[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.
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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