Federal Register / Vol. 77, No. 225 / Wednesday, November 21, 2012 / Rules and Regulations 69769 

DEPARTMENT OF TRANSPORTATION 

Office of the Secretary 

49 CFR Part 33 

[Docket No. OST 2010–0298] 

RIN 2105–AD83 

Prioritization and Allocation Authority 

Exercised by the Secretary of 

Transportation Under the Defense 

Production Act 

AGENCY: Office of the Secretary of 

Transportation (OST), DOT. 

ACTION: Confirmation of effective date. 

SUMMARY: On October 1, 2012, the 

Department published a final rule 

requesting comment at 77 FR 59793 to 

clarify the priorities and allocation 

authorities exercised by the Secretary of 

Transportation (Secretary) under title I 

of the Defense Production Act of 1950 

and to establish the administrative 

procedures by which the Secretary will 

exercise this authority. In the final rule, 

the Department requested comment on 

certain revised definitions found in 49 

CFR 33.20. No comments were received 

by the comment closing date of October 

31, 2012. As a result, this document 

confirms that the October 1 final rule 

will not be changed and its effective 

date is November 30, 2012. 

DATES: Effective Date: This document 

confirms that the Department’s final 

rule at 77 FR 59793 is effective on 

November 30, 2012. 

FOR FURTHER INFORMATION CONTACT: 

Donna L. O’Berry, Office of the General 

Counsel, Department of Transportation, 

1200 New Jersey Avenue SE., Room 

W96–320, Washington, DC 20590; 

telephone: (202) 366–6136; email: 

donna.o’berry@dot.gov. 

SUPPLEMENTARY INFORMATION: As the 

Department received no comments on 

its final rule published on October 1, 

2012, we are making no changes to the 

rule and its effective date is November 

30, 2012. 

Issued in Washington, DC, on November 

14, 2012. 

Ronald Jackson, 

Assistant General Counsel for Operations. 

[FR Doc. 2012–28303 Filed 11–20–12; 8:45 am] 

BILLING CODE 4910–9X–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: Final rules. 

SUMMARY: These final rules govern landuse-exemption permits for solid waste 

rail transfer facilities. The Clean 

Railroads Act of 2008 amended the U.S. 

Code to restrict the jurisdiction of the 

Surface Transportation Board over solid 

waste rail transfer facilities. The Act 

also added three new statutory 

provisions that address the Board’s 

regulation of such facilities, which is 

now limited to issuance of ‘‘land-useexemption permits’’ in certain 

circumstances. In 2009, as required by 

the Act, the Board issued interim rules. 

In 2011, based on the comments 

received and further evaluation, the 

Board revised the 2009 Rules and 

sought comments on the changes. After 

further evaluation and review of the 

comments received on the 2011 Rules, 

the Board now adopts the 2011 Rules as 

final rules with minor modification. 

DATES: These rules will be effective on 

December 21, 2012. 

FOR FURTHER INFORMATION CONTACT: 

Lucille Marvin, The Office of Public 

Assistance, Governmental Affairs, and 

Compliance, (202) 245–0238. Assistance 

for the hearing impaired is available 

through the Federal Information Relay 

Service (FIRS) at (800) 877–8339. 

SUPPLEMENTARY INFORMATION: The Clean 

Railroads Act of 2008, Public Law 110– 

432, 122 Stat. 4848, (CRA) amended 49 

U.S.C. 10501(c)(2) to restrict the 

jurisdiction of the Surface 

Transportation Board (Board or STB) 

over solid waste rail transfer facilities. 

The CRA also added three new statutory 

provisions—49 U.S.C. 10908–10910— 

that address the Board’s regulation of 

such facilities, which is now limited to 

issuance of ‘‘land-use-exemption 

permits’’ in certain circumstances. 

Under the CRA, 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 

CRA, the Board issued interim rules in 

a decision served January 14, 2009. 

Solid Waste Rail Transfer Facilities 

(2009 Decision), EP 684 (STB served Jan. 

14, 2009). Those interim rules were 

published in the Federal Register on 

January 27, 2009 (74 FR 4714) (2009 

Rules). Based on the comments received 

and further evaluation, the Board served 

a decision on March 11, 2011, which 

revised the 2009 Rules and sought 

comments on the changes. Solid Waste 

Rail Transfer Facilities (2011 Decision), 

EP 684 (STB served Mar. 11, 2011). The 

revised interim rules were published in 

the Federal Register on March 24, 2011 

(76 FR 16538) (2011 Rules). After 

further evaluation and review of the 

comments received on the 2011 Rules, 

the Board now adopts the 2011 Rules as 

final rules with minor modifications. 

The final rules are set forth below. 

Under 49 U.S.C. 10501(a), the Board 

has jurisdiction over ‘‘transportation by 

rail 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 

‘‘[t]he 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 or 

State law.’’ Prior to enactment of the 

CRA, 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 


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