[Federal Register Volume 84, Number 233 (Wednesday, December 4, 2019)]
[Rules and Regulations]
[Pages 66320-66326]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-26221]


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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: Final rule.

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SUMMARY: The Surface Transportation Board (Board or STB) is adopting a 
final rule amending its regulations related to the National Trails 
System Act to: (1) Provide that the initial term for Certificates or 
Notices of Interim Trail Use or Abandonment will be one year (instead 
of the current 180 days); (2) permit up to three one-year extensions of 
the initial period if the trail sponsor and the railroad agree; and (3) 
permit additional one-year extensions if the trail sponsor and the 
railroad agree and extraordinary circumstances are shown.

DATES: This rule is effective on February 2, 2020.

ADDRESSES: Requests for information or questions regarding this final 
rule should reference Docket No. EP 749 (Sub-No. 1) et al., and be 
submitted either via e-filing or in writing addressed to Chief, Section 
of Administration, Office of Proceedings, Surface Transportation Board, 
395 E Street SW, Washington, DC 20423-0001.

FOR FURTHER INFORMATION CONTACT: Sarah Fancher at (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). Specifically, 
NARPO asked that the Board open a proceeding to consider rules that 
would: (1) Limit the number of 180-day extensions of a trail use 
negotiating period to six; (2) require a rail carrier or trail sponsor 
negotiating an interim trail use agreement to send notice of the 
issuance of a Certificate of Interim Trail Use or Abandonment (CITU) or 
Notice of Interim Trail Use or Abandonment (NITU) \1\ to landowners 
adjacent to the right-of-way covered by the CITU or NITU; and (3) 
require all entities, including government entities, filing a request 
for a CITU or NITU, or extension thereof, to pay a filing fee. After 
considering NARPO's petition for rulemaking and the comments received, 
the Board granted the petition in part as it pertained to NARPO's first 
request and instituted a rulemaking proceeding in Limiting Extensions 
of Trail Use Negotiating Periods, Docket No. EP 749 (Sub-No. 1), to 
propose modifications to 49 CFR 1152.29 that would limit the number of 
180-day extensions of the interim trail use/railbanking negotiating 
period to a maximum of six extensions, absent extraordinary 
circumstances. Nat'l Ass'n of Reversionary Prop. Owners--Pet. for 
Rulemaking (NPR), EP 749 et al., (STB served Oct. 2, 2018) (83 FR 
50,326). The Board, however, denied NARPO's petition with regard to its 
other requests.
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    \1\ NARPO's proposed rules only refer to NITUs, but, presumably, 
NARPO intended to propose the same changes to CITU procedures as 
there are no substantive differences between CITUs (issued in an 
abandonment application proceeding) and NITUs (issued in an 
abandonment exemption proceeding).
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    On March 22, 2019, after the comment period closed in Docket No. EP 
749 (Sub-No. 1), Rails-to-Trails Conservancy (RTC) petitioned the Board 
in Rails-to-Trails Conservancy--Petition for Rulemaking, Docket No. EP 
753, 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. Because 
Docket Nos. EP 479 (Sub-No. 1) and EP 753 both pertain to the same 
regulation, section 1152.29, and concern procedures for the extension 
of interim trail use negotiation/railbanking negotiating periods, the 
Board consolidated the two proceedings. After carefully reviewing all 
the comments on the NPR and the RTC petition, the Board, in a 
supplemental notice of proposed rulemaking, proposed to establish a 
one-year period for any initial interim trail use/railbanking 
negotiating period, permit up to three

[[Page 66321]]

one-year extensions if the trail sponsor and railroad agree, and 
provide that requests for additional one-year extensions (beyond three 
extensions of the initial period) would not be favored but may be 
granted if the trail sponsor and railroad agree and good cause is 
shown. Limiting Extensions of Trail Use Negotiating Periods (SNPR), EP 
749 (Sub-No. 1) et al., slip op. at 6, 8-9 (STB served June 6, 2019) 
(84 FR 26,387).
    The Board received comments from over 100 parties in response to 
the SNPR. After consideration of the comments, the Board is adopting a 
final rule amending its regulations related to the Trails Act as 
explained below.

Background

    Pursuant to 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 certain 
responsibilities 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,'' \2\ 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,\3\ 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.\4\
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    \2\ If a line is railbanked and designated for interim trail 
use, any reversionary interests that adjoining landowners might have 
under state law upon abandonment are not activated. 16 U.S.C. 
1247(d); Preseault v. ICC, 494 U.S. 1, 8 (1990); Birt v. STB, 90 
F.3d 580, 583 (D.C. Cir. 1996).
    \3\ See King Cty., Wash.--Acquis. Exemption--BNSF Ry., FD 35148, 
slip op. at 3-4 (STB served Sept. 18, 2009).
    \4\ 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 274 (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 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/railbanking is subject to possible future 
reconstruction and reactivation of rail service at any time. 49 CFR 
1152.29(a).\5\ If the railroad indicates its willingness to negotiate 
an interim trail use/railbanking agreement for the line, the Board will 
issue a CITU or NITU. 49 CFR 1152.29(c)(1), (d)(1). Currently, pursuant 
to the Board's regulations, a CITU or NITU grants parties a 180-day 
period (which can be extended by Board order) to negotiate an interim 
trail use/railbanking agreement. Id.; 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. Mo. Pac. 
R.R., 95 F.3d 654, 659 (8th Cir. 1996) (stating that the ICC ``was free 
to extend [the 180-day CITU or NITU] time period for an agreement'').
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    \5\ The prospective trail sponsor's request must also include a 
map depicting, and an accurate description of, the right-of-way, or 
portion thereof (including mileposts), proposed to be acquired or 
used for interim trail use/railbanking. 49 CFR 1152.29(a)(1).
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    If parties reach an agreement during the interim trail use/
railbanking negotiating period, the CITU or NITU automatically 
authorizes interim trail use/railbanking. Preseault, 494 U.S. at 7 n.5. 
If no interim trail use/railbanking agreement is reached by the 
expiration of the CITU or NITU 180-day negotiation period (and any 
extension thereof), the CITU or NITU authorizes the railroad to 
exercise its option to ``fully abandon'' the line by consummating the 
abandonment, without further action by the agency, provided that there 
are no legal or regulatory barriers to consummation. Birt, 90 F.3d at 
583; see also 49 CFR 1152.29(c)(1), (d)(1), (e)(2); 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).\6\
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    \6\ The Board retains jurisdiction over a rail line throughout 
the interim trail use/railbanking negotiating period, any period of 
interim trail use/railbanking, and any period during which rail 
service is restored. The Board's jurisdiction is terminated once the 
CITU or NITU is no longer in effect and the railroad has fully 
abandoned the line by filing a notice of consummation under 49 CFR 
1152.29(e)(2). See 16 U.S.C. 1247(d); Hayfield N. R.R. v. Chi. & N. 
W. Transp. Co., 467 U.S. 622, 633 (1984); Honey Creek R.R.--Pet. for 
Declaratory Order, FD 34869 et al., slip op. at 5 (STB served June 
4, 2008). Upon such occurrence, the right-of-way is no longer part 
of the national transportation system and will revert to any 
reversionary landowner. Preseault, 494 U.S. at 5, 8.
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Duration of the Initial Interim Trail Use/Railbanking Negotiating 
Period

    As noted above, RTC petitioned the Board to institute a rulemaking 
proceeding to revise 49 CFR 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 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 or NITU to allow interim 
trail use/railbanking negotiations between a prospective trail sponsor 
and a railroad. (RTC Pet. 2.) RTC further notes that, as of November 
2018, its database contained records for 718 issued CITUs/NITUs dating 
from 1987. (Id. at 6.) RTC asserts that, of the 718 CITUs/NITUs, at 
least 393 corridors--representing 5,895.53 miles of right-of-way--were 
successfully railbanked and remain railbanked today. (Id. at 7.) RTC 
further asserts that, of the 370 railbanked corridors for which its 
database indicated the length of negotiations,\7\ 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. (RTC Pet. 7.) RTC, therefore, 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.) 
After considering the comments filed in response to the Board's NPR, 
and the comments filed in response to RTC's petition, the Board issued 
the SNPR, proposing a rule establishing a one-year initial period for 
interim trail use/railbanking negotiations.
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    \7\ RTC states that its database lacks information on the length 
of railbanking negotiations for 23 railbanked corridors. (RTC Pet., 
Decl. Griffen 2.)
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    Most of the parties commenting on the SNPR \8\ support the Board's 
proposal, asserting that the proposal effectively balances the 
interests of all affected parties and stakeholders. Many agree that 
establishing a one-year interim trail use/railbanking negotiating

[[Page 66322]]

period would reduce burdens on prospective trail sponsors and railroads 
related to the filing of extension requests, reduce the number of 
filings requiring Board action (thereby conserving Board resources), 
and more closely reflect the actual time needed to complete interim 
trail use/railbanking negotiations. (See, e.g., Hunter Area Trail 
Coalition Comments 1, July 8, 2019, EP 749 (Sub-No. 1) et al.; City of 
St. Charles Comments 1, July 3, 2019, EP 749 (Sub-No. 1) et al.)
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    \8\ The Board notes that comments regarding the SNPR were due by 
July 8, 2019, and replies were due by July 26, 2019. A number of 
comments, however, were filed late. In the interest of having a more 
complete record, all pleadings received as of the date of issuance 
of this decision will be accepted into the record.
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    Few commenters oppose this aspect of the Board's SNPR proposal. One 
commenter argues that negotiations should be open-ended to allow 
parties more time to finalize their agreements, (see Stimson Comments 
1, July 8, 2019, EP 749 (Sub-No. 1) et al.), but, as discussed below, 
the Board seeks to bring administrative finality to the interim trail 
use/railbanking negotiating process. Two commenters express general 
concerns that extended interim trail use/railbanking negotiations and 
trail use harm property owners, and, without further explanation beyond 
those general concerns, also seem to oppose the Board's proposal to 
establish one-year negotiating periods. (See Pennsylvania Transit 
Expansion Coalition Comments 1, July 8, 2019, EP 749 (Sub-No. 1) et 
al.; Presnell Comments 1, June 19, 2019, EP 749 (Sub-No. 1) et al.) The 
Board, however, is taking action here to protect against unduly 
protracted interim trail use/railbanking negotiating periods and is 
unpersuaded by the few comments that raise general concerns about the 
Board's proposed one-year initial trail use/railbanking negotiating 
period.
    In light of the data from RTC and for the reasons cited in the many 
comments received in support of the Board's SNPR proposal, the Board 
will adopt its proposed rule changing the duration of the initial 
interim trail use/railbanking negotiating period to one year. This 
change would reduce burdens on parties before the Board, conserve Board 
resources, and reflect more closely the actual length of time in which 
many interim trail use/railbanking negotiations are completed.

Extensions of the Interim Trail Use/Railbanking Negotiating Period

    In the SNPR, EP 749 (Sub-No. 1) et al., slip op. at 8-9, the Board 
sought comment on whether it should limit the number of extensions of 
an interim trail use/railbanking negotiating period to three one-year 
extensions, unless good cause for additional extension(s) is shown.
    Most commenters support the Board's proposed rule that would permit 
up to three one-year extensions of the interim trail use/railbanking 
negotiating period. Commenters, however, disagree as to whether a 
``good cause'' standard of review or an ``extraordinary circumstances'' 
standard should apply to additional one-year extensions requested 
beyond the first three. Landowners and related interested parties 
generally oppose any rule that would extend the interim trail use/
railbanking negotiating period for ``good cause'' and would prefer an 
``extraordinary circumstances'' standard.\9\ (See, e.g., Rahmer 
Comments 1, July 8, 2019, EP 749 (Sub-No. 1) et al.; Borek Comments 1, 
July 8, 2019, EP 749 (Sub-No. 1) et al.; West Comments 1, June 27, 
2019, EP 749 (Sub-No. 1) et al.) Many of these commenters argue that a 
``good cause'' standard of review is too vague, lenient, subjective, or 
broad. (See, e.g., Falcsik Comments 1, July 3, 2019, EP 749 (Sub-No. 1) 
et al., Watt Comments 1, June 27, 2019, EP 749 (Sub-No. 1) et al.; 
Pennsylvania Transit Expansion Coalition Comments 1, July 8, 2019, EP 
749 (Sub-No. 1) et al.) Many commenters that support an ``extraordinary 
circumstances'' standard also support the inclusion of language stating 
that requests for extensions are not favored. (See, e.g., Falcsik 
Comments 2, July 3, 2019, EP 749 (Sub-No. 1) et al.)
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    \9\ One commenter further asserts that a more acceptable and 
reasonable standard by which to provide NITU extensions would be 
``extraordinary circumstances'' limited to ``circumstances beyond a 
party's control that normal prudence and experience could not 
foresee, anticipate or provide for.'' (Falcsik Comments 1, July 3, 
2019, EP 749 (Sub-No. 1) et al.)
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    Trail proponents, which include government entities, individuals, 
and other interested parties, support the Board's proposal, which was 
sought by RTC to require a showing of ``good cause'' for extensions 
beyond the first three. (See, e.g., Alabama Trails Commission Comments 
1, July 8, 2019, EP 749 (Sub-No. 1) et al.; Humboldt Trails Council 
Comments 1, July 8, 2019, EP 749 (Sub-No. 1) et al.; Capps Comments 1, 
July 8, 2019, EP 749 (Sub-No. 1) et al.; City of Chicago Comments 1, 
July 5, 2019, EP 749 (Sub-No. 1) et al.) Most trail proponents urge the 
Board to adopt the regulations proposed in the SNPR, including the 
``good cause'' standard for granting extensions beyond the first three, 
but request that the Board eliminate the proposed language that more 
than three extensions are ``not favored.'' According to some, the 
inclusion of this language would undermine the purposes of the Trails 
Act based on what they characterize as ``vague and unsubstantiated 
concerns about reducing `uncertainty for some property owners.''' (See, 
e.g., Alabama Trails Commission Comments 1, July 8, 2019, EP 749 (Sub-
No. 1) et al.; Hummingbird Trail Alliance Comments 1, June 27, 2019, EP 
749 (Sub-No. 1) et al.) RTC also argues that the ``not favored'' 
language is not supported by any demonstrated need to discourage 
extension requests, would create a higher standard governing extensions 
of ordinary regulatory deadlines that is unprecedented in the Board's 
regulations, and would create uncertainty and invite baseless 
challenges that could delay and discourage railbanking negotiations. 
(RTC Comments 1, July 8, 2019, (filing ID 248138) EP 749 (Sub-No. 1).)
    The Board has considered the comments received following issuance 
of the NPR and the SNPR, and it continues to conclude that reasonably 
limiting the number of extensions of the interim trail use/railbanking 
negotiating period would foster administrative efficiency, clarity, and 
finality. See NPR, EP 749 et al., slip op. at 5. Moreover, having 
reviewed all the comments with respect to the different standards of 
review for extension requests beyond three, the Board finds the 
``extraordinary circumstances'' standard originally proposed in the 
NPR--together with the proposed language in the SNPR that more than 
three extensions are ``not favored''--to be more consistent with the 
Board's intent than the ``good cause'' standard of review proposed in 
the SNPR. The Board desires to bring more efficiency, clarity, and 
finality to the interim trail use/railbanking process as Trails Act 
negotiations at times have gone on for many years. NPR, EP 749 et al., 
slip op. at 5. An ``extraordinary circumstances'' standard would 
achieve this goal more effectively than a more permissive ``good 
cause'' standard by making clear that extensions beyond the third would 
be unusual and by giving participants in Trails Act proceedings a clear 
understanding of the appropriate timeframe for reaching an interim 
trail use/railbanking agreement, as well as a more definitive deadline 
under which to work.\10\
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    \10\ The Board notes that courts have held that the issuance of 
a CITU or NITU and the duration of the interim trail use negotiation 
period can impact takings claims cases. See Ladd v. United States, 
630 F.3d 1015, 1024-25 (Fed. Cir. 2010); Caldwell v. United States, 
391 F.3d 1226, 1233 (Fed. Cir. 2004).
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    Advocates of the ``good cause'' standard assume that the more 
stringent ``extraordinary circumstances'' standard would result in 
legitimate, diligently pursued negotiations being truncated, preventing 
consummation of trail use

[[Page 66323]]

agreements and frustrating the policy of the Trails Act to encourage 
railbanking. (See, e.g., RTC Comments 5-6, 9-10, July 8, 2019, (filing 
ID 248138) EP 749 (Sub-No. 1)). Similarly, many of the commenters who 
oppose language stating that additional extensions beyond three ``are 
not favored'' argue that such language suggests an unnecessary 
presumption against granting additional extensions. (See, e.g., Friends 
of the Cheat Comments 1-2, July 16, 2019, EP 749 (Sub-No. 1) et al.; 
Transportation for America Comments 1; June 21, 2019, EP 749 (Sub-No. 
1) et al.) Indeed, these commenters appear to support a ``good cause'' 
standard precisely because that standard would be liberal and would 
allow for potentially open-ended extensions. (See, e.g., RTC Pet. 10-
12.)
    However, adopting a more liberal standard would undercut the 
Board's goals in this rulemaking. The Board must balance the need to 
allow parties enough time to complete their negotiations and finalize 
an interim trail use/railbanking agreement with the need to conclude 
the Trails Act process within a reasonable amount of time. Four years 
is a significant amount of time to reach an interim trail use/
railbanking agreement. Based on the record here, the Board does not 
anticipate that the ``extraordinary circumstances'' standard will 
impair the ability of prospective trail sponsors and railroads, 
operating diligently and in good faith, to successfully conclude 
interim trail use/railbanking agreements. The record supports the 
conclusion that an ``extraordinary circumstances'' standard would be 
implicated in only a relatively small percentage of cases. Based on 
RTC's data, 327 out of 370 negotiated Trails Act agreements 
(approximately 88%) have been reached within four years--that is, 
before an ``extraordinary circumstances'' requirement would even apply 
under the rule adopted here. (See RTC Pet., Decl. Griffen 2.) 
Therefore, in the vast majority of cases, parties who have reached an 
interim trail use/railbanking agreement have been able to do so within 
a four-year period such as that established by this final rule (a one-
year initial negotiation period followed by three one-year extensions). 
The Board anticipates that, with a clearer understanding of the 
deadlines that will apply under the final rule, parties would be better 
incentivized to conclude their negotiations and enter into an agreement 
in a more timely manner, which would both give landowners more 
certainty by providing a timeline for the conclusion of negotiations 
and conserve Board resources. Moreover, where, due to extraordinary 
circumstances, parties are unable to finalize an agreement within four 
years, they will retain the ability to demonstrate those extraordinary 
circumstances to the Board and obtain further extensions. Given that 
the Board does not anticipate this rule would impair the ability of 
trail sponsors and railroads to successfully conclude interim trail 
use/railbanking agreements, the final rule is consistent with the 
underlying purposes of the Trails Act: To preserve established railroad 
rights-of-way for future reactivation of rail service and encourage 
their use in the interim as recreational trails. Preseault, 494 U.S. at 
17-18.
    RTC argues that there is little precedent in the Board's 
regulations or regulatory practice to adopt a standard that strongly 
disfavors extensions, regardless of ``any good cause for the 
requests.'' (RTC Comments 11, Nov. 21, 2018, EP 749 (Sub-No. 1).) 
According to RTC, the Board routinely waives its regulatory deadlines 
for other stakeholders based on ``good cause shown.'' (Id. (citing 
Buckingham Branch R.R.--Change in Operators Exemption--Cassatt Mgmt., 
LLC, FD 36202 (STB served July 31, 2018).) However, based on the 
Board's experience with Trails Act negotiations, some of which have 
gone on for more than a decade, the Board finds that a different, 
``extraordinary circumstances'' standard of review for such cases is 
warranted and appropriate. As noted above, the Board believes that this 
standard will improve the efficiency, clarity, and finality of the 
Trails Act process while balancing the objectives of trail proponents, 
landowners, railroads, and the agency. It has been long recognized that 
agencies have broad discretion to manage and control their own dockets 
and proceedings. See Neighborhood TV Co. v. FCC, 742 F.2d 629, 636 
(D.C. Cir. 1984) (``There is a general principle that `[i]t is always 
within the discretion of a court or an administrative agency to relax 
or modify its procedural rules adopted for the orderly transaction of 
business when in a given case the ends of justice require it.''') 
(quoting Am. Farm Lines v. Black Ball Freight Serv., 397 U.S. 532, 539 
(1970)).\11\ Therefore, the Board may, in its discretion, modify its 
Trails Act procedures to accomplish the goals set forth in the NPR and 
SNPR.\12\
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    \11\ See also GTE Serv. Corp. v. FCC, 782 F.2d 263, 273-74 & 
n.12 (D.C. Cir. 1986) (affirming agencies' inherent power to control 
their own dockets); Ass'n of Buss. Advocating Tariff Equity v. 
Hanzlik, 779 F.2d 697, 701 & n.6 (D.C. Cir. 1985) (same); FTC v. 
Owens-Corning Fiberglas Corp., 626 F.2d 966, 975 (D.C. Cir. 1980) 
(same); Nat. Res. Def. Council, Inc. v. SEC, 606 F.2d 1031, 1056 
(D.C. Cir. 1979) (same).
    \12\ In any event, ``extraordinary'' circumstances is not an 
uncommon standard and is used in a variety of regulatory and 
procedural contexts, including in the Board's own regulations. See, 
e.g., Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33 (1980) (per 
curiam) (mandamus); City of Orville v. FERC, 147 F.3d 979 (D.C. Cir. 
1998) (timeliness of intervention); 43 CFR 4.403 (reconsideration of 
final decision); 5 CFR 185.110 (late filing of answer); 49 CFR 
1002.2(e)(2) (Board will accept requests for fee waivers in 
extraordinary situations).
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    Finally, in jointly filed comments in response to both the NPR and 
SNPR, Madison County Mass Transit District and the Iowa Natural 
Heritage Foundation (MCTD/INHF) argue that the Board's sole basis for 
any limitation on the CITU or NITU negotiation period is dicta in Birt, 
90 F.3d at 589, which notes that NITU extensions ``ad infinitum'' could 
have the undesirable effect of ``allowing the railroad to stop service 
without either relinquishing its rights to the easement or putting the 
right-of-way to productive use.'' (MCTD/INHF Comments 6-7, Oct. 25, 
2018, EP 749 et al.); MCTD/INHF Comments 6-7, July 5, 2019, EP 749 
(Sub-No. 1) et al.) MCTD/INHF asserts that there is no authority in 16 
U.S.C. 1247(d) or in rail transportation policy generally to impose any 
limitations on the NITU negotiating period. (MCTD/INHF Comments 11, 
Oct. 25, 2018, EP 749 et al.) Similarly, the Missouri Central Railroad 
Company (MCRR) argues that the Board's proposal is unnecessary given 
that the Board can and does evaluate extension requests on a case-by-
case basis. (MCRR Comments 2, Nov. 1, 2018, EP 749 (Sub-No. 1); MCRR 
Comments 1, July 2, 2019, EP 749 (Sub-No. 1) et al.) Nevertheless, MCRR 
states that it understands the need for administrative finality. (MCRR 
Comments 1, July 2, 2019, EP 749 (Sub-No. 1) et al.)
    MCTD/INHF misinterpret Birt. The court in Birt found that the 
Board's predecessor, the Interstate Commerce Commission (ICC), could, 
in its discretion, interpret 16 U.S.C. 1247(d) to allow it to grant 
reasonable extensions of the Trails Act negotiating period. See 90 F.3d 
at 588-89. That holding is entirely consistent with the Board's 
determination in the final rule here. Nothing in Birt or the rest of 
MCTD/INHF's comments provides support for the proposition that the 
Board may not impose reasonable restrictions on the number of 
extensions it grants. As noted above, agencies have the discretion to 
modify procedural rules ``when in a given case the ends of justice 
require it.'' See Neighborhood TV, 742 F.2d at 636. Here, as discussed 
above, adoption of a

[[Page 66324]]

rule establishing a one-year initial negotiating period, allowing three 
one-year extensions, and permitting additional one-year extensions if 
extraordinary circumstances are shown is reasonable and strikes an 
appropriate balance between the interests of landowners, trail 
proponents, railroads, and the agency. The final rule will lead to more 
efficiency, clarity, and finality in the Trails Act process, reducing 
burdens on parties, conserving Board resources, and providing greater 
overall certainty, while also providing a reasonable amount of time (at 
least four years) for railroads and prospective trail sponsors to 
negotiate voluntary agreements for interim trail use/railbanking.\13\
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    \13\ As noted above, based on RTC's data, approximately 88% of 
voluntary interim trail use/railbanking agreements have been reached 
within four years. (See RTC Pet., Decl. Griffen 2.)
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Other Issues

    In its petition, NARPO requested that the Board require a rail 
carrier or trail sponsor to ``send notice'' to adjoining landowners 
following the issuance of a CITU or NITU. (NARPO Pet. 4.) In the NPR, 
the Board found that NARPO had not provided a sufficient basis for 
altering the existing notice requirements. NPR, EP 749 et al., slip op. 
at 6-7. In its comments in response to the NPR, NARPO asks the Board to 
further consider NARPO's request to require rail carriers to provide 
``due process notice'' to property owners. (NARPO Reply 1-2, Nov. 20, 
2018, EP 749 (Sub-No. 1)). As stated in the NPR, the Board, and its 
predecessor, the ICC, have repeatedly considered similar notice 
proposals by NARPO and declined to adopt such a rule. See Nat'l Ass'n 
of Reversionary Prop. Owners v. STB, 158 F.3d 135 (D.C. Cir. 1998); 
Nat'l Trails System Act & R.R. Rights-of-Way, EP 702, slip op. at 7-8 
(STB served Feb. 16, 2011); Rail Abans.--Use of Rights-of-Way as 
Trails--Supplemental Trails Act Procedures, EP 274 (Sub-No. 13) (ICC 
served July 28, 1994). NARPO has provided the Board no basis for 
altering that position.
    NARPO also argues that the Board should ``rein in the games the 
railroads are playing'' with NITU extensions and the Section 106 
process of the National Historic Preservation Act, 54 U.S.C. 306108. 
(NARPO Reply 6, Nov. 20, 2018, EP 749 (Sub-No. 1)). According to NARPO, 
rail carriers use the need to complete the Section 106 process and 
comply with certain other types of environmental conditions imposed 
during the environmental review process to extend the time available to 
consummate abandonments under 49 CFR 1152.29(e)(2)--with the goal that 
prospective trail sponsors, during such time, can raise the necessary 
capital to acquire rights-of-way for interim trail use/railbanking. 
(Id.)
    Similarly, certain landowners collectively filed comments arguing 
that the Board's SNPR omits ``a necessary corollary concern to 
extensions of temporary and permanent trail use negotiating periods.'' 
(Nelson et al. Comments 1, June 28, 2019, EP 749 (Sub-No. 1) et al.) 
These landowners assert that, if there are limits on the number of 
extensions of the CITU or NITU negotiating period, there, likewise, 
``should be a concurrent amendment pertaining to the limitation of 
consummation of abandonment after these newly enlarged negotiation 
periods, and the likelihood of the termination/vacation of a NITU.'' 
(Id. at 4.) They propose four amendments to the Board's regulations at 
section 1152.29(e), governing notices of consummation of abandonments; 
these proposed changes include a proposal that ``a railroad's 
consummation of abandonment shall automatically occur 180 days after 
the expiration or vacation of a NITU.'' (Id. at 5.)
    A notice of consummation is required in every abandonment case in 
which a railroad decides to exercise its authority to abandon a rail 
line and thereby terminate the Board's jurisdiction--not just in 
abandonment proceedings where a trail use condition has been imposed. 
49 CFR 1152.29(e)(2); Honey Creek, FD 34869 et al., slip op. at 5. 
Moreover, certain other conditions commonly imposed in abandonment 
proceedings to implement provisions of law unrelated to the Trails Act 
can affect the timing and permissibility of a railroad's filing a 
notice consummating an abandonment. See Consummation of Rail Line 
Abans. that are Subject to Historic Pres. & Other Envtl. Conditions, EP 
678 (STB served Apr. 23, 2008). Any proposal that would alter or 
otherwise impact how and when consummation of abandonment can take 
place is beyond the scope of this proceeding, which relates only to 
restrictions on the negotiating periods for interim trail use/
railbanking, not the broader issues implicated in the consummation of 
abandonments in general. Thus, the Board declines to address the 
comments and proposals relating to the filing of a consummation notice 
under section 1152.29(e).

Final Rule

    For the reasons discussed above, and as set forth in the Appendix, 
the Board is adopting a final rule to amend its regulations to: (1) 
Provide that the initial term for CITUs or NITUs will be one year 
(instead of the current 180 days); (2) permit up to three one-year 
extensions of the initial period if the trail sponsor and the railroad 
agree; and (3) permit additional one-year extensions if the trail 
sponsor and the railroad agree and extraordinary circumstances are 
shown. Requests for additional extensions will not be favored but may 
be granted if the trail sponsor and railroad agree and ``extraordinary 
circumstances'' are shown.\14\ A showing of ``extraordinary 
circumstances'' will depend on the specific facts of each case but 
might include, for example, specific evidence that necessary financing 
is imminent or specific evidence of problems or complications 
demonstrably beyond the negotiators' control that arise in connection 
with an unusually lengthy, multi-jurisdictional trail. It is unlikely 
that issues within negotiators' control, such as insurance coverage, 
title review, appraisal issues, or personnel turnover, will constitute 
extraordinary circumstances.
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    \14\ In addition to the changes described here, the Appendix 
includes other non-substantive changes to the rules in section 
1152.29 (e.g., adding paragraph headings).
---------------------------------------------------------------------------

    The aspect of the final rule establishing a one-year duration for 
any initial interim trail use/railbanking negotiating period will apply 
to any new CITU or NITU requested on or after the effective date of the 
rule. Parties in negotiations under existing CITUs or NITUs on the 
effective date of these rules who wish to extend their negotiating 
period will be required to seek extensions of one year, rather than 180 
days as is the current common practice (or any other duration). The 
aspect of the final rule that limits the number of one-year extensions 
of an interim trail use/railbanking negotiating period to three will 
apply both to new CITUs or NITUs requested on or after the rule's 
effective date and to cases where a CITU or NITU was requested before 
the final rule took effect. In the latter instance, a showing of 
extraordinary circumstances will be required for any request that would 
extend the interim trail use/railbanking negotiating period to a date 
after the four-year anniversary of the issuance of the CITU or NITU 
(including cases where the existing CITU or NITU already extends beyond 
that anniversary), unless the request is eligible for the transitional 
measure described below.
    In the NPR, the Board stated that it may more liberally provide 
additional

[[Page 66325]]

extensions for extraordinary circumstances in certain instances in 
which a CITU or NITU is pending when this rule takes effect. NPR, EP 
749 et al., slip op. at 8. The Board clarifies now that, as a 
transitional measure, parties engaged in negotiations under an existing 
CITU or NITU that was originally issued before February 2, 2017, may 
request one additional extension of one year, beyond the four-year 
anniversary of the issuance of the CITU or NITU, without showing 
extraordinary circumstances.

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. Section 601-604. In its 
final rule, the agency must either include a final regulatory 
flexibility analysis, section 604(a), or certify that the proposed rule 
would not have a ``significant impact on a substantial number of small 
entities,'' section 605(b). 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).
    In the SNPR, the Board certified under 5 U.S.C. 605(b) that the 
proposed rule would not have a significant economic impact on a 
substantial number of small entities within the meaning of the RFA.\15\ 
The Board explained that its proposed changes to its regulations would 
improve the efficiency, clarity, and finality of its interim trail use/
railbanking procedures and would not mandate the conduct of small 
entities. Indeed, the changes proposed are largely procedural and would 
not have a significant economic impact on Class III rail carriers or 
prospective trail sponsors (whether as small businesses, not-for-
profits, or small governmental jurisdictions) to which the RFA applies. 
The proposed rules would lengthen, from 180 days to one year, the 
duration of the initial voluntary interim trail use/railbanking 
negotiating period and the current typical extension periods, reducing 
the frequency with which trail sponsors and railroads would need to 
file extension requests and replies. The Board, therefore, noted that 
the impact of the proposed rule would be a reduction in the paperwork 
burden for small entities. Further, the Board asserted 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/railbanking agreement. Therefore, the Board certified 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.
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    \15\ 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 $39,194,876 or less when adjusted for inflation using 
2018 data. Class II rail carriers have annual operating revenues of 
less than $250 million but in excess of $20 million in 1991 dollars, 
or $489,935,956 and $39,194,876 respectively, when adjusted for 
inflation using 2018 data. The Board calculates the revenue deflator 
factor annually and publishes the railroad revenue thresholds in 
decisions and on its website. 49 CFR 1201.1-1; Indexing the Annual 
Operating Revenues of R.Rs., EP 748 (STB served June 14, 2019).
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    The final rule adopted here revises the rules proposed in the SNPR; 
however, the same basis for the Board's certification of the proposed 
rule applies to the final rule. Therefore, the Board again certifies 
under 5 U.S.C. 605(b) that the final rule will not have a significant 
economic impact on a substantial number of small entities within the 
meaning of the RFA. A copy of this decision will be served upon the 
Chief Counsel for Advocacy, Offices of Advocacy, U.S. Small Business 
Administration, Washington, DC 20416.

Paperwork Reduction Act

    In this proceeding, the Board is modifying an existing collection 
of information that is currently approved by the Office of Management 
and Budget (OMB) through September 30, 2021, under the collection of 
Preservation of Rail Service (OMB Control No. 2140-0022). In the SNPR, 
the Board sought comments pursuant to the Paperwork Reduction Act 
(PRA), 44 U.S.C. 3501-3549, and OMB regulations at 5 CFR 1320.8(d)(3) 
regarding: (1) Whether the collection of information, as modified in 
the proposed rule in the Appendix, 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. No comments were received pertaining to 
the collection of this information under the PRA.
    This modification to an existing collection will be submitted to 
OMB for review as required under the PRA, 44 U.S.C. 3507(d), and 5 CFR 
1320.11.

Congressional Review Act

    Pursuant to the Congressional Review Act, 5 U.S.C. 801-808, the 
Office of Information and Regulatory Affairs has designated this rule 
as a non-major rule, as defined by 5 U.S.C. 804(2).

List of Subjects in 49 CFR Part 1152

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

    It is ordered:
    1. The Board adopts the final rule set forth in this decision. 
Notice of the final rule will be published in the Federal Register.
    2. All pleadings received by the Board as of the date of issuance 
of this decision are accepted into the record.
    3. 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.
    4. This decision is effective on February 2, 2020.

    Decided: November 27, 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 amends 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

[[Page 66326]]

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 paragraph (d), revising the paragraph heading;
0
h. Revising paragraph (d)(1);
0
i. In paragraph (d)(3), removing ``49 CFR part 1150'' and adding in its 
place the words ``part 1150 of this title'';
0
j. In paragraph (e), adding a paragraph heading;
0
k. In paragraph (f), adding a paragraph heading;
0
l. In paragraph (g), adding a paragraph heading and removing the words 
``180 days'' and adding in its place the words ``one year'';
0
m. 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 railbanking.

    (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/railbanking 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 railbanking, 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 extraordinary 
circumstances are 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/railbanking 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 railbanking, 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 extraordinary circumstances 
are 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.
* * * * *
[FR Doc. 2019-26221 Filed 12-3-19; 8:45 am]
BILLING CODE 4915-01-P