[Federal Register Volume 87, Number 194 (Friday, October 7, 2022)]
[Notices]
[Pages 61133-61137]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-21875]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2021-0048]


Parts and Accessories Necessary for Safe Operation; Application 
for an Exemption From Intellistop, Inc.

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

ACTION: Notice of final disposition; denial of exemption.

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SUMMARY: The Federal Motor Carrier Safety Administration (FMCSA) 
announces its decision to deny Intellistop, Inc.'s (Intellistop) 
application for an exemption to allow motor carriers to operate 
commercial motor vehicles (CMVs) equipped with Intellistop's module 
which, when brakes are applied, pulses the required rear clearance, 
identification, and brake lamps from a lower-level lighting intensity 
to a higher-level lighting intensity 4 times in 2 seconds and then 
returns the lights to a steady-burning state. Intellistop has not shown 
that an industry-wide exemption would likely

[[Page 61134]]

achieve a level of safety equivalent to or greater than the level of 
safety provided by the regulation.

DATES: This decision is applicable October 7, 2022.

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

I. Supplememtary Information

    Docket: For access to the docket to read background documents, 
comments submitted, or the notice requesting public comments on the 
exemption application, go to www.regulations.gov at any time or visit 
Dockets Operations, Room W12-140 on the ground level of the West 
Building, 1200 New Jersey Avenue SE, Washington, DC, between 9 a.m. and 
5 p.m., ET, Monday through Friday, except Federal holidays. To be sure 
someone is there to help you, please call (202) 366-9317 or (202) 366-
9826 before visiting Dockets Operations. The on-line Federal document 
management system is available 24 hours each day, 365 days each year. 
The docket number is listed at the beginning of this notice.

II. Legal Basis

    FMCSA has authority under 49 U.S.C. 31136(e) and 31315(b) to grant 
exemptions from certain parts of the FMCSRs if it ``finds such 
exemption would likely achieve a level of safety that is equivalent to, 
or greater than, the level that would be achieved absent the 
exemption.'' FMCSA must publish a notice of each exemption request in 
the Federal Register and provide the public an opportunity to inspect 
the information relevant to the application, including any safety 
analyses that have been conducted, and an opportunity for public 
comment on the request (49 U.S.C. 31315(b)(6)(A); 49 CFR 381.315(a)).
    The Agency reviews safety analyses and public comments submitted 
and determines whether granting the exemption would likely achieve a 
level of safety equivalent to, or greater than, the level that would be 
achieved by the current regulation (49 CFR 381.305). The decision of 
the Agency must be published in the Federal Register (49 CFR 
381.315(b)) with the reasons for denying or granting the application 
and, if granted, the name of the person or class of persons receiving 
the exemption, and the regulatory provision from which the exemption is 
granted. The notice must also specify the effective period and explain 
the terms and conditions of the exemption. Granted exemptions may be 
renewed (49 CFR 381.300(b)).

III. Current Regulatory Requirements

    Section 393.25(e) of the Federal Motor Carrier Safety Regulations 
(FMCSRs) requires all exterior lamps (both required lamps and any 
additional lamps) be steady-burning, except for turn signal lamps, 
hazard warning signal lamps, school bus warning lamps, amber warning 
lamps or flashing warning lamps on tow trucks and CMVs transporting 
oversized loads, and warning lamps on emergency and service vehicles 
authorized by State or local authorities. This FMCSR is consistent with 
the Federal Motor Vehicle Safety Standard (FMVSS) No. 108, ``Lamps, 
reflective devices, and associated equipment'' (49 CFR 571.108) issued 
by the U.S. Department of Transportation's National Highway Traffic 
Safety Administration (NHTSA), which, among other things, requires that 
brake lamps, whether original or replacement equipment, be steady 
burning.

IV. Intellistop's Application for Exemption

    Intellistop applied for an exemption from 49 CFR 393.25(e) to allow 
all motor carriers to operate CMVs equipped with Intellistop's module 
which, when the brakes are applied, pulses the rear clearance, 
identification, and brake lamps from a lower-level lighting intensity 
to a higher-level lighting intensity 4 times in 2 seconds and then 
maintains the original equipment manufacturer's (OEM) level of 
illumination for those lamps until the brakes are released and 
reapplied. Intellistop stated that if the module ever fails, the 
clearance, identification, and brake lamps will default to normal OEM 
function and illumination.
    Intellistop stated that previous research has demonstrated that the 
use of pulsating brake-activated lamps increases visibility of vehicles 
and thus has the ability to reduce rear-end crashes with commercial 
motor vehicles (CMVs). Intellistop further stated that the use of the 
Intellistop module would allow motor carriers to maintain operational 
safety levels and implement more efficient and effective operations.
    Intellistop noted that FMCSA has previously granted similar, but 
not identical, temporary exemptions \1\ to the National Tank Truck 
Carriers Inc. (NTTC) (85 FR 63643, Oct. 8, 2020), Grote Industries, LLC 
(Grote) (85 FR 78918, Dec. 7, 2020) (Grote), and Groendyke Transport 
Inc. (Groendyke) (84 FR 17910, April 26, 2019).
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    \1\ During the pendency of Intellistop's exemption application 
FMCSA also granted a similar exemption to Waste Management Inc. 
(Waste Management) (See 87 FR 3166, Jan. 20, 2022).
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    In its application, Intellistop also referred to several studies 
conducted by the National Highway Traffic Safety Administration (NHTSA) 
on the issues of rear-end crashes, distracted driving, and braking 
signals. Intellistop stated that the addition of brake-activated 
pulsating lamp(s) will not have an adverse impact on safety, and that 
adherence to the terms and conditions of the exemption would likely 
achieve a level of safety equivalent to or greater than the level of 
safety achieved without the exemption.
    A copy of the application is included in the docket referenced at 
the beginning of this notice.

V. Public Comments

    FMCSA published a notice of the application in the Federal Register 
on June 14, 2021, and asked for public comment (86 FR 31552). The 
Agency received comments from the Transportation Safety Equipment 
Institute (TSEI), the National Truck Equipment Association (NTEA), the 
American Trucking Associations (ATA), Tankstar USA Inc. (Tankstar), the 
Commercial Vehicle Safety Alliance (CVSA) and 15 other stakeholders and 
individuals. Sixteen organizations and individuals supported approving 
the exemption application, three individuals or organizations opposed 
the exemption application, and one organization was noncommittal but 
offered comments.
    ATA supported granting the exemption. ATA stated that:

    Consistent with DOT's reports and research, National Tank Truck 
Carriers (NTTC) and Grote Industries have successfully petitioned 
the agency to recognize the value of enhanced rear signaling (ERS) 
for improving safe operations when compared with traditional 
standard brake lamps. ERS can provide functions beyond what 
traditional commercial motor vehicle (CMV) lighting and reflective 
devices offer, including: attention to CMVs stopped ahead; awareness 
of roadside breakdowns; emergency braking; and driver confidence 
from both vehicles. In addition to these safety benefits, ERS 
performance is superior to steady burning brake lamps in severe 
weather conditions, tail light glare and around infrastructure 
obstacles. ERS also reduces the chances of damage to both vehicles 
involved in a rear-end crash, which improves commercial operation 
uptime, CSA scores for the CMV owner, and traffic inconvenience.

    Tankstar operates a small group of trucking and bulk transport 
companies

[[Page 61135]]

and supported Intellistop's request. Tankstar said that its companies 
had experienced a number of rear end collisions. It also noted that the 
34 percent reduction in rear end crashes reported by Groendyke while 
using pulsating brake lamps supported the Intellistop request. Tankstar 
pointed out that the Intellistop flash rate of 4 times in 2 seconds 
does not match the higher intensity strobing lamps of emergency vehicle 
lighting systems, and the application should not be denied on the 
ground of possible confusion with such vehicles. TankStar stated that 
it is testing the Intellistop module on a few of its trailers, noting 
that the testing has been very successful in reducing crashes. Tankstar 
stated that this type of safety product should have the ability to be 
retrofitted, so as to impact highway safety immediately, and be 
affordable.
    TSEI urged the Agency to deny the petition and offered the 
following comment:

    The requirement that stop lamps and marker/clearance lamps be 
steady burning is longstanding. We do not believe FMCSA should make 
the leap from pulsating brake-activated warning or auxiliary lamps 
to pulsating required lamps without a thorough consideration of 
safety data and research[footnote omitted] with the aim of setting 
standards (including those related to flash patterns) to ensure 
consistency across all vehicles equipped with such lamps. . . . In 
our comments to FMCSA related to prior exemption petitions, TSEI 
acknowledged the safety benefits of brake-activated warning lamps 
when used in conjunction with steady burning red brake lamps and we 
have generally supported exemption requests for such lamps. However, 
we also expressed concerns regarding the proliferation of multiple 
lamps on the rear of commercial vehicles in the absence of 
consistent standards related to number, color, intensity, flash 
patterns, duty cycle, location, and other characteristics.

    The CVSA commented that it is opposed to allowing red brake-
activated pulsating lamps because pulsating red lamps are typically 
associated with emergency vehicles. It stated that allowing red 
pulsating lamps on the rear of commercial motor vehicles may negatively 
impact the driving public's recognition and response to emergency 
vehicles. CVSA further noted that many state laws prohibit nonemergency 
vehicles from having pulsating red lights. CVSA stated that it would 
support allowing motor carriers to equip commercial motor vehicles with 
amber brake-activated pulsating lights, but not red brake-activated 
pulsating lights, because of what it believes are likely unintended 
safety impacts related to emergency vehicles. A different commenter 
supported granting Intellistop's application specifically for red 
pulsing lights, and not amber pulsing lights, based on the commenter's 
review of studies on the effect of different wavelength lights (i.e. 
different color lights) on human vision and crash data for vehicles 
currently equipped with different colored flashing lights.
    The NTEA was noncommittal as to the exemption. However, NTEA noted, 
``In an effort to clarify the distinctions between the FMCSA authority 
over motor carrier operations and those of NHTSA over the manufacturer 
of new motor vehicles and the make inoperative prohibitions to used 
vehicle modifications, we respectfully request that FMCSA include in 
any notices granting such exemptions a brief description of the 
difference between FMCSA and NHTSA responsibilities and the limitations 
to the involved entities and conditions under which they may perform 
these modifications.''
    One individual opposed the petition, noting the potential for 
driver confusion or distraction, while fourteen stakeholders and 
individuals submitted brief comments in support of granting the 
exemption. The commenters who supported the exemption generally 
asserted that this technology may be able to reduce rear-end crashes 
and should therefore be allowed, citing various benefits of brake 
activated pulsating lamps, including (1) enhanced awareness that the 
vehicle is making a stop, especially at railroad crossings, (2) 
anecdotal reduction in rear-end crashes within commenter fleets, 
presumably due to increased reaction time for following drivers, and 
(3) increased visibility near rail-road crossings and in severe weather 
conditions. Two commenters noted that flashing lights are used on other 
vehicles, like utility trucks and emergency responder vehicles, to 
improve driver awareness of those vehicles and therefore pulsing lights 
on CMVs would similarly alert nearby drivers to the vehicles. In 
general, the comments received were conclusory and anecdotal and did 
not provide specific data or research in support of their position.

VI. Equivalent Level of Safety Analysis

    As noted, Intellistop petitions FMCSA to grant motor carriers an 
exemption from 49 CFR 393.25(e)--which requires certain exterior lamps 
to be steady burning--in order to permit them use its device. FMCSA may 
only grant such exemptions if it ``finds such exemption[s] would likely 
achieve a level of safety that is equivalent to, or greater than, the 
level that would be achieved absent the exemption[s].''
    Rear-end crashes generally account for approximately 30 percent of 
all crashes. They often result from a failure to respond (or delays in 
responding) to a stopped or decelerating lead vehicle. Data on crashes 
that occurred between 2010 and 2016 show that large trucks are 
consistently three times more likely than other vehicles to be struck 
in the rear in two-vehicle fatal crashes.2 3 Accordingly, 
FMCSA is deeply interested in the development and deployment of 
technologies that can reduce the frequency, severity, and risk of rear-
end crashes.
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    \2\ U.S. Department of Transportation, National Highway Traffic 
Safety Administration (2012), Traffic Safety Facts--2010 Data; Large 
Trucks, Report No. DOT HS 811 628, Washington, DC (June 2012), 
available at: https://crashstats.nhtsa.dot.gov/Api/Public/ViewPublication/811628.
    \3\ U.S. Department of Transportation, National Highway Traffic 
Safety Administration (2018), Traffic Safety Facts--2016 Data; Large 
Trucks, Report No. DOT HS 812 497, Washington, DC (May 2018), 
available at: https://crashstats.nhtsa.dot.gov/Api/Public/
Publication/
812497#:~:text=Fatalities%20in%20crashes%20involving%20large,to%204%2
C317%20fatalities%20in%202016.
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    Both FMCSA and NHTSA have considered alternative rear-signaling 
systems to reduce the incidence of rear-end crashes. While these 
efforts concluded that improvements could be realized through certain 
rear-lighting systems that flash,\4\ neither the FMCSRs nor the FMVSSs 
currently permit the use of pulsating, brake-activated lamps on the 
rear of CMVs. FMCSA believes that the two agencies' previous research 
programs demonstrate that rear-signaling systems may be able to 
``improve attention getting'' to reduce the frequency and severity of 
rear-end crashes, though that benefit must be balanced against 
increased risk of driver distraction and confusion.
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    \4\ Expanded Research and Development of an Enhanced Rear 
Signaling System for Commercial Motor Vehicles: Final Report, 
William A. Schaudt et al. (Apr. 2014) (Report No. FMCSA-RRT-13-009).
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    While the Agency recognizes the existing data that supports the 
potential safety value of alternative rear-signaling systems in 
general, it is also mindful of the data deficiencies in this area. Data 
deficiencies include the effect on nearby drivers if many vehicles on a 
roadway are equipped with pulsing brake lights and whether such 
lighting would serve to improve driver attention or, alternatively, 
cause confusion or distraction. Commenters also disagree on which color 
light is most appropriate to pulse on the rear of a vehicle, red or 
amber, and at this time, FMCSA does not have sufficient data to support 
one conclusion over the other.
    In addition to FMCSA's and NHTSA's research on rear-end crashes 
into CMVs

[[Page 61136]]

outlined above, there is also data from other industry applicants whose 
exemption requests the Agency has previously granted. FMCSA 
acknowledges that the number of vehicles operating under those 
exemptions is significant. Intellistop's exemption application, 
however, is potentially far broader in scope than most previous 
exemption applications FMCSA has granted, as it would apply to any 
motor carrier that sought to use Intellistop's equipment and also, 
importantly, alters the functioning of required lamps.\5\ FMCSA is 
required to monitor implementation of the exemption to ensure 
compliance with its terms and conditions and ensure that operation 
under the exemption meets and maintains an equivalent level of safety. 
Because of the broad scope of Intellistop's application, FMCSA would 
not be able to sufficiently monitor operations under the exemption.
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    \5\ In contrast, the Groendyke exemption is specific to the 
individual motor carrier and applies to a single, amber, auxiliary 
lamp. The NTTC and Waste Management exemptions were both granted to 
organizations and apply to tens of thousands of vehicles, but again, 
apply to auxiliary lamps (whether red or amber, single or double 
mounted). Finally, the Grote exemption does apply to all motor 
carriers, but only allows flashing of an auxiliary lamp, unlike 
Intellistop's device that alters the required lamps.
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    Importantly, all other pulsing rear-light exemptions that FMCSA has 
previously granted involved the addition of non-mandatory auxiliary 
lighting systems, whereas Intellistop seeks permission to alter the 
functionality of original equipment manufacturers' lamps, which are 
covered by an existing FMVSS. The Agency believes this is a crucial 
distinction, and one that TSEI highlighted in its comment. TSEI 
explained that while it has generally supported other similar exemption 
applications, in this instance it cautioned against making ``the leap 
from pulsating brake-activated warning or auxiliary lamps to pulsating 
required lamps.'' \6\ The Agency, in consultation with NHTSA, has 
determined that it does not currently have data to support a blanket 
exemption for industry \7\ to alter the performance of a required lamp 
covered by the FMCSRs and FMVSSs.
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    \6\ Transportation Safety Equipment Institute, Comment to Docket 
FMCSA-2021-0048 at 2 (July 14, 2021) (emphasis in original), 
available at: https://www.regulations.gov/comment/FMCSA-2021-0048-0020.
    \7\ FMCSA seeks to make clear that this decision does not 
preclude individual MCs from seeking an exemption to use an 
Intellistop device.
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    Moreover, FMCSA and NHTSA are concerned that additional requests 
for industry-wide exemption from section 393.25(e) might follow, from 
other companies seeking to market similar but perhaps slightly varying 
brake lamp products that modify existing FMVSS brake lights. Industry-
wide exemptions are not the norm and FMCSA grants them only on a very 
limited basis, especially when doing so would involve equipment 
mandated by an FMVSS. The Agency has no data on the effect that such 
broad adoption of pulsing brake lamps would have on driver distraction, 
confusion, and overall safety, particularly if large numbers of trucks 
quickly became equipped with such devices.
    Commenting on this exemption application, TSEI articulated its' 
long-standing ``concerns regarding the proliferation of multiple lamps 
on the rear of commercial vehicles in the absence of consistent 
standards related to number, color, intensity, flash patterns, duty 
cycle, location, and other characteristics.'' \8\ FMCSA shares TSEIs 
concerns regarding the unknown safety effects from a sudden and 
industry-wide proliferation of a variety of non-conforming lighting.
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    \8\ Transportation Safety Equipment Institute, Comment to Docket 
FMCSA-2021-0048 at 2 (July 14, 2021), available at: https://www.regulations.gov/comment/FMCSA-2021-0048-0020.
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    For these reasons, FMCSA concludes that Intellistop failed to 
demonstrate that its device is likely to provide the equivalent level 
of safety as 49 CFR 393.25(e).

VII. Exemption Decision

    Given the scope of the exemption sought, to include all motor 
carriers, and the limitations of the research studies completed to 
date, the Agency believes an exemption to allow the alteration of the 
performance of an FMVSS-required lighting device (i.e., stop lamps) on 
all CMVs is not supported at this time.
    Applicants requesting an exemption bear the burden of demonstrating 
that the exemption from existing regulatory requirements will likely 
provide an equivalent level of safety to the existing regulations. 
FMCSA has evaluated Intellistop's application and the comments received 
in support of and opposition to the exemption. FMCSA has also reviewed 
and analyzed the research cited by Intellistop in support of its 
application.
    Unlike other exemption requests received by the Agency relating to 
rear lighting, Intellistop's application seeks to alter the performance 
of the FMVSS-required lighting device on all CMVs rather than adding 
additional pulsating lights. Intellistop did not provide any specific 
data relating to the operation of its device. Intellistop did not 
provide data specific to the use of its module which pulses the 
existing brake lamps rather than the use of additional lamps as 
identified in the exemptions to Waste Management, Grote, NTTC, and 
Groendyke, or regarding the distraction, confusion, or safety effects 
of large numbers of trucks being so equipped.
    Generally, Intellistop relied on studies of other lighting 
configurations proposing to add additional pulsating lights rather than 
altering the performance of the existing brake lights. Further, 
Intellistop did not provide data to demonstrate that the installation 
of the device would safely interact with the CMV's existing systems or 
to support its claim that a malfunction of the Intellistop device would 
result in the brake lights returning to OEM functionality, in 
conformance with the required FMVSS.
    While the technology at issue may have promise, FMCSA believes a 
blanket exemption for all motor carriers to use Intellistop's product 
is not supported by the currently available data, is not an appropriate 
approach, and lacks the necessary monitoring controls to ensure highway 
safety. Previous research programs demonstrate the potential 
effectiveness of rear-signaling systems to ``improve attention 
getting'' to reduce the frequency and severity of rear-end crashes, but 
that previous research does not address the potential safety benefits 
or risks of a lighting system that would replace rather than merely 
supplement a light required by an FMVSS. Thus, at this stage, the 
record before the Agency does not show that Intellistop's petition for 
an industry-wide exemption adequately demonstrates the required 
threshold, of likely to achieve an equivalent level of safety.
    FMCSA notes that this decision does not necessarily preclude motor 
carriers from seeking exemptions from 49 CFR 393.25(e) to purchase, 
install, and use the Intellistop device subject to the terms and 
conditions of an exemption if granted by FMCSA, as one of the bases of 
the Agency's decision here is the broad reach of Intellistop's request. 
Moreover, receipt and specific consideration by FMCSA of separate 
applications for exemption from individual motor carriers or motor 
carrier trade groups (especially those representing a particular class 
or type of CMV operators) also more closely aligns FMCSA's exemption 
granting practice with the Motor Vehicle Safety Act administered by 
NHTSA, which states that, ``[a] manufacturer, distributor, dealer, 
rental company, or motor vehicle repair business may not knowingly

[[Page 61137]]

make inoperative any part of a device or element of design installed on 
or in a motor vehicle or motor vehicle equipment in compliance with an 
applicable motor vehicle safety standard prescribed under this 
chapter,'' other than to make repairs.\9\ Here, this would mean that 
the installation of equipment like that included in Intellistop's 
petition would likely run afoul of this prohibition if installed by any 
entity other than the operator or owner. Granting an industry-wide 
exemption would make it extremely difficult, if not impossible, to 
monitor the installation of the devices and the ``make inoperative'' 
provisions of the Safety Act. However, individual exemption 
applications from motor carriers may more closely align with FMCSA and 
NHTSA authorities to ensure compliance with all applicable regulations, 
since the exemption grantee would be easily identifiable, and their 
compliance with the ``make inoperative'' prohibition and any other 
related regulations could be checked.
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    \9\ 49 U.S.C. 30112(b). See also NHTSA Interpretation Letter 
from Steve Wood to Wolfred Freeman (approx. 1989), available at: 
https://www.nhtsa.gov/interpretations/aiam4661 (explaining that the 
Safety Act ``prohibits modifications by persons other than the owner 
of the vehicle if they render inoperative, in whole or in part, 
equipment that is installed pursuant to a safety standard.'')
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    For the above reasons, Intellistop's application seeking an 
industry-wide exemption for its pulsing brake light module is denied.

Robin Hutcheson,
Administrator.
[FR Doc. 2022-21875 Filed 10-6-22; 8:45 am]
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