October 31, 2014

Earlier this week, the US Consumer Product Safety Commission voted to propose a mandatory rule to regulate Recreational Off-Highway Vehicles (ROVs). Because I have serious philosophical, legal, and practical concerns about both the ends of this rulemaking and its means, I was compelled to vote against proposing the rule. We are proposing to regulate the product in order to control user behavior. I believe this action would be inconsistent with our mission “to protect the public against unreasonable risks of injury.”[1]

 

Simply put, I do not believe that this product category presents an unreasonable risk of injury. Unquestionably, it does present risks. However, the data our staff presented demonstrate that the most serious of those risks can be addressed more than adequately by user behavior, namely wearing a seatbelt and proper protective gear, refraining from alcohol or drug use during operation, and taking seriously product warnings about driving maneuvers and occupant age. When ROV users adhere to these principles, what remains is users voluntarily engaging in an activity that patently presents reasonable risk.

 

Our information shows that the primary factor that increases risks in using ROVs is user behavior, and I do not believe it is the proper role of the CPSC to use its authority over products to attempt to regulate user behavior. I would support an effort to work with all our partners to educate consumers about the risks their choices present to nudge them into safer choices, but I cannot support the overreaching, misguided path of mandates we propose to take. It is several bridges too far and has already taken millions of dollars in staff time and capital resources—a million just in Fiscal Year 2014—away from the agency that could have been put to any number of better uses.

 

In proposing this rule, our staff suggested “that ROV rollover and occupant ejection is a dominant hazard pattern that has significant potential for improvement” and proposed design or performance requirements to address each of these.

 

To address rollover, we seek to require that each ROV:

a)      resist at least 0.70g of lateral acceleration without its wheels lifting from the surface;

b)      understeer (i.e. the wheels turn by a factor lower than the turn of the steering wheel); and

c)      bear a hang tag warning about rollover and listing the vehicle’s rollover resistance.

 

To address ejection, we propose that each ROV:

d)     include interlocks that limit the vehicle to 15mph if either the driver’s or front passenger’s seatbelt is not fastened and

e)      include a passive (not user-dependent) restraint to limit how far an occupant can lean beyond the vehicle’s roll cage.

 

However, it is apparent to me that, while rollover presents risk, the primary cause of injuries is occupant ejection (during rollover or otherwise), most often resulting from lack of seatbelt use and frequently combined with other irresponsible choices, such as alcohol use. As such, I am not convinced that the rollover mandates would significantly improve safety when occupants wear seatbelts. And, while I do believe the seat belt technology we propose to demand would be effective, I do not believe mandating it is a proper use of our authority.

 

CPSC’S REGULATORY ROLE

 

Our mission is to address unreasonable risks of injury, not risks of incidents. When ROV occupants use seatbelts, their risk of injury—while never eliminated—is substantially reduced even where an incident (such as a rollover) occurs. As such, when occupants wear seatbelts, rollover alone does not present an unreasonable risk. Without an unreasonable risk, attempting to regulate is beyond our mission.

 

We believe our proposed seatbelt mandate will be 100% effective; I disagree with that assumption, as I discuss below, but, for now, I will assume its accuracy. Our staff reports that 91% of ROV ejection-related deaths[2] occurred when occupants chose not to wear seatbelts. If our mandate is as effective as we believe it will be, our seatbelt mandate alone would directly address most ROV-related deaths.[3]

 

Any requirement beyond that mandate does not address the primary hazard: User behavior. At best, the rollover requirements address a secondary concern. That would be fine if we could demonstrate their value, but we cannot. Our proposal fails to estimate the independent incremental benefits of the lateral stability, understeer, and hang tag requirements, three of the five proposed mandates.[4] This is not a situation in which we can only make a reasonable estimate, it is one presenting presumed benefits we concede are entirely “not quantifiable.”

 

It is not within our power to impose mandates we do not know will be beneficial.

 

The Commission shall not promulgate a consumer product safety rule unless it finds that the rule is reasonably necessary to eliminate or reduce an unreasonable risk of injury associated with a product; that the benefits expected from the rule bear a reasonable relationship to its costs; . . . and that the rule imposes the least burdensome requirement which prevents or adequately reduces the risk of injury for which the rule is being promulgated.[5]

 

We have not met that burden.

  • Our statistics demonstrate that seatbelt use, not the rollover requirements, is reasonably necessary to reduce the risk of injury.
  • We cannot evaluate the relationship between quantifiable costs and “not quantifiable” benefits.
  • And, where the risk arises from the consumer choice not to wear a seatbelt, imposing any requirement not targeted to that hazard is not the least burdensome approach.

Our statute does not require “a precise ‘body count’ of actual injuries,”[6] but we should not merely presume the benefits of our ideas, particularly ideas that are unrelated to what is demonstrably the greatest risk. The information we have makes clear that, if ROV occupants wear their seatbelts, the risk of ejection (and thus the risk of death) in any incident is substantially mitigated. Where the risk of death is mitigated by something other than preventing rollovers (i.e. seatbelt use), the rollover mandates[7] cannot pass the statutory tests for:

  • necessity (they are not necessary to mitigate fatalities seatbelt use has already mitigated);
  • a reasonable relationship between their costs and benefits (staff attributes no incremental benefit to the rollover mandates, so all accounted-for benefit is already achieved by seatbelt use, and benefits of zero do not bear a reasonable relationship to costs of more than zero); or
  • the least burdensome approach (because they impose a burden with “no[] quantifiable” benefit in return).

As the rollover mandates do not pass the test Congress has set for our rulemaking authority, they are outside that authority.[8]

 

VOLUNTARY STANDARD

 

Moreover, we cannot issue a rule if an applicable voluntary standard is both adequate to address the hazard and likely to see substantial industry compliance.[9] The Recreational Off-Highway Vehicle Association (ROHVA) has recently updated its standard in response to the incidents we have identified, addressing both rollover and occupant retention. We have produced no evidence of significant non-compliance with the ROHVA standard, so the question is one of adequacy.

 

We have expressed substantial disagreement with ROHVA’s rollover approach, but, again, rollover has not been shown to present an unreasonable risk absent failure to use seatbelts. Our proposal’s primary quibbles with ROHVA’s seatbelt solution are that installing interlock is optional[10] and that it is linked only to the driver’s seatbelt.

 

However, ROHVA reports—and staff has not disputed—that the majority of the ROV fleet in model year 2015 will have driver interlock installed. Further, staff reports that drivers and front passengers shared a seatbelt status in 82% of the incidents we reviewed. This “captain of the ship” principle suggests that, if the driver uses her seatbelt, her passenger will use his, as well.

 

Based on this information, with no CPSC intervention,[11] the free market will independently address half of ejection fatalities, a number likely to grow if interlock proves popular among consumers and more manufacturers adopt it to avoid being out-competed on safety..[12] This is a continuation of the trend toward greater ROV safety. ROVs have only been in widespread use for roughly a decade, and their fatality rate has dropped in recent years.[13] There has been no suggestion that the industry’s safety innovation is at an end, and its offering consumers the choice to have seatbelt interlock technology is another example.

 

PATENT v. LATENT HAZARDS

 

Beyond identifying the risk, however, we must assess the nature of the risk. Our target is the unreasonable risk. I believe one key question in judging whether or not a risk is reasonable is assessing whether the underlying hazard is latent or patent. A latent hazard, one the consumer cannot appreciate, is inherently more unreasonable than a hazard the consumer understands. If consumers are aware of a risk “and still choose to incur the risk, then their judgment may well be reasonable.”[14]

 

In the case of ROVs, consumers understand that the activity in which they are engaging carries inherent risks, not unlike rock-climbing or skydiving. They also understand the steps they should take to mitigate those risks, notably seatbelt use. “[A]n important predicate to Commission action is that consumers be unaware of either the severity, frequency, or ways of avoiding the risk.” Consumers are aware that, as with most moving vehicles, operating an ROV presents inherent risks that are severe, frequent, and readily avoided by use of a seatbelt.

 

We may have some role to play in increasing seatbelt use, but what is that? We do not have the authority to compel users to buckle up, nor the ability to enforce such a requirement. We also should not use the power we have over manufacturers as a proxy for a power we do not have over consumers, as one of our fellow agencies learned 40 years ago (see below). The role we are left is one of education, using the federal megaphone to draw consumers’ attention to a safety hazard whose primary solution is in their hands.

 

We have had remarkable buy-in from industry, media, and government partners with similar education campaigns regarding hazards such as swimming pools.[15] We also have drafted model legislation in other areas where state and local governments were uniquely positioned to play a key role in consumer safety.[16] I encourage us to utilize those invaluable partnerships to promote seatbelt use, an effort that would be both within our authority and directed at the true hazard.

 

INTERLOCK AND ACCEPTANCE

 

Finally, history demonstrates that, even with interlock’s promise as an engineering matter, our proposed effort to use our power over ROVs to compel consumer seatbelt behavior is likely to fail, at substantial risk to the agency. Those who do not learn from history, as the saying goes, are doomed to repeat it. Seatbelt interlock mandates have a remarkably poor history that I would prefer CPSC not repeat.

 

In the early 1970s, the National Highway Safety Bureau, forerunner to today’s National Highway Traffic Safety Administration (NHTSA), issued a rule that ultimately required road-going vehicles to have seatbelt ignition interlocks.[17]  From a performance standpoint, there was nothing wrong with interlocks. They were feasible and likely could have resulted in higher seatbelt use.[18] A court ruling even recognized NHTSA’s authority to require them.[19]

 

The flaw was that NHTSA failed to anticipate reaction to the imposition of the devices by a federal agency. “First attached to model year 1974 vehicles, the interlocks generated hate mail to Congress reminiscent of the deluge following Richard Nixon’s removal of Archibald Cox as Special Prosecutor.”[20] Nearly half of interlocks were disconnected by consumers,[21] and Congress not only quickly repealed the requirement by statute, but barred NHTSA from mandating interlocks[22] and reserved a legislative veto for any further versions of the rule of which interlocks had been a part.[23]

 

When a fellow agency’s experiment has provoked Watergate-level outcry, I am leery of dipping CPSC’s toes in the same water. We believe that the difference in function—our interlocks permit ignition and operation below 15mph—will make our interlocks more palatable. I am not so confident. I do not believe the problem was interlocks’ operation, but in the fact that a federal mandate interfered with drivers’ choices in operating their vehicles.

 

Interlock is a fine technology that offers potential safety benefits. However, the potential benefits of mandatory interlock are only realized if consumers accept the technology and the mandate. As it stands, with more than half of the market offering interlock, consumers who accept the technology can select it, while those who do not can choose other vehicles. Under our proposed mandate, the technology would be foisted upon consumers, and those consumers who would not otherwise choose it would likely resent our intrusion, no matter how well-intentioned. Moreover, even some consumers who would independently choose a vehicle with interlock might begrudge being compelled to purchase it.

 

From a safety perspective, reaction to the mandate could limit the effectiveness of interlock. If as many as half of 1970s automobile consumers disabled their interlocks, it is reasonable to think a similar proportion of ROV consumers will take similar steps. From a regulatory perspective, CPSC veering as far from consumer attitudes as NHTSA did—particularly on what is virtually the same issue—could provoke both public and congressional ire.[24] Whether expressed in frostier support for our budget requests, an outright loss of jurisdiction like NHTSA suffered, or some other form, that discontent could disrupt CPSC as it pursues its noble mission.

 

CONCLUSION

 

Consciously or not, supporters of this rule are really trying to regulate away the risks associated with choosing not to wear a seatbelt in an ROV. Those risks are demonstrated not just in rollovers, but potentially any time the vehicle deviates from its normal operation. I understand the impulse to want to prevent the injuries that result from those risks, but even if a risk is preventable, it is not necessarily a risk that is unreasonable or appropriate for paternalistic, government-mandated prevention. Because I believe the risks of choosing not to wear a seatbelt in a moving vehicle are not unreasonable and ultimately the product of consumer choice rather than product characteristics, I cannot support the solution we propose.

 

[1] Consumer Product Safety Act, § 2(b)(1), 15 U.S.C. § 2052(b)(1).

[2] Ejection, in turn, was involved in 86% of all ROV-related deaths.

[3] Note that, in our deliberately broad reporting system, a death resulting from an ROV falling a great distance would be an ROV-related death, so there will always be related deaths we cannot adequately address by rule.

[4] We do not account for the benefits of the seatbelt and shoulder restraint requirements separately, combining them into “occupant retention.”

[5] Consumer Product Safety Act, § 9(f)(3), 15 U.S.C. § 2058(f)(3).

[6] Forester v. Consumer Product Safety Commission of the United States, 559 F.2d 774, 788 (D.C. Cir., 1977).

[7] As discussed above, those mandates consist of a lateral stability resistance threshold, understeer engineering, and a hang tag to be displayed at the point of sale.

[8] Some may suggest that the statute’s language of “a consumer product safety rule” could plausibly be read to mean that we can impose any mandate we like so long as the rule as a whole meets the CPSA test, but courts have made clear that each component must be weighed on its own merits and that invalid provisions cannot ride along with valid ones. See, e.g., Forester, 559 F.2d at 790, et seq., Aqua Slide ‘N’ Dive Corp. v. Consumer Product Safety Commission, 569 F.2d 831, 840 et seq. (5th Cir. 1978), D.D. Bean & Sons Co. v. Consumer Product Safety Commission, 574 F.2d 643, 649 et seq. (1st Cir. 1978).

[9] Consumer Product Safety Act, § 9(f)(3)(D), 15 U.S.C. § 2058(f)(3)(D).

[10] A manufacturer can choose instead to employ an audible warning that sounds if the seatbelt is not fastened.

[11] Our staff reports that this market trend would decrease the benefits of our proposed rule by 56%.

[12] While 100% usage is likely optimistic for interlock under either the ROHVA standard or our proposed rule, ROHVA’s optional interlock will likely have a higher acceptance rate simply because the consumer will have chosen to purchase an interlock-equipped vehicle, rather than having that limitation imposed by a federal agency.

[13] In 2007, there were 1.423 deaths for every 100,000 ROVs, a number that had dropped to 0.946 by 2009 (a 34% decrease) and, based on still-incomplete figures, that rate seems to have dropped even further in subsequent years.

[14] Aqua Slide ‘N’ Dive, 569 F.2d at 839 (citing Kimble, William, Federal Consumer Product Safety Act, s 94 (West 1975). In its own “Policy on establishing priorities for Commission action,” the Commission assigns priority “to unforeseen and unforeseeable risks arising from the ordinary use of a product.” 16 C.F.R. § 1009.8(b)(5). The notion that choosing not to wear a seatbelt in a moving vehicle may increase the risk of injury or death in any of the hazardous situations incurred during the ordinary use of that vehicle is neither unforeseen nor unforeseeable.

[15] Our annual campaign includes over 850 partners nationwide and generates more than 1.5 billion impressions (through print, broadcast, web, or other sources) for our Public Service Announcements. As a result, while there will always be more work to do, the rate of swimming pool drowning fatalities is dropping.

[16] For example, in 1999, the Commission created model legislation for states to bar sale of banned or recalled products in thrift stores.

[17] Among other features, the interlock would have to prevent ignition if either front seat was occupied with the belt not fastened, prevent “defeating the systems by leaving the belts fastened permanently” by sequential operation (i.e. seat occupancy first, then belt fastening), and not stop the engine if a seatbelt were unfastened during operation. 36 Fed. Reg. 19266, 67. For a fuller history of the development of NHTSA’s interlock rule, see Jerry L. Mashaw and David L. Harfst, Inside the National Highway Traffic Safety Administration: Legal Determinants of Bureaucratic Organization and Performance, 57 U. Chi. L. Rev. 443, 460 (1990).

[18] Mashaw at 460.

[19] Ford Motor Co. v. NHTSA, 473 F.2d 1241 (6th Cir. 1973).

[20] Mashaw at 460.

[21] Id.

[22] Motor Vehicle and Schoolbus Safety Amendments of 1974, Pub. L. 93-492, 88 Stat. 1470 § 109 (Oct. 27, 1974).

[23] Id.

[24] Indeed, as one of my colleagues reminded us, 12 Senators from both parties and across the country have twice written to the CPSC to urge both caution and reliance on the ROHVA standard, which, again, permits driver seatbelt interlock but does not require it.