[Federal Register Volume 84, Number 109 (Thursday, June 6, 2019)]
[Proposed Rules]
[Pages 26387-26393]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-11883]


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SURFACE TRANSPORTATION BOARD

49 CFR Part 1152

[Docket No. EP 749 (Sub-No. 1); Docket No. EP 753]


Limiting Extensions of Trail Use Negotiating Periods; Rails-to-
Trails Conservancy--Petition for Rulemaking

AGENCY: Surface Transportation Board.

ACTION: Supplemental notice of proposed rulemaking.

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SUMMARY: The Surface Transportation Board (Board) grants in part a 
petition filed by the Rails-to-Trails Conservancy (RTC) in Docket No. 
EP 753 and amends its prior proposal in Docket No. EP 749 (Sub-No. 1) 
to revise certain regulations related to the National Trails System 
Act. Specifically, the Board proposes to modify, through this 
supplemental notice of proposed rulemaking (SNPR), its regulations to 
establish a new one-year period for any initial interim trail use 
negotiating period, instead of the existing 180-day initial negotiating 
period; to permit up to three one-year extensions of the initial period 
if the trail sponsor and the railroad agree; and to permit additional 
one-year extensions if the trail sponsor and the railroad agree and 
good cause is shown.

DATES: Comments are due by July 8, 2019; replies are due by July 26, 
2019.

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 to: Surface 
Transportation Board, Attn: Docket No. EP 749 (Sub-No. 1) et al., 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 
Relay Service at (800) 877-8339.

SUPPLEMENTARY INFORMATION: On June 14, 2018, the National Association 
of Reversionary Property Owners (NARPO), filed a petition 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, 925 
(1968) (codified, as amended, at 16 U.S.C. 1241-1251). After 
considering NARPO's petition for rulemaking and the comments received, 
the Board granted the petition in part as it pertained to its first 
proposed rule and instituted a rulemaking proceeding in Limiting 
Extensions of Trail Use Negotiating Periods (NPR), EP 749 (Sub-No. 1) 
(STB served Oct. 2, 2018) (83 FR 50,326), to propose modifications to 
49 CFR 1152.29 that would limit the number of 180-day extensions of the 
interim trail use negotiating period to a maximum of six extensions, 
absent extraordinary circumstances. See discussion infra Extensions of 
the Interim Trail Use Negotiating Period section (Discussing the 
Board's NPR). The Board, however, denied NARPO's petition with regard 
to its other two proposed rules.\1\
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    \1\ In its petition, NARPO also requested that the Board require 
a railroad 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 Use (NITU) to landowners 
adjacent to the right-of-way covered by the CITU/NITU; and 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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    On March 22, 2019, after the comment period closed in Docket No. EP 
749 (Sub-No. 1), RTC petitioned the Board to institute a rulemaking 
proceeding to further revise section 1152.29 to establish a one-year 
period for any initial interim trail use negotiating period and codify 
the Board's authority to grant extensions of the negotiating period for 
good cause shown. RTC acknowledges that its petition overlaps to some 
extent with the NPR (RTC Pet. 4-5); both RTC's petition and the Board's 
NPR pertain to the same regulation, section 1152.29. As explained 
below, the Board will consolidate that proceeding, Rails-to-Trails 
Conservancy--Petition for Rulemaking, Docket No. EP 753, with Limiting 
Extensions of Trail Use

[[Page 26388]]

Negotiating Periods, Docket No. EP 749 (Sub-No. 1).\2\
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    \2\ In the interest of a complete record, the Board will accept 
all late-filed submissions to date in both dockets.
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    In response to both the NPR and RTC's petition for rulemaking, the 
Board received a significant number of comments.\3\ The principal 
issues raised in the comments, to the extent relevant here, are 
addressed below. Even if not specifically discussed, the Board has 
carefully reviewed all the comments on the NPR and the RTC petition and 
taken each comment into account in proposing the revised rule.\4\
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    \3\ The Board received comments from over 200 parties in 
response to the NPR; additionally, nearly 50 parties commented on 
RTC's petition.
    \4\ The Board notes that comments not directly related to the 
Board's revised proposal in this decision will be considered in 
furtherance of a final decision.
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Background

    As explained in the NPR, EP 749 (Sub-No. 1), slip op. at 2-4, 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 
responsibility and 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 ``railbanked,'' \5\ 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,\6\ in appropriate circumstances) may reassert control 
over the right-of-way to restore service on the line in the future. See 
Birt, 90 F.3d at 583; Iowa Power--Const. Exemption--Council Bluffs, 
Iowa, 8 I.C.C.2d 858, 866-67 (1990); 49 CFR 1152.29.\7\
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    \5\ 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 v. ICC, 494 
U.S. 1, 8 (1990); Birt v. STB, 90 F.3d 580, 583 (D.C. Cir. 1996).
    \6\ See King Cty., Wash.--Acquis. Exemption--BNSF Ry., FD 35148, 
slip op. at 3-4 (STB served Sept. 18, 2009).
    \7\ The Board and its predecessor, the Interstate Commerce 
Commission (ICC), have promulgated, modified, and clarified 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 rail carrier has 
proposed to abandon. The trail sponsor's request must include a 
statement of willingness to assume responsibility for management of, 
legal liability for, and payment of taxes on, the right-of-way and an 
acknowledgement that interim trail use is subject to possible future 
reconstruction and reactivation of rail service at any time. 49 CFR 
1152.29(a). If the railroad indicates its willingness to negotiate a 
railbanking/interim trail use agreement for the line,\8\ the Board will 
issue for the line a CITU (in an abandonment application proceeding) or 
NITU (in an abandonment exemption proceeding). 49 CFR 1152.29(c)(1), 
(d)(1). 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); Birt, 90 F.3d at 583, 588-90 (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) (stating that the ICC ``was free to 
extend [the 180-day CITU/NITU] time period for an agreement'').
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    \8\ The Board uses the terms ``railbanking'' and ``interim trail 
use'' interchangeably when discussing a CITU or NITU.
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    If parties reach an agreement during the interim trail use 
negotiating period, the CITU/NITU automatically authorizes railbanking/
interim trail use. Preseault, 494 U.S. at 7 n.5. 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 legal or regulatory barriers to consummation. Birt, 90 F.3d at 
583; see also 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).\9\
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    \9\ The Board retains jurisdiction over a rail line throughout 
the interim trail use negotiating period, any period of railbanking/
interim trail use, and any period during which rail service is 
restored. The Board's jurisdiction is terminated once the CITU/NITU 
is no longer in effect and the railroad has lawfully consummated its 
abandonment authority by filing a notice of consummation under 49 
CFR 1152.29(e)(2). See section 1247(d); Hayfield N. R.R. v. Chi. & 
N. W. Transp. Co., 467 U.S. 622, 633 (1984). Upon such occurrence, 
the right-of-way will revert to any reversionary landowner. 
Preseault, 494 U.S. at 5, 8.
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Preliminary Matter

    Following the Board's issuance of the NPR and receipt of comments 
on that proposal, RTC petitioned the Board in Docket No. EP 753 to 
institute a rulemaking proceeding to revise the same regulation the 
Board proposed to revise in the NPR, section 1152.29. According to RTC, 
its comments submitted in opposition to the NPR noted that RTC's data 
and analysis of railbanking orders supported the need for an ``entirely 
different regulatory change: The establishment of a one-year period for 
any initial interim trail use negotiating period and codification of 
the [Board's] current regulatory practice of granting extensions of the 
railbanking negotiating period for good cause shown.'' (RTC Pet. 4.) 
Unlike the NPR, RTC's proposal would not limit the number of extensions 
permitted. (See id. at 4.) RTC states that it proposed changes in its 
comments responding to the NPR, but that, to the extent that the Board 
may view RTC's proposal as outside the scope of the NPR, RTC submits an 
alternative petition for rulemaking so that the Board may consider its 
proposed changes. (Id. at 4-5.)
    The Board has broad discretion to consolidate proceedings under 
appropriate circumstances. In deciding whether to consolidate 
proceedings, the Board considers whether the applicable proceedings 
involve common facts, issues, and parties; whether consolidation would 
promote efficiency; and whether consolidation would unduly delay the 
proceedings or prejudice any party. See, e.g., Honey Creek R.R.--Pet. 
for Declaratory Order, FD 34869, slip op. at 3 (STB served June 4, 
2008).
    The Board's decision as to whether to consolidate two proceedings 
in any particular situation is dependent on the facts and circumstances 
of the case. Both proceedings here concern procedures for the extension 
of interim trail use negotiation periods, and RTC and NARPO, among 
others, are parties to both proceedings. The consolidation of the 
proceedings would also aid the Board in efficiently addressing the 
issues raised here, while causing no undue delay to the proceedings or 
prejudice to any parties. Accordingly, the Board will exercise its 
discretion to consolidate the proceedings.

[[Page 26389]]

Duration of Initial Interim Trail Use Negotiating Period

    In its petition for rulemaking, RTC proposes that the Board 
establish a one-year period for any initial interim trail use 
negotiations to replace the current 180-day initial negotiation 
period.\10\ (RTC Pet. 1.) RTC indicates that it maintains a detailed 
database of railbanked corridors. (Id. at 2.) RTC states that, since 
1987, it has tracked all abandonment filings by the Board-assigned 
docket number and filing and decision dates, and has included in its 
database, among other things, information on whether the Board issued a 
CITU/NITU to allow interim trail use/railbanking negotiations between a 
potential trail sponsor and a railroad. (Id.) In instances where the 
Board issues a CITU/NITU, RTC states that it documents: (1) Information 
about the CITU/NITU filer; (2) whether the railroad agrees to 
negotiate; (3) the negotiation start and end dates; (4) the success or 
failure of the negotiations; and (5) the names of any trails opened on 
the corridor, or any trails intended to be opened in the future. (Id.)
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    \10\ As noted above, RTC also makes this proposal in its 
comments on the NPR. (RTC Comments 17-18.)
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    RTC asserts that, as of November 2018, its database contains 
records for 718 issued CITUs/NITUs dating from 1987. (Id. at 6.) 
According to RTC, of the 718 CITUs/NITUs, at least 393 corridors--
representing 5,895.53 miles--were successfully railbanked and remain 
railbanked today. (Id. at 7.) RTC further asserts that, of the 370 
railbanked corridors for which its database indicates the length of 
negotiations,\11\ 289 railbanking agreements (78.1%) required more than 
180 days to negotiate, while approximately half (183 of the 370 
corridors) were negotiated within one year. (Id.) RTC argues that its 
data supports the conclusion that an initial railbanking negotiating 
period of one year, rather than 180 days, would more closely reflect 
the actual length of time required to complete railbanking 
negotiations. (Id.) RTC notes that establishing a one-year initial 
interim trail use negotiating period would promote greater 
administrative efficiency and reduce burdens on trail use proponents 
and railroads to file extension requests, and on the Board to review 
and approve such requests. (Id. at 8-9.)
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    \11\ RTC states that its database lacks information on the 
length of railbanking negotiations for 23 railbanked corridors. (RTC 
Pet., Declaration Griffen 2.)
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    In response to RTC's petition, the Board received comments from 
nearly 50 parties, including rail carriers, landowners, trail interest 
groups, and government entities. The overwhelming majority of 
commenters support RTC's proposal to establish a one-year duration for 
any initial interim trail use negotiating period.\12\ One commenter, 
however, opposes RTC's proposal, arguing that the proposal fails to 
consider the rights of property owners located adjacent to rights-of-
way authorized to be abandoned. (Lyons Comments 1, Apr. 3, 2019, EP 
753.) NARPO filed comments stating that it does not oppose the 
establishment of a one-year period for any initial interim trail use 
negotiating period. (NARPO Comments 2, Apr. 2, 2019, EP 753.) As 
discussed further below, however, NARPO reiterates its request, 
discussed in the NPR, that any CITU/NITU extension be limited to three 
years and notes its opposition to the codification of any rule that 
would extend the CITU/NITU negotiating period for ``good cause shown.'' 
(Id. at 1.)
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    \12\ (E.g., Milwaukee Cty. Parks Comments 1, Apr. 4, 2019, EP 
753; Parks & Trails N.Y. Comments 1, Apr. 4, 2019, EP 753; Midwest 
Bikeshare, Inc. Comments 1, Apr. 2, 2019, EP 753; Hunter Area Trail 
Coalition Comments 1, Apr. 9, 2019, EP 753; Consol. Rail Corp. 
Comments 1, Apr. 8, 2019, EP 753; Mo. Cent. R.R. Comments 1, Apr. 
11, 2019, EP 753.)
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    After considering RTC's petition and the responsive comments filed, 
the Board will revise its October 2, 2018 proposed rule and now propose 
a rule establishing a one-year initial period for interim trail use 
negotiations. Numerous commenters argue that the time required to 
negotiate an interim trail use agreement frequently exceeds the 180-day 
period currently set forth at 49 CFR 1152.29(c)(1) and (d)(1), (see, 
e.g., Milwaukee Cty. Parks Comments 1, Apr. 4, 2019, EP 753; City of 
Chi. Comments, Apr. 11, 2019, EP 753). That conclusion is also 
supported by RTC's comments that, according to its database, 
approximately three-quarters of the interim trail use/rail banking 
agreements reached since 1987 required more than 180 days to negotiate, 
while approximately half were negotiated within one year. Establishing 
a one-year interim trail use negotiating period would reduce burdens on 
trail use proponents and railroads related to the filing of extension 
requests, would reduce the number of filings requiring Board action 
(and conserve Board resources), and would more closely reflect the 
actual time needed to complete railbanking negotiations. Regarding the 
suggestion that RTC's proposal ignores the rights of landowners, (see 
Lyons Comments 1, Apr. 3, 2019, EP 753), the record suggests that 
adopting a one-year period for initial interim trail use negotiations 
would not unduly prejudice landowners, as this proposal merely reflects 
more closely the actual length of time in which many railbanking 
negotiations are completed.

Extensions of the Interim Trail Use Negotiating Period

    In the NPR, EP 749 (Sub-No. 1), slip op. at 1, the Board sought 
comment on whether it should limit the number of 180-day extensions of 
an interim trail use negotiating period to six, unless the requesting 
party could demonstrate that extraordinary circumstances justified the 
grant of a further extension. The Board received comments from over 200 
parties on that issue, including comments from a rail carrier, 
landowners, trail interest groups, and local and state agencies.
    Landowners and related groups express support for limiting the 
number of 180-day extensions of an interim trail use negotiating period 
to six. One commenter argues that the original intent of railbanking 
has been misused by trail and cycling advocates, thereby preventing 
property owners from reclaiming their property when a railroad has 
legitimately abandoned a rail line. (Falcsik Comments 1, Oct. 31, 2018, 
EP 749 (Sub-No. 1).) Others comment that the Board's use of 
``unlimited'' extensions has been excessive and unfair to landowners. 
(E.g., Gorgas Comments 1, Oct. 15, 2018, EP 749 (Sub-No. 1).) NARPO 
states that the way in which the Board currently handles NITU 
extensions does not allow certainty, finality, and stability in the 
land titles of the property owners abutting the proposed rail trails. 
(NARPO Reply 5, Nov. 20, 2018, EP 749 (Sub-No. 1).) NARPO argues that 
the Board's proposal in the NPR is a reasonable compromise that allows 
some measure of finality and certainty to abutting property owners. 
(Id. at 6-7.)
    Numerous trail supporters, including government entities, 
individuals, and interest groups, filed comments in opposition to the 
NPR. Most emphasize the benefits of trails, and some provide specific 
examples of how particular railbanking processes took more than three 
years to negotiate.\13\ (E.g., Alabama Trails Commission Comments 1, 
Oct. 31, 2018, EP 749 (Sub-No. 1).) Many

[[Page 26390]]

commenters describe the complexity of interim trail use negotiations 
and argue that the rule proposed in the NPR would undermine the Trails 
Act. (E.g., City of Boston, City of Chicago, City of Houston Department 
of Public Works, City of New York, City of Sacramento, and the United 
States Conference of Mayors Comments 1, Nov 1, 2018, EP 749 (Sub-No. 
1).)
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    \13\ Some commenters further argue that limiting negotiating 
periods to ten years would be more appropriate. (E.g., Goodman 
Comments 1, Oct. 30, 2018, EP 749 (Sub-No. 1); Perricelli Comments 
1, Oct. 30, 2018, EP 749 (Sub-No. 1).)
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    RTC also opposes the Board's NPR proposal, arguing that that there 
is no evidence that the Board's current practices have caused 
administrative burdens and that the proposed rule would impede 
administrative efficiency rather than advancing it. (RTC Comments 8-10, 
Nov. 1, 2018, EP 749 (Sub-No. 1).) RTC asserts that the Board's 
proposal is unsupported, arguing that RTC's data shows that protracted 
railbanking negotiations are the exception rather than the rule. (Id. 
at 12.) According to RTC, of the 370 railbanked corridors for which RTC 
has information on the length of negotiations, 305 agreements were 
reached before six 180-day negotiating periods concluded, and, of the 
remaining 65 agreements, most (53) were completed within six years. 
(Id.) RTC argues that the NPR appears to focus improperly on the 
minority of CITU/NITU negotiations requiring more than six extensions 
to support requiring a stricter approach to extensions. (Id.) RTC 
further alleges that there is little precedent in the Board's 
regulations or regulatory practices that would support adoption of a 
standard of review that strongly disfavors extensions, regardless of 
``any good cause for the requests.'' (Id. at 11.) RTC therefore argues 
that instead of the changes proposed in the NPR, the Board should adopt 
a rule allowing one-year extensions of the initial negotiating period 
for good cause shown.\14\ (Id. at 3, 19.)
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    \14\ RTC makes a similar proposal for a good cause standard in 
its petition for rulemaking. (RTC Pet. 4.) According to RTC, 
pursuant to 49 CFR 1152.29(b)(3), the Board accepts late-filed 
railbanking requests ``supported by a statement showing good 
cause.'' (Id. at 12.) RTC further argues that, in other contexts, 
the Board's regulations specifically provide that requests for 
extensions will be granted based on a showing of ``good cause.'' 
(Id. at 12-13 (citing 49 CFR 1152.29(e)(2) (allowing a railroad to 
request extensions of the time for filing an abandonment 
consummation notice for good cause shown); 49 CFR 1152.25(d)(5) 
(requiring good cause for late pleadings); 49 CFR 1113.7(c) (late 
intervention petitions accepted for good cause shown)).) Thus, RTC 
argues that ``good cause'' is the established regulatory standard 
that governs extensions and waivers under the Board's rules. (RTC 
Pet. 12.)
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    NARPO and others oppose any rule that would extend the interim 
trail use negotiating period for ``good cause shown.'' (NARPO Comments 
1, Apr. 2, 2019, EP 753.) According to NARPO, a good cause standard 
would interfere with reversionary property owners' property rights to 
the underlying land of railroad rights-of-way authorized for 
abandonment. (Id.)
    The Board acknowledges the concerns raised by parties who question 
whether a maximum of six CITU/NITU extensions, with a limited 
opportunity for additional extensions in ``extraordinary 
circumstances,'' strikes an appropriate balance between reasonably 
limiting the Trails Act negotiating period and permitting parties 
enough time to finalize their negotiations. After considering the 
comments received by the Board following issuance of the NPR, however, 
the Board concludes that reasonably limiting the number of extensions 
of the interim trail use negotiating period would foster administrative 
efficiency, clarity, and finality. See NPR, slip op. at 5.
    Nevertheless, after considering all the comments submitted in 
response to the NPR, the Board proposes that a ``good cause'' standard 
of review for additional extensions (beyond three) would be more 
appropriate than the ``extraordinary circumstances'' standard proposed 
in the NPR. Congress established interim trail use/rail banking ``in 
furtherance of the national policy to preserve established railroad 
rights-of-way for future reactivation of rail service, to protect rail 
transportation corridors, and to encourage energy efficient 
transportation use.'' 49 U.S.C. 1247(d). To accomplish those goals, the 
interest in concluding the Trails Act process within a reasonable 
amount of time must be balanced against the need to allow parties 
enough time to complete their negotiations and finalize a Trails Act 
agreement--and applying a good cause standard of review beginning at 
the fourth extension request would appropriately effectuate this 
goal.\15\ Applying such a good cause standard should provide sufficient 
time to allow trail projects that have a reasonable prospect of success 
to be completed while at the same time taking into account situations 
where negotiations may extend for many years without any likely or 
achievable resolution. A good cause standard for extensions that exceed 
three years in total would provide the Board with more flexibility than 
an extraordinary circumstances standard but would still require a 
meaningful case-specific showing of need for any such extensions.
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    \15\ The Board notes that under the revised proposal, as 
compared to the NPR, parties would have a one-year period for any 
initial interim trail use negotiating period, and may request up to 
three one-year extensions if both the trail sponsor and railroad 
agree--thereby allowing parties to negotiate interim trail use for a 
four-year period before the new standard for further extensions 
applies, versus the three and a half years initially proposed by the 
Board.
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    The Board understands NARPO's argument that a good cause standard 
may create additional uncertainty for some property owners because the 
revised standard may allow a greater number of extensions to be granted 
than under an extraordinary circumstances standard. Therefore, such 
additional one-year extensions would not be favored. However, because 
RTC's evidence, (see RTC Pet., Declaration Griffen 2), indicates that 
327 out of 370 negotiated agreements (approximately 88%) have been 
reached within four years--that is, before the ``good cause'' 
requirement for extensions would apply under the rule proposed here--
the Board believes that its proposed rule balances the interests of all 
affected parties.
    For these reasons and those discussed in the NPR, EP 749 (Sub-No. 
1), slip op. at 5, and because the Board proposes to establish a one-
year period for any initial interim trail use negotiating period (as 
suggested by RTC), the Board now proposes to limit the number of 
extensions of an interim trail use negotiating period to three one-year 
extensions, unless good cause for additional extension(s) is shown.
    Given that the Board is revising its proposal based on the comments 
on the NPR and RTC's new rulemaking proposal, the Board will deny as 
moot RTC's request that the Board institute a separate rulemaking to 
address the standard for granting extensions.

Revised Proposed Rule

    For the reasons discussed above, and as set forth below, the Board 
proposes to establish a one-year duration for any initial interim trail 
use negotiating period. Additionally, the Board proposes to modify its 
Trails Act rules to permit up to three one-year extensions if the trail 
sponsor and railroad agree and to clarify that requests for additional 
extensions are not favored but may be granted if the trail sponsor and 
railroad agree and good cause is shown.\16\
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    \16\ The proposed rule also includes other non-substantive 
changes to the rules in section 1152.29, such as adding paragraph 
headings.
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    The Board proposes to make the new rule establishing a one-year 
period for any initial interim trail use negotiating period applicable 
to any new CITU/NITU requested on or after the effective date of the 
rule. Parties in negotiations

[[Page 26391]]

under existing CITUs/NITUs would be permitted to request one-year 
extensions (rather than continuing with 180-day extensions). The 
proposal to limit the number of one-year extensions of an interim trail 
use negotiating period to three, however, would apply both to new 
CITUs/NITUs requested on or after the rule's effective date and to 
cases where a CITU/NITU was requested before the rule takes effect. In 
the latter instance, a showing of good cause would be required for any 
request that would extend the interim trail use negotiating period to a 
date after the four-year anniversary of its issuance (including cases 
where the existing CITU/NITU already extends beyond that 
anniversary).\17\
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    \17\ Although the proposed rule would apply to new extension 
requests in proceedings where a current CITU/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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    Interested persons may comment on the proposed rule by July 8, 
2019; replies are due by July 26, 2019.

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 the 
conduct of small entities.\18\ The changes proposed here are largely 
procedural and would not have a significant economic impact on Class 
III rail carriers or trail sponsors (whether as small businesses, not-
for-profits, or small governmental jurisdictions) to which the RFA 
applies. The proposed rules, if promulgated, would lengthen, from 180 
days to one year, the duration of the initial voluntary interim trail 
use negotiating period and the current typical extension, reducing the 
frequency with which trail sponsors and railroads would need to file 
extension requests and replies. The Board, therefore, expects the 
impact of the proposed rule would be a reduction in the paperwork 
burden for small entities. Further, the Board asserts that the economic 
impact of the reduction in paperwork, if any, would be minimal and 
entirely beneficial to small entities as such entities would have 
reduced filing burdens associated with negotiating an interim trail use 
agreement. 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. This decision will be served upon the Chief Counsel 
for Advocacy, Offices of Advocacy, U.S. Small Business Administration, 
Washington, DC 20416.
---------------------------------------------------------------------------

    \18\ Effective June 30, 2016, for the purpose of RFA analysis 
for rail carriers subject to Board 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). 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.
---------------------------------------------------------------------------

Paperwork Reduction Act

    Pursuant to the Paperwork Reduction Act (PRA), 44 U.S.C. 3501-3521, 
Office of Management and Budget (OMB) regulations at 5 CFR 
1320.8(d)(3), and in the Appendix, the Board seeks comments about the 
revisions in the proposed rules to the currently approved collection of 
Preservation of Rail Service (OMB Control No. 2140-0022) regarding: (1) 
Whether the collection of information, as modified in the proposed rule 
below, is necessary for the proper performance of the functions of the 
Board, including whether the collection has practical utility; (2) the 
accuracy of the Board's burden estimates; (3) ways to enhance the 
quality, utility, and clarity of the information collected; and (4) 
ways to minimize the burden of the collection of information on the 
respondents, including the use of automated collection techniques or 
other forms of information technology, when appropriate.
    Because the proposed rule allows for (a) a one-year period for any 
initial interim trail use negotiating period instead of the existing 
180-day period, (b) three one-year extensions of the initial period (if 
the trail sponsor and the railroad agree) instead of an unlimited 
number of 180-day extensions, and (c) additional one-year extensions 
(if the trail sponsor and the railroad agree and good cause is shown), 
the Board estimates the proposed rules would reduce the total annual 
hourly burden by 168 hours under the PRA.\19\ The Board welcomes 
comment on the estimates of actual time and costs of compliance with 
the proposed rules, as detailed below and in the Appendix. Information 
pertinent to these issues is included in the Appendix. The proposed 
rules will be submitted to OMB for review as required under 44 U.S.C. 
3507(d) and 5 CFR 1320.11(b). Once the comment period ends, comments 
received by the Board regarding the information collection will also be 
forwarded to OMB for its review.
---------------------------------------------------------------------------

    \19\ The 168-hour reduction in the hourly burden is derived from 
the assumption that, if the length of each extension is doubled, 
then the number of extensions will be reduced by half. In 2018, the 
Board used a three-year average to estimate that 84 interim trail 
use request extensions would be filed annually through 2020. Due to 
the doubling of the length of these extensions, the Board now 
estimates that there will only be 42 interim trail use request 
extensions. With the estimated hourly burden for each extension 
remaining at four hours, the reduction of the annual hourly burden 
is 168 hours (42 extensions x 4 hours).
---------------------------------------------------------------------------

    It is ordered:
    1. These proceedings are consolidated for concurrent handling in 
the manner discussed in this decision.
    2. RTC's petition is granted in part and denied in part, as 
discussed above.
    3. 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.
    4. The procedural schedule is established as follows: Comments 
regarding the proposed rules are due by July 8, 2019; replies are due 
by July 26, 2019.
    5. 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.

[[Page 26392]]

    6. 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: May 31, 2019.

    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 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 by:
0
a. In paragraph (a), adding a paragraph heading;
0
b. In paragraph (b), adding a paragraph heading;
0
c. In paragraph (b)(1)(ii), removing the words ``Sec.  1152.29(a)'' and 
adding in its place the words ``paragraph (a) of this section'';
0
d. In paragraph (c), revising the paragraph heading;
0
e. Revising paragraph (c)(1);
0
f. In paragraph (c)(3), removing the words ``49 CFR part 1150'' and 
adding in its place the words ``part 1150 of this title'';
0
g. In paragraphs (d) revise the paragraph heading and (d)(1);
0
h. In paragraph (d)(3), removing ``49 CFR part 1150'' and adding in its 
place the words ``part 1150 of this title'';
0
i. In paragraph (e), adding a paragraph heading;
0
j. In paragraph (f), adding a paragraph heading;
0
k. In paragraph (g), adding a paragraph heading and removing the words 
``180 days'' and adding in its place the words ``one year'';
0
l. In paragraph (h), adding a paragraph heading.
    The revisions and additions read as follows:


Sec.  1152.29  Prospective use of rights-of-way for interim trail use 
and rail banking.

    (a) Contents of request for interim trail use. * * *
    (b) When to file. * * *
    (c) Abandonment application proceedings.
    (1) In abandonment application proceedings, if continued rail 
service does not occur pursuant to 49 U.S.C. 10904 and Sec.  1152.27 
and a railroad agrees to negotiate an interim trail use/rail banking 
agreement, then the Board will issue a CITU to the railroad and to the 
interim trail sponsor for that portion of the right-of-way as to which 
both parties are willing to negotiate.
    (i) The CITU will: Permit the railroad to discontinue service, 
cancel any applicable tariffs, and salvage track and material 
consistent with interim trail use and rail banking, as long as such 
actions are consistent with any other Board order, 30 days after the 
date the CITU is issued; and permit the railroad to fully abandon the 
line if no interim trail use agreement is reached within one year from 
the date on which the CITU is issued, subject to appropriate 
conditions, including labor protection and environmental matters.
    (ii) Parties may request a Board order to extend, for one-year 
periods, the interim trail use negotiation period. Up to three one-year 
extensions of the initial period may be granted if the trail sponsor 
and the railroad agree; additional one-year extensions, beyond three 
extensions of the initial period, are not favored but may be granted if 
the trail sponsor and the railroad agree and good cause is shown.
    * * *
    (d) Abandonment exemption proceedings.
    (1) In abandonment exemption proceedings, if continued rail service 
does not occur under 49 U.S.C. 10904 and Sec.  1152.27 and a railroad 
agrees to negotiate an interim trail use/rail banking agreement, then 
the Board will issue a Notice of Interim Trail Use or Abandonment 
(NITU) to the railroad and to the interim trail sponsor for the portion 
of the right-of-way as to which both parties are willing to negotiate.
    (i) The NITU will: Permit the railroad to discontinue service, 
cancel any applicable tariffs, and salvage track and materials, 
consistent with interim trail use and rail banking, as long as such 
actions are consistent with any other Board order, 30 days after the 
date the NITU is issued; and permit the railroad to fully abandon the 
line if no interim trail use agreement is reached within one year from 
the date on which the NITU is issued, subject to appropriate 
conditions, including labor protection and environmental matters.
    (ii) Parties may request a Board order to extend, for one-year 
periods, the interim trail use negotiation period. Up to three one-year 
extensions of the initial period may be granted if the trail sponsor 
and railroad agree; additional one-year extensions, beyond three 
extensions of the initial period, are not favored but may be granted if 
the trail sponsor and railroad agree and good cause is shown.
    * * *
    (e) Late-filed requests; notices of consummation. * * *
    (f) Substitution of trail user. * * *
    (g) Consent after Board decision or notice. * * *
    (h) Notice of interim trail use agreement reached. * * * * *

    Note:  The following appendix will not appear in the Code of 
Federal Regulations.

Appendix

Information Collection

    Title: Preservation of Rail Service.
    OMB Control Number: 2140-0022.
    STB Form Number: None.
    Type of Review: Extension with change.
    Summary: As part of its continuing effort to reduce paperwork 
burdens, and as required by the PRA, the Surface Transportation 
Board (STB or Board) gives notice that it is requesting from OMB 
approval for the revision of the currently approved information 
collection, Preservation of Rail Service, OMB Control No. 2140-0022, 
as further described below. The requested revision to the currently 
approved collection is necessitated by this SNPR.
    Respondents: Affected shippers, communities, or other interested 
persons seeking to preserve rail service over rail lines that are 
proposed or identified for abandonment, and railroads that are 
required to provide information to the offeror or applicant: 
Approximately 40.
    Frequency: On occasion, as follows:

                    Table--Number of Yearly Responses
------------------------------------------------------------------------
                                             Number of
             Type of filing                   filings        Number of
                                             (current)    filings (2018)
------------------------------------------------------------------------
Offer of Financial Assistance...........               1               1
OFA--Railroad Reply to Request for                     1               1
 Information............................

[[Page 26393]]

 
OFA--Request to Set Terms and Conditions               1               1
Request for Public Use Condition........               1               1
Feeder Line Application.................               5               5
Trail Use Request.......................              23              23
Trail Use Request Extension.............              42              84
------------------------------------------------------------------------

    Total Burden Hours (annually including all respondents): 658 
hours (sum total of estimated hours per response X number of 
responses for each type of filing). This is an estimated reduction 
of 168 hours total burden hours from the Board's 2018 information 
collection request. This results from the reduction in the estimated 
number of interim trail use request extensions from 84 (which was 
based on a three-year average from 2015-2017) to 42 interim trail 
use request extensions, due to doubling the length of interim trail 
use request extensions. The estimated number of interim trail use 
requests (also based on a three-year average from 2015-2017) is not 
changed.

                   Table--Estimated Hours per Response
------------------------------------------------------------------------
                                                             Number of
                     Type of filing                          hours per
                                                             response
------------------------------------------------------------------------
Offer of Financial Assistance (OFA).....................              32
OFA--Railroad Reply to Request for Information..........              10
OFA--Request to Set Terms and Conditions................               4
Request for Public Use Condition........................               2
Feeder Line Application.................................              70
Trail Use Request.......................................               4
Trail Use Request Extension.............................               4
------------------------------------------------------------------------

    Total ``Non-Hour Burden'' Cost (such as start-up costs and 
mailing costs): There are no non-hourly burden costs for this 
collection. The annual certifications may be submitted 
electronically.
    Needs and Uses: The STB is, by statute, responsible for the 
economic regulation of common carrier freight railroads and certain 
other carriers operating in the United States. Under the Interstate 
Commerce Act, amended by the ICC Termination Act of 1995, Public Law 
No. 104-88, 109 Stat. 803 (1995), amended by the Surface 
Transportation Board Reauthorization Act of 2015, Public Law 114-110 
(2015), and Section 8(d) of the National Trails System Act, 16 
U.S.C. 1247(d) and 49 CFR 1152.29 (Trails Act), persons seeking to 
preserve rail service may file pleadings before the Board to acquire 
or subsidize a rail line for continued service, or to impose a trail 
use or public use condition.
    When a line is proposed for abandonment, affected shippers, 
communities, or other interested persons may seek to preserve rail 
service by filing with the Board: An OFA to subsidize or purchase a 
rail line for which a railroad is seeking abandonment (49 U.S.C. 
10904), including a request for the Board to set terms and 
conditions of the financial assistance; a request for a public use 
condition (Sec.  10905); or a trail use request (16 U.S.C. 1247(d)). 
Similarly, when a line is placed on a system diagram map identifying 
it as an anticipated or potential candidate for abandonment, 
affected shippers, communities, or other interested persons may seek 
to preserve rail service by filing with the Board a feeder line 
application to purchase the identified rail line (Sec.  10907). 
Additionally, the railroad owning the rail line subject to 
abandonment must, in some circumstances, provide information to the 
applicant or offeror.
    As to trail use, the STB will issue a CITU or NITU to a 
prospective trail sponsor who seeks an interim trail use agreement 
with the rail carrier of the rail line that is being abandoned. The 
CITU/NITU permits parties to negotiate for an interim trail use 
agreement. The parties may also agree to an extension of the 
negotiating period. If parties reach an agreement, then they must 
jointly notify the Board of that fact and of any modification or 
vacancy of the agreement. As specific to the SNPR, the Board 
proposes a one-year period for any initial interim trail use 
negotiating period, instead of the existing 180-day initial 
negotiating period; to permit up to three one-year extensions of the 
initial period if the trail sponsor and the railroad agree; and to 
permit additional one-year extensions if the trail sponsor and the 
railroad agree and good cause is shown.
    The modification of this collection by the Board will decrease 
the burden on respondents because it lengthens both (a) the initial 
interim trail use negotiating period from 180 days to one year and 
(b) interim trail use negotiating period extensions from 180 days to 
one year. The modification is expected to promote greater 
administrative efficiency and reduce burdens on trail use proponents 
and railroads to file extension requests, and on the Board to review 
and approve such requests.

[FR Doc. 2019-11883 Filed 6-5-19; 8:45 am]
 BILLING CODE 4915-01-P