Interpretation ID: 18898-1.pja
Ms. Erika Z. Jones
Mayer, Brown & Platt
2000 Pennsylvania Ave., NW
Washington, DC 20006-1882
Dear Ms. Jones:
This responds to your inquiry on behalf of Red River Manufacturing, Inc. (Red River) regarding Federal Motor Vehicle Safety Standard No. 224, Rear impact protection, as applied to the manufacturer's retractable horizontal discharge trailers.
Red River received a one-year temporary exemption from Federal Motor Vehicle Safety Standard No. 224, Rear impact protection, for its trailers, which expires on April 1, 1999. The manufacturer has been working on a retractable guard design. However, the design is not "automatic." You ask whether the National Highway Traffic Safety Administration (NHTSA) would test the vehicle when the guard was in the retracted, or "up" position. You also ask whether, and in what sense, the deployment to a retractable rear impact guards would have to be automatic.
As you know, it has been NHTSA's longstanding policy to require vehicles to comply with all applicable safety standards in all configurations in which the vehicle is likely to be used while in transit. A vehicle traveling on the road with a guard in the retracted position is virtually the same as a vehicle with no guard at all. A passenger vehicle colliding with the rear of such a trailer or semitrailer would have nothing to prevent it from riding under the rear of the trailer or semitrailer until the trailer rear intrudes into the passenger compartment. This is a special concern with horizontal discharge trailers because they typically have a belt pulley that projects rearward from the rear of the trailer bed, which could intrude into a colliding vehicle's passenger compartment.
The answer to your question is thus grounded in part on the guard configurations that are likely to be used while the vehicle is on the road. Two factors have been brought to our attention concerning Red River's guard. The first factor, and the one of primary importance, relates to the in-use regulations that apply to vehicles such as those made by Red River. The Chief Counsel's Office of the Federal Highway Administration (FHWA) has informed us that operating a trailer or semitrailer while the guard is retracted would violate 49 C.F.R. 393.86, the FHWA regulation that requires maintenance of the guard. Although section 393.86 is silent on the subject of retractable rear end guards, FHWA concludes guards that are retracted while the vehicle is in motion do not fulfill the purpose of that section, which is to ensure protection against rear underride. FHWA counsel states that interstate motor carriers are required to comply with section 393.86 whenever they are operating on the highways and that a vehicle traveling with its retractable guard in the retracted position could be placed out of service pursuant to 49 C.F.R. 396.11(c), at the discretion of the State authorities.
The second factor is that, in a November 4, 1998, meeting with Paul Atelsek of my staff and other agency personnel, you explained that, while it is physically possible for the operator to operate the trailer with the guard in the retracted position, Red River's operating instructions would stress that the guard must be moved into the deployed position every time the vehicle is prepared for transit.
Because (a) placing the vehicle in transit without deploying the guard is against FHWA regulations, and (b) the vehicle operating instructions will specify that the guard be deployed whenever the vehicle is in transit, NHTSA concludes that it is unlikely that trailers with retractable guards will be on the road with the guard in the retracted configuration.
Accordingly, for vehicles with operating instructions that specify that the guard must be deployed when the vehicle is in transit, and that are required by FHWA regulations to be operated with guard deployed, when conducting compliance testing on these vehicles, NHTSA will place the guard in whatever position or positions the manufacturer designates in the vehicle operating instructions for the guard while the vehicle is in transit. If the vehicle manufacturer does not provide operating instructions with guidance on guard positioning, then NHTSA will evaluate compliance in any position, including the retracted position.
As you noted in your letter, this office issued a May 25, 1998, letter to TarasPort Trailers, Inc. noting that their vehicle did not meet the definition of an excluded wheels-back vehicle because it was designed to be operated with rear extenders projecting more than 12 inches behind the rear wheels. TarasPort is in a different situation, because its vehicle is designed to be operated with the extenders out. This interpretation does not affect TarasPort's interpretation, or other interpretations in which the vehicle is designed to travel either in an excluded configuration or in a non-excluded configuration.
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
ref:222
d.3/4/99