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Statement of Commissioner Ann Marie Buerkle on the Failure to Terminate Rulemaking on Recreational Off-Highway Vehicles

February 02, 2017

I want to thank the staff for the many, many hours they worked on developing the two voluntary standards that led to today’s vote. The industry stakeholders and trade association leaders also deserve the same credit for the countless hours and resources they spent building consensus.  These are not status quo standards—they will force pro-safety changes in design at many companies. 

I also applaud the interactive engagement between the Commission staff and the outside stakeholders.  My staff and I personally attended a number of the technical meetings.  I was impressed by the candor as well as the caliber of the exchanges.  These standards represent a technical achievement of the sort we can and should be proud of.  I would like to see more of such engagement in the coming years, and I only hope that those efforts will bear fruit like this.  This is the type of interaction that we should strive for as a regulatory agency.

This is why there is such a strong preference for voluntary standards enshrined in our CPSC statutes.  No one has a monopoly on safety “know-how.”   We work best when we work together with outside agents, each contributing to and having a stake in the final product.  Again, these standards illustrate the point and should be the model going forward.  At times throughout this process, the industry came up with alternative ways to achieve the CPSC’s objective, and the staff studied the alternative and found it perfectly acceptable.  That is cooperative problem solving at its best—the classic win-win--and I admire and appreciate the process as well as the end product.

Apart from the usual statutory preference for voluntary standards, we heard from Congress far more specifically in this case.  Congress directed us to focus on voluntary standards rather than a mandatory standard.  While it took us a while to get that message, we finally did—or so I thought.

Instead, after all the effort invested in the voluntary standards, the majority Commissioners voted against terminating the rulemaking because they can think of even more pro-safety provisions that they wish had also been incorporated in the voluntary standards.

I say the following more out of disappointment and sorrow than anger.  My colleagues have changed the rules unilaterally. Our staff recommended terminating the rulemaking because they believe the voluntary standards will adequately reduce the risks we set out to address.  No one imposed that view on them; they reached that position after mature, professional and careful consideration.  At this late stage in the process—many months after the standard was published--to insist that they should have gotten more is disgraceful. 

Today’s outcome also betrays those on the industry side who worked so hard to make this happen.  Implicit in this situation was a bargain—you agree to a tough voluntary standard, and we will terminate our rulemaking.  That understanding was practically made explicit by our Chairman in Congressional hearings.  In testimony before the House Appropriations subcommittee, he referred to the two different organizations working on voluntary standards and said he found their progress “extremely encouraging.”  He explained to the Committee that after the standards were published, our staff would make an assessment of the standards and send up a recommendation to the Commission.  He concluded: “If it happens the way it seems to be happening, I know our staff has indicated, to date, that they’ve been pleased with the direction that the voluntary standards has taken, then I would imagine that we would proceed accordingly, based on their recommendation.”  As far as I’m concerned, the majority’s vote breaks faith with that understanding and does so without proper and adequate justification.  The voluntary standards organizations, under the ANSI umbrella, kept their side of the bargain, but we reneged on ours.

One of the most troubling aspects about this outcome is the adverse effect it may have on CPSC’s efforts in the future.  It is not going to help the staff negotiate tougher standards if their assurances of adequacy carry no weight with the Commissioners.  The failure to terminate this rulemaking undermines the credibility of our Agency.

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