February 8, 2017

Introduction

On January 25, 2017, the U.S. Consumer Product Safety Commission (“CPSC” or “Commission”) voted 3-2 not to terminate rulemaking on recreational off-highway vehicles (“ROVs”)—one of the most dangerous products  under CPSC’s jurisdiction. It was the only reasonable result given the circumstances leading to this vote. Although Chairman Kaye voted not to terminate and Vice-Chair Buerkle voted to terminate, both subsequently issued troubling statements in which they advocated for near-term termination of rulemaking and gave industry undeserved credit for its minimal cooperation with respect to making ROVs less dangerous.[1],[2]

I write this statement both to explain the basis of my vote not to terminate rulemaking and to set forth the facts that show the ROV industry’s intransigence in refusing to take simple, inexpensive steps to design ROVs so they are more stable and, therefore, less likely to roll over.

ROV rollovers have killed and seriously injured hundreds

From 2003 through August 2016, there were 942 reported ROV-related incidents involving 665 deaths and 843 injuries, many catastrophic.[3]  In 2012, CPSC staff conducted a multidisciplinary review of 428 ROV-related incidents resulting in at least one injury or death that occurred between January 1, 2003 and December 31, 2011.[4]  The review showed that 68% of these incidents involved a rollover and 52% occurred while the vehicle was in a turn.  Moreover, of the 224 fatal incidents,  66% involved a rollover and 38%  occurred on flat terrain.

Clearly, the most dangerous hazard of ROVs is their propensity to roll over.

Why are ROVs so dangerous?

ROVs are different than ATVs which have their own safety challenges. ROVs look and feel like cars as they come with seating for two to four people, four wheels, seatbelts, doors, a steering wheel, pedals, and are capable of reaching high speeds. But if you drive them like cars, you place your life in danger by greatly increasing the likelihood of a rollover. ROVs’ center of gravity, mechanics, and steering are totally different from those of on-road vehicles resulting in them being much more prone to roll over, but there is no way for a consumer to know of this hidden hazard.  This is why improving the inherent stability of these vehicles is the most critical factor in providing consumers with some minimal protection against rollovers.

Voluntary vs. Mandatory Standard

CPSC engineers worked for many years with the Recreational Off-Highway Vehicle Association (“ROHVA”) to try to get industry to adopt a voluntary standard that sufficiently protects consumers, particularly with respect to badly-needed, technically-feasible and inexpensive improvements in vehicle stability, handling, and occupant protection. CPSC’s suggestions were based on significant research, thorough analysis of incident and testing data, and CPSC’s experience with ROV recalls and repair programs. ROHVA ignored CPSC engineers’ well-founded suggestions throughout the standard-making process and CPSC recommendations were not included in either the 2011 or 2014 voluntary standards.

In looking at the voluntary standards’ process, it is important to understand the different interests of the CPSC and the ROV industry. Industry would prefer a voluntary standard that manufacturers already meet or can easily meet, which lowers the cost of compliance. CPSC, on the other hand, is focused on safety first.

When ROHVA proposed the 2014 voluntary standard that did nothing to address CPSC safety concerns, CPSC staff proposed that the Commission do the only thing it can do to force consumer safety on an industry: promulgate a mandatory standard that included the safety measures industry had refused to incorporate in the voluntary standard. CPSC staff were confident that compliance with their proposed mandatory standard would make ROVs much safer compared to compliance with the ROHVA/ANSI voluntary standard.

On October 29, 2014, I voted with a majority of the Commission to publish the Notice of Proposed Rulemaking (“NPR”) for ROVs.  This was an important first step in addressing the unreasonable risk of injury and death posed by ROVs. After publishing the NPR, CPSC continued to dedicate significant staff time and resources meeting with industry representatives in a continuing effort to strengthen the voluntary standard to address the same hazards as the proposed mandatory standard.

Industry, however, did not show the same good faith.

The first thing industry did was produce two extremely misleading videos that were distributed widely on the internet, including on a major manufacturer’s website.  Both videos made gross misrepresentations (or, in today’s vernacular, presented “alternative facts”) about what the CPSC proposed standard would require, making it appear as though CPSC was asking for very unreasonable design changes. In a January 2015 hearing, industry representatives admitted that the videos were not based on what the proposed mandatory standard would, in fact, require.[5]

But the phony videos had the desired effect: Members of Congress and the public believed these gross misrepresentations of what was being proposed by the CPSC and the public was in an uproar accusing the CPSC of being ignorant and acting like a “nanny.”

Shortly thereafter, after heavy lobbying by industry, Congress threatened the CPSC with the ROV In-Depth Examination Act (“RIDE Act”) which would require completely unnecessary, costly and repetitive testing by a third party that would delay rule making for many years, particularly given that Congress would not provide CPSC the necessary funding. And, to my utter dismay, Congress attached a rider to CPSC’s 2016 appropriations that basically prohibited the CPSC from working on a mandatory rule for ROVs.

On June 2, 2015, ROHVA reopened the voluntary standard and some were naively optimistic that this meant that the prospect of a mandatory standard had provided a catalyst for industry to finally develop a robust and protective voluntary standard.

However, by this point, industry was free to move forward developing a voluntary standard utilizing a process that gave them complete control of the outcome and CPSC was in a Congressionally-imposed straightjacket unable to pursue mandatory rulemaking. CPSC staff, with no other options, forged ahead and continued to work closely with industry hoping to do as much as possible to protect consumers.  Industry pushed back on staff’s proposals particularly with respect to the most important safety requirement for vehicle stability. Finally, after many technical meetings with CPSC staff and letters back and forth, industry came up with a revised voluntary standard. While the new standard has more robust requirements relating to seatbelts and oversteering, it does absolutely nothing to improve ROVs’ inherent stability—the first and essential step in addressing the primary hazard of ROV rollovers.  

The 2016 ROHVA/ANSI Voluntary Standard does not protect against rollovers

CPSC engineers have consistently maintained over many years that the best test by far for stability is a dynamic test that is, by definition, performed while the ROV is moving, which is the only time that ROVs roll over! Industry, however, has consistently maintained that the only test they will require is a tilt-table test that is performed while the ROV is standing still. To meet industry’s test, an ROV must not roll over when the table is tipped to 33 degrees. Every single ROV on the market today meets this tilt-table requirement so it does nothing to require manufacturers to improve ROV stability. 

Industry’s proposed hangtag is useless

The bedrock approach to safety standards—the safety hierarchy—is that first, if possible, we must design out the hazard. Then, if we cannot do so, we should guard against it. Only as a last recourse, should we rely on warning against the hazard. The ROV voluntary standard completely inverts this hierarchy. It does nothing to design out the hazard of an ROV’s propensity to roll over. Instead the standard includes a removable hangtag with information on the tilt-table test that, it is argued, is supposed to motivate industry to design more stable ROVs. However, as was discussed during the decisional hearing, the hangtag is a farce.

CPSC staff’s thinking behind the hangtag was that, if done properly, it would operate much as the hangtag did on automobiles. Automobile hangtags drove manufacturers to design more stable vehicles, because the hangtags effectively informed consumers about a vehicle’s stability relative to other vehicles which caused consumers to buy more stable automobiles. Consumer decision making was influenced by the fact that safety considerations are a key component in how cars are marketed.

Conversely, the hangtag proposed by the ROV industry is incomprehensible to consumers. It does not contain the recommendations made by CPSC staff or the findings of a focus group study commissioned by the CPSC that would have made the tag comprehensible to consumers. It does not allow for an easy comparison between vehicles, it does not convey the real danger of rollovers, and it does not recommend that consumers compare vehicles based on stability. In fact, CPSC staff acknowledged at the recent decisional that the hangtag as designed would only be understandable to industry and technical publications.[6] Unlike with cars and SUVs, ROV manufacturers, as staff further acknowledged, do not market ROVs based on their safety attributes.[7]

Additionally, the only consumers who will ever see these hangtags are those who are actually purchasing new ROVs.  This leaves those consumers who buy them second-hand or rent them without any access to this information.  Moreover, in an industry where safety has never been a selling point, it is hard to imagine that even a well-designed, informative, and understandable hangtag would do anything to affect consumer behavior or incentivize manufacturers to design safer vehicles.

Decisional on ROV Termination

During the decisional meeting on January 25, 2017, Commissioner Adler proposed a motion to defer a decision on terminating rulemaking until industry came up with an effective hangtag and gave some assurance as to the expected levels of compliance. Chairman Kaye, in his published post-hearing statement, expressed disappointment that this motion did not receive support from the majority of the Commission.[8]

I voted against Commissioner Adler’s motion and my reasons are simple. Even if a hangtag was devised that is comprehensible to the buyer, solely relying on a hangtag to save a performance requirement that does nothing to improve stability of the ROV is inappropriate. The voluntary standard must include a meaningful dynamic test for stability in order for it to be sufficient. Indeed, all ROVs on the market already meet the tilt-table test, yet the number of deaths and injuries from ROV rollovers continue unabated. Therefore, any assurances regarding compliance with this deficient standard are meaningless.

Termination of this rulemaking is not appropriate until we have an effective voluntary standard with strong levels of compliance. If both of these requirements are met, then, under our statute, the CPSC could legally rely on the standard and, thus, enforce it.

Conclusion

In CPSC’s 2016 Operating Plan, the Commission directed staff to submit to the Commission a briefing package evaluating the revised ROV voluntary standards. Instead, on November 22, 2016, staff sent the Commission a package in which they recommended that the Commission terminate the ROV rulemaking.  I was taken aback by this recommendation.

There are many reasons to suspect that, absent an instruction from the Chair who is but one Commissioner, staff would not have independently recommended terminating rulemaking. The Operating Plan called for a simple evaluation of the voluntary standard, and did not contemplate recommendations regarding rulemaking. Additionally, terminating rulemaking is virtually unheard of absent a voluntary standard that is strong enough that the CPSC may rely on it under our statute. In this case, the ROV voluntary standard falls far short of what our staff has strongly recommended for years with respect to the need to improve the inherent stability of ROVs on the market and the proper dynamic performance test for stability. Staff’s acquiescence with the tilt-table method came days after Congress essentially forbade us from working towards finalizing rulemaking. Further, the recommendation to terminate is the least enthusiastic staff recommendation of any kind that I have seen in my time as a Commissioner.

Therefore, unlike my usual practice, in this instance, I did not defer to staff’s recommendation.

Although I agree that the current ROHVA/ANSI voluntary standard is modestly safer than the previous 2014 standard when it comes to occupant protection and vehicle handling, it is woefully deficient with respect to improving ROVs’ inherent stability. The proposed hangtag is ambiguous and does nothing to address this glaring deficiency.

I sincerely hope that I am wrong and that this standard will be effective in reducing the deaths and horrific injuries that result from ROV rollovers.  If, however, injuries and deaths continue at the same rate, one can only hope that Congress will finally allow CPSC to do its job of keeping consumers safe through mandatory rulemaking. CPSC will not be able to do so if it terminates rulemaking on its own accord.

For these reasons, I did not support terminating this rulemaking.

[1] Statement of Chairman Elliot F. Kaye on the Denial of Termination of the Rulemaking For Recreational Off-Highway Vehicles at: https://www.cpsc.gov/about-cpsc/chairman/elliot-f-kaye/statements/statement-of-chairman-elliot-f-kaye-on-the-denial-of.

[2] Statement of Commissioner Ann Marie Buerkle on the Failure to Terminate Rulemaking on Recreational Off-Highway Vehicles at: https://www.cpsc.gov/about-cpsc/commissioner/ann-marie-buerkle/statements/statement-of-commissioner-ann-marie-buerkle-2.

[3] “Evaluation of Voluntary Standards for Recreational Off-Highway Vehicles (ROVs)” Accessed January 30, 2017. https://www.cpsc.gov/s3fs-public/RecreationalOffHighwayVehiclesTerminationofRulemaking.pdf, page 4.

[4] “Safety Standard for Recreational Off-Highway Vehicles (ROVs)” Accessed January 30, 2017. https://www.cpsc.gov/s3fs-public/pdfs/blk_pdf_SafetyStandardforRecreationalOff-HighwayVehicles-ProposedRule.pdf, page 8.

[5] See CPSC Public Hearing: Presentation of Oral Comments on ROV Rulemaking on January 7, 2015 available at: https://www.cpsc.gov/Newsroom/Video/public-meeting-public-comment-on-the-proposed-npr-concerning-recreational-off-0.

[6] See Commission Meeting of January 25, 2017, on the Vote on Termination of Rulemaking on Recreational Off-Highway Vehicles at https://www.cpsc.gov/Newsroom/Video/commission-meeting-decisional-matter-recreational-off-highway-vehicles.

[7] See id.

[8] Statement of Chairman Elliot F. Kaye on the Denial of Termination of the Rulemaking For Recreational Off-Highway Vehicles.