# Federal Motor Vehicle Safety Standards; Federal Motor Carrier Safety Regulations; Parts and Accessories Necessary for Safe Operation; Speed Limiting Devices > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A2016-20934 ## Record - **Collection:** Federal Register - **Document type:** Proposed Rule - **Published:** September 7, 2016 - **Citation:** 81 FR 61942 ## Text DEPARTMENT OF TRANSPORTATION National Highway Traffic Safety Administration 49 CFR Part 571 [Docket No. NHTSA-2016-0087] RIN 2127-AK92 Federal Motor Carrier Safety Administration 49 CFR Part 393 [Docket No. FMCSA-2014-0083] RIN-2126-AB63 Federal Motor Vehicle Safety Standards; Federal Motor Carrier Safety Regulations; Parts and Accessories Necessary for Safe Operation; Speed Limiting Devices AGENCY: National Highway Traffic Safety Administration (NHTSA) and Federal Motor Carrier Safety Administration (FMCSA), Department of Transportation (DOT). ACTION: Notice of Proposed Rulemaking (NPRM). SUMMARY: NHTSA and FMCSA are proposing regulations that would require vehicles with a gross vehicle weight rating of more than 11,793.4 kilograms (26,000 pounds) to be equipped with a speed limiting device initially set to a speed no greater than a speed to be specified in a final rule and would require motor carriers operating such vehicles in interstate commerce to maintain functional speed limiting devices set to a speed no greater than a speed to be specified in the final rule for the service life of the vehicle. Specifically, NHTSA is proposing to establish a new Federal motor vehicle safety standard (FMVSS) requiring that each new multipurpose passenger vehicle, truck, bus and school bus with a gross vehicle weight rating (GVWR) of more than 11,793.4 kilograms (26,000 pounds) be equipped with a speed limiting device. The proposed FMVSS would also require each vehicle, as manufactured and sold, to have its device set to a speed not greater than a specified speed and to be equipped with means of reading the vehicle's current speed setting and the two previous speed settings (including the time and date the settings were changed) through its On-Board Diagnostic connection. FMCSA is proposing a complementary Federal motor carrier safety regulation (FMCSR) requiring each commercial motor vehicle (CMV) with a GVWR of more than 11,793.4 kilograms (26,000 pounds) to be equipped with a speed limiting device meeting the requirements of the proposed FMVSS applicable to the vehicle at the time of manufacture, including the requirement that the device be set to a speed not greater than a specified speed. Motor carriers operating such vehicles in interstate commerce would be required to maintain the speed limiting devices for the service life of the vehicle. Based on the agencies' review of the available data, limiting the speed of these heavy vehicles would reduce the severity of crashes involving these vehicles and reduce the resulting fatalities and injuries. We expect that, as a result of this joint rulemaking, virtually all of these vehicles would be limited to that speed. DATES: You should submit your comments early enough to ensure that the docket receives them not later than November 7, 2016. ADDRESSES: You may submit comments, identified by one or both of the docket numbers in the heading of this document, by any of the following methods: • Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting comments. • Mail: Docket Management Facility: U.S. Department of Transportation, 1200 New Jersey Avenue SE., West Building Ground Floor, Room W12-140, Washington, DC 20590-0001 • Hand Delivery or Courier: 1200 New Jersey Avenue SE., West Building Ground Floor, Room W12-140, between 9 a.m. and 5 p.m. ET, Monday through Friday, except Federal holidays. • Fax: 202-493-2251. Instructions: For detailed instructions on submitting comments and additional information on the rulemaking process, see the Public Participation heading of the Supplementary Information section of this document. Note that all comments received will be posted without change to http://www.regulations.gov, including any personal information provided. Please see the “Privacy Act” heading below. Privacy Act: Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477-78) or you may visit http://www.regulations.gov. Docket: For access to the docket to read background documents or comments received, go to http://www.regulations.gov or the street address listed above. Follow the online instructions for accessing the dockets. FOR FURTHER INFORMATION CONTACT: NHTSA: For technical issues, you may contact Mr. Markus Price, Office of Vehicle Rulemaking, Telephone: (202) 366-1810. Facsimile: (202) 366-7002. For legal issues, you may contact Mr. David Jasinski, Office of Chief Counsel, Telephone (202) 366-2992. Facsimile: (202) 366-3820. You may send mail to these officials at: The National Highway Traffic Safety Administration, Attention: NVS-010, 1200 New Jersey Avenue SE., Washington, DC, 20590. FMCSA: For technical issues, you may contact Mr. Michael Huntley, Vehicle and Roadside Operations, Telephone (202) 366-5370. Facsimile: (202) 366-8842. For legal issues, you may contact Mr. Charles Medalen, Office of Chief Counsel, Telephone (202) 366-1354. Facsimile: (202) 366-3602. You may send mail to these officials at: The Federal Motor Carrier Safety Administration, Attention: MC-PSV, 1200 New Jersey Avenue SE., Washington, DC 20590. SUPPLEMENTARY INFORMATION: Table of Contents I. Executive Summary II. Legal Basis III. Background A. Speed Limiting Technology B. NHTSA's 1991 Report to Congress on CMV Speed Control Devices C. Petitions for Rulemaking 1. American Trucking Associations (ATA) Petition 2. Road Safe America Petition D. Request for Comment E. NHTSA Notice Granting Petitions F. FMCSA Research—Speed Limiting Device Installation on CMVs IV. Heavy Vehicle Speed Related Safety Problem A. Heavy Vehicle Crashes at High Speeds B. NTSB Motorcoach Speed-Related Crash Investigation V. Applicability of NHTSA's 1991 Report to Congress on CMV Speed Control Devices VI. Comparative Regulatory Requirements A. Canada B. Australia C. Europe D. Japan VII. Proposed Requirements A. Overview 1. Proposed FMVSS 2. Proposed FMCSR B. Applicability 1. Proposed FMVSS 2. Proposed FMCSR C. Proposed FMVSS Requirements 1. Definitions 2. Set Speed 3. Tampering and Modification of the Speed-Limiting Device 4. Test Procedure and Performance Requirements D. Proposed FMCSR Requirements 1. Enforcement VIII. Regulatory Alternatives A. Other Technologies Limiting Speed B. Tampering C. Test Procedures D. Electromagnetic Interference IX. Other Issues A. Retrofitting B. Lead Time X. Overview of Benefits and Costs A. Benefits 1. Safety Benefits 2. Fuel Saving Benefits B. Costs 1. Heavy Vehicle Manufacturers 2. Societal Costs Associated with the Operation of Heavy Vehicles 3. Impacts on Small Trucking and Motorcoach Businesses C. Net Impact XI. Public Participation XII. Rulemaking Analyses A. Executive Orders 12866 and 13563 and DOT Regulatory Policies and Procedures B. Regulatory Flexibility Act C. Executive Order 13132 (Federalism) D. Executive Order 12988 (Civil Justice Reform) E. Executive Order 13609 (Promoting International Regulatory Cooperation) F. Executive Order 12630 (Taking of Private Property) G. Executive Order 12372 (Intergovernmental Review) H. Executive Order 13175 (Consultation and Coordination with Indian Tribal Governments) I. Executive Order 13045 (Protection of Children) J. Executive Order 13211 (Energy Effects) K. National Technology Transfer and Advancement Act L. Unfunded Mandates Reform Act M. National Environmental Policy Act N. Environmental Justice O. Paperwork Reduction Act P. Plain Language Q. Privacy Impact Assessment R. Regulation Identifier Number (RIN) I. Executive Summary Studies examining the relationship between travel speed and crash severity have confirmed the common-sense conclusion that the severity of a crash increases with increased travel speed. 1 Impact force during a crash is related to vehicle speed, and even small increases in speed have large effects on the force of impact. As speed increases, so does the amount of kinetic energy a vehicle has. Because the kinetic energy equation has a velocity-squared term, the kinetic energy increase is exponential compared to the speed increase, so that even small increases in speed have large effects on kinetic energy. For example, a 5 mph speed increase from 30 mph to 35 mph increases the kinetic energy by one-third. 2 The effect is particularly relevant for combination trucks ( i.e., truck tractor and trailer) due to their large mass. 3 Additionally, higher speeds extend the distance necessary to stop a vehicle and reduce the ability of the vehicle, restraint device, and roadway hardware such as guardrails, barriers, and impact attenuators to protect vehicle occupants in the event of a crash. 4 1 See, e.g., Johnson, Steven L. & Pawar, Naveen, Mack-Blackwell Rural Transportation Center, College of Engineering, University of Arkansas, Cost-Benefit Evaluation of Large Truck-Automobile Speed Limits Differentials on Rural Interstate Highways, MBTC 2048 (Nov. 2005). 2 Virginia Commonwealth University Safety Training Center Web site, http://www.vcu.edu/cppweb/tstc/crashinvestigation/kinetic.html. 3 Johnson, Steven L. & Pawar, Naveen, Mack-Blackwell Rural Transportation Center, Cost-Benefit Evaluation of Large Truck-Automobile Speed Limits Differentials on Rural Interstate Highways, MBTC 2048 (Nov. 2005). 4 Liu Cejun & Chen, Chou-Lin, NHTSA, An Analysis of Speeding-Related Crashes: Definitions and the Effects of Road Environments, DOT HS 811 090 (Feb. 2009). All vehicles with electronic engine control units (ECUs) are generally electronically speed governed to prevent engine or other damage to the vehicle. This is because the ECU monitors an engine's RPM (from which vehicle speed can be calculated) and also controls the supply of fuel to the engine. The information NHTSA has analyzed indicates that ECUs have been installed in most heavy trucks since 1999, although we are aware that some manufacturers were still installing mechanical controls through 2003. We seek comment on when ECUs with speed limiting capabilities became widely used for the other heavy vehicles covered by this proposal, such as buses and school buses. The Department of Transportation has previously examined the issue of mandatory speed limitation for CMVs. In 1991, NHTSA published a report titled “Commercial Motor Vehicle Speed Control Devices,” 5 in response to the Truck and Bus Safety and Regulatory Reform Act of 1988. 6 This report reviewed the problem of heavy vehicles traveling at speeds greater than 65 mph and these vehicles' involvement in “speeding-related” crashes. 7 At that time, the report found that combination trucks tended to travel at just over the posted speed limit. The report was supportive of fleet applications of speed monitoring and speed limiting devices, but concluded that, because of the small target population size as compared to the overall size of the population, there was not sufficient justification to require the application of speed limiting devices at that time. 5 NHTSA, Commercial Motor Vehicle Speed Control Devices, DOT HS 807 725 (May 1991). 6 Truck and Bus Safety and Regulatory Reform Act of 1988, Pub. L. 100-690, 102 Stat. 4527 (Nov. 18, 1988). 7 For the purposes of the report, a vehicle was considered to be “speeding” if its estimated travel speed exceeded the posted speed limit. Several factors have changed since the submission of the 1991 report, including the data on the target population, changes in the costs and technology of speed limiting devices, and the repeal of the national maximum speed limit law. These changes undermine the conclusions contained in the 1991 report and support our reexamination of this safety issue. In 2006, NHTSA received a petition from the American Trucking Associations (ATA) to initiate a rulemaking to amend the Federal Motor Vehicle Safety Standards (FMVSS) to require vehicle manufacturers to limit the speed of trucks with a Gross Vehicle Weight Rating (GVWR) greater than 26,000 pounds to no more than 68 miles per hour (mph). Concurrently, the ATA petitioned the FMCSA to amend the Federal Motor Carrier Safety Regulations (FMCSR) to prohibit owners and operators from adjusting the speed limiting devices in affected vehicles above 68 mph. That same year, FMCSA received a petition from Road Safe America to initiate a rulemaking to amend the FMCSRs to require that all trucks manufactured after 1990 with a GVWR greater than 26,000 pounds be equipped with electronic speed limiting devices set at not more than 68 mph. On January 26, 2007, NHTSA and FMCSA responded to these petitions in a joint Request for Comments notice in the Federal Register , seeking public comments on the petitions. 8 On January 3, 2011, NHTSA published a notice granting the petitions for rulemaking and announced that the agency would initiate the rulemaking process with an NPRM. 9 8 72 FR 3904 (Jan. 26, 2007). 9 76 FR 78 (Jan. 3, 2011). Using Fatality Analysis Reporting System (FARS) and National Automotive Sampling System General Estimates System (NASS GES) crash data over the 10-year period between 2004 and 2013, the agencies examined crashes involving heavy vehicles ( i.e., vehicles with a GVWR of over 11,793.4 kg (26,000 pounds)) on roads with posted speed limits of 55 mph or above. The agency focused on crashes in which the speed of the heavy vehicle likely contributed to the severity of the crash ( e.g., single vehicle crashes, crashes in which the heavy vehicle was the striking vehicle). The agencies estimated that these crashes resulted in 10,440 fatalities 10 from 2004 to 2013. On an annual basis, the fatalities averaged approximately 1,044 during this period. 10 The fatality numbers were also adjusted to reflect the effect of new heavy vehicle requirements that have been adopted by NHTSA within the last several years ( e.g., the final rule adopting seat belt requirements for passenger seats in buses (78 FR 70415 (Nov. 25, 2013), the final rule to adopt electronic stability control requirements for heavy vehicles (80 FR 36049 (June 23, 2015)). The agencies' analysis found that crashes involving heavy vehicles traveling faster are more deadly than crashes involving heavy vehicles traveling at lower speeds. Given this fact, NHTSA is proposing to require multipurpose passenger vehicles, trucks, buses and school buses, with a GVWR of more than 11,793.4 kilograms (26,000 pounds) to be equipped with a speed limiting device. As manufactured and sold, each of these vehicles would be required by NHTSA to have its device set to a speed not greater than a specified speed. NHTSA is proposing a lead time of three years from publication of a final rule for manufacturers to meet the proposed requirements. FMCSA is proposing a complementary Federal Motor Carrier Safety Regulation (FMCSR) requiring multipurpose passenger vehicles, trucks, and buses and school buses with a GVWR of more than 11,793.4 kilograms (26,000 pounds) operating in interstate commerce to be equipped with a speed limiting device meeting the requirements of the proposed FMVSS applicable to the vehicle at the time of manufacture, including the requirement that the device be set to a speed not greater than the specified speed. Motor carriers operating such vehicles in interstate commerce would be required to maintain the speed limiting devices for the service life of the vehicle. Vehicles with GVWRs above 26,000 pounds include multipurpose passenger vehicles, trucks, and buses and school buses and will be referred to as heavy vehicles within this notice. The purpose of this joint rulemaking is to reduce the severity of crashes involving these heavy vehicles and to reduce the number of resulting fatalities. Since this NPRM would apply both to vehicle manufacturers and motor carriers that purchase and operate these vehicles, this joint rulemaking is based on the authority of both NHTSA and FMCSA. NHTSA's legal authority for today's NPRM is the National Traffic and Motor Vehicle Safety Act (“Motor Vehicle Safety Act”). FMCSA's portion of this NPRM is based on the authority of the Motor Carrier Act of 1935 (1935 Act) and the Motor Carrier Safety Act of 1984 (1984 Act), both as amended. The two acts are delegated to FMCSA by 49 CFR 1.87(i) and (f), respectively. These legal authorities and the legal basis for the proposed FMCSR are discussed in more detail in Section II of this notice. NHTSA is proposing that speed limiting device requirements apply to all multipurpose passenger vehicles, trucks and buses with a GVWR of more than 11,793.4 kg (26,000 pounds). NHTSA considered several factors in determining the GVWR threshold for the proposed FMVSS. These vehicles carry the heaviest loads, and small increases in their speed have larger effects on the force of impact in a crash. Additionally, many of these vehicles are regulated by FMCSA and its State partners, permitting the establishment of an FMCSR to ensure the enforcement of the speed limiting requirements throughout the life of the vehicles. Although the petitions for rulemaking requested that NHTSA permit manufacturers to set the speed limiting device at any speed up to and including 68 mph, the agency has not proposed a specific set speed. In Section X of this document and in the Preliminary Regulatory Impact Analysis, Initial Regulatory Flexibility Analysis, and Draft Environmental Assessment accompanying this proposal, NHTSA has considered the benefits and costs of 60 mph, 65 mph, and 68 mph maximum set speeds. The agencies estimate that limiting the speed of heavy vehicles to 60 mph would save 162 to 498 lives annually, limiting the speed of heavy vehicles to 65 mph would save 63 to 214 lives annually, and limiting the speed of heavy vehicles to 68 mph would save 27 to 96 lives annually. Although we believe that the 60 mph alternative would result in additional safety benefits, we are not able to quantify the 60 mph alternative with the same confidence as the 65 mph and 68 mph alternatives. To determine compliance with the operational requirements for the speed limiting device ( i.e., that the vehicle is in fact limited to the set speed), NHTSA is proposing a vehicle-level test that involves accelerating the vehicle and monitoring the vehicle's speed. The proposed test procedure is substantially based on the United Nations Economic Commission for Europe (UNECE) regulation on vehicle speed limiting devices, 11 with several modifications discussed in detail later in this document. 11 UNECE R89, Uniform provisions concerning the approval of: I. Vehicles with regard to limitation of their maximum speed or their adjustable speed limitation function; II. Vehicles with regard to the installation of a speed limiting device (SLD) or adjustable speed limitation device (ASLD) of an approved type; III. Speed limitation devices (SLD) and adjustable speed limitation device (ASLD),” E/ECE/324-E/ECE/TRANS/505//Rev. 1/Add. 88/Amend. 2 (January 30, 2011). In order to reduce additional potential costs to vehicle manufacturers, NHTSA is not proposing requirements to prevent tampering or restrict adjusting the speed setting as part of the proposed FMVSS. Instead, to deter tampering with a vehicle's speed limiting device or modification of the set speed above the specified maximum set speed after the vehicle is sold, the proposed FMVSS would be reinforced by the proposed FMCSR, which would require motor carriers to maintain the speed limiting devices at a set speed within the range permitted by the FMVSS. To assist FMCSA's enforcement officials with post-installation inspections and investigations to ensure compliance with the requirement to maintain the speed limiters, NHTSA is proposing to require that the vehicle set speed and the speed determination parameters be readable through the On-Board Diagnostic (OBD) connection. 12 In addition to the current speed limiter settings, NHTSA is proposing that the previous two setting modifications ( i.e., the two most recent modifications of the set speed of the speed limiting device and the two most recent modifications of the speed determination parameters) be readable and include the time and date of the modifications. 12 Further information on the specification of the OBD connection is available at http://www.epa.gov/obd/regtech/heavy.htm. In addition to the new vehicle requirements included in this proposal, NHTSA is considering whether to require commercial vehicles with a GVWR of more than 26,000 pounds currently on the road to be retrofitted with a speed limiting device with the speed set to no more than a specified speed. The agency has not included a retrofit requirement in this proposal because of concerns about the technical feasibility, cost, enforcement, and small business impacts of such a requirement. However, we are seeking public comment to improve our understanding of the real-world impact of implementing a speed limiting device retrofit requirement. As an alternative to a retrofit requirement, the agencies are also requesting comment on whether to extend the set speed requirement only to all CMVs with a GVWR of more than 26,000 pounds that are already equipped with a speed limiting device. Based on our review of the available data, limiting the speed of heavy vehicles would reduce the severity of crashes involving these vehicles and reduce the resulting fatalities and injuries. Because virtually all heavy vehicles are CMVs and would be subject to both the proposed FMVSS and the proposed FMCSR, we expect that, as a result of this joint rulemaking, virtually all heavy vehicles would be speed limited. The agencies project that this joint rulemaking would be cost-beneficial. Specifically, by reducing the severity of crashes involving heavy vehicles, we estimate that limiting heavy vehicles to 68 mph would save 27 to 96 lives annually, limiting heavy vehicles to 65 mph would save 63 to 214 lives annually, and limiting heavy vehicles to 60 mph would save 162 to 498 lives annually. 13 Based on range of fatalities prevented, this rulemaking would prevent 179 to 551 serious injuries 14 and 3,356 to 10,306 minor injuries with a maximum set speed of 60 mph, 70 to 236 serious injuries and 1,299 to 4,535 minor injuries with a maximum set speed of 65 mph, and 30 to 106 serious injuries and 560 to 1,987 minor injuries with a maximum set speed of 68 mph. 13 Although we believe that the 60 mph alternative would result in additional safety benefits, we are not able to quantify the 60 mph alternative with the same confidence as the 65 mph and 68 mph alternatives. 14 The fatality-to-injury ratios for AIS 3, AIS 4, and AIS 5 injuries coincidentally add up to 1. Accordingly, the number of serious injuries prevented (AIS 3-5) is estimated to be equivalent to the number of fatalities. Please consult the PRIA for additional discussion on how the agencies estimated the injuries prevented. Additionally, we project that this joint rulemaking would result in fuel savings and greenhouse gas (GHG) emissions reductions totaling of $848 million annually, assuming a 7 percent discount for fuel and a 3 percent discount rate for GHG, for 60 mph and 65 mph speed limiter settings. 15 For 68 mph speed limiters, we would expect fuel savings and GHG emissions reductions to result in benefits of $376 million annually. 15 For internal consistency and because of the way the social cost of carbon is estimated, the annual benefits are discounted back to net present value using the same discount rate as the social cost of carbon estimate (3 percent) rather than 3 percent and 7 percent. Please refer to Section X for additional information. The cost of the proposed FMVSS to vehicle manufacturers is expected to be minimal. As discussed above, most vehicles to which the proposed FMVSS would apply are already equipped with electronic engine controls which include the capability to limit the speed of the vehicle, but may not have these controls turned on automatically. In addition to the costs to vehicle manufacturers, we have evaluated the societal cost implications of these proposed rules. We estimate that the proposed rules would cost $1,561 million for 60 mph speed limiters, $523 million for 65 mph speed limiters, and $209 million for 68 mph speed limiters $433 million annually, assuming a 7 percent discount rate, as a result of the potentially lower travel speeds and delay in the delivery of goods. However, the estimated fuel savings benefits of this proposed rule exceed these estimated societal costs. The commercial trucking market fits the classic definition of a negative externality, in which benefits are enjoyed by one party, but the costs associated with that benefit are imposed on another. In this case, higher travel speeds may produce more severe traffic crashes that result in more death, more injury, and greater property damage. While the cost of excess fuel consumption is borne by the vehicle fleet operators, the resulting fatalities, greenhouse gases, and pollutants may be imposed on society. The agencies estimate that this rule would be cost-beneficial. Even assuming that the proposed rule would result in the high cost estimate and the low benefit estimate, the net benefits of this rulemaking are estimated to be $1.1 billion to $5.0 billion annually for 60 mph speed limiters, $1.0 billion to $2.8 billion annually for 65 mph speed limiters, and $0.5 to $1.3 billion annually for 68 mph speed limiters, assuming a 7 percent discount rate. Table 1—Annual Total Benefits, 7% Discount [In millions of 2013 dollars *] Benefits 60 mph Low estimate High estimate 65 mph Low estimate High estimate 68 mph Low estimate High estimate Combination Trucks $2,571 $6,134 $1,458 $3,074 $640 $1,384 Single-unit trucks 105 230 85 128 36 53 Buses 20 159 21 79 8 32 Total 2,695 6,522 1,564 3,281 684 1,469 * Numbers were rounded to the nearest integer. Table 2—Annual Costs, 7% Discount Associated With Increased Delivery Time [In millions of 2013 dollars] 60 mph 65 mph 68 mph Cost $1,534 $514 $206 Table 3—Overall Net Benefits to Heavy Vehicle Industries Associated With Speed Limiters, 7% Discount [In millions, 2013 dollars] * Vehicle 60 mph Minimum Maximum 65 mph Minimum Maximum 68 mph Minimum Maximum Total Benefits $2,695 $6,522 $1,564 $3,281 $684 $1,469 Total Costs 1,561 1,561 523 523 209 209 Net Benefit 1,136 4,964 1,039 2,757 475 1,260 * The estimates may not add up precisely due to rounding. The agencies seek comments and suggestions on any alternative options that would lower cost and maintain all or most of the benefits of the proposal, as well as information relative to a phase-in of the proposed requirements or alternatives to our proposed three-year lead time for manufacturers to meet the requirements of the new FMVSS. II. Legal Basis Since this NPRM would apply both to vehicle manufacturers and motor carriers that purchase and operate these vehicles, this rulemaking is based on the authority of both NHTSA and FMCSA. NHTSA's legal authority for today's NPRM is the National Traffic and Motor Vehicle Safety Act (“Motor Vehicle Safety Act”). Under 49 U.S.C. Chapter 301, Motor Vehicle Safety (49 U.S.C. 30101 et seq. ), the Secretary of Transportation is responsible for prescribing motor vehicle safety standards that are practicable, meet the need for motor vehicle safety, and are stated in objective terms. 16 “Motor vehicle safety standard” means a minimum performance standard for motor vehicles or motor vehicle equipment. When prescribing such standards, the Secretary must consider all relevant, available motor vehicle safety information. 17 The Secretary must also consider whether a proposed standard is reasonable, practicable, and appropriate for the types of motor vehicles or motor vehicle equipment for which it is prescribed and the extent to which the standard will further the statutory purpose of reducing traffic accidents and associated deaths. 18 The responsibility for promulgation of FMVSS is delegated to NHTSA. In proposing to require that heavy vehicles be equipped with speed limiting devices and that these devices initially be set to a speed not greater than a maximum specified speed by the manufacturer, the agency carefully considered these statutory requirements. 16 49 U.S.C. 30111(a). 17 49 U.S.C. 30111(b). 18 Id. Mandating speed limiting devices in heavy vehicles and requiring that those devices be set at speeds not greater than a maximum specified speed would meet the need for motor vehicle safety by reducing the severity of crashes involving heavy vehicles and reducing the number of fatalities and injuries that result from such crashes. These safety benefits are summarized above and discussed in more detail below in Section X. The proposed FMVSS would be practicable because the vehicles that would be subject to the requirements already have speed-limiting capability. The proposed FMVSS also contains objective performance criteria for evaluating the required speed limiting device, including a vehicle test procedure based on a United Nations Economic Commission for Europe (UNECE) test procedure, specification of the type of setting information that must be retrievable ( i.e., the current speed setting and speed determination parameters as well as the last two modifications of each) and the means by which such information must be retrievable ( i.e., through the OBD connection). As described above, NHTSA decided to focus on vehicles with a GVWR above 26,000 pounds and believes that the proposed requirements are appropriate for these vehicles because they carry the heaviest loads and because small increases in their speed have larger effects on the force of impact in a crash. Additionally, these vehicles are regulated by FMCSA and its State partners, permitting the establishment of an FMCSR to ensure the enforcement of the speed limiting requirements throughout the life of the vehicles. FMCSA's portion of this NPRM is based on the authority of the Motor Carrier Act of 1935 (1935 Act) and the Motor Carrier Safety Act of 1984 (1984 Act), both as amended. The two acts are delegated to FMCSA by 49 CFR 1.87(i) and (f), respectively. The 1935 Act authorizes the Department of Transportation (DOT) to “prescribe requirements for — (1) qualifications and maximum hours of service of employees of, and safety of operation and equipment of, a motor carrier; and (2) qualifications and maximum hours of service of employees of, and standards of equipment of, a motor private carrier, when needed to promote safety of operations” [49 U.S.C. 31502(b)]. The 1984 Act confers on DOT authority to regulate drivers, motor carriers, and vehicle equipment. “At a minimum, the regulations shall ensure that—(1) commercial motor vehicles are maintained, equipped, loaded, and operated safely; (2) the responsibilities imposed on operators of commercial motor vehicles do not impair their ability to operate the vehicles safely; (3) the physical condition of operators of commercial motor vehicles is adequate to enable them to operate the vehicles safely . . . ; and (4) the operation of commercial motor vehicles does not have a deleterious effect on the physical condition of the operators” [49 U.S.C. 31136(a)(1)-(4)]. Sec. 32911 of the Moving Ahead for Progress in the 21st Century Act (MAP-21) [Pub. L. 112-141, 126 Stat. 405, July 6, 2012] enacted a fifth requirement, i.e., to ensure that “(5) an operator of a commercial motor vehicle is not coerced by a motor carrier, shipper, receiver, or transportation intermediary to operate a commercial motor vehicle in violation of a regulation promulgated under this section, or chapter 51 [Transportation of Hazardous Material] or chapter 313 [Commercial Motor Vehicles Operators] of this title” [49 U.S.C. 31136(a)(5)]. The 1935 Act authorizes regulations on the “safety of operations and equipment” of a for-hire carrier and “standards of equipment” of a private carrier, “when needed to promote safety” [49 U.S.C. 31502(b)(1)-(2)]. Speed limiting devices constitute safety equipment, as the preamble of this proposed rule amply demonstrates, and the 1935 Act therefore authorizes FMCSA to require that such equipment be maintained as long as the vehicle is in service. Because NHTSA is proposing to require vehicle manufacturers to equip every new multipurpose passenger vehicle, truck, and bus with a gross vehicle weight rating (GVWR) of more than 11,739.4 kilograms (26,000 pounds), FMCSA proposes to require motor carriers operating such vehicles in interstate commerce to maintain functional speed limiting devices set at not more than the maximum specified speed for the service life of the vehicle. Two provisions of the 1984 Act are immediately relevant. A speed limiting device installed to improve safety must be “maintained,” as required by § 31136(a)(1), to ensure that its benefits are actually realized in normal operations. Properly maintained speed limiting devices will also ensure that “the responsibilities imposed on operators of commercial motor vehicles do not impair their ability to operate the vehicles safely” [§ 31136(a)(2)] in the sense that drivers cannot be ordered to drive more than the maximum set speed. The proposed rule does not directly address § 31136(a)(3), dealing with the physical condition of the driver, or § 31136(a)(4), concerning the effect of driving on the physical condition of operators. However, the proposed rule would significantly reduce the consumption of diesel fuel (which is used by most vehicles heavier than 26,000 pounds), with corresponding reductions in exhaust emissions. The effect on the health of drivers (and others) from exposure to diesel exhaust is difficult to estimate in the absence of a dose/response curve, significant changes in the chemical composition of diesel fuel over the years, and the presence of confounding factors like smoking [ see, “Hours of Service of Drivers,” 70 FR 49978, 49983-49987, August 25, 2005]. Nonetheless, reducing the total volume of exhaust emissions will likely have some beneficial effect on the health of many individuals, including drivers. This issue is discussed further in the Draft Environmental Assessment prepared for this NPRM. Finally, consistent with § 31136(a)(5), a working speed limiting device will make it more difficult for a “motor carrier, shipper, receiver, or transportation intermediary” to coerce a driver to exceed highway speed limits in violation of the regulatory requirements of 49 CFR 392.2 and 392.6. The 1984 Act confers jurisdiction over “commercial motor vehicles” (CMVs) operating in interstate commerce. The term CMV includes 4 alternative definitions: A minimum weight of 10,001 pounds gross vehicle weight (GVW) or GVWR, whichever is greater [49 U.S.C. 31132(1)(A)]; two different capacity thresholds for different types of passenger vehicle operation [§ 31132(1)(B)-(C)]; or the transportation of placardable quantities of hazardous material [§ 31132(1)(D)]. NHTSA proposes to require manufacturers to install speed limiting devices only on vehicles with a GVWR above 26,000 pounds. FMCSA has no authority to regulate vehicle manufacturers [49 U.S.C. 31147(b)] but proposes to require operators of CMVs covered by the NHTSA requirement who use the vehicles in interstate commerce to maintain speed limiting devices at the same level of effectiveness as the original equipment, irrespective of the CMV's passenger capacity or use to transport placardable quantities of hazardous material. Before prescribing any regulations, FMCSA must also consider their “costs and benefits” [49 U.S.C. 31136(c)(2)(A) and 31502(d)]. Those factors are discussed in this proposed rule. III. Background A. Speed Limiting Technology All vehicles with electronic engine control units (ECUs) are electronically speed limited to prevent general damage to the vehicle. This is because the ECU monitors an engine's RPM and also controls the supply of fuel to the engine. Available information indicates that ECUs have been installed in most heavy trucks since 1999, though we are aware that some manufacturers were still installing mechanical controls through 2003. 19 In addition, it appears that the practice of voluntarily setting the speed limiting devices, most often at speeds from 60 to 70 mph, has grown in recent years. Some trucking fleets use ECUs to limit the speed of their trucks in order to reduce the number of speed-related crashes, reduce fuel consumption, and reduce maintenance costs. 19 Hino Motors indicated in its comments to the 2007 Request for Comments that it manufactured mechanically controlled vehicles through model year 2003. B. NHTSA's 1991 Report to Congress on CMV Speed Control Devices Section 9108 of the Truck and Bus Safety and Regulatory Reform Act of 1988 required the Secretary of Transportation to conduct a study on whether devices that control the speed of CMVs enhance safe operation of such vehicles and to submit to Congress a report on the results of the study together with recommendations on whether to make the use of speed control devices mandatory for CMVs. 20 20 Truck and Bus Safety and Regulatory Reform Act of 1988, Pub. L. 100-690, 102 Stat. 4527, 4530 (Nov. 18, 1988). In response to this Act, NHTSA published a Report to Congress titled “Commercial Motor Vehicle Speed Control Safety.” 21 This report reviewed the problem of heavy vehicle speeding (in particular, at speeds greater than 65 mph, which was the maximum rural Interstate speed limit at the time) and “speeding-related” crash involvements. 22 The report described and assessed devices available to control truck speed, and addressed the mandatory use of speed control devices by heavy trucks. The report stated that, by all measures of crash involvement, speeding was not a significant factor in the crashes involving single-unit trucks. Thus, most of the report addressed combination trucks, which presented a more complex picture. 21 NHTSA, Commercial Motor Vehicle Speed Control Safety, DOT HS 807 725 (May 1991). A copy of this report has been placed in the docket. 22 For the purposes of the report, a vehicle was considered to be “speeding” if its estimated travel speed exceeded the posted speed limit. The report described the results of non-detectable radar studies that showed that highway speed limit compliance by combination trucks was poor but better than that of passenger vehicles. In the non-detectable radar studies examined in the report, most trucks that were found to be speeding were traveling at just over the posted speed limit. Crash statistics indicated that speeding was generally less associated with combination truck crashes than it was with passenger vehicle crashes. The report described devices available to control truck speed and ways that they were applied in commercial fleet settings. The report was supportive of fleet applications of speed monitoring devices and speed limiting devices but at that time concluded that there was not sufficient justification to consider requiring all heavy trucks to be so equipped due to the small number of target crashes and uncertainties regarding the potential for crash reduction, which suggested that the benefits of mandatory speed limitation were questionable. Specifically, problem size statistics 23 suggested that the number of target crashes was low, e.g., approximately 30 fatal crash involvements per year for combination trucks. The report also noted that all speeding-related crash statistics cited in the report used the categorization “speeding-related” or “high-speed-related,” but that these terms did not necessarily mean that speeding was the primary cause of the crash or any resulting fatalities. The report stated that virtually all crashes involve multiple contributing factors and that the elimination of any one factor— e.g., high speed—may or may not prevent the crash. Thus, the report viewed the identified speeding-related and high-speed-related crashes as only potential target crashes for speed control devices. The report concluded that although speed control devices (if not tampered with) were likely to reduce the highway speeds of those trucks that do speed, their effectiveness in preventing and/or reducing the severity of these potential target crashes was unknown. 23 For the purposes of the 1991 report, the “problem size” included crashes where the Police Accident Report indicated speeding at a speed greater than 70 mph. C. Petitions for Rulemaking 1. American Trucking Associations (ATA) Petition On October 20, 2006, the ATA submitted a petition to NHTSA, pursuant to 49 CFR 552.3, to initiate a rulemaking to amend the FMVSS to require vehicle manufacturers to limit the speed of trucks with a GVWR greater than 26,000 pounds to no more than 68 mph. 24 Concurrently, the ATA petitioned FMCSA, pursuant to 49 CFR 389.31, to initiate a rulemaking to amend the FMCSR to prohibit owners and operators from adjusting the speed limiting devices in affected vehicles in a way that enables the vehicles to exceed a speed of 68 mph. 24 Docket No. NHTSA-2007-26851-0005. The ATA stated that reducing speed-related crashes involving trucks is critical to the safety mission of both NHTSA and FMCSA, and that the requested requirements are necessary in order to reduce the number and severity of crashes involving large trucks. ATA's petition stated: A lack of focus on speed as a causal or significant contributing factor in crashes involving large trucks represents a significant gap in the federal government's truck safety strategy. While much of the federal truck safety budget has focused on ensuring the safe condition of equipment, on driver fatigue, and on prevention of impaired driving, it is clear from the research that speeding is a more significant factor in crashes involving trucks than any of the factors that currently receive the largest proportion of agency attention and resources. The “Justification” section of ATA's petition also stated: ATA analyzed five years of fatal truck-involved crash data. We found that in 20 percent of truck-involved fatal crashes where speeding on the part of the truck driver was cited as a factor in the crash, and the truck's speed was recorded, the speed of the truck exceeded 68 mph. However, because the truck's speed is reported by investigating officers in only about half of truck-involved fatal crashes, it is impossible to determine the actual number of potential crashes that might be avoided by limiting top truck speed to 68 mph. However, reasonable assumptions can be made and ATA believes the number of fatal crashes that could be avoided is significant. The ATA stated in its petition that reducing the speed of trucks will likely reduce both the number and severity of crashes, although ATA did not quantify injury or fatality reduction benefits. The ATA also stated that the reduced number of crashes, resulting from the lower speed for trucks, will reduce congestion, thereby reducing societal costs associated with the loss of productivity that occurs when vehicles have been disabled in a crash or delayed at a crash site. According to the ATA, there will be little or no cost increase for truck and truck tractor manufacturers associated with limiting the maximum speed since speed limiting devices are already installed on these vehicles during manufacture as a feature of the electronic engine control unit. Also, the ATA contended that the cost to carriers for the increase in time required to complete a delivery will be offset by savings in fuel consumption, fewer crashes, and less equipment wear. 2. Road Safe America Petition On September 8, 2006, Road Safe America, a public safety interest group, and a group of nine motor carriers 25 petitioned FMCSA to amend the FMCSRs to require (1) electronic speed governors on all trucks with a GVWR over 26,000 pounds, (2) that these electronic speed governors be set at not more than 68 mph, and (3) that all trucks manufactured after 1990 be equipped with such electronic speed governors. 26 The Road Safe America petition stated that the proposal to limit truck speed to 68 mph would reduce the number of truck collisions and save lives. According to Road Safe America, limiting truck speed to 68 mph will have an immediate and uniform impact with little or no detrimental effect on the lawful operation of CMVs. 25 The nine motor carriers who cosigned the Road Safe America petition are Schneider National, Inc., C.R. England, Inc., H.O. Wolding, Inc., ATS Intermodal, LLC, Dart Transit Company, J.B. Hunt Transport, Inc., U.S. Xpress, Inc., Covenant Transport, Inc., and Jet Express, Inc. 26 Docket Nos. NHTSA-2007-265.281-0001, NHTSA-2007-265.281-0002. D. Request for Comment On January 26, 2007, NHTSA and FMCSA published a joint Request for Comments notice in the Federal Register (72 FR 3904) seeking public comments on the ATA and Road Safe America petitions. This notice included a summary of the ATA and Road Safe America petitions, a review of heavy truck crash statistics, a brief summary of the 1991 NHTSA Report to Congress on Commercial Vehicle Speed Control Devices, and a request for specific information concerning the appropriateness of a Federal regulation limiting the speed of large trucks to 68 mph. The notice discussed how NHTSA is responsible for developing and issuing FMVSSs that establish minimum safety requirements for motor vehicles sold in the United States, and that if NHTSA ultimately established requirements to equip trucks with speed limiting devices as requested, FMCSA would initiate a rulemaking proceeding to amend the FMCSRs as necessary to ensure that trucks are equipped and maintained with a speed limiting device meeting the requirements specified in the applicable FMVSS. The Agencies received over 3,000 comments in response to the Request for Comments, mostly from private citizens and small businesses. 27 Of these, many supported a regulation that would limit the speed of large trucks to 68 mph, including trucking fleets and consumer advocacy groups. Other comments submitted by independent owner-operator truckers, one trucking fleet association, and private citizens were opposed to the rulemaking approach requested in the petitions. 27 Docket No. NHTSA-2007-26851, available at http://www.regulations.gov/#!docketDetail;D=NHTSA-2007-26851 ). Supported Comments from private citizens and small organizations supporting the petitions include responses from individuals who were involved in crashes with heavy trucks or had friends or relatives who were killed or severely injured in crashes with large trucks. The private citizen supporters of the petitions include non-truck drivers who stated they are intimidated by the hazardous driving practices of some truck drivers, such as speeding, tailgating, and abrupt lane changes. These comments expressed the belief that limiting the speed of heavy trucks to 68 mph would result in safer highways, and several private citizens recommended that trucks be limited to 65 mph rather than 68 mph. Trucking organizations and safety groups supported the petition for similar reasons, and the comments summarized below represent the range of issues they addressed. Schneider National, Inc. (Schneider), a motor carrier with a sizeable trucking fleet, indicated that its trucks have had speed limiting devices set to 65 mph since 1996. According to Schneider's crash data involving its own fleet, vehicles without speed limiting devices accounted for 40 percent of the company's serious collisions while driving 17 percent of the company's total miles. Schneider stated that its vehicles have a significantly lower crash rate than large trucks that are not speed limited or have a maximum speed setting greater than 65 mph. J.B. Hunt Transport, Inc. (J. B. Hunt), another large trucking fleet, commented that a differential speed between cars and large trucks will result from trucks being equipped with speed limiting devices set below the posted speed limit. This speed differential may cause a safety hazard; however, J.B. Hunt believes that the current safety hazard caused by large trucks traveling at speeds in excess of posted limits is of greater concern. Advocates for Highway and Auto Safety (Advocates) commented that large trucks require 20 to 40 percent more braking distance than passenger cars and light trucks for a given travel speed. Advocates also indicated that it did not believe that the data in the agency's 1991 Report to Congress are still valid because the speed limits posted by the States over the past ten years are much higher than the national posted speed limit of 65 mph that was in effect in 1991. 28 28 We agree with Advocates that the conclusions of our 1991 report are no longer valid, and have discussed this issue in detail in the section titled “Applicability of the 1991 Report to Congress on Heavy Speed Limiters.” The Insurance Institute for Highway Safety (IIHS) stated on-board electronic ECUs will maintain the desired speed control for vehicles when enforcement efforts are not sufficient due to lack of resources. IIHS stated that there is already widespread use of speed governors by carriers and a mandate will result in net safety and economic benefits. IIHS asserted that limiting trucks to 68 mph would enhance safety but that limiting the vehicles to speeds below 68 mph would be safer. The Governors Highway Safety Association (GHSA) commented that large trucks are over-represented in motor vehicle crashes, stating that, based on 2004 data, large trucks were 3 percent of registered vehicles and represented about 8 percent of the total miles traveled nationwide, but were involved in 12 percent of traffic fatalities. GHSA stated that conventional approaches to vehicle speed control do not provide optimal benefits because of limited enforcement resources and the large number of miles of highway to cover. Accordingly, GHSA stated that it is prudent to consider requiring speed-limiting devices since they are currently installed in large trucks and can be adapted to be tamper-resistant. Several comments, including those from ATA's Technology & Maintenance Council, provided information concerning economic, non-safety benefits that would result from requiring large trucks to be speed limited. The Technology & Maintenance Council stated that an increase of 1 mph results in a 0.1 mpg increase in fuel consumption, and for every 1 mph increase in speed over 55 mph, there is a reduction of 1 percent in tire tread life. Opposed Comments opposing the petitions were received from many independent truck drivers, the Owner-Operator Independent Drivers Association (OOIDA), the Truckload Carriers Association (TCA), and private citizens (non-truck drivers). OOIDA asserted that mandating speed limiting devices would not reduce the number of crashes involving heavy trucks. Specifically, OOIDA commented that the agency's 1991 Report to Congress is still valid today—asserting there is no need to mandate speed limiting devices because the target population (high speed crashes) is still small compared to the total number of truck crashes. According to OOIDA, speed limiting devices would not have an effect on crashes in areas where the posted speed limit for trucks is 65 mph or below. OOIDA believes that the petitioners are attempting to force all trucks to be speed-limited so that the major trucking companies with speed-limited vehicles will not be forced to compete for drivers against independent trucking operations that have not limited their speeds to 68 mph or below. OOIDA also questioned the magnitude of the fuel economy benefits that would be realized with speed limiting devices and stated that it is not necessary to set large truck speed limiting devices at 68 mph to realize most of the economic benefits cited by the petitioners, because improved fuel economy and reduced emissions can be achieved with improved truck designs. OOIDA also stated that driver compensation and the lack of entry level driver training contribute to the problem of driving at excessive speeds. 29 29 FMCSA notes that Section 32305 of MAP-21 requires the agency to complete a rulemaking requiring entry-level training for all drivers seeking a commercial driver's license (CDL). TCA and OOIDA both commented that a speed differential will be created in many states by the 68 mph speed limit for heavy trucks and a higher speed limit for other vehicles. This speed differential could result in more interaction between cars and trucks, thus posing an additional safety risk for cars and trucks. Other Issues According to comments from CDW Transport, a trucking fleet, speed limiting devices should be required on passenger vehicles as well as CMVs. Several comments from private citizens and small businesses opposed to the petitions stated that speed is not the only cause of crashes—that weather and highway conditions are also significant factors. There were some comments stating that passenger vehicles cause the majority of the crashes between trucks and passenger vehicles. Some commenters stated that truck drivers will experience more fatigue with a 68-mph maximum speed, which could result in more crashes. Others expressed the opinion that State and local law enforcement agencies should enforce the speed of all vehicles on the nation's roads and highways, while some commenters favored a 75-mph limit for truck speed limiting devices, instead of 68 mph, to match the highest posted speed limit in the country. The Truck and Engine Manufacturers Association (EMA) 30 provided information concerning the cost of tamper-proof speed limiting devices for large trucks. EMA estimates a one-time cost of $35 million to $50 million would be required to develop ECUs with tamper-resistant speed limiting devices and a one-time cost of $150 million to $200 million to develop ECUs with tamper-proof speed limiting devices. With both of these ECU designs, there would be additional costs to make adjustments to the ECU for maximum speed, tire size, and drive axle and transmission gear ratio information. 30 In 2011, the Engine Manufacturers Association, which includes the Truck Manufacturers Association, announced a new joint name for the organization, the Truck and Engine Manufacturers Association. E. NHTSA Notice Granting Petitions On January 3, 2011, NHTSA published a notice granting the two speed limiting device-related petitions. 31 Based on information received in response to a request for comments, we stated that these petitions merit further consideration through the rulemaking process. In addition, because the petitions involved overlapping issues, NHTSA stated that it would address them together in a single rulemaking. Finally, the agency noted that the determination of whether to issue a rule would be made in the course of the rulemaking proceeding, in accordance with statutory criteria. 31 76 FR 78 (Jan. 3, 2011). F. FMCSA Research—Speed Limiting Device Installation on CMVs In March 2012, FMCSA published a research report on a study intended to identify the safety impacts of implementing speed limiting devices in commercial vehicle fleet operation. 32 The FMCSA study focused on the reduction in truck crashes that could have been avoided and/or mitigated with an active speed limiting device installed. This was the first study to use actual crash data collected directly from truck fleets, representing a wide array of crashes. More specifically, the study included data from 20 truck fleets, including approximately 138,000 trucks, and it analyzed more than 15,000 crashes. The findings showed strong positive benefits for speed-limited trucks. In terms of safety benefits, results indicated that trucks equipped with speed limiting devices had a statistically significant lower speed-limited-relevant crash rate compared to trucks without speed limiting devices (1.6 crashes per 100 trucks/year versus 2.9 crashes per 100 trucks/year). 32 Hanowski, R. et al., Research on the Safety Impacts of Speed Limiter Device Installations on Commercial Motor Vehicles: Phase II, FMCSA-RRR-12-006, March 2012, available at http://ntl.bts.gov/lib/51000/51300/51361/Speed-Limiters.pdf FMCSA's Compliance, Safety, and Accountability Program 33 (CSA) addresses the issue of speeding-related crashes through its Unsafe Driving BASIC. This BASIC is a strong predictor of crash rates, although not the severity of crashes. 33 http://csa.fmcsa.dot.gov/ . The FMCSA report focused on the effectiveness of a set speed limiter in avoiding crashes. Because this research relied on fleets to report crashes, a level of uncertainty was introduced based on varying reporting techniques. Additional uncertainty was introduced because of difficulties in establishing comparable routes in order to balance risk exposure. While the FMCSA study was large, the agencies are using a distinctively different approach for the estimation of benefits that includes 10 years of crash data analysis. As described later in this notice, NHTSA has examined actual crashes and the severity of those crashes at various speeds to estimate the safety benefits of reducing crash speeds. While NHTSA's approach to estimating the safety benefits is more conservative, the agency has greater confidence that the benefits demonstrated in our approach will be fully realized because of our approach's ability to more effectively isolate the effects of speed reduction on safety. IV. Heavy Vehicle Speed Related Safety Problem A. Heavy Vehicle Crashes at High Speeds Studies examining the relationship between travel speed and crash severity have concluded that the severity of a crash increases with increased travel speed. 34 Impact force during a crash is related to vehicle speed, and even small increases in speed have large effects on the force of impact. As speed increases, so does the amount of kinetic energy a vehicle has. Because the kinetic energy equation has a velocity-squared term, the kinetic energy increase is exponential compared to the speed increase, so that even small increases in speed have large effects on kinetic energy. For example, a 5 mph speed increase from 30 mph to 35 mph increases the kinetic energy by one-third. 35 The effect is particularly relevant for combination trucks ( i.e., truck tractor and trailer) due to their large mass. 36 Additionally, higher speeds extend the distance necessary to stop a vehicle and reduce the ability of the vehicle, restraint device, and roadway hardware such as guardrails, barriers, and impact attenuators to protect vehicle occupants in the event of a crash. 37 34 Johnson, Steven L. & Pawar, Naveen, Mack-Blackwell Rural Transportation Center, Cost-Benefit Evaluation of Large Truck-Automobile Speed Limits Differentials on Rural Interstate Highways, MBTC 2048 (Nov. 2005). 35 Virginia Commonwealth University Safety Training Center Web site, http://www.vcu.edu/cppweb/tstc/crashinvestigation/kinetic.html. 36 Johnson, Steven L. & Pawar, Naveen, Mack-Blackwell Rural Transportation Center, Cost-Benefit Evaluation of Large Truck-Automobile Speed Limits Differentials on Rural Interstate Highways, MBTC 2048 (Nov. 2005). 37 Liu Cejun & Chen, Chou-Lin, NHTSA, An Analysis of Speeding-Related Crashes: Definitions and the Effects of Road Environments, DOT HS 811 090 (Feb. 2009). In evaluating the role travel speed plays in heavy vehicle crashes, the agencies used FARS and GES crash data over the 10-year period between 2004 and 2013 to examine crashes involving heavy vehicles ( i.e., vehicles with a GVWR of over 11,793.4 kg (26,000 pounds)) on roads with posted speed limits of 55 mph or above. The agency focused on crashes in which the speed of the heavy vehicle likely contributed to the severity of the crash ( e.g., single vehicle crashes, crashes in which the heavy vehicle was the striking vehicle). The agencies estimated that these crashes resulted in 10,440 fatalities 38 from 2004 to 2013 (approximately 1,044 annually). 38 The fatality numbers were also adjusted to reflect the effect of new heavy requirements that have been adopted by NHTSA within the last several years ( e.g., the final rule adopting seat belt requirements for passenger seats in buses (78 FR 70415 (Nov. 25, 2013), the final rule to adopt electronic stability control requirements for heavy vehicles (80 FR 36049 (June 23, 2012). Among the 10,440 fatalities, 9,747 resulted from crashes involving combination trucks, 442 resulted from crashes involving single unit trucks and the remaining 251 resulted from crashes involving buses. Table 4—Adjusted Fatal Target Population Based on FARS, Crash and Occupant Counts [For vehicles with a GVWR greater than 11,793 kg (26,000 lbs.), 10 years, 2004-2013] Combination truck Crash counts Person counts Single unit truck Crash counts Person counts Bus Crash counts Person counts 9,285 9,747 417 442 194 251 B. NTSB Motorcoach Speed-Related Crash Investigation In addition to examining the FARS and NASS GES data relating to fatal heavy vehicle crashes, the agencies reviewed the National Transportation Safety Board (NTSB) Accident Reports to better understand the details surrounding high-speed crashes involving motorcoaches. The agencies identified one motorcoach crash in which excessive vehicle speed was cited as a major safety risk. The crash occurred on U.S. Route 163, in Mexican Hat, Utah, on January 6, 2008. 39 Nine passengers were fatally injured and 43 passengers and the driver sustained injuries. 39 NTSB/HAR-09/01 PB2009-91620; Motorcoach Run-Off-the-Road and Rollover U.S. Route 163, Mexican Hat, Utah; January 6, 2008. As part of the crash investigation, NTSB conducted a vehicle speed analysis and estimated that the motorcoach was likely traveling 88 mph at the time of the crash. Although the motorcoach had a speed-limiting device with a maximum speed of 72 mph, NTSB determined that the motorcoach was capable of achieving a higher speed while in 10th gear when going downhill. Based on the facts surrounding this crash, this incident does not necessarily demonstrate the safety risk that speed-limiting devices are meant to address. Existing speed-limiting devices regulate a vehicle's speed by monitoring the engine's RPM and controlling the supply of fuel to the engine, but do not limit the downhill speed of a vehicle. Although today's proposal would not necessarily limit speed on downhill portions of roadways, we are requesting comments on whether a device that could limit speeds in such a situation is technically feasible. V. Applicability of NHTSA's 1991 Report to Congress on CMV Speed Control Devices As discussed above, in 1991, NHTSA published a report titled “Commercial Motor Vehicle Speed Control Devices.” 40 This report reviewed the problem of commercial vehicle operations at speeds greater than 65 mph and these vehicles' involvement in speed-related crashes. The report found that combination trucks tended to travel at just over the posted speed limit. The report was supportive of fleet applications of speed monitoring and speed-limiting devices but concluded that, because of the small target population size, there was not sufficient justification to require the application of speed-limiting devices at that time. 40 DOT HS 807 725 (May 1991). In response to the two petitions received by NHTSA, we reexamined the report and determined that several factors have changed since its submission in 1991, including data on the target population, changes in the costs and technology of speed limiting devices, and the repeal of the national maximum speed limit law. These changes undermine the conclusions contained in the 1991 report. The 1991 report focused on the crash involvement rate of heavy vehicles. The report estimated 39 fatalities annually involving combination trucks traveling in excess of 70 mph. However, the report stated that NHTSA was unable to determine whether the reduction in heavy vehicle travel speeds would actually reduce the crash risk (or resulting fatality risk) of these vehicles significantly, since other, non-speed-related factors might still have occurred to cause the crashes. The report determined that the incremental benefits of mandatory speed limiting devices were questionable. As described in more detail below and in the Preliminary Regulatory Impact Analysis (PRIA) that accompanies this NPRM, included in the docket, the agencies have analyzed more recent data from 2004 to 2013 in order to determine the potential benefits of limiting the maximum speed of vehicles with a GVWR of over 11,793.4 kg (26,000 pounds). Instead of focusing on the effect of such devices on crash involvement rate, we have focused on their effect on crash severity and used this approach to isolate the effect of speed on the fatal crash rate. Accordingly, this methodology allows us to estimate with greater certainty the lives that can be saved by electronically setting the maximum speed of vehicles with a GVWR of over 11,793.4 kg (26,000 pounds). Additionally, the 1991 report detailed the mechanisms for limiting speed available at that time and their associated costs. While the report accurately predicted the proliferation of electronically-controlled engines capable of limiting speed, it also noted the high cost of installing mechanical engine speed governors on vehicles. The available information indicates that electronically-controlled engines have been installed in most heavy trucks since 1999, though we are aware that some manufacturers were still installing mechanical controls through 2003. Accordingly, many of the equipment cost concerns discussed in the 1991 report are inapplicable today. Finally, during the time the 1991 report was being developed, the maximum speed limit in the U.S. was 55 mph. 41 The national speed limit was repealed in 1995. 42 Examining current State speed limits, the maximum posted speed limits for trucks vary between 55 and 85, with 35 States having a maximum posted truck speed limit above 65 mph. 43 41 Although the maximum national speed limit was 55 mph, some rural interstates were exceptions to this, with maximum speed limits of 65mph. 42 The Emergency Highway Energy Conservation Act in 1974 mandated a 55 mph national maximum speed limit on all U.S. highways and tied highway funds to the enforcement of the limit by States. The Surface Transportation Uniform Relocation Assistance Act (1987) gave each state the right to increase speed limits on portions of the Interstate system lying within the least-populated areas of its boundaries. The National Highway System Designation Act of 1995 gave States the ability to set speed limits. 43 Insurance Institute for Highway Safety, Maximum Posted Speed Limits, http://www.iihs.org/iihs/topics/laws/speedlimits?topicName=speed, (last visited June 2016). • 55 mph: California, District of Columbia • 60 mph: Hawaii, Michigan, Washington • 65 mph: Alaska, Connecticut, Delaware, Indiana, Massachusetts, Montana, New Jersey, New York, Oregon, Rhode Island, Vermont • 70 mph: Alabama, Arkansas, Florida, Georgia, Idaho, Illinois, Iowa, Kentucky, Maryland, Minnesota, Mississippi, Missouri, New Hampshire, North Carolina, Ohio, Pennsylvania, South Carolina, Tennessee, Virginia, West Virginia, Wisconsin • 75 mph: Arizona, Colorado, Kansas, Louisiana, Maine, Nebraska, New Mexico, North Dakota, Oklahoma • 80 mph: Nevada, South Dakota, Utah, Wyoming • 85 mph: Texas Thus, vehicles, including those with a GVWR of 11,793.4 kg (26,000 pounds), are now traveling faster than they were in 1991. Based on the foregoing, the agencies have determined that it was appropriate to reexamine the report to Congress and have come to the conclusion that the concerns and conclusions in that report are no longer valid. However, we have no plans at this time to prepare an updated study, given limited agency resources. VI. Comparative Regulatory Requirements In developing this proposal, the agencies examined speed-limiting requirements in other countries, which are summarized below. Several jurisdictions have imposed speed-limiting requirements on certain heavy vehicles and have developed test procedures to ensure that covered vehicles meet these requirements. The Canadian provinces of Quebec and Ontario limited the speed of large trucks to 65 mph in July 2009. In Australia, large trucks have been limited to 62 mph since 1990, with a 56 mph limit for road trains (multiple trailers). The European Union has limited the speed of large trucks and buses under its jurisdiction to 62 mph since 1994. Japan limited large trucks to 56 mph in 2003. A. Canada Transport Canada does not have a Canadian Motor Vehicle Safety Standard for heavy vehicle speed limiting; however, the provinces of Ontario and Quebec do require that if a CMV is equipped with an electronic control module capable of being programmed to limit vehicle speed, it must be set to no more than 105 km/h (65 mph). 44 This requirement does not apply to buses, mobile cranes, motor homes, vehicles manufactured before 1995, vehicles with a manufacturer's gross vehicle weight rating under 11,793.4 kg (26,000 pounds), ambulances, cardiac arrest emergency vehicles, or fire apparatuses. 44 See Highway Traffic Act, R.S.O, ch. H.8, Section 68.1, available at http://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_90h08_e.htm#s68p1s1, and Equipment, RRO/1990-587, available at http://www.e-laws.gov.on.ca/html/regs/english/elaws_regs_900587_e.htm. In Quebec and Ontario, enforcement is carried out primarily using standard speed control methods to identify heavy vehicles being driven at more than 105 km/h. Complementing these methods, they use portable electronic testing units connected to a port located inside the truck's cab, highway controllers to access motor data and determine whether the speed limiter has been set at a speed of 105 km/h or less. http://www.mto.gov.on.ca/english/trucks/trucklimits.shtml. Additional requirements for Ontario include the following: • A speed-limiting device is properly set if it prevents a driver, by means of accelerator application, from accelerating to or maintaining a speed greater than permitted. • The maximum speed shall be set by means of the electronic control module that limits the feed of fuel to the engine. 45 45 See O. Reg. 396/08, s.1 • A CMV is exempt if it is equipped with an equally effective device, not dependent on the electronic control module, which allows limitation of vehicle speed, remotely or not, but does not allow the driver to deactivate or modify the set speed. • All aspects of a CMV's computer device or devices, computer programs, components, equipment and connections that are capable of playing a role in preventing a driver from increasing the speed of a CMV beyond a specified value shall be in good working order. • A CMV's electronic control module shall contain information that accurately corresponds with any component or feature of the vehicle referred to in the module, including information regarding the tire rolling radius, axle gear ratio and transmission gear ratio. B. Australia In Australia, heavy goods vehicles and heavy omnibus maximum road speed are regulated through the Australian Design Rule (ADR) 65/00 “Maximum Road Speed Limiting for Heavy Goods Vehicles.” This standard applies to heavy omnibuses with a gross vehicle mass (GVM) of 5 tons or more (UNECE category code M3), as well as heavy goods vehicles over 12 tons (UNECE category code N3). For “Road Train” vehicles, the maximum road speed capability is established by the State or Territory authority. For other heavy goods vehicles and for heavy omnibus vehicles, the maximum road speed capability may be no greater than 100 km/h (62 mph). The ADR allows for vehicles to be speed-limited by means of gearing or a governor and tested with the following conditions: • The tires shall be bedded and the pressure shall be as specified by the manufacturer. • The vehicle shall be at ‘Unladen Mass.’ • The track surface shall be free from standing water, snow or ice and shall be free from uneven patches; and the gradient shall not exceed 2 percent and gradients shall not vary by more than 1 percent excluding camber effects. • The mean wind road speed measured at a height at least 1 meter above the ground shall be less than 6 m/s with gusts not exceeding 10 m/s. • The instantaneous vehicle road speed shall be recorded throughout the test with a road speed measurement accuracy of at least plus or minus 1 percent at maximum time intervals of 0.1 seconds. The test is then conducted “starting from a road speed 10 km/h less than the ‘Set Speed’ and the vehicle shall be accelerated as much as possible without changing gear by using a fully positive action on the accelerator control. This action shall be maintained without changing gear for at least 30 seconds after the ‘Set Speed’ is achieved.” The acceptance criteria for this test are twofold. ○ Within the first 10 seconds after reaching the ‘Set Speed’ the maximum vehicle road speed shall not exceed 105% of ‘Set Speed’ and the rate of change of vehicle road speed shall not exceed 0.5 m/s 2 . ○ More than 10 seconds after reaching the ‘Set Speed’, the maximum vehicle road speed shall not differ from the ‘Set Speed’ by more than plus or minus 3.3% of the ‘Set Speed’ and the rate of change of road speed shall not exceed 0.2 m/s 2 . C. Europe In 1992, the European Commission (EC) issued directive 92/6/EEC, requiring installation of speed limiting devices on trucks weighing over 12,000 kg (26,400 pounds) and buses with eight or more passenger seats weighing over 10,000 kg (22,000 pounds). The directive required that the speed limiting devices be set in such a way that covered trucks could not exceed 90 km/h (55.9 mph) and that covered buses could not exceed 100 km/h (62.1 mph). These requirements were phased in, initially applying to new vehicles registered after January 1, 1994. A retrofit requirement was subsequently added so that the speed-limiting requirements apply to all covered vehicles registered after January 1, 1988. That same year, UNECE enacted Regulation 89 (ECE R89), which details uniform provisions concerning the approval of vehicles with regard to their maximum speed and installation of speed limiting devices, as well as approval of speed limiting devices themselves. 46 This regulation specifies general requirements for vehicles with speed limiting devices, as well as performance requirements and test procedures. 46 UNECE R89, Uniform provisions concerning the approval of: I. Vehicles with regard to limitation of their maximum speed or their adjustable speed limitation function; II. Vehicles with regard to the installation of a speed limiting device (SLD) or adjustable speed limitation device (ASLD) of an approved type; III. Speed limitation devices (SLD) and adjustable speed limitation device (ASLD),” E/ECE/324-E/ECE/TRANS/505//Rev. 1/Add. 88/Amend. 2 (January 30, 2011). The ECE R89 test involves running the vehicle on a test track at a speed 10 km/h (6.2 mph) below the set speed and then accelerating the vehicle as much as possible until at least 30 seconds after the vehicle speed has stabilized. The speed of the vehicle is recorded at intervals of less than 0.1 second. The test is considered satisfactory if the stabilized speed of the vehicle does not exceed the set speed of the vehicle by more than five percent of the set speed or 5 km/h (3.1 mph) (whichever is greater), the maximum speed does not exceed the stabilized speed by more than five percent, and the variance in vehicle speed and rate of change of vehicle speed does not exceed certain thresholds during specified portions of the test. In 2002, the EC issued directive 2002/85/EC, which extended the coverage of the speed limiting device requirements to include trucks weighing between 3,500 kg (7,716 pounds) and 12,000 kg (26,400 pounds) and buses with eight or more passenger seats weighing less than 10,000 kg (22,000 pounds). The ECE R89 requirements are as follows: • The speed limitation must be such that the vehicle in normal use, despite the vibrations to which it may be subjected, complies with certain provisions including the following: ○ The vehicle's speed limiting device (SLD) must be so designed, constructed and assembled as to resist corrosion and ageing phenomena to which it may be exposed and to resist tampering in accordance with the paragraph below. The limitation threshold must not, in any case, be capable of being increased or removed temporarily or permanently on vehicles in use. The speed limitation function and the connections necessary for its operation, except those essential for the running of the vehicle, shall be capable of being protected from any unauthorized adjustments or the interruption of its energy supply by the attachment of sealing devices and/or the need to use special tools. ○ The speed limiting function shall not actuate the vehicle's service braking device. A permanent brake ( e.g., retarder) may be incorporated only if it operates after the speed limitation function has restricted the fuel feed to the minimum fuel position. ○ The speed limitation function must be such that it does not affect the vehicle's road speed if a positive action on the accelerator is applied when the vehicle is running at its set speed. ○ The speed limitation function may allow normal acceleration control for the purpose of gear changing. ○ No malfunction or unauthorized interference shall result in an increase in engine power above that demanded by the position of the driver's accelerator. ○ The speed limitation function shall be obtained regardless of the accelerator control used if there is more than one such control which may be reached from the driver's seating position. ○ The speed limitation function shall operate satisfactorily in its electromagnetic environment “without unacceptable electromagnetic disturbance for anything in this environment.” ○ The applicant for approval shall provide documentation describing checking and calibration procedures. “It shall be possible to check the functioning of the speed limitation function whilst the vehicle is stationary.” Annex 5 of the ECE R89 regulation provides specific vehicle, test track, test equipment, and test methods upon which we have based our proposed test procedure. The ECE regulation also contains specific acceleration, deceleration, and speed. The test begins with the vehicle running at a speed 10 km/h below the set speed and then accelerated as much as possible using a fully positive action on the accelerator control. This action is then maintained for at least 30 seconds after the vehicle speed has been stabilized. During the test, the vehicle's precise speed and time are collected in order to calculate the maximum speed, stabilized speed, the amount of time required to stabilize the speed, maximum acceleration before the stabilized speed is established, and the maximum acceleration during the stabilized period. D. Japan In Japan, speed limitation devices are required to be installed on motor vehicles used to carry goods and have a GVWR of 8 tons or more or a maximum loading capacity of 5 tons or more. These devices are also required on trucks drawing trailers which have a GVWR of 8 tons or more or a maximum loading capacity of 5 tons or more. The general rules for these devices are as follows: • The speed limitation device shall be so constructed that the vehicle may not be accelerated by the operation of the acceleration devices, such as the accelerator pedal, when the vehicle is running at its set speed. • The set speed of the speed limitation device shall be any speed not exceeding 90 km/h. Furthermore, the speed limitation device shall be so constructed that the users, etc. of the vehicle cannot alter the set speed nor release the setting. • The speed limitation device shall be fully capable of “withstanding the running.” Even if wrong operation, etc., of the speed limitation device should occur, it would not incur any increased output that will exceed the engine output determined by the condition of the accelerating devices, such as the depressing amount of the accelerator pedal. 47 47 NHTSA understands this provision to require robustness of the speed limitation device and limitations on the impacts of its failure. • On motor vehicles equipped with “plural” accelerating devices, the speed limitation device shall actuate for every accelerating device. • The speed limitation device shall not actuate the service brake device of the vehicle. However, the speed limitation device may actuate the auxiliary brake device only after the fuel supply has been minimized. • The speed limitation device and connections necessary for its operation (except connections whose disconnection will prevent the normal motor vehicle operation) shall be capable of being protected from any unauthorized adjustments that will hamper the function of the speed limitation device or the interruption of its energy supply, such as power supply, by the attachment of sealing devices and/or the need to use special tools. However, this provision shall not apply to speed limitation devices whose function can be confirmed while the vehicle is stopping. The conformity of these requirements is tested either by the use of a proving grounds test, a chassis dynamometer test, or by an engine bench test in the following ways: • Proving grounds test ○ Conditions of the test vehicle The air inflation pressure of the tires shall be the value as posted in the specification table. Moreover, the tires shall be ones that have undergone break-in. The weight of the test vehicle shall be the vehicle weight. However, on motor vehicles equipped with a spare tire and onboard tools, the test may be conducted with such articles mounted on the vehicle. ○ Characteristics of proving ground The surface of the proving ground shall be flat paved road. Gradients shall not exceed 2% and shall not vary by more than 1% excluding camber effects. The surface of the proving ground shall be free from water pool, snow accumulation or ice formation. ○ Ambient weather conditions The mean wind speed shall be less than 6 m/s. Moreover, the maximum wind speed shall not exceed 10 m/s. • Acceleration test ○ Test Procedure The vehicle running at a speed 10 km/h below the set speed shall be accelerated as much as possible by operating the accelerator device, e.g. by depressing the accelerator pedal fully. This action shall be maintained at least 30 seconds even after the vehicle speed has been stabilized. The vehicle speeds shall be recorded during the test in order to establish the curve of the speed versus the time. In this case, the accuracy of the speed measurement shall be within 1%, whereas the accuracy of the time measurement shall be within 0.1 second. ○ The test shall be carried out for each gear ratio allowing in theory the set speed to be exceeded. • Requirements ○ In this test, the speed of the test vehicle shall satisfy the following requirements enumerated below. The stabilized speed shall not exceed the set speed plus 5 km/h nor a speed of 90 km/h. After the stabilization speed has been reached for the first time, the maximum speed shall not exceed the stabilization speed multiplied by 1.05. Furthermore, the absolute value of the rate of change of speed shall not exceed 0.5 m/s 2 when measured on a period greater than 0.1 second. Within 10 seconds of first reaching the stabilized speed, the speed limitation function shall be controlled in such a way that the following requirements are satisfied. The speed shall not vary by more than 4% of the stabilized speed or 2 km/h, whichever is greater. The absolute value of the rate of change of speed shall not exceed 0.2 m/s 2 when measured over a period greater than 0.1 second. ○ Steady speed test Test procedure • The vehicle shall be driven at full acceleration up to the steady speed by operating the acceleration device, e.g. by depressing the accelerator pedal fully. Then, the vehicle shall be maintained at this stabilized speed at least 400 meters. The vehicle's average speed shall be measured after the vehicle attained the stabilized speed. Next, the same measurement shall be repeated on the proving ground but in the opposite direction. The mean of the two average speeds measured for both test runs shall be considered the mean stabilized speed. The whole test shall be conducted five times. In this case, the speed measurements shall be performed with an accuracy of 1% whereas the time measurements shall be carried out with an accuracy of 0.1 second. • The test shall be carried out for each gear ratio allowing in theory the set speed to be exceeded. • Requirements ○ In this test, the speeds of the test vehicle shall satisfy the following. ○ On each test run, the mean stabilized speed shall not exceed the set speed plus 5 km/h or a speed of 90 km/h. ○ The difference between the maximum value and the minimum value of the mean stabilized speeds obtained during each test run shall be no more than 3 km/h. • Chassis dynamometer test ○ Conditions of chassis dynamometer The equivalent inertia weight shall be set with an accuracy of ±10% of the vehicle weight of the test vehicle. • Acceleration test ○ Test procedure The vehicle running at a speed 10 km/h below the set speed shall be accelerated as much as possible by operating the accelerating device, e.g. by depressing the accelerator pedal fully. This action shall be maintained at least 20 seconds even after the vehicle speed has been stabilized. The vehicle speeds shall be recorded during the test in order to establish the curve of the speed versus the time. In this case, the accuracy of the speed measurement shall be within ± 1%, whereas the accuracy of the time measurement shall be within 0.1 second. The load of the chassis dynamometer during the test shall be set to the forward running resistance of the test vehicle with an accuracy of 10%. Furthermore, when the competent authority approves it as appropriate, the load may be set to the maximum power of the engine multiplied by 0.4. The test shall be carried out for each gear ratio allowing in theory the set speed to be exceeded. • Test procedure ○ The vehicle shall be driven at full acceleration up to the steady speed by operating the accelerating device, e.g., by depressing the accelerator pedal fully. Then, the vehicle shall be maintained at this stabilized speed at least 400 meters. The vehicle's average speed shall be measured after the test vehicle has attained the stabilized speed. This average speed shall be considered the mean stabilized speed. The whole test shall be conducted five times. The speed measurements shall be performed with an accuracy of ± 1 percent, whereas the time measurements shall be carried out with an accuracy of within 0.1 second. ○ The load of the chassis dynamometer shall be changed consecutively from the maximum power of the engine to the maximum power of the engine multiplied by 0.2. ○ The test shall be carried out for each gear ratio allowing in theory the set speed to be exceeded. • In this test, the requirements prescribed shall be satisfied. ○ Engine bench test This test method can be carried out only when the competent authority recognizes that this bench test is equivalent to the proving ground measurement. • Indication ○ With regard to those motor vehicles equipped with a speed limitation device that has complied with the requirement of this Technical Standard, a mark shall be indicated at a place in the vehicle compartment where the driver can easily see the mark and at the rear end of the vehicle (excluding truck tractors). VII. Proposed Requirements A. Overview 1. Proposed FMVSS NHTSA is proposing to establish a new FMVSS that would require new multipurpose passenger vehicles, trucks, buses, and school buses with a gross vehicle weight rating of more than 11,793.4 kilograms (26,000 pounds) to be equipped with a speed-limiting device. Additionally, as manufactured and sold, each vehicle would be required to have its device set to a specified speed. Although NHTSA has not specified a maximum set speed in this proposal, NHTSA intends to specify a maximum set speed in a final rule implementing this proposal. NHTSA has considered the benefits and costs of a 68 mph maximum set speed as requested in the petitions as well as 60 mph and 65 mph maximum set speeds in the overview of benefits and costs discussed in Section X of this document and in the Preliminary Regulatory Impact Analysis, Initial Regulatory Flexibility Analysis, and Draft Environmental Assessment accompanying this proposal. To determine compliance with the operational requirements for the speed-limiting device ( e.g., that the vehicle is in fact limited to the set speed), NHTSA is proposing a vehicle level test that involves accelerating the vehicle and monitoring the vehicle's speed. The proposed test procedure is substantially based on the UNECE R89, described above. Finally, to assist FMCSA's enforcement officials with post-installation inspections and investigations to ensure compliance with the speed limiting device maintenance requirement, NHTSA is proposing to require that the vehicle set speed and the speed determination parameters be readable through the On-Board Diagnostic (OBD) connection. 48 In addition to the current speed limiting device settings, NHTSA is proposing that the previous two setting modifications ( i.e., the two most recent modifications of the set speed of the speed limiting device and the two most recent modifications of the speed determination parameters) be readable and include the time and date of the modifications. 48 Further information on the specification of the OBD connection is available at http://www.epa.gov/obd/regtech/heavy.htm. NHTSA solicits comment on all aspects of the proposed FMVSS, including the requirements for a speed-limiting device, the initial set speed requirement, the types of vehicles to which the speed limiting device requirements should be applicable, the proposed recording requirement and potential alternatives, and the proposed test procedure. 2. Proposed FMCSR FMCSA is proposing an FMCSR requiring each CMV with a GVWR of more than 11,793.4 kilograms (26,000 pounds) to be equipped with a speed-limiting device meeting the requirements of the proposed FMVSS applicable to the vehicle at the time of manufacture, including the requirement that the device be set to a specified speed. As with the FMVSS, FMCSA has not specified the maximum set speed in this proposal, FMCSA intends to specify the maximum set speed in a final rule implementing this proposal. Motor carriers operating such vehicles in interstate commerce would be required to maintain the speed-limiting devices for the service life of the vehicle. FMCSA solicits comment on all aspects of this proposed FMCSR. B. Applicability 1. Proposed FMVSS NHTSA is proposing that speed limiting device requirements apply to all new multipurpose passenger vehicles, trucks and buses with a gross vehicle weight rating of more than 11,793.4 kg (26,000 pounds). Although the majority of the estimated safety benefits of this joint rulemaking are for combination trucks because they travel more vehicle miles at high speeds, and thus are involved in more high-speed crashes, this rulemaking would also reduce the number of fatalities from crashes involving other types of heavy vehicles, some of which carry a large number of passengers. Additionally, because other heavy vehicles like single unit trucks and heavy buses have the same heavy-duty engines as combination trucks, the costs associated with installing the required speed-limiting devices in these vehicles would be minimal. For these reasons, the agency has tentatively concluded that it is appropriate to subject all types of heavy vehicles to the speed-limiting device requirements. Regarding the GVWR threshold, NHTSA decided to focus the speed-limiting device requirements on those vehicles that carry the heaviest loads and for which small increases in speed have larger effects on the force of impact in a crash. These vehicles would also be subject to both FMCSA's regulations applicable to vehicles operated in interstate commerce and states' compatible regulations adopted as a condition of receiving Motor Carrier Safety Assistance Program (MCSAP) grants. Specifically, NHTSA considered how FMCSA and its state partners could effectively enforce the proposed standard to realize the potential safety benefits. These benefits result from maintaining the speed-limiting devices after they are sold. In general, NHTSA does not have the authority to regulate the use of motor vehicles or motor vehicle equipment by vehicle owners. However, almost all of the vehicles with a GVWR over 11,793.4 kg (26,000 pounds) are CMVs and their maintenance is regulated by FMCSA through the FMCSRs. 49 As discussed throughout this notice, if NHTSA requires speed limiting devices as requested in the petitions, FMCSA will simultaneously amend the FMCSRs to ensure that CMVs with a GVWR over 26,000 pounds that operate in interstate commerce are equipped and maintained with a speed limiting device meeting the requirements of the FMVSS. Accordingly, NHTSA is proposing to limit the applicability of the speed limiting device requirements to vehicles with a GVWR over 11,793.4 kg (26,000 pounds) in order to ensure that these vehicles continue to be speed limited. 49 Some vehicles covered by the FMVSS would not be covered by the FMCSR. These vehicles include transit buses, motor homes, most school buses, and CMVs in exclusively intrastate service. States may voluntarily require CMVs in exclusively intrastate service through FMCSA's Motor Carrier Safety Assistance Program, as discussed in Section VII.D.1 below. NHTSA requests comment on the applicability of the proposed speed limiting device requirements, specifically whether the proposed requirements should apply to vehicles with a GVWR of 11,793.4 kg (26,000 pounds) or lower. We are interested in the costs, if any, to manufacturers of these lighter vehicles, as well as the costs to the operators of these vehicles—and, if applicable, the operators' customers—resulting from the additional travel time. 2. Proposed FMCSR Consistent with the proposed FMVSS, the proposed FMCSR would also apply to each multipurpose passenger carrying vehicle, truck, bus and school bus (to the extent they fall under FMCSA jurisdiction) with a gross vehicle weight rating of more than 11,793.4 kilograms (26,000 pounds). FMCSA requests comment on the cost of enforcement of the proposed FMCSR, training, new enforcement tools that may be required, and the costs, if any, to law enforcement partner agencies. C. Proposed FMVSS Requirements NHTSA's general approach in developing performance requirements for speed limiting devices was to identify key areas of performance pertinent to the overall effectiveness of speed limiting devices, thus reducing the severity of crashes, as well as to consider opportunities to harmonize the proposal with other global regulations. Considering that almost all vehicles covered by the proposed FMVSS are used for commercial purposes, the proposed requirements also include performance aspects to assist inspectors in the verification of the speed limiting device setting and pertinent speed determination parameter settings. The proposed requirements are generally consistent with those in the UNECE regulation for vehicles with regard to limitation of their maximum speed. These requirements are located in part I of UNECE R89. While not all the provisions of the UNECE standard are pertinent to NHTSA's proposed regulation, we have evaluated this and other standards and have proposed specific text that best supports the purpose of the proposed FMVSS. 1. Definitions We are proposing three new definitions with respect to the speed limiting device. The first definition is the set speed (V set ). The set speed is the speed limiting device setting, or the intended maximum cruising speed of the vehicle and the speed reported through the OBD connection. The speed would be no greater than a speed to be specified in a final rule implementing this proposal. Additionally we are proposing a definition for the actual maximum average cruising speed of the vehicle, which is referred to as the stabilized speed (V stab ). Although we provide a detailed test procedure for obtaining this speed, it is generally the maximum speed that the vehicle can achieve on level ground once the speed control device has stabilized. The V stab speed is required to be equal to the V set speed. We seek comment on the ability of manufacturers to build equipment capable of meeting this requirement. Finally, the maximum speed (V max ) is the maximum speed that the vehicle can achieve during the transitional or settling period prior to the vehicle speed being stabilized. This is often referred to as the overshoot in a control device. All three of these vehicle speed definitions have the same general meaning as those used in the UNECE regulation. 2. Set Speed NHTSA is proposing that, as manufactured and sold, each vehicle's speed limiting device would be required to have a set speed of no greater than a speed to be specified in a final rule implementing this proposal. Although the petitions for rulemaking requested that NHTSA permit manufacturers to set the speed limiting device at any speed up to and including 68 mph, the agency has not proposed a specific set speed. In Section X of this document and in the Preliminary Regulatory Impact Analysis, Initial Regulatory Flexibility Analysis, and Draft Environmental Assessment accompanying this proposal, NHTSA has considered the benefits and costs of 60 mph, 65 mph, and 68 mph maximum set speeds. The agencies estimate that limiting the speed of heavy vehicles to 60 mph would save 162 to 498 lives annually, limiting the speed of heavy vehicles to 65 mph would save 63 to 214 lives annually, and limiting the speed of heavy vehicles to 68 mph would save 27 to 96 lives annually. Although we believe that the 60 mph alternative would result in additional safety benefits, we are not able to quantify the 60 mph alternative with the same confidence as the 65 mph and 68 mph alternatives. NHTSA also examined maximum posted speed limits for heavy vehicles. The following table shows the distribution of maximum posted speed limits. Table 5 Maximum posted speed limit for certain larger vehicles Number of States (including the District of Columbia) 55 mph 2 60 mph 3 65 mph 11 70 mph 21 75 mph 9 80 mph 4 85 mph 1 The purpose of this joint rulemaking is to save lives by reducing the severity of crashes involving heavy vehicles. NHTSA and FMCSA are proposing to accomplish this by requiring that those vehicles be equipped with speed limiting devices. The proposed rules are not intended as a mechanism to enforce maximum speed limits set by States. However, the agencies are mindful that the proposed rules would limit the travel speed of heavy vehicles below the maximum posted speed limits in some States. We have therefore considered the distribution of State speed limits as one factor in deciding the appropriate set speed requirement. The above table illustrates that the vast majority of States (41 States) have maximum truck speed limits between 65 mph and 75 mph, with the most common maximum truck speed limits being 70 mph (21 States) and 65 mph (11 States). We have also examined data from EMA 50 showing the factory speed limiting device settings for trucks 51 manufactured in 2010 and 2011. By far, the single most common speed limiting device setting for the 332,530 vehicles manufactured during this period was 65 mph (24.8%—82,474 vehicles). Trucking fleets generally custom order truck tractors and request speed limiting device settings from the manufacturer based on the costs and benefits of various maximum speeds. The high number of vehicles set to 65 mph suggests that this is a reasonable maximum speed at which to efficiently and safely transport goods, even if it is not the optimum maximum speed for every company. 50 EMA, Vehicle Speed Limiter Settings—Ex Factory 2010 & 2011 (Nov. 2011). 51 EMA indicated that the vehicles included in the data consist of mostly heavy-duty trucks and truck tractors with some medium-duty trucks. EMA further indicated that the data included a significant portion of the total heavy-duty production since the start of 2010. See id. NHTSA will weigh all of these factors in choosing a maximum set speed for newly manufactured large vehicles and FMCSA will weigh these factors in considering what maximum set speed at which motor carriers would be required to maintain speed limiters. The benefits estimates indicate that substantially more lives would be saved if heavy vehicles are limited to 65 mph versus 68 mph with an additional increase in lives saved if heavy vehicles are limited to 60 mph instead of 65 mph. However, the agencies will also consider State speed limits and the economic impact on manufacturers and fleets including current speed limiter settings and the potential for harmonization with Ontario and Quebec maximum set speed requirements of 105 km/h (65 mph). NHTSA and FMCSA will consider other maximum set speeds both within that range of speeds and outside of it. NHTSA and FMCSA request comment on what an appropriate maximum set speed would be and why that speed should be chosen over other possible maximum set speeds. We are proposing that the speed limiting device be permitted to allow normal acceleration control for the purpose of gear changing. It is important to provide acceleration control for the purpose of gear changing in order to maintain vehicle drivability. We note that, as proposed, the speed-limiting device must limit the speed of the vehicle regardless of the gear selection. Additionally, we are proposing that the maximum speed (overshoot) not exceed the stabilized speed by more than 5 percent. Likewise, the stabilized speed must not exceed the set speed. 3. Tampering and Modification of the Speed-Limiting Device Unlike UNECE R89, NHTSA is not proposing any requirement on manufacturers to make the speed limiting device tamper-resistant or to restrict modification of the speed limiting device settings. In other words, although the proposed FMVSS would require that the initial set speed be not greater than a specified speed, a speed limiting device could be capable of adjustment above the specified speed and still meet the requirements of the proposed FMVSS. However, because the proposed FMVSS would be reinforced by the proposed FMCSR, we expect that virtually all of these vehicles would be limited to the specified speed. As described below, NHTSA is concerned about tampering and modification of the speed limiting device settings after a vehicle is sold. After considering various means of preventing these types of activities as described below in the Regulatory Alternatives section, the agency has tentatively decided not to include this type of requirement because of the costs that such a requirement would impose on manufacturers. NHTSA is also concerned about the feasibility of establishing performance requirements that would be objective and effective in resisting various methods of tampering. 52 52 The agency notes that some manufacturers may voluntarily decide to install speed limiting systems with features to restrict modification of the settings and/or make the device tamper-resistant as part of their compliance approach under the fuel efficiency program for medium- and heavy-duty vehicles. Specifically, the fuel efficiency program for medium- and heavy-duty vehicles permits manufacturers to implement a fixed maximum vehicle speed through a speed limiter feature and use the maximum speed as an input for the model used for purposes of certification to the standards of the fuel efficiency program (76 FR 57106, 57155 (Sep. 15, 2011)). Although the speed limiter may be adjustable, compliance is based on the highest adjustable speed setting. Speed settings that are protected by encrypted controls or passwords are not considered when determining the highest adjustable speed, and manufacturers are required to use good engineering judgment to ensure that the speed limiter is tamper resistant. In particular, the agency is concerned about speed limiting device setting adjustment and tampering that could allow vehicles to travel faster than the specified maximum set speed. The agency is also concerned about post-sale modification of the speed determination parameters such that they do not match the equipment on the vehicle or the failure to modify the parameters after replacing equipment. Either of these actions could result in the vehicle being capable of traveling at speeds higher than the set speed. Finally, the agency is concerned about potential tampering with the speed limiting device, such as hacking the ECU to disable the speed-limiting device, installing a device that sends a false signal to the speed-limiting device, or replacing the ECU with an ECU that does not limit the speed. In contrast, NHTSA believes that some modifications should not be restricted, like adjusting the set speed below the maximum specified set speed and changing the speed determination parameter values as necessary to reflect replacement equipment ( e.g., equipping the vehicle with different-size tires). These types of modifications do not interfere with, and may even facilitate, vehicles continuing to operate at speeds no greater than the maximum specified set speed after they are sold. Accordingly, NHTSA is proposing to require that speed-limiting devices have some means of adjusting the speed determination parameter values as necessary to reflect replacement equipment. In order to deter those types of activities that would allow a vehicle to travel above the maximum specified set speed, the proposed FMVSS would be reinforced by the proposed FMCSR, which would require motor carriers to maintain the speed limiting devices in accordance with the requirements of the proposed FMVSS. For example, the FMCSR would prohibit vehicle operators from adjusting the set speed above a maximum specified set speed. To assist in verifying the performance of the speed limiting device while the vehicle is in use, NHTSA is proposing that the vehicle set speed and the speed determination parameters, such as tire size and gear ratios, be readable through the OBD connection. In addition to the current speed limiting device settings, NHTSA is proposing that the previous two setting modifications ( i.e., the previous two modifications of the set speed and the previous two modifications of the speed determination parameters) be readable and include the time and date when they were modified. NHTSA seeks comment on the proposed speed limiting device setting readability requirements. For example, is reporting the time and date of setting modifications feasible or should some other value be specified ( e.g., mileage at the time of modification)? What are other appropriate speed determination parameters, in addition to tire size and gear ratios, that should be readable through the OBD connection? Should the agency specify additional requirements to ensure that the speed limiting device settings are readily accessible through the OBD connection and in an easy-to-understand format in order to facilitate enforcement, and, if so, what should those requirements be? NHTSA also seeks comment on any alternative approach that would allow inspectors to verify the speed limiting device settings at a reduced cost. 4. Test Procedure and Performance Requirements NHTSA is proposing a vehicle-level test that involves the acceleration of the vehicle on a test track. The agency is proposing various track and weather conditions, based on the widely utilized UNECE regulation and other vehicle tests that are conducted on test tracks, to ensure the repeatability of testing. The test begins with the vehicle traveling at a steady speed that is below the set speed. The vehicle is accelerated using a full positive action on the accelerator control. Such action is maintained for at least 30 seconds after the vehicle speed has been stabilized. During the testing, the instantaneous vehicle speed is recorded during the testing in order to establish the curve of speed versus time. A more detailed summary of the proposed test procedure follows. Vehicle conditions. The vehicle would be tested with the tire pressure at the manufacturer's specified pressure in the unloaded weight condition with a single operator. Test Track conditions. The test surface would be a surface suitable to enable stabilization speed to be maintained and be free from uneven patches, with gradients not exceeding 2% and not varying by more than 1% excluding camber effects. The test track would be a paved surface free from standing water, snow, or ice. Ambient weather conditions. In order to prevent inconsistency in the test, the test would be performed when the mean wind speed measured was less than 5 m/s and the temperature between 45 °F and 104 °F. NHTSA is proposing a less stringent wind speed condition than the UNECE requirement in order to maintain consistency with other FMVSS track tests. Test equipment. The speed measurement would be independent of the vehicle speedometer and accurate within plus or minus 1 percent. Running the test. The vehicle would be run at a speed 10 km/h below the set speed and would be accelerated as much as possible using a full positive action on the accelerator control. This action would be maintained at least 30 seconds after the vehicle speed stabilized. The instantaneous vehicle speed would be recorded during the testing in order to establish the curve of speed versus time. The speed versus time curve would then be evaluated in order to find the stabilized speed and the maximum speed. Under the proposed requirements, the maximum speed achieved during the test must be no greater than 5 percent of the stabilized speed and the stabilized speed must not exceed the set speed. The agency notes that this proposed requirement is more stringent than the UNECE requirement, which specifies that the stabilized speed must be within 5 percent or 5 km/h of the set speed of the set speed. Adopting the UNECE tolerance would mean that a vehicle could have a stabilized speed of 5 km/h (3 mph) above the specified maximum set speed and still meet the proposed requirements. NHTSA will choose a maximum set sped based primarily on safety considerations with considerations also given to other benefits including fuel savings and the costs of the rule including opportunity costs due to slower deliveries. Whatever maximum speed is ultimately chosen, it will be based on these considerations and allowing vehicles to operate 5 km/h (3 mph) above the maximum set speed will lessen the benefits associated with the chosen maximum set speed. NHTSA seeks comment as to manufacturers' ability to meet this requirement. Additionally, NHTSA is not proposing to include the acceleration limits specified in the UNECE standard of 0.5 m/s 2 within the first ten seconds and 0.2 m/s 2 beyond the first ten seconds (both measured over a time greater than 0.1 s) of the vehicle first reaching the set speed. We question if these acceleration values are achievable during an on-road test. Our calculations indicate that such a requirement limits the change in vehicle speed over any 0.1 second period to no more than 0.045 mph. EP07SE16.029 Given the extreme precision that would be required both of the speed control device and the test equipment, NHTSA proposes not to include the acceleration limits as specified in the UNECE standard. We seek comment as to the necessity of an acceleration limit and, if needed, what a reasonable limit could be. D. Proposed FMCSR Requirements FMCSA is proposing an FMCSR requiring each CMV with a GVWR of more than 11,793.4 kilograms (26,000 pounds) to be equipped with a speed limiting device meeting the requirements of the proposed FMVSS applicable to the vehicle at the time of manufacture, including the requirement that the device be set to a speed not greater than a specified maximum speed. This maximum speed will be based on the maximum speed chosen by NHTSA in a final rule implementing this proposal. Motor carriers operating such vehicles in interstate commerce would be required to maintain the speed limiting devices for the service life of the vehicle. 1. Enforcement FMCSA's roadside enforcement activities are limited by the small size of its staff. The Agency therefore relies on its State partners for enforcement of its safety rules at the roadside. Through the Agency's Motor Carrier Safety Assistance Program (MCSAP), FMCSA provides Federal grants to the States to support the adoption and enforcement of compatible safety regulations. Therefore, FMCSA's adoption of a rule requiring interstate motor carriers to maintain speed limiting devices would be accompanied by the States' adoption of compatible rules applicable to both interstate and intrastate motor carriers pursuant to 49 CFR part 350. The inclusion of the OBD feature for the speed limiting device would enable FMCSA and its State partners to enforce the proposed rule during roadside inspections, at the discretion of the Agency and its State partners. The enforcement of the requirements could be conducted in a targeted manner, periodically or randomly to provide an effective deterrent to carriers tampering with or disabling the device to avoid the need for the Agency and its State partners to consider changes to the standard inspection procedures or increases in the amount of time needed to complete a roadside inspection. FMCSA is again seeking comment and information regarding the cost of enforcement of the proposed FMCSR, training, new enforcement tools that may be required, and the costs, if any, to law enforcement partner agencies. In addition, State law enforcement officials responsible for motor carrier safety oversight could cite CMV drivers for violations of the speed limiting device requirements as part of traffic enforcement activities. If the vehicle is observed to be operating in excess of a posted speed limit greater than the maximum specified set speed, and the vehicle was manufactured on or after the effective date of the proposed rule, the speeding violation would then serve as prima facie evidence that the speed limiting device was inoperative, or the setting altered. And, the driver could be subject both to a speeding ticket and motor carrier safety citation for operating a CMV with a speed limiting device that failed to meet the requirements of the State's version of the Federal requirement. Conversely, if the vehicle were clocked at the maximum specified set speed in a 50-mph zone, the driver could be ticketed for speeding, but the officer would make no assumption about the effectiveness of the speed limiting device. VIII. Regulatory Alternatives In deciding on the approach proposed in this NPRM, NHTSA and FMCSA have examined the following alternatives to this proposal. A. Other Technologies Limiting Speed NHTSA also requests comment on the feasibility of technologies which would limit the speed of the vehicle to the speed limit of the road, as an alternative option to the a requirement limiting vehicle speed to a specified set speed. These technologies might include a GPS, vision system, vehicle to infrastructure communication, or some other autonomous vehicle technology. This could have the effect of reducing fatalities while limiting the economic effects of this rule on roads that have a posted speed above the maximum set speed. Heavy vehicle operators could also potentially choose between vehicles equipped with speed limiting devices set to a specified maximum set speed and vehicles with GPS-based, vision based, or vehicle-to-infrastructure-based, or other autonomous vehicle technology devices depending on their needs. Our preliminary conclusion is that requiring these technologies to limit vehicle speed would not be feasible and/or cost-effective at this time, but the agencies are seeking comments from the public on this preliminary conclusion. The agencies would not publish a final rule requiring speed limiters using these technologies without first publishing another proposed rule addressing them. The agencies also request comment on whether they should consider allowing GPS-based speed limiters, which adjust to the actual speed limits on roads, to be used as an alternative means of compliance if conventional speed limiters are required. The agencies understand that some trucking fleets use similar devices for monitoring purposes, but we have several questions about regulating a GPS-based, vision based, or vehicle-to-infrastructure-based device, and we invite comments on the following areas: • What would be the costs associated with installing and maintaining a GPS-based, vision based, or vehicle-to-infrastructure-based speed limiting device? • How easy would it be for a driver to interfere with the ability to receive speed limit information without detection and thereby travel faster than the posted speed limit? Are there tamper-resistant technologies available to limit such action? • What is the best method for determining the posted speed limit on a given section of highway? For GPS-based systems, would the speed map need to be managed federally and made available to the vehicle during operation or could a third-party map be usable considering the certification requirement? • How would such a device handle posted speed changes such as dual day/night speed limits and construction zones? • Is the current GPS coverage sufficient for such a device? How would temporary coverage outages be addressed for enforcement purposes? • What would be the framework for a compliance test procedure? • What are the limitations of the technologies in applications such as false positives? • Should a speed-limiting device that is correlated to the highway speed still have a set speed lower than the posted speed limit? B. Tampering As discussed above, at this time NHTSA is proposing to require a speed limiting device that reports the last two modifications of the set speed and the last two modifications of the speed determination parameters, along with the time and date of the modifications. NHTSA is not proposing any requirement on manufacturers to make the speed limiting device tamper resistant or to restrict modification of the speed limiting device settings. In other words, although the proposed FMVSS would require that the initial set speed be not greater than a maximum specified speed, a speed limiting device could be capable of adjustment above the maximum specified speed and still be compliant with the proposed FMVSS. Although NHTSA is concerned about tampering and modification of the speed limiting device settings after a vehicle is sold, after considering various means of preventing these type of activities the agency has tentatively decided not to includ [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2016-20934. Public record. Not legal advice.