Decision To Rescind Buy America Waiver for Minivans and Minivan Chassis, 71673-71678 [2012-29129]

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Download as PDF emcdonald on DSK67QTVN1PROD with NOTICES Federal Register / Vol. 77, No. 232 / Monday, December 3, 2012 / Notices interstate operations, involves substantial driving on highways on the interstate system and on other roads built to interstate standards. Moreover, driving in congested urban areas exposes the driver to more pedestrian and vehicular traffic than exists on interstate highways. Faster reaction to traffic and traffic signals is generally required because distances between them are more compact. These conditions tax visual capacity and driver response just as intensely as interstate driving conditions. The veteran drivers in this proceeding have operated CMVs safely under those conditions for at least 3 years, most for much longer. Their experience and driving records lead us to believe that each applicant is capable of operating in interstate commerce as safely as he/she has been performing in intrastate commerce. Consequently, FMCSA finds that exempting these applicants from the vision requirement in 49 CFR 391.41(b)(10) is likely to achieve a level of safety equal to that existing without the exemption. For this reason, the Agency is granting the exemptions for the 2-year period allowed by 49 U.S.C. 31136(e) and 31315 to the 15 applicants listed in the notice of October 1, 2012 (77 FR 60008). We recognize that the vision of an applicant may change and affect his/her ability to operate a CMV as safely as in the past. As a condition of the exemption, therefore, FMCSA will impose requirements on the 15 individuals consistent with the grandfathering provisions applied to drivers who participated in the Agency’s vision waiver program. Those requirements are found at 49 CFR 391.64(b) and include the following: (1) That each individual be physically examined every year (a) by an ophthalmologist or optometrist who attests that the vision in the better eye continues to meet the requirement in 49 CFR 391.41(b)(10) and (b) by a medical examiner who attests that the individual is otherwise physically qualified under 49 CFR 391.41; (2) that each individual provide a copy of the ophthalmologist’s or optometrist’s report to the medical examiner at the time of the annual medical examination; and (3) that each individual provide a copy of the annual medical certification to the employer for retention in the driver’s qualification file, or keep a copy in his/her driver’s qualification file if he/she is selfemployed. The driver must have a copy of the certification when driving, for presentation to a duly authorized Federal, State, or local enforcement official. VerDate Mar<15>2010 14:30 Nov 30, 2012 Jkt 229001 Discussion of Comments FMCSA received no comments in this proceeding. Conclusion Based upon its evaluation of the 15 exemption applications, FMCSA exempts Deurice K. Dean (MD), Terry J. Edwards (MO), Raymundo Flores (TX), Charles F. Huffman (WA), Ivaylo V. Kanchev (FL), Charlie C. Kimmel (TX), Laine Lewin (MN), Jimmy R. Mauldin (OK), Johnny Montemayor (TX), Christopher S. Morgan (LA), William T. Owens (VA), Jeffrey S. Pennell (VT), Donald R. Strickland (NC), Vaughn J. Suhling (IL), and Max A. Thurman (IL) from the vision requirement in 49 CFR 391.41(b)(10), subject to the requirements cited above (49 CFR 391.64(b)). In accordance with 49 U.S.C. 31136(e) and 31315, each exemption will be valid for 2 years unless revoked earlier by FMCSA. The exemption will be revoked if: (1) The person fails to comply with the terms and conditions of the exemption; (2) the exemption has resulted in a lower level of safety than was maintained before it was granted; or (3) continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136 and 31315. If the exemption is still effective at the end of the 2-year period, the person may apply to FMCSA for a renewal under procedures in effect at that time. Issued on: November 23, 2012. Larry W. Minor, Associate Administrator for Policy. [FR Doc. 2012–29160 Filed 11–30–12; 8:45 am] BILLING CODE 4910–EX–P DEPARTMENT OF TRANSPORTATION Federal Transit Administration [Docket No. FTA–2012–0029] Decision To Rescind Buy America Waiver for Minivans and Minivan Chassis AGENCY: Federal Transit Administration, DOT. Decision on request to rescind Buy America waiver. ACTION: On June 21, 2010, the Federal Transit Administration waived its Buy America final assembly requirement for minivans and minivan chassis after confirming that no manufacturer was willing and able to supply minivans or minivan chassis that were assembled in the United States. Now, FTA rescinds the waiver after confirming that the Vehicle Production Group has started SUMMARY: PO 00000 Frm 00101 Fmt 4703 Sfmt 4703 71673 producing a substantially similar vehicle, the MV–1, in the United States. FOR FURTHER INFORMATION CONTACT: Mary J. Lee at (202) 366–0985 or mary.j.lee@dot.gov. SUPPLEMENTARY INFORMATION: I. Background The Vehicle Production Group (VPG) petitioned the Federal Transit Administration (FTA) to rescind the non-availability waiver it issued on June 21, 2010 (75 FR 35123). The waiver exempted minivans and minivan chassis from the Buy America final assembly requirement outlined at 49 CFR part 661, stating that it would remain in effect until such a time as a domestic source became available. With few exceptions, FTA’s Buy America requirements prevent FTA from obligating an amount that may be appropriated to carry out its programs 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). For FTA-funded rolling stock procurements, the Buy America requirements are two-fold: (1) At least 60 percent of the components, by dollar value, must be produced in the United States; and (2) final assembly must occur in the United States. 49 U.S.C. 5323(j). An exception to, or waiver of, the Buy America rules is allowed 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). On June 21, 2010, in response to formal requests from ElDorado National, Kansas (ElDorado) and the Chrysler Group LLC (Chrysler), and after ascertaining through notice and comment that no manufacturer of minivans or minivan chassis performed final assembly in the United States, FTA waived its Buy America final assembly requirement for minivans and minivan chassis. 75 FR 35123. When FTA waived the final assembly requirement for minivans, it declined to define the term ‘‘minivan.’’ FTA’s reluctance to define the term stemmed from its understanding that (1) among the various classifications used by Federal regulatory agencies, minivans like the Chrysler Town and Country, and Dodge Caravan were not uniformly placed in the same class of vehicles; 1 1 There is no uniform definition or classification for minivans. The closest things to a definition of a vehicle type, like ‘‘minivan,’’ are the classifications used by the National Highway Traffic Safety Administration (NHTSA) and the E:\FR\FM\03DEN1.SGM Continued 03DEN1 71674 Federal Register / Vol. 77, No. 232 / Monday, December 3, 2012 / Notices emcdonald on DSK67QTVN1PROD with NOTICES and (2) interested parties understood the waiver would apply to the type of vehicle produced by the parties that petitioned FTA—Chrysler and ElDorado.2 Because there is no uniform definition or classification for ‘‘minivan,’’ and FTA grantees understood that the waiver would apply to vehicles similar to those produced by Chrysler and ElDorado, FTA declined to create a new definition or classification. Recently, an original equipment manufacturer called the Vehicle Production Group (VPG) started producing a six-passenger vehicle called the Mobility Vehicle 1 (MV–1). The MV–1 is a purpose-built, wheelchairaccessible vehicle that is substantially similar to a minivan. According to VPG sales materials, the MV–1 seats up to six adults, with one full-size wheelchair. Wheelchairs enter the MV–1 via a ramp that stows under the vehicle and deploys to the passenger side. It is available with a Ford Modular 4.6 liter V8 engine and can be purchased with an engine that runs on gasoline or compressed natural gas (CNG). AM General LLC (AM General) assembles the MV–1 at its plant in Mishawaka, Indiana. VPG certifies that the MV–1 complies with Buy America requirements for both domestic content and final assembly. Moreover, VPG maintains that it manufactures the MV– 1 in sufficient quantity to meet the current and future demand on FTAfunded projects. Based on the fact that it produces the MV–1 in the United States, VPG petitioned FTA to rescind the Buy America final assembly waiver it issued on June 21, 2010, for minivans and minivan chassis. Pursuant to VPG’s request, FTA published a notice in the Federal Register on August 3, 2012, calling for comments on VPG’s request to rescind the 2010 Buy America waiver for minivans and minivan chassis. 75 FR 35124. FTA sought comment from all Environmental Protection Agency (EPA) to regulate safety and control emissions. However, NHTSA’s classifications do not uniformly group vehicles from one regulation to the next. For example, under NHTSA’s Corporate Average Fuel Economy (CAFE) standards, most ‘‘minivans,’’ like Chrysler’s Town and Country, fall under the class of ‘‘light trucks.’’ However, when regulating safety, the same vehicle is classified as a ‘‘multipurpose passenger vehicle,’’ which includes vehicles built on a truck chassis (or with special features for occasional off-road operation) that carry ten persons or less. See 49 CFR 571.3. These distinct classification systems highlight the differences in vehicles based upon various factors, such as fuel economy or passenger capacity, but each classification system uses different factors. 2 Chrysler is the Original Equipment Manufacturer (OEM) of specific model minivans. ElDorado modifies these same Chrysler model minivans into wheelchair-accessible vehicles. VerDate Mar<15>2010 14:30 Nov 30, 2012 Jkt 229001 interested parties regarding the availability of domestically manufactured minivans and minivan chassis in order to fully determine whether a waiver remained necessary. The August 3, 2012 notice established a deadline of September 4, 2012, for interested parties to submit comments. Following a request from Chrysler, FTA published a second notice on August 28, 2012, extending the comment deadline by one week, from September 4 to September 11, 2012. 77 FR 52134. II. Response to Public Comments FTA received approximately 836 comments in response to its notice. Of the 836 comments, three comments were posted to the docket in error, and 88 comments were filed after the September 11, 2012 deadline. FTA considered all comments submitted to the docket on or before September 19, 2012. The commenters represent a broad spectrum of stakeholders from throughout the United States and include elected officials, state and local governments, transit and other local government agencies, transportation providers, trade associations, vehicle manufacturers, suppliers and retailers, a labor union, members of the disability community, and numerous persons in their individual capacity. The following is FTA’s response to the substantive comments. FTA responds to public comments in the following topical order: (A) General Comments; (B) Definition of a ‘‘Minivan’’; (C) Minivan Use for Paratransit Transportation Services; (D) Minivan Use for Vanpool Services; (E) Competition and Price Concerns; (F) U.S. Employment; (G) Safety Concerns; and (H) Miscellaneous Comments. Several commenters raised issues that are outside the scope of FTA’s request for comments. FTA declines to address those concerns in this Decision. A. General Comments Many commenters expressed support for Buy America and its purposes, including its intent to support U.S. manufacturing and employment. Most commenters generally stated that these are difficult economic times and highlighted FTA’s role in assisting U.S. manufacturers. Hundreds of employees from VPG, AM General, the International Union, United Automobile, Aerospace, and Agricultural Implement Workers of America (UAW), Amalgamated UAW Local 5, the Ford Motor Company, and many other VPG suppliers submitted comments in favor of rescinding the waiver. FTA also received favorable PO 00000 Frm 00102 Fmt 4703 Sfmt 4703 comments from retailers and consumers, elected officials, and other interested persons. Many other vehicle manufacturers, suppliers and retailers, including Chrysler, ElDorado National-Kansas, Thor Industries, Inc. (Thor Industries), the Braun Corporation (Braun), state government agencies (including Alabama, Florida, Indiana, Illinois, Montana, Nebraska, South Dakota, Virginia, and Wyoming Departments of Transportation), transit agencies or other local transportation providers, trade associations, an elected official, persons employed in the transit industry, and other interested parties or persons opposed or raised significant concerns about VPG’s request to rescind the waiver. B. The Definition of ‘‘Minivan’’ The commenters opposing rescission of the waiver argued that the MV–1 is not a ‘‘minivan,’’ and thus, minivans remain unavailable from a U.S. source. These commenters asserted that minivans and the MV–1 differ in several respects—size, sliding side doors, passenger capacity, wheelchair capacity, rear entry vs. side entry for wheelchairs, seating arrangements, rear- vs. frontwheel drive, and fuel economy. Chrysler, for example, stated that its customers ‘‘will not consider the MV–1 to be a suitable replacement for our minivans[, which] * * * are frontwheel drive vehicles with a 6-cylinder engine.’’ According to Chrysler, ‘‘[t]he MV–1 is a rear-wheel drive vehicle with an 8-cylinder engine, which is more like an SUV than a minivan.’’ Chrysler further stated that: As a paratransit vehicle, the MV–1 falls short of traditional minivans. • Chrysler minivans converted for paratransit use have more seating capacity than the MV–1. The Chrysler wheelchair accessible minivan is typically configured to carry 4 ambulatory passengers and 2 wheelchair passengers. The MV–1 configuration that provides 2 wheelchair positions only have space for one ambulatory person—the driver. * * * ElDorado also commented that the MV–1 is ‘‘not a minivan’’ but a ‘‘Mobility Vehicle,’’ the first of its kind. ElDorado reasoned that the MV–1 cannot be a minivan, as most minivans do not come equipped with a standard wheelchair ramp. Thor Industries, the parent company to ElDorado, made a similar comment and also stated that the MV–1 is not a minivan, but ‘‘the first ‘Mobility Vehicle’ of its kind.’’ Moreover, according to Thor Industries, the MV–1 has significantly different features from E:\FR\FM\03DEN1.SGM 03DEN1 Federal Register / Vol. 77, No. 232 / Monday, December 3, 2012 / Notices a ‘‘typical ElDorado minivan.’’ It provided a table to illustrate the differences it perceived between ElDorado’s Amerivan Minivan (built on a Grand Dodge Caravan and Chrysler Town and Country chassis) and the MV–1. Thor Industries claimed the Amerivan Minivan has the following features that are lacking on the MV–1: one-touch automatic operation for the door and ramp, sliding power ramp door, kneeling rear suspension, removable driver seating for the wheelchair driver, a removable ‘‘copilot’’ seat, driver/passenger transfer seat option, three wheelchair securement locations, bus-tested at the Altoona Bus Research and Testing Center (Altoona), seven airbags, integrated lap/shoulder seat belts for the wheelchair user, driver/front passenger advanced head restraints, front wheel drive, the ‘‘lowest ground to floor height in the industry,’’ and ‘‘dependable structure as proven by Altoona and inservice record,’’ a spare tire, various convenience or comfort options, rear heat and air conditioning, a 6-cylinder engine (compared to the MV–1’s 8cylinder engine), a fuel economy of 17 city miles per gallon (mpg) (compared to the MV–1’s 13 city mpg), 25 highway miles per gallon (compared to the MV– 1’s 18 highway mpg), and a range of 500 miles (compared to the MV–1’s range of 350 miles). Another commenter that claimed the MV–1 is not a minivan, Braun, noted the following differences: emcdonald on DSK67QTVN1PROD with NOTICES [The MV–1 is] limited to 5 ambulatory passengers with 1 wheelchair, or a driver and 2 wheelchair passengers’’ while ‘‘the commercial Braun wheelchair accessible minivan is typically configured to carry 4 ambulatory passengers and 2 wheelchair passengers, and may also be reconfigured to carry 5 ambulatory and 1 wheelchair passengers. The unconverted Chrysler vehicle covered by the waiver is a 7 passenger commuter vehicle configuration. Other differences identified by Braun include the fact that the MV–1 has no fixed front passenger seat nor an airbag for this seat, is rear-wheel drive, utilizes a swing door for wheelchairs, ‘‘which limits access through the front passenger door,’’ has a V–8 engine while Chrysler minivans use a V–6 engine, and the MV–1 does not offer a rear-entry option for wheelchairs. VPG rebutted these claims in its comments, stating that FTA classified the MV–1 as a minivan when FTA exempted the MV–1 from its bus testing requirements at 49 CFR part 665, and ‘‘[w]hatever it [the MV–1] may be called in other contexts, for purposes of Buy America, it has been indisputably established by FTA under due authority VerDate Mar<15>2010 14:30 Nov 30, 2012 Jkt 229001 that the MV–1 is qualified as a minivan.’’ Regarding comments about the MV– 1’s seating capacity, VPG responded that the MV–1 seats six (including the driver and 1 wheelchair) and stated that Braun’s installation of a 2 passenger flip seat to seat seven passengers ‘‘prevents wheelchair passengers from utilizing the vehicle for its intended purpose, specifically, providing wheelchair accessible transportation.’’ In response to the MV–1’s lack of a fixed front seat, VPG commented that: [The MV–1 was designed] without a fixed front seat in order to permit the wheelchair passenger the opportunity to ride in proximity to the driver, which our research informed us was the preferred position of the wheelchair passenger, despite the fact that ‘‘converted’’ vehicles never allowed that freedom of choice and perspective to a wheelchair-using passenger. We note, however, that the MV–1 has multiple tracks for the restraint system, so that a wheelchair passenger, when desired or required, can be separated from the driver. Braun responded to VPG’s comments by stating that the MV–1 does not have ‘‘substantially similar attributes to’’ a minivan based upon fuel economy because: * * * [I]t is evident that the VPG MV–1 has a [Gross Vehicle Weight Rating or] GVWR rating of 6,600 lbs, falling between the 2005 Ford Econoline full size van and F–150 pickup truck. Since these two vehicles were the only Ford trucks using this powertrain [4.6L V8 RWD 4-speed] in Model 2005 and the only Ford vehicles with ‘‘substantially similar attributes’’ as required under [the U.S. Department of Energy’s (DOE) Advanced Technology Vehicle Manufacturing or] ATVM program rules, it can only be concluded that these vehicles were used as the basis upon which DOE granted the loan to VPG. Ford did not manufacture a minivan in 2005 that employed the powertrain featured in VPG’s loan application and in the current production MV–1. It can only be concluded based on the above comparison that the VPG’s loan was based on a comparison to a full size van and a pickup truck, and never to a minivan. We maintain that the ‘‘vehicles with substantially similar attributes’’ found in the ATVM technical documentation were full size vans and/or pickup trucks, and not minivans. Braun also alleged that the MV–1 does not meet the National Highway Traffic Safety Administration’s (NHTSA) definition of a minivan. Braun cited NHTSA’s Final Rule for average fuel economy standards for light trucks model years 2008–2011 (49 CFR part 523) published in 71 FR 17566 on April 6, 2006. Braun commented that: NHTSA’s 2008–2011 final rule tightened the minivan definition [under 49 CFR 523.5(a)(5)(ii)] * * * PO 00000 Frm 00103 Fmt 4703 Sfmt 4703 71675 The reason NHTSA created the new minivan definition was clearly explained in the final rule: ‘‘Specifically, unlike the smaller passenger cars, all minivans feature three rows of seats, thus offering greater passenger carrying capability’’ [footnote omitted.]’’ In addition to furthering our goal of subjecting all minivans to the CAFE standard for light trucks, the provision adopted today limits the number of vehicles that will be reclassified as light trucks.’’ [Footnote omitted.] The practical effect of NHTSA’s rule change was to make certain that vehicles with only two rows of seating as standard equipment would no longer be classified as minivans and no longer be able to compete under the non-passenger vehicle, or truck, CAFE standards. Braun further stated that: A careful examination of the MV–1 vehicle provides the following information: 1. The MV–1 does not have three rows of seats that are standard equipment, 2. Even if NHTSA were to determine that a single seating position in the front of a vehicle (as provided in the MV–1) constitutes a ‘‘row’’ and that a single rear-facing jump seat in the middle constitutes a ‘‘row,’’ the middle jump seat is not standard equipment on the MV–1. 3. The MV–1 does not have the ability to remove or stow seats to create a flat-leveled surface for cargo-carrying purposes. The aft seating of the MV–1 is fixed, and not removable or stowable. 4. Whereas all minivans produced and sold in the U.S. today feature front-wheel drive unibody construction, the MV–1 is a rearwheel drive vehicle body-on-frame vehicle. Because of this, the propeller shaft mates to the rear-drive differential at the rear axle and the floor p[l]an rises under the aft vehicle seating to accommodate this component. The MV–1 has a two-tier floor p[l]an for both gasoline and CNG versions, it therefore is impossible to create a flat, leveled surface to the rear of the automobile as clearly specified under NHTSA’s minivan definition. Braun also cited www.fueleconomy.gov, which is maintained by DOE using EPA fuel economy data, to show that the MV–1 is classified as a ‘‘Special Purpose Vehicle 2WD’’ and not as a minivan. Finally, Braun supplemented its comments with a response that FTA classified the MV–1 as an ‘‘unmodified mass-produced van,’’ and not a minivan. FTA Response: Neither FTA’s authorizing legislation nor its implementing regulations define the term ‘‘minivan.’’ NHTSA does classify vehicles for purposes of regulating emissions and safety, but these classifications do not uniformly group vehicles from one regulation to the next. This is why, for purposes of various Federal regulations, a minivan like Chrysler’s Town and Country is not E:\FR\FM\03DEN1.SGM 03DEN1 71676 Federal Register / Vol. 77, No. 232 / Monday, December 3, 2012 / Notices emcdonald on DSK67QTVN1PROD with NOTICES always in the same class. For example, under NHTSA’s CAFE standard, most ‘‘minivans’’ fall under the class of ‘‘light trucks.’’ The MV–1 is in a different class under the CAFE standard because it does not have three rows of removable seats or seats that stow away into a flat or level surface. See 49 CFR 523.5(a)(5). When regulating safety, however, both the MV–1 and traditional ‘‘minivans’’ fall under the class of ‘‘multipurpose passenger vehicles,’’ which includes all vehicles that carry ten persons or less and are constructed on a truck chassis (or with special features for occasional off-road operation). See 49 CFR 571.3. These distinct classification systems highlight the differences in vehicles based upon various factors, such as fuel economy or passenger capacity, but each classification system uses different factors. There is no uniform categorization. Braun also cites DOE and EPA categories based upon fuel economy to show that the MV–1 is a ‘‘special purpose vehicle’’ rather than a ‘‘minivan.’’ These categories and their corresponding data are listed at www.fueleconomy.gov, which DOE maintains with data from EPA. EPA’s Web site, however, specifically states that ‘‘[t]hese categories are used for labeling and consumer information purposes and do not serve any other regulatory purpose.’’ 3 Accordingly, the fact that the MV–1 may not fall under the ‘‘minivan’’ category for purposes of EPA’s comparisons of vehicles based upon fuel economy is immaterial to Buy America. Thus, to avoid the confusion that may result from creating a new vehicle classification system, FTA will not differentiate or define a ‘‘minivan’’ for purposes of Buy America. In applying or waiving Buy America rules, FTA will make decisions based upon the performance or functional specifications used by FTA grantees in actual procurements in conformance with Federal requirements and guidance, including the ‘‘Common Grant Rule’’ (49 CFR parts 18 and 19) and the most recent edition of FTA Circular 4220.1 ‘‘Third Party Contracting Guidance.’’ minivans. The comments noted performance problems (such as binding as a result of ice and gravel collection) with under-floor ramps like those equipped on the MV–1. They also questioned whether the MV–1 could, in fact, accommodate more than one wheelchair at a time. Other commenters stated that the MV–1 has smaller overall passenger capacity compared to traditional minivans. One local transit agency responsible for providing paratransit services commented that its fleet includes both the MV–1 and the Dodge Caravan and, while both are useful in providing paratransit services, they are very different vehicles and the MV–1’s rear facing seat is not useable for many of the services it provides. FTA Response: As stated above, under FTA’s Buy America law, a nonavailability waiver may be granted only 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). Therefore, as long as there is a domestic manufacturer for a product, FTA cannot grant a non-availability waiver or permit a non-availability waiver to stand. FTA finds here that there is a U.S.-made vehicle—the MV–1—that can sufficiently meet the needs for which the minivan non-availability waiver was issued. Procurement decisions must be made based on performance or functional needs defined in conformance with Federal regulations and guidance, including the ‘‘Common Grant Rule’’ and the most recent edition of FTA Circular 4220.1 ‘‘Third Party Contracting Guidance.’’ If the need arises for a non-compliant vehicle under Buy America, recipients of FTA financial assistance may petition FTA for waivers on a case-by-case basis. In reviewing any waiver request, FTA only will consider waiving Buy America if the petitioner can articulate and has included in its procurement a performance or functional specification in conformance with Federal requirements and guidance that failed to yield a compliant bid or offer for a U.S.produced vehicle. C. Minivan Use for Paratransit Transportation Services Several commenters pointed out the differences between the MV–1’s accessibility features and the accessibility features of traditional D. Minivan Use for Vanpool Services A significant number of commenters claim the MV–1 is solely a paratransit vehicle and does not qualify for FTA funding for vanpool services. The comments cite the Moving Ahead for Progress in the 21st Century Act (MAP– 21), Public Law 112–141, § 20016 (to be codified at 49 U.S.C. 5323(i)). MAP–21 changed the definition of ‘‘vanpool vehicle’’ to mean a vehicle that has a ‘‘* * * seating capacity of which is at 3 http://www.epa.gov/carlabel/ gaslabelreadmore.htm. While EPA has its own classification system for purposes of regulating vehicle emissions (40 CFR part 86), this further shows that classifications systems differ based upon specifications and features. See 49 CFR 86.1803–01. VerDate Mar<15>2010 14:30 Nov 30, 2012 Jkt 229001 PO 00000 Frm 00104 Fmt 4703 Sfmt 4703 least 6 adults (not including the driver). * * *’’ According to the comments, the MAP–21 definition excludes the MV–1 (with a seating capacity of only 6, including the driver) and includes Chrysler minivans (with a slightly higher seating capacity). Therefore, these commenters stated that, while the MV–1 may be acceptable for paratransit service, the MV–1 would not qualify for FTA-funded vanpool service. FTA Response: While the definition of ‘‘vanpool,’’ now codified at 49 U.S.C. 5323(i)(2)(C)(ii), applies to certain FTAfunded vanpool projects, FTA prefers to consider waiver requests for limited circumstances and on a procurementby-procurement basis rather than waiving the Buy America requirements for an entire class of vehicles in all circumstances. If an FTA recipient requests a waiver for a vanpool purchase, FTA will review the procurement based upon established requirements and guidance for third party procurements, including the Common Grant Rule and the most recent edition of FTA Circular 4220.1 ‘‘Third Party Contracting Guidance. E. Competition and Price Concerns Most of the comments opposing rescission of the waiver stated that such a rescission would eliminate competition of vehicle manufacturers and suppliers and result in de facto sole-source procurements. According to Chrysler, ElDorado, Braun, and other vehicle manufacturers and suppliers, rescission of the waiver would create a public transportation monopoly in favor of VPG and indicated their prediction that prices would rise from the lack of competition. State DOTs, local transit agencies, and other transit providers made similar comments. FTA Response: This argument is similar to one presented by a manufacturer of motor coaches in 2010 when it sought a public interest waiver from FTA. As was the case with that request, by arguing that a single Buy America-compliant manufacturer has cornered the market and can thus control prices, the commenters ignore the FTA waiver that is intended to address this concern. If limited competition results in a product ceasing to be available to FTA-funded transit agencies at a competitive price (measured by a greater than 25 percent differential between foreign-produced and Buy America-compliant vehicles), the appropriate action would be for the grantee to apply for a waiver based on price-differential. Claims about price inflation, however, appear to be unfounded. Those in favor of rescinding the waiver stated that the E:\FR\FM\03DEN1.SGM 03DEN1 Federal Register / Vol. 77, No. 232 / Monday, December 3, 2012 / Notices price of the MV–1 is similar to competing vehicles. emcdonald on DSK67QTVN1PROD with NOTICES F. U.S. Employment Commenters in support of rescinding the waiver stated that a rescission would result in more U.S. jobs. Commenters opposing the rescission of the waiver stated that a rescission would benefit only VPG and AM General employees, and would negatively impact other vehicle manufacturers and suppliers, including their U.S. employees. Thor Industries, the parent company of ElDorado, commented that since the waiver, ElDorado has been able to create new jobs, both directly and indirectly through its distribution network. Thor Industries further stated that a rescission of the waiver would result in a 39 percent decrease in ElDorado’s employment. FTA Response: Buy America is the mechanism used by FTA to protect and encourage U.S. manufacturing and U.S. jobs. The regulations do not prohibit Chrysler, ElDorado and other manufacturers from adjusting their business practices to perform final assembly in the United States. If they took such action, they also would be able to certify compliance with Buy America and offer their products to FTA’s grantees. G. Safety Concerns Braun, among other commenters, raised safety concerns about the MV–1, including whether the MV–1 meets the Federal Motor Vehicle Safety Standards (FMVSS), and the number of airbags and seatbelts in the MV–1 compared to Chrysler minivans. Many commenters opposed to the rescission also noted that the MV–1 has not undergone testing per FTA’s bus testing requirements at 49 CFR part 665. VPG certified that the MV–1 has met all applicable FMVSS requirements and received an exemption from FTA from the bus testing requirements of 49 CFR part 665 because of its status as an unmodified, mass-produced van. FTA Response: All vehicles purchased with FTA funds must meet all applicable safety requirements, which generally include certifying compliance with FMVSS and FTA’s bus testing regulations. The MV–1 has satisfied these requirements. H. Miscellaneous Comments A number of parties submitted miscellaneous comments. These include commenters that expressed concern that the MV–1 is rear wheel drive, which typically does not perform as well as front-wheel drive in extreme weather VerDate Mar<15>2010 14:30 Nov 30, 2012 Jkt 229001 conditions such as snow or ice; not produced in sufficient quantity; has an 8-cylinder engine, which consumes more fuel than the Chrysler minivan and other similar vehicles with 6cylinder engines; and that there are too few MV–1 retailers. One commenter requested information about the potential number of vehicles and the amount of FTA funding that this request affects. Other commenters stated that FTA should not make a decision that will only benefit one U.S. company or ‘‘artificially protect’’ a company from competition. FTA Response: FTA responds to the foregoing miscellaneous comments with a general statement about Buy America waivers. The purpose of Buy America is for the taxpayer resources used on FTA-funded projects to preserve and encourage U.S. manufacturing jobs. FTA advances this purpose by strictly enforcing Buy America rules that require all steel, iron, and manufactured products on FTAfunded projects to be produced in the United States. Thus, when considering whether to grant (or rescind) a waiver, FTA seeks to grant the most narrowly construed waiver possible. In this instance, the current waiver is broadly construed; it applies to all minivans and minivan chassis purchased with FTA funds. A more narrow approach is to rescind the existing waiver and then consider waivers on a case-by-case basis only. This approach will ensure that waivers are granted only when absolutely necessary, and only when construed as narrowly as possible. Under FTA’s Buy America law, a nonavailability waiver may be granted only 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). Therefore, as long as there is a manufacturer of the product in question that fully complies with Buy America, FTA cannot grant a non-availability waiver or permit a non-availability waiver to stand. FTA finds here that there is a fully Buy America-compliant vehicle that meets the needs for which the original minivan waiver was granted. To the extent FTA is willing to consider waiver requests, they will be limited to procurements that include specifications based on performance or functional needs that cannot be met by a Buy America compliant product. Specifications may not be exclusionary and must conform to Federal requirements and guidance, including the Common Grant Rule and the most PO 00000 Frm 00105 Fmt 4703 Sfmt 4703 71677 recent edition of FTA Circular 4220.1 ‘‘Third Party Contracting Guidance.’’ Thus, the prohibition against exclusionary and discriminatory specifications notwithstanding, if the need arises for a non-compliant vehicle, recipients may petition FTA for waivers on a case-by-case basis. FTA will only consider waiving Buy America if the petitioner can articulate and has included in its procurement a performance or functional specifications in conformance with Federal requirements and guidance that failed to yield a compliant bid or offer for a U.S.produced vehicle. VPG, AM General, and Ford Motor Company responded to the commenters that expressed concern about adequacy of VPG’s supply and network. They assert that the MV–1 can be produced in sufficient quantity. VPG and Ford commented that there are sufficient dealerships throughout the United States, including well-established automobile, bus, and mobility dealers, in addition to VPG’s retail outlets, that can offer needed service and warranty. According to VPG, the high percentage of U.S.-manufactured parts (approximately 75 percent U.S. content), including a Ford engine, in its vehicles means these parts are readily available in the United States. FTA does not collect data specifically on ‘‘minivans’’ as FTA does not define the term ‘‘minivan.’’ Rather, it measures the number of FTA-funded purchases of ‘‘vans, ’’ which includes minivan purchases, but also includes other vehicle purchases falling within the ‘‘van’’ category. In Fiscal Year (FY) 2011, FTA awarded $133,298,132 for 3,279 vans. Regarding comments from Chrysler and others that FTA should avoid decisions that benefit a single entity, FTA notes that the current waiver has served to the near-exclusive benefit of Chrysler since 2010. Additionally, if Chrysler, ElDorado, or other manufacturers adjusted current business practices to perform final assembly in the United States, their vehicles also would be Buy America compliant. III. Conclusion FTA has determined that a Buy America waiver for minivans and minivan chassis is no longer necessary because the Vehicle Production Group now produces a substantially similar vehicle in the United States, in accordance with FTA’s Buy America rules. Therefore, FTA hereby rescinds the waiver it issued on June 21, 2010. E:\FR\FM\03DEN1.SGM 03DEN1 71678 Federal Register / Vol. 77, No. 232 / Monday, December 3, 2012 / Notices Issued this 27th day of November, 2012. Peter Rogoff, Administrator. [FR Doc. 2012–29129 Filed 11–30–12; 8:45 am] BILLING CODE 4910–57–P DEPARTMENT OF TRANSPORTATION National Highway Traffic Safety Administration [Docket No. NHTSA–2012–0107; Notice 1] The Goodyear Tire & Rubber Company, Receipt of Petition for Decision of Inconsequential Noncompliance National Highway Traffic Safety Administration, DOT. ACTION: Receipt of petition. AGENCY: The Goodyear Tire & Rubber Company (GOODYEAR),1 has determined that certain Goodyear brand tires manufactured between April 8, 2012 and May 12, 2012, do not fully comply with paragraph S5.5(c)&(d) of Federal Motor Vehicle Safety Standard (FMVSS) No. 139, New Pneumatic Radial Tires for Light Vehicles. Goodyear has filed an appropriate report dated July 20, 2012, pursuant to 49 CFR part 573, Defect and Noncompliance Responsibility and Reports. Pursuant to 49 U.S.C. 30118(d) and 30120(h) (see implementing rule at 49 CFR Part 556), Goodyear submitted a petition for an exemption from the notification and remedy requirements of 49 U.S.C. Chapter 301 on the basis that this noncompliance is inconsequential to motor vehicle safety. This notice of receipt of Goodyear’s petition is published under 49 U.S.C. 30118 and 30120 and does not represent any agency decision or other exercise of judgment concerning the merits of the petition. Vehicles Involved: Affected are approximately 1,692 Goodyear Wrangler AT/S, size LT 275/65R18 brand tires manufactured between April 8, 2012, and May 12, 2012 at its plant in Gadsden, Alabama. NHTSA notes that the statutory provisions (49 U.S.C. 30118(d) and 30120(h)) that permit manufacturers to file petitions for a determination of inconsequentiality allow NHTSA to exempt manufacturers only from the duties found in sections 30118 and 30120, respectively, to notify owners, purchasers, and dealers of a defect or noncompliance and to remedy the emcdonald on DSK67QTVN1PROD with NOTICES SUMMARY: 1 Goodyear Tire & Rubber Company, is a manufacturer of replacement equipment and is registered under the laws of the state of Ohio. VerDate Mar<15>2010 14:30 Nov 30, 2012 Jkt 229001 defect or noncompliance. Therefore, these provisions only apply to the subject 1,692 2 tires that Goodyear no longer controlled at the time it determined that the noncompliance existed. Noncompliance: Goodyear explains that the noncompliance is that, due to a mold labeling error, the subject tires are incorrectly labeled as LR–E/Max Load 3415 lbs Max Pressure 80 psi when they should have been labeled as LR– CE/Max Load 2535 lbs Max Pressure 50 psi and thus do not conform to the requirements of 49 CFR 571.139 paragraph S5.5(c)&(d). Rule Text: Paragraph S5.5 of FMVSS No. 139 requires in pertinent part: S5.5 Tire markings. Except as specified in paragraphs (a) through (i) of S5.5, each tire must be marked on each sidewall with the information specified in S5.5(a) through (d) and on one side-wall with the information specified in S5.5(e) through (i) according to the phase-in schedule specified in S7 of this standard. The markings must be placed between the maximum section width and the bead on at least one sidewall, unless the maximum section width of the tire is located in an area that is not more than one-fourth of the distance from the bead to the shoulder of the tire. If the maximum section width that falls within that area, those markings must appear between the bead and a point one-half the distance from the bead to the shoulder of the tire, on at least one sidewall. The markings must be in letters and numerals not less than 0.078 inches high and raised above or sunk below the tire surface not less than 0.015 inches * * * (c) The maximum permissible inflation pressure, subject to the limitations of S5.5.4 through S5.5.6 of this standard; (d) The maximum load rating and for LT tire, the letter designating the tire load range * * * Summary of Goodyear’s Analysis and Arguments: Goodyear believes that while the noncompliant tires incorrectly state the load range as required by FMVSS No. 139, it is inconsequential as it relates to motor vehicle safety for the following reasons: 1. The subject tires meet or exceed all applicable FMVSS performance standards for a tire labeled as either load range ‘‘E’’ or ‘‘C’’. 2. All other markings related to tire service (load capacity, corresponding 2 Goodyear’s petition, which was filed under 49 CFR Part 556, requests an agency decision to exempt Goodyear as an equipment manufacturer from the notification and recall responsibilities of 49 CFR Part 573 for the 1,692 affected tires. However, a decision on this petition will not relieve vehicle distributors and dealers of the prohibitions on the sale, offer for sale, introduction or delivery for introduction into interstate commerce of the noncompliant vehicles under their control after Goodyear notified them that the subject noncompliance existed. PO 00000 Frm 00106 Fmt 4703 Sfmt 4703 inflation pressure, etc. * * *) are also correct for the mislabeled tires. 3. The subject tires are identical to the intended LR–C tire with the exception of the sidewall labeling, and therefore, do not present a safety concern. Goodyear has additionally informed NHTSA that it has corrected future production and that all other tire labeling information is correct. In summation, Goodyear believes that the described noncompliance of its tires is inconsequential to motor vehicle safety, and that its petition, to exempt it from providing recall notification of noncompliance as required by 49 U.S.C. 30118 and remedying the recall noncompliance as required by 49 U.S.C. 30120 should be granted. Comments: Interested persons are invited to submit written data, views, and arguments on this petition. Comments must refer to the docket and notice number cited at the beginning of this notice and be submitted by any of the following methods: a. By mail addressed to: U.S. Department of Transportation, Docket Operations, M–30, West Building Ground Floor, Room W12–140, 1200 New Jersey Avenue SE., Washington, DC 20590. b. By hand delivery to U.S. Department of Transportation, Docket Operations, M–30, West Building Ground Floor, Room W12–140, 1200 New Jersey Avenue SE., Washington, DC 20590. The Docket Section is open on weekdays from 10 a.m. to 5 p.m. except Federal Holidays. c. Electronically: By logging onto the Federal Docket Management System (FDMS) Web site at http:// www.regulations.gov/. Follow the online instructions for submitting comments. Comments may also be faxed to 1–202– 493–2251. Comments must be written in the English language, and be no greater than 15 pages in length, although there is no limit to the length of necessary attachments to the comments. If comments are submitted in hard copy form, please ensure that two copies are provided. If you wish to receive confirmation that your comments were received, please enclose a stamped, selfaddressed postcard with the comments. Note that all comments received will be posted without change to http:// www.regulations.gov, including any personal information provided. Documents submitted to a docket may be viewed by anyone at the address and times given above. The documents may also be viewed on the Internet at http://www.regulations.gov by following the online instructions for accessing the dockets. DOT’s complete Privacy Act E:\FR\FM\03DEN1.SGM 03DEN1

Agencies

[Federal Register Volume 77, Number 232 (Monday, December 3, 2012)]
[Notices]
[Pages 71673-71678]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-29129]


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DEPARTMENT OF TRANSPORTATION

Federal Transit Administration

[Docket No. FTA-2012-0029]


Decision To Rescind Buy America Waiver for Minivans and Minivan 
Chassis

AGENCY: Federal Transit Administration, DOT.

ACTION: Decision on request to rescind Buy America waiver.

-----------------------------------------------------------------------

SUMMARY: On June 21, 2010, the Federal Transit Administration waived 
its Buy America final assembly requirement for minivans and minivan 
chassis after confirming that no manufacturer was willing and able to 
supply minivans or minivan chassis that were assembled in the United 
States. Now, FTA rescinds the waiver after confirming that the Vehicle 
Production Group has started producing a substantially similar vehicle, 
the MV-1, in the United States.

FOR FURTHER INFORMATION CONTACT: Mary J. Lee at (202) 366-0985 or 
mary.j.lee@dot.gov.

SUPPLEMENTARY INFORMATION: 

I. Background

    The Vehicle Production Group (VPG) petitioned the Federal Transit 
Administration (FTA) to rescind the non-availability waiver it issued 
on June 21, 2010 (75 FR 35123). The waiver exempted minivans and 
minivan chassis from the Buy America final assembly requirement 
outlined at 49 CFR part 661, stating that it would remain in effect 
until such a time as a domestic source became available.
    With few exceptions, FTA's Buy America requirements prevent FTA 
from obligating an amount that may be appropriated to carry out its 
programs 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). For FTA-funded rolling stock procurements, the Buy America 
requirements are two-fold: (1) At least 60 percent of the components, 
by dollar value, must be produced in the United States; and (2) final 
assembly must occur in the United States. 49 U.S.C. 5323(j).
    An exception to, or waiver of, the Buy America rules is allowed 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).
    On June 21, 2010, in response to formal requests from ElDorado 
National, Kansas (ElDorado) and the Chrysler Group LLC (Chrysler), and 
after ascertaining through notice and comment that no manufacturer of 
minivans or minivan chassis performed final assembly in the United 
States, FTA waived its Buy America final assembly requirement for 
minivans and minivan chassis. 75 FR 35123.
    When FTA waived the final assembly requirement for minivans, it 
declined to define the term ``minivan.'' FTA's reluctance to define the 
term stemmed from its understanding that (1) among the various 
classifications used by Federal regulatory agencies, minivans like the 
Chrysler Town and Country, and Dodge Caravan were not uniformly placed 
in the same class of vehicles; \1\

[[Page 71674]]

and (2) interested parties understood the waiver would apply to the 
type of vehicle produced by the parties that petitioned FTA--Chrysler 
and ElDorado.\2\ Because there is no uniform definition or 
classification for ``minivan,'' and FTA grantees understood that the 
waiver would apply to vehicles similar to those produced by Chrysler 
and ElDorado, FTA declined to create a new definition or 
classification.
---------------------------------------------------------------------------

    \1\ There is no uniform definition or classification for 
minivans. The closest things to a definition of a vehicle type, like 
``minivan,'' are the classifications used by the National Highway 
Traffic Safety Administration (NHTSA) and the Environmental 
Protection Agency (EPA) to regulate safety and control emissions. 
However, NHTSA's classifications do not uniformly group vehicles 
from one regulation to the next. For example, under NHTSA's 
Corporate Average Fuel Economy (CAFE) standards, most ``minivans,'' 
like Chrysler's Town and Country, fall under the class of ``light 
trucks.'' However, when regulating safety, the same vehicle is 
classified as a ``multipurpose passenger vehicle,'' which includes 
vehicles built on a truck chassis (or with special features for 
occasional off-road operation) that carry ten persons or less. See 
49 CFR 571.3. These distinct classification systems highlight the 
differences in vehicles based upon various factors, such as fuel 
economy or passenger capacity, but each classification system uses 
different factors.
    \2\ Chrysler is the Original Equipment Manufacturer (OEM) of 
specific model minivans. ElDorado modifies these same Chrysler model 
minivans into wheelchair-accessible vehicles.
---------------------------------------------------------------------------

    Recently, an original equipment manufacturer called the Vehicle 
Production Group (VPG) started producing a six-passenger vehicle called 
the Mobility Vehicle 1 (MV-1). The MV-1 is a purpose-built, wheelchair-
accessible vehicle that is substantially similar to a minivan. 
According to VPG sales materials, the MV-1 seats up to six adults, with 
one full-size wheelchair. Wheelchairs enter the MV-1 via a ramp that 
stows under the vehicle and deploys to the passenger side. It is 
available with a Ford Modular 4.6 liter V8 engine and can be purchased 
with an engine that runs on gasoline or compressed natural gas (CNG). 
AM General LLC (AM General) assembles the MV-1 at its plant in 
Mishawaka, Indiana. VPG certifies that the MV-1 complies with Buy 
America requirements for both domestic content and final assembly. 
Moreover, VPG maintains that it manufactures the MV-1 in sufficient 
quantity to meet the current and future demand on FTA-funded projects.
    Based on the fact that it produces the MV-1 in the United States, 
VPG petitioned FTA to rescind the Buy America final assembly waiver it 
issued on June 21, 2010, for minivans and minivan chassis.
    Pursuant to VPG's request, FTA published a notice in the Federal 
Register on August 3, 2012, calling for comments on VPG's request to 
rescind the 2010 Buy America waiver for minivans and minivan chassis. 
75 FR 35124. FTA sought comment from all interested parties regarding 
the availability of domestically manufactured minivans and minivan 
chassis in order to fully determine whether a waiver remained 
necessary.
    The August 3, 2012 notice established a deadline of September 4, 
2012, for interested parties to submit comments. Following a request 
from Chrysler, FTA published a second notice on August 28, 2012, 
extending the comment deadline by one week, from September 4 to 
September 11, 2012. 77 FR 52134.

II. Response to Public Comments

    FTA received approximately 836 comments in response to its notice. 
Of the 836 comments, three comments were posted to the docket in error, 
and 88 comments were filed after the September 11, 2012 deadline. FTA 
considered all comments submitted to the docket on or before September 
19, 2012.
    The commenters represent a broad spectrum of stakeholders from 
throughout the United States and include elected officials, state and 
local governments, transit and other local government agencies, 
transportation providers, trade associations, vehicle manufacturers, 
suppliers and retailers, a labor union, members of the disability 
community, and numerous persons in their individual capacity.
    The following is FTA's response to the substantive comments. FTA 
responds to public comments in the following topical order: (A) General 
Comments; (B) Definition of a ``Minivan''; (C) Minivan Use for 
Paratransit Transportation Services; (D) Minivan Use for Vanpool 
Services; (E) Competition and Price Concerns; (F) U.S. Employment; (G) 
Safety Concerns; and (H) Miscellaneous Comments. Several commenters 
raised issues that are outside the scope of FTA's request for comments. 
FTA declines to address those concerns in this Decision.

A. General Comments

    Many commenters expressed support for Buy America and its purposes, 
including its intent to support U.S. manufacturing and employment. Most 
commenters generally stated that these are difficult economic times and 
highlighted FTA's role in assisting U.S. manufacturers.
    Hundreds of employees from VPG, AM General, the International 
Union, United Automobile, Aerospace, and Agricultural Implement Workers 
of America (UAW), Amalgamated UAW Local 5, the Ford Motor Company, and 
many other VPG suppliers submitted comments in favor of rescinding the 
waiver. FTA also received favorable comments from retailers and 
consumers, elected officials, and other interested persons.
    Many other vehicle manufacturers, suppliers and retailers, 
including Chrysler, ElDorado National-Kansas, Thor Industries, Inc. 
(Thor Industries), the Braun Corporation (Braun), state government 
agencies (including Alabama, Florida, Indiana, Illinois, Montana, 
Nebraska, South Dakota, Virginia, and Wyoming Departments of 
Transportation), transit agencies or other local transportation 
providers, trade associations, an elected official, persons employed in 
the transit industry, and other interested parties or persons opposed 
or raised significant concerns about VPG's request to rescind the 
waiver.

B. The Definition of ``Minivan''

    The commenters opposing rescission of the waiver argued that the 
MV-1 is not a ``minivan,'' and thus, minivans remain unavailable from a 
U.S. source. These commenters asserted that minivans and the MV-1 
differ in several respects--size, sliding side doors, passenger 
capacity, wheelchair capacity, rear entry vs. side entry for 
wheelchairs, seating arrangements, rear- vs. front-wheel drive, and 
fuel economy. Chrysler, for example, stated that its customers ``will 
not consider the MV-1 to be a suitable replacement for our minivans[, 
which] * * * are front-wheel drive vehicles with a 6-cylinder engine.'' 
According to Chrysler, ``[t]he MV-1 is a rear-wheel drive vehicle with 
an 8-cylinder engine, which is more like an SUV than a minivan.'' 
Chrysler further stated that:
    As a paratransit vehicle, the MV-1 falls short of traditional 
minivans.

     Chrysler minivans converted for paratransit use have 
more seating capacity than the MV-1. The Chrysler wheelchair 
accessible minivan is typically configured to carry 4 ambulatory 
passengers and 2 wheelchair passengers. The MV-1 configuration that 
provides 2 wheelchair positions only have space for one ambulatory 
person--the driver.
    * * *

    ElDorado also commented that the MV-1 is ``not a minivan'' but a 
``Mobility Vehicle,'' the first of its kind. ElDorado reasoned that the 
MV-1 cannot be a minivan, as most minivans do not come equipped with a 
standard wheelchair ramp.
    Thor Industries, the parent company to ElDorado, made a similar 
comment and also stated that the MV-1 is not a minivan, but ``the first 
`Mobility Vehicle' of its kind.'' Moreover, according to Thor 
Industries, the MV-1 has significantly different features from

[[Page 71675]]

a ``typical ElDorado minivan.'' It provided a table to illustrate the 
differences it perceived between ElDorado's Amerivan Minivan (built on 
a Grand Dodge Caravan and Chrysler Town and Country chassis) and the 
MV-1. Thor Industries claimed the Amerivan Minivan has the following 
features that are lacking on the MV-1: one-touch automatic operation 
for the door and ramp, sliding power ramp door, kneeling rear 
suspension, removable driver seating for the wheelchair driver, a 
removable ``co-pilot'' seat, driver/passenger transfer seat option, 
three wheelchair securement locations, bus-tested at the Altoona Bus 
Research and Testing Center (Altoona), seven airbags, integrated lap/
shoulder seat belts for the wheelchair user, driver/front passenger 
advanced head restraints, front wheel drive, the ``lowest ground to 
floor height in the industry,'' and ``dependable structure as proven by 
Altoona and in-service record,'' a spare tire, various convenience or 
comfort options, rear heat and air conditioning, a 6-cylinder engine 
(compared to the MV-1's 8-cylinder engine), a fuel economy of 17 city 
miles per gallon (mpg) (compared to the MV-1's 13 city mpg), 25 highway 
miles per gallon (compared to the MV-1's 18 highway mpg), and a range 
of 500 miles (compared to the MV-1's range of 350 miles).
    Another commenter that claimed the MV-1 is not a minivan, Braun, 
noted the following differences:

    [The MV-1 is] limited to 5 ambulatory passengers with 1 
wheelchair, or a driver and 2 wheelchair passengers'' while ``the 
commercial Braun wheelchair accessible minivan is typically 
configured to carry 4 ambulatory passengers and 2 wheelchair 
passengers, and may also be reconfigured to carry 5 ambulatory and 1 
wheelchair passengers. The unconverted Chrysler vehicle covered by 
the waiver is a 7 passenger commuter vehicle configuration.

    Other differences identified by Braun include the fact that the MV-
1 has no fixed front passenger seat nor an airbag for this seat, is 
rear-wheel drive, utilizes a swing door for wheelchairs, ``which limits 
access through the front passenger door,'' has a V-8 engine while 
Chrysler minivans use a V-6 engine, and the MV-1 does not offer a rear-
entry option for wheelchairs.
    VPG rebutted these claims in its comments, stating that FTA 
classified the MV-1 as a minivan when FTA exempted the MV-1 from its 
bus testing requirements at 49 CFR part 665, and ``[w]hatever it [the 
MV-1] may be called in other contexts, for purposes of Buy America, it 
has been indisputably established by FTA under due authority that the 
MV-1 is qualified as a minivan.''
    Regarding comments about the MV-1's seating capacity, VPG responded 
that the MV-1 seats six (including the driver and 1 wheelchair) and 
stated that Braun's installation of a 2 passenger flip seat to seat 
seven passengers ``prevents wheelchair passengers from utilizing the 
vehicle for its intended purpose, specifically, providing wheelchair 
accessible transportation.'' In response to the MV-1's lack of a fixed 
front seat, VPG commented that:

    [The MV-1 was designed] without a fixed front seat in order to 
permit the wheelchair passenger the opportunity to ride in proximity 
to the driver, which our research informed us was the preferred 
position of the wheelchair passenger, despite the fact that 
``converted'' vehicles never allowed that freedom of choice and 
perspective to a wheelchair-using passenger. We note, however, that 
the MV-1 has multiple tracks for the restraint system, so that a 
wheelchair passenger, when desired or required, can be separated 
from the driver.

    Braun responded to VPG's comments by stating that the MV-1 does not 
have ``substantially similar attributes to'' a minivan based upon fuel 
economy because:

    * * * [I]t is evident that the VPG MV-1 has a [Gross Vehicle 
Weight Rating or] GVWR rating of 6,600 lbs, falling between the 2005 
Ford Econoline full size van and F-150 pickup truck. Since these two 
vehicles were the only Ford trucks using this powertrain [4.6L V8 
RWD 4-speed] in Model 2005 and the only Ford vehicles with 
``substantially similar attributes'' as required under [the U.S. 
Department of Energy's (DOE) Advanced Technology Vehicle 
Manufacturing or] ATVM program rules, it can only be concluded that 
these vehicles were used as the basis upon which DOE granted the 
loan to VPG. Ford did not manufacture a minivan in 2005 that 
employed the powertrain featured in VPG's loan application and in 
the current production MV-1.
    It can only be concluded based on the above comparison that the 
VPG's loan was based on a comparison to a full size van and a pickup 
truck, and never to a minivan. We maintain that the ``vehicles with 
substantially similar attributes'' found in the ATVM technical 
documentation were full size vans and/or pickup trucks, and not 
minivans.

    Braun also alleged that the MV-1 does not meet the National Highway 
Traffic Safety Administration's (NHTSA) definition of a minivan. Braun 
cited NHTSA's Final Rule for average fuel economy standards for light 
trucks model years 2008-2011 (49 CFR part 523) published in 71 FR 17566 
on April 6, 2006. Braun commented that:

    NHTSA's 2008-2011 final rule tightened the minivan definition 
[under 49 CFR 523.5(a)(5)(ii)] * * *
    The reason NHTSA created the new minivan definition was clearly 
explained in the final rule:
    ``Specifically, unlike the smaller passenger cars, all minivans 
feature three rows of seats, thus offering greater passenger 
carrying capability'' [footnote omitted.]''
    In addition to furthering our goal of subjecting all minivans to 
the CAFE standard for light trucks, the provision adopted today 
limits the number of vehicles that will be reclassified as light 
trucks.'' [Footnote omitted.]
    The practical effect of NHTSA's rule change was to make certain 
that vehicles with only two rows of seating as standard equipment 
would no longer be classified as minivans and no longer be able to 
compete under the non-passenger vehicle, or truck, CAFE standards.

Braun further stated that:

    A careful examination of the MV-1 vehicle provides the following 
information:
    1. The MV-1 does not have three rows of seats that are standard 
equipment,
    2. Even if NHTSA were to determine that a single seating 
position in the front of a vehicle (as provided in the MV-1) 
constitutes a ``row'' and that a single rear-facing jump seat in the 
middle constitutes a ``row,'' the middle jump seat is not standard 
equipment on the MV-1.
    3. The MV-1 does not have the ability to remove or stow seats to 
create a flat-leveled surface for cargo-carrying purposes. The aft 
seating of the MV-1 is fixed, and not removable or stowable.
    4. Whereas all minivans produced and sold in the U.S. today 
feature front-wheel drive unibody construction, the MV-1 is a rear-
wheel drive vehicle body-on-frame vehicle. Because of this, the 
propeller shaft mates to the rear-drive differential at the rear 
axle and the floor p[l]an rises under the aft vehicle seating to 
accommodate this component. The MV-1 has a two-tier floor p[l]an for 
both gasoline and CNG versions, it therefore is impossible to create 
a flat, leveled surface to the rear of the automobile as clearly 
specified under NHTSA's minivan definition.

    Braun also cited www.fueleconomy.gov, which is maintained by DOE 
using EPA fuel economy data, to show that the MV-1 is classified as a 
``Special Purpose Vehicle 2WD'' and not as a minivan.
    Finally, Braun supplemented its comments with a response that FTA 
classified the MV-1 as an ``unmodified mass-produced van,'' and not a 
minivan.
    FTA Response: Neither FTA's authorizing legislation nor its 
implementing regulations define the term ``minivan.'' NHTSA does 
classify vehicles for purposes of regulating emissions and safety, but 
these classifications do not uniformly group vehicles from one 
regulation to the next. This is why, for purposes of various Federal 
regulations, a minivan like Chrysler's Town and Country is not

[[Page 71676]]

always in the same class. For example, under NHTSA's CAFE standard, 
most ``minivans'' fall under the class of ``light trucks.'' The MV-1 is 
in a different class under the CAFE standard because it does not have 
three rows of removable seats or seats that stow away into a flat or 
level surface. See 49 CFR 523.5(a)(5). When regulating safety, however, 
both the MV-1 and traditional ``minivans'' fall under the class of 
``multipurpose passenger vehicles,'' which includes all vehicles that 
carry ten persons or less and are constructed on a truck chassis (or 
with special features for occasional off-road operation). See 49 CFR 
571.3. These distinct classification systems highlight the differences 
in vehicles based upon various factors, such as fuel economy or 
passenger capacity, but each classification system uses different 
factors. There is no uniform categorization.
    Braun also cites DOE and EPA categories based upon fuel economy to 
show that the MV-1 is a ``special purpose vehicle'' rather than a 
``minivan.'' These categories and their corresponding data are listed 
at www.fueleconomy.gov, which DOE maintains with data from EPA. EPA's 
Web site, however, specifically states that ``[t]hese categories are 
used for labeling and consumer information purposes and do not serve 
any other regulatory purpose.'' \3\ Accordingly, the fact that the MV-1 
may not fall under the ``minivan'' category for purposes of EPA's 
comparisons of vehicles based upon fuel economy is immaterial to Buy 
America.
---------------------------------------------------------------------------

    \3\ http://www.epa.gov/carlabel/gaslabelreadmore.htm. While EPA 
has its own classification system for purposes of regulating vehicle 
emissions (40 CFR part 86), this further shows that classifications 
systems differ based upon specifications and features. See 49 CFR 
86.1803-01.
---------------------------------------------------------------------------

    Thus, to avoid the confusion that may result from creating a new 
vehicle classification system, FTA will not differentiate or define a 
``minivan'' for purposes of Buy America. In applying or waiving Buy 
America rules, FTA will make decisions based upon the performance or 
functional specifications used by FTA grantees in actual procurements 
in conformance with Federal requirements and guidance, including the 
``Common Grant Rule'' (49 CFR parts 18 and 19) and the most recent 
edition of FTA Circular 4220.1 ``Third Party Contracting Guidance.''

C. Minivan Use for Paratransit Transportation Services

    Several commenters pointed out the differences between the MV-1's 
accessibility features and the accessibility features of traditional 
minivans. The comments noted performance problems (such as binding as a 
result of ice and gravel collection) with under-floor ramps like those 
equipped on the MV-1. They also questioned whether the MV-1 could, in 
fact, accommodate more than one wheelchair at a time. Other commenters 
stated that the MV-1 has smaller overall passenger capacity compared to 
traditional minivans. One local transit agency responsible for 
providing paratransit services commented that its fleet includes both 
the MV-1 and the Dodge Caravan and, while both are useful in providing 
paratransit services, they are very different vehicles and the MV-1's 
rear facing seat is not useable for many of the services it provides.
    FTA Response: As stated above, under FTA's Buy America law, a non-
availability waiver may be granted only 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). Therefore, as long as there is a domestic 
manufacturer for a product, FTA cannot grant a non-availability waiver 
or permit a non-availability waiver to stand. FTA finds here that there 
is a U.S.-made vehicle--the MV-1--that can sufficiently meet the needs 
for which the minivan non-availability waiver was issued. Procurement 
decisions must be made based on performance or functional needs defined 
in conformance with Federal regulations and guidance, including the 
``Common Grant Rule'' and the most recent edition of FTA Circular 
4220.1 ``Third Party Contracting Guidance.'' If the need arises for a 
non-compliant vehicle under Buy America, recipients of FTA financial 
assistance may petition FTA for waivers on a case-by-case basis. In 
reviewing any waiver request, FTA only will consider waiving Buy 
America if the petitioner can articulate and has included in its 
procurement a performance or functional specification in conformance 
with Federal requirements and guidance that failed to yield a compliant 
bid or offer for a U.S.-produced vehicle.

D. Minivan Use for Vanpool Services

    A significant number of commenters claim the MV-1 is solely a 
paratransit vehicle and does not qualify for FTA funding for vanpool 
services. The comments cite the Moving Ahead for Progress in the 21st 
Century Act (MAP-21), Public Law 112-141, Sec.  20016 (to be codified 
at 49 U.S.C. 5323(i)). MAP-21 changed the definition of ``vanpool 
vehicle'' to mean a vehicle that has a ``* * * seating capacity of 
which is at least 6 adults (not including the driver). * * *'' 
According to the comments, the MAP-21 definition excludes the MV-1 
(with a seating capacity of only 6, including the driver) and includes 
Chrysler minivans (with a slightly higher seating capacity). Therefore, 
these commenters stated that, while the MV-1 may be acceptable for 
paratransit service, the MV-1 would not qualify for FTA-funded vanpool 
service.
    FTA Response: While the definition of ``vanpool,'' now codified at 
49 U.S.C. 5323(i)(2)(C)(ii), applies to certain FTA-funded vanpool 
projects, FTA prefers to consider waiver requests for limited 
circumstances and on a procurement-by-procurement basis rather than 
waiving the Buy America requirements for an entire class of vehicles in 
all circumstances. If an FTA recipient requests a waiver for a vanpool 
purchase, FTA will review the procurement based upon established 
requirements and guidance for third party procurements, including the 
Common Grant Rule and the most recent edition of FTA Circular 4220.1 
``Third Party Contracting Guidance.

E. Competition and Price Concerns

    Most of the comments opposing rescission of the waiver stated that 
such a rescission would eliminate competition of vehicle manufacturers 
and suppliers and result in de facto sole-source procurements. 
According to Chrysler, ElDorado, Braun, and other vehicle manufacturers 
and suppliers, rescission of the waiver would create a public 
transportation monopoly in favor of VPG and indicated their prediction 
that prices would rise from the lack of competition. State DOTs, local 
transit agencies, and other transit providers made similar comments.
    FTA Response: This argument is similar to one presented by a 
manufacturer of motor coaches in 2010 when it sought a public interest 
waiver from FTA. As was the case with that request, by arguing that a 
single Buy America-compliant manufacturer has cornered the market and 
can thus control prices, the commenters ignore the FTA waiver that is 
intended to address this concern. If limited competition results in a 
product ceasing to be available to FTA-funded transit agencies at a 
competitive price (measured by a greater than 25 percent differential 
between foreign-produced and Buy America-compliant vehicles), the 
appropriate action would be for the grantee to apply for a waiver based 
on price-differential.
    Claims about price inflation, however, appear to be unfounded. 
Those in favor of rescinding the waiver stated that the

[[Page 71677]]

price of the MV-1 is similar to competing vehicles.

F. U.S. Employment

    Commenters in support of rescinding the waiver stated that a 
rescission would result in more U.S. jobs. Commenters opposing the 
rescission of the waiver stated that a rescission would benefit only 
VPG and AM General employees, and would negatively impact other vehicle 
manufacturers and suppliers, including their U.S. employees. Thor 
Industries, the parent company of ElDorado, commented that since the 
waiver, ElDorado has been able to create new jobs, both directly and 
indirectly through its distribution network. Thor Industries further 
stated that a rescission of the waiver would result in a 39 percent 
decrease in ElDorado's employment.
    FTA Response: Buy America is the mechanism used by FTA to protect 
and encourage U.S. manufacturing and U.S. jobs. The regulations do not 
prohibit Chrysler, ElDorado and other manufacturers from adjusting 
their business practices to perform final assembly in the United 
States. If they took such action, they also would be able to certify 
compliance with Buy America and offer their products to FTA's grantees.

G. Safety Concerns

    Braun, among other commenters, raised safety concerns about the MV-
1, including whether the MV-1 meets the Federal Motor Vehicle Safety 
Standards (FMVSS), and the number of airbags and seatbelts in the MV-1 
compared to Chrysler minivans. Many commenters opposed to the 
rescission also noted that the MV-1 has not undergone testing per FTA's 
bus testing requirements at 49 CFR part 665.
    VPG certified that the MV-1 has met all applicable FMVSS 
requirements and received an exemption from FTA from the bus testing 
requirements of 49 CFR part 665 because of its status as an unmodified, 
mass-produced van.
    FTA Response: All vehicles purchased with FTA funds must meet all 
applicable safety requirements, which generally include certifying 
compliance with FMVSS and FTA's bus testing regulations. The MV-1 has 
satisfied these requirements.

H. Miscellaneous Comments

    A number of parties submitted miscellaneous comments. These include 
commenters that expressed concern that the MV-1 is rear wheel drive, 
which typically does not perform as well as front-wheel drive in 
extreme weather conditions such as snow or ice; not produced in 
sufficient quantity; has an 8-cylinder engine, which consumes more fuel 
than the Chrysler minivan and other similar vehicles with 6-cylinder 
engines; and that there are too few MV-1 retailers. One commenter 
requested information about the potential number of vehicles and the 
amount of FTA funding that this request affects. Other commenters 
stated that FTA should not make a decision that will only benefit one 
U.S. company or ``artificially protect'' a company from competition.
    FTA Response: FTA responds to the foregoing miscellaneous comments 
with a general statement about Buy America waivers.
    The purpose of Buy America is for the taxpayer resources used on 
FTA-funded projects to preserve and encourage U.S. manufacturing jobs. 
FTA advances this purpose by strictly enforcing Buy America rules that 
require all steel, iron, and manufactured products on FTA-funded 
projects to be produced in the United States. Thus, when considering 
whether to grant (or rescind) a waiver, FTA seeks to grant the most 
narrowly construed waiver possible. In this instance, the current 
waiver is broadly construed; it applies to all minivans and minivan 
chassis purchased with FTA funds. A more narrow approach is to rescind 
the existing waiver and then consider waivers on a case-by-case basis 
only. This approach will ensure that waivers are granted only when 
absolutely necessary, and only when construed as narrowly as possible.
    Under FTA's Buy America law, a non-availability waiver may be 
granted only 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). 
Therefore, as long as there is a manufacturer of the product in 
question that fully complies with Buy America, FTA cannot grant a non-
availability waiver or permit a non-availability waiver to stand. FTA 
finds here that there is a fully Buy America-compliant vehicle that 
meets the needs for which the original minivan waiver was granted.
    To the extent FTA is willing to consider waiver requests, they will 
be limited to procurements that include specifications based on 
performance or functional needs that cannot be met by a Buy America 
compliant product. Specifications may not be exclusionary and must 
conform to Federal requirements and guidance, including the Common 
Grant Rule and the most recent edition of FTA Circular 4220.1 ``Third 
Party Contracting Guidance.''
    Thus, the prohibition against exclusionary and discriminatory 
specifications notwithstanding, if the need arises for a non-compliant 
vehicle, recipients may petition FTA for waivers on a case-by-case 
basis. FTA will only consider waiving Buy America if the petitioner can 
articulate and has included in its procurement a performance or 
functional specifications in conformance with Federal requirements and 
guidance that failed to yield a compliant bid or offer for a U.S.-
produced vehicle.
    VPG, AM General, and Ford Motor Company responded to the commenters 
that expressed concern about adequacy of VPG's supply and network. They 
assert that the MV-1 can be produced in sufficient quantity. VPG and 
Ford commented that there are sufficient dealerships throughout the 
United States, including well-established automobile, bus, and mobility 
dealers, in addition to VPG's retail outlets, that can offer needed 
service and warranty. According to VPG, the high percentage of U.S.-
manufactured parts (approximately 75 percent U.S. content), including a 
Ford engine, in its vehicles means these parts are readily available in 
the United States.
    FTA does not collect data specifically on ``minivans'' as FTA does 
not define the term ``minivan.'' Rather, it measures the number of FTA-
funded purchases of ``vans, '' which includes minivan purchases, but 
also includes other vehicle purchases falling within the ``van'' 
category. In Fiscal Year (FY) 2011, FTA awarded $133,298,132 for 3,279 
vans.
    Regarding comments from Chrysler and others that FTA should avoid 
decisions that benefit a single entity, FTA notes that the current 
waiver has served to the near-exclusive benefit of Chrysler since 2010. 
Additionally, if Chrysler, ElDorado, or other manufacturers adjusted 
current business practices to perform final assembly in the United 
States, their vehicles also would be Buy America compliant.

III. Conclusion

    FTA has determined that a Buy America waiver for minivans and 
minivan chassis is no longer necessary because the Vehicle Production 
Group now produces a substantially similar vehicle in the United 
States, in accordance with FTA's Buy America rules. Therefore, FTA 
hereby rescinds the waiver it issued on June 21, 2010.


[[Page 71678]]


    Issued this 27th day of November, 2012.
Peter Rogoff,
Administrator.
[FR Doc. 2012-29129 Filed 11-30-12; 8:45 am]
BILLING CODE 4910-57-P