[00:00:01] Speaker 00:
Base number 22.1260, Intellistop Inc.

[00:00:04] Speaker 00:
Petitioner versus United States Department of Transportation at L. Mr. Obermeyer for the petitioner, Mr. Ross for the respondents.

[00:00:14] Speaker 02:
Mr. Obermeyer, good morning.

[00:00:23] Speaker 06:
Good morning and may it please the court.

[00:00:24] Speaker 06:
Again, my name is Steve Obermeyer.

[00:00:26] Speaker 06:
I'm representing Intellistop USA.

[00:00:29] Speaker 06:
With me is my colleague, Jeremy Brogi.

[00:00:31] Speaker 06:
respectfully request two minutes for rebut.

[00:00:35] Speaker 06:
This court should vacate FMCSA's exemption denial for Intellistop's break click pulse module because the agency's decision is a textbook example of arbitrary and capricious decision-making.

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The record before the agency, including Intellistop's application, five government-sponsored studies and two private studies, four agency grants of exemptions

[00:01:00] Speaker 06:
for similarly situated products covering tens of thousands of vehicles and 16 of 20 comets.

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Overwhelmingly support the conclusion that Intellistop's module would likely achieve a level of safety that is equivalent to or greater than the level it would be achieved, perhaps in such an exemption.

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Indeed, the record stated flashing rear lights generally and pulsing brake lights specifically substantially improved safety.

[00:01:30] Speaker 03:
So the agency said there was a crucial distinction between your client's product and the ones they've approved before, which is that your client's product adjusts the existing brake lights, which are required in the manufacturer.

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And so the agency felt that there was not sufficient data to say that that was safe in case there was a malfunction.

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And why isn't that

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well reasoned in a substantial basis to deny the application.

[00:02:00] Speaker 06:
The problem with that, Your Honor, is that it's entirely contrary to the studies on which they rely.

[00:02:05] Speaker 03:
Well, I looked at the studies.

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The studies talked about the brake lights, but the issue that was

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I should step back.

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I saw that the studies talked about flashing all the lights and how that could be good for safety.

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But I understood the agency's problem to be that the specific module that your client advocates

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is tied into the existing brake lights, and there could be a safety issue, and there wasn't sufficient data that if there was a malfunction, the brake lights would still work, for example.

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And so I don't think that those studies address that specific issue about the module being attached to the existing brake lights.

[00:02:49] Speaker 06:
OK, so there's a couple of different things.

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First of all, the studies address, as I think you said, pulsing brake lights, not supplemental.

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But if the safety concern is about the method in which they flash and yours is the method is unique so far, like none of the previously approved ones, the previously proven ones were supplemental flashing lights.

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Yours, this is to my understanding, correct me if I'm wrong, yours,

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are attached to the existing brake lights.

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And the safety issue is not about our flashing lights safe.

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The safety issue is yours attached to the existing brake lights, and if it malfunctions, we don't know if the brake lights are gonna work, and that's very unsafe.

[00:03:35] Speaker 03:
Why isn't that sufficient?

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And it's not addressed by the studies.

[00:03:40] Speaker 06:
First is they're saying there were no studies that address pulsing brake lights, which are what my client's product does.

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That is unequivocally untrue.

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The 2009 and 2010 studies address the brake lights themselves pulsing.

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And as Your Honor said, in fact, that doesn't even raise the possibility, despite addressing almost a functionally identical apparatus, doesn't say, oh, and by the way, these things might fail.

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Let's move over to the failure point, which we argue is sort of an after-the-fact aside in one sentence.

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It's right there in the... Well, understood, Your Honor.

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But on the safety on that point, one of the issues is that all of the previous exemptions involved putting into the brake circuit, they all are on the same, technically address the actual brake light.

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They don't distinguish why the Intellistop

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which also does- Where is it in the record?

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Where is it in the record that the prior approved modules

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also tied to the same electrical system.

[00:04:42] Speaker 06:
In those exemption decisions, they talk about it being brake-activated, which is like a switch, but more importantly... Well, that's different.

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That's different.

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I'm sorry.

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Of course, they're all brake-activated.

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There's only one brake circuit.

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But where is that?

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Where is that?

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If you look at the addendum to our reply, we have exemption requests for waste management and growth.

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And I think both of them, definitely Waste Management talks about it going into the break circuit.

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They only explain why Intellisop is put at a higher level of explaining why that would be an issue or why it wouldn't have been an issue previously, why it's never been raised as an issue.

[00:05:21] Speaker 01:
So is there a study or an exemption in a situation where the flashing is flashing of existing

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legally required brake lights.

[00:05:37] Speaker 06:
That's right, that's the 2009 and 2010 studies.

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And what I'd encourage is that you look at J181, the pictures, there's multiple pictures, but you look at the picture of the apparatus and those tags, and you look at the Intellistop video that was submitted with this application, it looks exactly the same.

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So I think that the concern, at least as I see it, is

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that the agency says that Intellistop's application would alter the performance of the required lighting device, and doesn't assert that if the installation malfunctions, that the brake lights would return to their best function, and in fact, stands to reason.

[00:06:23] Speaker 01:
They're talking about five minute or 15 minute installation.

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If I went in and tried to install something,

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on my car, the likelihood is that I might end up with no lights as opposed to wonderfully flashing lights.

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And so I think that's just intuitively the concern that wasn't addressed in the other devices that were exempted.

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First of all, it should have been addressed because it's on the brake circuit, and that's one of the problems.

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That's a Burlington problem because it's disparate treatment without explanation.

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The other thing is, I think you said something that I thought was politically correct, which is, until it stops setting its application, it will revert to the normal brake lights.

[00:07:03] Speaker 01:
Right, but saying it and having evidence of why that is, it's just, and to me, intuitively, it is a concern.

[00:07:10] Speaker 01:
You're having hundreds of thousands of

[00:07:14] Speaker 01:
of enterprises around the country doing a retrofit.

[00:07:20] Speaker 06:
All of these involve retrofit.

[00:07:22] Speaker 01:
Yeah.

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There are tens of thousands of vehicles out there already doing this with flashing lights.

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So, and this idea about a malfunction with respect to Intellistop comes out of thin air.

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I mean, it's not referenced anywhere.

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The representation is at work.

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There's a comment that says we had a failure,

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It seems different to me to say I'm going to add something on versus I'm going to deploy the required system in a new way.

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Is that a meaningless distinction in your view?

[00:07:57] Speaker 06:
I don't know whether it's meaningless or not because the previous exemption request involved

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altering the current system, because they're on the brake circuit.

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There's no distinction about the brake lights being affected between ones that have been granted and in telescopes which was not granted.

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That's a fundamental problem.

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But I want to go back.

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Let me ask you about growth, because I've got it in front of me.

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First of all, it's not supplementary for those two seconds, the flashing.

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And that brings up another point as far as distraction.

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If those things are flashing only two seconds, you could be looking over here and you wouldn't even see it.

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So I don't think the driver confusion or distraction is that big a problem.

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But these other growth and waste management, they're up at the top, they're over here.

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Meanwhile, I mean, the brake lights are on, the steady burning, these are going on all over the place.

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And that's, as I understand it, completely different

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your product that you would, with the brake lights down at the bottom, they would flash for two seconds and then steady burn.

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Am I wrong?

[00:09:10] Speaker 06:
With one small correction, which is that the back of a tractor trailer has one of the top lights as well, sort of like you would have in a car.

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So if you look at the apparatus in the testing, there's two brake lights and a light above it.

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It's a CHMSL.

[00:09:24] Speaker 01:
And that's the standard required.

[00:09:26] Speaker 01:
Yeah.

[00:09:26] Speaker 06:
Right.

[00:09:26] Speaker 06:
So a tractor trailer, your honor, with our product would be flashing that as well at the same time.

[00:09:31] Speaker 02:
Okay.

[00:09:31] Speaker 02:
So it's going to be flashing up here for two seconds, flashing here for two seconds, and then steady.

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But the grove,

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has got, according to these, has got flashing in these five options, has flashing lights here, has another one in the middle of the brake lights here.

[00:09:51] Speaker 02:
I just think it's, unless I'm misunderstanding how your product works, these are just different from yours.

[00:10:06] Speaker 02:
First of all, they're supplementary.

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They're absolutely different in that respect.

[00:10:10] Speaker 06:
But what I'm saying, Your Honor, is the fact that they're supplementary doesn't address the two issues.

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The two technical issues are, was there ever a test that addressed pulsing breakwater?

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The answer is yes.

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The agency's decision centered on saying no.

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It's actually totally backwards.

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Those two tests form the foundation of the Waste Management and Growth Decision.

[00:10:35] Speaker 02:
They say those tests were of cars.

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I looked at one of them, and of course you've got a window, a big light here.

[00:10:43] Speaker 02:
Did they ever do tests of trucks?

[00:10:46] Speaker 06:
Not that I'm aware of your honor, but those tests of cars, if you look at the waste management and growth decisions, those tests are sufficient to conclude that those exemptions would be granted, and they are less like those products than they are in Telstra.

[00:11:02] Speaker 06:
It's totally backwards.

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They rely on a flashing brake light apparatus, grant exemptions for supplemental lights, then come back to Intellistop and say, we're going to treat you differently because you're not supplemental.

[00:11:14] Speaker 06:
It's totally back.

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And again, I keep talking about the pictures, but the pictures show it plainly when you put the picture of the test apparatus next.

[00:11:23] Speaker 02:
Well, it's not backwards if they're also saying, and we don't know that if it replaces for those two seconds the steady burning brake lights,

[00:11:33] Speaker 02:
We don't know how that affects the functionality of the steady burning brake lights.

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And that's, to me, a pretty important safety.

[00:11:45] Speaker 06:
But they didn't cast out of the previous products, Your Honor, that also go into the brake lights?

[00:11:51] Speaker 02:
That's because, as I understand it, the steady lights were always on.

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It's these flashing ones that are supplementary to it.

[00:12:00] Speaker 06:
But the issue that they're raising with Intellistop is that a failure would somehow affect the break.

[00:12:06] Speaker 01:
I think there is two issues.

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There is one issue which is visually it's supplementary as opposed to replacing.

[00:12:13] Speaker 01:
So it's a visual, it's a sort of different kind of warning apperance.

[00:12:19] Speaker 01:
And then the other issue they're raising is, yeah, and once you're getting into deploying the existing required steady burn lights in a non-steady way,

[00:12:29] Speaker 01:
if it malfunctions, is it going to revert to steady, is it going to revert to always flashing, is it revert to.

[00:12:36] Speaker 06:
But the problem is, this guy says backwards, the supplemental light decision is based on the flashing of only the brake lights.

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That's what that apparatus is.

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They cite the 2009 and 2010 studies that are about something totally different.

[00:12:51] Speaker 01:
But those are studies.

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Those are not exemptions.

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And they're part of the universe of information, but that doesn't mean that by the existence of that study being out there, that the agency is necessarily persuaded that it's enough.

[00:13:05] Speaker 06:
No dispute, but those studies were said to be sufficient to conclude that two previous exemptions of products that were less like those studies would be granted.

[00:13:15] Speaker 01:
I'm sorry, but that also had more belt and suspenders, arguably, in the agency's view, because they had the steady burn lights and supplemental light.

[00:13:24] Speaker 06:
But the testing of the supplemental lights, that's not in those decisions.

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And there's not even a test that does supplemental lights like those products.

[00:13:33] Speaker 06:
The 2014 test, the only supplemental light study, the 2014 study, the supplemental light study is a radar.

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It's not even break activated.

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So they're basing their decisions on these.

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The studies are more different than those exemptions than they are for Intellisops.

[00:13:51] Speaker 06:
We get denied, they get granted.

[00:13:52] Speaker 01:
Right, but I think they're saying, okay, the studies show some stuff.

[00:13:57] Speaker 01:
But the exemptions that they granted don't go as far, either substantively or in terms of volume of trucks involved.

[00:14:07] Speaker 01:
And they're just saying it step by step.

[00:14:10] Speaker 01:
It's just a little bit more of a leap.

[00:14:12] Speaker 01:
Conceptually, there's a lot in common.

[00:14:13] Speaker 01:
It's a little bit more of a lead to grand exemption to your client than the prior parties.

[00:14:19] Speaker 03:
Can I, can I please interject here?

[00:14:21] Speaker 03:
I'm looking at the actual decision here and I want to put aside the issue of do flashing lights promote safety and just look at the method

[00:14:32] Speaker 03:
with which your module does it.

[00:14:35] Speaker 03:
And it says, importantly, all other pulsing rear light exemptions that we've previously granted involve the addition of non-mandatory auxiliary lighting systems, whereas Intellistop seeks permission to alter the functionality of original equipment manufacturer's lamps, which are covered by an existing FMVSS.

[00:14:53] Speaker 03:
The agency believes this is a crucial distinction and one that TSEI highlighted in its comment.

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And then it says, the agency, in consultation with NHTSA, has determined that it does not currently have data to support a blanket exemption for industry to alter the performance of a required lamp covered by FMC SRs and FMV SSs.

[00:15:15] Speaker 03:
So putting aside that flashing lights are safe, the problem is with

[00:15:21] Speaker 03:
your technology that messes with the required brake lights.

[00:15:27] Speaker 06:
But they're mistakenly saying, Your Honor, that there's no evidence that flashing brake lights have been produced.

[00:15:34] Speaker 03:
No, no.

[00:15:36] Speaker 03:
I've asked you to put that aside.

[00:15:37] Speaker 03:
It's not about flashing brake lights.

[00:15:39] Speaker 03:
It's about a technology that messes with the existing brake lights and doesn't just add new flashing brake lights.

[00:15:46] Speaker 03:
That is what they're saying.

[00:15:48] Speaker 03:
There's no data.

[00:15:49] Speaker 06:
And on that point, your honor, the previous exemptions all involved messing with the break last year.

[00:15:54] Speaker 06:
We want to say it based on and they're also and where in the record is that in the end into our reply, which is one of the applications, which is part of the record and the waste management and the growth.

[00:16:04] Speaker 03:
But all for me, I don't think you've briefed it this way.

[00:16:08] Speaker 06:
I'm very honored.

[00:16:09] Speaker 03:
I think that your briefing is focusing as you're trying to focus on in your oral argument about the fact that flashing lights are safe.

[00:16:17] Speaker 03:
And I don't think that I haven't seen in your brief an argument that addresses the actual lack of data about the technology that goes to your brake lights and that that is something that's different, that you've been treated differently because their technology also is attached to existing brake lights.

[00:16:36] Speaker 03:
I don't see an argument like that in your brief.

[00:16:39] Speaker 06:
I believe it's in the reply.

[00:16:40] Speaker 06:
I will check before I come back up here, but we absolutely address the issue because the government focuses entirely on this.

[00:16:47] Speaker 01:
You said you're addressing in the addendum to your apply, but not in your opening brief, despite the fact that this was the as Judge Penn was reading from J 23.

[00:16:57] Speaker 01:
This is the differentiation between this exemption and other exemptions.

[00:17:05] Speaker 06:
Well, your honor, that's because the decision says it's based on three things that are not the issue of the failure.

[00:17:12] Speaker 06:
We address it in the footnote in the opening because it was an aside in the opening decision.

[00:17:17] Speaker 06:
When the government and their opposition says it's really all about a malfunction, we address it in an apply because it had shifted the whole focus.

[00:17:24] Speaker 06:
The centerpiece of the decision is an absence of data on flashing brake lights, which is contrary to the record.

[00:17:31] Speaker 06:
That alone is a big case.

[00:17:34] Speaker 06:
because they're missing the sites.

[00:17:39] Speaker 03:
Yeah.

[00:17:39] Speaker 03:
And if we don't agree with you that this whole opinion is about flashing brake lights, we think it's about the technology.

[00:17:45] Speaker 03:
Then you lose.

[00:17:46] Speaker 06:
No, your honor.

[00:17:47] Speaker 06:
For the reasons I've already said, which is it's still still a Burlington issue where it's disparate treatment without it, without explanation because the previous products involve going into the circuit as well.

[00:17:58] Speaker 03:
And also I, which you didn't raise till your reply brief.

[00:18:02] Speaker 06:
Pardon me.

[00:18:02] Speaker 03:
But you didn't raise that to your reply brief.

[00:18:04] Speaker 06:
No, I believe we do, Your Honor.

[00:18:06] Speaker 06:
But again, I'll check again, but I believe we do.

[00:18:09] Speaker 06:
I think you have to raise that in your opening brief, though, in order to preserve it, don't you?

[00:18:14] Speaker 06:
Now, the issue here, Your Honor, is that again, this was an aside in the original decision about in the in the exemption decision about this issue, we raise it.

[00:18:24] Speaker 03:
So I'm not focusing on the malfunction part.

[00:18:26] Speaker 03:
I'm focusing on the part I just read to you, which is the agency in consultation with NISA has determined that it does not currently have data to support a blanket exemption

[00:18:34] Speaker 03:
for industry to alter the performance of a required lamp covered by the FMC-SRs and FMV-SSs.

[00:18:41] Speaker 06:
And I would say we address that head on by addressing the fact that the studies do address the 2000s.

[00:18:46] Speaker 03:
They don't address a module that changes the existing brake lights.

[00:18:49] Speaker 03:
Your studies talk about flashing brake lights.

[00:18:52] Speaker 03:
That's different.

[00:18:54] Speaker 06:
But necessarily that apparatus has to be addressing the brake lights.

[00:18:59] Speaker 03:
But it's talking about the safety of flashing, not the safety of the technology

[00:19:04] Speaker 06:
at issue.

[00:19:06] Speaker 06:
And the important point to this, which we also say in our reply is that none of the previous exemptions were were evaluated on a technology specific piece.

[00:19:16] Speaker 06:
If you look at the explanations, they were auxiliary.

[00:19:19] Speaker 03:
So the existing brake lamps, which are required to be steady burning, are still there and steady burning.

[00:19:24] Speaker 06:
But it's applying a different standard to us that we couldn't possibly have known based on the four previous.

[00:19:30] Speaker 06:
We need more information.

[00:19:32] Speaker 06:
We have a video that shows exactly how it goes in.

[00:19:35] Speaker 06:
A 3 minute 50 video shows exactly how it attaches.

[00:19:38] Speaker 06:
There is evidence in the record that a failure is not going to result.

[00:19:42] Speaker 06:
And the brake light's going out.

[00:19:44] Speaker 06:
None of it's addressed.

[00:19:45] Speaker 06:
And that evidence, I would add, Your Honor, that's the Tank Star comment.

[00:19:48] Speaker 06:
The Tank Star comment is addressed in the decision.

[00:19:50] Speaker 06:
It didn't even mention the fact that there was a failure and that the brake lights would turn a normal off.

[00:20:00] Speaker 02:
We'll give you a couple of minutes to reply.

[00:20:03] Speaker 06:
Thank you.

[00:20:28] Speaker 04:
Thank you your honor case and Ross for the United States.

[00:20:30] Speaker 04:
I think it's worth turning to the text of the statute in this circumstance.

[00:20:33] Speaker 04:
49 USC 31 315 B requires an applicant for an exemption to an existing regulatory standard to demonstrate that the sought after exemption will result in an equivalent or greater level of safety.

[00:20:47] Speaker 04:
And even if the applicant makes that showing the agency might in its discretion decided to deny the exemption of course subject to reason decision making.

[00:20:57] Speaker 04:
FMCSA reasonably concluded here that IntelliStop's spare factual showing, both with respect to its particular module and with how its module would interact with driver confusion and distraction in a wide scale implementation, reasonably denied that application.

[00:21:16] Speaker 04:
All of the other exemptions that Nellistop cites here were either much more limited in scope or addressed auxiliary brake light structures such that they wouldn't have interfered with federal motor vehicles.

[00:21:29] Speaker 02:
They supplement steady burning brake lights.

[00:21:33] Speaker 04:
They supplement, correct.

[00:21:34] Speaker 04:
None of the other exemptions were to replace existing brake light functionality.

[00:21:40] Speaker 04:
And that's why the agency needed to consult with the National Highway Safety Transportation Administration, or NHTSA, because that operating administration within DOT oversees the motor vehicle safety standards.

[00:21:53] Speaker 02:
Do all these flashing lights that you have approved, do they just flash for two seconds?

[00:22:00] Speaker 04:
I'm not sure of the exact timeline, Your Honor, but they're all, I think, in relevant respect, similar to Intellistops with respect to the flashing.

[00:22:08] Speaker 04:
To the time?

[00:22:09] Speaker 04:
I think so.

[00:22:10] Speaker 04:
Okay.

[00:22:10] Speaker 04:
But they all are supplemental.

[00:22:12] Speaker 01:
I realize.

[00:22:12] Speaker 04:
And that's an important distinction as the agency's decision.

[00:22:15] Speaker 01:
Is it?

[00:22:15] Speaker 01:
I mean, one of the questions about whether it was promptly briefed, but

[00:22:22] Speaker 01:
Mr. Obermeyer has said that any brake-activated light has to integrate with brake circuitry.

[00:22:30] Speaker 01:
So if there's a short or if there's some failure to really do that well, presumably it would have the same concern that a malfunction might not leave the statutorily required steady burning lights in place.

[00:22:48] Speaker 01:
Working order was worse off than we started.

[00:22:52] Speaker 04:
So, in my quick scan of the addendum to the reply brief, none of the other applications for broke industries and waste management specifically hone in on this act.

[00:23:01] Speaker 01:
And the only thing I saw was where the.

[00:23:08] Speaker 01:
Grote refers to it being on the brake circuit.

[00:23:12] Speaker 01:
It's just part of the, part of them.

[00:23:14] Speaker 01:
Bring your attention to your equipment.

[00:23:16] Speaker 01:
Lamp works on brake circuits, something I saw.

[00:23:20] Speaker 01:
But it stands to reason that if you're wanting to activate it with the brake, that there would be some involvement.

[00:23:26] Speaker 01:
I mean, I don't know, maybe not.

[00:23:27] Speaker 01:
Maybe you would have a little push button under the brake.

[00:23:30] Speaker 04:
Frankly, Your Honor, I'm not sure, because I think you're right that this question wasn't directly briefed.

[00:23:35] Speaker 04:
It is worth noting that a malfunction in the case of a supplemental light versus an existing brake light is much more serious with respect to the latter, because if the vehicle's sole brake lights stop working, that is significantly less safe, as the agency explained here.

[00:23:50] Speaker 04:
And also note that I believe your honor was aware of the fact that the agency was encouraging an incremental approach and FMCSA, you know, actively encourages the development of new safety technology in order to make America's roads safer.

[00:24:04] Speaker 04:
And that's why in this particular case, it encouraged individual motor carriers to apply for exemptions to use a tele-stops device.

[00:24:12] Speaker 04:
In my understanding, this is not

[00:24:14] Speaker 04:
But the federal register notices have been published as 7 motor carriers have applied to use Intellistop's device and Intellistop itself is advertised for that possibility and the agency is reviewing each of those applications in due course.

[00:24:27] Speaker 04:
There's currently under consideration, but in this particular case, for an industry wide exemption, which could apply to hundreds of thousands of motor carriers, the agency reasonably concluded that a more incremental approach would be appropriate

[00:24:40] Speaker 01:
And so tell me about that because their position on that is, look, if it's safe for one, it's safe for all.

[00:24:46] Speaker 01:
And you say, well, all is a lot, and let's be incremental.

[00:24:50] Speaker 01:
There's some logic to that.

[00:24:51] Speaker 01:
But is there also behind the prospect that there might be exemptions for this very technology granted to individual firms that would prioritize firms with sort of sophisticated engineering capabilities, as opposed to like, I have my semi out and back, and I'm going to go to the

[00:25:13] Speaker 01:
you know, auto zone and buy this and do it on the weekend or I mean, is there something about the review of the companies and their capabilities that figures into this or like, spell it out a little more because the exact same technology.

[00:25:30] Speaker 04:
So I don't know, frankly, but how the

[00:25:34] Speaker 04:
The agency reviews each specific company, but I think with respect to this application, there are two reasons why FMCSA determined that denying the exemption would be proper.

[00:25:43] Speaker 04:
The first is that there was no evidence presented on how wide scale implementation of this particular device would affect driver confusion and distraction.

[00:25:52] Speaker 04:
I believe Judge Henderson seems to hone in on this fact, which was that if all of a sudden, all of the semi trucks on America's roads are blinking their lights rather than steady burning,

[00:26:03] Speaker 04:
Then driver if immediately, and all drivers, I think, are would might be confused, or at least the agency explained that there wasn't sufficient information is sufficient data to demonstrate that they wouldn't.

[00:26:16] Speaker 04:
So at minimum, it was not arbitrary and capricious for the agency to rely on that lack of understanding with respect to wide scale implementation.

[00:26:24] Speaker 04:
The second, and this gets a little complicated and I apologize, but because this particular exemption involves motor vehicle safety standard, which is that all motor vehicles have to have steady burning brake lights, that's why the agency had to consult with NHTSA on the availability of this exemption.

[00:26:44] Speaker 04:
And forty nine USC thirty one twenty two includes a provision that manufacturers and prepare people.

[00:26:51] Speaker 04:
Excuse me.

[00:26:52] Speaker 04:
It's certain entities cannot make inoperable certain components of a manufacturer equals.

[00:26:59] Speaker 04:
Sorry, components and if the exemption was granted on an industry wide basis.

[00:27:06] Speaker 04:
Agency recently concluded again in consulting consultation with that.

[00:27:11] Speaker 04:
That it wouldn't be able to monitor how the devices were actually installed.

[00:27:15] Speaker 04:
But if the agency grants individual assumptions to particular motor carriers.

[00:27:20] Speaker 04:
There's a greater assurance that the device will be installed correctly and by the appropriate people.

[00:27:26] Speaker 02:
And then I think it would also be so that I couldn't put this on my own clock.

[00:27:31] Speaker 04:
If I had you could that's that's actually what the Motor Vehicle Safety Act requires is that the owner of the vehicle would put it on their vehicle.

[00:27:38] Speaker 02:
Right.

[00:27:38] Speaker 02:
Okay.

[00:27:40] Speaker 04:
Exactly.

[00:27:40] Speaker 04:
But that makes a lot of sense.

[00:27:41] Speaker 04:
Right.

[00:27:42] Speaker 04:
So that the vehicle repair person wouldn't be able to make an

[00:27:48] Speaker 04:
unbeknownst to you.

[00:27:50] Speaker 04:
And so then it's limited to the owners themselves.

[00:27:53] Speaker 03:
So what about growth?

[00:27:54] Speaker 03:
Because they also got an industry-wide exemption.

[00:27:58] Speaker 03:
And when the agency gave them the exemption, they said interested parties possessing information that would demonstrate that motor carriers are not achieving the requisite statutory level of safety should immediately notify FMCSA.

[00:28:11] Speaker 03:
Why couldn't Intellistop get the same type of treatment as growth?

[00:28:16] Speaker 04:
So for what it's worth, that sort of disclaiming language is included in all granted exemptions because the agency has a statutory duty to revoke exemptions if safety is not maintained.

[00:28:28] Speaker 01:
Was GERD industry wide?

[00:28:29] Speaker 04:
Yes.

[00:28:31] Speaker 04:
And, but the main distinction with growth is that it's supplemental lighting, not the required lighting.

[00:28:37] Speaker 04:
And the agency think reasonably concluded that because it was only a supplemental lighting that the safety impacts from that kind of more broad exemption.

[00:28:47] Speaker 04:
didn't implicate the same concerns as Intellistops did here.

[00:28:50] Speaker 04:
And I think this sort of dovetails with the malfunctioning concerns with the Intellistops particular device, as well as possibilities for confusion when implementing on a wide scale basis.

[00:29:02] Speaker 03:
When they granted growth, had they already granted other exemptions of auxiliary?

[00:29:07] Speaker 04:
I believe so.

[00:29:08] Speaker 04:
I forget exactly the timeline.

[00:29:09] Speaker 04:
All of the granted exemptions are in the administrative record for waste management, the national tank carriers, grown diet transport, and great industries.

[00:29:19] Speaker 04:
And the point I was going to make was with respect to Judge Henderson's concern of supplemental lights versus your existing brake lights flashing.

[00:29:27] Speaker 04:
I think the agency reasonably determined that if there are flashing supplemental lights, that would cause less driver confusion than the existing brake lights flashing.

[00:29:37] Speaker 04:
Because the driver might reasonably find that as long as there's a sort of a benchmark, right, of your existing brake lights steady burning, then that's what we're accustomed to as

[00:29:48] Speaker 04:
motor vehicle drivers rather than some other flashing lights.

[00:29:52] Speaker 04:
Sort of similar to how bumper stickers on your car are unlikely to distract you as opposed to putting a bumper sticker on a brake light itself.

[00:30:00] Speaker 04:
And so if you're interfering with the required safety components that NHTSA and other agencies have mandated, the agency reasonably concluded that that's a meaningful distinction and that a more cautious approach would be required here.

[00:30:16] Speaker 04:
And this court has regularly held as much in American Petroleum Institute, the court has urged caution when safety determinations are at issue.

[00:30:24] Speaker 04:
And so there is some level of differential gloss to the agency's arbitrary nutritious review that would cause or would urge the court to deny it.

[00:30:34] Speaker 03:
So I think that there is a misstatement in the agency's decision where it says generally Intellistop relied on studies of other lighting configurations proposing to add additional pulsating lights.

[00:30:47] Speaker 03:
And that's a JA23.

[00:30:49] Speaker 03:
But if you look at the studies, the 2009 and 2010 studies, they just have simultaneously flashing lights and not necessarily auxiliary.

[00:30:57] Speaker 03:
What do we do with that mistake?

[00:30:58] Speaker 04:
I think that's right your honor but that that actual mistake in the agency's decision is no basis to vacate it.

[00:31:05] Speaker 01:
Isn't it an error if it says generally they relied on?

[00:31:08] Speaker 01:
Say it.

[00:31:09] Speaker 01:
I mean one could just put the emphasis on generally they relied on.

[00:31:13] Speaker 04:
Oh, that may be the case.

[00:31:15] Speaker 04:
I was merely conceding the point to Judge Pan that that sort of factual inaccuracy, if anything, is harmless and is not the bottom line to the agency's decision making.

[00:31:25] Speaker 04:
And in fact, on J22,

[00:31:29] Speaker 04:
Bottom full paragraph of the third column, the agency expressly explains how data deficiencies in each of those studies led it to conclude that whatever conclusions could be drawn from them, which I will reiterate are necessarily circumspect and hardly conclusive.

[00:31:44] Speaker 04:
and in all circumstances, even in the 2009 and 2010 studies, encouraged wider scale implementation and much broader so-called fleet testing before any definitive conclusions could be drawn from the studies themselves.

[00:31:57] Speaker 04:
But on J22, the agency explains why data deficiencies in the studies caused significant concern here, where it may not have with respect to, for example, court industries, because it didn't implicate a motor vehicle safety standard.

[00:32:14] Speaker 02:
We've had a long morning, but I just want to ask, is the school bus the only vehicle that has flashing but alternating flashing?

[00:32:25] Speaker 04:
I think so, Your Honor, but I'm not positive.

[00:32:27] Speaker 02:
OK.

[00:32:27] Speaker 04:
Yeah.

[00:32:28] Speaker 02:
We've been talking about these lights for days, and I thought that's what makes the school bus so distinctive is it's the only one that's.

[00:32:37] Speaker 04:
Well, emergency vehicles also have flashing lights.

[00:32:40] Speaker 04:
Right.

[00:32:41] Speaker ?:
Yeah.

[00:32:42] Speaker 02:
Okay.

[00:32:43] Speaker 04:
And that is for what it's worth.

[00:32:44] Speaker 04:
That was also part of one source of the agency's concern and part of one of the commenters concerns is that the color of the lights could also cause driver confusion, especially if they're flashing in different places.

[00:32:57] Speaker 04:
All of this goes to show that these kinds of safety determinations are best left to the agency's technical expertise and the court should defer to those determinations.

[00:33:08] Speaker 02:
All right, any more questions?

[00:33:08] Speaker 04:
We urge the court to deny the petition for review.

[00:33:10] Speaker 02:
Thank you.

[00:33:16] Speaker 02:
Mr. Obermeyer, why don't you take two minutes?

[00:33:19] Speaker 06:
Based on that long warning cue, I will only take two minutes.

[00:33:24] Speaker 06:
The first most important thing I would say is I think I just heard the government concede that there are incorrect statements about the record in the decision.

[00:33:33] Speaker 06:
And I'll read one of them here.

[00:33:35] Speaker 06:
Generally, IntelliSoft relied on studies of other lighting configurations proposing to add additional pulsating lights.

[00:33:42] Speaker 06:
They have misrepresented what the studies say.

[00:33:44] Speaker 06:
That alone is a vacate.

[00:33:46] Speaker 06:
That's National Fuel Gas Supply Corp.

[00:33:49] Speaker 06:
There are multiple reasons for a denial that are not dependent on each other, then vacate is what has to be done.

[00:33:56] Speaker 06:
So that alone gets to a vacate.

[00:33:58] Speaker 06:
I think that's a very important point.

[00:33:59] Speaker 06:
the point.

[00:34:01] Speaker 06:
Another thing there was some questions about where the issues were raised on the briefs.

[00:34:05] Speaker 03:
I'm sorry, I thought that the standard is we would vacate unless we are certain that the agency would have adopted even absent the flawed rationale.

[00:34:14] Speaker 06:
That's right, but it has to do with whether the reasons are dependent or independent.

[00:34:19] Speaker 06:
Here the reasoning is dependent because

[00:34:21] Speaker 06:
This is the foundation of the rest.

[00:34:23] Speaker 06:
So for instance, Judge Pan, with respect to the module malfunction, that sentence I read is a sentence that immediately perceived the malfunction sentence.

[00:34:32] Speaker 06:
So the foundation of even the malfunction sentence is based on a mistake in what the studies actually said.

[00:34:38] Speaker 06:
So I think that's a vacate issue.

[00:34:41] Speaker 06:
There was some questions I want to answer for you, Judge Pan, about where things were raised in the brief.

[00:34:45] Speaker 06:
The issue about Intellisop not providing enough information is raised in footnote four of the opening

[00:34:51] Speaker 06:
And it's a footnote because I would continue to argue, I don't know if everyone agrees, but I would continue to argue it is a footnote point in this decision.

[00:34:58] Speaker 06:
And if you look at the decision, the safety analysis, the statutory analysis, it's required, that section never mentions them out.

[00:35:10] Speaker 06:
But I think that's an important thing.

[00:35:12] Speaker 06:
And the last thing is there's some talk about scope.

[00:35:15] Speaker 06:
And Judge Filler, I think you had said there were no, I think this may have been corrected, but group is absolutely,

[00:35:20] Speaker 06:
industry-wide exemption.

[00:35:22] Speaker 06:
There's no evidence in the record that flashing generally is an issue.

[00:35:25] Speaker 06:
In fact, it's been the opposite.

[00:35:26] Speaker 06:
They would have to pull the exemption if it was causing issues.

[00:35:29] Speaker 06:
So there's no reason decision to treat them separately.

[00:35:33] Speaker 06:
We would ask that the court take the exemption.

[00:35:36] Speaker 06:
Thank you.