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

Published date06 June 2019
Citation84 FR 26387
Record Number2019-11883
SectionProposed rules
CourtSurface Transportation Board
Federal Register, Volume 84 Issue 109 (Thursday, June 6, 2019)
[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]
                =======================================================================
                -----------------------------------------------------------------------
                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.
                -----------------------------------------------------------------------
                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\
                ---------------------------------------------------------------------------
                 \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.
                ---------------------------------------------------------------------------
                 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\
                ---------------------------------------------------------------------------
                 \2\ In the interest of a complete record, the Board will accept
                all late-filed submissions to date in both dockets.
                ---------------------------------------------------------------------------
                 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\
                ---------------------------------------------------------------------------
                 \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.
                ---------------------------------------------------------------------------
                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\
                ---------------------------------------------------------------------------
                 \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).
                ---------------------------------------------------------------------------
                 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'').
                ---------------------------------------------------------------------------
                 \8\ The Board uses the terms ``railbanking'' and ``interim trail
                use'' interchangeably when discussing a CITU or NITU.
                ---------------------------------------------------------------------------
                 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\
                ---------------------------------------------------------------------------
                 \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.
                ---------------------------------------------------------------------------
                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.)
                ---------------------------------------------------------------------------
                 \10\ As noted above, RTC also makes this proposal in its
                comments on the NPR. (RTC Comments 17-18.)
                ---------------------------------------------------------------------------
                 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.)
                ---------------------------------------------------------------------------
                 \11\ RTC states that its database lacks information on the
                length of railbanking negotiations for 23 railbanked corridors. (RTC
                Pet., Declaration Griffen 2.)
                ---------------------------------------------------------------------------
                 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.)
                ---------------------------------------------------------------------------
                 \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.)
                ---------------------------------------------------------------------------
                 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).)
                ---------------------------------------------------------------------------
                 \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).)
                ---------------------------------------------------------------------------
                 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.)
                ---------------------------------------------------------------------------
                 \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.)
                ---------------------------------------------------------------------------
                 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.
                ---------------------------------------------------------------------------
                 \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.
                ---------------------------------------------------------------------------
                 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\
                ---------------------------------------------------------------------------
                 \16\ The proposed rule also includes other non-substantive
                changes to the rules in section 1152.29, such as adding paragraph
                headings.
                ---------------------------------------------------------------------------
                 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\
                ---------------------------------------------------------------------------
                 \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.
                ---------------------------------------------------------------------------
                 Interested persons may comment on the proposed rule by July 8,
                2019; replies are due by July 26, 2019.
                Regulatory Flexibility Act
                 The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612,
                generally requires a description and analysis of new rules that would
                have a significant economic impact on a substantial number of small
                entities. In drafting a rule, an agency is required to: (1) Assess the
                effect that its regulation will have on small entities; (2) analyze
                effective alternatives that may minimize a regulation's impact; and (3)
                make the analysis available for public comment. Sections 601-604. In
                its notice of proposed rulemaking, the agency must either include an
                initial regulatory flexibility analysis, section 603(a), or certify
                that the proposed rule would not have a ``significant impact on a
                substantial number of small entities,'' section 605(b). Because the
                goal of the RFA is to reduce the cost to small entities of complying
                with federal regulations, the RFA requires an agency to perform a
                regulatory flexibility analysis of small entity impacts only when a
                rule directly regulates those entities. In other words, the impact must
                be a direct impact on small entities ``whose conduct is circumscribed
                or mandated'' by the proposed rule. White Eagle Coop. v. Conner, 553
                F.3d 467, 480 (7th Cir. 2009).
                 The Board's proposed changes to its regulations here are intended
                to improve and expedite its trail use procedures and do not mandate the
                conduct of small entities.\18\ The changes proposed here are largely
                procedural and would not have a significant economic impact on Class
                III rail carriers or trail sponsors (whether as small businesses, not-
                for-profits, or small governmental jurisdictions) to which the RFA
                applies. The proposed rules, if promulgated, would lengthen, from 180
                days to one year, the duration of the initial voluntary interim trail
                use negotiating period and the current typical extension, reducing the
                frequency with which trail sponsors and railroads would need to file
                extension requests and replies. The Board, therefore, expects the
                impact of the proposed rule would be a reduction in the paperwork
                burden for small entities. Further, the Board asserts that the economic
                impact of the reduction in paperwork, if any, would be minimal and
                entirely beneficial to small entities as such entities would have
                reduced filing burdens associated with negotiating an interim trail use
                agreement. Therefore, the Board certifies under 5 U.S.C. 605(b) that
                these proposed rules, if promulgated, would not have a significant
                economic impact on a substantial number of small entities within the
                meaning of the RFA. This decision will be served upon the Chief Counsel
                for Advocacy, Offices of Advocacy, U.S. Small Business Administration,
                Washington, DC 20416.
                ---------------------------------------------------------------------------
                 \18\ Effective June 30, 2016, for the purpose of RFA analysis
                for rail carriers subject to Board jurisdiction, the Board defines a
                ``small business'' as only including those rail carriers classified
                as Class III rail carriers under 49 CFR 1201.1-1. See Small Entity
                Size Standards Under the Regulatory Flexibility Act, EP 719 (STB
                served June 30, 2016) (with Board Member Begeman dissenting). Class
                III carriers have annual operating revenues of $20 million or less
                in 1991 dollars or $37,108,875 or less when adjusted for inflation
                using 2017 data. Class II rail carriers have annual operating
                revenues of less than $250 million or $463,860,933 when adjusted for
                inflation using 2017 data. The Board calculates the revenue deflator
                factor annually and publishes the railroad revenue thresholds on its
                website. 49 CFR 1201.1-1.
                ---------------------------------------------------------------------------
                Paperwork Reduction Act
                 Pursuant to the Paperwork Reduction Act (PRA), 44 U.S.C. 3501-3521,
                Office of Management and Budget (OMB) regulations at 5 CFR
                1320.8(d)(3), and in the Appendix, the Board seeks comments about the
                revisions in the proposed rules to the currently approved collection of
                Preservation of Rail Service (OMB Control No. 2140-0022) regarding: (1)
                Whether the collection of information, as modified in the proposed rule
                below, is necessary for the proper performance of the functions of the
                Board, including whether the collection has practical utility; (2) the
                accuracy of the Board's burden estimates; (3) ways to enhance the
                quality, utility, and clarity of the information collected; and (4)
                ways to minimize the burden of the collection of information on the
                respondents, including the use of automated collection techniques or
                other forms of information technology, when appropriate.
                 Because the proposed rule allows for (a) a one-year period for any
                initial interim trail use negotiating period instead of the existing
                180-day period, (b) three one-year extensions of the initial period (if
                the trail sponsor and the railroad agree) instead of an unlimited
                number of 180-day extensions, and (c) additional one-year extensions
                (if the trail sponsor and the railroad agree and good cause is shown),
                the Board estimates the proposed rules would reduce the total annual
                hourly burden by 168 hours under the PRA.\19\ The Board welcomes
                comment on the estimates of actual time and costs of compliance with
                the proposed rules, as detailed below and in the Appendix. Information
                pertinent to these issues is included in the Appendix. The proposed
                rules will be submitted to OMB for review as required under 44 U.S.C.
                3507(d) and 5 CFR 1320.11(b). Once the comment period ends, comments
                received by the Board regarding the information collection will also be
                forwarded to OMB for its review.
                ---------------------------------------------------------------------------
                 \19\ The 168-hour reduction in the hourly burden is derived from
                the assumption that, if the length of each extension is doubled,
                then the number of extensions will be reduced by half. In 2018, the
                Board used a three-year average to estimate that 84 interim trail
                use request extensions would be filed annually through 2020. Due to
                the doubling of the length of these extensions, the Board now
                estimates that there will only be 42 interim trail use request
                extensions. With the estimated hourly burden for each extension
                remaining at four hours, the reduction of the annual hourly burden
                is 168 hours (42 extensions x 4 hours).
                ---------------------------------------------------------------------------
                 It is ordered:
                 1. These proceedings are consolidated for concurrent handling in
                the manner discussed in this decision.
                 2. RTC's petition is granted in part and denied in part, as
                discussed above.
                 3. The Board proposes to amend its rules as set forth in this
                decision. Notice of the proposed rules will be published in the Federal
                Register.
                 4. The procedural schedule is established as follows: Comments
                regarding the proposed rules are due by July 8, 2019; replies are due
                by July 26, 2019.
                 5. A copy of this decision will be served upon the Chief Counsel
                for Advocacy, Office of Advocacy, U.S. Small Business Administration,
                Washington, DC 20416.
                [[Page 26392]]
                 6. This decision is effective on its service date.
                List of Subjects in 49 CFR Part 1152
                 Administrative practice and procedure, Railroads, Reporting and
                recordkeeping requirements, Uniform System of Accounts.
                 Decided: May 31, 2019.
                 By the Board, Board Members Begeman, Fuchs, and Oberman.
                Jeffrey Herzig,
                Clearance Clerk.
                 For the reasons set forth in the preamble, the Surface
                Transportation Board proposes to amend part 1152 of title 49, chapter
                X, of the Code of Federal Regulations as follows:
                PART 1152--ABANDONMENT AND DISCONTINUANCE OF RAIL LINES AND RAIL
                TRANSPORTATION UNDER 49 U.S.C. 10903
                0
                1. The authority citation for part 1152 continues to read as follows:
                 Authority: 11 U.S.C. 1170; 16 U.S.C. 1247(d) and 1248; 45 U.S.C.
                744; and 49 U.S.C. 1301, 1321(a), 10502, 10903-10905, and 11161.
                0
                 2. Amend Sec. 1152.29 by:
                0
                a. In paragraph (a), adding a paragraph heading;
                0
                b. In paragraph (b), adding a paragraph heading;
                0
                c. In paragraph (b)(1)(ii), removing the words ``Sec. 1152.29(a)'' and
                adding in its place the words ``paragraph (a) of this section'';
                0
                d. In paragraph (c), revising the paragraph heading;
                0
                e. Revising paragraph (c)(1);
                0
                f. In paragraph (c)(3), removing the words ``49 CFR part 1150'' and
                adding in its place the words ``part 1150 of this title'';
                0
                g. In paragraphs (d) revise the paragraph heading and (d)(1);
                0
                h. In paragraph (d)(3), removing ``49 CFR part 1150'' and adding in its
                place the words ``part 1150 of this title'';
                0
                i. In paragraph (e), adding a paragraph heading;
                0
                j. In paragraph (f), adding a paragraph heading;
                0
                k. In paragraph (g), adding a paragraph heading and removing the words
                ``180 days'' and adding in its place the words ``one year'';
                0
                l. In paragraph (h), adding a paragraph heading.
                 The revisions and additions read as follows:
                Sec. 1152.29 Prospective use of rights-of-way for interim trail use
                and rail banking.
                 (a) Contents of request for interim trail use. * * *
                 (b) When to file. * * *
                 (c) Abandonment application proceedings.
                 (1) In abandonment application proceedings, if continued rail
                service does not occur pursuant to 49 U.S.C. 10904 and Sec. 1152.27
                and a railroad agrees to negotiate an interim trail use/rail banking
                agreement, then the Board will issue a CITU to the railroad and to the
                interim trail sponsor for that portion of the right-of-way as to which
                both parties are willing to negotiate.
                 (i) The CITU will: Permit the railroad to discontinue service,
                cancel any applicable tariffs, and salvage track and material
                consistent with interim trail use and rail banking, as long as such
                actions are consistent with any other Board order, 30 days after the
                date the CITU is issued; and permit the railroad to fully abandon the
                line if no interim trail use agreement is reached within one year from
                the date on which the CITU is issued, subject to appropriate
                conditions, including labor protection and environmental matters.
                 (ii) Parties may request a Board order to extend, for one-year
                periods, the interim trail use negotiation period. Up to three one-year
                extensions of the initial period may be granted if the trail sponsor
                and the railroad agree; additional one-year extensions, beyond three
                extensions of the initial period, are not favored but may be granted if
                the trail sponsor and the railroad agree and good cause is shown.
                 * * *
                 (d) Abandonment exemption proceedings.
                 (1) In abandonment exemption proceedings, if continued rail service
                does not occur under 49 U.S.C. 10904 and Sec. 1152.27 and a railroad
                agrees to negotiate an interim trail use/rail banking agreement, then
                the Board will issue a Notice of Interim Trail Use or Abandonment
                (NITU) to the railroad and to the interim trail sponsor for the portion
                of the right-of-way as to which both parties are willing to negotiate.
                 (i) The NITU will: Permit the railroad to discontinue service,
                cancel any applicable tariffs, and salvage track and materials,
                consistent with interim trail use and rail banking, as long as such
                actions are consistent with any other Board order, 30 days after the
                date the NITU is issued; and permit the railroad to fully abandon the
                line if no interim trail use agreement is reached within one year from
                the date on which the NITU is issued, subject to appropriate
                conditions, including labor protection and environmental matters.
                 (ii) Parties may request a Board order to extend, for one-year
                periods, the interim trail use negotiation period. Up to three one-year
                extensions of the initial period may be granted if the trail sponsor
                and railroad agree; additional one-year extensions, beyond three
                extensions of the initial period, are not favored but may be granted if
                the trail sponsor and railroad agree and good cause is shown.
                 * * *
                 (e) Late-filed requests; notices of consummation. * * *
                 (f) Substitution of trail user. * * *
                 (g) Consent after Board decision or notice. * * *
                 (h) Notice of interim trail use agreement reached. * * * * *
                 Note: The following appendix will not appear in the Code of
                Federal Regulations.
                Appendix
                Information Collection
                 Title: Preservation of Rail Service.
                 OMB Control Number: 2140-0022.
                 STB Form Number: None.
                 Type of Review: Extension with change.
                 Summary: As part of its continuing effort to reduce paperwork
                burdens, and as required by the PRA, the Surface Transportation
                Board (STB or Board) gives notice that it is requesting from OMB
                approval for the revision of the currently approved information
                collection, Preservation of Rail Service, OMB Control No. 2140-0022,
                as further described below. The requested revision to the currently
                approved collection is necessitated by this SNPR.
                 Respondents: Affected shippers, communities, or other interested
                persons seeking to preserve rail service over rail lines that are
                proposed or identified for abandonment, and railroads that are
                required to provide information to the offeror or applicant:
                Approximately 40.
                 Frequency: On occasion, as follows:
                 Table--Number of Yearly Responses
                ------------------------------------------------------------------------
                 Number of
                 Type of filing filings Number of
                 (current) filings (2018)
                ------------------------------------------------------------------------
                Offer of Financial Assistance........... 1 1
                OFA--Railroad Reply to Request for 1 1
                 Information............................
                [[Page 26393]]
                
                OFA--Request to Set Terms and Conditions 1 1
                Request for Public Use Condition........ 1 1
                Feeder Line Application................. 5 5
                Trail Use Request....................... 23 23
                Trail Use Request Extension............. 42 84
                ------------------------------------------------------------------------
                 Total Burden Hours (annually including all respondents): 658
                hours (sum total of estimated hours per response X number of
                responses for each type of filing). This is an estimated reduction
                of 168 hours total burden hours from the Board's 2018 information
                collection request. This results from the reduction in the estimated
                number of interim trail use request extensions from 84 (which was
                based on a three-year average from 2015-2017) to 42 interim trail
                use request extensions, due to doubling the length of interim trail
                use request extensions. The estimated number of interim trail use
                requests (also based on a three-year average from 2015-2017) is not
                changed.
                 Table--Estimated Hours per Response
                ------------------------------------------------------------------------
                 Number of
                 Type of filing hours per
                 response
                ------------------------------------------------------------------------
                Offer of Financial Assistance (OFA)..................... 32
                OFA--Railroad Reply to Request for Information.......... 10
                OFA--Request to Set Terms and Conditions................ 4
                Request for Public Use Condition........................ 2
                Feeder Line Application................................. 70
                Trail Use Request....................................... 4
                Trail Use Request Extension............................. 4
                ------------------------------------------------------------------------
                 Total ``Non-Hour Burden'' Cost (such as start-up costs and
                mailing costs): There are no non-hourly burden costs for this
                collection. The annual certifications may be submitted
                electronically.
                 Needs and Uses: The STB is, by statute, responsible for the
                economic regulation of common carrier freight railroads and certain
                other carriers operating in the United States. Under the Interstate
                Commerce Act, amended by the ICC Termination Act of 1995, Public Law
                No. 104-88, 109 Stat. 803 (1995), amended by the Surface
                Transportation Board Reauthorization Act of 2015, Public Law 114-110
                (2015), and Section 8(d) of the National Trails System Act, 16
                U.S.C. 1247(d) and 49 CFR 1152.29 (Trails Act), persons seeking to
                preserve rail service may file pleadings before the Board to acquire
                or subsidize a rail line for continued service, or to impose a trail
                use or public use condition.
                 When a line is proposed for abandonment, affected shippers,
                communities, or other interested persons may seek to preserve rail
                service by filing with the Board: An OFA to subsidize or purchase a
                rail line for which a railroad is seeking abandonment (49 U.S.C.
                10904), including a request for the Board to set terms and
                conditions of the financial assistance; a request for a public use
                condition (Sec. 10905); or a trail use request (16 U.S.C. 1247(d)).
                Similarly, when a line is placed on a system diagram map identifying
                it as an anticipated or potential candidate for abandonment,
                affected shippers, communities, or other interested persons may seek
                to preserve rail service by filing with the Board a feeder line
                application to purchase the identified rail line (Sec. 10907).
                Additionally, the railroad owning the rail line subject to
                abandonment must, in some circumstances, provide information to the
                applicant or offeror.
                 As to trail use, the STB will issue a CITU or NITU to a
                prospective trail sponsor who seeks an interim trail use agreement
                with the rail carrier of the rail line that is being abandoned. The
                CITU/NITU permits parties to negotiate for an interim trail use
                agreement. The parties may also agree to an extension of the
                negotiating period. If parties reach an agreement, then they must
                jointly notify the Board of that fact and of any modification or
                vacancy of the agreement. As specific to the SNPR, the Board
                proposes a one-year period for any initial interim trail use
                negotiating period, instead of the existing 180-day initial
                negotiating period; to permit up to three one-year extensions of the
                initial period if the trail sponsor and the railroad agree; and to
                permit additional one-year extensions if the trail sponsor and the
                railroad agree and good cause is shown.
                 The modification of this collection by the Board will decrease
                the burden on respondents because it lengthens both (a) the initial
                interim trail use negotiating period from 180 days to one year and
                (b) interim trail use negotiating period extensions from 180 days to
                one year. The modification is expected to promote greater
                administrative efficiency and reduce burdens on trail use proponents
                and railroads to file extension requests, and on the Board to review
                and approve such requests.
                [FR Doc. 2019-11883 Filed 6-5-19; 8:45 am]
                 BILLING CODE 4915-01-P
                

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT