Intellistop Inc. v. United States Department of Transportation

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 11, 2023 Decided July 7, 2023
No. 22-1260
INTELLISTOP INC.,
PETITIONER
v.
UNITED STATES DEPARTMENT OF TRANSPORTATION, ET AL.,
RESPONDENTS
On Petition for Review of an Order
of the Federal Motor Carrier Safety Administration
Stephen J. Obermeier argued the cause for petitioner.
With him on the briefs were Jeremy J. Broggi and Boyd
Garriott.
Casen B. Ross, Attorney, U.S. Department of Justice,
argued the cause for respondents. With him on the brief were
Brian M. Boynton, Principal Deputy Assistant Attorney
General, Abby C. Wright, Attorney, John E. Putnam, General
Counsel, U.S. Department of Transportation, Paul M. Geier,
Assistant General Counsel for Litigation and Enforcement,
Charles E. Enloe, Trial Attorney, and Charles J. Fromm,
Deputy Chief Counsel, Federal Motor Carrier Safety
Administration.

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Before: HENDERSON, PILLARD and PAN, Circuit Judges.
Opinion for the Court filed PER CURIAM.
PER CURIAM: The Federal Motor Carrier Safety
Administration (FMCSA) requires by regulation every
commercial motor vehicle operated by a motor carrier to
maintain steady-burning exterior lamps, or lights, unless the
light at issue is covered by an exemption listed in the
regulation, 49 U.S.C. § 113(a), (f); 49 C.F.R. § 393.25(e), or a
temporary exemption to the regulation is granted, 49 U.S.C.
§ 31315(b).1 To grant a temporary exemption, the FMCSA
must determine the exemption “would likely achieve a level of
safety that is equivalent to, or greater than, the level that would
be achieved absent such exemption.” 49 U.S.C. § 31315(b)(1);
see 49 C.F.R. § 381.310.
Intellistop, Inc. (Intellistop) invented and sells a module
that fits into a commercial motor vehicle’s existing brake light
system and pulses the brake lights with each application of the
brakes. Because the module replaces the steady-burning lights
with pulsing lights when installed, Intellistop applied for an
exemption. The FMCSA denied Intellistop’s application and
Intellistop now petitions for review, arguing that the FMCSA’s
decision was arbitrary and capricious. As detailed infra, we
deny Intellistop’s petition.
1 A “commercial motor vehicle” means a “self-propelled or
towed vehicle used on highways in interstate commerce to transport
passengers or property” that, as applicable here, “has a gross vehicle
weight rating or gross vehicle weight of at least 10,001 pounds,
whichever is greater.” 49 U.S.C. § 31132(1); 49 C.F.R. § 390.5.

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I.
The FMCSA “prescribe[s] minimum safety standards” via
its federal motor carrier safety regulations (FMCSRs) to ensure
that commercial motor vehicles are “maintained, equipped,
loaded, and operated safely.” 49 U.S.C. § 31136(a)(1); see also
id. § 113(a), (f)(1). The FMCSR relevant here requires that all
exterior lights on commercial motor vehicles “shall be steady-
burning.” 49 C.F.R. § 393.25(e). Turn signal lights and hazard
warning signal lights, as well as warning lights on school buses,
tow trucks, vehicles transporting oversized loads, government
service vehicles and emergency responding vehicles, are not
subject to the steady burn requirement. Id.
The FMCSA “may grant” a renewable exemption to a
FMCSR for up to five years 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 such exemption.”
49 U.S.C. § 31315(b)(1), (2). It monitors the exemptions it
grants because, if a party fails to comply with the terms of its
exemption or the FMCSA learns that the exemption has
resulted in a lower level of safety, it immediately revokes an
exemption. 49 U.S.C. § 31315(b)(4)(B).
The Congress separately established and empowered the
National Highway Traffic Safety Administration (NHTSA),
also within the Department of Transportation, to promulgate
federal motor vehicle safety standards (FMVSSs) that apply to
all motor vehicles, including commercial motor vehicles. See
49 U.S.C. §§ 105(d), 30102(a)(7), 30111(a). A motor vehicle
that does not meet the NHTSA’s safety standards cannot be
manufactured, sold or introduced in interstate commerce. Id.
§ 30112(a)(1). The NHTSA maintains an FMVSS that, like the

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FMCSA regulation, requires steady-burning brake lights on all
motor vehicles. 49 C.F.R. § 571.108 (Table I-a), (Table I-b).2
Intellistop’s module pulses a commercial motor vehicle’s
existing rear clearance, identification and brake lights from a
lower-level lighting intensity to a higher-level lighting
intensity four times in under two seconds when the brakes are
applied. Its module can be put into the preexisting brake light
circuit of any trailer and does not require additional equipment.
According to Intellistop, the rapid pulsing alerts a driver that a
vehicle in front of him is slowing down or coming to a stop and
therefore prevents rear-end collisions. Intellistop’s prospective
customers, however, thought that Intellistop’s module could
conflict with the FMCSA’s “steady-burn” regulation,
49 C.F.R. § 393.25(e). And thus, in 2020, Intellistop applied
for an exemption “on behalf of all motor carriers.” J.A. 18.
In 2022, the FMCSA denied Intellistop’s application after
concluding that Intellistop had not provided sufficient
information to demonstrate that an exemption for its module
would produce a level of safety equivalent to the steady-burn
regulation. Parts and Accessories Necessary for Safe
Operation; Application for an Exemption From Intellistop, Inc.
(FMCSA Decision), 87 Fed. Reg. 61133, 61136 (Oct. 7, 2021).
In its decision, the FMCSA acknowledged that pulsing brake
lights had the potential to “improve attention getting” of a
driver following a commercial motor vehicle and consequently
to lower the risk of a rear-end collision. Id. It noted that
2 The FMVSS defines stop lamps, or brake lights, as “lamps
giving a steady light to the rear of a vehicle to indicate a vehicle is
stopping or diminishing speed by braking” and requires that all
produced motor vehicles have two red brake lights on the rear.
49 C.F.R. § 571.108 (Table I-a) (requiring steady-burning brake
lights on all trucks), (Table I-b) (requiring steady-burning brake
lights on all trailers).

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“[g]enerally, Intellistop relied on studies of other lighting
configurations proposing to add additional pulsating lights
rather than altering the performance of the existing brake
lights,” id. (emphasis added), and concluded 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.” Id.
Critically, the FMCSA weighed the potential “attention
getting” safety benefit of Intellistop’s module against its
concern that Intellistop provided insufficient data showing that
the widespread availability of its module would not increase
the risk of confusion and distraction among drivers or that the
modified brake lights would remain functional in the event that
Intellistop’s module malfunctioned. Id. It saw “a crucial
distinction” between Intellistop’s application and other
exemption applications the FMCSA had approved in that the
“other pulsing rear-light exemptions that FMCSA ha[d]
previously granted involved the addition of non-mandatory
auxiliary lighting systems, whereas Intellistop [sought]
permission to alter the functionality of original equipment
manufacturers’ lamps, which are covered by an existing
FMVSS.” Id. (emphasis added). The FMCSA had previously
granted four exemptions for pulsing brake lights. All of the four
exemptions provided for the installation of an auxiliary light
that flashes with each application of a commercial motor
vehicle’s brakes in addition to the vehicle’s steady-burning
brake lights.
Because Intellistop’s module modified original equipment
manufacturers’ lights that are covered by an FMVSS,
49 C.F.R. § 571.108, the FMCSA also consulted the NHTSA,
the agency that promulgates and implements FMVSSs,
FMCSA Decision, 87 Fed. Reg. at 61136. After that
consultation, the FMCSA concluded that Intellistop had not

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supplied sufficient data to address its concerns, especially in
the context of an exemption for the entire motor carrier
industry. Id. The FMCSA stated that it would consider
“separate applications for exemption from individual motor
carriers or motor carrier trade groups” interested in using
Intellistop’s product on their commercial motor vehicles as the
exemptions would be narrower and would “more closely
align[] FMCSA’s exemption granting practice with the Motor
Vehicle Safety Act administered by NHTSA.” Id. Intellistop
timely petitioned for review of the FMCSA’s decision.
II.
Intellistop first contends that the FMCSA arbitrarily
ignored unrebutted empirical research cited in its application
that shows pulsing brake lights have the potential to reduce
rear-end collisions and improve traffic safety. Second,
Intellistop claims that the FMCSA distinguished its application
from exemptions granted in the past, which exemptions used
the same studies Intellistop relied on in its application, and thus
arbitrarily treated similarly situated parties differently. Finally,
Intellistop disputes the FMCSA’s claim that it could not
adequately monitor Intellistop’s modules, as required under
49 U.S.C. § 31315(b)(4), notwithstanding it currently monitors
similarly broad exemptions.
We review whether the FMCSA acted “arbitrarily or
capriciously, abused its discretion, or acted contrary to law” in
denying Intellistop’s exemption application. United Airlines,
Inc. v. TSA, 20 F.4th 57, 62 (D.C. Cir. 2021) (quoting Alaska
Airlines, Inc. v. TSA, 588 F.3d 1116, 1120 (D.C. Cir. 2009));
see also 5 U.S.C. § 706(2)(A). We ordinarily defer to an
“agency’s decision whether to grant a waiver excusing a
violation of a standard,” noting that “the Supreme Court and
our court have recognized that agencies should be given a wide

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berth when making predictive judgments.” Bd. of Cnty.
Comm’rs v. U.S. Dep’t of Transp., 955 F.3d 96, 99 (D.C. Cir.
2020). At the same time, we evaluate whether the agency
reasonably exercised its discretionary authority “and, just as
importantly, reasonably explained” its decision. United
Airlines, 20 F.4th at 62; see also FCC v. Prometheus Radio
Project, 141 S. Ct. 1150, 1158 (2021) (“The APA’s arbitrary-
and-capricious standard requires that agency action be
reasonable and reasonably explained. . . . A court simply
ensures that the agency has acted within a zone of
reasonableness and, in particular, has reasonably considered
the relevant issues and reasonably explained the decision.”).
“[A]n administrative order cannot be upheld unless the grounds
upon which the agency acted in exercising its powers were
those upon which its action can be sustained.” SEC v. Chenery
Corp., 318 U.S. 80, 95 (1943).
We believe the FMCSA acted reasonably in denying
Intellistop’s exemption and adequately explained that
Intellistop provided insufficient data “to support a blanket
exemption for industry to alter the performance of a required
lamp covered by the FMCSRs and FMVSSs.” FMCSA
Decision, 87 Fed. Reg. at 61136 (footnote omitted); see United
Airlines, 20 F.4th at 62. Under both 49 U.S.C. § 31315(b) and
FMCSA regulations, Intellistop was required to provide the
FMCSA with an “analysis of the safety impacts the requested
exemption may cause.” 49 U.S.C. § 31315(b)(5)(C); see also
49 C.F.R. § 381.310(c) (applicant “must provide a written
statement that . . . [e]xplains how you would ensure that you
could achieve a level of safety that is equivalent to, or greater
than, the level of safety that would be obtained by complying
with the regulation.”). The FMCSA found Intellistop’s data
insufficient for it to determine that the requested exemption
would result in a level of safety equivalent to that required by
its regulations. See FMCSA Decision, 87 Fed. Reg. at 61135

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(“While the agency recognize[d] the existing data that supports
the potential safety value of alternative rear-signaling systems
in general, it [was] also mindful of the data deficiencies in this
area.”). The FMCSA first cited Intellistop’s failure to provide
data showing that industry-wide pulsing of existing (that is,
steady-burn) brake lights, rather than supplemental pulsing
lights, would not cause driver confusion or distraction. See id.
(“Data deficiencies include the effect on nearby drivers if many
vehicles on a roadway are equipped with pulsing brake
lights . . . .”); id. at 61136 (“Intellistop did not provide data . . .
regarding the distraction, confusion, or safety effects of large
numbers of trucks being so equipped.”). Second, the FMCSA
emphasized that Intellistop provided no data to demonstrate
“that the installation of the device would safely interact with
the [commercial motor vehicle’s] existing systems or to
support its claim that a malfunction of the Intellistop device
would result in the brake lights returning to [original equipment
manufacturer] functionality, in conformance with the required
FMVSS.” Id. at 61136.
According to Intellistop, the FMCSA ignored or
mischaracterized the studies Intellistop cited in its exemption
application to support the safety benefits of its technology. See
Butte Cnty v. Hogen, 613 F.3d 190, 194 (D.C. Cir. 2010)
(“[A]n agency’s refusal to consider evidence bearing on the
issue before it constitutes arbitrary agency action within the
meaning of § 706.”); Genuine Parts Co. v. EPA, 890 F.3d 304,
313 (D.C. Cir. 2018) (“It was arbitrary and capricious for [the
agency] to rely on portions of studies in the record that support
its position, while ignoring cross sections in those studies that
do not.”). We disagree.
First, the FMCSA did not ignore or mischaracterize the
potential “attention getting” safety benefit of pulsing brake
lights reported in the studies Intellistop cited. The FMCSA

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acknowledged the potential safety benefits of pulsing brake
lights reported in the studies Intellistop cited. See FMCSA
Decision, 87 Fed. Reg. at 61135 (“FMCSA believes that the
two agencies’ [i.e., NHTSA’s and FMCSA’s] 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[.]”); id. at 61136
(“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[.]”).
Second, and more importantly, the FMCSA reasonably
determined that the studies Intellistop cited in its application
did not address the fundamental informational deficiencies the
FMCSA had identified—its concern regarding widespread
driver confusion stemming from the rapid introduction of
pulsing brake lights across the motor carrier industry and its
concern that Intellistop’s module altered the performance of
original equipment manufacturers’ lights covered by a
FMVSS. See id. at 61136. Intellistop argues that the FMCSA
misstated or ignored the conclusions of two NHTSA studies
from 2009 and 2010 that evaluated the safety benefits and risks
of pulsing existing brake lights. The studies reported greater
“attention getting” and faster braking response times from
drivers if an experimental brake light system, installed in the
same location as a standard vehicle’s brake lights, pulsed
compared to the steady-burning system. J.A. 112 (2010
NHTSA static study’s summary of conclusions), 261–62 (2009
NHTSA study’s summary of conclusions). The 2009 NHTSA
study also analyzed whether neighboring drivers excessively
braked or swerved in response to the experimental vehicle’s
pulsing brake lights and reported “relatively few instances of
undesirable or erratic behaviors” in response thereto. J.A. 259
(2009 NHTSA Study). Thus, Intellistop contends, the FMCSA

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either arbitrarily misstated or ignored the studies by
determining that no previous research had evaluated the safety
benefits or risks of replacing steady-burn brake lights as
opposed to supplementing them. See Genuine Parts Co.,
890 F.3d at 313.
But the studies Intellistop claims the FMCSA misstated or
ignored in its decision did not address the bases of the
FMCSA’s decision. FMCSA Decision, 87 Fed. Reg. at 61135–
36. Those studies evaluated the potential “attention getting” of
pulsing brake lights but did not address whether the technology
Intellistop employed would “safely interact with the
[commercial motor vehicle’s] existing systems” or “[whether]
a malfunction of the Intellistop device would result in the brake
lights returning to [original equipment manufacturer’s]
functionality.” Id. at 61136. Nor did those studies address the
potential for driver distraction related to the number of
commercial motor vehicles with pulsing brake lights under
Intellistop’s requested industry-wide exemption by merely
analyzing driver distraction caused by one experimentally
modified passenger vehicle with pulsing brake lights. See id. at
61135 (“Data deficiencies include the effect on nearby drivers
if many vehicles on a roadway are equipped with pulsing brake
lights . . . .”) (emphasis added), 61136 (“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 . . .
or regarding the distraction, confusion, or safety effects of
large numbers of trucks being so equipped.”) (emphasis
added). Although the FMCSA previously granted an industry-
wide exemption to Grote Industries, LLC (Grote) to allow the
addition of non-mandatory auxiliary lighting systems, see J.A.
159–66 (Grote Indus. Exemption Decision), Intellistop’s
request would permit commercial motor vehicles to alter
mandatory lighting systems, potentially leading to “large
numbers of trucks quickly [becoming] equipped with such

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devices.” FMCSA Decision, 87 Fed. Reg. at 61136; see
Petitioner’s Br. 14 (“The easy integration allows commercial
vehicle fleet operators to install the Intellistop Module on a
trailer in five minutes and without any special equipment.”).
The FMCSA thus emphasized not only the scope of
Intellistop’s requested exemption but also the potential for
rapid adoption. Therefore the FMCSA’s statement that
“previous research [did] 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,”
although incorrect, was not used as the basis of the FMCSA’s
decision. See FMCSA Decision, 87 Fed. Reg. at 61135–36.3
The FMCSA also sufficiently explained the difference
between Intellistop’s application and the exemptions it had
previously approved. See United Airlines, 20 F.4th at 62.
Granted, we have often held that “agencies must ‘provide an
adequate explanation to justify treating similarly situated
parties differently,’” Nasdaq Stock Mkt. LLC v. SEC, 38 F.4th
1126, 1141 (D.C. Cir. 2022) (quoting Burlington N. & Santa
Fe Ry. Co. v. Surface Transp. Bd., 403 F.3d 771, 776 (D.C. Cir.
3 We note that the two NHTSA studies are not as analogous to
Intellistop’s module as Intellistop suggests. Both studies assessed the
“attention getting” and responses to an experimentally designed
pulsing brake light system on drivers in a parking lot or on a public
roadway. The studies, however, replaced the motor vehicle’s original
brake light systems with a “test apparatus” capable of both pulsing
and steady burning. See generally Nat’l Highway Traffic Safety
Admin., Evaluation of Enhanced Brake Lights Using Surrogate
Safety Metrics, Task 1 Report, DOT HS 811 127 (April 2009); Nat’l
Highway Traffic Safety Admin., Evaluation of Enhanced Brake
Lights Using Surrogate Safety Metrics, Task 2 & 3 Report, DOT HS
811 329 (June 2010). Neither study assessed the safety benefits or
risks associated with the modification of original manufacturer’s
equipment in a manner similar to Intellistop’s technology.

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2005)), but an agency does not act arbitrarily if it treats
dissimilar parties differently, see Northpoint Tech., Ltd. v.
FCC, 414 F.3d 61, 74–75 (D.C. Cir. 2005) (agency reasonably
distinguished parties based on technologies associated with
their applications). The FMCSA explained that the “crucial
distinction” between Intellistop and the previous exemption
applicants was that only Intellistop’s technology modified “the
functionality of original equipment manufacturers’ lamps,
which are covered by an existing FMVSS.” FMCSA Decision,
87 Fed. Reg. at 61136; see also 49 C.F.R. § 571.108. The
FMCSA consulted with the NHTSA for this reason and
concluded thereafter that it “does not currently have data to
support a blanket exemption.” FMCSA Decision, 87 Fed. Reg.
at 61136. It explained that its reluctance was particularly
significant given the breadth of the requested exemption. See
id. (“Industry-wide exemptions are not the norm and FMCSA
grants them only on a very limited basis[.]”); Chadmoore
Commc’ns, Inc. v. FCC, 113 F.3d 235, 242 (D.C. Cir. 1997)
(applicants were not “similarly situated” because petitioner’s
“application covered 2,312 stations in twenty-six states while
the others’ were limited, respectively, to eleven stations in four
states and four stations in two states”). The FMCSA adequately
explained that it treated Intellistop’s application differently
because Intellistop was the only exemption applicant that
altered the vehicle’s brake light system to function in a way
that would not maintain steady-burning brake lights. Compare
J.A. 17 (Intellistop Application), with J.A. 161 (Grote Indus.
Exemption Decision), 120 (National Tank Truck Carriers
Inc.’s Exemption Decision). Accordingly, we believe the
FMCSA did not treat similarly situated exemption applicants
differently because “the applicants were not ‘similarly
situated.’” Chadmoore, 113 F.3d at 242.
Finally, the FMCSA’s concern that Intellistop’s
exemption would alter original equipment manufacturers’

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lights covered by an FMVSS buttresses its conclusion that
monitoring Intellistop’s module would be more difficult than
monitoring other exemptions. See FMCSA Decision, 87 Fed.
Reg. at 61136; 49 C.F.R § 571.108 (Table I-a), (Table I-b)
(requiring motor vehicles, including commercial motor
vehicles, to maintain steady-burning brake lights). Under
49 U.S.C. § 30122, a “manufacturer, distributor, dealer, rental
company, or motor vehicle repair business may not knowingly
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.” The FMCSA was concerned that it, and the NHTSA,
would have difficulty monitoring whether the entities listed in
section 30122 had in fact installed Intellistop’s device in
accordance with the NHTSA’s FMVSS. See FMCSA Decision,
87 Fed. Reg. at 61136–37; see also 49 U.S.C. § 30112(a)(1)
(prohibiting manufacture for sale or introduction of motor
vehicle not in compliance with an FMVSS into interstate
commerce). Because previous exemptions used a supplemental
pulsing light while maintaining steady-burning brake lights,
they did not present the monitoring complication both the
FMCSA and the NHTSA feared could result from Intellistop’s
module. See FMCSA Decision, 87 Fed. Reg. at 61136.
For the foregoing reasons, the petition for review is denied.
So ordered.

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