ONTARIO MINISTRY OF TRANSPORTATION

Further, OOIDA has supported numerous initiatives that promote highway safety. To name a few, OOIDA has endorsed the implementation of a graduated commercial driver licensing (CDL) program as a means of improving the quality of commercial truck drivers and keeping unsafe and unprepared drivers off the road. OOIDA has opposed lowering the age for individuals to operate a commercial vehicle in interstate commerce to anything under 21, because of its position that teenage drivers lack the experience and maturity necessary to safely drive a heavy-duty truck. OOIDA has promoted apprenticeships as a means of providing better training for new truck drivers. OOIDA has worked with the Federal Motor Carrier Safety Administration to develop the Share the Road Safely program to educate the public about driving safely around commercial vehicles. OOIDA has also supported improvements in truck equipment and design that would increase safety. For example, OOIDA has promoted research into design changes that would improve the crashworthiness of vehicles, has promoted truck brake redesign, and has promoted the use of seat belts by truck drivers.

Keeping its focus on safety, OOIDA must strongly oppose OTA’s proposal. As discussed more fully below, light vehicle drivers, not commercial truck drivers, is the group with excessive speeding problems. Activation of speed limiters exclusively on heavy-duty commercial trucks, while cars continue to travel well beyond posted speed limits, will have an adverse effect on safety because it will expand the opportunities for vehicles of all sizes to interact and get into on or off-ramp, rear-end, and side-swipe accidents. There are a variety of other more effective means of addressing the speeding problem, without government intervention in what should be a business decision, that will have a positive effect on safety and at the same time conserve fuel.

II. Reducing competition, not eliminating speeding, is OTA’s primary motivation.

OOIDA agrees with OTA that speeding is a legitimate concern for the Ministry of Transportation. But OTA is focusing on the wrong group if it truly wants to reduce speeding. OTA’s own proposal reveals that speeding by commercial truck drivers is not the real problem. In its introduction, OTA acknowledges that “Trucks are less likely to be speeding on the major highways, and the number of trucks speeding excessively is a small minority.” See Proposal, p.1. In discussing speeding trucks, OTA reiterates that “Trucks are the least likely vehicles to be speeding on Ontario highways. In fact, the safety performance of trucks and truck drivers is superior to that of cars and motorists.” Id., p.6. OTA correctly identifies “the worst speeders” as “the four-wheelers,” noting again that “Most truck drivers are already driving at a maximum speed close to 105 kph.” Id., p.7.

A recent Canadian report on speeding presented to Natural Resources Canada confirms OTA’s observations regarding who speeds. Speeding: Climate Change and Road Safety Implications for Heavy Freight Vehicles, L-P Tardif & Assoc. in collaboration with Ray Barton Associates & Professor Jacques Bergeron (March 15, 2003) (“Speeding Report”). As found in the Speeding Report at pp.4, 11, 15, average vehicle speeds are consistently above posted speed limits. However, heavy-duty trucks just as consistently exhibit lower average speeds and less extreme speeding than light vehicles. The result, in accidents involving heavy-duty trucks, is that speeding by the other driver is a much more frequent causative factor than speeding by the truck driver. Id., p.6. Data compiled in 1999 by the Federal Highway Administration’s Office of Motor Carrier Research and Standards showed that approximately 7 percent of such crashes involved speeding by the truck driver, while 15 percent involved speeding by the other driver. Id., pp. 6, 29. Data compiled by Transport Canada on fatal crashes show similar results–5.5 percent involved speeding by truck drivers, while 13.3 percent involved speeding by the other driver. Id.

Since it is undisputed that light vehicle drivers are the primary speeders on Canada’s highways, it is simply not logical to require speed limiters for truckers who are less likely to speed and create related safety hazards, but not on light vehicle drivers. Nor does it make sense to burden the vast majority of truck drivers, who have been found to travel the speed limit in most cases, to restrict the isolated violators. The unfounded public perception that motorists are often passed by trucks is not sufficient basis for shifting the focus or government regulation away from the group causing the problem. See Cost-Benefit Evaluation of Large Truck-Automobile Speed Limit Differentials on Rural Interstate Highways, Report No. MBTC 2048, pp 96, 125, Mack-Blackwell Transportation Center, University of Arkansas (Nov. 2005) (“MBTC Study”).

The question that must therefore be asked is why OTA is pursuing mandatory speed limiters on commercial trucks. OTA claims that it’s proposal allegedly addresses four areas of concern. In brief, OTA contends that lower speeds will:

1. result in fuel conservation and reduced fuel costs, with a corresponding reduction in greenhouse gas emissions;

2. reduce normal wear and tear on trucks and related operational costs;

3. change the public’s perception about the presence of speeding trucks on the highway, and reduce the risk and severity of truck accidents;

4. eliminate allegedly “unfair competition” from those drivers who speed, which will restrict competition to “service and price.”

Comments from OTA spokespersons suggest that OTA’s true underlying motivation lies in factor four. OTA wants to eliminate any competitive edge those not using speed limiters may have over OTA members on the Blue Ribbon Task Force who were prompted to draft this proposal by their own use of speed limiters. Initially, OOIDA doubts whether the ability to travel slightly faster, a behavior exhibited by only a small group of truck drivers, actually creates any demonstrable competitive advantage for the carriers that employ those drivers. Certainly, any benefit is negligible if, as OTA claims in its proposal, the time savings from the higher speeds are “marginal.”

But OTA’s real competitive gripe is a recruiting problem, not speed. A number of OTA member carriers, who use speed limiters, are having problems recruiting and retaining drivers, a problem they attribute to the drivers’ dislike for fleet-enforced speed limits. To solve this perceived problem, OTA president David Bradley has argued, “all players in the industry should be competing, pricing their service, establishing delivery schedules and meeting customer demands on a level playing field where everyone is playing by the rules and without pressure to operate beyond the rules.” See OTA Press Release (July 5, 2005). Instead of developing incentives that could be offered by these carriers to alleviate this problem, the task force seeks a government mandate to create and maintain such a purportedly level competitive situation.¹ In any case, it is not the proper role of the Ministry of Transportation to act to level the playing field in a segment of the transportation industry. Canada, like the United States, has a free-market economy.

III. When trucks move slower than the flow of traffic, which is the practical effect

of OTA’s proposal, safety is compromised.

OOIDA agrees with OTA that excessive speeding is a legitimate subject of concern: it is dangerous, illegal, and tends to result in more severe accidents. However, highway safety engineers have long recognized that highways are safest when all vehicles are traveling at the same speed regardless of the speed limit.² MBTC Study, p.52; Testimony of Julie Cirillo, former Assistant Administrator and Chief Safety Officer for the FMCSA, before Senate Highways and Transportation Committee (June 10,2003) (“Cirillo testimony”). This is clearly evidenced by the well-documented fact that accident rates are lower on interstate highways than on other roads because of access control, wider lanes, shoulders, and the steady movement of traffic. GAO Testimony before the Subcommittee on Highways and Transit, Committee on Transportation and Infrastructure, House of Representatives, GAO-02-1128T, pp.11-12 (Sept. 26, 2002); Cirillo testimony. Indeed, notwithstanding higher speeds, the interstate highway system experiences accidents and fatality rates 2-5 times less than the primary road system it replaced. Cirillo testimony.

The critical fact totally ignored by OTA is that reduced speeds promote safety only if all vehicles are moving at reduced speeds. MBTC Study, p.52; Cirillo testimony. It is well established that deviations from the mean speed of traffic in the negative as well as the positive direction contribute significantly to accidents. MBTC Study, p.52-53, 125; Speeding Report, p.11; Cirillo testimony. The simple explanation for what might at first glance seem to be a surprising result is that speed differentials have a greater causative impact on accidents than speed itself. The Role of the Speeding Fine Function on Driver Behavior, pp. 2-4, National Transportation Center, Morgan State University (Nov. 2001). Indeed, a study by the U.S. Department of Transportation on truck size and weight found that when two vehicles traveling in the same direction were moving at speeds that varied by 10 miles per hour, they were nearly four times more likely to collide than they would be if traveling at the same speed. See Big Trucks, Big Trouble? American Automobile Association, T. Lankard & J. Lehrer (Nov. 1999). It has also been found that every one kilometer per hour increase in speed differential causes 270 more casualties. MBTC Study, p.22; Differential Travel Speed and Speed Differential and Their Effects on Traffic Safety, prepared for Transport Association of Canada by X.G.Liu (1998).

Forcing heavy-duty trucks to drive slower than the flow of traffic, while other vehicles on the road continue to speed, sometimes excessively, will lead to frequent lane changes, passing, and weaving maneuvers, as well as tailgating by faster moving vehicles. Indeed, interactions for vehicles going 10 mph less than traffic are increased by 227 percent. MBTC Study, pp. 98, 127. Such conduct increases the probability of rear-end and side-swipe incidents. While slowing trucks down may, as OTA suggests, reduce the number of trucks rear-ending cars, it will likely increase the number of faster moving cars rear-ending trucks. Statistics produced by the National Highway Traffic Safety Administration in 2004 show that trucks are struck from the rear 3.2 times more often than other vehicles; a greater speed disparity will lead to even more of this type of collision. When slow trucks form a line in the right lane, the likelihood of collisions as faster moving cars attempt to merge onto or exit the 400 series highways is also increased.

The speed differential created when trucks move slower than the flow of traffic will also create bottlenecks, with open road in front of slow-moving trucks and congestion behind, at least until other faster-moving vehicles pass or weave around them. Congestion will especially be exacerbated on two-lane roads where passing slow trucks is not an option. An increasingly common upshot of congestion is road rage, aggressive driving behaviors including tailgating, failing to yield, weaving in and out of traffic, and passing on the right, which sometimes escalate up to violence. The presence of increasing numbers of slower-moving trucks on the roads can only make this problem worse.

Additionally, safety is compromised when drivers lack full control of their vehicles. A study performed by Leeds University in Great Britain found that drivers of vehicles with external speed controls had a tendency to travel as fast as the speed limiter would allow, even where that speed (which was at or below the speed limit) was too fast under current driving conditions. See Press Release, Association of British Drivers (Jan. 12, 2000), at www.abd.org.uk/pr/225.htm. Further, while lower speed limits may often be appropriate, there are situations where extra power and speed are essential. When a speed-limited truck is trying to pass another truck efficiently, speeds higher than 105 km/h (65 mph) may be required to avoid the type of “elephant races” (side-by-side trucks) situations identified by OTA. Truck drivers have also been advised, when faced with a tire blowout, to accelerate while attempting to correct steering until control of the vehicle is gained. See The Critical Factor, Maintaining Control In A Rapid Air Loss Situation,

Public Safety Video by Michelin Tire, at www.olblueusa.org/video/streaming/Michelin_med.wmv. Extra speed may also be required both to safely merge into and move with the flow of traffic when entering the interstate and to get out of the way of vehicles merging into traffic from on-ramps.

In sum, because the more pronounced speeding tendencies of light vehicle drivers will not be checked by OTA’s proposal, slowing down trucks that already tend to comply with posted speed limits or safely move with the flow of traffic will only increase the speed disparity on Ontario’s highways. Benefits that might be gained if all traffic was forced to move at a slower speed will be lost and Ontario will experience more dangerous conditions than currently exist on its highways.

IV. OTA’s proposal has improper extraterritorial effect on international commerce.

The government of Ontario obviously can not enact laws that apply beyond its own borders. Yet that is precisely what OTA’s proposal would have them do. At the present time, speed limiter technology does not allow the equipment to be turned off and on at will from inside the truck. The maximum speed that is programmed into a truck will govern even when trucks with limiters are driven in jurisdictions with higher speed limits. This is a situation that can be expected to arise with great frequency. Twenty-two states in the United States, including several Northern tier states, have maximum speed limits higher than 65 mph on roads designed for the higher rate of speed. Each year, hundreds of billions of dollars in freight cross the open border between Ontario and the United States, and much of that is moved by heavy-duty trucks that regularly travel through all of these jurisdictions. Statistics compiled by the Ontario Ministry of Economic Development and Trade show more than 7.2 million truck crossings between Ontario and the United States in 2004. Ontario accounts for more than half of the total for-hire international truck tonnage and 63 percent of all truck trips that cross the Canada-United States border. Truck Activity in Canada - A Profile, p.vi, prepared for Transport Canada (March 2003). Thus, OTA’s proposed law would have a significant effect outside of Ontario, usurping the authority of those other jurisdictions to determine the maximum speed limit for vehicles traveling on their highways.

The United States and Canada have worked hard to make it as easy as possible to move goods over the borders. NAFTA and other trade agreements have been adopted by both countries in an effort to eliminate barriers to trade and facilitate the cross border movement of goods and services. NAFTA, General provisions, Article 102. OTA’s proposal is a step in the opposite direction, as the extraterritorial effect of mandatory speed limiters is to place an unnecessary burden on commerce between the United States and Canada.

OTA dismisses any suggestion that slower travel times will have more than a “marginal and manageable” effect on the competitive position of drivers forced always to travel at no more than 105 km/h (65 mph) through all jurisdictions. However, this position is inconsistent with its claim that the ability of other carriers to travel at speeds higher than those attained by members using speed limiters will cause it competitive harm. OTA can’t have it both ways, if higher speeds by others cause its members financial harm, then forcing those other carriers to also travel slower must cause them comparable financial harm that will unduly burden commerce between the jurisdictions.

V. There are several other effective measures for reducing speeding.

OOIDA recognizes the right of individual motor carriers to voluntarily elect to use speed limiters. However, OOIDA firmly believes that it is up to governments to set and enforce maximum speed limits, as each of the states in the United States and provinces in Canada have done to date, and up to individual carriers to determine which of the varied options for controlling the speed of its fleet of trucks it will use. The choice of one or a combination of techniques is a business decision that should be made internally based upon each carrier’s analysis of the costs and benefits of the various options.

Interestingly, recent surveys show that most carriers have a speed policy. Further, increasing numbers of motor carriers have used their independent business judgment to adopt a speed policy that, in recent years, has been applied to owner-operators as well as company drivers. Speeding Study, p.35. While many have chosen speed limiters, some carriers have combined limiters with alternative means of procuring compliance, and still others have relied exclusively on other alternatives. Important here is that this has all been accomplished without the hammer of a government mandate. The Ontario government would exceed its proper role and interfere unnecessarily in an internal business matter by mandating a particular method of speed control for all motor carriers coming into Ontario.

Equally important, as OTA itself recognized, “[j]ust as with commercial vehicles, the key to improving the safety of our highways is increased enforcement of the laws and better training, testing and licensing of drivers.” Proposal, p.7. Since the driver has the greatest impact on fuel efficiency, maintenance and safety, more thorough driver training relating to proper driving speeds should have a positive effect on the speeds actually driven. The authors of the Speeding Study, at p.7, recommended behavior modification through better training for trainers as well as commercial drivers on best practices, with “modules [that] would focus on the effect of speed both from an environmental and a safety point of view.” To retain its effectiveness, initial training could be supplemented by periodic distribution of anti-speeding awareness materials. For new drivers, classroom training could be enhanced by an apprenticeship program providing a mentor and on-the-job training to develop safe driving skills. Technology can not take the place of a well-trained driver, nor should it take away control of the vehicle from a well-trained driver. Stepped up law enforcement in geographic areas where the most serious speeding problems exist, such as Highway 401 heading east from Windsor, would have a significant deterrent effect on speeding. Studies show that the perception of getting caught due to increased enforcement does slow down traffic. Speeding Study, p.13. In areas where speeding is less common, with such a small percentage of truck drivers speeding excessively, they should be fairly easy to spot even with less manpower.

Positive reinforcement through financial incentives and other encouragement for compliant driving have also proven effective in controlling driver speed. The need to speed will be eliminated if carriers monitor road speed on trip reports generated by the engine’s ECM and pay bonuses or increase per mile pay for compliant driving. Speed monitoring devices (satellite, electronic on-board computers, tachograph) and in-vehicle feedback may also voluntarily be used by individual carriers to slow down drivers.

Finally, in the Speed Study, at p.41, surveyed drivers listed “just-in-time” delivery as one of the factors having the greatest influence on speed. Thus a greater focus on shipper requirements used by carriers to pressure drivers to speed would go a long way towards solving the problem. Importantly, this, and all the other alternatives discussed, would help put an end to excessive speeding without any additional government involvement or extraterritorial legal problems.

VI. Fuel conservation and control of fuel costs are also achievable by other means.

OTA has also touted fuel conservation and reduced fuel costs as an added benefit of its proposal. As a preliminary matter, OOIDA must question the OTA’s veracity in this respect. At the same time as OTA is seeking reduced speeds on the 400 series highways, allegedly to conserve fuel, save money, and reduce greenhouse gas emissions,³ it recommends in Item 18 of the proposal that the Ministry “review whether it makes sense to raise the maximum speed limit to 100 kph on certain divided highways in the province where the maximum speed limit is presently 80 kph, or 90 kph.” Such a change could well eliminate any savings attributed to the prescribed use of speed limiters.

Additionally, the actual cost savings from slowing down appear to be less than OTA speculates. OOIDA believes that the 4-5 percent cost savings noted by OTA, without citation to the source of this statistic, were taken from a 1987 study that was republished in 1996 without any further testing, finding a .1 mpg decrease in fuel efficiency for each mile per hour of speed above 55 mph. More recent research studies have found improved truck technology in the form of better engines, electronic controls, and improved aerodynamics, has made them more efficient at higher speeds. Consequently, differences in fuel usage and costs have been minimized. Studies have shown the decrease to be closer to .08 mpg, and on rural interstates to be in the .03 to .05 range. MBTC Study, pp.118, 129.

Perhaps most importantly, speed reductions, whether achieved by the use of speed limiters or by the alternative measures described above, will have the same impact on fuel usage and costs. Better driver training is particularly important here because driver variability (brake use, idle time, frequent acceleration/deceleration) has twice the effect of speed on fuel efficiency. MBTC Study, p. 129. Other avenues such as more aerodynamic truck design will also lead to equal or greater improvements in fuel usage. Aerodynamics have been identified as the most important factor in fuel efficiency for vehicles traveling above 50 mph. MBTC Study, p.67, citing Cummins, Inc. brochure (2003); see also www.kenworth.com/1000_hom.asp, p.2 (between 55 and 60 mph, 50% of the fuel burned is used to overcome air resistance). Put quite simply, mandatory use of speed limiters is not required to conserve fuel, nor is it even the best means of achieving this goal.

VII Current technology can not support the proposed enforcement scheme.

OTA proposes that law enforcement personnel download speed limiter data from truck engine ECMs at scales or during routine checks with hand-held PDAs to ensure that the limiters are set at no more than 105 km/h (65 mph). Setting aside the questionable merits of redirecting limited enforcement resources away from the direct highway enforcement of speed limits to ensure the use of a particular technology for regulating vehicle speed, the enforcement scheme proposed by OTA is not realistic with today’s technology. So far as OOIDA is aware, there are no currently-available PDAs that interface with all ECMs. Nor are there currently-available PDAs that can be programmed to block out all data except for the speed limiter information. In addition, OTA has not indicated who will pay for these PDAs and possibly for additional personnel to ensure that the speed limiter test will not unduly slow down processing at truck inspection stations.

OTA also proposes fines, suspensions, and revocation of repair shop licenses for those that tamper with coded settings, and obligates manufacturers to provide information gathered on who is doing the tampering. OTA does not indicate how, in the ordinary case, the manufacturer will be able to identify the guilty party.⁴ Nor has OTA indicated who will pay for the additional personnel required to investigate and prosecute tampering cases. Implicit in the OTA’s request for a government mandate against speed limiters, however, is the assumption that the government will absorb these extra costs incurred in order to enforce the mandate.

IX. Conclusion.

Many of OTA’s member motor carriers have adopted speed-limiter technology as the method of limiting the speeds traveled by their fleets of trucks, a decision that has apparently made it more difficult to keep and recruit drivers. However, there are a number of solutions to this problem. Those carriers could switch to other methods for keeping speeds down or they could offer financial incentives to drivers that overcome driver resistance to the fleet-enforced speed limits. It is not the proper role of government to solve this business dilemma for them by forcing speed limiters down everyone else’s throat. It would be particularly wrong for the government to take such steps where, as here, the speed differential caused by the use of speed limiters only on heavy-duty trucks, to the exclusion of light vehicles who are more likely to speed, will create conditions more likely to cause accidents.

¹ Interestingly, OTA only wants the field leveled when it works in favor of its carrier members. OTA’s large carriers, who made up the Blue Ribbon Panel, would not give up their numerous economic advantages, such as volume discounts on fuel, tires, and trucks, to level the playing field with the smaller carriers and owner-operators that are members of OOIDA.

² Although OTA takes the position that removing the pressure to speed will reduce overall stress which contributes to driver fatigue, there is no empirical data correlating increased speed and fatigue. MBTC Study, p. 128. Moreover, drivers responding to a recent survey indicated that traveling with the average speed of traffic, whatever that speed happens to be, produces the least stress. Id.

³ Notwithstanding OTA’s analysis, heavy-duty trucks are not the culprits in the production of greenhouse gasses (GHG). GHG are mostly carbon dioxide, a by-product of gasoline exhaust, not diesel. However, these trucks do produce nitrous oxide, which contributes to smog.

⁴ OTA also fails to note that speed limiter settings have to be set to correspond to the tires on the vehicle and, accordingly may have to be adjusted when new tires are purchased