[Federal Register Volume 65, Number 235 (Wednesday, December 6, 2000)]
[Rules and Regulations]
[Pages 76174-76175]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-30965]


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DEPARTMENT OF TRANSPORTATION

Surface Transportation Board

49 CFR Part 1002

[STB Ex Parte No. 542 (Sub-No. 6)]


Regulations Governing Fees for Services Performed in Connection 
With Licensing and Related Services--Policy Statement

AGENCY: Surface Transportation Board.

ACTION: Policy Statement.

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SUMMARY: The Surface Transportation Board (Board) announces that 
henceforth it will apply its rule providing for a waiver of filing fees 
for state and local government entities only as originally intended. 
More specifically, the fee waiver rule will apply only to state and 
local government entities and only when they file on behalf of the 
general public. Any state or local government entity filing as an owner 
or proposed owner of a carrier or as a shipper, as well as quasi-
governmental corporations and government-subsidized transportation 
companies, will not qualify for the fee waiver.

DATES: This policy statement is effective January 5, 2001.

FOR FURTHER INFORMATION CONTACT: Anne K. Quinlan, (202) 565-1727 [TDD/
TTY for the hearing impaired: 1-800-877-8339].

SUPPLEMENTARY INFORMATION: Under the Independent Offices Appropriations 
Act, 31 U.S.C. 9701 (IOAA), agencies are obliged to establish fees for 
specific services provided to identifiable beneficiaries.\1\ Office of 
Management and Budget (OMB) Circular No. A-25 establishes a policy of 
full cost recovery for government services and contains guidelines for 
federal agencies to apply in assessing and collecting those fees.
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    \1\ 31 U.S.C. 9701 provides, in pertinent part:
    (a) It is the sense of Congress that each service or thing of 
value provided by an agency * * * to a person (except a person on 
official business of the United States Government) is to be self-
sustaining to the extent possible.
    (b) The head of each agency * * * may prescribe regulations 
establishing the charge for a service or thing of value provided by 
the agency. Regulations prescribed by the heads of executive 
agencies are subject to the policies prescribed by the President and 
shall be as uniform as practicable. Each charge shall be--
    (1) fair; and
    (2) based on--
    (A) the costs to the Government;
    (B) the value of the service or thing to the recipient;
    (C) public policy or interest served; and
    (D) other relevant facts.
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    Pursuant to the IOAA and Circular No. A-25, the Board's 
predecessor, the Interstate Commerce Commission (ICC), undertook a 
thorough examination of the fee policy in Regulations Governing Fees 
for Services, 1 I.C.C.2d 60 (1984) (Fees for Services). The ICC adopted 
numerous new fee items and provided for fee waivers in certain 
circumstances, including a fee waiver for government entities, 49 CFR 
1002.2(e)(1). In so doing, the ICC established strict guidelines for 
applying the government-entity fee waiver--a policy that the Board will 
henceforth follow more strictly in applying the rule.
    Rule 1002.2(e)(1) provides as follows:

    (e) Waiver or reduction of filing fees. It is the general policy 
of the Board not to waive or reduce filing fees except as described 
below:
    (1) Filing fees are waived for an application or other 
proceeding which is filed by a federal government agency, or a state 
or local government entity. For purposes of this section the phrases 
``federal government agency'' or ``government entity'' do not 
include a quasi-governmental corporation or government subsidized 
transportation company.

    The fee waiver for federal government agencies is based on the 
IOAA, which excludes from its scope persons on official business of the 
United States Government. The fee waiver for state and local government 
entities was based on the provisions of former Circular No. A-25 that 
allowed agencies to make exceptions to the policy of full cost recovery 
where the recipient of a service was engaged in a non-profit activity 
designed for the public safety, health, or welfare, or if payment of 
the full fee by a state, local government, or non-profit group would 
not be in the interest of the program.\2\
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    \2\ Circular No. A-25, revised in 1993, no longer contains an 
exception from the policy of full cost recovery for state and local 
governments.
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    In the Fees for Services proceeding, the ICC originally proposed to 
assess 50% of applicable fees to state or local government entities. It 
ultimately decided, however, to assess no fee to state and local 
government entities. The agency explained that state and local 
government entities generally do not receive direct benefits from 
participation in agency proceedings and that the benefits instead flow 
to the general public residing in the area. Fees for Services at 89. 
But the ICC limited the circumstances under which the fee waiver would 
apply, specifically providing that the waiver should not apply where a 
state agency owns a carrier and is before the ICC in its proprietary 
role. The ICC stated (id. at 71):

    [W]e conclude here that when a governmental agency owns or 
subsidizes some transportation entity and comes before the 
Commission in that capacity, it should be required to pay the entire 
fee that would otherwise be applicable. When a State-owned 
transportation entity acts in the same capacity as a privately owned 
transportation entity, it should be treated as such. The Interstate 
Commerce Act does not exempt such transportation entities, and we do 
not believe that those entities should be treated differently from 
private transportation entities for purposes of determining user 
fees.
    The State-owned carrier in those situations receives the 
``special benefits'' envisioned under the IOAA and Budget Circular 
A-25. We recognize that there may be public benefits associated with 
a State-owned entity. However, those public benefits are 
indistinguishable from the public benefits that are incidental to 
the special benefits conferred upon private carriers in a similar 
posture. Therefore, we believe fees should be charged to the state-
owned entities.


[[Page 76175]]


    In recent years the fee waiver for state and local government 
entities rule has been applied more broadly than envisioned in Fees for 
Services. We have waived fees in cases where the filer has been a state 
or local government entity acting in a proprietary capacity as a 
carrier. For example, the fee waiver has been applied where states, 
state agencies and local transportation authorities and districts have 
submitted filings to acquire rail lines, usually for operation by a 
third party. We also have waived fees where the filer has been a quasi-
government corporation. For example, waivers have been granted if the 
filer demonstrated that it was created through legislation designed to 
meet a public purpose.
    Public corporations are created by statute for public purposes only 
and the interests of public corporations are the exclusive property and 
domain of the government. Private corporations, on the other hand, are 
created for private, rather than purely public, purposes and their 
powers are exercised for the profit or advantage of the stockholders. 
Quasi-public (or quasi-governmental) corporations, commonly referred to 
as public service corporations, have the appearance of being public, 
but in many respects they are private. Quasi-public corporations are 
private corporations that have special powers or privileges of a public 
nature, such as the power of eminent domain, to enable them to carry 
out those functions that benefit the public; but they also exercise 
their powers to further the interests of their stockholders. 
Corporations are not considered public merely because they are 
creatures of legislation or established to promote the public interest. 
In our view, only the true public corporation should qualify for a 
waiver. Whether a corporation should be considered public or not 
depends on the terms of its charter and the laws under which it has 
been organized.
    We are not, through this policy, seeking to inhibit parties from 
using our processes, or to undercut transactions by which, for example, 
local bodies attempt to facilitate continued rail service. But Congress 
has directed us to collect appropriate fees, and we must make every 
effort to conform our fee assessment and collection practices to the 
policy of full cost recovery that underlies the IOAA and Circular No. 
A-25. Thus, filers must henceforth clearly demonstrate that they are 
true public corporations in order to qualify for the fee waiver. 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, or that is a shipper, 
and comes before the Board in that capacity. See Fees for Services at 
71. Fees will also be assessed to quasi-governmental corporations or 
government-subsidized transportation companies for any filing submitted 
for which there is a fee. 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. Thus, for example, a state or local entity filing 
an adverse (or third party) abandonment proposal would benefit from the 
waiver rule because the filer would not be appearing as a carrier or as 
a shipper.
    Entities that do not qualify for the fee waiver may request a fee 
waiver or reduction in fees under 49 CFR 1002.2(e)(2), which provides 
that in extraordinary situations the Board will waive or reduce fees. 
The requestor must show 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.
    As a final matter, we are clarifying the process by which waiver 
requests will be administered at the Board. Currently, a waiver request 
must be submitted at the time the related filing is submitted, and a 
filing (other than a tariff) not accompanied by the appropriate fee is 
deficient. See 49 CFR 1002.2(e)(2)(i), 1002.2(b). Waiver requests are 
considered only when accompanied by the related filing; waiver requests 
submitted in advance of the filing to which they relate are not 
accepted. When a waiver request is accompanied by the related filing 
and the appropriate fee, the filing is processed immediately, the fee 
is deposited, and the waiver request is acted upon in due course. If 
the waiver is granted, the filer receives a refund from the U. S. 
Department of the Treasury.
    We understand that some parties may find it financially burdensome 
to submit the fee and then run the risk that the waiver will not be 
granted. We will permit parties to file waiver requests without 
submitting the fees; however, as we sometimes need to review the 
substantive document in order to determine whether the waiver ought to 
be granted, we will not accept a waiver request unless the substantive 
document is also filed. Moreover, if a waiver request is filed with the 
related filing but without the appropriate fee, we will be unable to 
process the substantive filing until the fee issue is resolved. 
Therefore, whenever a waiver request is filed without an appropriate 
fee, the substantive filing will be processed only after the waiver 
request has been granted or, if the request is denied, upon receipt of 
the appropriate fee. A filer seeking a waiver and prompt processing of 
a filing should, therefore, submit the fee, the related filing and the 
waiver request simultaneously.
    The legal and policy bases underlying rule 1002.2(e)(1) already 
have been established in Fees for Services. Thus, we do not propose a 
new rule or policy here, but rather announce a stricter adherence to a 
policy that has already been established and was never formally 
changed. For that reason, we do not seek public comment on this 
announcement that we will henceforth follow this policy more literally.

    Decided: November 29, 2000.

    By the Board, Chairman Morgan, Vice Chairman Burkes, 
Commissioner Clyburn.
Vernon A. Williams,
Secretary.
[FR Doc. 00-30965 Filed 12-5-00; 8:45 am]
BILLING CODE 4915-00-P