[Federal Register Volume 83, Number 194 (Friday, October 5, 2018)]
[Proposed Rules]
[Pages 50326-50330]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-21760]


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SURFACE TRANSPORTATION BOARD

49 CFR Part 1152

[Docket No. EP 749; Docket No. EP 749 (Sub-No. 1)]


National Association of Reversionary Property Owners--Petition 
for Rulemaking; Limiting Extensions of Trail Use Negotiating Periods

AGENCY: Surface Transportation Board.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Surface Transportation Board (Board) grants in part a 
petition by the National Association of Reversionary Property Owners 
(NARPO) and opens a proceeding in Docket No. EP 749 (Sub-No. 1) to 
consider revising regulations related to the National Trails System 
Act. The Board proposes to modify its regulations to limit the number 
of 180-day extensions of a trail use negotiating period to a maximum of 
six extensions, absent extraordinary circumstances.

DATES: Comments are due by November 1, 2018; replies are due by 
November 21, 2018.

ADDRESSES: Comments and replies may be submitted either via the Board's 
e-filing format or in paper format. Any person using e-filing should 
attach a document and otherwise comply with the instructions found on 
the Board's website at ``www.stb.gov'' at the ``E-FILING'' link. Any 
person submitting a filing in paper format should send an original and 
10 paper copies of the filing to: Surface Transportation Board, Attn: 
Docket No. EP 749 (Sub-No. 1), 395 E Street SW, Washington, DC 20423-
0001.

FOR FURTHER INFORMATION CONTACT: Sarah Fancher, (202) 245-0355. 
Assistance for the hearing impaired is available through the Federal 
Information Relay Service (FIRS) at (800) 877-8339.

SUPPLEMENTARY INFORMATION: On June 14, 2018, NARPO filed a petition for 
rulemaking requesting that the Board consider issuing three rules 
related to 16 U.S.C. 1247(d), the codification of section 8(d) of the 
National Trails System Act (Trails Act), Public Law 90-543, section 8, 
82 Stat. 919 (1968). Specifically, NARPO asks that the Board open a 
proceeding to consider rules that would: (1) Limit the number of 180-
day extensions of a trail use negotiating period to six; (2) require a 
rail carrier or trail sponsor negotiating an interim trail use 
agreement to send notice of the issuance of a Certificate of Interim 
Trail Use (CITU) or Notice of Interim Trail

[[Page 50327]]

Use (NITU) \1\ to landowners adjacent to the right-of-way covered by 
the CITU/NITU; and (3) require all entities, including government 
entities, filing a request for a CITU/NITU, or extension thereof, to 
pay a filing fee.
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    \1\ As explained below, the issuance of a CITU/NITU by the Board 
provides time for the parties to negotiate an interim trail use 
arrangement. NARPO's proposed rules only refer to NITUs, but, 
presumably, NARPO intended to propose the same changes to CITU 
procedures as there are no substantive differences between CITUs 
(issued in an abandonment application proceeding) and NITUs (issued 
in an abandonment exemption proceeding).
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    On July 5, 2018, the Association of American Railroads (AAR) 
replied in opposition to the changes proposed in NARPO's petition.\2\ 
Thereafter, late-filed letters in support of NARPO's petition were 
filed by the Community Council Railroad Committee, Save Taxes & Our 
Property (STOP), and several individuals. Comments in opposition to the 
petition were late-filed by the Madison County Mass Transit District 
(MCMTD), the Iowa Natural Heritage Foundation (INHF), the City of 
Seattle, Wash. (City of Seattle), and the Rails-To-Trails Conservancy 
(RTC). RTC also requested a 30-day extension of time to respond to 
NARPO's petition. In the interest of compiling a complete record, the 
late-filed pleadings were accepted into the record, but RTC's extension 
request was denied. Nat'l Ass'n of Reversionary Prop. Owners--Pet. for 
Rulemaking, EP 749 (STB served Aug. 14, 2018).
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    \2\ On July 23, 2018, NARPO filed a reply, which was accepted 
into the record. Nat'l Ass'n of Reversionary Prop. Owners--Pet. for 
Rulemaking, EP 749, slip op. at 1 n.1 (STB served Aug. 14, 2018).
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    The Board has broad discretion when determining whether to initiate 
a rulemaking. See, e.g., Defenders of Wildlife v. Gutierrez, 532 F.3d 
913, 919 (DC Cir. 2008). After considering the petition for rulemaking 
and the comments received, the Board will grant NARPO's petition in 
part and institute a rulemaking proceeding in Docket No. EP 749 (Sub-
No. 1) to propose modifications to the Board's rules related to 
extensions of the trail use negotiating period. The Board will deny 
NARPO's petition with regard to its other two proposed rules. Because 
the Board is proposing a rule change in a separate sub-docket, the 
docket in Docket No. EP 749 will be closed.

Background

    The Trails Act was established in 1968 to create a nationwide 
system of recreational trails. In 1983, Congress added a rail section, 
codified at 16 U.S.C. 1247(d). This addition to the Trails Act was the 
``culmination of congressional efforts to preserve shrinking rail 
trackage by converting unused rights-of-way to recreational trails.'' 
Preseault v. ICC, 494 U.S. 1, 5 (1990). Under the Trails Act, the Board 
must ``preserve established railroad rights-of-way for future 
reactivation of rail service'' by prohibiting abandonment where a trail 
sponsor agrees to assume full managerial, tax, and legal liability for 
the right-of-way for use in the interim as a trail. 16 U.S.C. 1247(d); 
Nat'l Wildlife Fed'n v. ICC, 850 F.2d 694, 699-702 (D.C. Cir. 1988). 
The statute expressly provides that ``if such interim use is subject to 
restoration or reconstruction for railroad purposes, such interim use 
shall not be treated, for [any] purposes . . . as an abandonment. . . 
.'' Section 1247(d). Instead, the right-of-way is ``rail-banked,'' 
which means that the railroad is relieved of the current obligation to 
provide service over the line but that the railroad (or any other 
approved rail service provider) may reassert control over the right-of-
way to restore service on the line in the future. See Birt v. STB, 90 
F.3d 580, 583 (D.C. Cir. 1996); Iowa Power--Const. Exemption--Council 
Bluffs, Iowa, 8 I.C.C.2d 858, 866-67 (1990); 49 CFR 1152.29.\3\ If a 
line is railbanked and designated for trail use, any reversionary 
interests that adjoining landowners might have under state law upon 
abandonment are not activated. Preseault, 494 U.S. at 8; Birt, 90 F.3d 
at 583.
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    \3\ The Board, and its predecessor, the Interstate Commerce 
Commission (ICC), has promulgated, modified, and clarified its rules 
to implement the Trails Act a number of times. See, e.g., Nat'l 
Trails System Act & R.R. Rights-of-Way, EP 702 (STB served Apr. 30, 
2012); Aban. & Discontinuance of Rail Lines & Rail Transp. Under 49 
U.S.C. 10903, 1 S.T.B. 894 (1996); Policy Statement on Rails to 
Trails Conversions, EP 272 (Sub-No. 13B) (ICC served Jan. 29, 1990); 
Rail Abans.--Use of Rights-of-Way as Trails--Supplemental Trails Act 
Procedures, 4 I.C.C.2d 152 (1987); Rail Abans.--Use of Rights-of-Way 
as Trails, 2 I.C.C.2d 591 (1986).
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    The Trails Act is invoked when a prospective trail sponsor files a 
request with the Board to railbank a line that a carrier has proposed 
to abandon. The trail sponsor's request must include a statement of 
willingness to assume responsibility for management, legal liability, 
and payment of taxes, and an acknowledgement that interim trail use is 
subject to restoration of rail service at any time. 49 CFR 1152.29(a). 
Pursuant to 49 CFR 1152.29(c)(1) and (d)(1), if the railroad indicates 
its willingness to negotiate a railbanking/interim trail use agreement 
for the line, the Board will issue a CITU (in an abandonment 
application proceeding) or a NITU (in an abandonment exemption 
proceeding) for the line. The CITU/NITU grants parties a 180-day period 
(which can be extended by Board order) to negotiate a railbanking 
agreement. 49 CFR 1152.29(c)(1), (d)(1); Preseault, 494 U.S. at 7 n.5; 
Birt, 90 F.3d at 583 (affirming the agency's authority to grant 
``reasonable'' extensions of the Trails Act negotiating period). See 
also Grantwood Vill. v. Missouri Pac. R.R., 95 F.3d 654, 659 (8th Cir. 
1996) (ICC ``was free to extend [the 180-day CITU/NITU] time period for 
an agreement'').
    If parties reach an agreement during the trail use negotiating 
period, the CITU/NITU automatically authorizes railbanking/interim 
trail use. Preseault, 494 U.S. at 7 n.5. Without further action from 
the Board,\4\ the trail sponsor may assume management of the right-of-
way, subject to the right of a railroad to reassert control of the 
property for restoration or reconstruction of rail service and the 
terms of the agreement. 49 CFR 1152.29(c)(2), (d)(2); Birt, 90 F.3d at 
583. If no railbanking/interim trail use agreement is reached by the 
expiration of the CITU/NITU 180-day negotiation period (and any 
extension thereof), the CITU/NITU authorizes the railroad to ``exercise 
its option to fully abandon'' the line by consummating the abandonment, 
without further action by the agency, 49 CFR 1152.29(c)(1), (d)(1), 
provided that there are no unmet conditions imposed on the abandonment 
authority that must be satisfied prior to consummation. See 
Consummation of Rail Line Abans. That Are Subject to Historic Pres. & 
Other Envtl. Conditions, EP 678, slip op. at 3-4 (STB served Apr. 23, 
2008).
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    \4\ The trail sponsor and railroad are required to notify the 
Board that an agreement has been reached, 49 CFR 1152.29(h), but the 
Board's overall role under the Trails Act is limited. Citizens 
Against Rails-to-Trails v. STB, 267 F.3d 1144, 1151-52 (D.C. Cir. 
2001); Goos v. ICC, 911 F.2d 1283, 1295 (8th Cir. 1990) (agency has 
``little, if any, discretion to forestall a voluntary agreement to 
effect a conversion to trail use''). Once the railroad and trail 
sponsor have reached a trail use agreement, ``the Board's chief 
concern . . . is that the statutory railbanking conditions not be 
compromised and that nothing occur that would preclude a railroad's 
right to reassert control over the right-of-way at some future time 
to revive active service.'' Sunflower Rails-Trails Conservancy, 
Inc.--Pet. for Declaratory Order--Sale of Railbanked Right-of-Way, 
FD 36034, slip. op. at 4 (STB served Feb. 23, 2017).
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    The Board retains jurisdiction over a rail line throughout the 
CITU/NITU negotiating period, any period of railbanking/interim trail 
use, and any period during which rail service is restored. Only after a 
CITU/NITU is no longer in effect and the railroad has lawfully 
consummated its abandonment authority is the Board's jurisdiction 
terminated. See Section 1247(d); Hayfield N. R.R. v. Chi. & N. W. 
Transp. Co., 467 U.S. 622, 633 (1984). At that

[[Page 50328]]

point, the right-of-way may revert to reversionary landowner interests, 
if any, pursuant to state law. Preseault, 494 U.S. at 5, 8.

NARPO's Petition for Rulemaking and Comments Received

    Limiting CITU/NITU Extension Requests. In its petition for 
rulemaking, NARPO proposes that the Board limit the number of 180-day 
extensions of a trail use negotiating period to six. (NARPO Pet. 2.) 
NARPO identifies several proceedings in which the Board extended the 
180-day trail use negotiating period for what it terms excessive 
periods of time (e.g., nearly 10 years). (Id. at 2-4.) NARPO argues 
that the Board must impose a reasonable limit on the number of 
extensions granted for trail use negotiations. (Id. at 4.) NARPO 
contends that its proposed rule calling for a maximum of six 180-day 
extensions strikes a reasonable balance between the time legitimately 
required for trail use negotiations, and the abuse of trail use 
procedures that results from repeated extensions over a lengthy period 
of time. (Id.)
    A few commenters support NARPO's proposal to limit the number of 
extensions granted during the trail use negotiation period. (E.g., 
Tomani Comments 1; Rood Comments 1.) Other commenters, however, oppose 
NARPO's proposal. Some argue that NARPO has failed to justify that its 
proposed rule is needed or to demonstrate how any of its members might 
be prejudiced by the extensions. (MCMTD Comments 2; City of Seattle 
Comments 2-3.) Others contend that the ability to extend the trail use 
negotiating period is critical as delays may be a result of factors not 
attributable to the trail sponsor (e.g., proceedings involving an Offer 
of Financial Assistance, delays resulting from compliance with 
environmental and historic preservation conditions, and carrier 
negotiations with salvage operators). (RTC Comments 3; City of Seattle 
Comments 4.) RTC argues that the Board has held that CITU/NITU 
extensions should be liberally granted because of the ``strong 
Congressional policy favoring trails use/railbanking.'' (RTC Comments 
3.) RTC also asserts that negotiating a railbanking/interim trail use 
agreement is a complex undertaking, requiring the potential trail 
sponsor to assume extensive liabilities and long-term financial 
responsibilities for the management of the corridor. (RTC Comments 3.) 
Thus, RTC argues that NARPO's proposed limit of six extensions for 
NITUs would undermine the implementation and effectiveness of the 
federal railbanking law. (Id.) AAR also opposes NARPO's proposal, 
arguing (along with RTC) that the Board may evaluate NITU extension 
requests on a case-by-case basis to determine if they are reasonable. 
(AAR Comments 4, RTC Comments 4.)
    Having considered this aspect of NARPO's petition and the comments 
filed in this docket, the Board concludes that proposing a rule 
imposing limits on the availability of extensions is reasonable and 
warranted. The agency has granted CITU/NITU extensions liberally in the 
past and, at times, Trails Act negotiations have gone on for many 
years. The courts have noted that extensions ``ad infinitum'' could 
have the undesirable effect of ``allowing the railroad to stop service 
without either relinquishing its rights to the easement or putting the 
right-of-way to productive use.'' Birt, 90 F.3d at 589. While the 
Trails Act process (which depends on a railroad and a trail sponsor 
negotiating a voluntary agreement) clearly contemplates that sufficient 
time is needed to determine if a specific rail corridor can be 
railbanked, the process must also be concluded after a reasonable 
period of time and provide administrative finality.\5\ By allowing a 
maximum of six 180-day extensions (absent extraordinary circumstances), 
the Board could appropriately foster the interests of administrative 
efficiency and clarity by limiting negotiations to a reasonable period 
while still ensuring that parties also have the time required to take 
the many steps that may be part of the process involved in negotiating 
an agreement.
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    \5\ The Board is also aware that courts have held that the 
timing of a CITU/NITU notice and the length of the negotiation 
period can potentially have impacts on takings claims proceedings. 
See Caldwell v. United States, 391 F.3d 1226, 1233 (Fed. Cir. 2004); 
Ladd v. United States, 630 F.3d 1015, 1024-26 (Fed. Cir. 2010).
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    Notice to Landowners. In its petition, NARPO also proposes that the 
Board require a rail carrier or trail sponsor to ``send notice'' to 
adjoining landowners following the issuance of a CITU/NITU. (NARPO Pet. 
4.) Reasserting an argument raised in several prior proceedings before 
the Board and the ICC, NARPO argues that effective notice of a CITU/
NITU is essential for property owners to adequately protect their 
interests. (NARPO Pet. 5; NARPO Reply 6-7.)
    NARPO argues that it would no longer be unduly burdensome for 
railroads or trail sponsors to send individual notice to each adjoining 
landowner because, according to NARPO, practically every county in the 
United States now has its property records stored electronically. 
(NARPO Pet. 5.) NARPO concludes that a rail carrier or trail sponsor 
could easily search county records, or retain a title company to do so, 
thereby obtaining the information needed to contact adjoining 
landowners. (Id.) Given the supposed ease of identifying and providing 
individual notice to property owners, NARPO maintains that Federal 
Register notice and local newspaper publication are no longer 
sufficient. (Id.) Commenters that support NARPO's proposal ask the 
Board to implement the individual notice requirement and assert that 
such notice to landowners could be accomplished easily. (E.g., STOP 
Comments 1.)
    Several commenters oppose NARPO's proposal, contending that the 
agency has already considered and rejected similar proposals by NARPO 
in the past, and that locating all adjacent landowners would be time-
consuming, expensive, and burdensome. (RTC Comments 4; INHF Comments 2; 
City of Seattle Comments 5.) They further point out that NARPO provides 
no support for its argument that its proposed notice requirement could 
be ``easily'' accomplished because many jurisdictions maintain 
computerized land records. (RTC Comments 4; City of Seattle Comments 5; 
MCMTD Comments 2.) Some commenters also claim that NARPO's proposed 
rule would be inconsistent with the Board's limited role in 
administering the Trails Act, and contrary to the purpose of the Trails 
Act, which is to encourage and facilitate interim trail use of railroad 
rights-of-way that would otherwise be abandoned. (AAR Comments 2; INHF 
Comments 2.) Some commenters further argue that the existing notice 
procedures are sufficient. (AAR Comments 3; MCMTD Comments 2; City of 
Seattle Comments 6.)
    The Board's regulations at 49 CFR 1105.12 require, in every 
abandonment exemption case, that the rail carrier certify that it has 
published a notice in a newspaper of general circulation in each county 
in which the line is located. See Nat'l Trails Sys. Act & R.R. Rights-
of-Way, EP 702, slip op. at 7 (STB served Feb. 16, 2011); see also 
Citizens Ass'n of Georgetown v. FAA, 896 F.3d 425, 435-36 (D.C. Cir. 
2018) (holding Federal Aviation Administration satisfied notice 
obligation through publication in local newspapers). Such a notice of 
the proposed abandonment provides information about available reuse 
alternatives, including trail use and public use, and informs the 
public how it may participate in the Board proceeding. See 49 CFR 
1105.12. Moreover, Federal Register notice is also provided in every 
abandonment proceeding. 49 CFR 1152.22(i),

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1152.50(d)(3), 1152.60(a). Courts have repeatedly held that publication 
in the Federal Register is legally sufficient notice to all interested 
or affected persons regardless of actual knowledge or hardship 
resulting from ignorance. See Friends of Sierra R.R. v. ICC, 881 F.2d 
663, 667-68 (9th Cir. 1989); Fed. Crop Ins. Corp. v. Merrill, 332 U.S. 
380, 384-85 (1947); Gov't. of Guam v. United States, 744 F.2d 699, 701 
(9th Cir. 1984); Bennett v. Dir., Office of Workers' Comp. Programs, 
717 F.2d 1167, 1169 (7th Cir.1983); N. Ala. Express, Inc. v. United 
States, 585 F.2d 783, 787 n. 2 (5th Cir. 1978).
    The Board and the ICC previously considered similar notice 
proposals by NARPO. Both the Board and the ICC declined to adopt such a 
rule, finding that providing direct notice to adjacent landowners would 
be time-consuming, burdensome, and unnecessary. Nat'l Ass'n of 
Reversionary Prop. Owners v. STB, 158 F.3d 135 (D.C. Cir. 1998); see 
Nat'l Trails System Act & R.R. Rights-of-Way, EP 702, slip op. at 7-8 
(STB served Feb. 16, 2011; Rail Abans.--Use of Rights-of-Way as 
Trails--Supplemental Trails Act Procedures, EP 274 (Sub-No. 13) (ICC 
served July 28, 1994). The Board finds that NARPO has not provided a 
sufficient basis for altering the existing notice requirements. A 
requirement that a rail carrier or trail sponsor identify, locate, and 
notify all adjacent landowners would be time-consuming and burdensome, 
even if electronic property records for each parcel located adjacent to 
the railroad right-of-way are available. Such a burdensome process 
could result in confusion and significant delay in the interim trail 
use process due to chain-of-title errors, multiple tenants-in-common, 
or claims by third parties against particular property owners. Further, 
NARPO does not support its claim that electronic property records are 
widely available. Therefore, the Board will not further consider this 
aspect of NARPO's petition.
    Filing Fees for CITU/NITU Extension Requests. NARPO requests that 
the Board require public entities to pay filing fees for CITU/NITU 
extensions, as is currently required for non-public entities. (NARPO 
Pet. 5.) According to NARPO, non-payment of filing fees for CITU/NITU 
extensions requested by public entities burdens both the Board and non-
public entities. (Id.) NARPO claims that extensive waivers of filing 
fees unduly burden Board staff because staff incurs the same labor cost 
for an extension request filed by a public entity as it would for a 
non-public entity. (Id. at 6.) NARPO also argues that non-public 
entities are burdened because their filing fees are higher than they 
would otherwise be to account for the numerous waivers granted for 
public entities. (Id.)
    While some commenters support NARPO's proposal to require public 
entities to submit filing fees for NITU extensions (e.g., Tomani 
Comments 1; Rood Comments 1), others oppose it. Generally, those 
opposing commenters contend that, pursuant to 49 CFR 1002.2(e)(1), no 
other filings submitted to the Board by federal, state, or local 
entities require fees, and that a NITU extension should be no 
different. (AAR Comments 4; City of Seattle Comments 7; INHF Comments 
2.) The City of Seattle and MCMTD also contend that there is no 
evidence that the Board raises the price for fee payers due to fee 
exemptions granted to government entities. (City of Seattle Comments 7; 
MCMTD Comments 3.) RTC further argues that NARPO has failed to 
articulate why requiring public agencies to pay fees would in any way 
protect legitimate interests of adjacent landowners or reversionary 
interest holders. (RTC Comments 5.) AAR submits similar comments in 
opposition to NARPO's proposal and states that the Board need not 
address NARPO's request in a rulemaking as the Board can evaluate each 
request for a fee waiver on its own merit. (AAR Comments 4-5.) AAR also 
notes that the Board has concluded that third parties have no standing 
to challenge the grant or denial of a party's fee waiver request 
because it has no bearing on the merits of that party's claims and that 
there is no private right of action to enforce the Independent Offices 
Appropriations Act, 31 U.S.C. 9701, which regulates fees collected by 
government agencies. See Hartwell First United Methodist Church--
Adverse Aban. & Discontinuance--The Great Walton R.R., in Hart Cty., 
Ga., AB 1242 (STB served June 2, 2017) (citing Byers v. Intuit, Inc., 
564 F. Supp. 2d 385, 414-19 (E.D. Pa. 2008).
    The Board finds NARPO's proposal lacks merit. The Board's rules are 
clear that filing fees are waived for any ``application or other 
proceeding''--including a CITU/NITU extension request--that is filed by 
a federal government agency, or a state or local government entity. 49 
CFR 1002.2(e)(1). NARPO has failed to explain why an exception from 
this rule of general applicability should be made only in the CITU/NITU 
context. The Board evaluates each fee waiver request on its own merits 
and waivers do not affect the level of fees charged to other entities. 
See Regulations Governing Fees for Servs. Performed in Connection with 
Licensing & Related Servs., 1 I.C.C.2d 60, 64 (1986) (``An agency may 
impose a reasonable charge on recipients for an amount of work from 
which they benefit. The fees must be for specific services to specific 
persons.'').\6\ Therefore, the Board will not further consider this 
aspect of NARPO's petition.
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    \6\ Courts have recognized that there is no private right of 
action to enforce the Independent Offices Appropriations Act, 31 
U.S.C. 9701, which regulates fees collected by government agencies. 
See Hartwell, AB 1242, slip op. at 1-2 (citing Byers, 564 F. Supp. 
2d at 414-19). Moreover, the Board has held that third parties have 
no standing to oppose the grant or denial of a party's fee waiver 
request, as the fee waiver has no bearing on the merits of the 
party's underlying application. Id. at 2.
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Proposed Rules

    For the reasons discussed above, and as set forth below, the Board 
proposes to limit the number of 180-day extensions of a trail use 
negotiating period to six, unless the requesting party can demonstrate 
that extraordinary circumstances justify the grant of a further 
extension. The Board seeks comments concerning whether capping 
extensions at a maximum of six, with a very limited opportunity for an 
additional extension in extraordinary circumstances, strikes an 
appropriate balance between reasonably limiting the negotiating period 
and permitting parties enough time to finalize their negotiations.
    The Board proposes to make the new rules applicable to both new 
CITUs/NITUs and cases where the CITU/NITU negotiating period, or any 
extension thereof, has not yet expired when the rules become effective. 
For cases where a CITU/NITU has been issued or extended prior to the 
effective date of the rules--and the CITU/NITU negotiating period, or 
any extension, has not yet expired--parties (absent a showing of 
extraordinary circumstances) would be limited to a maximum of six 180-
day extensions following the expiration of the initial 180-day 
negotiation period. For example, in a Trails Act case where two 180-day 
extensions have already been granted, parties would be limited to 
requesting a maximum of four more 180-day extensions, absent 
extraordinary circumstances. In such Trails Act proceedings (including 
those where extensions might have already have exceeded the maximum 
limit of six), the Board may more liberally provide additional 
extensions for extraordinary circumstances.\7\ Interested

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persons may comment on the proposed rule by November 1, 2018; replies 
to comments may be filed by November 21, 2018.
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    \7\ Although the proposed rule would apply to new extension 
requests in proceedings where a current NITU may be expiring, there 
would be no retroactivity concern because parties have no vested 
right to a newly requested extension of the negotiating period. See 
Empresa Cubana Exportadora de Alimentos y Productos Varios v. U.S. 
Dept. of Treasury, 638 F.3d 794, 798-800 (D.C. Cir. 2011). Each 
extension request is considered on its own merits.
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Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, 
generally requires a description and analysis of new rules that would 
have a 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. Sections 601-604. In 
its notice of proposed rulemaking, the agency must either include an 
initial regulatory flexibility analysis, section 603(a), or certify 
that the proposed rule would not have a ``significant impact on a 
substantial number of small entities,'' section 605(b). Because the 
goal of the RFA is to reduce the cost to small entities of complying 
with federal regulations, the RFA requires an agency to perform a 
regulatory flexibility analysis of small entity impacts only when a 
rule directly regulates those entities. In other words, the impact must 
be a direct impact on small entities ``whose conduct is circumscribed 
or mandated'' by the proposed rule. White Eagle Coop. v. Conner, 553 
F.3d 467, 480 (7th Cir. 2009).
    The Board's proposed changes to its regulations here are intended 
to improve and expedite its trail use procedures and do not mandate or 
circumscribe the conduct of small entities. Effective June 30, 2016, 
for the purpose of RFA analysis for rail carriers subject to our 
jurisdiction, the Board defines a ``small business'' as only including 
those rail carriers classified as Class III rail carriers under 49 CFR 
1201.1-1. See Small Entity Size Standards Under the Regulatory 
Flexibility Act, EP 719 (STB served June 30, 2016) (with Board Member 
Begeman dissenting).\8\ The changes proposed here are largely 
procedural and would not have a significant economic impact on the 
Class III rail carriers to which the RFA applies, as participation in a 
negotiation under the Trails Act is voluntary for both the railroad and 
the trail sponsor. Therefore, the Board certifies under 5 U.S.C. 605(b) 
that these proposed rules, if promulgated, would not have a significant 
economic impact on a substantial number of small entities within the 
meaning of the RFA. The proposed rules, if promulgated, would limit the 
number of 180-day extensions of a trail use negotiating period to six 
extensions, absent extraordinary circumstances.
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    \8\ Class III carriers have annual operating revenues of $20 
million or less in 1991 dollars or $37,108,875 or less when adjusted 
for inflation using 2017 data. Class II rail carriers have annual 
operating revenues of less than $250 million or $463,860,933 when 
adjusted for inflation using 2017 data. The Board calculates the 
revenue deflator factor annually and publishes the railroad revenue 
thresholds on its website. 49 CFR 1201.1-1.
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    This decision will be served upon the Chief Counsel for Advocacy, 
Offices of Advocacy, U.S. Small Business Administration, Washington, DC 
20416.
    It is ordered:
    1. The Board proposes to amend its rules as set forth in this 
decision. Notice of the proposed rules will be published in the Federal 
Register.
    2. The procedural schedule is established as follows: Comments 
regarding the proposed rules are due by November 1, 2018; replies are 
due by November 21, 2018.
    3. The Board terminates the proceeding in Docket No. EP 749.
    4. 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.
    5. This decision is effective on its service date.

List of Subjects in 49 CFR Part 1152

    Administrative practice and procedure, Railroads, Reporting and 
recordkeeping requirements, Uniform System of Accounts.

    Decided: October 1, 2018.

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

    For the reasons set forth in the preamble, the Surface 
Transportation Board proposes to amend part 1152 of title 49, chapter 
X, of the Code of Federal Regulations as follows:

PART 1152--ABANDONMENT AND DISCONTINUANCE OF RAIL LINES AND RAIL 
TRANSPORTATION UNDER 49 U.S.C. 10903

0
1. The authority citation for Part 1152 continues to read as follows:

    Authority: 11 U.S.C. 1170; 16 U.S.C. 1247(d) and 1248; 45 U.S.C. 
744; and 49 U.S.C. 1301, 1321(a), 10502, 10903-10905, and 11161.

0
2. Amend Sec.  1152.29 as follows:
0
a. Add the following sentences to the end of paragraph (c)(1): 
``Parties may request a Board order to extend the 180-day interim trail 
use negotiation period. A maximum of six 180-day extensions may be 
granted. Requests for additional extensions beyond six are not favored 
and will be granted only if the requestors demonstrate that 
extraordinary circumstances warrant a further extension.''
0
 b. Add the following sentences to the end of (d)(1): ``Parties may 
request a Board order to extend the 180-day interim trail use 
negotiation period. A maximum of six 180-day extensions may be granted. 
Requests for additional extensions beyond six are not favored and will 
be granted only if the requestors demonstrate that extraordinary 
circumstances warrant a further extension.''

[FR Doc. 2018-21760 Filed 10-4-18; 8:45 am]
BILLING CODE 4915-01-P