WHO SHOULD PAY FOR AGENCY ADJUDICATION?  A STUDY OF $200,000 FILING FEES AT THE SURFACE TRANSPORTATION BOARD

 
Peter A. Pfohl
 
Copyright © 1997 Transportation Law Journal; Peter A. Pfohl
Vol. 25, No. 1, Summer 1997
Pages 57-86
 

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  And having looked to Government for bread, on the first scarcity they will turn and bite the hand that fed them. [FN1]

In 1995, after one hundred and eight years of existence, the nation's oldest regulatory entity, the Interstate Commerce Commission (ICC or Commission) was terminated. [FN2] With the enactment of the ICC Termination Act [FN3] (ICCTA), Congress replaced the ICC with the independent, three-member Surface Transportation Board [FN4] (STB or Board) to perform the core rail and trucking regulatory responsibilities formerly conducted by the ICC. [FN5]
 
The ICC was originally created in 1887, due in large part to concern about the monopoly status of the railroads and to help protect railroad customers, known as "shippers," and communities from abuses by the railroads who possessed a great deal of economic power over them. [FN6] The protection of shippers and others from unreasonable rates that might be charged by railroads is a stalwart of the nation's rail transportation policy. [FN7] For over one hundred and ten years, shippers and the public have gone to the ICC/STB seeking prescriptive rate relief from railroads. [FN8] Today, the STB is the only forum where shippers and communities can seek redress from many railroad abuses, as the federal government has sole authority over economic regulation of interstate rail transportation. [FN9]
 
While President Clinton supported the ICCTA, he did not support the creation of the STB; he preferred legislation that would significantly deregulate transportation industries. [FN10] In early 1996, the President's first publicly manifested his lack of support for the newly created STB in his fiscal year (FY) 1997 budget submission to Congress. The President's budget requested only a fraction of the STB's annual budget from general treasury appropriations. [FN11] Instead, the President requested that virtually all of STB's funding "be derived from user fees collected from the beneficiaries of the Board's activities" [FN12] pursuant to the Independent Offices Appropriations Act (IOAA), [FN13] which authorizes agencies to prescribe and collect fees for their services. [FN14]
 
The STB did not wait for Congress before acting itself on the President's budget proposal. In the spring of 1996, while the President's funding plan for the STB was pending in Congress, the Board issued a proposal recommending new across-the-board self-financing fee increases. [FN15] Pursuant to its authority under the IOAA, the Board sought to increase filing fees for formal rail coal rate complaints from $1,000 to $233,200 [FN16] and all other formal rate complaints from $1,000 to $23,100. [FN17] Meanwhile, a new fee of $3,700 was proposed for appeals or petitions to reopen, reconsider, or revoke Board decisions. [FN18] The STB's proposed fee package was designed to allow it to cover all labor and other related costs associated with processing agency adjudications. The Board ultimately adopted these filing fees, as modified, in August 1996. [FN19]
 
This article focuses on the new and increased rail complaint filing fees adopted by the STB in 1996. Part One provides background on the federal rail regulatory scheme and on the need for an adjudicatory forum for shippers and the public to go to in order to seek redress against railroad economic abuses in the form of unreasonable rail rates. Part Two reviews federal agency authority and the use of self-funding mechanisms under the IOAA. It then reviews the history of filing fees at the ICC/STB and the STB's 1996 user fee proceedings, including congressional attempts to block new complaint filing fees.
 
Part Three discusses the implications of these new fees, arguing that these new filing fees are against public policy and probably violate the IOAA. In addition to being unfair, the fees will likely discourage the public from submitting complaints and fail to provide offsets for the public benefits associated with filings. Also, similar charges assessed for processing complaints at other agencies and in common law courts fail to justify the STB's complaint fee increases, and the availability of a fee waiver is insufficient to safeguard potential complainants.
 
Part Four of this article proposes that if the Board's new complaint filing fees are to continue to be imposed, then at a minimum, the Board should: (1) establish fees on an actual cost basis, as opposed to the current flat fee basis; (2) provide for payment on a pay-a