2011-18552. Amendment to Standard for All-Terrain Vehicles; Notice of Proposed Rulemaking

AGENCY:

Consumer Product Safety Commission.

ACTION:

Notice of proposed rulemaking.

SUMMARY:

The Consumer Product Safety Improvement Act of 2008 (“CPSIA”) required the Consumer Product Safety Commission (“Commission,” “CPSC,” or “we”) to publish, as a mandatory consumer product safety standard, the American National Standard for Four-Wheel All-Terrain Vehicles Equipment Configuration, and Performance Requirements, developed by the Specialty Vehicle Institute of America (American National Standard ANSI/SVIA 1-2007). We did so on November 14, 2008. 73 FR 67385. ANSI/SVIA has since issued a 2010 edition of its standard. In accordance with the CPSIA, we propose to amend the Commission's mandatory ATV standard to reference the 2010 edition of the ANSI/SVIA standard.^[1]

DATES:

Written comments must be received by October 11, 2011.

ADDRESSES:

You may submit comments, identified by Docket No. [CPSC-2011-0047], by any of the following methods:

Electronic Submissions

Submit electronic comments in the following way:

Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.

To ensure timely processing of comments, the Commission is no longer accepting comments submitted by electronic mail (e-mail), except through http://www.regulations.gov.

Written Submissions

Submit written submissions in the following way:

Mail/Hand delivery/Courier (for paper, disk, or CD-ROM submissions), preferably in five copies, to: Office of the Secretary, Consumer Product Safety Commission, Room 820, 4330 East West Highway, Bethesda, MD 20814; telephone [phone].

Instructions: All submissions received must include the agency name and docket number for this rulemaking. All comments received may be posted without change, including any personal identifiers, contact information, or other personal information provided to: http://www.regulations.gov. Do not submit confidential business information, trade secret information, or other sensitive or protected information electronically. Such information should be submitted in writing.

Docket: For access to the docket to read background documents or comments received go to: http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT:

Elizabeth Leland, Project Manager, Directorate for Economic Analysis, Consumer Product Safety Commission, 4330 East West Highway, Bethesda, MD 20814; telephone [phone]; [e-mail].

SUPPLEMENTARY INFORMATION:

 

A. Background

The Consumer Product Safety Improvement Act of 2008 (“CPSIA”) directed the Commission to “publish in the Federal Register as a mandatory consumer product safety standard the American National Standard for Four Wheel All-Terrain Vehicles Equipment Configuration, and Performance Requirements developed by the Specialty Vehicle Institute of America (American National Standard ANSI/SVIA 1-2007).” 15 U.S.C. 2089(a)(1), as added by section 232 of the CPSIA. Accordingly, on November 14, 2008, we published a final rule mandating ANSI/SVIA 1-2007 as a consumer product safety standard. 73 FR 67385. The final rule is codified at 16 CFR part 1420.

B. The Proposed Amendment

1. Procedure

Section 42(b) of the Consumer Product Safety Act (“CPSA”) provides that, if ANSI/SVIA 1-2007 is revised after the Commission has published a Federal Register notice mandating the standard as a consumer product safety standard, ANSI must notify the Commission of the revision, and the Commission has 120 days after it receives that notification to issue a notice of proposed rulemaking to amend the Commission's mandatory ATV standard “to include any such revision that the Commission determines is reasonably related to the safe performance of [ATVs] and notify the Institute of any provision it has determined not to be so related.” 15 U.S.C. 2089(b)(1) and (2). Thereafter, the Commission has 180 days after publication of the proposed amendment to publish a final amendment to revise the ATV standard. Id.

2. Changes From 2007 Edition

On March 16, 2011, ANSI notified us that in December 2010, ANSI approved a revised version of the ANSI/SVIA standard for four-wheel ATVs, ANSI/AVIA 1-2010.

We reviewed the changes from the 2007 version. Many changes are minor revisions to the wording in the standard. We consider the substantive changes to be: (1) Elimination from the scope section, a provision calling for expiration of the definition and requirements for the Y-12+ youth ATV age category on July 28, 2011; (2) a change in how to calculate the speed for the braking test of youth ATVs; (3) a change in the force applied to passenger handholds during testing; (4) the addition of a requirement that youth ATVs shall not have a power take-off mechanism; (5) the addition of a requirement that youth ATVs shall not have a foldable, removable, or retractable structure in the ATV foot environment; (6) additional specificity concerning the location and method of operation of the brake control; (7) tightening the parking brake performance requirement by requiring the transmission to be in “neutral” during testing, rather than in “neutral” or “park”; and (8) the requirement that tire pressure information be on the label, when the previous requirement could be interpreted to allow tire pressure information to be on the label, or in the owner's manual, or on the tires.

We were concerned initially that two changes to the ANSI/SVIA standard might reduce safety. These two changes were: (1) How the speed for the braking test of youth ATVs is calculated, and (2) the force applied to passenger handholds during testing. As discussed in sections B.2.a and b of this preamble, industry subsequently addressed one issue and is not opposed to addressing the second.

a. Change in Calculation of Speed for Brake Test of Youth ATVs

Section 7.2 of the 2010 edition of the ANSI/SVIA standard provides what appears to be a new formula for calculating the speed at which the braking tests for youth ATVs would be performed. As published, the 2010 formula would result in testing the brakes of some youth ATVs at much lower speeds than required under the 2007 edition of the standard. However, in a conversation with SVIA representatives on May 20, 2010, CPSC staff and SVIA discovered that this provision has a typographical error, and the new formula, in fact, applies only to the Y-6+ category ATV. This would not result in a significant change in the brake testing speed. ANSI has since printed a memorandum and an errata sheet and distributed them to past purchasers of the standard. The memorandum and errata sheet will be included in all future printings of the standard. We are satisfied with SVIA's response to this issue and do not believe that this change (as corrected) justifies excluding this provision from any amendment to the current mandatory consumer product safety standard.

b. Change in Force Applied to Passenger Handhold During Testing

Section 4.12 of the ANSI/SVIA standard relates to the testing of passenger handholds on Type II (tandem) ATVs. These ATVs are designed for two riders, with one rider seated behind the other. The ANSI/SVIA 1-2007 standard, which the mandatory standard incorporated, states that these handholds “shall be designed in such a way that each is able to withstand, without failure or permanent deformation, a vertical force of 1000N (224 lbf) applied statically to the center of the surface of the handhold at a maximum pressure of 1 MPa (150 psi).” The ANSI/SVIA 1-2010 revision indicates that the force applied to the handhold must be upward. Although the previous version of the standard could have been interpreted to mean that the test could be performed in either a downward or an upward position, or both, we believe that the addition of the word “upward” limits the test procedure, and we believe that the test should be applied in both directions.

SVIA has indicated that the upward vertical direction is consistent with typical loading of an ATV. However, SVIA also stated that SVIA is not opposed to revising the standard in the future to add a downward testing component, noting that such a change will be considered in the next revision of ANSI/SVIA 1-2010. We are satisfied with this response and do not believe that this change justifies excluding this provision from any amendment to the current mandatory consumer product safety standard.

c. The Y-12+ Youth Category

When the ANSI/SVIA 1-2007 voluntary standard was published, industry intended that the Y-12+ youth ATV category would expire in July 2011, leaving the Y-6+ and Y-10+ categories of youth ATVs in the marketplace, along with the T (Transition Model) category ATV for operators age 14 years or older. The scope section of the 2007 edition of the ANSI/SVIA standard provides: “The definition and other requirements of the standard for Category Y-12+ ATVs shall expire four (4) years after the date this standard is approved.” However, SVIA has indicated that it eliminated this provision from the scope section in the 2010 revision of the standard because it intends to continue to allow the Y-12+ category due to the impact of the CPSIA lead content requirements on the production and sale of Y-6+ and Y-10+ category ATVs. We do not consider the elimination of this scope provision to be a problem. The standard did not require manufacturers to stop making Y-12+ ATVs but provided that after a certain date, the definition of that category and other requirements would expire. If this category of ATVs will continue to be available, we believe that it is appropriate to revise the scope section to eliminate this provision as the 2010 revision does.

d. Revisions and the Safe Performance of ATVs

We do not believe that any of the revisions in the ANSI/SVIA 1-2010 standard would diminish the safety of ATVs. Many changes would likely have no direct impact on safety. Whether any of the changes in the 2010 edition of the ANSI/SVIA standard are “reasonably related to the safe performance of ATVs” depends on the criteria for measuring or determining the meaning of “reasonably related” and “safe performance of ATVs.” Although some changes could be considered more related than others to the safe performance of ATVs, such as the requirement that there be no power take-offs on youth ATVs, all, in fact, could be related to the safe performance because the changes improve the standard's clarity and consistency and, in that way, advance the standard.

Given the relatively minor and editorial nature of most of the changes meant to improve the standard's clarity and consistency, it makes sense to revise the Commission's mandatory standard to incorporate all of the provisions of the ANSI/SVIA 1-2010 version to avoid there being two slightly different versions of the standard, the current mandatory standard and the revised voluntary standard. This could lead to confusion in the marketplace, particularly for companies not affiliated with SVIA; for companies that are new to the market; for foreign companies that desire to enter or maintain a place in the U.S. market for ATVs; and for third party testing conformity assessment bodies.

3. Brief Description of the Proposed Rule

The proposed rule would revise § 1420.3, “Requirements for four-wheel ATVs.” The current rule refers to the ANSI/SVIA 1-2007 standard, so the proposed rule would replace this reference with the ANSI/SVIA 1-2010 version.

C. Effective Date

The CPSIA provides a timetable for the Commission to issue a notice of proposed rulemaking (within 120 days of receiving notification of a revised ANSI/SVIA standard) and to issue a final rule (within 180 days of publication of the proposed rule), but it does not set an effective date. We propose that the amendment updating the ANSI/SVIA standard take effect 30 days after publication of a final rule. The differences between the 2007 version of the standard and the 2010 version are relatively minor and largely editorial. Because the 2010 version of the ANSI/SVIA standard is already in effect as a voluntary standard, we expect that very few manufacturers would need to make any modifications to meet a mandatory standard that references ANSI/SVIA 1-2010.

D. Regulatory Flexibility Act

The Regulatory Flexibility Act (“RFA”) generally requires that agencies review proposed rules for their potential economic impact on small entities, including small businesses. Because section 42(a)(1) of the CPSA required the Commission to publish ANSI/SVIA 1-2007 as a consumer product safety standard within 90 days of enactment of the CPSIA, we did not issue a notice of proposed rulemaking and, therefore, did not prepare a regulatory flexibility analysis. Moreover, section 42(a)(1) of the CPSA required the Commission to publish ANSI/SVIA 1-2007 as a consumer product safety standard “[n]otwithstanding any other provision of law.” 15 U.S.C. 2089(a). The Commission interpreted this statutory language to mean that provisions that might ordinarily apply to a rulemaking proceeding, such as those under the RFA, did not apply to the rulemaking mandating ANSI/SVIA 1-2007.

In contrast, section 42(b)(2) of the CPSA requires the Commission to issue a notice of proposed rulemaking when it amends its ATV standard to reflect a revision to the ANSI/SVIA standard. Section 42(b)(4) of the CPSA provides that when the Commission amends its ATV standard to reflect revisions to the ANSI/SVIA standard, the procedures and findings required under sections 7 and 9 of the CPSA do not apply to such a rulemaking. However, this section does not explicitly exempt such a rulemaking from the requirements of the RFA. Therefore, we examined the potential impact on small business that could occur from amending our ATV standard to reference the 2010 version of the ANSI/SVIA standard.

Our analysis indicates that, as of February 2011, 45 ATV manufacturers or importers had CPSC-approved action plans. (Section 42(a)(2) of the CPSA requires that ATV manufacturers or distributors have an ATV action plan filed with the Commission, in addition to complying with the mandated ATV standard). However, two of the 45 companies appear to have stopped manufacturing or importing ATVs. Of the remaining 43 companies, 17 are either large domestic manufacturers or subsidiaries of foreign manufacturers. The remaining 26 companies could be small manufacturers or importers. However, in several cases there was not sufficient readily available information to make this determination. According to the criteria established by the U.S. Small Business Administration, manufacturers are considered to be small if they have fewer than 500 employees. Importers of ATVs that are not actually manufacturers would be considered to be wholesalers and would be considered to be small if they have fewer than 100 employees.

For the most part, the differences between the 2007 and 2010 editions of the ANSI/SVIA standard are relatively minor modifications or updates and are not expected to have a significant impact on any manufacturers or importers of ATVs. Some changes to the text of the ANSI/SVIA standard do not alter the actual requirements of the standard. For example, in the 2010 standard, the phrase “Also called the engine starter” was deleted from the definition of “electric starter.” If any revisions would affect manufacturers, the adjustments that would be required to comply with the 2010 standard would be relatively easy to make, such as some changes in the design or warning labels or hangtags. Other changes, such as the restrictions on the use of power take-offs (devices that allow the engine of a vehicle to power an accessory device or other equipment) and non-fixed structures on Category Y ATVs, the minor changes to the test procedures for service brakes on Category Y ATVs and parking brakes on other ATVs, are unlikely to affect many ATV models. For ATV models that would be affected, the required modifications should be relatively easy to make.

Therefore, we conclude that amending the mandatory ATV standard to reference the 2010 edition of the ANSI/SVIA ATV standard would not have a significant impact on a substantial number of small businesses or other small entities.

E. Paperwork Reduction Act

This proposed amendment would not impose any information collection requirements. Accordingly, this rule is not subject to the Paperwork Reduction Act, 44 U.S.C. 3501-3520.

F. Environmental Considerations

The Commission's regulations provide a categorical exemption for the Commission's rules from any requirement to prepare an environmental assessment or an environmental impact statement as they “have little or no potential for affecting the human environment.” 16 CFR 1021.5(c)(2). This proposed amendment falls within the categorical exemption.

G. Request for Comments and Information

The Commission is interested in receiving information, comments, and/or data on the following issues, some of which are beyond the scope of the immediate revisions to the mandatory standard and will be relevant to future ATV rulemaking:

i. Whether the proposed revisions to ANSI/SVIA 1-2007 by ANSI/SVIA 1-2010 are likely to enhance the clarity of the ANSI standard;

ii. The size of the companies (both manufacturers and importers) that have filed action plans with the Commission that would assist with determining whether these companies should be considered small businesses under the Regulatory Flexibility Act;

iii. The effect of not eliminating from the scope of the standard the expiration of the definition and requirements for the Y-12+ ATV age category on July 28, 2011, specifically, but not limited to:

(a) The relationship of the need for continued production of Y-12+ ATV age category and the Consumer Product Safety Improvement Act's (CPSIA) lead content requirements on ATVs intended primarily for youth including the effect of the two stays of enforcement issued by the Commission on the availability of Y-6+ and Y-10+ models (May 1, 2009—74 FR 22154 and Feb. 1, 2011—76 FR 5565);

(b) The number of Y-6+ and Y-10+ models in the marketplace prior to August 2008 and the number available in 2011;

(c) Whether this revision is likely to result in children younger than 12 years old riding Y-12+ ATVs;

(d) The safety of six to nine year old children when using a Y-12+ ATV;

(e) Whether this revision implicitly approves the use of a Y-12+ ATV when a Y-6+ ATV or Y-10+ ATV is not available;

(f) Whether there are any state laws prohibiting the use of a Y-12+ ATV by children younger than 12 including the effects on ATV-related injuries or deaths in those states that have new or updated mandated minimum age requirements for ATV operation since the adoption of ANSI/SVIA 1-2007;

(g) Whether rejecting this revision is likely to result in an increase of the availability of Y-6+ and Y-10+ model ATVs;

(h) Whether rejecting this revision is likely to result in children younger than 12 years old riding adult model ATVs;

(i) The comparative safety of Y-12+ and adult model ATVs when used by children younger than 12 years old;

iv. Other potential improvements on braking test requirements for all ATV categories, (such as the change to the ANSI/SVIA 1-2010 proposal for Y-6+ ATVs);

v. The ANSI/SVIA 1-2010 limitation of the testing standard for passenger handholds by specifying that the force applied must be upward;

(a) Not adding a downward testing component during this revision;

(b) Adding a downward testing component during the next revision;

vi. Any other potential improvements to ATV safety that were not included in the proposed revision to the voluntary standard including, but not limited to:

(a) ATV rollover protection systems or predictive functional controls;

(b) Modifications with respect to the maximum speed of ATVs;

(c) Child-proof ignition safety locks for adult-sized ATVs.

List of Subjects in 16 CFR Part 1420

• Administrative practice and procedure
• Business and industry
• Consumer protection
• Imports
• Incorporation by reference
• Information
• Infants and children
• Labeling
• Law enforcement
• Recreation and recreation areas
• Reporting and recordkeeping requirements
• Safety

For the reasons stated in the preamble, the Commission proposes to amend 16 CFR part 1420 as follows:

PART 1420—REQUIREMENTS FOR ALL TERRAIN VEHICLES

1. The authority citation for part 1420 continues to read as follows:

Authority: The Consumer Product Safety Improvement Act of 2008, Public Law 110-314, § 232, 122 Stat. 3016 (August 14, 2008).

2. In the second sentence of § 1420.1, remove the words, “April 13, 2009,” and add in their place “(date 30 days after publication of a final rule in the Federal Register).”

3. Revise § 1420.3 to read as follows:

§ 1420.3

Requirements for four-wheel ATVs.

(a) Each ATV shall comply with all applicable provisions of the American National Standard for Four-Wheel All-Terrain Vehicles (American National Standards Institute, Inc. ANSI/SVIA 1-2010), approved December 23, 2010. The Director of the Federal Register approves this incorporation by reference in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. You may obtain a copy from Specialty Vehicle Institute of America, 2 Jenner, Suite 150, Irvine, California 92618-3806; telephone [phone] ext.3023; http://www.svia.org. You may inspect a copy at the Office of the Secretary, U.S. Consumer Product Safety Commission, Room 820, 4330 East West Highway, Bethesda, MD 20814, telephone [phone], or at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: http://www.archives.gov/​federal_​register/​code_​of_​federal_​regulations/​ibr_​locations.html.

Dated: July 19, 2011.

Todd A. Stevenson,

Secretary, U.S. Consumer Product Safety Commission.

Footnotes

1.  The Commission voted 4-0-1 to approve publication of this notice of proposed rulemaking. Chairman Inez M. Tenenbaum and Commissioners Thomas H. Moore, Nancy A. Nord and Robert S. Adler voted for the proposed rule. Commissioner Ann M. Northup abstained from voting.