Federal Register / Vol. 74, No. 78 / Friday, April 24, 2009 / Notices 18801 

1BNSF submits that the trackage rights being 

granted here are only temporary rights, but, because 

they are ‘‘local’’ rather than ‘‘overhead’’ rights, they 

do not qualify for the Board’s class exemption for 

temporary trackage rights at 49 CFR 1180.2(d)(8). 

See Railroad Consolidation Procedures, 6 S.T.B. 

910 (2003). Therefore, BNSF concurrently has filed 

a petition for partial revocation of this exemption 

in STB Finance Docket No. 35238 (Sub-No. 1), 

BNSF Railway Company—Temporary Trackage 

Rights Exemption—Union Pacific Railroad 

Company, wherein BNSF requests that the Board 

permit the proposed local trackage rights 

arrangement described in the present proceeding to 

expire at midnight on December 31, 2009, as 

provided in the parties’ agreement. The petition 

will be addressed by the Board in a separate 

decision. 

(3) Mail: U.S. Department of 

Transportation, 1200 New Jersey 

Avenue, SE., Docket Operations, M–30, 

Room W12–140, Washington, DC 

20590–0001. 

(4) Hand Delivery: Room W12–140 on 

the first floor of the West Building, 1200 

New Jersey Avenue, SE., Washington, 

DC 20590, between 9 a.m. and 5 p.m., 

Monday through Friday, except Federal 

holidays. 

Instructions: All submissions must 

make reference to the ‘‘Federal Transit 

Administration’’ and include docket 

number FTA–2009–0020. Due to 

security procedures in effect since 

October 2001, mail received through the 

U.S. Postal Service may be subject to 

delays. Parties making submissions 

responsive to this notice should 

consider using an express mail firm to 

ensure the prompt filing of any 

submissions not filed electronically or 

by hand. Note that all submissions 

received, including any personal 

information therein, will be posted 

without change or alteration to http:// 

www.regulations.gov. For more 

information, you may review DOT’s 

complete Privacy Act Statement in the 

Federal Register published on April 11, 

2000 (65 Fed. Reg. 19477), or visit 

www.regulations.gov. 

FOR FURTHER INFORMATION CONTACT: 

Jayme L. Blakesley at (202) 366–0304 or 

jayme.blakesley@dot.gov. 

SUPPLEMENTARY INFORMATION: 

The purpose of this notice is to seek 

public comment on whether the Federal 

Transit Administration should waive its 

Buy America requirements for six (6) 

rail car vehicles to be manufactured and 

assembled in Switzerland by Stadler 

Bussnang AG (Stadler) for the Capital 

Metropolitan Transportation Authority 

(Capital Metro) of Austin, Texas. 

Because Capital Metro has already 

awarded a contract to Stadler, it has 

asked for a post-award waiver. 

Capital Metro set forth the grounds for 

its request in a letter dated February 19, 

2009, a copy of which will be placed in 

the Docket: (1) Capital Metro acted in 

good faith when in 2006 it planned to 

use local sales tax revenues to fund its 

contract with Stadler; (2) Actual sales 

tax receipts are less than the amount 

estimated in 2006; and (3) Both offers 

submitted to Capital Metro proposed to 

manufacture and assemble the rail cars 

outside of the United States. 

Capital Metro structured the RFP as a 

locally funded procurement without 

including many of the standard Federal 

requirements like Buy America and 

Cargo Preference. Because of a drop in 

sales tax revenues, Capital Metro’s local 

revenue source, the feasibility of 

funding this procurement with local 

funds has been significantly 

diminished. For this reason, Capital 

Metro has decided to utilize Federal 

funds and to seek a Buy America waiver 

for this vehicle procurement. FTA notes 

that Capital Metro did not request, and 

did not receive, the Buy America 

certification forms that are required in 

federally funded procurements. 

With certain exceptions, FTA’s ‘‘Buy 

America’’ requirements prevent FTA 

from obligating an amount that may be 

appropriated to carry out its program for 

a project unless ‘‘the steel, iron, and 

manufactured goods used in the project 

are produced in the United States.’’ 49 

U.S.C. 5323(j)(1). One such exception is 

if ‘‘the steel, iron, and goods produced 

in the United States are not produced in 

a sufficient and reasonably available 

amount or are not of a satisfactory 

quality.’’ 49 U.S.C. 5323(j)(2)(B). 

Section 3023(i)(5)(C) of the Safe, 

Accountable, Flexible, Efficient 

Transportation Equity Act: A Legacy for 

Users (SAFETEA–LU) (Pub. L. 109–59) 

gave FTA the statutory authority to 

issue post-award waivers. This authority 

limits post-award waivers to nonavailability waivers only. Consequently, 

the only post-award waivers granted to 

date have been on the basis of nonavailability in cases in which the 

contractor has made a certification of 

compliance with the requirements in 

good faith but, for reasons not foreseen 

at the time of the initial RFP, 

compliance was rendered impossible or 

impracticable. 

‘‘In determining whether the 

conditions exist to grant a post-award 

non-availability waiver, [FTA] will 

consider all appropriate factors on a 

case-by-case basis.’’ 49 CFR 661.7(c)(3). 

Such factors will include ‘‘the status of 

other bidders or offerors who are Buy 

America compliant and can furnish 

domestic material or products on an 

FTA-funded project,’’ 72 Fed. Reg. 

53,691 (Sept. 20, 2007), and ‘‘may 

include project schedule and budget.’’ 

71 Fed. Reg. 69, 415 (Nov. 30, 2006). In 

addition, FTA will look to ‘‘existing 

precedents in public contracting law 

and practice.’’ 71 Fed. Reg. 69,416 (Nov. 

30, 2006). One such precedent is FTA’s 

recent decision to grant a post-award 

non-availability waiver to the Regional 

Transportation Commission of Southern 

Nevada in circumstances similar to 

Capital Metro’s request. 

FTA notes that, unlike with public 

interest waivers, it is not required to 

publish a notice in the Federal Register 

before waiving its Buy America 

requirements on the basis of nonavailability. In this instance, however, 

FTA is proceeding with an abundance 

of caution, given the unique 

circumstances by which a prospective 

FTA grantee issued a request for 

proposals without the inclusion of the 

traditional Buy America clause, 

intending to fully underwrite the 

contract using exclusively local funding. 

Therefore, in order to understand 

completely the facts surrounding 

Capital Metro’s request, FTA seeks 

comment from all interested parties. A 

full copy of Capital Metro’s petition has 

been placed in docket number FTA– 

2009–0020. Please submit comments by 

May 1, 2009. Late-filed comments will 

be considered to the extent practicable. 

Issued this 20th day of April 2009. 

Scott A. Biehl, 

Acting Chief Counsel. 

[FR Doc. E9–9467 Filed 4–23–09; 8:45 am] 

BILLING CODE 4910–57–P 

DEPARTMENT OF TRANSPORTATION 

Surface Transportation Board 

[STB Finance Docket No. 35238] 

BNSF Railway Company—Temporary 

Trackage Rights Exemption—Union 

Pacific Railroad Company 

Pursuant to a written trackage rights 

agreement dated January 20, 2009, 

Union Pacific Railroad Company (UP) 

has agreed to grant temporary local 

trackage rights to BNSF Railway 

Company (BNSF) over UP lines 

extending between: (1) UP milepost 93.2 

at Stockton, CA, on UP’s Oakland 

Subdivision, and UP milepost 219.4 at 

Elsey, CA, on UP’s Canyon Subdivision, 

a distance of approximately 126.2 miles; 

and (2) UP milepost 219.4 at Elsey, CA, 

and UP milepost 280.7 at Keddie, CA, 

on UP’s Canyon Subdivision, a distance 

of 61.3 miles.1

The transaction is scheduled to be 

consummated on or after May 9, 2009, 

the effective date of the exemption (30 

days after the exemption is filed). 

The trackage rights agreement will 

permit BNSF to move empty and loaded 

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18802 Federal Register / Vol. 74, No. 78 / Friday, April 24, 2009 / Notices 

1Union Pacific Railroad is the successor-ininterest to MP. 

2The NITU governing the rest of the line is not 

at issue here. 

3Port simultaneously filed a petition to vacate the 

NITU issued in Missouri Pacific Railroad Co. 

—Abandonment Exemption—In Muskogee, 

McIntosh and Haskell Counties, OK, Docket No. 

AB–3 (Sub-No. 104X) (ICC served Jan. 6, 1993). The 

petition will be addressed by the Board in a 

separate decision. 

ballast trains to and from the ballast pit 

at Elsey, CA, which is adjacent to the 

UP rail line. The trackage rights are 

temporary in nature and are scheduled 

to expire at midnight on December 31, 

2009. 

As a condition to this exemption, any 

employees affected by the trackage 

rights will be protected by the 

conditions imposed in Norfolk and 

Western Ry. Co.—Trackage Rights—BN, 

354 I.C.C. 605 (1978), as modified in 

Mendocino Coast Ry., Inc.—Lease and 

Operate, 360 I.C.C. 653 (1980). 

This notice is filed under 49 CFR 

1180.2(d)(7). If the notice contains false 

or misleading information, the 

exemption is void ab initio. Petitions to 

revoke the exemption under 49 U.S.C. 

10502(d) may be filed at any time. The 

filing of a petition to revoke will not 

automatically stay the effectiveness of 

the exemption. Stay petitions must be 

filed by May 1, 2009 (at least 7 days 

before the exemption becomes 

effective). 

Pursuant to the Consolidated 

Appropriations Act, 2008, Public Law 

No. 110–161, § 193, 121 Stat. 1844 

(2007), nothing in this decision 

authorizes the following activities at any 

solid waste rail transfer facility: 

collecting, storing, or transferring solid 

waste outside of its original shipping 

container; or separating or processing 

solid waste (including baling, crushing, 

compacting, and shredding). The term 

‘‘solid waste’’ is defined in section 1004 

of the Solid Waste Disposal Act, 42 

U.S.C. 6903. 

An original and 10 copies of all 

pleadings, referring to STB Finance 

Docket No. 35238, must be filed with 

the Surface Transportation Board, 395 E 

Street, SW., Washington, DC 20423– 

0001. In addition, a copy of each 

pleading must be served on Karl Morell, 

Of Counsel, Ball Janik LLP, Suite 225, 

1455 F Street, NW., Washington, DC 

20005. 

Board decisions and notices are 

available on our Web site at http:// 

www.stb.dot.gov. 

Decided: April 16, 2009. 

By the Board, Rachel D. Campbell, 

Director, Office of Proceedings. 

Kulunie L. Cannon, 

Clearance Clerk. 

[FR Doc. E9–9192 Filed 4–23–09; 8:45 am] 

BILLING CODE 4915–01–P 

DEPARTMENT OF TRANSPORTATION 

Surface Transportation Board 

[STB Finance Docket No. 35240] 

Muskogee City-County Port 

Authority—Operation Exemption—A 

Line of Railroad in Muskogee County, 

OK 

Muskogee City-County Port Authority 

(the Port), a non-carrier, has filed a 

verified notice of exemption under 49 

CFR 1150.31 to operate a 4.7-mile rail 

line extending from milepost 88.80, at 

or near Davis Field, to milepost 93.50, 

at or near Shopton, in Muskogee 

County, OK. 

On January 6, 1993, a decision and 

notice of interim trail use or 

abandonment (NITU) was served by the 

Board’s predecessor agency, the 

Interstate Commerce Commission, in 

Missouri Pacific Railroad Co. 

—Abandonment Exemption—In 

Muskogee, McIntosh and Haskell 

Counties, OK, Docket No. AB–3 (SubNo. 104X), establishing a 180-day period 

for Missouri Pacific Railroad Company 

(MP) 1 to negotiate an interim trail use/ 

rail banking agreement under the 

National Trails System Act, 16 U.S.C. 

1247(d) for a 43.0-mile rail line 

extending from milepost 93.50, at or 

near Shopton, to milepost 50.50, near 

Kerr McGee, in Muskogee, McIntosh, 

and Haskell Counties, OK. Trail 

negotiations were successful and an 

agreement for rail banking and interim 

trail use was reached in the Line 

Donation Contract (Contract) between 

MP, the Port, and Indian Nations 

Recreation Trail (INRT). Pursuant to that 

agreement, the Port obtained the right to 

use the 4.7-mile segment described 

above for rail banking and interim trail 

use.2 The Port now wishes to reactivate 

service over the 4.7 mile line segment.3

The Port certifies that its projected 

annual revenues as a result of this 

transaction will not result in the Port 

becoming a Class II or Class I rail carrier 

and further certifies that its projected 

annual revenues will not exceed $5 

million. 

The transaction is scheduled to be 

consummated on May 10, 2009, the 

effective date of the exemption (30 days 

after the exemption is filed). 

If the notice contains false or 

misleading information, the exemption 

is void ab initio. Petitions to revoke the 

exemption under 49 U.S.C. 10502(d) 

may be filed at any time. The filing of 

a petition to revoke does not 

automatically stay the transaction. 

Petitions for stay must be filed no later 

than May 1, 2009 (at least 7 days before 

the exemption becomes effective). 

An original and 10 copies of all 

pleadings, referring to STB Finance 

Docket No. 35240, must be filed with 

the Surface Transportation Board, 395 E 

Street, SW., Washington, DC 20423– 

0001. In addition, a copy of each 

pleading must be served on Jeffrey O. 

Moreno, 1920 N Street, NW., Suite 800, 

Washington, DC 20036–1601. 

Board decisions and notices are 

available on our Web site at http:// 

www.stb.dot.gov. 

Decided: April 21, 2009. 

By the Board, Rachel D. Campbell, 

Director, Office of Proceedings. 

Jeffrey Herzig, 

Clearance Clerk. 

[FR Doc. E9–9450 Filed 4–23–09; 8:45 am] 

BILLING CODE 4915–01–P 

DEPARTMENT OF TRANSPORTATION 

Federal Aviation Administration 

[Summary Notice No. PE–2009–16] 

Petition for Exemption; Summary of 

Petition Received 

AGENCY: Federal Aviation 

Administration (FAA), DOT. 

ACTION: Notice of petition for exemption 

received. 

SUMMARY: This notice contains a 

summary of a petition seeking relief 

from specified requirements of 14 CFR. 

The purpose of this notice is to improve 

the public’s awareness of, and 

participation in, this aspect of FAA’s 

regulatory activities. Neither publication 

of this notice nor the inclusion or 

omission of information in the summary 

is intended to affect the legal status of 

the petition or its final disposition. 

DATES: Comments on this petition must 

identify the petition docket number 

involved and must be received on or 

before May 14, 2009. 

ADDRESSES: You may send comments 

identified by Docket Number FAA– 

2009–0084 using any of the following 

methods: 

• Government-wide rulemaking Web 

site: Go to http://www.regulations.gov 

and follow the instructions for sending 

your comments electronically. 

• Mail: Send comments to the Docket 

Management Facility; U.S. Department 

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