January 27, 2017

On January 25, 2017, the Commission voted 3 - 2 to deny, at this point, termination of the rulemaking to promulgate a safety standard for recreational off-highway vehicles (ROVs).  The Commission also voted 3 - 2 to approve a motion by Commissioner Adler providing for retrospective review of the voluntary standards for ROVs at a time no later than two years after the effective date of those standards.  Another motion by Commissioner Adler, which I supported, would have deferred the vote on whether to terminate the rulemaking until industry could address two remaining items that I believe are central to the decision to terminate the rulemaking.  Unfortunately, this motion failed by a vote of 2 - 3.  Because Commissioner Adler’s second motion did not pass, I could not support terminating the rulemaking at this time without assurances regarding those two critical safety issues.

Many of us were disappointed that we do not yet have resolution.  I am disappointed that I have not seen a real willingness to find common ground at the time when it is needed most.  I commend Commissioner Adler for offering an extremely reasonable path forward as a way to enhance the standard in a manner consistent with the CPSC staff’s excellent work on this matter and their recommendation to terminate.  While Commissioner Adler’s deferral motion did not pass, I am willing to support immediately bringing this package back up for a vote if the two achievable conditions he outlined are met. 

My hope is that cooler heads will prevail — as they did in 2014 — and we can address these last items in the cooperative, collaborative and constructive spirit in which all parties have worked in the past two years.  I pledge that CPSC staff will stay engaged with the voluntary standards process, as long as there is something with which to stay engaged.  I am also very grateful for the decade-long contributions from the Consumer Federation of America, especially Rachel Weintraub, who has been a champion for safety on this issue for years.  I also know individuals from industry, especially Paul Vitrano from Polaris Industries and Erik Pritchard from the Recreational Off-Highway Vehicle Association, have put in so much time and energy to get us to where we are today.  And we are so close to the finish line. 

I admit that I am confused as to why there is suddenly so much counterproductive rigidity.  As an initial matter, industry already has the clarity and certainty it needs.  Throughout the Notice of Proposed Rulemaking (NPR) process, we heard over and over again that the rulemaking moving forward was creating design and manufacturing uncertainty that was hurting business.  They needed clarity.  They needed certainty.  They needed to know that there was just one set of standards to follow.  They have that clarity and certainty now.  The only standards they have to follow starting with model year 2018 vehicles are the voluntary standards from last year.  This vote does not change that fact. 

The mandatory standard is not moving forward at this time, and we all know it.  The failure to terminate does not mean anything more than the failure to terminate.  It obviously does not mean that the rulemaking goes forward, because, absent engaging in expensive and unnecessary testing resulting in wasteful spending of thousands of taxpayer dollars to study the feasibility of something already technically resolved, as the appropriations rider would require, moving forward is not legally permitted at this point or in the foreseeable future.  While it is understandable to want termination, to make this vote into something it is not is disingenuous and counterproductive. 

There was no reason to make a stand, claiming that the rulemaking had to be terminated this week or else.   That is just a false narrative.  We could have just as easily moved the vote or voted to provide more time not only to sort out concerns over the hang tag, but also to work together to make it more effective.  For those who would minimalize or marginalize concern over the hang tag, I would just say that it is the linchpin in the first line of defense in the standards against injury or death.  I am talking about rollover.  Even before you might need occupant protection, you need to avoid rollover.  And even before you might attempt to avoid rollover from dynamic instability resulting from a sharp turn, you need to avoid rollover from driving slowly on a sloped surface. 

The point of the hang tag is to drive consumer demand and engineering competitiveness toward more inherently stable vehicles.  Staff stated strongly that the tilt table threshold in the standards, which is industry’s preferred stability metric, alone is weak and unlikely to make any discernable safety difference.  That is why getting the hang tag right is so important.  Without an effective hangtag, the remainder of the rollover resistance part of the standard is useless since that part alone has not caused industry to design more stable vehicles.

It is also important to have some assurances regarding substantial compliance.  It is not clear why our colleagues did not support this request in Commissioner Adler’s motion either.  We are only talking about a letter from each Standards Development Organization after surveying their members.   Similar to the hang tag concerns, having a commitment on likely compliance matters to us.  So while some might be upset about the result, please do not just brush our concerns off as trivial or pretextual.  They are neither. 

There is much to commend in the standards, and I acknowledge all the work that went into them from all parties.  By knowing the mandatory rulemaking is not moving forward anytime soon, industry has the clarity and certainty they needed.  Now we need some clarity and certainty on two final components — the hang tag and compliance with the standards.  

There is still a path forward for further consideration well before the Commission composition changes.  As always, the CPSC staff and my office and I are ready to roll up our sleeves once more and work to find a path forward.  I know Commissioner Adler and his staff are as well.    

Again, I want to thank the CPSC ROV staff team for their perseverance and tenacity in working with the ROV industry to craft voluntary standards that they believe will genuinely enhance consumer safety.  This effort required highly technical engineering analyses and years of perseverance.  They have made a real difference for safety, as have those from industry who have been a vital part of this effort.  Let’s now finish the remaining work together.