[Federal Register Volume 68, Number 101 (Tuesday, May 27, 2003)]
[Notices]
[Pages 28880-28881]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-13064]



[[Page 28880]]

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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

[Docket No. NHTSA-2001-8827; Notice 4]


Dan Hill and Associates, Inc.; Red River Manufacturing; Decision 
on Applications for Renewal of Temporary Exemptions From Federal Motor 
Vehicle Safety Standard No. 224

    This notice grants the application by Dan Hill and Associates, Inc. 
(``Dan Hill''), of Norman, Oklahoma, for a renewal of its temporary 
exemption from Federal Motor Vehicle Safety Standard No. 224, Rear 
Impact Protection. This notice also defers a decision on a similar 
renewal petition by Red River Manufacturing (``Red River'') of West 
Fargo, North Dakota. Dan Hill asserted that compliance would cause 
substantial economic hardship to a manufacturer that has tried in good 
faith to comply with the standard. Red River argued that absent an 
exemption it would be otherwise unable to sell a vehicle whose overall 
level of safety or impact protection is at least equal to that of a 
nonexempted vehicle.
    Notice of receipt of the applications was published on March 31, 
2003 (68 FR 15550), and comments solicited from the public.
    Dan Hill and Red River have been the beneficiaries of temporary 
exemptions from Standard No. 224, and renewals of exemptions, from 
January 26, 1998 to April 1, 2003 (for Federal Register notices 
granting the petitions by Dan Hill, see 63 FR 3784 and 64 FR 49047; by 
Red River, see 63 FR 15909 and 64 FR 49049; for the most recent grant 
applicable to both petitioners, see 66 FR 20028). The information below 
is based on material from the petitioners' original and renewal 
applications of 1998, 1999, 2001, and their most recent applications.
    Dan Hill and Red River filed their petitions at least 60 days 
before the expiration of their existing exemption. Thus, pursuant to 49 
CFR 555.8(e), their current exemptions will not expire until we have 
made a decision on the current requests.

The Petitioners' Reasons Why They Continue to Need an Exemption

    Dan Hill. Dan Hill manufactures and sells horizontal discharge 
semi-trailers (Models ST-1000, CB-4000, and CB-5000, collectively 
referred to as ``Flow Boy'') that is used in the road construction 
industry to deliver asphalt and other road building materials to the 
construction site. The Flow Boy is designed to connect with and latch 
onto various paving machines (``pavers''). The Flow Boy, with its 
hydraulically controlled horizontal discharge system, discharges hot 
mix asphalt at a controlled rate into a paver which overlays the road 
surface with asphalt material.
    Standard No. 224 requires, effective January 26, 1998, that all 
trailers with a GVWR of 4536 kg or more, including Flow Boy trailers, 
be fitted with a rear impact guard that conforms to Standard No. 223 
Rear Impact Guards. Dan Hill argued that installation of the rear 
impact guard will prevent the Flow Boy from connecting to the paver. 
Thus, Flow Boy trailers will no longer be functional. Paving 
contractors will be forced to use either competitors' horizontal 
discharge trailers that comply with Standard No. 224 or standard dump 
body trucks or trailers which, according to Dan Hill, have inherent 
limitations and safety risks. In spite of continued exemptions since 
the effective date of the standard, Dan Hill averred that it has been 
unable to engineer its trailers to conform.
    Dan Hill and Red River jointly filed a petition in March 2001 for 
rulemaking with NHTSA to amend Standard No. 224 to exclude horizontal 
discharge trailers. The agency granted this petition on May/June 2003 
and will issue a Notice of Proposed Rulemaking in the near future.
    Red River. Red River has previously applied for exemptions on the 
basis that compliance would cause it substantial economic hardship. The 
company has now applied for an exemption on the basis that absent an 
exemption it would be otherwise unable to sell a vehicle whose overall 
level of safety is at least equal to that of a nonexempted motor 
vehicle. Red River believed ``petitioning on the basis of equal overall 
safety ([49 CFR] 555.6(d)) is more appropriate because Red River is now 
part of a larger family of companies and because the merits of Red 
River's requested renewal of its exemption under Sec. 555.6(d) are 
straightforward and clear.'' Red River referenced its continuing but 
unsuccessful efforts to develop a means to conform its horizontal 
discharge trailers to Standard No. 224, and its petition for 
ameliorative rulemaking, filed jointly with Dan Hill.

Dan Hill's Reasons Why It Believes That Compliance Would Cause It 
Substantial Economic Hardship and That It Has Tried in Good Faith to 
Comply With Standard No. 224

    Dan Hill is a small volume manufacturer. Its total production in 
the 12-month period preceding its latest petition was 55 units, a 
substantial decline from the 151 units reported in the petition 
preceding the current one. In the absence of a further exemption, Dan 
Hill asserted that the majority of its ``work force in the Norman, 
Oklahoma plant would be laid off resulting in McClain County losing one 
of its largest single employers.'' If the exemption were not renewed, 
Dan Hill's gross sales in 2003 would decrease by approximately 
$5,526,522. Its cumulative net income after taxes for the fiscal years 
2000, 2001, and 2002 was $271,058. It projects a net income of $46,267 
for fiscal year 2003.
    The Federal Register notices cited above contain Dan Hill's 
arguments of its previous good faith efforts to conform with Standard 
No. 224 and formed the basis of our previous grants of Dan Hill's 
petitions. Dan Hill originally asked for a year's exemption in order to 
explore the feasibility of a rear impact guard that would allow the 
Flow Boy trailer to connect to a conventional paver. It concentrated 
its efforts between 1998 and 1999 in investigating the feasibility of a 
retractable rear impact guard, which would enable Flow Boys to continue 
to connect to pavers. The company examined various alternatives: 
installation of a fixed rear impact guard, redesign of pavers, 
installation of a removable rear impact guard, installation of a 
retractable rear impact guard, and installation of a ``swing-up'' style 
tailgate with an attached bumper. Its efforts to conform, from 
September 1999 until December 2000, involved the design of a swing-in 
retractable rear impact guard. Its review of its design, by Tech, Inc., 
showed that this, too, was not feasible. Among other things, Tech, 
Inc., was concerned that ``the tailgate, hinges, and air cylinders will 
not meet the criteria of the Standard 224--plasticity requirement,'' 
and that ``the bumper is a potential safety hazard'' because if the 
gate were raised and ``a flagman or a trailer stager is in between the 
paver and the bumper while the gate and bumper is rising, the bumper 
could cause serious injury or death.'' A copy of Tech Inc.'s report has 
been filed in the docket as part of Dan Hill's 2001 petition. The 
report also indicated that the costs associated with this design may be 
cost prohibitive ``when trying to win business in a highly competitive, 
yet narrow marketplace.'' Having concluded that compliance of 
horizontal discharge trailers with Standard No. 224 was unattainable, 
Dan Hill filed the petition for permanent relief through rulemaking, 
mentioned above.

[[Page 28881]]

Red River's Reasons Why Compliance Would Preclude Sale of Its 
Horizontal Discharge Trailers and Why These Trailers Provide an Overall 
Level of Safety at Least Equal to That of Nonexempted Trailers

    Under 49 U.S.C. 30113(b)(3)(B)(iv), as implemented by 49 CFR 
555.6(d), we may grant a temporary exemption of up to two years on 
finding that compliance with Standard No. 224 ``would prevent the 
manufacturer from selling a motor vehicle with an overall safety level 
at least equal to the overall safety level of nonexempt vehicles.''
    A requirement that its horizontal discharge trailers comply with 
Standard No. 224 would preclude their sale, according to Red River. The 
petitioner discusses a range of options using fixed and retractable 
guards, concluding that ``the design and manufacturing problems 
associated with the development of a retractable rear impact guard for 
construction horizontal discharge trailers are enormous--perhaps, even 
insurmountable.
    Nonexempted trailers are equipped with rear underride guards. Red 
River's horizontal discharge trailers will not be equipped with these 
guards, but, in Red River's opinion, an equivalent level of safety 
exists because the geometry of these trailers is similar to that of 
``wheels-back'' trailers that are specifically exempted from Standard 
No. 224. Further, if measurements were based ``on the traditional dry 
van approach, and a plane was passed through the rear door and rear 
frame of the Red River trailers, the plane would be less than six 
inches beyond the rear tire.''
    In addition, according to Red River, the design affords protection 
against passenger compartment intrusion in rear-end collisions in that 
the maximum forward movement of a motor vehicle involved in a rear-end 
collision is 24 inches; it is not likely that any part of the trailer 
would strike the colliding vehicle's windshield.
    Red River noted that the trailer beds of end dump trailers have to 
be raised in order for their cargo to be off-loaded by gravity, 
contrasted with the more controlled discharge of cargo by horizontal 
discharge trailers. Further, use of end dump trailers is problematic on 
uneven terrain or where overhead obstacles such as bridges and power 
lines are present.
    For all these reasons, Red River submitted that its horizontal 
discharge trailers have an overall level of safety at least equal to 
that of end dump trailers that comply with Standard No. 224.

Arguments Presented by Dan Hill and Red River Why a Renewal of Their 
Temporary Exemptions Would Be in the Public Interest and Consistent 
With Objectives of Motor Vehicle Safety

    Dan Hill. Dan Hill previously argued that an exemption would be in 
the public interest and consistent with traffic safety objectives 
because, without an exemption, ``within a short time, production of the 
trailer will cease entirely. This would mean a significant loss to many 
people in the state, including shareholders, lenders, employees, 
families, and other stakeholders.'' The amount of time actually spent 
on the road is limited because of the need to move the asphalt to the 
job site before it hardens. Dan Hill also cited its efforts before 2001 
to enhance the conspicuity of Flow Boy trailers by: (1) Adding ``High 
intensity flashing safety lights; (2) Doubling the legally required 
amount of conspicuity taping at the rear of the trailer; (3) [adding] 
Safety signage; (4) [adding] Red clearance lights that normally emit 
light in twilight or night-time conditions; and (5) Installation of a 
rear under-ride protection assembly 28'' above the ground and 60'' in 
width.'' We assume that these features continue to be offered on its 
trailers.
    With respect to the current petition, Dan Hill concluded that ``the 
general public benefits from better and improved roads as a result of 
the horizontal discharge method of delivering and discharging hot mix 
asphalt and other road building materials.'' It also asserted that 
``contractors benefit from the discharge system because they operate 
more efficiently, [and] experience greater safety records which results 
in lower costs.'' Such trailers ``present a safe alternative to the 
standard dump body truck or trailer'' because ``the location of the 
rear-most axle of the Flow Boy causes its rear tires to act as a buffer 
and limits the maximum forward movement of a motor vehicle involved in 
a rear-end collision with a horizontal discharge trailer * * *.''
    Red River. Red River argued that, ``because of the functionality 
and safety of Red River's construction horizontal discharge trailers, 
the exemption requested here would be in the public interest.''
    According to Red River, an exemption would be consistent with 
considerations of safety as well. The trailers spend a large portion of 
their operating time off the public roads. Further, ``typical hauls are 
short and have a minimal amount of highway time when compared with 
other semi-trailers.'' As noted above, Red River knows of no rear end 
collisions involving this type of trailer that has resulted in 
injuries.
    No comments were received on the applications in response to the 
Federal Register notice.
    Dan Hill's arguments are as cogent and relevant today as they have 
been in the past, and continue to support our findings that to require 
compliance would create substantial economic hardship to a manufacturer 
which has tried in good faith to comply with Standard No. 224, and that 
a temporary exemption would be in the public interest and consistent 
with the objectives of traffic safety. Accordingly, we hereby extend 
NHTSA Temporary Exemption No. 2001-3 from Standard No. 224 for a period 
of three years, to expire on May 1, 2006.
    Red River's petition for extension is based on a different argument 
than that which supported its previous exemption: That in the absence 
of an exemption, it will be otherwise unable to sell a motor vehicle 
whose overall level of safety is at least equal to that of a complying 
vehicle. In our opinion, manufacturers of these trailers appear to have 
demonstrated that the design of their trailer is incompatible with the 
requirements of Standard No. 224, and that it is impracticable to 
engineer a horizontal discharge trailer that meets both the letter of 
the standard and the mission needs of the trailer. The decision to be 
made in a final rule whether or not to exclude horizontal discharge 
trailers from Standard No. 224 will include a weighing of relevant 
safety factors. It seems wisest, therefore, to postpone a discussion of 
safety considerations and a conclusion regarding them until the 
issuance of the agency's decision notice responding to the NPRM. 
Accordingly, we are making no findings on Red River's application and 
taking no further action at the present time regarding it. Red River's 
exemption will continue until the effective date of any amendment of 
Standard No. 224 to exclude horizontal discharge trailers. If the 
standard is not so amended, we shall proceed to make a decision on the 
basis of its 2003 petition and such information that we receive during 
the rulemaking process that may be relevant to such a decision.

    Authority: 49 U.S.C. 30113; delegations of authority at 49 CFR 
1.50 and 501.4.

    Issued on May 19, 2003.
Jacqueline Glassman,
Chief Counsel.
[FR Doc. 03-13064 Filed 5-23-03; 8:45 am]
BILLING CODE 4910-59-P