16538 Federal Register / Vol. 76, No. 57 / Thursday, March 24, 2011 / Rules and Regulations 

TABLE 1—WASTES EXCLUDED FROM NON-SPECIFIC SOURCES

Facility Address Waste description 

*******

Babcock & Wilcox Nuclear Operations Group, Inc., current 

owner, and BWX Technologies, 

Inc., predecessor in interest to 

the current owner, identified collectively hereafter as ‘‘B&W 

NOG’’.

Lynchburg, Virginia ........................ Wastewater treatment sludge from electroplating operations (Hazardous Waste Number F006) generated at the Mt. Athos facility 

near Lynchburg, VA and currently deposited in two on-site surface 

impoundments designated as Final Effluent Ponds (FEPs) 1 and 2. 

This is a one-time exclusion for 148 cubic yards of sludge and is effective after March 24, 2011. 

(1) Reopener language. 

(A) If B&W NOG discovers that any condition or assumption related to 

the characterization of the excluded waste which was used in the 

evaluation of the petition or that was predicted through modeling is 

not as reported in the petition, then B&W NOG must report any information relevant to that condition or assumption, in writing, to the 

Regional Administrator and the Virginia Department of Environmental Quality within 10 calendar days of discovering that information 

(B) Upon receiving information described in paragraph (a) of this section, regardless of its source, the Regional Administrator will determine whether the reported condition requires further action. Further 

action may include repealing the exclusion, modifying the exclusion, 

or other appropriate action deemed necessary to protect human 

health or the environment 

(2) Notification Requirements 

In the event that the delisted waste is transported off-site for disposal, 

B&W NOG must provide a one-time written notification to any State 

Regulatory Agency to which or through which the delisted waste 

described above will be transported at least 60 calendar days prior 

to the commencement of such activities. Failure to provide such notification will be deemed to be a violation of this exclusion and may 

result in revocation of the decision and other enforcement action 

*******

[FR Doc. 2011–6892 Filed 3–23–11; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF TRANSPORTATION 

Surface Transportation Board 

49 CFR Part 1155 

[Docket No. EP 684] 

Solid Waste Rail Transfer Facilities 

AGENCY: Surface Transportation Board, 

DOT. 

ACTION: Interim rule with request for 

comments. 

SUMMARY: The Clean Railroads Act of 

2008 amended the law to restrict the 

jurisdiction of the Surface 

Transportation Board (Board or STB) 

over solid waste rail transfer facilities. 

The Clean Railroads Act also added 

three new statutory provisions that 

address the Board’s regulation of such 

facilities, which is now limited to 

issuance of ‘‘land-use-exemption 

permits’’ in certain circumstances. Upon 

receiving a land-use-exemption permit 

issued by the Board, a solid waste rail 

transfer facility need not comply with 

State laws, regulations, orders, and 

other requirements affecting the siting of 

the facility, except to the extent that the 

Board requires compliance with any of 

those requirements. The Clean Railroads 

Act provides that a solid waste rail 

transfer facility must comply with all 

applicable Federal and State 

requirements respecting the prevention 

and abatement of pollution, the 

protection and restoration of the 

environment, and the protection of 

public health and safety, in the same 

manner as any similar solid waste 

management facility not owned or 

operated by or on behalf of a rail carrier, 

except for laws affecting the siting of the 

facility that are covered by the land-useexemption permit. As required by the 

Clean Railroads Act, on January 14, 

2009, the Board issued interim rules 

that were published in the Federal 

Register on January 27, 2009 (2009 

interim rules). Based on the comments 

received and further evaluation, the 

Board now modifies the review process 

for land-use-exemption permits under 

the Clean Railroads Act and modifies 

other aspects of the 2009 interim rules, 

in the interest of clarity and efficiency. 

The Board requests comments on the 

modifications contained in the interim 

rules. 

DATES: Effective date: March 24, 2011. 

Comment date: Comments are due 

May 23, 2011. Reply comments are due 

by June 22, 2011. 

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 http://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: Docket No. EP 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 

(800) 877–8339. 

SUPPLEMENTARY INFORMATION: Under 49 

U.S.C. 10501(a), the Board has 

jurisdiction over ‘‘transportation by rail 


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1The CRA does not affect the Board’s 

jurisdiction, or the scope of Federal preemption, 

over a rail carrier’s transportation-related activities 

involving commodities other than solid waste. 49 

U.S.C. 10908(d). 

2The decision accompanying the 2009 interim 

rules contains a more detailed discussion of the 

CRA and the Board’s initial implementation of that 

act. 

3The use of ‘‘original’’ is to signify the CFR 

numbering as it appeared in the 2009 interim rules 

where the addition or subtraction of sections has 

required these interim rules to have a different 

numbering. 

4An EIS refers to the detailed written statement 

required by the National Environmental Policy Act, 

42 U.S.C. 4321–4347 (NEPA), for a major Federal 

action significantly affecting the quality of the 

human environment. The Board’s EIS process is 

described at 49 CFR 1105.10. 

carrier.’’ Section 10501(b), as modified 

by the ICC Termination Act of 1995 

(ICCTA), Public Law 104–88, 109 Stat. 

803 (1995), provides that both ‘‘the 

jurisdiction of the Board over 

transportation by rail carriers’’ (which 

includes the carriers’ rail facilities, see 

49 U.S.C. 10102(9)), and the ‘‘remedies 

provided under [49 U.S.C. 10101– 

11908]’’ are ‘‘exclusive,’’ and ‘‘preempt 

the remedies provided under Federal 

and State laws.’’ Prior to enactment of 

the Clean Railroads Act of 2008, Public 

Law 110–432, 122 Stat. 4848 (Clean 

Railroads Act or CRA), on October 16, 

2008, the Board’s preemptive 

jurisdiction extended to solid waste rail 

transfer facilities owned or operated by 

rail carriers. Accordingly, State 

permitting or preclearance requirements 

(including environmental, zoning, and 

often land-use requirements) that, by 

their nature, could be used to deny a 

railroad the right to conduct its 

operations or proceed with 

transportation activities at rail transfer 

facilities, including solid waste rail 

transfer facilities, as authorized by the 

Board, were preempted. See 49 U.S.C. 

10501(b); N.Y. Susquehanna & W. Ry. v. 

Jackson, 500 F.3d 238, 252–55 (3d Cir. 

2007); Green Mountain R.R. v. Vermont, 

404 F.3d 638, 641–43 (2d Cir. 2005). 

Other State actions related to these 

facilities were preempted if, as applied, 

they would have the effect of 

unreasonably burdening or interfering 

with transportation by rail carrier. See 

N.Y. Susquehanna, 500 F.3d at 252; 

Green Mountain, 404 F.3d at 643. 

The CRA modified the Board’s 

jurisdiction over solid waste rail transfer 

facilities. The CRA provides that solid 

waste rail transfer facilities, as defined 

in 49 U.S.C. 10908(e)(1)(H), must now 

comply with all applicable Federal and 

State requirements (including 

environmental requirements) that apply 

to similar solid waste management 

facilities that are not owned or operated 

by or on behalf of a rail carrier, except 

as otherwise provided in the Clean 

Railroads Act.1 The CRA gives the 

Board the authority, if petitioned, to 

issue land-use-exemption permits that 

preempt State and local laws and 

regulations ‘‘affecting the siting’’ of such 

facilities (except to the extent that the 

Board requires the facility to comply 

with such provisions). 49 U.S.C. 

10909(f).2

The Board received numerous 

comments on the 2009 interim rules. We 

now revise the original rules to 

streamline the application process based 

on suggestions made in the parties’ 

comments and on the Board’s own 

review of the current interim 

regulations. We have made several 

significant revisions to the process set 

forth in the 2009 interim rules in order 

to streamline and improve the 

application process for a land-useexemption permit. These revisions 

include: (a) Eliminating the requirement 

to identify all laws that affect the siting 

of a facility; (b) incorporating the 

provisions of original 3 § 1155.23 into 

other sections; (c) generally requiring a 

full Environmental Impact Statement 

(EIS) 4 that includes an analysis of the 

environmental factors listed in 49 U.S.C. 

10909(d); and (d) providing a post-EIS 

comment period that would allow 

parties to use the information contained 

in the EIS to comment on whether the 

land-use-exemption permit should be 

granted and any conditions that could 

be imposed. The major revisions to the 

2009 interim rules are discussed in 

Section I of the Board’s complete 

decision posted on the Board’s Web site, 

http://www.stb.dot.gov. 

In Section II of the Board’s complete 

decision, the Board also addresses other 

comments received on the 2009 interim 

rules and revisions made in response to 

the comments. Other changes were 

made that are not substantive, and were 

not precipitated by comments. The 

Board is inviting interested parties to 

comment, but we request parties limit 

their comments to new issues raised by 

the revisions. 

Good cause exists for the interim rules 

to become effective while further notice 

and comment proceeds. See 5 U.S.C. 

553(b)(3)(B). The CRA mandated that 

the Board quickly establish rules to 

provide a process for facilities to obtain 

a land-use-exemption permit pending 

the final rules. Although the Board 

sought comment on the original rules, 

those rules were codified as interim 

rules. While we seek further comment 

on aspects of the regulations that were 

not part of the 2009 interim rules, we 

believe that all of the revisions should 

now be implemented as interim rules. 

The public would be better served by 

placing these refined regulations in 

effect on an interim basis, rather than 

leaving in place the rules issued in 

2009, which were drafted without any 

input from industry and other interested 

parties. As discussed below, the revised 

interim rules provide the Board with a 

framework for a more informed 

decision-making process if the agency is 

called upon to decide whether to issue 

a land-use-exemption permit before 

final rules are issued. The Board will 

expeditiously move toward issuing final 

regulations following the public 

comment period. 

Additional information is contained 

in the Board’s decision to be served on 

March 24, 2011. A copy of the Board’s 

decision is available for inspection or 

copying at the Board’s Public Docket 

Room, Room 131, 395 E Street, SW., 

Washington, DC 20423–0001, and is 

posted on the Board’s Web site, http:// 

www.stb.dot.gov. Copies of the decision 

may also be purchased by contacting the 

Board’s Office of Public Assistance, 

Governmental Affairs, and Compliance 

at (202) 245–0236. 

Pursuant to the Paperwork Reduction 

Act (PRA), 44 U.S.C. 3501–3549, and 

Office of Management and Budget 

(OMB) regulations at 5 CFR 

1320.8(d)(3), the Board seeks comments 

regarding: (1) Whether the collection of 

information associated with the landuse-exemption-permit application in the 

interim rules at CFR part 1155, and 

further described in the Appendix, 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 estimate; (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. Information pertinent to 

these issues is included in the 

Appendix. The collection of information 

associated with these proposed interim 

rules will be submitted to OMB for 

review as required under 44 U.S.C. 

3507(d) and 5 CFR 1320.11. 

In accordance with the Regulatory 

Flexibility Act at 5 U.S.C. 605(b), we 

certify that the interim rules would not 

have a significant economic impact on 

a substantial number of small entities. 

The basis for this determination is as 

follows. While applicants for land-useexemption permits could be small 

entities, as defined in 13 CFR part 121, 

under neither the statute nor the interim 


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rules could the Board, on its own, 

require a party to apply for a Board 

permit. See 49 U.S.C. 10908(b)(2)(B), 

10909(a). 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 U.S.C. 10908(b)(2)(B) and 49 CFR 

part 1155 subpart B, to require that 

facility to obtain a land-use-exemption 

permit in order for it to continue to 

operate. Even in that circumstance, the 

authority lies with the State governors— 

not the Board—to initiate the Board’s 

processes. 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 CRA. 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 part 1155 subpart 

B) must be included in the 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 1155.22(d)(4) 

(original 49 CFR 1155.24(d)(2)). A copy 

of this decision will be served upon the 

Chief Counsel for Advocacy, Office of 

Advocacy, U.S. Small Business 

Administration. 

This action will not significantly 

affect either the quality of the human 

environment or the conservation of 

energy resources. 

List of Subjects in 49 CFR Part 1155 

Administrative practice and 

procedure, Railroad, Solid waste rail 

transfer facility. 

Decided: March 14, 2011. 

By the Board, Chairman Elliott, Vice 

Chairman Nottingham, and Commissioner 

Mulvey. 

Andrea Pope-Matheson, 

Clearance Clerk. 

■ For the reasons set forth in the 

preamble, the Surface Transportation 

Board revises part 1155 of title 49, 

chapter X, of the Code of Federal 

Regulations to read as follows: 

PART 1155—SOLID WASTE RAIL 

TRANSFER FACILITIES 

Subpart A—General 

Sec. 

1155.1 Purpose and scope. 

1155.2 Definitions. 

Subpart B—Procedures Governing 

Petitions To Require a Facility in Existence 

on October 16, 2008, To Apply for a LandUse-Exemption Permit 

1155.10 Contents of petition. 

1155.11 Filing and service of petition. 

1155.12 Participation in petition 

procedures. 

1155.13 Board determination with respect 

to a Governor’s petition. 

Subpart C—Procedures Governing 

Applications for a Land-Use-Exemption 

Permit 

1155.20 Notice of intent to apply for a landuse-exemption permit. 

1155.21 Contents of application. 

1155.22 Filings and service of application. 

1155.23 Participation in application 

proceedings. 

1155.24 Environmental review. 

1155.25 Transfer and termination of the 

land-use-exemption permit. 

1155.26 Board determinations under 49 

U.S.C. 10909. 

1155.27 Petitions to modify, amend, or 

revoke a land-use-exemption permit. 

Appendix A to Part 1155—Form Notice Of 

Intent To Apply 

Appendix B to Part 1155—Form Federal 

Register Notice 

Authority: 49 U.S.C. 721(a), 10908, 10909, 

10910. 

PART 1155—SOLID WASTE RAIL 

TRANSFER FACILITIES 

Subpart A—General 

§ 1155.1 Purpose and scope. 

49 U.S.C. 10501(c)(2)(B) excludes 

solid waste rail transfer facilities from 

the Board’s jurisdiction except as 

provided under 49 U.S.C. 10908 and 

10909. Sections 10908 and 10909 

provide the Board authority to issue 

land-use-exemption permits for solid 

waste rail transfer facilities when 

certain conditions are met. The 

regulations in this part concern landuse-exemption permits and the Board’s 

standard for review. 

§ 1155.2 Definitions. 

(a) Unless otherwise provided in the 

text of these regulations, the following 

definitions apply in this part: 

(1) Commercial and retail waste 

means material discarded by stores, 

offices, restaurants, warehouses, 

nonmanufacturing activities at 

industrial facilities, and other similar 

establishments or facilities. 

(2) Construction and demolition 

debris means waste building materials, 

packaging, and rubble resulting from 

construction, remodeling, repair, and 

demolition operations on pavements, 

houses, commercial buildings, and other 

structures. 

(3) Environmental Impact Statement 

or ‘‘EIS’’ means the detailed written 

statement required by the National 

Environmental Policy Act, 42 U.S.C. 

4332(2)(c), for a major Federal action 

significantly affecting the quality of the 

human environment. 

(4) Household waste means material 

discarded by residential dwellings, 

hotels, motels, and other similar 

permanent or temporary housing 

establishments or facilities. 

(5) Industrial waste means the solid 

waste generated by manufacturing and 

industrial and research and 

development processes and operations, 

including contaminated soil, 

nonhazardous oil spill cleanup waste 

and dry nonhazardous pesticides and 

chemical waste, but does not include 

hazardous waste regulated under 

subtitle C of the Solid Waste Disposal 

Act (42 U.S.C. 6921 et seq.), mining or 

oil and gas waste. 

(6) Institutional waste means material 

discarded by schools, nonmedical waste 

discarded by hospitals, material 

discarded by nonmanufacturing 

activities at prisons and government 

facilities, and material discarded by 

other similar establishments or 

facilities. 

(7) Municipal solid waste means 

household waste, commercial and retail 

waste, and institutional waste. 

(8) Office of Environmental Analysis 

or ‘‘OEA’’ means the Board staff that 

prepares the Board’s environmental 

documents and analyses. 

(9) Solid waste means construction 

and demolition debris; municipal solid 

waste; household waste; commercial 

and retail waste; institutional waste; 

sludge; industrial waste; and other solid 

waste, as determined appropriate by the 

Board, but not waste generated by a rail 

carrier during track, track structure, or 

right-of-way construction, maintenance, 

or repair (including railroad ties and 

line-side poles), or waste generated as a 

result of a railroad accident, incident, or 

derailment. 

(10) Solid waste rail transfer facility— 

(i) Means the portion of a facility owned 

or operated by or on behalf of a rail 

carrier (as defined in 49 U.S.C. 10102) 

where solid waste, as a commodity to be 

transported for a charge, is collected, 

stored, separated, processed, treated, 

managed, disposed of, or transferred, 

when the activity takes place outside of 

original shipping containers; but 

(ii) Does not include— 


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(A) The portion of a facility to the 

extent that activities taking place at 

such portion are comprised solely of the 

railroad transportation of solid waste 

after the solid waste is loaded for 

shipment on or in a rail car, including 

railroad transportation for the purpose 

of interchanging railroad cars containing 

solid waste shipments; or 

(B) A facility where solid waste is 

transferred or transloaded solely from a 

tank truck directly to a rail tank car. 

(11) Sludge means any solid, semisolid, or liquid waste generated from a 

municipal, commercial, or industrial 

wastewater treatment plant, water 

supply treatment plant, or air pollution 

control facility exclusive of the treated 

effluent from a wastewater treatment 

plant. 

(b) Exceptions. Notwithstanding 

paragraph (a) of this section, the terms 

household waste, commercial and retail 

waste, and institutional waste do not 

include yard waste and refuse-derived 

fuel; used oil; wood pallets; clean wood; 

medical or infectious waste; or motor 

vehicles (including motor vehicle parts 

or vehicle fluff). 

(c) ‘‘Land-use-exemption permit’’ 

means the authorization issued by the 

Board pursuant to the authority of 49 

U.S.C. 10909(a) and includes the term 

‘‘siting permit’’ in 49 U.S.C. 10909(e). 

(d) ‘‘State laws, regulations, orders, or 

other requirements affecting the siting of 

a facility,’’ as used in 49 U.S.C. 10909(f) 

and 49 CFR 1155.27(d), include the 

requirements of a State or a political 

subdivision of a State, including a 

locality or municipality, affecting the 

siting of a facility. 

(e) ‘‘State requirements’’ as used in 49 

U.S.C. 10908 does not include the laws, 

regulations, ordinances, orders, or other 

requirements of a political subdivision 

of a State, including a locality or 

municipality, unless a State expressly 

delegates such authority to such 

political subdivision. 

Subpart B—Procedures Governing 

Petitions To Require a Facility in 

Existence on October 16, 2008, To 

Apply for a Land-Use-Exemption 

Permit 

§ 1155.10 Contents of petition. 

A petition to require a solid waste rail 

transfer facility in existence on October 

16, 2008, to apply for a land-useexemption permit, submitted by the 

Governor of the State or that Governor’s 

designee, shall contain the following 

information: 

(a) The Governor’s name. 

(b) The State’s name and the name of 

any agency filing on behalf of the 

Governor. 

(c) The full address of the solid waste 

rail transfer facility, or, if not available, 

the city, State, and United States Postal 

Service ZIP code. 

(d) The name of the rail carrier that 

owns or operates the facility or the rail 

carrier on whose behalf the facility is 

operated. 

(e) A good-faith certification that the 

facility qualified as a solid waste rail 

transfer facility as defined in 49 U.S.C. 

10908(e)(1)(H) and 49 CFR 1155.2, on 

October 16, 2008. 

(f) Relief sought (that the rail carrier 

that owns or operates the facility be 

required to apply for a land-useexemption permit). 

(g) Name, title, and address of 

representative of petitioner to whom 

correspondence should be sent. 

§ 1155.11 Filing and service of petition. 

(a) When the petition is filed with the 

Board, the petitioner shall serve 

concurrently, by first class mail, a copy 

of the petition on the rail carrier that 

owns or operates the solid waste rail 

transfer facility and on the facility if the 

address is different than the rail carrier’s 

address. A copy of the certificate of 

service shall be filed with the Board at 

the same time. 

(b) Upon the filing of a petition, the 

Board will review the petition and 

determine whether it conforms to all 

applicable regulations. If the petition is 

substantially incomplete or its filing 

otherwise defective, the Board will 

reject the petition without prejudice for 

stated reasons by order within 15 days 

from the date of filing of the petition. 

(c) If the petition is rejected, a revised 

petition may be resubmitted, and the 

Board will determine whether the 

resubmitted application conforms with 

all prescribed regulations. 

§ 1155.12 Participation in petition 

proceedings. 

(a) An interested person may file a 

reply to the petition challenging any of 

the information contained in the 

petition that is required by 49 CFR 

1155.10(c) through (e) and may offer 

evidence to support its contention. The 

petitioner will have an opportunity to 

file a rebuttal. 

(b) A facility can acknowledge that it 

was a solid waste rail transfer facility on 

October 16, 2008, but no longer operates 

as such and therefore is not required to 

seek a land-use-exemption permit. To 

do so, a facility must file with the Board 

a certification stating that it: 

(1) No longer operates as a solid waste 

transfer facility; 

(2) Understands that by certifying that 

it no longer operates as a solid waste 

transfer facility, it no longer qualifies as 

a facility in existence on October 16, 

2008 for purposes of the Clean Railroad 

Act and these regulations; and 

(3) Understands that if it seeks a landuse-exemption permit in the future, it 

would be required to do so as a 

proposed facility. 

(c) Filing and service of replies. 

(1) Any reply shall be filed with the 

Board (the Chief, Section of 

Administration, Office of Proceedings, 

Surface Transportation Board, 395 E 

Street, SW., Washington, DC 20423) 

within 20 days of the filing with the 

Board of the petition. 

(2) A copy of the reply shall be served 

on petitioner or its representative at the 

time of filing with the Board. Each filing 

shall contain a certificate of service. 

(3) Any rebuttal to a reply shall be 

filed and served by petitioner no later 

than 30 days after the filing of the 

petition. 

§ 1155.13 Board determination with 

respect to a Governor’s petition. 

The Board shall accept the Governor’s 

complete petition on a finding that the 

facility qualified as a solid waste rail 

transfer facility, as defined in 49 U.S.C. 

10908(e)(1)(H) and 49 CFR 1155.2, on 

October 16, 2008. If the Board finds that 

the facility currently does not qualify for 

or require a land-use-exemption permit, 

any future use of the facility as a solid 

waste rail transfer facility would require 

an application for a land-use-exemption 

permit as a proposed facility and/or the 

proper State permits. In a decision 

granting the Governor’s petition, the 

Board shall require that the rail carrier 

that owns or operates the facility, or the 

operator of the facility, file a land-useexemption-permit application within 

120 days of the service date of the 

decision. 

Subpart C—Procedures Governing 

Applications for a Land-UseExemption Permit 

§ 1155.20 Notice of intent to apply for a 

land-use-exemption permit. 

(a) Filing and publication 

requirements. An applicant (i.e., a solid 

waste rail transfer facility, or the rail 

carrier that owns or operates the facility) 

shall give its Notice of Intent to file a 

land-use-exemption-permit application 

by complying with the following 

procedures: 

(1) Filing. Applicant must serve its 

Notice of Intent on the Board in the 

format prescribed in part 1155 

Appendix A. The Notice of Intent shall 

be filed in accordance with the time 

requirements of paragraph (b) of this 

section. 


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(2) Service. Applicant must serve, by 

first-class mail (unless otherwise 

specified), its Notice of Intent upon: 

(i) The Governor of the State where 

the facility is located; 

(ii) The municipality, the State, and 

any relevant Federal or State regional 

planning entity in the jurisdiction of 

which the solid waste rail transfer 

facility is located or proposed to be 

located; and 

(iii) The appropriate managing 

government agencies responsible for the 

groups of land listed in 49 U.S.C. 

10909(c)(2). 

(3) Newspaper publication. Applicant 

must publish its Notice of Intent at least 

once during each of 3 consecutive 

weeks in a newspaper of general 

circulation in each county in which any 

part of the proposed or existing facility 

is located. 

(b) Time limits. (1) The Notice of 

Intent must be served on the parties 

discussed above at least 15 days, but not 

more than 30 days, prior to the filing of 

the land-use-exemption-permit 

application; 

(2) The three required newspaper 

Notices must be published within the 

30-day period prior to the filing of the 

application; and 

(3) The Notice of Intent must be filed 

with the Board either concurrently with 

service on the required parties or when 

the Notice is first published (whichever 

occurs first). 

(c) Environmental and Historic 

Reports. Applicant must also submit an 

Environmental and/or Historic Report 

containing the information described at 

49 CFR 1155.25(b), 1105.7, and 1105.8, 

to the extent applicable, at least 45 days 

prior to filing an application. OEA may 

reject any report that it deems 

inadequate. The environmental and 

historic reporting requirements that 

would otherwise apply are waived, 

however, if the applicant or the Board 

hires a third-party consultant, OEA 

approves the scope of the consultant’s 

work, and the consultant works under 

OEA’s supervision to prepare an EIS or 

other environmental documentation. In 

such a case, the consultant acts on 

behalf of the Board, working under 

OEA’s direction to collect the needed 

environmental information and compile 

it into an EIS or other appropriate 

environmental documentation. See 49 

U.S.C. 10909(h); 49 CFR 1155.25(c). 

§ 1155.21 Contents of application. 

Applications for land-use-exemption 

permits for the facility, and any 

proposed future expansion within 10 

years of the application date, shall 

contain the following information, 

including supporting documentation: 

(a) General. (1) Exact name of 

applicant. 

(2) Whether applicant is a common 

carrier by railroad subject to 49 U.S.C. 

Subtitle IV, chapter 105. 

(3) Summary of why a land-useexemption permit is being sought. 

(4) The full address of the solid waste 

rail transfer facility, or, if not available, 

the city, State, and United States Postal 

Service ZIP code. 

(5) The name of the rail carrier that 

owns or operates the facility or the rail 

carrier on whose behalf the facility is 

operated, the line of railroad serving the 

facility, the milepost location of the 

facility, and the milepost and names of 

the stations that the facility is located 

between. 

(6) Name, title, and address of 

representative of applicant to whom 

comments should be sent. 

(7) Copies of the specific State, local, 

or municipal laws, regulations, orders, 

or other requirements affecting the 

siting of the solid waste rail transfer 

facility from which the applicant 

requests entire or partial exemption, any 

publicly available material providing 

the criteria for the application of the 

State, local, or municipal laws, 

regulations, orders, or other 

requirements affecting the siting, and a 

description of any action that the State, 

local, or municipal authority has taken 

affecting the siting of the facility. The 

applicant shall state whether each law, 

regulation, order or other requirement 

from which an exemption is sought is 

an environmental, public health, or 

public safety standard that falls under 

the traditional police powers of the 

State. If the applicant states that the 

requirement is not such a standard, it 

shall explain the reasons for its 

statement. 

(8) Certification that the laws, 

regulations, orders or other 

requirements from which the applicant 

requests exemption are not based on 

Federal laws, regulations, orders, or 

other requirements. 

(9) Certification that the facility 

complies with all State, local, or 

municipal laws, regulations, orders, or 

other requirements affecting the siting of 

the facility except for those from which 

it seeks exemption. 

(10) Certification that the applicant 

has applied or will apply for the 

appropriate State permits not affecting 

siting. 

(11) For facilities not in existence as 

of October 16, 2008, certification that 

the facility is not proposed to be located 

on land within any unit of or land 

affiliated with the National Park System, 

the National Wildlife Refuge System, 

the National Wilderness Preservation 

System, the National Trails System, the 

National Wild and Scenic Rivers 

System, a National Reserve, or a 

National Monument. For facilities in 

existence as of October 16, 2008, state 

whether the facility is located in any of 

these types of lands. 

(12) For facilities not in existence as 

of October 16, 2008, certification that 

the facility is not proposed to be located 

on lands referenced in The Highlands 

Conservation Act, Public Law 108–421, 

for which a State has implemented a 

conservation management plan, or, that 

the facility is consistent with the 

restrictions implemented by the 

applicable State under The Highlands 

Conservation Act, Public Law 108–421, 

placed on its proposed location. For 

facilities in existence as of October 16, 

2008, state whether the facility is 

located on any of these lands, and, if so, 

address whether the facility is 

consistent with the restrictions placed 

on the location by the applicable State 

under that law. 

(13) An explanation of how the 

facility comes within the Board’s 

jurisdiction under 49 U.S.C. 10501. 

(14) The owner and operator of the 

facility. 

(15) The interest of the rail carrier in 

the facility. 

(16) An explanation of how the 

facility meets the definition of a solid 

waste rail transfer facility at 49 U.S.C. 

10909(e)(1)(H). 

(17) A statement whether the 

applicant has sought permission from 

the applicable State, local, or municipal 

authority with respect to some or all of 

the facility in its application and 

received an unsatisfactory result 

affecting the siting of the facility. The 

applicant shall provide information 

about the unsatisfactory result and shall 

include all relevant orders, decisions, or 

other notices of the denial. 

(18) A detailed description of the 

operations and activities that will occur/ 

are occurring at the facility. 

(19) Detailed map showing the subject 

facility on sheets not larger than 11x17 

inches, drawn to scale, and with the 

scale shown thereon. The map must 

show, in clear relief, the exact location 

of the facility on the rail line and its 

relation to other rail lines in the area, 

highways, water routes, population 

centers and any geographic features that 

should be considered in determining 

whether the facility would pose an 

unreasonable risk to public health, 

safety, or the environment, pursuant to 

49 U.S.C. 10909(c)(1). 

(20) Detailed drawing of the subject 

facility on sheets not larger than 11x17 

inches, drawn to scale, and with the 

scale shown thereon. The drawing must 


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show, in clear relief, the exact 

boundaries of the facility, structures at 

the facility, the location and type of the 

operations taking place at the facility, 

the proposed traffic configuration for 

the solid waste entering and leaving the 

facility, reasonable future expansion 

planned for the next 10 years that the 

applicant requests to be included in the 

land-use-exemption permit, any 

geographic features that should be 

considered in determining whether the 

facility would pose an unreasonable risk 

to public health, safety, or the 

environment, pursuant to 49 U.S.C. 

10909(c)(1), and any other information 

that the applicant believes would be 

relevant. 

(21) A detailed justification for why 

any future expansion planned for the 

next 10 years should be covered by the 

land-use-exemption permit. 

(b) Statement. A statement that sets 

forth, based on currently available 

information, the reasons why the Board 

should grant a land-use-exemption 

permit to the applicant under the 

standards in 49 U.S.C. 10909(c), (d) and 

these regulations. Specifically, the 

applicant shall include an explanation 

of whether the laws, regulations, or 

other requirements affecting siting of the 

facility from which exemption is sought, 

on their face or as applied, unreasonably 

burden the interstate transportation of 

solid waste by railroad or discriminate 

against the railroad transportation of 

solid waste and a solid waste rail 

transfer facility, and, if so, why. 

(c) Environmental impact. The 

applicant shall certify that it has 

submitted an environmental and/or 

historical report containing the 

information in 49 CFR 1155.25(b), 

1105.7, and 1105.8, to the extent 

relevant, if an environmental and/or 

historic report is required. 

(d) Additional information. The 

applicant shall submit such additional 

information to support its application as 

the Board may require. 

(e) Draft Federal Register notice. The 

applicant shall submit a draft notice of 

its application to be published by the 

Board. In addition to the regular number 

of copies that must be filed with the 

Board, the applicant must submit a copy 

of the draft notice as data contained on 

a computer diskette compatible with the 

Board’s current word processing 

capabilities. The Board will publish the 

notice in the Federal Register within 20 

days of the application’s filing with the 

Board. The draft notice shall be in the 

form set forth in pt. 1155 Appendix B. 

(f) Verification. The original 

application shall be executed and 

verified in the form set forth below by 

an officer of the applicant having 

knowledge of the facts and matters 

relied upon. 

Verification 

State of llllllll ss. 

County of lllllllll 

llllllll (Name of affiant) 

makes oath and says that (s)he is the 

llllllll (title of affiant) of the 

llllllll (name of applicant) 

applicant herein; that (s)he has been 

authorized by the applicant (or as 

appropriate, a court) to verify and file 

with the Surface Transportation Board 

the foregoing application in Finance 

Docket No. ll (Sub-No. ll); that 

(s)he has carefully examined all of the 

statements in the application as well as 

the exhibits attached thereto and made 

a part thereof; that (s)he has knowledge 

of the facts and matters relied upon in 

the application; and that all 

representations set forth therein are true 

and correct to the best of his/her 

knowledge, information, and belief. 

(Signature) 

Subscribed and sworn to before me 

llllllll in and for the State 

and County above named, this l day of 

ll, 20l. 

My commission expires 

§ 1155.22 Filings and service of 

application. 

(a) The applicant shall tender with its 

application an affidavit attesting to its 

compliance with the notice 

requirements of 49 CFR 1155.20. The 

affidavit shall include the dates of 

service, posting, and newspaper 

publication of the Notice of Intent. 

(b) When the application is filed with 

the Board, the applicant shall serve 

concurrently, by first-class mail, a copy 

on the Governor of the State where the 

facility is located; the municipality, the 

State, and any relevant Federal or State 

regional planning entity of the 

jurisdiction in which the solid waste 

rail transfer facility is located or 

proposed to be located; and the 

appropriate managing government 

agencies responsible for the groups of 

land listed in 49 U.S.C. 10909(c)(2). A 

copy of the certificate of service shall be 

filed with the Board at the same time. 

(c) The applicant shall promptly 

furnish by first class mail a copy of the 

application to any interested person 

proposing to file a comment upon 

request. A copy of the certificate of 

service shall be filed with the Board at 

the same time. 

(d)(1) Upon the filing of a land-useexemption-permit application, the 

Board will review the application and 

determine whether it conforms to all 

applicable regulations. If the application 

is substantially incomplete or its filing 

otherwise defective, the Board shall 

reject the application for stated reasons 

by order within 20 days from the date 

of filing of the application. If the Board 

does not reject the application, notice of 

the filing of the application shall be 

published in the Federal Register by the 

Board, through the Director of the Office 

of Proceedings, within 20 days of the 

filing of the application. 

(2) If the application is rejected, a 

revised application may be submitted 

and the Board will determine whether 

the resubmitted application conforms 

with all prescribed regulations. A 

properly revised application submitted 

within 60 days of the order rejecting the 

incomplete or improper application 

need not be subject to new notice and 

publication under § 1155.20, unless the 

defect causing the rejection was in the 

notice and/or publication. A revised 

application submitted after such 60-day 

period must be newly published and 

noticed. 

(3) The resubmission of a complete 

and properly filed land-use-exemptionpermit application shall be considered a 

de novo filing for the purposes of 

computation of the time periods 

prescribed in the regulations contained 

in this part. 

(4) An applicant may seek waiver of 

specific regulations listed in subpart C 

of this part by filing a petition for 

waiver with the Board. When the 

petition is filed with the Board, the 

applicant shall serve, by first-class mail, 

a copy on the Governor of the State 

where the facility is located; the 

municipality, the State, and any 

relevant Federal or State regional 

planning entity of the jurisdiction in 

which the solid waste rail transfer 

facility is located or proposed to be 

located; and the appropriate managing 

government agencies responsible for the 

groups of land listed in 49 U.S.C. 

10909(c)(2). A copy of the certificate of 

service shall be filed with the Board at 

the same time. A decision by the 

Director of the Office of Proceedings 

granting or denying a waiver petition 

will be issued within 30 days of the date 

the petition is filed. Appeals from the 

Director’s decision will be decided by 

the entire Board. If waiver is not 

obtained prior to the filing of the 

application, the application may be 

subject to rejection. 

§ 1155.23 Participation in application 

proceedings. 

(a) Initial comments. Interested 

persons may become parties to a landuse-exemption-permit proceeding by 

filing initial comments with the Board 

within 45 days of the filing of the 


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application. Comments should contain 

the following information, as 

appropriate: 

(1) Name, address, and organizational 

affiliation. 

(2) A statement describing 

commenter’s interest in the proceeding, 

including information concerning any 

organization or public interest it 

represents. 

(3) Reasons, in general, why 

commenter supports or opposes the 

application, taking into account the 

standards for the Board’s review and 

consideration set forth in 49 U.S.C. 

10909(c) and (d) and this part. 

(4) Any rebuttal to the evidence and 

argument submitted by applicant. 

(b) Final comments. Interested 

persons, including the applicant, within 

30 days after the close of OEA’s 

environmental review, may comment on 

how the information developed during 

OEA’s environmental review concerning 

the considerations at 49 U.S.C. 

10909(d)(1) through (5) should be 

weighed with the remaining 

transportation and other relevant 

considerations at 49 U.S.C. 10909(d)(6) 

and (7). The parties will have an 

additional 15 days to respond to other 

parties’ arguments. All pleadings shall 

be limited to weighing the information 

developed during OEA’s environmental 

review with transportation and other 

concerns, and should not be directed 

towards the adequacy of OEA’s 

environmental review. (Interested 

persons may comment on the adequacy 

of OEA’s environmental review during 

the normal comment period for the EIS 

as provided in 49 CFR 1105.10(a)(4). See 

49 CFR 1155.24(a).) All comments 

under this paragraph shall contain the 

information required in paragraphs 

(a)(1) and (2) of this section. 

(c) Filing and service of comments 

and replies (including evidence and 

argument). (1) Initial comments shall be 

filed with the Board (addressed to the 

Chief, Section of Administration, Office 

of Proceedings, Surface Transportation 

Board, 395 E Street, SW., Washington, 

DC 20423) within 45 days of the filing 

with the Board of a land-use-exemptionpermit application. An original and 10 

copies of each comment shall be filed 

with the Board. A copy of each 

comment shall be served on applicant or 

its representative at the time of filing 

with the Board. Each filing shall contain 

a certificate of service. 

(2) Final comments shall be filed and 

served on all parties within 30 days of 

the close of the environmental review. 

An original and 10 copies of such 

comments shall be filed with the Board. 

A copy of each comment shall be served 

on applicant or its representative at the 

time of filing with the Board. Each filing 

shall contain a certificate of service. 

(3) Replies to final comments shall be 

filed and served on all parties no later 

than 45 days after the close of the 

environmental review. An original and 

10 copies of such replies shall be filed 

with the Board. A copy of each reply to 

comments shall be served on applicant 

or its representative at the time of filing 

with the Board. Each filing shall contain 

a certificate of service. 

§ 1155.24 Environmental review. 

(a) A land-use-exemption permit 

generally will require the preparation of 

an EIS. OEA may reclassify the 

environmental review requirements of 

land-use-exemption proceedings on a 

case-by-case basis, pursuant to 49 CFR 

1105.6(d). 

(b) An applicant for a land-useexemption permit must submit an 

environmental report, at least 45 days 

prior to filing a land-use-exemptionpermit application, containing the 

information described at 49 CFR 1105.7 

to the extent applicable to solid waste 

rail transfer facilities. Applicants shall 

concurrently file an historic report 

containing the information at 49 CFR 

1105.8 if applicable. The environmental 

report must also contain a discussion of 

the five factors for consideration listed 

at 49 U.S.C. 10909(d)(1) through (5) and 

address any associated environmental 

impacts as they relate to the facility for 

which a land-use-exemption permit is 

sought. 

(c) The Board strongly encourages 

applicants to use third-party contractors 

to assist OEA in preparing the 

appropriate environmental 

documentation in land-use-exemptionpermit proceedings. See 49 CFR 

1105.10(d). The environmental 

reporting requirements outlined above 

that would otherwise apply are waived 

if an applicant hires a third-party 

contractor, OEA approves the scope of 

the contractor’s work, and the contractor 

works under OEA’s direct supervision. 

See 49 CFR 1105.10(d). If an applicant 

does not hire an independent thirdparty contractor, the Board may hire a 

third-party contractor and charge the 

costs for the contractor to the applicant. 

See 49 U.S.C. 10909(h). 

(d) The Board’s procedures set forth 

in 49 CFR 1105.10 for implementation 

of environmental laws are controlling 

unless superseded by provisions in this 

Part. 

(e) An applicant for a land-useexemption permit must follow the 

Board’s procedures at 49 CFR 1105.9 for 

compliance with the Coastal Zone 

Management Act, 16 U.S.C. 1451–65, if 

that act is applicable. 

§ 1155.25 Transfer and termination of a 

land-use-exemption permit. 

(a) A land-use-exemption permit may 

be transferred from a rail carrier to an 

acquiring rail carrier without the need 

for a new application for a land-useexemption permit if the rail line 

associated with the solid waste rail 

transfer facility is transferred to another 

rail carrier or to an entity formed to 

become a rail carrier pursuant to 

authority granted by the Board under 49 

U.S.C. 10901, 10902, or 11323. When 

seeking Board authority under 49 U.S.C. 

10901, 10902, or 11323, the applicant(s) 

shall specifically advise the Board, the 

municipality, the State, and any 

relevant Federal or State regional 

planning entity of the jurisdiction in 

which the solid waste rail transfer 

facility is located, of the intended 

transfer. The Federal Register notice 

concerning the acquisition shall include 

a statement that a solid waste rail 

transfer facility with a Board-issued 

land-use-exemption permit is included 

in the acquisition. 

(b) When a carrier plans to cease 

using a facility as a solid waste rail 

transfer facility, or when a facility is 

transferred to any party in any manner 

other than that described in paragraph 

(a) of this section, the entity that 

received the land-use-exemption permit 

must notify the Board, the municipality, 

the State, and any relevant Federal or 

State regional planning entity of the 

jurisdiction in which the solid waste 

rail transfer facility is located, in writing 

no later than 60 days prior to the 

proposed cessation or transfer. Upon 

receipt of that notice, the Board will 

publish notice in the Federal Register 

that the land-use-exemption permit will 

be terminated on the 60th day unless 

otherwise ordered by the Board. 

§ 1155.26 Board determinations under 49 

U.S.C. 10909. 

(a) Schedule. (1) The schedule in 

paragraph (a)(2) of this section shall 

govern the process for Board 

consideration and decisions in land-useexemption-permit application 

proceedings from the time the 

application is filed until the time of the 

Board’s decision on the merits. 

(2) At least 45 days prior to filing of 

application—Environmental report 

(and/or historic report, if applicable) 

filed and environmental process 

initiated pursuant to 49 CFR 1155.24. 

(i) Day 0—Application filed. 

(ii) Day 20—Due date for Notice of 

Application to be published in the 

Federal Register. 

(iii) Day 45—Due date for initial 

comments. 


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Federal Register / Vol. 76, No. 57 / Thursday, March 24, 2011 / Rules and Regulations 16545 

(iv) 30 days after the Final EIS (or 

other final environmental 

documentation) is issued by OEA—Due 

date for final comments. 

(v) 45 days after the Final EIS (or 

other final environmental 

documentation) is issued by OEA—Due 

date for replies to final comments. 

(3) A decision on the merits will be 

due 90 days after a full record is 

developed. 

(b) Standard for review. (1) The Board 

will issue a land-use-exemption permit 

only if it determines that the facility at 

the existing or proposed location would 

not pose an unreasonable risk to public 

health, safety, or the environment. In 

deciding whether a solid waste rail 

transfer facility that is or proposed to be 

constructed or operated by or on behalf 

of a rail carrier poses an unreasonable 

risk to public health, safety, or the 

environment, the Board shall weigh the 

particular facility’s potential benefits to 

and the adverse impacts on public 

health, public safety, the environment, 

interstate commerce, and transportation 

of solid waste by rail. 

(2) The Board will not grant a landuse-exemption permit for a solid waste 

rail transfer facility proposed to be 

located on land within any unit of or 

land affiliated with the National Park 

System, the National Wildlife Refuge 

System, the National Wilderness 

Preservation System, the National Trails 

System, the National Wild and Scenic 

Rivers System, a National Reserve, or a 

National Monument. 

(3) The Board will not grant a landuse-exemption permit for a solid waste 

rail transfer facility proposed to be 

located on land within any unit of or 

land affiliated with lands referenced in 

The Highlands Conservation Act, Public 

Law 108–421, for which a State has 

implemented a conservation 

management plan, if operation of the 

facility would be inconsistent with 

restrictions placed on such land. 

(4) The Board will reject an 

application from a person who is not a 

rail carrier, but is instead operating on 

behalf of a rail carrier unless: 

(i) The applicant has sought 

permission from the applicable State, 

local, or municipal authority with 

respect to some or all of the property in 

the application and received an 

unsatisfactory result affecting the siting 

of the facility; or 

(ii) The Governor of the State has 

petitioned the Board to require the 

facility to apply under 49 CFR part 1155 

subpart B. 

(5) The Board will issue a land-useexemption permit to an applicant that 

has received an unsatisfactory result 

from a State, local or municipal 

authority affecting the siting of the 

facility only if it finds that the laws, 

regulations, or other requirements affect 

the siting of the facility, on their face or 

as applied, either: 

(i) Unreasonably burden the interstate 

transportation of solid waste by railroad; 

or 

(ii) Discriminate against the railroad 

transportation of solid waste and a solid 

waste rail transfer facility. 

(6) A land-use-exemption permit will 

not exempt a State requirement that a 

rail carrier comply with an 

environmental, public health, or public 

safety standard that falls under the 

traditional police powers of the State 

unless the requirement is unreasonably 

burdensome to interstate commerce or 

discriminates against rail carriers. 

(7) A land-use-exemption permit will 

only exempt State, local, or municipal 

laws, regulations, orders, other 

requirements, or portions thereof, 

affecting the siting of the solid waste rail 

transfer facility. 

(c) Considerations. As required by 49 

U.S.C. 10909(d), the Board will consider 

and give due weight to the following, as 

applicable: 

(1) The land-use, zoning, and siting 

regulations or solid waste planning 

requirements of the State or State 

subdivision in which the facility is or 

will be located that are applicable to 

solid waste transfer facilities, including 

those that are not owned or operated by 

or on behalf of a rail carrier; 

(2) The land-use, zoning, and siting 

regulations or solid waste planning 

requirements applicable to the property 

where the solid waste rail transfer 

facility is proposed to be located; 

(3) Regional transportation planning 

requirements developed pursuant to 

Federal and State law; 

(4) Regional solid waste disposal 

plans developed pursuant to Federal or 

State law; 

(5) Any Federal and State 

environmental protection laws or 

regulations applicable to the site; 

(6) any unreasonable burdens 

imposed on the interstate transportation 

of solid waste by railroad, or the 

potential for discrimination against the 

railroad transportation of solid waste, a 

solid waste rail transfer facility, or a rail 

carrier that owns or operates such a 

facility; and 

(7) Any other relevant factors, as 

determined by the Board. 

(d) Permits. If the Board grants a landuse-exemption permit for a solid waste 

rail transfer facility, all State laws, 

regulations, orders, or other 

requirements affecting the siting of a 

facility are preempted with regard to 

that facility. Inasmuch as the Board has 

discretion to require compliance with 

State requirements affecting the siting of 

a facility pursuant to 49 U.S.C. 10909(f), 

a Board-issued land-use-exemption 

permit will require compliance with 

such State laws, regulations, orders, or 

other requirements not otherwise 

expressly exempted in the permit unless 

the Board determines otherwise. 

§ 1155.27 Petitions to modify, amend, or 

revoke a land-use-exemption permit. 

General rule. Petitions to modify, 

amend, or revoke land-use-exemption 

permits shall be decided in accordance 

with the Board’s normal standard of 

review for petitions to reopen 

administratively final Board actions at 

49 CFR 1115.4. The petition must 

demonstrate material error, new 

evidence, or substantially changed 

circumstances that warrant the 

requested action, and is subject to these 

additional conditions: 

(a) An entity that petitions for a 

modification or amendment requesting 

an expansion of Federal preemption or 

the facility’s operations or physical size 

is subject to the notice and application 

requirements in this subpart C. The 

language of the notifications shall be 

modified to note that the petition is for 

a modification or amendment. 

(b) The Board will approve or deny 

petitions to modify, amend, or revoke a 

land-use-exemption permit within 90 

days after the full record for the petition 

is developed. 

APPENDIX A to Part 1155—Form 

Notice of Intent to Apply 

Docket No. FD ____(Sub-No. ____) 

Notice of Intent to apply for a land-useexemption permit for a solid waste rail 

transfer facility. 

(Name of Applicant) gives notice that on or 

about (insert date application will be filed 

with the Board) it intends to file with the 

Surface Transportation Board, 395 E Street, 

SW., Washington, DC 20423, an application 

for a land-use-exemption permit for a solid 

waste rail transfer facility as defined in 49 

U.S.C. 10908(e)(1)(H) and 49 CFR 1155.2. 

The solid waste rail transfer facility, owned 

by (name of owner), and operated by (name 

of operator), is located at (full address, or, if 

not available, provide city, State, and United 

States Postal Service ZIP code). The solid 

waste rail transfer facility is located on a 

(name of rail carrier) line of railroad known 

as ____ at milepost ____ between (station 

name) at milepost ____ and (station name) at 

milepost ____. 

The reason(s) for the proposed permit 

application is (are) ______ (explain briefly 

and clearly the activities undertaken, or 

proposed to be undertaken, by the applicant 

at the solid waste rail transfer facility. 

Describe the specific State and local laws, 

regulations, orders or other requirements 

affecting siting from which the applicant 

requests entire or partial exemption and any 


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16546 Federal Register / Vol. 76, No. 57 / Thursday, March 24, 2011 / Rules and Regulations 

action that the State, local, or municipal 

authority has taken affecting the siting of the 

facility. Also, if applicant is not the rail 

carrier, provide the name of the rail carrier 

that owns or operates the facility or has the 

facility operated on its behalf.) 

(Include this paragraph for facilities not in 

existence on October 16, 2008). Applicant 

certifies that, based on information in its 

possession, the facility is not proposed to be 

located on land within any unit of or land 

affiliated with the National Park System, the 

National Wildlife Refuge System, the 

National Wilderness Preservation System, the 

National Trails System, the National Wild 

and Scenic Rivers System, a National 

Reserve, or a National Monument. Applicant 

further certifies that the facility is not 

proposed to be located on lands referenced 

in The Highlands Conservation Act, Public 

Law 108–421, for which a State has 

implemented a conservation management 

plan (or, The facility is consistent with the 

restrictions implemented by (State) under 

The Highlands Conservation Act, Public Law 

108–421, placed at its proposed location). 

Any relevant documentation in the railroad’s 

possession on these issues will be made 

available promptly to those requesting it. 

(For facilities already in existence on 

October 16, 2008, address the extent to which 

the facility is or is not located in any of these 

types of lands, and to the extent that it is so 

located address any relevant criteria, and so 

certify.) 

The application containing the information 

set forth at 49 CFR 1155.21 will include the 

applicant’s case for the granting of the landuse-exemption permit. Any interested 

person, after the application is filed on 

(insert date), may file with the Surface 

Transportation Board initial comments 

concerning the application within 45 days 

after the application is filed. 

The party’s initial comments should 

contain that party’s initial arguments in 

support or opposition based on the 

information available at that point including 

the following, as appropriate: 

(1) Name, address, and organizational 

affiliation. 

(2) A statement describing commenter’s 

interest in the proceeding, including 

information concerning the organization or 

public interest the commenter represents. 

(3) Specific reasons why commenter 

supports or opposes the application, taking 

into account the standards for the Board’s 

review and consideration provided in 49 

U.S.C. 10909(c), (d) and the Board’s 

regulations at 49 CFR 1155.27. 

(4) If the applicant files under 49 CFR 

1155.22, specific reasons why commenter 

supports or opposes the Board’s accepting 

the application. 

(5) Any rebuttal of material submitted by 

applicant. 

The parties’ initial comments will be 

considered by the Board in determining what 

disposition to make of the application. 

Parties seeking further information 

concerning the filing of comments should 

refer to 49 CFR 1155.24. 

Interested persons also will have the 

opportunity to provide detailed comments 

during the Board’s environmental review 

under the National Environmental Policy 

Act. 49 CFR 1105.10 and 49 CFR 1155.25. 

Questions concerning the environmental 

review process or potential environmental 

issues may be directed to the Board’s Office 

of Environmental Analysis (OEA). After the 

close of the environmental review, interested 

parties may file final comments on how the 

information developed during the 

environmental review should be weighed by 

the Board in determining whether to grant 

the requested land use exemption permit. See 

49 CFR part 1155 for details on these 

processes. 

All comments should indicate the 

proceeding designation Docket No. FD ____ 

(Sub-No. ____). Initial comments must be 

filed with the Chief, Section of 

Administration, Office of Proceedings, 

Surface Transportation Board, 395 E Street, 

SW., Washington, DC 20423, no later than 

(insert the date 45 days after the date 

applicant intends to file its application). A 

copy of each comment shall be served upon 

the representative of the applicant (insert 

name, address, and phone number). Except 

as otherwise set forth in 49 CFR part 1155, 

each document filed with the Board must be 

served on all parties to the land-useexemption-permit proceeding. See 49 CFR 

1104.12(a). 

Persons seeking further information 

concerning land-use-exemption-permit 

procedures may contact the Surface 

Transportation Board or refer to 49 U.S.C. 

10908, 10909, and the full land-useexemption-permit regulations at 49 CFR part 

1155. 

A copy of the application will be available 

for public inspection on or after (insert date 

the land-use-exemption-permit application is 

to be filed with Board) and will be available 

on the Board’s Web site at http:// 

www.stb.dot.gov. The applicant shall furnish 

a copy of the application to any interested 

person proposing to file a comment, upon 

request. 

APPENDIX B—Form Federal Register 

Notice 

Docket No. FD ____ (Sub-No. ____) 

Notice of Application for a land-useexemption permit for a solid waste rail 

transfer facility 

On (insert date application was filed with 

the Board) (name of applicant) filed with the 

Surface Transportation Board, 395 E Street, 

SW., Washington, DC 20423, an application 

for a land-use-exemption permit for a solid 

waste rail transfer facility. The solid waste 

rail transfer facility, owned by (name of 

owner), and operated by (name of operator), 

is located at (full address, or, if not available, 

provide city, State, and United States Postal 

Service ZIP code). The solid waste rail 

transfer facility is located on a line of (name 

of rail carrier) railroad known as ____ at 

milepost ____ between (station name) at 

milepost ____ and (station name) at milepost 

____. The application explains why applicant 

believes its request for a land-use-exemption 

permit should be granted. 

(Include this paragraph for facilities not in 

existence on October 16, 2008). The facility 

is not proposed to be located on land within 

any unit of or land affiliated with the 

National Park System, the National Wildlife 

Refuge System, the National Wilderness 

Preservation System, the National Trails 

System, the National Wild and Scenic Rivers 

System, a National Reserve, or a National 

Monument. The facility is not proposed to be 

located on lands referenced in The Highlands 

Conservation Act, Public Law 108–421, for 

which a State has implemented a 

conservation management plan (or, The 

facility is consistent with the restrictions 

implemented by (State) under The Highlands 

Conservation Act, Public Law 108–421, 

placed on its proposed location). Any 

relevant documentation in the railroad’s 

possession will be made available promptly 

to those requesting it. 

(For facilities already in existence on 

October 16, 2008, address the extent to which 

the facility is or is not located in any of these 

types of lands, and to the extent that it is so 

located address any relevant criteria, and so 

certify.) 

Any interested person may file with the 

Surface Transportation Board initial 

comments concerning the application within 

45 days of the filing of the application. 

Persons seeking information concerning the 

filing of initial comments should refer to 49 

CFR 1155.23. 

All comments should indicate the 

proceeding designation Finance Docket No. 

____ (Sub-No. ____). Initial comments must 

be filed with the Chief, Section of 

Administration, Office of Proceedings, 

Surface Transportation Board, 395 E Street, 

SW., Washington, DC 20423, no later than 

(insert the date 45 days after the date 

applicant intends to file its application). A 

copy of each comment shall be served upon 

the representative of the applicant (insert 

name, address, and phone number). Except 

as otherwise set forth in 49 CFR part 1155, 

each document filed with the Board must be 

served on all parties to the land-useexemption-permit proceeding. 49 CFR 

1104.12(a). 

Persons seeking further information 

concerning land-use-exemption-permit 

procedures may contact the Surface 

Transportation Board or refer to 49 U.S.C. 

10908, 10909, 10910 and the Board’s 

implementing land-use-exemption-permit 

regulations at 49 CFR part 1155. 

A copy of the application is available for 

public inspection. The applicant shall 

furnish a copy of the application to any 

interested person proposing to file a 

comment, upon request. 

Questions concerning the environmental 

review process or potential environmental 

issues may be directed to the Board’s Office 

of Environmental Analysis (OEA). After the 

close of the environmental review, interested 

parties may file final comments on how the 

information developed during the 

environmental review should be weighed by 

the Board in determining whether to grant 

the requested land use exemption permit. See 

49 CFR part 1155 for details on these 

processes. 

Note: The following appendix will not 

appear in the Code of Federal Regulations. 


jdjones on DSK8KYBLC1PROD with RULES
Federal Register / Vol. 76, No. 57 / Thursday, March 24, 2011 / Rules and Regulations 16547 

Appendix 

The additional information below is 

included to assist those who may wish to 

submit comments pertinent to review under 

the Paperwork Reduction Act: 

Description of Collection 

Title: Solid Waste Rail Transfer Facilities. 

OMB Control Number: ___–___. 

STB Form Number: None. 

Type of Review: New Collection. 

Respondents: Any applicant seeking a 

land-use-exemption permit, whether 

compelled by a Governor’s petition or 

through its own accord. 

Number of Respondents: Unknown; none 

mandated by the Board. 

Estimated Time Per Response: 160 hours. 

Frequency: 1. 

Total Burden Hours (annually including all 

respondents): 160 hours. 

Total ‘‘Non-hour Burden’’ Cost: An 

estimated cost of $50,000 to hire an 

environmental consultant to work with Board 

staff on the required environmental report. 

Needs and Uses: The information collected 

from applicants develops the record in landuse-exemption-permit proceedings, a process 

mandated by Congress in the CRA. The 

information gathered under the interim 

regulations is intended to permit the Board 

to accurately assess the merits of a permit 

application. 

Retention Period: Information in this report 

will be maintained on the Board’s Web site 

for a minimum of 1 year and will be 

otherwise maintained permanently. 

[FR Doc. 2011–6420 Filed 3–23–11; 8:45 am] 

BILLING CODE 4915–01–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 622 

[Docket No. 001005281–0369–02] 

RIN 0648–XA264 

Fisheries of the Caribbean, Gulf of 

Mexico, and South Atlantic; Coastal 

Migratory Pelagic Resources of the 

Gulf of Mexico and South Atlantic; 

Closure 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Temporary rule; closure. 

SUMMARY: NMFS closes the hook-andline component of the commercial 

sector for king mackerel in the southern 

Florida west coast subzone. This closure 

is necessary to protect the Gulf king 

mackerel resource. 

DATES: This rule is effective 12:01 a.m., 

local time, March 23, 2011, through 

June 30, 2011. 

FOR FURTHER INFORMATION CONTACT: 

Steve Branstetter, telephone: 727–824– 

5305, fax: 727–824–5308, e-mail: 

Steve.Branstetter@noaa.gov. 

SUPPLEMENTARY INFORMATION: The 

fishery for coastal migratory pelagic fish 

(king mackerel, Spanish mackerel, cero, 

cobia, little tunny, and, in the Gulf of 

Mexico only, dolphin and bluefish) is 

managed under the Fishery 

Management Plan for the Coastal 

Migratory Pelagic Resources of the Gulf 

of Mexico and South Atlantic (FMP). 

The FMP was prepared by the Gulf of 

Mexico and South Atlantic Fishery 

Management Councils (Councils) and is 

implemented under the authority of the 

Magnuson-Stevens Fishery 

Conservation and Management Act 

(Magnuson-Stevens Act) by regulations 

at 50 CFR part 622. 

On April 27, 2000, NMFS 

implemented the final rule (65 FR 

16336, March 28, 2000) that divided the 

Florida west coast subzone of the 

eastern zone into northern and southern 

subzones, and established their separate 

quotas. The king mackerel quota for the 

hook-and-line component of the 

commercial sector in the southern 

Florida west coast subzone is 520,312 lb 

(236,010 kg) (50 CFR 

622.42(c)(1)(i)(A)(2)(i)). 

Under 50 CFR 622.43(a), NMFS is 

required to close any segment of the 

king mackerel commercial sector when 

its quota has been reached, or is 

projected to be reached, by filing a 

notification with the Office of the 

Federal Register. NMFS has determined 

the commercial quota for Gulf group 

king mackerel in the southern Florida 

west coast subzone will be reached by 

March 23, 2011. Accordingly, the 

commercial sector for Gulf group king 

mackerel in the southern subzone is 

closed effective 12:01 a.m., local time, 

March 23, 2011, through June 30, 2011, 

the end of the fishing year. 

From November 1 through March 31, 

the southern subzone is that part of the 

Florida west coast subzone off Collier 

and Monroe Counties, Florida. This is 

the area south and west from 25°20.4′N. 

lat. (a line directly east from the MiamiDade/Monroe County boundary on the 

east coast of Florida) to 26°19.8′ N. lat. 

(a line directly west from the Lee/Collier 

County boundary on the west coast of 

Florida). Beginning April 1, the 

southern subzone is reduced to the area 

off Collier County, Florida, between 

25°48′ N. lat. and 26° 19.8′ N. lat. 

During the closure period, no person 

aboard a vessel for which a commercial 

permit for king mackerel has been 

issued may fish for or retain Gulf group 

king mackerel in Federal waters of the 

closed subzone. There is one exception, 

however, for a person aboard a charter 

vessel or headboat. A person aboard a 

vessel that has a valid charter/headboat 

permit and also has a commercial king 

mackerel permit for coastal migratory 

pelagic fish may continue to retain king 

mackerel in or from the closed subzone 

under the 2-fish daily bag limit, 

provided the vessel is operating as a 

charter vessel or headboat. Charter 

vessels or headboats that hold a 

commercial king mackerel permit are 

considered to be operating as a charter 

vessel or headboat when they carry a 

passenger who pays a fee or when more 

than three persons are aboard, including 

operator and crew. 

Classification 

This action responds to the best 

available information recently obtained 

from the fisheries. The Assistant 

Administrator for Fisheries, NOAA 

(AA), finds that the need to immediately 

implement this action to close the hookand-line component of the commercial 

sector for king mackerel in the southern 

Florida west coast subzone constitutes 

good cause to waive the requirements to 

provide prior notice and opportunity for 

public comment pursuant to the 

authority set forth at 5 U.S.C. 553(b)(B) 

as such prior notice and opportunity for 

public comment is unnecessary and 

contrary to the public interest. Such 

procedures would be unnecessary 

because the rule implementing the 

quota and the associated requirement 

for closure of the commercial harvest 

when the quota is reached or projected 

to be reached has already been subject 

to notice and comment, and all that 

remains is to notify the public of the 

closure. 

Allowing prior notice and 

opportunity for public comment on this 

action would be contrary to the public 

interest because any delay in the closure 

of the commercial harvest could result 

in the commercial quota being 

exceeded. There is a need to 

immediately implement this action to 

protect the king mackerel resource 

because the capacity of the fishing fleet 

allows for rapid harvest of the quota. 

Prior notice and opportunity for public 

comment would require time and would 

potentially result in a harvest well in 

excess of the established quota. 

For the aforementioned reasons, the 

AA also finds good cause to waive the 

30-day delay in the effectiveness of this 

action under 5 U.S.C. 553(d)(3). 

This action is taken under 50 CFR 

622.43(a) and is exempt from review 

under Executive Order 12866. 

Authority: 16 U.S.C. 1801 et seq. 


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