Decision To Rescind Buy America Waiver for Minivans and Minivan Chassis, 71673-71678 [2012-29129]
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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.
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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:
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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
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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.
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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
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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
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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:
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[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
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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)] * * *
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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
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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 https://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.
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14:30 Nov 30, 2012
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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
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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
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14:30 Nov 30, 2012
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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
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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.
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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.
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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 https://
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 https://
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
https://www.regulations.gov by following
the online instructions for accessing the
dockets. DOT’s complete Privacy Act
E:\FR\FM\03DEN1.SGM
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]]>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]
-----------------------------------------------------------------------
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\ https://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
