[Federal Register Volume 74, Number 160 (Thursday, August 20, 2009)]
[Notices]
[Pages 42142-42144]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-19956]


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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 [email protected].

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]
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