Limiting Extensions of Trail Use Negotiating Periods; Rails-to-Trails Conservancy-Petition for Rulemaking, 26387-26393 [2019-11883]
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Federal Register / Vol. 84, No. 109 / Thursday, June 6, 2019 / Proposed Rules
individual understands the functions of
the videophone and that the cost of VRS
calls made on the videophone is
financed by the federally regulated
Interstate TRS Fund, and for enterprise
videophones, that the organization,
business, or agency will make
reasonable efforts to ensure that
registered VRS users are permitted to
use the phone for VRS.
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(vi) Beginning 180 days after notice
from the Commission that the TRS User
Registration Database and TRS
Numbering Directory are ready to
process log-in information from
enterprise and public videophones, VRS
calls at such videophones shall not be
compensable from the TRS Fund unless
the videophone has been registered in
accordance with this section, the
videophone user is a registered VRS
user, and the videophone user has
logged into the videophone.
(vii) Only one user may be logged into
an enterprise or public videophone at
any time, except that, for an enterprise
videophone located at a reception desk
or other work area, up to five users may
be logged in simultaneously, provided
that the phone is configured so that each
user must select his or her individual
user profile before answering or placing
a call. Providers shall keep records of
users that are pre-authorized under this
paragraph and shall discontinue
permission for such automatic use by
any individual that the provider knows
or has reason to believe no longer needs
access to the device.
(viii) Emergency 911 calls from
enterprise and public videophones and
calls from public videophones installed
in emergency shelters shall be exempt
from the videophone user log in
requirements of paragraph (a)(6)(vi) of
this section.
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■ 4. Amend § 64.615 by revising
paragraphs (a)(2)(i) through (v) to read
as follows:
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§ 64.615 TRS User Registration Database
and administrator.
(a) * * *
(2) * * *
(i) VRS providers shall validate the
eligibility of a party using an enterprise
or public videophone by querying the
designated database in accordance with
paragraph (a)(1) of this section.
(ii) VRS providers shall transmit with
such queries any log-in information
specified in the database administrator’s
instructions for validating such calls.
(iii) VRS providers shall require their
CAs to terminate any call which does
not include an individual eligible to use
VRS or, pursuant to the provider’s
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policies, the call does not appear to be
a legitimate VRS call, and VRS
providers may not seek compensation
for such calls from the TRS Fund.
(iv) Emergency 911 calls from
enterprise and public videophones shall
be exempt from the videophone
validation requirements of paragraph
(a)(2)(i) of this section.
(v) Emergency 911 calls from
enterprise and public videophones and
calls from public videophones installed
in emergency shelters shall be exempt
from the videophone user log-in
requirements of paragraph (a)(2) of this
section.
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[FR Doc. 2019–11210 Filed 6–5–19; 8:45 am]
BILLING CODE 6712–01–P
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
Surface Transportation Board.
Supplemental notice of
proposed rulemaking.
AGENCY:
ACTION:
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 oneyear 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 efiling 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.,
SUMMARY:
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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.
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 (SubNo. 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
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-toTrails Conservancy—Petition for
Rulemaking, Docket No. EP 753, with
Limiting Extensions of Trail Use
SUPPLEMENTARY INFORMATION:
1 In its petition, NARPO also requested that the
Board require a railroad or trail sponsor negotiating
an interim trail use agreement to send notice of the
issuance of a Certificate of Interim Trail Use (CITU)
or Notice of Interim Trail Use (NITU) to landowners
adjacent to the right-of-way covered by the CITU/
NITU; and require all entities, including
government entities, filing a request for a CITU/
NITU, or extension thereof, to pay a filing fee.
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Negotiating Periods, Docket No. EP 749
(Sub-No. 1).2
In response to both the NPR and
RTC’s petition for rulemaking, the Board
received a significant number of
comments.3 The principal issues raised
in the comments, to the extent relevant
here, are addressed below. Even if not
specifically discussed, the Board has
carefully reviewed all the comments on
the NPR and the RTC petition and taken
each comment into account in
proposing the revised rule.4
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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-ofway 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
2 In the interest of a complete record, the Board
will accept all late-filed submissions to date in both
dockets.
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.
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
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The Trails Act is invoked when a
prospective trail sponsor files a request
with the Board to railbank a line that a
rail carrier has proposed to abandon.
The trail sponsor’s request must include
a statement of willingness to assume
responsibility for management of, legal
liability for, and payment of taxes on,
the right-of-way and an
acknowledgement that interim trail use
is subject to possible future
reconstruction and reactivation of rail
service at any time. 49 CFR 1152.29(a).
If the railroad indicates its willingness
to negotiate a railbanking/interim trail
use agreement for the line,8 the Board
will issue for the line a CITU (in an
abandonment application proceeding)
or NITU (in an abandonment exemption
proceeding). 49 CFR 1152.29(c)(1),
(d)(1). The CITU/NITU grants parties a
180-day period (which can be extended
by Board order) to negotiate a
railbanking agreement. 49 CFR
1152.29(c)(1), (d)(1); Birt, 90 F.3d at 583,
588–90 (affirming the agency’s authority
to grant ‘‘reasonable’’ extensions of the
Trails Act negotiating period). See also
Grantwood Vill. v. Missouri Pac. R.R.,
95 F.3d 654, 659 (8th Cir. 1996) (stating
that the ICC ‘‘was free to extend [the
180-day CITU/NITU] time period for an
agreement’’).
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
served Jan. 29, 1990); Rail Abans.—Use of Rightsof-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).
8 The Board uses the terms ‘‘railbanking’’ and
‘‘interim trail use’’ interchangeably when
discussing a CITU or NITU.
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
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Preliminary Matter
Following the Board’s issuance of the
NPR and receipt of comments on that
proposal, RTC petitioned the Board in
Docket No. EP 753 to institute a
rulemaking proceeding to revise the
same regulation the Board proposed to
revise in the NPR, section 1152.29.
According to RTC, its comments
submitted in opposition to the NPR
noted that RTC’s data and analysis of
railbanking orders supported the need
for an ‘‘entirely different regulatory
change: The establishment of a one-year
period for any initial interim trail use
negotiating period and codification of
the [Board’s] current regulatory practice
of granting extensions of the railbanking
negotiating period for good cause
shown.’’ (RTC Pet. 4.) Unlike the NPR,
RTC’s proposal would not limit the
number of extensions permitted. (See id.
at 4.) RTC states that it proposed
changes in its comments responding to
the NPR, but that, to the extent that the
Board may view RTC’s proposal as
outside the scope of the NPR, RTC
submits an alternative petition for
rulemaking so that the Board may
consider its proposed changes. (Id. at 4–
5.)
The Board has broad discretion to
consolidate proceedings under
appropriate circumstances. In deciding
whether to consolidate proceedings, the
Board considers whether the applicable
proceedings involve common facts,
issues, and parties; whether
consolidation would promote efficiency;
and whether consolidation would
unduly delay the proceedings or
prejudice any party. See, e.g., Honey
Creek R.R.—Pet. for Declaratory Order,
FD 34869, slip op. at 3 (STB served June
4, 2008).
The Board’s decision as to whether to
consolidate two proceedings in any
particular situation is dependent on the
facts and circumstances of the case.
Both proceedings here concern
procedures for the extension of interim
trail use negotiation periods, and RTC
and NARPO, among others, are parties
to both proceedings. The consolidation
of the proceedings would also aid the
Board in efficiently addressing the
issues raised here, while causing no
undue delay to the proceedings or
prejudice to any parties. Accordingly,
the Board will exercise its discretion to
consolidate the proceedings.
(1984). Upon such occurrence, the right-of-way will
revert to any reversionary landowner. Preseault,
494 U.S. at 5, 8.
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Duration of Initial Interim Trail Use
Negotiating Period
In its petition for rulemaking, RTC
proposes that the Board establish a oneyear 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 Boardassigned 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.)
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.)
10 As
noted above, RTC also makes this proposal
in its comments on the NPR. (RTC Comments 17–
18.)
11 RTC states that its database lacks information
on the length of railbanking negotiations for 23
railbanked corridors. (RTC Pet., Declaration Griffen
2.)
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In response to RTC’s petition, the
Board received comments from nearly
50 parties, including rail carriers,
landowners, trail interest groups, and
government entities. The overwhelming
majority of commenters support RTC’s
proposal to establish a one-year
duration for any initial interim trail use
negotiating period.12 One commenter,
however, opposes RTC’s proposal,
arguing that the proposal fails to
consider the rights of property owners
located adjacent to rights-of-way
authorized to be abandoned. (Lyons
Comments 1, Apr. 3, 2019, EP 753.)
NARPO filed comments stating that it
does not oppose the establishment of a
one-year period for any initial interim
trail use negotiating period. (NARPO
Comments 2, Apr. 2, 2019, EP 753.) As
discussed further below, however,
NARPO reiterates its request, discussed
in the NPR, that any CITU/NITU
extension be limited to three years and
notes its opposition to the codification
of any rule that would extend the CITU/
NITU negotiating period for ‘‘good cause
shown.’’ (Id. at 1.)
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 180day 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
12 (E.g., Milwaukee Cty. Parks Comments 1, Apr.
4, 2019, EP 753; Parks & Trails N.Y. Comments 1,
Apr. 4, 2019, EP 753; Midwest Bikeshare, Inc.
Comments 1, Apr. 2, 2019, EP 753; Hunter Area
Trail Coalition Comments 1, Apr. 9, 2019, EP 753;
Consol. Rail Corp. Comments 1, Apr. 8, 2019, EP
753; Mo. Cent. R.R. Comments 1, Apr. 11, 2019, EP
753.)
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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
13 Some commenters further argue that limiting
negotiating periods to ten years would be more
appropriate. (E.g., Goodman Comments 1, Oct. 30,
2018, EP 749 (Sub-No. 1); Perricelli Comments 1,
Oct. 30, 2018, EP 749 (Sub-No. 1).)
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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 (SubNo. 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.)
NARPO and others oppose any rule
that would extend the interim trail use
negotiating period for ‘‘good cause
shown.’’ (NARPO Comments 1, Apr. 2,
14 RTC makes a similar proposal for a good cause
standard in its petition for rulemaking. (RTC Pet. 4.)
According to RTC, pursuant to 49 CFR
1152.29(b)(3), the Board accepts late-filed
railbanking requests ‘‘supported by a statement
showing good cause.’’ (Id. at 12.) RTC further argues
that, in other contexts, the Board’s regulations
specifically provide that requests for extensions
will be granted based on a showing of ‘‘good
cause.’’ (Id. at 12–13 (citing 49 CFR 1152.29(e)(2)
(allowing a railroad to request extensions of the
time for filing an abandonment consummation
notice for good cause shown); 49 CFR 1152.25(d)(5)
(requiring good cause for late pleadings); 49 CFR
1113.7(c) (late intervention petitions accepted for
good cause shown)).) Thus, RTC argues that ‘‘good
cause’’ is the established regulatory standard that
governs extensions and waivers under the Board’s
rules. (RTC Pet. 12.)
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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
15 The Board notes that under the revised
proposal, as compared to the NPR, parties would
have a one-year period for any initial interim trail
use negotiating period, and may request up to three
one-year extensions if both the trail sponsor and
railroad agree—thereby allowing parties to negotiate
interim trail use for a four-year period before the
new standard for further extensions applies, versus
the three and a half years initially proposed by the
Board.
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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.
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
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
16 The proposed rule also includes other nonsubstantive changes to the rules in section 1152.29,
such as adding paragraph headings.
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Federal Register / Vol. 84, No. 109 / Thursday, June 6, 2019 / Proposed Rules
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
Interested persons may comment on
the proposed rule by July 8, 2019;
replies are due by July 26, 2019.
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Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980
(RFA), 5 U.S.C. 601–612, generally
requires a description and analysis of
new rules that would have a significant
economic impact on a substantial
number of small entities. In drafting a
rule, an agency is required to: (1) Assess
the effect that its regulation will have on
small entities; (2) analyze effective
alternatives that may minimize a
regulation’s impact; and (3) make the
analysis available for public comment.
Sections 601–604. In its notice of
proposed rulemaking, the agency must
either include an initial regulatory
flexibility analysis, section 603(a), or
certify that the proposed rule would not
have a ‘‘significant impact on a
substantial number of small entities,’’
section 605(b). Because the goal of the
RFA is to reduce the cost to small
entities of complying with federal
regulations, the RFA requires an agency
to perform a regulatory flexibility
analysis of small entity impacts only
when a rule directly regulates those
entities. In other words, the impact must
be a direct impact on small entities
‘‘whose conduct is circumscribed or
mandated’’ by the proposed rule. White
Eagle Coop. v. Conner, 553 F.3d 467,
480 (7th Cir. 2009).
The Board’s proposed changes to its
regulations here are intended to
improve and expedite its trail use
procedures and do not mandate the
17 Although the proposed rule would apply to
new extension requests in proceedings where a
current CITU/NITU may be expiring, there would
be no retroactivity concern because parties have no
vested right to a newly requested extension of the
negotiating period. See Empresa Cubana
Exportadora de Alimentos y Productos Varios v.
U.S. Dept. of Treasury, 638 F.3d 794, 798–800 (D.C.
Cir. 2011). Each extension request is considered on
its own merits.
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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.
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
18 Effective June 30, 2016, for the purpose of RFA
analysis for rail carriers subject to Board
jurisdiction, the Board defines a ‘‘small business’’
as only including those rail carriers classified as
Class III rail carriers under 49 CFR 1201.1–1. See
Small Entity Size Standards Under the Regulatory
Flexibility Act, EP 719 (STB served June 30, 2016)
(with Board Member Begeman dissenting). Class III
carriers have annual operating revenues of $20
million or less in 1991 dollars or $37,108,875 or
less when adjusted for inflation using 2017 data.
Class II rail carriers have annual operating revenues
of less than $250 million or $463,860,933 when
adjusted for inflation using 2017 data. The Board
calculates the revenue deflator factor annually and
publishes the railroad revenue thresholds on its
website. 49 CFR 1201.1–1.
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26391
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.
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.
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 × 4 hours).
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6. This decision is effective on its
service date.
The revisions and additions read as
follows:
List of Subjects in 49 CFR Part 1152
Administrative practice and
procedure, Railroads, Reporting and
recordkeeping requirements, Uniform
System of Accounts.
§ 1152.29 Prospective use of rights-of-way
for interim trail use and rail banking.
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
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.
2. Amend § 1152.29 by:
a. In paragraph (a), adding a paragraph
heading;
■ b. In paragraph (b), adding a
paragraph heading;
■ c. In paragraph (b)(1)(ii), removing the
words ‘‘§ 1152.29(a)’’ and adding in its
place the words ‘‘paragraph (a) of this
section’’;
■ d. In paragraph (c), revising the
paragraph heading;
■ e. Revising paragraph (c)(1);
■ f. In paragraph (c)(3), removing the
words ‘‘49 CFR part 1150’’ and adding
in its place the words ‘‘part 1150 of this
title’’;
■ g. In paragraphs (d) revise the
paragraph heading and (d)(1);
■ h. In paragraph (d)(3), removing ‘‘49
CFR part 1150’’ and adding in its place
the words ‘‘part 1150 of this title’’;
■ i. In paragraph (e), adding a paragraph
heading;
■ j. In paragraph (f), adding a paragraph
heading;
■ k. In paragraph (g), adding a paragraph
heading and removing the words ‘‘180
days’’ and adding in its place the words
‘‘one year’’;
■ l. In paragraph (h), adding a paragraph
heading.
khammond on DSKBBV9HB2PROD with PROPOSALS
■
■
(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 § 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 § 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
filings
(current)
Type of filing
Offer of Financial Assistance ...................................................................................................................................
OFA—Railroad Reply to Request for Information ...................................................................................................
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Number of
filings
(2018)
1
1
1
1
26393
Federal Register / Vol. 84, No. 109 / Thursday, June 6, 2019 / Proposed Rules
TABLE—NUMBER OF YEARLY RESPONSES—Continued
Number of
filings
(current)
Type of filing
OFA—Request to Set Terms and Conditions .........................................................................................................
Request for Public Use Condition ...........................................................................................................................
Feeder Line Application ...........................................................................................................................................
Trail Use Request ....................................................................................................................................................
Trail Use Request Extension ...................................................................................................................................
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
Number of
filings
(2018)
1
1
5
23
42
1
1
5
23
84
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
hours per
response
Type of filing
khammond on DSKBBV9HB2PROD with PROPOSALS
Offer of Financial Assistance (OFA) ....................................................................................................................................................
OFA—Railroad Reply to Request for Information ...............................................................................................................................
OFA—Request to Set Terms and Conditions .....................................................................................................................................
Request for Public Use Condition .......................................................................................................................................................
Feeder Line Application .......................................................................................................................................................................
Trail Use Request ................................................................................................................................................................................
Trail Use Request Extension ...............................................................................................................................................................
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 (§ 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 (§ 10907).
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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
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10
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2
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4
4
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS–HQ–ES–2018–0097;
FXES11130900000C2–189–FF09E32000]
RIN 1018–BD60
Endangered and Threatened Wildlife
and Plants; Removing the Gray Wolf
(Canis lupus) From the List of
Endangered and Threatened Wildlife
Fish and Wildlife Service,
Interior.
ACTION: Proposed rule; announcement of
a public open house and public hearing.
AGENCY:
We, the U.S. Fish and
Wildlife Service (Service), recently
published a proposal to remove the gray
wolf from the List of Endangered and
Threatened Wildlife, and we announced
the opening of a 60-day public comment
period on the proposed action, ending
May 14, 2019. We then extended the
comment period by 60 days, ending
July, 15, 2019, to allow all interested
parties additional time to comment on
the proposed rule. We now announce a
public information open house and
public hearing on our proposed rule. We
also notify the public of the availability
of the final peer review report
containing the individual peer reviews
SUMMARY:
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]]>Agencies
[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\
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\2\ In the interest of a complete record, the Board will accept
all late-filed submissions to date in both dockets.
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In response to both the NPR and RTC's petition for rulemaking, the
Board received a significant number of comments.\3\ The principal
issues raised in the comments, to the extent relevant here, are
addressed below. Even if not specifically discussed, the Board has
carefully reviewed all the comments on the NPR and the RTC petition and
taken each comment into account in proposing the revised rule.\4\
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\3\ The Board received comments from over 200 parties in
response to the NPR; additionally, nearly 50 parties commented on
RTC's petition.
\4\ The Board notes that comments not directly related to the
Board's revised proposal in this decision will be considered in
furtherance of a final decision.
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Background
As explained in the NPR, EP 749 (Sub-No. 1), slip op. at 2-4, under
the Trails Act, the Board must ``preserve established railroad rights-
of-way for future reactivation of rail service'' by prohibiting
abandonment where a trail sponsor agrees to assume full managerial
responsibility and tax and legal liability for the right-of-way for use
in the interim as a trail. 16 U.S.C. 1247(d); Nat'l Wildlife Fed'n v.
ICC, 850 F.2d 694, 699-702 (D.C. Cir. 1988). The statute expressly
provides that ``if such interim use is subject to restoration or
reconstruction for railroad purposes, such interim use shall not be
treated, for [any] purposes . . . as an abandonment . . . .'' section
1247(d). Instead, the right-of-way is ``railbanked,'' \5\ which means
that the railroad is relieved of the current obligation to provide
service over the line but that the railroad (or any other approved rail
service provider,\6\ in appropriate circumstances) may reassert control
over the right-of-way to restore service on the line in the future. See
Birt, 90 F.3d at 583; Iowa Power--Const. Exemption--Council Bluffs,
Iowa, 8 I.C.C.2d 858, 866-67 (1990); 49 CFR 1152.29.\7\
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\5\ If a line is railbanked and designated for trail use, any
reversionary interests that adjoining landowners might have under
state law upon abandonment are not activated. Preseault v. ICC, 494
U.S. 1, 8 (1990); Birt v. STB, 90 F.3d 580, 583 (D.C. Cir. 1996).
\6\ See King Cty., Wash.--Acquis. Exemption--BNSF Ry., FD 35148,
slip op. at 3-4 (STB served Sept. 18, 2009).
\7\ The Board and its predecessor, the Interstate Commerce
Commission (ICC), have promulgated, modified, and clarified rules to
implement the Trails Act a number of times. See, e.g., Nat'l Trails
System Act & R.R. Rights-of-Way, EP 702 (STB served Apr. 30, 2012);
Aban. & Discontinuance of Rail Lines & Rail Transp. Under 49 U.S.C.
10903, 1 S.T.B. 894 (1996); Policy Statement on Rails to Trails
Conversions, EP 272 (Sub-No. 13B) (ICC served Jan. 29, 1990); Rail
Abans.--Use of Rights-of-Way as Trails--Supplemental Trails Act
Procedures, 4 I.C.C.2d 152 (1987); Rail Abans.--Use of Rights-of-Way
as Trails, 2 I.C.C.2d 591 (1986).
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The Trails Act is invoked when a prospective trail sponsor files a
request with the Board to railbank a line that a rail carrier has
proposed to abandon. The trail sponsor's request must include a
statement of willingness to assume responsibility for management of,
legal liability for, and payment of taxes on, the right-of-way and an
acknowledgement that interim trail use is subject to possible future
reconstruction and reactivation of rail service at any time. 49 CFR
1152.29(a). If the railroad indicates its willingness to negotiate a
railbanking/interim trail use agreement for the line,\8\ the Board will
issue for the line a CITU (in an abandonment application proceeding) or
NITU (in an abandonment exemption proceeding). 49 CFR 1152.29(c)(1),
(d)(1). The CITU/NITU grants parties a 180-day period (which can be
extended by Board order) to negotiate a railbanking agreement. 49 CFR
1152.29(c)(1), (d)(1); Birt, 90 F.3d at 583, 588-90 (affirming the
agency's authority to grant ``reasonable'' extensions of the Trails Act
negotiating period). See also Grantwood Vill. v. Missouri Pac. R.R., 95
F.3d 654, 659 (8th Cir. 1996) (stating that the ICC ``was free to
extend [the 180-day CITU/NITU] time period for an agreement'').
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\8\ The Board uses the terms ``railbanking'' and ``interim trail
use'' interchangeably when discussing a CITU or NITU.
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If parties reach an agreement during the interim trail use
negotiating period, the CITU/NITU automatically authorizes railbanking/
interim trail use. Preseault, 494 U.S. at 7 n.5. If no railbanking/
interim trail use agreement is reached by the expiration of the CITU/
NITU 180-day negotiation period (and any extension thereof), the CITU/
NITU authorizes the railroad to ``exercise its option to fully
abandon'' the line by consummating the abandonment, without further
action by the agency, 49 CFR 1152.29(c)(1), (d)(1), provided that there
are no legal or regulatory barriers to consummation. Birt, 90 F.3d at
583; see also Consummation of Rail Line Abans. That Are Subject to
Historic Pres. & Other Envtl. Conditions, EP 678, slip op. at 3-4 (STB
served Apr. 23, 2008).\9\
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\9\ The Board retains jurisdiction over a rail line throughout
the interim trail use negotiating period, any period of railbanking/
interim trail use, and any period during which rail service is
restored. The Board's jurisdiction is terminated once the CITU/NITU
is no longer in effect and the railroad has lawfully consummated its
abandonment authority by filing a notice of consummation under 49
CFR 1152.29(e)(2). See section 1247(d); Hayfield N. R.R. v. Chi. &
N. W. Transp. Co., 467 U.S. 622, 633 (1984). Upon such occurrence,
the right-of-way will revert to any reversionary landowner.
Preseault, 494 U.S. at 5, 8.
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Preliminary Matter
Following the Board's issuance of the NPR and receipt of comments
on that proposal, RTC petitioned the Board in Docket No. EP 753 to
institute a rulemaking proceeding to revise the same regulation the
Board proposed to revise in the NPR, section 1152.29. According to RTC,
its comments submitted in opposition to the NPR noted that RTC's data
and analysis of railbanking orders supported the need for an ``entirely
different regulatory change: The establishment of a one-year period for
any initial interim trail use negotiating period and codification of
the [Board's] current regulatory practice of granting extensions of the
railbanking negotiating period for good cause shown.'' (RTC Pet. 4.)
Unlike the NPR, RTC's proposal would not limit the number of extensions
permitted. (See id. at 4.) RTC states that it proposed changes in its
comments responding to the NPR, but that, to the extent that the Board
may view RTC's proposal as outside the scope of the NPR, RTC submits an
alternative petition for rulemaking so that the Board may consider its
proposed changes. (Id. at 4-5.)
The Board has broad discretion to consolidate proceedings under
appropriate circumstances. In deciding whether to consolidate
proceedings, the Board considers whether the applicable proceedings
involve common facts, issues, and parties; whether consolidation would
promote efficiency; and whether consolidation would unduly delay the
proceedings or prejudice any party. See, e.g., Honey Creek R.R.--Pet.
for Declaratory Order, FD 34869, slip op. at 3 (STB served June 4,
2008).
The Board's decision as to whether to consolidate two proceedings
in any particular situation is dependent on the facts and circumstances
of the case. Both proceedings here concern procedures for the extension
of interim trail use negotiation periods, and RTC and NARPO, among
others, are parties to both proceedings. The consolidation of the
proceedings would also aid the Board in efficiently addressing the
issues raised here, while causing no undue delay to the proceedings or
prejudice to any parties. Accordingly, the Board will exercise its
discretion to consolidate the proceedings.
[[Page 26389]]
Duration of Initial Interim Trail Use Negotiating Period
In its petition for rulemaking, RTC proposes that the Board
establish a one-year period for any initial interim trail use
negotiations to replace the current 180-day initial negotiation
period.\10\ (RTC Pet. 1.) RTC indicates that it maintains a detailed
database of railbanked corridors. (Id. at 2.) RTC states that, since
1987, it has tracked all abandonment filings by the Board-assigned
docket number and filing and decision dates, and has included in its
database, among other things, information on whether the Board issued a
CITU/NITU to allow interim trail use/railbanking negotiations between a
potential trail sponsor and a railroad. (Id.) In instances where the
Board issues a CITU/NITU, RTC states that it documents: (1) Information
about the CITU/NITU filer; (2) whether the railroad agrees to
negotiate; (3) the negotiation start and end dates; (4) the success or
failure of the negotiations; and (5) the names of any trails opened on
the corridor, or any trails intended to be opened in the future. (Id.)
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\10\ As noted above, RTC also makes this proposal in its
comments on the NPR. (RTC Comments 17-18.)
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RTC asserts that, as of November 2018, its database contains
records for 718 issued CITUs/NITUs dating from 1987. (Id. at 6.)
According to RTC, of the 718 CITUs/NITUs, at least 393 corridors--
representing 5,895.53 miles--were successfully railbanked and remain
railbanked today. (Id. at 7.) RTC further asserts that, of the 370
railbanked corridors for which its database indicates the length of
negotiations,\11\ 289 railbanking agreements (78.1%) required more than
180 days to negotiate, while approximately half (183 of the 370
corridors) were negotiated within one year. (Id.) RTC argues that its
data supports the conclusion that an initial railbanking negotiating
period of one year, rather than 180 days, would more closely reflect
the actual length of time required to complete railbanking
negotiations. (Id.) RTC notes that establishing a one-year initial
interim trail use negotiating period would promote greater
administrative efficiency and reduce burdens on trail use proponents
and railroads to file extension requests, and on the Board to review
and approve such requests. (Id. at 8-9.)
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\11\ RTC states that its database lacks information on the
length of railbanking negotiations for 23 railbanked corridors. (RTC
Pet., Declaration Griffen 2.)
---------------------------------------------------------------------------
In response to RTC's petition, the Board received comments from
nearly 50 parties, including rail carriers, landowners, trail interest
groups, and government entities. The overwhelming majority of
commenters support RTC's proposal to establish a one-year duration for
any initial interim trail use negotiating period.\12\ One commenter,
however, opposes RTC's proposal, arguing that the proposal fails to
consider the rights of property owners located adjacent to rights-of-
way authorized to be abandoned. (Lyons Comments 1, Apr. 3, 2019, EP
753.) NARPO filed comments stating that it does not oppose the
establishment of a one-year period for any initial interim trail use
negotiating period. (NARPO Comments 2, Apr. 2, 2019, EP 753.) As
discussed further below, however, NARPO reiterates its request,
discussed in the NPR, that any CITU/NITU extension be limited to three
years and notes its opposition to the codification of any rule that
would extend the CITU/NITU negotiating period for ``good cause shown.''
(Id. at 1.)
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\12\ (E.g., Milwaukee Cty. Parks Comments 1, Apr. 4, 2019, EP
753; Parks & Trails N.Y. Comments 1, Apr. 4, 2019, EP 753; Midwest
Bikeshare, Inc. Comments 1, Apr. 2, 2019, EP 753; Hunter Area Trail
Coalition Comments 1, Apr. 9, 2019, EP 753; Consol. Rail Corp.
Comments 1, Apr. 8, 2019, EP 753; Mo. Cent. R.R. Comments 1, Apr.
11, 2019, EP 753.)
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After considering RTC's petition and the responsive comments filed,
the Board will revise its October 2, 2018 proposed rule and now propose
a rule establishing a one-year initial period for interim trail use
negotiations. Numerous commenters argue that the time required to
negotiate an interim trail use agreement frequently exceeds the 180-day
period currently set forth at 49 CFR 1152.29(c)(1) and (d)(1), (see,
e.g., Milwaukee Cty. Parks Comments 1, Apr. 4, 2019, EP 753; City of
Chi. Comments, Apr. 11, 2019, EP 753). That conclusion is also
supported by RTC's comments that, according to its database,
approximately three-quarters of the interim trail use/rail banking
agreements reached since 1987 required more than 180 days to negotiate,
while approximately half were negotiated within one year. Establishing
a one-year interim trail use negotiating period would reduce burdens on
trail use proponents and railroads related to the filing of extension
requests, would reduce the number of filings requiring Board action
(and conserve Board resources), and would more closely reflect the
actual time needed to complete railbanking negotiations. Regarding the
suggestion that RTC's proposal ignores the rights of landowners, (see
Lyons Comments 1, Apr. 3, 2019, EP 753), the record suggests that
adopting a one-year period for initial interim trail use negotiations
would not unduly prejudice landowners, as this proposal merely reflects
more closely the actual length of time in which many railbanking
negotiations are completed.
Extensions of the Interim Trail Use Negotiating Period
In the NPR, EP 749 (Sub-No. 1), slip op. at 1, the Board sought
comment on whether it should limit the number of 180-day extensions of
an interim trail use negotiating period to six, unless the requesting
party could demonstrate that extraordinary circumstances justified the
grant of a further extension. The Board received comments from over 200
parties on that issue, including comments from a rail carrier,
landowners, trail interest groups, and local and state agencies.
Landowners and related groups express support for limiting the
number of 180-day extensions of an interim trail use negotiating period
to six. One commenter argues that the original intent of railbanking
has been misused by trail and cycling advocates, thereby preventing
property owners from reclaiming their property when a railroad has
legitimately abandoned a rail line. (Falcsik Comments 1, Oct. 31, 2018,
EP 749 (Sub-No. 1).) Others comment that the Board's use of
``unlimited'' extensions has been excessive and unfair to landowners.
(E.g., Gorgas Comments 1, Oct. 15, 2018, EP 749 (Sub-No. 1).) NARPO
states that the way in which the Board currently handles NITU
extensions does not allow certainty, finality, and stability in the
land titles of the property owners abutting the proposed rail trails.
(NARPO Reply 5, Nov. 20, 2018, EP 749 (Sub-No. 1).) NARPO argues that
the Board's proposal in the NPR is a reasonable compromise that allows
some measure of finality and certainty to abutting property owners.
(Id. at 6-7.)
Numerous trail supporters, including government entities,
individuals, and interest groups, filed comments in opposition to the
NPR. Most emphasize the benefits of trails, and some provide specific
examples of how particular railbanking processes took more than three
years to negotiate.\13\ (E.g., Alabama Trails Commission Comments 1,
Oct. 31, 2018, EP 749 (Sub-No. 1).) Many
[[Page 26390]]
commenters describe the complexity of interim trail use negotiations
and argue that the rule proposed in the NPR would undermine the Trails
Act. (E.g., City of Boston, City of Chicago, City of Houston Department
of Public Works, City of New York, City of Sacramento, and the United
States Conference of Mayors Comments 1, Nov 1, 2018, EP 749 (Sub-No.
1).)
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\13\ Some commenters further argue that limiting negotiating
periods to ten years would be more appropriate. (E.g., Goodman
Comments 1, Oct. 30, 2018, EP 749 (Sub-No. 1); Perricelli Comments
1, Oct. 30, 2018, EP 749 (Sub-No. 1).)
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RTC also opposes the Board's NPR proposal, arguing that that there
is no evidence that the Board's current practices have caused
administrative burdens and that the proposed rule would impede
administrative efficiency rather than advancing it. (RTC Comments 8-10,
Nov. 1, 2018, EP 749 (Sub-No. 1).) RTC asserts that the Board's
proposal is unsupported, arguing that RTC's data shows that protracted
railbanking negotiations are the exception rather than the rule. (Id.
at 12.) According to RTC, of the 370 railbanked corridors for which RTC
has information on the length of negotiations, 305 agreements were
reached before six 180-day negotiating periods concluded, and, of the
remaining 65 agreements, most (53) were completed within six years.
(Id.) RTC argues that the NPR appears to focus improperly on the
minority of CITU/NITU negotiations requiring more than six extensions
to support requiring a stricter approach to extensions. (Id.) RTC
further alleges that there is little precedent in the Board's
regulations or regulatory practices that would support adoption of a
standard of review that strongly disfavors extensions, regardless of
``any good cause for the requests.'' (Id. at 11.) RTC therefore argues
that instead of the changes proposed in the NPR, the Board should adopt
a rule allowing one-year extensions of the initial negotiating period
for good cause shown.\14\ (Id. at 3, 19.)
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\14\ RTC makes a similar proposal for a good cause standard in
its petition for rulemaking. (RTC Pet. 4.) According to RTC,
pursuant to 49 CFR 1152.29(b)(3), the Board accepts late-filed
railbanking requests ``supported by a statement showing good
cause.'' (Id. at 12.) RTC further argues that, in other contexts,
the Board's regulations specifically provide that requests for
extensions will be granted based on a showing of ``good cause.''
(Id. at 12-13 (citing 49 CFR 1152.29(e)(2) (allowing a railroad to
request extensions of the time for filing an abandonment
consummation notice for good cause shown); 49 CFR 1152.25(d)(5)
(requiring good cause for late pleadings); 49 CFR 1113.7(c) (late
intervention petitions accepted for good cause shown)).) Thus, RTC
argues that ``good cause'' is the established regulatory standard
that governs extensions and waivers under the Board's rules. (RTC
Pet. 12.)
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NARPO and others oppose any rule that would extend the interim
trail use negotiating period for ``good cause shown.'' (NARPO Comments
1, Apr. 2, 2019, EP 753.) According to NARPO, a good cause standard
would interfere with reversionary property owners' property rights to
the underlying land of railroad rights-of-way authorized for
abandonment. (Id.)
The Board acknowledges the concerns raised by parties who question
whether a maximum of six CITU/NITU extensions, with a limited
opportunity for additional extensions in ``extraordinary
circumstances,'' strikes an appropriate balance between reasonably
limiting the Trails Act negotiating period and permitting parties
enough time to finalize their negotiations. After considering the
comments received by the Board following issuance of the NPR, however,
the Board concludes that reasonably limiting the number of extensions
of the interim trail use negotiating period would foster administrative
efficiency, clarity, and finality. See NPR, slip op. at 5.
Nevertheless, after considering all the comments submitted in
response to the NPR, the Board proposes that a ``good cause'' standard
of review for additional extensions (beyond three) would be more
appropriate than the ``extraordinary circumstances'' standard proposed
in the NPR. Congress established interim trail use/rail banking ``in
furtherance of the national policy to preserve established railroad
rights-of-way for future reactivation of rail service, to protect rail
transportation corridors, and to encourage energy efficient
transportation use.'' 49 U.S.C. 1247(d). To accomplish those goals, the
interest in concluding the Trails Act process within a reasonable
amount of time must be balanced against the need to allow parties
enough time to complete their negotiations and finalize a Trails Act
agreement--and applying a good cause standard of review beginning at
the fourth extension request would appropriately effectuate this
goal.\15\ Applying such a good cause standard should provide sufficient
time to allow trail projects that have a reasonable prospect of success
to be completed while at the same time taking into account situations
where negotiations may extend for many years without any likely or
achievable resolution. A good cause standard for extensions that exceed
three years in total would provide the Board with more flexibility than
an extraordinary circumstances standard but would still require a
meaningful case-specific showing of need for any such extensions.
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\15\ The Board notes that under the revised proposal, as
compared to the NPR, parties would have a one-year period for any
initial interim trail use negotiating period, and may request up to
three one-year extensions if both the trail sponsor and railroad
agree--thereby allowing parties to negotiate interim trail use for a
four-year period before the new standard for further extensions
applies, versus the three and a half years initially proposed by the
Board.
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The Board understands NARPO's argument that a good cause standard
may create additional uncertainty for some property owners because the
revised standard may allow a greater number of extensions to be granted
than under an extraordinary circumstances standard. Therefore, such
additional one-year extensions would not be favored. However, because
RTC's evidence, (see RTC Pet., Declaration Griffen 2), indicates that
327 out of 370 negotiated agreements (approximately 88%) have been
reached within four years--that is, before the ``good cause''
requirement for extensions would apply under the rule proposed here--
the Board believes that its proposed rule balances the interests of all
affected parties.
For these reasons and those discussed in the NPR, EP 749 (Sub-No.
1), slip op. at 5, and because the Board proposes to establish a one-
year period for any initial interim trail use negotiating period (as
suggested by RTC), the Board now proposes to limit the number of
extensions of an interim trail use negotiating period to three one-year
extensions, unless good cause for additional extension(s) is shown.
Given that the Board is revising its proposal based on the comments
on the NPR and RTC's new rulemaking proposal, the Board will deny as
moot RTC's request that the Board institute a separate rulemaking to
address the standard for granting extensions.
Revised Proposed Rule
For the reasons discussed above, and as set forth below, the Board
proposes to establish a one-year duration for any initial interim trail
use negotiating period. Additionally, the Board proposes to modify its
Trails Act rules to permit up to three one-year extensions if the trail
sponsor and railroad agree and to clarify that requests for additional
extensions are not favored but may be granted if the trail sponsor and
railroad agree and good cause is shown.\16\
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\16\ The proposed rule also includes other non-substantive
changes to the rules in section 1152.29, such as adding paragraph
headings.
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The Board proposes to make the new rule establishing a one-year
period for any initial interim trail use negotiating period applicable
to any new CITU/NITU requested on or after the effective date of the
rule. Parties in negotiations
[[Page 26391]]
under existing CITUs/NITUs would be permitted to request one-year
extensions (rather than continuing with 180-day extensions). The
proposal to limit the number of one-year extensions of an interim trail
use negotiating period to three, however, would apply both to new
CITUs/NITUs requested on or after the rule's effective date and to
cases where a CITU/NITU was requested before the rule takes effect. In
the latter instance, a showing of good cause would be required for any
request that would extend the interim trail use negotiating period to a
date after the four-year anniversary of its issuance (including cases
where the existing CITU/NITU already extends beyond that
anniversary).\17\
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\17\ Although the proposed rule would apply to new extension
requests in proceedings where a current CITU/NITU may be expiring,
there would be no retroactivity concern because parties have no
vested right to a newly requested extension of the negotiating
period. See Empresa Cubana Exportadora de Alimentos y Productos
Varios v. U.S. Dept. of Treasury, 638 F.3d 794, 798-800 (D.C. Cir.
2011). Each extension request is considered on its own merits.
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Interested persons may comment on the proposed rule by July 8,
2019; replies are due by July 26, 2019.
Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612,
generally requires a description and analysis of new rules that would
have a significant economic impact on a substantial number of small
entities. In drafting a rule, an agency is required to: (1) Assess the
effect that its regulation will have on small entities; (2) analyze
effective alternatives that may minimize a regulation's impact; and (3)
make the analysis available for public comment. Sections 601-604. In
its notice of proposed rulemaking, the agency must either include an
initial regulatory flexibility analysis, section 603(a), or certify
that the proposed rule would not have a ``significant impact on a
substantial number of small entities,'' section 605(b). Because the
goal of the RFA is to reduce the cost to small entities of complying
with federal regulations, the RFA requires an agency to perform a
regulatory flexibility analysis of small entity impacts only when a
rule directly regulates those entities. In other words, the impact must
be a direct impact on small entities ``whose conduct is circumscribed
or mandated'' by the proposed rule. White Eagle Coop. v. Conner, 553
F.3d 467, 480 (7th Cir. 2009).
The Board's proposed changes to its regulations here are intended
to improve and expedite its trail use procedures and do not mandate the
conduct of small entities.\18\ The changes proposed here are largely
procedural and would not have a significant economic impact on Class
III rail carriers or trail sponsors (whether as small businesses, not-
for-profits, or small governmental jurisdictions) to which the RFA
applies. The proposed rules, if promulgated, would lengthen, from 180
days to one year, the duration of the initial voluntary interim trail
use negotiating period and the current typical extension, reducing the
frequency with which trail sponsors and railroads would need to file
extension requests and replies. The Board, therefore, expects the
impact of the proposed rule would be a reduction in the paperwork
burden for small entities. Further, the Board asserts that the economic
impact of the reduction in paperwork, if any, would be minimal and
entirely beneficial to small entities as such entities would have
reduced filing burdens associated with negotiating an interim trail use
agreement. Therefore, the Board certifies under 5 U.S.C. 605(b) that
these proposed rules, if promulgated, would not have a significant
economic impact on a substantial number of small entities within the
meaning of the RFA. This decision will be served upon the Chief Counsel
for Advocacy, Offices of Advocacy, U.S. Small Business Administration,
Washington, DC 20416.
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\18\ Effective June 30, 2016, for the purpose of RFA analysis
for rail carriers subject to Board jurisdiction, the Board defines a
``small business'' as only including those rail carriers classified
as Class III rail carriers under 49 CFR 1201.1-1. See Small Entity
Size Standards Under the Regulatory Flexibility Act, EP 719 (STB
served June 30, 2016) (with Board Member Begeman dissenting). Class
III carriers have annual operating revenues of $20 million or less
in 1991 dollars or $37,108,875 or less when adjusted for inflation
using 2017 data. Class II rail carriers have annual operating
revenues of less than $250 million or $463,860,933 when adjusted for
inflation using 2017 data. The Board calculates the revenue deflator
factor annually and publishes the railroad revenue thresholds on its
website. 49 CFR 1201.1-1.
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Paperwork Reduction Act
Pursuant to the Paperwork Reduction Act (PRA), 44 U.S.C. 3501-3521,
Office of Management and Budget (OMB) regulations at 5 CFR
1320.8(d)(3), and in the Appendix, the Board seeks comments about the
revisions in the proposed rules to the currently approved collection of
Preservation of Rail Service (OMB Control No. 2140-0022) regarding: (1)
Whether the collection of information, as modified in the proposed rule
below, is necessary for the proper performance of the functions of the
Board, including whether the collection has practical utility; (2) the
accuracy of the Board's burden estimates; (3) ways to enhance the
quality, utility, and clarity of the information collected; and (4)
ways to minimize the burden of the collection of information on the
respondents, including the use of automated collection techniques or
other forms of information technology, when appropriate.
Because the proposed rule allows for (a) a one-year period for any
initial interim trail use negotiating period instead of the existing
180-day period, (b) three one-year extensions of the initial period (if
the trail sponsor and the railroad agree) instead of an unlimited
number of 180-day extensions, and (c) additional one-year extensions
(if the trail sponsor and the railroad agree and good cause is shown),
the Board estimates the proposed rules would reduce the total annual
hourly burden by 168 hours under the PRA.\19\ The Board welcomes
comment on the estimates of actual time and costs of compliance with
the proposed rules, as detailed below and in the Appendix. Information
pertinent to these issues is included in the Appendix. The proposed
rules will be submitted to OMB for review as required under 44 U.S.C.
3507(d) and 5 CFR 1320.11(b). Once the comment period ends, comments
received by the Board regarding the information collection will also be
forwarded to OMB for its review.
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\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).
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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
