[Federal Register Volume 83, Number 194 (Friday, October 5, 2018)]
[Proposed Rules]
[Pages 50326-50330]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-21760]
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SURFACE TRANSPORTATION BOARD
49 CFR Part 1152
[Docket No. EP 749; Docket No. EP 749 (Sub-No. 1)]
National Association of Reversionary Property Owners--Petition
for Rulemaking; Limiting Extensions of Trail Use Negotiating Periods
AGENCY: Surface Transportation Board.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Surface Transportation Board (Board) grants in part a
petition by the National Association of Reversionary Property Owners
(NARPO) and opens a proceeding in Docket No. EP 749 (Sub-No. 1) to
consider revising regulations related to the National Trails System
Act. The Board proposes to modify its regulations to limit the number
of 180-day extensions of a trail use negotiating period to a maximum of
six extensions, absent extraordinary circumstances.
DATES: Comments are due by November 1, 2018; replies are due by
November 21, 2018.
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 and
10 paper copies of the filing to: Surface Transportation Board, Attn:
Docket No. EP 749 (Sub-No. 1), 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
Information Relay Service (FIRS) at (800) 877-8339.
SUPPLEMENTARY INFORMATION: On June 14, 2018, NARPO filed a petition for
rulemaking 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 (1968). Specifically, NARPO asks that the Board open a
proceeding to consider rules that would: (1) Limit the number of 180-
day extensions of a trail use negotiating period to six; (2) require a
rail carrier or trail sponsor negotiating an interim trail use
agreement to send notice of the issuance of a Certificate of Interim
Trail Use (CITU) or Notice of Interim Trail
[[Page 50327]]
Use (NITU) \1\ to landowners adjacent to the right-of-way covered by
the CITU/NITU; and (3) 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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\1\ As explained below, the issuance of a CITU/NITU by the Board
provides time for the parties to negotiate an interim trail use
arrangement. NARPO's proposed rules only refer to NITUs, but,
presumably, NARPO intended to propose the same changes to CITU
procedures as there are no substantive differences between CITUs
(issued in an abandonment application proceeding) and NITUs (issued
in an abandonment exemption proceeding).
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On July 5, 2018, the Association of American Railroads (AAR)
replied in opposition to the changes proposed in NARPO's petition.\2\
Thereafter, late-filed letters in support of NARPO's petition were
filed by the Community Council Railroad Committee, Save Taxes & Our
Property (STOP), and several individuals. Comments in opposition to the
petition were late-filed by the Madison County Mass Transit District
(MCMTD), the Iowa Natural Heritage Foundation (INHF), the City of
Seattle, Wash. (City of Seattle), and the Rails-To-Trails Conservancy
(RTC). RTC also requested a 30-day extension of time to respond to
NARPO's petition. In the interest of compiling a complete record, the
late-filed pleadings were accepted into the record, but RTC's extension
request was denied. Nat'l Ass'n of Reversionary Prop. Owners--Pet. for
Rulemaking, EP 749 (STB served Aug. 14, 2018).
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\2\ On July 23, 2018, NARPO filed a reply, which was accepted
into the record. Nat'l Ass'n of Reversionary Prop. Owners--Pet. for
Rulemaking, EP 749, slip op. at 1 n.1 (STB served Aug. 14, 2018).
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The Board has broad discretion when determining whether to initiate
a rulemaking. See, e.g., Defenders of Wildlife v. Gutierrez, 532 F.3d
913, 919 (DC Cir. 2008). After considering the petition for rulemaking
and the comments received, the Board will grant NARPO's petition in
part and institute a rulemaking proceeding in Docket No. EP 749 (Sub-
No. 1) to propose modifications to the Board's rules related to
extensions of the trail use negotiating period. The Board will deny
NARPO's petition with regard to its other two proposed rules. Because
the Board is proposing a rule change in a separate sub-docket, the
docket in Docket No. EP 749 will be closed.
Background
The Trails Act was established in 1968 to create a nationwide
system of recreational trails. In 1983, Congress added a rail section,
codified at 16 U.S.C. 1247(d). This addition to the Trails Act was the
``culmination of congressional efforts to preserve shrinking rail
trackage by converting unused rights-of-way to recreational trails.''
Preseault v. ICC, 494 U.S. 1, 5 (1990). 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, 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 ``rail-banked,''
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) may reassert control over the right-of-
way to restore service on the line in the future. See Birt v. STB, 90
F.3d 580, 583 (D.C. Cir. 1996); Iowa Power--Const. Exemption--Council
Bluffs, Iowa, 8 I.C.C.2d 858, 866-67 (1990); 49 CFR 1152.29.\3\ 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, 494 U.S. at 8; Birt, 90 F.3d
at 583.
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\3\ The Board, and its predecessor, the Interstate Commerce
Commission (ICC), has promulgated, modified, and clarified its 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 carrier has proposed
to abandon. The trail sponsor's request must include a statement of
willingness to assume responsibility for management, legal liability,
and payment of taxes, and an acknowledgement that interim trail use is
subject to restoration of rail service at any time. 49 CFR 1152.29(a).
Pursuant to 49 CFR 1152.29(c)(1) and (d)(1), if the railroad indicates
its willingness to negotiate a railbanking/interim trail use agreement
for the line, the Board will issue a CITU (in an abandonment
application proceeding) or a NITU (in an abandonment exemption
proceeding) for the line. 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); Preseault, 494 U.S. at 7 n.5;
Birt, 90 F.3d at 583 (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) (ICC ``was free to extend [the 180-day CITU/NITU] time period for
an agreement'').
If parties reach an agreement during the trail use negotiating
period, the CITU/NITU automatically authorizes railbanking/interim
trail use. Preseault, 494 U.S. at 7 n.5. Without further action from
the Board,\4\ the trail sponsor may assume management of the right-of-
way, subject to the right of a railroad to reassert control of the
property for restoration or reconstruction of rail service and the
terms of the agreement. 49 CFR 1152.29(c)(2), (d)(2); Birt, 90 F.3d at
583. 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 unmet conditions imposed on the abandonment
authority that must be satisfied prior to consummation. See
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).
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\4\ The trail sponsor and railroad are required to notify the
Board that an agreement has been reached, 49 CFR 1152.29(h), but the
Board's overall role under the Trails Act is limited. Citizens
Against Rails-to-Trails v. STB, 267 F.3d 1144, 1151-52 (D.C. Cir.
2001); Goos v. ICC, 911 F.2d 1283, 1295 (8th Cir. 1990) (agency has
``little, if any, discretion to forestall a voluntary agreement to
effect a conversion to trail use''). Once the railroad and trail
sponsor have reached a trail use agreement, ``the Board's chief
concern . . . is that the statutory railbanking conditions not be
compromised and that nothing occur that would preclude a railroad's
right to reassert control over the right-of-way at some future time
to revive active service.'' Sunflower Rails-Trails Conservancy,
Inc.--Pet. for Declaratory Order--Sale of Railbanked Right-of-Way,
FD 36034, slip. op. at 4 (STB served Feb. 23, 2017).
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The Board retains jurisdiction over a rail line throughout the
CITU/NITU negotiating period, any period of railbanking/interim trail
use, and any period during which rail service is restored. Only after a
CITU/NITU is no longer in effect and the railroad has lawfully
consummated its abandonment authority is the Board's jurisdiction
terminated. See Section 1247(d); Hayfield N. R.R. v. Chi. & N. W.
Transp. Co., 467 U.S. 622, 633 (1984). At that
[[Page 50328]]
point, the right-of-way may revert to reversionary landowner interests,
if any, pursuant to state law. Preseault, 494 U.S. at 5, 8.
NARPO's Petition for Rulemaking and Comments Received
Limiting CITU/NITU Extension Requests. In its petition for
rulemaking, NARPO proposes that the Board limit the number of 180-day
extensions of a trail use negotiating period to six. (NARPO Pet. 2.)
NARPO identifies several proceedings in which the Board extended the
180-day trail use negotiating period for what it terms excessive
periods of time (e.g., nearly 10 years). (Id. at 2-4.) NARPO argues
that the Board must impose a reasonable limit on the number of
extensions granted for trail use negotiations. (Id. at 4.) NARPO
contends that its proposed rule calling for a maximum of six 180-day
extensions strikes a reasonable balance between the time legitimately
required for trail use negotiations, and the abuse of trail use
procedures that results from repeated extensions over a lengthy period
of time. (Id.)
A few commenters support NARPO's proposal to limit the number of
extensions granted during the trail use negotiation period. (E.g.,
Tomani Comments 1; Rood Comments 1.) Other commenters, however, oppose
NARPO's proposal. Some argue that NARPO has failed to justify that its
proposed rule is needed or to demonstrate how any of its members might
be prejudiced by the extensions. (MCMTD Comments 2; City of Seattle
Comments 2-3.) Others contend that the ability to extend the trail use
negotiating period is critical as delays may be a result of factors not
attributable to the trail sponsor (e.g., proceedings involving an Offer
of Financial Assistance, delays resulting from compliance with
environmental and historic preservation conditions, and carrier
negotiations with salvage operators). (RTC Comments 3; City of Seattle
Comments 4.) RTC argues that the Board has held that CITU/NITU
extensions should be liberally granted because of the ``strong
Congressional policy favoring trails use/railbanking.'' (RTC Comments
3.) RTC also asserts that negotiating a railbanking/interim trail use
agreement is a complex undertaking, requiring the potential trail
sponsor to assume extensive liabilities and long-term financial
responsibilities for the management of the corridor. (RTC Comments 3.)
Thus, RTC argues that NARPO's proposed limit of six extensions for
NITUs would undermine the implementation and effectiveness of the
federal railbanking law. (Id.) AAR also opposes NARPO's proposal,
arguing (along with RTC) that the Board may evaluate NITU extension
requests on a case-by-case basis to determine if they are reasonable.
(AAR Comments 4, RTC Comments 4.)
Having considered this aspect of NARPO's petition and the comments
filed in this docket, the Board concludes that proposing a rule
imposing limits on the availability of extensions is reasonable and
warranted. The agency has granted CITU/NITU extensions liberally in the
past and, at times, Trails Act negotiations have gone on for many
years. The courts have noted that extensions ``ad infinitum'' could
have the undesirable effect of ``allowing the railroad to stop service
without either relinquishing its rights to the easement or putting the
right-of-way to productive use.'' Birt, 90 F.3d at 589. While the
Trails Act process (which depends on a railroad and a trail sponsor
negotiating a voluntary agreement) clearly contemplates that sufficient
time is needed to determine if a specific rail corridor can be
railbanked, the process must also be concluded after a reasonable
period of time and provide administrative finality.\5\ By allowing a
maximum of six 180-day extensions (absent extraordinary circumstances),
the Board could appropriately foster the interests of administrative
efficiency and clarity by limiting negotiations to a reasonable period
while still ensuring that parties also have the time required to take
the many steps that may be part of the process involved in negotiating
an agreement.
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\5\ The Board is also aware that courts have held that the
timing of a CITU/NITU notice and the length of the negotiation
period can potentially have impacts on takings claims proceedings.
See Caldwell v. United States, 391 F.3d 1226, 1233 (Fed. Cir. 2004);
Ladd v. United States, 630 F.3d 1015, 1024-26 (Fed. Cir. 2010).
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Notice to Landowners. In its petition, NARPO also proposes that the
Board require a rail carrier or trail sponsor to ``send notice'' to
adjoining landowners following the issuance of a CITU/NITU. (NARPO Pet.
4.) Reasserting an argument raised in several prior proceedings before
the Board and the ICC, NARPO argues that effective notice of a CITU/
NITU is essential for property owners to adequately protect their
interests. (NARPO Pet. 5; NARPO Reply 6-7.)
NARPO argues that it would no longer be unduly burdensome for
railroads or trail sponsors to send individual notice to each adjoining
landowner because, according to NARPO, practically every county in the
United States now has its property records stored electronically.
(NARPO Pet. 5.) NARPO concludes that a rail carrier or trail sponsor
could easily search county records, or retain a title company to do so,
thereby obtaining the information needed to contact adjoining
landowners. (Id.) Given the supposed ease of identifying and providing
individual notice to property owners, NARPO maintains that Federal
Register notice and local newspaper publication are no longer
sufficient. (Id.) Commenters that support NARPO's proposal ask the
Board to implement the individual notice requirement and assert that
such notice to landowners could be accomplished easily. (E.g., STOP
Comments 1.)
Several commenters oppose NARPO's proposal, contending that the
agency has already considered and rejected similar proposals by NARPO
in the past, and that locating all adjacent landowners would be time-
consuming, expensive, and burdensome. (RTC Comments 4; INHF Comments 2;
City of Seattle Comments 5.) They further point out that NARPO provides
no support for its argument that its proposed notice requirement could
be ``easily'' accomplished because many jurisdictions maintain
computerized land records. (RTC Comments 4; City of Seattle Comments 5;
MCMTD Comments 2.) Some commenters also claim that NARPO's proposed
rule would be inconsistent with the Board's limited role in
administering the Trails Act, and contrary to the purpose of the Trails
Act, which is to encourage and facilitate interim trail use of railroad
rights-of-way that would otherwise be abandoned. (AAR Comments 2; INHF
Comments 2.) Some commenters further argue that the existing notice
procedures are sufficient. (AAR Comments 3; MCMTD Comments 2; City of
Seattle Comments 6.)
The Board's regulations at 49 CFR 1105.12 require, in every
abandonment exemption case, that the rail carrier certify that it has
published a notice in a newspaper of general circulation in each county
in which the line is located. See Nat'l Trails Sys. Act & R.R. Rights-
of-Way, EP 702, slip op. at 7 (STB served Feb. 16, 2011); see also
Citizens Ass'n of Georgetown v. FAA, 896 F.3d 425, 435-36 (D.C. Cir.
2018) (holding Federal Aviation Administration satisfied notice
obligation through publication in local newspapers). Such a notice of
the proposed abandonment provides information about available reuse
alternatives, including trail use and public use, and informs the
public how it may participate in the Board proceeding. See 49 CFR
1105.12. Moreover, Federal Register notice is also provided in every
abandonment proceeding. 49 CFR 1152.22(i),
[[Page 50329]]
1152.50(d)(3), 1152.60(a). Courts have repeatedly held that publication
in the Federal Register is legally sufficient notice to all interested
or affected persons regardless of actual knowledge or hardship
resulting from ignorance. See Friends of Sierra R.R. v. ICC, 881 F.2d
663, 667-68 (9th Cir. 1989); Fed. Crop Ins. Corp. v. Merrill, 332 U.S.
380, 384-85 (1947); Gov't. of Guam v. United States, 744 F.2d 699, 701
(9th Cir. 1984); Bennett v. Dir., Office of Workers' Comp. Programs,
717 F.2d 1167, 1169 (7th Cir.1983); N. Ala. Express, Inc. v. United
States, 585 F.2d 783, 787 n. 2 (5th Cir. 1978).
The Board and the ICC previously considered similar notice
proposals by NARPO. Both the Board and the ICC declined to adopt such a
rule, finding that providing direct notice to adjacent landowners would
be time-consuming, burdensome, and unnecessary. Nat'l Ass'n of
Reversionary Prop. Owners v. STB, 158 F.3d 135 (D.C. Cir. 1998); see
Nat'l Trails System Act & R.R. Rights-of-Way, EP 702, slip op. at 7-8
(STB served Feb. 16, 2011; Rail Abans.--Use of Rights-of-Way as
Trails--Supplemental Trails Act Procedures, EP 274 (Sub-No. 13) (ICC
served July 28, 1994). The Board finds that NARPO has not provided a
sufficient basis for altering the existing notice requirements. A
requirement that a rail carrier or trail sponsor identify, locate, and
notify all adjacent landowners would be time-consuming and burdensome,
even if electronic property records for each parcel located adjacent to
the railroad right-of-way are available. Such a burdensome process
could result in confusion and significant delay in the interim trail
use process due to chain-of-title errors, multiple tenants-in-common,
or claims by third parties against particular property owners. Further,
NARPO does not support its claim that electronic property records are
widely available. Therefore, the Board will not further consider this
aspect of NARPO's petition.
Filing Fees for CITU/NITU Extension Requests. NARPO requests that
the Board require public entities to pay filing fees for CITU/NITU
extensions, as is currently required for non-public entities. (NARPO
Pet. 5.) According to NARPO, non-payment of filing fees for CITU/NITU
extensions requested by public entities burdens both the Board and non-
public entities. (Id.) NARPO claims that extensive waivers of filing
fees unduly burden Board staff because staff incurs the same labor cost
for an extension request filed by a public entity as it would for a
non-public entity. (Id. at 6.) NARPO also argues that non-public
entities are burdened because their filing fees are higher than they
would otherwise be to account for the numerous waivers granted for
public entities. (Id.)
While some commenters support NARPO's proposal to require public
entities to submit filing fees for NITU extensions (e.g., Tomani
Comments 1; Rood Comments 1), others oppose it. Generally, those
opposing commenters contend that, pursuant to 49 CFR 1002.2(e)(1), no
other filings submitted to the Board by federal, state, or local
entities require fees, and that a NITU extension should be no
different. (AAR Comments 4; City of Seattle Comments 7; INHF Comments
2.) The City of Seattle and MCMTD also contend that there is no
evidence that the Board raises the price for fee payers due to fee
exemptions granted to government entities. (City of Seattle Comments 7;
MCMTD Comments 3.) RTC further argues that NARPO has failed to
articulate why requiring public agencies to pay fees would in any way
protect legitimate interests of adjacent landowners or reversionary
interest holders. (RTC Comments 5.) AAR submits similar comments in
opposition to NARPO's proposal and states that the Board need not
address NARPO's request in a rulemaking as the Board can evaluate each
request for a fee waiver on its own merit. (AAR Comments 4-5.) AAR also
notes that the Board has concluded that third parties have no standing
to challenge the grant or denial of a party's fee waiver request
because it has no bearing on the merits of that party's claims and that
there is no private right of action to enforce the Independent Offices
Appropriations Act, 31 U.S.C. 9701, which regulates fees collected by
government agencies. See Hartwell First United Methodist Church--
Adverse Aban. & Discontinuance--The Great Walton R.R., in Hart Cty.,
Ga., AB 1242 (STB served June 2, 2017) (citing Byers v. Intuit, Inc.,
564 F. Supp. 2d 385, 414-19 (E.D. Pa. 2008).
The Board finds NARPO's proposal lacks merit. The Board's rules are
clear that filing fees are waived for any ``application or other
proceeding''--including a CITU/NITU extension request--that is filed by
a federal government agency, or a state or local government entity. 49
CFR 1002.2(e)(1). NARPO has failed to explain why an exception from
this rule of general applicability should be made only in the CITU/NITU
context. The Board evaluates each fee waiver request on its own merits
and waivers do not affect the level of fees charged to other entities.
See Regulations Governing Fees for Servs. Performed in Connection with
Licensing & Related Servs., 1 I.C.C.2d 60, 64 (1986) (``An agency may
impose a reasonable charge on recipients for an amount of work from
which they benefit. The fees must be for specific services to specific
persons.'').\6\ Therefore, the Board will not further consider this
aspect of NARPO's petition.
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\6\ Courts have recognized that there is no private right of
action to enforce the Independent Offices Appropriations Act, 31
U.S.C. 9701, which regulates fees collected by government agencies.
See Hartwell, AB 1242, slip op. at 1-2 (citing Byers, 564 F. Supp.
2d at 414-19). Moreover, the Board has held that third parties have
no standing to oppose the grant or denial of a party's fee waiver
request, as the fee waiver has no bearing on the merits of the
party's underlying application. Id. at 2.
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Proposed Rules
For the reasons discussed above, and as set forth below, the Board
proposes to limit the number of 180-day extensions of a trail use
negotiating period to six, unless the requesting party can demonstrate
that extraordinary circumstances justify the grant of a further
extension. The Board seeks comments concerning whether capping
extensions at a maximum of six, with a very limited opportunity for an
additional extension in extraordinary circumstances, strikes an
appropriate balance between reasonably limiting the negotiating period
and permitting parties enough time to finalize their negotiations.
The Board proposes to make the new rules applicable to both new
CITUs/NITUs and cases where the CITU/NITU negotiating period, or any
extension thereof, has not yet expired when the rules become effective.
For cases where a CITU/NITU has been issued or extended prior to the
effective date of the rules--and the CITU/NITU negotiating period, or
any extension, has not yet expired--parties (absent a showing of
extraordinary circumstances) would be limited to a maximum of six 180-
day extensions following the expiration of the initial 180-day
negotiation period. For example, in a Trails Act case where two 180-day
extensions have already been granted, parties would be limited to
requesting a maximum of four more 180-day extensions, absent
extraordinary circumstances. In such Trails Act proceedings (including
those where extensions might have already have exceeded the maximum
limit of six), the Board may more liberally provide additional
extensions for extraordinary circumstances.\7\ Interested
[[Page 50330]]
persons may comment on the proposed rule by November 1, 2018; replies
to comments may be filed by November 21, 2018.
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\7\ Although the proposed rule would apply to new extension
requests in proceedings where a current 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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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 or
circumscribe the conduct of small entities. Effective June 30, 2016,
for the purpose of RFA analysis for rail carriers subject to our
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).\8\ The changes proposed here are largely
procedural and would not have a significant economic impact on the
Class III rail carriers to which the RFA applies, as participation in a
negotiation under the Trails Act is voluntary for both the railroad and
the trail sponsor. 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. The proposed rules, if promulgated, would limit the
number of 180-day extensions of a trail use negotiating period to six
extensions, absent extraordinary circumstances.
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\8\ 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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This decision will be served upon the Chief Counsel for Advocacy,
Offices of Advocacy, U.S. Small Business Administration, Washington, DC
20416.
It is ordered:
1. 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.
2. The procedural schedule is established as follows: Comments
regarding the proposed rules are due by November 1, 2018; replies are
due by November 21, 2018.
3. The Board terminates the proceeding in Docket No. EP 749.
4. 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.
5. 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: October 1, 2018.
By the Board, Board Members Begeman and Miller.
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 as follows:
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a. Add the following sentences to the end of paragraph (c)(1):
``Parties may request a Board order to extend the 180-day interim trail
use negotiation period. A maximum of six 180-day extensions may be
granted. Requests for additional extensions beyond six are not favored
and will be granted only if the requestors demonstrate that
extraordinary circumstances warrant a further extension.''
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b. Add the following sentences to the end of (d)(1): ``Parties may
request a Board order to extend the 180-day interim trail use
negotiation period. A maximum of six 180-day extensions may be granted.
Requests for additional extensions beyond six are not favored and will
be granted only if the requestors demonstrate that extraordinary
circumstances warrant a further extension.''
[FR Doc. 2018-21760 Filed 10-4-18; 8:45 am]
BILLING CODE 4915-01-P