[Federal Register Volume 74, Number 244 (Tuesday, December 22, 2009)]
[Notices]
[Pages 68097-68098]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-30358]
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DEPARTMENT OF TRANSPORTATION
Surface Transportation Board
[STB Ex Parte No. 684]
Solid Waste Rail Transfer Facilities
AGENCY: Surface Transportation Board.
ACTION: Notice.
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SUMMARY: This decision provides the factual basis for the Board's
certification under 5 U.S.C. 605(b) of the Regulatory Flexibility Act
that the interim rules governing the submission and review of
applications for land-use-exemption permits and related filings under
49 CFR 1155 will not have a significant economic impact on a
substantial number of small entities.
DATES: Comments on the factual basis for the Board's Regulatory
Flexibility Act certification are due by January 6, 2010, and reply
comments are due by January 19, 2010.
ADDRESSES: Comments may be submitted either via the Board's e-filing
format or in the traditional paper format. Any person using e-filing
should attach a document and otherwise comply with the instructions at
the E-FILING link on the Board's Web site, at 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:
STB Ex Parte No. 684, 395 E Street, SW., Washington, DC 20423-0001.
Copies of written comments will be available for viewing and self-
copying at the Board's Public Docket Room, Room 131, and will be posted
to the Board's Web site.
FOR FURTHER INFORMATION CONTACT: Valerie Quinn at (202) 245-0382.
Assistance for the hearing impaired is available through the Federal
Information Relay Service (FIRS) at 1-800-877-8339.
SUPPLEMENTARY INFORMATION: The Clean Railroads Act of 2008, Public Law
No. 110-432, 122 Stat. 4848 (Clean Railroads Act or CRA), enacted
October 16, 2008, removed from the jurisdiction of the Surface
Transportation Board the regulation of solid waste rail transfer
facilities,\1\ except as provided for in that act. The CRA limited the
Board's authority with regard to solid waste rail transfer facilities
to the issuance of land-use-exemption permits, a license that preempts
a facility from compliance with state laws, regulations, orders, and
other requirements affecting the siting of the facility.\2\ On January
14, 2009, the Board served a notice of proposed rulemaking that set
forth proposed procedures governing the submission and review of
applications for land-use-exemption permits and related filings. See
Solid Waste Rail Transfer Facilities, STB Ex Parte No. 684 (STB served
Jan. 14, 2009) (January 14 Notice). Pursuant to 49 U.S.C. 10909(b),
those proposed rules serve as the current interim rules.
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\1\ The CRA defines a solid waste transfer facility as including
the portion of a facility: (1) That is owned or operated by or on
behalf of a rail carrier; (2) where solid waste is treated as a
commodity transported for a charge; (3) where the solid waste is
collected, stored, separated, processed, treated, managed, disposed
of, or transferred; and (4) to the extent that solid-waste activity
is conducted outside of the original shipping container. 49 U.S.C.
10908(e)(1)(H)(i).
\2\ The Board, however, has the authority to require as a
condition of the permit compliance with State laws, regulations,
orders, and other requirements that affect the siting of a facility.
49 U.S.C. 10909(f).
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In accordance with 5 U.S.C. 605(b) of the Regulatory Flexibility
Act, we certified in the January 14 Notice that the proposed action
would not have a significant economic impact on a substantial number of
small entities. The Board also sought comment on the interim rules and
the Board's interpretation of the CRA. During the time period allotted
for comments, we received a request that we publish the factual basis
for our certification and allow comments on it. See Salem Rail
Logistics Comments at 3.
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, generally
requires a description and analysis of new rules that will have a
significant economic impact on a substantial number of small entities.
In drafting a rule an agency is required to: (1) Assess the effect that
its regulation will have on small entities; (2) analyze effective
alternatives that may minimize a regulation's impact; and (3) make the
analysis available for public comment. 5 U.S.C. 601-604. When proposing
new rules, the agency must either include an initial regulatory
flexibility analysis, 5 U.S.C. 603(a), or certify that the proposed
rule will not have a ``significant impact on a substantial number of
small entities,'' 5 U.S.C. 605(b). The impact must be a direct impact
on small entities ``whose conduct is circumscribed or mandated'' by the
proposed rule. White Eagle Coop. Ass'n v. Conner, 553 F.3d 467, 480
(7th Cir. 2009).
In the January 14 Notice, the Board certified that the interim
rules would not have a significant economic impact on a substantial
number of small entities. The basis for that determination is as
follows. While applicants for land-use-exemption permits could be small
entities, as defined in 13 CFR Part 121, nothing in the interim rules
gives the
[[Page 68098]]
Board the authority, on its own volition, to require a party to apply
for a Board permit. See 49 U.S.C. 10908(b)(2)(B), 10909(a); January 14
Notice, slip op. at 8-9. In general, that decision is solely within the
control of the entity. The one exception is that a governor of the
State in which an existing facility is located could petition the Board
under 49 CFR 1155 Subpart B to require that facility to obtain a land-
use-exemption permit in order for it to continue to operate. 49 U.S.C.
10908(b)(2)(B). But even in that circumstance, the authority lies with
the State governors--not the Board--to initiate the Board's processes.
Id. In all other scenarios, a party can avoid being subject to the
Board's rules regarding land-use-exemption permits by complying with
State requirements. Therefore, the interim rules will not circumscribe
or mandate the conduct of a substantial number of small entities.
Moreover, there are no alternatives to the interim rules that would
adequately achieve the objectives of the Clean Railroads Act. The only
scenario in which a small entity might be compelled to avail itself of
the new Board processes (when a State governor has properly petitioned
the Board under 49 CFR 1155 Subpart B) must be included in the new
rules because it is specifically required under the CRA. 49 U.S.C.
10908(b)(2)(B). Finally, we have provided a waiver provision that could
mitigate any significant negative impact on small entities--an
applicant may request a waiver of any particular part of the
application procedures. See 49 CFR 1155.24(d)(2).
Pursuant to 5 U.S.C. 605(b), the factual basis for the
certification that the regulations proposed in the January 14 Notice
will not have a significant economic impact on a substantial number of
small entities within the meaning of the Regulatory Flexibility Act has
hereby been provided. Comments regarding this certification and its
factual basis as described in this decision will be due by January 6,
2010, and replies to those comments will be due by January 19, 2010. A
copy of the Board's decision will be served upon the Chief Counsel for
Advocacy, Offices of Advocacy, U.S. Small Business Administration,
Washington, DC 20416.
This action will not significantly affect either the quality of the
human environment or the conservation of energy resources.
By the Board, Chairman Elliott, Vice Chairman Nottingham, and
Commissioner Mulvey.
Jeffrey Herzig,
Clearance Clerk.
[FR Doc. E9-30358 Filed 12-21-09; 8:45 am]
BILLING CODE 4915-01-P