>> Elliot Kaye: Good morning and
welcome to this public meeting
of the United States Consumer
Product Safety Commission.
We have two decisional matters
on the agenda this morning.
The first that we will consider is the
termination, the consideration of termination
of rule making for recreational
off-highway vehicles.
After we conclude that and probably take
a short break, we'll turn to consideration
of a propose regulation amending
our fireworks regs.
We'll start with the ROV package.
And, for that discussion, the staff members
before us are Ms. Caroleene Paul who's
Mechanical Engineer in the Office of
Hazard Identification and Reduction.
And, Ms. Barb Little in the
Office of the General Counsel.
Based on the Agreement Commission, we're going
to have ten rounds, ten minutes per round
of questions as opposed to our usual five.
And so, we'll now turn to questions.
And, since I have a feeling many of my questions
will be addressed by other questioners,
I'm going to pass at this point and turn
to Commissioner Adler for questions.
>> Robert Adler: Thank you
Mr. Chairman, good morning.
So, the first line of questions I want to
ask, and I'll try to make this succinct,
has to do with the, is this not on, has to
do with hang tags because this is an area,
at least in my mind, for controversy.
And, what I've got in my hand, I don't
know if you can see it, Ms. Paul,
is the current ROHVA hang tag, you've seen this.
>> Caroleene Paul: The current drafts hang tag.
>> Robert Adler: Yes.
>> Caroleene Paul: Yeah.
>> Robert Adler: Okay.
So, one of the things that I'm trying to
figure out is what is required and what is it
that RHOVA has, its members have added?
So, the only thing that I can see that's
actually mandatory is that a number,
a metric be announced and then statements below.
And those statements, I thought
I would just read them.
Measurement of lateral stability and degrees
of a sample standard condition vehicle
with an operator and a passenger load as
measured by the manufacturer in accordance
with the tilt table lateral
stability test NC ROHVA Standard
for recreational off-highway vehicles.
Vehicle modification accessories in
loading can affect lateral stability.
Then, the other mandatory language is training
courses to teach ROV driving are available.
For information, contact
your dealer and or rohva.org.
And, finally, check with your
dealer to find out about state
or local laws regarding ROV operation.
There's no requirement in
the ROHVA standard for there
to be a comparative scale showing
different degrees of tilting.
Is that correct?
>> Caroleene Paul: That's correct.
>> Robert Adler: And, similarly,
as I look at the back
of the tag, there's a lot of language there.
That language is not required
in the ROHVA standard.
Is that language that CPSC has
expressly, explicitly blessed?
>> Caroleene Paul: It actually
is required in the standard.
And, in our comment letter to the canvas
draft, we express concerns that that was a lot
of information to put and we
were worried that the value
that we were interested in would be diluted.
And, it's in the first section
that it shall contain the contents
as listed in section 4.16.4.5.1.
And, the backside is all those warnings.
So, it is actually in the standard.
>> Robert Adler: Okay.
So that, if I were to turn to 4.16.4.5.1, it
would have this language on the back of it?
>> Caroleene Paul: It's actually listed in
A through 0, A through O on manufactures
to provider's federal warning label
that provides messages in
the following content areas.
And, this is a repeat of
information that's found elsewhere.
So the, it looks like it was, the
information area met that requirement
and then repeated again in this
hang tag but on the backside.
>> Robert Adler: So, that
you're saying the language
on the backside is language expressly
mandated in the ROHVA voluntary standard?
>> Caroleene Paul: Yes.
>> Robert Adler: Okay.
New information to me, thank you.
I guess, another question I would have, and
this really goes to my big issue with respect
to the current hang tags, back in, sorry,
I think it was March of, I'm sorry,
December of 2015, there's a paragraph in
the staff letter to Tom Yeager from ROHVA
which says CPSC staff believes that
a hang tag will allow consumers
to make conformed decisions regarding the
stability of ROV's when purchasing an ROV.
The hang tag information should
also provide a comparison
between rollover resistance
of different ROV models.
Therefore, the hang tag should be
effective at conveying information.
It must be easily understood
by a spectrum of consumers.
And, I note also that we had
hired a contractor, EurekaFacts,
is that correct, to look at various hang tags?
>> Caroleene Paul: Yes.
>> Robert Adler: And, the hang tag that
EurekaFacts came up with is the hang tag
that has the picture and it has a risk rating.
Now, as I understand it, staff then
met with the industry contractor, ASC,
and they came up with a different hang tag.
Did they convince staff that what the staff had
said in its letter of December 1st was wrong
and that we don't need a comparative rating?
>> Caroleene Paul: It wasn't so
much that ASC convinced us of that,
but actually EurekaFacts' own conclusions show
that it is very difficult
to convey that information.
And, their recommendation for and
rollover risk rating is something
that we knew we're unable to do.
I do still believe that that
information is important
and that it can be developed
with a lot more work.
And, I understand that.
And, in terms of what ASC did with
the information from EurekaFacts,
I think that they did listen to our main
concern which was that the tilt table angle
at two wheel lift is prominently displayed.
>> Robert Adler: It's prominently displayed.
But, if I'm a consumer, what does that tell me?
How can I use that information to help me make
a better purchase, I guess, is the question?
>> Caroleene Paul: That is the
question that has eluded us
in quite a few hang tags that
were tested by EurekaFacts.
And, in terms of our rational for having the
hang tag, we have said from, since the MPR days,
that, our goal is to increase lateral stability.
And we have learned from NHTSA, through
their NCAP program, that providing a metric
of stability publicly incentivizes
the manufacturers
and also assume consumer awareness
in preferring these vehicles.
So, in terms of incentivizing the
manufacturers and also consumer awareness,
I do believe this hang tag with this
very important value does achieve,
at least, half that goal.
I understand that the consumer
awareness component is lacking in terms
of having one hang tag inform
a consumer and turn them
into an informed consumer,
and it's very, very difficult.
And, actually, one of the conclusions
of the EurekaFacts report was
to provide supplemental information.
And, we do agree that that is a way to go.
I mean, consumer awareness can occur
through either looking at a hang tag
and instantly become informed, also, third party
interpretations of the value in terms of, say,
a UTV Magazine or Consumer's Report, ranking
vehicles, that's another way to learn it.
That's not on a hang tag.
And, the third is supplemental information in
terms of go to this website to learn about this
or the dealer providing that information.
And, that is one of the recommendations
that came out of the report
that we, I think is worth pursuing.
>> Robert Adler: I mean, somewhere,
excuse me, if you can't contextualize,
if there's not a comparison, then, you just
have a number that then you have to go elsewhere
to some third party source of information
to tell you what that information means.
My special assistant, Sarah, showed me,
because she came from CSPI, on nutrition facts,
just giving a nutrition number
doesn't help unless it tells you
that when you getting total fat it's telling
you out of your recommended daily allowance.
And so, that gives you a context.
But, just giving a number, seems to me, doesn't
really give you either comparison or context.
I guess, the other question I would
have is, with respect to the tilt table,
the minimum that we will permit a vehicle
to meet is the 33 degrees before
the wheels lift off the tilt table.
To your knowledge, are there any vehicles on the
market today that would flunk the 33 degrees?
>> Caroleene Paul: Of all that we tested in the
2014, 2015 models none, all of them exceed that.
>> Robert Adler: And yeah,
in fact, most of them,
if I recall correctly, were
between 36 and 40 was it?
>> Caroleene Paul: Correct.
>> Robert Adler: Okay.
Thank you.
>> Elliot Kaye: Commissioner Robinson.
>> Marietta Robinson: I have a number
of comments and questions today.
But, I really want to start by saying that
anything that I say or the questions that I ask;
I want to make it abundantly clear that, none of
this is critical of staff and what you have had
in this very difficult situation.
Your 2014 NPR on mandatory
rule is absolutely superb.
And, the time that you spent with me explaining
the engineering behind the recommendations you
were making was very clear, the
explanation was clear and the time
of the explanation was very much appreciated.
And, let me say, as only a commissioner, I
appreciate that there's much of what goes
on behind the scenes of our
agency that I am not privy to.
So, I'm left with what I do know and what
I may infer from circumstantial evidence.
And, that is what I must rely on in performing
my duties here as a commissioner today.
And, let me also add that I appreciate,
abundantly, how you as staff were put
between a rock and a hard place with respect
to ROV rule making by the straight jacket
that congress put on you in terms of
having any hand whatsoever in trying
to force industry to do the right things.
And, I greatly admire how well you worked
with the industry to, all we could do is nudge
because we were in a straight jacket And, I just
want you to know how much I appreciate that.
And, I do appreciate that there are some things
about the standard that's been proposed or,
I guess, passed for 2016 that
have been some improvement.
But, I still think that that standard
falls far short of what I believe would,
I could be comfortable with
as a commissioner relying on,
and without the reliance I cannot fathom why we
would even talk about terminating rule making.
I'm perplexed; frankly, on why we're here
today voting to terminate rule making in these,
in these particular circumstances
with ROV's which are one
of the most deadly products
under our jurisdiction.
In the fiscal year 2016 operating plan, staff
was tasked with drafting a briefing package
on the ROV Voluntary Standards
Revision Evaluation.
We were, you were not directed by the
commission to make any recommendation
with respect to termination of rule making.
And yet, here we are today with a
hearing on terminating rule making.
The evaluation of the standard, which is what
the full commission instructed you to do,
was very informative and I thank
you for the detailed analysis.
But, it's the recommendation to terminate
rule making to which I strongly object.
The recommendation is far removed of any
direction by the commission and, I believe,
very inappropriate under these circumstances.
But, I do understand, correctly or
incorrectly, that that chair directed you
to add a recommendation to
terminate rule making.
I have no idea why an instruction would come
from one commissioner, even if he is the chair.
And, I don't know if it's related
to the testimony on the hill
in February 26, as I say, I don't know.
But, anyone who takes even a cursory
look at the reg agendas over many,
many years of the commission will appreciate
that the CPSC rarely terminates
rule making and for good reason.
And, it certainly has never been even
recommended let alone done during my three
and a half years as a commissioner.
And, it particularly makes no sense
to me to take this highly unusual step
of terminated rule making with this product.
Week after week, just the sheer number of people
of all ages who are killed or seriously injured
as a result of ROV accidents is
absolutely heartbreaking and gut wrenching.
The primary cause of the deaths
and injuries is rollovers
and vehicle instability is a
classic hidden danger to consumers
which they cannot possibly be
aware as they get behind the wheel.
ROV's are very different than ATV's.
The voluntary standard our staff evaluated
was put together by an industry group
that resisted even the most basic
safety measures for many, many years.
And, before it went forward with the 2016
revision of the standard, it first made sure
that the CPSC's involvement was
severely restricted by congress
and it used the NC canvas method which
I commented about many times before.
It's the least transparent,
least collaborative effort,
and one that is the most
easily dominated by industry,
which I believe very much happened here.
And, most troublingly, as I will discuss in
more detail, the voluntary standard in question,
at best, just barely meets any adequacy
threshold, especially when it comes
to the most crucial element
of rollover resistance.
But, even if the standard was outstanding,
staff's evaluation of potential compliance
and repeated use of industry trending
toward compliance are not reassuring.
And, I just can't imagine,
under these circumstances,
why we would take the extraordinary
step of terminating rule making
with so little information
and so many lives on the line.
So, let me spend a little time
on this rollover resistance.
It's my main concern about
the voluntary standard.
It's glaring omission with respect to improving
the ROV's inherent rollover resistance.
Page 7 of the package states that, in 2012,
staff analyzed 428 reported ROV related
incidents; 68% involved rollover of the vehicle,
glad that was you and not me
Caroleene, 66% of the incident resulting
in at least 1 death involved a rollover
and 38% of those were on flat terrain.
Is it, so let me just ask, first
of all, I guess, Caroleene,
you're the one that I should say
Ms. Paul, is it correct to state
that the ROV rollover is the dominate hazard
that the voluntary standard or mandatory needs
to address in order to reduce
deaths and injuries?
>> Caroleene Paul: Yes rollover
hazard and occupant ejection, yes.
>> Marietta Robinson: Is it
also correct that the best way
to reduce rollovers is to
require stable vehicles?
Hate to state the obvious, but I want to
make sure we're on the same page on that.
>> Caroleene Paul: Could
you repeat the question?
>> Marietta Robinson: Sure.
Is it correct that the best
way to reduce rollovers is
to require more stability in the vehicles?
>> Caroleene Paul: In terms of stability,
I include vehicle handling in that, so,
in that sense, yes, in terms
of what you can address.
>> Marietta Robinson: Vehicle handling's one.
But, it's also the lateral stability.
Right?
>> Caroleene Paul: Yes.
Lateral stability, all things being equal on
level ground, a more stable vehicle's going
to be, it's going to take more to roll
that over than a less stable vehicle,
all things being equal on level ground.
>> Marietta Robinson: So let me, for a
moment I'm going to go back to our 2014 NPR
that was so wonderfully prepared.
In that NPR, with the proposed mandatory
standard, you discussed the J turn to measure AY
and that being the preferred method
for evaluating vehicle stability.
And, I confess that I'm very heavily
influenced in my opinion today
by that carefully prepared package which
was prepared before congress put us
in a straight jacket And, in that
package, you proposed the J turn test
to measure the ROV's threshold lateral
acceleration at two wheel lift or the AY.
This recommended test was, according to that
package, based in part on NHTSA's finding,
that this type of test is the most
objective and most repeatable test method
for vehicles with low rollover resistance.
It's the preferred method of measuring
vehicle stability because it's dynamic,
which we all know that ROV's are perfectly
safe if they're just standing still.
So, it's not static but it's dynamic.
And, it's a measure, and this is a quote from
your NPR, it's a direct measure of the minimum
or threshold lateral acceleration
required to initiate a rollover even
or tip up of the test vehicle when turning.
And, you also stated, in that package, that
the tilt table test is a very limited use.
The 2014 NPR also stated that, even though
the tilt table test may be quick and simple
and not require sophisticated instrumentation,
because of the long suspension travel
and soft tires of ROV's,
the tilt table test, quote,
would not accurately characterize
the dynamic lateral stability.
And, to state the obvious, when the ROV is
being driven, it's dynamic and not static.
The NPR also stated that we had found low
correlation between tilt table test and AY.
And, although I appreciate that the 2016
voluntary standard includes some improvement
in handling through a requirement
concerning under steering,
the 2014 NPR considered a potential
rule that would include only improvement
in dynamic stability such as the 2016 standard
but not lateral stability and vice versa.
And, you found that, quote, a vehicle that
meets both the dynamic stability requirement
and the under steer requirement
is safer than a vehicle
that only meets one of those requirements.
Staff also rejected reliance on the voluntary
standards in the 2014 package in part
because they used a tilt table test that
did not adequately address lateral stability
because it used a static measurement.
And, as you've told us today, Ms. Paul, in
response to Commissioner Adler's questions,
all ROV's at that point, even that prefix
Yamaha Rhinos, could pass the tilt table test.
And thus, leaving it that way
would not promote stability.
>> Elliot Kaye: Thank you Ms. Robinson.
>> Marietta Robinson: I did have some questions.
But, I'm reaching the end of my time.
>> Elliot Kaye: We'll come
back to you the next round.
>> Marietta Robinson: So,
I'll do it for my next round.
>> Elliot Kaye: Commissioner Buerkle
>> Ann Marie Buerkle: Thank you Mr. Chairman.
I'm quite frankly, don't know where to start.
I actually have no questions
for the staff per say.
I want to thank all of you since 2009, when
the ANPR was published, the incredible amount
of work that so many people in this agency
have put into this package to get us to today.
So, I want to say that at
the outset of my comments.
So, my colleague wants, is
perplexed why we're here.
And, I think the answer to
that is pretty simple.
The consensus standard was developed
by our staff along with industry.
And, staff came to us with a package that
said that standard addresses the hazard
and that there will be substantial compliance.
And so, their recommendation
to us was to terminate.
That's why we're here today, because we
listened to staff, we let a process play out,
and that's why we're sitting here
today to terminate that rule.
Now, I want to say something because
I keep hearing that congress put us
in a straight jacket I think
it's important to point
out that the standard was agreed upon
before there was approps language.
So, there was no straight jacket other
than the number of bipartisan numbers
that we received encouraging us
to work on a voluntary standard
and to not go forward with
the mandatory standard.
Now, if that's a straight jacket, that's
how the three branches of government work.
And, unfortunately, we, congress
is who funds us.
And so, when they direct us to do
something or to not to do something,
I think it behooves us as an agency.
And, I've talked about this before, that, we
heed their advice and we heed their direction,
and, I think very appropriately so,
industry along with our staff sat down.
And, this gets me to my third point.
They sat down and they went through,
not just months, but years of a process,
the voluntary standard consensus process.
And, that is not industry driven.
That is a consensus process.
And, it didn't come easily, it
didn't come after a month's work.
It came after years of work.
And, it was our staff digging in and working
hard to get what they believed, as engineers,
as scientists, would adequately
address the hazard.
And, that's why we're here today.
And so, I think, it really belittles and insults
staff to say it was an industry driven standard.
Our staff put in an incredible amount
of work and to get to the standard
that they believed adequately
addressed the hazard.
There's a lot of other things I can say
but that's, that essentially sums it up.
And, I will probably have further
comment after if there's more questions.
But again, I want to thank staff
and industry, it was a joint effort
and to get us to where we are today.
And, we're here to terminate the rule.
Thank you Mr. Chair.
>> Elliot Kaye: Mr. Mohorovic.
>> Joe Mohorovic: Thank you Mr. Chairman.
Good morning.
I wanted to get to one particular element that
Commissioner Adler brought up specifically
with regards to the hang tag a bit.
So, the hang tag was one of five
recommendations made by staff
in the original mandatory standard.
Correct?
>> Caroleene Paul: Correct.
>> Joe Mohorovic: Correct.
So, that was one of five.
Now, we all know that, by virtue of the
rule making, for a mandatory rule on ROV's,
one of those findings is the
least burdensome alternative.
So, therefore, any of our recommendations have
to show an incremental benefit or otherwise,
by definition, it would not, in fact,
be the least burdensome alternative.
Now, with regards to hang tags and supplementing
and providing for greater consumer information
to make a better informed choice on anything,
but especially with regards to health
and safety, I'm a major proponent.
So, what Commissioner Adler was talking about, I
think, not to put words in his mouth of course,
but, looking at, realistically, the extent to
which the hang tag you guys proposed does fill
that void, does help a consumer make a more
informed choice with regards to relative safety
as it relates, as it does or doesn't relate
to the performance on the tilt table.
And, I think he does make some good points,
that, in terms of the extent to which
that might be seen or that might fill that
information gap, which was at the high act,
probably one of the most conservative economists
have identified, it's been a key driver
for market failures in terms of what should
why health and safety agencies, in particular,
are justified in rule making and
often with an information gap.
And this, the hang tag, I think,
attempts to try to fill that.
But, as I looked back into our original
package, and this is why I wanted
to maybe ask why there wasn't a
demonstrable quantifiable benefit.
And, benefit meaning hey look if we have,
because you can either include
the hang tag requirement
or not include a hang tag requirement.
But, for it to pass a least burdensome
alternative test, it would have to show,
in addition to all the other four requirements,
that this will reduce additional injuries
or fatalities or reduce property damage.
Can you explain the analysis of
staff with regards to the hang tag
and why there were no quantifiable
benefits associated with it as a mandatory,
as a proposed mandatory provision?
>> Caroleene Paul: I can try.
>> Joe Mohorovic: Please.
I know it's a tough one.
>> Caroleene Paul: So, it is very complex in
terms of how we looked at addressing rollover
because the dynamics and the actual event
have many, many factors that are involved.
So, when we do it through a process of
elimination of what can we achieve short of,
you know, human behavior is a
big factor and we can't do much
about that in terms of a product standard.
So, it did come down to lateral
stability and vehicle handling.
Those we do know, from the engineering
perspective, have major impact on rollovers.
Now, those are not factors that
are noted in an injury report or,
so that was why it was not able to
be quantified, where seat belt use,
that's a binary yes, never, or unknown.
So, but, in terms from an engineering
perspective, we do know that a vehicle
that spins wildly out of control and
it's an industry accepted event to avoid
that a sliding vehicle, especially
in pseudo soil,
will form a brim and rollover and or hit a rut.
And, therefore, to avoid
rollover, you avoid that situation.
And, as I said before, all things
being equal on level ground,
a more stable vehicle is less likely
to rollover than a less stable vehicle.
So, from those engineering precepts, that
is how we came to here's what we can do
for performance requirement for a
product to address the rollover hazard
to eliminate the hazard to prevent injuries.
That is the first order of engineering.
Second would be then to guard against
the danger, in this case it would,
that guarding would probably be more of seat
belts and keeping the occupants retained
within the protective zone of the rollover cage.
So, that is why it was difficult to quantify.
But, in terms of the cost, and this is a cost
base originally on doing the J turn test.
And, doing the J turn test
gave you a starting point.
But, our goal has always been to
provide an incentive for manufacturers
to increase the rollover
stability of these vehicles.
And, that would be through a public
display of a rollover metric.
The best rollover metric is AY.
Less perfect is tilt AY angle.
But, they both achieve the same goal.
We're trying to increase
the rollover resistance.
That combined with a more stable handling
vehicle has been our opinion the best way
to address rollovers.
>> Joe Mohorovic: If there was a, and of course
their staff proposal on a hang tag had to do
with the relative performance as it, as it
dealt with AY, correct, as opposed to tilt table
because we weren't, the staff proposal
wasn't based on the tilt table.
Right? So, it was a different metric
which may or may not be a surrogate.
I think others might disagree whether
it's appropriate as a surrogate.
But, the voluntary standard as
a tilt table, we had another way
of measuring what staff attempted to address
as the same kind of performance metric, right?
>> Caroleene Paul: Correct.
>> Joe Mohorovic: Okay.
And, it's debatable whether or not they
are perfect substitutes for each other.
But, this is the kind of point that
I was getting to on the hang tag.
While I think it's a, it's a fantastic
thing to have to better inform consumers
so they can make a better informed
decision as it relates to safety,
putting elements in mandatory
rules that can't stand
up on themselves jeopardize the entire rule.
So, I think, not to talk about seat
belts with the term belts and suspenders,
we often think about well we're going to
take a belts, belts and suspenders approach.
You know, we're going to address a key here
but we're going to address pants falling
down through another means altogether
and then we'll be extra safe.
With rule making and the, especially the
least burdensome alternative requirement,
a belts and suspenders approach, if they
can't show an incremental increase in safety
to justify their cost, jeopardizes the rule.
So, why I completely agree with the staff's
suggestion of a hang tag and I can appreciate
where Commissioner Adler has been going
with evaluating the current hang tag,
I think we should keep in mind that if we're
going to let the perfection or the quality
of the hang tag as it's as it's
currently provided for in the voluntary,
in the two voluntary standards be a deal breaker
for withdrawing or terminating this rule making,
then, we have to very clear with how,
how many, how many quantifiable injuries
or lives we're going to save through
an incredibly effective hang tag.
And, I do appreciate what you mentioned in
terms of working with the, with the experts
and the experts agreeing that
this is a tough one to get to.
It'll be interesting to see whether or not
we ever have an incredibly effective hang tag
with regards to lateral stability and
whether or not it better informs consumers.
But, what I don't think, what I'm, what
I'm scared about here with this agency is
that the hang tag becomes a fig leaf, that,
in fact, the hang tag, it would be interesting
if it was in the form of a fig leaf,
to really hide the desire to not want
to terminate rule making even
when staff have suggested
that the voluntary standards are adequate,
they'll adequately reduce the risk of injury
or death and that this is
a very, very small matter.
And, for this commission to hide behind a hang
tag as a fig leaf for just in otherwise desire
to constantly write red tape, I think,
would be intellectually dishonest.
So, I really hope that if those who want to look
at a maybe imperfect hang tag will consider
the fact that even a perfect hang tag,
as opined by the staff, was not shown to
demonstrate any quantifiable benefits.
It was a good thing but still we
couldn't say a great hang tag was going
to push industry in this direction.
And, therefore, we can estimate that
there will be X amount of lives saved
or injuries prevented through
a perfect hang tag.
So, let's not let the hang tag be the fig
leaf for this particular matter today.
Thank you Mr. Chairman.
>> Elliot Kaye: We will now go
to the second round of questions.
Ms. Paul, do you or do anyone on the staff
view the hang tag as a superfluous aspect
of the standard whether the mandatory standard
that was proposed or the voluntary standard?
>> Caroleene Paul: No, I see it as the main
driver for increasing lateral stability.
>> Elliot Kaye: And, isn't lateral stability
the first line of defense, basically,
before you have to confront
a problem with an ROV?
If it doesn't, sort of where Commissioner
Robinson was, if it doesn't even start
to roll over, you don't even have to kick
in occupant protection or
any other safety mechanism.
Correct?
>> Caroleene Paul: Correct when
it's coupled with vehicle handling.
>> Elliot Kaye: So, it's not really accurate
to say it's a belt and suspenders approach.
It sounds like that that is the key aspect
of the first line of defense to make sure
that these safety mechanisms that
were agreed on actually work.
Commissioner Adler.
>> Robert Adler: Thank you Mr. Chairman.
And, I do want to go back to the package.
And, by the way, I forgot to express my
great appreciation for all the hard work
that you've done and all the many, many
hours you've spent answering my questions.
And, I really want to go
on record as saying that.
So, I'm looking at the briefing package.
And, with respect to the hang tag, I'm reading
this under CPSC's staff evaluation on page 9.
It says CPSC's staff does not believe that
a requirement for minimum tilt table angle
of 33 degrees by itself will increase
the rollover resistance of ROV's.
Where it kicks in is with the hang tag.
It says staff believes that combining
a minimum tilt table angle requirement
with a hang tag requirement that
displays the vehicle's maximum tilt table,
tilt table angle at 2 wheel lift will
increase the rollover resistance of ROV's
by providing incentive for manufactures to
increase the rollover resistance of ROV's.
So, at least, if I understand correctly, you're
saying those two inextricably intertwined
that we're, if we're going to have a
tilt table test, then, that, by itself,
is not going to provide any incentive for
manufacturers to improve the tilt table test,
but that, the hang tag, coupled with
that, we hope, will provide an incentive.
Okay. And, I do want to comment
about my colleague,
Commissioner Mohorovic's just
beautifully metaphor laden remarks
that a hang tag is not a fig leaf.
And, I can certainly accept that.
But, let me, let me directly answer the
challenge that you pose Commissioner Mohorovic.
My concerns about hang tag
I don't think are trivial
and I don't think this is a trivial concern.
And, this is something I would have to be
satisfied on before I would vote to terminate.
But, if I were satisfied, with respect to the
hang tag, I'm very likely to vote to terminate.
In other words, I do think that, as I
read the staff's very, very thoughtful
and careful analysis, with respect to the
issues of lateral stability, over steer,
and occupant protection, they're pretty
satisfied with most of those requirements.
And, I'm pretty satisfied because
the staff is pretty satisfied.
So, it may be trivial to
some, it's not trivial to me.
And, with respect to the notion of quantifying,
there's quantification and
there's quantification.
I've read a fair amount of the case
law, and, I know you, as a non-lawyer,
have read maybe as much if not more as I
have on the whole issue of warning labels.
My best recollection is I've never seen
a court say that you must demonstrate
that the specific wording
of this hang tag will result
in X reduction of injuries and fatalities.
That's asking too much of warning labels.
What they have said is give us a careful
thoughtful expert assessment of the implications
and the impact of a thing like
a hang tag or warning label.
And, that's really where I think the staff did
a great job in the original briefing package.
And, I'm still resting my position on the
staff's letter to ROHVA back in December
in which they very clearly said that you need
to affect consumers and you need to do it
by providing comparative information
in an easily readable format.
That's my position.
Thank you.
>> Elliot Kaye: Commissioner Robinson.
>> Marietta Robinson: I think it's very
important today, before I even move
to the hang tag, I think it's
important for us not to move
into the present administration's
realm of alternate facts.
Commissioner Buerkle's representation
that the 2016 voluntary standard was past
with our acquiescence before congress put us
in the straight jacket is absolutely false.
And, I want to walk through this
because I think it's important
for the issue that's before us today.
Soon after we voted on the NPR, it became
clear that congress lobbied heavily by industry
through ROHVA and OPI was going
to tie our hands with respect
to rule making if we didn't move quickly.
And, we did not.
In February 2016 Representative
Pompeo introduced the Ride Act
which would've required the CPSC to contract
for completely unnecessary and redundant tests
to evaluate things that we
have been evaluating for years.
And had been, these test had been
done exhaustively by CPSC engineers.
The only purpose of that act was to delay,
by years, any mandatory rule making.
And then, on July 23rd of 2015, the Senate
Appropriations Committee, essentially,
reported out an appropriations bill for
fiscal year 2016 which then they also did
for 2017 which, in essence,
instructed us to stop doing anything
with respect to mandatory rule making.
If that isn't a straight
jacket, I don't know what is.
And, I think it's very instructive to look
at the fact that one week before congress did
that that our staff sent a letter commenting
on the draft voluntary standard, and,
in that letter of July 7, reiterated
exactly what their position was
in 2014 briefing package which
we all understood so well.
And it's sad that the tilt table angles
are not a measure of lateral stability
because the test does nothing to account
for dynamic effects of the vehicle.
It also said that there's poor
correspondence between tilt table angle
and lateral acceleration that
generates two wheel lift.
And given, but, staff said that given industry's
insistence on using this ineffective test
at an absolute minimum they had
to go with a 35 degree requirement
and not the 33 they were proposing which
absolutely every vehicle on the market
that was killing people and
maiming people would pass.
And, we insisted on that.
But, after the appropriations
bill, on October 14 2015,
three months after congress had prohibited us
from doing anything further, then, suddenly,
our letter from staff did, and I'm
not being critical I really mean this,
we had no choice because congress wouldn't let
us do what we needed to do to protect consumers.
But, what we said was that it had to be no
less than 33 degrees even though we knew
that that was not going to be a
test that was going to, in any way,
increase stability and make
these vehicles safer.
But, we started totally focusing,
then, on the hang tag and the idea
if the hang tag is a fig leaf for anything,
it's the fact that we're not
requiring these vehicles to be safer.
And so, the hang tag is everything.
And, I understand why Ms.
Paul said that it's everything
and I understand Commissioner
Adler's focus on it.
Staff clearly put a lot of
importance on that hang tag
at that point because that's all we had.
And, the ROV's that we said that we had to have
the ROV's exhibit a higher TTA at 2 wheel lift.
We had to say that but they're generally
more stable more resistant to rollovers,
we had to say on the hang tag that the
rollovers can occur on a flat surface
if they're turned too sharply or at too high
a speed, and we had to say, on the hang tag,
the consumers should use the
stability method to compare
with other vehicles before
they make the purchase.
The proposed hang tag does
absolutely none of that.
So, now I'm going to turn to the hang tag.
Let me start with this.
The problem I have with the very idea that
the really the only thing we're doing, and,
as Ms. Paul said, this is not
even educating the consumer.
Consumer awareness we've given up on.
This is a, this is supposedly educating
an industry that has absolutely refused
to do anything to make these vehicles safer.
So, we're addressing the industry and
we're not addressing the consumer.
And, maybe that explains why they didn't do a
single one of the things that either we required
or the people who did this
study of what we need required.
But, let me start at another point.
The very fact that we are relying
on the hang tag as a primary means
of effectuating improved
rollover resistance is contrary
to everything we've done here at the CPSC.
Just two weeks ago, Chairman Kaye introduced
an amendment to our infant slings rule
and made it clear that the commission
recommends, quote, designing the hazard
out of a produce or guarding the consumer
from the hazard rather than employing warnings
because a warning's effectiveness
depends on persuading consumers
to alter their behavior to avoid the hazard.
And, I can't resist saying and we're not
even trying to effect consumer's behavior
because we know the consumers won't
even understand this hang tag.
Both Chairman Kaye and Commissioner Adler
spoke eloquently about this approach for safety
and how fundamental it is to how
we approach safety standards.
Commissioner Mohorovic spoke about how
industry should take this approach of designing
out the hazard and improving
the safety standards.
And yet, here we are considering
the extraordinary step
of terminating rule making based on the standard
that, with respect to the most severe hazard,
it purports to address completely reverses this
approach, relies on a warning, and the warning,
even if it was adequate, even if
it was comprehensive to consumers,
it doesn't travel with the vehicle.
So, all these places where you rent
ROV's, they're not going to see any tag.
Any place where there's secondhand
purchases or third hand purchases or passed
down in a family, they're not going to see that.
The warning doesn't travel with the product.
So, we're backing off of designing out
the hazard since staff acknowledges
that it does not believe a requirement of
a minimum tilt at table angle of 33 degrees
by itself will make the vehicles any safer.
Instead, the standard relies on
a hang tag informing purchasers
of ROV's of a tilt table test.
Well, that's absolutely incomprehensible.
So, this even, isn't even as good as a warning.
It's a, quote, gentle nudge,
unquote, to purchasers of new ROV's,
although we're learning today it's not
even the purchasers, it's to industry,
a gentle nudge to try and
make their ROV's safer.
And, the idea that we're no longer trying to
nudge the purchasers in a direction that would,
that would give them information is
clear for what the hang tag doesn't do.
The focus group that EurekaFacts did
asked that the hang tag, and I've got,
I've got here the one that, I've got, I
meant to pull this out for you to use,
Commissioner Adler, but you
were too fast for me.
The one that the consumers
like the best is this one.
And this is the incomprehensible
one that industry is proposing.
The focus group asked that it be
an entirely yellow background.
And, all we have on this one and
black and green, gray and green.
They asked that the pictorial of a
tipping vehicle be included in it.
And, the only picture that industry has is this
tiny little one on the back of the hang tag.
They asked for a simple heading rollover guide
which we have on this with rollover risk.
Industry's recommended tag has the
incomprehensible heading Tilt Table Test Result.
That means nothing to anybody.
The use of the focus group asked for a
use of simple easy to understand language.
And, industry, as Commissioner Adler
so ably started reading what they say,
it's absolutely incomprehensible.
It starts with measurement of
lateral stability and degrees
of a sample standard conditioned
vehicle and continues with language
that has absolutely no meaning for consumer.
And they ask use, and the focus
group asked for the use of a scale
to convey stability which this has.
And, industry's recommended tag provides
a raw number with no context whatsoever.
The proposed tag also fails to
incorporate any of the suggestions
that CPSC, that the CPSC staff recommended.
The New York Times had an
article today about the hall
of mirrors we're in with this new president.
And, it seems like this termination theory
is putting our agency in just such a hall.
It just boggles the mind that we would be
contemplating terminating rule making based
on a standard that, with respect to
the most severe hazard of rollovers,
does nothing to design out the hazard and
relies on a hang tag that, in its current form,
doesn't meet the most basic requirements
of comprehensibility to consumers.
With respect to the lateral stability, I have
to say, even with that staff's endorsement
of the voluntary standard, is tepid at best.
The staff states, unequivocally, that the
tilt table test at 33 degrees is easy to meet
and will not increase resistance
and virtually, not virtually,
all ROV's on the market will meet that test.
And, the only saving grace, the only
saving grace, according to staff,
is this hang tag that is a completely farce.
So, it's hard to fathom how the
CPSC can keep a straight face
and the commissioners can look themselves in
the mirror if we vote to terminate rule making
under these outrageous circumstances.
Thank you.
>> Elliot Kaye: Commissioner Buerkle.
>> Ann Marie Buerkle: Well,
at the risk of making this
into some political show, which
I don't, don't want to do.
I will say that President Obama signed into
law the Approps Bill in December of 2015
which put a restriction, I would
not call it, what was the word,
straight jacket was the first time.
But, all it said is if you want to
continue with mandatory rule making,
then, you have to do the study first.
So, but, it was, it was in
the past administration
where that consolidated appropriations
bill was signed into law.
So, I just wanted to, and it was in September
2015 is when the standard was agreed upon.
So, facts do matter.
And, that's part of this discussion.
Ms. Paul, I want to get back to
what, the matter at hand here.
Let's talk about hang tags for a little bit.
So, the parameters of the hang
tag is in the voluntary standard.
Will a discussion about the hang tag
cease when we terminate the rule?
>> Caroleene Paul: No, I don't believe so.
And, we're in the process of
responding to the hang tag
that we were exposed to at
a meeting in December.
And, essentially, we think
it's a good starting point.
And, we believe that more work can be done.
But, in terms of having a hang tag versus no
hang tag, I do believe this is a good start.
I just want to add that in terms of the hang
tag and what the tilt table angle is supposed
to mean, and I think there is some differences
in interpreting what I personally believe
and what I think I put forth in the NPR in
terms of, there is yes, a lot that corresponds
between the tilt table angle and the AY.
Correspondence meeting one to one,
one's a surrogate for the other.
Now, we had said back in the NPR that,
in terms of correlation, generally,
a hire tilt table angle does result
in higher stability, higher AY's.
And so, in terms of what is your goal, if my
goal is a discrete AY value that is a difference
between safe and unsafe, absolutely not, I
would not use a tilt table angle, however,
my goal has always been to increase,
to write an incentive for manufacturers
to increase the rider stability and place the
rollover resistance by whatever metric you want
to use, and in that case, because a higher tilt
table angle generally results in a higher AY.
And there's this causal relationship
here as well.
You have the lower CG or wider track
width that effects both of these values.
In terms of the Yamaha Rhino, we increase
the track width and we reduce the stiffness
in the rear that resulted in higher AY
as well as a higher tilt table angle.
And that is what informs our decision.
>> Ann Marie Buerkle: Thank you very much.
I don't have any other questions.
>> Elliot Kaye: Commissioner Mohorovic.
>> Joe Mohorovic: Thank you Mr. Chairman.
And, thank you Commissioner Adler for responding
in part to my last round of questions.
And, with regards to the suggestion
that the hang tag being a fig leaf
and you very eloquently saying
that it is not, in your case,
that you believe that the effectiveness
or you need to be significantly convinced
that the hang tag meets the
expectations and it's not a surrogate
to hide behind just continuing rule
making, I take you absolutely at your word.
I would ask you to consider
the following though.
With regards to the hazard pattern,
if this was, if this one element that,
I know we're not talking about it in the
conversation of the proposed mandatory rule,
but, as it exists in the
voluntary standard in the extent
to which we should terminate our rule making
based on the adequacy of the voluntary standard,
I think we would both admit
that, as a factor for safety,
it is dwarfed by all the other elements
that contribute to the alarming rates
of the fatalities and injuries
associated with these vehicles.
A no hang tag, although there is proper
warnings, other kind of warning labels,
talk about the elements that contribute
more directly to the hazard patterns
that we're seeing with these vehicles.
Number one, wearing one's seat belt,
although I would argue that the fact
that the voluntary standards for
say a seat belt interlock at speeds
over 15 miles per hour will adequately address
that in a, in a very paternalistic fashion
that I'm not, that I'm not in favor of.
But, the voluntary standards group decided to
put that in their standards, subject themselves
to it, so be it, so it will
be a fact in the future.
But also, the fact that people drive these
vehicles recklessly, they drive them drunk,
we don't even talk about the amount
of the injuries and fatalities
where alcohol was involved, and yet, we don't
really talk about a mandatory breathalyzer.
I wonder what that mandatory
proposal, what that would do to reduce,
in a quantifiable fashion, injuries and deaths.
But also, the fact that people ride
these vehicles on paved surfaces.
I see a friend and a collaborator in the
audience today that has done a fantastic job
to elevate the concerns that, the
same concerns that the industry have
with riders using these products
on paved surfaces.
And, alarmingly more states and
municipalities are making that legal to do so.
So, with regards to the hang tag in particular
and where it, where it really ranks and merits
with regards to what impacts safety, I
would ask you and hope that you consider
that to not terminate rule making based
on what you might see as an inadequacy
in the hang tag is relatively
a very, very small matter.
It's such a small matter that we
can't even quantify the extent
to which an adequate hang tag would increase
safety by reducing fatalities or injuries.
And that making the perfect be the enemy
of the good is a situation that, I think,
is far too prevalent in Washington.
And, I would hope that, in this situation,
we don't make the idea which, I think,
Ms. Paul even represented, that, experts
and hang tags demonstrate that it might be,
at least it was testified that it is very
difficult to get to that point of perfection.
So, I'm not even sure if it's a matter
of something that we can absolutely get
to in the end because the experts
who do this find it very challenging.
Let's not let the perfect
be the enemy of the good.
And, I appreciate our dialogue back
and forth and especially the tenor
with which you always address me.
So, thank you chairman.
>> Elliot Kaye: I'll turn it over
to Commissioner Adler in a moment
because I'm sure he'd like to respond.
I do want to note that, and I don't
want to speak for him or certainly
for Commissioner Robinson,
but, I don't think any
of us believes it's actually
trivial or small, the hang tag.
And, I don't think we view it as
taking it from the good to the perfect.
I think we view it as taking it, at least, I'll
speak for Commissioner Adler in this instance,
from the not good enough
to probably good enough.
And, that's actually an important
threshold to cross for me
and I think for Commissioner Adler as well.
Commissioner Adler.
>> Robert Adler: Thank you and you have,
excuse me, accurately represented my view.
I did also want to say I am one of those
who does not believe, I completely agree
with the notion that the perfect should not
defeat the good or be the enemy of the good.
But, this is, this is something that,
to me, is a minimal requirement.
And, I did want, in terms of quantification,
Ms. Paul I did want to ask you one question.
We have this industry hang tag.
Have we done or to your knowledge
has anybody done an assessment
of this the same way EurekaFacts did with
these kinds of hang tags or, to your knowledge,
have they done a similar kind of test?
>> Caroleene Paul: No, to my knowledge no.
And, I do want to point out that the EurekaFacts
report, the primary purpose of that report was
to evaluate the hang tag that
was designed by us in the NPR.
And, the, so there is a little
bit of a disconnect so that it is,
it was not trying to test a
tilt table angle hang tag.
So, the information we got from it is
useful but it shouldn't completely inform
and be transferred to a hang
tag with a tilt table angle.
Now, in terms of the ROHVA hang tag that's
that draft one that's been proposed,
that is something that I think should be done.
I think we should evaluate to see where you
start with in terms of consumer comprehension.
I think a good start, in terms of
making it clear that it is a test, that,
you know, it's a measurement of a test.
What little we learn from a Eureka hang tags
report is that if you put in degrees and tried
to you had people then visualizing a real live
situation which is different for everybody
and quickly became very confusing.
So, I do see glimmers of or potential that
there is a better consumer understanding
in terms of this is a number from a test.
The next step is what does that mean
and, you know, I do understand and agree
that that is a difficult next step.
But, I do think yes some type of testing,
you have to have some type of starting point.
>> Robert Adler: Well, thank you for that.
It's always a very thoughtful comment.
I guess, for the life of me, I can't imagine
how the difference between measuring an AY
and measuring a tilt table test result
would, in any way, change the basic notion
of having a scale that gives you a risk rating.
Because consumers are basically going
to say how does this compare to others
and how does this come out whether
it's minimally acceptable or better?
So that, at least, in those terms
I can't see that there's much
of a distinction between the two approaches.
But, I take you at your word and I also am
delighted to hear that staff is committed
to working further with the industry
to try to try to refine the hang tag.
I did want to also go back to a point
that Commissioner Mohorovic was making.
And, let me also note that this
voluntary standard is approved
and is scheduled to go into effect in 2018.
That's going to happen whatever we do.
The only point of leverage I
have is whether I'm going to vote
to terminate the mandatory rule making.
That is leverage that we have.
And, as far as I'm concerned,
I'm not prepared at all to vote
to terminate unless there is an adequate
hang tag which is not the be all and end all
but it's a lot more important in terms
of lateral stability which is one
of the three foundational approaches that the
staff adopted when they were drafting the NPR.
So, to me, it's extremely important and
I'm not prepared to vote to terminate
with the current hang tag before us.
>> Elliot Kaye: Commissioner Robinson.
>> Marietta Robinson: Ms. Paul, I wrote down
a couple of quotes from you when you responded
to Commissioner Adler's first questions
about the hang tag that I'd just like you
to explain to me what you meant by them.
One was that the hang tag is
meant to incentivize industry.
What did you mean by that?
>> Caroleene Paul: We base our
original desire for hang tag based
on the NHTSA's we actually met with
NHTSA and their number one recommendation
to us was put some type of hang tag out there
information out there that provides an incentive
for manufacturers to increase because
NHTSA wasn't able to do so mandatorily
and had met great resistance from
the industry on their ability
to increase the stability of their vehicles.
And then, when they came up with the NCAP
program, there was, over the next two years,
increase especially in SUV's and
trucks which had the least stability.
So, there is precedence for this
and we're not just kind of hoping.
Now, in terms of, I'm sorry
your question was [inaudible].
>> Marietta Robinson: Let me just stop you
there for a minute as long as we're pausing.
My recollection is that the reason NHTSA's
program was as successful as it was
in incentivizing industry
is because they were able
to make consumers understand
which vehicles were safer.
Is that right?
am I right?
>> Caroleene Paul: Correct.
You have IIHS insurance industries
and multiple third parties providing
that information so consumers could rate them.
Consumers, I don't think going from
car to car, but when you have a list.
>> Marietta Robinson: Right.
>> Caroleene Paul: And the manufacturers
see where they fall on that list,
I believe that was, that's a powerful
incentive to do better than your peers.
>> Marietta Robinson: The other comment that
you made was that consumer awareness is lacking
and you were referring to the hang tag.
I think.
>> Caroleene Paul: That's my personal
opinion since this has not been tested.
So, in terms of, a lot of this is my
personal, I'm an engineer, a number means a lot
to me it means a lot to a lot of people.
You know, in terms of my goals, I've always
been focused on that tilt table angle
at two wheel lift which is a, it's, you know,
a number form a test that is very easy to find.
That was my primary concern when requirement
that didn't show a pictorial had all these,
and it was one of many, many things.
So, in terms of, you know, what I find good
in this is my eyes were immediately
drawn to this number.
>> Marietta Robinson: Right.
>> Caroleene Paul: In terms of consumer
awareness, this has not been tested.
We can only infer from what
we know from past reports
that we're really testing a different type.
>> Marietta Robinson: Well, as somebody who's
had some of the best engineers in the world,
explain to me what is meant by
the language of this hang tag.
I can tell you I don't understand it.
So, I'm not sure any consumer can understand it.
And, I guess what, the piece that I'm missing
here is, I understand that if we were able
to simply communicate with consumers,
which ROV's are more stable,
there go safer before they put their family and
friends into them that that might cause them
to not purchase one that's not as safe
which might leave to incentives for industry
to start producing safer vehicles.
What I'm missing on this is we seem to
be leaving the consumer out of this.
We seem to be looking at a hang
tag that is meant for industry
without involving consumers being
knowledgeable so that they can force this.
So, I'm just missing how the hang
tag is going to incentivize industry
if it leaves the consumer out of the equation.
>> Caroleene Paul: That would depend
on what incentivizes the industry
because it would be consumer
awareness or would be a public display
of where their vehicle stats
compare to other vehicles.
>> Marietta Robinson: So it, so if
we set aside consumer awareness,
that I think we've agreed isn't going to be
there, then we're relying on industry to get
into a like macho, macho sort of
my vehicle's safer than yours?
>> Caroleene Paul: They certainly do
it with my vehicle's faster than yours.
>> Marietta Robinson: Yes they do, I know that.
But, I haven't seen that in this
industry with respect to safety.
Have you? Have you seen them advertise that
you should buy our ROV because it's safer?
>> Caroleene Paul: I have
not seen that as a marketing.
>> Marietta Robinson: I haven't either.
Thanks I have nothing further.
>> Elliot Kaye: Commissioner Buerkle.
>> Ann Marie Buerkle: Thank you Mr. Chair.
So, we've, since I've been here at the agency,
we've talked about the hierarchy of priorities
and we talk about designing out the hazard,
we talk about guarding against the hazard
and warning has always been
the last, sort of, option.
And, I feel as if this morning we've elevated
the warning up to the top of that list
and we're disregarding all of the
other performance requirements
that are in this standard.
And, I'm perplexed by that approach
because the J turn the YA rate,
the seat belt interlock those are all
key components of this, of this standard.
And I feel like they're not getting the
appropriate attention and we're focused on this,
on this hang tag which, to
me, is the warning piece
of how we will approach this
hazard and address this hazard.
And I, I will say, and to my dear colleague,
Commissioner Adler, I don't like your leverage
because leverage to me means
we need to keep something
because industry hasn't acted in good faith.
And I think the last, since
2009, and certainly since work
on this standard has started till we completed
this standard, I think that industry along
with our agency has exhibited just a tremendous
amount of effort to get us to where we are today
with a standard that adequately
addresses the hazard.
Thank you.
>> Elliot Kaye: Commissioner Mohorovic.
>> Joe Mohorovic: Nothing.
>> Elliot Kaye: Anybody have
any further questions?
Commissioner Adler.
>> Robert Adler: Sorry, not a question.
But, with respect to the notion of elevated
warnings, I actually plan to remind my colleague
when we start talking about education
campaigns as an exclusive approach to safety
that it is not the be all and end all
and I'm certainly not arguing that.
What I'm arguing is that in terms of the
requirements in the voluntary standard,
I'm pretty satisfied with
most of them, as I've said.
What I'm really dissatisfied with though to me
is not small is not irrelevant and is something
that is designed to be an action producer.
I cannot guarantee that it would do that.
I have seen that in other contexts with SUV's.
So that is why I'm so concerned about this.
But, I would never argue that a hang tag is
the be all and end all of promoting safety
because I certainly don't believe that.
And, let me also say I have not
questioned, I don't think I've even hinted
that the industry has acted
in other than good faith.
It's been a contentious relationship
from to time.
But, I do think they have acted in
complete good faith and I would say that all
of us have acted in complete good faith.
So, questioning people's motives
is really not what I'm about.
So, in case there's any doubt in your mind,
let me hasten to add I am not
questioning anybody's motives.
>> Elliot Kaye: Commissioner Robinson.
>> Marietta Robinson: I won't
make a comment about motives.
But, I certainly see the actions by
industry and I see nothing in this standard,
contrary to what Commissioner Buerkle would
have us believe that they have a J turn test
in this standard which is absolutely not true.
She listed a bunch of stuff
that's not in the standard.
That's the reason we're talking
about the hang tag
because we're not doing anything
to increase stability.
We're doing nothing to make
these vehicles safer.
So, the only thing we have is the hang tag.
And, she has been so vocal at so many
hearings about how important education is
and now we're not even going
to educate the consumer.
We're going to put out something
that might educate industry that,
presumably, knows something about ROV's.
So, I have, I disagree about that, first of
all we're not doing anything to increase safety
and secondly the hang tag's
the only thing we have.
>> Elliot Kaye: Commissioner Buerkle.
>> Ann Marie Buerkle: I don't
want to get into a tit for tat.
But, am I supposed to disregard what staff
is telling me in this package determinant?
They're going through and they are telling
us, based on a number of performance standard
in this voluntary standard that
this standard addresses the hazards
and the risks of injuries and deaths.
And so, I take their advice.
They're the engineers and the experts
and I take their advice very seriously.
>> Elliot Kaye: Commissioner
Mohorovic last comments of this round.
Having heard no further questions,
we're now going to move
to consideration of any motions or amendments.
Staff is excused from the
table if you'd like to be.
Thank you for that.
No they want to hang around for all the fun.
Does anybody have any amendments or motions?
>> Robert Adler: Mr. Chairman, I do.
>> Elliot Kaye: Commissioner
Adler, I'll recognize you.
Is it a motion or an amendment by the way?
>> Robert Adler: It's a motion.
>> Elliot Kaye: Okay.
I will recognize you for a motion.
I'll ask you to describe it and
up to three minutes and then
after the conclusion of that
I'll ask for a second.
Commissioner Adler.
>> Robert Adler: Okay.
So, before the commission, and I
believe everybody has a copy of it,
it is a motion for retrospective review.
And, very simply, I am asking for the staff to
be directed at a time of no later than two years
after the effective date of the
voluntary standard to do an assessment
and report on the two voluntary standards.
And, I have several things that I'd
like them to look at and report.
Primarily and most importantly whether the
provisions of the voluntary standards relating
to lateral stability, vehicle handling,
and occupant protection have eliminated
or adequately reduced the risk of
ROV rollover and occupant ejection.
If they're not doing that then the whole
point of terminating this proceeding is lost.
And so, I think that's a
critical thing to assess.
Then, I, as Commissioner Robinson said, we don't
really have the kind of documentation in writing
about the industry's commitment to compliance.
And, I would like to see that there be
substantial compliance documentation before
the commission.
And then, especially looking to the future,
just as when we do retrospective review
of mandatory standards, we look to see if they
need to be modified or made more stringent,
I would like to see that assessment.
And then, finally, there are some risks that
we have heard about with respect to ROV's
that are not included in the standard.
And, I would like to see the staff monitor the
general level of risks associated with ROV's
in order to see whether any additional action
from the commission would be warranted.
Now I, that's my motion and I have
some further comments in support of it.
But, that's my motion.
>> Elliot Kaye: Is there a second?
>> Second.
>> Elliot Kaye: Having heard a second,
we'll now move to consideration
of Commissioner Adler's motion and I'll speak
first then we'll come back to you at the end.
I plan to support the motion.
I think it's an excellent idea.
Regardless of how the vote to
terminate or not to terminate goes,
I do think that it's a sound
practice that we should do this
and I'm actually surprised it's taken us this
long to look to incorporate something like this
into consideration of voluntary standards.
So, I think it's an excellent
idea and I plan to support it.
Commissioner Robinson.
>> Marietta Robinson: I would like to ask you,
Commissioner Adler, if you would be willing
to add at the end of number
one, based on incident data.
With the addition of those words,
I would be happy to support this.
>> Robert Adler: With that friendly
amendment I'm delighted to accept those words.
Thank you.
>> Marietta Robinson: I will
support this thank you.
>> Elliot Kaye: Commissioner Buerkle.
>> Ann Marie Buerkle: Thank you Mr. Chairman.
I'd like to ask my colleagues, which of these
four would you think that staff isn't doing
in the ordinary course of business?
I mean, do you not think they'll be looking
to see whether there are whether the standard is
addressing the hazard, whether it is effective,
you know, whether there's
been substantial compliance?
Which aspect of this don't you think they
do in the ordinary course of business?
>> Robert Adler: Well there are a
couple of things I would say about that.
First of all trying to plum my memory about
what we've done when we have stopped action
on mandatory standards in
favor of voluntary standards.
And, I honestly don't think, my best
recollection anyway, is we haven't looked
at the voluntary standards over time the way
that we've looked at mandatory standards.
And, in this case, because this is such a
critically important and dangerous product
that I think we need to be explicit
about having staff look at it
and actually provide a written report.
I don't think we've ever gotten
a written report for our,
for a voluntary standard that we've differed to.
But, just picking up on your point also,
if it's going to happen anyway, then,
everybody should be delighted
to join in my motion.
>> Ann Marie Buerkle: Well, my concern
is that it has to do with money
and appropriations and resources.
And, it seems to me that this
would be more appropriately placed
in the OPS plan where we can plan.
Will this require the purchase of more vehicles?
Will we have the capacity to do
that and the resources to do that?
So, I think a more appropriate place to
discuss this would be in the OPS plan.
>> Elliot Kaye: And you want for
Commissioner Adler to respond?
>> Ann Marie Buerkle; Yes.
>> Robert Adler: I think that if we approve this
then that tells us that we need to look forward
to putting some language into
the OPS plan keeping in mind
that this actual assessment is not
going to be done for several years
because this voluntary standard
will not be in effect until 2018.
But, it is certainly a question of resources.
And, what you're suggesting is that to
do this would require something above
and beyond what we would normally do.
And, that's my point, we need to do something
above and beyond what we would typically do.
>> Ann Marie Buerkle: So, I would think
that that discussion certainly would be
on broader policy base is in the OPS plan.
That's all I have thank you.
>> Elliot Kaye: Commissioner Mohorovic.
>> Joe Mohorovic: Thank you Mr. Chairman.
Along the same lines of the
consideration of whether not this motion
for retrospective review is appropriate
at this particular deliberation is one
that I find curious in a sense that
it's very much an unfunded mandate.
As we look at our scarce resources, every
time we consider spending a tax payer dollar
on anything we put it in comparison to
something else that's going to go away.
So, I would ask Commissioner Alder,
I would ask my colleagues on the left
to consider how they will justify what
doesn't get done because this will get done.
There's no identification of the
resources that will be required.
And, while the idea of retrospective
review appeals to me greatly,
there's no identification of
what's not going to happen.
What have we put out?
What have we committed to congress in terms
of our performance budget
request, our operating plan?
We have midyear review coming up very,
very shortly, Commissioner Adler,
this would be a perfect and appropriate venue
to suggest this in midyear operating plan.
You won't need to do that.
You've got three votes and you can decide
what's germane in terms of a motion
and the votes majority will carry.
But, I think we would both recognize that
this is not an appropriate place to look
at a project that has financial resources.
And Chairman, as the manager and
administrator of this agency,
I wish you would consider a personal
responsibility as our chairman as part
of being the chief administrative officer
of the agency to consider that as a sense
of responsibility in terms of not
identifying where these funds will come from.
For us to be able to talk a big
game about certain elements,
I'll point out one element
that's not funded at all.
We'll talk a big game about furniture tip over,
we have not one nickel, not one taxpayer dollar
in our current fiscal year is associated with
funding an award winning anchorite campaign.
But yet, when the toddler tip over makes
national news, and that's about product that's
in the market that can't be associated with
the standard of change in a voluntary standard,
we don't mention the fact that this agency
won't spend a dollar on an anchor campaign.
That has been award winning.
And here, we're considering an unfunded mandate
for retrospective review which, I think,
as Commissioner Buerkle put it, is
part of what we regularly do anyway.
But, the irony here in suggesting formal
retrospective review in a voluntary standard,
while this commission, speaking
of our words meeting our actions,
we have a policy that suggests that we're going
to do X anti retrospective
review on performance standards.
We all voted for it.
We all talk about the fact that yes
and bipartisan former administrators
of ALIRA [assumed spelling] say
that X anti review X anti being
in a perspective rule you should embed how
you're going to measure its effectiveness.
That's essentially what Commissioner
Adler is suggesting here.
We've got a new voluntary standard,
he's suggesting that we do a review
of its effectiveness down the road.
American Bar Association suggests that
we have retrospective review built
into future rule makings.
So, we talk a big game on this, we can
agree with the American Bar Association,
the most thoughtful minds in
administrative law, but then,
in practice we have this
very rule making in ROV rule
which does not incorporate retrospective review
except you find it so compelling as a matter
of importance to the agency that, while you
would not suggest having it in the mandatory,
in the mandatory rule, you want
it applied to a voluntary rule.
And, I'll also point out that
we've got a table saw rule.
We've got so many other rules since we
passed that, since we passed that policy.
None of them have retrospective rule,
retrospective review X anti
built into the rules.
How staff are able to give us these
packages while ignoring the will
of the commission is a question that
I've raised in testimony before.
I still don't have an answer.
There's been allegations of, today, of
pressure from the chairman's office.
I find that surprising Mr. Chairman
if you have in fact instructed staff
to not include X anti retrospective review
in performance standards, you have not.
And, I take you at your word.
So, why doesn't it happen?
It's not my experience that staff ignore
the expressed will of the commission.
That's not my experience.
But, yet it's happening and it's happening
time and time again with performance elements.
So, I think, before we start applying
retrospective review to voluntary standards,
we ought to do what we said we were
going to do with our very suggestions
for future performance standards
such as ROV's or table saws
or anything else we might conceive of.
Thank you chairman.
>> Elliot Kaye: Commissioner Adler.
>> Robert Adler: Thank you very much.
A good flip answer would be that
we can take the resources we saved
by terminating and using those to do the study.
But, what we're really talking about
are resources well into the future.
And, may I also say, with
respect to this whole notion,
it has been Commissioner Mohorovic's
very thoughtful proposals on,
including retrospective review
when we do mandatory standards
that got me thinking about this.
And, I guess, I almost look at
it in a somewhat different way.
Because it's a mandatory standard and because
we have a legislative mandate in things
like the regulatory flexibility act an various
executive orders that we try to follow,
there's no question in my mind that
we will be doing retrospective review
of mandatory standards.
But, I'm certainly open to see proposals
from Commissioner Mohorovic placed
when we undertake rule making on things like
ROV's, excuse me, on things like table saws.
And, I'm delighted to see that he
will bring a budget proposal along
with those proposals for retrospective review.
I think that it is perfectly appropriate
for us, in addition to enacting this motion,
to set aside or at least to contemplate plan
for future resources for retrospective review.
So, I still haven't gotten
to my little prepared remarks
that we're having that discussion right now.
>> Elliot Kaye: Do you want to continue?
>> Robert Alder: I would
like to at least this is
about three minutes worth of stuff I wrote out.
So, I'd like to go through it.
And, as my colleagues have reminded us,
once a set of safety requirements is
in place sound public policy dictates that we
revisit the requirements to be certain that they
in fact are doing the job that we
expect them to do when we approved them.
I personally think this approach should be
applied both with respect to mandatory standards
and not every voluntary standard
but some, certainly this one.
And, I am definitely mindful of my colleague,
Commissioner Mohorovic's
proposals that we do that.
And, as I say, I think his ideas are good and
that's why I have tried to take it and expand it
in an area where I think
it's very much called for.
But, there's a boarder point, for me at
least, with respect specifically to ROV's.
we've been working publicly and diligently
to promote greater ROV safety for certainly,
officially, for the last seven
years but even before that,
dating from we first, when
we first published an ANPR.
And, we've been actively working with ROHVA
and other industry members since June 2009
to see whether we could develop a good voluntary
standard; one that adequately addressed the risk
of injury and that was substantially
complied with.
This is very, very important work and
it's occupied the high priority position
in the commission's operating plan for years.
And, as Commissioner Robinson said, at
this point, we have an appropriations rider
that bars CPSC from doing any
work on a mandatory standard.
So, our only path forward has been to
work on industry's voluntary standard.
Which, to me means, that, it
behooves us to make doubly certain
that the voluntary standard will do what
the industry has promised it will do
and what our staff, pretty
much, thinks it will do.
I think the biggest objection to my motion would
be, and Commissioner Buerkle suggested this,
that we're going to do it anyway.
And, I'm just not so sure about that.
That's why I'd like to have it explicitly
voted on and approved by the commission.
And, this is not an objection I have heard
yet but I'm waiting for it and I'm going
to anticipate it and respond,
anticipatory rebuttal.
I vehemently disagree with the notion
that the CPSC should be less involved
in monitoring a voluntary standard
because it's voluntary and not mandatory.
Boy is that a double standard.
It's something that I strongly object.
The idea that we should pay less attention
or care less about consumers at risk
from dangerous products because the products
are subject to a voluntary standard rather
than a mandatory standard, frankly,
offends my sense of justice and fair play.
We should monitor dangerous
products however they arise
in the marketplace and whoever's
regulating them.
We have a strong mandate to protect
the health and safety of the public.
The reason we rely on voluntary standards
when we do, and, I like when we do is
because we believe they'll do the job.
And, the only way to be sure that's happening is
to monitor their progress
in an effective manner.
In short, let us trust but verify.
Thank you.
>> Elliot Kaye: Also Commissioner
Adler, I agree.
Commissioner Robinson.
>> Marietta Robinson: Nothing further.
>> Elliot Kaye: Commissioner Buerkle.
>> Ann Marie Buerkle: Nothing further.
>> Elliot Kaye: Commissioner Mohorovic.
>> Joe Mohorovic: Thank you Chairman.
Commissioner Adler, the way you demonstrate
a position and were able to defend yourself
so much was something I find, reminds
me only of Woody Allen in Take the Money
and Run where he was able
to cross examine himself.
And, you kind of played that part here.
>> Robert Adler: Actually,
I think that was in Bananas.
But, I take your point and
it's a delightful one.
We're both Woody Allen fans.
>> Elliot Kaye: Having heard no further
Woody Allen references or questions
to Commissioner Adler, we'll move
to consideration of the motion
as amended by Commissioner Robinson.
Commissioner Adler, how do you vote?
>> Robert Adler: Aye.
>> Elliot Kaye: Commissioner
Robinson how do you vote?
Commissioner Buerkle.
>> Ann Marie Buerkle: No.
>> Elliot Kaye: Commissioner Mohorovic?
>> Joe Mohorovic: No.
>> Elliot Kaye: And I vote Aye,
the aye's are 3 the nays are 2.
The motion by Commissioner Adler as amended
by Commissioner Robinson has been approved.
Are there anymore amendments or motions?
>> Robert Adler: Yes Mr. Chairman.
I have a motion on hang tags,
surprisingly enough.
>> Elliot Kaye: Please explain your motion in
three minutes and then I'll ask for a second.
>> Robert Adler: Okay.
My motion is very simple, I move that the
commission defer this vote until the requirement
on hang tags in the voluntary standards
provide at a minimum a risk rating
that places the tilt table test
results in an ascending scale
from minimally acceptable rollover
resistance to better rollover resistance
in a simply easily readable format acceptable
to CPSC staff and provides a commitment,
which I think is already there, to place
hang tags on all models in the showrooms
or any other locations which ROV's
are offered for sale to the public.
And, that the voluntary standards bodies provide
written documentation that all members of each
of the standards development organization, so
PEI and ROHVA, plan to achieve and are on track
to achieve full compliance with the
requirements of the voluntary standards
and provide this not company by
company but in the aggregate forms
so we can see what percentage
of the market is likely
to be complying with the voluntary standard.
>> Elliot Kaye: Is there a second?
>> Second.
>> Elliot Kaye: Having heard a second,
we'll now move to consideration
of Commissioner Adler's second motion.
I plan to support this motion as well.
I appreciate, Commissioner Adler, that
you identified, at least for with me,
are the two missing pieces of information.
Staff did do an excellent job with the
briefing package and the recommendation.
It is very thorough.
I just felt that these are critical
aspects that will help me make a decision.
And so, I very much look
forward to supporting the motion.
Commissioner Robinson.
>> Marietta Robinson: I do not
plan to support this motion.
I take terminating rule making
very, very seriously.
And, even with a perfect hang tag, this standard
is simply not protective enough because,
as staff explained both in its 2014 package and
in this package, the tilt table test is easy
to pass and will not result in
an improvement in stability.
And, I also agree that we need
to have better data on compliance
of the standard before we
contemplate terminating rule making.
But, when the underlying standard is not
protective enough and it's easy to meet,
better compliance is simply not
enough to terminate rule making.
We'll still lack the first
condition of a standard
that efficiently reduces the risk of injury.
So, I do not intend to support this motion.
>> Elliot Kaye: Commissioner Buerkle.
>> Ann Marie Buerkle: Thank you Mr. Chair.
I, like my colleague Commissioner Robinson,
do not plan on supporting this amendment.
I oppose, or this motion, I oppose
this motion on a number of fronts.
Number one, our staff has
spent countless hours working
with the industry on these voluntary standards.
And, the staff has explicitly said they believe
the standard will adequately reduce the risk
of concern to the commission when it's
proposed in the voluntary standard.
It's not appropriate, and this is what I feel
so strongly about, it's not appropriate for us
to be moving the goalpost long after
the standards have been finalized
with our staff's considerable input.
My second objection's that
it's not a, there's just,
there's been no discussion on
the issue of the hang tags.
The voluntary standards specifically
addresses the content of the hang tag.
Our staff commissioned a study of hang tags
format contracted with an outside contractor.
The study found that many consumers were
confused by the staff's original concept
for representing rollover
resistance on the hang tags.
To their credit, our staff provided this
study to the Voluntary Standards Committee
for their consideration developing
the requirements for the hang tag.
The committee, for their part,
agreed to provide specimens
of the hang tag for our staff to review.
Only yesterday I heard from staff that
these specimens displays with regards
to the hang tag fulfilled the
requirements for the voluntary standard
and they did not have any concerns
with the hang tag as it was proposed.
Under these circumstances, I think it's
inappropriate for the commission to be continue,
to be conditioning termination of
our rule making on new requirements
that go beyond what our staff found
to be acceptable quite a while ago.
And lastly, I wish to be clear that I
don't oppose our staff continuing work
on this issue with the industry.
And, we heard from Ms. Paul this
morning that that will happen.
If it's possible to develop a better method for
displaying rollover resistance on the hang tags,
then, by all means let's do that.
Given our experience in this area, however,
it seems clear that the problem
is not an easy one to solve.
In the meantime, I strongly
reject the notion that we would,
should refuse to terminate the rule
making as our staff recommends.
>> Elliot Kaye: Commissioner Mohorovic.
>> Joe Mohorovic: Thank you Mr. Chairman.
Mr. Chairman, Commissioner Adler, I'm
glad again that we, I share your desire
to better inform consumers in a way that is
currently not foreseen in the existing designs
that we've seen with regards to a hang tag.
But, unfortunate, well I have one
question if perhaps I'd be happy to yield.
The amendment suggests that the hang tags on
all models in the showroom or any other location
in which ROV's are offered
for sale to the public.
I didn't see a carve out for new models.
And, new models, I'm thinking secondary market.
So, in showrooms, when I was in Aims over
the holidays, I went and visited a couple
of showrooms where these
products were offered for sale.
And, there were almost as many that were,
that were used vehicles offered
for sale as new vehicles.
And, how would one, how would one
comply with a hang tag for a product
that was manufactured years prior?
>> Robert Adler: Raising the initial, I haven't
really thought about the fact that there are
so many models that are used for sale
doesn't suggest to me a lot of confidence
or a lot of support for consumers.
But, I think this addresses those
that are supposed to be complying
with the industry voluntary standard.
So, I'm not, I'm certainly not suggesting that
this would apply to used models but new models.
>> Joe Mohorovic: Okay.
Probably, by virtue of this standard, I know
I have it in front of me but I'll never get
to that place, we'll suggest to
what product the standard applies
and therefore secondary market vehicles will
not be expected to have that type of a hang tag?
>> In terms of providing legislative
history, I'm delighted to say
that I think it should apply only to new models.
And, since I know everybody scours
commission meetings for legislative history,
I think this will be indelibly
inscribed in our minds.
Thank you Chairman.
>> Elliot Kaye: Commissioner Adler.
>> Robert Adler: We've actually
debated this, so, I don't really feel
that it's useful to go through
old terrain again.
But, with respect to the actual efficacy of the
voluntary standard hang tag, this is something,
as Ms. Paul said, we've never studied we've
never done no evaluation of in contrast
to the extraordinarily good work I thought
that EurikaFacts did and they actually came
up with a hang tag that could
easily be modified,
as far as I'm concerned, to meet my concerns.
And, until my concerns are met, I'm
sorry, I do think this is critical enough
so that I'm unwilling to support termination of
the mandatory standard that we're working on.
>> Elliot Kaye: Does anyone else wish to
be heard on Commissioner Adler's motion?
Having heard no further questions or
comments, we'll now move to consideration.
Commissioner Adler, how do you vote?
>> Robert Adler: Aye.
>> Elliot Kaye: Commissioner Robinson.
>> Marietta Robinson: no.
>> Elliot Kaye: Commissioner Buerkle.
>> Ann Marie Buerkle: No.
>> Elliot Kaye: Commissioner Mohorovic.
>> Joe Mohorovic: No.
>> Elliot Kaye: I vote aye.
The aye's are 2 the nays are 3.
The motion by Commissioner Adler is not adopted.
Are there any further motion or amendments?
>> I.
>> I have a motion.
After you.
>> Elliot Kaye: Commissioner Robinson.
>> Marietta Robinson: Which order do we go in?
>> Elliot Kaye: We'll go with you
first then Commissioner Mohorovic.
>> Marietta Robinson: Okay.
I, and I apologize because I don't have this
in, printed out, but, it is actually sort
of an amalgamation of Commissioner Adler's two
motions because now that the first one passed
and we will have this retrospective
review at a time no later than two years
after the effective dates of
the standards based on data.
And, let me just add, I don't often say this
but I really, really hope that I'm wrong
and that this standard will
indeed make vehicles safer
and that we'll see deaths and injuries go down.
And, if, after that review, the commission is
able to find that the standard is sufficient
that we may rely on it under section 9, then
I will move that we indeed delay the vote
on termination to see if, after this review, the
standard is such that we are comfortable relying
on it both because it protects consumers
and because there's sufficient compliance.
And, if so, at that time terminate rule making.
>> Elliot Kaye: Is there a second
for Commissioner Robinson's motion
to defer pending the results
of the retrospective review.
>> Yes I second.
>> Elliot Kaye: Having heard a second,
we'll now turn to consideration.
Commissioner Adler.
>> Robert Adler: Well, I certainly appreciate,
Commissioner Robinson, your thought.
This does violate the protocol that the
commission has had that if you have a motion
or amendment that you circulate it at
least 24 hours before the commission votes.
So, that makes me extremely reluctant to
support something that I think I understand
but I'm not entirely clear that I understand.
And so, I think also, that, this
is more dismissive of the caliber
of the voluntary standard
that I'm prepared to suggest.
So, for those reasons, I'm very
reluctant to support the motion.
But, I certainly appreciate the
good faith in which it's offered.
>> Elliot Kaye: Commissioner Buerkle.
>> Ann Marie Buerkle: Thank you Mr. Chair.
I do want to conquer with Commissioner
Adler that this does violate,
we call it the Robinson rule, getting the
amendment out by one o'clock the day before.
>> First time in three and a half years.
>> Ann Marie Buerkle: Yes it is.
I do want to just, I will not be supporting
this amendment for a number of reasons.
But, primarily, I think, what we are seeing here
is, and I said it and I'll continue to say it,
moving the goalpost after we've established
the rules, and too far into the game.
Actually, the game is over.
The voluntary standards has been completed
and staff has said to us that it's adequate.
And so, now, to make all of these, make
turning the rule conditional on all
of these different commissions
I'm adamantly opposed to it.
>> Elliot Kaye: Mr. Mohorovic.
>> Joe Mohorovic.
Thank you Mr. Chairman.
Mr. Chairman, Commissioner Robinson,
I'm thinking about the effect
of your proposed motion here.
The way I read Commissioner
Adler's motion here is
that the retrospective review
wouldn't commence wouldn't start,
is that right, until two years after?
>> Robert Adler: We would have to
be completed no later than two years
after the effective date
of the voluntary standard.
>> Joe Mohorovic: Is there an idea of
given an activity of that side how soon
or how early staff would have to begin?
Because, I'm wondering, it's been
said that we want to focus on the data
to determine the effectiveness of the
standard and I'm finding the bandwidth
between when the standard goes into place
and when we begin a retrospective
review to be very small.
So, how would we be doing anything except
reviewing the previous environment prior
to the new standard going into the play?
>> Well, if I might just comment on that, in
fact, what we've heard from the industry is
that even now they are starting to
implement the voluntary standard.
So, there may well be substantial
compliance before the 2018 effective date.
So, I think we certainly need
to give them credit for that.
But, that is the sort of thing
that we can't decide now.
What we're going to have to do is
have consultation with our staff
and get a better sense of the
implementation of the voluntary standard.
>> May I ask a question.
>> Sure everybody else can answer.
I was asking questions of Commissioner Robinson
but you guys can jump in whenever you want.
>> Just a point of clarification that
my understanding form industry is
that there's not an effective
date in calendar year of 2018,
that it is effective upon the issuance of model
year 18 vehicles which will begin as early
as this July and depending on
manufacturer, well through into the fall.
So, in terms of vehicles being online that are
intending to be compliant with the standard,
it will be no later, I will imagine,
than this winter if that helps.
>> Right. But, as a matter of practical
purposes, all I'm bringing up is
that the products have to come
in line, they have to be used,
you have to have a significant
amount of time in the environment
to be able to evaluate its effectiveness.
And, I think it's a, that's why in most
situations a retrospective review are usually
in a five year time frame to
give an opportunity for data one
that I think our fine statisticians would
be more confident in providing some analysis
and recommendations on the short
comings or the effectiveness.
Two years, and even beginning in advance
of two years, saying it doesn't need to be,
it needs to be completed before two
years is a very short bandwidth.
I don't know how many live rounds, if you will,
that staff will be able to
evaluate the efficacy.
>> Robert Adler: If I might, you may be right,
in which case, and this is one of the things
that I think we all love and respect and admire
our staff so much for, staff is not reluctant
to come in and say can't tell you just yet.
And so, that might be a useful thing.
But, if they could tell us then
I think the earlier the better.
>> Of course, Commissioner Adler, I'd be happy
to yield my time to you to answer that question.
Thank you Mr. Chairman.
>> Elliot Kaye: I do not plan to
support Commissioner Robinson's motion.
I'm not troubled by the fact
that you just offered it.
I have no problem with that.
I think we're all, we can all
handle something on the fly.
My issue, and it's not a strong one, is that I
believe that the voluntary standard is closer
to being potentially effective
than Commissioner Robinson might.
And I do, I would hope that industry
would see through the remaining issues
that Commissioner Adler has identified, because
I do think that those are missing links.
But I do appreciate Commissioner
Robinson offering it.
Commissioner Robinson.
>> Marietta Robinson: But only say that,
as I said, I hope you're absolutely right.
I hope this is a great standard.
And if, indeed, it is, and it
makes these great vehicles safer,
that's why my proposal was we evaluate it
under section 9 to see if we may rely on it.
And then terminate rule making if so, because
I'm just not comfortable terminating rule making
when we don't have a standard
on which we could rely.
>> Elliot Kaye: Does anybody else wish to
be heard on Commissioner Robinson's motion?
Having heard no further consider,
or no further comments
or questions, we'll now turn to consideration.
Commissioner Adler, how do you vote?
>> Robert Adler: No.
>> Elliot Kaye: Commissioner Robinson?
>> Marietta Robinson: Yes.
>> Elliot Kaye: Commissioner Buerkle?
>> Ann Marie Buerkle: No.
>> Elliot Kaye: Commissioner Mohorovic?
>> Joe Mohorovic: No.
>> Elliot Kaye: And I vote no.
The yea's is 1, the nay's are 4, the motion by
Commissioner Robinson has not been agreed to.
Are there any additional motions or amendments?
>> Joe Mohorovic: I have a motion, Mr. Chairman.
>> Elliot Key: Commissioner Mohorovic, you
can have 3 minutes to describe it, please.
>> Joe Mohorovic: Certainly.
And, again, I apologize to my colleagues for
making a motion to terminate rule making.
Although I don't think it'll come as
to any surprise to our colleagues here.
We've been considering the
staff's recommendation
to terminate rule making for some time.
We've had lots of votes here today,
except on the big motion before us
that the public has been expecting for
quite some time to terminate rule making.
There's been a lot of Congressional testimony
suggesting that if a staff comes to a point
in time that they can be confident
in the voluntary standards
such that rule making is no longer
warranted, then we should hit that point.
And however we got here, I know there is some
testimony this morning, or earlier in the day,
in how or what drove the staff's recommendation.
We do have it before us, so I hope my
colleagues will appreciate, just for the record,
as many are paying attention
to the record on this matter,
that we should have a vote
to terminate rule making.
>> Elliot Kaye: I'm just asking for the
point of clarification, how is that different
from the underlying vote that's before us?
>> Joe Mohorovic: Do you plan
on having the underlying vote?
I thought that that.
>> Elliot Kaye: Yes.
Yes. That's why we're here.
>> Joe Mohorovic: Yeah, okay.
I just wanted to make sure.
>> Elliot Kaye: Want to recall your motion?
>> Joe Mohorovic: I wanted to
make sure we weren't going to go
through without having the actual final vote.
>> Elliot Kaye: We will.
>> Joe Mohorovic: Okay.
>> Elliot Kaye: Do you want
to withdraw your motion?
>> Joe Mohorovic: I'll withdraw the motion.
>> Elliot Kaye: Okay.
Thank you.
Are there any further motions or amendments?
Having heard no further motions or
amendments, we'll now turn to the exact vote
that Commissioner Mohorovic
was trying to have us vote on.
Does anyone else wish to be
heard before we take the vote
on the underlying question of termination?
Commissioner Adler?
>> Robert Adler: I think I've
made my perspective fairly clear.
I do not plan to support the
motion of terminating just now,
but I did want to say that
I think we're quite close.
I think the industry voluntary standard,
in many respects, is quite good.
And I appreciate all the work
and the effort that they've put
into developing the voluntary standard.
I appreciate their willingness
to cooperate with staff
and I appreciate staff's
willingness to cooperate with them.
I think we're close, but we're not
there just yes, so I plan to vote no.
>> Elliot Kaye: Commissioner Robinson?
Commissioner Buerkle?
>> Ann Marie Buerkle: Nothing further.
>> Elliot Kaye: Commissioner Mohorovic?
Having heard no further comments on
the underlying vote, I'll now call,
this is on the vote to terminate.
Commissioner Adler, how do you vote?
>> Robert Adler: No.
>> Elliot Kaye: Commissioner Robinson?
>> Marietta Robinson: No.
>> Elliot Kaye: Commissioner Buerkle?
>> Ann Marie Buerkle: Yes.
>> Elliot Kaye: Commissioner Mohorovic?
>> Joe Mohorovic: Yes.
>> Elliot Kaye: And I vote no.
The yea's are 2, the nay's are 3, the
motion to terminate has not been agreed to.
We'll not turn to closing statements.
We'll have up to 10 minutes
for those, and I will go first.
Well, perhaps the only thing
that we can agree on today is
that this process might have left
many of us a little bit displeased.
I had had a fuller statement prepared today,
in case we had reached a different conclusion,
but I'm not going to read that
now, I'm going to hold that off,
but hope that that will be
applicable down the road.
But I will say, though, that I'm disappointed
that I have not seen enough of the willingness,
all around, to find more common ground at
this last bit when it's needed the most.
I commend Commissioner Adler for offering an
extremely reasonable path forward as a way
to enhance the standard further
and button up this process.
And even though his motion did not pass,
I am willing to support immediately
bringing this back up for a vote
if the two achievable conditions
that he laid out are met.
My hope is that cooler heads will once
again prevail, as the did in 2014,
and we can address these last items
in the cooperative, collaborative
and constructive spirit in which they worked,
and everybody has worked, in the past 2 years.
For the remainder of the time that I serve in
my current position, I pledge that CPSE staff,
who really has just done an absolutely
outstanding amount of work on this,
will stay engaged with the
voluntary standards process,
as long as there is something
with which to stay engaged.
We've had really strong support
from very different
and numerous aspects of the
stakeholder community.
I want to particularly point out
the efforts through all these years
from the Consumer Federation of America,
particularly by Miss Rachel Weintraub,
who really has carried the
water for consumer safety
for probably about a decade on this issue.
We're close.
We're getting there.
I also do want to acknowledge the industry
personnel, specifically Mr. Paul Vitrano,
from Polaris, and Mr. Erik Pritchard
from SDIA, who have put in a ton of time
and energy to get us to where we are today.
And we are so close, in my
mind, to the finish line.
I am confused as to why there is suddenly
so much counterproductive
rigidity at this last moment.
As an initial matter, industry already has
the clarity and the certainty that it needs.
Throughout the NPR process, we heard over and
over again that the rule making moving forward,
and I mean the mandatory rule
making, was creating design
and manufacturing uncertainty
that was harming business.
Business needed clarity.
Industry needed certainty.
They needed to know that there was
just one set of standards to follow.
Well, they have that clarity and
they have that certainty now.
The only standards they have to follow,
starting with model year 2018 vehicles,
are the voluntary standards from last year.
And I'm saying it in the plural
because there's an OPI standard
and then there's a ROVA standard.
Today's vote does not change that fact,
and it never would have either way.
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 rule making
goes forward, because absent engaging
in completely wasteful spending by pouring
hundreds of thousands of taxpayer dollars
to study the feasibility of something
already technically resolved,
as the bizarre appropriations
writer would require,
moving forward is not legally
permitted at this point.
It is also unlikely to be legally
permitting in the foreseeable future.
While it is understandable to strongly
want termination, to make today's vote
into something it is not, is not productive.
There was also no need to dig in
and resist moving the vote to try
to accommodate Commissioner Adler's requests.
I do no believe that that is leadership, and
I do not believe that that is collaboration.
That is no, in my mind, keeping the big picture
in mind in terms of how far we have come
and how close, indeed, that we are.
There really was no reason to make today some
kind of stand, claiming that today is the day
that rule making has to be terminated or else.
I just do not accept that narrative.
We could have easily just have moved the
vote, could have just as easily moved the vote
or voted to provide more time, not only to
sort out our concerns with the hang tag,
but also to work together
to make it more effective.
For those who would minimalize and marginalize
concern over the hang tag, I would just say,
as been proven by staff's testimony today, that
it is the lynch pin in the first line of defense
in the standards against injury or death.
I'm talking about rollover.
Even before you might need occupant
protection, even before you might need
to avoid dynamic instability,
you need to avoid rollover.
And rollover can occur from something as simple
as riding on sloped surfaces at low speeds.
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 and the standards alone is weak
and unlikely to make any
discernible safety difference.
That is why getting the hang
tag right is so important.
It is also important to have some
assurances regarding substantial compliance.
It is not clear why our colleagues
did not support this request, either.
We are only talking about a letter
from each standards development
organization after they survey 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
today, please do not just brush off our concerns
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 the parties.
By knowing that mandatory rule making
is not moving forward any time soon,
industry has the clarity and the
certainty they asked for and needed.
Now we need some clarity and certainty
on two final components, the hang tag
and compliance with the standard.
There is still a path forward for further
consideration well before the commission
composition changes.
As always, the CPSE staff and my office are
ready to roll up our sleeves and engage,
and I think I can say the same of
Commissioner Adler and his staff.
I hope others will join us as well.
Commissioner Adler.
>> Robert Adler: Thank you,
very much, Mr. Chairman.
Just to make the meeting shorter, I simply
want to associated myself with your remarks,
stated much more articulately and
eloquently than I could possibly have done.
So I have just a very brief statement.
First, again, I want to thank staff
for their always excellent work
on preparing briefing packages,
and this one in particular.
This is a very challenging issue,
and it's been a very challenging vote
for me, and I've thought about it a lot.
After a rocky start, I believe the CPSE staff
and the ROV industry have
worked together effectively
and cooperatively to promote ROV safety.
Each side has listened to the other
and both have shown a willingness
to consider new approaches to safety.
I'm particularly impressed with the industry's
willingness to address staff concerns
about over steer risks, and staff's
openness to industry's proposal
to develop a yaw-rate ration test to address
the agency's concern about this risk.
Staff has tested industry's
requirements and seems satisfied
that they will adequately reduce the risk
of divergent instability from over steer.
I'm also satisfied that the agency's concerns
about occupant protection have been adequately,
albeit not perfectly, not perfectly,
addressed through the adoption
of a carefully designed interlock system
that will permit vehicles to operate
up to 15 miles per hour if the
driver's seat belt is not fastened.
The voluntary standards requirement is less
than the one proposed by CPSE and it's NPR,
which would have required all
front seat belts to be fastened.
Nonetheless, on the theory that the
driver is the captain of the ship,
I suspect that most occupants will fasten
their seat belts once the driver has done so.
Moreover, I believe it important for the agency
to show the same flexibility toward the industry
that we've called on them to show in the
development of their voluntary standards.
So the one area that I have, and continue to,
remain skeptical about is the requirements
in the voluntary standard for lateral
stability in so far as it pertains
to the inadequacy of the hang tags.
So I, once again, call on our colleagues in
the industry to reconsider their position
with respect to hang tags, and
also to provide some assurance,
which should not take very much work,
to demonstrate that there will be
substantial compliance with the standard.
Thank you.
>> Elliot Kaye: Commissioner Robinson.
>> Marietta Robinson: Over the past 3 1/2 years
I've received regular reports of the hundreds
of death and serious injuries caused by ROV's.
I am not going through, to go through
the statistics again, as I did earlier,
but suffice it to say that a large
percentage of these serious injuries
and deaths result from ROV's rolling over.
ROV's, as they're currently
designed, are unreasonable dangerous.
And their biggest danger is
their propensity to roll over.
For years, CPSE engineers and representatives of
the Recreational Off-Highway Vehicle Association
and it's members has ongoing
communications concerning proper safety
and testing standards for ROV's.
ROVA developed a standard in 2011 and
again in 2014, the standard was developed
through the canvasing method that I so oppose.
And because of the canvasing process,
which is not one in which consumer groups
and the CPSE are given any
control whatsoever, industry leads
and heavily dominates the process.
As part of the process, however, the CPSE
engineers informed ROVA repeatedly that based
on CPSE testing and their very careful analysis
of accident data, they did not believe either
of the ROVA [inaudible] voluntary
standards in 2011 and in 14 went far enough
to make ROV's safer for consumers,
particularly with respect to, at that time,
they told them vehicle stability,
handling and occupant protection.
And further, they have informed them
repeatedly that based on CPSE's experience
with the Yamaha Rhino repair program,
that the changes that would be required
to meet safety requirements that
could save lives were relatively easy
and inexpensive to make.
In December of 2014, as I've said so often
in encouraging my fellow commissioners
to go do the same, I actually went to
our lab and road off road in an ROV.
And while the experience was exciting and fun,
you certainly quickly appreciated why these
ROV's are such an inherently dangerous product.
They look like cars, they feel like
car and people drive them like cars,
but they're completely different.
The center of gravity, mechanics
are completely different.
And, as a result, if you drive an ROV the way
you do a car, there's no way for the consumer
to know of the latent hazard of
it being more likely to tip over.
When the CPSE staff concerns were,
again, not addressed in the drafts
that became the 2014 standard,
the CPSE staff that proposed
that the commission issue a mandatory standard
that included these relatively simple,
inexpensive measures that they knew
from in depth analysis would save lives.
The CPSE's proposals in this 2014 NPR on a
mandatory rule, included a thorough analysis
of the 2014 standard and it's deficiencies.
On October 29, 2014 the commission, and
I was one of them, and I'm proud to say,
voted to publish a notice of proposed rule
making, proposing this mandatory standard
with these inexpensive, easy changes
to ROV's that would save lives.
After publishing the NPR, CPSE continued
to dedicate significant staff time
and resources meeting with
industry representatives.
CPSE staff listened with an open mind
industry's comments on the proposed rule.
However, I have to say that
to this commissioner,
industry immediately lost
credibility during this process
by producing two extremely misleading
videos that were widely distributed,
including on a major manufacturer's
website, and both vehicles,
both videos made gross misrepresentations,
or to use today's vernacular,
presented alternative facts.
The first video purported to show what would
be required under the CPSE proposed standard
with respect to altering
the ROV's over steering.
But industry admitted in January
2015 hearing that what it showed
in that first video was a gross
exaggeration of under steer,
which industry very well knew was neither
required nor anticipated by the NPR.
The second gross misrepresentation in a video
was with respect to the stability requirement,
the supposedly the CPSE's
proposed rule would have.
And what they did was they took an ROV with on
road tires and performed maneuvers off road,
in an off road environment knowing very well
that that was a complete misrepresentation
of what the CPSE was requiring since
we would have required, of course,
that they use the tires on the
vehicles being tested that,
in fact, they would be marketed with.
And no one would ever sell an ROV for the
off road environment with on road tires.
But the phony videos apparently
had the desired effect.
Members of Congress got riled up and the
public got riled up about this nanny state
and what the CPSE was not going to
require and we saw what happened.
On January 7, 2015, the CPSE held a
statutorily required hearing on the NPR
on which the CPSE received
critically important information,
and the commissioners discussed the many issues.
We heard from doctors who presented
just tragic testimony on hat happens
within families when a child dies.
And we heard the story of an Iowa father
who was very responsibly driving his ROV
with his 6 year old daughter
when at a low speed,
on a flat surface tipped over and killed her.
The comment period on the mandatory rule was
extended to April 2015 pursuant to request
by industry, but instead of continuing to
work with us, industry then went to the hill
and lobbied very hard to get
Congress to shut us down.
Congress first threatened
the CPSE with the Riot Act.
I don't need to go through the
specifics of this, but we were just shut
down in the appropriations for 2016 and 2017.
So now industry decided to move forward
with the new voluntary standard,
with the process in place that they would
dominate and with CPSE's hands completely tied.
But to our staff's credit,
we did what we always do
and try to get the best result that we can get.
After many technical meetings
and letters back and forth,
industry came up with a revised standard that
incorporated two of the proposals in the NPR,
the occupant protection and vehicle handling,
but would not agree with the approach
to enhanced stability, which is the
key area that dealt most directly
with the deadly hazard of ROV roll overs.
But the problem with these three is
they're like the three legs of a stool,
if you don't have all three, this
stool's going to topple over.
So we have two legs, two legs is
good, but we really need the third leg
and industry has absolutely refused to do that.
I, again, commend staff for
working so hard with industry.
I know how frustrating this has been.
The spring of 2016 the new voluntary
standard was passed, and staff was instructed
in the 2016 op plan to review that standard and
give us their evaluation, and much to my shock,
and I don't pretend to know why, certainly
not based on having a rule that's going
to increase safety with the ROV's,
termination package came before us.
The current stand of voluntary
standard does virtually nothing
to improve the ROV's inherent
roll over resistance.
And I know that what staff is
hoping, that somehow this hang tag,
but as we listen to their
hopes, I hate to dash them,
but I just can't imagine how this hang tag is
all of the sudden going to encourage industry
to compete with each other on
safety, not on speed, but on safety.
There's no reason to think that the risk
of roll over will be decreased in vehicles
that meet this standard and that
the hang tag containing warnings,
we know is just deficient in so many ways.
So if we don't have a voluntary standard
that is safe enough and has enough compliance
that we can rely on it, I cannot imagine why
we would even consider terminated rule making.
And I'm delighted with the
vote today to not terminate it.
I certainly agree that the current standard
is somewhat safer than 2014 standard,
especially when it comes to occupant
protection and vehicle handling, but as I said,
it doesn't address inherent stability.
So I will say again what I
said earlier, I hope I'm wrong.
I hope that all of the sudden industry
looks at these hang tags and decides
that even though consumers can't understand them
and they're not basing their
purchasing decisions on them,
they're going to start competing with each
other to try to make these vehicles safer.
But, and when we reevaluate it, pursuant
to Commissioner Adler's excellent
motion, we'll see.
And, as I say, I hope I'm wrong.
Thank you.
>> Elliot Kaye: Commissioner Buerkle.
>> Ann Marie Buerkle: Thank you, Mr. Chair.
I want to begin by thanking the staff
for the many, many hours that they worked
in the development of the two voluntary
standards that led to today's vote.
The industry stakeholders and the trade
association leaders also deserve the same credit
for the countless hours in resources they
all worked together to build 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 witnessed
a number of technical meetings.
I was impressed by the candor as
well as the caliber of the exchanges.
These standards represented
technical achievement
of the sort that we should be proud of.
These should serve as a model
for similar efforts.
I would like to see more of this type
of engagement in the coming years,
and I only hope that all of those efforts
bill bear fruit, such as this one did.
This is the type of engagement that we
should strive for as a regulatory agency.
This is why there's such a strong preference
for voluntary standards enshrined
in our CPSE statutes.
No one has the 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,
industry came up with alternative ways
to achieve CPSE's objectives, and
the staff studied the alternatives
and found them perfectly acceptable.
That is cooperative problem solving
at its best, the classic win win.
And I admire and I appreciate what
has transpired over the last 7 years,
probably more, since the NPR in 2009.
Apart from the usual statutory
preference for the voluntary standards,
we have heard directly from
Congress on this issue.
They directed us to focus on voluntary
standards, rather than the mandatory standard.
And while it took us awhile to get that
message, we finally got there, or so I thought.
And now, after all of the blood, the
sweat and the tears, my colleagues vote
against terminating the rule
making, because they can think
of even a more pro safety
provision that they wish
to be incorporated in this voluntary standard.
I say the following more out of
disappointment and sorrow, rather than anger.
To me, this looks like moving the goal
post too long after the game has begun.
Our staff recommended terminating
the rule making
because they believe the voluntary
standards will adequately reduce the risks
as we sat out to address.
No one imposed that view on them.
They reached that view after mature,
professional and careful consideration.
At this late stage in the process, it is
insulting to them, and all who participated
in this process, to claim that
we should have gotten more.
I do not see any engineers or
human factors or epidemiologists
or any scientists sitting on this dais.
And it's troubling to see this kind
of interference from the commission.
Last year we approved a change to
our regulations allowing our staff,
in certain circumstances, to vote
in voluntary standard proceedings
or to assume a leadership position
in voluntary standard committees.
Why do we trust staff and have such
great confidence in them on one hand,
and then turn around and criticize their
work on this, one of the most significant
and successful voluntary standard
efforts in CPSE's history?
Today's outcome is also basically
unfair to 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 rule making.
That understanding was practically made explicit
by our chairman in the Congressional hearing.
In testimony before the House
appropriations sub committee,
he referred to the two different
organizations working on voluntary standards,
and he said he found their
progress extremely encouraging.
He explained to the committee that
after standards were published,
our staff would make an assessment
of those standards and send
up a recommendation to the commission.
He concluded, and I quote, if it happens
the way it seems to be happening,
I know our staff has indicated to date that
they have been pleased with the direction
that the voluntary standards
have taken, then I would imagine
that we will proceed accordingly based
on their recommendation, end quote.
As far as I'm concerned, today's, we break
faith with that understanding and we do
so without proper and adequate justification.
The voluntary standards organization, under the
ANSI umbrella, kept their side of the bargain,
but we chose not to as an agency.
One of the most troubling aspects
about this outcome is how it may
effect CPSE's future efforts.
It is not going to help the staff negotiate
tougher standards if their assurance
of adequacy carries no weight
with the commissioners.
This failure to terminate the rule
undermines the credibility of our agency.
And for me, it is an extremely
troubling development.
We should have terminated our rule making
on recreational off-highway vehicles
today, as our staff recommended to us.
Our staff will continue working
with the industry to continue
to improve the standard as we go forward.
In fact, termination of this rule
today would have helped that effort.
Thank you, Mr. Chair.
>> Elliot Kaye: Commission Mohorovic.
>> Joe Mohorovic: Thank you, Chairman.
I also want to thank staff for the
thousands of hours spent on this issue
over the course of many, many years.
Your activities in preparation for
this meeting today, collectively,
as well as the testimony we
heard was, again, exemplary,
and I want to thank you for your efforts.
I also want to thank the American tax
payer for the millions of dollars that she
and he have spent on this mandatory rule making.
Millions of dollars, the tax payers
have bought, purchased, fleets of ROV's.
We have spent thousands in contractor
expertise at our laboratory.
We have diverted incredible amount
of resources towards this effort.
And I want to apologize to the staff.
I apologize for the future time and
effort that you're going to be forced
to spend on this mandatory rule making.
That was not your decision.
And your technical expertise, after years
of work on this matter, you made a sound
and thoughtful recommendation to the commission,
perhaps one that has some political
jeopardy to it, but yet you did.
You felt that it was time to move on,
the voluntary standards were adequate,
and there is better use of
your time and resources.
The commission of which I'm
a part of thinks otherwise.
So I apologize that your time and efforts
will be redirected from other areas
that would have a higher
safety return on investment.
Instead we're going to focus
on hang tags, the hang tag.
The lynch pin of safety, the hang tag.
Anybody looking at this issue and stepping
back and looking at the injury patterns,
looking at the user behavior, would
never come to the conclusion that a point
of sale hang tag is the lynch pin to safety.
The users that raced these vehicles on
paved roads and got hit by 18 wheelers,
probably impaired, the thought that the
hang tag offered, at the point of sale,
that shows a relative performance element to
lateral stability might have prevented that,
that one lynch pin is what is
putting the American population
at such risk associated with these products.
A point of sale nudge.
And for this agency to think that
this is the lynch pin of safety,
after we just heard testimony today,
that the purchasers, the enthusiasts,
those that are working in the agricultural
community that need these products to work
on farms, and I've seen it first
hand on farms, they don't even,
they may not even care about the hang tag.
They may see it and they may see
a relative, respective with regard
to lateral stability and they won't care.
We've heard that or staff, who have spent
so much time with the manufacturer's
that they don't market on relative safety.
And we use the example of the suburban
mom buying a Suburban that cares a lot
about the soccer players in the car and the
tip over, and it's a nice thing that hopefully
through a hang tag we can incentivize
greater performance with lateral stability.
It just shows how completely untethered
from reality this commission is.
And the embarrassing part that
we should be embarrassed about,
and I'm sorry Commissioner Adler, but you've
associated yourself with the Chairman's comments
about this being a lynch pin of safety,
is, your so much smarter than that.
You know first hand that this has such a little,
such a small demonstrable,
potential impact on safety.
But it just shows that we've
become completely out of touch.
We've become out of touch with the user group to
to think a hang tag is what, at a point of sale,
is what they're, is what they're
making a major decision on.
It demonstrates how completely
out of touch this commission is.
Out of touch with what is important for
safety, out of touch with the users,
out of touch with those who are not
unelected, unaccountable bureaucrats.
So we're the unelected unaccountable
bureaucrats,
so only we can get away with
that kind of foolishness.
Now Congress, they had to stand
behind the vote to prevent us
from further rule making on this subject.
They are accountable.
And they have been held accountable.
And I don't hear a lot of people that lost
their elections by virtue of preventing the CPSE
from moving forward on a
mandatory rule making for ROV's.
But yet, you know who's not out of touch
is our technical experts, our staff.
That's why I say the commission's out of touch.
That's the five of us.
Our technical staff, who want to maximize safety
for the American consumer,
they are not out of touch.
They have recommended terminating rule making.
But in our collective wisdom,
we think that they're wrong.
So they're not out of touch.
They understand that the hang tag's not perfect.
They've also worked with hang tag and
warning label experts to determine
that it's pretty tough to get where you want
to go, to be able to demonstrate for a user
and a consumer at a point
of sale point to be able
to demonstrate this relative
performance for lateral stability.
And taking all of that into
consideration, taking the opportunity costs
of all those future dollars that won't be spent
more wisely on other areas to increase safety,
they recommend withdraw rule making.
We're not doing that.
And we're not going to be
held accountable to it.
We're unaccountable unelected bureaucrats.
We are by definition, we can get away
with murder, we can tell Congress,
we can testify to Congress, we can say, hey,
look these voluntary standards get to a point
where our commission staff recommending
withdraw, we will proceed accordingly.
And we can say that, and then we
can not do that, when, in fact,
staff has recommended withdrawing rule
making, and we're going to get away with it.
Because that's the problem with
regulation and a whole state
of unelected, unaccountable bureaucrats.
And that's just a little something
that disappoints me, generally.
I would hope and wish that this
commission does more of what it says,
but like anything else you hear from
us, how can you even believe us?
How can you even believe me?
I mean, we, all the time, go back on our word.
We do it in testimony.
I don't even know what the consequences of that
are, but maybe we'll find out in the future.
But I'm sure it'll be part of the
general narrative of Washington,
D.C. regulatory environment that
there will be no accountability.
And this federal government of ours
will continue to get away with murder.
So I look forward to working
with you all in the next panel.
Mr. Chairman, I apologize for the dour
close, but I was really, honestly hoping for
and expecting a different outcome today.
So that's the reason for
my great disappointment.
Thank you, Chairman.
>> Elliot Kaye: On a more uplifting note, we
will take a break until 1 o'clock for lunch.
I do want to make one other announcement, and
that is last week, at the end of last week,
the commission did vote unanimously to
elect Commission Buerkle as Vice Chair,
and I did want to mention that publicly
and congratulate Commissioner Buerkle,
or Vice Chair Buerkle on that vote.
Congratulations.
[ Applause ]
We'll take a break and resume
at 1 o'clock on fireworks.
Thank you.