The Federal Motor Carrier Safety Administration is getting what it asked for.
Even as the U.S. Department of Transportation agency prepares to face Intellistop president Michelle Hanby in court over her company’s long-delayed—and ultimately denied—exemption application for its pulsating brake lamp module, FMCSA has posted seven notices in the Federal Register since Jan. 27 from motor carriers who are seeking to deploy the device without violating safety regulations—including six in one morning last week.
And Hanby expects several more applications to open for comment in coming days.
“I’m excited to see they’re finally hitting the register,” Hanby told Bulk Transporter, FleetOwner's sister publication. “They were submitted back in September, so it’s taken a while to get them out there, but it shows how important this is to these carriers.”
Securing a more comprehensive exemption from the “steady-burning lamp” requirement in Part 393.25(e) of the Federal Motor Carrier Safety Regulations is equally important to Hanby. That’s why she’s asking the U.S. Court of Appeals for the District of Columbia to direct FMCSA to grant Intellistop’s exemption, which Hanby asserts the agency “arbitrarily and capriciously” denied nearly two years after it was received—far longer than the mandated 180 days for a ruling, and only then because she petitioned for a decision.
But she’ll have to wait a little longer to see a judge after FMCSA last week was granted an extension to file its response brief, which now is due March 9. In the meantime, pulsating brake lamps on commercial vehicles, and Intellistop’s module in particular, are expected to remain a hot topic at the Technology and Maintenance Council's 2023 Annual Meeting and Transportation Technology Exhibition, set for Feb. 27 to March 2 in Orlando, Florida, where TMC’s Brake-Activated Pulsating Lamps Task Force again will consider this oddly contentious issue.
“It’s frustrating because it’s fairly obvious to me that anything that can warn somebody a semi is slowing down or stopping is a good thing,” said Jim Dillon, truck assets manager for Oklahoma-based Gemini Motor Transport—the primary fuel hauler for Love’s Travel Stops—which filed one of the recent exemption requests.
“I can’t believe we’re having to fight to get it approved.”
Most commenters can’t believe it either.
As with public comments submitted on Intellistop’s application, most of the comments on Encore Building Products’ application, which was the first to hit the register, support granting the exemption, with 10 saying yes, five saying no, and an ambivalent responder stating “nothing is going to make a difference when you’re on your phone.”
Randall Reed, like many supporters, expressed exasperation with the entire process.
“For an agency that is ‘supposed’ to be working for the safety of the public on the roadways, it seems very irresponsible and maybe even negligent on their part for not approving this safety feature,” he said. “Why are the trucking companies asking for safety measures to be allowed [not required] and being denied, while in the meantime new regulations are being added and enforced that have nothing to do with safety and have no scientific data supporting that they are safer.
“Approve this already and make it so all trucks can use them if they choose to.”
Meiborg Brothers, which also submitted its own exemption application, said it’s in the process of equipping its entire fleet of 600 dry van trailers with Intellistop’s module “regardless of your law. The fact this product is technically illegal is a clear example of how compliance does not equal safety. It would be a shame to the motoring public if this idea of a pulsing taillight did not become the standard. I hope you make the right decision.”
Tomahawk Dye called granting the exemption a “no-brainer,” and an anonymous poster asked the agency to “please keep the politics out of this.”
Of the five detractors, three cited potential confusion, particularly with a vehicle’s turn signal, and Michael Hughes took a sarcastic stance, writing, “How stupid does one have to be not to understand that every new attempt to get the attention of the dumb masses almost immediately becomes the standard and therefore useless in grabbing one’s attention. So long as the medicated grain brain society exists, any attempt at taking an attempted murderer’s attention away from his behind-the-wheel leisure time is obviously futile.”
That leaves one primary, anonymous dissenter’s five-paragraph, 781-word comment, which cites a potential “startle” effect on drivers that could cause them to jerk the steering wheel, and protests the use of red pulsating lights, and allowing modifications to new vehicles, which is prohibited by the “make-inoperable provision.”
“FMCSA is doing a dis-service by having allowed other similar exemptions for pulsating lamps in the first place,” the commenter posted. “Now that FMCSA has opened the door to these additional lamps, these exemption requests become more outlandish and burdensome to address. I think it is a waste of everyone’s time that this exemption has been encouraged to be requested and pushed to comment when the same exemption [presumably Intellistop’s] was requested just months ago and found to not be able to meet or exceed the current level of safety for all commercial motor vehicles.”
Groendyke Transport secured the first exemption for brake-activated pulsating lamps in April 2019. National Tank Truck Carriers won a similar exemption on behalf of all tank trailer operators in October 2020, and FMCSA approved Grote Industries’ request to cover van bodies two months later—the same month Intellistop filed its application, which was published in the Federal Register in June 2021. But instead of continuing the trend, FMCSA skipped Intellistop and instead approved Waste Management’s exemption in January 2022, while reiterating its position that brake-activated pulsating lamps are likely to “achieve a level of safety equivalent to or greater than the level of safety provided by the regulation.”
So why did FMCSA take the unusual step of denying an application it published after granting four similar exemptions? In short, the impasse involves Intellistop’s inclusion of manufacturers and use of a trailer’s existing lights, rather than auxiliary lamps. Because while the National Highway Traffic Safety Administration may have grudgingly accepted FMCSA’s previous determinations, it was unwilling to go along with an exemption that encroaches on its oversight of newly manufactured vehicles, equipment, and technology as covered by Federal Motor Vehicle Safety Standard (FMVSS) No. 108, even when its own extensive, taxpayer-funded research supports the technology’s safety benefit. And with the two agencies unable to see eye to eye, FMCSA ultimately denied Intellistop’s request Oct. 7, 2022—22 months after it was filed.
“FMCSA has to figure out how to play nice with NHTSA on this one,” said Robert Braswell, TMC’s executive director. “They’ve got to get it together because [new vehicles are] a NHTSA game, not an FMCSA game, and that’s where the issue lies. And I think there’s tension between the two administrations as to how this should be approached.”
The American Trucking Associations (ATA) was one of 18 commenters who supported Intellistop’s application, with manufacturers included—two indicated conditional support, and two opposed the exemption—and Kevin Grove, ATA’s director of safety and technology policy, said the association again will submit comments in support of the latest requests. Grove, an engineer who previously studied enhanced rear signaling on commercial vehicles while serving as a senior researcher at the Virginia Tech Transportation Institute, questioned claims about the diminishing impact of pulsating brake lamps—and their potential for confusion.
“I don’t see them causing unintended consequences,” he said. “I don’t believe there’s a lot of potential for confusion, or drivers reacting improperly. It’s a very quick pulse—and not just Intellistop, but the way other products like this are implemented, too—so I don’t see the downside.” Grove added that ATA is particularly interested in learning more about Intellistop’s modules. “They’re easy to implement,” he said. “They’re not difficult to wire into the vehicles, whether in the aftermarket or at the manufacturer level, and the potential for a low-cost, high-benefit technology is very interesting to us and our members.”
Grove wants more fleets generating data on the potential safety benefits of pulsating brake lamps. Dillon already is convinced. He said 43% of Gemini’s DOT recordable accidents last year involved vehicles rear-ending their trailers, so they’ve already started outfitting their fleet of 1,000 tank trailers and 200 dry vans with Intellistop’s module. “We’re running bright yellow tankers down the road and people still run into the back of us,” he lamented. Gemini also has 1,500 service trucks equipped with the rear-end collision deterrent system from BrakePlus, which was founded in 2013 by Hanby and partner Kevin Cannon.
Fleet managers aren’t the only invested parties. Trailer OEMs and lighting suppliers are keenly interested as well, leading to a standing-room-only taskforce discussion that spilled into shop talk at the last TMC meeting. Braswell said there’s no consensus on how the technology should be implemented, from the size, shape, and placement of pulsating brake lamps to the color and timing of pulses, so the taskforce’s goal is to come up with recommendations for standardization. “It’s really the wild, wild West on this stuff,” he said.
Hanby, who set up a webpage to help fleets file for an exemption, wants to bring order to this technology frontier with her suit against DOT, FMCSA, Secretary of Transportation Pete Buttigieg, and FMCSA Administrator Robin Hutcheson—a fight she never wanted but refuses to flee. She’s hoping to finally face them in court in late April or early May after filing her reply brief by March 30.
“If I didn’t think it was the right thing to do, and I didn’t think I could win, I wouldn’t have filed suit,” Hanby said.