January 27, 2015

On October 29, 2014, the U.S. Consumer Product Safety Commission (“CPSC” or “Commission”) voted to publish a notice of proposed rulemaking (“NPR”) proposing a mandatory standard for recreational off-highway vehicles (“ROVs”). I was proud to vote in favor of this important first step in addressing the unreasonable risk of injury and death posed by ROVs.

For many years before the CPSC’s NPR, CPSC engineers and representatives of the Recreational Off-Highway Vehicle Association (“ROHVA”) and its members had ongoing communications concerning a proper testing standard for ROVs. ROHVA developed a voluntary standard in 2011 and, again, in 2014 through an American National Standards Institute (“ANSI”) process known as the canvass process, which it led and dominated. As part of that process, the CPSC engineers informed ROHVA repeatedly that, based on CPSC testing and accident data, they did not believe either of the ROHVA/ANSI voluntary standards went far enough in making ROVs safer for consumers, particularly with respect to vehicle stability, handling, and occupant protection. Further, based on CPSC’s experience with the Yamaha Rhino repair program, CPSC engineers informed ROHVA that the changes that would be required to meet the safety requirements advocated by the CPSC are relatively easy and inexpensive to make.[1] When the CPSC concerns were not addressed in the draft that became the 2014 ROHVA/ANSI standard, CPSC staff proposed a mandatory standard that included the safety measures they had repeatedly and unsuccessfully asked ROHVA to incorporate in the voluntary standard. CPSC engineers are confident that compliance with the proposed mandatory standard would make ROVs much safer than compliance with the ROHVA/ANSI voluntary standard would. Their position is based on CPSC accident and testing data.

On January 7, 2015, representatives from ROHVA, the Outdoor Power Equipment Institute (“OPEI”), and Polaris Industries, Inc. (“Polaris”) testified before the CPSC that the 2014 ROHVA/ANSI standard is superior to the proposed CPSC standard. These same entities have made this claim on numerous occasions in the past years in various fora, however, have not provided any  accident or test data whatsoever to support this conclusion despite several requests to do so.[2] Their responses to the CPSC’s repeated requests for data have, primarily, been  statements, repeated many times over, in a conclusory fashion, that “we are the experts” and “we have driven thousands of miles.” Of course, if CPSC based its decisions on simply blindly trusting manufacturers and retailers, it would be grossly neglecting its Congressionally-mandated mission. CPSC’s decisions MUST be based on relevant data.

I very much want my decision with respect to the appropriate ROV standard to be as informed as possible. I have reviewed the CPSC test and accident data on which the proposed mandatory rule is based. All of these relevant data have been made public. Indeed, CPSC staff, although under no obligation to do so, spent many hours preparing a spreadsheet to assist ROHVA and OPEI in understanding the different elements of the CPSC data. In response to industry’s request, CPSC also extended the comment period on the NPR.

CPSC accident data are derived from consumer reports to us, death records, media accounts, the CPSC’s in-depth investigations and narratives in the Emergency Department records of those hospitals that participate in our National Electronic Information Surveillance System. The CPSC test data are derived from the testing done by CPSC engineers both in the lab and in the field.  ROHVA and its  ROV-manufacturer members, on the other hand, have accident data, that could be very helpful and very different. For example, if a lawsuit is/was involved, by definition, that would mean that experts on both sides analyzed what happened in the accident and what vehicle characteristics, if any, contributed to the accident. Further, industry representatives have repeatedly represented that they have performed “thousands of tests” and driven “thousands of miles” and, presumably, that resulted in their own test data that would, also, be very helpful to CPSC engineers. During the January 7, 2015 hearing on the NPR, I asked the industry representatives a number of questions about both accident and testing data to which they and their members have access and asked them to produce all of this data that CPSC staff had been requesting for years. At both this hearing, and during an October 23, 2014 meeting between CPSC engineers and engineers from industry, the industry representatives committed to either produce the data or ask their members about producing it. To date, we have received nothing whatsoever from ROHVA, OPEI, or their members, including Polaris.

If the ROV industry wants the CPSC to rely on their representations and consider them in rulemaking, it is critical that they produce the data that form the bases of those representations so that our engineers may evaluate them appropriately. This is why I recently wrote to ROHVA, OPEI, and Polaris, formally reiterating our requests for their data. I also reminded them that, if requested, CPSC will protect any proprietary information contained in that data. I truly hope that the ROV industry will appreciate that our only interest at the CPSC is to decrease, to the extent possible, the serious injuries and deaths that continue to occur from ROV accidents.

Finally, as stated, the Commission recently extended the comment period for the proposed mandatory standard on ROVs. I want to encourage all constituents to participate in this extremely important phase of the CPSC’s rulemaking process.  I hope that everyone, including industry leaders, trade associations, academics, consumer groups, and consumers, will provide relevant data to the CPSC during this comment period.

[1] The technical feasibility of the safety suggestions of the CPSC engineers is not an issue given that all of them are options on some ROVs in production today.

[2] Industry’s credibility is not enhanced by the production of two extremely misleading Polaris videos that are being distributed widely, including on the Polaris website.

The first video is introduced as demonstrating that the portion of the CPSC proposed rule concerning ROV handling would make the ROVs less predictable and less responsive. (The portion of the proposed rule purportedly addressed in the video would require ROVs to exhibit sub-limit understeer instead of oversteer which would avoid divergent instability.) Two ROVs are then shown turning a corner; the first is represented to be the “current” ROV and the second is represented to be “modified to meet new steering mandates.” What we now know from Polaris’ General Counsel, Paul Vitrano, is that the “modification” was a gross exaggeration of understeer which is neither required nor anticipated by the CPSC proposed standard. Mr. Vitrano stated at the January 2015 hearing that he did not believe Polaris produced vehicles with the degree of understeer exhibited by the modified vehicle in the video, and stated clearly that Polaris would not design a vehicle with such driving dynamics. Indeed, there are many ROVs presently being driven without a handling problem that already meet the sub-limit understeer requirement of the CPSC proposed regulation.

The second video concerns the stability requirement of the CPSC proposed rule. Again, there are several ROVs already on the market that meet this requirement that are being driven with no problems. The Polaris video proposes that one way to meet the CPSC stability requirement is to use on-road tires and, then, demonstrates the maneuvers that could not be done with on-road tires in an off-road environment. Mr. Vitrano stated in the January 2015 hearing that Polaris would never sell an ROV with on-road tires, as shown on the video and that he is fully aware that the NPR requires ROVs to be tested with the same tires with which they would be sold. Therefore, the video has no relevance whatsoever except to mislead the public.