Federal Register Notice

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TABLE 1—WASTES EXCLUDED FROM NON-SPECIFIC SOURCES
Facility

Address

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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’’.

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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

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[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.

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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

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Waste description

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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.

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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
DATES:

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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
1 The 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).
2 The decision accompanying the 2009 interim
rules contains a more detailed discussion of the

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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
CRA and the Board’s initial implementation of that
act.
3 The 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.
4 An 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.

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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

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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:

■

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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,

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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

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§ 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.

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(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

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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:

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(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

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

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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

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16543

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

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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.

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§ 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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(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

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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

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16545

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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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

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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

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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.

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

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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.

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FOR FURTHER INFORMATION CONTACT:
Steve Branstetter, telephone: 727–824–
5305, fax: 727–824–5308, e-mail:
[email protected].

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

SUPPLEMENTARY INFORMATION:

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16547

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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