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interstate operations, involves Discussion of Comments producing a substantially similar substantial driving on highways on the FMCSA received no comments in this vehicle, the MV–1, in the United States. interstate system and on other roads proceeding. FOR FURTHER INFORMATION CONTACT: built to interstate standards. Moreover, Mary J. Lee at (202) 366–0985 or driving in congested urban areas Conclusion [email protected]. exposes the driver to more pedestrian Based upon its evaluation of the 15 SUPPLEMENTARY INFORMATION: and vehicular traffic than exists on exemption applications, FMCSA interstate highways. Faster reaction to exempts Deurice K. Dean (MD), Terry J. I. Background traffic and traffic signals is generally Edwards (MO), Raymundo Flores (TX), The Vehicle Production Group (VPG) required because distances between Charles F. Huffman (WA), Ivaylo V. petitioned the Federal Transit them are more compact. These Kanchev (FL), Charlie C. Kimmel (TX), Administration (FTA) to rescind the conditions tax visual capacity and Laine Lewin (MN), Jimmy R. Mauldin non-availability waiver it issued on June driver response just as intensely as (OK), Johnny Montemayor (TX), 21, 2010 (75 FR 35123). The waiver interstate driving conditions. The Christopher S. Morgan (LA), William T. exempted minivans and minivan veteran drivers in this proceeding have Owens (VA), Jeffrey S. Pennell (VT), chassis from the Buy America final operated CMVs safely under those Donald R. Strickland (NC), Vaughn J. assembly requirement outlined at 49 conditions for at least 3 years, most for Suhling (IL), and Max A. Thurman (IL) CFR part 661, stating that it would much longer. Their experience and from the vision requirement in 49 CFR remain in effect until such a time as a driving records lead us to believe that 391.41(b)(10), subject to the domestic source became available. each applicant is capable of operating in requirements cited above (49 CFR With few exceptions, FTA’s Buy interstate commerce as safely as he/she 391.64(b)). America requirements prevent FTA has been performing in intrastate In accordance with 49 U.S.C. 31136(e) from obligating an amount that may be commerce. Consequently, FMCSA finds and 31315, each exemption will be valid appropriated to carry out its programs that exempting these applicants from for 2 years unless revoked earlier by for a project unless ‘‘the steel, iron, and the vision requirement in 49 CFR FMCSA. The exemption will be revoked manufactured goods used in the project 391.41(b)(10) is likely to achieve a level if: (1) The person fails to comply with are produced in the United States.’’ 49 of safety equal to that existing without the terms and conditions of the U.S.C. 5323(j)(1). For FTA-funded the exemption. For this reason, the exemption; (2) the exemption has rolling stock procurements, the Buy Agency is granting the exemptions for resulted in a lower level of safety than America requirements are two-fold: (1) the 2-year period allowed by 49 U.S.C. was maintained before it was granted; or At least 60 percent of the components, 31136(e) and 31315 to the 15 applicants (3) continuation of the exemption would by dollar value, must be produced in the listed in the notice of October 1, 2012 not be consistent with the goals and United States; and (2) final assembly (77 FR 60008). objectives of 49 U.S.C. 31136 and 31315. must occur in the United States. 49 We recognize that the vision of an If the exemption is still effective at the U.S.C. 5323(j). applicant may change and affect his/her end of the 2-year period, the person may An exception to, or waiver of, the Buy ability to operate a CMV as safely as in apply to FMCSA for a renewal under America rules is allowed if ‘‘the steel, the past. As a condition of the procedures in effect at that time. iron, and goods produced in the United exemption, therefore, FMCSA will Issued on: November 23, 2012. States are not produced in a sufficient impose requirements on the 15 Larry W. Minor, and reasonably available amount or are individuals consistent with the Associate Administrator for Policy. not of a satisfactory quality.’’ 49 U.S.C. grandfathering provisions applied to 5323(j)(2)(B). [FR Doc. 2012–29160 Filed 11–30–12; 8:45 am] drivers who participated in the On June 21, 2010, in response to Agency’s vision waiver program. BILLING CODE 4910–EX–P formal requests from ElDorado National, Those requirements are found at 49 Kansas (ElDorado) and the Chrysler CFR 391.64(b) and include the DEPARTMENT OF TRANSPORTATION Group LLC (Chrysler), and after following: (1) That each individual be ascertaining through notice and physically examined every year (a) by Federal Transit Administration comment that no manufacturer of an ophthalmologist or optometrist who minivans or minivan chassis performed attests that the vision in the better eye [Docket No. FTA–2012–0029] final assembly in the United States, FTA continues to meet the requirement in 49 Decision To Rescind Buy America waived its Buy America final assembly CFR 391.41(b)(10) and (b) by a medical Waiver for Minivans and Minivan requirement for minivans and minivan examiner who attests that the individual Chassis chassis. 75 FR 35123. is otherwise physically qualified under When FTA waived the final assembly 49 CFR 391.41; (2) that each individual AGENCY: Federal Transit Administration, requirement for minivans, it declined to provide a copy of the ophthalmologist’s DOT. define the term ‘‘minivan.’’ FTA’s or optometrist’s report to the medical ACTION: Decision on request to rescind reluctance to define the term stemmed examiner at the time of the annual Buy America waiver. from its understanding that (1) among medical examination; and (3) that each the various classifications used by individual provide a copy of the annual SUMMARY: On June 21, 2010, the Federal Federal regulatory agencies, minivans medical certification to the employer for Transit Administration waived its Buy like the Chrysler Town and Country, retention in the driver’s qualification America final assembly requirement for and Dodge Caravan were not uniformly file, or keep a copy in his/her driver’s minivans and minivan chassis after placed in the same class of vehicles; 1 qualification file if he/she is self- confirming that no manufacturer was employed. The driver must have a copy willing and able to supply minivans or 1 There is no uniform definition or classification of the certification when driving, for minivan chassis that were assembled in for minivans. The closest things to a definition of a vehicle type, like ‘‘minivan,’’ are the presentation to a duly authorized the United States. Now, FTA rescinds classifications used by the National Highway Traffic Federal, State, or local enforcement the waiver after confirming that the Safety Administration (NHTSA) and the official. Vehicle Production Group has started Continued

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and (2) interested parties understood the interested parties regarding the comments from retailers and consumers, waiver would apply to the type of availability of domestically elected officials, and other interested vehicle produced by the parties that manufactured minivans and minivan persons. petitioned FTA—Chrysler and chassis in order to fully determine Many other vehicle manufacturers, ElDorado.2 Because there is no uniform whether a waiver remained necessary. suppliers and retailers, including definition or classification for The August 3, 2012 notice established Chrysler, ElDorado National-Kansas, ‘‘minivan,’’ and FTA grantees a deadline of September 4, 2012, for Thor Industries, Inc. (Thor Industries), understood that the waiver would apply interested parties to submit comments. the Braun Corporation (Braun), state to vehicles similar to those produced by Following a request from Chrysler, FTA government agencies (including Chrysler and ElDorado, FTA declined to published a second notice on August 28, Alabama, Florida, Indiana, Illinois, create a new definition or classification. 2012, extending the comment deadline Montana, Nebraska, South Dakota, Recently, an original equipment by one week, from September 4 to Virginia, and Wyoming Departments of manufacturer called the Vehicle September 11, 2012. 77 FR 52134. Transportation), transit agencies or Production Group (VPG) started II. Response to Public Comments other local transportation providers, producing a six-passenger vehicle called trade associations, an elected official, the Mobility Vehicle 1 (MV–1). The FTA received approximately 836 persons employed in the transit MV–1 is a purpose-built, wheelchair- comments in response to its notice. Of industry, and other interested parties or accessible vehicle that is substantially the 836 comments, three comments persons opposed or raised significant similar to a minivan. According to VPG were posted to the docket in error, and concerns about VPG’s request to rescind sales materials, the MV–1 seats up to six 88 comments were filed after the the waiver. adults, with one full-size wheelchair. September 11, 2012 deadline. FTA Wheelchairs enter the MV–1 via a ramp considered all comments submitted to B. The Definition of ‘‘Minivan’’ that stows under the vehicle and the docket on or before September 19, The commenters opposing rescission deploys to the passenger side. It is 2012. of the waiver argued that the MV–1 is available with a Ford Modular 4.6 liter The commenters represent a broad not a ‘‘minivan,’’ and thus, minivans V8 engine and can be purchased with an spectrum of stakeholders from remain unavailable from a U.S. source. engine that runs on gasoline or throughout the United States and These commenters asserted that compressed natural gas (CNG). AM include elected officials, state and local minivans and the MV–1 differ in several General LLC (AM General) assembles governments, transit and other local respects—size, sliding side doors, the MV–1 at its plant in Mishawaka, government agencies, transportation passenger capacity, wheelchair capacity, Indiana. VPG certifies that the MV–1 providers, trade associations, vehicle rear entry vs. side entry for wheelchairs, complies with Buy America manufacturers, suppliers and retailers, a seating arrangements, rear- vs. front- requirements for both domestic content labor union, members of the disability wheel drive, and fuel economy. and final assembly. Moreover, VPG community, and numerous persons in Chrysler, for example, stated that its maintains that it manufactures the MV– their individual capacity. customers ‘‘will not consider the MV–1 1 in sufficient quantity to meet the The following is FTA’s response to to be a suitable replacement for our current and future demand on FTA- the substantive comments. FTA minivans[, which] * * * are front- funded projects. responds to public comments in the wheel drive vehicles with a 6-cylinder Based on the fact that it produces the following topical order: (A) General engine.’’ According to Chrysler, ‘‘[t]he MV–1 in the United States, VPG Comments; (B) Definition of a MV–1 is a rear-wheel drive vehicle with petitioned FTA to rescind the Buy ‘‘Minivan’’; (C) Minivan Use for an 8-cylinder engine, which is more like America final assembly waiver it issued Paratransit Transportation Services; (D) an SUV than a minivan.’’ Chrysler on June 21, 2010, for minivans and Minivan Use for Vanpool Services; (E) further stated that: minivan chassis. Competition and Price Concerns; (F) As a paratransit vehicle, the MV–1 Pursuant to VPG’s request, FTA U.S. Employment; (G) Safety Concerns; falls short of traditional minivans. published a notice in the Federal and (H) Miscellaneous Comments. • Register on August 3, 2012, calling for Chrysler minivans converted for Several commenters raised issues that paratransit use have more seating capacity comments on VPG’s request to rescind are outside the scope of FTA’s request than the MV–1. The Chrysler wheelchair the 2010 Buy America waiver for for comments. FTA declines to address accessible minivan is typically configured to minivans and minivan chassis. 75 FR those concerns in this Decision. carry 4 ambulatory passengers and 2 35124. FTA sought comment from all wheelchair passengers. The MV–1 A. General Comments configuration that provides 2 wheelchair Environmental Protection Agency (EPA) to regulate Many commenters expressed support positions only have space for one ambulatory safety and control emissions. However, NHTSA’s for Buy America and its purposes, person—the driver. classifications do not uniformly group vehicles *** from one regulation to the next. For example, under including its intent to support U.S. NHTSA’s Corporate Average Fuel Economy (CAFE) manufacturing and employment. Most ElDorado also commented that the standards, most ‘‘minivans,’’ like Chrysler’s Town commenters generally stated that these MV–1 is ‘‘not a minivan’’ but a and Country, fall under the class of ‘‘light trucks.’’ are difficult economic times and ‘‘Mobility Vehicle,’’ the first of its kind. However, when regulating safety, the same vehicle is classified as a ‘‘multipurpose passenger vehicle,’’ highlighted FTA’s role in assisting U.S. ElDorado reasoned that the MV–1 which includes vehicles built on a truck chassis (or manufacturers. cannot be a minivan, as most minivans with special features for occasional off-road Hundreds of employees from VPG, do not come equipped with a standard operation) that carry ten persons or less. See 49 CFR AM General, the International Union, wheelchair ramp. 571.3. These distinct classification systems highlight the differences in vehicles based upon United Automobile, Aerospace, and Thor Industries, the parent company various factors, such as fuel economy or passenger Agricultural Implement Workers of to ElDorado, made a similar comment capacity, but each classification system uses America (UAW), Amalgamated UAW and also stated that the MV–1 is not a different factors. Local 5, the Ford Motor Company, and minivan, but ‘‘the first ‘Mobility 2 Chrysler is the Original Equipment Manufacturer (OEM) of specific model minivans. many other VPG suppliers submitted Vehicle’ of its kind.’’ Moreover, ElDorado modifies these same Chrysler model comments in favor of rescinding the according to Thor Industries, the MV–1 minivans into wheelchair-accessible vehicles. waiver. FTA also received favorable has significantly different features from

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a ‘‘typical ElDorado minivan.’’ It that the MV–1 is qualified as a The reason NHTSA created the new provided a table to illustrate the minivan.’’ minivan definition was clearly explained in differences it perceived between Regarding comments about the MV– the final rule: ElDorado’s Amerivan Minivan (built on 1’s seating capacity, VPG responded that ‘‘Specifically, unlike the smaller passenger a Grand Dodge Caravan and Chrysler the MV–1 seats six (including the driver cars, all minivans feature three rows of seats, thus offering greater passenger carrying Town and Country chassis) and the and 1 wheelchair) and stated that capability’’ [footnote omitted.]’’ MV–1. Thor Industries claimed the Braun’s installation of a 2 passenger flip In addition to furthering our goal of Amerivan Minivan has the following seat to seat seven passengers ‘‘prevents subjecting all minivans to the CAFE standard features that are lacking on the MV–1: wheelchair passengers from utilizing the for light trucks, the provision adopted today one-touch automatic operation for the vehicle for its intended purpose, limits the number of vehicles that will be door and ramp, sliding power ramp specifically, providing wheelchair reclassified as light trucks.’’ [Footnote door, kneeling rear suspension, accessible transportation.’’ In response omitted.] removable driver seating for the to the MV–1’s lack of a fixed front seat, The practical effect of NHTSA’s rule wheelchair driver, a removable ‘‘co- VPG commented that: change was to make certain that vehicles with only two rows of seating as standard pilot’’ seat, driver/passenger transfer [The MV–1 was designed] without a fixed equipment would no longer be classified as seat option, three wheelchair front seat in order to permit the wheelchair minivans and no longer be able to compete securement locations, bus-tested at the passenger the opportunity to ride in under the non-passenger vehicle, or truck, Altoona Bus Research and Testing proximity to the driver, which our research CAFE standards. informed us was the preferred position of the Center (Altoona), seven airbags, Braun further stated that: integrated lap/shoulder seat belts for the wheelchair passenger, despite the fact that wheelchair user, driver/front passenger ‘‘converted’’ vehicles never allowed that A careful examination of the MV–1 vehicle freedom of choice and perspective to a advanced head restraints, front wheel provides the following information: wheelchair-using passenger. We note, 1. The MV–1 does not have three rows of drive, the ‘‘lowest ground to floor height however, that the MV–1 has multiple tracks seats that are standard equipment, in the industry,’’ and ‘‘dependable for the restraint system, so that a wheelchair 2. Even if NHTSA were to determine that structure as proven by Altoona and in- passenger, when desired or required, can be a single seating position in the front of a service record,’’ a spare tire, various separated from the driver. vehicle (as provided in the MV–1) constitutes convenience or comfort options, rear Braun responded to VPG’s comments a ‘‘row’’ and that a single rear-facing jump heat and air conditioning, a 6-cylinder by stating that the MV–1 does not have seat in the middle constitutes a ‘‘row,’’ the engine (compared to the MV–1’s 8- ‘‘substantially similar attributes to’’ a middle jump seat is not standard equipment on the MV–1. cylinder engine), a fuel economy of 17 minivan based upon fuel economy city miles per gallon (mpg) (compared to 3. The MV–1 does not have the ability to because: remove or stow seats to create a flat-leveled the MV–1’s 13 city mpg), 25 highway surface for cargo-carrying purposes. The aft miles per gallon (compared to the MV– * * * [I]t is evident that the VPG MV–1 has a [Gross Vehicle Weight Rating or] GVWR seating of the MV–1 is fixed, and not 1’s 18 highway mpg), and a range of 500 rating of 6,600 lbs, falling between the 2005 removable or stowable. miles (compared to the MV–1’s range of Ford Econoline full size van and F–150 4. Whereas all minivans produced and sold 350 miles). pickup truck. Since these two vehicles were in the U.S. today feature front-wheel drive Another commenter that claimed the the only Ford trucks using this powertrain unibody construction, the MV–1 is a rear- MV–1 is not a minivan, Braun, noted [4.6L V8 RWD 4-speed] in Model 2005 and wheel drive vehicle body-on-frame vehicle. the following differences: the only Ford vehicles with ‘‘substantially Because of this, the propeller shaft mates to similar attributes’’ as required under [the the rear-drive differential at the rear axle and [The MV–1 is] limited to 5 ambulatory U.S. Department of Energy’s (DOE) Advanced the floor p[l]an rises under the aft vehicle passengers with 1 wheelchair, or a driver and Technology Vehicle Manufacturing or] seating to accommodate this component. The 2 wheelchair passengers’’ while ‘‘the ATVM program rules, it can only be MV–1 has a two-tier floor p[l]an for both commercial Braun wheelchair accessible concluded that these vehicles were used as gasoline and CNG versions, it therefore is minivan is typically configured to carry 4 the basis upon which DOE granted the loan impossible to create a flat, leveled surface to ambulatory passengers and 2 wheelchair to VPG. Ford did not manufacture a minivan the rear of the automobile as clearly specified passengers, and may also be reconfigured to in 2005 that employed the powertrain under NHTSA’s minivan definition. carry 5 ambulatory and 1 wheelchair featured in VPG’s loan application and in the passengers. The unconverted Chrysler Braun also cited current production MV–1. vehicle covered by the waiver is a 7 www.fueleconomy.gov, which is passenger commuter vehicle configuration. It can only be concluded based on the above comparison that the VPG’s loan was maintained by DOE using EPA fuel Other differences identified by Braun based on a comparison to a full size van and economy data, to show that the MV–1 include the fact that the MV–1 has no a pickup truck, and never to a minivan. We is classified as a ‘‘Special Purpose fixed front passenger seat nor an airbag maintain that the ‘‘vehicles with Vehicle 2WD’’ and not as a minivan. for this seat, is rear-wheel drive, utilizes substantially similar attributes’’ found in the Finally, Braun supplemented its a swing door for wheelchairs, ‘‘which ATVM technical documentation were full comments with a response that FTA limits access through the front size vans and/or pickup trucks, and not classified the MV–1 as an ‘‘unmodified minivans. passenger door,’’ has a V–8 engine while mass-produced van,’’ and not a Chrysler minivans use a V–6 engine, Braun also alleged that the MV–1 does minivan. and the MV–1 does not offer a rear-entry not meet the National Highway Traffic FTA Response: Neither FTA’s option for wheelchairs. Safety Administration’s (NHTSA) authorizing legislation nor its VPG rebutted these claims in its definition of a minivan. Braun cited implementing regulations define the comments, stating that FTA classified NHTSA’s Final Rule for average fuel term ‘‘minivan.’’ NHTSA does classify the MV–1 as a minivan when FTA economy standards for light trucks vehicles for purposes of regulating exempted the MV–1 from its bus testing model years 2008–2011 (49 CFR part emissions and safety, but these requirements at 49 CFR part 665, and 523) published in 71 FR 17566 on April classifications do not uniformly group ‘‘[w]hatever it [the MV–1] may be called 6, 2006. Braun commented that: vehicles from one regulation to the next. in other contexts, for purposes of Buy NHTSA’s 2008–2011 final rule tightened This is why, for purposes of various America, it has been indisputably the minivan definition [under 49 CFR Federal regulations, a minivan like established by FTA under due authority 523.5(a)(5)(ii)] * * * Chrysler’s Town and Country is not

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always in the same class. For example, minivans. The comments noted least 6 adults (not including the driver). under NHTSA’s CAFE standard, most performance problems (such as binding * * *’’ According to the comments, the ‘‘minivans’’ fall under the class of ‘‘light as a result of ice and gravel collection) MAP–21 definition excludes the MV–1 trucks.’’ The MV–1 is in a different class with under-floor ramps like those (with a seating capacity of only 6, under the CAFE standard because it equipped on the MV–1. They also including the driver) and includes does not have three rows of removable questioned whether the MV–1 could, in Chrysler minivans (with a slightly seats or seats that stow away into a flat fact, accommodate more than one higher seating capacity). Therefore, or level surface. See 49 CFR 523.5(a)(5). wheelchair at a time. Other commenters these commenters stated that, while the When regulating safety, however, both stated that the MV–1 has smaller overall MV–1 may be acceptable for paratransit the MV–1 and traditional ‘‘minivans’’ passenger capacity compared to service, the MV–1 would not qualify for fall under the class of ‘‘multipurpose traditional minivans. One local transit FTA-funded vanpool service. passenger vehicles,’’ which includes all agency responsible for providing FTA Response: While the definition of vehicles that carry ten persons or less paratransit services commented that its ‘‘vanpool,’’ now codified at 49 U.S.C. and are constructed on a truck chassis fleet includes both the MV–1 and the 5323(i)(2)(C)(ii), applies to certain FTA- (or with special features for occasional Dodge Caravan and, while both are funded vanpool projects, FTA prefers to off-road operation). See 49 CFR 571.3. useful in providing paratransit services, consider waiver requests for limited These distinct classification systems they are very different vehicles and the circumstances and on a procurement- highlight the differences in vehicles MV–1’s rear facing seat is not useable by-procurement basis rather than based upon various factors, such as fuel for many of the services it provides. waiving the Buy America requirements economy or passenger capacity, but FTA Response: As stated above, under for an entire class of vehicles in all each classification system uses different FTA’s Buy America law, a non- circumstances. If an FTA recipient factors. There is no uniform availability waiver may be granted only requests a waiver for a vanpool categorization. if ‘‘the steel, iron, and goods produced purchase, FTA will review the Braun also cites DOE and EPA in the United States are not produced in procurement based upon established categories based upon fuel economy to a sufficient and reasonably available requirements and guidance for third show that the MV–1 is a ‘‘special amount or are not of a satisfactory party procurements, including the purpose vehicle’’ rather than a quality.’’ 49 U.S.C. 5323(j)(2)(B). Common Grant Rule and the most ‘‘minivan.’’ These categories and their Therefore, as long as there is a domestic recent edition of FTA Circular 4220.1 corresponding data are listed at manufacturer for a product, FTA cannot ‘‘Third Party Contracting Guidance. www.fueleconomy.gov, which DOE grant a non-availability waiver or permit E. Competition and Price Concerns maintains with data from EPA. EPA’s a non-availability waiver to stand. FTA Web site, however, specifically states finds here that there is a U.S.-made Most of the comments opposing that ‘‘[t]hese categories are used for vehicle—the MV–1—that can rescission of the waiver stated that such labeling and consumer information sufficiently meet the needs for which a rescission would eliminate purposes and do not serve any other the minivan non-availability waiver was competition of vehicle manufacturers regulatory purpose.’’ 3 Accordingly, the issued. Procurement decisions must be and suppliers and result in de facto fact that the MV–1 may not fall under made based on performance or sole-source procurements. According to the ‘‘minivan’’ category for purposes of functional needs defined in Chrysler, ElDorado, Braun, and other EPA’s comparisons of vehicles based conformance with Federal regulations vehicle manufacturers and suppliers, upon fuel economy is immaterial to Buy and guidance, including the ‘‘Common rescission of the waiver would create a America. Grant Rule’’ and the most recent edition public transportation monopoly in favor Thus, to avoid the confusion that may of FTA Circular 4220.1 ‘‘Third Party of VPG and indicated their prediction result from creating a new vehicle Contracting Guidance.’’ If the need that prices would rise from the lack of classification system, FTA will not arises for a non-compliant vehicle under competition. State DOTs, local transit differentiate or define a ‘‘minivan’’ for Buy America, recipients of FTA agencies, and other transit providers purposes of Buy America. In applying or financial assistance may petition FTA made similar comments. waiving Buy America rules, FTA will for waivers on a case-by-case basis. In FTA Response: This argument is make decisions based upon the reviewing any waiver request, FTA only similar to one presented by a performance or functional specifications will consider waiving Buy America if manufacturer of motor coaches in 2010 used by FTA grantees in actual the petitioner can articulate and has when it sought a public interest waiver procurements in conformance with included in its procurement a from FTA. As was the case with that Federal requirements and guidance, performance or functional specification request, by arguing that a single Buy including the ‘‘Common Grant Rule’’ (49 in conformance with Federal America-compliant manufacturer has CFR parts 18 and 19) and the most requirements and guidance that failed to cornered the market and can thus recent edition of FTA Circular 4220.1 yield a compliant bid or offer for a U.S.- control prices, the commenters ignore ‘‘Third Party Contracting Guidance.’’ produced vehicle. the FTA waiver that is intended to address this concern. If limited C. Minivan Use for Paratransit D. Minivan Use for Vanpool Services competition results in a product ceasing Transportation Services A significant number of commenters to be available to FTA-funded transit Several commenters pointed out the claim the MV–1 is solely a paratransit agencies at a competitive price differences between the MV–1’s vehicle and does not qualify for FTA (measured by a greater than 25 percent accessibility features and the funding for vanpool services. The differential between foreign-produced accessibility features of traditional comments cite the Moving Ahead for and Buy America-compliant vehicles), Progress in the 21st Century Act (MAP– the appropriate action would be for the 3 http://www.epa.gov/carlabel/ 21), Public Law 112–141, § 20016 (to be grantee to apply for a waiver based on gaslabelreadmore.htm. While EPA has its own codified at 49 U.S.C. 5323(i)). MAP–21 price-differential. classification system for purposes of regulating vehicle emissions (40 CFR part 86), this further changed the definition of ‘‘vanpool Claims about price inflation, however, shows that classifications systems differ based upon vehicle’’ to mean a vehicle that has a appear to be unfounded. Those in favor specifications and features. See 49 CFR 86.1803–01. ‘‘* * * seating capacity of which is at of rescinding the waiver stated that the

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price of the MV–1 is similar to conditions such as snow or ice; not recent edition of FTA Circular 4220.1 competing vehicles. produced in sufficient quantity; has an ‘‘Third Party Contracting Guidance.’’ 8-cylinder engine, which consumes F. U.S. Employment Thus, the prohibition against more fuel than the Chrysler minivan exclusionary and discriminatory Commenters in support of rescinding and other similar vehicles with 6- specifications notwithstanding, if the the waiver stated that a rescission cylinder engines; and that there are too would result in more U.S. jobs. need arises for a non-compliant vehicle, few MV–1 retailers. One commenter recipients may petition FTA for waivers Commenters opposing the rescission of requested information about the the waiver stated that a rescission on a case-by-case basis. FTA will only potential number of vehicles and the consider waiving Buy America if the would benefit only VPG and AM amount of FTA funding that this request General employees, and would petitioner can articulate and has affects. Other commenters stated that included in its procurement a negatively impact other vehicle FTA should not make a decision that performance or functional specifications manufacturers and suppliers, including will only benefit one U.S. company or in conformance with Federal their U.S. employees. Thor Industries, ‘‘artificially protect’’ a company from requirements and guidance that failed to the parent company of ElDorado, competition. commented that since the waiver, yield a compliant bid or offer for a U.S.- FTA Response: FTA responds to the produced vehicle. ElDorado has been able to create new foregoing miscellaneous comments with jobs, both directly and indirectly a general statement about Buy America VPG, AM General, and Ford Motor through its distribution network. Thor waivers. Company responded to the commenters Industries further stated that a The purpose of Buy America is for the that expressed concern about adequacy rescission of the waiver would result in taxpayer resources used on FTA-funded of VPG’s supply and network. They a 39 percent decrease in ElDorado’s projects to preserve and encourage U.S. assert that the MV–1 can be produced in employment. manufacturing jobs. FTA advances this sufficient quantity. VPG and Ford FTA Response: Buy America is the purpose by strictly enforcing Buy commented that there are sufficient mechanism used by FTA to protect and America rules that require all steel, iron, dealerships throughout the United encourage U.S. manufacturing and U.S. and manufactured products on FTA- States, including well-established jobs. The regulations do not prohibit funded projects to be produced in the automobile, bus, and mobility dealers, Chrysler, ElDorado and other United States. Thus, when considering in addition to VPG’s retail outlets, that manufacturers from adjusting their whether to grant (or rescind) a waiver, can offer needed service and warranty. business practices to perform final FTA seeks to grant the most narrowly According to VPG, the high percentage assembly in the United States. If they construed waiver possible. In this of U.S.-manufactured parts took such action, they also would be instance, the current waiver is broadly (approximately 75 percent U.S. content), able to certify compliance with Buy construed; it applies to all minivans and including a Ford engine, in its vehicles America and offer their products to minivan chassis purchased with FTA means these parts are readily available FTA’s grantees. funds. A more narrow approach is to in the United States. G. Safety Concerns rescind the existing waiver and then FTA does not collect data specifically Braun, among other commenters, consider waivers on a case-by-case basis on ‘‘minivans’’ as FTA does not define raised safety concerns about the MV–1, only. This approach will ensure that the term ‘‘minivan.’’ Rather, it measures including whether the MV–1 meets the waivers are granted only when the number of FTA-funded purchases of Federal Motor Vehicle Safety Standards absolutely necessary, and only when ‘‘vans, ’’ which includes minivan (FMVSS), and the number of airbags and construed as narrowly as possible. purchases, but also includes other seatbelts in the MV–1 compared to Under FTA’s Buy America law, a non- vehicle purchases falling within the Chrysler minivans. Many commenters availability waiver may be granted only ‘‘van’’ category. In Fiscal Year (FY) opposed to the rescission also noted that if ‘‘the steel, iron, and goods produced 2011, FTA awarded $133,298,132 for the MV–1 has not undergone testing per in the United States are not produced in 3,279 vans. a sufficient and reasonably available FTA’s bus testing requirements at 49 Regarding comments from Chrysler CFR part 665. amount or are not of a satisfactory quality.’’ 49 U.S.C. 5323(j)(2)(B). and others that FTA should avoid VPG certified that the MV–1 has met decisions that benefit a single entity, all applicable FMVSS requirements and Therefore, as long as there is a manufacturer of the product in question FTA notes that the current waiver has received an exemption from FTA from served to the near-exclusive benefit of the bus testing requirements of 49 CFR that fully complies with Buy America, FTA cannot grant a non-availability Chrysler since 2010. Additionally, if part 665 because of its status as an Chrysler, ElDorado, or other unmodified, mass-produced van. waiver or permit a non-availability waiver to stand. FTA finds here that manufacturers adjusted current business FTA Response: All vehicles practices to perform final assembly in purchased with FTA funds must meet there is a fully Buy America-compliant vehicle that meets the needs for which the United States, their vehicles also all applicable safety requirements, would be Buy America compliant. which generally include certifying the original minivan waiver was compliance with FMVSS and FTA’s bus granted. III. Conclusion testing regulations. The MV–1 has To the extent FTA is willing to satisfied these requirements. consider waiver requests, they will be FTA has determined that a Buy limited to procurements that include America waiver for minivans and H. Miscellaneous Comments specifications based on performance or minivan chassis is no longer necessary A number of parties submitted functional needs that cannot be met by because the Vehicle Production Group miscellaneous comments. These include a Buy America compliant product. now produces a substantially similar commenters that expressed concern that Specifications may not be exclusionary vehicle in the United States, in the MV–1 is rear wheel drive, which and must conform to Federal accordance with FTA’s Buy America typically does not perform as well as requirements and guidance, including rules. Therefore, FTA hereby rescinds front-wheel drive in extreme weather the Common Grant Rule and the most the waiver it issued on June 21, 2010.

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Issued this 27th day of November, 2012. defect or noncompliance. Therefore, inflation pressure, etc. * * *) are also Peter Rogoff, these provisions only apply to the correct for the mislabeled tires. Administrator. subject 1,692 2 tires that Goodyear no 3. The subject tires are identical to the [FR Doc. 2012–29129 Filed 11–30–12; 8:45 am] longer controlled at the time it intended LR–C tire with the exception of the sidewall labeling, and therefore, BILLING CODE 4910–57–P determined that the noncompliance existed. do not present a safety concern. Noncompliance: Goodyear explains Goodyear has additionally informed DEPARTMENT OF TRANSPORTATION that the noncompliance is that, due to NHTSA that it has corrected future a mold labeling error, the subject tires production and that all other tire National Highway Traffic Safety are incorrectly labeled as LR–E/Max labeling information is correct. Administration Load 3415 lbs Max Pressure 80 psi when In summation, Goodyear believes that the described noncompliance of its tires [Docket No. NHTSA–2012–0107; Notice 1] they should have been labeled as LR– CE/Max Load 2535 lbs Max Pressure 50 is inconsequential to motor vehicle safety, and that its petition, to exempt The Goodyear Tire & Rubber psi and thus do not conform to the it from providing recall notification of Company, Receipt of Petition for requirements of 49 CFR 571.139 noncompliance as required by 49 U.S.C. Decision of Inconsequential paragraph S5.5(c)&(d). 30118 and remedying the recall Noncompliance Rule Text: Paragraph S5.5 of FMVSS No. 139 requires in pertinent part: noncompliance as required by 49 U.S.C. 30120 should be granted. AGENCY: National Highway Traffic S5.5 Tire markings. Except as specified in Safety Administration, DOT. paragraphs (a) through (i) of S5.5, each tire Comments: Interested persons are ACTION: Receipt of petition. must be marked on each sidewall with the invited to submit written data, views, information specified in S5.5(a) through (d) and arguments on this petition. SUMMARY: The Goodyear Tire & Rubber and on one side-wall with the information Comments must refer to the docket and Company (GOODYEAR),1 has specified in S5.5(e) through (i) according to notice number cited at the beginning of determined that certain Goodyear brand the phase-in schedule specified in S7 of this this notice and be submitted by any of tires manufactured between April 8, standard. The markings must be placed the following methods: 2012 and May 12, 2012, do not fully between the maximum section width and the a. By mail addressed to: U.S. bead on at least one sidewall, unless the comply with paragraph S5.5(c)&(d) of Department of Transportation, Docket maximum section width of the tire is located Operations, M–30, West Building Federal Motor Vehicle Safety Standard in an area that is not more than one-fourth (FMVSS) No. 139, New Pneumatic of the distance from the bead to the shoulder Ground Floor, Room W12–140, 1200 Radial Tires for Light Vehicles. of the tire. If the maximum section width that New Jersey Avenue SE., Washington, Goodyear has filed an appropriate report falls within that area, those markings must DC 20590. dated July 20, 2012, pursuant to 49 CFR appear between the bead and a point one-half b. By hand delivery to U.S. part 573, Defect and Noncompliance the distance from the bead to the shoulder of Department of Transportation, Docket Responsibility and Reports. the tire, on at least one sidewall. The Operations, M–30, West Building Pursuant to 49 U.S.C. 30118(d) and markings must be in letters and numerals not Ground Floor, Room W12–140, 1200 less than 0.078 inches high and raised above New Jersey Avenue SE., Washington, 30120(h) (see implementing rule at 49 or sunk below the tire surface not less than CFR Part 556), Goodyear submitted a DC 20590. The Docket Section is open 0.015 inches * * * on weekdays from 10 a.m. to 5 p.m. petition for an exemption from the (c) The maximum permissible inflation notification and remedy requirements of pressure, subject to the limitations of S5.5.4 except Federal Holidays. 49 U.S.C. Chapter 301 on the basis that through S5.5.6 of this standard; c. Electronically: By logging onto the this noncompliance is inconsequential (d) The maximum load rating and for LT Federal Docket Management System to motor vehicle safety. tire, the letter designating the tire load range (FDMS) Web site at http:// This notice of receipt of Goodyear’s *** www.regulations.gov/. Follow the online petition is published under 49 U.S.C. Summary of Goodyear’s Analysis and instructions for submitting comments. 30118 and 30120 and does not represent Arguments: Comments may also be faxed to 1–202– any agency decision or other exercise of Goodyear believes that while the 493–2251. judgment concerning the merits of the noncompliant tires incorrectly state the Comments must be written in the petition. load range as required by FMVSS No. English language, and be no greater than Vehicles Involved: Affected are 139, it is inconsequential as it relates to 15 pages in length, although there is no approximately 1,692 Goodyear Wrangler motor vehicle safety for the following limit to the length of necessary AT/S, size LT 275/65R18 brand tires reasons: attachments to the comments. If manufactured between April 8, 2012, 1. The subject tires meet or exceed all comments are submitted in hard copy and May 12, 2012 at its plant in applicable FMVSS performance form, please ensure that two copies are Gadsden, Alabama. standards for a tire labeled as either load provided. If you wish to receive NHTSA notes that the statutory range ‘‘E’’ or ‘‘C’’. confirmation that your comments were provisions (49 U.S.C. 30118(d) and 2. All other markings related to tire received, please enclose a stamped, self- 30120(h)) that permit manufacturers to service (load capacity, corresponding addressed postcard with the comments. file petitions for a determination of Note that all comments received will be inconsequentiality allow NHTSA to 2 Goodyear’s petition, which was filed under 49 posted without change to http:// CFR Part 556, requests an agency decision to www.regulations.gov, including any exempt manufacturers only from the exempt Goodyear as an equipment manufacturer duties found in sections 30118 and personal information provided. from the notification and recall responsibilities of Documents submitted to a docket may 30120, respectively, to notify owners, 49 CFR Part 573 for the 1,692 affected tires. be viewed by anyone at the address and purchasers, and dealers of a defect or However, a decision on this petition will not relieve vehicle distributors and dealers of the prohibitions times given above. The documents may noncompliance and to remedy the on the sale, offer for sale, introduction or delivery also be viewed on the Internet at for introduction into interstate commerce of the 1 Goodyear Tire & Rubber Company, is a noncompliant vehicles under their control after http://www.regulations.gov by following manufacturer of replacement equipment and is Goodyear notified them that the subject the online instructions for accessing the registered under the laws of the state of Ohio. noncompliance existed. dockets. DOT’s complete Privacy Act

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