[Federal Register Volume 81, Number 44 (Monday, March 7, 2016)]
[Notices]
[Pages 11902-11904]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-04971]



[[Page 11902]]

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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

[Docket No. NHTSA-2015-0125]


Columbia Body Manufacturing Co.; Grant of Petition for Temporary 
Exemption From FMVSS No. 224

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

ACTION: Notice of grant of petition for temporary exemption from FMVSS 
No. 224, Rear Impact Protection.

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SUMMARY: In accordance with 49 U.S.C. 30113 and 49 CFR part 555, NHTSA 
is granting a petition from Columbia Body Manufacturing Co. (``Columbia 
Body'' or ``petitioner''), a small volume manufacturer, for a temporary 
exemption from Federal Motor Vehicle Safety Standard (FMVSS) No. 224, 
Rear impact protection, for certain gravity feed dump body trailers 
(``dump body trailers''). This exemption is based on the agency's 
determination that compliance with FMVSS No. 224 would cause 
substantial economic hardship to a manufacturer that has tried to 
comply in good faith with the standard, and that such an exemption is 
consistent with the public interest. Columbia Body must affix 
certification labels to the exempted trailers stating they have been 
exempted from FMVSS No. 224.

DATES: The subject vehicles manufactured by Columbia Body are exempted 
from FMVSS No. 224, Rear Impact Protection until March 7, 2019.

FOR FURTHER INFORMATION CONTACT: For legal questions, contact Mr. Ryan 
Hagen, Office of the Chief Counsel, NCC-200, National Highway Traffic 
Safety Administration, 1200 New Jersey Avenue SE., West Building 4th 
Floor, Washington, DC 20590. Telephone: (202) 366-2992; Fax: (202) 366-
3820. For technical questions, contact Mr. Robert Mazurowski, Office of 
Crashworthiness Standards, National Highway Traffic Safety 
Administration, 1200 New Jersey Avenue SE., West Building 4th Floor, 
Washington, DC 20590. Telephone: (202) 366-1012; Fax: (202) 493-2990.

SUPPLEMENTARY INFORMATION: In accordance with 49 U.S.C. 30113 and 49 
CFR part 555, NHTSA is granting a petition from Columbia Body, a small 
volume manufacturer, for a temporary exemption from FMVSS No. 224, Rear 
impact protection, for dump body trailers. The agency is granting this 
petition because compliance with the standard would cause substantial 
economic hardship to a small volume manufacturer that has tried to 
comply with the standard in good faith. NHTSA believes Columbia Body 
has put forth a good faith effort to research and explore potential 
options to comply with FMVSS No. 224. As discussed below, NHTSA also 
believes that, because dump body trailers help build and maintain 
public infrastructure, and because the safety implications of this 
grant are minimal, granting this exemption is consistent with the 
public interest and the National Traffic and Motor Vehicle Safety Act. 
Additionally, NHTSA received no public comments on this petition.
    The petitioner's exemption will be limited to 210 dump body 
trailers over the next three years. Columbia Body must include language 
on the certification labels it affixes to the exempted dump body 
trailers it manufactures notifying the public that the vehicle has been 
exempted from FMVSS No. 224.

A. Statutory Authority for Temporary Exemptions

    The National Traffic and Motor Vehicle Safety Act (Safety Act), 
codified at 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 of Transportation has delegated the authority for 
implementing this section to NHTSA.
    In recognition of the more limited resources and capabilities of 
small manufacturers, authority to grant exemptions based on substantial 
economic hardship and good faith efforts is provided in the Safety Act 
to enable the agency to give those manufacturers additional time to 
comply with motor vehicle safety standards. The Safety Act authorizes 
the Secretary to grant a temporary exemption to a manufacturer whose 
total motor vehicle production in the most recent year of production is 
not more than 10,000 motor vehicles, on such terms as the Secretary 
deems appropriate, if the exemption would be consistent with the public 
interest and the Safety Act and ``compliance with the standard would 
cause substantial economic hardship to a manufacturer that has tried to 
comply with the standard in good faith.'' (49 U.S.C. 
30113(b)(3)(B)(i)).
    NHTSA established 49 CFR part 555, Temporary Exemption from Motor 
Vehicle Safety and Bumper Standards, to implement the statutory 
provisions concerning temporary exemptions. Under Part 555, a 
petitioner must provide specified information in submitting a petition 
for exemption. These requirements are specified in 49 CFR 555.5, and 
include a number of items. Foremost among them are that the petitioner 
must set forth the basis of the application under Sec.  555.6, and the 
reasons why the exemption would be in the public interest and 
consistent with the objectives of the Safety Act (49 U.S.C. Chapter 
301).\1\ A manufacturer is eligible to apply for a hardship exemption 
if its total motor vehicle production in its most recent year of 
production did not exceed 10,000 vehicles, as determined by the NHTSA 
Administrator (49 U.S.C. 30113).
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    \1\ While 49 U.S.C. 30113(b) states that exemptions from a 
Safety Act standard are to be granted on a ``temporary basis,'' (49 
U.S.C. 30113(b)(1)) the statute also expressly provides for renewal 
of an exemption on reapplication. Manufacturers are nevertheless 
cautioned that the agency's decision to grant an initial petition in 
no way predetermines that the agency will repeatedly grant renewal 
petitions, thereby imparting semi-permanent status to an exemption 
from a safety standard. Exempted manufacturers seeking renewal must 
bear in mind that the agency is directed to consider financial 
hardship as but one factor, along with the manufacturer's ongoing 
good faith efforts to comply with the regulation, the public 
interest, consistency with the Safety Act, generally, as well as 
other such matters provided in the statute.
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B. Rear Impact Protection

    FMVSS No. 224, Rear impact protection,\2\ requires that all 
trailers with a gross vehicle weight rating (GVWR) of 4,536 kilograms 
(kg) (10,000 pounds (lb)) or more be fitted with a rear impact guard 
that conforms to FMVSS No. 223, Rear impact guards.\3\ 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 challenges. In 2004, NHTSA finalized a rule that 
excludes road construction controlled horizontal discharge semitrailers 
(RCC horizontal discharge trailers), which discharge asphalt to a 
paving machine by use of a mechanical drive and conveyor belt.\4\ In 
that final rule, NHTSA concluded that the installation of rear impact 
guards would interfere with the intended function of the trailers and 
were impractical, given the design and mission of these trailers.
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    \2\ 49 CFR 571.224.
    \3\ 49 CFR 571.223.
    \4\ 69 FR 67663 (November 19, 2004). Available at: https://www.federalregister.gov/articles/2004/11/19/04-25703/federal-motor-vehicle-safety-standards-rear-impact-guards-final-rule (last 
accessed on November 5, 2015).

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[[Page 11903]]

    The 2004 final rule decided against a regulatory exemption for 
gravity feed dump trailers, which do not have the mechanical drive and 
conveyor belt as discussed above, because gravity feed dump trailers 
can be versatile vehicles used for a wide variety of tasks. NHTSA was 
concerned that creating an exemption in the regulation itself for 
gravity feed dump trailers could potentially permit a large vehicle 
population with greater exposure than RCC horizontal discharge trailers 
to be exempted from the standard. Instead, NHTSA anticipated dealing 
with gravity feed dump trailers through the exemption process.\5\ Prior 
to that final rule, NHTSA had granted an exemption to gravity feed dump 
trailers manufactured by Columbia Body.\6\ Since that final rule, NHTSA 
has continued to grant exemptions to manufacturers of gravity feed dump 
trailer manufacturers through the procedures in 49 CFR part 555.\7\
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    \5\ Id. at 67666.
    \6\ 68 FR 7406 (February 13, 2003). Available at: http://www.regulations.gov/contentStreamer?documentId=NHTSA-2002-13955-0004&disposition=attachment&contentType=pdf (last accessed on 
November 6, 2015).
    \7\ See: 69 FR 30989 (June 1, 2004), available at: https://www.federalregister.gov/articles/2004/06/01/04-12334/reliance-trailer-co-llc-grant-of-application-for-renewal-of-temporary-exemption-from-federal-motor (last accessed on November 6, 2015), 
and 74 FR 42142 (August 20, 2009), available at: https://www.federalregister.gov/articles/2009/08/20/E9-19956/beall-corporation-grant-of-application-for-a-temporary-exemption-from-fmvss-no-224 (last accessed on November 9, 2015).
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C. Overview of Columbia Body's Petition

    Consistent with 49 U.S.C. 30113 and the procedures in 49 CFR part 
555, Columbia Body of Clackamas, Oregon, a small volume trailer 
manufacturer, petitioned the agency for a three year temporary 
exemption from the rear impact protection requirements in FMVSS No. 224 
based on substantial economic hardship.
    Columbia Body is a small manufacturer that currently employs 40 
full time employees and has annual sales of $5-6 million. It produces 
two, three, and four axle ``dump style'' trailers that use a hydraulic 
hoist to raise the front end of the trailer and discharge its load 
through the tailgate. Columbia Body has produced an average of 17 
trailers that do not require an exemption per year over the last three 
years.
    Columbia Body states that recently, many of its gravity feed dump 
body competitors have gone bankrupt, leading purchasers to request the 
trailers from Columbia Body. Given the recent requests, Columbia Body 
seeks to ensure it is able to fill any potential orders. If the 
exemption were granted, Columbia Body projects that it would sell no 
more than 70 of the exempted trailers per year. Columbia Body states 
that the trailers in question are designed specifically for use with 
paving machines. Without an exemption, Columbia Body states it will 
suffer substantial economic hardship, projecting it will have to lay 
off seven or eight of its 40 employees starting in 2016.
    In its application, Columbia Body provides specific financial 
information from the last three years. In 2012, Columbia Body posted a 
net loss of $108,000, followed by a $215,000 loss in 2013. In 2014, it 
posted a net profit of $302,000. If an exemption is not granted, 
Columbia Body projects it will post a $169,000 net profit for 2016, in 
comparison to $1 million net profit if an exemption is granted.
    Columbia Body states that it has put forth a good faith effort to 
comply with FMVSS No. 224, however, is not possible for the company to 
produce a trailer at a reasonable price and with the utility its 
customers require for paving. Specifically, the rear end of the type of 
trailer in question interfaces with the front end of an asphalt paving 
machine, dumping hot asphalt into the paving machine's receiver. To 
establish this connection, the paving machine hooks to the rear wheels 
of the dump trailer. In order to prevent asphalt from spilling out 
while being transferred from the dump trailer to the paving machine, 
the paving machine fits 16 to 18 inches beneath the bottom of the dump 
trailer. The interaction between the dump trailer and paving machine 
occurs in the space where an underride guard would otherwise reside.
    Columbia Body states that it has looked into possible solutions to 
this problem, including $50,000 in research in 2005 and 2006 to 
evaluate solutions to comply with FMVSS No. 224. One solution included 
adding removable underride guards. Columbia Body states, however, that 
``[e]ven if we could install a removable underride guard it will put 
equipment operators in an unsafe situation installing and removing the 
guard.'' The petitioner states that the area where a removable 
underride guard would be installed is often covered in asphalt buildup. 
Additionally, Columbia Body believes that the cleaning, maintenance, 
and heavy impacts on the underride guard and the area immediately 
around it when contacting the paving machine would affect the 
structural integrity of the underride guard.
    Another solution Columbia Body states it looked into involved 
constructing a sub-frame ``with the ability to slide the dump body 
forward when in transit and slide it to the rear to provide the proper 
over hang [sic] when paving.'' Columbia Body states that although this 
design is possible, conversations with prospective customers indicate 
the design ``would not be acceptable'' because of the added cost and 
weight associated with building such a structure.
    Columbia Body states that so long as the paving industry continues 
to use the same method of paving roads, it remains a physical 
impossibility to manufacture this type of trailer and comply with FMVSS 
No. 224.
    In support of its petition for exemption, Columbia Body notes that 
gravity feed dump trailers have limited highway exposure due to their 
function. Specifically, the trailers themselves are on the road for 
short periods of time. ``Asphalt batch plants are typically set close 
to the paving activity to limit time traveling between the two paving 
activities.'' Additionally, the petitioner states that in many 
instances, these paving machines are often performing their transport 
tasks away from the driving public in restricted access construction 
areas.
    Finally, Columbia Body believes its ability to obtain an exemption 
is in the public interest. Columbia Body has informed NHTSA that 
customers requesting its gravity feed dump trailers are doing so in 
order to pave local roadways. Many purchasers are local municipalities, 
or companies that support local municipalities in creating and 
maintaining roads for the traveling public. Therefore, the petitioner 
believes supplying gravity feed dump trailers is in the public 
interest.

D. Notice of Receipt and Summary of Comments

    On December 17, 2015, NHTSA sought comment on Columbia Body's 
petition by publishing a notice of receipt in the Federal Register.\8\ 
NHTSA received no comments on the petition.
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    \8\ See: 80 FR 78817 (December 17, 2015), available at: https://www.federalregister.gov/articles/2015/12/17/2015-31709/columbia-body-manufacturing-co-receipt-of-petition-for-temporary-exemption-from-fmvss-no-224 (last accessed on January 2016).
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E. Final Decision

    Columbia Body petitioned NHTSA for a temporary exemption from FMVSS 
No. 224 under 49 U.S.C. 30113(b)(3), and in accordance with NHTSA's 
regulations at 49 CFR 555.6. NHTSA may grant such a petition if it 
finds that compliance with the standard would

[[Page 11904]]

cause substantial economic hardship to a small volume manufacturer \9\ 
that has tried to comply with the standard in good faith, and that 
granting such an exemption is consistent with the public interest. 
NHTSA believes these exemption criteria are satisfied.
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    \9\ ``A manufacturer is eligible for an exemption . . . only if 
the Secretary determines that the manufacturer's total motor vehicle 
production in the most recent year of production is not more than 
10,000.'' 49 U.S.C. 30113(d).
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    First, based on the detailed financial documentation Columbia Body 
has provided the agency, NHTSA believes Columbia Body would suffer 
substantial economic hardship without an exemption for its dump body 
trailers. Columbia Body posted a cumulative net loss over the last 
three years. Looking forward, Columbia Body would have to lay off seven 
to eight of its 40 employees in 2016.
    Second, Columbia Body has demonstrated that it has made good faith 
efforts to comply with FMVSS No. 224. The dump body trailers subject to 
this petition are designed to attach to a paving machine that secures 
to the rear end of the dump body trailer. When attached to the dump 
body trailer, the paving machine hooks to the rear wheels of the 
trailer and tucks underneath the rear end of the dump body trailer. 
This interaction between the dump body trailer and a paving machine 
thwarts the installation of an underride guard. Despite the known 
design challenges, Columbia Body invested a significant amount of time 
and money investigating a way to comply with FMVSS No. 224 while 
maintaining the dump body trailer's paving utility. It developed 
potential solutions to the compliance challenges, and invested in a 
finite element analysis of the situation. Further, Columbia Body 
discussed the resulting potentially compliant design with prospective 
paving customers, who responded that an increase in cost and loss of 
payload capability were not acceptable for their business needs. From 
its research, Columbia Body reasonably concluded that it could not 
produce its dump body trailers with compliant guards unless paving 
machines are modified to no longer hook to the rear wheels of the dump 
body trailer. Such redesign of paving machines was not practical.
    In the 2004 final rule amending FMVSS No. 224, NHTSA stated that 
``[i]n certain limited circumstances, the agency [will grant] temporary 
exemption to gravity feed dump trailer manufacturers based, in part, on 
impracticability of compliance.'' \10\ We have closely evaluated the 
petition and conclude that practicability problems posed by Columbia 
Body's dump body trailers support a grant of the petition.
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    \10\ 69 FR 67663 (November 19, 2004). Available at: https://www.federalregister.gov/articles/2004/11/19/04-25703/federal-motor-vehicle-safety-standards-rear-impact-guards-final-rule (last 
accessed on January 7, 2016).
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    Third, NHTSA believes it is consistent with the public interest to 
grant Columbia Body this exemption. The overhang required by these 
trailers, while not exclusive to paving applications, is specifically 
manufactured to attach to a paving machine. These trailers serve as a 
tool for paving asphalt surfaces, most commonly, public roads; they are 
needed for that public function. Given the few remaining companies that 
produce dump trailers for paving, we believe that the exemption would 
result in more dump trailers being available for paving and other 
purposes, which would facilitate construction projects. Further, 
because these trailers are used primarily in road construction 
applications, their exposure to the traveling public is reduced. In 
many instances, these trailers are traveling in restricted area 
construction zones or with a paving machine attached to the rear end.
    Moreover, the impact on safety by this exemption is further limited 
by the fact that relatively few vehicles would be affected. The number 
of exempted trailers allowed under this exemption is tailored to 
Columbia Body's projected production over the next three years, meaning 
that a maximum of only 210 trailers in total will be exempted.
    NHTSA also considered the impacts of not granting the exemption. 
Columbia Body states that the failure to receive an exemption could 
cause it to lay off seven to eight of its 40 employees starting in 
2016. Given the practicability problems the petitioner faces in meeting 
FMVSS No. 224 and the efforts made to comply, the negligible safety 
impacts of an exemption, and the increased availability of dump 
trailers as a result of an exemption, we do not believe that the 
potential job losses would be warranted. Taking all of these things 
into consideration, NHTSA believes this exemption is in the public 
interest.
    Based on the exemption requirements and the information before the 
agency, NHTSA is issuing a temporary exemption to Columbia Body from 
FMVSS No. 224 for a period of three years for the dump body trailers it 
manufactures for paving applications.\11\ This exemption is limited to 
210 trailers during the temporary exemption period. Further, dump body 
trailers that are exempted from FMVSS No. 224 must display 
certification labels noting this exemption as required by 49 CFR 
555.9(c).
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    \11\ As noted previously in this notice, the gravity dump body 
trailers Columbia Body seeks an exemption for require 16 to 18 
inches of clearance rearward of the rear wheels.
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    Columbia Body is granted NHTSA Temporary Exemption No. EX 16-01, 
from FMVSS No. 224.

    Authority: 49 U.S.C. 30113; delegation of authority at 49 CFR 
1.95.

    Issued on: February 29, 2016.
Mark R. Rosekind,
Administrator.
[FR Doc. 2016-04971 Filed 3-4-16; 8:45 am]
 BILLING CODE 4910-59-P