Supporting Statement - 2140-0022 Modificiation due to EP 749(1) (to ROCIS)

Supporting Statement for
Paperwork Reduction Act Submission
OMB Control No. 2140-0026
Expires September 30, 2021

Modification in Docket No. EP 749 (Sub-No. 1),
Preservation of Rail Service
The Surface Transportation Board (STB or Board) requests a three-year extension of
approval for the Board’s collections from those seeking statutory authority to preserve rail
service (OMB Control Number 2140-0022). In a notice of proposed rulemaking, the Board is
proposing to modify this collection to reduce the burden for respondents submitting trail use
requests.
A. Justification.
1. Why the collection is necessary. The Surface Transportation Board 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, Pub. L. No. 104-88, 109 Stat. 803 (1995), amended by the Surface
Transportation Board Reauthorization Act of 2015, Pub. L. No. 114-110 (2015), and Section 8(d)
of the National Trails System Act, 16 U.S.C. § 1247(d) and 49 C.F.R. § 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 offer of financial
assistance (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 (Trails
Act). 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). Additionally, the railroad owning the rail line subject to
abandonment must, in some circumstances, provide information to the applicant or offeror.
The collection by the Board of these filings and submissions allows the Board to meet its
statutory duty to regulate or facilitate the referenced rail transactions. The table below shows the
statutory and associated regulatory provisions under which the Board requires this collection of
information.

Table – Statutory and Regulatory Provisions
Information Required

Statutory Provision

Regulations

Offer of Financial
Assistance

49 U.S.C. § 10904

49 C.F.R. § 1152.27

Request for Public Use
Condition

49 U.S.C. § 10905

49 C.F.R. § 1152.28

Trail Use Request

16 U.S.C. § 1247(d)

49 C.F.R. § 1152.29

Feeder Line Application

49 U.S.C. § 10907

49 C.F.R. pt. 1151

2. How the collection will be used. When a person seeks to preserve rail service through
one of the provisions outlined above, the applicable statute or regulation requires that certain
information be filed or submitted to the Board or to another party. Under 49 U.S.C. § 10904, the
filing of an OFA starts a process of negotiations to quantify the financial assistance needed to
purchase or subsidize the rail line sought for abandonment. Once the OFA is filed, the offeror
may request additional information from the railroad, which the railroad must provide. If the
parties cannot agree to the sale or subsidy, either party also may file a request for the Board to set
the terms and conditions of the financial assistance. Under § 10905, a public use request allows
the Board to impose a 180-day public use condition on the abandonment of a rail line, permitting
the parties to negotiate a public use (other than a trail) for the rail line.
Under the Trails Act, a trail use request, if agreed upon by the abandoning carrier,
requires the Board to condition an abandonment by issuing a Notice of Interim Trail Use (NITU)
or Certificate of Interim Trail Use (CITU). Once issued, 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, which is commonly done to extend negotiations. If parties reach an
agreement, then they must jointly notify the Board of that fact and must identify the exact
location of the right-of-way subject to the agreement, including a map and milepost marker
information. They must also notify the Board of any modification or vacancy of the agreement.
In a supplemental notice of proposed rulemaking, Limiting Extensions of Trail Use
Negotiating Periods (SPR), EP 749 (Sub-No. 1),1 the Board proposes three changes to its rules on
trail use requests and trail use request extensions. First, the SPR would lengthen the initial
1

The Board issued a notice of proposed rulemaking in Limiting Extensions of Trail Use
Negotiating Periods (NPR), EP 749 (Sub-No. 1) (STB served Oct. 2, 2018) (83 Fed. Reg.
50,326), without notice of its proposed modification to an existing information collection. The
NPR has been revised, and the SPR is being issued in its place with the proper information
collection notice.
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interim trail use negotiating period from 180 days to one year. Second, it would permit up to
three one-year extensions of the initial period (if the trail sponsor and the railroad agree), rather
than an unlimited number of 180-day extensions. Finally, it would permit additional one-year
extensions (if the trail sponsor and the railroad agree and good cause is shown). Ultimately, the
submission of trail use requests and extensions ensure that the affected public and the agency will
have notice of actions taken in pursuit of trail use under the Trails Act.
Finally, under § 10907, a feeder line application provides the basis for authorizing an
involuntary sale of a rail line for the purpose of continuing freight rail transportation.
3. Extent of automated information collection. These documents may be e-filed on the
Board’s website, located at www.stb.gov. The public may also access these filings on the
Board’s website. Additionally, records provided to others may be transmitted via email.
4. Identification of duplication. The information requested does not duplicate any other
information available to the Board or the public.
5. Effects on small business. The information collection for filings and submissions by
persons seeking to preserve rail service does not have a significant economic impact on a
substantial number of small entities. While a majority of the estimated 40 respondents may be
small businesses, any submission that would be applicable to such businesses requires a
relatively limited amount of time and expense for drafting and transmission. Furthermore, filers
may seek a waiver of filing fees due to hardship.
6. Impact of less frequent collections. Under the statutes referenced above, the Board is
required to regulate, or provide for, various transactions to preserve rail service. This collection
is only required when a respondent is seeking the benefit of the use of a rail line that might
otherwise be abandoned. A less frequent collection would deprive the Board of its ability to
determine whether the respondent meets the eligibility standards to obtain the benefit that the
respondent is seeking. Therefore, without this collection, the Board could not fulfill its statutory
responsibilities.
7. Special circumstances. No special circumstances apply to this collection.
8. Consultation with Outside Agency. By decision published on June 6, 2019 (84 Fed.
Reg. 26387), the Board issued the SPR requesting public comments on its proposal to update its
regulations to increase the length of the initial trail use request negotiating period and subsequent
extensions of the negotiating period.
9. Payments or gifts to respondents. The Board does not provide any payment or gift to
respondents.
10. Assurance of confidentiality. Although most of the information collected, as
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described above, is available to the public, some of the information collected may be protected
and treated as confidential. At times, persons requesting to preserve rail service under 49 U.S.C.
§§ 10904-05, 10907 and 16 U.S.C. § 1247(d) may wish to file commercially sensitive
information. To protect such information, parties may mark documents or portions of documents
as “confidential” or “highly confidential” and simultaneously file a motion for a protective order.
See 49 C.F.R. § 1104.14. Generally, the Board will issue a protective order (sometimes with
modifications), limiting access to confidential pleadings to parties who demonstrate a need for
the information and adequately ensure that the documents will be kept confidential. See
49 C.F.R. §§ 1121.3(d), 1150.33 (h), 1150.43(h), 1180.4(g)(4).
11. Justification for collection of sensitive information. No sensitive information of a
personal nature is requested.
12. Estimation of burden hours for respondents. The number of annual responses is
shown in Table – Number of Yearly Responses below. When multiplied by the number of hours
for each type of filing, as provided in Table – Number of Hours per Response below, the
estimated annual burden hours for 40 respondents making 74 responses is 658 hours (sum of
estimated hours per response X number of responses for each type of filing).
Table – Number of Yearly Responses.
Type of Filing
Number of
filings
(Current)
Offer of Financial
1
Assistance
OFA—Railroad Reply to
1
Request for Information
OFA—Request to Set
1
Terms and Conditions
Request for Public Use
1
Condition
Feeder Line Application
5
Trail Use Request
23
Trail Use Request
42
Extension

Number of
filings
(2018)
1
1
1
1
5
23
84

The Table – Number of Yearly Responses above shows a 50% reduction in the number of
trail use request extensions for the next three years. In 2018, the Board used a three-year average
of actual filings with the Board to estimate that 84 trail use request extensions would be filed
annually through 2020. Due to the doubling of the length of these extensions under the SPR, the
Board estimates that there will only be 42 trail use request extensions through 2022.

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Table – Estimated Hours per Response.
Type of Filing
Number of Hours per Response
Offer of Financial
32 hours
Assistance
OFA—Railroad Reply to
10 hours
Request for Information
OFA—Request to Set
4 hours
Terms and Conditions
Request for Public Use
2 hours
Condition
Feeder Line Application
70 hours
Trail Use Request
4 hours
Trail Use Request
4 hours
Extension
Of course, the actual hourly burden to respondents will depend on the facts and complexity of
each situation in which they seek rail authority.
13. Other costs to respondents. Because Board collections are submitted electronically to
the Board, there is no cost for filing with the Board. However, respondents are sometimes
required to send consultation letters to various other governmental agencies. Copies of these
letters are part of an environmental and historic report that must be filed with this collection
(unless waived by the Board). Because some of these other agencies may require hard copy
letters, there may be some limited mailing costs, which staff estimates in total to be
approximately $1,200.00.
14. Estimate of Cost to the Federal Government. Under 31 U.S.C. § 9701 and 49 C.F.R.
§ 1002, the Board establishes user fees (also called filing fees) that, for most services, recoup the
cost to the Board for the specific services that the Board provides to persons seeking a benefit,
including requests to preserve rail service. These fees, and the corresponding costs to the
government, are based on a cost study using the formula set forth at 49 C.F.R. § 1002.3(d) and
other factors relevant to Board fee policy. These costs are updated each year, based on a new
cost study.2 Here, the Board’s user fees, which typically track the cost to the government for the
respondents’ filings, amount to $231,370 (filing fees applicable to each type of filing X number
of responses for each type of filing + cost to agency due to capped fees and public use – see
Table – Estimated Total Cost to the Federal Government).
Table –Filing Fees.
The Board’s last annual user-fee update was issued in Regulations Governing Fees for
Services Performed in Connection with Licensing and Related Services–2018 Update, EP 542
(Sub-No. 26) (STB served August 6, 2018), and became effective on September 5, 2018.
2

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Type of Filing
Offer of Financial Assistance
OFA—Railroad Reply to
Request for Information3
OFA—Request to Set Terms
and Conditions
Request for Public Use
Condition4
Feeder Line Application
Trail Use Request
Trail Use Request Extension

Filing
Fees
$1,800
$0
$26,000
$0
$2,600
$ 300
$ 500

However, the Board’s user fees do not always include all of the costs to the government. The
Board caps certain fees either out of a concern that higher fees could have a chilling effect on the
ability of some parties to bring a matter to our attention or because certain types of actions are deemed
to benefit the public. As relevant here, the Board has capped the fees for filings of feeder line
applications and trail use condition requests. The additional costs to the government due to capped
fees are calculated in the tables below.

Table – Additional Cost Per Response Due to Capped Fees.
Type of Filing
Actual Cost Capped Fee Cost to Agency
Feeder Line Application
$27,380
($2,600)
$24,780
Trail Use Request
$ 1,395
($ 300)
$ 1,095
Trail Use Request
$ 545
($ 500)
$
45
Extension
Table – Total Additional Cost to Agency Due to Capped Fees.
Type of Filing
Additional Cost Number of
Per Response
Responses
Feeder Line Application
$24,780
5
Trail Use Request
$ 1,095
23
Trail Use Request Extn
$
45
42
Total Additional cost

Additional Cost
Due to Caps
$123,900
$ 25,185
$ 1,890
$150,975

3

There is no filing with the Board for railroad replies to requests for information by the
filing party in an OFA. The railroad’s reply is provided directly to the requesting party.
Therefore, there is no cost to the agency associated with this requirement.
4

There is no fee associated with a request for a public use condition because it is in the
public interest (i.e., use of right-of-way for state or local public projects).
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Finally, the Board has not assessed a user fee for the filing of requests for a public use
condition because such requests are for the good of the public. There are, however, costs to the
government associated with this filing. Because the Board’s treatment of a request for a public
use condition is similar to its treatment of a trail use request, we conclude that the costs to the
government for both types of requests are similar. Therefore, we estimate that the cost to the
government for requests for a public use condition is $1,095 (estimated $1,095 cost of a public
use condition request X number of public use condition requests (1)).
Totaling the Board’s user fees and the additional costs not reflected in its user fees (due to
capped fees and filings in the public interest), the estimated total annualized cost to the Federal
government of this collection is summarized in the table below.
Table – Estimated Total Cost to the Federal Government.
Type of Cost
Cost
Cost Study for Filing Fees
$ 79,300
Additional Cost of Capped
$150,975
Fees
Lack of Fees for Public Use $ 1,095
Estimated Total Cost
$231,370
15. Changes in burden hours. This is an existing collection, which is being adjusted to
update the burdens and costs based on the proposed rule changes in the SPR. The SPR proposes
to: (a) increase the initial interim trail use negotiating period from 180 days to one year; (b) limit
trail use request extensions to three, one-year extensions (if the trail sponsor and the railroad
agree) rather than an unlimited number of 180-day extensions; and (c) allow additional one-year
extensions (if the trail sponsor and the railroad agree and good cause is shown). Due to these
rule changes, the Board estimates that there will be a 168-hour reduction in the burden hours to
respondents. This reduction is derived from the assumption that, if the length of each extension
is doubled, then the number of extensions will be reduced by half. Due to the doubling of the
length of these extensions, the Board now estimates that there will only be half as many trail use
request extensions annually.
16. Plans for tabulation and publication. The information in this collection that is not
confidential will be posted on the Board’s website, located at www.stb.gov. However, as
discussed above, when these filings contain confidential information, only a public, redacted
version is published on the Board’s website.
17. Display of expiration date for OMB approval. The new expiration date for this
collection will be published in the Federal Register when the collection is approved by OMB.
18. Exceptions to Certification Statement. Not applicable.

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B. Collections of Information Employing Statistical Methods.
Not applicable.

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