[Federal Register: October 14, 2005 (Volume 70, Number 198)]
[Proposed Rules]
[Page 60031-60036]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr14oc05-17]
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CONSUMER PRODUCT SAFETY COMMISSION
16 CFR Chapter II
All Terrain Vehicles; Advance Notice of Proposed Rulemaking;
Request for Comments and Information
AGENCY: Consumer Product Safety Commission.
ACTION: Advance notice of proposed rulemaking.
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SUMMARY: The Commission is considering whether there may be
unreasonable risks of injury and death associated with some all terrain
vehicles (``ATVs''). The Commission is considering what actions, both
regulatory and non-regulatory, it could take to reduce ATV-related
deaths and injuries. As described below, the Commission has had
extensive involvement with ATVs since 1984. However, in recent years
there has been a dramatic increase in both the numbers of ATVs in use
and the numbers of ATV-related deaths and injuries. According to the
Commission's 2004 annual report of ATV deaths and injuries (the most
recent annual report issued by the Commission), on December 31, 2004,
the Commission had reports of 6,494 ATV-related deaths that have
occurred since 1982. Of these, 2,019 (31 percent of the total) were
under age 16, and 845 (13 percent of the total) were under age 12. The
2004 annual report states that in 2004 alone, an estimated 129,500
four-wheel ATV-related injuries were treated in hospital emergency
rooms nationwide. While this represents an increase in injuries in 2004
compared with 2003, the total number of four-wheel ATVs in use in the
United States has increased and the estimated risk of injury per 10,000
four-wheel ATVs in use remained essentially level over the previous
year.
This advance notice of proposed rulemaking (``ANPR'') initiates a
rulemaking proceeding under the Consumer Product Safety Act (``CPSA'')
and the Federal Hazardous Substances Act (``FHSA'').\1\ However, the
notice discusses a broad range of regulatory and non-regulatory
alternatives that could be used to reduce ATV-related deaths and
injuries. The Commission invites public comment on these alternatives
and any other approaches that could reduce ATV-related deaths and
injuries. The Commission also solicits written comments concerning the
risks of injury associated with ATVs, ways these risks could be
addressed, and the economic impacts of the various alternatives
discussed. The Commission also invites interested persons to submit an
existing standard, or a statement of intent to modify or develop a
voluntary standard, to address the risk of injury described in this
ANPR.
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\1\ Chairman Hal Stratton and Commissioners Thomas H. Moore and
Nancy A. Nord issued statements, copies of which are available from
the Commission's Office of the Secretary or from the Commission's
Web site, http://www.cpsc.gov.
DATES: Written comments and submissions in response to this ANPR must
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be received by December 13, 2005.
ADDRESSES: Comments should be e-mailed to cpsc-os@cpsc.gov. Comments
should be captioned ``ATV ANPR.'' Comments may also be mailed,
preferably in five copies, to the Office of the Secretary, Consumer
Product Safety Commission, Washington, DC 20207-0001, or delivered to
the Office of the Secretary, Consumer Product Safety Commission, Room
502, 4330 East-West Highway, Bethesda, Maryland; telephone (301) 504-
7923. Comments also may be filed by facsimile to (301) 504-0127.
FOR FURTHER INFORMATION CONTACT: Elizabeth Leland, Project Manager, ATV
Safety Review, Directorate for Economic Analysis, Consumer Product
Safety Commission, Washington, DC 20207; telephone (301) 504-7706 or e-
mail: eleland@cpsc.gov.
SUPPLEMENTARY INFORMATION:
A. Background
The Commission's involvement with ATVs is longstanding. ATVs first
appeared on the market in the early 1970's. After a marked increase in
their sales and in ATV-related incidents, the Commission became
concerned about their safety in the early 1980's. On May 31, 1985, the
Commission published an ANPR stating the Commission's safety concerns
and outlining a range of options the Commission was considering to
address ATV-related hazards. 50 FR 23139. At that time, the Commission
had reports of 161 ATV-related fatalities which had occurred between
January 1982 and April 1985, and the estimated number of emergency room
treated injuries associated with ATVs was 66,956 in 1984. The majority
of ATVs in use at that time were three-wheel models. One of the options
mentioned in the ANPR was proceeding under section 12 of the CPSA to
declare ATVs an imminently hazardous consumer product, see 15 U.S.C.
2061(b)(1). In 1987, the Commission filed such a lawsuit against the
five companies that were major ATV distributors at that time. The
lawsuit was settled by Consent Decrees filed on
[[Page 60032]]
April 28, 1988 that were effective for ten years.\2\
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\2\ The five distributors were American Honda Motor Co., Inc.,
American Suzuki Motor Corp., Polaris Industries, L.P., Yamaha Motor
Corp., USA, and Kawasaki Motors Corp., USA. In 1996, Arctic Cat,
Inc. began manufacturing ATVs and entered into an Agreement and
Action Plan with the Commission in which the company agreed to take
substantially the same actions as required under the Consent
Decrees.
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1. The Consent Decrees
The Consent Decrees included a broad range of provisions. In them,
the distributors agreed to: (1) Halt the distribution of three-wheel
ATVs, (2) attempt ``in good faith'' to devise a voluntary performance
standard satisfactory to the Commission; (3) label ATVs with four types
of warnings, the language and format of which were specified in the
Consent Decrees; (4) supplement existing owners manuals with safety
text and illustrations specified in the Consent Decrees and to prepare
new owners manuals with specified safety information; (5) provide point
of purchase safety materials meeting guidelines specified by the
Consent Decrees, including hangtags, a safety video, a safety alert for
dissemination to all purchasers stating the number of ATV deaths (to be
updated annually), a 4 foot by 4 foot safety poster for dealers to
display stating the number of ATV-associated fatalities (updated
annually); (6) offer a rider training course to ATV purchasers and
members of their immediate families at no cost; (7) run prime-time
television spots on ATV safety; (8) include safety messages in all
subsequent advertising and promotional materials and (9) conduct a
nationwide ATV safety public awareness and media campaign. The
distributors also agreed in the Consent Decrees that they would
``represent affirmatively'' that ATVs with engine sizes between 70 and
90 cc should be used only by those age 12 and older, and that ATVs with
engine sizes larger than 90 cc should be used only by those 16 and
older. Because distributors did not sell their products directly to
consumers but through dealerships (which were not parties to the
Consent Decrees), distributors agreed to ``use their best efforts to
reasonably assure'' that ATVs would ``not be purchased by or for the
use of'' anyone who did not meet the age restrictions. While the
Consent Decrees were in effect, the distributors entered into
agreements with the Commission and the Department of Justice agreeing
to monitor their dealers to determine whether they were complying with
the age recommendations and to terminate the franchises of dealers who
repeatedly failed to provide the appropriate age recommendations.
2. The Voluntary Standard
Industry had begun work on a voluntary standard before the Consent
Decrees were in place. Distributors that were parties to the Decrees
agreed to work in good faith to develop a voluntary standard that was
satisfactory to the Commission within four months of the signing of the
Consent Decrees. The five companies, working through the Specialty
Vehicle Institute of America (``SVIA''), submitted a standard for
approval as an American National Standards Institute (``ANSI'')
standard in December 1988. On January 13, 1989, the Commission
published a notice in the Federal Register concluding that the
voluntary standard was ``satisfactory'' to the Commission.\3\ 54 FR
1407. The standard, known as ANSI/SVIA 1-2001, The American National
Standard for Four Wheel All-Terrain Vehicles--Equipment, Configuration,
and Performance Requirements, was first published in 1990, and was
revised in 2001. The ANSI standard has requirements for equipment,
configuration, and performance of four-wheel ATVs. It does not contain
any provisions concerning labeling, owners manuals or other information
to be provided to the purchaser because such requirements were stated
in the Consent Decrees that were in effect when the ANSI standard was
developed. Provisions of the ANSI standard are discussed in more detail
in section D.1 below.
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\3\ In the FR notice, the Commission noted that it
``specifically reserved its rights under the consent decrees to
institute certain enforcement or rulemaking proceedings in the
future.'' 54 FR 1407.
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3. ATV Action Plans
The Consent Decrees expired in April 1998. The Commission entered
into ``Action Plans'' (also known as letters of undertaking) with seven
major ATV distributors (the five who had been parties to the Consent
Decrees, plus Arctic Cat, Inc. and Bombardier, Inc.) See 63 FR 48199
(summarizing Action Plans). Except for Bombardier's, all of the Action
Plans took effect in April 1998 at the expiration of the Consent
Decrees. (Bombardier's took effect in 1999 when the company began
selling ATVs.) The substance of the Action Plans is described in
letters of undertaking submitted by each of the companies.\4\ The
letters are not identical, but the companies agreed to take
substantially similar actions.
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\4\ These documents are available on CPSC's Web site at http://www.cpsc.gov/library/foia/foia98/fedreg/honda.pdf; http://
www.cpsc.gov/library/foia/foia98/fedreg/suzuki.pdf; http://www.cpsc.gov/library/foia/foia98/fedreg/kawasaki.pdf; http://
www.cpsc.gov/library/foia/foia98/fedreg/polaris; http://www.cpsc.gov/library/foia/foia98/fedreg/yamaha.pdf; http://
www.cpsc.gov/library/foia/foia98/fedred/arctic.pdf; and http://www.cpsc.gov/library/foia/foia99/pubcom/bobard.pdf
.
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Generally, under the Action Plans the companies agreed to continue
many of the actions the Consent Decrees had required concerning the age
recommendations, point of sale information (i.e., warning labels,
owners manuals, hang tags, safety alerts, and safety video),
advertising and promotional materials, training, and stopping
distribution of three-wheel ATVs. The companies also agreed to
implement an information/education program directed primarily at
discouraging children under 16 from operating adult-size ATVs. The
Action Plans are discussed in greater detail in section D.2 below.
4. Termination of Previous Rulemaking
As mentioned above, the Commission issued an ANPR concerning ATVs
in 1985. However, the Commission chose to pursue legal action under
section 12 to address ATV deaths and injuries rather than taking
regulatory action. In 1991, the Commission terminated the rulemaking
proceeding it had started with the 1985 ANPR. 56 FR 47166. At the time
of the rulemaking termination, the Consent Decrees were in effect, the
five ATV distributors had agreed to conduct monitoring of dealers'
compliance with the Consent Decrees' provisions, and ATV-related
injuries and deaths were declining. The termination notice stated that
the ATV-related injury rate for the general population (per ATV) had
dropped by about 50 percent between 1985 and 1989, and ATV-related
fatalities had declined from an estimated 347 in 1986 to about 258 in
1989. Id. At 47170. The Commission concluded that under the
circumstances present at that time, a rule was not reasonably necessary
to eliminate or reduce an unreasonable risk of injury associated with
ATVs.
The Commission's termination of its rulemaking proceeding was
challenged by Consumer Federation of America (``CFA'') and U.S. PIRG
arguing that withdrawing the ANPR rather than pursuing a ban on the
sale of new adult-size ATVs for use by children under 16 was arbitrary
and capricious. The court upheld the Commission's decision. Consumer
Federation Of America v. Consumer Product Safety Commission, 990 F.2d
1298 (D.C. Cir. 1993). The court noted that it was reasonable for the
Commission to determine the
[[Page 60033]]
effectiveness of the Consent Decrees and monitoring activities before
considering whether additional action would be necessary. Id. at 1306.
5. CFA's Petition and the Chairman's Memo
In August 2002, CFA and eight other groups requested that the
Commission take several actions regarding ATVs. CPSC docketed the
portion of the request that met the Commission's docketing requirements
in 16 CFR 1051.5(a). That request asked for a rule banning the sale of
adult-size four wheel ATVs for the use of children under 16 years old.
The staff prepared a briefing package analyzing the petition which was
provided to the Commission on February 2, 2005 (available on CPSC's Web
site in four parts beginning with http://www.cpsc.gov/library/foia/foia05/brief/atvpt1.pdf
). The staff concluded that, given the
Commission's lack of authority to regulate the use of ATVs and the
difficulties of enforcing a sales ban, the requested sales ban would
likely have little impact on reducing ATV-related deaths and injuries.
On June 8, 2005, Chairman Hal Stratton delivered a memorandum to
the staff asking the staff to review all ATV safety actions and make
recommendations on a number of issues. The memo directed the staff to
consider whether: (1) The current ATV voluntary standards are adequate
in light of trends in ATV-related deaths and injuries; (2) the current
ATV voluntary standards or other standards pertaining to ATVs should be
adopted as mandatory standards by the Commission; and (3) other
actions, including rulemaking, should be taken to enhance ATV safety.
The memo also identified several specific issues for the staff to
review, namely: (1) Pre-sale training/certification requirements; (2)
enhanced warning labels; (3) formal notification of safety rules by
dealers to buyers; (4) the addition of a youth ATV model appropriate
for 14-year olds; (5) written notification of child injury data at the
time of sale; (6) separate standards for vehicles designed for two
riders; and (7) performance safety standards. The memo directed the
staff to give particular attention to improving the safety of young
riders.
The Commission is issuing this ANPR as part of the review requested
by the Chairman. The staff will consider the general and specific
issues highlighted in the Chairman's memo, as well as any other
approaches that could reduce ATV-related deaths and injuries. This ANPR
is issued under the authority of the Consumer Product Safety Act
(``CPSA''), 15 U.S.C. 2051 et seq., and the Federal Hazardous
Substances Act (``FHSA''), 15 U.S.C. 1261 et seq.
B. The Product
ATVs are motorized vehicles having broad, low pressure tires and
are designed for off-road use. Originally, three-wheel ATVs
predominated. However, since the Consent Decrees, only four-wheel ATVs
have been marketed and sold in the United States (although some three-
wheel ATVs are still in use).
Sales of ATVs have increased dramatically in recent years. Between
1996 and 2003 annual sales increased each year for a cumulative
increase of about 150 percent to about 800,000 units in 2003. Annual
rates of increase in sales may be slowing, but sales during 2000-2002
were still at record levels compared to the mid-1980s when sales were
about 500,000 units annually. There also appears to be a trend toward
producing larger ATVs. The engine sizes of ATVs currently for sale
range from 40 cc to 760 cc, with at least one company planning to have
an 800 cc ATV in its 2006 product line. The 1985 ANPR stated that
typical ATVs at that time had engines between 50 cc and 250 cc. In the
mid-1990s, new entrants began developing and marketing youth ATV
models. Sales of youth models have continued to increase, and in 2002,
an estimated 80,000 youth ATVs (or about 10-12 percent of all new ATVs)
were sold.
The staff identified 32 domestic and foreign manufacturers of model
year 2003 ATVs. About half of these manufacturers have business
operations in the U.S. Some of these produce ATVs in the U.S. while
others produce ATVs abroad but have a U.S. subsidiary or affiliate that
distributes them in the U.S. The remaining 16 of the 32 manufacturers
are foreign manufacturers that export ATVs to independently owned
American importers who distribute the ATVs under the name of the
foreign manufacturer, under their own name or under the name of a
private labeler, or who deal directly with the ultimate consumer. Many
of these foreign manufacturers entered the U.S. market in the past five
years, originally selling only a youth ATV model. They are now
beginning to market and sell adult ATVs as well.
Most ATVs are sold through manufacturers' networks of dealers.
About 5000 dealers are affiliated with the major ATV distributors. ATVs
are also sold in such places as lawn and garden shops, boat and marine
product dealerships and farm equipment dealerships. ATVs, particularly
those manufactured by the newer foreign entrants, are also now sold on
various Web sites, through ``big box'' retailers, and in some instances
directly to consumers by the manufacturer.
C. The Risk of Injury
The most recent annual report of ATV deaths and injuries that the
Commission has issued is the 2004 Annual Report (issued in September
2005). According to that report, the Commission had reports of 6,494
ATV-related deaths that have occurred since 1982. Of these, 2,019 (31
percent of the total) were under 16 years of age and 845 (13 percent of
the total) were under 12 years of age. According to the 2004 Annual
Report, 569 ATV-related deaths were reported to the Commission for
2003. Deaths reported to the Commission represent a minimum count of
ATV-related deaths. To account for ATV-related deaths that are not
reported to the Commission, the staff calculates an estimated number of
ATV deaths. The most recent estimate of ATV-related deaths for 2003 is
740.
CPSC collects information on hospital emergency room treated
injuries. The estimated number of ATV-related injuries treated in
hospital emergency rooms in 2004 was 136,100. This is an increase of
about eight percent over the 2003 estimate. The estimated number of
injuries to children under 16 in 2004 was 44,700 (about 33 percent of
the total estimated injuries for 2004).
The staff also estimates the risk of injury and the risk of death
per 10,000 ATVs in use. According to the 2004 Annual Report, the
estimated risk of injury for four-wheel ATVs for 2004 was 187.9
injuries per 10,000 four-wheel ATVs in use. A recent high in the
estimated risk of injury occurred at 200.9 in 2001. The estimated risk
of death for four-wheel ATVs in 2003 was 1.1 deaths per 10,000 four-
wheel ATVs in use. In 1999, the earliest comparable year due to changes
in data collection, the estimated risk of death was 1.4 deaths per
10,000 four-wheel ATVs in use.
Based on injury and exposure studies conducted in 1997 and, most
recently, in 2001, the estimated number of ATV-related injuries treated
in hospital emergency rooms rose from 52,800 to 110,100 (a 109 percent
increase). Injuries to children under 16 rose 60 percent. During these
years, the estimated number of ATV drivers rose from 12 to 16.3 million
(a 36 percent increase); the estimated number of driving hours rose
from 1,580 to 2,360 million (a 50 percent increase); and the estimated
number of ATVs rose from 4 to 5.6 million (a 40 percent increase). The
chief finding of the 2001 Report
[[Page 60034]]
was that increases in the estimated numbers of drivers, driving hours
and vehicles did not account for all of the increase in the estimated
number of ATV injuries.
D. Current Safety Efforts
1. ANSI Standard
The ANSI voluntary standard for ATVs, ANSI/SVIA 1-2001, was first
published in 1990 and was revised in 2001. The ANSI standard defines an
ATV as a vehicle designed to travel on four low pressure tires, having
a seat designed to be straddled by the operator, having handlebars for
steering control, and intended for use by a single operator. Under the
standard, ATVs are divided into four categories: Category G for general
recreational and utility use; Category S for recreational use by
experienced operators; Category U intended primarily for utility use;
and Category Y intended for operators under 16 years old. The Category
Y is further subdivided into Y-6 for children age 6 and older and Y-12
for children age 12 and older.
General requirements cover service and parking brakes, mechanical
suspension, clutch and gearshift controls, engine and fuel cutoff
devices, throttle controls, lighting, tires, operator foot environment,
electromagnetic compatibility, and sound level limits. Vehicle
performance requirements are specified for service and parking brake
operation, and pitch stability. In addition, for youth ATVs, there are
requirements for maximum speed capability and for speed limiting
devices. ATVs in the Y-6 category must have a speed limit capability of
10 mph and a maximum unrestricted speed of 15 mph. ATVs in the Y-12
category must have speed limit capability of 15 mph and a maximum
unrestricted speed of 30 mph. The ANSI standard does not contain any
labeling requirements or other provisions concerning safety
information.
The major ATV distributors have indicated that they comply with the
voluntary standard. However, the staff has not conducted any studies to
determine the level of compliance by all ATV companies. The degree to
which all ATV companies comply with the voluntary standard's provisions
is an issue that the staff will examine as it pursues its review.
Additionally, the adequacy of the voluntary standard is an issue that
the staff will examine in the course of its review.
2. ATV Action Plans
As explained above, the ATV Action Plans are voluntary agreements
that the seven major ATV distributors have with the Commission. Through
their Action Plans, these distributors agreed to continue many of the
actions that the Consent Decrees required. Specifically, the companies
agreed to continue to (1) abide by the age recommendations in the
Consent Decrees and to monitor their dealers for compliance; \5\ (2)
use the warning labels previously approved by the Commission on all
ATVs; \6\ (3) use owners manuals that include the substantive
informational content required under the Consent Decrees; (4) use
advertising and promotional materials that conform to the advertising
guidelines in the Consent Decrees; (5) affix hang tags to their ATVs
that provide the same substantive safety messages as required under the
Consent Decrees; (6) provide to de