
[Federal Register: August 20, 2009 (Volume 74, Number 160)]
[Notices]
[Page 42142-42144]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr20au09-98]

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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

[Docket No. NHTSA-2009-0008]


Beall Corporation; Grant of Application for a Temporary Exemption
From FMVSS No. 224

AGENCY: National Highway Traffic Safety Administration (NHTSA),
Department of Transportation (DOT).

ACTION: Grant of petition for temporary exemption.

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SUMMARY: In accordance with 49 CFR part 555, this notice grants the
Beall Corporation's application for a temporary exemption from the
requirements of Federal Motor Vehicle Safety Standard (``FMVSS'') No.
224, ``Rear Impact Protection.'' The exemption applies to the company's
dump body trailers. The basis for the grant is that compliance would
cause substantial economic hardship to a manufacturer that has tried in
good faith to comply with the standard. The exemption is effective for
three years.

DATES: The exemption from the applicable FMVSS is effective from August
20, 2009 through August 20, 2012.

FOR FURTHER INFORMATION CONTACT: Ari Scott, Office of the Chief
Counsel, NCC-112, National Highway Traffic Safety Administration, 1200
New Jersey Avenue, SE., West Building 4th Floor, Room W41-326,
Washington, DC 20590. Telephone: (202) 366-2992; Fax: (202) 366-3820;
E-mail ari.scott@dot.gov.

SUPPLEMENTARY INFORMATION:

a. Rear Impact Protection

    FMVSS No. 224, Rear Impact Protection, requires all trailers with a
gross vehicle weight rating (GVWR) of 4,536 kilograms (kg) (10,000
pounds) or more be fitted with a rear impact guard that conforms to
FMVSS No. 223, ``Rear impact guards.'' This requirement, however, has
presented problems for certain specialized vehicles, such as road
construction vehicles, where interaction between the rear impact guard
and the specialized paving or dumping equipment can cause engineering
hurdles. In accordance with 49 U.S.C. 30113 and the procedures in 49
CFR part 555, Beall Corporation, d/b/a Power Truckweld (``Beall''), a
dump body trailer manufacturer, petitioned the agency for a temporary
exemption from the rear impact protection requirements in FMVSS No. 224
(49

[[Page 42143]]

CFR 571.224) based on economic hardship.\1\
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    \1\ In accordance with the requirements of 49 U.S.C.
30113(b)(2), we published a notice of receipt of the application and
asked for public comments. To view the application, notice, or
response to the notice (no comments were received), please go to:
http://www.regulations.gov (Docket No. NHTSA-2009-0008).
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b. Statutory Background of Petition for Economic Hardship

    The National Traffic and Motor Vehicle Safety Act (Vehicle Safety
Act), codified as 49 U.S.C. Chapter 301, provides the Secretary of
Transportation authority to exempt, on a temporary basis and under
specified circumstances, motor vehicles from a motor vehicle safety
standard or bumper standard. This authority is set forth at 49 U.S.C.
30113. The Secretary has delegated the authority for this section to
NHTSA.
    NHTSA established Part 555, ``Temporary Exemption from Motor
Vehicle Safety and Bumper Standards,'' to implement the statutory
provisions concerning temporary exemptions. Vehicle manufacturers may
apply for temporary exemptions on several bases, one of which is
substantial economic hardship to a manufacturer that has tried to
comply with the standard in good faith. A petitioner must provide
specified information in submitting a petition for exemption. These
requirements are specified in 49 CFR 555.5 and 555.6, and include a
number of items, including the reasons why the exemption would be in
the public interest and consistent with the objectives of 49 U.S.C.
Chapter 301. A manufacturer is eligible to apply for a hardship
exemption if its total motor vehicle production in the year preceding
the filing of its application did not exceed 10,000 vehicles (49 CFR
555.6(a)(2)(v)).

 c. The Petition

    Beall manufactures trailers in Washington and Oregon. The company
has been in existence for over a decade. Beall requested an exemption
for a period of three years upon the grant of the petition. The
following is a brief summary of the salient points of Beall's petition.
More complete information can be found by examining the notice of
receipt or the petition itself, available in the NHTSA docket (NHTSA-
2009-0008).
    In its petition, Beall stated that the total number of vehicles
produced in the 12-month period prior to filing the petition was 79. Of
those vehicles, 64 were dump body type trailers that would be covered
by the requested temporary exemption. The largest number of Dump Body
trailers the petitioner sold in recent years is 79 in 2005.
    Beall stated that the denial of the requested exemption will result
in substantial economic hardship. According to the statements of the
petitioner, the denial of exemption could cost the company 40 percent
of its projected sales during the period covered by the exemption, a
situation which could cause the layoff of 100% of its employees.
Additionally, Beall asserted that if the exemption is denied, it would
lose the entire $800,000 goodwill investment associated with the 2001
purchase of Pioneer Truckweld. It also noted that several of its
competitors, such as Reliance and Columbia Body Manufacturing, have
received exemptions from FMVSS No. 224, and that it needs to be able to
compete effectively with these entities in the dump body trailer sales
market, as well as the dump body truck market, as many customers will
not allow a manufacturer to bid on a dump body truck if they cannot
supply a dump body trailer.
    Beall also provided specific financial information with its
statement for the years 2004 through 2006. In 2004, it indicated that
it posted a loss of over $200,000. In 2005, that loss was approximately
$138,000. Finally, in 2006, the total loss was over $53,000. In the
event that the petition were denied, Beall estimated that it will lose
over $24,000 in the year following the denial. While Beall did not
provide specific financial information regarding the projected
financial impact of a grant, it stated that such a grant is necessary
for the survival of the Power Truckweld division.
    The petitioner believed that it is impossible to estimate the cost
of compliance because the method by which compliance may be achieved is
unknown at this time, and requires substantial further engineering
analysis. Beall stated that it has tried, unsuccessfully, to design or
outsource the design of a device that would satisfy FMVSS No. 224 for
dump body trailers.
    In explaining why it has not been currently able to meet the rear
impact protection requirements, Beall pointed to a number of technical
challenges associated with designing a compliant rear impact protection
system. Namely, it stated that a device designed to satisfy FMVSS No.
224 for dump body applications must also be capable of moving clear, so
that the hopper of the paving machines can pass through the space
initially occupied by the rear impact protection device. It argued that
if the paving machine cannot position itself underneath the dump body,
the asphalt will spill out as the dump body raises and unloads the
asphalt. The petitioner stated that it has been pursuing the design of
acceptable systems in a joint project with the Mechanical Engineering
department at Montana State University, using techniques such as Finite
Element analysis and physical testing devices. In addition, it claimed
to have designed acceptable guards for a number of non-asphalt paving
applications.
    Beall stated it has considered several alternative means of
compliance. These include plastically deforming devices and hinged and
retractable devices. However, the petitioner believed that there are a
number of problems with regard to these solutions. First, due to
clearance issues, space for retractable devices is not readily
available, and redesign of the vehicle to accommodate such devices
could result in decreased stability. Second, the petitioner stated that
asphalt paving surface has the effect of rendering these sorts of
devices unusable over time. Finally, Beall noted that trailers could be
operated with these devices in the retracted position, resulting in no
safety benefits.
    Beall stated that under a temporary exemption, it would continue to
pursue a compliant rear impact protection device that would meet the
current standards, including attachment and methods of maintenance to
ensure proper function while in service. The petitioner stated that it
will continue to work with others in the paving industry to develop an
acceptable solution.
    Beall's believed that the public interest would benefit from this
exemption, stating the following:

    It would be in the public's interest to allow Pioneer Truckweld
to manufacture the equipment required to improve and expand the road
building effort in the Western United States while an intense effort
is maintained by Pioneer Truckweld to design an acceptable under
ride device that will perform well in a paving operation.

    Additionally, in its petition, Beall noted that the failure to
receive an exemption could cause the closure of the Pioneer Truckweld
operation and the layoff of 38 employees in U.S. operations.

d. Notice of Receipt

    On February 12, 2009 (74 FR 7102), we published a notice announcing
receipt of an application from Beall for a temporary exemption from the
requirements of FMVSS No. 224 for its dump body trailer designs. We
invited public comment on Beall's application,

[[Page 42144]]

but received no comment in response to the publication.

e. Final Decision

    We are granting Beall's petiton for exemption. The manufacturer
satisfies the criterion that its total motor vehicle production in its
most recent year of production does not exceed 10,000. In its petition,
Beall noted that it produced 79 vehicles in the 12 months period prior
to requesting the exemption, of which 64 were dump body type trailers
that would be covered by the requested temporary exemption. Based on
this, we conclude that Beall is eligible for the requested exemption.
    The agency may grant such a petition if it finds that the
petitioner would suffer financial hardship if an exemption were not
granted, that the petitioner has tried in good faith to comply with the
standard, and that an exemption would be in the public interest and
consistent with the purposes of the Vehicle Safety Act.
    The fundamental problem which is causing Beall to be unable to
fully comply with the rear impact requirements relates to the design
and function of the vehicle. As stated in the petition for exemption,
the bodies at issue are raised as to discharge out of the rear.
Therefore, they require the area to the rear of the vehicle, where the
rear impact protection material would ordinarily be located, to be
clear enough for the discharge to proceed smoothly. Despite significant
expenditures of capital and labor in pursuit of compliance, Beall was
unable to bring its vehicle into compliance. While engineering research
and possible alternative solutions are being considered, the company
currently requires a temporary exemption in order to sell its vehicles
in their current state.
    Beall has shown the necessary aspects to receive a temporary
exemption on the basis of financial hardship. These include
demonstrated financial hardship, good faith efforts to comply with the
standard, and a showing that receiving the exemption would be in the
public interest. We discuss these below.
    First, Beall's financial statements show substantial financial
hardship. As stated above, Beall estimates that it could lose
substantial money if it is unable to sell its dump body trailers.
Furthermore, given the economic downturn in recent months, we believe
that it is likely that Beall's economic condition has deteriorated
further since it originally submitted its petition.
    Second, the petitioner has shown a good faith effort to comply with
the standard. Again, as stated above, the petitioner has undertaken
substantial research and design efforts in order to try and comply with
the standard. It has worked on designing internal solutions, partnered
with the Mechanical Engineering department at Montana State University,
and tried to find third-party suppliers that could design equipment
that could overcome the formidable design challenges. It has also
searched for alternative means of compliance, such as plastically
deforming devices and mounting the box higher on the vehicle. Finally,
it continues to work on design changes that could allow it to comply
with the full FMVSSs.
    Third, we believe that the public interest is served by granting
this exemption. There is a problem in practicability in complying with
the requirements of the standard. This is a trailer that requires a
controlled release of the materials from the dump body, which
complicates the ability to install a rear impact protection system that
does not interfere with the trailer's operation. Additionally, these
trailers are used primarily in road construction applications, thereby
removing them generally from the flow of traffic (although they may
still be used in some in-traffic situations, such as transport to and
from road construction sites). Coupled with the very low number of
vehicles expected to be produced during the temporary exemption, the
negative safety impact of the exemption will be insignificant. In
contrast, permitting this type of vehicle to be sold to the public
serves the public interest.
    Public Interest Considerations. Dump body trailers are used
primarily for road-paving and other construction tasks, and frequently
discharge road material via the rear of the vehicle. In considering
whether granting a petition is in the public interest, NHTSA also
considers the impact of not granting the exemption on consumer choice
and the economy, as well as the relative impact of the exemption on
safety. Beall states that the failure to receive an exemption could
cause the closure of the Pioneer Truckweld operation and the layoff of
38 employees in U.S. operations. Given the relatively few companies
that produce these sort of specialized trailers, we believe that the
exemption would have benefits with regard to enhancing consumer choice
and facilitating construction projects. Also, we note again that given
the relatively low number of vehicles produced by the petitioner over
its history, and the fact that they are primarily used in road
construction tasks as opposed to being driven in the flow of traffic,
the safety impact of the lack of required rear impact protection
equipment is likely to be relatively small.
    In consideration of the foregoing, we conclude that compliance with
the requirements of FMVSS No. 224, Rear Impact Protection, would cause
substantial economic hardship to a manufacturer that has tried in good
faith to comply with the standard. We further conclude that granting of
an exemption would be in the public interest and consistent with the
objectives of traffic safety.
    In accordance with 49 U.S.C. 30113(b)(3)(B)(i), Beall Corporation
is granted NHTSA Temporary Exemption No. EX 09-03, from FMVSS No. 224.
The exemption covers only dump body trailers manufactured by the
company. The exemption shall remain for three years as indicated in the
DATES section of this notice.

(49 U.S.C. 30113; delegations of authority at 49 CFR 1.50. and
501.8)

    Issued on: August 14, 2009.
Ronald L. Medford,
Acting Deputy Administrator.
[FR Doc. E9-19956 Filed 8-19-09; 8:45 am]

BILLING CODE 4910-59-P
