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Motor Vehicles or High-Powered Toys: The Diverse Landscape of Off-Road Vehicle Regulation and Where it Might be Going

With uses ranging from transporting troops to increasing mobility for people with disabilities, off-road vehicles (ORVs) are being used by more people now than when the all-terrain vehicle (ATV) emerged in the 1960s. With increased demand comes increased discussion about how ORVs are regulated. And the answer is, it depends on where you live.

In some countries, consumer product agencies regulate ORV safety, while in others, motor vehicle agencies take the lead. ORV manufacturers that sell in multiple markets must therefore engage with regulators with varying frames of reference. Those differences can complicate how ORV safety is regulated. While the direction of future regulation is uncertain, manufacturers will need to understand new regulatory ideas, as well as the varying mindsets of the agencies that may propose them.

In the United States, ORV regulations developed piecemeal. By default, the U.S. Consumer Product Safety Commission (CPSC) regulates ORVs. The CPSC is responsible for any product that is used by consumers unless the product is regulated by another safety agency. The National Highway Traffic Safety Administration (NHTSA) has jurisdiction over motor vehicles, but federal law defines a “motor vehicle” as being “manufactured primarily for use on public streets, roads, and highways.” Because ORVs are generally not intended for on-road use in the U.S., the NHTSA has no authority over them and they are regulated by the CPSC.

The first major category of ORVs – the ATV, characterized by straddle seats and handlebars – entered common use in the late 1960s. About 20 years later, the CPSC asked each ATV manufacturer to adopt a voluntary “ATV Action Plan.” The plan aimed to reduce risks to children, and it committed each company to work with its dealers to provide age-ratings for youth-size ATVs and to prevent sales of adult-size ATVs to minors. About 10 years ago, the Consumer Product Safety Improvement Act made Action Plans mandatory and adopted the voluntary safety standard (ANSI/SVIA 1-2007).

Just like the CPSC’s ATV rules, the products themselves have evolved considerably. Horsepower has gone to over 90, engines have quadrupled in displacement, and car-like features like anti-lock braking and electronic stability control have become common. Further, a new category – the side-by-side recreational off-highway vehicle (ROV), characterized by bench or bucket seating and automotive-style controls – emerged in the early 2000s. Today’s ORVs look less like a CPSC product and more like a NHTSA vehicle.

As ORVs have spread around the world, other countries have approached regulation strategically. The result has generally been to treat ORVs less like consumer products and more like transportation. In Canada, for example, the motor vehicle regulator, Transport Canada, regulates ORVs. The European Union goes further, not just putting ORVs in the same regulatory bucket as road-going vehicles but generally requiring ORVs to be road-capable.

Most of the time, the fact that ORVs are regulated by different kinds of agencies has minimal practical significance. But when potential safety issues arise, regulatory variation can complicate responses.

Coordinating Recalls

Any product recall is challenging for a company, even in just one country. An international recall – with varying laws, expectations, and languages – can be even more challenging.

Increasing coordination between countries’ consumer-product regulators has helped simplify recalls. For example, virtually all of the products within the CPSC’s jurisdiction are regulated in Canada by Health Canada, so the CPSC and Health Canada work closely together under formalized cooperation structures.

Differences in ORV regulators, however, can complicate international coordination. For example, structural differences between agencies can hamper recalls. Most notably, the CPSC requires that companies report at the first sign of a potential problem, and then the agency and the reporting company collaborate to determine what, if any, action is appropriate. Weeks or months can pass between a report and a recall, and, during that time, the CPSC strongly disfavors public communication out of a concern that the recall message may be diluted.

By contrast, Transport Canada, modeled on the NHTSA, acts more as a communication platform for recalls; the agency helps spread the word, but companies make recall decisions themselves and, so long as they are acting in good faith, they do not need to file a report unless there is a recall. Instead of taking weeks or months, Transport Canada typically publishes recalls within days.

Where a company has informed the CPSC that it intends to conduct a recall, it may face a dilemma. Should the company notify Transport Canada simultaneously and risk what the CPSC would consider a premature announcement? Or should it wait to inform Transport Canada, risking rebuke for late reporting? Moreover, this complication is not unique to Canada, as the European and Australia recall processes, too, require companies to notify when they decide to recall and favor quick public announcement.

Coordinating Regulation

Complying with rules across jurisdictions can be an additional challenge, especially when the rules conflict (like the EU’s requirement that ATVs be road-capable versus the U.S.’s presumption that they be used off the roads). Companies may therefore want to engage in various countries’ regulatory processes to seek more uniform regulation.

To be most successful in their international engagement, companies should be mindful that their regulators come not just from different countries but from different perspectives. Some agencies that are accustomed to the challenges of complex machines that move at different speeds across varying surfaces, in varying conditions, and that are propelled by combustible fuels, like in the motor vehicle environment, may intuitively appreciate the limits of engineering and the role of consumers’ actions or inactions in safety outcomes.

Other agencies that typically regulate less technically complex products may see potential product or component failures as more likely pointing to a defect.

The distinction between a motor-vehicle and a consumer-product perspective is greatest at the policy-making level, where discussions about future regulations occur. Manufacturers of course understand their products, but to successfully engage in safety policy discussions, they also must understand regulators’ mindsets. That can be difficult enough with one regulator but having to engage with the potentially disparate philosophies of consumer-product and motor-vehicle regulators can further complicate this already delicate task.

Mallory is a third-year law student at Northwestern University and a 2019 summer associate at Schiff Hardin LLP. This article was authored under the supervision of Malerie Ma Roddy.

© 2019 Schiff Hardin LLP

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About this Author

Mike Gentine, Schiff Hardin, Product liability lawyer
Counsel

With experience spanning federal government, private practice, and in-house roles, Mike advises clients on legal and regulatory matters particularly in the area of consumer goods and product safety.

Mike has held multiple positions at the U.S. Consumer Product Safety Commission (CPSC). He served as senior counsel for the Office of CPSC Commissioner Joseph P. Mohorovic from 2014-2017, where he advised on various policy, enforcement, and ethics issues. He led several efforts to reform rules and regulations, including an initiative to reduce the paperwork burden on CPSC-regulated...

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