The great speed limiter debate: FMCSA’s proposed rule spurs questions

J. Bradley Klepper
Attorney at Law

As you know, I often complain about how the things that are hot topics at the time of writing will be old news by the time of publication. This is something that occurs with about 99.99% of all my column ideas.

However, the exception to the rule is the topic of the federal government. The one thing you can count on is that when they say that are going to do something they will not do it quickly. (Bless their hearts.)

Well, much to my column-writing pleasure, the Federal Motor Carrier Safety Administration (FMCSA) recently announced a notice of intent to move forward with rulemaking to require the use of speed limiters for commercial motor vehicles (CMVs). The notice of intent provides a series of questions to allow the FMCSA to gather info so they can begin to draft a Supplemental Notice of Rulemaking. This supplement rule would propose requiring CMVs with electronic engine control units to set at the maximum top speed, which is yet to be determined.

I just used a whole lot of words to say this: The FMCSA is going to start the process to require speed limiters on CMVs. Well, the one thing you can count on in this scenario is that nothing in this process will occur quickly.

The first thing that happens is the public has the opportunity to comment. In fact, comments will be accepted for 30 days once the notice of intent is published. This should be fun reading as nobody can, or likely will, agree on the maximum speed to be allowed.

Now let me get this out of the way: I am not opposed to speed limiters or any other safety technology that can save lives and make the roads safer. I’m just thinking of all the other moving parts that are included in a decision such as this.

As you know, speed limiters have been a topic of discussion for years. In fact, back in 2006, the American Trucking Associations (ATA) petitioned for a maximum speed of 68 mph. Of course, things have changed since then, and new safety technologies have been created. Accordingly, the ATA now supports a maximum speed of 70 mph for CMVs equipped with automatic emergency braking and adaptive cruise control. In trucks without this equipment, the ATA supports a maximum speed of 65 mph.

Of course, both of these speeds conflict with the desires of various trucking safety groups, that would prefer speeds in the low 60s.

This is where it will get interesting.

In addition to trying to determine the maximum speed to be allowed, there are additional issues that need to be addressed. For example, could this create additional safety concerns?

Because we lack a national maximum speed limit, the speed at which speed-limited CMVs may be traveling below the posted speed limit will vary greatly. Since some toll roads have speed limits of 80 or 85 mph (and assuming a CMV is governed at a top speed of 65 mph) a truck could be traveling 15 to 20 mph below the posted speed limit. Would trucks traveling at this reduced speed, well below the speed of the surrounding pedestrian traffic, create additional safety concerns? Also, will these trucks try to pass each other on such highways and cause undue congestion? And how will the speed limiters work while traveling downhill?

Moreover, it does not seem that speed limiters will not have the intended benefit when traveling below highway speeds. What is to stop a truck from doing 65 mph in a 35 mph zone?

The answer to some of these questions may exist in other technology. In fact, Eric Weiss of the National Traffic Safety Board has stated that they view the FMCSA action “as an interim step toward an eventual requirement that all newly manufactured heavy vehicles be equipped with advanced speed-limiting technology, such as variable speed limiters and intelligent speed adaptation devices.”

As background, intelligent speed adaptation devices work through a global GPS system that “knows” the speed limit and can warn drivers when they exceed the limit, or even prevent them from exceeding a certain speed.

This seems like a good solution, but it is a step beyond just basic speed limiters. What is the additional cost to have this feature included on new equipment? Will the individual owner-operators and small carriers be able to afford this additional expense? If not, will it prevent them from purchasing new equipment? If so, will an increase in older equipment on the road create any additional issues?

Also — and this is just the lawyer in me now — who will be liable when the GPS database of speed zones is incorrect or out of date and a truck is allowed to exceed the predetermined maximum speed and is involved in a crash? What if the data is incorrect and slows the truck down so it can’t travel at the speed limit (think failure to update the reduced speed in a construction zone after completion of the work); would the manufacturer of the device have any responsibility/liability for any unsafe conditions in either of these scenarios?

As I said earlier, this is going to be an interesting discussion and I am curious where we will stand when the dust clears.

Brad Klepper, Esq. is President of Interstate Trucker Ltd., a law firm entirely dedicated to legal defense of the nation's commercial drivers. Interstate Trucker represents truck drivers throughout the forty-eight (48) states on both moving and non-moving violations. Brad is also Executive Vice President & General Counsel of Drivers Legal Plan, which allows member drivers access to his firm’s services at greatly discounted rates. Brad spent almost a decade with the largest law firm in Oklahoma where his practice included extensive experience in transactional law, business defense litigation, and intellectual property. In addition, Brad is a licensed architect and serves as General Counsel to the Oklahoma Board of Architects, Landscape Architects and Interior Designers. Brad has dedicated much of his time to DataQs challenges, which are challenges posed to the FMCSA for CSA incidents, to examine data and reports filed by law enforcement.

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