Federal Register / Vol. 74, No. 121 / Thursday, June 25, 2009 / Rules and Regulations 30237 

Executive Order 13175 (65 FR 67249, 

November 9, 2000), because the SIP is 

not approved to apply in Indian country 

located in the state, and EPA notes that 

it will not impose substantial direct 

costs on tribal governments or preempt 

tribal law. 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this action and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a ‘‘major rule’’ as 

defined by 5 U.S.C. 804(2). 

Under section 307(b)(1) of the CAA, 

petitions for judicial review of this 

action must be filed in the United States 

Court of Appeals for the appropriate 

circuit by August 24, 2009. Filing a 

petition for reconsideration by the 

Administrator of this final rule does not 

affect the finality of this action for the 

purposes of judicial review nor does it 

extend the time within which a petition 

for judicial review may be filed, and 

shall not postpone the effectiveness of 

such rule or action. Parties with 

objections to this direct final rule are 

encouraged to file a comment in 

response to the parallel notice of 

proposed rulemaking for this action 

published in the proposed rules section 

of today’s Federal Register, rather than 

file an immediate petition for judicial 

review of this direct final rule, so that 

EPA can withdraw this direct final rule 

and address the comment in the 

proposed rulemaking. This action may 

not be challenged later in proceedings to 

enforce its requirements. (See section 

307(b)(2).) 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Carbon monoxide, 

Incorporation by reference, Ozone, 

Particulate matter. 

Dated: June 15, 2009. 

Beverly H. Banister, 

Acting Regional Administrator, Region 4. 

■ 40 CFR part 52 is amended as follows: 

PART 52—[AMENDED] 

■ 1. The authority citation for part 52 

continues to read as follows: 

Authority: 42 U.S.C. 7401 et seq. 

Subpart RR—Tennessee 

■ 2. Section 52.2220(c) Table 3 is 

amended by revising the entry for 

Section 25.0 to read as follows: 

§ 52.2220 Identification of plan. 

* * * * * 

(c) * * * 

TABLE 3—EPA APPROVED KNOX COUNTY, REGULATIONS

State citation Title/subject State effective date EPA approval date Explanation 

* * * * * * * 

Section 25.0 ............................. Permits .................................... January 16, 2008 .................... June 25, 2009 [Insert citation 

of publication].

* * * * * * * 

* * * * * 

[FR Doc. E9–14873 Filed 6–24–09; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF TRANSPORTATION 

Federal Transit Administration 

49 CFR Part 661 

[Docket No. FTA–2008–0057] 

RIN 2132–AA99 

Buy America Requirements; Bi-Metallic 

Composite Conducting Rail 

AGENCY: Federal Transit Administration 

(FTA), DOT. 

ACTION: Final rule; correcting 

amendment. 

SUMMARY: Following the two recent Buy 

America rulemakings pursuant to the 

Safe, Accountable, Flexible, Efficient 

Transportation Equity Act: A Legacy for 

Users (SAFETEA–LU), the Federal 

Transit Administration (FTA) received a 

petition for reconsideration of the 

treatment of bi-metallic composite 

conducting rail as a steel product that 

must be manufactured in the United 

States. 

Because FTA believed adopting the 

petitions through a Final Rule would 

have altered the regulatory environment 

without notice-and-comment from all 

affected parties who may have been 

unaware of the petition, FTA declined 

to accept the petition and instead issued 

a Notice of Proposed Rulemaking. 

Through this Final Rule, FTA is 

amending its Buy America regulation to 

include bi-metallic composite 

conducting rail on the list of traction 

power equipment. As such, bi-metallic 

rail need only consist of 60 percent 

domestic content, with final assembly 

taking place in the United States. 

In addition, FTA is amending 

Appendix A of section 661.7 to restore 

the public interest waivers for small 

purchases which was inadvertently 

deleted and to update a cross reference 

to the list of products exempted under 

the Buy American Act of 1933, and 

amending statutory references in the 

compliance certifications in section 

661.12 

DATES: Effective Date: July 27, 2009. 

FOR FURTHER INFORMATION CONTACT: 

Richard L. Wong, Office of the Chief 

Counsel, Federal Transit 

Administration, 1200 New Jersey 

Avenue, SE., Washington, DC 20590, 

(202) 366–4011 or 

Richard.Wong@dot.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

On November 24, 2008, FTA 

published a Notice of Proposed 

Rulemaking (NPRM) (73 FR 70950) 

seeking public comment whether bimetallic rail used as part of a power 

traction system should continue to be 

treated as a steel or iron product under 

section 661.3, a manufactured product 

under section 661.5, or traction power 

equipment under section 661.11(v). This 

was the outgrowth of a previous Buy 

America rulemaking (70 FR 71246) in 

which the Federal Transit 

Administration (FTA) discussed several 

proposals mandated by the Safe, 

Accountable, Flexible, Efficient 

Transportation Equity Act: A Legacy for 

Users (SAFETEA–LU) (Pub L. 109–59), 


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30238 Federal Register / Vol. 74, No. 121 / Thursday, June 25, 2009 / Rules and Regulations 

proposing to make conforming 

amendments to its Buy America 

regulation (49 CFR part 661). 

During the earlier open comment 

period, several commenter 

recommended that aluminum composite 

conducting rail, otherwise known as 

Bimetallic Power Transmission (BPTS) 

equipment, which is a combination of 

an aluminum conductor and a stainless 

steel abrasion-resistant cap, be added to 

the list of traction power equipment in 

49 CFR 661.11(v) because of its powerdelivery function as part of the traction 

power system. However, FTA’s current 

regulation at 49 CFR 661.11(w) stated 

that ‘‘[t]he power or third rail is not 

considered traction power equipment 

and is thus subject to the requirements 

of 49 U.S.C. 5323(j) and the 

requirements of 49 CFR 661.5.’’ In other 

words, any rail used to provide power 

must be produced in the United States, 

which includes all manufacturing 

processes except for metallurgical 

processes involving refinement of steel 

additives. 

According to commenters who 

supported the proposal, BPTS is a ‘‘new 

power transmission product developed 

to address the needs of modern traction 

power systems’’ that offers a higher 

conductivity (2.5 times greater) 

combined with a lighter weight (three 

times lighter) when compared with 

steel. They stated that BPTS is part of 

an ‘‘integrated electrical transmission 

system or an integrated equipment 

configuration rather than a third rail’’ 

and that FTA needed to update its 

regulations to reflect changes in new 

technology. 

The November 2005 NPRM only 

asked whether enumerated items on an 

FTA-developed list should be added to 

the list of traction power equipment in 

section 661.11(v). The petitioners’ 

recommendation, if adopted, not only 

would have amended section 661.11(v) 

to include an item not proposed in the 

initial NPRM but also would have 

required a modification to the regulatory 

classification of rail in section 661.5 of 

the existing rule. Adopting these 

changes which were not proposed in the 

NPRM would not have provided other 

parties, specifically, firms 

manufacturing other types of powerconducting rail, to comment on the 

treatment of BPTS. Therefore, in the 

interest of fairness, FTA declined to 

make such a change in the 2007 Final 

Rule and instead published the 

subsequent NPRM (73 FR 70950, Nov. 

24, 2008). 

II. Comments Received 

FTA received three comments in 

response to the NPRM. One commenter, 

a vendor of power rail equipment, asked 

whether a supplier of bi-metallic rail 

had sought the change and asked FTA 

to divulge the identity of the requestor. 

FTA believes that the identity of a 

requestor was not germane to the 

proposed rule, which should be 

evaluated on its merits and not on the 

identity of any petitioner. Moreover, the 

identity of possible petitioners could 

have been readily ascertained by 

reviewing the docket comments 

submitted during the two previous Buy 

America rulemakings. 

Another commenter noted that the list 

of manufactured products in the 

proposed Appendix A to section 661.3 

did not accurately reflect the current 

treatment of ‘‘systems’’ as redefined in 

FTA’s September 2007 Final Rule. The 

text of the revised Appendix A has been 

revised accordingly. 

A public transportation trade 

association, writing on behalf of its 

1,500 member organizations, 

commended FTA on its commitment to 

follow through on the comments filed 

during the previous rulemaking and 

raising the issue in a forum for proper 

consideration by the industry and 

public like. The association reiterated 

its support for the amendment as 

expressed in its earlier public comments 

to the docket, noting that virtually every 

product on the list of traction power 

equipment is a manufactured product 

and that FTA needed to differentiate 

between conventional steel conducting 

rail and bi-metallic conducting rail. 

In light of the lack of any objections 

to the NPRM, and the strong and 

consistent support of the member-based 

trade association, FTA is amending its 

regulation as proposed in the NPRM. 

After publication of the September 

2007 Final Rule, FTA was informed of 

the need to make two technical 

corrections to Appendix A to § 661.7. 

First, the cross-reference in paragraph 

(a) to the list of items exempted under 

the Federal Buy American Act of 1933 

needed to be updated to reflect the 

current regulatory citation. Accordingly, 

the citation is being changed from 48 

CFR 25.108 to 48 CFR 25.104. Second, 

the standing public interest waiver for 

small purchases (60 FR 37930, July 24, 

1995) was inadvertently deleted during 

the earlier rulemakings. While it was 

clear from the statute that Congress 

intended for FTA to rescind its public 

interest waiver for 15-passenger vans, 

there is nothing in the record that 

indicates any intent to rescind the small 

purchase exemption. Therefore, FTA is 

restoring the small purchase exemption 

as paragraph (c). 

Regulatory Analyses and Notices 

A. Statutory/Legal Authority 

Executive Order 12866 and DOT 

Regulatory Policies and Procedures 

This NPRM is a nonsignificant 

regulatory action under section 3(f) of 

Executive Order 12866 and, therefore, 

was not reviewed by the Office of 

Management and Budget. This NPRM is 

also nonsignificant under the Regulatory 

Policies and Procedures of the 

Department of Transportation (44 FR 

11034, Feb. 26, 1979). This NPRM 

imposes no new compliance costs on 

the regulated industry. 

B. Executive Order 13132 

This NPRM has been analyzed in 

accordance with the principles and 

criteria contained in Executive Order 

13132 (‘‘Federalism’’). This NPRM does 

not include any regulation that has 

substantial direct effects on the States, 

the relationship between the national 

government and the States, or the 

distribution of power and 

responsibilities among the various 

levels of government. Therefore, the 

consultation and funding requirements 

of Executive Order 13132 do not apply. 

C. Executive Order 13175 

This NPRM has been analyzed in 

accordance with the principles and 

criteria contained in Executive Order 

13175 (‘‘Consultation and Coordination 

with Indian Tribal Governments’’). 

Because this NPRM does not have tribal 

implications and does not impose direct 

compliance costs, the funding and 

consultation requirements of Executive 

Order 13175 do not apply. 

D. Regulatory Flexibility Act and 

Executive Order 13272 

The Regulatory Flexibility Act (5 

U.S.C. 601–611) requires each agency to 

analyze regulations and proposals to 

assess their impact on small businesses 

and other small entities to determine 

whether the rule or proposal will have 

a significant economic impact on a 

substantial number of small entities. 

This NPRM imposes no new costs. 

Therefore, FTA certifies that this 

proposal does not require further 

analysis under the Regulatory 

Flexibility Act. FTA requests public 

comment on whether the proposals 

contained in this NPRM have a 

significant economic impact on a 

substantial number of small entities. 

E. Unfunded Mandates Reform Act of 

1995 

This NPRM does not propose 

unfunded mandates under the 

Unfunded Mandates Reform Act of 


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Federal Register / Vol. 74, No. 121 / Thursday, June 25, 2009 / Rules and Regulations 30239 

1995. If the proposals are adopted into 

a final rule, it will not result in costs of 

$100 million or more (adjusted annually 

for inflation), in the aggregate, to any of 

the following: State, local, or Native 

American tribal governments, or the 

private sector. 

F. Paperwork Reduction Act 

This NPRM proposes no new 

information collection requirements. 

G. Regulation Identifier Number (RIN) 

A regulation identifier number (RIN) 

is assigned to each regulatory action 

listed in the Unified Agenda of Federal 

Regulations. The Regulatory Information 

Service Center publishes the Unified 

Agenda in April and October of each 

year. The RIN number contained in the 

heading of this document may be used 

to cross-reference this action with the 

Unified Agenda. 

H. Environmental Assessment 

The National Environmental Policy 

Act of 1969 (NEPA), as amended (42 

U.S.C. 4321–4347), requires Federal 

agencies to consider the consequences 

of major Federal actions and prepare a 

detailed statement on actions 

significantly affecting the quality of the 

human environment. There are no 

significant environmental impacts 

associated with this NPRM. 

I. Privacy Act 

Anyone is able to search the 

electronic form for all comments 

received into any of our dockets by the 

name of the individual submitting the 

comments (or signing the comment, if 

submitted on behalf of an association, 

business, labor union, etc.). You may 

review DOT’s complete Privacy Act 

Statement in the Federal Register 

published on April 11, 2000 (Volume 

65, Number 70; Pages 19477–78) or you 

may visit http://DocketsInfo.dot.gov. 

List of Subjects in 49 CFR Part 661 

Grant programs—transportation, 

Public transportation, Reporting and 

recordkeeping requirements. 

■ Accordingly, for the reasons described 

in the preamble, 49 CFR part 661 of the 

Code of Federal Regulations is amended 

as follows: 

PART 661—BUY AMERICA 

■ 1. The authority citation for part 661 

continues to read as follows: 

Authority: 49 U.S.C. 5323(j) (formerly sec. 

165, Pub. L. 97–424; as amended by sec.337, 

Pub. L. 100–17; sec.1048, Pub. L. 102–240; 

sec. 3020(b), Pub. L. 105–178; and sec. 

3023(i) and (k), Pub. L. 109–59); 49 CFR 1.51. 

■ 2. In § 661.3, revise Appendix A to 

§ 661.3 to read as follows: 

§ 661.3 Definitions. 

* * * * * 

Appendix A to § 661.3—End Products 

The following is a list of representative end 

products that are subject to the requirements 

of Buy America. This list is representative, 

not exhaustive. 

(1) Rolling stock end products: All 

individual items identified as rolling stock in 

§ 661.3 (e.g., buses, vans, cars, railcars, 

locomotives, trolley cars and buses, ferry 

boats, as well as vehicles used for support 

services); train control, communication, and 

traction power equipment that meets the 

definition of end product at § 661.3 (e.g., a 

communication or traction power system, 

including manufactured bimetallic power 

rail). 

(2) Steel and iron end products: Items 

made primarily of steel or iron such as 

structures, bridges, and track work, including 

running rail, contact rail, and turnouts. 

(3) Manufactured end products: 

Infrastructure projects not made primarily of 

steel or iron, including structures (terminals, 

depots, garages, and bus shelters), ties and 

ballast; contact rail not made primarily of 

steel or iron; fare collection systems; 

computers; information systems; security 

systems; data processing systems; and mobile 

lifts, hoists, and elevators. 

■ 3. In § 661.5, revise paragraph (c) to 

read as follows: 

§ 661.5 General requirements. 

* * * * * 

(c) The steel and iron requirements 

apply to all construction materials made 

primarily of steel or iron and used in 

infrastructure projects such as transit or 

maintenance facilities, rail lines, and 

bridges. These items include, but are not 

limited to, structural steel or iron, steel 

or iron beams and columns, running rail 

and contact rail. These requirements do 

not apply to steel or iron used as 

components or subcomponents of other 

manufactured products or rolling stock, 

or to bimetallic power rail incorporating 

steel or iron components. 

* * * * * 

■ 4. In § 661.7, revise Appendix A to 

§ 661.7 to read as follows: 

§ 661.7 Waivers. 

* * * * * 

Appendix A to § 661.7—General 

Waivers 

(a) All waivers published in 48 CFR 25.104 

which establish excepted articles, materials, 

and supplies for the Buy American Act of 

1933 (41 U.S.C. 10a–d), as the waivers may 

be amended from time to time, apply to this 

part under the provisions of § 661.7 (b) and 

(c). 

(b) Under the provisions of § 661.7 (b) and 

(c) of this part, a general public interest 

waiver from the Buy America requirements 

applies to microprocessors, computers, 

microcomputers, or software, or other such 

devices, which are used solely for the 

purpose of processing or storing data. This 

general waiver does not extend to a product 

or device which merely contains a 

microprocessor or microcomputer and is not 

used solely for the purpose of processing or 

storing data. 

(c) Under the provisions of § 661.7(b) of 

this part, a general public interest waiver 

from the Buy America requirements for 

‘‘small purchases’’ (as defined in the 

‘‘common grant rule,’’ at 49 CFR 18.36(d)) 

made by FTA grantees with capital, planning, 

or operating assistance. 

■ 5. Amend § 661.11 by adding 

paragraph (v)(31) to read as follows: 

§ 661.11 Rolling stock procurements. 

(v) * * * 

(31) Bimetallic power rail. 

* * * * * 

■ 6. Amend § 661.12 by removing the 

phrase ‘‘section 165(b)(2) or (b)(4) of the 

Surface Transportation Assistance Act, 

as amended’’ and add in its place the 

phrase ‘‘49 U.S.C. 5323(j)(2)(C)’’. 

Issued in Washington, DC, this 18th day of 

June, 2009. 

Matthew Welbes, 

Executive Director. 

[FR Doc. E9–14703 Filed 6–24–09; 8:45 am] 

BILLING CODE 4910–57–P 


sroberts on PROD1PC70 with RULES