[Federal Register Volume 71, Number 29 (Monday, February 13, 2006)]
[Notices]
[Pages 7614-7619]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-2001]


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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

[Docket No. NHTSA-2004-18640, Notice 2]


InterModal Technologies, Inc.; Denial of Petition for a Temporary 
Exemption From Federal Motor Vehicle Safety Standard No. 121

SUMMARY: This notice denies a petition from InterModal Technologies, 
Inc., for a temporary exemption from certain requirements of Federal 
Motor Vehicle Safety Standard No. 121, Air brake systems. The denial is 
based on the petitioner's failure to persuade the agency that the 
safety device in question provides a safety level at least equal to 
that of the applicable Federal standard. Further, it failed to 
articulate how the exemption would make easier the development or field 
evaluation of the safety device for which the exemption is being 
sought.
    The National Highway Traffic Safety Administration (NHTSA) 
published a notice of receipt of the application on July 19, 2004, and 
afforded an opportunity for comment.\1\
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    \1\ See 69 FR 43052.

FOR FURTHER INFORMATION CONTACT: George Feygin in the Office of Chief 
Counsel, NCC-112, National Highway Traffic Safety Administration, 400 
Seventh St., SW., Washington, DC 20590 (Phone: 202-366-2992; Fax 202-
366-3820; E-Mail: [email protected]).

I. Background and Summary of the Petition

    InterModal Technologies, Inc. (``InterModal'') is a manufacturer of 
semi-trailers and is incorporated in the State of Colorado. InterModal 
would like to manufacture semi-trailers equipped with a device, which 
it refers to as ``MSQR-5000 pneumatic antilock braking system'' 
(``MSQR-5000'').\2\ The MSQR-5000 does not incorporate electrical 
circuits to transmit or receive electrical signals.\3\
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    \2\ For additional information on this petition, please see 
Docket No. NHTSA-2004-18640 at http://dms.dot.gov/search/search/FormSimple.cfm.
    \3\ We note that the President of InterModal Technologies, 
William Washington, is also the President of ABS, Inc., manufacturer 
of the MSQR-5000. ABS, Inc. claims on its website that the MSQR-5000 
is ``exempt'' from warning light requirements incorporated into 
FMVSS No. 121, http://www.absbrakes.com/exemption.htm. Nevertheless, 
InterModal now seeks an exemption from the same warning light 
requirement. For more information on MSQR-5000, see http://www.absbrakes.com/.

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[[Page 7615]]

    In its petition, InterModal contends that the MSQR-5000 device 
operates as an Antilock Braking System (ABS). InterModal acknowledged 
that a trailer equipped with the MSQR-5000 does not comply with the 
malfunction indicator (warning light) requirements of S5.2.3.2 and 
S5.2.3.3 in Federal Motor Vehicle Safety Standard (``FMVSS'') No. 121, 
Air brake systems.\4\
    FMVSS No. 121 establishes requirements for braking systems on 
vehicles equipped with air brake systems. In order to address the 
safety consequences of braking-related instability, FMVSS No. 121 
requires ABS.\5\ FMVSS No. 121 also includes warning light requirements 
established to inform operators of an ABS malfunction and both to 
facilitate and to encourage repairs of faulty ABS systems.
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    \4\ The supporting information attached to the petition 
contained several affidavits arguing that MSQR-5000 meets other 
requirements of FMVSS No. 121 and performs better than conventional 
ABS systems; a copy of the patent application; and two test reports.
    \5\ The issue of whether MSQR-5000 is an ABS is addressed later 
in this document.
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    S5.2.3.2 Antilock Malfunction Signal requires that:

    ``* * * each trailer * * * manufactured on or after March 1, 
2001, that is equipped with an antilock brake system shall be 
equipped with an electrical circuit that is capable of signaling a 
malfunction in the trailer's antilock brake system, and shall have 
the means for connection of this antilock brake system malfunction 
signal circuit to the towing vehicle * * * Each message about the 
existence of such a malfunction shall be stored in the antilock 
brake system whenever power is no longer supplied to the system, and 
the malfunction signal shall be automatically reactivated whenever 
power is again supplied to the trailer's antilock brake system. In 
addition, each trailer manufactured on or after March 1, 2001, that 
is designed to tow other air-brake equipped trailers shall be 
capable of transmitting a malfunction signal from the antilock brake 
systems of additional trailers it tows to the vehicle towing it.''

    S5.2.3.3 Antilock Malfunction Indicator requires that:

    ``In addition to the requirements of S5.2.3.2, each trailer * * 
* manufactured on or after March 1, 1998, and before March 1, 2009, 
shall be equipped with an external antilock malfunction indicator 
lamp * * *''

    The trailers in question are incapable of meeting these 
requirements. Trailers equipped with only the MSQR-5000 would not be 
equipped with an electrical circuit capable of signaling a malfunction 
in the ABS or storing any information that indicated a malfunction had 
occurred. Further, these trailers would not be equipped with an 
external antilock malfunction indicator lamp.
    Because the trailers equipped with MSQR-5000 do not comply with the 
requirements of S5.2.3.2 and S5.2.3.3 of FMVSS No. 121, pursuant to the 
procedures of 49 CFR 555.6(b), InterModal petitioned NHTSA for a 
Temporary Exemption from these requirements. The stated basis for the 
petition was that an exemption would facilitate the development or 
field evaluation of the MSQR-5000, which petitioner contends offers a 
safety level at least equal to that of systems that comply with FMVSS 
No. 121. The petitioner argued that without an exemption, it is unable 
to sell a vehicle whose overall level of safety is at least equal to 
that of vehicles that meet the requirements of the standard.
    InterModal did not elaborate on how an exemption from the 
requirements of S5.2.3.2 and S5.2.3.3 would facilitate development or 
field evaluation of a new motor vehicle safety feature. The petitioner 
indicated that MSQR-5000 has already been developed by Air Brake 
Systems, Inc.\6\ Accordingly, development of a new motor vehicle safety 
feature was not at issue because InterModal seeks an exemption for a 
product that has already been developed. InterModal stated that more 
than 7,000 MSQR-5000 units are already in operation.
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    \6\ We note that Air Brake Systems, Inc., advertises the MSQR-
5000 as complying with ``IN-CAB warning light regulation 49 CFR 
571.121'' see http://www.absbrakes.com/home.htm. That statement is 
misleading because FMVSS No. 121 applies to vehicles and not items 
of equipment. An item of equipment such as the MSQR-5000 cannot 
``comply'' with FMVSS No. 121.
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    InterModal offered several reasons why it believes the overall 
level of safety of semi-trailers equipped with MSQR-5000 is at least 
equal to that of non-exempted semi-trailers.
    First, InterModal argued that based on laboratory test data and 
field-test data, MSQR-5000 operates as a conventional ABS. Further, 
InterModal stated that MSQR-5000 met or exceeded all the performance 
requirements in FMVSS No. 121.\7\ Petitioner also cited several 
affidavits in support of its contention that trailers equipped with 
MSQR-5000 are at least as safe as trailers equipped with conventional 
ABS.\8\
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    \7\ We note that Air Brake Systems, Inc. apparently sponsored 
testing of an MSQR-5000 equipped tractor-trailer combination by the 
Southwest Research Institute in 2002. The test report for this 
testing, which was submitted with the petition, and available on the 
Air Brake Systems, Inc. Web site, states in pertinent part: ``For 
the wetted curve test, the vehicle is required by FMVSS 121 to stop 
from 30 mph on a wetted surface while negotiating a 500-foot radius 
curve and maintaining itself within in a 12-foot wide lane. When 
using full treadle brake application per FMVSS 121, the vehicle did 
not stay in the 12-foot lane. This occurred for the vehicle with and 
without the MSQR-5000 brake valve at both vehicle weights.'' http://www.absbrakes.com/ABS%20Final%20Report-Revision%20A.pdf at Executive 
Summary and page 9.
    \8\ For laboratory test data, field-test data, and affidavits, 
see Docket No. NHTSA-2004-18640.
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    Second, InterModal argued that MSQR-5000 is a ``fully closed-loop'' 
system, as opposed to a conventional electronic ABS that utilizes 
modulators to vent air during the braking cycle. According to 
petitioner, an electronic ABS is subject to contamination and wear due 
to venting. Further, in its view, venting may extend the stopping 
distance. In contrast, the MSQR-5000 modulates air internally and does 
not vent during braking.
    In regard to the electronic malfunction indicator requirement, 
InterModal stated that tractor-trailer combinations resulting from use 
of its trailers with a standard tractor would already be equipped with 
a pneumatic ``low pressure'' malfunction indicator located in the 
cabin. Petitioner asserts that this design alerts the driver if the 
system malfunctions. Further, in the event of a severe air pressure 
loss, an emergency brake chamber releases to engage the emergency 
brake, stopping the vehicle until repairs can be made.
    Finally, the petitioner presented several arguments of why it 
believes a semi-trailer equipped with a MSQR-5000 device is superior to 
a semi-trailer equipped with a conventional ABS system that complies 
with the requirements of FMVSS No. 121. Specifically, petitioner argues 
that MSQR-5000: (1) Is less expensive; (2) is less expensive to 
install; (3) is easier to operate; (4) has a better safety record than 
ABS products that comply with the requirements of FMVSS No. 121; \9\ 
(5) causes less wear on brake linings; (6) has fewer parts that are 
susceptible to damage or wear.
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    \9\ In support of this statement, petitioner indicates that in 
September 2000, 300,000 electronic ABS units were subject to a 
voluntary recall because of delays in brake application.
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    Other than what may be implied from the foregoing, the petitioner 
did not specifically set forth the reasons why granting this exemption 
would be in the public interest, as required by 49 CFR 555.5(b) (7).
    For additional information on InterModal, please go to: http://www.intermodaltechnologies.com.

[[Page 7616]]

II. Comments on the Petition

    We published a notice of receipt of the application in accordance 
with the requirements of 49 U.S.C. 30113(b)(2). The notice made no 
judgment on the merits of the application. In response, we received 
five comments, three supporting granting the petition and two 
supporting denial.
    Andrew W. Mouk stated that he ``handled the products liability 
coverage for the MSQR-5000 for many years and ha[s] never had a 
liability claim arise out of the use of this product.'' He added that 
some insurance companies have even offered a discount in rates to 
truckers who install this device on their heavy trucks, and that 
drivers have been impressed with the increased braking capabilities 
after the installation of MSQR-5000. He argued that the trucking 
industry would be a safer industry ``if this valve was in more 
widespread use.'' \10\ No data to support Mr. Mouk's comments was 
included.
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    \10\ See Docket No. NHTSA-2004-18640-3.
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    An anonymous commenter stated that s/he ``witnessed testing of the 
MSQR-5000 valve at Bandimere Speedway in Colorado and observed 
firsthand a 40% reduction in stopping distance and almost 50% reduction 
in braking time using this system.'' The commenter also asserted that 
s/he knows of drivers who report dramatically improved safety and 
reduced maintenance costs. The commenter also asserted knowledge of 
``many reports of accidents avoided and lives saved due to the shorter 
stopping distance and braking reliability.'' \11\ The commenter argued 
that the Antilock Malfunction Indicator required by S5.2.3.3 of FMVSS 
No. 121 is inconsequential to safety. As with the previous comment, 
this commenter did not provide any supporting data.
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    \11\ See Docket No. NHTSA-2004-18640-6.
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    Tracy White of Farm Master, Inc., stated that the company uses and 
likes MSQR-5000 because the system is easy to install and maintain. The 
comment also indicated that Farm Master's customers preferred the 
system because of its reliability and that Farm Master has not received 
any complaints.\12\
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    \12\ See Docket No. NHTSA-2004-18640-7.
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    Robert J. Crail opposed granting the petition. He stated that a 
failure of the ``diaphragm'' in the MSQR-5000 would render inoperable 
the ``alleged antilock feature.'' Mr. Crail also stated that air brake 
systems equipped with the MSQR-5000 valve have no means of 
automatically controlling the degree of rotational wheel slip during 
braking and no means of sensing the rate of angular rotation of the 
wheels. Further, he stated that the MSQR-5000 valve has no means of 
relieving excess pressure from the brake chambers, which means a locked 
wheel would remain locked until the driver reduced the braking 
pressure, which Mr. Crail stated is not antilock braking. Mr. Crail 
concluded by arguing that trailers containing the MSQR-5000 would 
``certainly degrade highway safety.''
    Advocates for Highway and Auto Safety (Advocates) argued that NHTSA 
should reject the requested exemption because the petition filed by 
InterModal has substantive and procedural defects. Specifically, 
Advocates stated that InterModal acknowledged the manufacture and sale 
of trailers equipped with seemingly noncompliant braking systems, and 
argued that granting an ex post facto exemption would be inappropriate. 
Advocates also stated that InterModal made no arguments explaining why 
a grant of the petition would be in the public interest.
    Advocates argued that MSQR-5000 does not notify vehicle operators 
of ABS malfunction with otherwise operable brakes. In the case of ABS 
systems complying with FMVSS No. 121, a malfunction notification alerts 
an operator who can drive the vehicle to a safe location, including 
repair facilities, in order to accomplish restoration of full ABS 
operation. By contrast, Advocates states that MSQR-5000 overrides 
operator control of the vehicle and brings it to an immediate stop in 
what could be dangerous operating circumstances. Finally, Advocates 
argued that InterModal provided no reliable safety data on the 
consequences of emergency brake application if ABS malfunctions occur.

III. The Agency Decision

    After careful consideration of the petition, NHTSA is denying the 
InterModal petition for a temporary exemption because the petitioner 
failed to meet the criteria specified in 49 CFR 555.6(b). Specifically, 
InterModal did not persuade the agency that MSQR-5000 provides a safety 
level at least equal to that of the applicable Federal safety standard. 
InterModal also failed to articulate how granting the exemption would 
be in the public interest or how the exemption would facilitate 
development or field evaluation of the MSQR-5000.

Background

    When heavy vehicle brakes are applied with increasing amounts of 
force, braking generally improves. However, at some point, the forces 
in the brakes exceed the grip of the tire on the road. The tire then 
begins to slide and the wheel rapidly goes into full lockup. A sliding 
tire loses its grip in all directions. Thus, locked wheels make a 
vehicle unstable and lead to loss of control.
    FMVSS No. 121 requires antilock braking systems (ABS) on vehicles 
equipped with air brakes. The ABS controls the degree of rotational 
wheel slip in order to minimize wheel lockup, maximize braking force 
and preserve directional control. In doing so, the ABS reduces, holds 
and reapplies, i.e., modulates, brake pressure to each controlled 
wheel. More specifically, the ABS automatically reduces the amount of 
brake application pressure by venting air in the brake chambers into 
the atmosphere. The brake pressure must then be increased again to 
ensure that there is sufficient brake force. Through these cycles, 
which require reducing or applying air pressure by as much as 60 pounds 
per square inch, the degree of wheel slip is controlled.
    The ABS system must have the ability to determine if and when a 
braked wheel becomes locked due to changes in traction conditions. To 
accomplish this, any ABS must be a ``closed loop'' system; i.e., a 
system that continuously monitors the rate of wheel rotation, adjusts 
wheel rotation when needed, and reacts to ongoing changes in rotation 
caused by the operation of the system, by changed road surfaces, or 
both.\13\ For example, a braking vehicle may move from a high friction 
surface, like dry pavement, to a very low friction surface such as an 
icy road. In such an instance, an ABS must sense the different 
frictional properties of the road surface through changes in the rate 
of wheel rotation and reduce brake air line pressure on the low 
friction surface, and then restore it when a high friction surface is 
reached.
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    \13\ See 60 FR 13217. We note that in the petition, InterModal 
argues that MSQR-5000 is closed loop because it is incapable of 
venting air during the braking cycle. As explained below, this 
argument is erroneous because MSQR-5000 is incapable of continuously 
monitoring the rate of wheel rotation and therefore is not closed 
loop.
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Definition of ABS

    The definition of ABS included in FMVSS No. 121 incorporates the 
terms set forth in Society of Automotive Engineers (SAE) publications 
and European regulations to reflect the attributes of antilock systems 
as commonly understood by the automotive industry.\14\
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    \14\ See Sec. 7.3, 7.4.4, 7.4.5 of ``Antilock Brake System 
Review'' SAE J2246 (June 1992). ``ABS is a feedback control system 
that attempts to maintain controlled braking under all operating 
conditions. This is accomplished by controlling the slip at each 
wheel so as to obtain optimum forces within the limits of the tire-
road combination.''

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[[Page 7617]]

    An antilock brake system is defined in S4 of FMVSS No. 121 as 
follows:
    Antilock brake system or ABS means a portion of a service brake 
system that automatically controls the degree of rotational wheel slip 
during braking by:
    (1) Sensing the rate of angular rotation of the wheels;
    (2) Transmitting signals regarding the rate of wheel angular 
rotation to one or more controlling devices which interpret those 
signals and generate responsive controlling output signals; and
    (3) Transmitting those controlling signals to one or more 
modulators which adjust brake actuating forces in response to those 
signals. [emphasis added]
    We interpret this definition as follows:
    ``Automatically controls'' means that the ABS, rather than the 
driver, regulates the degree of rotational wheel slip during braking. 
Automatic control is necessary since drivers frequently cannot control 
lockup in emergency situations or on slippery surfaces.
    ``Wheel slip'' refers to the proportional amount of wheel/tire 
skidding relative to the forward motion (velocity) of the vehicle. As 
defined in S4 of FMVSS No. 121, wheel lockup means 100 percent wheel 
slip.
    ``During braking'' means during all phases of braking when antilock 
braking would be called upon, including incipient wheel lock and 
subsequent wheel lockup. In order to meet this portion of the 
definition, an ABS must therefore act when wheels are about to lock, 
when they have locked and after they have locked.
    In short, the introductory clause of the definition of ABS in FMVSS 
No. 121 means that during braking an ABS system must act without any 
action on the part of the driver. When functioning on its own, the 
system must exercise control over the degree of rotational wheel slip, 
including full lockup. Finally, a qualifying system must act at all 
times during braking, including those periods where lock up is about to 
occur, and where full lockup has occurred. The definition also sets 
forth the means by which these conditions are to be met.
    ``Sensing the rate of angular rotation of the wheels'' means that 
the ABS must be able to sense the rate of angular wheel rotation, not 
simply whether the wheel is rotating or not. The information about the 
rate of wheel rotation, relative to the forward motion of the vehicle, 
enables an ABS to determine if a wheel is about to lockup or has locked 
up. It also enables the ABS to then control (release/hold/reapply) 
brake pressure to enable the wheel to begin rotating again, at an 
appropriate level of rotational wheel slip.
    ``Transmitting signals regarding the rate of wheel angular rotation 
to one or more controlling devices which interpret those signals and 
generate responsive controlling output signals'' means that ABS must 
use the rate of wheel rotation and not a substitute or surrogate factor 
to control wheel slip and prevent lockup.
    ``Transmitting those controlling signals to one or more modulators 
which adjust brake actuating forces in response to those signals'' 
means that the ABS must modulate brake pressure in response to the rate 
of angular rotation of the wheels relative to the vehicle's forward 
motion. During automatic brake control, wheel speed has to be 
constantly monitored so that the maximum braking force for the 
conditions can be achieved by a succession of pressure reduction, 
pressure-holding and pressure-reapplication.
    Meeting all of the elements of this definition is necessary to 
ensure that an ABS system provides the minimum level of performance 
necessary for safe braking. Thus, an antilock system must be capable of 
reducing, holding and reapplying brake pressure to each controlled 
wheel. The wheel speed sensor must monitor the rotational speed of the 
wheel. When a monitored wheel approaches a lockup condition, there is a 
sharp deceleration of the wheel and rise in wheel slip. If this exceeds 
threshold levels, the control unit must send a signal to the modulator 
device to hold or reduce the build-up of wheel brake pressure until the 
danger of wheel lockup has passed. The brake pressure must then be 
increased again to ensure that the wheel is not underbraked for the 
road surface conditions.

Warning Light

    An ABS malfunction warning light is required by Sections 5.1.6.2 
and 5.1.6.3 of Standard 121. The warning light requirements are 
important for reducing crashes, deaths and injuries. These warning 
light requirements are necessary to ensure that operators are informed 
of an ABS malfunction, including those that have previously occurred in 
a trailer, and both facilitate and encourage repairs of faulty ABS 
systems.\15\
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    \15\ See 60 FR 13244.
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Analysis

    One threshold question that must be examined is whether the 
petitioner's vehicles are equipped with an ABS system that functions as 
an ABS within the meaning of FMVSS No. 121. This is relevant to 
InterModal's petition because paragraph S5.2.3.1 of FMVSS No. 121 of 
FMVSS No. 121 requires trailers to be equipped with ABS, as defined in 
the Standard. If the MSQR-5000 is not an ABS, within the meaning of 
FMVSS No. 121, an exemption from the warning light requirements of the 
Standard, as requested by InterModal, would still not permit the 
petitioner to use the MSQR-5000 in lieu of an ABS system either 
complying with Standard 121 or, if InterModal had requested an 
exemption from the ABS requirement, providing an equivalent level of 
performance to vehicles meeting that requirement.
    Many of the arguments raised by the petitioner as to whether MSQR-
5000 meets the Federal requirements applicable to anti-lock braking 
systems have previously been examined by NHTSA in a June 4, 2001 
interpretation letter to MAC Trailer and the subsequent litigation 
arising out of issuance of that letter.\16\ (Air Brake Systems, Inc. v. 
Mineta, 357 F.3d 632 (6th Cir. 2004); Air Brake Systems, Inc. v. 
Mineta, 202 F.Supp.2d 705 (E.D.Mich. 2002)).
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    \16\ During the course of the litigation both ABS, Inc. and 
NHTSA submitted affidavits and declarations to the District Court. 
Many of these affidavits and declarations were submitted by 
InterModal in support of its petition. The agency has placed these 
in the docket along with declarations and affidavits submitted to 
the District Court by NHTSA.
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Why MSQR-5000 Does Not Meet the Definition of ABS

    InterModal submitted a series of affidavits stating that MSQR-5000 
is an ABS system within the meaning of S4 of FMVSS No. 121. As 
explained below, we disagree and note that the supporting affidavits, 
as well as the arguments contained in the petition do not address the 
entire definition as set forth in S4 of FMVSS No. 121.
    The MSQR-5000 is essentially a diaphragm, backed by a piston and 
dampened by a rubber spring, which is acted on by the air pressure in 
the brake lines to the brake cylinders.\17\ According to the materials 
submitted by the petitioner, the MSQR-5000 operates on the theory that 
wheel lockup occurs because of pressure spikes and pressure 
differentials inside the braking system. The MSQR-5000 purportedly 
prevents wheel lockup by reacting to, and

[[Page 7618]]

negating the impact of, these pressure waves and pressure 
differentials.
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    \17\ See patent  5,078,455.
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    InterModal also provided the agency with several affidavits from 
private individuals purporting to state that a vehicle equipped with 
MSQR-5000 would conform to the requirements of FMVSS No. 121, and that 
based on mathematical calculations, vehicles equipped with MSQR-5000 
would exhibit shorter stopping distances compared to conventional ABS 
systems that comply with the requirements of FMVSS No. 121.\18\ Because 
these affidavits did not explain how the MSQR-5000 compensates for its 
apparent inability to detect and combat wheel slip, we find the 
affidavits irrelevant to vehicle performance on road conditions where 
ABS is needed. Similarly, comments submitted in support of the petition 
stating that use of the MSQR-5000 shortened stopping distance, had not 
generated any product liability claims, or was cheap and simple to 
maintain, are irrelevant to whether it functions as an ABS. Stopping 
performance alone is no indicator that a vehicle has ABS. While the 
petitioner provided some data, these data did not demonstrate 
performance which meets or exceeds the requirements of FMVSS No. 121, 
as required by Sec.  555.6(b)(2)(ii). In fact, one item provided by 
InterModal, a Final Report on testing conducted by Southwest Research 
Institute (SWRI), indicates that the MSQR-5000 allowed wheel lockup 
resulting in a tractor-trailer combination experiencing the equivalent 
of an FMVSS No. 121 test failure. Specifically, the vehicle did not, 
under a full-treadle brake application, stop within a 12-foot wide lane 
from 30 mph on wet surface while negotiating a 500-foot radius 
curve.\19\ The conclusion of the Final Report reads as follows: ``Based 
on the test results and discussions with the manufacturer, SwRI found 
that the MSQR-5000 system does not function in the same manner as an 
electronic anti-lock brake system (ABS). With full treadle application, 
it is possible to cause wheel lockup that results in the vehicle not 
staying within the 12-foot lane.'' \20\
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    \18\ In addition to the affidavit, petitioner also provided the 
agency with a copy of the patent application which described the 
operation of MSQR-5000. Further, a one-page summary of a test ``* * 
* conducted to approximate the requirements of the 1 March 1997 
revision of FMVSS 121 anti-lock brake system regulation'' by 
Perazzola, Inc., purported to show that vehicles equipped with MSQR-
5000 exhibited superior stopping performance.
    \19\ See the Executive Summary and page 9 of the SWRI Final 
Report at Docket No. NHTSA-2004-18640.
    \20\ The vehicle tested was a tractor-trailer combination. 
Standard No. 121 contains a requirement that non-articulated air 
braked vehicles; i.e., ``straight trucks'' stay within a 12 foot 
lane while braking on a wetted curve. This test requirement does not 
apply to articulated vehicle such as a tractor-trailer combination. 
However, the testing performed by Southwest is indicative of the 
inability of the MSQR-5000 to function as an ABS in a panic stop on 
a low friction surface. See Id. at 10.
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    The agency has considerable experience examining devices such as 
the MSQR-5000 and claims that this device and similar pressure 
dampening mechanisms function as an ABS. In 1992, NHTSA received a 
petition to require installation of devices like the MSQR-5000 on air-
braked vehicles. In response, the agency reviewed tests performed by 
the Southwest Research Institute, and the U.S. Army's Aberdeen Proving 
Ground, which showed that the MSQR-5000, and a similar device called 
the BX-100, did not prevent wheel lockup. NHTSA also tested a similar 
device for hydraulic brake systems, called the Brake Guard, which 
showed that the Brake Guard did not, as claimed, prevent wheel 
lockup.\21\ The agency denied the petition on July 2, 1992 explaining:
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    \21\ Based on NHTSA's testing, and other evidence, the Federal 
Trade Commission concluded that the Brake Guard was not an antilock 
brake system, and that there were ``no competent and reliable 
scientific data'' to support the manufacturer's claims to the 
contrary (See Docket No. NHTSA-2004-18640).

    ``* * * Independent tests of the petitioner's device or products 
similar to his device indicate that it would not be in the interest 
of safety to adopt his requested amendment. For instance, tests at 
the Aberdeen Proving Ground indicated that a similar product, the 
BX-100 brake equalizer, was not approved for use on military 
vehicles * * * Similarly, tests at Southwest Research Institute 
indicated that vehicles equipped with the petitioner's device needed 
an average of approximately 0.5 seconds longer to stop because 
additional time was needed to fill the expansion chamber. These 
vehicles exhibited a slower stopping time which ranged from 0.4 to 
1.0 seconds at 40 miles per hour which would add from 24 to 59 feet 
to the stopping distance * * * Tests also indicate that the 
petitioner's device does not smooth out pressure spikes as claimed. 
In fact, it typically would only cause small changes in the pressure 
curves because of the added volume in the brake system that must be 
filled with air * * * Historically, measurements at VRTC concerning 
pressure in air brake systems have not revealed peaks in brake 
pressure. In contrast, to the agency's knowledge, axle-to-axle 
pressure differentials in combination units are the only type of air 
pressure differential that contributes to safety problems such as 
jackknifing and unbalanced braking.'' \22\
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    \22\ See 57 FR 29459.

    In regard to the theory of the MSQR-5000's operation, NHTSA also 
conducted two-year road tests of the antilock brake systems on 200 
trucks, and 50 trailers, accumulating 44 million miles' worth of 
data,\23\ which revealed no evidence of the pressure pulses that are 
the linchpin of the device's operation. In the course of the litigation 
in Air Brake Systems, Inc. v. Mineta, ABS Inc. offered no data 
purporting to demonstrate that these pressure pulses exist and 
InterModal's petition offers nothing further.
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    \23\ See affidavits of Duane Perrin and Jeffrey Woods at Docket 
No. NHTSA-2004-18640.
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    As in the current InterModal petition, in the case of Air Brake 
Systems, Inc. v. Mineta, ABS Inc. and its affiants asserted that the 
MSQR-5000 operates on the basis of differential pressure waves 
generated during braking by brake shoes contacting high and low spots 
and other irregularities in rotating brake drums. In response to these 
pressure differentials, the MSQR-5000 allegedly generates responsive 
waves that dampen pressure increases.\24\ NHTSA research and testing 
have never revealed the existence of the pressure waves described by 
the petitioner and, after conferring with agency experts and outside 
consultants having as much as 45 years experience in the field of 
developing, designing, and testing brake systems, the agency believes 
that such waves do not exist.\25\ However, even assuming that the 
pressure differentials posited by the petitioner in fact exist, the 
MSQR-5000 depends on wheel rotation to generate the pressure pulses to 
which it allegedly reacts. As a locked wheel does not rotate, the MSQR-
5000 cannot sense wheel lockup when it occurs and would cease 
completely to function under the very conditions of maximum braking 
instability when it most needs to act.\26\ Therefore, the agency 
concludes that MSQR-5000 does not ``automatically control * * * the 
degree of rotational wheel slip during braking'' under all conditions, 
as FMVSS No. 121 requires.
---------------------------------------------------------------------------

    \24\ See affidavits by Cepican, Corn, Foss, and Perazzola at 
Docket No. NHTSA-2004-18640.
    \25\ See affidavits of Beier, Ervin, Perrin, and Buckman at Id.
    \26\ See affidavits of Beier, Perrin, and Milligan at Id.
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    In addition to the inability to control rotational wheel slip 
during braking, even if the claimed pressure pulses do exist, they are 
not signals from which ``the rate of angular rotation of the wheels,'' 
or, therefore, wheel slip, can be determined, as FMVSS No. 121 
requires. Because the MSQR-5000 has no way of knowing how many 
``irregularities'' there are in the shape of

[[Page 7619]]

any given brake drum, it cannot measure the angular velocity of a wheel 
based solely on the propagation of the assumed pressure pulses.\27\ For 
example, the device has no means of distinguishing between the pulses 
generated by a brake drum with six irregularities turning at 10 miles 
per hour, and a drum with a single irregularity turning at 60 miles per 
hour.\28\ Further, because it cannot determine the forward velocity of 
the vehicle, it would in any event lack critical information needed in 
order to determine wheel slip. The MSQR-5000 also lacks any means of 
processing information about the angular rotation of the wheels, and 
the forward velocity of the vehicle, in order to calculate the wheel 
slip. Finally, the theoretical claims of petitioner fail to account for 
the fact that the brake drums on new vehicles are round and have 
minimal irregularities, if any, from which any pressure pulses would 
spring.\29\
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    \27\ See the affidavit of Duane Perrin at Id.
    \28\ See id. See also the affidavits of Milligan and Beier at 
Docket No. NHTSA-2004-18640.
    \29\ See affidavits of Ervin and Perrin at Id. Even a used drum 
seldom becomes ``out of round'' by more than thirty to sixty 
thousandths (0.030-0.060) of an inch, in one or two places. 
Petitioner did not address how far ``out of round'' a brake drum 
must be to send a detectable ``signal'' to the MSQR-5000. See 
affidavit of Beier at Id.
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    The petitioner argues that the MSQR-5000 controls wheel slip and 
prevents lockup by reducing pressure spikes that its expert assumes to 
be on the order of 2 psi.\30\ However, during a sudden stop, a vehicle 
operator may apply as much as 60-100 psi of brake pressure, thus 
requiring that pressure be reduced by anywhere from 20 to 80 psi to 
prevent wheels from locking, or to free wheels that have already 
locked.\31\ Under these conditions, modulating pressure pulses in the 
range of 2 psi will not prevent sustained wheel lockup.\32\ The MSQR-
5000 does not vent air from the brake chambers in order to reduce brake 
pressure, a process that is basic to controlling slip and preventing 
lockup in air-braked vehicles.\33\ For this reason, NHTSA concludes 
that the MSQR-5000 does not ``control wheel slip during braking'' 
within the meaning of FMVSS No. 121.
---------------------------------------------------------------------------

    \30\ See affidavit of John F. Foss (page 6) at Id.
    \31\ For example, in one test of the BX-100, which has a 
dampener essentially identical to the MSQR-5000, the required air 
brake pressure for meeting the test stopping criteria was 46 psi, 
whereas wheel lockup occurred at 15 psi, a difference of more than 
30 psi.
    \32\ See affidavits of Ervin and Perrin at Id.
    \33\ See the affidavits of Duane Perrin and Leonard Buckman at 
Id.
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    The petitioner's analysis of fluid dynamics within an air brake 
system assumes a plane, one dimensional system and fails to account for 
the reflection and diffraction of the assumed pressure waves within the 
multi-dimensional geometry of a real brake line system.\34\ It also 
fails to account for the effects of the incoming ``data'' waves and 
outgoing ``control'' waves on one another as they travel in opposite 
directions within the same brake lines. Instead it assumes, that the 
pressure waves generated by the rotation of the brake drums travel in 
``still air'' within the brake line.
---------------------------------------------------------------------------

    \34\ See affidavit of Milligan at Id.
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Malfunction Indicator

    The MSQR-5000 is not equipped with an electrical circuit capable of 
signaling an ABS malfunction or storing information that such a 
malfunction had occurred. Consequently, InterModal's trailers are not 
equipped with an external antilock malfunction indicator lamp. The 
agency believes that an antilock malfunction indicator is a critical 
safety feature necessary to alert vehicle operators that the ABS system 
is not functioning and wheel lockup could occur. While the petitioner 
and one commenter stated that a warning system isn't necessary because 
MSQR-5000 does not use electricity and a low air pressure warning 
device would suffice, it fails to explain the potential consequences of 
mechanical failures of the MSQR-5000 system.
    We note that a low air pressure warning device can warn a driver of 
a significant loss in the brake system air pressure. However, Robert J. 
Crail and Advocates both noted that a low air pressure alarm would not 
warn a driver that MSQR-5000 is not operating. The MSQR-5000 can fail 
without significant loss in system air pressure. If this occurred, ABS 
systems meeting the requirements of FMVSS No. 121 would warn the 
vehicle operator in the absence of any pressure loss. Conversely, the 
MSQR-5000 would not.
    NHTSA adopted the warning light requirement after concluding ``that 
it is essential that a driver be notified about an ABS malfunction, so 
that the problem can be corrected.'' This conclusion applies equally to 
electronic and mechanical ABSs, and NHTSA explained that ``mechanical 
ABSs will have to comply with the malfunction indicator requirements.'' 
\35\ Any mechanical device, including the MSQR-5000, can wear out, 
break, or otherwise malfunction.\36\ Indeed, we have previously 
concluded, and continue to believe, that the MSQR-5000 is susceptible 
to any number of possible malfunctions that would not be detected by 
the vehicle's low-pressure warning system.\37\
---------------------------------------------------------------------------

    \35\ See 60 FR at 13220, 13244, 13246.
    \36\ See Id.
    \37\ See the affidavit of Beier at Id, giving examples.
---------------------------------------------------------------------------

InterModal Did Not Articulate How a Temporary Exemption Would 
Facilitate the Development or Field Evaluation of Vehicles Equipped 
With MSQR-5000

    The petitioner did not articulate how a temporary exemption would 
facilitate the development or field evaluation of vehicles equipped 
with MSQR-5000, as required by Sec.  555.6(b)(3). Specifically, the 
petitioner did not provide a research plan or any other information 
that would explain how an exemption would be helpful in further 
development of MSQR-5000 or trailers equipped with that device. For 
example, InterModal did not indicate that it intends to collect any 
data from vehicles equipped with MSQR-5000. We therefore concur in the 
comments offered by Advocates indicating that InterModal did not 
address how granting an exemption would serve the public interest.
    In sum, the petitioner failed to meet the criteria of Sec.  
555.6(b)(3) and Sec.  555.6(b)(2)(ii) because the petitioner did not 
persuade the agency that the safety device in question provides a 
safety level at least equal to that of the applicable Federal standard, 
and because it failed to articulate how the exemption would make easier 
the development or field evaluation of the safety device for which the 
exemption is being sought. In addition, because the agency believes 
that MSQR-5000 cannot sense the rate of angular wheel rotation on a 
vehicle with new brake drums that do not have wear-related 
irregularities; is incapable of quantifying the actual rate of angular 
wheel rotation or wheel slip; cannot control rotational wheel slip 
during full lockup; and cannot release excess pressure and therefore is 
incapable of preventing incipient lockup, we conclude that a grant of 
an exemption is not in the public interest.
    In consideration of the foregoing, the agency is denying the 
InterModal petition for a temporary exemption from the requirements of 
Federal Motor Vehicle Safety Standard (``FMVSS'') No. 121, Air brake 
systems.

(49 U.S.C. 30113; delegations of authority at 49 CFR 1.50. and 
501.8)

    Issued on: February 8, 2006.
Jacqueline Glassman,
Deputy Administrator.
[FR Doc. E6-2001 Filed 2-10-06; 8:45 am]
BILLING CODE 4910-59-P