[Federal Register Volume 76, Number 229 (Tuesday, November 29, 2011)]
[Notices]
[Pages 73763-73765]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-30739]



[[Page 73763]]

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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2011-0022]


Parts and Accessories Necessary for Safe Operation; Grant of 
Temporary Exemption for Innovative Electronics

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION: Notice of final disposition.

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SUMMARY: The Federal Motor Carrier Safety Administration (FMCSA) 
announces its decision to grant an exemption to allow commercial motor 
vehicle operators to use trailer-mounted electric brake controllers 
which monitor and actuate electric trailer brakes based on inertial 
forces developed in response to the braking action of the towing 
vehicle. FMCSA believes that the use of trailer-mounted electric brake 
controllers will maintain a level of safety that is equivalent to, or 
greater than, the level of safety achieved without the exemption.

DATES: This exemption is effective from November 29, 2011 through 
November 29, 2013.

FOR FURTHER INFORMATION CONTACT: Mr. Luke W. Loy, Vehicle and Roadside 
Operations Division, Office of Bus and Truck Standards and Operations, 
MC-PSV, (202) 366-0676, Federal Motor Carrier Safety Administration, 
1200 New Jersey Avenue SE., Washington, DC 20590-0001.

SUPPLEMENTARY INFORMATION:

Background

    Under 49 U.S.C. 31315 and 31136(e), FMCSA may grant an exemption 
from the brake requirements of 49 CFR 393.48(d) and 49 CFR 393.49(c) 
for a 2-year period if it finds ``such exemption would likely achieve a 
level of safety that is equivalent to, or greater than, the level of 
safety that would be achieved absent such exemption'' (49 CFR 
381.305(a)).

Innovative Electronics' Request for Exemption

    Innovative Electronics, Inc., applied for an exemption from 49 CFR 
393.48(d) and 49 CFR 393.49(c) to allow commercial motor vehicle 
operators to tow trailers equipped with trailer-mounted electric brake 
controllers.
    In its application, Innovative Electronics stated:

    Electric brakes have been used on commercial trailers for a long 
period of time; however each tow vehicle must currently be equipped 
with a brake controller in the towing vehicle which applies the 
trailer brakes when the driver applies the towing vehicle's brakes. 
Tow vehicle brake controllers are usually aftermarket devices which 
are manually adjustable to increase or decrease the amount of 
electric brake force applied to the trailer wheels to adjust for wet 
or dry road conditions and loaded or unloaded trailer condition. 
Electric brakes on commercial trailers will not operate unless the 
tow vehicle has a brake controller.
    Technology developments in electronics have allowed the 
development of a self-contained electric brake control device that 
is mounted directly to the trailer enabling it to monitor and 
actuate the brakes based on inertial forces developed in response to 
the braking action of the towing vehicle. The device is essentially 
an electric surge brake controller, with the electric power for the 
brakes provided by the tow vehicle, but the braking action of the 
trailer is controlled by the electric controller mounted on the 
trailer. A trailer using this trailer-mounted electric brake 
controller does not meet the ``operative at all times'' requirement 
of 49 CFR 393.48 and the brakes do not meet the ``apply by a single 
application valve'' requirement of 49 CFR 393.49.

    Innovative Electronics requested that the hydraulic surge brake 
requirements of Sec. Sec.  393.48(d) and 393.49(c) be applied to the 
temporary exemption, i.e., substituting ``trailer-mounted electric 
brake controller'' for ``surge brake'' as follows:


Sec.  393.48  Brakes to be operative.

* * * * *
    (d)(1) Trailer-mounted electric brake controllers are allowed on:
    (i) Any trailer with a gross vehicle weight rating (GVWR) of 12,000 
pounds or less, when its GVWR does not exceed 1.75 times the GVWR of 
the towing vehicle; and
    (ii) Any trailer with a GVWR greater than 12,000 pounds, but less 
than 20,001 pounds, when it's GVWR does not exceed 1.25 times the GVWR 
of the towing vehicle.
    (2) The gross vehicle weight (GVW) of a trailer equipped with a 
trailer-mounted electric brake controller may be used instead of its 
GVWR to calculate compliance with the weight ratios specified in 
paragraph (d)(1) of this section when the trailer manufacturer's GVWR 
label is missing.
    (3) The GVW of a trailer equipped with a trailer-mounted electric 
brake controller must be used to calculate compliance with the weight 
ratios specified in paragraph (d)(1) of this section when the trailer's 
GVW exceeds its GVWR.
    (4) The trailer equipped with a trailer-mounted electric brake 
controller must meet the requirements of Sec.  393.40.


Sec.  393.49  Control valves for brakes.

* * * * *
    (c) Trailer-mounted electric brake controller exception. This 
requirement is not applicable to trailers equipped with trailer-mounted 
electric brake controllers that satisfy the conditions specified in 
393.48(d).
    Without this exemption, commercial vehicle operators who tow 
trailers equipped with electric brakes must continue to purchase and 
install aftermarket trailer brake controllers in each tow vehicle which 
may be used to tow a commercial trailer equipped with electric brakes.
    For the reasons stated above, Innovative Electronics requests that 
motor carriers be permitted to use trailer-mounted electric brake 
controllers, which would eliminate the requirement for each individual 
tow vehicle to be equipped with an electric brake controller. 
Innovative Electronics made this request because it believes the use of 
trailer-mounted electric brake controllers will maintain a level of 
safety that is equivalent to the level of safety achieved without the 
exemption. A copy of Innovative Electronics' application for exemption 
is available for review in the docket of this notice.

Comments

    On February 10, 2011, FMCSA published a notice concerning 
Innovative Electronics' application for temporary exemption, and asked 
for public comment (76 FR 7623). The Agency received nine comments.
    1. Shaun Kildare, on behalf of the Advocates for Highway and Auto 
Safety (Advocates), provided comments opposing the application for 
exemption. While Advocates does not oppose the concept of trailer-
mounted electric brake controllers which function as surge brakes, it 
contends that the testing provided in support of the exemption 
application fails to provide adequate evidence that granting the 
exemption will achieve a level of safety equivalent to or greater than 
the level achieved by the current regulation.
    2. Pam O'Toole, on behalf of the National Association of Trailer 
Manufacturers (NATM), commented that NATM is not opposed to an 
exemption for Innovative Electronics, provided that the scope of the 
exemption request remains as stated in the application. Ms. O'Toole 
stated that Innovative Electronics (or other trailer-mounted electric 
brake controller manufacturers) should be required to conduct 
additional testing, to include a wider range of tow vehicles and 
trailer weights, prior to submitting any petition for rulemaking to 
permanently revise the current definition of ``surge brake''

[[Page 73764]]

and/or the applicable sections of 49 CFR 393.48 and 49 CFR 393.49.
    3. Paul Johnston, on behalf of Commercial Vehicle Services LLD, 
commented that the Innovative Electronics application for temporary 
exemption is in the spirit of the Agency's 2007 surge brake rulemaking, 
which considered--and ultimately adopted--revisions to the definition 
of ``surge brakes'' based on data provided to FMCSA supporting such a 
change. Mr. Johnston stated that the data provided by Innovative 
Electronics is not sufficient to support a permanent change in the 
definition of the term ``surge brake,'' but noted that even the limited 
testing conducted demonstrated that the brake performance requirements 
of 49 CFR 393.52 were met. Mr. Johnston also noted that the system 
proposed by Innovative Electronics has merit, and utilizes ``technical 
solutions that will no doubt be at least equivalent to the current 
trailer brake control systems that meet the current FMCSA regulation.'' 
Mr. Johnston stated that while he supports a temporary exemption, 
additional brake performance data will be required on a broader array 
of vehicles before a permanent regulatory change to the surge brake 
performance requirements is considered.
    4. Six comments were received from individuals who have installed, 
and are using, the Innovative Electronics trailer-mounted brake 
controller for personal use. Each individual noted the ease of 
installation, and that the device does not have to be constantly 
adjusted like a conventional electric brake controller mounted in the 
tow vehicle. Several commenters noted that the trailer-mounted brake 
control activates seamlessly and responds immediately due to changing 
cargo loading or road conditions.

FMCSA Response

    On October 7, 2005, in response to a petition for rulemaking 
submitted by the Surge Brake Coalition (``the Coalition''), FMCSA 
published a notice of proposed rulemaking (NPRM) entitled ``Parts and 
Accessories Necessary for Safe Operation: Surge Brake Requirements,'' 
to amend the Federal Motor Carrier Safety Regulations (FMCSRs) to allow 
the use of surge-braked trailers in interstate commerce (70 FR 58657). 
Regulatory guidance issued previously by the Agency prohibited the use 
of surge brakes on trailers operated in interstate commerce because 
such brakes were inconsistent with the requirements of Sec. Sec.  
393.48 and 393.49 of the FMCSRs. The NPRM stated that the use of surge 
brakes, under the specific conditions noted in the proposal, would be 
consistent with the original intent of Sec. Sec.  393.48 and 393.49. 
Specifically, the Agency stated:

    Section 393.48 requires that brakes be capable of operating at 
all times the vehicle is in operation on public roads. The intent of 
the requirement is that all commercial motor vehicles operating in 
interstate commerce have sufficient braking capability at all times. 
Based upon the information provided by the petitioner, FMCSA 
believes vehicles equipped with surge brakes, under the conditions 
being proposed in this rulemaking notice, would have sufficient 
braking capability at all times the vehicle combination is being 
operated on public roads, in interstate commerce. While surge brakes 
automatically release when the vehicle combination comes to a 
complete stop, the weight-ratio between the towing vehicle and the 
trailer being proposed today would ensure that the brakes on the 
towing vehicle are sufficient to maintain control of the combination 
when the surge brakes release automatically. Therefore, the agency 
believes the original intent of Section 393.48 would be satisfied by 
surge brake systems meeting the proposed requirements * * *
    The Agency agrees with the petitioner that advances in braking 
technology, and specifically in the instance of surge brakes, render 
the current single valve requirement in the Sec.  393.49 design 
restrictive and not necessary or appropriate when considered 
specifically in the context of surge brakes installed on the small 
and midsize trailers addressed by this proposal.

    On March 6, 2007, FMCSA published a final rule entitled ``Parts and 
Accessories Necessary for Safe Operation: Surge Brake Requirements,'' 
revising the FMCSRs to allow the use of automatic hydraulic inertia 
brake systems (surge brakes) on commercial trailers when the ratios of 
gross vehicle weight ratings (GVWR) for the towing vehicle and trailer 
are within certain limits (72 FR 9855). A surge brake is defined in 49 
CFR 393.5 as ``A self-contained, permanently closed hydraulic brake 
system for trailers that relies on inertial forces, developed in 
response to the braking action of the towing vehicle, applied to a 
hydraulic device mounted on or connected to the tongue of the trailer, 
to slow down or stop the towed vehicle.''
    A trailer-mounted electric brake control device is essentially an 
electric surge brake controller, with the electric power for the brakes 
provided by the tow vehicle, but the braking action of the trailer is 
controlled by the electronic controller mounted on the trailer. A 
trailer-mounted electric brake controller has the performance advantage 
of continuous electronic sensing of the braking forces acting on the 
trailer by the tow vehicle, thus: (1) Eliminating the over-application 
of the trailer brakes in wet or icy conditions, and (2) adjusting the 
application of the trailer brakes automatically to variations in 
trailer weight. This is not possible when relying on the crude, manual 
adjustments available on most in-cab tow vehicle electric brake 
controllers.
    It is important to note that there are no Federal Motor Vehicle 
Safety Standards (FMVSS) that specify the brake performance 
requirements for trailers equipped with electric brakes. The use of 
trailers equipped with electric brakes is currently allowed, and the 
brake performance of trailers equipped with a trailer-mounted brake 
controller appears to be equivalent to the performance of a tow vehicle 
equipped with an electric trailer brake controller. The use of a 
trailer-mounted electronic brake controller does not alter the braking 
capability of a trailer equipped with electric brakes; instead, it 
alters the method by which the trailer electric brakes are applied.
    Innovative Electronics provided limited test data showing that use 
of a trailer-mounted electric brake controller effectively controls the 
braking action of the trailer such that the tow vehicle and trailer 
combination meets the braking performance requirements of 49 CFR 
393.52(d). FMCSA acknowledges that the combination vehicle brake 
performance data provided are representative of only a single trailer-
mounted electronic brake controller manufacturer, and do not cover the 
full range of trailer-to-tow vehicle GVWR ratios as currently allowed 
for hydraulic surge brakes. FMCSA agrees with comments provided by 
Advocates, NATM, and Commercial Vehicle Services LLD that additional 
combination vehicle brake performance data will be necessary to support 
inclusion of trailer-mounted electronic brake controllers in the 
definition of surge brake. However, the subject exemption application 
is for a limited, 2-year time period, and does not represent a formal, 
permanent change to the FMCSRs.
    While trailer-mounted electric brake controllers are currently 
available for non-commercial use trailers, granting the exemption will 
allow rental companies to rent trailers equipped with trailer-mounted 
electric brake controllers to commercial customers whose tow vehicles 
are not equipped with electric brake controllers.
    For the reasons discussed above, and consistent with the Agency's 
previous determination that use of surge brakes is compatible with the 
original intent of Sec. Sec.  393.48 and 393.49, the Agency believes 
that granting the temporary exemption to allow motor carriers to use

[[Page 73765]]

trailer-mounted electronic brake controllers provides a level of safety 
that is equivalent to the level of safety achieved without the 
exemption. As noted earlier, the use of a trailer-mounted electronic 
brake controller does not alter the braking capability of a trailer 
equipped with electric brakes; instead, it alters the method by which 
the trailer's electric brakes are applied. The Agency emphasizes that 
the exemption should not be construed as an exception to the brake 
performance requirements under Sec.  393.52; motor carriers using 
trailer-mounted electric brake controllers must ensure that any 
commercial motor vehicle, or combination of commercial motor vehicles, 
complies with the brake performance requirements under Sec.  393.52 
when operated in interstate commerce.
    FMCSA has decided to grant Innovative Electronics' exemption 
application. The FMCSA encourages any party, including Innovative 
Electronics, having information that motor carriers utilizing this 
exemption are not achieving the requisite level of safety immediately 
to notify the Agency. If safety is being compromised, or if the 
continuation of the exemption is not consistent with 49 U.S.C. 31315(b) 
and 31136(e), FMCSA will take immediate steps to revoke the temporary 
exemption.

Terms and Conditions for the Exemption

    Based on its evaluation of the application for an exemption, FMCSA 
has decided to grant Innovative Electronics' exemption application. The 
Agency believes that the level of safety that will be achieved using a 
trailer-mounted electric brake controller during the 2-year exemption 
period will likely be equivalent to, or greater than, the level of 
safety without the exemption.
    The Agency hereby grants the exemption for a two-year period, 
beginning November 29, 2011 and ending November 29, 2013.
    During the temporary exemption period, motor carriers must meet the 
hydraulic surge brake requirements of Sec. Sec.  393.48(d) and 
393.49(c), substituting ``trailer-mounted electric brake controller'' 
for ``surge brake'' as follows:

393.48 Brakes to be operative.

* * * * *
    (d)(1) Trailer-mounted electric brake controllers are allowed 
on:
    (i) Any trailer with a gross vehicle weight rating (GVWR) of 
12,000 pounds or less, when its GVWR does not exceed 1.75 times the 
GVWR of the towing vehicle; and
    (ii) Any trailer with a GVWR greater than 12,000 pounds, but 
less than 20,001 pounds, when its GVWR does not exceed 1.25 times 
the GVWR of the towing vehicle.
    (2) The gross vehicle weight (GVW) of a trailer equipped with a 
trailer-mounted electric brake controller may be used instead of its 
GVWR to calculate compliance with the weight ratios specified in 
paragraph (d)(1) of this section when the trailer manufacturer's 
GVWR label is missing.
    (3) The GVW of a trailer equipped with a trailer-mounted 
electric brake controller must be used to calculate compliance with 
the weight ratios specified in paragraph (d)(1) of this section when 
the trailer's GVW exceeds its GVWR.
    (4) The trailer equipped with a trailer-mounted electric brake 
controller must meet the requirements of Sec.  393.40.

393.49 Control valves for brakes.

* * * * *
    (c) Trailer-mounted electric brake controller exception. This 
requirement is not applicable to trailers equipped with trailer-
mounted electric brake controllers that satisfy the conditions 
specified in 393.48(d).

    Interested parties possessing information that would demonstrate 
that motor carriers using the exemption for trailer-mounted electric 
brake controllers are not achieving the requisite statutory level of 
safety should provide that information to FMCSA, and that information 
will be placed in Docket No. FMCSA-2011-0022. Placement of information 
in the docket is addressed at 75 FR 33667, June 14, 2010. The Agency 
will evaluate any such information placed in the docket and, if safety 
is being compromised or if the continuation of the exemption is not 
consistent with 49 U.S.C. 31315(b)(4) and 31136(e), will take immediate 
steps to revoke this exemption, if warranted.

Preemption

    During the period the exemption is in effect, no State shall 
enforce any law or regulation that conflicts with or is inconsistent 
with this exemption to allow commercial motor vehicle operators to use 
trailer-mounted electric brake controllers which monitor and actuate 
electric trailer brakes based on inertial forces developed in response 
to the braking action of the towing vehicle.

    Issued on: November 18, 2011.
 Anne S. Ferro,
 Administrator.
[FR Doc. 2011-30739 Filed 11-28-11; 8:45 am]
BILLING CODE 4910-EX-P