Solid Waste Rail Transfer Facilities, 68097-68098 [E9-30358]

Agencies

• Surface Transportation Board
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 74, Number 244 (Tuesday, December 22, 2009)]
[Notices]
[Pages 68097-68098]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-30358]


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DEPARTMENT OF TRANSPORTATION

Surface Transportation Board

[STB Ex Parte No. 684]


Solid Waste Rail Transfer Facilities

AGENCY: Surface Transportation Board.

ACTION: Notice.

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SUMMARY: This decision provides the factual basis for the Board's 
certification under 5 U.S.C. 605(b) of the Regulatory Flexibility Act 
that the interim rules governing the submission and review of 
applications for land-use-exemption permits and related filings under 
49 CFR 1155 will not have a significant economic impact on a 
substantial number of small entities.

DATES: Comments on the factual basis for the Board's Regulatory 
Flexibility Act certification are due by January 6, 2010, and reply 
comments are due by January 19, 2010.

ADDRESSES: Comments may be submitted either via the Board's e-filing 
format or in the traditional paper format. Any person using e-filing 
should attach a document and otherwise comply with the instructions at 
the E-FILING link on the Board's Web site, at https://www.stb.dot.gov. 
Any person submitting a filing in the traditional paper format should 
send an original and 10 copies to: Surface Transportation Board, Attn: 
STB Ex Parte No. 684, 395 E Street, SW., Washington, DC 20423-0001. 
Copies of written comments will be available for viewing and self-
copying at the Board's Public Docket Room, Room 131, and will be posted 
to the Board's Web site.

FOR FURTHER INFORMATION CONTACT: Valerie Quinn at (202) 245-0382. 
Assistance for the hearing impaired is available through the Federal 
Information Relay Service (FIRS) at 1-800-877-8339.

SUPPLEMENTARY INFORMATION: The Clean Railroads Act of 2008, Public Law 
No. 110-432, 122 Stat. 4848 (Clean Railroads Act or CRA), enacted 
October 16, 2008, removed from the jurisdiction of the Surface 
Transportation Board the regulation of solid waste rail transfer 
facilities,\1\ except as provided for in that act. The CRA limited the 
Board's authority with regard to solid waste rail transfer facilities 
to the issuance of land-use-exemption permits, a license that preempts 
a facility from compliance with state laws, regulations, orders, and 
other requirements affecting the siting of the facility.\2\ On January 
14, 2009, the Board served a notice of proposed rulemaking that set 
forth proposed procedures governing the submission and review of 
applications for land-use-exemption permits and related filings. See 
Solid Waste Rail Transfer Facilities, STB Ex Parte No. 684 (STB served 
Jan. 14, 2009) (January 14 Notice). Pursuant to 49 U.S.C. 10909(b), 
those proposed rules serve as the current interim rules.
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    \1\ The CRA defines a solid waste transfer facility as including 
the portion of a facility: (1) That is owned or operated by or on 
behalf of a rail carrier; (2) where solid waste is treated as a 
commodity transported for a charge; (3) where the solid waste is 
collected, stored, separated, processed, treated, managed, disposed 
of, or transferred; and (4) to the extent that solid-waste activity 
is conducted outside of the original shipping container. 49 U.S.C. 
10908(e)(1)(H)(i).
    \2\ The Board, however, has the authority to require as a 
condition of the permit compliance with State laws, regulations, 
orders, and other requirements that affect the siting of a facility. 
49 U.S.C. 10909(f).
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    In accordance with 5 U.S.C. 605(b) of the Regulatory Flexibility 
Act, we certified in the January 14 Notice that the proposed action 
would not have a significant economic impact on a substantial number of 
small entities. The Board also sought comment on the interim rules and 
the Board's interpretation of the CRA. During the time period allotted 
for comments, we received a request that we publish the factual basis 
for our certification and allow comments on it. See Salem Rail 
Logistics Comments at 3.
    The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, generally 
requires a description and analysis of new rules that will 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. 5 U.S.C. 601-604. When proposing 
new rules, the agency must either include an initial regulatory 
flexibility analysis, 5 U.S.C. 603(a), or certify that the proposed 
rule will not have a ``significant impact on a substantial number of 
small entities,'' 5 U.S.C. 605(b). The impact must be a direct impact 
on small entities ``whose conduct is circumscribed or mandated'' by the 
proposed rule. White Eagle Coop. Ass'n v. Conner, 553 F.3d 467, 480 
(7th Cir. 2009).
    In the January 14 Notice, the Board certified that the interim 
rules would not have a significant economic impact on a substantial 
number of small entities. The basis for that determination is as 
follows. While applicants for land-use-exemption permits could be small 
entities, as defined in 13 CFR Part 121, nothing in the interim rules 
gives the

[[Page 68098]]

Board the authority, on its own volition, to require a party to apply 
for a Board permit. See 49 U.S.C. 10908(b)(2)(B), 10909(a); January 14 
Notice, slip op. at 8-9. In general, that decision is solely within the 
control of the entity. The one exception is that a governor of the 
State in which an existing facility is located could petition the Board 
under 49 CFR 1155 Subpart B to require that facility to obtain a land-
use-exemption permit in order for it to continue to operate. 49 U.S.C. 
10908(b)(2)(B). But even in that circumstance, the authority lies with 
the State governors--not the Board--to initiate the Board's processes. 
Id. In all other scenarios, a party can avoid being subject to the 
Board's rules regarding land-use-exemption permits by complying with 
State requirements. Therefore, the interim rules will not circumscribe 
or mandate the conduct of a substantial number of small entities.
    Moreover, there are no alternatives to the interim rules that would 
adequately achieve the objectives of the Clean Railroads Act. The only 
scenario in which a small entity might be compelled to avail itself of 
the new Board processes (when a State governor has properly petitioned 
the Board under 49 CFR 1155 Subpart B) must be included in the new 
rules because it is specifically required under the CRA. 49 U.S.C. 
10908(b)(2)(B). Finally, we have provided a waiver provision that could 
mitigate any significant negative impact on small entities--an 
applicant may request a waiver of any particular part of the 
application procedures. See 49 CFR 1155.24(d)(2).
    Pursuant to 5 U.S.C. 605(b), the factual basis for the 
certification that the regulations proposed in the January 14 Notice 
will not have a significant economic impact on a substantial number of 
small entities within the meaning of the Regulatory Flexibility Act has 
hereby been provided. Comments regarding this certification and its 
factual basis as described in this decision will be due by January 6, 
2010, and replies to those comments will be due by January 19, 2010. A 
copy of the Board's decision will be served upon the Chief Counsel for 
Advocacy, Offices of Advocacy, U.S. Small Business Administration, 
Washington, DC 20416.
    This action will not significantly affect either the quality of the 
human environment or the conservation of energy resources.

    By the Board, Chairman Elliott, Vice Chairman Nottingham, and 
Commissioner Mulvey.
Jeffrey Herzig,
Clearance Clerk.
[FR Doc. E9-30358 Filed 12-21-09; 8:45 am]
BILLING CODE 4915-01-P