12-22-20; 8:45 am]
BILLING CODE 4915-01-P