CPSC Rulemaking on Off-Road Vehicles Heats Up

Two and a half years ago, U.S. Consumer Product Safety Commission staff approached the triad of off-road vehicle trade groups – the Specialty Vehicle Institute of America (SVIA), the Off-Highway Recreational Vehicle Association (ROHVA), and the Outdoor Power Equipment Institute (OPEI) – with some data and an offer: Write a voluntary standard to address fire hazards and debris intrusion.

The data, aired before representatives of every major All-Terrain Vehicle (ATV), Recreational Off-Road Vehicle (ROV), and Utility Task Vehicle (UTV) manufacturer at the Grand Hyatt Hotel at Dallas-Fort Worth airport, included an extensive list of 408 fire-related incidents reported in some 47 recalls from 2005 to 2018. They covered defects ranging from fuel leaks, to over-heating plastic panels, to electrical short circuits, to exhaust system defects. And they revealed the serious flaws in current ROV design that create fire hazards, such as the structural integrity of the fuel tank system and fuel filters, the vulnerability of hoses carrying flammable liquids, overheating Engine Control Modules, the flammability of plastic body panels, and debris intrusion into the exhaust system.

No particular manufacturer was mentioned, but Polaris has certainly been at the top of the ROV fires Leader Board. Its 2016 RZR Recall 16-146 was, and remains, the single largest of more than 15 Polaris fire-related actions, covering some 133,000 Polaris Model Year 2013-2016 RZR 900 and RZR 1000 recreational off-highway vehicles. These models also remain among its most hazardous, responsible – at the time of the recall – for more than 160 reports of fires, 19 injuries, including second- and third-degree burns, and the death of a 15-year-old girl.

The offer was to help the industry write a voluntary standard to address fire hazards and the penetration hazard from under-carriage debris. The CPSC suggested that industry representatives form task groups by topic area to discuss improvements, study standards for better fuel tank test procedures, and consider creating surface temperature limits, as well as fire resistance and self-extinguishing requirements for electrical components.

Industry did nothing, which is why last month, the CPSC published an Advance Notice of Proposed Rulemaking to address the risk of injury associated with fire and debris-penetration. In the May 12 Federal Register Notice, the CPSC noted that SVIA, ROHVA, and OPEI had talked a lot about fire mitigation, but had never drafted a proposal. The debris penetration issue hadn’t generated so much as a conversation.

The Notice is basically a longer, more detailed version of the presentation Mechanical Engineer Han Lim of the CPSC’s Division of Mechanical Combustion Engineering, made to Honda, Polaris, Yamaha, Kawasaki, Textron and members from the OPEI in 2018. It also includes other contextual information, such as the size of the off-highway vehicle consumer market, the most current number of associated recalls – 68 between 2002 and 2019 – and the death and injury data.

A review of incidents in CPSC’s Consumer Product Safety Risk Management System from 2003 through 2020, identified 28 fatalities and 264 injuries from OHV hazards, and 6 fatalities and 20 injuries from debris-penetration OHV hazards. Using the National Electronic Injury Surveillance System (NEISS) database, “CPSC staff estimated that there were 14,200 emergency department-treated injuries from 2007 to 2019 associated with non-crash OHV fires and burn hazards,” the CPSC stated in the Notice.

It also discussed the debris penetration issue, which can occur in ROVs and UTVs with their larger undercarriage that exposes more floorboard and wheel-well surface to branches on the ground that can penetrate the vehicle compartment, impaling occupants. One of the several fatal incidents was described in the ANPRM: “Consumer drove on a wooded trail (dirt road) with various debris (rocks and limbs); tree limb pierced fender and nylon mesh door and impaled the driver.” The CPSC identified four debris penetration deaths and three injuries in incidents involving reduced visibility, but during normal, foreseeable use.

Spinning Wheels

When CPSC’s Directorate of Engineering Sciences Caroleene Paul met with industry honchos in September 2018, it was on the heels of a $27.25 million civil penalty levied against Polaris Industries. The Medina, Minnesota, manufacturer paid the fine to settle two charges of untimely disclosure to the CPSC that “models of RZR and Ranger recreational off-road vehicles (ROVs) contained defects that could create a substantial product hazard or that the ROVs created an unreasonable risk of serious injury or death.” The hazard in both was a risk of fire or melting components.

The CPSC ended its presentation by speculating that manufacturers already had internal standards that addressed thermal issues, and by expressing its preference that industry representatives codify them in a voluntary safety standard. The commission offered its assistance in that process. The OEMs thanked the CPSC, agreed to look over the data and get back to the agency, but set no timetable for doing so.

And here we are. And here we’ve been.

As federal agencies go, the CPSC’s rulemaking authority is pretty weak. An industry group can waste a whole lot of time fiddle-faddling around with the voluntary standards-setting process. Hell, they can spend two and a half years just thinking about maybe drafting a standard. This is one of industries’ favorite tactics to slow or stop new rules all together. The CPSC cannot pursue a mandatory standard if the industry produces (or is in the process of producing) an acceptable voluntary standard. And, under the Consumer Product Safety Act, the CPSC has to defer to whatever weak tea the industry serves.

In the universe of consumer products, off-road vehicles are like Kryptonite to the CPSC – a fictional alien mineral that can rob the federal agency of its regulatory powers. Advocates might argue that the toxic combination of a rabidly enthusiastic customer base that openly resists any attempts to make ROVs safer, and manufacturers whose interest in vehicle improvements tends to lean towards making them faster and more powerful, has effectively stymied the agency from imposing any meaningful safety requirements. One need look no further than the CPSC’s last attempt to boost the lateral stability of Off-Highway Vehicles.

UTVs and ROVs entered the market in the 1970s, evolving from single-seat dune buggy type versions in the 1970s to today’s side-by-side, multiple-passenger versions. They first caught the CPSC’s attention around 2004, just after Yamaha introduced the Rhino. The CPSC had begun to field claims and complaints about the side-by-side – some alleging design defects – along with FOIA requests from plaintiff lawyers. Thus commenced five years of wrangling with the manufacturer over the Rhino’s lateral safety. There were meetings and letters, discussions and presentations about rollovers and partial ejection injuries, product demonstrations, and testing. Yamaha blamed its reckless customers and tried to fend off a recall with a Technical Service Bulletin and an offer to retrofit any new or used 2004 to 2007 model with free doors and handholds. But, eventually there was a formal investigation and a Special Order to produce documents. In March 2009, the CPSC forced Yamaha to recall 120,000 450, 660, and 700 Model Rhino Vehicles, after investigating more than 50 incidents causing 46 driver and passenger deaths in the Rhino 450 and 660 models. More than two-thirds of the cases involved rollovers and many involved unbelted occupants.

Seven months later, the CPSC published an ANPRM to address occupant retention and containment and stability in all ROVS and UTVs. About a year earlier, the commission had approached the industry about writing a stability standard. The notion didn’t pique much interest among manufacturers, but these off-road vehicles were racking up deaths and injuries at a rate the CPSC could not afford to ignore.

According to the briefing package that CPSC staff prepared in advance of the rulemaking, of 125 incidents that involved overturning ROVs, there were 107 incidents in which it could be ascertained that a victim was ejected from the vehicle. Ninety-eight percent involved at least one victim who exited the vehicle, either partially or wholly – thrown out, falling out, jumping out, climbing out, or otherwise fully or partially exiting the vehicle. Partial ejections included victims’ arms and legs, which extended out of the vehicle during the rollover and were crushed by some part of the vehicle.

During the next seven years, the CPSC and the ROV industry argued over a standard that would address stability, handling, and occupant protection. In 2015, then-Senator Mike Pompeo (R-KS) sponsored the ROV In-Depth Examination (RIDE) Act, which directed the Consumer Product Safety Commission, the National Academy of Sciences, the National Traffic Safety Administration, and the Department of Defense to study proposed ROV handling requirements for recreational off-highway vehicles and to prohibit the adoption of any requirements until these studies were completed. It also barred the agency from mandating that ROV manufacturers provide performance and technical data to prospective purchasers. It passed the Republican Congress as a rider on the 2016 $1.1 trillion omnibus spending bill and was signed into law by President Obama in December 2015. This effectively killed any effort to write a mandatory standard.

The industry revised its voluntary standards several times. And, in late 2016, ROHVA produced a voluntary standard that appeared to satisfy the CPSC staff – but not the commissioners. They voted 3-2 to reject termination of the rulemaking. That rulemaking technically remains open, but unlikely to advance – it’s currently awaiting the commission’s formal notice of withdrawal.

So, is this ANPRM headed down the same worn path? And why now?

The Coast is Clear

It could have something to do with the departure of CPSC Commission Chair Ann Marie Buerkle. A former Republican Congresswoman from upstate New York, Buerkle was a solid anti-consumer member of the CPSC from 2013 to 2019, and Acting Chair from February 2017 through September 2019. She was nominated by President Trump three times to be permanent Chairman, but the U.S. Senate failed to advance her nomination after key Commerce Committee members opposed her anti-regulatory, anti-consumer positions. During her tenure as agency lead, Buerkle managed to do a fine job not regulating the manufacturers of consumer products, dropping misconduct fines, voluntary recalls, and investigations into dangerous products.

She ran the agency when it hid the extent of infant deaths caused by Fisher Price’s Rock ‘N Play inclined sleepers. In May 2018, the CPSC issued a vague warning to parents urging them to always use restraints with inclined sleep products and to stop using them as soon as the baby can roll over. The alert acknowledged that the CPSC was aware of infant deaths associated with inclined sleep products, but didn’t name any particular manufacturer. Nearly a year later, on April 5, the CPSC issued another warning – this time with Fisher Price acknowledging 10 deaths in a Rock ‘N Play sleeper since 2015. On April 8, Consumer Reports published a story revealing 32 deaths linked to the product. On April 11th, the magazine published an update linking four infant deaths to inclined sleep products manufactured by Kids II. Eventually, Fisher-Price announced that it would recall the Rock ‘n Play.

Buerkle was also instrumental in an agency decision to not force a recall of a Britax jogging stroller that injured nearly 100 users when the front wheels fell off. Instead, the CPSC entered into a settlement with Britax that ended a CPSC lawsuit to compel a recall and allowed it to forgo a recall.

The Polaris consent agreement was brokered under her stewardship, too. Unredacted nuggets of information SRS unearthed after a protracted FOIA battle for the files associated with Recall 16-146 showed that CPSC staff had been seriously alarmed by the many defects creating serious fire risks in Polaris ROVs, and had questioned the efficacy of Polaris’ fixes, with one person even urging they consider buying-back the Turbo model from customers. Yet, Buerkle appeared to have quashed recommendations for further actions against Polaris.

She finally announced her retirement after the Senate blocked her confirmation for another seven-year stint.

So perhaps, it’s safe to regulate and enforce again.