January 16, 2015

Background: On December 12, 2014, the Consumer Product Safety Commission received two requests from industry officials to extend the period for comments on the agency's Notice of Proposed Rulemaking (NPR) for Recreational Off-Highway Vehicles (ROVs). The requesters are the two main trade associations whose members are involved in the production and marketing of ROVs: the Recreational Off-Highway Vehicles Association (ROHVA) and the Outdoor Power Equipment Institute (OPEI). On behalf of its members, ROHVA requested a 60 day extension from the original due date for comments, February 2, 2015, to a later date, April 3, 2015. OPEI requested that the comment period be extended to August 30, 2015.

Discussion: Although I have voted to support the staff's recommendation to extend the comment period for an additional 75 days, I do so with some reluctance. My misgiving stems from the basis upon which the requests have been made. Simply put, they rest mainly upon the declared need to further analyze CPSC's injury and fatality reports in order to provide a fuller understanding of the rationale on which the staff drafted the NPR.1 Although I have no problem with further analysis of the agency's data, I maintain a high degree of skepticism that such an analysis will produce any useful evidence that would bolster the industry's understanding of the NPR or alter the staff's thoughtful approach to the draft rule.

As OPEI noted in its request for an extension, the CPSC staff has spent more than 10 years of hard work in crafting the NPR, including years of incident investigations, test procedure developments, vehicle testing and data analysis. Moreover, the agency's intention to draft a standard has been evident since its publication five years ago (November 2009) of an Advance Notice of Proposed Rulemaking (ANPR) for ROVs. And, as one of the most open and transparent federal agencies, CPSC and its work have hardly been hidden from the industry. In short, the industry has had access to an enormous amount of agency data and analysis for a very long time. Accordingly, I see little benefit to the public from an extension of the comment period for the reasons provided by these trade associations.

Instead, the primary benefit I see is to slow the process down and to provide additional time to the industry to refine its criticism of the agency's draft rule. I further assume that the industry will take this additional time to expand its effort to mobilize opposition to the draft rule and to lobby Congress for assistance in fighting the NPR. Such actions are to be expected. But, I fail to see why they should be done on the public's dime and at the risk of delaying vital safety measures.

What would truly assuage my doubts about the wisdom of an extension is a commitment from the industry to use the data we have just provided and extra time we have approved to improve and upgrade their voluntary standards. I say this particularly because one of the criticisms of our rulemaking effort is that we have not given the industry enough encouragement to develop their voluntary standards. To say the least, I disagree.

Anyone who attended the Commission's vote to approve the NPR and the Commission's public hearing on the proposed rule would have heard all of the Commissioners reiterate our strong support for the development of a voluntary standard that would effectively reduce the unacceptable injury and fatality statistics currently associated with ROVs. Our legislative mandate as well as my default policy preference is always to support conscientious and safety-oriented voluntary standards.

Although I applaud the industry's efforts to develop voluntary standards, I note that they fall well short of what CPSC staff considers a minimal level of safety with respect to ROV lateral stability, vehicle handling, and occupant protection. As is evident from the Commission's vote on the NPR, a majority of the Commissioners agrees with staff's assessment. Accordingly, if the industry is to have the agency rely on a voluntary standard, one assumes that they know they will have to upgrade the standard's requirements.

By the very name by which these vehicles are known - recreational off-highway vehicles - one recognizes that ROVs are, for the most part, fun products used during leisure time activities. Fun products should be safe, but these are not - and I doubt that most consumers truly understand the risk.2 They may see in a general sense that these vehicles have the potential to roll over, but I seriously doubt that most users genuinely understand just how unstable and dangerous ROVs can be. Regrettably, our friends in the industry refuse to acknowledge this fact. Instead, they point to user error and trail obstacles as the only causes for concern for these vehicles.

I believe that the Commission's data and analysis in the NPR strongly contradict industry's position on ROV safety. I hold out hope that, whatever industry's misgivings about the merits of the staff's approach, they will commit themselves to future collaborative efforts with the CPSC and the various stakeholders involved in the process to refine and upgrade their voluntary standard. And, I further hope that any future voluntary standards work will expand public input in the process. I have been extremely disappointed to hear about the limited opportunities for debate and discussion afforded consumers in the ROHVA standards work. It appears that ROHVA's canvass process has provided the absolute minimum opportunity for comment that would meet ANSI's standards development protocol. A more open and robust effort would be extremely welcome.


[1] In fairness, I note OPEI's additional reasons include their desire to run "round robin" tests of utility vehicles - a small, but important part of the market - produced by their members to see how they perform with CPSC's proposed requirements. This, they inform us, will be done overseas as well as in different temperatures, requiring additional time.

[2] I recognize that there are high-risk activities that fall into the "daredevil" category that consumers engage in, but I do not see ROVs as belonging in such a category. If they did, ROV owners would be highly unlikely to permit children either to drive ROVs or to ride as passengers. Yet, CPSC injury and fatality statistics show that many consumers permit their children both to operate and to ride in ROVs. To me, this demonstrates the widespread and probably mistaken - belief that ROVs are safe vehicles.