[Federal Register Volume 75, Number 118 (Monday, June 21, 2010)]
[Notices]
[Pages 35123-35124]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-14992]
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DEPARTMENT OF TRANSPORTATION
Federal Transit Administration
[Docket No. FTA-2009-0002]
Notice of Buy America Waiver for Minivans and Minivan Chassis
AGENCY: Federal Transit Administration (FTA), DOT.
ACTION: Notice of Buy America Waiver.
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SUMMARY: In response to formal requests from El Dorado National,
Kansas, and Chrysler Group LLC, and informal requests from several
other parties, and based on the fact that no manufacturer has
identified itself as willing and able to supply minivans or minivan
chassis that are assembled in the United States, the Federal Transit
Administration hereby waives its Buy America final assembly requirement
for minivans and minivan chassis. This waiver is valid until such time
as a domestic source becomes available.
FOR FURTHER INFORMATION CONTACT: For questions please contact Jayme L.
Blakesley at (202) 366-0304 or [email protected].
SUPPLEMENTARY INFORMATION:
El Dorado National, Kansas (``El Dorado'') asked the Federal
Transit Administration (``FTA'') to waive its Buy America requirements,
on the basis of non-availability, for minivan chassis manufactured and
assembled by Chrysler in Ontario, Canada. El Dorado uses Chrysler
minivan chassis to manufacture its Amerivan lowered-floor minivans. In
its request for a waiver, El Dorado asserts that General Motors and
Chrysler minivan chassis, including those used on the Chevrolet
Uplander, Pontiac Montana, Buick Terraza, Saturn Relay, Chrysler Town &
Country, and Dodge Grand Caravan, are no longer manufactured in the
United States. El Dorado manufactures its product by purchasing
Chrysler minivan chassis, replacing the floor, installing wheelchair
securement equipment, and adding a ramp to the side door. According to
El Dorado, in 2008 General Motors and Chrysler stopped manufacturing
minivans in the United States. The absence of a domestic source for
minivan chassis has severely impacted El Dorado; 75% of its sales are
to FTA grantees.
By subsequent letter dated March 5, 2010, the Chrysler Group LLC
(``Chrysler'') requested a public interest waiver of the final assembly
requirements for minivans and minivan chassis. According to Chrysler,
minivans are no longer available from a domestic source--Chrysler
closed its St. Louis final assembly facility in 2008; Honda has
declined to make its minivans eligible for purchase with FTA funds;
Nissan may change its final assembly location from the United States to
Japan; and Toyota has not responded to public procurements.\1\
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\1\ Contrary to Chrysler's assertion that Toyota has not
responded to public procurements, in May 2010 FTA learned that
Toyota may have certified compliance with the Buy America
requirements when it supplied minivans to a transit provider. FTA
attempted to communicate with Toyota by letter, e-mail, and
telephone to determine whether Toyota is willing and able to supply
Buy America-compliant minivans. Toyota has not responded. Therefore,
until such time as Toyota can document its willingness and ability
to comply with FTA's Buy America requirements, Toyota minivans will
not be eligible for purchase with FTA funds.
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In addition to the requests from El Dorado and Chrysler, FTA has
received many inquiries from its grantees about the non-availability of
minivans from a domestic source. According to these grantees, minivans
are no longer available from a source that is willing or able to comply
with FTA's Buy America requirements.
With certain exceptions, FTA's ``Buy America'' requirements prevent
FTA from obligating an amount that may be appropriated to carry out its
program for a project unless ``the steel, iron, and manufactured goods
used in the project are produced in the United States.'' 49 U.S.C.
5323(j)(1). One such exception is if ``the steel, iron, and goods
produced in the United States are not produced in a sufficient and
reasonably available amount or are not of a satisfactory quality.'' 49
U.S.C. 5323(j)(2)(B). In the case of a specific procurement, FTA
presumes that the conditions exist to a waiver if no responsive and
responsible bid is received offering an item produced in the United
States. For requests that will affect an entire industry, FTA will not
waive its Buy America requirements until it can ascertain whether the
item truly is not available from a domestic source.
In order to verify El Dorado's assertion that minivans and minivan
chassis are not available from a
[[Page 35124]]
domestic source, on April 2, 2009, FTA published a notice in the
Federal Register seeking public comment. Unlike with public interest
waivers, FTA is not required to publish a notice in the Federal
Register before waiving its Buy America requirements on the basis of
non-availability. In this instance, however, FTA proceeded with an
abundance of caution because a non-availability waiver would have a
national impact. In order to understand completely the facts
surrounding the El Dorado's request, FTA asked for comment from all
interested parties regarding the availability of domestically
manufactured minivans and minivan chassis.
Approximately three dozen parties responded to FTA's notice by
submitting comments to the Docket, including vehicle manufacturers,
transit service providers, transit agencies, cities, counties,
metropolitan planning organizations, transportation associations, and
state departments of transportation. The overwhelming majority of
comments expressed support for a waiver, recognizing the fact that
minivans are not available from a domestic source. One commenter asked
for additional information. Three parties opposed a waiver. Of note,
FTA received comments from a direct competitor to El Dorado--the Braun
Corporation--and two minivan manufacturers--Chrysler and Honda. With
the exception of Honda, all parties confirmed El Dorado's assertion
that minivans and minivan chassis are not available from a domestic
source. Toyota, Nissan and other minivan manufacturers did not submit
comments.
In a short, three-paragraph comment dated June 11, 2009, Honda
indicated that it manufactures its Odyssey LX model minivan in Lincoln,
Alabama, and asserted that it complies with FTA's Buy America domestic
content and final assembly requirements. However, after several months
of correspondence with FTA, Honda declined to make its minivans
available for procurement by FTA grantees based on concerns about the
disclosure of detailed cost information. Thus, while Honda claims that
its Odyssey model minivan meets the domestic content and final assembly
requirements of FTA's regulations, FTA grantees would still be
precluded from purchasing the Odyssey because Honda is unwilling to
comply with FTA's pre-award/post-delivery audit requirements.
Of the many comments favoring a waiver, most expressed support only
because minivans are not, in fact, available from a domestic source.
Several commenters noted their desire to see minivan production return
to the United States. FTA shares this desire. FTA regrets the fact that
Chrysler elected to close its St. Louis final assembly facility and
that other manufacturers of minivans have decided not to make their
vehicles available for purchase with FTA funds.
The above reservations notwithstanding, the fact remains--minivans
and minivan chassis are not available from a domestic source.
Therefore, after careful consideration, and based on the fact that no
manufacturer has identified itself as willing and able to supply
minivans or minivan chassis that are assembled in the United States,
FTA hereby waives its Buy America final assembly requirement of 49 CFR
661.11 for all minivans and minivan chassis, regardless of
manufacturer. Minivan manufacturers will need to comply with FTA's
domestic content requirement as well as the pre-award and post-delivery
audit requirements of 49 CFR part 663. This waiver is valid until such
time as a domestic source, as verified by FTA, becomes available.
Issued this 15th day of June, 2010.
Dorval R. Carter, Jr.,
Chief Counsel.
[FR Doc. 2010-14992 Filed 6-18-10; 8:45 am]
BILLING CODE 4910-57-P