Interpretation ID: 18844-1.pja
Mr. W. Barry Olson
Safety and Compliance Director
East Maintenance, Inc.
P.O. Box 5010
Freehold, N.J. 07728-5010
Dear Mr. Olson:
This responds to your letter requesting an interpretation of whether the National Highway Traffic Safety Administration's (NHTSA) rear impact protection (underride guard) regulations apply to the "roll off" trailers your company manufactures. This roll off hoist equipment appears to be used to pick up and put down the long rectangular dumpsters often used to collect trash and construction debris. The short answer to your question is that your trailers are not excluded from the requirements.
From your letter and the photos you enclosed, it appears that your trailers function in the following manner. They are equipped with a tilting hoist frame that lies flat on the back of trailer. The frame rails are hinged at the rear of the trailer. To load a dumpster, the front end of the frame rails are raised by hydraulic pistons, until the rear end of the rails touch the ground behind the vehicle. In this position, the frame rails are located in the area specified in our regulations for the rear impact guard. Once the rails are tilted, a hoist pulls the dumpster up the rails onto the back of the vehicle, after which the pistons are collapsed to return the dumpster to a horizontal orientation. This appears to be the in-transit position.
Your trailers currently have an underride guard that does not meet our requirements. It automatically folds out of the way as the tilting hoist frame inclines and automatically deploys when the frame rails are lowered into the in-transit position. You state that the horizontal member of the guard is 25 inches above the ground when deployed. The rear face of the guard is 5 inches high from top to bottom, and positioned 20 inches forward of the rear of the rear extremity of the tilting frame. You state that installing a guard complying with our regulations would be impractical. You state your belief that these vehicles are excluded from our regulation as special purpose vehicles.
Federal Motor Vehicle Safety Standard (FMVSS) No. 224, Rear impact protection, requires most trailers and semitrailers weighing over 10,000 pounds to be fitted at the rear with a rear impact guard meeting the requirements of FMVSS No. 223, Rear impact guards (49 CFR 571.223 and 571.224, published on January 24, 1996 at 61 FR 2004). The excluded category of vehicle that is relevant for the purposes of this letter is special purpose vehicles.
A special purpose vehicle is defined in S4 of FMVSS No. 224 as being "a trailer or semitrailer having work-performing equipment . . . that, while the vehicle is in transit, resides in or moves through the area that could be occupied by the horizontal member of the rear underride guard . . ." (emphasis added). Your trailer is not excluded, because it does not meet the definition of a special purpose vehicle. No work performing equipment resides in or passes through the area where the horizontal member of the underride guard would be located while the vehicle is in transit. We are actively considering a petition for rulemaking to eliminate the "while in transit" limitation from the definition of special purpose vehicles. However, our evaluation of the petition may or may not result in a change to the standard. Further, any such change would not take effect until after we conduct a rulemaking proceeding, a process that takes several months.
Since your trailer does not meet the current definition of an excluded category, it would have to be equipped with an underride guard meeting our standards. We cannot provide specific guidance on trailer design, but we note that your existing guard would comply with the configuration requirements of our regulations if it were redesigned to be positioned three inches lower and 8 inches farther to the rear, and if the horizontal member were extended to within four inches of the side extremities. Perhaps this solution would work for you, as it apparently has for other manufacturers.(1)
For your information, we are also enclosing a copy of a March 4, 1999 letter we sent to Erika Jones, discussing the need for automatically retracting a retractable guard. We emphasize that you, as the manufacturer of the vehicle, are responsible for the vehicle's compliance.
The agency would consider a petition for temporary exemption from Standard No. 224. Under one of our regulations (49 CFR Part 555), vehicle manufacturers may apply for a temporary exemption from the Federal motor vehicle safety standards. Under Sec. 555.6(a), a manufacturer whose yearly production is not more than 10,000 units may ask for an exemption of up to three years on the basis that compliance would cause it substantial economic hardship and that it has attempted in good faith to comply with the standard from which it has asked to be excused. We have enclosed a copy of Part 555 for your information. We have also enclosed a copy of our regulations relating to the protection of confidential business information. Most of the trailer manufacturers submitting petitions for temporary exemption have requested that their financial information remain confidential.
Please note Part 555 requires the agency to publish a notice in the Federal Register seeking public comment on each exemption petition before a decision can be made on such a request, and then publish a second notice either granting or denying the petition. This process normally takes three to four months from the date of submittal.
If you have any further questions, please feel free to contact Paul Atelsek of my staff at this address or by telephone at (202) 366-2992.
Sincerely,
Frank Seales, Jr.
Chief Counsel
Enclosures:
Parts 552, 555
ref:224
d.6/9/99
1. The National Solid Wastes Management Association (NSWMA), a trade group that may represent users of vehicles like yours, stated in a comment on roll-off hoist vehicles that "a number of manufacturers have resorted to a retractable underride [guard] design, where a strut attached to the rear chassis frame will cause the underride [guard] to move forward and out of the interference area as the frame is tilted."