November 4, 2014

I voted against issuing the notice of proposed rulemaking because now is not the right time to press ahead with a mandatory standard.  In mid-October, for the second time this year, we received a letter from a large, bipartisan group of U.S. Senators urging us to work with industry on a voluntary standard rather than to propose a mandatory standard.  These elected officials are well aware of the stakes—they fully understand that people can be injured and even die when riding recreational off-highway vehicles.  They also understand that a mandatory standard, like hasty legislation, can have unintended consequences; a voluntary standard tends to minimize such problems and often ends up saving lives and preventing injuries more quickly.  We should have heeded their message.

On October 23, 2014, the CPSC staff met with engineers from several of the largest ROV manufacturers.  The technical meeting spotlighted a number of critical points. 

First, ROVs are off-road vehicles, and they routinely encounter situations where on-road vehicle norms may not apply.  For example, virtually all on-road automobiles are designed to “understeer.”  This rarely creates a problem because cars generally have no trouble holding a curve on American highways, and even if they do, there are often shoulders, guardrails or barriers to keep them from leaving the roadway.  Off-road vehicles, in stark contrast, can get into trouble immediately if they are unable to negotiate a curve and stay on the intended path.  Although some ROVs exhibit some degree of “understeer,” an inflexible regulatory mandate that all ROVs must be designed to understeer may create more safety issues than it solves.

Second, while many of the reported deaths and injuries in ROVs involve rollovers, an analysis submitted recently by the Outdoor Power Equipment Association (OPEI) suggests that a large proportion of these—even as many as 96%--occur after an ROV is “tripped” by an obstacle or uneven surface.  The proposed CPSC standard for rollover resistance does not deal with this “tripped” scenario, and so it is not likely to prevent rollovers in the situations where they most commonly occur.  The proposed standard compounds the problem by requiring manufacturers to attach a hang tag on each new ROV showing a specific rollover resistance value (Ay) calculated for that model.

Even if this were a familiar metric to consumers—which it certainly is not—it would be highly misleading to give purchasers the impression that vehicles with higher Ay values are unlikely to roll over when in fact the vast majority of rollovers may be unaffected.  To make matters worse, such misinformation could actually result in ROV riders being more cavalier about seat belt use.

Third, the manufacturers explained that the current designs for seat-belt-related speed limitations depend on the implementation of electronic fuel injection and associated software/computer control.  The industry appears to be introducing this capability quickly where it can, anticipating that more than half of 2015 vehicles will have this feature for drivers.  Extending this functionality to front-seat passengers, as required by CPSC’s proposed standard, would introduce an even greater level of complexity and, once again, the possibility of perverse safety consequences.  For example, an abrupt speed change caused by a passenger unbuckling could cause a collision with a following vehicle or a driver to lose control.  Even more worrisome is that a hurried system may not operate as well as it should in some scenarios and may actually decrease belt use if ROV riders decide to circumvent the system (by buckling belts behind them or otherwise).    

Given these and other significant issues raised at the technical meeting, the CPSC should have made continuation of that dialog our top priority.  The CPSC staff said that they had found the meeting “productive” and that it yielded “key insights” worth following up on.  The industry offered to convene another meeting of engineers within ten business days if we postponed issuing the proposed rule.  To that end, I moved to postpone consideration of the notice of proposed rulemaking for a period of 90 days.  Unfortunately, that motion was defeated. I believe the decision to push ahead with the proposed mandatory standard will now make it difficult for the engineers to continue their engagement and bridge the gap as they might have.

Conclusion

ROVs are among the most complex products that are within our regulatory purview.  The manufacturers of these vehicles have the expertise to design and develop new products for the off-road environment.  They have demonstrated their commitment to improved safety through innovation and continuous improvement.  To avoid unintended consequences, we must take full advantage of their expertise as well as the CPSC staff’s broad safety vision and commitment.  In short, as the bipartisan group of Senators urged: we must take the time to get this right, and if it can be done by a voluntary standard, so much the better.